UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10 - K
(X) ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2000
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from
------------ to ------------
Commission File Number 1-12298
REGENCY CENTERS CORPORATION
(Exact name of registrant as specified in its charter)
FLORIDA 59-3191743
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification No.)
121 West Forsyth Street, Suite 200 (904) 356-7000
Jacksonville, Florida 32202 (Registrant's telephone No.)
(Address of principal executive offices) (zip code)
Securities registered pursuant to Section 12(b) of the Act:
Common Stock, $.01 par value
(Title of Class)
New York Stock Exchange
(Name of exchange on which registered)
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months and (2) has been subject to such filing
requirements for the past 90 days. YES (X) NO ( )
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to
this Form 10-K. (X)
The aggregate market value of the voting and non-voting common stock held by
non-affiliates of the Registrant was approximately $523,808,000 based on the
closing price on the New York Stock Exchange for such stock on March 13, 2001.
The approximate number of shares of Registrant's voting common stock outstanding
was 57,425,690 as of March 13, 2001.
Documents Incorporated by Reference
Portions of the Registrant's Proxy Statement in connection with its 2001 Annual
Meeting of Shareholders are incorporated by reference in Part III.
TABLE OF CONTENTS
Form 10-K
Item
No.
Report Page
PART I
1. Business...............................................................1
2. Properties.............................................................5
3. Legal Proceedings.....................................................19
4. Submission of Matters to a Vote of Security Holders...................19
PART II
5. Market for the Registrant's Common Equity and Related Shareholder
Matters...............................................................19
6. Selected Consolidated Financial Data..................................21
7. Management's Discussion and Analysis of Financial Condition and Results
of Operations.........................................................22
7a. Quantitative and Qualitative Disclosures about Market Risk............27
8. Consolidated Financial Statements and Supplementary Data..............28
9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure..................................................28
PART III
10. Directors and Executive Officers of the Registrant....................29
11. Executive Compensation................................................29
12. Security Ownership of Certain Beneficial Owners and Management........29
13. Certain Relationships and Related Transactions........................29
PART IV
14. Exhibits, Financial Statements, Schedules and Reports on Form 8-K.....30
Forward Looking Statements
This report on Form 10-K contains certain forward-looking statements
under the federal securities law. These statements are based on current
expectations, estimates, and projections about the industry and markets in which
Regency Centers Corporation operates, management's beliefs, and assumptions.
Forward-looking statements are not guarantees of future performance and involve
certain credit risks and uncertainties, which are difficult to predict. Actual
operating results may be affected by changes in national and local economic
conditions, competitive market conditions, weather, obtaining governmental
approvals and meeting development schedules, and therefore, may differ
materially from what is expressed or forecasted in this report.
PART I
Item 1. Business
The real estate business of Regency Centers Corporation ("Regency") was
established in 1963 as a Jacksonville, Florida-based operator and developer of
shopping centers. By the early 1990s, Regency had developed a successful track
record of developing, owning and operating neighborhood and community shopping
centers, which offered substantial cycle-resistant opportunities for growth. In
1993, Regency was formed as a Florida corporation, completed its initial public
offering (NYSE: REG) and became a qualified self-administered, self-managed real
estate investment trust (REIT).
Through a series of major strategic acquisitions in 1997, 1998 and 1999,
Regency expanded its development and operational capabilities to have a
nationwide scope. From 1993 to 2000, Regency's assets increased from $154
million to approximately $3 billion with 242 shopping centers in 22 states. The
most significant of these transactions was Regency's acquisition of Pacific
Retail Trust for approximately $1.157 billion in February 1999. At the date of
the acquisition, Pacific Retail Trust was operating or had under development 71
retail shopping centers representing 8.4 million SF of gross leaseable area
(GLA).
Regency previously operated under the name Regency Realty Corporation,
but changed its name to Regency Centers Corporation in February 2001 to more
appropriately acknowledge its brand and position in the shopping center
industry. Regency invests in retail shopping centers through its partnership
interest in Regency Centers, L.P., ("RCLP") an operating partnership in which
Regency currently owns approximately 98% of the outstanding common partnership
units ("Units"). The acquisition, development, operations and financing activity
of Regency including the issuance of Units or preferred units is executed by
RCLP.
At December 31, 2000, Regency's GLA totals 27.1 million square feet, and
is 95.3 percent leased. Geographically, 23.5% of Regency's GLA is located in
Florida, 17.7% in California, 15% in Texas, 9.2% in Georgia, 6.3% in Ohio, and
28.3% spread throughout 17 other states. Today, Regency Centers is a leading
owner, operator and developer of grocer-anchored, neighborhood shopping centers
with high-quality specialty retailers located in prosperous trade areas.
