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SECURITIES AND EXCHANGE COMMISSION
UNITED STATES
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) April 4, 2003
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REGENCY CENTERS CORPORATION
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(Exact name of registrant as specified in its charter)
Florida 001-12298 59-3191743
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
121 West Forsyth Street, Suite 200 32202
Jacksonville, Florida -----
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: (904) 598-7000
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Not Applicable
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(Former name or former address, if changed since last report)
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
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C. Exhibits:
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The exhibits listed below relate to the Registration Statement No.
333-37911 on Form S-3 of Regency Centers Corporation and are filed herewith for
incorporation by reference in such Registration Statement.
1.4 Underwriting Agreement dated March 27, 2003 among Regency
Centers Corporation and Morgan Stanley & Co., Incorporated
1.5 Pricing Agreement dated March 27, 2003 among Regency Centers
Corporation and Morgan Stanley & Co., Incorporated
4.4 Deposit Agreement dated April 3, 2003 among Regency Centers
Corporation and Wachovia Bank, National Association
4.5 Form of depositary receipt
3.1 Amendment to the Company's Articles of Incorporation
Designating the Preferences, Rights and Limitations of 300,000
shares of 7.45% Series 3 Cumulative Redeemable Preferred Stock
3.2 Restated Articles of Incorporation of the Company
5.1 Opinion of Foley & Lardner as to the legality of the
securities to be issued
8.1 Opinion of Foley & Lardner as to the tax aspects of the
offering
12.1 Statement regarding computation of earnings to fixed charges
ratio
23.1 Consent of Foley & Lardner (included in Opinions filed as
Exhibits 5.1 and 8.1)
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
REGENCY CENTERS CORPORATION
(registrant)
April 4, 2003 By: /s/ J. Christian Leavitt
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J. Christian Leavitt, Senior Vice
President, Finance and Principal
Accounting Officer
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Regency Centers Corporation
Preferred Stock, Depositary Shares and Common Stock
Underwriting Agreement
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March 27, 2003
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
From time to time Regency Centers Corporation, a Florida corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its preferred stock, depositary shares or common
stock (the "Securities") specified in Schedule II to such Pricing Agreement
(with respect to such Pricing Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the resolutions of the board of directors of the Company or a duly
appointed committee thereof identified in the Pricing Agreement.
1. Particular sales of Designated Securities may be made from time
to time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate amount of such Designated Securities, the initial public offering
price of such Designated Securities, the purchase price to the Underwriters of
such Designated Securities, the names of
the Underwriters of such Designated Securities, the names of the Representatives
of such Underwriters and the amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-37911),
including post-effective amendment No. 1 thereto (the "Initial
Registration Statement") in respect of the Securities has been filed with
the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to the Representatives
and, excluding exhibits to the Initial Registration Statement, but
including all documents incorporated by reference in the prospectus
contained therein, to the Representatives for each of the other
Underwriters, have been declared effective by the Commission in such
form; other than a registration statement, if any, increasing the size of
the offering (a "Rule 462(b) Registration Statement"), filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended (the "Act"),
which became effective upon filing, no other document with respect to the
Initial Registration Statement or document incorporated by reference
therein has heretofore been filed or transmitted for filing with the
Commission (other than prospectuses filed pursuant to Rule 424(b) of the
rules and regulations of the Commission under the Act, each in the form
heretofore delivered to the Representatives); and no stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with
the Commission pursuant to Rule 424(a) under the Act, is hereinafter
called a "Preliminary Prospectus"; the various parts of the Initial
Registration Statement, any post-effective amendment thereto and the Rule
462(b) Registration Statement, if any, including all exhibits thereto and
the documents incorporated by reference in the prospectus contained in
the Initial Registration Statement at the time such part of the Initial
Registration Statement became effective, each as amended at the time such
part of the Initial Registration Statement became effective or such part
of the Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective, are hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Securities, in the form in
which it has most recently been filed, or transmitted for filing, with
the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein
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pursuant to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Initial Registration Statement shall be deemed to refer
to and include any annual or special report of the Company filed pursuant
to Section 13(a) or 15(d) of the Exchange Act after the effective date of
the Initial Registration Statement that is incorporated by reference in
the Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the Prospectus as
amended or supplemented in relation to the applicable Designated
Securities in the form in which it is filed with the Commission pursuant
to Rule 424(b) under the Act in accordance with Section 5(a) hereof,
including any documents incorporated by reference therein as of the date
of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the requirements
of the Act, and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
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(d) Neither the Company nor any of its subsidiaries (including
Regency Centers, L.P., a Delaware limited partnership (the
"Partnership")) has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change
in the capital stock of the Company or any of its subsidiaries (including
the Partnership) (other than issuances of capital stock in connection
with employee benefit plans, the exercise of options, the exchange of
Partnership units and the payment of earn-outs pursuant to contractual
commitments) or in the partners' capital of the Partnership or any of its
subsidiaries, any change in mortgage loans payable or long-term debt of
the Company or any of its subsidiaries (including the Partnership) in
excess of $20,000,000 or in the mortgage loans payable or long-term debt
of the Partnership or any of its subsidiaries or any material adverse
change in excess of $20,000,000, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity, partners' capital
or results of operations of the Company and its subsidiaries (including
the Partnership), otherwise than as set forth or contemplated in the
Prospectus and except that on March 18, 2003, the Partnership redeemed
$35 million of Series C Preferred Units and $40 million of Series E
Preferred Units for 101% of their liquidation preference, using funds
provided by the Partnership's line of credit, and granted the holders a
put option for 60 days thereafter to sell an additional $25 million of
such preferred units to the Partnership on the same terms and conditions
(the "March 2003 Partnership Redemption");
(e) The Company and its subsidiaries (including the
Partnership) have good and marketable title in fee simple to all real
property and good and marketable title to all personal property owned
by them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as do
not materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the
Company and its subsidiaries (including the Partnership); and any real
property and buildings held under lease by the Company and its
subsidiaries (including the Partnership) are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its subsidiaries
(including the Partnership);
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Florida, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; the Partnership has been duly
organized and is validly existing in good standing under the laws of
the State of Delaware, with power and authority to own its properties
and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign partnership for the transaction of business
and
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is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; and each subsidiary of the Company has been duly
incorporated or organized and is validly existing as a corporation or
other entity in good standing under the laws of its jurisdiction of
incorporation or organization;
(g) All of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; the capital stock of the Company conforms in all
material respects to the description thereof in the Prospectus as
amended or supplemented; and, except as set forth on Exhibit A, all of
the issued shares of capital stock or other equity interests of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and (except as set forth on
Exhibit A and directors' qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims; all of the issued partnership interests of the
Partnership have been duly and validly authorized and issued and are
fully paid and non-assessable;
(h) The Designated Securities have been duly and validly
authorized, and, when Designated Securities are issued and delivered
pursuant to this Agreement and the Pricing Agreement with respect to
such Designated Securities, such Designated Securities will be duly and
validly issued and fully paid and, except as set forth in the
Prospectus under the captions "Description of Common Shares --
Shareholder Liability" and "Description of Preferred Shares --
Shareholder Liability", non-assessable; and the Designated Securities
conform to the description thereof contained in the Registration
Statement and the Prospectus as amended or supplemented with respect to
such Designated Securities; upon issuance of depositary receipts
("Receipts") evidencing depositary shares against the deposit of
Securities in respect thereof in accordance with the provisions of a
deposit agreement ("Deposit Agreement"), such Receipts will be duly and
validly issued and the persons in whose names the Receipts are
registered will be entitled to the rights specified therein and in the
Deposit Agreement;
(i) The Mirror Partnership Units (as defined in Section 7(i)
below) have been duly and validly authorized and issued and are fully
paid and non-assessable, and have the same rights, preferences, terms
and provisions as the Designated Securities.
(j) This Agreement has been duly authorized, executed and
delivered by the Company; and any Deposit Agreement will be duly
authorized, executed and delivered by the Company and will be a valid,
binding and enforceable obligation of the Company
(k) None of the transactions contemplated by this Agreement or
any Pricing Agreement (including, without limitation, the use of the
proceeds from the sale of the Designated Securities) will violate or
result in a violation of Section 7 of the Exchange Act, or any
regulation promulgated thereunder, including, without limitation,
Regulations G, T, U, and X of the Board of Governors of the Federal
Reserve System;
(l) Prior to the date hereof, neither the Company nor any of
its affiliates (including the Partnership) has taken any action which
is designed to or which has constituted or which might have been
expected to cause or result in stabilization or
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manipulation of the price of any security of the Company or the
Partnership in connection with the offering of the Designated Securities;
(m) The issue and sale of the Securities and the compliance by
the Company and the Partnership with all of the provisions of the
Securities, the Deposit Agreement, this Agreement and any Pricing
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries
(including the Partnership) is a party or by which the Company or any
of its subsidiaries (including the Partnership) is bound or to which
any of the property or assets of the Company or any of its subsidiaries
(including the Subsidiaries) is subject, nor will such action result in
any violation of the provisions of the Articles of Incorporation or
By-laws of the Company, the Certificate of Limited Partnership or
partnership agreement of the Partnership or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries (including the
Partnership) or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale
of the Securities or the consummation by the Company and the
Partnership of the transactions contemplated by this Agreement or any
Pricing Agreement, except such as have been, or will have been prior to
the Time of Delivery (as defined in Section 4 hereof), obtained under
the Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Securities
by the Underwriters;
(n) Neither the Company nor any of its subsidiaries (including
the Partnership) is in violation of its Articles of Incorporation,
By-laws, Certificate of Limited Partnership or partnership agreement or
in default in the performance or observance of any material obligation,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound;
(o) The statements set forth in the Registration Statement
under the captions "Description of the Common Stock", "Description of
Preferred Stock", "Description of Depositary Shares", "Federal Income
Tax Considerations", and "Plan of Distribution" are, and the statements
made in the Prospectus as amended or supplemented under corresponding
or similar captions to the extent made are, insofar as such statements
constitute a summary of the terms of the Securities and the laws and
documents referred to therein, are accurate and complete in all
material respects;
(p) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries (including the Partnership) is a party or of which
any property of the Company or any of its subsidiaries (including the
Partnership) is the subject which, if determined adversely to the
Company or any of its subsidiaries (including the Partnership), would
individually or in the aggregate have a material adverse effect on the
current or future financial position, stockholders' equity, partners'
capital or results of operations of the Company and its subsidiaries
(including the Partnership); and, to the best of the Company's
6
knowledge and the Partnership's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(q) The Company has qualified to be taxed as a real estate
investment trust pursuant to Sec-tions 856 through 860 of the Internal
Revenue Code of 1986, as amended (the "Code"), for each of the fiscal
years from its inception through the most recently completed fiscal
year and the Company' s present and contemplated organization,
ownership, method of operation, assets and income are such that the
Company is in a position under present law to so qualify for the
current fiscal year and in the future;
(r) Neither the Company nor the Partnership has knowledge of
(a) the presence of any hazardous substances, hazardous materials,
toxic substances or waste materials (collec-tively, "Hazardous
Materials") on any of the properties owned by it in violation of law or
in excess of regulatory action levels or (b) any unlaw-ful spills,
releases, discharges or disposal of Hazardous Materials that have
occurred or are presently occurring on or off such properties as a
result of any construction on or operation and use of such properties,
which presence or occurrence would materi-ally adversely affect the
condition, financial or otherwise, or the earnings, busi-ness affairs
or business prospects of the Company or the Partnership; and in
connection with the construction on or operation and use of the
properties owned by the Company and the Partnership, neither has any
knowledge of any material failure to comply with all applicable local,
state and federal environmental laws, regula-tions, agency
requirements, ordinances and administrative and judicial orders;
(s) Neither the Company nor the Partnership is, and after
giving effect to the offering and sale of the Securities, will be an
"investment company", or an entity "controlled" by an "investment
company", as such terms are defined in the United States Investment
Company Act of 1940, as amended (the "Investment Company Act"); and
(t) KPMG LLP, who have certified certain financial statements
of the Company and its subsidiaries and the Partnership and its
subsidiaries, are independent public accountants as required by the Act
and the rules and regulations of the Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities thereof, the several Underwriters propose to offer
such Designated Securities for sale upon the terms and conditions set forth in
the Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to the
Representatives at least forty-eight hours in advance or at such other place and
time and date as the Representatives and the Company may agree upon in writing,
such time and date being herein called the "Time of Delivery" for such
Securities.
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5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Securities and prior to the Time
of Delivery for such Securities which shall be disapproved by the
Representatives for such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment
or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus
is required in connection with the offering or sale of such Securities,
and during such same period to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
with the Commission, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such
qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities; provided, that in connection therewith
the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters in New York City with copies of
the Prospectus as amended or supplemented in such quantities as the
Representatives may reasonably request and, if the delivery of a
prospectus is required at any time in connection with the offering or
8
sale of the Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act, to notify the Representatives and upon
their request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of
the Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the later of (i) the termination of trading restrictions for
such Designated Securities, as notified to the Company by the
Representatives, and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder, any debt securities of Company which
are substantially similar to such Designated Securities, without the
prior written consent of the Representatives;
(f) Not to be or become, at any time prior to the expiration
of three years after the Time of Delivery, an open-end investment
company, unit investment trust, closed-end investment company or
face-amount certificate company that is or is required to be registered
under Section 8 of the Investment Company Act;
(g) During a period of five years from the date of the
Prospectus, to furnish to the Representatives copies of all reports or
other communications (financial or other) furnished to stockholders of
the Company and to deliver to the Representatives (i) as soon as they
are available, copies of any reports and financial statements furnished
to or filed with the Commission or any securities exchange on which the
Securities or any class of securities of the Company is listed; and
(ii) such additional information concerning the business and financial
condition of the Company as the Representatives may from time to time
reasonably request (such financial statements to be on a consolidated
basis to the extent the accounts of the Company and its subsidiaries
are consolidated in reports furnished to its stockholders generally or
to the Commission);
(h) To use the net proceeds received by it from the sale of
the Securities pursuant to this Agreement and any Pricing Agreement in
the manner specified in the Prospectus under the caption "Use of
Proceeds"; and
(i) If the Company elects to rely upon Rule 462(b), the
Company and the Partnership shall file a Rule 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) by 10:00
P.M., Washington, D.C. time, on the date of this
9
Agreement, and the Partnership and the Company shall at the time of
filing either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment
of such fee pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with each of the several
Underwriters that, whether or not the transactions contemplated in this
Agreement and the Pricing Agreement are consummated or this Agreement is
terminated, the Company will pay or cause to be paid the following expenses
incident to the performance of its obligations: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses, including
the cost of all audits, statements or reports, in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and any amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (ii)
the cost of printing or producing any Agreement among Underwriters, this
Agreement, any Pricing Agreement, the Deposit Agreement, the Blue Sky and Legal
Investment Memoranda, closing documents (including any compilations thereof) and
any other documents in connection with the offering, purchase, sale and delivery
of the Securities; (iii) all expenses in connection with the qualification of
the Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with the Blue Sky and legal investment surveys; (iv) any fees charged by
securities rating services for rating the Securities; (v) any fees and expenses
relating to the eligibility and issuance of Securities in book-entry form and
the cost of obtaining CUSIP or other identification numbers fo the Securities
(vi) any filing fees incident to, and the reasonable fees and disbursements of
counsel for the Underwriters in connection with, any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vii) the cost of preparing certificates for Securities; all
expenses in connection with the issue and delivery of the Securities to the
Underwriters as contemplated in Section 1 hereof; (viii) the fees and expenses
of any transfer agent or registrar or dividend disbursing agent or depositary
and the reasonable fees and disbursements of counsel for any such agent of agent
in connection with the Securities; (viii) all Federal and State taxes (if any)
payable (not including any transfer tax) upon the issue of the Securities; (ix)
fees and expenses incurred in connection with any listing of the Securities on a
securities exchange; (x) the Company's costs and expenses relating to investor
presentations on any "road show" undertaken in connection with the marketing of
the offering of the Securities, including, without limitation, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and lodging
expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road
show, and (xi) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, transfer taxes on resale of
any of the Securities by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other
10
statements of the Company or incorporated by reference in the Pricing Agreement
relating to such Designated Securities are, at and as of the Time of Delivery
for such Designated Securities, true and correct, and the condition that the
Company shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; if the Company has elected
to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall
have become effective by 10:00 P.M., Washington, D.C. time, on the date
of this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Sullivan & Cromwell, counsel for the Underwriters, shall
have furnished to the Representatives such written opinion or opinions,
dated the Time of Delivery for such Designated Securities, with respect
to such matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Foley & Lardner, counsel for the Company, shall have
furnished to the Representatives their written opinion (a draft of such
opinion is attached as Annex II(b) hereto), dated the Time of Delivery
for such Designated Securities, in form and substance satisfactory to
the Representatives, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Florida, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus as amended or
supplemented; the Partnership has been duly organized and is
validly existing in good standing under the laws of the State
of Delaware, with power and authority to own its properties
and conduct its business as described in the Prospectus as
amended or supplemented;
(ii) All of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and
are fully paid and non-assessable; and all of the issued
partnership interests of the Partnership have been duly and
validly authorized and issued and are fully paid and
non-assessable;
(iii) Each of the Company and the Partnership has
been duly qualified as a foreign corporation or other
organization for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material
liability or disability by reason of the failure to be so
qualified in any such jurisdiction (such counsel being
entitled to rely in respect of
11
the opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the
Company or the Partnership, provided that such counsel shall state
that they believe that both you and they are justified in relying
upon such opinions and certificates);
(iv) Each other subsidiary of the Company has been
duly incorporated and is validly existing as a corporation or
other organization in good standing under the laws of its
jurisdiction of incorporation or organization; and all of the
issued shares of capital stock or partnership interests of
each such subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable, and (except for
directors' qualifying shares or as set forth on Exhibit A
hereto) are owned directly or indirectly by the Company, to
the best knowledge of such counsel, free and clear of all
liens, encumbrances, equities or claims (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company or the
Partnership or its subsidiaries, provided that such counsel
shall state that they believe that both you and they are
justified in relying upon such opinions and certificates);
(v) To the best of such counsel's knowledge and other
than as set forth in the Prospectus as amended or
supplemented, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries
(including the Partnership) is a party or of which any
property of the Company or any of its subsidiaries (including
the Partnership) is the subject which, if determined adversely
to the Company or any of its subsidiaries (including the
Partnership), would individually or in the aggregate have a
material adverse effect on the current or future consolidated
financial position, partners' capital, stockholders' equity or
results of operations of the Company and its subsidiaries
(including the Partnership); and, to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(vi) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Company;
(vii) The Designated Securities have been duly
authorized, executed, issued and delivered by the Company and
constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject,
as to enforcement, to bankruptcy, fraudulent transfer,
equitable subordination, fair dealing, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles; the Securities conform to the descriptions
thereof in the Prospectus as amended or supplemented;
(viii) The Mirror Partnership Units have been duly
and validly authorized and issued and are fully paid and
non-assessable, and have the same rights, preferences, terms
and provisions as the Designated Securities.
12
(ix) The issue and sale of the Designated Securities
and the compliance by the Company with all of the provisions
of the Designated Securities, the Deposit Agreement, the
Pricing Agreement and this Agreement and the consummation of
the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Company or any of its subsidiaries (including the Partnership)
is a party or by which the Company or any of its subsidiaries
(including the Partnership) is bound or to which any of the
property or assets of the Company or any of its subsidiaries
(including the Partnership) is subject, nor will such actions
result in any violation of the provisions of the Articles of
Incorporation or By-laws of the Company, the Certificate of
Limited Partnership or partnership agreement of the
Partnership or any statute or any order, rule or regulation of
any court or governmental agency or body known to us having
jurisdiction over the Company or any of its subsidiaries
(including the Partnership) or any of their properties;
(x) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Designated Securities or the consummation by the
Company and the Partnership of the transactions contemplated
by this Agreement or the Pricing Agreement, except such as
have been obtained under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Designated
Securities by the Underwriters;
(xi) Neither the Company nor any of its subsidiaries
(including the Partnership) is in violation of its Articles of
Incorporation or By-laws, its Certificate of Limited
Partnership or partnership agreement or in default in the
performance or observance of any material obligation, covenant
or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument
known to us to which it is a party or by which it or any of
its properties may be bound;
(xii) The statements set forth in the Prospectus
under the captions "Description of Common Stock", "Description
of Preferred Stock", "Description of Depositary Shares" and
"Description of Series 3 Preferred Stock and Depositary Shares
Description", insofar as they purport to constitute a summary
of the terms of the Designated Securities, and under the
captions "Federal Income Tax Considerations", "Certain Federal
Income Tax Considerations" and "Plan of Distribution", insofar
as they purport to describe the provisions of the laws and
documents referred to therein, are accurate and complete in
all material respects;
(xiii) The Company has qualified to be taxed as a
real estate invest-ment trust pursuant to Sections 856 through
860 of the Code for each taxable year since its inception
through the most recently completed fiscal year,
13
and based on assumptions set forth in the Prospectus and certain
representations of the Company, including but not limited to
those set forth in an Officer's Certificate, the Company's
present and contemplated organization, ownership, method of
opera-tion, assets and income are such that the Company is in
a position under present law to so qualify for the current
fiscal year and in the future;
(xiv) Neither the Company nor the Partnership is an
"investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act;
(xv) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder;
and they have no reason to believe that any of such documents,
when they became effective or were so filed, as the case may
be, contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading, or, in the case of other documents which were
filed under the Act or the Exchange Act with the Commission,
an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading;
and
(xvi) The Registration Statement and the Prospectus
as amended or supplemented and any further amendments and
supplements thereto made by the Partnership and the Company
prior to the Time of Delivery for the Designated Securities
(other than the financial statements and related schedules
therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the
requirements of the Act and the rules and regulations
thereunder; although they do not assume any responsibility for
the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus,
except for those referred to in the opinion in subsection
(xii) of this Section 7(c), they have no reason to believe
that, as of its effective date, the Registration Statement or
any further amendment thereto made by the Partnership and the
Company prior to the Time of Delivery (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of its
date, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Partnership and
the Company prior to the Time of Delivery (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus as amended or
supplemented or any further amendment or supplement thereto
made by the Company and the Partnership prior to the Time of
Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the
14
statements therein, in the light of the circumstances under
which they were made, not misleading; and they do not know of
any amendment to the Registration Statement required to be
filed or any contracts or other documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or incorporated by
reference or described as required;
(d) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement
with respect to such Designated Securities and at the Time of Delivery
for such Designated Securities, the independent accountants of the
Company and the Partnership who have certified the financial statements
of the Company and its subsidiaries, the Partnership and its
subsidiaries included or incorporated by reference in the Registration
Statement shall have furnished to the Representatives a letter, dated
the effective date of the Registration Statement or the date of the
most recent report filed with the Commission containing financial
statements and incorporated by reference in the Registration Statement,
if the date of such report is later than such effective date, and a
letter dated such Time of Delivery, respectively, to the effect set
forth in Annex II hereto, and with respect to such letter dated such
Time of Delivery, as to such other matters as the Representatives may
reasonably request and in form and substance satisfactory to the
Representatives (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex I(a) hereto and a
draft of the form of letter to be delivered on the effective date of
any post-effective amendment to the Registration Statement and as of
each Time of Delivery is attached as Annex I(b) hereto);
(e) (i) Neither the Company nor any of its subsidiaries
(including the Partnership) shall have sustained since the date of the
latest audited financial statements included or incorporated by
reference in the Prospectus as amended prior to the date of the Pricing
Agreement relating to the Designated Securities any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Designated
Securities, and (ii) since the respective dates as of which information
is given in the Prospectus as amended prior to the date of the Pricing
Agreement relating to the Designated Securities there shall not have
been any change in the capital stock, mortgage loans payable or
long-term debt of the Company or any of its subsidiaries (including the
Partnership) or in the partners' capital, mortgage loans payable or
long-term debt of the Partnership or any of its subsidiaries, or any
change, or any development involving a
15
prospective change, in or affecting the general affairs, management,
financial position, partners' capital, stockholders' equity or results of
operations of the Company and its subsidiaries (including the
Partnership), taken as a whole, than is otherwise set forth or
contemplated in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Securities and other than
the March Partnership Redemption (as defined in Section 2(d)), the effect
of which, in any such case described in Clause (i) or (ii), is material
and adverse, in the judgment of the Representatives, and that makes it,
in the judgment of the Representatives, impracticable or inadvisable to
market or proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in this
Agreement and in the Prospectus as first amended or supplemented relating
to the Designated Securities;
(f) On or after the date of the Pricing Agreement relating to
the Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Company's or the Partnership's debt securities or
preferred stock by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's or
the Partnership's debt securities or preferred stock;
(g) On or after the date of the Pricing Agreement relating to
the Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange (the "NYSE"); (ii)
a suspension or material limitation in trading in the Company's
securities on the NYSE; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York State
authorities; (iv) a material disruption in commercial banking or
securities settlement, payment or clearance services in the United
States; (v) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national
emergency or war; or (vi) the occurrence of any other calamity or
crisis or any change, in financial, political or economic conditions in
the United States or elsewhere, if the effect of any such event
specified in Clause (v) or (vi) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the terms and
in the manner contemplated in the Prospectus as first amended or
supplemented relating to the Designated Securities;
(h) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
(i) The Partnership has duly authorized and issued Partnership
Interests (as defined in the Fourth Amended and Restated Agreement of
Limited Partnership of the Partnership, dated as of April 1, 2001) in
number and amount equal to and of the same rights, preferences, terms
and provisions as the Designated Securities.
(j) The Company shall have furnished or caused to be furnished
to the Representatives at the Time of Delivery for the Designated
Securities certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the
16
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (e) of this
Section and as to such other matters as the Representatives may
reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against any and all losses, expenses, claims, damages or liabilities, joint
or several, to which such Underwriter or such controlling person may become
subject, under the Act or otherwise, insofar as such losses, expenses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter and
each person who controls any Underwriting as aforesaid for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Partnership and the Company shall not be
liable in any such case to the extent that any such loss, expense, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company and
each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, expenses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as such
losses, expenses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred.
17
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein at its own expenses, or if it so elects, to assume the defense, jointly
with any other indemnifying party similarly notified, such defense being
conducted by counsel satisfactory to the indemnified party, and the indemnifying
party shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expenses of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the indemnified party has reasonably concluded (based on advice of counsel)
that there may be legal defenses available to it or other indemnified parties
that are different from or in addition to those available to the indemnifying
party. It is understood that the indemnifying party shall not, in respect of the
legal expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by
Morgan Stanley & Co. Incorporated, in the case of parties indemnified pursuant
to subsection (a) above, and by the Company, in the case of parties indemnified
pursuant to subsection (b) above. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement and judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated in this subsection (c), the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, expenses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
18
indemnified party as a result of such losses, expenses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the
Underwriters of the Designated Securities on the other from the offering of the
Designated Securities to which such loss, expense, claim, damage or liability
(or action in respect thereof) relates. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one
hand and the Underwriters of the Designated Securities on the other in
connection with the statements or omissions which resulted in such losses,
expenses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and such Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters, in each
case as set forth in the Prospectus relating to such Securities. The relative
fault shall be determined by reference to, among other things, whether the
untrue 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 Company
on the one hand or such Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, expenses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company and the Partnership within the meaning
of the Act.
19
9. (a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have the right
to postpone the Time of Delivery for such Designated Securities for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate amount of such Designated Securities which remains unpurchased does
not exceed one-eleventh of the aggregate amount of the Designated Securities,
then the Company shall have the right to require each non-defaulting Underwriter
to purchase the amount of Designated Securities which such Underwriter agreed to
purchase under the Pricing Agreement relating to such Designated Securities and,
in addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the amount of Designated Securities which such Underwriter
agreed to purchase under such Pricing Agreement) of the Designated Securities of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate amount of Designated Securities which remains unpurchased exceeds
one-eleventh of the aggregate amount of the Designated Securities, as referred
to in subsection (b) above, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Designated Securities of a defaulting Underwriter or Underwriters, then
the Pricing Agreement relating to such Designated Securities shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or
the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full
20
force and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and payment for
the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section
7(g) or 9 hereof, the Company shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such Pricing
Agreement except as provided in Sections 6 and 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters and the Company and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
21
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof.
Very truly yours,
Regency Centers Corporation
By:
Name:
Title:
Accepted as of the date hereof:
Morgan Stanley & Co. Incorporated
By:. . . . . . . . . . . . . . . . .
22
ANNEX I
Pricing Agreement
. . . . . . . . . . . , 20..
Morgan Stanley & Co. Incorporated
As Representative of the several
Underwriters named in Schedule I hereto
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Regency Centers Corporation, a Florida corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated March 27, 2003 (the "Underwriting Agreement"),
between the Corporation and Morgan Stanley & Co. Incorporated to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") the
Securities specified in Schedule II hereto (the "Designated Securities"). Each
of the provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Agreement to
the same extent as if such provisions had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the amount of Designated Securities set forth opposite the name of such
Underwriter in Schedule I hereto.
23
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company.
Very truly yours,
Regency Centers Corporation
By:
Name:
Title:
Accepted as of the date hereof:
Morgan Stanley & Co. Incorporated
By: . . . . . . . . . . . . . . . . . .
On behalf of each of the Underwriters
24
SCHEDULE I
Principal
Underwriter Amount of
Designated
Securities
to be
Purchased
Morgan Stanley & Co. Incorporated. $
$
[Names of other Underwriters]
Total $
25
SCHEDULE II
Title of Designated Securities:
Number of Shares:
$
Price to Public:
$ per share
Purchase Price by Underwriters:
$ per share
Form of Designated Securities:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.
Specified funds for payment of purchase price:
Federal (same day) funds
Time of Delivery:
a.m. (New York City time) on , 20
Dividend Payment Dates:
[months and dates, commencing ....................., 20..]
Redemption Provisions:
Closing location for delivery of Designated Securities:
Additional Closing Conditions:
26
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
Other Terms:
27
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i)They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable rules and regulations adopted by the Commission;
(ii)In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the
Act or the Exchange Act, as applicable, and the related rules and
regulations; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have
been separately furnished to the representative or representatives of
the Underwriters (the "Representatives") such term to include an
Underwriter or Underwriters who act without any firm being designated
as its or their representatives;
(iii)They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's and the
Partnership's quarterly reports on Form 10-Q incorporated by reference
into the Prospectus as indicated in their reports thereon copies of
which have been separately furnished to the Representatives; and on the
basis of specified procedures including inquiries of officials of the
Company who have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated financial
statements referred to in paragraph (vi)(A)(i) below comply as to form
in all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related rules and regulations,
nothing came to their attention that caused them to believe that the
unaudited condensed consolidated financial statements do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related rules and
regulations adopted by the Commission;
(iv)The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for five
such fiscal years included or incorporated by reference in the
Company's and the Partnership's Annual Reports on Form 10-K for such
fiscal years;
28
(v)They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302,
402 and 503(d), respectively, of Regulation S-K;
(vi)On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A)(i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or
included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Exchange Act and the published rules and regulations adopted
by the Commission, or (ii) any material modifications should
be made to the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus or
included in the Company's and the Partnership's Quarterly
Reports on Form 10-Q incorporated by reference in the
Prospectus for them to be in conformity with generally
accepted accounting principles;
(B)any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and
any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial
statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent
fiscal year;
(C)the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited
condensed financial statements referred to in clause (A) and
any unaudited income statement data and balance sheet items
included in the Prospectus and referred to in clause (B) were
not determined on a basis substantially consistent with the
basis for the audited financial statements included or
incorporated by reference in the Company's and the
Partnership's Annual Reports on Form 10-K for the most recent
fiscal year;
29
(D)any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
rules and regulations adopted by the Commission thereunder or
the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of those statements;
(E)as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated
by reference in the Prospectus) or any increase in the
consolidated mortgage loans payable or long-term debt of the
Company and its subsidiaries or the Partnership and its
subsidiaries, or any decreases in consolidated net current
assets or stockholders' equity or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with amounts
shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
and
(F)for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in clause (E)
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii)In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records
of the Company and its subsidiaries and the Partnership and its
subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries or the
Partnership and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the
30
Underwriting Agreement as of the date of the letter delivered on the date of the
Pricing Agreement for purposes of such letter and to the Prospectus as amended
or supplemented (including the documents incorporated by reference therein) in
relation to the applicable Designated Securities for purposes of the letter
delivered at the Time of Delivery for such Designated Securities.
31
EXHIBIT A TO UNDERWRITING AGREEMENT
Subsidiaries of Regency Centers Corporation and Equity Ownership Thereof
ENTITY JURISDICTION OWNER(S)
- ---------------------------------------------------------------------------------------------------------------------
Regency Centers, L.P. Delaware Regency Centers Corporation
Regency Centers Texas, LLC
Outside Investors
Regency Remediation, LLC Florida Regency Centers, L.P.
Equiport Associates, L.P. Georgia Regency Centers, L.P.
Outside Investors
Queensboro Associates, L.P. Georgia Regency Centers, L.P.
Real Sub, LLC (Outside Investor)
Northlake Village Shopping Center, LLC Florida Regency Centers, L.P.
Regency Southgate Village Shopping Alabama Regency Centers, L.P.
Center, LLC
RRG Holdings, LLC Florida Regency Centers, L.P.
Regency Realty Group, Inc. Florida Regency Centers, L.P.
RRG Holdings, LLC
ENTITY JURISDICTION OWNER(S)
- ---------------------------------------------------------------------------------------------------------------------
Regency Realty Colorado, Inc. Florida Regency Realty Group, Inc.
Snowden Leftwich
(See Note 2)
Chestnut Powder, LLC Georgia Regency Realty Group, Inc.
Marietta Outparcel, Inc. Georgia Regency Realty Group, Inc.
Thompson-Nolensville, LLC Florida Regency Realty Group, Inc.
Dixon, LLC Florida Regency Realty Group, Inc.
Rhett-Remount, LLC Florida Regency Realty Group, Inc.
Edmunson Orange Corp. Tennessee Regency Realty Group, Inc.
Tulip Grove, LLC Florida Regency Realty Group, Inc.
Hermitage Development, LLC Florida Regency Realty Group, Inc.
West End Property, LLC Florida Regency Realty Group, Inc.
Tinwood, LLC Florida Regency Realty Group, Inc.
Mountain Meadow, LLC Delaware Regency Realty Group, Inc.
Middle Tennessee Development, LLC Delaware Regency Realty Group, Inc.
Hermitage Development II, LLC Florida Regency Realty Group, Inc.
Bordeaux Development, LLC Florida Regency Realty Group, Inc.
Atlantic-Pennsylvania, LLC Florida Regency Realty Group, Inc.
2
ENTITY JURISDICTION OWNER(S)
- ---------------------------------------------------------------------------------------------------------------------
8th and 20th Chelsea, LLC Delaware Regency Realty Group, Inc.
Slausen Central, LLC Delaware Regency Realty Group, Inc.
Jog Road, LLC Florida Regency Realty Group, Inc.
Outside Investor
Southland Centers II, LLC Florida Jog Road, LLC
Broadman, LLC Delaware Regency Realty Group, Inc.
GME/RRG I, LLC Delaware Regency Realty Group, Inc.
Outside Investor
K&G/Regency II, LLC Delaware Regency Realty Group, Inc.
GME Anaheim, LLC (Outside Investor)
RRG-RMC-Tracy, LLC Delaware Regency Centers, L.P.
RMC Tracy, LLC (Outside Investor)
Regency Ocean East Partnership Limited Florida Regency Centers, L.P.
WLD Realty, Ltd. (Outside Investor)
Regency Woodlands/Kuykendahl, Ltd. Texas Regency Centers, L.P.
HEB Grocery Company, LP (Outside Investor)
OTR/Regency Colorado Realty Holdings, L.P. Ohio Regency Centers, L.P.
OTR (nominee for State Teachers
Retirement Board of Ohio)
3
ENTITY JURISDICTION OWNER(S)
- ---------------------------------------------------------------------------------------------------------------------
OTR/Regency Texas Realty Holdings, L.P. Ohio Regency Centers, L.P.
OTR (nominee for State Teachers
Retirement Board of Ohio)
R&KS Dell Range, LLC Wyoming Regency Centers, L.P.
T&M Shiloh Development Company Texas Regency Centers, L.P.
Topvalco
T&R New Albany Development Company LLC Ohio Regency Centers, L.P.
Luther Properties, Inc. Tennessee Regency Realty Group, Inc.
Regency Realty Group, N.E. Florida Regency Realty Group, Inc.
Vista Village, LLC Delaware Regency Realty Group, Inc.
Civic Partners Vista Village I, LLC
Valleydale, LLC Florida Regency Realty Group, Inc.
East Towne Center, LLC Delaware Regency Realty Group, Inc.
Regency/DS Ballwin, LLC Missouri Regency Realty Group, Inc.
DS Ballwin Partners, Inc. (Outside
Investor)
Regency Centers Advisors, LLC Florida Regency Centers, L.P.
RC Georgia Holdings, LLC Georgia Regency Centers, L.P.
4
ENTITY JURISDICTION OWNER(S)
- ---------------------------------------------------------------------------------------------------------------------
Regency Centers Georgia, L.P. Georgia RC Georgia Holdings LLC
Regency Centers, L.P.
Regency Centers Texas, LLC Florida Regency Centers Corporation
Columbia Regency Retail Partners, LLC Delaware Regency Centers, L.P.
Oregon Public Employees
Retirement Fund
Columbia Regency Texas 1, L.P. Delaware Regency Texas 1, LLC
Columbia Regency Retail
Partners, LLC
Regency Texas 1, LLC Delaware Columbia Regency Retail
Partners, LLC
Macquarie CountryWide-Regency, LLC Delaware Regency Center, L.P.
Macquarie CountryWide (US)Corporation
MCW-RC FL-King's, LLC (fka MCW-RC Florida, LLC) Delaware Macquarie CountryWide-Regency, LLC
MCW-RC FL-Anastasia, LLC Delaware Macquarie CountryWide-Regency, LLC
MCW-RC FL-Ocala, LLC Delaware Macquarie CountryWide-Regency, LLC
MCW-RC FL-Shoppes at Pebblebrooke, LLC Delaware Macquarie CountryWide-Regency, LLC
5
ENTITY JURISDICTION OWNER(S)
- ---------------------------------------------------------------------------------------------------------------------
MCW-RC FL-Shoppes at 104, LLC Delaware Macquarie CountryWide-Regency, LLC
MCW-RC NC-Oakley, LLC (fka MCW-RC North Carolina, Delaware Macquarie CountryWide-Regency, LLC
LLC)
MCW-RC SC-Merchant's, LLC (fka MCW-RC South Delaware Macquarie CountryWide-Regency, LLC
Carolina, LLC)
MCW-RC VA-Brookville, LLC (fka MCW-RC Virginia, LLC) Delaware Macquarie CountryWide-Regency, LLC
MCW-RC Texas GP, LLC Delaware Macquarie CountryWide-Regency, LLC
MCW-RC TX-Hebron, LLC (fka MCW-RC Texas, L.P.) Delaware Macquarie CountryWide-Regency, LLC
MCW-RC Texas GP, LLC
MCW-RC GA-Lovejoy, LLC (fka MCW-RC Georgia, LLC) Delaware Macquarie CountryWide-Regency, LLC
MCW-RC GA-Orchard, LLC Delaware Macquarie CountryWide-Regency, LLC
MCW-RC CO-Cheyenne, LLC Delaware Macquarie CountryWide-Regency, LLC
MCW-RC CA-Campus, LLC (fka MCW-RC California), LLC Delaware Macquarie CountryWide-Regency, LLC
MCW-RC CA-Garden Village, LLC Delaware Macquarie CountryWide-Regency, LLC
6
ENTITY JURISDICTION OWNER(S)
- ---------------------------------------------------------------------------------------------------------------------
MCW-RC WA-James, LLC (fka MCW-RC Washington, LLC) Delaware Macquarie CountryWide-Regency, LLC
MCW-RC AL-Trace Crossing, LLC Delaware Macquarie CountryWide-Regency, LLC
MCW-RC KY-Silverlake, LLC (fka MCW-RC Kentucky, LLC) Delaware Macquarie CountryWide-Regency, LLC
Columbia Retail Washington 1, LLC Delaware Columbia Regency Retail Partners LLC
Columbia Cascade Plaza, LLC Delaware Columbia Regency Retail Washington 1, LLC
Columbia Regency Retail Partners, LLC
Columbia Retail Texas 2, LLC Delaware Columbia Regency Retail Partners, LLC
Columbia Retail MacArthur Phase II, LP Delaware Columbia Retail Texas 2, LLC
Columbia Regency Retail Partners, LLC
7
NATURE OF % OF
ENTITY INTEREST OWNERSHIP
- -----------------------------------------------------------------------------------------------------------
Regency Centers, L.P. General Partnership 1.0%
Limited Partnership 96.3%
Limited Partnership 2.7%
Regency Remediation, LLC Member 100%
Equiport Associates, L.P. General Partnership 55%
Limited Partnership 45%
Queensboro Associates, L.P. General Partnership 50%
Limited Partnership 50%
Northlake Village Shopping Center, LLC Member 100%
Regency Southgate Village Shopping Member 100%
Center, LLC
RRG Holdings, LLC Member 100%
Regency Realty Group, Inc. Preferred Stock 100%
(See Note 1)
Common Stock 7%
(See Note 1)
Common Stock 93%
(See Note 1)
NATURE OF % OF
ENTITY INTEREST OWNERSHIP
- -----------------------------------------------------------------------------------------------------------
Regency Realty Colorado, Inc. Common Stock 80%
Common Stock 20%
Chestnut Powder, LLC Member 100%
Marietta Outparcel, Inc. Common Stock 100%
Thompson-Nolensville, LLC Member 100%
Dixon, LLC Member 100%
Rhett-Remount, LLC Member 100%
Edmunson Orange Corp. Common Stock 100%
Tulip Grove, LLC Member 100%
Hermitage Development, LLC Member 100%
West End Property, LLC Member 100%
Tinwood, LLC Member 100%
Mountain Meadow, LLC Member 100%
Middle Tennessee Development, LLC Member 100%
Hermitage Development II, LLC Member 100%
Bordeaux Development, LLC Member 100%
Atlantic-Pennsylvania, LLC Member 100%
2
NATURE OF % OF
ENTITY INTEREST OWNERSHIP
- -----------------------------------------------------------------------------------------------------------
8th and 20th Chelsea, LLC Member 100%
Slausen Central, LLC Member Note 3
Jog Road, LLC Member 50%
Member 50%
Southland Centers II, LLC Member 100%
Broadman, LLC Member 100%
GME/RRG I, LLC Member 50%
Member 50%
K&G/Regency II, LLC Member 50%
Member 50%
RRG-RMC-Tracy, LLC Member 50%
Member 50%
Regency Ocean East Partnership Limited General Partnership 25%
Limited Partnership 75%
Regency Woodlands/Kuykendahl, Ltd. General Partnership 50%
Limited Partnership 50%
OTR/Regency Colorado Realty Holdings, L.P. General Partnership 30%
Limited Partnership 70%
3
NATURE OF % OF
ENTITY INTEREST OWNERSHIP
- -----------------------------------------------------------------------------------------------------------
OTR/Regency Texas Realty Holdings, L.P. General Partnership 30%
Limited Partnership 70%
R&KS Dell Range, LLC Member 100%
T&M Shiloh Development Company General Partnership 50%
General Partnership 50%
T&R New Albany Development Company LLC Member 50%
Member 50%
Luther Properties, Inc. Common Stock 100%
Regency Realty Group, N.E. Common Stock 100%
Vista Village, LLC Member 50%
Member 50%
Valleydale, LLC Member
East Towne Center, LLC Member
Regency/DS Ballwin, LLC Member 50%
Member 50%
Regency Centers Advisors, LLC Member 100%
RC Georgia Holdings, LLC Member 100%
4
NATURE OF % OF
ENTITY INTEREST OWNERSHIP
- -----------------------------------------------------------------------------------------------------------
Regency Centers Georgia, L.P. General Partnership 1%
Limited Partnership 99%
Regency Centers Texas, LLC Member 100%
Columbia Regency Retail Partners, LLC Member 20%
Member 80%
Columbia Regency Texas 1, L.P. General Partnership 1%
Limited Partnership 99%
Regency Texas 1, LLC
Member 100%
Macquarie CountryWide-Regency, LLC Member 25%
Member 75%
MCW-RC FL-King's, LLC (fka MCW-RC Florida, LLC) Member 100%
MCW-RC FL-Anastasia, LLC Member 100%
MCW-RC FL-Ocala, LLC Member 100%
MCW-RC FL-Shoppes at Pebblebrooke, LLC Member 100%
5
NATURE OF % OF
ENTITY INTEREST OWNERSHIP
- -----------------------------------------------------------------------------------------------------------
MCW-RC FL-Shoppes at 104, LLC Member 100%
MCW-RC NC-Oakley, LLC (fka MCW-RC North Carolina, Member 100%
LLC)
MCW-RC SC-Merchant's, LLC (fka MCW-RC South Member 100%
Carolina, LLC)
MCW-RC VA-Brookville, LLC (fka MCW-RC Virginia, LLC) Member 100%
MCW-RC Texas GP, LLC Member 100%
MCW-RC TX-Hebron, LLC (fka MCW-RC Texas, L.P.) Limited Partnership 99.99%
General Partnership 0.01%
MCW-RC GA-Lovejoy, LLC (fka MCW-RC Georgia, LLC) Member 100%
MCW-RC GA-Orchard, LLC Member 100%
MCW-RC CO-Cheyenne, LLC Member 100%
MCW-RC CA-Campus, LLC (fka MCW-RC California), LLC Member 100%
MCW-RC CA-Garden Village, LLC Member 100%
6
NATURE OF % OF
ENTITY INTEREST OWNERSHIP
- -----------------------------------------------------------------------------------------------------------
MCW-RC WA-James, LLC (fka MCW-RC Washington, LLC) Member 100%
MCW-RC AL-Trace Crossing, LLC Member 100%
MCW-RC KY-Silverlake, LLC (fka MCW-RC Kentucky, LLC) Member 100%
Columbia Retail Washington 1, LLC Member 100%
Columbia Cascade Plaza, LLC Member 1%
Member 99%
Columbia Retail Texas 2, LLC Member 100%
Columbia Retail MacArthur Phase II, LP Member 1%
Member 99%
Note 1: These shares are pledged to the lenders under Regency Centers, L.P.'s
line of credit.
Note 2: Snowden Leftwich is a Regency employee who is the licensed broker for
this entity. Colorado requires that the broker must own a minimum of 20% of the
equity in a licensed entity.
Note 3: Regency is negotiating with an outside investor to participate in
Slausen Central, LLC. At this time the extent of the participation has not been
determined.
7
Pricing Agreement
-----------------
March 27, 2003
Morgan Stanley & Co. Incorporated
As Representative of the several
Underwriters named in Schedule I hereto
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Regency Centers Corporation, a Florida corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated March 27, 2003 (the "Underwriting Agreement"),
between the Corporation and Morgan Stanley & Co. Incorporated to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") the
Securities specified in Schedule II hereto (the "Designated Securities"). Each
of the provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Agreement to
the same extent as if such provisions had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company.
Very truly yours,
Regency Centers Corporation
By:
Name:
Title:
Accepted as of the date hereof:
Morgan Stanley & Co. Incorporated
By: . . . . . . . . . . . . . . . .
On behalf of each of the Underwriters
SCHEDULE I
Principal
Underwriter Amount of
----------- Designated
Securities
to be
Purchased
---------
Morgan Stanley & Co. Incorporated. $13,281,250.00
Prudential Securities Incorporated $13,281,250.00
Salomon Smith Barney Inc. $13,281,250.00
Wachovia Securities, Inc. $13,281,250.00
Goldman, Sachs & Co. $ 7,500,000.00
J.P. Morgan Securities Inc. $ 7,500,000.00
A.G. Edwards & Sons, Inc. $ 250,000.00
Banc of America Securities LLC. $ 250,000.00
BB&T Capital Markets, Inc. $ 250,000.00
Bear, Stearns & Co. Inc. $ 250,000.00
CIBC World Markets Corp. $ 250,000.00
Commerzbank Capital Markets Corp. $ 250,000.00
Credit Suisse First Boston LLC. $ 250,000.00
Dain Rauscher Incorporated. $ 250,000.00
Deutsche Bank Securities Inc. $ 250,000.00
Fahnestock & Co. Inc. $ 250,000.00
H&R Block Financial Advisors, Inc. $ 250,000.00
J.J.B. Hilliard, W.L. Lyons, Inc. $ 250,000.00
Legg Mason Wood Walker, Incorporated. $ 250,000.00
Quick & Reilly, Inc. $ 250,000.00
Charles Schwab & Co., Inc. $ 250,000.00
TD Waterhouse Investor Services, Inc. $ 250,000.00
U.S. Bancorp Piper Jaffray Inc. $ 250,000.00
Wells Fargo Van Kasper, LLC. $ 250,000.00
Advest Inc. $ 125,000.00
Robert W. Baird & Co. Incorporated. $ 125,000.00
Banc One Capital Markets, Inc. $ 125,000.00
William Blair & Co. $ 125,000.00
Davenport & Company LLC. $ 125,000.00
D.A. Davidson & Co. $ 125,000.00
Fifth Third Securities, Inc. $ 125,000.00
Janney Montgomery Scott LLC. $ 125,000.00
C.L. King & Associates, Inc. $ 125,000.00
McDonald Investments Inc. $ 125,000.00
McGinn, Smith & Co., Inc. $ 125,000.00
Mesirow Financial, Inc. $ 125,000.00
Morgan Keegan & Company, Inc. $ 125,000.00
Parker/Hunter Incorporated. $ 125,000.00
Pershing. $ 125,000.00
Ryan, Beck & Co. LLC. $ 125,000.00
Southwest Securities, Inc. $ 125,000.00
Stifel, Nicolaus & Company Incorporated. $ 125,000.00
SunTrust Capital Markets, Inc. $ 125,000.00
Total $75,000,000.00
SCHEDULE II
Title of Designated Securities:
7.45% Depositary Shares representing a one-tenth (1/10th) fractional
interest of a share of 7.45% Series 3 Cumulative Redeemable Preferred
Stock, $0.01 par value., deposited with Wachovia Bank, National
Association. The Designated Securities include the Depositary Shares
and the deposited shares of 7.45% Series 3 Cumulative Redeemable
Preferred Stock.