See also footnote 3, Segments, to the consolidated financial statements
included herein, for a related discussion of the Company's business.
Operating and Investment Philosophy
Our key operating and investment objective is to create long-term
shareholder value by:
o focusing on high quality grocer-anchored neighborhood shopping centers
in attractive markets;
o maximizing the value of the portfolio through our research-based
investment strategies, our Preferred Customer Initiative program,
and our customer-driven development program; and
o using conservative financial management and our substantial capital
base to cost effectively access capital to fund our growth.
Grocer-Anchored Strategy
We focus our investment strategy on grocer-anchored neighborhood
shopping centers that are located in infill locations or high growth corridors
and are anchored by a dominant grocer in the local market. Regardless of the
economic cycle, grocer sales have outpaced inflation in 10 of the last 15 years.
More resistant to down cycles by the nature of their business, market-leading
grocers generate continuous consumer traffic to our centers. Such significant
traffic driven by necessity and convenience attracts and benefits our centers
and side-shop tenants.
1
The average remaining lease term for Regency's grocer-anchored tenants
is 14.5 years. Since these grocers can leverage their leadership positions in
their respective markets to draw steady traffic, their commitment to signing
long-term leases provides Regency with stability and sustainability of cash
flow.
Our grocer-anchored centers are planned to serve neighborhoods and
communities, and their carefully selected locations enable local shoppers to
visit weekly, or even several times a week. As a result, a neighborhood center
is a convenient, cost-effective distribution platform for food retailers.
Moreover, a neighborhood center that is anchored by a leading grocer is highly
resistant to competition from Internet e-tailers and mass merchandise stores,
benefiting all of our tenants.
Grocer-anchored centers generate substantial daily traffic and offer
sustainable competitive advantages to their tenants. This high traffic generates
increased sales, thereby driving higher occupancy, higher rental rates, and
higher rental rate growth for Regency -- meaning that we can sustain our cash
flow growth and increase the value of our portfolio over the long term.
Ninety percent of Regency's grocer-anchored centers are anchored by one
of the top three grocers in their local markets. Our anchor tenants include
leading supermarket chains like Kroger, Publix, Safeway and Albertson's. With
average annual sales for a Regency grocer of $22.4 million, our grocers outpace
their respective chain averages by more than 20 percent and generate an average
of more than 14,000 shopper visits each week, or more than 725,000 shopper
visits annually.
Research Driven Market Selection
Grocer-anchored centers are best located in neighborhood trade areas
with attractive demographics. The typical Regency center 3-mile population is
approximately 75,000 strong with an average household income in excess of
$71,000 and a projected 5-year population growth of more than 8 percent. The
trade areas of Regency's centers are growing nearly twice as fast and household
incomes are more than 30 percent greater than the national averages, translating
into more retail buying power. Once specific markets are selected, Regency seeks
the best location within the best neighborhoods, preferably occupying the
dominant corner, close to residential communities, with excellent visibility for
our tenants and easy access for neighborhood shoppers.
Premier Customer Initiative
For the same reason we choose to anchor our centers with leading
grocers, we also seek a range of strong national, regional and local specialty
tenants. We have created a formal partnering process -- the Premier Customer
Initiative (PCI) -- to promote mutually beneficial relationships with our
non-grocer specialty retailers. The objective of PCI is for Regency to build a
base of specialty tenants who represent the "best-in-class" operators in their
respective merchandising categories. Such tenants reinforce the consumer appeal
and other strengths of a center's grocer-anchor, help to stabilize a center's
occupancy, reduce releasing downtime, lower tenant turnover and yield higher
sustainable rents. For these reasons, Regency is committed to giving these
premier tenants all the support they require to realize their expansion and
profit objectives. The PCI program does this by partnering with top neighborhood
operators while they are in the strategic stage of store-location planning.
Regency's industry expertise enables us to offer our prospective tenants
current, in-depth data on key markets nationwide, as well as access to multiple
prime locations in the best shopping centers, and in the top markets, with the
leading grocer-anchors. Moreover, our PCI tenants benefit from employing
standardized leases as they contract for space in multiple Regency locations.