Number of Shares:
3,000,000
Price to Public:
$25.00 per depositary share
Purchase Price by Underwriters:
$24.2125 per depositary share
Form of Designated Securities:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.
Specified funds for payment of purchase price:
Federal (same day) funds
Time of Delivery:
10 a.m. (New York City time) on April 3, 2003
Dividend Payment Dates:
March 31, June 30, September 30 and December 31, commencing June 30,
2003
Redemption Provisions:
The Designated Securities may be redeemed, in whole or in part, at the
option of the Company, in the amount of $25.00 per depositary share
plus accumulated and unpaid dividends on or after April 3, 2008.
Closing location for delivery of Designated Securities:
Sullivan & Cromwell LLP, 125 Broad Street, New York, New York
Additional Closing Conditions:
None
Names and addresses of Representatives:
Designated Representative: Morgan Stanley & Co. Incorporated
Address for Notices, etc.: 1585 Broadway, New York, New York 10036
Other Terms:
None
REGENCY CENTERS CORPORATION,
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS DEPOSITARY,
AND
THE HOLDERS FROM TIME TO TIME OF
THE RECEIPTS EVIDENCING THE DEPOSITARY SHARES
DESCRIBED HEREIN.
Deposit Agreement
Dated as of April 3, 2003
TABLE OF CONTENTS
Page
PARTIES ......................................................................1
RECITALS......................................................................1
ARTICLE I
DEFINITIONS
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF STOCK; EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.01. Book - Entry Form; Form and Transfer of Receipts..........2
Section 2.02. Deposit of Stock; Execution and Delivery of Receipts
in Respect Thereof........................................4
Section 2.03. Redemption of Stock.......................................5
Section 2.04. Registration of Transfer of Receipts......................6
Section 2.05. Split-Ups and Combinations of Receipts; Surrender
of Receipts...............................................6
Section 2.06. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts........................7
Section 2.07. Lost Receipts, Etc........................................7
Section 2.08. Cancellation and Destruction of Surrendered Receipts......7
Section 2.09. Stock Purchase Plans......................................7
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.01. Filing Proofs, Certificates and Other Information.........8
Section 3.02. Payment of Taxes or Other Governmental Charges............8
Section 3.03. Warranty as to Stock......................................8
Section 3.04. Warranty as to Receipts...................................8
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
Section 4.01. Cash Distributions........................................8
Section 4.02. Distributions Other Than Cash.............................9
Section 4.03. Subscription Rights, Preferences or Privileges............9
Section 4.04. Notice of Dividends, Etc.; Fixing of Record Date for
Holders of Receipts......................................10
Section 4.05. Voting Rights............................................10
-i-
Section 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, Etc................11
Section 4.07. Inspection of Reports....................................12
Section 4.08. List of Receipt Holders..................................12
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY
Section 5.01. Maintenance of Offices, Agencies and Transfer Books by
the Depositary; Registrar................................12
Section 5.02. Prevention or Delay by the Depositary, the
Depositary's Agents, the Registrar or the Company........13
Section 5.03. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company............................13
Section 5.04. Resignation and Removal of the Depositary; Appointment
of Successor Depositary..................................13
Section 5.05. Corporate Notices and Reports............................14
Section 5.06. Indemnification by the Company...........................14
Section 5.07. Charges and Expenses.....................................15
ARTICLE VI
ARTICLE VI AMENDMENT AND TERMINATION
Section 6.01. Amendment................................................15
Section 6.02. Termination..............................................15
ARTICLE VII
MISCELLANEOUS
Section 7.01. Counterparts.............................................16
Section 7.02. Exclusive Benefit of Parties.............................16
Section 7.03. Invalidity of Provisions.................................16
Section 7.04. Notices..................................................16
Section 7.05. Depositary's Agents......................................17
Section 7.06. Holders of Receipts are Parties..........................17
Section 7.07. Governing Law............................................17
Section 7.08. Inspection of Deposit Agreement..........................18
Section 7.09. Headings.................................................18
TESTIMONIUM..................................................................19
SIGNATURES...................................................................19
EXHIBIT A: Depositary Receipt.................................................
-ii-
DEPOSIT AGREEMENT
dated as of April 3, 2003
among
REGENCY CENTERS CORPORATION,
a Florida corporation,
WACHOVIA BANK, NATIONAL ASSOCIATION,
a national banking association, as Depositary,
AND THE HOLDERS FROM TIME TO TIME OF
THE RECEIPTS EVIDENCING THE DEPOSITARY SHARES
DESCRIBED HEREIN
WHEREAS, it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of shares of 7.45% Series 3 Preferred
Stock, liquidation preference $250.00 per share, of the Company with the
Depositary for the purposes set forth in this Deposit Agreement and for the
issuance hereunder of Receipts by the Depositary evidencing Depositary Shares in
respect of the Stock so deposited (capitalized terms used herein shall have the
meaning assigned to them in Article I below).
NOW, THEREFORE, in consideration of the promises contained
herein and such other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless
otherwise indicated, apply to the respective terms used in this Deposit
Agreement and the Receipts:
"Amendment" shall mean the articles of amendment to the
Articles of Incorporation, as amended, of the Company filed with the Secretary
of State of the State of Florida establishing the Stock as a series of preferred
stock of the Company.
"Company" shall mean Regency Centers Corporation, a Florida
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time in accordance with the terms hereof.
"Depositary" shall mean Wachovia Bank, National Association, a
national banking association, and any successor Depositary hereunder.
"Depositary Shares" shall mean the Depositary Shares, each
representing a one-tenth (1/10th) interest in one share of Stock, which shall be
evidenced by Receipts.
-1-
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 7.05 of this Deposit Agreement.
"Depositary's Office" shall mean the principal office of the
Depositary at which at any particular time its depositary business shall be
administered.
"DTC" shall have the meaning assigned to it in Section 2.01 of
this Deposit Agreement.
"DTC Receipt" shall have the meaning assigned to it in Section
2.01 of this Deposit Agreement.
"NASD" shall have the meaning assigned to it in Section 2.06
of this Deposit Agreement.
"Receipt" shall mean one of the depositary receipts, whether
in definitive or temporary form, issued hereunder by the Depositary, each
representing any number of whole Depositary Shares. If the context so requires,
the term "Receipt" shall be deemed to include the DTC Receipt (as defined in
Section 2.01 hereof).
"record holder" with respect to a Receipt shall mean the
individual, entity or person in whose name a Receipt is registered on the books
of the Depositary or any register of any Registrar maintained for such purpose
at a given time.
"Redemption Date" shall have the meaning assigned to it in
Section 2.03 of this Deposit Agreement.
"Registrar" shall mean any bank or trust company that shall be
appointed by the Depositary to register ownership and transfers of Receipts as
herein provided and which may include the Depositary.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean the Company's 7.45% Series 3 Cumulative
Redeemable Preferred Stock, $.01 par value and a liquidation preference of
$250.00 per share.
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF STOCK; EXECUTION AND
DELIVERY,TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.01. Book - Entry Form; Form and Transfer of Receipts. All the
Depositary Shares shall initially be represented by one or more global receipts
(collectively, the "DTC Receipt") registered in the name of The Depository Trust
Company ("DTC") or its nominee. The Depositary, or such other entity as is
agreed to by DTC, may hold the DTC Receipt as custodian for DTC. The DTC Receipt
shall bear such legend or legends as may be required by DTC in order for it to
accept the Depositary Shares for its book-entry settlement system. So long as
the Receipts are eligible for book-entry settlement with DTC, no person
-2-
acquiring Depositary Shares traded on any securities exchange with book-entry
settlement through DTC shall receive or be entitled to receive physical delivery
of Receipts evidencing such Depositary Shares. Ownership of beneficial interests
in the DTC Receipt shall be shown on, and the transfer of such ownership shall
be effected through, records maintained by (i) DTC or its nominee for such DTC
Receipt, or (ii) institutions that have accounts with DTC.
If DTC subsequently ceases to make its book-entry settlement
system available for the Depositary Shares, the Company may instruct the
Depositary as to other arrangements for book-entry settlement. In the event that
the Depositary Shares are not eligible for, or it is no longer necessary to have
the Depositary Shares available in book-entry form, the Company shall provide
written instructions to DTC to deliver to the Depositary for cancellation, and
the Company shall instruct the Depositary to cancel, the DTC Receipt surrendered
to it and deliver to the beneficial owners of the Depositary Shares previously
evidenced by the DTC Receipt definitive Receipts in physical form evidencing
their beneficial interest in Depositary Shares. The beneficial owners of
Depositary Shares shall not be entitled to receive Receipts in physical,
certificated form except as herein provided.
Definitive Receipts, if applicable, shall be engraved or
printed or lithographed on steel-engraved borders and shall be substantially in
the form annexed hereto as Exhibit A, with appropriate insertions, modifications
and omissions, as hereinafter provided. Pending the preparation of definitive
Receipts, if applicable, the Depositary, upon the written order of the Company
delivered in compliance with Section 2.02, shall execute and deliver temporary
Receipts which shall be printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the persons executing such Receipts may determine, as
evidenced by their execution of such Receipts. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for definitive
Receipts upon surrender of the temporary Receipts at the Depositary's Office,
without charge to the holders. Upon surrender for cancellation of any one or
more temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as represented by the surrendered temporary Receipt or Receipts registered in
the name (and only the name) of the holder of the temporary Receipt. Such
exchange shall be made at the Company's expense and without any charge therefor
to the holder. Until so exchanged, the temporary Receipts shall in all respects
be entitled to the same benefits under this Deposit Agreement and with respect
to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized officer of the Depositary; provided that such
signature may be a facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such Receipts are countersigned by
manual signature of a duly authorized officer of the Registrar. No Receipt shall
be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless it shall have been (i) executed manually by a
duly authorized officer of the Depositary or (ii) executed by manual or
facsimile signature of a duly authorized officer of the Depositary and
countersigned manually by a duly authorized officer of a Registrar for the
Receipts (other than the Depositary, if any). The Depositary shall record on its
books each Receipt so signed and delivered as hereinafter provided. The manual
or facsimile signatures on the Receipts of individuals who were at any the time
of execution proper officers of the
-3-
Depositary or the Registrar, as the case may be, shall constitute adequate
signatures hereunder, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the delivery of such Receipts or did not
hold such offices on the date of delivery of such Receipts.
Receipts shall be in denominations of any number of whole
Depositary Shares.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the provisions
of this Deposit Agreement as may be required by the Depositary and approved by
the Company or required to comply with any applicable law or regulation or with
the rules and regulations of any securities exchange upon which shares of Stock,
the Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Subject to any limitations set forth in a Receipt or in this
Deposit Agreement, title to Depositary Shares evidenced by a Receipt which is
properly endorsed, or accompanied by a properly executed instrument of transfer,
shall be transferable by delivery of such Receipt with the same effect as if
such Receipt were a negotiable instrument; provided, however, that until
transfer of a Receipt shall be registered on the books of the Registrar, on
behalf of the Depositary, as provided in Section 2.04, the Depositary may,
notwithstanding any notice to the contrary, treat the record holder as the
absolute owner thereof for the purpose of determining the person entitled to
distributions of dividends or other distributions with respect to the Stock or
to any notice provided for in this Deposit Agreement and for all other purposes.
The Depositary shall not lend any shares of Stock deposited hereunder.
Section 2.02. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
the Company may from time to time deposit shares of Stock with the Depositary
under this Deposit Agreement by delivery to the Depositary of a certificate or
certificates representing the shares of Stock to be deposited. Such certificate
or certificates representing the shares of Stock shall be (i) properly endorsed
or, if required by the Depositary, accompanied by a duly executed instrument of
transfer or endorsement, in form satisfactory to the Depositary, together with
all such certifications as may be required by the Depositary in accordance with
the provisions of this Deposit Agreement, and (ii) accompanied by a written
order of the Company directing the Depositary to execute and deliver to the
person or persons named in such order a Receipt or Receipts evidencing in the
aggregate the number of Depositary Shares representing interests in such
deposited shares of Stock.
All shares of Stock deposited by the Company with the
Depositary shall be held by the Depositary at the Depositary's Office or at such
other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or
certificates representing shares of Stock deposited with the Depositary by the
Company in accordance with the provisions of this Section 2.02, together with
the other documents required as above specified, and upon recordation of the
shares of Stock so deposited on the books of the Company in the name of the
-4-
Depositary, the Depositary shall execute and deliver, to the person or persons
named in the written order delivered to the Depositary, a Receipt or Receipts,
evidencing in the aggregate the number of Depositary Shares representing
interests in the shares of Stock so deposited. Such Receipt or Receipts shall be
registered by the Depositary or the Registrar in such name or names as may be
requested by the person or persons named in the written order. The Depositary
shall execute and deliver such Receipts at the Depositary's Office or such other
offices, if any, as such person may designate. Delivery at other offices shall
be at the risk and expense of the person requesting such delivery.
The DTC Receipt shall provide that it shall evidence the
aggregate amount of Depositary Shares from time to time indicated in the records
of the Depositary and that the aggregate amount of Depositary Shares evidenced
thereby may from time to time be increased or decreased by making adjustments on
such records of the Depositary.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions in the form of shares of Stock, if any, there shall be deposited
with the Depositary hereunder not more than 300,000 shares of Stock.
Section 2.03. Redemption of Stock. Whenever the Company shall elect to
redeem shares of Stock in accordance with the provisions of the Amendment, it
shall (unless otherwise agreed in writing with the Depositary) mail notice to
the Depositary of such redemption, by first class mail, postage prepaid, not
less than 40 nor more than 70 days prior to the date fixed for the redemption of
the shares of Stock in accordance with the provisions of the Amendment. On the
date of such redemption, provided that the Company shall then have paid in full
to the Depositary the redemption price required pursuant to the Amendment and
sufficient to redeem the shares of Stock to be redeemed, the Depositary shall
redeem the Depositary Shares representing interests in such shares of Stock. The
Depositary shall mail notice of such redemption, and the simultaneous redemption
of the number of Depositary Shares representing interests in the shares of Stock
to be redeemed, by first-class mail, postage prepaid, not less than 30 and not
more than 60 days prior to the date fixed for redemption of such shares of Stock
and Depositary Shares (the "Redemption Date"), to the record holders of the
Receipts evidencing the Depositary Shares to be so redeemed on the record date
fixed pursuant to Section 4.04 hereof, at the addresses of such holders as they
appear on the records of the Depositary; provided, however, that neither failure
to mail any such notice to one or more such holders nor any defect in any notice
or in the mailing thereof to one or more such holders shall affect the validity
of the proceedings for redemption of any Depositary Shares as to other holders.
Each such notice of redemption shall state: (i) the Redemption Date; (ii) the
number of Depositary Shares to be redeemed and, if less than all the Depositary
Shares held by any such holder are to be redeemed, the number of such Depositary
Shares held by such holder to be so redeemed and the method by which the
Depositary Shares will be chosen for redemption; (iii) the redemption price
(including any authorized, declared, but unpaid dividends on the Redemption
Date); (iv) the place or places where Receipts evidencing Depositary Shares are
to be surrendered for payment of the redemption price; (v) that dividends in
respect of the shares of Stock to be redeemed, which are represented by the
Depositary Shares to be redeemed, will cease to accrue at the close of business
on such Redemption Date; and (vi) if the date from and after which the shares of
Stock and Depositary Shares shall no longer be deemed to be outstanding is a
date other than the Redemption Date, such other date. In case less than all the
outstanding Depositary Shares are to
-5-
be redeemed, the Depositary Shares to be so redeemed shall be selected by lot or
pro rata as may be determined by the Company.
Notice having been mailed by the Depositary as aforesaid, from
and after (a) the Redemption Date (unless the Company shall have failed to
redeem the shares of Stock to be redeemed by it as set forth in the Company's
notice provided for in the preceding paragraph), or (b) such earlier date (if
applicable) upon which the Company deposits the redemption price (including any
authorized, declared, but unpaid dividends on the Redemption Date) with the
paying agent for the holders of the shares of Stock (regardless of whether such
shares are actually surrendered for cancellation), all dividends in respect of
the shares of Stock so called for redemption shall cease to accrue, the
Depositary Shares being redeemed from such proceeds shall be deemed no longer to
be outstanding, all rights of the holders of Receipts evidencing such Depositary
Shares (except the right to receive the redemption price) shall, to the extent
of such Depositary Shares, cease and terminate and, upon surrender in accordance
with such notice of the Receipts evidencing any such Depositary Shares called
for redemption (properly endorsed or assigned for transfer, if the Depositary
shall so require), such Depositary Shares shall be redeemed by the Depositary at
a redemption price per Depositary Share equal to 1/10th of the redemption price
per share paid in respect of the shares of Stock plus authorized, declared, but
unpaid dividends on the Redemption Date.
If less than all the Depositary Shares evidenced by a Receipt
are called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with the payment of the
redemption price, a new Receipt evidencing such number of Depositary Shares as
were evidenced by such prior Receipt and not called for redemption; provided,
however, that such replacement Receipt shall be issued only in denominations of
whole Depositary Shares and cash will be payable in respect of fractional
interests.
Section 2.04. Registration of Transfer of Receipts. Subject to the
terms and conditions of this Deposit Agreement, the Registrar, on behalf of the
Depositary, shall register on its books transfers of Receipts from time to time
upon notice to the Registrar by the Depositary of the surrender of a Receipt for
transfer by the holder in person or by duly authorized attorney, which Receipt
in each case must be properly endorsed or accompanied by a properly executed
instrument of transfer. Upon surrender of a properly endorsed Receipt or Receipt
accompanied by an instrument of transfer, the Depositary shall execute a new
Receipt or Receipts evidencing the same aggregate number of Depositary Shares as
those evidenced by the Receipt or Receipts surrendered and deliver such new
Receipt or Receipts to or upon the order of the transferee named in the
endorsement or instrument of transfer.
Section 2.05. Split-Ups and Combinations of Receipts; Surrender of
Receipts. Upon surrender of a Receipt or Receipts at the Depositary's Office or
at such other offices as it may designate for the purpose of effecting a split-
up or combination of such Receipt or Receipts, the Depositary shall execute and
deliver a new Receipt or Receipts to the holder thereof or to such holder's
order in the denominations requested, evidencing the aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered. The
Depositary shall give prompt notice of such action and the certificate numbers
to the Registrar for the purpose of recording such split-up or consolidation.
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Section 2.06. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require (i) payment to it of a sum sufficient for the payment (or,
in the event that the Depositary or the Company shall have made such payment,
the reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, (ii) the production of evidence satisfactory
to it as to the identity and genuineness of any signature and/or (iii)
compliance with the rules and regulations of any governmental body, any stock
exchange or any applicable self regulatory body, including without limitation,
the New York Stock Exchange (the "NYSE") or such other regulations, if any, as
the Depositary or the Company may establish consistent with the provisions of
this Deposit Agreement.
The delivery of Receipts against the shares of Stock deposited
with the Depositary may be suspended, the registration of transfer of Receipts
may be refused and the registration of transfer, surrender or exchange of
outstanding Receipts may be suspended (i) during any period when the register of
stockholders of the Company is closed or (ii) if any such action is deemed
necessary by the Depositary, any of the Depositary's Agents or the Company at
any time or from time to time because of any requirement of law or of any
government, governmental body or commission, stock exchange or the NYSE or under
any provision of this Deposit Agreement.
Section 2.07. Lost Receipts, Etc. If any mutilated Receipt is
surrendered to the Depositary, the Depositary shall execute and deliver in
exchange therefor a new Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt. In case any Receipt shall be destroyed,
lost or stolen, then, in the absence of notice to the Depositary that such
Receipt has been acquired by a bona fide purchaser, the Depositary shall execute
and deliver a Receipt to the holder thereof of like form and tenor in exchange
and substitution for such destroyed, lost or stolen Receipt, upon (i) the filing
by the holder thereof with the Depositary of evidence satisfactory to the
Depositary and the Company of such destruction or loss or theft of such Receipt,
of the authenticity thereof and of such holder's ownership thereof and (ii) the
holder's furnishing the Depositary with indemnification satisfactory to such
Depositary and the Company.
Section 2.08. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
Any Receipt evidenced in book-entry form shall be deemed canceled in proportion
to the amount of Depositary Shares evidenced by the DTC Receipt to be reduced.
Section 2.09. Stock Purchase Plans. The Depositary shall take such
action as shall be necessary or appropriate to permit the record holders of
Receipts to participate in any dividend reinvestment or other stock purchase
plan sponsored by the Company that permits the participation by such holders on
such terms and conditions as the Company may determine.
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ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.01. Filing Proofs, Certificates and Other Information. Any
holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to obtain such guaranties of
signature, to execute such certificates and to make such customary
representations and warranties consistent with the terms of the Stock as the
Depositary or the Company may deem necessary or proper. The Depositary or the
Company may withhold the delivery, or delay the registration of transfer,
redemption or exchange, of any Receipt or the distribution of any dividend or
other distribution or the sale of any rights or of the proceeds thereof until
such proof or other information is filed or such certificates are executed or
such representations and warranties are made.
Section 3.02. Payment of Taxes or Other Governmental Charges. Holders
of Receipts shall be obligated to make payments to the Depositary of certain
charges and expenses as provided in Section 5.07, or provide evidence
satisfactory to the Depositary that such charges and expenses have been paid.
Registration of transfer of any Receipt and delivery of all money or other
property, if any, represented by the Depositary Shares evidenced by such Receipt
may be refused until any such payment due is made, and any dividends, interest
payments or other distributions may be withheld or all or any part of the shares
of Stock or other property represented by the Depositary Shares evidenced by
such Receipt and not theretofore sold may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder prior to
such sale), and such dividends, interest payments or other distributions or the
proceeds of any such sale may be applied to any payment of such charges or
expenses, the holder of such Receipt remaining liable for any deficiency.
Section 3.03. Warranty as to Stock. The Company hereby represents and
warrants to the Depositary that the Stock, when issued, will be validly issued,
fully paid and nonassessable. Such representation and warranty shall survive the
deposit of shares of Stock and the issuance of Receipts.
Section 3.04. Warranty as to Receipts. The Depositary hereby represents
and warrants that the Receipts, when issued, will be legal, valid and binding
obligations of the Depositary, enforceable against the Depositary in accordance
with their terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium and other laws affecting creditors' rights
generally and by general equity principles. Such representation and warranty
shall survive the deposit of shares of Stock and the issuance of the Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
Section 4.01. Cash Distributions. Whenever the Depositary shall receive
any cash dividend or other cash distribution with respect to the Stock, the
Depositary shall, subject to Section 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 the pro rata portion,
as nearly as practicable, of such dividend or distribution applicable to
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the number of Depositary Shares evidenced by the Receipts held by such holders;
provided, however, that in case the Company or the Depositary shall be required
to withhold and shall withhold any monies from any cash dividend or other cash
distribution in respect of the Stock on account of taxes, the distribution in
respect of Depositary Shares shall be reduced accordingly. The Depositary shall
distribute or make available for distribution, as the case may be, only such
amount, however, as can be distributed without attributing to any holder of a
Receipt a fraction of one cent, and any balance not so distributable shall be
held by the Depositary (without liability for interest thereon) and shall be
added to and be treated as part of the next succeeding distribution to record
holders of Receipts.
Section 4.02. Distributions Other Than Cash. Whenever the Depositary
shall receive any property (including securities) for distribution in a form
other than cash with respect to the Stock, the Depositary shall, subject to
Section 3.02, distribute to record holders of Receipts on the record date fixed
pursuant to Section 4.04 the pro rata portion, as nearly as practicable, of such
property (including securities) received by it applicable to the number of
Depositary Shares evidenced by the Receipts held by such holders, in any manner
that the Depositary may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary such distribution cannot be
made proportionately among such record holders, or if for any other reason
(including any requirement that the Company or the Depositary withhold an amount
on account of taxes) the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Depositary may, with the approval of
the Company, adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the sale of the property thus
received, or any part thereof. The net proceeds of any such sale shall, subject
to Section 3.02, be distributed or made available for distribution, as the case
may be, by the Depositary to record holders of Receipts in accordance with the
provisions of Section 4.01 for a distribution received in cash. The Depositary
shall have the right, prior to making any distribution of such securities, to
require the Company to provide an opinion of counsel stating that such
securities have been registered under the Securities Act or do not need to be so
registered.
Section 4.03. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names the shares of Stock are recorded on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts, pro rata in proportion to the number of the
shares of Stock represented by each such Receipt, in such manner as the
Depositary may determine, either by the issue to such record holders of warrants
representing such rights, preferences or privileges or by such other method as
may be approved by the Depositary in its discretion with the approval of the
Company; provided, however, that (i) if at the time of issue or offer of any
such rights, preferences or privileges the Depositary determines that it is not
lawful or (after consultation with the Company) not feasible to make such
rights, preferences or privileges available to holders of Receipts by the issue
of warrants or otherwise, or (ii) if instructed by holders of Receipts (and to
the extent so instructed by such holders) who do not desire to exercise such
rights, preferences or privileges, then the Depositary, in its discretion (with
the approval of the Company, in any case where the Depositary has determined
that it is not feasible to make such rights, preferences or privileges
available), may, if applicable laws or the terms of such rights,
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preferences or privileges permit such transfer, sell such rights, preferences or
privileges at public or private sale, at such place or places and upon such
terms as it may deem proper. The net proceeds of any such sales shall be
distributed by the Depositary to the record holders of Receipts entitled thereto
as provided by Section 4.01 in the case of a distribution received in cash. The
Depositary shall have the right, prior to making any distribution of such
rights, preferences or privileges, to require the Company to provide an opinion
of counsel stating that such rights, preferences or privileges have been
registered under the Securities Act or do not need to be so registered.
If registration under the Securities Act of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that it
will file promptly a registration statement pursuant to the Securities Act with
respect to such rights, preferences or privileges and securities and use its
reasonable best efforts and take all steps available to it to cause such
registration statement to become effective sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges. In no event shall the
Depositary make available to the holders of Receipts any right, preference or
privilege to subscribe for or to purchase any security unless and until such
registration statement shall have become effective, or unless the offering and
sale of such securities to holders are exempt from registration under the
Securities Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company agrees with the Depositary that the Company will use
its best efforts to take such action or obtain such authorization, consent or
permit sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
Section 4.04. Notice of Dividends, Etc.; Fixing of Record Date for
Holders of Receipts. (i) Whenever any cash dividend or other cash distribution
shall become payable or any distribution of property (including securities)
other than cash shall be made, (ii) if rights, preferences or privileges shall
at any time be offered with respect to Stock, (iii) whenever the Depositary
shall receive notice of (a) any meeting at which holders of shares of Stock are
entitled to vote or of which holders of shares of Stock are entitled to notice,
or (b) any election on the part of the Company to redeem any shares of Stock, or
(iv) whenever the Depositary and the Company shall decide it is appropriate, the
Depositary shall, in each such instance, fix a record date (which shall be the
same date as the record date fixed by the Company with respect to the Stock) for
the determination of the holders of Receipts who shall be entitled hereunder to
receive a distribution in respect of such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such meeting, or who
should be entitled to receive notice of such meeting or for any other
appropriate reasons.
Section 4.05. Voting Rights. Upon receipt of notice of any meeting at
which the holders of shares of Stock are entitled to vote, the Depositary shall,
within 3 business days, mail to the record holders of Receipts a notice which
shall contain (i) such information as is contained
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in such notice of meeting and (ii) a statement that the holders may, subject to
any applicable restrictions, authorize the Depositary to exercise the voting
rights pertaining to the number of shares of Stock represented by their
respective Depositary Shares (including authority to give a discretionary proxy
to a person designated by the Company) and a brief statement as to the manner in
which such authorization may be given. The Depositary shall vote or cause to be
voted, in accordance with the authorization referred to above, the votes
relating to the shares of Stock (or portion thereof) represented by the
Depositary Shares evidenced by all Receipts as to which such authorization has
been received. The Company hereby agrees to take all such action as it deems
necessary in order to enable the Depositary to vote such shares of Stock or
ause such shares of Stock to be voted. In the absence of authorization from the
holder of a Receipt, the Depositary will abstain from voting (but, at its
discretion, not from appearing at any meeting with respect to the Stock unless
directed to the contrary by the record holders of all the Receipts) to the
extent of the shares of Stock (or portion thereof) represented by the Depositary
Shares evidenced by such Receipt.
Section 4.06. Changes Affecting Deposited Securities and Reclassifica-
tions, Recapitalizations, Etc. Upon any change in par or stated value, split-up,
combination or any other reclassification of the Stock, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation to which
the Company is a party or sale of all or substantially all of the Company's
assets, the Depositary may with the approval of, and shall upon the instructions
of, the Company, and (in either case) in such manner as to retain as nearly as
possible the percentage ownership interest in Stock of holders of the Receipts
immediately prior to such event, (i) make such adjustments in (a) the fraction
of an interest in one share of Stock represented by one Depositary Share and (b)
the ratio of the redemption price per Depositary Share to the redemption price
of a share of Stock, in each case as it may deem necessary to reflect the
effects of such change in par or stated value, split-up, combination or other
reclassification of Stock, or of such recapitalization, reorganization, merger,
amalgamation or consolidation or sale, and (ii) treat any securities which shall
be received by the Depositary in exchange for or upon conversion of or in
respect of the shares of Stock as new deposited securities so received in
exchange for or upon conversion of or in respect of the shares of Stock. In any
such case the Depositary may in its discretion, with the approval of the
Company, execute and deliver additional Receipts, or may call for surrender of
all outstanding Receipts to be exchanged for new Receipts specifically
describing such new deposited securities.
Anything to the contrary herein or in the Receipt
notwithstanding, record holders of Receipts shall have the right from and after
the effective date or any such change in par or stated value, split-up,
combination or other reclassification of the Stock or any such recapitalization,
reorganization, merger, amalgamation, consolidation or sale, to the extent that
holders of shares of Stock had the right, prior to or on the applicable
effective date, to convert, exchange or surrender shares of Stock into or for
other stock, securities, property or cash, to surrender such Receipts to the
Depositary with instructions to convert, exchange or surrender the shares of
Stock represented thereby only into or for, as the case may be, the kind and
amount of shares of stock and other securities and property and cash into which
the shares of Stock represented by such Receipts has been converted or for which
such shares of Stock might have been exchanged or surrendered immediately prior
to the effective date of such transaction.
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Section 4.07. Inspection of Reports. The Depositary shall make
available for inspection by record holders of Receipts at the Depositary's
Office, and at such other places as it may from time to time deem advisable, any
reports and communications received from the Company which are received by the
Depositary as the holder of shares of Stock.
Section 4.08. List of Receipt Holders. Promptly, upon request by the
Company, the Depositary shall furnish to it a list, as of a specified date, of
the names and addresses of all record holders, and the number of shares of Stock
represented by the Receipts held by such holders.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
Section 5.01. Maintenance of Offices, Agencies and Transfer Books by
the Depositary; Registrar. Upon execution of this Deposit Agreement, the
Depositary shall maintain, at the Depositary's Office, facilities for the
execution and delivery, registration and registration of transfer, surrender and
exchange of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender and exchange of
Receipts, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall, with the approval of the Company,
appoint a Registrar for registration of such Receipts or Depositary Shares in
accordance with any requirements of any applicable stock exchange in which the
Receipts or the Depositary Shares may be listed. Such Registrar (which may be
the Depositary if so permitted by the requirements of such exchange) may be
removed and a substitute Registrar appointed by the Depositary upon the request
or with the approval of the Company. If the Receipts, the Depositary Shares or
the shares of Stock are listed on one or more other stock exchanges, the
Depositary will, at the request of the Company, arrange such facilities for the
delivery, registration, registration of transfer, surrender and exchange of such
Receipts, such Depositary Shares or such shares of Stock as may be required by
law or applicable stock exchange regulation. The Depositary shall serve as the
initial Registrar.
The Registrar shall maintain books at the Depositary's Office
(or at such other place as shall be approved by the Company and of which the
holders of Receipts shall have reasonable notice) for the registration of
transfer of Receipts, which books at all reasonable times shall be open for
inspection by the record holders of Receipts; provided that the exercise of such
right shall be governed by the provisions of Section 607.1602 of the Florida
Business Corporation Act, as amended, or any successor provision thereto,
anything herein to the contrary notwithstanding.
The Depositary may cause the Registrar to close the books with
respect to the Receipts, at any time or from time to time, when the register of
stockholders of the Company is closed with respect to the Stock or when such
action is deemed necessary or advisable by the Depositary, any Depositary's
Agent or the Company because of any requirement of law or of any
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government, governmental body or commission, stock exchange or any applicable
self-regulatory body, including, without limitation, the NASD.
Section 5.02. Prevention or Delay by the Depositary, the Depositary's
Agents, the Registrar or the Company. Neither the Depositary nor any
Depositary's Agent nor any Registrar nor the Company shall incur any liability
to any holder of any Receipt if by reason of any provision of any present or
future law, or regulation thereunder, of the United States of America or of any
other governmental authority or, in the case of the Depositary, the Depositary's
Agent or the Registrar, by reason of any provision, present or future, of the
Company's Articles of Incorporation, as amended (including the Amendment), or by
reason of any act of God or war, the Depositary, the Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing which the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any Registrar or the Company incur any liability or be subject to any obligation
(i) by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which the terms of this Deposit Agreement
provide shall or may be done or performed, or (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement,
except in the event of the negligence or misconduct of the party charged with
such exercise or failure to exercise.
Section 5.03. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company. Neither the Depositary nor any Depositary's Agent
nor any Registrar nor the Company assumes any obligation or shall be subject to
any liability under this Deposit Agreement to holders of Receipts other than for
its negligence or misconduct.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be liable to any party hereto for any action or
any failure to act by it in reliance upon the written advice of legal counsel or
accountants, or information from any person presenting shares of Stock for
deposit or any holder of a Receipt. The Depositary, any Depositary's Agent, any
Registrar and the Company may each rely and shall each be protected in acting
upon any written notice, request, direction or other document believed by it to
be genuine and to have been signed or presented by the party or parties
specified in this Deposit Agreement.
The Depositary undertakes and shall cause any Registrar to
undertake, to perform such duties and only such duties as are specifically set
forth in this Deposit Agreement using its reasonable best efforts and in good
faith. The parties hereto acknowledge that no implied covenants or obligations
shall be read into this Deposit Agreement against the Depositary or any
Registrar or against the Company with respect to the Depositary and any
Registrar. The Depositary will indemnify the Company against any liability that
may arise out of acts performed or omitted by the Depositary or any Depositary's
Agent due to its or their gross negligence or bad faith. The Depositary, any
Depositary's Agent, any Registrar and the Company may own and deal in any class
of securities of the Company and its affiliates and in Receipts subject to the
provisions of applicable law. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates.
Section 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by
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notice of its election so to do delivered to the Company, such resignation to
take effect upon the appointment of a successor Depositary and its acceptance of
such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to take effect
upon the appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided.
In case the Depositary acting hereunder shall at any time
resign or be removed, the Company shall, within 60 days after the delivery of
the notice of resignation or removal, as the case may be, appoint a successor
Depositary, which shall be a bank or trust company having its principal office
in the United States of America and having a combined capital and surplus of at
least $500,000,000. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder and agreeing to become a party to this Deposit Agreement,
and thereupon such successor Depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Company, shall execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in all shares of Stock deposited with such predecessor and any monies or
property held hereunder to such successor and shall deliver to such successor a
list of the record holders of all outstanding Receipts. Any successor Depositary
shall promptly mail notice of its appointment to the record holders of Receipts.
Any corporation or other entity into or with which the
Depositary may be merged, consolidated or converted, or to which the Depositary
may sell all or substantially all its assets, shall be the successor of such
Depositary without the execution or filing of any document or any further act.
Such successor Depositary may authenticate the Receipts in the name of the
predecessor Depositary or in the name of the successor Depositary.
Section 5.05. Corporate Notices and Reports. The Company agrees that it
will deliver to the Depositary and the Depositary will, promptly after receipt
thereof, transmit to the record holders of Receipts, in each case at the address
furnished to it pursuant to Section 4.08, all notices and reports (including
without limitation financial statements) required by law, the rules of any
national securities exchange upon which the shares of Stock, the Depositary
Shares or the Receipts are listed or by the Company's Articles of Incorporation,
as amended (including the Amendment), to be furnished by the Company to holders
of shares of Stock. Such transmission will be at the Company's expense and the
Company will provide the Depositary with such number of copies of such documents
as the Depositary may reasonably request.
Section 5.06. Indemnification by the Company. The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
reasonable costs and expenses of defending itself) which may arise out of (i)
acts performed or omitted in connection with this Deposit Agreement and the
Receipts (a) by the Depositary, any Registrar or any of their respective agents
(including any Depositary's Agent), except for any liability arising out of
gross
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negligence or willful misconduct on the respective parts of any such
person or persons, or (b) by the Company or any of its agents, or (ii) the
offer, sale or registration of the Receipts or shares of Stock pursuant to the
provisions hereof. The obligations of the Company set forth in this Section 5.06
shall survive any termination of this Agreement and any succession of any
Depositary, Registrar or Depositary's Agent.
Section 5.07. Charges and Expenses. The Company shall pay all charges
of the Depositary in connection with the initial deposit of shares of Stock and
the initial issuance of the Depositary Shares, and redemption of shares of Stock
at the option of the Company. All other transfer and other taxes and
governmental charges shall be at the expense of holders of Receipts. The
Depositary may refuse to effect any transfer of a Receipt or any withdrawal of
shares of Stock evidenced thereby until all such taxes and charges with respect
to such Receipt or shares of Stock are paid by the holder thereof. If, at the
request of a holder of Receipts, the Depositary incurs charges or expenses for
which it is not otherwise liable hereunder, such holder will be liable for such
charges and expenses.
All other charges and expenses of the Depositary and any
Depositary's Agent hereunder and of any Registrar (including, in each case,
reasonable fees and expenses of counsel) incident to the performance of their
respective obligations hereunder will be payable by the Company only after prior
consultation and agreement between the Depositary and the Company and consent by
the Company to the incurrence of such expenses, which consent shall not be
unreasonably withheld. The Depositary shall present any statement for charges
and expenses to the Company promptly, unless the Company shall agree otherwise.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.01. Amendment. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment which
shall materially and adversely alter the rights of the holders of Receipts shall
be effective unless such amendment shall have been approved by the record
holders of Receipts representing at least a majority of the Depositary Shares
then outstanding. Every holder of an outstanding Receipt at the time any such
amendment becomes effective shall be deemed, by continuing to hold such Receipt,
to consent and agree to such amendment and to be bound by the Deposit Agreement
as amended thereby.
Section 6.02. Termination. This Deposit Agreement may be terminated by
the Company or the Depositary only if (i) all outstanding Depositary Shares
shall have been redeemed pursuant to Section 2.03, or (ii) there shall have been
made a final distribution in respect of the Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the record holders of Receipts pursuant to
Section 4.01 or 4.02, as applicable.
Whenever the Deposit Agreement has been terminated pursuant to
(ii) above, the Depositary will mail notice of such termination to the record
holders of all Receipts then
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outstanding at least 30 days prior to the date fixed in that notice for
termination of the Deposit Agreement. If any Depositary Shares remain
outstanding after the date of termination, the Depositary thereafter will
discontinue the transfer of Depositary Shares, will suspend the distribution of
dividends to the owners thereof, and will not give any further notices (other
than notice of such termination) or perform any further acts under this Deposit
Agreement, except that the Depositary will continue (i) to collect dividends on
the outstanding shares of Stock and any other distributions with respect
thereto, (ii) to deliver or cause to be delivered shares of Stock, together with
such dividends and distributions, or principal and interest, and the net
proceeds of any sales of rights, preferences, privileges or other property
(other than real property) in exchange for Depositary Shares surrendered. At any
time after the expiration of three years from the date of termination, the
Depositary may sell the shares of Stock then held by it at a public or private
sale, at such place or places and upon such terms as it deems proper and may
thereafter hold the net proceeds of such sale, without liability for interest,
for the pro rata benefit of the owners of the Depositary Shares which have not
theretofore been surrendered. Subject to applicable escheat laws, any monies
set aside by the Company in respect of any payment with respect to the shares of
Stock represented by the Depositary Shares, or dividends thereon, and unclaimed
at the end of three years from the date upon which such payment is due and
payable shall revert to the general funds of the Company, after which reversion
the holders of Receipts evidencing such Depositary Shares shall look only to the
general funds of the Company for payment thereof.
Upon the termination of this Deposit Agreement, the parties
hereto shall be discharged from all obligations under this Deposit Agreement
except for their respective obligations under Sections 5.03, 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Counterparts. This Deposit Agreement may be executed in
any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
Section 7.02. Exclusive Benefit of Parties. This Deposit Agreement is
for the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
Section 7.03. Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or modified thereby.
Section 7.04. Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or telegram, telecopy or
telex confirmed by letter,
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addressed to the Company at 121 W. Forsyth Street, Jacksonville, Florida 32202,
telephone: (904) 598-7000, telecopy:______________, Attention: ________________,
or at any other address and to the attention of any other person of which the
Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or
under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail or by telegram, telecopy or telex
confirmed by letter, addressed to the Depositary at the Depositary's Office, at
1525 West W.T. Harris Boulevard, Charlotte, North Carolina 28288-1153, telephone
(800) 829-8432, Attention: Equity Services, or at any other address and to the
attention of any other person of which the Depositary shall have notified the
Company in writing.
Any and all notices to be given to any record holder of a
Receipt hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or by telegram,
telecopy or telex confirmed by letter, addressed to such record holder at the
address of such record holder as it appears on the books of the Depositary, or
if such holder shall have filed with the Depositary a written request that
notices intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram, telecopy or
telex shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a telegram or
telex message) is deposited, postage prepaid, in a post office letter box. The
Depositary or the Company may, however, act upon any telegram or telecopy
message received by it from the other or from any holder of a Receipt,
notwithstanding that such telegram or telecopy message shall not subsequently be
confirmed by letter or as aforesaid.
Section 7.05. Depositary's Agents. The Depositary may from time to time
appoint any Depositary's Agent to act in any respect for the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will promptly notify the Company of any such action.
Section 7.06. Holders of Receipts are Parties. By acceptance of
delivery of the Receipts, any holder from time to time of such Receipt shall be
deemed to have agreed to become a party to this Deposit Agreement and to be
bound by all of the terms and conditions hereof and of the Receipts to the same
extent as though such person executed this Deposit Agreement.
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Section 7.07. Governing Law. THIS DEPOSIT AGREEMENT AND THE RECEIPTS
AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
FLORIDA (WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
Section 7.08. Inspection of Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's Office and
the respective offices of the Depositary's Agents, if any, by any holder of a
Receipt.
Section 7.09. Headings. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or to have any bearing upon the meaning
or interpretation of any provision contained herein or in the Receipts.
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IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Deposit Agreement as of the day and year first above set forth,
and all holders of Receipts shall become parties hereto by and upon acceptance
by them of delivery of Receipts issued in accordance with the terms hereof.
REGENCY CENTERS CORPORATION
By: ___________________________
Authorized Officer
WACHOVIA BANK, NATIONAL
ASSOCIATION,
as Depositary
By: __________________________
Authorized Officer
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FORM OF RECEIPT
CERTIFICATE FOR
-----------------
DEPOSITARY SHARES
TRANSFERABLE CUSIP _______________
DEPOSITARY RECEIPT
SEE REVERSE FOR
CERTAIN DEFINITIONS
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, EACH DEPOSITARY SHARE REPRESENTING A
ONE-TENTH (1/10TH) INTEREST IN ONE SHARE OF 7.45% SERIES 3 CUMULATIVE REDEEMABLE
PREFERRED STOCK
REGENCY CENTERS CORPORATION
A Florida Corporation
WACHOVIA BANK, NATIONAL ASSOCIATION, as Depositary (the "Depositary"), hereby
certifies that
is the registered owner of ____________________ DEPOSITARY SHARES ("Depositary
Shares"), each Depositary Share representing a one-tenth (1/10th) interest in
one share of 7.45% Series 3 Cumulative Redeemable Preferred Stock, $0.01 par
value (the "Stock"), of Regency Centers Corporation, a Florida corporation (the
"Corporation"), on deposit with the Depositary, subject to the terms and
entitled to the benefits of the Deposit Agreement dated as of April 3, 2003 (the
"Deposit Agreement"), among the Corporation, the Depositary and the holders from
time to time of Depositary Receipts evidencing the Depositary Shares. By
accepting this Depositary Receipt, the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit Agreement.
This Depositary Receipt shall not be valid or obligatory for any purpose or be
entitled to any benefits under the Deposit Agreement unless it shall have been
executed by the Depositary by the manual signature of a duly authorized officer
or, if executed in facsimile by the Depositary, countersigned by a Registrar in
respect of the Depositary Receipts by a duly authorized officer thereof.
Dated:
WACHOVIA BANK, NATIONAL ASSOCIATION
Depositary and Registrar
By: _______________________________
Authorized Officer
REGENCY CENTERS CORPORATION
REGENCY CENTERS CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH HOLDER OF A
RECEIPT WHO SO REQUESTS A COPY OR SUMMARY OF THE DEPOSIT AGREEMENT AND A COPY OR
SUMMARY OF THE PORTIONS OF THE ARTICLES OF INCORPORATION ESTABLISHING THE
DESIGNATIONS, RELATIVE RIGHTS, PREFERENCES AND LIMITATIONS APPLICABLE TO SHARES
OF EACH CLASS AND THE VARIATIONS IN RIGHTS, PREFERENCES AND LIMITATIONS
DETERMINED FOR EACH SERIES (AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO
DETERMINE VARIATIONS FOR FUTURE SERIES) WHICH THE CORPORATION IS AUTHORIZED TO
ISSUE, INCLUDING THE 7.45% SERIES 3 CUMULATIVE REDEEMALBE PREFERRED STOCK. ANY
SUCH REQUEST SHOULD BE ADDRESSED TO REGENCY CENTERS CORPORATION, 121 W. FORSYTH
STREET, JACKSONVILLE, FLORIDA 32202, ATTENTION:________________________.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Depositary Receipt, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - __________ Custodian __________
(Cust) (Minor)
under Uniform Gifts to
Minors Act ______________
(State)
UNIF TRF MIN ACT - __________ Custodian ___________ (until age______) (Cust)
_____ under Uniform Transfers to Minors Act(Minor) _______________ (State)
Additional abbreviations may also be
used though not in the above list.
CERTIFICATE FOR 3,000,000
DEPOSITARY SHARES
CUSIP 758849 20 2
GLOBAL SEE REVERSE FOR
DEPOSITARY RECEIPT CERTAIN DEFINITIONS
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, EACH DEPOSITARY SHARE
REPRESENTING A ONE-TENTH (1/10TH) INTEREST IN ONE SHARE OF 7.45%
SERIES 3 CUMULATIVE REDEEMABLE PREFERRED STOCK
REGENCY CENTERS CORPORATION
A Florida Corporation
WACHOVIA BANK, NATIONAL ASSOCIATION, as Depositary (the "Depositary"),
hereby certifies that
CEDE & CO.
is the registered owner of 3,000,000 DEPOSITARY SHARES ("Depositary Shares"),
each Depositary Share representing a one-tenth (1/10th) interest in one share of
7.45% Series 3 Cumulative Redeemable Preferred Stock, $0.01 par value, (the
"Stock"), of Regency Centers Corporation, a Florida corporation (the
"Corporation"), on deposit with the Depositary, subject to the terms and
entitled to the benefits of the Deposit Agreement dated as of April 3, 2003 (the
"Deposit Agreement"), between the Corporation and the Depositary. By accepting
this Depositary Receipt, the holder hereof becomes a party to and agrees to be
bound by all the terms and conditions of the Deposit Agreement. This Depositary
Receipt shall not be valid or obligatory for any purpose or be entitled to any
benefits under the Deposit Agreement unless it shall have been executed by the
Depositary by the manual signature of a duly authorized officer or, if executed
in facsimile by the Depositary, countersigned by a Registrar in respect of the
Depositary Receipts by a duly authorized officer thereof.
This global depositary receipt shall evidence the aggregate amount of
Depositary Shares from time to time indicated in the records of the Depositary
and the aggregate amount of Depositary Shares evidenced hereby may from time to
time be increased or decreased by making adjustments on such records of the
Depositary.
Dated: April 3, 2003
WACHOVIA BANK, NATIONAL ASSOCIATION
Depositary and Registrar
By:
-------------------------------------------------
Authorized Officer
REGENCY CENTERS CORPORATION
REGENCY CENTERS CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH HOLDER OF A
RECEIPT WHO SO REQUESTS A COPY OR SUMMARY OF THE DEPOSIT AGREEMENT AND A COPY OR
SUMMARY OF THE PORTIONS OF THE ARTICLES OF INCORPORATION ESTABLISHING THE
DESIGNATIONS, RELATIVE RIGHTS, PREFERENCES AND LIMITATIONS APPLICABLE TO SHARES
OF EACH CLASS AND THE VARIATIONS IN RIGHTS, PREFERENCES AND LIMITATIONS
DETERMINED FOR EACH SERIES (AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO
DETERMINE VARIATIONS FOR FUTURE SERIES) WHICH THE CORPORATION IS AUTHORIZED TO
ISSUE, INCLUDING THE 7.45% SERIES 3 CUMULATIVE REDEEMABLE PREFERRED STOCK. ANY
SUCH REQUEST SHOULD BE ADDRESSED TO REGENCY CENTERS CORPORATION, 121 WEST
FORSYTH STREET, SUITE 200, JACKSONVILLE, FLORIDA 32202, ATTENTION: MS. DIANE
ORTOLANO.
The shares represented by this certificate are subject to ownership limits and
transfer restrictions set forth in articles of the restated articles of
incorporation of the corporation for the purpose of maintaining the
corporation's status as a real estate investment trust and a domestically
controlled real estate investment trust under the internal revenue code of 1986,
as amended (or any successor legislation). A copy of such articles will be
furnished by the corporation to any shareholder upon request and without charge.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
The following abbreviations, when used in the inscription on
the face of this Depositary Receipt, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - __________ Custodian _____________
(Cust) (Minor)
under Uniform Gifts to Minors Act _____________
(State)
UNIF TRF MIN ACT - ___________ Custodian ____________
(Cust) (Minor)
(until age ) under Uniform Transfers to Minors Act
__________________________________
(State)
Additional abbreviations may also be used
though not in the above list.
2
AMENDMENT TO ARTICLES OF INCORPORATION OF
REGENCY CENTERS CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 300,000 SHARES OF
7.45% SERIES 3 CUMULATIVE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation Act
("FBCA"), Regency Centers Corporation, a Florida corporation (the
"Corporation"), does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Amended and Restated Articles
of Incorporation of the Corporation (the "Charter") and Section 607.0602 of the
FBCA, the Board of Directors of the Corporation (the "Board of Directors"), by
resolutions duly adopted on March 21, 2003 and resolutions duly adopted on March
27, 2003 by a committee appointed by the Board of Directors, has classified
300,000 shares of the authorized but unissued Preferred Stock par value $.01 per
share ("Preferred Stock") as a separate series of Preferred Stock, authorized
the issuance of a maximum of 300,000 shares of such series of Preferred Stock,
set certain of the preferences, voting powers, restrictions, limitations as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions of such series of Preferred Stock, and pursuant to the powers
contained in the Bylaws of the Corporation and the FBCA, appointed a committee
(the "Committee") and delegated to the Committee, to the fullest extent
permitted by the FBCA and the Charter and Bylaws of the Corporation, all powers
of the Board of Directors with respect to designating, and setting all other
preferences, voting powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of redemption of, such
series of Preferred Stock determining the number of shares of such series of
Preferred Stock (not in excess of the aforesaid maximum number) to be issued and
the consideration and other terms and conditions upon which such shares of such
series of Preferred Stock are to be issued. Shareholder approval was not
required under the Charter with respect to such designation.
SECOND: Pursuant to the authority conferred upon the Committee as
aforesaid, the Committee has unanimously adopted resolutions designating the
aforesaid series of Preferred Stock as the "7.45% Series 3 Cumulative Redeemable
Preferred Stock," setting the preferences, voting powers, restrictions,
limitations as to dividends, qualifications, terms and conditions of redemption
and other terms and conditions of such 7.45% Series 3 Cumulative Redeemable
Preferred Stock (to the extent not set by the Board of Directors in the
resolutions
referred to in Article FIRST of these Articles of Amendment) and authorizing the
issuance of up to 300,000 shares of 7.45% Series 3 Cumulative Redeemable
Preferred Stock.
THIRD: The series of Preferred Stock of the Corporation created by the
resolutions duly adopted by the Board of Directors of the Corporation and by the
Committee and referred to in Articles FIRST and SECOND of these Articles of
Amendment shall have the following designation, number of shares, preferences,
voting powers, restrictions and limitation as to dividends, qualifications,
terms and conditions of redemption and other terms and conditions:
Section 1. Designation and Number. A series of Preferred Stock,
designated the "7.45% Series 3 Cumulative Redeemable Preferred Stock" (the
"Series 3 Preferred Stock") is hereby established. The number of shares of
Series 3 Preferred Stock shall be 300,000.
Section 2. Rank. The Series 3 Preferred Stock will, with respect to
distributions and rights upon voluntary or involuntary liquidation, winding-up
or dissolution of the Corporation, rank senior to all classes or series of
Common Stock (as defined in the Charter) and to all classes or series of equity
securities of the Corporation now or hereafter authorized, issued or
outstanding, other than any class or series of equity securities of the
Corporation expressly designated as ranking on a parity with or senior to the
Series 3 Preferred Stock as to distributions or rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the Corporation or both.
For purposes of these Articles of Amendment, the term "Parity Preferred Stock"
shall be used to refer to any class or series of equity securities of the
Corporation now or hereafter authorized, issued or outstanding expressly
designated by the Corporation to rank on a parity with Series 3 Preferred Stock
with respect to distributions or rights upon voluntary or involuntary
liquidation, winding-up or dissolution of the Corporation or both, as the
context may require, whether or not the dividend rates, dividend payment dates
or redemption or liquidation prices per share shall be different from those of
the Series 3 Preferred Stock and includes the Series A Cumulative Redeemable
Preferred Stock, the Series B Cumulative Redeemable Preferred Stock, the Series
C Cumulative Redeemable Preferred Stock, the Series D Cumulative Redeemable
Preferred Stock, the Series E Cumulative Redeemable Preferred Stock and the
Series F Cumulative Convertible Redeemable Preferred Stock of the Corporation.
The term "equity securities" does not include debt securities, which will rank
senior to the Series 3 Preferred Stock prior to conversion.
Section 3. Distributions.
(a) Payment of Distributions. Subject to the rights of holders
of Parity Preferred Stock as to the payment of distributions and holders of
equity securities issued after the date hereof in accordance herewith ranking
senior to the Series 3 Preferred Stock as to payment of distributions, holders
of Series 3 Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors of the Corporation, out of funds legally
available for the payment of distributions, cumulative cash distributions at the
rate per annum of 7.45% of the $250 liquidation preference per share of Series 3
Preferred Stock. Such distributions shall be cumulative, shall accrue from the
original date of issuance and will be payable in cash
2
(A) quarterly (such quarterly periods for purposes of payment and accrual will
be the quarterly periods ending on the dates specified in this sentence) in
arrears, on or before March 31, June 30, September 30 and December 31 of each
year commencing on June 30, 2003 and, (B) in the event of a redemption, on the
redemption date (each a "Preferred Stock Distribution Payment Date"). The amount
of the distribution payable for any period will be computed on the basis of a
360-day year of twelve 30-day months and for any period shorter than a full
quarterly period for which distributions are computed, the amount of the
distribution payable will be computed on the basis of the ratio of the actual
number of days elapsed in such period to ninety (90) days. If any date on which
distributions are to be made on the Series 3 Preferred Stock is not a Business
Day (as defined herein), then payment of the distribution to be made on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. Distributions on the Series 3 Preferred Stock
will be made to the holders of record of the Series 3 Preferred Stock on the
first day of the month in which the Preferred Stock Distribution Payment Date
occurs, or on such other record dates to be fixed by the Board of Directors of
the Corporation, which record dates shall be not less than 10 days and not more
than 30 Business Days prior to the relevant Preferred Stock Distribution Payment
Date (each a "Distribution Record Date ").
The term "Business Day" shall mean each day, other than a
Saturday or a Sunday, which is not a day on which banking institutions in New
York, New York are authorized or required by law, regulation or executive order
to close.
(b) Limitation on Distributions. No distribution on the Series
3 Preferred Stock shall be declared or paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement of the
Corporation relating to its indebtedness, prohibit such declaration, payment or
setting apart for payment or provide that such declaration, payment or setting
apart for payment would constitute a breach thereof or a default thereunder, or
if such declaration, payment or setting apart for payment shall be restricted or
prohibited by law. Nothing in this Section 3(b) shall be deemed to modify or in
any manner limit the provisions of Section 3(c) and 3(d).
(c) Distributions Cumulative. Distributions on the Series 3
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series 3 Preferred Stock will accumulate as of the Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid at
any time, without reference to a regular Preferred Stock Distribution Payment
Date to holders of record of the Series 3 Preferred Stock on the record date
fixed by the Board of
3
Directors which date shall be not less than 10 days and not more than 30
Business Days prior to the payment date. Accumulated and unpaid distributions
will not bear interest.
(d) Priority as to Distributions.
(i) So long as any Series 3 Preferred Stock is
outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect
to any class or series of Common Stock or any class or series of other
stock of the Corporation ranking junior to the Series 3 Preferred Stock
as to the payment of distributions (such Common Stock or other junior
stock, collectively, "Junior Stock"), nor shall any cash or other
property be set aside for or applied to the purchase, redemption or
other acquisition for consideration of any Series 3 Preferred Stock,
any Parity Preferred Stock with respect to distributions or any Junior
Stock, unless, in each case, all distributions accumulated on all
Series 3 Preferred Stock and all classes and series of outstanding
Parity Preferred Stock with respect to distributions have been paid in
full. Without limiting Section 6(b) hereof, the foregoing sentence
will not prohibit (i) distributions payable solely in shares of Junior
Stock, (ii) the conversion of Junior Stock or Parity Preferred Stock
into Junior Stock, (iii) purchases by the Corporation of such Series 3
Preferred Stock or Parity Preferred Stock or Junior Stock pursuant to
Article 5 of the Charter to the extent required to preserve the
Corporation's status as a real estate investment trust, (iv) purchases
or other acquisitions of Junior Stock for purposes of any employee or
director incentive or benefit plan of the Corporation or any
subsidiary, and (v) purchases or acquisitions of shares of Series 3
Preferred Stock pursuant to a purchase or exchange offer that is made
on the same terms to all holders of Series 3 Preferred Stock.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably deposited
in trust for payment) upon the Series 3 Preferred Stock, all
distributions authorized and declared on the Series 3 Preferred Stock
and all classes or series of outstanding Parity Preferred Stock with
respect to distributions shall be authorized and declared so that the
amount of distributions authorized and declared per share of Series 3
Preferred Stock and such other classes or series of Parity Preferred
Stock shall in all cases bear to each other the same ratio that accrued
distributions per share on the Series 3 Preferred Stock and such other
classes or series of Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior
distribution periods if such class or series of Parity Preferred Stock
does not have cumulative distribution rights) bear to each other.
(e) No Further Rights. Holders of Series 3 Preferred Stock
shall not be entitled to any distributions, whether payable in cash, other
property or otherwise, in excess of the full cumulative distributions described
herein.
4
Section 4. Liquidation Preference.
(a) Payment of Liquidating Distributions. Subject to the rights
of holders of Parity Preferred Stock with respect to rights upon any voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation and
subject to equity securities ranking senior to the Series 3 Preferred Stock with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Series 3 Preferred Stock shall be
entitled to receive out of the assets of the Corporation legally available for
distribution or the proceeds thereof, after payment or provision for debts and
other liabilities of the Corporation, but before any payment or distributions of
the assets shall be made to holders of Common Stock or any other class or series
of shares of the Corporation that ranks junior to the Series 3 Preferred Stock
as to rights upon liquidation, dissolution or winding-up of the Corporation, an
amount equal to the sum of (i) a liquidation preference of $250 per share of
Series 3 Preferred Stock, and (ii) an amount equal to any accumulated and unpaid
distributions thereon, whether or not declared, to the date of payment. In the
event that, upon such voluntary or involuntary liquidation, dissolution or
winding-up, there are insufficient assets to permit full payment of liquidating
distributions to the holders of Series 3 Preferred Stock and any Parity
Preferred Stock as to rights upon liquidation, dissolution or winding-up of the
Corporation, all payments of liquidating distributions on the Series 3 Preferred
Stock and such Parity Preferred Stock shall be made so that the payments on the
Series 3 Preferred Stock and such Parity Preferred Stock shall in all cases bear
to each other the same ratio that the respective rights of the Series 3
Preferred Stock and such other Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior distribution
periods if such Parity Preferred Stock does not have cumulative distribution
rights) upon liquidation, dissolution or winding-up of the Corporation bear to
each other.
(b) Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by first class mail, postage
pre-paid, not less than 30 and not more than 60 days prior to the payment date
stated therein, to each record holder of the Series 3 Preferred Stock at the
respective addresses of such holders as the same shall appear on the share
transfer records of the Corporation.
(c) No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series 3
Preferred Stock will have no right or claim to any of the remaining assets of
the Corporation.
(d) Consolidation, Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the consolidation or merger or
other business combination of the Corporation with or into, any corporation,
trust or other entity (or of any corporation, trust or other entity with or into
the Corporation) shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Corporation.
5
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
Section 5. Optional Redemption.
(a) Right of Optional Redemption. The Series 3 Preferred Stock
may not be redeemed prior to April 3, 2008. On or after such date, the
Corporation shall have the right to redeem the Series 3 Preferred Stock, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' written notice, at a redemption price, payable in cash, equal
to $250 per share of Series 3 Preferred Stock plus accumulated and unpaid
distributions, whether or nor declared, to the date of redemption. If fewer than
all of the outstanding shares of Series 3 Preferred Stock are to be redeemed,
the shares of Series 3 Preferred Stock to be redeemed shall be selected pro rata
(as nearly as practicable without creating fractional shares).
(b) Limitation on Redemption. The Corporation may not redeem
fewer than all of the outstanding shares of Series 3 Preferred Stock unless all
accumulated and unpaid distributions have been paid on all Series 3 Preferred
Stock for all quarterly distribution periods terminating on or prior to the date
of redemption; provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of Series 3 Preferred Stock pursuant to a
purchase or exchange offer that is made on the same terms to all holders of
Series 3 Preferred Stock.
(c) Procedures for Redemption.
(i) Notice of redemption will be mailed by the
Corporation, postage prepaid, not less than 30 nor more than 60 days
prior to the redemption date, addressed to the respective holders of
record of the Series 3 Preferred Stock to be redeemed at their
respective addresses as they appear on the transfer records of the
Corporation. No failure to give or defect in such notice shall affect
the validity of the proceedings for the redemption of any Series 3
Preferred Stock except as to the holder to whom such notice was
defective or not given. In addition to any information required by law
or by the applicable rules of any exchange upon which the Series 3
Preferred Stock may be listed or admitted to trading, each such notice
shall state: (i) the redemption date, (ii) the redemption price, (iii)
the number of shares of Series 3 Preferred Stock to be redeemed, (iv)
the place or places where such shares of Series 3 Preferred Stock are
to be surrendered for payment of the redemption price, (v) that
distributions on the Series 3 Preferred Stock to be redeemed will cease
to accumulate on such redemption date and (vi) that payment of the
redemption price and any accumulated and unpaid distributions will be
made upon presentation and surrender of such Series 3 Preferred Stock.
If
6
fewer than all of the shares of Series 3 Preferred Stock held by any
holder are to be redeemed, the notice mailed to such holder shall also
specify the number of shares of Series 3 Preferred Stock held by such
holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in
respect of Series 3 Preferred Stock (which notice will be irrevocable)
then, by 12:00 noon, New York City time, on the redemption date, the
Corporation will deposit irrevocably in trust for the benefit of the
Series 3 Preferred Stock being redeemed funds sufficient to pay the
applicable redemption price, plus any accumulated and unpaid
distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any
accumulated and unpaid distributions, if any, on such shares to the
holders of the Series 3 Preferred Stock upon surrender of the
certificates evidencing the Series 3 Preferred Stock by such holders at
the place designated in the notice of redemption. If fewer than all
Series 3 Preferred Stock evidenced by any certificate is being
redeemed, a new certificate shall be issued upon surrender of the
certificate evidencing all Series 3 Preferred Stock, evidencing the
unredeemed Series 3 Preferred Stock, without cost to the holder
thereof. On and after the date of redemption, distributions will
cease to accumulate on the Series 3 Preferred Stock or portions thereof
called for redemption, unless the Corporation defaults in the payment
thereof. If any date fixed for redemption of Series 3 Preferred Stock
is not a Business Day, then payment of the redemption price payable on
such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such
date fixed for redemption. If payment of the redemption price or any
accumulated or unpaid distributions in respect of the Series 3
Preferred Stock is improperly withheld or refused and not paid by the
Corporation, distributions on such Series 3 Preferred Stock will
continue to accumulate from the original redemption date to the date of
payment, in which case the actual payment date will be considered the
date fixed for redemption for purposes of calculating the applicable
redemption price and any accumulated and unpaid distributions.
(d) Status of Redeemed Stock. Any Series 3 Preferred Stock that
shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation
as to class or series until such shares are once more designated as
part of a particular class or series by the Board of Directors.
Section 6. Voting Rights.
(a) General. Holders of the Series 3 Preferred Stock will not
have any voting rights, except as set forth below or as required by the FBCA.
7
(b) Voting Power. For purposes of this Section 6, "Parity
Voting Securities" means the Series 3 Preferred Stock and all classes or series
of Preferred Stock which are (i) on parity with the Series 3 Preferred Stock as
to distributions and/or rights upon liquidation, dissolution or winding up, (ii)
upon which like voting rights have been conferred and are exercisable as to the
matter in question to be submitted to a vote, and (iii) which would be affected
in the same or substantially similar way by such matter. When Parity Voting
Securities are entitled to vote on a matter, they shall vote together as a
single class without regard to series, and each holder of record of Parity
Voting Securities shall be entitled to one vote for each $25.00 liquidation
preference (excluding amounts in respect of accumulated and unpaid
distributions), except that if any Parity Voting Securities were issued for an
amount less than their liquidation preference, the holders thereof shall be
entitled to one vote for each $25.00 of issuance price in lieu of one vote for
each $25.00 of liquidation preference.
(c) Right to Elect Directors.
(i) If at any time distributions shall be in arrears
(which means that, as to any such quarterly distributions, the same
have not been paid in full) with respect to six (6) prior quarterly
distribution periods, whether or not consecutive, and shall not have
been paid in full (a "Preferred Distribution Default"), the authorized
number of members of the Board of Directors shall automatically be
increased by two and the holders of record of Series 3 Preferred Stock,
voting together as a single class with the holders of each other class
or series of Parity Voting Securities, will be entitled to fill the
vacancies so created by electing two additional directors to serve on
the Corporation's Board of Directors (the "Preferred Stock Directors")
at a special meeting called in accordance with Section 6(c)(ii) or at
the next annual meeting of stockholders, and at each subsequent annual
meeting of stockholders or special meeting held in place thereof, until
all such distributions in arrears and distributions for the current
quarterly period on the Series 3 Preferred Stock and each such class or
series of Parity Voting Securities have been paid in full.
(ii) At any time when such voting rights shall have
vested, a proper officer of the Corporation shall call or cause to be
called, upon written request of holders of record of at least 10% of
the outstanding shares of Series 3 Preferred Stock, a special meeting
of the holders of record of Parity Voting Securities by mailing or
causing to be mailed to such holders a notice of such special meeting
to be held not less than ten and not more than 45 days after the date
such notice is given. At any annual or special meeting at which Parity
Voting Securities are entitled to vote, all of the holders of the
Parity Voting Securities, by a plurality of the votes, and not
cumulatively, will be entitled to elect two directors. The holders of
the Parity Voting Securities representing the lesser of one-third of
the total voting power of the Parity Voting Securities then
outstanding, present in person or by proxy or the quorum required for a
vote of the holders of Common Stock, will constitute a quorum for the
election of the Preferred Stock Directors except as otherwise provided
by law. Notice of all meetings at which holders of record of the Series
3 Preferred Stock shall be entitled to vote will be given to such
holders at their addresses as they appear in the transfer records. At
any such
8
meeting or adjournment thereof in the absence of a quorum, subject to
the provisions of any applicable law, the holders of the Parity Voting
Securities representing a majority of the voting power of the Parity
Voting Securities present in person or by proxy shall have the power to
adjourn the meeting for the election of the Preferred Stock Directors,
without notice other than an announcement at the meeting, until a
quorum is present. If a Preferred Distribution Default shall terminate
after the notice of an annual or special meeting has been given but
before such meeting has been held, the Corporation shall, as soon as
practicable after such termination, mail or cause to be mailed notice
of such termination to holders of the Series 3 Preferred Stock that
would have been entitled to vote at such meeting.
(iii) If and when all accumulated distributions and the
distribution for the current distribution period on the Series 3
Preferred Stock shall have been paid in full or a sum sufficient for
such payment is irrevocably deposited in trust for payment, the holders
of the Series 3 Preferred Stock shall be divested of the voting rights
set forth in Section 6(c) herein (subject to revesting in the event of
each and every Preferred Distribution Default) and, if all
distributions in arrears and the distributions for the current
distribution period have been paid in full or set aside for payment in
full on all other classes or series of Parity Voting Securities, the
term and office of each Preferred Stock Director so elected shall
terminate. Any Preferred Stock Director may be removed at any time
with or without cause by the vote of, and shall not be removed
otherwise than by the vote of, the holders of record of a majority of
the voting power of the Parity Voting Securities. So long as a
Preferred Distribution Default shall continue, any vacancy in the
office of a Preferred Stock Director may be filled by written consent
of the Preferred Stock Director remaining in office, or if none remains
in office, by a vote of the holders of record of a majority of the
outstanding Series 3 Preferred Stock (voting separately as a single
class with all other classes or series of Parity Voting Securities).
The Preferred Stock Directors shall each be entitled to one vote per
director on any matter.
(d) Certain Voting Rights. In addition to any other vote
required by the FBCA, so long as any Series 3 Preferred Stock remains
outstanding, the Corporation shall not, without the affirmative vote of the
holders of record of at least two-thirds of the voting power entitled to be cast
by the holders of Series 3 Preferred Stock and the holders of other Parity
Voting Securities upon which like voting rights have been conferred and are
exercisable, voting separately as a single class:
(i) amend the Charter to designate or create, or increase
the authorized amount of, any class or series of shares ranking senior
to the Series 3 Preferred Stock with respect to payment of
distributions or rights upon liquidation, dissolution or winding-up
("Senior Shares") or reclassify any authorized shares of the
Corporation into any Senior Shares; provided that no such vote shall be
required if:
(x) at or prior to the time any such event is to take
place, provision is made for the redemption of all shares of
Series 3 Preferred Stock,
9
so long as no portion of the redemption price will be paid from
the proceeds from the sale of such Senior Shares; or
(y) the holders of Series 3 Preferred Stock have
previously voted pursuant to this Section 6(d) to grant
authority to the Board of Directors to create Senior Shares
pursuant to Section 607.0602 of the FBCA.
(ii) either (A) consolidate, merge into or with, or
convey, transfer or lease its assets substantially as an entirety, to
any corporation or other entity, or (B) amend, alter or repeal the
provisions of the Corporation's Charter (including these Articles of
Amendment) or By-laws, whether by merger, consolidation or otherwise,
in each case in a manner that would materially and adversely affect the
powers, special rights, preferences, privileges or voting power of the
Series 3 Preferred Stock; provided, however, that:
(x) with respect to the occurrence of a merger,
consolidation or a sale or lease of all of the Corporation's
assets as an entirety, so long as (a) the Corporation is the
surviving entity and the Series 3 Preferred Stock remains
outstanding with the terms thereof unchanged, or (b) the
resulting, surviving or transferee entity is a corporation
organized under the laws of any state and substitutes for the
Series 3 Preferred Stock other preferred stock having
substantially the same terms and same rights as the Series 3
Preferred Stock, including with respect to distributions, voting
rights and rights upon liquidation, dissolution or winding-up,
then the occurrence of any such event shall not be deemed to
materially and adversely affect such rights, privileges or
voting powers of the holders of the Series 3 Preferred Stock and
no vote of the Series 3 Preferred Stock shall be required in
such case;
(y) any increase in the amount of authorized
Preferred Stock or the creation or issuance of any other class
or series of Preferred Stock, or any increase in an amount of
authorized shares of each class or series, in each case
ranking either (a) junior to the Series 3 Preferred Stock with
respect to payment of distributions or the distribution of
assets upon liquidation, dissolution or winding-up, or (b) on
a parity with the Series 3 Preferred Stock with respect to
payment of distributions or the distribution of assets upon
liquidation, dissolution or winding-up, shall not be deemed to
materially and adversely affect such rights, preferences,
privileges or voting powers for purposes of this Section
6(d)(ii)(y); and
(z) if any event in Section 6(d)(ii) would
materially and adversely affect the powers, special rights,
preferences, privileges or voting power of the Series 3
Preferred Stock that are not enjoyed by some or all of the
other classes or series of Parity Voting Securities, the
affirmative vote of the holders of record of two-thirds of the
voting power entitled to be cast by the holders of all series
similarly affected shall be required in lieu of the
affirmative
10
vote of the holders of two-thirds of the voting power entitled
to be cast by the holders of the Parity Voting Securities.
In addition, so long as any Series 3 Preferred Stock remains outstanding, the
Corporation shall not amend the Charter to increase the number of shares of
authorized Preferred Stock (unless such shares are junior to the Series 3
Preferred Stock as to distributions and liquidation, dissolution or winding-up)
without the affirmative vote of the holders of record of at least a majority of
the voting power entitled to be cast by the holders of Series 3 Preferred Stock
and the holders of other Parity Voting Securities upon which like voting rights
have been conferred and are exercisable, voting separately as single class, but
no such vote shall be required for the Board to designate and issue shares of
authorized Preferred Stock pursuant to Section 607.0602 of the FBCA.
Section 7. No Conversion Rights. The holders of the Series 3 Preferred
Stock shall not have any rights to convert such shares into shares of any other
class or series of stock or into any other securities of, or interest in, the
Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for
the retirement or redemption of Series 3 Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series 3 Preferred
Stock of the Corporation shall, as such holder, have any preemptive rights to
purchase or subscribe for additional shares of stock of the Corporation or any
other security of the Corporation which it may issue or sell.
FOURTH: The Series 3 Preferred Stock has been classified and designated
by the Board of Directors under the authority contained in the Charter.
FIFTH: These Articles of Amendment have been approved by the Board of
Directors in the manner and by the vote required by law.
SIXTH: The undersigned officer of the Corporation acknowledges these
Articles of Amendment to be the corporate act of the Corporation and, as to all
matters or facts required to be verified under oath, the undersigned officer
acknowledges that to the best of his knowledge, information and belief, these
matters and facts are true in all material respects and that this statement is
made under the penalties for perjury.
11
IN WITNESS WHEREOF, the Corporation has caused this Amendment to be
signed by Bruce M. Johnson, its Managing Director and Executive Vice President,
this ____ day of April, 2003.
REGENCY CENTERS CORPORATION
By: /s/ Bruce M. Johnson
-------------------------------------
Name: Bruce M. Johnson
Title: Managing Director and Executive
Vice President
RESTATED ARTICLES OF INCORPORATION
OF
REGENCY REALTY CORPORATION
This corporation was incorporated on July 8, 1993, effective July 9,
1993, under the name Regency Realty Corporation. Pursuant to Sections 607.1002
and 607.1007, Florida Business Corporation Act, amended and restated Articles of
Incorporation were approved at a meeting of the directors of this corporation on
November 1, 2000. The Restated Articles of Incorporation adopted by the
directors incorporate previously filed amendments, delete authorization for the
corporation's Class B Non-Voting Common Stock authorized pursuant to Section
607.0602, of which no shares are outstanding and omit items of historical
interest only. Accordingly, shareholder approval was not required.
ARTICLE 1
NAME AND ADDRESS
Section 1.1 Name. The name of the corporation is Regency Realty
Corporation (the "Corporation").
Section 1.2 Address of Principal Office. The address of the principal
office of the Corporation is 121 West Forsyth Street, Jacksonville, Florida
32202.
ARTICLE 2
DURATION
Section 2.1 Duration. The Corporation shall exist perpetually.
ARTICLE 3
PURPOSES
Section 3.1 Purposes. This corporation is organized for the purpose of
transacting any or all lawful business permitted under the laws of the United
States and of the State of Florida.
ARTICLE 4
CAPITAL STOCK
Section 4.1 Authorized Capital. The maximum number of shares of stock
which the Corporation is authorized to have outstanding at any one time is one
hundred seventy million (170,000,000) shares (the "Capital Stock") divided into
classes as follows:
(a) Ten million (10,000,000) shares of preferred stock
having a par value of $0.01 per share (the "Preferred Stock"), and
which may be issued in one or more classes or series as further
described in Section 4.2; and
(b) One hundred fifty million (150,000,000) shares of voting
common stock having a par value of $0.01 per share (the "Common Stock");
and
(c) Ten million (10,000,000) shares of common stock having a
par value of $0.01 per share (the "Special Common Stock") and which may
be issued in one or more classes or series as further described in
Section 4.4.
All such shares shall be issued fully paid and nonassessable.
Section 4.2 Preferred Stock. The Board of Directors is authorized to
provide for the issuance of the Preferred Stock in one or more classes and in
one or more series within a class and, by filing the appropriate Articles of
Amendment with the Secretary of State of Florida which shall be effective
without shareholder action, is authorized to establish the number of shares to
be included in each class and each series and the preferences, limitations and
relative rights of each class and each series. Such preferences must include the
preferential right to receive distributions of dividends or the preferential
right to receive distributions of assets upon the dissolution of the Corporation
before shares of Common Stock are entitled to receive such distributions.
Section 4.3 Voting Common Stock. Holders of Voting Common Stock are
entitled to one vote per share on all matters required by Florida law to be
pproved by the shareholders. Subject to the rights of any outstanding classes or
series of Preferred Stock having preferential dividend rights, holders of Common
Stock are entitled to such dividends as may be declared by the Board of
Directors out of funds lawfully available therefor. Upon the dissolution of the
Corporation, holders of Common Stock are entitled to receive, pro rata in
accordance with the number of shares owned by each, the net assets of the
Corporation remaining after the holders of any outstanding classes or series of
Preferred Stock having preferential rights to such assets have received the
distributions to which they are entitled.
Section 4.4 Special Common Stock. The Board of Directors is authorized
to provide for the issuance of the Special Common Stock in one or more classes
and in one or more series within a class and, by filing the appropriate Articles
of Amendment with the Secretary of State of Florida which shall be effective
without shareholder action, is authorized to establish the number of shares to
be included in each class and each series and the limitations and relative
rights of each class and each series. Each class or series of Special Common
Stock (1) shall bear dividends, pari passu with dividends on the Common Stock,
in such amount as the Board of Directors shall determine, (2) shall vote
together with the Common Stock, and not separately as a class except where
otherwise required by law, on all matters on which the Common Stock is entitled
to vote, unless the Board of Directors determines that any such class or series
shall have limited voting rights or shall not be entitled to vote except as
otherwise required by law, (3) may be convertible or redeemable on such terms as
the Board of Directors
2
may determine, and (4) may have such other relative rights and limitations as
the Board of Directors is allowed by law to determine.
ARTICLE 5
REIT PROVISIONS
Section 5.1 Definitions. For the purposes of this Article 5, the
following terms shall have the following meanings:
(a) "Acquire" shall mean the acquisition of Beneficial
Ownership of shares of Capital Stock by any means including, without
limitation, acquisition pursuant to the exercise of any option, warrant,
pledge or other security interest or similar right to acquire shares,
but shall not include the acquisition of any such rights, unless, as a
result, the acquirer would be considered a Beneficial Owner as defined
below. The term "Acquisition" shall have the correlative meaning.
(b) "Actual Owner" shall mean, with respect to any Capital
Stock, that Person who is required to include in its gross income any
dividends paid with respect to such Capital Stock.
(c) "Beneficial Ownership" shall mean ownership of Capital
Stock by a Person who would be treated as an owner of such shares of
Capital Stock, either directly or indirectly, under Section 542(a)(2) of
the Code, taking into account for this purpose (i) constructive
ownership determined under Section 544 of the Code, as modified by
Section 856(h)(1)(B) of the Code (except where expressly provided
otherwise); and (ii) any future amendment to the Code which has the
effect of modifying the ownership rules under Section 542(a)(2) of
the Code. The terms "Beneficial Owner," "Beneficially Owns" and
"Beneficially Owned" shall have the correlative meanings.
(d) "Code" shall mean the Internal Revenue Code of 1986, as
amended. In the event of any future amendments to the Code involving the
renumbering of Code sections, the Board of Directors may, in its
sole discretion, determine that any reference to a Code section
herein shall mean the successor Code section pursuant to such
amendment.
(e) "Constructive Ownership" shall mean ownership of Capital
Stock by a Person who would be treated as an owner of such Capital
Stock, either directly or constructively, through the application of
Section 318 of the Code, as modified by Section 856(d)(5) of the
Code. The terms "Constructive Owner', "Constructively Owns" and
"Constructively Owned" shall have the correlative meanings.
(f) "Existing Holder" shall mean any of The Regency Group,
Inc., MEP, Ltd., and The Regency Group II, Ltd. (and any Person who is a
Beneficial Owner of Capital Stock as a result of attribution of the
Beneficial Ownership from any of the
3
Persons previously identified) who at the opening of business on the
date after the Initial Public Offering was the Beneficial Owner of
Capital Stock in excess of the Ownership Limit; and any Person who
Acquires Beneficial Ownership from another Existing Holder, except by
Acquisition on the open market, so long as, but only so long as, such
Person Beneficially Owns Capital Stock in excess of the Ownership Limit.
(g) "Existing Holder Limit" for an Existing Holder shall mean,
initially, the percentage by value of the outstanding Capital Stock
Beneficially Owned by such Existing Holder at the opening of
business on the date after the Initial Public Offering, and after
any adjustment pursuant to Section 5.8 hereof, shall mean such
percentage of the outstanding Capital Stock as so adjusted;
provided, however, that the Existing Holder Limit shall not be a
percentage which is less than the Ownership Limit or in excess of
9.8%. Beginning with the date after the Initial Public Offering, the
Secretary of the Corporation shall maintain and, upon request, make
available to each Existing Holder, a schedule which sets forth the
then current Existing Holder Limits for each Existing Holder.
(h) "Initial Public Offering" means the closing of the sale of
shares of Common Stock pursuant to the Corporation's first effective
registration statement for such Common Stock filed under the
Securities Act of 1933, as amended.
(i) "Non-U.S. Person" shall mean any Person who is not (i) a
citizen or resident of the United States, (ii) a partnership created or
organized in the United States or under the laws of the United
States or any state therein (including the District of Columbia),
(iii) a corporation created or organized in the United States or
under the laws of the United States or any state therein (including
the District of Columbia), or (iv) any estate or trust (other than a
foreign estate or foreign trust, within the meaning of Section
7701(a)(31) of the Code).
(j) "Ownership Limit" shall initially mean 7% by value of the
outstanding Capital Stock of the Corporation, and after any
adjustment as set forth in Section 5.9, shall mean such greater
percentage (but not greater than 9.8%) by value of the outstanding
Capital Stock as so adjusted.
(k) "Person" shall mean an individual, corporation,
partnership, estate, trust (including a trust qualified under Section
401(a) or 501(c)(17) of the Code), a portion of a trust permanently set
aside for or to be used exclusively for the purposes described in
Section 642(c) of the Code, association, private foundation within the
meaning of Section 509(a) of the Code, joint stock company or other
entity, and also includes a group as that term is used for purposes
of Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended; but does not include an underwriter retained by the Company
which participates in a public offering of the Capital Stock for a
period of 90 days following the purchase by such underwriter of the
Capital Stock, provided that ownership of Capital Stock by such
underwriter would not result in the Corporation
4
being "closely held" within the meaning of Section 856(h) of the Code
and would not otherwise result in the Corporation failing to quality as
a REIT.
(l) "REIT" shall mean a real estate investment trust under
Section 856 of the Code.
(m) "Redemption Price" shall mean the lower of (i) the price
paid by the transferee from whom shares are being redeemed and (ii) the
average of the last reported sales price, regular way, on the New York
Stock Exchange of the relevant class of Capital Stock on the ten trading
days immediately preceding the date fixed for redemption by the Board of
Directors, or if the relevant class of Capital Stock is not then traded
on the New York Stock Exchange, the average of the last reported sales
prices, regular way, of such class of Capital Stock (or, if sales
prices, regular way, are not reported, the average of the closing bid
and asked prices) on the ten trading days immediately preceding the
relevant date as reported on any exchange or quotation system over which
the Capital Stock may be traded, or if such class of Capital Stock is
not then traded over any exchange or quotation system, then the price
determined in good faith by the Board of Directors of the Corporation as
the fair market value of such class of Capital Stock on the relevant
date.
(n) "Related Tenant Owner" shall mean any Constructive Owner
who also owns, directly or indirectly, an interest in a Tenant, which
interest is equal to or greater than (i) 10% of the combined voting
power of all classes of stock of such Tenant, (ii) 10% of the total
number of shares of all classes of stock of such Tenant, or (iii) if
such Tenant is not a corporation, 10% of the assets or net profits
of such Tenant.
(o) "Related Tenant Limit" shall mean 9.8% by value of the
outstanding Capital Stock of the Corporation.
(p) "Restriction Termination Date" shall mean the first day
after the date of the Initial Public Offering on which the Corporation
determines pursuant to Section 5.13 that it is no longer in the best
interest of the Corporation to attempt to, or continue to, qualify
as a REIT.
(q) "Special Shareholder" shall mean any of (i) Security
Capital U.S. Realty, Security Capital Holdings S.A. and any Affiliate
(as such term is defined in the Stockholders Agreement) of Security
Capital U.S. Realty or Security Capital Holdings S.A., (ii) any Investor
(as such term is defined in Section 5.2 of the Stockholders Agreement),
(iii) any bona fide financial institution to whom Capital Stock is
Transferred in connection with any bona fide indebtedness of any
Investor or any Person previously identified, (iv) any Person who is
considered a Beneficial Owner of Capital Stock as a result of the
attribution of Beneficial Ownership from any of the Persons
previously identified and (v) any one or more Persons who Acquire
Beneficial Ownership from a Special Shareholder, except by
Acquisition on the open market.
5
(r) "Special Shareholder Limit" for a Special Shareholder shall
initially mean 60% of the outstanding shares of Common Stock, on a fully
diluted basis, of the Corporation; provided, however, that if at any
time after the effective date of this Amendment a Special Stockholder's
ownership of Common Stock, on a fully diluted basis, of the Corporation
shall have been below 45% for a continuous period of 180 days, then the
definition of "Special Shareholder Limit" shall mean 49% of the
outstanding shares of Common Stock, on a fully diluted basis, of the
Corporation. After any adjustment pursuant to Section 5.8, the
definition of "Special Shareholder Limit" shall mean the percentage of
the outstanding Common Stock as so adjusted, and the definition of
"Special Shareholder Limit" shall also be appropriately and equitably
adjusted in the event of a repurchase of shares of Common Stock of the
Corporation or other reduction in the number of outstanding shares of
Common Stock of the Corporation. Notwithstanding the foregoing, if any
Person and its Affiliates (taken as a whole), other than the Special
Shareholder, shall directly or indirectly own in the aggregate more than
45% of the outstanding shares of Common Stock, on a fully diluted basis,
of the Corporation, the definition of "Special Shareholder Limit" shall
be revised in accordance with Section 5.8 of the Stockholders Agreement.
Notwithstanding the foregoing provisions of this definition, if, as the
result of any Special Shareholder's ownership (taking into account for
this purpose constructive ownership under Section 544 of the Code, as
modified by Section 856(h)(1)(B) of the Code) of shares of Capital
Stock, any Person who is an individual within the meaning of Section
542(a)(2) of the Code (taking into account the ownership attribution
rules under Section 544 of the Code, as modified by Section 856(h) of
the Code) and who is the Beneficial Owner of any interest in a Special
Shareholder would be considered to Beneficially Own more than 9.8% of
the outstanding shares of Capital Stock, then unless such individual
reduces his or her interest in the Special Shareholder so that such
Person no longer Beneficially Owns more than 9.8% of the outstanding
shares of Capital Stock, the Special Shareholder Limit shall be reduced
to such percentage as would result in such Person not being considered
to Beneficially Own more than 9.8% of the outstanding Shares of Capital
Stock. Notwithstanding anything contained herein to the contrary, in no
event shall the Special Shareholder Limit be reduced below the Ownership
Limit. At the request of the Special Shareholders, the Secretary of the
Corporation shall maintain and, upon request, make available to each
Special Shareholder a schedule which sets forth the then current Special
Shareholder Limits for each Special Shareholder.
(s) "Stock Purchase Agreement" shall mean that Stock Purchase
Agreement dated as of June 11, 1996, by and among the Corporation,
Security Capital Holdings S.A., and Security Capital U.S. Realty, as the
same may be amended from time to time.
(t) "Stockholders Agreement" shall mean that Stockholders
Agreement dated as of July 10, 1996, by and among the Corporation,
Security Capital Holdings S.A., and Security Capital U.S. Realty, as the
same may be amended from time to time.
6
(u) "Tenant" shall mean any tenant of (i) the Corporation, (ii)
a subsidiary of the Corporation which is deemed to be a "qualified
REIT subsidiary" under Section 856(i)(2) of the Code, or (iii) a
partnership in which the Corporation or one or more of its qualified
REIT subsidiaries is a partner.
(v) "Transfer" shall mean any sale, transfer, gift, assignment,
devise, or other disposition of Capital Stock or the right to vote or
receive dividends on Capital Stock (including (i) the granting of
any option or entering into any agreement for the sale, transfer or
other disposition of Capital Stock or the right to vote or receive
dividends on the Capital Stock or (ii) the sale, transfer,
assignment or other disposition or grant of any securities or rights
convertible or exchangeable for Capital Stock), whether voluntarily
or involuntarily, whether of record or Beneficially, and whether by
operation of law or otherwise; provided, however, that any bona fide
pledge of Capital Stock shall not be deemed a Transfer until such
time as the pledgee effects an actual change in ownership of the
pledged shares of Capital Stock.
Section 5.2 Restrictions on Transfer. Except as provided in Sections
5.11 and 5.16, during the period commencing at the Initial Public Offering:
(a) No Person (other than an Existing Holder or a Special
Shareholder) shall Beneficially Own Capital Stock in excess of the
Ownership Limit, no Existing Holder shall Beneficially Own Capital Stock
in excess of the Existing Holder Limit for such Existing Holder and no
Special Shareholder shall Beneficially Own Capital Stock in excess
of the Special Shareholder Limit.
(b) No Person shall Constructively Own Capital Stock in excess
of the Related Tenant Limit for more than thirty (30) days following the
date such Person becomes a Related Tenant Owner.
(c) Any Transfer that, if effective, would result in any Person
(other than an Existing Holder or a Special Shareholder) Beneficially
Owning Capital Stock in excess of the Ownership Limit shall be void
ab initio as to the Transfer of such Capital Stock which would be
otherwise Beneficially Owned by such Person in excess of the
Ownership Limit, and the intended transferee shall Acquire no rights
in such Capital Stock.
(d) Any Transfer that, if effective, would result in any
Existing Holder Beneficially Owning Capital Stock in excess of the
applicable Existing Holder Limit shall be void ab initio as to the
Transfer of such Capital Stock which would be otherwise Beneficially
Owned by such Existing Holder in excess of the applicable Existing
Holder Limit, and such Existing Holder shall Acquire no rights in such
Capital Stock.
(e) Any Transfer that, if effective, would result in any
Special Shareholder Beneficially Owning Capital Stock in excess of the
applicable Special Shareholder Limit shall be void ab initio as to
the Transfer of such Capital Stock which would be
7
otherwise Beneficially Owned by such Special Shareholder in excess of
the applicable Special Shareholder Limit, and such Special Shareholder
shall Acquire no rights in such Capital Stock.
(f) Any Transfer that, if effective, would result in any
Related Tenant Owner Constructively Owning Capital Stock in excess of
the Related Tenant Limit shall be void ab initio as to the Transfer of
such Capital Stock which would be otherwise Constructively Owned by such
Related Tenant Owner in excess of the Related Tenant Limit, and the
intended transferee shall Acquire no rights in such Capital Stock.
(g) Any Transfer that, if effective, would result in the
Capital Stock being beneficially owned by less than 100 Persons (within
the meaning of Section 856(a)(5) of the Code) shall be void ab initio as
to the Transfer of such Capital Stock which would be otherwise
beneficially owned by the transferee, and the intended transferee
shall Acquire no rights in such Capital Stock.
(h) Any Transfer that, if effective, would result in the
Corporation being "closely held" within the meaning of Section 856(h) of
the Code shall be void ab initio as to the portion of any Transfer of
the Capital Stock which would cause the Corporation to be "closely
held" within the meaning of Section 856(h) of the Code, and the
intended transferee shall Acquire no rights in such Capital Stock.
(i) Any other Transfer that, if effective, would result in the
disqualification of the Corporation as a REIT by virtue of actual,
Beneficial or Constructive Ownership of Capital Stock shall be void
ab initio as to such portion of the Transfer resulting in the
disqualification, and the intended transferee shall Acquire no
rights in such Capital Stock.
Section 5.3 Remedies for Breach.
(a) If the Board of Directors or a committee thereof shall at
any time determine in good faith that a Transfer has taken place that
falls within the scope of Section 5.2 or that a Person intends to
Acquire Beneficial Ownership of any shares of the Corporation that would
result in a violation of Section 5.2 (whether or not such violation
is intended), the Board of Directors or a committee thereof shall
take such action as it or they deem advisable to refuse to give
effect to or to prevent such Transfer, including, but not limited
to, refusing to give effect to such Transfer on the books of the
Corporation or instituting proceedings to enjoin such Transfer,
subject, however, in all cases to the provisions of Section 5.16.
(b) Without limitation to Section 5.2 and Section 5.3(a), any
purported transferee of shares Acquired in violation of Section 5.2 and
any Person retaining shares in violation of Section 5.2(b) shall be
deemed to have acted as agent on behalf of the Corporation in holding
those shares acquired or retained in violation of Section 5.2 and shall
be deemed to hold such shares in trust on behalf of and for the benefit
of the Corporation. Such shares shall be deemed a separate class of
stock until such time as
8
the shares are sold or redeemed as provided in Section 5.3(c). The
holder shall have no right to receive dividends or other distributions
with respect to such shares, and shall have no right to vote such
shares. Such holder shall have no claim, cause of action or any other
recourse whatsoever against any transferor of shares Acquired in
violation of Section 5.2. The holder's sole right with respect to such
shares shall be to receive, at the Corporation's sole and absolute
discretion, either (i) consideration for such shares upon the resale of
the shares as directed by the Corporation pursuant to Section 5.3(c) or
(ii) the Redemption Price pursuant to Section 5.3(c). Any distribution
by the Corporation in respect of such shares Acquired or retained in
violation of Section 5.2 shall be repaid to the Corporation upon
demand.
(c) The Board of Directors shall, within six months after
receiving notice of a Transfer or Acquisition that violates Section 5.2
or a retention of shares in violation of Section 5.2(b), either (in its
sole and absolute discretion, subject to the requirements of Florida law
applicable to redemption) (i) direct the holder of such shares to sell
all shares held in trust for the Corporation pursuant to Section 5.3(b)
for cash in such manner as the Board of Directors directs or (ii) redeem
such shares for the Redemption Price in cash on such date within such
six month period as the Board of Directors may determine. If the Board
of Directors directs the holder to sell the shares, the holder shall
receive such proceeds as the trustee for the Corporation and pay the
Corporation out of the proceeds of such sale (i) all expenses incurred
by the Corporation in connection with such sale, plus (ii) any remaining
amount of such proceeds that exceeds the amount paid by the holder for
the shares, and the holder shall be entitled to retain only the amount
of such proceeds in excess of the amount required to be paid to the
Corporation.
Section 5.4 Notice of Restricted Transfer. Any Person who Acquires,
attempts or intends to Acquire, or retains shares in violation of Section 5.2
shall immediately give written notice to the Corporation of such event and shall
provide to the Corporation such other information as the Corporation may request
in order to determine the effect, if any, of such Transfer, attempted or
intended Transfer, or retention, on the Corporation's status as a REIT.
Section 5.5 Owners Required to Provide Information. From the date of
the Initial Public Offering and prior to the Restriction Termination Date:
(a) Every shareholder of record of more than 5% by value (or
such lower percentage as required by the Code or the regulations
promulgated thereunder) of the outstanding Capital Stock of the
Corporation shall, within 30 days after December 31 of each year, give
written notice to the Corporation stating the name and address of such
record shareholder, the number and class of shares of Capital Stock
Beneficially Owned by it, and a description of how such shares are held;
provided that a shareholder of record who holds outstanding Capital
Stock of the Corporation as nominee for another Person, which Person is
required to include in its gross income the dividends received on such
Capital Stock (an "Actual Owner"), shall give written notice to the
Corporation stating the name and address of such Actual Owner and the
number and class of shares
9
of such Actual Owner with respect to which the shareholder of record is
nominee. Each such shareholder of record shall provide to the
Corporation such additional information as the Corporation may request
in order to determine the effect, if any, of such Beneficial Ownership
on the Corporation's status as a REIT.
(b) Every Actual Owner of more than 5% by value (or such lower
percentage as required by the Code or Regulations promulgated
thereunder) of the outstanding Capital Stock of the Corporation who
is not a shareholder of record of the Corporation, shall within 30
days after December 31 of each year, give written notice to the
Corporation stating the name and address of such Actual Owner, the
number and class of shares Beneficially Owned, and a description of
how such shares are held.
(c) Each Person who is a Beneficial Owner of Capital Stock and
each Person (including the shareholder of record) who is holding Capital
Stock for a Beneficial Owner shall provide to the Corporation such
information as the Corporation may request, in good faith, in order
to determine the Corporation's status as a REIT.
(d) Nothing in this Section 5.5 or any request pursuant hereto
shall be deemed to waive any limitation in Section 5.2.
Section 5.6 Remedies Not Limited. Except as provided in Section 5.15,
nothing contained in this Article shall limit the authority of the Board of
Directors to take such other action as it deems necessary or advisable to
protect the Corporation and the interests of its shareholders in preserving the
Corporation's status as a REIT.