2
Customer-driven Development
Development is customer-driven, meaning we have an executed lease from
the anchor in hand before we purchase the land. As a result of commitments from
our anchor tenants, and our well-established relationships with key specialty
retailers, a significant percentage of the retail space is dedicated before
construction begins. Developments serve the growth needs of our grocery and
specialty retail customers, result in modern shopping centers with 20-year
leases from the grocer-anchors and produce either attractive returns on invested
capital or profits from sale.
Our development program significantly contributed to our overall growth
during the year. In 2000 we completed 34 shopping center and build-to-suit
developments that represented an investment of $236 million. On average, these
newly completed developments are 96 percent leased. At December 31, 2000 we had
56 shopping center developments, re-developments, renovations and single-tenant
projects still in progress. When complete, these projects will represent a total
investment of $730 million, $418 million of which has already been funded.
Capital Strategy
We intend to maintain a conservative capital structure designed to fund
our growth programs without returning to the equity markets or compromising our
investment-grade ratings. This approach is founded on our self-funding business
model, which relies on capital sourced from free-and-clear cash flow;
developments for sale; dispositions of limited-growth, non-strategic assets; and
joint ventures. We have the financial flexibility to follow this approach, with
a debt-to-total asset ratio of approximately 41 percent, an interest coverage
ratio of 3.0 times, a fixed charge coverage ratio of 2.1 times, and nearly 80
percent of our real estate assets and net operating income being unencumbered by
mortgages.
During 2000, we sold 22 development properties that generated total
proceeds in excess of $140 million. In addition, in December 2000, we sold two
Regency core development properties to a joint venture between Regency and the
highly respected Oregon Public Employees Retirement Fund (OPERF). These
transactions collectively yielded more than $180 million in total proceeds,
which generated $20 million in profits.
The OPERF joint venture represents a major co-investment partnership
that is expected to produce substantial benefits for our Company. During the
third quarter of 2000, we executed a letter of intent with the Oregon State
Treasury, acting on behalf of OPERF, to form a co-investment partnership to
invest in a $300 million portfolio of neighborhood and community shopping
centers. The first phase of the joint venture was consummated with the formation
of Columbia Regency Retail Partners, which purchased the two properties
mentioned above. The final phase of the partnership is expected to close during
the 1st quarter of 2001, when it will purchase three additional stabilized
Regency developments, and OPERF will contribute three centers located in
attractive infill markets. The partnership also plans to acquire $150 million of
grocer-anchored shopping centers throughout the United States over the next 12
to 18 months. Regency will own 20 percent of the partnership and will be paid
asset management fees, property management fees and incentive fees.
Risk Factors Relating to Ownership of Regency Common Stock
We are subject to certain business risks arising in connection with
owning real estate which include, among others:
o the bankruptcy or insolvency of, or a downturn in the business of, any
of our major tenants could reduce cash flow,
o the possibility that such tenants will not renew their leases as they expire
or renew at lower rental rates could reduce cash flow,
o risks related to the internet and e-commerce reducing the demand for
shopping centers,
o vacated anchor space will affect the entire shopping center because of the
loss of the departed anchor tenant's customer drawing power,
o poor market conditions could create an over supply of space or a reduction
in demand for real estate in markets where Regency owns shopping centers,
o Regency's rapid growth could place strains on its resources,
o risks relating to leverage, including uncertainty that Regency will be
able to refinance its indebtedness, and the risk of higher interest rates,
o unsuccessful development activities could reduce cash flow,
o Regency's inability to satisfy its cash requirements for operations and the
possibility that Regency may be required to borrow funds to meet
distribution requirements in order to maintain its qualification as a REIT,
3
Risk Factors Relating to Ownership of Regency Common Stock (continued)
o potential liability for unknown or future environmental matters and costs of
compliance with the Americans with Disabilities Act,
o the risk of uninsured losses, and
o unfavorable economic conditions could also result in the inability of
tenants in certain retail sectors to meet their lease obligations and
otherwise could adversely affect Regency's ability to attract and retain
desirable tenants.
Compliance with Governmental Regulations
Under various federal, state and local laws, ordinances and regulations,
we may be liable for the cost to remove or remediate certain hazardous or toxic
substances at our shopping centers. These laws often impose liability without
regard to whether the owner knew of, or was responsible for, the presence of the
hazardous or toxic substances. The cost of required remediation and the owner's
liability for remediation could exceed the value of the property and/or the
aggregate assets of the owner. The presence of such substances, or the failure
to properly remediate such substances, may adversely affect the owner's ability
to sell or rent the property or borrow using the property as collateral. We have
a number of properties that will require or are currently undergoing varying
levels of environmental remediation. These remediations are not expected to have
a material financial effect on Regency due to financial statement reserves,
insurance programs designed to mitigate the cost of remediation and various
state-regulated programs that shift the responsibility and cost to the state.