Section 5.7 Ambiguity. In the case of an ambiguity in the application
of any of the provisions of this ARTICLE 5, including without limitation any
definition contained in Section 5.1 and any determination of Beneficial
Ownership, the Board of Directors in its sole discretion shall have the power to
determine the application of the provisions of this ARTICLE 5 with respect to
any situation based on the facts known to it.
Section 5.8 Modification of Existing Holder Limits and Special
Shareholder Limits. Subject to the provisions of Section 5.10, the Existing
Holder Limits may or shall, as provided below, be modified as follows:
(a) Any Existing Holder or Special Shareholder may Transfer
Capital Stock to another Person, and, so long as such Transfer is not on
the open market, any such Transfer will decrease the Existing Holder
Limit or Special Shareholder Limit, as applicable, for such
transferor (but not below the Ownership Limit) and increase the
Existing Holder Limit or Special Shareholder Limit, as applicable,
for such transferee by the percentage of the outstanding Capital
Stock so transferred. The transferor Existing Holder or Special
Shareholder, as applicable, shall give the Board of Directors of the
Corporation prompt written notice of any such transfer. Any Transfer
by an Existing Holder or Special Shareholder on the open market
shall neither reduce its Existing Holder Limit or Special
Shareholder Limit, as applicable, nor increase the Ownership Limit,
Existing Holder Limit or Special Shareholder Limit of the
transferee.
10
(b) Any grant of Capital Stock or a stock option pursuant to
any benefit plan for directors or employees shall increase the Existing
Holder Limit or Special Shareholder Limit for the affected Existing
Holder or Special Shareholder, as the case may be, to the maximum extent
possible under Section 5.10 to permit the Beneficial Ownership of
the Capital Stock granted or issuable under such employee benefit
plan.
(c) The Board of Directors may reduce the Existing Holder Limit
of any Existing Holder, with the written consent of such Existing
Holder, after any Transfer permitted in this Article 5 by such Existing
Holder on the open market.
(d) Any Capital Stock issued to an Existing Holder or Special
Shareholder pursuant to a dividend reinvestment plan adopted by the
Corporation shall increase the Existing Holder Limit or Special
Shareholder Limit, as the case may be, for the Existing Holder or
Special Shareholder to the maximum extent possible under Section
5.10 to permit the Beneficial Ownership of such Capital Stock.
(e) Any Capital Stock issued to an Existing Holder or Special
Shareholder in exchange for the contribution or sale to the
Corporation of real property, including Capital Stock issued
pursuant to an "earn-out" provision in connection with any such
sale, shall increase the Existing Holder Limit or Special
Shareholder Limit, as the case may be, for the Existing Holder or
Special Shareholder to the maximum extent possible under Section
5.10 to permit the Beneficial Ownership of such Capital Stock.
(f) The Special Shareholder Limit shall be increased, from time
to time, whenever there is an increase in Special Shareholders'
percentage ownership (taking into account for this purpose constructive
ownership under Section 544 of the Code, as modified by Section
856(h)(1)(B) of the Code) of the Capital Stock (or any other capital
stock) of the Corporation due to any event other than the purchase
of Capital Stock (or any other capital stock) of the Corporation by
a Special Shareholder, by an amount equal to such percentage
increase multiplied by the Special Shareholder Limit.
(g) The Board of Directors may reduce the Special Shareholder
Limit for any Special Shareholder and the Existing Holder Limit for any
Existing Holder, as applicable, after the lapse (without exercise)
of an option described in Clause (b) of this Section 5.8 by the
percentage of Capital Stock that the option, if exercised, would
have represented, but in either case no Existing Holder Limit or
Special Shareholder Limit shall be reduced to a percentage which is
less than the Ownership Limit.
Section 5.9 Modification of Ownership Limit. Subject to the limitations
provided in Section 5.10, the Board of Directors may from time to time increase
or decrease the Ownership Limit; provided, however, that any decrease may only
be made prospectively as to subsequent holders (other than a decrease as a
result of a retroactive change in existing law that would require a decrease to
retain REIT status, in which case such decrease shall be effective immediately).
11
Section 5.10 Limitations on Modifications. Notwithstanding any other
provision of this Article 5:
(a) Neither the Ownership Limit, the Special Shareholder Limit
nor any Existing Holder Limit may be increased if, after giving effect
to such increase, five Persons who are considered individuals pursuant
to Section 542(a)(2) of the Code (taking into account all of the
then Existing Holders and Special Shareholders) could Beneficially
Own, in the aggregate, more than 49.5% by value of the outstanding
Capital Stock.
(b) Prior to the modification of any Existing Holder Limit or
Ownership Limit pursuant to Section 5.8 or 5.9, the Board of Directors
of the Corporation may require such opinions of counsel, affidavits,
undertakings or agreements as it may deem necessary or advisable in
order to determine or insure the Corporation's status as a REIT.
(c) No Existing Holder Limit or Special Shareholder Limit may
be a percentage which is less than the Ownership Limit.
(d) The Ownership Limit may not be increased to a percentage
which is greater than 9.8%.
Section 5.11 Exceptions. The Board of Directors may, upon receipt of
either a certified copy of a ruling of the Internal Revenue Service, an opinion
of counsel satisfactory to the Board of Directors or such other evidence as the
Board of Directors deems appropriate, but shall in no case be required to,
exempt a Person (the "Exempted Holder") from the Ownership Limit, the Special
Shareholder Limit, the Existing Holder Limit or the Related Tenant Limit, as the
case may be, if the ruling or opinion concludes or the other evidence shows (A)
that no Person who is an individual as defined in Section 542(a)(2) of the Code
will, as the result of the ownership of the shares by the Exempted Holder, be
considered to have Beneficial Ownership of an amount of Capital Stock that will
violate the Ownership Limit, the Special Shareholder Limit or the applicable
Existing Holder Limit, as the case may be, or (B) in the case of an exception of
a Person from the Related Tenant Limit that the exemption from the Related
Tenant Limit would not cause the Corporation to fail to qualify as a REIT. The
Board of Directors may condition its granting of a waiver on the Exempted
Holder's agreeing to such terms and conditions as the Board of Directors
determines to be appropriate in the circumstances.
Section 5.12 Legend. All certificates representing shares of Capital
Stock of the Corporation shall bear a legend referencing the restrictions on
ownership and transfer as set forth in these Articles. The form and content of
such legend shall be determined by the Board of Directors.
Section 5.13 Termination of REIT Status. The Board of Directors may
revoke the Corporation's election of REIT status as provided in Section
856(g)(2) of the Code if, in its discretion, the qualification of the
Corporation as a REIT is no longer in the best interests of
12
the Corporation. Notwithstanding any such revocation or other termination of
REIT status, the provisions of this Article 5 shall remain in effect unless
amended pursuant to the provisions of Article 10.
Section 5.14 Certain Transfers to Non-U.S. Persons Void.
(a) At any time that Non-U.S. Persons (including Special
Shareholders who will at all times be presumed to be Non-U.S. Persons)
own directly or indirectly 50% or more of the fair market value of the
issued and outstanding shares of Capital Stock of the Corporation,
any Transfer of shares of Capital Stock of the Corporation by any
Person (other than a Special Shareholder) on or after the effective
date of this Amendment that results in such shares being owned
directly or indirectly by a Non-U.S. Person (other than a Special
Shareholder) shall be void ab initio to the fullest extent permitted
under applicable law and the intended transferee shall be deemed
never to have had an interest therein.
(b) At any time that Non-U.S. Persons (including Special
Shareholders who will at all times be presumed to be Non-U.S. Persons)
own directly or indirectly less than 50% of the fair market value of the
issued and outstanding shares of Capital Stock of the Corporation,
any Transfer of shares of Capital Stock of the Corporation by any
Person (other than a Special Shareholder) to any Person on or after
the effective date of this Amendment shall be void ab initio to the
fullest extent permitted under applicable law and the intended
transferee shall be deemed never to have had an interest therein if
such Transfer
(i) occurs prior to the 10% Termination Date and results
in the fair market value of the shares of Capital Stock of the
Corporation owned directly or indirectly by Non-U.S. Persons
(other than Special Shareholders) comprising 4.9 percent (4.9%)
or more of the fair market value of the issued and outstanding
shares of Capital Stock of the Corporation; or
(ii) results in the fair market value of the shares of
Capital Stock of the Corporation owned directly or indirectly by
Non-U.S. Persons (including Special Shareholders who will at all
times be presumed to be Non-U.S. Persons) comprising fifty
percent (50%) or more of the fair market value of the issued and
outstanding shares of Capital Stock the Corporation.
(c) If any of the foregoing provisions is determined to be void
or invalid by virtue of any legal decision, statute, rule or regulation,
then the shares of Capital Stock of the Corporation held or purported to
be held by the transferee shall, automatically and without the necessity
of any action by the Board of Directors or otherwise:
(i) be prohibited from being voted;
(ii) not be entitled to dividends with respect thereto;
13
(iii) be considered held in trust by the transferee for the
benefit of the Corporation and shall be subject to the
provisions of Section 5.3(c) as if such shares of Capital Stock
were the subject of a Transfer that violates Section 5.2; and
(iv) not be considered outstanding for the purpose of
determining a quorum at any meeting of shareholders.
(d) The Special Shareholders may, in their sole discretion,
with prior notice to the Board of Directors, waive, alter or revise in
writing all or any portion of the Transfer restrictions set forth in
this Section 5.14 from and after the date on which such notice is given,
on such terms and conditions as they in their sole discretion determine.
Section 5.15 Severability. If any provision of this Article or any
application of any such provision is determined to be invalid by any federal or
state court having jurisdiction over the issues, the validity of the remaining
provisions shall not be affected and the application of such provisions shall be
affected only to the extent necessary to comply with the determination of such
court.
Section 5.16 New York Stock Exchange Transactions. Nothing in this
Article 5 shall preclude the settlement of any transaction entered into through
the facilities of the New York Stock Exchange."
ARTICLE 6
REGISTERED OFFICE AND AGENT
Section 6.1 Name and Address. The street address of the registered
office of the Corporation is 200 Laura Street, Jacksonville, Florida 32202, and
the name of the initial registered agent of this Corporation at that address is
F & L Corp.
ARTICLE 7
DIRECTORS
Section 7.1 Number. The number of directors may be increased or
diminished from time to time by the bylaws, but shall never be more than fifteen
(15) or less than three (3).
Section 7.2 Classification. The Directors shall be classified into
three classes, as nearly equal in number as possible. At each annual meeting of
the shareholders of the Corporation, the date of which shall be fixed by or
pursuant to the Bylaws of the Corporation, the successors of the class of
directors whose terms expire at that meeting shall be elected to hold office for
a term expiring at the annual meeting of shareholders held in the third year
following the year of their election.
14
ARTICLE 8
BYLAWS
Section 8.1 Bylaws. The Bylaws may be amended or repealed from time to
time by either the Board of Directors or the shareholders, but the Board of
Directors shall not alter, amend or repeal any Bylaw adopted by the shareholders
if the shareholders specifically provide that the Bylaw is not subject to
amendment or repeal by the Board of Directors.
ARTICLE 9
INDEMNIFICATION
Section 9.1 Indemnification. The Board of Directors is hereby
specifically authorized to make provision for indemnification of directors,
officers, employees and agents to the full extent permitted by law.
ARTICLE 10
AMENDMENT
Section 10.1 Amendment. The Corporation reserves the right to amend or
repeal any provision contained in these Restated Articles of Incorporation, and
any right conferred upon the shareholders is subject to this reservation.
IN WITNESS WHEREOF, the undersigned Senior Vice President of the
Corporation has executed these Restated Articles this 1st day of November, 2000.
/s/ J. Christian Leavitt
----------------------------------------
J. Christian Leavitt, Senior Vice
President
15
ACCEPTANCE BY REGISTERED AGENT
Having been named to accept service of process for the above-stated
corporation, at the place designated in the above Articles of Incorporation, I
hereby agree to act in this capacity, and I further agree to comply with the
provisions of all statutes relative to the proper and complete performance of my
duties. I am familiar with and I accept the obligations of a registered agent.
F & L CORP., Registered Agent
/s/ Charles V. Hedrick
----------------------------------------
Charles V. Hedrick, Authorized Signatory
Date: November __, 2000
16
ADDENDUM 1 TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 542,532 SHARES OF
SERIES 1 CUMULATIVE CONVERTIBLE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation
Act ("FBCA"), Regency Realty Corporation, a Florida corporation (the
"Corporation"), does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Restated Articles of
Incorporation of the Corporation, as amended (the "Charter") and Section
607.0602 of the FBCA, the Board of Directors of the Corporation, by resolutions
duly adopted on September 23, 1998 has classified 542,532 shares of the
authorized but unissued Preferred Stock par value $.01 per share (the "Series 1
Preferred Stock") as a separate class of Preferred Stock, authorized the
issuance of a maximum of 542,532 shares of such class of Series 1 Preferred
Stock, set certain of the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such class of Series
1 Preferred Stock. Shareholder approval was not required under the Charter with
respect to such designation.
SECOND: The class of Series 1 Preferred Stock of the Corporation
created by the resolutions duly adopted by the Board of Directors of the
Corporation shall have the following designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitation as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
Section 1. Number of Shares and Designation. The number of shares of
Series 1 Preferred Stock which shall constitute such series shall not be more
than 542,532 shares, par value $0.01 per share, which number may be decreased
(but not below the number thereof then outstanding plus the number required to
fulfill the Corporation's obligations under certain agreements, options,
warrants or similar rights issued by the Corporation) from time to time by the
Board of Directors of the Corporation. Except as otherwise specifically stated
herein, the Series 1 Preferred Stock shall have the same rights and privileges
as Common Stock under Florida law.
Section 2. Definitions. For purposes of the Series 1 Preferred Stock,
the following terms shall have the meanings indicated:
A-1.1
"Board" shall mean the Board of Directors of the
Corporation or any committee authorized by such Board of Directors to perform
any of its responsibilities with respect to the Series 1 Preferred Stock.
"Business Day" shall mean any day other than a Saturday,
Sunday or a day on which state or federally chartered banking institutions in
New York City, New York are not required to be open.
"Call Date" shall mean the date specified in the notice
to holders required under subparagraph (d) of Section 5 as the Call Date.
"Common Stock" shall mean the common capital stock of
the Corporation, par value $0.01 per share.
"Constituent Person" shall have the meaning set forth in
paragraph (c) of Section 6 hereof.
"Dividend Payment Date" shall mean the date on which any
cash dividend is paid on the Common Stock.
"Dividend Periods" shall mean quarterly dividend periods
commencing on April 1, July 1, October 1 and January 1 of each year and ending
on and including the day preceding the first day of the next succeeding Dividend
Period (other than the initial Dividend Period, which shall commence on the
Issue Date).
"Fully Junior Stock" shall mean any class or series of
capital stock of the Corporation now or hereafter issued and outstanding over
which the Series 1 Preferred Stock has preference or priority in both (i) the
payment of dividends and (ii) the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
"Funds from Operations per Share" shall mean the amount
determined by dividing (a) the net income of the Corporation before
extraordinary items (determined in accordance with generally accepted accounting
principles) as reported by the Corporation in its year-end audited financial
statements, minus gains (or losses) from debt restructuring and sales of
property, plus real property depreciation and amortization and amortization of
capitalized leasing expenses and tenant allowances or improvements (to the
extent such allowances or improvements are capital items), and after adjustments
for unconsolidated partnerships, corporations and joint ventures (such items of
depreciation and amortization and such gains, losses and adjustments as
determined in accordance with generally accepted accounting principles and as
reported by the Corporation in its year-end audited financial statements) by (b)
the weighted average number of shares of common stock of the Corporation
outstanding as reported by the Corporation in its year-end audited financial
statements. Adjustments for unconsolidated partnerships, corporations and joint
ventures shall be calculated to reflect Funds from Operations per Share on the
same basis. If the Corporation shall after the Issue Date (A) pay a dividend or
make a distribution in shares of common stock on its outstanding shares of
common stock, (B) subdivide its outstanding shares of common stock into a
greater
A-1.2
number of shares, (C) combine its outstanding Common Stock into a smaller number
of shares or (D) issue any shares of common stock by reclassification of its
outstanding shares of common stock, the Funds from Operations per Share shall be
appropriately adjusted to give effect to such events.
"Issue Date" shall mean the first date on which the
Series 1 Preferred Stock is issued.
"Junior Stock" shall mean the Common Stock and any other
class or series of capital stock of the Corporation now or hereafter issued and
outstanding over which the Series 1 Preferred Stock has preference or priority
in the payment of dividends or in the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
"Minimum Amount" shall mean the greater of (A) $0.2083
and (B) 65% of the highest amount of Funds from Operations per Share for any
preceding fiscal year beginning with the fiscal year ending December 31, 1996,
divided by four.
"Non-Electing Share" shall have the meaning set forth in
paragraph (c) of Section 6 hereof.
"Parity Stock" shall have the meaning set forth in
paragraph (b) of Section 8.
"Person" shall mean any individual, firm, partnership,
corporation, or trust or other entity, and shall include any successor (by
merger
or otherwise) of such entity.
"PRT Issue Date" means October 13, 1995.
"Series 1 Preferred Stock" shall have the meaning set
forth in Article FIRST hereof.
"Series 2 Preferred Stock" shall mean the Series 2
Cumulative Convertible Redeemable Preferred Stock of the Corporation, par value
$0.01
per share.
"set apart for payment" shall be deemed to include,
without any action other than the following, the recording by the Corporation in
its accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of dividends or other distribution by the Board, the
allocation of funds to be so paid on any series or class of capital stock of the
Corporation; provided, however, that if any funds for any class or series of
Junior Stock, Fully Junior Stock or any class or series of shares of capital
stock ranking on a parity with the Series 1 Preferred Stock as to the payment of
dividends are placed in a separate account of the Corporation or delivered to a
disbursing, paying or other similar agent, then "set apart for payment" with
respect to the Series 1 Preferred Stock shall mean placing such funds in a
separate account or delivering such funds to a disbursing, paying or other
similar agent.
A-1.3
"Transaction" shall have the meaning set forth in
paragraph (c) of Section 6 hereof.
"Transfer Agent" means initially the Corporation and
shall include such other agent or agents of the Corporation as may be designated
by the Board or their designee as the transfer agent for the Series 1 Preferred
Stock.
"Voting Preferred Stock" shall have the meaning set
forth in Section 9 hereof.
Section 3. Dividends.
(a) The holders of Series 1 Preferred Stock shall be entitled
to receive, when, as and if declared by the Board out of funds legally available
for that purpose, quarterly dividends payable in cash in an amount per share
equal to the greater of (i) the Minimum Amount or (ii) an amount equal to
$0.02708 less than the dividends (determined on each Dividend Payment Date) on a
share of Common Stock, or portion thereof, into which a share of Series 2
Preferred Stock is convertible upon conversion of a share of Series 1 Preferred
Stock. For purposes of clause (ii) of the preceding sentence, such dividends
shall equal the number of shares of Common Stock, or portion thereof, into which
a share of Series 2 Preferred Stock is convertible upon conversion of a share of
Series 1 Preferred Stock, multiplied by the most current quarterly dividend paid
or payable on a share of Common Stock on or before the applicable Dividend
Payment Date. Dividends on the Series 1 Preferred Stock shall begin to accrue
and shall be fully cumulative from the Issue Date, whether or not for any
Dividend Period or Periods there shall be funds of the Corporation legally
available for the payment of such dividends, and shall be payable quarterly,
when, as and if declared by the Board, in arrears on Dividend Payment Dates,
commencing on the first Dividend Payment Date after the Issue Date. Accrued and
unpaid dividends on shares of Series 1 Preferred Stock shall include any accrued
and unpaid dividends on the Series A Cumulative Convertible Redeemable Preferred
Shares of Beneficial Interest of Pacific Retail Trust which are exchanged by
operation of law into such shares of Series 1 Preferred Stock pursuant to the
merger of Pacific Retail Trust into the Corporation. Each dividend on the Series
1 Preferred Stock shall be payable to the holders of record of Series 1
Preferred Stock, as they appear on the stock records of the Corporation at the
close of business on such record dates as shall be fixed by the Board. Accrued
and unpaid dividends for any past Dividend Periods may be declared and paid at
any time and for such interim periods, without reference to any regular Dividend
Payment Date, to holders of record on such date as may be fixed by the Board.
(b) The amount of dividends payable for any dividend period
shorter or longer than a full Dividend Period, on the Series 1 Preferred Stock
shall be computed on the basis of twelve 30-day months and a 360-day year.
Holders of Series 1 Preferred Stock shall not be entitled to any dividends,
whether payable in cash, property or stock, in excess of current and cumulative
but unpaid dividends, as herein provided, on the Series 1 Preferred Stock. No
interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on the Series 1 Preferred Stock that may be in
arrears.
A-1.4
(c) So long as any Series 1 Preferred Stock is outstanding, no
dividends, except as described in the immediately following sentence, shall be
declared or paid or set apart for payment on any class or series of Parity Stock
for any period unless full cumulative dividends have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for such payment on the Series 1 Preferred Stock for all Dividend
Periods terminating on or prior to the Dividend Payment Date on such class or
series of Parity Stock. When dividends are not paid in full or a sum sufficient
for such payment is not set apart, as aforesaid, all dividends declared upon
Series 1 Preferred Stock and all dividends declared upon any other class or
series of Parity Stock shall be declared ratably in proportion to the respective
amounts of dividends accumulated and unpaid on the Series 1 Preferred Stock and
accumulated and unpaid on such Parity Stock.
(d) So long as any Series 1 Preferred Stock is outstanding, no
dividends (other than dividends or distributions paid solely in shares of, or
options, warrants or rights to subscribe for or purchase shares of, Fully Junior
Stock) shall be declared or paid or set apart for payment or other distribution
declared or made upon Junior Stock, nor shall any Junior Stock be redeemed,
purchased or otherwise acquired (other than a redemption, purchase or other
acquisition of Common Stock made for purposes of an employee incentive or
benefit plan of the Corporation or any subsidiary) for any consideration (or any
moneys be paid to or made available for a sinking fund for the redemption of any
shares of any such stock) by the Corporation, directly or indirectly (except by
conversion into or exchange for Fully Junior Stock), unless in each case (i) the
full cumulative dividends on all outstanding Series 1 Preferred Stock and any
other Parity Stock of the Corporation shall have been paid or declared and set
apart for payment for all past Dividend Periods with respect to the Series 1
Preferred Stock and all past dividend periods with respect to such Parity Stock
and (ii) sufficient funds shall have been paid or declared and set apart for the
payment of the dividend for the current Dividend Period with respect to the
Series 1 Preferred Stock and the current dividend period with respect to such
Parity Stock.
Section 4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, before any payment or
distribution of the assets of the Corporation (whether capital or surplus) shall
be made to or set apart for payment to the holders of Junior Stock or Fully
Junior Stock, the holders of the Series 1 Preferred Stock shall be entitled to
receive $20.8333 per share of Series 1 Preferred Stock plus an amount equal to
all dividends declared but unpaid thereon to the date of final distribution to
such holders; but such holders shall not be entitled to any further payment. If,
upon any liquidation, dissolution or winding up of the Corporation, the assets
of the Corporation, or proceeds thereof, distributable among the holders of the
Series 1 Preferred Stock shall be insufficient to pay in full the preferential
amount aforesaid and liquidating payments on any other shares of any class or
series of Parity Stock, then such assets, or the proceeds thereof, shall be
distributed among the holders of Series 1 Preferred Stock and any such other
Parity Stock ratably in accordance with the respective amounts that would be
payable on such Series 1 Preferred Stock and any such other Parity Stock if all
amounts payable thereon were paid in
A-1.5
full. For the purposes of this Section 4, (i) a consolidation or merger of the
Corporation with one or more Persons, (ii) a sale or transfer of all or
substantially all of the Corporation's assets or (iii) a statutory share
exchange shall not be deemed to be a liquidation, dissolution or winding up,
voluntary or involuntary, of the Corporation.
(b) Subject to the rights of the holders of shares of any
series or class or classes of shares of capital stock ranking on a parity with
or prior to the Series 1 Preferred Stock upon liquidation, dissolution or
winding up, upon any liquidation, dissolution or winding up of the Corporation,
after payment shall have been made in full to the holders of the Series 1
Preferred Stock, as provided in this Section 4, any other series or class or
classes of Junior Stock or Fully Junior Stock shall, subject to the respective
terms and provisions (if any) applying thereto, be entitled to receive any and
all assets remaining to be paid or distributed, and the holders of the Series 1
Preferred Stock shall not be entitled to share therein.
Section 5. Redemption at the Option of the Corporation.
(a) The Series 1 Preferred Stock shall not be redeemable by the
Corporation prior to October 20, 2010. On and after October 20, 2010, the
Corporation, at its option, may redeem the Series 1 Preferred Stock, in whole at
any time or from time to time in part at the option of the Corporation at a
redemption price of $20.8333 per share of Series 1 Preferred Stock, plus the
amounts indicated in Section 5(b).
(b) Upon any redemption of Series 1 Preferred Stock pursuant to
this Section 5, the Corporation shall pay in full any and all accrued and unpaid
dividends (without interest or sum of money in lieu of interest) for any and all
Dividend Periods ending on or prior to the Call Date. If the Call Date falls
after a dividend payment record date and prior to the corresponding Dividend
Payment Date, then each holder of Series 1 Preferred Stock at the close of
business on such dividend payment record date shall be entitled to the dividend
payable on such shares on the corresponding dividend payment date
notwithstanding the redemption of such shares before such Dividend Payment Date.
(c) If full cumulative dividends on the Series 1 Preferred
Stock and any other class or series of Parity Stock of the Corporation have not
been paid or declared and set apart for payment, the Series 1 Preferred Stock
may not be redeemed under this Section 5 in part and the Corporation may not
purchase or acquire shares of Series 1 Preferred Stock, otherwise than pursuant
to a voluntary purchase or exchange offer made on the same terms to all holders
of Series 1 Preferred Stock.
(d) Notice of the redemption of any Series 1 Preferred Stock
under this Section 5 shall be mailed by first-class mail to each holder of
record of Series 1 Preferred Stock to be redeemed at the address of each such
holder as shown on the Corporation's record, not less than 30 nor more than 90
days prior to the Call Date. Neither the failure to mail any notice required by
this paragraph (d), nor any defect therein or in the mailing thereof, to any
particular holder, shall affect the sufficiency of the notice or the validity of
the proceedings for redemption with respect to the other holders. Any notice
which was mailed in the manner herein provided shall be conclusively presumed to
have been duly given on the date mailed
A-1.6
whether or not the holder receives the notice. Each such mailed notice shall
state, as appropriate: (1) the Call Date; (2) the number of shares of Series 1
Preferred Stock to be redeemed and, if fewer than all the shares held by such
holder are to be redeemed, the number of such shares to be redeemed from such
holder; (3) the place or places at which certificates for such shares are to be
surrendered; and (4) that dividends on the shares to be redeemed shall cease to
accrue on such Call Date except as otherwise provided herein. Notice having been
mailed as aforesaid, from and after the Call Date (unless the Corporation shall
fail to make available an amount of cash necessary to effect such redemption),
(i) except as otherwise provided herein, dividends on the Series 1 Preferred
Stock so called for redemption shall cease to accrue, (ii) said shares shall no
longer be deemed to be outstanding and (iii) all rights of the holders thereof
as holders of Series 1 Preferred Stock of the Corporation shall cease (except
the rights to convert and to receive cash payable upon such redemption, without
interest thereon, upon surrender and endorsement of their certificates if so
required and to receive any dividends payable thereon). The Corporation's
obligation to provide cash in accordance with the preceding sentence shall be
deemed fulfilled if, on or before the Call Date, the Corporation shall deposit
with a bank or trust company (which may be an affiliate of the Corporation) that
has an office in the Borough of Manhattan, City of New York, and that has, or is
an affiliate of a bank or trust company that has, capital and surplus of at
least $50,000,000, sufficient cash necessary for such redemption, in trust, with
irrevocable instructions that such cash be applied to the redemption of the
Series 1 Preferred Stock so called for redemption. No interest shall accrue for
the benefit of the holders of Series 1 Preferred Stock to be redeemed on any
cash so set aside by the Corporation. Subject to applicable escheat laws and
other unclaimed property laws, any such cash unclaimed at the end of two years
from the Call Date shall revert to the general funds of the Corporation, after
which reversion the holders of such shares so called for redemption shall look
only to the general funds of the Corporation for the payment of such cash.
Notwithstanding the above, at any time after such redemption notice is received
and on or prior to the Call Date, any holder may exercise its conversion rights
under Section 6 below.
As promptly as practicable after the surrender in accordance
with said notice of the certificates for any such shares so redeemed (properly
endorsed or assigned for transfer, if the Corporation shall so require and if
the notice shall so state), such shares shall be exchanged for any cash
(including accumulated and unpaid dividends but without interest thereon) for
which such shares have been redeemed. If fewer than all the outstanding shares
of Series 1 Preferred Stock are to be redeemed, shares to be redeemed shall be
selected by the Corporation from outstanding Series 1 Preferred Stock not
previously called for redemption by lot or pro rata (as nearly as may be) or by
any other method determined by the Corporation in its sole discretion to be
equitable. If fewer than all shares of the Series 1 Preferred Stock represented
by any certificate are redeemed, then new certificates representing the
unredeemed shares shall be issued without cost to the holder thereof.
Section 6. Conversion. Subject to subparagraph (f) of this Section 6,
holders of Series 1 Preferred Stock shall have the right, at any time and from
time to time, to convert all or a portion of such shares into Series 2 Preferred
Stock, as follows:
A-1.7
(a) Subject to and upon compliance with the provisions of this
Section 6, a holder of Series 1 Preferred Stock shall have the right, at such
holder's option, at any time to convert each share of Series 1 Preferred Stock
into one fully paid and non-assessable share of Series 2 Preferred Stock by
surrendering such shares to be converted, such surrender to be made in the
manner provided in paragraph (b) of this Section 6. In addition, upon conversion
of Series 1 Preferred Stock any holder may elect to simultaneously convert the
Series 2 Preferred Stock issuable upon such conversion into that number of
shares of Common Stock into which such Series 2 Preferred Stock is then
convertible pursuant to the terms of the Series 2 Preferred Stock.
(b) In order to exercise the conversion right, the holder of
each share of Series 1 Preferred Stock to be converted shall surrender the
certificate representing such share, duly endorsed or assigned to the
Corporation or in blank, at the office of the Transfer Agent, accompanied by
written notice to the Corporation that the holder thereof elects to convert such
Series 1 Preferred Stock and payment of the amount, if any, determined pursuant
to subparagraph (f) of this Section 6. Unless the shares issuable on conversion
are to be issued in the same name as the name in which such Series 1 Preferred
tock is registered, each share surrendered for conversion shall be accompanied
by instruments of transfer, in form satisfactory to the Corporation, duly
executed by the holder or such holder's duly authorized attorney and an amount
sufficient to pay any transfer or similar tax (or evidence reasonably
satisfactory to the Corporation demonstrating that such taxes have been paid).
Holders of Series 1 Preferred Stock at the close of business on
a dividend payment record date shall be entitled to receive the dividend payable
on such shares on the corresponding dividend payment date notwithstanding the
conversion thereof following such dividend payment record date and on or prior
to such dividend payment date. In no event shall a holder of Series 1 Preferred
Stock be entitled to receive a dividend payment on Series 2 Preferred Stock
issued or issuable upon conversion of Series 1 Preferred Stock if such holder is
entitled to receive a dividend in respect of the Series 1 Preferred Stock
surrendered for conversion. The Corporation shall make no payment or allowance
for unpaid dividends, whether or not in arrears, on converted shares or for
dividends on the Series 2 Preferred Stock issued upon such conversion, except as
contemplated pursuant to subparagraph (f) of this Section 6.
As promptly as practicable after the surrender of certificates
for Series 1 Preferred Stock as aforesaid, the Corporation shall issue and shall
deliver at such office to such holder, or such holder's written order, a
certificate or certificates for the number of full shares of Series 2 Preferred
Stock issuable upon the conversion of such shares in accordance with provisions
of this Section 6.
Each conversion shall be deemed to have been effected
immediately prior to the close of business on the date on which the certificates
for Series 1 Preferred Stock shall have been surrendered and such notice
(together with the undertaking described below if such conversion occurs on or
prior to the fifth anniversary of the PRT Issue Date) received by the
Corporation as aforesaid, and the person or persons in whose name or names any
certificate or
A-1.8
certificates for Series 2 Preferred Stock shall be issuable upon such conversion
shall be deemed to have become the holder or holders of record of the shares
represented thereby at such time on such date unless the stock transfer books
of the Corporation shall be closed on that date, in which event such person or
persons shall be deemed to have become such holder or holders of record at the
close of business on the next succeeding day on which such stock transfer books
are open. Concurrently with the delivery of any notice of conversion prior to
the fifth anniversary of the PRT Issue Date, any holder converting its Series 1
Preferred Stock shall deliver to the Corporation an undertaking to pay the
amount, if any, pursuant to the last sentence of subparagraph (f) of this
Section 6.
(c) If the Corporation shall be a party to any transaction
(including without limitation a merger, consolidation, statutory share exchange,
self tender offer for all or substantially all Series 2 Preferred Stock, sale of
all or substantially all of the Corporation's assets or recapitalization of the
Series 2 Preferred Stock) (each of the foregoing being referred to herein as a
"Transaction"), in each case as a result of which all or substantially all
Series 2 Preferred Stock is converted into the right to receive stock,
securities or other property (including cash or any combination thereof) of
another Person, each share of Series 1 Preferred Stock, which is not converted
into a Series 2 Preferred Share prior to such Transaction, shall thereafter be
convertible into the kind and amount of shares of stock, securities and other
property (including cash or any combination thereof) receivable upon the
consummation of such Transaction by a holder of that number of shares of Series
2 Preferred Stock into which one share of Series 1 Preferred Stock was
convertible immediately prior to such Transaction, assuming such holder of
Series 2 Preferred Stock (i) is not a Person with which the Corporation
consolidated or into which the Corporation merged or which merged into the
Corporation or to which such sale or transfer was made, as the case may be
("Constituent Person"), or an affiliate of a Constituent Person and (ii) failed
to exercise his rights of election, if any, as to the kind or amount of stock,
securities and other property (including cash) receivable upon such Transaction
(provided that if the kind or amount of stock, securities and other property
(including cash) receivable upon such Transaction is not the same for each share
of Series 2 Preferred Share held immediately prior to such Transaction by other
than a Constituent Person or an affiliate thereof and in respect of which such
rights of election shall not have been exercised ("Non-Electing Share"), then
for the purpose of this paragraph (c) the kind and amount of stock, securities
and other property (including cash) receivable upon such Transaction by each
Non-Electing Share shall be deemed to be the kind and amount so receivable per
share by a plurality of the Non-Electing Shares). The Corporation shall not be a
party to any Transaction unless the terms of such Transaction are consistent
with the provisions of this paragraph (c), and it shall not consent or agree to
the occurrence of any Transaction until the Corporation has entered into an
agreement with the successor or purchasing entity, as the case may be, for the
benefit of the holders of the Series 1 Preferred Stock that will contain
provisions enabling the holders of the Series 1 Preferred Stock that remain
outstanding after such Transaction to convert into the consideration received by
holders of Series 2 Preferred Stock at the conversion price in effect
immediately prior to such Transaction. The provisions of this paragraph (c)
shall similarly apply to successive Transactions.
A-1.9
(d) The Corporation covenants that it will at all times reserve
and keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued shares of Series 2 Preferred Stock, for the purpose of
effecting conversion of the Series 1 Preferred Stock, the full number of shares
of Series 2 Preferred Stock deliverable upon the conversion of all outstanding
Series 1 Preferred Stock not theretofore converted.
The Corporation covenants that any shares of Series 2 Preferred
Stock issued upon conversion of the Series 1 Preferred Stock shall be validly
issued, fully paid and non-assessable.
Prior to the delivery of any securities that the Corporation
shall be obligated to deliver upon conversion of the Series 1 Preferred Stock,
the Corporation shall endeavor to comply with all federal and state laws and
regulations thereunder requiring the registration of such securities with, or
any approval of or consent to the delivery thereof by, any governmental
authority.
(e) The Corporation will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery of
Series 2 Preferred Stock or other securities or property on conversion of the
Series 1 Preferred Stock pursuant hereto; provided, however, that the
Corporation shall not be required to pay any tax that may be payable in respect
of any transfer involved in the issue or delivery of Series 2 Preferred Stock or
other securities or property in a name other than that of the holder of the
Series 1 Preferred Stock to be converted, and no such issue or delivery shall be
made unless and until the person requesting such issue or delivery has paid to
the Corporation the amount of any such tax or established, to the reasonable
satisfaction of the Corporation, that such tax has been paid.
(f) In the event that any holder of Series 1 Preferred Stock
shall exercise its right to convert such shares into Series 2 Preferred Stock
prior to the fifth anniversary of the PRT Issue Date, upon any such conversion,
the holder of the Series 1 Preferred Stock surrendered for conversion shall pay
an amount in cash to the Corporation equal to the amount obtained by multiplying
(i) 0.0052 times (ii) the quotient obtained by dividing (A) the actual number of
days that will elapse beginning on and including the date on which the
conversion is deemed to have been effected and ending on and including the fifth
anniversary of the PRT Issue Date by (B) 365 times (iii) the difference between
(X) the aggregate liquidation preference (excluding accrued and unpaid
dividends) of the Series 1 Preferred Stock being converted and (Y) the aggregate
amount of accrued and unpaid dividends on the Series 1 Preferred Stock being
converted (provided that the amount determined pursuant to this clause (iii)
shall not be less than zero). In addition, immediately after the dividend
payment record date next following the conversion date with respect to the
Series 2 Preferred Stock into which the Series 1 Preferred Stock is convertible
(or the Common Stock into which such Series 2 Preferred Stock is convertible,
whichever is applicable), the holder of the Series 1 Preferred Stock shall pay
to the Corporation an amount, if any, necessary to ensure that the holder has
received an aggregate amount of $0.02708 per share being converted less than the
dividend payable on Common Stock for the dividend period during which the
conversion was effected.
A-1.10
Section 7. Shares to Be Retired. All shares of Series 1 Preferred
Stock which shall have been issued and reacquired in any manner by the
Corporation shall be restored to the status of authorized but unissued shares of
Preferred Stock of the Corporation, without designation as to class or series.
Section 8. Ranking. Any class or series of shares of capital stock of
the Corporation shall be deemed to rank:
(a) prior to the Series 1 Preferred Stock, as to the payment of
dividends and as to distribution of assets upon liquidation, dissolution or
winding up, if the holders of such class or series shall be entitled to the
receipt of dividends or of amounts distributable upon liquidation, dissolution
or winding up, as the case may be, in preference or priority to the holders of
Series 1 Preferred Stock;
(b) on a parity with the Series 1 Preferred Stock, as to the
payment of dividends and as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the dividend rates, dividend payment
dates or liquidation prices per share thereof shall be different from those of
the Series 1 Preferred Stock, if the holders of such class or series and the
Series 1 Preferred Stock shall be entitled to the receipt of dividends and of
amounts distributable upon liquidation, dissolution or winding up in proportion
to their respective amounts of accrued and unpaid dividends per share or
liquidation preferences, without preference or priority one over the other
("Parity Stock");
(c) junior to the Series 1 Preferred Stock, as to the payment
of dividends or as to the distribution of assets upon liquidation, dissolution
or winding up, if such class or series shall be Junior Stock; and
(d) junior to the Series 1 Preferred Stock, as to the payment
of dividends and as to the distribution of assets upon liquidation, dissolution
or winding up, if such class or series shall be Fully Junior Stock.
The Corporation's Series 2 Cumulative Convertible Redeemable
Preferred Stock and the Corporation's 8.125% Series A Cumulative Redeemable
Preferred Stock shall constitute Parity Stock.
Section 9. Voting.
(a) Each issued and outstanding share of Series 1 Preferred
Stock shall entitle the holder thereof to the number of votes per share
of Common Stock into which a share of Series 2 Preferred Stock is convertible
upon conversion of a share of Series 1 Preferred Stock (as of the close of
business on the record date for determination of shareholders entitled to vote
on a matter) on all matters presented for a vote of shareholders of the
Corporation and, except as required by applicable law and subject to the further
provisions of this Section 9, the Series 1 Preferred Stock shall be voted
together with all issued and outstanding Common Stock and Series 2 Preferred
Stock voting as a single class.
A-1.11
(b) If and whenever twelve consecutive quarterly dividends
payable on the Series 1 Preferred Stock or any series or class of Parity
Stock shall be in arrears (which shall, with respect to any such quarterly
dividend, mean that any such dividend has not been paid in full), whether or not
earned or declared, the number of directors then constituting the Board shall be
increased by one and the holders of Series 1 Preferred Stock, together with the
holders of shares of every other series of Parity Stock, including the Series 2
Preferred Stock (any such other series, the "Voting Preferred Stock"), voting
as a single class regardless of series, shall be entitled to elect, at a special
meeting of the holders of the Series 1 Preferred Stock and the Voting Preferred
Stock called as hereinafter provided, the additional director to serve on the
Board. Whenever all arrearages in dividends on the Series 1 Preferred Stock and
the Voting Preferred Stock then outstanding shall have been paid and dividends
thereon for the current quarterly dividend period shall have been paid or
declared and set apart for payment, then the right of the holders of the Series
1 Preferred Stock and the Voting Preferred Stock to elect such additional
director shall cease (but subject always to the same provision for the vesting
of such voting rights in the case of any similar future arrearages in twelve
quarterly dividends), and the terms of office of the person elected as director
by the holders of the Series 1 Preferred Stock and the Voting Preferred Stock
shall forthwith terminate and the number of members of the Board shall be
reduced accordingly. At any time after such voting power shall have been so
vested in the holders of Series 1 Preferred Stock and the Voting Preferred Stock
(or if any vacancy shall occur in respect of the director previously elected by
the holders of the Series 1 Preferred Stock and the Voting Preferred Stock), the
secretary of the Corporation shall call a special meeting of the holders of the
Series 1 Preferred Stock and of the Voting Preferred Stock for the election of
the director to be elected by them as herein provided, such call to be made by
notice similar to that provided in the Bylaws of the Corporation for a special
meeting of the shareholders or as required by law. If any such special meeting
required to be called as above provided shall not be called by the secretary
within 30 days after the end of the most recent Dividend Period during which the
right to elect such additional director arose or such vacancy occurred, then any
holder of Series 1 Preferred Stock may call such meeting, upon the notice
above provided, and for that purpose shall have access to the stock records of
the Corporation. The director elected at any such special meeting shall hold
office until the next annual meeting of the shareholders or special meeting held
in lieu thereof if such office shall not have previously terminated as above
provided.
(c) So long as any Series 1 Preferred Stock is outstanding, in addition
to any other vote or consent of shareholders required by law or by the Charter,
the affirmative vote of at least 66 2/3% of the votes entitled to be cast by the
holders of the Series 1 Preferred Stock, together with the holders of Voting
Preferred Stock, at the time outstanding, acting as a single class regardless of
series, given in person or by proxy, either in writing without a meeting or by
vote at any meeting called for the purpose, shall be necessary for effecting or
validating:
(i) Any amendment, alteration or repeal of any of the
provisions of the Charter or these Articles of Amendment that
materially and adversely affects the voting powers, rights or
preferences of the holders of the Series 1 Preferred Stock or
the Voting Preferred Stock; provided, however, that the
amendment of the provisions of the Charter so as to authorize or
create or to increase the authorized amount of any
A-1.12
Fully Junior Stock, Junior Stock that is not senior in any
respect to the Series 1 Preferred Stock, or any stock of any
class ranking on a parity with the Series 1 Preferred Stock or
the Voting Preferred Stock shall not be deemed to materially
adversely affect the voting powers, rights or preferences of the
holders of Series 1 Preferred Stock; and provided, further, that
if any such amendment, alteration or repeal would materially and
adversely affect any voting powers, rights or preferences of the
Series 1 Preferred Stock or another series of Voting Preferred
Stock that are not enjoyed by some or all of the other series
otherwise entitled to vote in accordance herewith, the
affirmative vote of at least 66 2/3% of the votes entitled to be
cast by the holders of all series similarly affected, similarly
given, shall be required in lieu of the affirmative vote of at
least 66 2/3% of the votes entitled to be cast by the holders of
the Series 1 Preferred Stock and the Voting Preferred Stock
otherwise entitled to vote in accordance herewith; or
(ii) A share exchange that affects the Series 1 Preferred
Stock, a consolidation with or merger of the Corporation into
another Person, or a consolidation with or merger of another
Person into the Corporation, unless in each such case each share
of Series 1 Preferred Stock (A) shall remain outstanding without
a material and adverse change to its terms and rights or (B)
shall be converted into or exchanged for convertible preferred
stock of the surviving entity having preferences, conversion or
other rights, voting powers, restrictions, limitations as to
dividends, qualifications and terms or conditions of redemption
thereof identical to that of a share of Series 1 Preferred Stock
(except for changes that do not materially and adversely affect
the holders of the Series 1 Preferred Stock); or
(iii) The authorization or creation of, or the increase in
the authorized amount of, any shares of any class or any
security convertible into shares of any class ranking prior to
the Series 1 Preferred Stock in the distribution of assets on
any liquidation, dissolution or winding up of the Corporation or
in the payment of dividends.
(d) For purposes of voting in respect to those matters referred
to in subparagraphs (b) and (c) of this Section 9, unless otherwise provided
under applicable law, each share of Series 1 Preferred Stock shall have one (1)
vote per share, except that when any other series of Preferred Stock shall have
the right to vote with the Series 1 Preferred Stock as a single class on any
matter, then the Series 1 Preferred Stock and such other series shall have with
respect to such matters one (1) vote per $20.8333 of stated liquidation
preference. Except as otherwise required by applicable law or as set forth
herein, the Series 1 Preferred Stock shall not have any relative, participating,
optional or other special voting rights and powers other than as set forth
herein, and the consent of the holders thereof shall not be required for the
taking of any corporate action.
Section 10. Record Holders. The Corporation and the Transfer Agent may
deem and treat the record holder of any shares of Series 1 Preferred Stock as
the true and lawful owner thereof for all purposes, and neither the Corporation
nor the Transfer Agent shall be affected by any notice to the contrary.
A-1.13
Section 11. Sinking Fund. The Series 1 Preferred Stock shall not be
entitled to the benefits of any retirement or sinking fund.
A-1.14
ADDENDUM 2 TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 1,502,532 SHARES OF
SERIES 2 CUMULATIVE CONVERTIBLE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation
Act ("FBCA"), Regency Realty Corporation, a Florida corporation (the
"Corporation"), does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Restated Articles of
Incorporation of the Corporation, as amended (the "Charter") and Section
607.0602 of the FBCA, the Board of Directors of the Corporation, by resolutions
duly adopted on September 23, 1998 has classified 1,502,532 shares of the
authorized but unissued Preferred Stock par value $.01 per share (the "Series 2
Preferred Stock") as a separate class of Preferred Stock, authorized the
issuance of a maximum of 1,502,532 shares of such class of Series 2 Preferred
Stock, set certain of the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such class of Series
2 Preferred Stock. Shareholder approval was not required under the Charter with
respect to such designation.
SECOND: The class of Series 2 Preferred Stock of the Corporation
created by the resolutions duly adopted by the Board of Directors of the
Corporation shall have the following designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitation as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
Section 1. Number of Shares and Designation. The number of shares of
Series 2 Preferred Stock which shall constitute such series shall not be more
than 1,502,532 shares, par value $0.01 per share, which number may be decreased
(but not below the number thereof then outstanding plus the number required to
fulfill the Corporation's obligations under certain agreements, options,
warrants or similar rights issued by the Corporation) from time to time by the
Board of Directors of the Corporation. Except as otherwise specifically stated
herein, the Series 2 Preferred Stock shall have the same rights and privileges
as Common Stock under Florida law.
A-2.1
Section 2. Definitions. For purposes of the Series 2 Preferred Stock,
the following terms shall have the meanings indicated:
"Board" shall mean the Board of Directors of the Corporation or any
committee authorized by such Board of Directors to perform any of its
responsibilities with respect to the Series 2 Preferred Stock.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which state or federally chartered banking institutions in New York City,
New York are not required to be open.
"Call Date" shall mean the date specified in the notice to holders
required under subparagraph (d) of Section 5 as the Call Date.
"Common Stock" shall mean the common capital stock of the
Corporation, par value $0.01 per share.
"Constituent Person" shall have the meaning set forth in paragraph
(e) of Section 6 hereof.
"Conversion Price" shall mean the conversion price per share of
Common Stock for which the Series 2 Preferred Stock is convertible, as such
Conversion Price may be adjusted pursuant to Section 6. The initial conversion
price shall be $20.8333 (equivalent to a conversion rate of one (1) share of
Common Stock for each share of Series 2 Preferred Stock).
"Current Market Price" of publicly traded Common Stock or any other
class of capital stock or other security of the Corporation or any other issuer
for any day shall mean the last reported sales price on such day, regular way,
or, if no sale takes place on such day, the average of the reported closing bid
and asked prices on such day, regular way, in either case as reported on the New
York Stock Exchange ("NYSE") or, if such security is not listed or admitted for
trading on the NYSE, on the principal national securities exchange on which such
security is listed or admitted for trading or, if not listed or admitted for
trading on any national securities exchange, on the National Market System of
the National Association of Securities Dealers, Inc. Automated Quotations System
("NASDAQ") or, if such security is not quoted on such National Market System,
the average of the closing bid and asked prices on such day in the
over-the-counter market as reported by NASDAQ or, if bid and asked prices for
such security on such day shall not have been reported through NASDAQ, as
reported by the National Quotation Bureau, Incorporated, 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 the Corporation for such purpose, or, if no such prices are furnished, the
fair market value of the security as determined in good faith by the Board.
"Dividend Payment Date" shall mean the date on which any cash
dividend is paid on the Common Stock.
A-2.2
"Dividend Periods" shall mean quarterly dividend periods commencing
on April 1, July 1, October 1 and January 1 of each year and ending on and
including the day preceding the first day of the next succeeding Dividend Period
(other than the initial Dividend Period, which shall commence on the Issue
Date).
"Fully Junior Stock" shall mean any class or series of capital stock
of the Corporation now or hereafter issued and outstanding over which the Series
2 Preferred Stock has preference or priority in both (i) the payment of
dividends and (ii) the distribution of assets on any liquidation, dissolution or
winding up of the Corporation.
"Funds from Operations per Share" shall mean the amount determined
by dividing (a) the net income of the Corporation before extraordinary items
(determined in accordance with generally accepted accounting principles) as
reported by the Corporation in its year-end audited financial statements, minus
gains (or losses) from debt restructuring and sales of property, plus real
property depreciation and amortization and amortization of capitalized leasing
expenses and tenant allowances or improvements (to the extent such allowances or
improvements are capital items), and after adjustments for unconsolidated
partnerships, corporations and joint ventures (such items of depreciation and
amortization and such gains, losses and adjustments as determined in accordance
with generally accepted accounting principles and as reported by the Corporation
in its year-end audited financial statements) by (b) the weighted average number
of shares of common stock of the Corporation outstanding as reported by the
Corporation in its year-end audited financial statements. Adjustments for
unconsolidated partnerships, corporations and joint ventures shall be calculated
to reflect Funds from Operations per Share on the same basis. If the Corporation
shall after the Issue Date (A) pay a dividend or make a distribution in shares
of common stock on its outstanding shares of common stock, (B) subdivide its
outstanding shares of common stock into a greater number of shares, (C) combine
its outstanding Common Stock into a smaller number of shares or (D) issue any
shares of common stock by reclassification of its outstanding shares of common
stock, the Funds from Operations per Share shall be appropriately adjusted to
give effect to such events.
"Issue Date" shall mean the first date on which the Series 2
Preferred Stock is issued.
"Junior Stock" shall mean the Common Stock and any other class or
series of capital stock of the Corporation now or hereafter issued and
outstanding over which the Series 2 Preferred Stock has preference or priority
in the payment of dividends or in the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
"Minimum Amount" shall mean the greater of (A) $0.2083 and (B) 65%
of the highest amount of Funds from Operations per Share for any preceding
fiscal year, beginning with the fiscal year ending December 31, 1996, divided by
four.
"Non-Electing Share" shall have the meaning set forth in paragraph
(e) of Section 6 hereof.
"Parity Stock" shall have the meaning set forth in paragraph (b) of
Section 8.
A-2.3
"Person" shall mean any individual, firm, partnership, corporation,
or trust or other entity, and shall include any successor (by merger or
otherwise) of such entity.
"Securities" and "Security" shall have the meanings set forth in
paragraph (d)(iv) of Section 6 hereof.
"Series 1 Preferred Stock" shall mean the Series 1 Cumulative
Convertible Redeemable Preferred Stock of the Corporation, par value $0.01 per
share.
"Series 2 Preferred Stock" shall have the meaning set forth in
Article FIRST hereof.
"set apart for payment" shall be deemed to include, without any
action other than the following, the recording by the Corporation in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of dividends or other distribution by the Board, the
allocation of funds to be so paid on any series or class of capital stock of the
Corporation; provided, however, that if any funds for any class or series of
Junior Stock, Fully Junior Stock or any class or series of shares of capital
stock ranking on a parity with the Series 2 Preferred Stock as to the payment of
dividends are placed in a separate account of the Corporation or delivered to a
disbursing, paying or other similar agent, then "set apart for payment" with
respect to the Series 2 Preferred Stock shall mean placing such funds in a
separate account or delivering such funds to a disbursing, paying or other
similar agent.
"Transaction" shall have the meaning set forth in paragraph (e) of
Section 6 hereof.
"Transfer Agent" means initially the Corporation and shall include
such other agent or agents of the Corporation as may be designated by the Board
or their designee as the transfer agent for the Series 2 Preferred Stock.
"Voting Preferred Stock" shall have the meaning set forth in Section
9 hereof.
Section 3. Dividends.
(a) The holders of Series 2 Preferred Stock shall be entitled
to receive, when, as and if declared by the Board out of funds legally available
for that purpose, quarterly dividends payable in cash in an amount per share
equal to the greater of (i) the Minimum Amount or (ii) an amount equal to the
dividend (determined on each Dividend Payment Date) on a share of Common Stock,
or portion thereof, into which a share of Series 2 Preferred Stock is
convertible. For purposes of clause (ii) of the preceding sentence, such
dividends shall equal the number of shares of Common Stock, or portion thereof,
into which a share of Series 2 Preferred Stock is convertible, multiplied by the
most current quarterly dividend paid or payable on a share of Common Stock on or
before the applicable Dividend Payment Date. Dividends on the Series 2 Preferred
Stock shall begin to accrue and shall be fully cumulative from the Issue Date,
whether or not for any Dividend Period or Periods there shall be funds of the
Corporation legally available for the payment of such dividends, and shall be
payable quarterly, when, as and if declared by the Board, in arrears on Dividend
Payment Dates, commencing on the first Dividend Payment Date after the Issue
Date. Accrued and unpaid
A-2.4
dividends on shares of Series 2 Preferred Stock shall include any accrued and
unpaid dividends on the Series B Cumulative Convertible Redeemable Preferred
Shares of Beneficial Interest of Pacific Retail Trust which are exchanged by
operation of law into such shares of Series 2 Preferred Stock pursuant to the
merger of Pacific Retail Trust into the Corporation. Each dividend on the Series
2 Preferred Stock shall be payable to the holders of record of Series 2
Preferred Stock, as they appear on the stock records of the Corporation at the
close of business on such record dates as shall be fixed by the Board. Accrued
and unpaid dividends for any past Dividend Periods may be declared and paid at
any time and for such interim periods, without reference to any regular Dividend
Payment Date, to holders of record on such date as may be fixed by the Board.
(b) The amount of dividends payable for any dividend period
shorter or longer than a full Dividend Period, on the Series 2 Preferred Stock
shall be computed on the basis of twelve 30-day months and a 360-day year.
Holders of Series 2 Preferred Stock shall not be entitled to any dividends,
whether payable in cash, property or stock, in excess of current and cumulative
but unpaid dividends, as herein provided, on the Series 2 Preferred Stock. No
interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on the Series 2 Preferred Stock that may be in
arrears.
(c) So long as any Series 2 Preferred Stock is outstanding, no
dividends, except as described in the immediately following sentence, shall be
declared or paid or set apart for payment on any class or series of Parity Stock
for any period unless full cumulative dividends have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for such payment on the Series 2 Preferred Stock for all Dividend
Periods terminating on or prior to the Dividend Payment Date on such class or
series of Parity Stock. When dividends are not paid in full or a sum sufficient
for such payment is not set apart, as aforesaid, all dividends declared upon
Series 2 Preferred Stock and all dividends declared upon any other class or
series of Parity Stock shall be declared ratably in proportion to the respective
amounts of dividends accumulated and unpaid on the Series 2 Preferred Stock and
accumulated and unpaid on such Parity Stock.
(d) So long as any Series 2 Preferred Stock is outstanding, no
dividends (other than dividends or distributions paid solely in shares of, or
options, warrants or rights to subscribe for or purchase shares of, Fully Junior
Stock) shall be declared or paid or set apart for payment or other distribution
declared or made upon Junior Stock, nor shall any Junior Stock be redeemed,
purchased or otherwise acquired (other than a redemption, purchase or other
acquisition of Common Stock made for purposes of an employee incentive or
benefit plan of the Corporation or any subsidiary) for any consideration (or any
moneys be paid to or made available for a sinking fund for the redemption of any
shares of any such stock) by the Corporation, directly or indirectly (except by
conversion into or exchange for Fully Junior Stock), unless in each case (i) the
full cumulative dividends on all outstanding Series 2 Preferred Stock and any
other Parity Stock of the Corporation shall have been paid or declared and set
apart for payment for all past Dividend Periods with respect to the Series 2
Preferred Stock and all past dividend periods with respect to such Parity Stock
and (ii) sufficient funds shall have been paid or declared and set apart for the
payment of the dividend for the current
A-2.5
Dividend Period with respect to the Series 2 Preferred Stock and the current
dividend period with respect to such Parity Stock.
Section 4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, before any payment or
distribution of the assets of the Corporation (whether capital or surplus) shall
be made to or set apart for payment to the holders of Junior Stock or Fully
Junior Stock, the holders of the Series 2 Preferred Stock shall be entitled to
receive $20.8333 per share of Series 2 Preferred Stock plus an amount equal to
all dividends declared but unpaid thereon to the date of final distribution to
such holders; but such holders shall not be entitled to any further payment. If,
upon any liquidation, dissolution or winding up of the Corporation, the assets
of the Corporation, or proceeds thereof, distributable among the holders of the
Series 2 Preferred Stock shall be insufficient to pay in full the preferential
amount aforesaid and liquidating payments on any other shares of any class or
series of Parity Stock, then such assets, or the proceeds thereof, shall be
distributed among the holders of Series 2 Preferred Stock and any such other
Parity Stock ratably in accordance with the respective amounts that would be
payable on such Series 2 Preferred Stock and any such other Parity Stock if all
amounts payable thereon were paid in full. For the purposes of this Section 4,
(i) a consolidation or merger of the Corporation with one or more Persons, (ii)
a sale or transfer of all or substantially all of the Corporation's assets or
(iii) a statutory share exchange shall not be deemed to be a liquidation,
dissolution or winding up, voluntary or involuntary, of the Corporation.
(b) Subject to the rights of the holders of shares of any
series or class or classes of shares of capital stock ranking on a parity with
or prior to the Series 2 Preferred Stock upon liquidation, dissolution or
winding up, upon any liquidation, dissolution or winding up of the Corporation,
after payment shall have been made in full to the holders of the Series 2
Preferred Stock, as provided in this Section 4, any other series or class or
classes of Junior Stock or Fully Junior Stock shall, subject to the respective
terms and provisions (if any) applying thereto, be entitled to receive any and
all assets remaining to be paid or distributed, and the holders of the Series 2
Preferred Stock shall not be entitled to share therein.
Section 5. Redemption at the Option of the Corporation.
(a) The Series 2 Preferred Stock shall not be redeemable by the
Corporation prior to October 20, 2010. On and after October 20, 2010, the
Corporation, at its option, may redeem the Series 2 Preferred Stock, in whole at
any time or from time to time in part, at the option of the Corporation at a
redemption price of $20.8333 per share of Series 2 Preferred Stock, plus the
amounts indicated in Section 5(b).
(b) Upon any redemption of Series 2 Preferred Stock pursuant to
this Section 5, the Corporation shall pay in full any and all accrued and unpaid
dividends (without interest or sum of money in lieu of interest) for any and all
Dividend Periods ending on or prior to the Call Date. If the Call Date falls
after a dividend payment record date and prior to the corresponding Dividend
Payment Date, then each holder of Series 2 Preferred Stock at the
A-2.6
close of business on such dividend payment record date shall be entitled to the
dividend payable on such shares on the corresponding dividend payment date
notwithstanding the redemption of such shares before such Dividend Payment Date.
(c) If full cumulative dividends on the Series 2 Preferred
Stock and any other class or series of Parity Stock of the Corporation have not
been paid or declared and set apart for payment, the Series 2 Preferred Stock
may not be redeemed under this Section 5 in part and the Corporation may not
purchase or acquire shares of Series 2 Preferred Stock, otherwise than pursuant
to a voluntary purchase or exchange offer made on the same terms to all holders
of Series 2 Preferred Stock.
(d) Notice of the redemption of any Series 2 Preferred Stock
under this Section 5 shall be mailed by first-class mail to each holder of
record of Series 2 Preferred Stock to be redeemed at the address of each such
holder as shown on the Corporation's record, not less than 30 nor more than 90
days prior to the Call Date. Neither the failure to mail any notice required by
this paragraph (d), nor any defect therein or in the mailing thereof, to any
particular holder, shall affect the sufficiency of the notice or the validity of
the proceedings for redemption with respect to the other holders. Any notice
which was mailed in the manner herein provided shall be conclusively presumed to
have been duly given on the date mailed whether or not the holder receives the
notice. Each such mailed notice shall state, as appropriate: (1) the Call Date;
(2) the number of shares of Series 2 Preferred Stock to be redeemed and, if
fewer than all the shares held by such holder are to be redeemed, the number of
such shares to be redeemed from such holder; (3) the place or places at which
certificates for such shares are to be surrendered; and (4) that dividends on
the shares to be redeemed shall cease to accrue on such Call Date except as
otherwise provided herein. Notice having been mailed as aforesaid, from and
after the Call Date (unless the Corporation shall fail to make available an
amount of cash necessary to effect such redemption), (i) except as otherwise
provided herein, dividends on the Series 2 Preferred Stock so called for
redemption shall cease to accrue, (ii) said shares shall no longer be deemed to
be outstanding and (iii) all rights of the holders thereof as holders of Series
2 Preferred Stock of the Corporation shall cease (except the rights to convert
and to receive cash payable upon such redemption, without interest thereon, upon
surrender and endorsement of their certificates if so required and to receive
any dividends payable thereon). The Corporation's obligation to provide cash in
accordance with the preceding sentence shall be deemed fulfilled if, on or
before the Call Date, the Corporation shall deposit with a bank or trust company
(which may be an affiliate of the Corporation) that has an office in the Borough
of Manhattan, City of New York, and that has, or is an affiliate of a bank or
trust company that has, capital and surplus of at least $50,000,000, sufficient
cash necessary for such redemption, in trust, with irrevocable instructions that
such cash be applied to the redemption of the Series 2 Preferred Stock so called
for redemption. No interest shall accrue for the benefit of the holders of
Series 2 Preferred Stock to be redeemed on any cash so set aside by the
Corporation. Subject to applicable escheat laws and other unclaimed property
laws, any such cash unclaimed at the end of two years from the Call Date shall
revert to the general funds of the Corporation, after which reversion the
holders of such shares so called for redemption shall look only to the general
funds of the Corporation for the payment of such
A-2.7
cash. Notwithstanding the above, at any time after such redemption notice is
received and on or prior to the Call Date, any holder may exercise its
conversion rights under Section 6 below.
As promptly as practicable after the surrender in accordance with
said notice of the certificates for any such shares so redeemed (properly
endorsed or assigned for transfer, if the Corporation shall so require and if
the notice shall so state), such shares shall be exchanged for any cash
(including accumulated and unpaid dividends but without interest thereon) for
which such shares have been redeemed. If fewer than all the outstanding shares
of Series 2 Preferred Stock are to be redeemed, shares to be redeemed shall be
selected by the Corporation from outstanding Series 2 Preferred Stock not
previously called for redemption by lot or pro rata (as nearly as may be) or by
any other method determined by the Corporation in its sole discretion to be
equitable. If fewer than all shares of the Series 2 Preferred Stock represented
by any certificate are redeemed, then new certificates representing the
unredeemed shares shall be issued without cost to the holder thereof.
Section 6. Conversion. Holders of Series 2 Preferred Stock shall have
the right, at any time and from time to time, to convert all or a portion of
such shares into Common Stock, as follows:
(a) Subject to and upon compliance with the provisions of this
Section 6, a holder of Series 2 Preferred Stock shall have the right, at such
holder's option, at any time to convert each share of Series 2 Preferred Stock
into the number of fully paid and non-assessable shares of Common Stock obtained
by dividing the aggregate liquidation preference of such shares by the
Conversion Price (as in effect at the time and on the date provided for in the
last paragraph of paragraph (b) of this Section 6) by surrendering such shares
to be converted, such surrender to be made in the manner provided in paragraph
(b) of this Section 6.
(b) In order to exercise the conversion right, each holder of
shares of Series 2 Preferred Stock to be converted shall surrender the
certificate representing such shares, duly endorsed or assigned to the
Corporation or in blank, at the office of the Transfer Agent, accompanied by
written notice to the Corporation that the holder thereof elects to convert such
Series 2 Preferred Stock. Unless the shares issuable on conversion are to be
issued in the same name as the name in which such Series 2 Preferred Stock is
registered, each share surrendered for conversion shall be accompanied by
instruments of transfer, in form satisfactory to the Corporation, duly executed
by the holder or such holder's duly authorized attorney and an amount sufficient
to pay any transfer or similar tax (or evidence reasonably satisfactory to the
Corporation demonstrating that such taxes have been paid).
Holders of Series 2 Preferred Stock at the close of business on a
dividend payment record date shall be entitled to receive the dividend payable
on such shares on the corresponding dividend payment date notwithstanding the
conversion thereof following such dividend payment record date and on or prior
to such dividend payment date. In no event shall a holder of Series 2 Preferred
Stock be entitled to receive a dividend payment on Common Stock issued or
issuable upon conversion of Series 2 Preferred Stock if such holder is entitled
to receive a dividend in respect of the Series 2 Preferred Stock surrendered for
conversion.
A-2.8
The Corporation shall make no payment or allowance for unpaid dividends, whether
or not in arrears, on converted shares or for dividends on the Common Stock
issued upon such conversion.
As promptly as practicable after the surrender of certificates for
Series 2 Preferred Stock as aforesaid, the Corporation shall issue and shall
deliver at such office to such holder, or such holder's written order, a
certificate or certificates for the number of full shares of Common Stock
issuable upon the conversion of such shares in accordance with provisions of
this Section 6, and any fractional interest in respect of a share of Common
Stock arising upon such conversion shall be settled as provided in paragraph (c)
of this Section 6.
Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which the certificates for Series
2 Preferred Stock shall have been surrendered and such notice received by the
Corporation as aforesaid, and the person or persons in whose name or names any
certificate or certificates for Common Stock shall be issuable upon such
conversion shall be deemed to have become the holder or holders of record of the
shares represented thereby at such time on such date and such conversion shall
be at the Conversion Price in effect at such time on such date unless the stock
transfer books of the Corporation shall be closed on that date, in which event
such person or persons shall be deemed to have become such holder or holders of
record at the close of business on the next succeeding day on which such stock
transfer books are open, but such conversion shall be at the Conversion Price in
effect on the date on which such shares shall have been surrendered and such
notice received by the Corporation.
(c) No fractional shares or scrip representing fractions of a
share of Common Stock shall be issued upon conversion of the Series 2 Preferred
Stock. Instead of any fractional interest in a share of Common Stock that would
otherwise be deliverable upon the conversion of a share of Series 2 Preferred
Stock, the Corporation shall pay to the holder of such share an amount in cash
based upon the Current Market Price of Common Stock on the Business Day
immediately preceding the date of conversion. If more than one share shall be
surrendered for conversion at one time by the same holder, the number of full
shares of Common Stock issuable upon conversion thereof shall be computed on the
basis of the aggregate number of Series 2 Preferred Stock so surrendered.
(d) The Conversion Price shall be adjusted from time to time as
follows:
(i) If the Corporation shall after the Issue Date (A) pay
a dividend or make a distribution in shares of Common Stock on its
Common Stock, (B) subdivide its outstanding shares of Common Stock into
a greater number of shares, (C) combine its outstanding shares of Common
Stock into a smaller number of shares or (D) issue any shares of Common
Stock by reclassification of its Common Stock, the Conversion Price in
effect at the opening of business on the day following the date fixed
for the determination of shareholders entitled to receive such dividend
or distribution or at the opening of business on the Business Day next
following the day on which such subdivision, combination or
reclassification becomes effective, as the case may be, shall
A-2.9
be adjusted so that the holder of any shares of Series 2 Preferred Stock
thereafter surrendered for conversion shall be entitled to receive the
number of shares of Common Stock that such holder would have owned or
have been entitled to receive after the happening of any of the events
described above as if such shares of Series 2 Preferred Stock had been
converted immediately prior to the record date in the case of a dividend
or distribution or the effective date in the case of a subdivision,
combination or reclassification. An adjustment made pursuant to this
subparagraph (i) shall become effective immediately after the opening of
business on the Business Day next following the record date (except as
provided in paragraph (g) below) in the case of a dividend or
distribution and shall become effective immediately after the opening
of business on the Business Day next following the effective date in the
case of a subdivision, combination or reclassification.
(ii) If the Corporation shall issue after the Issue Date
rights, options or warrants to subscribe for or purchase Common Stock,
or to subscribe for or purchase any security convertible into Common
Stock, and the price per share for which Common Stock is issuable upon
exercise of such rights, options or warrants, or upon the conversion or
exchange of such convertible securities, is less than the lesser of the
Conversion Price then in effect and the Current Market Price per share
of Common Stock on the date such rights, options or warrants are issued,
then the Conversion Price in effect at the opening of business on the
Business Day next following such issue date shall be adjusted to equal
the price determined by multiplying (A) the Conversion Price in effect
immediately prior to the opening of business on the date for such
issuance by (B) a fraction, the numerator of which shall be the sum of
(I) the number of shares of Common Stock outstanding immediately prior
to such issuance and (II) the number of shares that the aggregate
proceeds to the Corporation from the exercise of such rights, options or
warrants for Common Stock, or in the case of rights to purchase
convertible securities, the aggregate proceeds from the exercise of such
rights, options or warrants and the subsequent conversion of such
convertible securities, would purchase at such Conversion Price or
Current Market Price, as applicable, and the denominator of which shall
be the sum of (A) the number of shares of Common Stock outstanding
immediately prior to such issuance and (B) the number of additional
shares of Common Stock offered for subscription or purchase pursuant to
such rights, options or warrants. Such adjustment shall become effective
immediately after the opening of business on the day next following such
issue date (except as provided in paragraph (g) below). In determining
whether any rights, options or warrants entitle the holders of Common
Stock to subscribe for or purchase Common Stock or any security
convertible into or exchangeable for Common Stock at less than such
Conversion Price or Current Market Price, as applicable, there shall be
taken into account any consideration received by the Corporation upon
issuance and upon exercise of such rights, options or warrants, and in
the case of rights, options or warrants to subscribe for or purchase
convertible securities, upon the subsequent conversion of such
securities, the value of such consideration, if other than cash, to be
determined in good faith by the Board. In the event that the securities
referenced in this subparagraph (ii) are only issued to all holders of
Common Stock, no adjustment shall be made to the Conversion Price under
A-2.10
this subparagraph (ii) if the Corporation shall issue to all holders of
Series 2 Preferred Stock, the same number of rights, options or
warrants to subscribe for or purchase Common Stock or any security
convertible into or exchangeable for Common Stock, as those issued to
holders of Common Stock, based upon the number of shares of Common Stock
into which each share of Series 2 Preferred Stock is then convertible.
(iii) If the Corporation shall issue after the Issue Date
any shares of capital stock or security convertible or exchangeable for
Common Stock (excluding rights, options or warrants referred to in
subparagraph (ii) above) and the price per share for which Common Stock
is issuable upon the conversion or exchange of such convertible or
exchangeable securities is less than the lesser of the Conversion Price
then in effect and the Current Market Price per share of Common Stock on
the date such convertible or exchangeable securities are issued, then
the Conversion Price in effect at the opening of business on the
Business Day next following such issue date shall be adjusted to equal
the price determined by multiplying (A) the Conversion Price in effect
immediately prior to the opening of business on the Business Day next
following the issue date by (B) a fraction, the numerator of which shall
be the sum of (I) the number of shares of Common Stock outstanding on
the close of business on the Business Day immediately preceding the
issue date and (II) the number of shares of Common Stock that the
aggregate proceeds to the Corporation from the conversion into or in
exchange for Common Stock would purchase at such Conversion Price or
Current Market Price, as applicable, and the denominator of which shall
be the sum of (A) the number of shares of Common Stock outstanding on
the close of business on the Business Day immediately preceding the
issue date and (B) the number of additional shares of Common Stock
issuable upon conversion or exchange of such convertible or exchangeable
securities. Such adjustment shall become effective immediately after the
opening of business on the day next following such issue date (except as
provided in paragraph (g) below). In determining whether any securities
are convertible for or exchangeable into Common Stock at less than
such Conversion Price or Current Market Price, as applicable, there
shall be taken into account any consideration received by the
Corporation upon issuance and upon conversion or exchange of such
convertible or exchangeable securities, the value of such consideration,
if other than cash, to be determined in good faith by the Board.
(iv) If the Corporation shall distribute to all holders of
its Common Stock any shares of capital stock of the Corporation (other
than Common Stock) or evidence of its indebtedness or assets (excluding
cash dividends or distributions) or rights, options or warrants to
subscribe for or purchase any of its securities (excluding those rights,
options and warrants referred to in subparagraph (ii) above and
excluding those convertible or exchangeable securities referred to in
subparagraph (iii) above (any of the foregoing being hereinafter in this
subparagraph (iv) collectively called the "Securities" and individually
a "Security"), then in each such case the Conversion Price shall be
adjusted so that it shall equal the price determined by multiplying (A)
the Conversion Price in effect immediately prior to the close of
business on the date fixed for the determination of shareholders
entitled to receive such distribution by (B) a
A-2.11
fraction, the numerator of which shall be the lesser of the Conversion
Price then in effect and the Current Market Price per share of Common
Stock on the record date mentioned below less the then fair market value
(as determined in good faith by the Board) of the portion of the shares
of capital stock or assets or evidences of indebtedness so distributed
or of such rights, options or warrants applicable to one share of Common
Stock, and the denominator of which shall be the lesser of the
Conversion Price then in effect and the Current Market Price per share
of Common Stock on the record date mentioned below. Such adjustment
shall become effective immediately at the opening of business on the
Business Day next following (except as provided in paragraph (g) below)
the record date for the determination of shareholders entitled to
receive such distribution. For the purposes of this clause (iv), the
distribution of a Security, which is distributed not only to the holders
of the Common Stock on the date fixed for the determination of
shareholders entitled to such distribution of such Security, but also is
distributed with each share of Common Stock delivered to a Person
converting Series 2 Preferred Stock after such determination date, shall
not require an adjustment of the Conversion Price pursuant to this
clause (iv); provided that on the date, if any, on which a Person
converting a share of Series 2 Preferred Stock would no longer be
entitled to receive such Security with a share of Common Stock (other
than as a result of the termination of all such Securities), a
distribution of such Securities shall be deemed to have occurred and the
Conversion Price shall be adjusted as provided in this clause (iv) (and
such day shall be deemed to be "the date fixed for the determination of
the shareholders entitled to receive such distribution" and "the record
date" within the meaning of the two preceding sentences).
(v) No adjustment in the Conversion Price shall be
required unless such adjustment would require a cumulative increase or
decrease of at least 1% in such price; provided, however, that any
adjustments that by reason of this subparagraph (v) are not required to
be made shall be carried forward and taken into account in any
subsequent adjustment until made; and provided, further, that any
adjustment shall be required and made in accordance with the provisions
of this Section 6 (other than this subparagraph (v)) not later than such
time as may be required in order to preserve the tax-free nature of a
distribution to the holders of Common Stock. Notwithstanding any other
provisions of this Section 6, the Corporation shall not be required to
make any adjustment of the Conversion Price for the issuance of any
Common Stock pursuant to (A) any plan providing for the reinvestment of
dividends or interest payable on securities of the Corporation and the
investment of additional optional amounts in Common Stock under such
plan or (B) any right, option or warrant to acquire Common Stock granted
to any employee (as such term is defined in General Instruction A to
Form S-8 under the Securities Act) of the Corporation under a plan
providing for the granting of such securities to employees; provided,
however, that such plan is approved by the shareholders and the
aggregate amount of Common Stock issuable under the rights, options and
warrants granted under such plan shall not exceed 20% of the shares of
Common Stock issued and outstanding on the date such plan is approved by
shareholders. In addition, the Corporation shall not be required to make
any adjustment of the Conversion Price for the issuance of any Common
Stock or any other
A-2.12
class or series of shares of capital stock pursuant to the terms of that
certain Shareholders' Agreement among Pacific Retail Trust (to which the
Corporation is successor by merger), Security Capital Holdings S.A.
and Opportunity Capital Partners Limited Partnership. All calculations
under this Section 6 shall be made to the nearest cent (with $.005 being
rounded upward) or to the nearest one-tenth of a share (with .05 of a
share being rounded upward), as the case may be. Anything in this
paragraph (d) to the contrary notwithstanding, the Corporation shall be
entitled, to the extent permitted by law, to make such reductions in the
Conversion Price, in addition to those required by this paragraph (d),
as it in its discretion shall determine to be advisable in order that
any share dividends, subdivision of shares, reclassification or
combination of shares, distribution of rights, options or warrants to
purchase stock or securities, or a distribution of other assets (other
than cash dividends) hereafter made by the Corporation to its
shareholders shall not be taxable.
(e) If the Corporation shall be a party to any transaction
(including without limitation a merger, consolidation, statutory share exchange,
self tender offer for all or substantially all Common Stock, sale of all or
substantially all of the Corporation's assets or recapitalization of the Common
Stock and excluding any transaction as to which subparagraph (d)(i) of this
Section 6 applies) (each of the foregoing being referred to herein as a
"Transaction"), in each case as a result of which all or substantially all
shares of Common Stock are converted into the right to receive stock, securities
or other property (including cash or any combination thereof) of another Person,
each share of Series 2 Preferred Stock, which is not converted into the right to
receive stock, securities or other property of such Person prior to such
Transaction (and each share of Series 2 Preferred Stock issuable after such
Transaction upon conversion of securities convertible into Series 2 Preferred
Stock), shall thereafter be convertible into the kind and amount of shares of
stock, securities and other property (including cash or any combination thereof)
receivable upon the consummation of such Transaction by a holder of that number
of shares of Common Stock into which one share of Series 2 Preferred Stock was
convertible immediately prior to such Transaction, assuming such holder of
Common Stock (i) is not a Person with which the Corporation consolidated or into
which the Corporation merged or which merged into the Corporation or to which
such sale or transfer was made, as the case may be ("Constituent Person"), or an
affiliate of a Constituent Person and (ii) failed to exercise his rights of
election, if any, as to the kind or amount of stock, securities and other
property (including cash) receivable upon such Transaction (provided that if the
kind or amount of stock, securities and other property (including cash)
receivable upon such Transaction is not the same for each share of Common Stock
held immediately prior to such Transaction by other than a Constituent Person or
an affiliate thereof and in respect of which such rights of election shall not
have been exercised ("Non-Electing Share"), then for the purpose of this
paragraph (e) the kind and amount of stock, securities and other property
(including cash) receivable upon such Transaction by each Non-Electing Share
shall be deemed to be the kind and amount so receivable per share by a plurality
of the Non-Electing Shares). The Corporation shall not be a party to any
Transaction unless the terms of such Transaction are consistent with the
provisions of this paragraph (e), and it shall not consent or agree to the
occurrence of any Transaction until the Corporation has entered into an
agreement with the successor or purchasing entity, as the case may be, for the
A-2.13
benefit of the holders of the Series 2 Preferred Stock (and securities
convertible into Series 2 Preferred Stock) that will contain provisions enabling
the holders of the Series 2 Preferred Stock that remain outstanding (or are
issuable upon conversion of securities convertible into Series 2 Preferred
Stock) after such Transaction to convert into the consideration received by
holders of Common Stock at the Conversion Price in effect immediately prior to
such Transaction. The provisions of this paragraph (e) shall similarly apply to
successive Transactions.
(f) Whenever the Conversion Price is adjusted as herein
provided, the Corporation shall promptly mail notice of such adjustment of the
Conversion Price to each holder of Series 2 Preferred Stock at such holder's
last address as shown on the share records of the Corporation.
(g) In any case in which paragraph (d) of this Section 6
provides that an adjustment shall become effective on the day next following the
record date for an event, the Corporation may defer until the occurrence of such
event (A) issuing to the holder of any Series 2 Preferred Stock converted after
such record date and before the occurrence of such event the additional shares
of Common Stock issuable upon such conversion by reason of the adjustment
required by such event over and above the shares of Common Stock issuable upon
such conversion before giving effect to such adjustment and (B) paying to such
holder any amount of cash in lieu of any fraction pursuant to paragraph (c) of
this Section 6.
(h) There shall be no adjustment of the Conversion Price in
case of the issuance of any shares of capital stock of the Corporation in a
reorganization, acquisition or other similar transaction except as specifically
set forth in this Section 6. If any action or transaction would require
adjustment of the Conversion Price pursuant to more than one paragraph of this
Section 6, only one adjustment shall be made and such adjustment shall be the
adjustment that yields the highest absolute value.
(i) The Corporation covenants that it will at all times reserve
and keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued Common Stock, for the purpose of effecting conversion of
the Series 2 Preferred Stock, the full number of shares of Common Stock
deliverable upon the conversion of all outstanding Series 2 Preferred Stock not
theretofore converted. For purposes of this paragraph (i), the number of shares
of Common Stock that shall be deliverable upon the conversion of all outstanding
Series 2 Preferred Stock shall be computed as if at the time of computation all
such outstanding shares were held by a single holder.
The Corporation covenants that any shares of Common Stock issued
upon conversion of the Series 2 Preferred Stock shall be validly issued, fully
paid and non-assessable. Before taking any action that would cause an adjustment
reducing the Conversion Price below the then-par value of the Common Stock
deliverable upon conversion of the Series 2 Preferred Stock, the Corporation
will take any corporate action that, in the opinion of its counsel, may be
necessary in order that the Corporation may validly and legally issue fully paid
and non-assessable shares of Common Stock at such adjusted Conversion Price.
A-2.14
Prior to the delivery of any securities that the Corporation shall
be obligated to deliver upon conversion of the Series 2 Preferred Stock, the
Corporation shall endeavor to comply with all federal and state laws and
regulations thereunder requiring the registration of such securities with, or
any approval of or consent to the delivery thereof by, any governmental
authority.
(j) The Corporation will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery of
Common Stock or other securities or property on conversion of the Series 2
Preferred Stock pursuant hereto; provided, however, that the Corporation shall
not be required to pay any tax that may be payable in respect of any transfer
involved in the issue or delivery of Common Stock or other securities or
property in a name other than that of the holder of the Series 2 Preferred Stock
to be converted, and no such issue or delivery shall be made unless and until
the person requesting such issue or delivery has paid to the Corporation the
amount of any such tax or established, to the reasonable satisfaction of the
Corporation, that such tax has been paid.
Section 7. Shares to Be Retired. All shares of Series 2 Preferred
Stock which shall have been issued and reacquired in any manner by the
Corporation shall be restored to the status of authorized but unissued shares of
Preferred Stock of the Corporation, without designation as to class or series.
Section 8. Ranking. Any class or series of shares of capital stock of
the Corporation shall be deemed to rank:
(a) prior to the Series 2 Preferred Stock, as to the payment of
dividends and as to distribution of assets upon liquidation, dissolution or
winding up, if the holders of such class or series shall be entitled to the
receipt of dividends or of amounts distributable upon liquidation, dissolution
or winding up, as the case may be, in preference or priority to the holders of
Series 2 Preferred Stock;
(b) on a parity with the Series 2 Preferred Stock, as to the
payment of dividends and as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the dividend rates, dividend payment
dates or liquidation prices per share thereof shall be different from those of
the Series 2 Preferred Stock, if the holders of such class or series and the
Series 2 Preferred Stock shall be entitled to the receipt of dividends and of
amounts distributable upon liquidation, dissolution or winding up in proportion
to their respective amounts of accrued and unpaid dividends per share or
liquidation preferences, without preference or priority one over the other
("Parity Stock");
(c) junior to the Series 2 Preferred Stock, as to the payment
of dividends or as to the distribution of assets upon liquidation, dissolution
or winding up, if such class or series shall be Junior Stock; and
(d) junior to the Series 2 Preferred Stock, as to the payment
of dividends and as to the distribution of assets upon liquidation, dissolution
or winding up, if such class or series shall be Fully Junior Stock.
A-2.15
The Corporation's Series 1 Cumulative Convertible
Redeemable Preferred Stock and the Corporations 8.125% Series A Cumulative
Redeemable Preferred Stock shall constitute Parity Stock.
Section 9. Voting.
(a) Each issued and outstanding share of Series 2 Preferred
Stock shall entitle the holder thereof to the number of votes per share of
Common Stock into which such share of Series 2 Preferred Stock is convertible
(as of the close of business on the record date for determination of
shareholders entitled to vote on a matter) on all matters presented for a vote
of shareholders of the Corporation and, except as required by applicable law and
subject to the further provisions of this Section 9, the Series 2 Preferred
Stock shall be voted together with all issued and outstanding Common Stock and
Series 1 Preferred Stock voting as a single class.
(b) If and whenever twelve consecutive quarterly dividends
payable on the Series 2 Preferred Stock or any series or class of Parity Stock
shall be in arrears (which shall, with respect to any such quarterly dividend,
mean that any such dividend has not been paid in full), whether or not earned or
declared, the number of directors then constituting the Board shall be increased
by one and the holders of Series 2 Preferred Stock, together with the holders of
shares of every other series of Parity Stock, including the Series 1 Preferred
Stock (any such other series, the "Voting Preferred Stock"), voting as a single
class regardless of series, shall be entitled to elect, at a special meeting of
the holders of the Series 2 Preferred Stock and the Voting Preferred Stock
called as hereinafter provided, the additional director to serve on the Board.
Whenever all arrearages in dividends on the Series 2 Preferred Stock and the
Voting Preferred Stock then outstanding shall have been paid and dividends
thereon for the current quarterly dividend period shall have been paid or
declared and set apart for payment, then the right of the holders of the Series
2 Preferred Stock and the Voting Preferred Stock to elect such additional
director shall cease (but subject always to the same provision for the vesting
of such voting rights in the case of any similar future arrearages in twelve
quarterly dividends), and the terms of office of the person elected as director
by the holders of the Series 2 Preferred Stock and the Voting Preferred Stock
shall forthwith terminate and the number of members of the Board shall be
reduced accordingly. At any time after such voting power shall have been so
vested in the holders of Series 2 Preferred Stock and the Voting Preferred Stock
(or if any vacancy shall occur in respect of the director previously elected by
the holders of the Series 2 Preferred Stock and the Voting Preferred Stock), the
secretary of the Corporation shall call a special meeting of the holders of the
Series 2 Preferred Stock and of the Voting Preferred Stock for the election of
the director to be elected by them as herein provided, such call to be made by
notice similar to that provided in the Bylaws of the Corporation for a special
meeting of the shareholders or as required by law. If any such special meeting
required to be called as above provided shall not be called by the secretary
within 30 days after the end of the most recent Dividend Period during which the
right to elect such additional director arose or such vacancy occurred, then any
holder of Series 2 Preferred Stock may call such meeting, upon the notice
above provided, and for that purpose shall have access to the stock records of
the Corporation. The director elected at any such special meeting shall hold
office until the next
A-2.16
annual meeting of the shareholders or special meeting held in lieu thereof if
such office shall not have previously terminated as above provided.
(c) So long as any Series 2 Preferred Stock is outstanding, in
addition to any other vote or consent of shareholders required by law or by
the Charter, the affirmative vote of at least 66 2/3% of the votes entitled to
be cast by the holders of the Series 2 Preferred Stock, together with the
holders of Voting Preferred Stock, at the time outstanding, acting as a single
class regardless of series, given in person or by proxy, either in writing
without a meeting or by vote at any meeting called for the purpose, shall be
necessary for effecting or validating:
(i) Any amendment, alteration or repeal of any of the
provisions of the Charter or these Articles of Amendment that materially
and adversely affects the voting powers, rights or preferences of the
holders of the Series 2 Preferred Stock or the Voting Preferred Stock;
provided, however, that the amendment of the provisions of the Charter
so as to authorize or create or to increase the authorized amount of,
any Fully Junior Stock, Junior Stock that is not senior in any respect
to the Series 2 Preferred Stock, or any stock of any class ranking on a
parity with the Series 2 Preferred Stock or the Voting Preferred Stock
shall not be deemed to materially adversely affect the voting
powers, rights or preferences of the holders of Series 2 Preferred
Stock; and provided, further, that if any such amendment, alteration
or repeal would materially and adversely affect any voting powers,
rights or preferences of the Series 2 Preferred Stock or another
series of Voting Preferred Stock that are not enjoyed by some or all
of the other series otherwise entitled to vote in accordance
herewith, the affirmative vote of at least 66 2/3% of the votes
entitled to be cast by the holders of all series similarly affected,
similarly given, shall be required in lieu of the affirmative vote
of at least 66 2/3% of the votes entitled to be cast by the holders
of the Series 2 Preferred Stock and the Voting Preferred Stock
otherwise entitled to vote in accordance herewith; or
(ii) A share exchange that affects the Series 2 Preferred
Stock, a consolidation with or merger of the Corporation into another
Person, or a consolidation with or merger of another Person into the
Corporation, unless in each such case each share of Series 2
Preferred Stock (A) shall remain outstanding without a material and
adverse change to its terms and rights or (B) shall be converted
into or exchanged for convertible preferred stock of the surviving
entity having preferences, conversion or other rights, voting
powers, restrictions, limitations as to dividends, qualifications
and terms or conditions of redemption thereof identical to that of a
share of Series 2 Preferred Stock (except for changes that do not
materially and adversely affect the holders of the Series 2
Preferred Stock); or
(iii) The authorization or creation of, or the increase in
the authorized amount of, any shares of any class or any security
convertible into shares of any class ranking prior to the Series 2
Preferred Stock in the distribution of assets on any liquidation,
dissolution or winding up of the Corporation or in the payment of
dividends.
A-2.17
(d) For purposes of voting in respect to those matters referred
to in subparagraphs (b) and (c) of this Section 9, unless otherwise provided
under applicable law, each Series 2 Preferred Stock shall have one (1) vote per
share, except that when any other series of Preferred Stock shall have the right
to vote with the Series 2 Preferred Stock as a single class on any matter, then
the Series 2 Preferred Stock and such other series shall have with respect to
such matters one (1) vote per $20.8333 of stated liquidation preference. Except
as otherwise required by applicable law or as set forth herein, the Series 2
Preferred Stock shall not have any relative, participating, optional or other
special voting rights and powers other than as set forth herein, and the consent
of the holders thereof shall not be required for the taking of any corporate
action.
Section 10. Record Holders. The Corporation and the Transfer Agent may
deem and treat the record holder of any shares of Series 2 Preferred Stock as
the true and lawful owner thereof for all purposes, and neither the Corporation
nor the Transfer Agent shall be affected by any notice to the contrary.
Section 11. Sinking Fund. The Series 2 Preferred Stock shall not be
entitled to the benefits of any retirement or sinking fund.
A-2.18
ADDENDUM 3 TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
AMENDING AND RESTATING THE DESIGNATION OF THE PREFERENCES,
RIGHTS AND LIMITATIONS OF 1,600,000 SHARES OF
8.125% SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation
Act ("FBCA"), Regency Realty Corporation, a Florida corporation (the
"Corporation"), does hereby certify that the Articles of Amendment to the
Articles of Incorporation of the Corporation Designating the Preferences, Rights
and Limitations of 1,600,000 shares of 8.125% Series A Cumulative Redeemable
Preferred Stock, as filed in the Office of the Florida Secretary of State on
June 24, 1998, shall be amended and restated in its entirety as follows:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Amended and Restated Articles
of Incorporation of the Corporation (the "Charter") and Section 607.0602 of the
FBCA, the Board of Directors of the Corporation (the "Board of Directors"), by
resolutions duly adopted on May 26, 1998 has classified 1,600,000 shares of the
authorized but unissued Preferred Stock par value $.01 per share ("Preferred
Stock") as a separate class of Preferred Stock, authorized the issuance of a
maximum of 1,600,000 shares of such class of Preferred Stock, set certain of the
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, terms and conditions of redemption
and other terms and conditions of such class of Preferred Stock, and pursuant to
the powers contained in the Bylaws of the Corporation and the FBCA, appointed a
committee (the "Committee") of the Board of Directors and delegated to the
Committee, to the fullest extent permitted by the FBCA and the Charter and
Bylaws of the Corporation, all powers of the Board of Directors with respect to
designating, and setting all other preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of redemption of, such
class of Preferred Stock determining the number of shares of such class of
Preferred Stock (not in excess of the aforesaid maximum number) to be issued and
the consideration and other terms and conditions upon which such shares of such
class of Preferred Stock are to be issued. Shareholder approval was not required
under the Charter with respect to such designation.
SECOND: Pursuant to the authority conferred upon the Committee as
aforesaid, the Committee has unanimously adopted resolutions designating the
aforesaid class of Preferred Stock as the "8.125% Series A Cumulative Redeemable
Preferred Stock," setting the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such 8.125% Series A
Cumulative Redeemable Preferred Stock (to the extent not set by the
A-3.1
Board of Directors in the resolutions referred to in Article FIRST of these
Articles of Amendment) and authorizing the issuance of up to 1,600,000 shares of
8.125% Series A Cumulative Redeemable Preferred Stock.
THIRD: Pursuant to the authority conferred upon the Committee, the
Committee has, by unanimous written consent dated September 29, 1999, adopted
resolutions amending and restating the preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications, terms
and conditions of redemption and other terms and conditions of such 8.125%
Series A Cumulative Redeemable Preferred Stock (to the extent not set by the
Board of Directors in the resolutions referred to in Article FIRST of these
Articles of Amendment). There are no shares of 8.125% Series A Cumulative
Redeemable Preferred Stock outstanding and, accordingly, no shareholder approval
was required. The class of Preferred Stock of the Corporation created by the
resolutions duly adopted by the Board of Directors of the Corporation and by the
Committee and referred to in Articles FIRST and SECOND of these Articles of
Amendment and amended hereby shall have the following designation, number of
shares, preferences, conversion and other rights, voting powers, restrictions
and limitation as to dividends, qualifications, terms and conditions of
redemption and other terms and conditions:
Section 1. Designation and Number. A series of Preferred Stock,
designated the "8.125% Series A Cumulative Redeemable Preferred Stock" (the
"Series A Preferred Stock") is hereby established. The number of shares of
Series A Preferred Stock shall be 1,600,000.
Section 2. Rank. The Series A Preferred Stock will, with respect to
distributions or rights upon voluntary or involuntary liquidation, winding-up or
dissolution of the Corporation, or both, rank senior to all classes or series of
Common Stock (as defined in the Charter) and to all classes or series of equity
securities of the Corporation now or hereafter authorized, issued or
outstanding, other than any class or series of equity securities of the
Corporation expressly designated as ranking on a parity with or senior to the
Series A Preferred Stock as to distributions or rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the Corporation, or both.
For purposes of these Articles of Amendment, the term "Parity Preferred Stock"
shall be used to refer to any class or series of equity securities of the
Corporation now or hereafter authorized, issued or outstanding expressly
designated by the Corporation to rank on a parity with Series A Preferred Stock
with respect to distributions or rights upon voluntary or involuntary
liquidation, winding-up or dissolution of the Corporation, or both, as the
context may require, whether or not the dividend rates, dividend payment dates
or redemption or liquidation prices per share or conversion rights or exchange
rights shall be different from those of the Series A Preferred Stock. The term
"equity securities" does not include debt securities, which will rank senior to
the Series A Preferred Stock prior to conversion.
Section 3. Distributions.
(a) Payment of Distributions. Subject to the rights of holders
of Parity Preferred Stock as to the payment of distributions and holders of
equity securities issued after
A-3.2
the date hereof in accordance herewith ranking senior to the Series A Preferred
Stock as to payment of distributions, holders of Series A Preferred Stock shall
be entitled to receive, when, as and if declared by the Board of Directors of
the Corporation, out of funds legally available for the payment of
distributions, cumulative cash distributions at the rate per annum of 8.125% of
the $50.00 liquidation preference per share of Series A Preferred Stock. Such
distributions shall be cumulative, shall accrue from the original date of
issuance and will be payable in cash (A) quarterly in arrears, on or before
March 31, June 30, September 30 and December 31 of each year commencing on the
first of such dates to occur after the original date of issuance and, (B) in the
event of a redemption, on the redemption date (each a "Preferred Stock
Distribution Payment Date"). The amount of the distribution payable for any
period will be computed on the basis of a 360-day year of twelve 30-day months
and for any period shorter than a full quarterly period for which distributions
are computed, the amount of the distribution payable will be computed on the
basis of the actual number of days elapsed in such a 30-day month. If any date
on which distributions are to be made on the Series A Preferred Stock is not a
Business Day (as defined herein), then payment of the distribution to be made on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) except that,
if such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date. Distributions on the Series A
Preferred Stock will be made to the holders of record of the Series A Preferred
Stock on the relevant record dates to be fixed by the Board of Directors of the
Corporation, which record dates shall be not less than 10 days and not more than
30 Business Days prior to the relevant Preferred Stock Distribution Payment Date
(each a "Distribution Record Date"). Notwithstanding anything to the contrary
set forth herein, each share of Series A Preferred Stock shall also continue to
accrue all accrued and unpaid distributions, whether or not declared, up to the
exchange date on any Series A Preferred Unit (as defined in the Second Amended
and Restated Agreement of Limited Partnership of Regency Centers, L.P., dated as
March 5, 1998 as amended by that certain Amendment No. One to Second Amendment
and Restatement of Agreement of Limited Partnership dated as of June 25, 1998
(as amended the "Partnership Agreement")) validly exchanged into such share of
Series A Preferred Stock in accordance with the provisions of such Partnership
Agreement.
The term "Business Day" shall mean each day, other than
a Saturday or a Sunday, which is not a day on which banking institutions in New
York, New York are authorized or required by law, regulation or executive order
to close.
(b) Limitation on Distributions. No distribution on the Series
A Preferred Stock shall be declared or paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement of the
Corporation (other than any agreement with a holder or affiliate of holder of
Capital Stock of the Corporation) relating to its indebtedness, prohibit such
declaration, payment or setting apart for payment or provide that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration, payment or setting
apart for payment shall be restricted or prohibited by law. Nothing in this
Section 3(b) shall be deemed to modify or in any manner limit the provisions of
Section 3(c) and 3(d).
A-3.3
(c) Distributions Cumulative. Distributions on the Series A
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series A Preferred Stock will accumulate as of the Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid at
any time, without reference to a regular Preferred Stock Distribution Payment
Date to holders of record of the Series A Preferred Stock on the record date
fixed by the Board of Directors which date shall be not less than 10 days and
not more than 30 Business Days prior to the payment date. Accumulated and unpaid
distributions will not bear interest.
(d) Priority as to Distributions.
(i) So long as any Series A Preferred Stock is
outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect
to any class or series of Common Stock or any class or series of other
stock of the Corporation ranking junior as to the payment of
distributions to the Series A Preferred Stock (such Common Stock or
other junior stock, collectively, "Junior Stock"), nor shall any
cash or other property be set aside for or applied to the purchase,
redemption or other acquisition for consideration of any Series A
Preferred Stock, any Parity Preferred Stock with respect to
distributions or any Junior Stock, unless, in each case, all
distributions accumulated on all Series A Preferred Stock and all
classes and series of outstanding Parity Preferred Stock as to
payment of distributions have been paid in full. The foregoing
sentence will not prohibit (i) distributions payable solely in
Junior Stock, (ii) the conversion of Series A Preferred Stock,
Junior Stock or Parity Preferred Stock into stock of the Corporation
ranking junior to the Series A Preferred Stock as to distributions,
and (iii) purchases by the Corporation of such Series A Preferred
Stock or Parity Preferred Stock with respect to distributions or
Junior Stock pursuant to Article 5 of the Charter to the extent
required to preserve the Corporation's status as a real estate
investment trust.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably deposited
in trust for payment) upon the Series A Preferred Stock, all
distributions authorized and declared on the Series A Preferred
Stock and all classes or series of outstanding Parity Preferred
Stock with respect to distributions shall be authorized and declared
so that the amount of distributions authorized and declared per
share of Series A Preferred Stock and such other classes or series
of Parity Preferred Stock shall in all cases bear to each other the
same ratio that accrued distributions per share on the Series A
Preferred Stock and such other classes or series of Parity Preferred
Stock (which shall not include any accumulation in respect of unpaid
distributions for prior distribution periods if such class or series
of Parity Preferred Stock do not have cumulative distribution
rights) bear to each other.
A-3.4
(e) No Further Rights. Holders of Series A Preferred Stock
shall not be entitled to any distributions, whether payable in cash, other
property or otherwise, in excess of the full cumulative distributions described
herein.
Section 4. Liquidation Preference.
(a) Payment of Liquidating Distributions. Subject to the rights
of holders of Parity Preferred Stock with respect to rights upon any voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation and
subject to equity securities ranking senior to the Series A Preferred Stock with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Series A Preferred Stock shall be
entitled to receive out of the assets of the Corporation legally available for
distribution or the proceeds thereof, after payment or provision for debts and
other liabilities of the Corporation, but before any payment or distributions of
the assets shall be made to holders of Common Stock or any other class or series
of shares of the Corporation that ranks junior to the Series A Preferred Stock
as to rights upon liquidation, dissolution or winding-up of the Corporation, an
amount equal to the sum of (i) a liquidation preference of $50 per share of
Series A Preferred Stock, and (ii) an amount equal to any accumulated and unpaid
distributions thereon, whether or not declared, to the date of payment. In the
event that, upon such voluntary or involuntary liquidation, dissolution or
winding-up, there are insufficient assets to permit full payment of liquidating
distributions to the holders of Series A Preferred Stock and any Parity
Preferred Stock as to rights upon liquidation, dissolution or winding-up of the
Corporation, all payments of liquidating distributions on the Series A Preferred
Stock and such Parity Preferred Stock shall be made so that the payments on the
Series A Preferred Stock and such Parity Preferred Stock shall in all cases bear
to each other the same ratio that the respective rights of the Series A
Preferred Stock and such other Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior distribution
periods if such Parity Preferred Stock do not have cumulative distribution
rights) upon liquidation, dissolution or winding-up of the Corporation bear to
each other.
(b) Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by (i) fax and (ii) by first
class mail, postage pre-paid, not less than 30 and not more that 60 days prior
to the payment date stated therein, to each record holder of the Series A
Preferred Stock at the respective addresses of such holders as the same shall
appear on the share transfer records of the Corporation.
(c) No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series A
Preferred Stock will have no right or claim to any of the remaining assets of
the Corporation.
(d) Consolidation, Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the
A-3.5
consolidation or merger or other business combination of the Corporation with or
into, any corporation, trust or other entity (or of any corporation, trust or
other entity with or into the Corporation) shall not be deemed to constitute a
liquidation, dissolution or winding-up of the Corporation.
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
Section 5. Optional Redemption.
(a) Right of Optional Redemption. The Series A Preferred Stock
ay not be redeemed prior to June 25, 2003. On or after such date, the
Corporation shall have the right to redeem the Series A Preferred Stock, in
whole or in part, atc any time or from time to time, upon not less than 30 nor
more than 60 days' written notice, at a redemption price, payable in cash, equal
to $50 per share of Series A Preferred Stock plus accumulated and unpaid
distributions, whether or nor declared, to the date of redemption. If fewer than
all of the outstanding shares of Series A Preferred Stock are to be redeemed,
the shares of Series A Preferred Stock to be redeemed shall be selected pro rata
(as nearly as practicable without creating fractional shares).
(b) Limitation on Redemption.
(i) The redemption price of the Series A Preferred Stock
(other than the portion thereof consisting of accumulated but unpaid
distributions) will be payable solely out of sale proceeds of capital
stock of the Corporation and from no other source. For purposes of the
preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares, participation or
other ownership interests (however designated) and any rights (other
than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(ii) The Corporation may not redeem fewer than all of the
outstanding shares of Series A Preferred Stock unless all accumulated
and unpaid distributions have been paid on all Series A Preferred Stock
for all quarterly distribution periods terminating on or prior to the
date of redemption.
(c) Procedures for Redemption.
(i) Notice of redemption will be (i) faxed, and (ii)
mailed by the Corporation, postage prepaid, not less than 30 nor more
than 60 days prior to the redemption date, addressed to the respective
holders of record of the Series A Preferred
A-3.6
Stock to be redeemed at their respective addresses as they appear on the
transfer records of the Corporation. No failure to give or defect in
such notice shall affect the validity of the proceedings for the
redemption of any Series A Preferred Stock except as to the holder to
whom such notice was defective or not given. In addition to any
information required by law or by the applicable rules of any exchange
upon which the Series A Preferred Stock may be listed or admitted to
trading, each such notice shall state: (i) the redemption date, (ii) the
redemption price, (iii) the number of shares of Series A Preferred
Stock to be redeemed, (iv) the place or places where such shares of
Series A Preferred Stock are to be surrendered for payment of the
redemption price, (v) that distributions on the Series A Preferred
Stock to be redeemed will cease to accumulate on such redemption
date and (vi) that payment of the redemption price and any
accumulated and unpaid distributions will be made upon presentation
and surrender of such Series A Preferred Stock. If fewer than all of
the shares of Series A Preferred Stock held by any holder are to be
redeemed, the notice mailed to such holder shall also specify the
number of shares of Series A Preferred Stock held by such holder to
be redeemed.
(ii) If the Corporation gives a notice of redemption in
respect of Series A Preferred Stock (which notice will be irrevocable)
then, by 12:00 noon, New York City time, on the redemption date, the
Corporation will deposit irrevocably in trust for the benefit of the
Series A Preferred Stock being redeemed funds sufficient to pay the
applicable redemption price, plus any accumulated and unpaid
distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any
accumulated and unpaid distributions, if any, on such shares to the
holders of the Series A Preferred Stock upon surrender of the
certificate evidencing the Series A Preferred Stock by such holders at
the place designated in the notice of redemption. If fewer than all
Series A Preferred Stock evidenced by any certificate is being redeemed,
a new certificate shall be issued upon surrender of the certificate
evidencing all Series A Preferred Stock, evidencing the unredeemed
Series A Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on
the Series A Preferred Stock or portions thereof called for redemption,
unless the Corporation defaults in the payment thereof. If any date
fixed for redemption of Series A Preferred Stock is not a Business Day,
then payment of the redemption price payable on such date will be made
on the next succeeding day that is a Business Bay (and without any
interest or other payment in respect of any such delay) except that, if
such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date fixed for redemption. If
payment of the redemption price or any accumulated or unpaid
distributions in respect of the Series A Preferred Stock is improperly
withheld or refused and not paid by the Corporation, distributions on
such Series A Preferred Stock will continue to accumulate from the
original redemption date to the date of payment, in which case the
actual payment date will be considered the date fixed for redemption for
purposes of
A-3.7
calculating the applicable redemption price and any accumulated and
unpaid distributions.
(d) Status of Redeemed Stock. Any Series A Preferred Stock that
shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
class or series until such shares are once more designated as part of a
particular class or series by the Board of Directors.
Section 6. Voting Rights.
(a) General. Holders of the Series A Preferred Stock will not
have any voting rights, except as set forth below.
(b) Right to Elect Directors.
(i) If at any time distributions shall be in arrears
(which means that, as to any such quarterly distributions, the same have
not been paid in full) with respect to six (6) prior quarterly
distribution periods (including quarterly periods on the Series A
Preferred Units prior to the exchange into Series A Preferred Stock),
whether or not consecutive, and shall not have been paid in full (a
"Preferred Distribution Default"), the authorized number of members of
the Board of Directors shall automatically be increased by two and the
holders of record of such Series A Preferred Stock, voting together as a
single class with the holders of each class or series of Parity
Preferred Stock upon which like voting rights have been conferred and
are exercisable, will be entitled to fill the vacancies so created by
electing two additional directors to serve on the Corporation's Board of
Directors (the "Preferred Stock Directors") at a special meeting called
in accordance with Section 6(b)(ii) or at the next annual meeting of
stockholders and at each subsequent annual meeting of stockholders
or special meeting held in place thereof, until all such
distributions in arrears and distributions for the current quarterly
period on the Series A Preferred Stock and each such class or series
of Parity Preferred Stock have been paid in full.
(ii) At any time when such voting rights shall have
vested, a proper officer of the Corporation shall call or cause to be
called, upon written request of holders of record of at least 10% of the
outstanding shares of Series A Preferred Stock, a special meeting of
the holders of Series A Preferred Stock and all the series of Parity
Preferred Stock upon which like voting rights have been conferred
and are exercisable (collectively, the "Parity Securities") by mailing
or causing to be mailed to such holders a notice of such special meeting
to be held not less than ten and not more than 45 days after the date
such notice is given. The record date for determining holders of the
Parity Securities entitled to notice of and to vote at such special
meeting will be the close of business on the third Business Day
preceding the day on which such notice is mailed. At any annual or
special meeting at which Parity Securities are entitled to vote, all of
the holders of the Parity Securities, by plurality vote, voting together
as a single class without regard to series will be entitled to elect two
directors on the basis of one vote per $25.00 of liquidation preference
to which such Parity Securities are entitled by
A-3.8
their terms (excluding amounts in respect of accumulated and unpaid
dividends) and not cumulatively. The holder or holders of Parity
Securities representing one-third of the total voting power of the
Parity Securities then outstanding, present in person or by proxy, will
constitute a quorum for the election of the Preferred Stock Directors
except as otherwise provided by law. Notice of all meetings at which
holders of the Series A Preferred Stock shall be entitled to vote will
be given to such holders at their addresses as they appear in the
transfer records. At any such meeting or adjournment thereof in the
absence of a quorum, subject to the provisions of any applicable law,
the holders of Parity Securities representing a majority of the voting
power of the Parity Securities present in person or by proxy shall
have the power to adjourn the meeting for the election of the Preferred
Stock Directors, without notice other than an announcement at the
meeting, until a quorum is present. If a Preferred Distribution Default
shall terminate after the notice of an annual or special meeting has
been given but before such special meeting has been held, the
Corporation shall, as soon as practicable after such termination, mail
or cause to be mailed notice of such termination to holders of the
Series A Preferred Stock that would have been entitled to vote at such
meeting.
(iii) If and when all accumulated distributions and the
distribution for the current distribution period on the Series A
Preferred Stock shall have been paid in full or a sum sufficient for
such payment is irrevocably deposited in trust for payment, the holders
of the Series A Preferred Stock shall be divested of the voting rights
set forth in Section 6(b) herein (subject to revesting in the event of
each and every Preferred Distribution Default) and, if all distributions
in arrears and the distributions for the current distribution period
have been paid in full or set aside for payment in full on all other
classes or series of Parity Preferred Stock upon which like voting
rights have been conferred and are exercisable, the term and office of
each Preferred Stock Director so elected shall terminate. Any Preferred
Stock Director may be removed at any time with or without cause by the
vote of, and shall not be removed otherwise than by the vote of, the
holders of record of a majority of the outstanding Series A
Preferred Stock when they have the voting rights set forth in
Section 6(b) (voting separately as a single class with all other
classes or series of Parity Preferred Stock upon which like voting
rights have been conferred and are exercisable). So long as a
Preferred Distribution Default shall continue, any vacancy in the
office of a Preferred Stock Director may be filled by written
consent of the Preferred Stock Director remaining in office, or if
none remains in office, by a vote of the holders of record of a
majority of the outstanding Series A Preferred Stock when they have
the voting rights set forth in Section 6(b) (voting separately as a
single class with all other classes or series of Parity Preferred
Stock upon which like voting rights have been conferred and are
exercisable). The Preferred Stock Directors shall each be entitled
to one vote per director on any matter.
(c) Certain Voting Rights. So long as any Series A Preferred
Stock remains outstanding, the Corporation shall not, without the affirmative
vote of the holders of at least two-thirds of the Series A Preferred Stock and
Series A Preferred Units outstanding at such time and not previously surrendered
in exchange for Series A Preferred Stock together, if
A-3.9
applicable, voting as a single class based on the number of shares into which
such Series A Preferred Units are then convertible (collectively, the "Voting
Securities") (i) designate or create, or increase the authorized or issued
amount of, any class or series of shares ranking prior to the Series A Preferred
Stock with respect to payment of distributions or rights upon liquidation,
dissolution or winding-up or reclassify any authorized shares of the Corporation
into any such shares, or create, authorize or issue any obligations or
securities convertible into or evidencing the right to purchase any such shares,
(ii) designate or create, or increase the authorized or issued amount of, any
Parity Preferred Stock or reclassify any authorized shares of the Corporation
into any such shares, or create, authorize or issue any obligations or
securities convertible into or evidencing the right to purchase any such shares,
but only to the extent such Parity Preferred Stock is issued to an affiliate of
the Corporation (other than Security Capital U.S. Realty, Security Capital
Holdings, S.A. or their affiliates), or (iii) either (A) consolidate, merge
into or with, or convey, transfer or lease its assets substantially as an
entirety, to any corporation or other entity, or (B) amend, alter or repeal the
provisions of the Corporation's Charter (including these Articles of Amendment)
or By-laws, whether by merger, consolidation or otherwise, in each case that
would materially and adversely affect the powers, special rights, preferences,
privileges or voting power of the Series A Preferred Stock or the holders
thereof; provided, however, that with respect to the occurrence of a merger,
consolidation or a sale or lease of all of the Corporation's assets as an
entirety, so long as (a) the Corporation is the surviving entity and the Series
A Preferred Stock remains outstanding with the terms thereof unchanged, or (b)
the resulting, surviving or transferee entity is a corporation organized under
the laws of any state and substitutes the Series A Preferred Stock for other
preferred stock having substantially the same terms and same rights as the
Series A Preferred Stock, including with respect to distributions, voting rights
and rights upon liquidation, dissolution or winding-up, then the occurrence of
any such event shall not be deemed to materially and adversely affect such
rights, privileges or voting powers of the holders of the Series A Preferred
Stock and no vote of the Series A Voting Securities shall be required in such
case and provided further that any increase in the amount of authorized
Preferred Stock or the creation or issuance of any other class or series of
Preferred Stock, or any increase in an amount of authorized shares of each class
or series, in each case ranking either (a) junior to the Series A Preferred
Stock with respect to payment of distributions or the distribution of assets
upon liquidation, dissolution or winding-up, or (b) on a parity with the Series
A Preferred Stock with respect to payment of distributions or the distribution
of assets upon liquidation, dissolution or winding-up to the extent such
Preferred Stock is not issued to a affiliate of the Corporation, shall not be
deemed to materially and adversely affect such rights, preferences, privileges
or voting powers and no vote of the Voting Securities shall be required in such
case.
Section 7. No Conversion Rights. The holders of the Series A Preferred
Stock shall not have any rights to convert such shares into shares of any other
class or series of stock or into any other securities of, or interest in, the
Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for
the retirement or redemption of Series A Preferred Stock.
A-3.10
Section 9. No Preemptive Rights. No holder of the Series A Preferred
Stock of the Corporation shall, as such holder, have any preemptive rights to
purchase or subscribe for additional shares of stock of the Corporation or any
other security of the Corporation which it may issue or sell.
A-3.11
ADDENDUM 4 TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 850,000 SHARES OF
8.75% SERIES B CUMULATIVE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation Act
("FBCA"), Regency Realty Corporation, a Florida corporation (the "Corporation"),
does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Amended and Restated Articles
of Incorporation of the Corporation (as amended, the "Charter") and Section
607.0602 of the FBCA, the Board of Directors of the Corporation (the "Board of
Directors"), by resolutions duly adopted on August 23, 1999 has classified
850,000 shares of the authorized but unissued Preferred Stock par value $.0l per
share ("Preferred Stock") as a separate class of Preferred Stock, authorized the
issuance of a maximum of 850,000 shares of such class of Preferred Stock, set
certain of the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications, terms and conditions
of redemption and other terms and conditions of such class of Preferred Stock,
and pursuant to the powers contained in the Bylaws of the Corporation and the
FBCA, appointed a committee (the "Committee") of the Board of Directors and
delegated to the Committee, to the fullest extent permitted by the FBCA and the
Charter and Bylaws of the Corporation, all powers of the Board of Directors with
respect to designating, and setting all other preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of redemption of, such
class of Preferred Stock, determining the number of shares of such class of
Preferred Stock (not in excess of the aforesaid maximum number) to be issued and
the consideration and other terms and conditions upon which such shares of such
class of Preferred Stock are to be issued. Shareholder approval was not required
under the Charter with respect to such designation. Capitalized terms used and
not otherwise defined herein shall have the meaning assigned thereto in the
Charter.
SECOND: Pursuant to the authority conferred upon the Committee as
aforesaid, the Committee has unanimously adopted resolutions designating the
aforesaid class of Preferred Stock as the "8.75% Series B Cumulative Redeemable
Preferred Stock," setting the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such 8.75% Series B
Cumulative Redeemable Preferred Stock (to the extent not set by the Board of
Directors in the resolutions referred to in Article First of these Articles of
A-4.1
Amendment) and authorizing the issuance of up to 850,000 shares of 8.75% Series
B Cumulative Redeemable Preferred Stock.
THIRD: The class of Preferred Stock of the Corporation created by
the resolutions duly adopted by the Board of Directors of the Corporation and by
the Committee and referred to in Articles First and Second of these Articles of
Amendment shall have the following designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitation as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
Section 1. Designation and Number. A series of Preferred Stock,
designated the "8.75% Series B Cumulative Redeemable Preferred Stock" (the
"Series B Preferred Stock") is hereby established. The number of shares of
Series B Preferred Stock shall be 850,000.
Section 2. Rank. The Series B Preferred Stock will, with respect to
distributions or rights upon voluntary or involuntary liquidation, winding-up or
dissolution of the Corporation, or both, rank senior to all classes or series of
Common Stock (as defined in the Charter) and to all classes or series of equity
securities of the Corporation now or hereafter authorized, issued or outstanding
other than any class or series of equity securities of the Corporation expressly
designated as ranking on a parity with or senior to the Series B Preferred Stock
as to distributions or rights upon voluntary or involuntary liquidation,
winding-up or dissolution of the Corporation, or both. For purposes of these
Articles of Amendment, the term "Parity Preferred Stock" shall be used to refer
to any class or series of equity securities of the Corporation now or hereafter
authorized, issued or outstanding expressly designated by the Corporation to
rank on a parity with Series B Preferred Stock with respect to distributions or
rights upon voluntary or involuntary liquidation, winding-up or dissolution of
the Corporation, or both, as the context may require, whether or not the
dividend rates, dividend payment dates or redemption or liquidation prices per
share or conversion rights or exchange rights shall be different from those of
the Series B Preferred Stock. The term "equity securities" does not include debt
securities, which will rank senior to the Series B Preferred Stock prior to
conversion. The Series B Preferred Stock is expressly designated as ranking on a
parity with the Series A Preferred Stock.
Section 3. Distributions.
(a) Payment of Distributions. Subject to the rights of holders
of Parity Preferred Stock as to the payment of distributions and holders of
equity securities issued after the date hereof in accordance herewith ranking
senior to the Series B Preferred Stock as to payment of distributions, holders
of Series B Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors of the Corporation, out of funds legally
available for the payment of distributions, cumulative cash distributions at the
rate per annum of 8.75% of the $100.00 liquidation preference per share of
Series B Preferred Stock (the "Distribution Rate"). Notwithstanding anything
herein to the contrary, the Distribution Rate shall be equal to the Coupon Rate
(as defined in Amendment No. 1 to the Third Amended and Restated Agreement of
Limited Partnership of Regency Centers, L.P.) in effect at the time of
A-4.2
issuance of the Series C Preferred Stock. Such distributions shall be
cumulative, shall accrue from the original date of issuance and will be payable
in cash (A) quarterly in arrears, on or before March 1, June 1, September 1 and
December 1 of each year commencing on the first of such dates to occur after the
original date of issuance and, (B) in the event of a redemption, on the
redemption date (each a "Series B Preferred Stock Distribution Payment Date").
The amount of the distribution payable for any period will be computed based on
the ratio basis of a 360-day year of twelve 30-day months and for any period
shorter than a full quarterly period for which distributions are computed, the
amount of the distribution payable will be computed on the basis of the actual
number of days elapsed in such quarterly period to 90 days. If any date on which
distributions are to be made on the Series B Preferred Stock is not a Business
Day (as defined herein), then payment of the distribution to be made on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. Distributions on the Series B Preferred Stock
will be made to the holders of record of the Series B Preferred Stock on the
relevant record dates to be fixed by the Board of Directors of the Corporation,
which record dates shall be not less than 10 days and not more than 30 Business
Days prior to the relevant Series B Preferred Stock Distribution Payment Date
(each a "Distribution Record Date"). Notwithstanding anything to the contrary
set forth herein, each share of Series B Preferred Stock shall also continue to
accrue all accrued and unpaid distributions, whether or not declared, up to the
exchange date on any Series B Preferred Unit (as defined in the Third Amended
and Restated Agreement of Limited Partnership of Regency Centers, L.P., dated as
September 1, 1999 as amended by that certain Amendment No. 1 to Third Amended
and Restated Agreement of Limited Partnership dated as of September 3, 1999 (as
amended, the "Partnership Agreement")) validly exchanged into such share of
Series B Preferred Stock in accordance with the provisions of such Partnership
Agreement.
The term "Business Day" shall mean each day, other than a
Saturday or a Sunday, which is not a day on which banking institutions in New
York, New York are authorized or required by law, regulation or executive order
to close.
(b) Distributions Cumulative. Distributions on the Series B
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series B Preferred Stock will accumulate as of the Series B Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid at
any time, without reference to a regular Series B Preferred Stock Distribution
Payment Date to holders of record of the Series B Preferred Stock on the record
date fixed by the Board of Directors which date shall be not less than 10 days
and not more than 30 Business Days prior to the payment date. Accumulated and
unpaid distributions will not bear interest.
A-4.3
(c) Priority as to Distributions.
(i) So long as any Series B Preferred Stock is
outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect
to any class or series of Common Stock or any class or series of other
stock of the Corporation ranking junior as to the payment of
distributions to the Series B Preferred Stock (such Common Stock or
other junior stock, collectively, "Junior Stock"), nor shall any
cash or other property be set aside for or applied to the purchase,
redemption or other acquisition for consideration of any Series B
Preferred Stock, any Parity Preferred Stock with respect to
distributions or any Junior Stock, unless in each case, all
distributions accumulated on all Series B Preferred Stock and all
classes and series of outstanding Parity Preferred Stock as to payment
of distributions have been paid in full. The foregoing sentence will
not prohibit (i) distributions payable solely in Junior Stock, (ii) the
conversion of Series B Preferred Stock, Junior Stock or Parity Preferred
Stock into stock of the Corporation ranking junior to the Series B
Preferred Stock as to distributions, and (iii) purchases by the
Corporation of such Series B Preferred Stock or Parity Preferred Stock
with respect to distributions or Junior Stock pursuant to Article 5 of
the Charter to the extent required to preserve the Corporation's status
as a real estate investment trust.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably deposited
in trust for payment) upon the Series B Preferred Stock, all
distributions authorized and declared on the Series B Preferred Stock
and all classes or series of outstanding Parity Preferred Stock with
respect to distributions shall be authorized and declared so that the
amount of distributions authorized and declared per share of Series B
Preferred Stock and such other classes or series of Parity Preferred
Stock shall in all cases bear to each other the same ratio that accrued
distributions per share on the Series B Preferred Stock and such other
classes or series of Parity Preferred Stock (which shall not include any
accumulation in respect of unpaid distributions for prior distribution
periods if such class or series of Parity Preferred Stock do not have
cumulative distribution rights) bear to each other.
(d) No Further Rights. Holders of Series B Preferred Stock
shall not be entitled to any distributions, whether payable in cash, other
property or otherwise, in excess of the full cumulative distributions described
herein.
Section 4. Liquidation Preference.
(a) Payment of Liquidation Distributions. Subject to the rights
of holders of Parity Preferred Stock with respect to rights upon any voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation, the
holders of Series B Preferred Stock shall be entitled to receive out of the
assets of the Corporation legally available for distribution or the proceeds
thereof, after payment or provision for debts and other liabilities of the
Corporation, but before any payment or distributions of the assets shall be made
to holders of Common
A-4.4
Stock or any other class or series of shares of the Corporation that
ranks junior to the Series B Preferred Stock as to rights upon liquidation,
dissolution or winding-up of the Corporation, an amount equal to the sum of (i)
a liquidation preference of $100.00 per share of Series B Preferred Stock, and
(ii) an amount equal to any accumulated and unpaid distributions thereon,
whether or not declared, to the date of payment. In the event that, upon such
voluntary or involuntary liquidation, dissolution or winding-up, there are
insufficient assets to permit full payment of liquidating distributions to the
holders of Series B Preferred Stock and any Parity Preferred Stock as to rights
upon liquidation, dissolution or winding-up of the Corporation, all payments of
liquidating distributions on the Series B Preferred Stock and such Parity
Preferred Stock shall be made so that the payments on the Series B Preferred
Stock and such Parity Preferred Stock shall in all cases bear to each other the
same ratio that the respective rights of the Series B Preferred Stock and such
other Parity Preferred Stock (which shall not include any accumulation in
respect of unpaid distributions for prior distribution periods if such Parity
Preferred Stock do not have cumulative distribution rights) upon liquidation,
dissolution or winding-up of the Corporation bear to each other.
(b) Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by (i) fax and (ii) by first
class mail, postage pre-paid, not less than 30 and not more that 60 days prior
to the payment date stated therein, to each record holder of the Series B
Preferred Stock at the respective addresses of such holders as the same shall
appear on the share transfer records of the Corporation.
(c) No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series B
Preferred Stock will have no right or claim to any of the remaining assets of
the Corporation.
(d) Consolidation Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the consolidation or merger or
other business combination of the Corporation with or into, any corporation,
trust or other entity (or of any corporation, trust or other entity with or into
the Corporation) shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Corporation.
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
A-4.5
Section 5. Optional Redemption.
(a) Right of Optional Redemption. The Series B Preferred Stock
may not be redeemed prior to September 3, 2004. On or after such date, the
Corporation shall have the right to redeem the Series B Preferred Stock, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' written notice, at a redemption price, payable in cash, equal
to $100.00 per share of Series B Preferred Stock plus accumulated and unpaid
distributions, whether or nor declared, to the date of redemption. If fewer than
all of the outstanding shares of Series B Preferred Stock are to be redeemed,
the shares of Series B Preferred Stock to be redeemed shall be selected pro rata
(as nearly as practicable without creating fractional shares).
(b) Limitation on Redemption.
(i) The redemption price of the Series B Preferred Stock
(other than the portion thereof consisting of accumulated but unpaid
distributions) will be payable solely out of sale proceeds of capital
stock of the Corporation and from no other source. For purposes of the
preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares, participation or
other ownership interests (however designated) and any rights (other
than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(ii) The Corporation may not redeem fewer than all of the
outstanding shares of Series B Preferred Stock unless all accumulated
and unpaid distributions have been paid on all Series B Preferred Stock
for all quarterly distribution periods terminating on or prior to the
date of redemption.
(c) Procedures for Redemption.
(i) Notice of redemption will be (i) faxed, and (ii)
mailed by the Corporation, postage prepaid, not less than 30 nor more
than 60 days prior to the redemption date, addressed to the respective
holders of record of the Series B Preferred Stock to be redeemed at
their respective addresses as they appear on the transfer records of
the Corporation. No failure to give or defect in such notice shall
affect the validity of the proceedings for the redemption of any
Series B Preferred Stock except as to the holder to whom such notice
was defective or not given. In addition to any information required
by law or by the applicable rules of any exchange upon which the
Series B Preferred Stock may be listed or admitted to trading, each
such notice shall state: (i) the redemption date, (ii) the
redemption price, (iii) the number of shares of Series B Preferred
Stock to be redeemed, (iv) the place or places where such shares of
Series B Preferred Stock are to be surrendered for payment of the
redemption price, (v) that distributions on the Series B Preferred
Stock to be redeemed will cease to accumulate on such redemption
date and (vi) that payment of the redemption price and any
accumulated and unpaid distributions will be made upon presentation
and surrender of such Series B Preferred
A-4.6
Stock. If fewer than all of the shares of Series B Preferred Stock held
by any holder are to be redeemed, the notice mailed to such holder shall
also specify the number of shares of Series B Preferred Stock held by
such holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in
respect of Series B Preferred Stock (which notice will be irrevocable)
then, by 12:00 noon, New York City time, on the redemption date, the
Corporation will deposit irrevocably in trust for the benefit of the
Series B Preferred Stock being redeemed funds sufficient to pay the
applicable redemption price' plus any accumulated and unpaid
distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any
accumulated and unpaid distributions, if any, on such shares to the
holders of the Series B Preferred Stock upon surrender of the
certificate evidencing the Series B Preferred Stock by such holders at
the place designated in the notice of redemption. If fewer than all
Series B Preferred Stock evidenced by any certificate is being redeemed,
a new certificate shall be issued upon surrender of the certificate
evidencing all Series B Preferred Stock, evidencing the unredeemed
Series B Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on
the Series B Preferred Stock or portions thereof called for redemption,
unless the Corporation defaults in the payment thereof. If any date
fixed for redemption of Series B Preferred Stock is not a Business Day,
then payment of the redemption price payable on such date will be made
on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if
such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date fixed for redemption. If
payment of the redemption price or any accumulated or unpaid
distributions in respect of the Series B Preferred Stock is improperly
withheld or refused and not paid by the Corporation, distributions on
such Series B Preferred Stock will continue to accumulate from the
original redemption date to the date of payment, in which case the
actual payment date will be considered the date fixed for redemption for
purposes of calculating the applicable redemption price and any
accumulated and unpaid distributions.
(d) Status of Redeemed Stock. Any Series B Preferred Stock that
shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
class or series until such shares are once more designated as part of a
particular class or series by the Board of Directors.
Section 6. Voting Rights.
(a) General. Holders of the Series B Preferred Stock will not
have any voting rights, except as set forth below.
(b) Right to Elect Directors.
A-4.7
(i) If at any time distributions shall be in arrears
(which means that as to any such quarterly distributions, the same have
not been paid in full) with respect to six (6) prior quarterly
distribution periods (including quarterly periods on the Series B
Preferred Units prior to the exchange into Series B Preferred Stock),
whether or not consecutive, and shall not have been paid in full (a
"Series B Preferred Distribution Default"), the authorized number of
members of the Board of Directors shall automatically be increased by
two and the holders of record of such Series B Preferred Stock, voting
together as a single class with the holders of each class or series of
Parity Preferred Stock upon which like voting rights have been conferred
and are exercisable, will be entitled to fill the vacancies so created
by electing two additional directors to serve on the Corporation's Board
of Directors (the "Preferred Stock Directors") at a special meeting
called in accordance with Section 6(b)(ii), and at each subsequent
annual meeting of stockholders or special meeting held in place thereof,
until all such distributions in arrears and distributions for the
current quarterly period on the Series B Preferred Stock and each
such class or series of Parity Preferred Stock have been paid in
full.
(ii) At any time when such voting rights shall have
vested, a proper officer of the Corporation shall call or cause to be
called, upon written request of holders of record of at least 10% of the
outstanding shares of Series B Preferred Stock, a special meeting of
the holders of Series B Preferred Stock and all the series of Parity
Preferred Stock upon which like voting rights have been conferred
and are exercisable (collectively, the "Parity Securities") by mailing
or causing to be mailed to such holders a notice of such special meeting
to be held not less than ten and not more than 45 days after the date
such notice is given. The record date for determining holders of the
Parity Securities entitled to notice of and to vote at such special
meeting will be the close of business on the third Business Day
preceding the day on which such notice is mailed. At any annual or
special meeting at which Parity Securities are entitled to vote, all of
the holders of the Parity Securities, by plurality vote, voting together
as a single class without regard to series will be entitled to elect two
directors on the basis of one vote per $25.00 of liquidation preference
to which such Parity Securities are entitled by their terms (excluding
amounts in respect of accumulated and unpaid dividends) and not
cumulatively. The holder or holders of the Parity Securities
representing one-third of the total voting power of the Parity
Securities then outstanding, present in person or by proxy, will
constitute a quorum for the election of the Preferred Stock Directors
except as otherwise provided by law. Notice of all meetings at which
holders of the Series B Preferred Stock shall be entitled to vote will
be given to such holders at their addresses as they appear in the
transfer records. At any such meeting or adjournment thereof in the
absence of a quorum, subject to the provisions of any applicable law,
the holders of the Parity Securities representing a majority of the
voting power of the Parity Securities present in person or by proxy
shall have the power to adjourn the meeting for the election of the
Preferred Stock Directors, without notice other than an announcement
at the meeting, until a quorum is present. If a Series B Preferred
Distribution Default shall terminate after the notice of an annual
or special meeting has been given but before such special meeting
has been held, the Corporation shall, as soon as practicable after
A-4.8
such termination, mail or cause to be mailed notice of such
termination to holders of the Series B Preferred Stock that would
have been entitled to vote at such meeting.
(iii) If and when all accumulated distributions and the
distribution for the current distribution period on the Series B
Preferred Stock shall have been paid in full or a sum sufficient for
such payment is irrevocably deposited in trust for payment, the holders
of the Series B Preferred Stock shall be divested of the voting rights
set forth in Section 6(b) herein (subject to revesting in the event of
each and every Series B Preferred Distribution Default) and, if all
distributions in arrears and the distributions for the current
distribution period have been paid in full or set aside for payment in
full on all other classes or series of Parity Preferred Stock upon which
like voting rights have been conferred and are exercisable, the terms
and office of each Preferred Stock Director so elected shall terminate.
Any Preferred Stock Director may be removed at any time with or without
cause by the vote of, and shall not be removed otherwise than by the
vote of, the holders of record of a majority of the outstanding Series B
Preferred Stock when they have the voting rights set forth in Section
6(b) (voting separately as a single class with all other classes or
series of Parity Preferred Stock upon which like voting rights have been
conferred and are exercisable). So long as a Series B Preferred
Distribution Default shall continue, any vacancy in the office of a
Preferred Stock Director may be filled by written consent of the
Preferred Stock Director remaining in office, or if none remains in
office, by a vote of the holders of record of a majority of the
outstanding Series B Preferred Stock when they have the voting rights
set forth in Section 6(b) (voting separately as a single class with all
other classes or series of Parity Preferred Stock upon which like voting
rights have been conferred and are exercisable). The Preferred Stock
Directors shall each be entitled to one vote per director on any matter.
(c) Certain Voting Rights. So long as any Series B Preferred
Stock or Series C Preferred Unit remains outstanding, the Corporation shall
not, without the affirmative vote of the holders of at least two-thirds of the
Series B Preferred Stock and Series B Preferred Units outstanding at the time
(together, if applicable, voting as a single class) (collectively, the "Voting
Securities") (i) designate or create, or increase the authorized or issued
amount of, any class or series of shares ranking prior to the Series B Preferred
Stock with respect to payment of distributions or rights upon liquidation,
dissolution or winding-up or reclassify any authorized shares of the Corporation
into any such shares, or create, authorize or issue any obligations or
securities convertible into or evidencing the right to purchase any such shares,
(ii) designate or create, or increase the authorized or issued amount of, any
Parity Preferred Stock or reclassify any authorized shares of the Corporation
into any such shares, or create, authorize or issue any obligations or
securities convertible into or evidencing the right to purchase any such shares,
but only to the extent such Parity Preferred Stock is issued to an affiliate of
the Corporation (other than Security Capital U.S. Realty, Security Capital
Holdings, S.A. or their affiliates purchasing preferred stock of the same series
on the same terms as non-affiliates), or (iii) either (A) consolidate, merge
into or with, or convey, transfer or lease its assets substantially as an
entirety, to any corporation or other entity, or (B) amend, alter or repeal the
provisions of the Corporation's Charter (including these Articles of
A-4.9
Amendment) or By-laws, whether by merger, consolidation or otherwise, in each
case that would materially and adversely affect the powers, special rights,
preferences, privileges or voting power of the Series B Preferred Stock or the
holders thereof; provided, however, that with respect to the occurrence of a
merger, consolidation or a sale or lease of all of the Corporation's assets
as an entirety, so long as (a) the Corporation is the surviving entity and the
Series B Preferred Stock remains outstanding (or remains exchangeable for Series
B Preferred Units) with the terms thereof unchanged, or (b) the resulting,
surviving or transferee entity is a corporation organized under the laws of any
state and substitutes the Series B Preferred Stock for other preferred stock
having substantially the same terms and same rights as the Series B Preferred
Stock, including with respect to distributions, voting rights and rights upon
liquidation, dissolution or winding-up, then the occurrence of any such event
shall not be deemed to materially and adversely affect such rights, privileges
or voting powers of the holders of the Series B Preferred Stock and no vote of
the Series B Preferred Stock shall be required in such case and provided further
that any increase in the amount of authorized Preferred Stock or the creation or
issuance of any other class or series of Preferred Stock, or any increase in an
amount of authorized shares of each class or series, in each case ranking either
(a) junior to the Series B Preferred Stock with respect to payment of
distributions and the distribution of assets upon liquidation, dissolution or
winding-up, or (b) on a parity with the Series B Preferred Stock with respect to
payment of distributions and the distribution of assets upon liquidation,
dissolution or winding-up to the extent such Preferred Stock is not issued to an
affiliate of the Corporation (other than Security Capital U.S. Realty, Security
Capital Holdings, S.A. or their affiliates purchasing preferred stock of the
same series on the same terms as non-affiliates), shall not be deemed to
materially and adversely affect such rights, preferences, privileges or voting
powers and no vote of the Voting Securities shall be required in such case.
Section 7. No Conversion Rights. The holders of the Series B Preferred
Stock shall not have any rights to convert such shares into shares of any other
class or series of stock or into any other securities of, or interest in, the
Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for
the retirement or redemption of Series B Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series B Preferred
Stock of the Corporation shall, as such holder, have any preemptive rights to
purchase or subscribe for additional shares of stock of the Corporation or any
other security of the Corporation which it may issue or sell.
A-4.10
ADDENDUM 5 TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 750,000 SHARES OF
9.0% SERIES C CUMULATIVE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation
Act ("FBCA"), Regency Realty Corporation, a Florida corporation (the
"Corporation"), does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Amended and Restated Articles
of Incorporation of the Corporation (as amended, the "Charter") and Section
607.0602 of the FBCA, the Board of Directors of the Corporation (the "Board of
Directors"), by resolutions duly adopted on August 23, 1999 has classified
750,000 shares of the authorized but unissued Preferred Stock par value $.0l per
share ("Preferred Stock") as a separate class of Preferred Stock, authorized the
issuance of a maximum of 750,000 shares of such class of Preferred Stock, set
certain of the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications, terms and conditions
of redemption and other terms and conditions of such class of Preferred Stock,
and pursuant to the powers contained in the Bylaws of the Corporation and the
FBCA, appointed a committee (the "Committee") of the Board of Directors and
delegated to the Committee, to the fullest extent permitted by the FBCA and the
Charter and Bylaws of the Corporation, all powers of the Board of Directors with
respect to designating, and setting all other preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of redemption of, such
class of Preferred Stock, determining the number of shares of such class of
Preferred Stock (not in excess of the aforesaid maximum number) to be issued and
the consideration and other terms and conditions upon which such shares of such
class of Preferred Stock are to be issued. Shareholder approval was not required
under the Charter with respect to such designation. Capitalized terms used and
not otherwise defined herein shall have the meaning assigned thereto in the
Charter.
SECOND: Pursuant to the authority conferred upon the Committee as
aforesaid, the Committee has unanimously adopted resolutions designating the
aforesaid class of Preferred Stock as the "9.0% Series C Cumulative Redeemable
Preferred Stock," setting the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such 9.0% Series C
Cumulative Redeemable Preferred Stock (to the extent not set by the Board of
Directors in the resolutions referred to in Article First of these Articles of
A-5.1
Amendment) and authorizing the issuance of up to 750,000 shares of 9.0% Series C
Cumulative Redeemable Preferred Stock.
THIRD: The class of Preferred Stock of the Corporation created by
the resolutions duly adopted by the Board of Directors of the Corporation and by
the Committee and referred to in Articles First and Second of these Articles of
Amendment shall have the following designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitation as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
Section 1. Designation and Number. A series of Preferred Stock,
designated the "9.0% Series C Cumulative Redeemable Preferred Stock" (the
"Series C Preferred Stock") is hereby established. The number of shares of
Series C Preferred Stock shall be 750,000.
Section 2. Rank. The Series C Preferred Stock will, with respect to
distributions or rights upon voluntary or involuntary liquidation, winding-up or
dissolution of the Corporation, or both, rank senior to all classes or series of
Common Stock (as defined in the Charter) and to all classes or series of equity
securities of the Corporation now or hereafter authorized, issued or outstanding
other than any class or series of equity securities of the Corporation expressly
designated as ranking on a parity with or senior to the Series C Preferred Stock
as to distributions or rights upon voluntary or involuntary liquidation,
winding-up or dissolution of the Corporation, or both. For purposes of these
Articles of Amendment, the term "Parity Preferred Stock" shall be used to refer
to any class or series of equity securities of the Corporation now or hereafter
authorized, issued or outstanding expressly designated by the Corporation to
rank on a parity with Series C Preferred Stock with respect to distributions or
rights upon voluntary or involuntary liquidation, winding-up or dissolution of
the Corporation, or both, as the context may require, whether or not the
dividend rates, dividend payment dates or redemption or liquidation prices per
share or conversion rights or exchange rights shall be different from those of
the Series C Preferred Stock. The term "equity securities" does not include debt
securities, which will rank senior to the Series C Preferred Stock prior to
conversion. The Series C Preferred Stock is expressly designated as ranking on a
parity with the Series A Preferred Stock and the Series B Preferred Stock.
Section 3. Distributions.
(a) Payment of Distributions. Subject to the rights of holders
of Parity Preferred Stock as to the payment of distributions and holders of
equity securities issued after the date hereof in accordance herewith ranking
senior to the Series C Preferred Stock as to payment of distributions, holders
of Series C Preferred Stock shall be entitled to receive, out of funds legally
available for the payment of distributions, cumulative preferential cash
distributions at the rate per annum of 9.0% of the $100.00 liquidation
preference per share of Series C Preferred Stock. Such distributions shall be
cumulative, shall accrue from the original date of issuance and will be payable
in cash when, as and if declared by the Board of Directors of the Corporation
(A) quarterly in arrears, on or before March 31, June 30, September 30 and
December 31 of each year commencing on the first of such dates to occur after
the original
A-5.2
date of issuance and, (B) in the event of a redemption, on the redemption date
(each a "Series C Preferred Stock Distribution Payment Date"). The amount of the
distribution payable for any period will be computed on the basis of a 360-day
year of twelve 30-day months and for any period shorter than a full quarterly
period for which distributions are computed, the amount of the distribution
payable will be computed based on the ratio of the actual number of days elapsed
in such quarterly period to 90 days. If any date on which distributions are to
be made on the Series C Preferred Stock is not a Business Day (as defined
herein), then payment of the distribution to be made on such date will be made
on the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date. Distributions on the Series C Preferred Stock will be
made to the holders of record of the Series C Preferred Stock on the relevant
record dates to be fixed by the Board of Directors of the Corporation, which
record dates shall be not less than 10 days and not more than 30 Business Days
prior to the relevant Series C Preferred Stock Distribution Payment Date (each a
"Distribution Record Date"). Notwithstanding anything to the contrary set forth
herein, each share of Series C Preferred Stock shall also continue to accrue all
accrued and unpaid distributions, whether or not declared, up to the exchange
date on any Series C Preferred Unit (as defined in the Third Amended and
Restated Agreement of Limited Partnership of Regency Centers, L.P., dated as
September 1, 1999 as amended by that certain Amendment No. 2 to Third Amended
and Restated Agreement of Limited Partnership dated as of September 3, 1999 (as
amended, the "Partnership Agreement")) validly exchanged into such share of
Series C Preferred Stock in accordance with the provisions of such Partnership
Agreement.
The term "Business Day" shall mean each day, other than a Saturday
or a Sunday, which is not a day on which banking institutions in New York, New
York are authorized or required by law, regulation or executive order to close.
(b) Distributions Cumulative. Distributions on the Series C
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series C Preferred Stock will accumulate as of the Series C Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid at
any time, without reference to a regular Series C Preferred Stock Distribution
Payment Date to holders of record of the Series C Preferred Stock on the record
date fixed by the Board of Directors which date shall be not less than 10 days
and not more than 30 Business Days prior to the payment date. Accumulated and
unpaid distributions will not bear interest.
A-5.3
(c) Priority as to Distributions.
(i) So long as any Series C Preferred Stock is
outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect
to any class or series of Common Stock or any class or series of other
stock of the Corporation ranking junior as to the payment of
distributions to the Parity Preferred Stock (such Common Stock or other
junior stock, collectively, "Junior Stock"), nor shall any cash or other
property be set aside for or applied to the purchase, redemption or
other acquisition for consideration of any Series C Preferred Stock, any
Parity Preferred Stock with respect to distributions or any Junior
Stock, unless in each case, all distributions accumulated on all Series
C Preferred Stock and all classes and series of outstanding Parity
Preferred Stock as to payment of distributions have been paid in full.
The foregoing sentence will not prohibit (i) distributions payable
solely in Junior Stock, (ii) the conversion of Series C Preferred Stock,
Junior Stock or Parity Preferred Stock into stock of the Corporation
ranking junior to the Series C Preferred Stock as to distributions, and
(iii) purchases by the Corporation of such Series C Preferred Stock or
Parity Preferred Stock with respect to distributions or Junior Stock
pursuant to Article 5 of the Charter to the extent required to preserve
the Corporation's status as a real estate investment trust.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably deposited
in trust for payment) upon the Series C Preferred Stock, all
distributions authorized and declared on the Series C Preferred Stock
and all classes or series of outstanding Parity Preferred Stock with
respect to distributions shall be authorized and declared so that the
amount of distributions authorized and declared per share of Series C
Preferred Stock and such other classes or series of Parity Preferred
Stock shall in all cases bear to each other the same ratio that accrued
distributions per share on the Series C Preferred Stock and such other
classes or series of Parity Preferred Stock (which shall not include any
accumulation in respect of unpaid distributions for prior distribution
periods if such class or series of Parity Preferred Stock does not have
cumulative distribution rights) bear to each other.
(d) No Further Rights. Holders of Series C Preferred Stock
shall not be entitled to any distributions, whether payable in cash, other
property or otherwise, in excess of the full cumulative distributions described
herein.
Section 4. Liquidation Preference.
(a) Payment of Liquidation Distributions. Subject to the rights
of holders of Parity Preferred Stock with respect to rights upon any voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation and
subject to equity securities ranking senior to the Series C Preferred Stock with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Series C Preferred Stock shall be
entitled to receive out of the assets of the Corporation legally available for
A-5.4
distribution or the proceeds thereof, after payment or provision for debts and
other liabilities of the Corporation, but before any payment or distributions of
the assets shall be made to holders of Common Stock or any other class or series
of shares of the Corporation that ranks junior to the Series C Preferred Stock
as to rights upon liquidation, dissolution or winding-up of the Corporation, an
amount equal to the sum of (i) a liquidation preference of $100.00 per share of
Series C Preferred Stock, and (ii) an amount equal to any accumulated and unpaid
distributions thereon, whether or not declared, to the date of payment. In the
event that, upon such voluntary or involuntary liquidation, dissolution or
winding-up, there are insufficient assets to permit full payment of liquidating
distributions to the holders of Series C Preferred Stock and any Parity
Preferred Stock as to rights upon liquidation, dissolution or winding-up of the
Corporation, all payments of liquidating distributions on the Series C Preferred
Stock and such Parity Preferred Stock shall be made so that the payments on the
Series C Preferred Stock and such Parity Preferred Stock shall in all cases bear
to each other the same ratio that the respective rights of the Series C
Preferred Stock and such other Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior distribution
periods if such Parity Preferred Stock does not have cumulative distribution
rights) upon liquidation, dissolution or winding-up of the Corporation bear to
each other.
(b) Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by (i) fax and (ii) by first
class mail, postage pre-paid, not less than 30 and not more than 60 days prior
to the payment date stated therein, to each record holder of the Series C
Preferred Stock at the respective addresses of such holders as the same shall
appear on the share transfer records of the Corporation.
(c) No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series C
Preferred Stock will have no right or claim to any of the remaining assets of
the Corporation.
(d) Consolidation Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the consolidation or merger or
other business combination of the Corporation with or into, any corporation,
trust or other entity (or of any corporation, trust or other entity with or into
the Corporation) shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Corporation.
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
A-5.5
Section 5. Optional Redemption.
(a) Right of Optional Redemption. The Series C Preferred Stock
may not be redeemed prior to September 3, 2004. On or after such date, the
Corporation shall have the right to redeem the Series C Preferred Stock, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' written notice, at a redemption price, payable in cash, equal
to $100.00 per share of Series C Preferred Stock plus accumulated and unpaid
distributions, whether or nor declared, to the date of redemption. If fewer than
all of the outstanding shares of Series C Preferred Stock are to be redeemed,
the shares of Series C Preferred Stock to be redeemed shall be selected pro rata
(as nearly as practicable without creating fractional shares).
(b) Limitation on Redemption.
(i) The redemption price of the Series C Preferred Stock
(other than the portion thereof consisting of accumulated but unpaid
distributions) will be payable solely out of sale proceeds of capital
stock of the Corporation and from no other source. For purposes of the
preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares, participation or
other ownership interests (however designated) and any rights (other
than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(ii) The Corporation may not redeem fewer than all of the
outstanding shares of Series C Preferred Stock unless all accumulated
and unpaid distributions have been paid on all Series C Preferred Stock
for all quarterly distribution periods terminating on or prior to the
date of redemption.
(c) Procedures for Redemption.
(i) Notice of redemption will be (i) faxed, and (ii)
mailed by the Corporation, postage prepaid, not less than 30 nor more
than 60 days prior to the redemption date, addressed to the respective
holders of record of the Series C Preferred Stock to be redeemed at
their respective addresses as they appear on the transfer records of the
Corporation. No failure to give or defect in such notice shall affect
the validity of the proceedings for the redemption of any Series C
Preferred Stock except as to the holder to whom such notice was
defective or not given. In addition to any information required by law
or by the applicable rules of any exchange upon which the Series C
Preferred Stock may be listed or admitted to trading, each such notice
shall state: (i) the redemption date, (ii) the redemption price, (iii)
the number of shares of Series C Preferred Stock to be redeemed, (iv)
the place or places where such shares of Series C Preferred Stock are to
be surrendered for payment of the redemption price, (v) that
distributions on the Series C Preferred Stock to be redeemed will cease
to accumulate on such redemption date and (vi) that payment of the
redemption price and any accumulated and unpaid distributions will be
made upon presentation and surrender of such Series C Preferred Stock.
If fewer than all of the shares of Series C Preferred
A-5.6
Stock held by any holder are to be redeemed, the notice mailed to such
holder shall also specify the number of shares of Series C Preferred
Stock held by such holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in
respect of Series C Preferred Stock (which notice will be irrevocable)
then, by 12:00 noon, New York City time, on the redemption date, the
Corporation will deposit irrevocably in trust for the benefit of the
Series C Preferred Stock being redeemed funds sufficient to pay the
applicable redemption price, plus any accumulated and unpaid
distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any
accumulated and unpaid distributions, if any, on such shares to the
holders of the Series C Preferred Stock upon surrender of the
certificate evidencing the Series C Preferred Stock by such holders at
the place designated in the notice of redemption. If fewer than all
Series C Preferred Stock evidenced by any certificate is being redeemed,
a new certificate shall be issued upon surrender of the certificate
evidencing all Series C Preferred Stock, evidencing the unredeemed
Series C Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on
the Series C Preferred Stock or portions thereof called for redemption,
unless the Corporation defaults in the payment thereof. If any date
fixed for redemption of Series C Preferred Stock is not a Business Day,
then payment of the redemption price payable on such date will be made
on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if
such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date fixed for redemption. If
payment of the redemption price or any accumulated or unpaid
distributions in respect of the Series C Preferred Stock is improperly
withheld or refused and not paid by the Corporation, distributions on
such Series C Preferred Stock will continue to accumulate from the
original redemption date to the date of payment, in which case the
actual payment date will be considered the date fixed for redemption
for purposes of calculating the applicable redemption price and any
accumulated and unpaid distributions.
(d) Status of Redeemed Stock. Any Series C Preferred Stock that
shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
class or series until such shares are once more designated as part of a
particular class or series by the Board of Directors.
A-5.7
Section 6. Voting Rights.
(a) General. Holders of the Series C Preferred Stock will not
have any voting rights, except as set forth below.
(b) Right to Elect Directors.
(i) If at any time distributions shall be in arrears
(which means that as to any such quarterly distributions, the same have
not been paid in full) with respect to six (6) prior quarterly
distribution periods (including quarterly periods on the Series C
Preferred Units prior to the exchange into Series C Preferred Stock),
whether or not consecutive, and shall not have been paid in full (a
"Series C Preferred Distribution Default"), the authorized number of
members of the Board of Directors shall automatically be increased by
two and the holders of record of such Series C Preferred Stock, voting
together as a single class with the holders of each class or series of
Parity Preferred Stock upon which like voting rights have been conferred
and are exercisable, will be entitled to fill the vacancies so created
by electing two additional directors to serve on the Corporation's
Board of Directors (the "Preferred Stock Directors") at a special
meeting called in accordance with Section 6(b)(ii), and at each
subsequent annual meeting of stockholders or special meeting held in
place thereof, until all such distributions in arrears and distributions
for the current quarterly period on the Series C Preferred Stock and
each such class or series of Parity Preferred Stock have been paid in
full.
(ii) At any time when such voting rights shall have
vested, a proper officer of the Corporation shall call or cause to be
called, upon written request of holders of record of at least 10% of the
outstanding shares of Series C Preferred Stock, a special meeting of the
holders of Series C Preferred Stock and all the series of Parity
Preferred Stock upon which like voting rights have been conferred and
are exercisable (collectively, the "Parity Securities") by mailing or
causing to be mailed to such holders a notice of such special meeting to
be held not less than ten and not more than 45 days after the date such
notice is given. The record date for determining holders of the Parity
Securities entitled to notice of and to vote at such special meeting
will be the close of business on the third Business Day preceding the
day on which such notice is mailed. At any annual or special meeting at
which Parity Securities are entitled to vote, all of the holders of the
Parity Securities, by plurality vote, voting together as a single class
without regard to series will be entitled to elect two directors on the
basis of one vote per $25.00 of liquidation preference to which such
Parity Securities are entitled by their terms (excluding amounts in
respect of accumulated and unpaid dividends) and not cumulatively.
The holder or holders of the Parity Securities representing one-third
of the total voting power of the Parity Securities then outstanding,
present in person or by proxy, will constitute a quorum for the election
of the Preferred Stock Directors except as otherwise provided by law.
Notice of all meetings at which holders of the Series C Preferred Stock
shall be entitled to vote will be given to such holders at their
addresses as they appear in the transfer records. At any such meeting or
adjournment thereof in
A-5.8
the absence of a quorum, subject to the provisions of any applicable
law, the holders of the Parity Securities representing a majority of the
voting power of the Parity Securities present in person or by proxy
shall have the power to adjourn the meeting for the election of the
Preferred Stock Directors, without notice other than an announcement at
the meeting, until a quorum is present. If a Series C Preferred
Distribution Default shall terminate after the notice of an annual or
special meeting has been given but before such meeting has been held,
the Corporation shall, as soon as practicable after such termination,
mail or cause to be mailed notice of such termination to holders of the
Series C Preferred Stock that would have been entitled to vote at such
meeting.
(iii) If and when all accumulated distributions and the
distribution for the current distribution period on the Series C
Preferred Stock shall have been paid in full or a sum sufficient for
such payment is irrevocably deposited in trust for payment, the holders
of the Series C Preferred Stock shall be divested of the voting rights
set forth in Section 6(b) herein (subject to revesting in the event of
each and every Series C Preferred Distribution Default) and, if all
distributions in arrears and the distributions for the current
distribution period have been paid in full or set aside for payment in
full on all other classes or series of Parity Preferred Stock upon which
like voting rights have been conferred and are exercisable, the terms
and office of each Preferred Stock Director so elected shall terminate.
Any Preferred Stock Director may be removed at any time with or without
cause by the vote of, and shall not be removed otherwise than by the
vote of, the holders of record of a majority of the outstanding Series C
Preferred Stock when they have the voting rights set forth in Section
6(b) (voting separately as a single class with all other classes or
series of Parity Preferred Stock upon which like voting rights have been
conferred and are exercisable). So long as a Series C Preferred
Distribution Default shall continue, any vacancy in the office of a
Preferred Stock Director may be filled by written consent of the
Preferred Stock Director remaining in office, or if none remains in
office, by a vote of the holders of record of a majority of the
outstanding Series C Preferred Stock when they have the voting rights
set forth in Section 6(b) (voting separately as a single class with all
other classes or series of Parity Preferred Stock upon which like voting
rights have been conferred and are exercisable). The Preferred Stock
Directors shall each be entitled to one vote per director on any matter.
(c) Certain Voting Rights. So long as any Series C Preferred
Stock remains outstanding, the Corporation shall not, without the affirmative
vote of the holders of at least two-thirds of the Series C Preferred Stock
outstanding at the time (i) authorize, designate or create, or increase the
authorized or issued amount of, any class or series of shares ranking prior to
the Series C Preferred Stock with respect to payment of distributions or rights
upon liquidation, dissolution or winding-up or reclassify any authorized shares
of the Corporation into any such shares, or create, authorize or issue any
obligations or securities convertible into or evidencing the right to purchase
any such shares, (ii) authorize, designate or create, or increase the authorized
or issued amount of, any Parity Preferred Stock or reclassify any authorized
shares of the Corporation into any such shares, or create, authorize or issue
any obligations or securities convertible into or evidencing the right to
purchase any such shares,
A-5.9
but only to the extent such Parity Preferred Stock is issued to an affiliate of
the Corporation (other than Security Capital U.S. Realty, Security Capital
Holdings, S.A. or their affiliates), or (iii) either (A) consolidate, merge into
or with, or convey, transfer or lease its assets substantially as an entirety,
to any corporation or other entity, or (B) amend, alter or repeal the provisions
of the Corporation's Charter (including these Articles of Amendment) or By-laws,
hether by merger, consolidation or otherwise, in each case in a manner that
would materially and adversely affect the powers, special rights, preferences,
privileges or voting power of the Series C Preferred Stock or the holders
thereof; provided, however, that with respect to the occurrence of a merger,
consolidation or a sale or lease of all of the Corporation's assets as an
entirety, so long as (a) the Corporation is the surviving entity and the Series
C Preferred Stock remains outstanding with the terms thereof unchanged, or (b)
the resulting, surviving or transferee entity is a corporation organized under
the laws of any state and substitutes the Series C Preferred Stock for other
preferred stock having substantially the same terms and same rights as the
Series C Preferred Stock, including with respect to distributions, redemptions,
transfers, voting rights and rights upon liquidation, dissolution or winding-up,
then the occurrence of any such event shall not be deemed to materially and
adversely affect such rights, privileges or voting powers of the holders of the
Series C Preferred Stock and no vote of the Series C Preferred Stock shall be
required in such case and provided further that any increase in the amount of
authorized Preferred Stock or the creation or issuance of any other class or
series of Preferred Stock, or any increase in an amount of authorized shares of
each class or series, in each case ranking either (a) junior to the Series C
Preferred Stock with respect to payment of distributions and the distribution
of assets upon liquidation, dissolution or winding-up, or (b) on a parity with
the Series C Preferred Stock with respect to payment of distributions and the
distribution of assets upon liquidation, dissolution or winding-up to the extent
such Preferred Stock is not issued to an affiliate of the Corporation (other
than Security Capital U.S. Realty, Security Capital Holdings, S.A. or their
affiliates), shall not be deemed to materially and adversely affect such rights,
preferences, privileges or voting powers and no vote of the Series C Preferred
Stock shall be required in such case.
Section 7. No Conversion Rights. The holders of the Series C Preferred
Stock shall not have any rights to convert such shares into shares of any other
class or series of stock or into any other securities of, or interest in, the
Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for
the retirement or redemption of Series C Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series C Preferred
Stock of the Corporation shall, as such holder, have any preemptive rights to
purchase or subscribe for additional shares of stock of the Corporation or any
other security of the Corporation which it may issue or sell.
A-5.10
ADDENDUM 6 TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 500,000 SHARES OF
9.125% SERIES D CUMULATIVE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation
Act ("FBCA"), Regency Realty Corporation, a Florida corporation (the
"Corporation"), does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Amended and Restated Articles
of Incorporation of the Corporation (the "Charter") and Section 607.0602 of the
FBCA, the Board of Directors of the Corporation (the "Board of Directors"), by
resolutions duly adopted on August 23, 1999 and resolutions duly adopted by a
committee of the Board of Directors on September 29, 1999 has classified 500,000
shares of the authorized but unissued Preferred Stock par value $.01 per share
("Preferred Stock") as a separate class of Preferred Stock, authorized the
issuance of a maximum of 500,000 shares of such class of Preferred Stock, set
certain of the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications, terms and conditions
of redemption and other terms and conditions of such class of Preferred Stock,
and pursuant to the powers contained in the Bylaws of the Corporation and the
FBCA, appointed a committee (the "Committee") of the Board of Directors and
delegated to the Committee, to the fullest extent permitted by the FBCA and the
Charter and Bylaws of the Corporation, all powers of the Board of Directors with
respect to designating, and setting all other preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of redemption of, such
class of Preferred Stock determining the number of shares of such class of
Preferred Stock (not in excess of the aforesaid maximum number) to be issued and
the consideration and other terms and conditions upon which such shares of such
class of Preferred Stock are to be issued. Shareholder approval was not required
under the Charter with respect to such designation.
SECOND: Pursuant to the authority conferred upon the Committee as
aforesaid, the Committee has unanimously adopted resolutions designating the
aforesaid class of Preferred Stock as the ?9.125% Series D Cumulative Redeemable
Preferred Stock," setting the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such 9.125% Series D
Cumulative Redeemable Preferred Stock (to the extent not set by the Board of
Directors in the resolutions referred to in Article FIRST of these Articles of
A-6.1
Amendment) and authorizing the issuance of up to 500,000 shares of 9.125% Series
D Cumulative Redeemable Preferred Stock.
THIRD: The class of Preferred Stock of the Corporation created by
the resolutions duly adopted by the Board of Directors of the Corporation and by
the Committee and referred to in Articles FIRST and SECOND of these Articles of
Amendment shall have the following designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitation as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
Section 1. Designation and Number. A series of Preferred Stock,
designated the "9.125% Series D Cumulative Redeemable Preferred Stock" (the
"Series D Preferred Stock") is hereby established. The number of shares of
Series D Preferred Stock shall be 500,000.
Section 2. Rank. The Series D Preferred Stock will, with respect to
distributions and rights upon voluntary or involuntary liquidation, winding-up
or dissolution of the Corporation, rank senior to all classes or series of
Common Stock (as defined in the Charter) and to all classes or series of equity
securities of the Corporation now or hereafter authorized, issued or
outstanding, other than any class or series of equity securities of the
Corporation expressly designated as ranking on a parity with or senior to the
Series D Preferred Stock as to distributions or rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the Corporation or both.
For purposes of these Articles of Amendment, the term "Parity Preferred Stock"
shall be used to refer to any class or series of equity securities of the
Corporation now or hereafter authorized, issued or outstanding expressly
designated by the Corporation to rank on a parity with Series D Preferred Stock
with respect to distributions or rights upon voluntary or involuntary
liquidation, winding-up or dissolution of the Corporation or both, as the
context may require, whether or not the dividend rates, dividend payment dates
or redemption or liquidation prices per share or conversion rights or exchange
rights shall be different from those of the Series D Preferred Stock and
includes the Series A Cumulative Redeemable Preferred Stock, the Series B
Cumulative Redeemable Preferred Stock, the Series C Cumulative Redeemable
Preferred Stock, the Series 1 Cumulative Convertible Redeemable Preferred Stock
and the Series 2 Cumulative Convertible Redeemable Preferred Stock of the
Corporation. The term "equity securities" does not include debt securities,
which will rank senior to the Series D Preferred Stock prior to conversion.
Section 3. Distributions.
(a) Payment of Distributions. Subject to the rights of holders
of Parity Preferred Stock as to the payment of distributions and holders of
equity securities issued after the date hereof in accordance herewith ranking
senior to the Series D Preferred Stock as to payment of distributions, holders
of Series D Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors of the Corporation, out of funds legally
available for the payment of distributions, cumulative cash distributions at the
rate per annum of 9.125% of the $100.00 liquidation preference per share of
Series D Preferred Stock. Such distributions shall be cumulative, shall accrue
from the original date of issuance and will be
A-6.2
payable in cash (A) quarterly (such quarterly periods for purposes of payment
and accrual will be the quarterly periods ending on the dates specified in this
sentence) in arrears, on or before March 31, June 30, September 30 and December
31 of each year commencing on the first of such dates to occur after the
original date of issuance and, (B) in the event of a redemption, on the
redemption date (each a "Preferred Stock Distribution Payment Date"). The amount
of the distribution payable for any period will be computed on the basis of a
360-day year of twelve 30-day months and for any period shorter than a full
quarterly period for which distributions are computed, the amount of the
distribution payable will be computed on the basis of the ratio of the actual
umber of days elapsed in such period to ninety (90) days. If any date on which
distributions are to be made on the Series D Preferred Stock is not a Business
Day (as defined herein), then payment of the distribution to be made on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. Distributions on the Series D Preferred Stock
will be made to the holders of record of the Series D Preferred Stock on the
relevant record dates to be fixed by the Board of Directors of the Corporation,
which record dates shall be not less than 10 days and not more than 30 Business
Days prior to the relevant Preferred Stock Distribution Payment Date (each a
"Distribution Record Date"). Notwithstanding anything to the contrary set forth
herein, each share of Series D Preferred Stock shall also continue to accrue all
accrued and unpaid distributions, whether or not declared, up to the exchange
date on any Series D Preferred Unit (as defined in the Third Amended and
Restated Agreement of Limited Partnership of Regency Centers, L.P., dated as
September 1, 1999 as amended by Amendment No. 1 to the Third Amended and
Restated Agreement of Limited Partnership of Operating Partnership, dated as of
September 3, 1999, Amendment No. 2 to the Third Amended and Restated Agreement
of Limited Partnership of Operating Partnership, dated as of September 3, 1999
and that certain Third Amendment to Third Amended and Restated Agreement of
Limited Partnership dated as of September 29, 1999 (as amended the Partnership
Agreement")) validly exchanged into such share of Series D Preferred Stock in
accordance with the provisions of such Partnership Agreement.
The term "Business Day" shall mean each day, other than
a Saturday or a Sunday, which is not a day on which banking institutions in New
York, New York are authorized or required by law, regulation or executive order
to close.
(b) Limitation on Distributions. No distribution on the Series
D Preferred Stock shall be declared or paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement of the
Corporation (other than any agreement with a holder or affiliate of holder of
Capital Stock of the Corporation) relating to its indebtedness, prohibit such
declaration, payment or setting apart for payment or provide that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration, payment or setting
apart for payment shall be restricted or prohibited by law. Nothing in
this Section 3(b) shall be deemed to modify or in any manner limit the
provisions of Section 3(c) and 3(d).
A-6.3
(c) Distributions Cumulative. Distributions on the Series D
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series D Preferred Stock will accumulate as of the Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid
at any time, without reference to a regular Preferred Stock Distribution Payment
Date to holders of record of the Series D Preferred Stock on the record date
fixed by the Board of Directors which date shall be not less than 10 days and
not more than 30 Business Days prior to the payment date. Accumulated and unpaid
distributions will not bear interest.
(d) Priority as to Distributions.
(i) So long as any Series D Preferred Stock is
outstanding, no distribution of cash or other property shall be authorized,
declared, paid or set apart for payment on or with respect to any class or
series of Common Stock or any class or series of other stock of the Corporation
ranking junior to the Series D Preferred Stock as to the payment of
distributions (such Common Stock or other junior stock, collectively, "Junior
Stock"), nor shall any cash or other property be set aside for or applied to the
purchase, redemption or other acquisition for consideration of any Series D
Preferred Stock, any Parity Preferred Stock with respect to distributions or any
Junior Stock, unless, in each case, all distributions accumulated on all Series
D Preferred Stock and all classes and series of outstanding Parity Preferred
Stock with respect to distributions have been paid in full. Without limiting
Section 6(b) hereof, the foregoing sentence will not prohibit (i) distributions
payable solely in shares of Junior Stock, (ii) the conversion of Junior Stock or
Parity Preferred Stock into Junior Stock, and (iii) purchases by the Corporation
of such Series D Preferred Stock or Parity Preferred Stock or Junior Stock
pursuant to Article 5 of the Charter to the extent required to preserve the
Corporation's status as a real estate investment trust.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably deposited
in trust for payment) upon the Series D Preferred Stock, all
distributions authorized and declared on the Series D Preferred
Stock and all classes or series of outstanding Parity Preferred
Stock with respect to distributions shall be authorized and declared
so that the amount of distributions authorized and declared per
share of Series D Preferred Stock and such other classes or series
of Parity Preferred Stock shall in all cases bear to each other the
same ratio that accrued distributions per share on the Series D
Preferred Stock and such other classes or series of Parity Preferred
Stock (which shall not include any accumulation in respect of unpaid
distributions for prior distribution periods if such class or series
of Parity Preferred Stock do not have cumulative distribution
rights) bear to each other.
A-6.4
(e) No Further Rights. Holders of Series D Preferred Stock
shall not be entitled to any distributions, whether payable in cash, other
property or otherwise, in excess of the full cumulative distributions described
herein.
Section 4. Liquidation Preference.
(a) Payment of Liquidating Distributions. Subject to the rights
of holders of Parity Preferred Stock with respect to rights upon any voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation and
subject to equity securities ranking senior to the Series D Preferred Stock with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Series D Preferred Stock shall be
entitled to receive out of the assets of the Corporation legally available for
distribution or the proceeds thereof, after payment or provision for debts and
other liabilities of the Corporation, but before any payment or distributions of
the assets shall be made to holders of Common Stock or any other class or series
of shares of the Corporation that ranks junior to the Series D Preferred Stock
as to rights upon liquidation, dissolution or winding-up of the Corporation, an
amount equal to the sum of (i) a liquidation preference of $100 per share of
Series D Preferred Stock, and (ii) an amount equal to any accumulated and unpaid
distributions thereon, whether or not declared, to the date of payment. In the
event that, upon such voluntary or involuntary liquidation, dissolution or
winding-up, there are insufficient assets to permit full payment of liquidating
distributions to the holders of Series D Preferred Stock and any Parity
Preferred Stock as to rights upon liquidation, dissolution or winding-up of the
Corporation, all payments of liquidating distributions on the Series D Preferred
Stock and such Parity Preferred Stock shall be made so that the payments on the
Series D Preferred Stock and such Parity Preferred Stock shall in all cases bear
to each other the same ratio that the respective rights of the Series D
Preferred Stock and such other Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior distribution
periods if such Parity Preferred Stock do not have cumulative distribution
rights) upon liquidation, dissolution or winding-up of the Corporation bear to
each other.
(b) Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by (i) fax and (ii) by first
class mail, postage pre-paid, not less than 30 and not more than 60 days prior
to the payment date stated therein, to each record holder of the Series D
Preferred Stock at the respective addresses of such holders as the same shall
appear on the share transfer records of the Corporation.
(c) No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series D
Preferred Stock will have no right or claim to any of the remaining assets of
the Corporation.
(d) Consolidation, Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the
A-6.5
consolidation or merger or other business combination of the Corporation with or
into, any corporation, trust or other entity (or of any corporation, trust or
other entity with or into the Corporation) shall not be deemed to constitute a
liquidation, dissolution or winding-up of the Corporation.
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
Section 5. Optional Redemption.
(a) Right of Optional Redemption. The Series D Preferred Stock
may not be redeemed prior to September 29, 2004. On or after such date, the
Corporation shall have the right to redeem the Series D Preferred Stock, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' written notice, at a redemption price, payable in cash, equal
to $100 per share of Series D Preferred Stock plus accumulated and unpaid
distributions, whether or nor declared, to the date of redemption. If fewer than
all of the outstanding shares of Series D Preferred Stock are to be redeemed,
the shares of Series D Preferred Stock to be redeemed shall be selected pro rata
(as nearly as practicable without creating fractional units).
(b) Limitation on Redemption.
(i) The redemption price of the Series D Preferred Stock
(other than the portion thereof consisting of accumulated but unpaid
distributions) will be payable solely out of sale proceeds of capital stock of
the Corporation and from no other source. For purposes of the preceding
sentence, "capital stock" means any equity securities (including Common Stock
and Preferred Stock), shares, participation or other ownership interests
(however designated) and any rights (other than debt securities convertible into
or exchangeable for equity securities) or options to purchase any of the
foregoing.
(ii) The Corporation may not redeem fewer than all of the
outstanding shares of Series D Preferred Stock unless all accumulated and unpaid
distributions have been paid on all Series D Preferred Stock for all quarterly
distribution periods terminating on or prior to the date of redemption.
(c) Procedures for Redemption.
(i) Notice of redemption will be (i) faxed, and (ii)
mailed by the Corporation, postage prepaid, not less than 30 nor more
than 60 days prior to the redemption date, addressed to the respective
holders of record of the Series D Preferred
A-6.6
Stock to be redeemed at their respective addresses as they appear on the
transfer records of the Corporation. No failure to give or defect in
such notice shall affect the validity of the proceedings for the
redemption of any Series D Preferred Stock except as to the holder to
whom such notice was defective or not given. In addition to any
information required by law or by the applicable rules of any exchange
upon which the Series D Preferred Stock may be listed or admitted to
trading, each such notice shall state: (i) the redemption date, (ii)
the redemption price, (iii) the number of shares of Series D Preferred
Stock to be redeemed, (iv) the place or places where such shares of
Series D Preferred Stock are to be surrendered for payment of the
redemption price, (v) that distributions on the Series D Preferred Stock
to be redeemed will cease to accumulate on such redemption date and
(vi) that payment of the redemption price and any accumulated and unpaid
distributions will be made upon presentation and surrender of such
Series D Preferred Stock. If fewer than all of the shares of Series D
Preferred Stock held by any holder are to be redeemed, the notice mailed
to such holder shall also specify the number of shares of Series D
Preferred Stock held by such holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in
respect of Series D Preferred Stock (which notice will be irrevocable)
then, by 12:00 noon, New York City time, on the redemption date, the
Corporation will deposit irrevocably in trust for the benefit of the
Series D Preferred Stock being redeemed funds sufficient to pay the
applicable redemption price, plus any accumulated and unpaid
distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any
accumulated and unpaid distributions, if any, on such shares to the
holders of the Series D Preferred Stock upon surrender of the
certificate evidencing the Series D Preferred Stock by such holders at
the place designated in the notice of redemption. If fewer than all
Series D Preferred Stock evidenced by any certificate is being redeemed,
a new certificate shall be issued upon surrender of the certificate
evidencing all Series D Preferred Stock, evidencing the unredeemed
Series D Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on
the Series D Preferred Stock or portions thereof called for redemption,
unless the Corporation defaults in the payment thereof. If any date
fixed for redemption of Series D Preferred Stock is not a Business Day,
then payment of the redemption price payable on such date will be made
on the next succeeding day that is a Business Bay (and without any
interest or other payment in respect of any such delay) except that, if
such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date fixed for redemption. If
payment of the redemption price or any accumulated or unpaid
distributions in respect of the Series D Preferred Stock is improperly
withheld or refused and not paid by the Corporation, distributions on
such Series D Preferred Stock will continue to accumulate from the
original redemption date to the date of payment, in which case the
actual payment date will be considered the date fixed for redemption for
purposes of
A-6.7
calculating the applicable redemption price and any accumulated and
unpaid distributions.
(d) Status of Redeemed Stock. Any Series D Preferred Stock that
shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
class or series until such shares are once more designated as part of a
particular class or series by the Board of Directors.
Section 6. Voting Rights.
(a) General. Holders of the Series D Preferred Stock will not
have any voting rights, except as set forth below.
(b) Right to Elect Directors.
(i) If at any time distributions shall be in arrears
(which means that, as to any such quarterly distributions, the same have
not been paid in full) with respect to six (6) prior quarterly
distribution periods (including quarterly periods on the Series D
Preferred Units prior to the exchange into Series D Preferred Stock),
whether or not consecutive, and shall not have been paid in full (a
"Preferred Distribution Default"), the authorized number of members of
the Board of Directors shall automatically be increased by two and the
holders of record of such Series D Preferred Stock, voting together as a
single class with the holders of each class or series of Parity
Securities (as defined below), will be entitled to fill the vacancies so
created by electing two additional directors to serve on the
Corporation's Board of Directors (the "Preferred Stock Directors") at a
special meeting called in accordance with Section 6(b)(ii) or at the
next annual meeting of stockholders, and at each subsequent annual
meeting of stockholders or special meeting held in place thereof, until
all such distributions in arrears and distributions for the current
quarterly period on the Series D Preferred Stock and each such class or
series of Parity Securities have been paid in full.
(ii) At any time when such voting rights shall have
vested, a proper officer of the Corporation shall call or cause to be
called, upon written request of holders of record of at least 10% of the
outstanding shares of Series D Preferred Stock, a special meeting of the
holders of Series D Preferred Stock and all the series of Parity
Preferred Stock which are (i) on parity with the Series D Preferred
Stock both as to distributions and rights upon liquidation, dissolution
and winding up, (ii) with respect to Parity Preferred Stock outstanding
as a result of an acquisition of another corporation, on parity with the
Series D Preferred Stock as to distributions only or with respect to
distributions and rights upon liquidation, dissolution or winding up or
(iii) on parity with the Series D Preferred Stock as to distributions,
but junior as to rights upon liquidation, dissolution and winding up,
but if any such Parity Preferred Stock referred to in this clause (iii)
was issued for an amount less than its liquidation preference, the
holders thereof shall be entitled to one vote for each $25.00 of
issuance price, in lieu of one vote for each $25.00 of liquidation
preference, and upon which like voting rights have been conferred and
are exercisable (collectively, the "Parity Securities") by
A-6.8
mailing or causing to be mailed to such holders a notice of such special
meeting to be held not less than ten and not more than 45 days after the
date such notice is given. The record date for determining holders of
the Parity Securities entitled to notice of and to vote at such special
meeting will be the close of business on the third Business Day
preceding the day on which such notice is mailed. At any annual or
special meeting at which Parity Securities are entitled to vote, all of
the holders of the Parity Securities, by plurality vote, voting together
as a single class without regard to series will be entitled to elect two
directors on the basis of one vote per $25.00 of liquidation preference
to which such Parity Securities are entitled by their terms (excluding
amounts in respect of accumulated and unpaid dividends) and not
cumulatively. The holder or holders of the Parity Securities
representing one-third of the total voting power of the Parity
Securities then outstanding, present in person or by proxy, will
constitute a quorum for the election of the Preferred Stock Directors
except as otherwise provided by law. Notice of all meetings at which
holders of the Series D Preferred Stock shall be entitled to vote will
be given to such holders at their addresses as they appear in the
transfer records. At any such meeting or adjournment thereof in the
absence of a quorum, subject to the provisions of any applicable law,
the holders of the Parity Securities representing a majority of the
voting power of the Parity Securities present in person or by proxy
shall have the power to adjourn the meeting for the election of the
Preferred Stock Directors, without notice other than an announcement at
the meeting, until a quorum is present. If a Preferred Distribution
Default shall terminate after the notice of an annual or special meeting
has been given but before such meeting has been held, the Corporation
shall, as soon as practicable after such termination, mail or cause to
be mailed notice of such termination to holders of the Series D
Preferred Stock that would have been entitled to vote at such meeting.
(iii) If and when all accumulated distributions and the
distribution for the current distribution period on the Series D
Preferred Stock shall have been paid in full or a sum sufficient for
such payment is irrevocably deposited in trust for payment, the holders
of the Series D Preferred Stock shall be divested of the voting rights
set forth in Section 6(b) herein (subject to revesting in the event of
each and every Preferred Distribution Default) and, if all distributions
in arrears and the distributions for the current distribution period
have been paid in full or set aside for payment in full on all other
classes or series of Parity Securities upon which like voting rights
have been conferred and are exercisable, the term and office of each
Preferred Stock Director so elected shall terminate. Any Preferred
Stock Director may be removed at any time with or without cause by the
vote of, and shall not be removed otherwise than by the vote of, the
holders of record of a majority of the outstanding Series D Preferred
Stock when they have the voting rights set forth in Section 6(b) (voting
separately as a single class with all other classes or series of Parity
Preferred Stock upon which like voting rights have been conferred and
are exercisable). So long as a Preferred Distribution Default shall
continue, any vacancy in the office of a Preferred Stock Director may be
filled by written consent of the Preferred Stock Director remaining in
office, or if none remains in office, by a vote of the holders of record
of a majority of the outstanding Series D Preferred Stock when they have
the voting rights set forth in
A-6.9
Section 6(b) (voting separately as a single class with all other classes
or series of Parity Securities upon which like voting rights have been
conferred and are exercisable). The Preferred Stock Directors shall
each be entitled to one vote per director on any matter.
(c) Certain Voting Rights. So long as any Series D Preferred
Stock remains outstanding, the Corporation shall not, without the affirmative
vote of the holders of at least two-thirds of the Series D Preferred Stock and
the Series D Preferred Units outstanding at such time and not previously
surrendered in exchange for Series D Preferred Stock together, if applicable,
voting as a single class based on the number of shares into which such Series D
Preferred Units are then convertible (collectively, the "Series D Voting
Securities") (i) designate or create, or increase the authorized or issued
amount of, any class or series of shares ranking senior to the Series D
Preferred Stock with respect to payment of distributions or rights upon
liquidation, dissolution or winding-up or reclassify any authorized shares of
the Corporation into any such shares, or create, authorize or issue any
obligations or securities convertible into or evidencing the right to purchase
any such shares, (ii) designate or create, or increase the authorized or issued
amount of, any Parity Preferred Stock or reclassify any authorized shares of the
Corporation into any such shares, or create, authorize or issue any obligations
or securities convertible into or evidencing the right to purchase any such
shares, but only to the extent such Parity Preferred Stock is issued to an
affiliate of the Corporation (other than Security Capital U.S. Realty,
Security Capital Holdings, S.A. or their affiliates if issued upon arms-length
terms in the good faith determination of the Board of Directors), or (iii)
either (A) consolidate, merge into or with, or convey, transfer or lease its
assets substantially as an entirety, to any corporation or other entity, or (B)
amend, alter or repeal the provisions of the Corporation?s Charter (including
these Articles of Amendment) or By-laws, whether by merger, consolidation
or otherwise, in each case that would materially and adversely affect the
powers, special rights, preferences, privileges or voting power of the Series D
Preferred Stock or the holders thereof; provided, however, that with respect to
the occurrence of a merger, consolidation or a sale or lease of all of the
Corporation's assets as an entirety, so long as (a) the Corporation is the
surviving entity and the Series D Preferred Stock remains outstanding with the
terms thereof unchanged, or (b) the resulting, surviving or transferee entity is
a corporation organized under the laws of any state and substitutes the Series D
Preferred Stock for other preferred stock having substantially the same terms
and same rights as the Series D Preferred Stock, including with respect to
distributions, voting rights and rights upon liquidation, dissolution or
winding-up, then the occurrence of any such event shall not be deemed to
materially and adversely affect such rights, privileges or voting powers of the
holders of the Series D Preferred Stock and no vote of the Series D Voting
Securities shall be required in such case; and provided further that any
increase in the amount of authorized Preferred Stock or the creation or issuance
of any other class or series of Preferred Stock, or any increase in an amount of
authorized shares of each class or series, in each case ranking either (a)
junior to the Series D Preferred Stock with respect to payment of distributions
or the distribution of assets upon liquidation, dissolution or winding-up, or
(b) on a parity with the Series D Preferred Stock with respect to payment of
distributions or the distribution of assets upon liquidation, dissolution or
winding-up to the extent such Preferred Stock is not issued to a affiliate of
the Corporation (other than Security Capital U.S. Realty, Security Capital
Holdings, S.A. or their affiliates if issued upon arms-length terms in the good
A-6.10
faith determination of the Board of Directors), shall not be deemed to
materially and adversely affect such rights, preferences, privileges or voting
powers and no vote of the Series D Preferred Stock shall be required in such
case.
Section 7. No Conversion Rights. The holders of the Series D Preferred
Stock shall not have any rights to convert such shares into shares of any other
class or series of stock or into any other securities of, or interest in, the
Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for
the retirement or redemption of Series D Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series D Preferred
Stock of the Corporation shall, as such holder, have any preemptive rights to
purchase or subscribe for additional shares of stock of the Corporation or any
other security of the Corporation which it may issue or sell.
A-6.11
ADDENDUM 7 TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 700,000 SHARES OF
8.75% SERIES E CUMULATIVE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation Act
("FBCA"), Regency Realty Corporation, a Florida corporation (the "Corporation"),
does hereby certify that:
ARTICLE 1: Pursuant to the authority expressly vested in the Board
of Directors of the Corporation by Section 4.2 of the Amended and Restated
Articles of Incorporation of the Corporation (as amended, the "Charter") and
Section 607.0602 of the FBCA, the Board of Directors of the Corporation (the
"Board of Directors"), by resolutions duly adopted on May 25, 2000 has
classified 700,000 shares of the authorized but unissued Preferred Stock par
value $.0l per share ("Preferred Stock") as a separate class of Preferred Stock,
authorized the issuance of a maximum of 700,000 shares of such class of
Preferred Stock, set certain of the preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications, terms
and conditions of redemption and other terms and conditions of such class of
Preferred Stock, and pursuant to the powers contained in the Bylaws of the
Corporation and the FBCA, appointed a committee (the "Committee") of the Board
of Directors and delegated to the Committee, to the fullest extent permitted by
the FBCA and the Charter and Bylaws of the Corporation, all powers of the Board
of Directors with respect to designating, and setting all other preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends and other distributions, qualifications and terms and conditions of
redemption of, such class of Preferred Stock, determining the number of shares
of such class of Preferred Stock (not in excess of the aforesaid maximum number)
to be issued and the consideration and other terms and conditions upon which
such shares of such class of Preferred Stock are to be issued. Shareholder
approval was not required under the Charter with respect to such designation.
Capitalized terms used and not otherwise defined herein shall have the meaning
assigned thereto in the Charter.
ARTICLE II: Pursuant to the authority conferred upon the Committee
as aforesaid, the Committee has unanimously adopted resolutions designating the
aforesaid class of Preferred Stock as the "8.75% Series E Cumulative Redeemable
Preferred Stock," setting the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such 8.75% Series E
Cumulative Redeemable Preferred Stock (to the extent not set by the Board of
Directors in the resolutions referred to in Article 0 of these Articles of
Amendment)
A-7.1
and authorizing the issuance of up to 700,000 shares of 8.75% Series E
Cumulative Redeemable Preferred Stock.
ARTICLE III: The class of Preferred Stock of the Corporation created
by the resolutions duly adopted by the Board of Directors of the Corporation and
by the Committee and referred to in Articles 0 and 0 of these Articles of
Amendment shall have the following designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitation as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
Section 1. Designation and Number. A series of Preferred Stock,
designated the "8.75% Series E Cumulative Redeemable Preferred Stock" (the
"Series E Preferred Stock") is hereby established. The number of shares of
Series E Preferred Stock shall be 700,000.
Section 2. Rank. The Series E Preferred Stock will, with respect to
distributions or rights upon voluntary or involuntary liquidation, winding-up or
dissolution of the Corporation, or both, rank senior to all classes or series of
Common Stock (as defined in the Charter) and to all classes or series of equity
securities of the Corporation now or hereafter authorized, issued or outstanding
other than any class or series of equity securities of the Corporation expressly
designated as ranking on a parity with or senior to the Series E Preferred Stock
as to distributions or rights upon voluntary or involuntary liquidation,
winding-up or dissolution of the Corporation, or both. For purposes of these
Articles of Amendment, the term "Parity Preferred Stock" shall be used to refer
to any class or series of equity securities of the Corporation now or hereafter
authorized, issued or outstanding expressly designated by the Corporation to
rank on a parity with Series E Preferred Stock with respect to distributions or
rights upon voluntary or involuntary liquidation, winding-up or dissolution of
the Corporation, or both, as the context may require, whether or not the
dividend rates, dividend payment dates or redemption or liquidation prices per
share or conversion rights or exchange rights shall be different from those of
the Series E Preferred Stock. The term "equity securities" does not include debt
securities, which will rank senior to the Series E Preferred Stock prior to
conversion. The Series E Preferred Stock is expressly designated as ranking on a
parity with the Series 1 Cumulative Convertible Redeemable Preferred Stock, the
Series 2 Cumulative Convertible Redeemable Preferred Stock, Series A Preferred
Stock, the Series B Preferred Stock, the Series C Preferred Stock and the Series
D Preferred Stock.
Section 3. Distributions
(a) Payment of Distributions. Subject to the rights of holders
of Parity Preferred Stock as to the payment of distributions and holders of
equity securities issued after the date hereof in accordance herewith ranking
senior to the Series E Preferred Stock as to payment of distributions, holders
of Series E Preferred Stock shall be entitled to receive, out of funds legally
available for the payment of distributions, cumulative preferential cash
distributions at the rate per annum of 8.75% of the $100.00 liquidation
preference per share of Series E Preferred Stock. Such distributions shall be
cumulative, shall accrue from the original date of issuance and will be payable
in cash when, as and if declared by the Board of Directors
A-7.2
of the Corporation (A) quarterly in arrears, on or before March 31, June 30,
September 30 and December 31 of each year commencing on the first of such dates
to occur after the original date of issuance and, (B) in the event of a
redemption, on the redemption date (each a "Series E Preferred Stock
Distribution Payment Date"). The amount of the distribution payable for any
period will be computed on the basis of a 360-day year of twelve 30-day months
and for any period shorter than a full quarterly period for which distributions
are computed, the amount of the distribution payable will be computed based on
the ratio of the actual number of days elapsed in such quarterly period to 90
days. If any date on which distributions are to be made on the Series E
Preferred Stock is not a Business Day (as defined herein), then payment of the
distribution to be made on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
Distributions on the Series E Preferred Stock will be made to the holders of
record of the Series E Preferred Stock on the relevant record dates to be fixed
by the Board of Directors of the Corporation, which record dates shall be not
less than 10 days and not more than 30 Business Days prior to the relevant
Series E Preferred Stock Distribution Payment Date (each a "Distribution Record
Date"). Notwithstanding anything to the contrary set forth herein, each share of
Series E Preferred Stock shall also continue to accrue all accrued and unpaid
distributions, whether or not declared, up to the exchange date on any Series E
Preferred Unit (as defined in the Third Amended and Restated Agreement of
Limited Partnership of Regency Centers, L.P., dated as September 1, 1999 as
amended by that certain Amendment No. 4 to Third Amended and Restated Agreement
of Limited Partnership dated as of May 25, 2000 (as amended, the "Partnership
Agreement")) validly exchanged into such share of Series E Preferred Stock in
accordance with the provisions of such Partnership Agreement.
The term "Business Day" shall mean each day, other than a Saturday
or a Sunday, which is not a day on which banking institutions in New York, New
York are authorized or required by law, regulation or executive order to close.
(b) Distributions Cumulative. Distributions on the Series E
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series E Preferred Stock will accumulate as of the Series E Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid at
any time, without reference to a regular Series E Preferred Stock Distribution
Payment Date to holders of record of the Series E Preferred Stock on the record
date fixed by the Board of Directors which date shall be not less than 10 days
and not more than 30 Business Days prior to the payment date. Accumulated and
unpaid distributions will not bear interest.
A-7.3
(c) Priority as to Distributions.
(i) So long as any Series E Preferred Stock is
outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect
to any class or series of Common Stock or any class or series of other
stock of the Corporation ranking junior as to the payment of
distributions to the Parity Preferred Stock (such Common Stock or other
junior stock, collectively, "Junior Stock"), nor shall any cash or other
property be set aside for or applied to the purchase, redemption or
other acquisition for consideration of any Series E Preferred Stock, any
Parity Preferred Stock with respect to distributions or any Junior
Stock, unless in each case, all distributions accumulated on all Series
E Preferred Stock and all classes and series of outstanding Parity
Preferred Stock as to payment of distributions have been paid in full.
The foregoing sentence will not prohibit (i) distributions payable
solely in Junior Stock, (ii) the conversion of Series E Preferred Stock,
Junior Stock or Parity Preferred Stock into stock of the Corporation
ranking junior to the Series E Preferred Stock as to distributions, and
(iii) purchases by the Corporation of such Series E Preferred Stock or
Parity Preferred Stock with respect to distributions or Junior Stock
pursuant to Article 5 of the Charter to the extent required to preserve
the Corporation's status as a real estate investment trust.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably deposited
in trust for payment) upon the Series E Preferred Stock, all
distributions authorized and declared on the Series E Preferred Stock
and all classes or series of outstanding Parity Preferred Stock with
respect to distributions shall be authorized and declared so that the
amount of distributions authorized and declared per share of Series E
Preferred Stock and such other classes or series of Parity Preferred
Stock shall in all cases bear to each other the same ratio that accrued
distributions per share on the Series E Preferred Stock and such other
classes or series of Parity Preferred Stock (which shall not include any
accumulation in respect of unpaid distributions for prior distribution
periods if such class or series of Parity Preferred Stock does not have
cumulative distribution rights) bear to each other.
(d) No Further Rights. Holders of Series E Preferred Stock
shall not be entitled to any distributions, whether payable in cash, other
property or otherwise, in excess of the full cumulative distributions described
herein.
Section 4. Liquidation Preference.
(a) Payment of Liquidation Distributions. Subject to the rights
of holders of Parity Preferred Stock with respect to rights upon any voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation and
subject to equity securities ranking senior to the Series E Preferred Stock with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Series E Preferred Stock shall be
entitled to receive out of the assets of the Corporation legally available for
A-7.4
distribution or the proceeds thereof, after payment or provision for debts and
other liabilities of the Corporation, but before any payment or distributions of
the assets shall be made to holders of Common Stock or any other class or series
of shares of the Corporation that ranks junior to the Series E Preferred Stock
as to rights upon liquidation, dissolution or winding-up of the Corporation, an
amount equal to the sum of (i) a liquidation preference of $100.00 per share of
Series E Preferred Stock, and (ii) an amount equal to any accumulated and unpaid
distributions thereon, whether or not declared, to the date of payment. In the
event that, upon such voluntary or involuntary liquidation, dissolution or
winding-up, there are insufficient assets to permit full payment of liquidating
distributions to the holders of Series E Preferred Stock and any Parity
Preferred Stock as to rights upon liquidation, dissolution or winding-up of the
Corporation, all payments of liquidating distributions on the Series E Preferred
Stock and such Parity Preferred Stock shall be made so that the payments on the
Series E Preferred Stock and such Parity Preferred Stock shall in all cases bear
to each other the same ratio that the respective rights of the Series E
Preferred Stock and such other Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior distribution
periods if such Parity Preferred Stock does not have cumulative distribution
rights) upon liquidation, dissolution or winding-up of the Corporation bear to
each other.
(b) Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by (i) fax and (ii) by first
class mail, postage pre-paid, not less than 30 and not more than 60 days prior
to the payment date stated therein, to each record holder of the Series E
Preferred Stock at the respective addresses of such holders as the same shall
appear on the share transfer records of the Corporation.
(c) No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series E
Preferred Stock will have no right or claim to any of the remaining assets of
the Corporation.
(d) Consolidation Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the consolidation or merger or
other business combination of the Corporation with or into, any corporation,
trust or other entity (or of any corporation, trust or other entity with or into
the Corporation) shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Corporation.
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
A-7.5
Section 5. Optional Redemption.
(a) Right of Optional Redemption. The Series E Preferred Stock
may not be redeemed prior to May 25, 2005. On or after such date, the
Corporation shall have the right to redeem the Series E Preferred Stock, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' written notice, at a redemption price, payable in cash, equal
to $100.00 per share of Series E Preferred Stock plus accumulated and unpaid
distributions, whether or nor declared, to the date of redemption. If fewer than
all of the outstanding shares of Series E Preferred Stock are to be redeemed,
the shares of Series E Preferred Stock to be redeemed shall be selected pro rata
(as nearly as practicable without creating fractional shares).
(b) Limitation on Redemption.
(i) The redemption price of the Series E Preferred Stock
(other than the portion thereof consisting of accumulated but unpaid
distributions) will be payable solely out of sale proceeds of capital
stock of the Corporation and from no other source. For purposes of the
preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares, participation or
other ownership interests (however designated) and any rights (other
than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(ii) The Corporation may not redeem fewer than all of the
outstanding shares of Series E Preferred Stock unless all accumulated
and unpaid distributions have been paid on all Series E Preferred Stock
for all quarterly distribution periods terminating on or prior to the
date of redemption.
(c) Procedures for Redemption.
(i) Notice of redemption will be (i) faxed, and (ii)
mailed by the Corporation, postage prepaid, not less than 30 nor more
than 60 days prior to the redemption date, addressed to the respective
holders of record of the Series E Preferred Stock to be redeemed at
their respective addresses as they appear on the transfer records of the
Corporation. No failure to give or defect in such notice shall affect
the validity of the proceedings for the redemption of any Series E
Preferred Stock except as to the holder to whom such notice was
defective or not given. In addition to any information required by law
or by the applicable rules of any exchange upon which the Series E
Preferred Stock may be listed or admitted to trading, each such notice
shall state: (i) the redemption date, (ii) the redemption price, (iii)
the number of shares of Series E Preferred Stock to be redeemed, (iv)
the place or places where such shares of Series E Preferred Stock are to
be surrendered for payment of the redemption price, (v) that
distributions on the Series E Preferred Stock to be redeemed will cease
to accumulate on such redemption date and (vi) that payment of the
redemption price and any accumulated and unpaid distributions will be
made upon presentation and surrender of such Series E Preferred Stock.
If fewer than all of the shares of Series E Preferred
A-7.6
Stock held by any holder are to be redeemed, the notice mailed to such
holder shall also specify the number of shares of Series E Preferred
Stock held by such holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in
respect of Series E Preferred Stock (which notice will be irrevocable)
then, by 12:00 noon, New York City time, on the redemption date, the
Corporation will deposit irrevocably in trust for the benefit of the
Series E Preferred Stock being redeemed funds sufficient to pay the
applicable redemption price, plus any accumulated and unpaid
distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any
accumulated and unpaid distributions, if any, on such shares to the
holders of the Series E Preferred Stock upon surrender of the
certificate evidencing the Series E Preferred Stock by such holders at
the place designated in the notice of redemption. If fewer than all
Series E Preferred Stock evidenced by any certificate is being redeemed,
a new certificate shall be issued upon surrender of the certificate
evidencing all Series E Preferred Stock, evidencing the unredeemed
Series E Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on
the Series E Preferred Stock or portions thereof called for redemption,
unless the Corporation defaults in the payment thereof. If any date
fixed for redemption of Series E Preferred Stock is not a Business Day,
then payment of the redemption price payable on such date will be made
on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if
such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date fixed for redemption. If
payment of the redemption price or any accumulated or unpaid
distributions in respect of the Series E Preferred Stock is improperly
withheld or refused and not paid by the Corporation, distributions on
such Series E Preferred Stock will continue to accumulate from the
original redemption date to the date of payment, in which case the
actual payment date will be considered the date fixed for redemption for
purposes of calculating the applicable redemption price and any
accumulated and unpaid distributions.
(d) Status of Redeemed Stock. Any Series E Preferred Stock that
shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
class or series until such shares are once more designated as part of a
particular class or series by the Board of Directors.
A-7.7
Section 6. Voting Rights.
(a) General. Holders of the Series E Preferred Stock will not
have any voting rights, except as set forth below.
(b) Right to Elect Directors.
(i) If at any time distributions shall be in arrears
(which means that as to any such quarterly distributions, the same have
not been paid in full) with respect to six (6) prior quarterly
distribution periods (including quarterly periods on the Series E
Preferred Units prior to the exchange into Series E Preferred Stock),
whether or not consecutive, and shall not have been paid in full (a
"Series E Preferred Distribution Default"), the authorized number of
members of the Board of Directors shall automatically be increased by
two and the holders of record of such Series E Preferred Stock, voting
together as a single class with the holders of each class or series of
Parity Preferred Stock upon which like voting rights have been conferred
and are exercisable, will be entitled to fill the vacancies so created
by electing two additional directors to serve on the Corporation's
Board of Directors (the "Preferred Stock Directors") at a special
meeting called in accordance with Section 6(b)(i), and at each
subsequent annual meeting of stockholders or special meeting held in
place thereof, until all such distributions in arrears and distributions
for the current quarterly period on the Series E Preferred Stock and
each such class or series of Parity Preferred Stock have been paid in
full.
(ii) At any time when such voting rights shall have
vested, a proper officer of the Corporation shall call or cause to be
called, upon written request of holders of record of at least 10% of the
outstanding shares of Series E Preferred Stock, a special meeting of the
holders of Series E Preferred Stock and all the series of Parity
Preferred Stock upon which like voting rights have been conferred and
are exercisable (collectively, the "Parity Securities") by mailing or
causing to be mailed to such holders a notice of such special meeting to
be held not less than ten and not more than 45 days after the date such
notice is given. The record date for determining holders of the Parity
Securities entitled to notice of and to vote at such special meeting
will be the close of business on the third Business Day preceding the
day on which such notice is mailed. At any annual or special meeting at
which Parity Securities are entitled to vote, all of the holders of the
Parity Securities, by plurality vote, voting together as a single
class without regard to series will be entitled to elect two directors
on the basis of one vote per $25.00 of liquidation preference to which
such Parity Securities are entitled by their terms (excluding amounts
in respect of accumulated and unpaid dividends) and not cumulatively.
The holder or holders of the Parity Securities representing one-third of
the total voting power of the Parity Securities then outstanding,
present in person or by proxy, will constitute a quorum for the election
of the Preferred Stock Directors except as otherwise provided by law.
Notice of all meetings at which holders of the Series E Preferred Stock
shall be entitled to vote will be given to such holders at their
addresses as they appear in the transfer records. At any such meeting or
adjournment thereof in
A-7.8
the absence of a quorum, subject to the provisions of any applicable
law, the holders of the Parity Securities representing a majority of
the voting power of the Parity Securities present in person or by proxy
shall have the power to adjourn the meeting for the election of the
Preferred Stock Directors, without notice other than an announcement at
the meeting, until a quorum is present. If a Series E Preferred
Distribution Default shall terminate after the notice of an annual or
special meeting has been given but before such meeting has been held,
the Corporation shall, as soon as practicable after such termination,
mail or cause to be mailed notice of such termination to holders of the
Series E Preferred Stock that would have been entitled to vote at such
meeting.
(iii) If and when all accumulated distributions and the
distribution for the current distribution period on the Series E
Preferred Stock shall have been paid in full or a sum sufficient for
such payment is irrevocably deposited in trust for payment, the holders
of the Series E Preferred Stock shall be divested of the voting rights
set forth in Section 6(b) herein (subject to revesting in the event of
each and every Series E Preferred Distribution Default) and, if all
distributions in arrears and the distributions for the current
distribution period have been paid in full or set aside for payment in
full on all other classes or series of Parity Preferred Stock upon which
like voting rights have been conferred and are exercisable, the terms
and office of each Preferred Stock Director so elected shall terminate.
Any Preferred Stock Director may be removed at any time with or without
cause by the vote of, and shall not be removed otherwise than by the
vote of, the holders of record of a majority of the outstanding Series E
Preferred Stock when they have the voting rights set forth in Section
6(b) (voting separately as a single class with all other classes or
series of Parity Preferred Stock upon which like voting rights have been
conferred and are exercisable). So long as a Series E Preferred
Distribution Default shall continue, any vacancy in the office of a
Preferred Stock Director may be filled by written consent of the
Preferred Stock Director remaining in office, or if none remains in
office, by a vote of the holders of record of a majority of the
outstanding Series E Preferred Stock when they have the voting rights
set forth in Section 6(b) (voting separately as a single class with all
other classes or series of Parity Preferred Stock upon which like
voting rights have been conferred and are exercisable). The Preferred
Stock Directors shall each be entitled to one vote per director on any
matter.
(c) Certain Voting Rights. So long as any Series E Preferred
Stock remains outstanding, the Corporation shall not, without the affirmative
vote of the holders of at least two-thirds of the Series E Preferred Stock
outstanding at the time (i) authorize, designate or create, or increase the
authorized or issued amount of, any class or series of shares ranking prior to
the Series E Preferred Stock with respect to payment of distributions or rights
upon liquidation, dissolution or winding-up or reclassify any authorized shares
of the Corporation into any such shares, or create, authorize or issue any
obligations or securities convertible into or evidencing the right to purchase
any such shares,
A-7.9
(ii) authorize, designate or create, or increase the authorized or issued amount
of, any Parity Preferred Stock or reclassify any authorized shares of the
Corporation into any such shares, or create, authorize or issue any obligations
or securities convertible into or evidencing the right to purchase any such
shares, but only to the extent such Parity Preferred Stock is issued to an
affiliate of the Corporation (other than Security Capital U.S. Realty, Security
Capital Holdings, S.A. or their affiliates), or (iii) either (A) consolidate,
merge into or with, or convey, transfer or lease its assets substantially as an
entirety, to any corporation or other entity, or (B) amend, alter or repeal
the provisions of the Corporation's Charter (including these Articles of
Amendment) or By-laws, whether by merger, consolidation or otherwise, in each
case in a manner that would materially and adversely affect the powers, special
rights, preferences, privileges or voting power of the Series E Preferred Stock
or the holders thereof; provided, however, that with respect to the occurrence
of a merger, consolidation or a sale or lease of all of the Corporation's assets
as an entirety, so long as (a) the Corporation is the surviving entity and the
Series E Preferred Stock remains outstanding with the terms thereof unchanged,
or (b) the resulting, surviving or transferee entity is a corporation organized
under the laws of any state and substitutes the Series E Preferred Stock for
other preferred stock having substantially the same terms and same rights as the
Series E Preferred Stock, including with respect to distributions, redemptions,
transfers, voting rights and rights upon liquidation, dissolution or winding-up,
then the occurrence of any such event shall not be deemed to materially and
adversely affect such rights, privileges or voting powers of the holders of the
Series E Preferred Stock and no vote of the Series E Preferred Stock shall be
required in such case and provided further that any increase in the amount of
authorized Preferred Stock or the creation or issuance of any other class or
series of Preferred Stock, or any increase in an amount of authorized shares of
each class or series, in each case ranking either (a) junior to the Series E
Preferred Stock with respect to payment of distributions and the distribution
of assets upon liquidation, dissolution or winding-up, or (b) on a parity with
the Series E Preferred Stock with respect to payment of distributions and the
distribution of assets upon liquidation, dissolution or winding-up to the extent
such Preferred Stock is not issued to an affiliate of the Corporation (other
than Security Capital U.S. Realty, Security Capital Holdings, S.A. or their
affiliates), shall not be deemed to materially and adversely affect such rights,
preferences, privileges or voting powers and no vote of the Series E Preferred
Stock shall be required in such case.
Section 7. No Conversion Rights. The holders of the Series E Preferred
Stock shall not have any rights to convert such shares into shares of any other
class or series of stock or into any other securities of, or interest in, the
Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for
the retirement or redemption of Series E Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series E Preferred
Stock of the Corporation shall, as such holder, have any preemptive rights to
purchase or subscribe for additional shares of stock of the Corporation or any
other security of the Corporation which it may issue or sell.
A-7.10
ADDENDUM 8 TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 240,000 SHARES OF
8.75% SERIES F CUMULATIVE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation Act
("FBCA"), Regency Realty Corporation, a Florida corporation (the "Corporation"),
does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Amended and Restated Articles
of Incorporation of the Corporation (the "Charter") and Section 607.0602 of the
FBCA, the Board of Directors of the Corporation (the "Board of Directors"), by
resolutions duly adopted on May 15, 2000 and resolutions duly adopted by the
Pricing Committee, a committee of the Board of Directors, on September 8, 2000
has classified 240,000 shares of the authorized but unissued Preferred Stock par
value $.01 per share ("Preferred Stock") as a separate class of Preferred Stock,
authorized the issuance of a maximum of 240,000 shares of such class of
Preferred Stock, set certain of the preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications, terms
and conditions of redemption and other terms and conditions of such class of
Preferred Stock, and pursuant to the powers contained in the Bylaws of the
Corporation and the FBCA, appointed a committee (the "Committee") of the Board
of Directors and delegated to the Committee, to the fullest extent permitted by
the FBCA and the Charter and Bylaws of the Corporation, all powers of the Board
of Directors with respect to designating, and setting all other preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends and other distributions, qualifications and terms and conditions of
redemption of, such class of Preferred Stock determining the number of shares of
such class of Preferred Stock (not in excess of the aforesaid maximum number) to
be issued and the consideration and other terms and conditions upon which such
shares of such class of Preferred Stock are to be issued. Shareholder approval
was not required under the Charter with respect to such designation.
SECOND: Pursuant to the authority conferred upon the Committee as
aforesaid, the Committee has unanimously adopted resolutions designating the
aforesaid class of Preferred Stock as the "8.75% Series F Cumulative Redeemable
Preferred Stock," setting the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such 8.75% Series F
Cumulative Redeemable Preferred Stock (to the extent not set by the Board of
Directors in the resolutions referred to in Article FIRST of these Articles of
A-8.1
Amendment) and authorizing the issuance of up to 240,000 shares of 8.75% Series
F Cumulative Redeemable Preferred Stock.
THIRD: The class of Preferred Stock of the Corporation created by
the resolutions duly adopted by the Board of Directors of the Corporation and by
the Committee and referred to in Articles FIRST and SECOND of these Articles of
Amendment shall have the following designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitation as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
Section 1. Designation and Number. A series of Preferred Stock,
designated the "8.75% Series F Cumulative Redeemable Preferred Stock" (the
"Series F Preferred Stock") is hereby established. The number of shares of
Series F Preferred Stock shall be 240,000.
Section 2. Rank. The Series F Preferred Stock will, with respect to
distributions and rights upon voluntary or involuntary liquidation, winding-up
or dissolution of the Corporation, rank senior to all classes or series of
Common Stock (as defined in the Charter) and to all classes or series of equity
securities of the Corporation now or hereafter authorized, issued or
outstanding, other than any class or series of equity securities of the
Corporation expressly designated as ranking on a parity with or senior to the
Series F Preferred Stock as to distributions or rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the Corporation or both.
For purposes of these Articles of Amendment, the term "Parity Preferred Stock"
shall be used to refer to any class or series of equity securities of the
Corporation now or hereafter authorized, issued or outstanding expressly
designated by the Corporation to rank on a parity with Series F Preferred Stock
with respect to distributions or rights upon voluntary or involuntary
liquidation, winding-up or dissolution of the Corporation or both, as the
context may require, whether or not the dividend rates, dividend payment dates
or redemption or liquidation prices per share or conversion rights or exchange
rights shall be different from those of the Series F Preferred Stock and
includes the Series A Cumulative Redeemable Preferred Stock, the Series B
Cumulative Redeemable Preferred Stock, the Series C Cumulative Redeemable
Preferred Stock, the Series D Cumulative Redeemable Preferred Stock, the Series
E Cumulative Redeemable Preferred Stock, the Series 1 Cumulative Convertible
Redeemable Preferred Stock and the Series 2 Cumulative Convertible Redeemable
Preferred Stock of the Corporation. The term "equity securities" does not
include debt securities, which will rank senior to the Series F Preferred Stock
prior to conversion.
Section 3. Distributions.
(a) Payment of Distributions. Subject to the rights of holders
of Parity Preferred Stock as to the payment of distributions and holders of
equity securities issued after the date hereof in accordance herewith ranking
senior to the Series F Preferred Stock as to payment of distributions, holders
of Series F Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors of the Corporation, out of funds legally
available for the payment of distributions, cumulative cash distributions at the
rate per annum of 8.75% of the $100.00 liquidation preference per share of
Series F Preferred Stock. Such distributions
A-8.2
shall be cumulative, shall accrue from the original date of issuance and will be
payable in cash (A) quarterly (such quarterly periods for purposes of payment
and accrual will be the quarterly periods ending on the dates specified in this
sentence) in arrears, on or before March 31, June 30, September 30 and December
31 of each year commencing on the first of such dates to occur after the
original date of issuance and, (B) in the event of a redemption, on the
redemption date (each a "Preferred Stock Distribution Payment Date"). The amount
of the distribution payable for any period will be computed on the basis of a
360-day year of twelve 30-day months and for any period shorter than a full
quarterly period for which distributions are computed, the amount of the
distribution payable will be computed on the basis of the ratio of the actual
number of days elapsed in such period to ninety (90) days. If any date on which
distributions are to be made on the Series F Preferred Stock is not a Business
Day (as defined herein), then payment of the distribution to be made on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. Distributions on the Series F Preferred Stock
will be made to the holders of record of the Series F Preferred Stock on the
relevant record dates to be fixed by the Board of Directors of the Corporation,
which record dates shall be not less than 10 days and not more than 30 Business
Days prior to the relevant Preferred Stock Distribution Payment Date (each a
"Distribution Record Date "). Notwithstanding anything to the contrary
set forth herein, each share of Series F Preferred Stock shall also continue to
accrue all accrued and unpaid distributions, whether or not declared, up to the
exchange date on any Series F Preferred Unit (as defined in the Third Amended
and Restated Agreement of Limited Partnership of Regency Centers, L.P., dated as
September 1, 1999 as amended by Amendment No. 1 to the Third Amended and
Restated Agreement of Limited Partnership of Operating Partnership, dated as of
September 3, 1999, Amendment No. 2 to the Third Amended and Restated Agreement
of Limited Partnership of Operating Partnership, dated as of September 3, 1999,
that certain Third Amendment to Third Amended and Restated Agreement of Limited
Partnership dated as of September 29, 1999, Amendment No. 4 to the Third Amended
and Restated Agreement of Limited Partnership of Operating Partnership, undated,
Amendment No. 5 to the Third Amended and Restated Agreement of Limited
Partnership of Operating Partnership, dated as of September 7, 2000, and that
certain Amendment No. 6 to the Third Amended and Restated Agreement of Limited
Partnership of Operating Partnership, dated as of September 8, 2000 (as amended
the "Partnership Agreement")) validly exchanged into such share of Series F
Preferred Stock in accordance with the provisions of such Partnership Agreement.
The term "Business Day" shall mean each day, other than
a Saturday or a Sunday, which is not a day on which banking institutions in New
York, New York are authorized or required by law, regulation or executive order
to close.
(b) Limitation on Distributions. No distribution on the Series
F Preferred Stock shall be declared or paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement of the
Corporation (other than any agreement with a holder or affiliate of holder of
Capital Stock (as defined in the Charter) of the Corporation)
A-8.3
relating to its indebtedness, prohibit such declaration, payment or setting
apart for payment or provide that such declaration, payment or setting apart for
payment would constitute a breach thereof or a default thereunder, or if such
declaration, payment or setting apart for payment shall be restricted or
prohibited by law. Nothing in this Section 3(b) shall be deemed to modify or in
any manner limit the provisions of Section 3(c) and 3(d).
(c) Distributions Cumulative. Distributions on the Series F
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series F Preferred Stock will accumulate as of the Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid at
any time, without reference to a regular Preferred Stock Distribution Payment
Date to holders of record of the Series F Preferred Stock on the record date
fixed by the Board of Directors which date shall be not less than 10 days and
not more than 30 Business Days prior to the payment date. Accumulated and
unpaid distributions will not bear interest.
(d) Priority as to Distributions.
(i) So long as any Series F Preferred Stock is
outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect
to any class or series of Common Stock or any class or series of other
stock of the Corporation ranking junior to the Series F Preferred Stock
as to the payment of distributions (such Common Stock or other junior
stock, collectively, "Junior Stock"), nor shall any cash or other
property be set aside for or applied to the purchase, redemption or
other acquisition for consideration of any Series F Preferred Stock, any
Parity Preferred Stock with respect to distributions or any Junior
Stock, unless, in each case, all distributions accumulated on all
Series F Preferred Stock and all classes and series of outstanding
Parity Preferred Stock with respect to distributions have been paid in
full. Without limiting Section 6(b) hereof, the foregoing sentence will
not prohibit (i) distributions payable solely in shares of Junior Stock,
(ii) the conversion of Junior Stock or Parity Preferred Stock into
Junior Stock, and (iii) purchases by the Corporation of such Series F
Preferred Stock or Parity Preferred Stock or Junior Stock pursuant to
Article 5 of the Charter to the extent required to preserve the
Corporation's status as a real estate investment trust.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably deposited
in trust for payment) upon the Series F Preferred Stock, all
distributions authorized and declared on the Series F Preferred Stock
and all classes or series of outstanding Parity Preferred Stock with
respect to distributions shall be authorized and declared so that the
amount of distributions authorized and declared per share of Series F
Preferred Stock and such other classes or series of Parity Preferred
Stock shall in all cases bear to each other the
A-8.4
same ratio that accrued distributions per share on the Series F
Preferred Stock and such other classes or series of Parity Preferred
Stock (which shall not include any accumulation in respect of unpaid
distributions for prior distribution periods if such class or series
of Parity Preferred Stock does not have cumulative distribution
rights) bear to each other.
(e) No Further Rights. Holders of Series F Preferred Stock
shall not be entitled to any distributions, whether payable in cash,
other property or otherwise, in excess of the full cumulative
distributions described herein.
Section 4. Liquidation Preference.
(a) Payment of Liquidating Distributions. Subject to the rights
of holders of Parity Preferred Stock with respect to rights upon any voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation and
subject to equity securities ranking senior to the Series F Preferred Stock with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Series F Preferred Stock shall be
entitled to receive out of the assets of the Corporation legally available for
distribution or the proceeds thereof, after payment or provision for debts and
other liabilities of the Corporation, but before any payment or distributions of
the assets shall be made to holders of Common Stock or any other class or series
of shares of the Corporation that ranks junior to the Series F Preferred Stock
as to rights upon liquidation, dissolution or winding-up of the Corporation, an
amount equal to the sum of (i) a liquidation preference of $100 per share of
Series F Preferred Stock, and (ii) an amount equal to any accumulated and unpaid
distributions thereon, whether or not declared, to the date of payment. In the
event that, upon such voluntary or involuntary liquidation, dissolution or
winding-up, there are insufficient assets to permit full payment of liquidating
distributions to the holders of Series F Preferred Stock and any Parity
Preferred Stock as to rights upon liquidation, dissolution or winding-up of the
Corporation, all payments of liquidating distributions on the Series F Preferred
Stock and such Parity Preferred Stock shall be made so that the payments on the
Series F Preferred Stock and such Parity Preferred Stock shall in all cases bear
to each other the same ratio that the respective rights of the Series F
Preferred Stock and such other Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior distribution
periods if such Parity Preferred Stock do not have cumulative distribution
rights) upon liquidation, dissolution or winding-up of the Corporation bear to
each other.
(b) Notice. Written notice of any such voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation, stating
the payment date or dates when, and the place or places where, the amounts
distributable in such circumstances shall be payable, shall be given by (i) fax
and (ii) by first class mail, postage pre-paid, not less than 30 and not more
than 60 days prior to the payment date stated therein, to each record holder of
the Series F Preferred Stock at the respective addresses of such holders as the
same shall appear on the share transfer records of the Corporation.
A-8.5
(c) No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series F
Preferred Stock will have no right or claim to any of the remaining assets of
the Corporation.
(d) Consolidation, Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the consolidation or merger or
other business combination of the Corporation with or into, any corporation,
trust or other entity (or of any corporation, trust or other entity with or into
the Corporation) shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Corporation.
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
Section 5. Optional Redemption.
(a) Right of Optional Redemption. The Series F Preferred Stock
may not be redeemed prior to September 8, 2005. On or after such date, the
Corporation shall have the right to redeem the Series F Preferred Stock, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' written notice, at a redemption price, payable in cash, equal
to $100 per share of Series F Preferred Stock plus accumulated and unpaid
distributions, whether or nor declared, to the date of redemption. If fewer than
all of the outstanding shares of Series F Preferred Stock are to be redeemed,
the shares of Series F Preferred Stock to be redeemed shall be selected pro
rata (as nearly as practicable without creating fractional units).
(b) Limitation on Redemption.
(i) The redemption price of the Series F Preferred Stock
(other than the portion thereof consisting of accumulated but unpaid
distributions) will be payable solely out of sale proceeds of capital
stock of the Corporation and from no other source. For purposes of the
preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares, participation or
other ownership interests (however designated) and any rights (other
than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(ii) The Corporation may not redeem fewer than all of the
outstanding shares of Series F Preferred Stock unless all accumulated
and unpaid
A-8.6
distributions have been paid on all Series F Preferred Stock for all
quarterly distribution periods terminating on or prior to the date
of redemption.
(c) Procedures for Redemption.
(i) Notice of redemption will be (i) faxed, and (ii)
mailed by the Corporation, postage prepaid, not less than 30 nor more
than 60 days prior to the redemption date, addressed to the respective
holders of record of the Series F Preferred Stock to be redeemed at
their respective addresses as they appear on the transfer records of the
Corporation. No failure to give or defect in such notice shall affect
the validity of the proceedings for the redemption of any Series F
Preferred Stock except as to the holder to whom such notice was
defective or not given. In addition to any information required by law
or by the applicable rules of any exchange upon which the Series F
Preferred Stock may be listed or admitted to trading, each such notice
shall state: (i) the redemption date, (ii) the redemption price, (iii)
the number of shares of Series F Preferred Stock to be redeemed, (iv)
the place or places where such shares of Series F Preferred Stock are to
be surrendered for payment of the redemption price, (v) that
distributions on the Series F Preferred Stock to be redeemed will cease
to accumulate on such redemption date and (vi) that payment of the
redemption price and any accumulated and unpaid distributions will be
made upon presentation and surrender of such Series F Preferred Stock.
If fewer than all of the shares of Series F Preferred Stock held by any
holder are to be redeemed, the notice mailed to such holder shall also
specify the number of shares of Series F Preferred Stock held by such
holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in
respect of Series F Preferred Stock (which notice will be irrevocable)
then, by 12:00 noon, New York City time, on the redemption date, the
Corporation will deposit irrevocably in trust for the benefit of the
Series F Preferred Stock being redeemed funds sufficient to pay the
applicable redemption price, plus any accumulated and unpaid
distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any
accumulated and unpaid distributions, if any, on such shares to the
holders of the Series F Preferred Stock upon surrender of the
certificate evidencing the Series F Preferred Stock by such holders at
the place designated in the notice of redemption. If fewer than all
Series F Preferred Stock evidenced by any certificate is being redeemed,
a new certificate shall be issued upon surrender of the certificate
evidencing all Series F Preferred Stock, evidencing the unredeemed
Series F Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on
the Series F Preferred Stock or portions thereof called for redemption,
unless the Corporation defaults in the payment thereof. If any date
fixed for redemption of Series F Preferred Stock is not a Business Day,
then payment of the redemption price payable on such date will be made
on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if
such Business Day falls in the next calendar
A-8.7
year, such payment will be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date
fixed for redemption. If payment of the redemption price or any
accumulated or unpaid distributions in respect of the Series F Preferred
Stock is improperly withheld or refused and not paid by the Corporation,
distributions on such Series F Preferred Stock will continue to
accumulate from the original redemption date to the date of payment, in
which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the applicable redemption price
and any accumulated and unpaid distributions.
(d) Status of Redeemed Stock. Any Series F Preferred Stock that
shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
class or series until such shares are once more designated as part of a
particular class or series by the Board of Directors.
Section 6. Voting Rights.
(a) General. Holders of the Series F Preferred Stock will not
have any voting rights, except as set forth below.
(b) Right to Elect Directors.
(i) If at any time distributions shall be in arrears
(which means that, as to any such quarterly distributions, the same have
not been paid in full) with respect to six (6) prior quarterly
distribution periods (including quarterly periods on the Series F
Preferred Units prior to the exchange into Series F Preferred Stock),
whether or not consecutive, and shall not have been paid in full (a
"Preferred Distribution Default"), the authorized number of members of
the Board of Directors shall automatically be increased by two and the
holders of record of such Series F Preferred Stock, voting together as a
single class with the holders of each class or series of Parity
Securities (as defined below), will be entitled to fill the vacancies so
created by electing two additional directors to serve on the
Corporation's Board of Directors (the "Preferred Stock Directors") at a
special meeting called in accordance with Section 6(b)(ii) or at the
next annual meeting of stockholders, and at each subsequent annual
meeting of stockholders or special meeting held in place thereof, until
all such distributions in arrears and distributions for the current
quarterly period on the Series F Preferred Stock and each such class or
series of Parity Securities have been paid in full.
(ii) At any time when such voting rights shall have
vested, a proper officer of the Corporation shall call or cause to be
called, upon written request of holders of record of at least 10% of the
outstanding shares of Series F Preferred Stock, a special meeting of the
holders of Series F Preferred Stock and all the series of Parity
Preferred Stock which are (i) on parity with the Series F Preferred
Stock both as to distributions and rights upon liquidation, dissolution
and winding up, (ii) with respect to Parity Preferred Stock outstanding
as a result of an acquisition of another corporation, on parity with the
Series F Preferred Stock as to distributions only or with
A-8.8
respect to distributions and rights upon liquidation, dissolution or
winding up or (iii) on parity with the Series F Preferred Stock as to
distributions, but junior as to rights upon liquidation, dissolution and
winding up, but if any such Parity Preferred Stock referred to in this
clause (iii) was issued for an amount less than its liquidation
preference, the holders thereof shall be entitled to one vote for each
$25.00 of issuance price, in lieu of one vote for each $25.00 of
liquidation preference, and upon which like voting rights have been
conferred and are exercisable (collectively, the "Parity Securities") by
mailing or causing to be mailed to such holders a notice of such special
meeting to be held not less than ten and not more than 45 days after the
date such notice is given. The record date for determining holders of
the Parity Securities entitled to notice of and to vote at such special
meeting will be the close of business on the third Business Day
preceding the day on which such notice is mailed. At any annual or
special meeting at which Parity Securities are entitled to vote, all of
the holders of the Parity Securities, by plurality vote, voting together
as a single class without regard to series will be entitled to elect two
directors on the basis of one vote per $25.00 of liquidation preference
to which such Parity Securities are entitled by their terms (excluding
amounts in respect of accumulated and unpaid dividends) and not
cumulatively. The holder or holders of the Parity Securities
representing one-third of the total voting power of the Parity
Securities then outstanding, present in person or by proxy, will
constitute a quorum for the election of the Preferred Stock Directors
except as otherwise provided by law. Notice of all meetings at which
holders of the Series F Preferred Stock shall be entitled to vote will
be given to such holders at their addresses as they appear in the
transfer records. At any such meeting or adjournment thereof in the
absence of a quorum, subject to the provisions of any applicable law,
the holders of the Parity Securities representing a majority of the
voting power of the Parity Securities present in person or by proxy
shall have the power to adjourn the meeting for the election of the
Preferred Stock Directors, without notice other than an announcement at
the meeting, until a quorum is present. If a Preferred Distribution
Default shall terminate after the notice of an annual or special meeting
has been given but before such meeting has been held, the Corporation
shall, as soon as practicable after such termination, mail or cause to
be mailed notice of such termination to holders of the Series F
Preferred Stock that would have been entitled to vote at such meeting.
(iii) If and when all accumulated distributions and the
distribution for the current distribution period on the Series F
Preferred Stock shall have been paid in full or a sum sufficient for
such payment is irrevocably deposited in trust for payment, the holders
of the Series F Preferred Stock shall be divested of the voting rights
set forth in Section 6(b) herein (subject to revesting in the event of
each and every Preferred Distribution Default) and, if all distributions
in arrears and the distributions for the current distribution period
have been paid in full or set aside for payment in full on all other
classes or series of Parity Securities upon which like voting rights
have been conferred and are exercisable, the term and office of each
Preferred Stock Director so elected shall terminate. Any Preferred Stock
Director may be removed at any time with or without cause by the vote
of, and shall not be removed otherwise than by the vote of, the holders
of record of a majority of the outstanding Series F Preferred
A-8.9
Stock when they have the voting rights set forth in Section 6(b) (voting
separately as a single class with all other classes or series of Parity
Preferred Stock upon which like voting rights have been conferred and
are exercisable). So long as a Preferred Distribution Default shall
continue, any vacancy in the office of a Preferred Stock Director may be
filled by written consent of the Preferred Stock Director remaining in
office, or if none remains in office, by a vote of the holders of record
of a majority of the outstanding Series F Preferred Stock when they have
the voting rights set forth in Section 6(b) (voting separately as a
single class with all other classes or series of Parity Securities upon
which like voting rights have been conferred and are exercisable). The
Preferred Stock Directors shall each be entitled to one vote per
director on any matter.
(c) Certain Voting Rights. So long as any Series F Preferred
Stock remains outstanding, the Corporation shall not, without the affirmative
vote of the holders of at least two-thirds of the Series F Preferred Stock and
the Series F Preferred Units outstanding at such time and not previously
surrendered in exchange for Series F Preferred Stock together, if applicable,
voting as a single class based on the number of shares into which such Series F
Preferred Units are then convertible (collectively, the "Series F Voting
Securities") (i) designate or create, or increase the authorized or issued
amount of, any class or series of shares ranking senior to the Series F
Preferred Stock with respect to payment of distributions or rights upon
liquidation, dissolution or winding-up or reclassify any authorized shares of
the Corporation into any such shares, or create, authorize or issue any
obligations or securities convertible into or evidencing the right to purchase
any such shares, (ii) designate or create, or increase the authorized or
issued amount of, any Parity Preferred Stock or reclassify any authorized
shares of the Corporation into any such shares, or create, authorize or issue
any obligations or securities convertible into or evidencing the right to
purchase any such shares, but only to the extent such Parity Preferred Stock is
issued to an affiliate of the Corporation (other than Security Capital U.S.
Realty, Security Capital Holdings, S.A. or their affiliates if issued upon
arms-length terms in the good faith determination of the Board of Directors), or
(iii) either (A) consolidate, merge into or with, or convey, transfer or lease
its assets substantially as an entirety, to any corporation or other entity, or
(B) amend, alter or repeal the provisions of the Corporation's Charter
(including these Articles of Amendment) or By-laws, whether by merger,
consolidation or otherwise, in each case that would materially and adversely
affect the powers, special rights, preferences, privileges or voting power of
the Series F Preferred Stock or the holders thereof; provided, however, that
with respect to the occurrence of a merger, consolidation or a sale or lease of
all of the Corporation's assets as an entirety, so long as (a) the Corporation
is the surviving entity and the Series F Preferred Stock remains outstanding
with the terms thereof unchanged, or (b) the resulting, surviving or transferee
entity is a corporation organized under the laws of any state and substitutes
the Series F Preferred Stock for other preferred stock having substantially the
same terms and same rights as the Series F Preferred Stock, including with
respect to distributions, voting rights and rights upon liquidation, dissolution
or winding-up, then the occurrence of any such event shall not be deemed to
materially and adversely affect such rights, privileges or voting powers of the
holders of the Series F Preferred Stock and no vote of the Series F Voting
Securities shall be required in such case; and provided further that any
increase in the amount of authorized Preferred Stock or the creation or issuance
of any other class or series of
A-8.10
Preferred Stock, or any increase in an amount of authorized shares of each class
or series, in each case ranking either (a) junior to the Series F Preferred
Stock with respect to payment of distributions or the distribution of assets
upon liquidation, dissolution or winding-up, or (b) on a parity with the Series
F Preferred Stock with respect to payment of distributions or the distribution
of assets upon liquidation, dissolution or winding-up to the extent such
Preferred Stock is not issued to a affiliate of the Corporation (other than
Security Capital U.S. Realty, Security Capital Holdings, S.A. or their
affiliates if issued upon arms-length terms in the good faith determination of
the Board of Directors), shall not be deemed to materially and adversely affect
such rights, preferences, privileges or voting powers and no vote of the Series
F Preferred Stock shall be required in such case.
Section 7. No Conversion Rights. The holders of the Series F Preferred
Stock shall not have any rights to convert such shares into shares of any other
class or series of stock or into any other securities of, or interest in, the
Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for
the retirement or redemption of Series F Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series F Preferred
Stock of the Corporation shall, as such holder, have any preemptive rights to
purchase or subscribe for additional shares of stock of the Corporation or any
other security of the Corporation which it may issue or sell.
A-8.11
REGENCY REALTY CORPORATION
AMENDMENT TO ARTICLES OF INCORPORATION
(Changing Name to Regency Centers Corporation)
This corporation was incorporated on July 8, 1993 effective July 9,
1993 under the name Regency Realty Corporation. Pursuant to Sections 607.1001,
607.1003, 607.1004 and 607.1006, Florida Business Corporation Act, an amendment
to Section 1.1 of the Articles of Incorporation, as restated on November 4,
1996, was approved by the Board of Directors at a meeting held on November 1,
2000 and adopted by the written consent dated January 15, 2001 of shareholders
owning a majority of the corporation's outstanding voting stock. The only voting
group entitled to vote on the adoption of the amendment consists of the holders
of the corporation's common stock and Series 2 Preferred Stock, voting together
as a single class. The number of votes cast by such voting group was sufficient
for approval by that voting group. Section 1.1 of the Restated Articles of
Incorporation of the Company is hereby amended in its entirety to read as
follows:
"Section 1.1 Name. The name of the corporation is Regency
Centers Corporation (the "Corporation")."
This amendment shall be effective February 12, 2001.
IN WITNESS WHEREOF, the undersigned Senior Vice President of this
corporation has executed these Articles of Amendment this 9th day of February,
2001.
/s/ J. Christian Leavitt
J. Christian Leavitt, Senior Vice
President
REGENCY CENTERS CORPORATION
AMENDMENT TO ARTICLES OF INCORPORATION
This corporation was incorporated on July 8, 1993 effective July 9,
1993 under the name Regency Realty Corporation. Pursuant to Sections 607.1003,
607.1004 and 607.1006, Florida Business Corporation Act, the following
amendments to the Articles of Incorporation, as restated on November 4, 1996,
were approved by the Board of Directors at a meeting held on January 30, 2001
and adopted at a meeting of shareholders on May 1, 2001. The only voting group
entitled to vote on the adoption of the amendment consists of the holders of the
corporation's common stock and Series 2 Preferred Stock, voting together as a
single class. The number of votes cast by such voting group was sufficient for
approval by that voting group. The Restated Articles of Incorporation of the
corporation are hereby amended as follows:
Section 5.1(i) "Non-U.S. Person" is hereby deleted.
Section 5.14 Certain Transfers to Non-U.S. Persons Void
is hereby deleted in its entirety.
IN WITNESS WHEREOF, the undersigned Senior Vice President of this
corporation has executed these Articles of Amendment this 7th day of May, 2001.
/s/ J. Christian Leavitt
----------------------------------------
J. Christian Leavitt, Senior Vice
President
REGENCY CENTERS CORPORATION
AMENDMENT TO ARTICLES OF INCORPORATION
Deleting Authorization for Class B Non-Voting Common Stock
and Series 1 Cumulative Convertible Redeemable Preferred Stock
Pursuant to Section 607.1002 of the Florida Business Corporation Act
("FBCA"), Regency Centers Corporation, a Florida corporation (the
"Corporation"), does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Restated Articles of
Incorporation of the Corporation, as amended, and Section 607.0602 of the FBCA,
the Board of Directors of the Corporation by resolutions duly adopted on
September 23, 1998 classified 542,532 shares of the authorized but unissued
Preferred Stock as a separate class designated as Series 1 Preferred Stock and
set the preferences, rights, terms and conditions of the class of Series 1
Preferred Stock, including the requirement that all shares of Series 1 Preferred
Stock that have been issued and reacquired by the Corporation shall be restored
to the status of authorized but unissued shares of Preferred Stock of the
Corporation, without designation.
SECOND: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.4 of the Restated Articles of
Incorporation of the Corporation, as amended, and Section 607.0602 of the FBCA,
the Board of Directors of the Corporation by resolutions duly adopted on October
23, 1995 and December 14, 1995 classified 2,500,000 shares of the authorized but
unissued Special Common Stock as a separate class designated as Class B
Non-Voting Convertible Common Stock and set the rights, terms and conditions of
the Class B Non-Voting Convertible Common Stock, including the requirement that
all shares of Class B Non-Voting Convertible Common Stock that have been
converted, redeemed or otherwise reacquired by the Corporation shall be restored
to the status of authorized but unissued shares of Non-Voting Common Stock of
the Corporation, without designation.
THIRD: All 542,532 previously issued shares of Series 1 Preferred
Stock have been converted , pursuant to their terms, to Series 2 Preferred Stock
and, accordingly have been retired and restored to the status of authorized but
unissued shares of Preferred Stock of the Corporation, without designation.
FOURTH: All 2,500,000 previously issued shares of Class B Non-Voting
Convertible Common Stock have been converted, pursuant to their terms, to Common
Stock and, accordingly have been retired and restored to the status of
authorized but unissued shares of Non-Voting Common Stock of the Corporation,
without designation.
FIFTH: this Amendment is being filed for the purpose of deleting the
authority to issue Series 1 Preferred Stock and Class B Non-Voting Convertible
Common Stock.
This Amendment was approved by the Board of Directors by resolutions
adopted September 23, 1998 as to the Series 1 Preferred Stock and by resolutions
adopted October 23, 1995 and December 14, 1995 as to the Class B Non-Voting
Convertible Common Stock. Shareholder approval was not required.
IN WITNESS WHEREOF, the undersigned Vice President of the
Corporation has executed these Articles of Amendment this 30th day of October,
2001.
REGENCY CENTERS CORPORATION
By: /s/ Kathy D. Miller
-------------------------------------
Kathy D. Miller, Vice President
FOLEY & LARDNER FOLEY & LARDNER
Attorneys at Law The Greenleaf Building
200 Laura Street
Jacksonville, Florida 32202-3510
April 3, 2003 P. O. Box 240
Jacksonville, Florida 32201-0240
904.359.2000 TEL
904.359.8700 FAX
www.foleylardner.com
WRITER'S DIRECT LINE
904.359.2000
mgreenhut@foleylaw.com Email
CLIENT/MATTER NUMBER
040521-01057
Regency Centers Corporation
121 West Forsyth Street, Suite 200
Jacksonville, Florida 32202
Re: Registration Statement on Form S-3
Gentlemen:
This opinion is being furnished in connection with the Registration
Statement on Form S-3 (Registration No. 333-37911) of Regency Centers
Corporation ("Regency") under the Securities Act of 1933, as amended, for the
issuance of 3,000,000 Depositary Shares (the "Depositary Shares") each
representing 1/10 of a share of 7.45% Series 3 Cumulative Redeemable Preferred
Stock of Regency (liquidation preference $25 per Depositary Share).
In connection with the issuance of such securities, we have examined
and are familiar with: (a) the articles of incorporation and bylaws of Regency,
as presently in effect, (b) the proceedings of and actions taken by the Board of
Directors of Regency in connection with the issuance of the Depositary Shares
and (c) such other records, certificates and documents as we have considered
necessary or appropriate for purposes of this opinion.
Based on the documents set forth above, we are of the opinion that the
Depositary Shares have been duly authorized, and when duly issued and delivered
against payment therefor, will be legally issued, fully paid and nonassessable.
The foregoing opinion is limited to the laws of the state of Florida.
We assume no obligation to supplement this opinion letter if any applicable law
changes after the date hereof or if we become aware of any fact that might
change the opinions expressed herein after the date hereof.
We hereby consent to the inclusion of this opinion as Exhibit 5 in said
Registration Statement and to the reference to this firm under the caption
"Validity of Shares" in the prospectus supplement relating to the offering of
the Depositary Shares dated March 27, 2003. In giving this consent we do not
hereby admit that we come within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
or regulations of the Securities and Exchange Commission promulgated thereunder.
BRUSSELS DETROIT MILWAUKEE SAN DIEGO TAMPA
CHICAGO JACKSONVILLE ORLANDO SAN DIEGO/DEL MAR WASHINGTON, D.C.
DENVER LOS ANGELES SACRAMENTO SAN FRANCISCO WEST PALM BEACH
MADISON TALLAHASSEE
Sincerely,
FOLEY & LARDNER
By: /s/ Linda Y. Kelso
-------------------------------------
FOLEY & LARDNER FOLEY & LARDNER
Attorneys at Law The Greenleaf Building
200 Laura Street
Jacksonville, Florida 32202-3510
April 3, 2003 P. O. Box 240
Jacksonville, Florida 32201-0240
904.359.2000 TEL
904.359.8700 FAX
www.foleylardner.com
WRITER'S DIRECT LINE
904.359.2000
mgreenhut@foleylaw.com Email
CLIENT/MATTER NUMBER
040521-01057
Regency Centers Corporation
April 3, 2003
Page 2
Regency Centers Corporation
121 West Forsyth Street, Suite 200
Jacksonville, Florida 32202
Re: Registration Statement on Form S-3
Ladies and Gentlemen
You have requested our opinions as tax counsel to Regency Centers
Corporation (the "Company") concerning the federal income tax consequences in
connection with the registration statement on Form S-3 (Registration No.
333-37911) (the "Registration Statement") and with respect to qualification of
the Company as a real estate investment trust (a "REIT") for federal income tax
purposes, for the issuance of 3,000,000 Depositary Shares (the "Depositary
Shares") each representing 1/10 of a share of 7.45% Series 3 Cumulative
Redeemable Preferred Stock of the Company (liquidation preference $25 per
Depositary Share).
In connection with the opinions rendered below, we have reviewed the
Registration Statement, including the prospectus supplement dated March 27, 2003
relating to the offering of the Depositary Shares (the "Prospectus"), the
articles of incorporation and bylaws of the Company and such other documents
that we deemed relevant. The opinions expressed in this letter are based upon
certain factual representations set forth in the Registration Statement, the
Prospectus and in certificates of officers of the Company.
In connection with the opinions rendered below, we have assumed
generally that:
1. each of the documents referred to above has been duly
authorized, executed, and delivered; is authentic, if an original, or is
accurate, if a copy; and has not been amended;
2. during its short taxable year ended December 31, 1993 and
subsequent taxable years, the Company has operated and will continue to operate
in such a manner that makes and will continue to make the factual
representations contained in a certificate, dated as of the date hereof and
executed by a duly appointed officer of the Company (the "Officer's
Certificate"), true for such years;
3. the Company will not make any amendments to its organizational
documents or to the organizational documents of Regency Realty Group, Inc., a
Florida corporation ("Management Company"), after the date of this opinion that
would affect its qualification as a REIT for any taxable year;
BRUSSELS DETROIT MILWAUKEE SAN DIEGO TAMPA
CHICAGO JACKSONVILLE ORLANDO SAN DIEGO/DEL MAR WASHINGTON, D.C.
DENVER LOS ANGELES SACRAMENTO SAN FRANCISCO WEST PALM BEACH
MADISON TALLAHASSEE
Regency Centers Corporation
April 3, 2003
Page 2
4. no actions will be taken by the Company or Management Company
after the date hereof that would have the effect of altering the facts upon
which the opinion set forth below is based.
In connection with the opinions rendered below, we also have relied
upon the correctness of the factual representations contained in the Officer's
Certificate.
Based solely on the documents and assumptions set forth above and the
factual representations set forth in the Officer's Certificate, and without
further investigation, we are of the opinion that the summaries set forth in the
Prospectus under the caption "Certain Federal Income Tax Considerations" are
accurate in all material respects as to matters of law and legal conclusions. In
addition, based upon and subject to the foregoing, we confirm our specific
opinions in the Prospectus under the caption "Certain Federal Income Tax
Considerations".
The foregoing opinions are based on current provisions of the Internal
Revenue Code of 1986, as amended (the "Code"), and the Treasury regulations
thereunder (the "Regulations"), published administrative interpretations
thereof, and published court decisions, all of which are subject to change
either prospectively or retroactively. The Internal Revenue Service has not
issued Regulations or administrative interpretations with respect to various
provisions of the Code relating to REIT qualification. No assurance can be given
that the law will not change in a way that will prevent the Company from
qualifying as a REIT or that may change the other legal conclusions stated
herein.
The foregoing opinion is limited to the U.S. federal income tax matters
addressed herein, and no other opinions are rendered with respect to other
federal tax matters or to any issues arising under the tax laws of any other
country, or any state or locality. We undertake no obligation to update the
opinion expressed herein after the date of this letter.
We hereby consent to the inclusion of this opinion as Exhibit 8 in said
Registration Statement and to the reference to this firm under the caption
"Certain Federal Income Tax Considerations" in the Prospectus. In giving this
consent we do not hereby admit that we come within the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as amended,
or the rules or regulations of the Securities and Exchange Commission
promulgated thereunder.
Sincerely,
FOLEY & LARDNER
By: /s/ Linda Y. Kelso
-------------------------------------
Exhibit 12
Regency Centers LP
Ratio of Earnings to Fixed Charges
(amounts in thousands)
For the years ending December 31,
2002 2001 2000 1999 1998
---- ---- ---- ---- ----
Net income preferred minority interest $ 117,381 124,266 108,190 91,585 50,550
Add: minority interest of consolidated partnerships 492 721 2,632 2,855 464
Add: income from discontinued operations 29,415 12,430 11,514 10,527 5,224
Subtract: equity in income of unconsolidated partnerships (5,765) (3,439) (3,139) (4,688) (946)
Add: fixed charges 134,443 129,086 116,125 83,464 35,561
Add: distributions from equity JV's 17,307 16,812 3,110 704 384
Subtract: loss (gain) on sale of operating properties (5,267) (699) (4,507) 233 (10,726)
Add: provision for loss on operating properties 4,369 1,595 12,995 - -
Subtract: preferred unit distribution (33,475) (33,475) (29,601) (12,368) (3,358)
Subtract: capitalized interest (13,753) (21,195) (14,553) (11,029) (3,417)
------------------------------------------------------
Earnings $ 245,147 226,102 202,766 161,283 73,736
------------------------------------------------------
Preferred unit distribution $ 33,475 33,475 29,601 12,368 3,358
Interest expense (including amount of loan costs and
debt premium) 87,215 74,416 71,971 60,067 28,786
Capitalized interest 13,753 21,195 14,553 11,029 3,417
------------------------------------------------------
Total fixed charges $ 134,443 129,086 116,125 83,464 35,561
------------------------------------------------------
Ratio of earnings to fixed charges 1.8 1.7 1.7 1.9 2.1
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