Competition
We believe the ownership of shopping centers is highly fragmented.
Regency faces competition from other REITs in the development, acquisition,
ownership and leasing of shopping centers as well as from numerous local,
regional and national real estate developers and owners.
Changes in Policies
Our Board of Directors establishes the policies that govern our
investment and operating strategies including, among others, debt and equity
financing policies, quarterly distributions to shareholders, and REIT tax
status. The Board of Directors may amend these policies at any time without a
vote of Regency's shareholders.
Employees
Our headquarters are located at 121 West Forsyth St., Suite 200,
Jacksonville, Florida. Regency presently maintains 18 offices in 11 states where
it conducts management, leasing and development activities. At December 31,
2000, Regency had approximately 377 employees and believes that relations with
its employees are good.
4
Item 2. Properties
The Company's properties summarized by state including their gross
leasable areas (GLA) follows:
December 31, 2000 December 31, 1999
----------------- -----------------
Location # Properties GLA % Leased # Properties GLA % Leased
------------ ----- -------- ------------ -------- -----------
Florida 53 6,535,088 92.8% 48 5,909,534 91.7%
California 39 4,922,329 98.3% 36 3,858,628 98.2%
Texas 34 4,165,857 94.2% 29 3,849,549 94.2%
Georgia 26 2,553,041 95.4% 27 2,716,763 92.3%
Ohio 13 1,760,955 97.0% 14 1,923,100 98.1%
North Carolina 13 1,302,751 97.4% 12 1,241,639 97.9%
Washington 10 1,180,020 95.5% 9 1,066,962 98.1%
Colorado 10 897,788 97.9% 10 903,502 98.0%
Oregon 9 776,853 91.7% 7 616,070 94.2%
Alabama 5 516,062 97.9% 5 516,061 99.5%
Arizona 7 481,215 97.9% 2 326,984 99.7%
Tennessee 4 423,326 99.6% 3 271,697 98.9%
Virginia 4 397,624 95.1% 2 197,324 96.1%
Missouri 2 369,045 95.8% 1 82,498 95.8%
Kentucky 2 304,347 91.1% 1 205,061 91.8%
Michigan 3 274,987 94.1% 3 250,655 98.7%
Delaware 1 228,169 98.6% 1 232,754 96.3%
Mississippi 2 185,061 97.7% 2 185,061 96.6%
Illinois 1 178,601 86.4% 1 178,600 85.9%
South Carolina 2 162,056 97.0% 2 162,056 98.8%
New Jersey 1 88,867 - - - -
Wyoming 1 87,777 - 1 75,000 -
------------ ------------ ------------- ------------ ----------- -----------
Total 242 27,791,819 95.3% 216 24,769,498 95.0%
============ ============ ============= ============ =========== ===========
* Excludes properties under construction
The following table summarizes the largest tenants occupying the
Company's shopping centers based upon a percentage of total annualized base rent
exceeding .5% at December 31, 2000. The table includes 100% of the base rent
from leases of properties owned by joint ventures.
Summary of Principal Tenants > .5% of Annualized Base Rent
(including Properties Under Development)
% to Company of Annualized # of
Tenant SF Owned GLA Rent Base Rent Stores
-------- --------- ------------ ---------- ------------- -------
Kroger 3,271,507 11.8% 29,603,109 10.39% 56
Publix 1,956,594 7.0% 14,455,804 5.07% 43
Safeway 1,481,454 5.3% 13,357,008 4.69% 30
Blockbuster 374,421 1.3% 6,638,982 2.33% 66
Albertsons 702,097 2.5% 6,301,880 2.21% 14
Winn Dixie 760,329 2.7% 5,286,371 1.86% 16
Hallmark 244,621 0.9% 3,571,965 1.25% 58
Harris Teeter 276,475 1.0% 2,984,436 1.05% 6
Walgreens 223,431 0.8% 2,271,092 0.80% 16
Long's Drugs 230,792 0.8% 2,016,514 0.71% 10
Wal-Mart 486,168 1.7% 1,993,727 0.70% 6
Bed, Bath & Beyond 106,006 0.4% 1,862,578 0.65% 3
Stein Mart 281,445 1.0% 1,793,375 0.63% 8
Hollywood Video 96,436 0.3% 1,784,792 0.63% 15
K-Mart 334,687 1.2% 1,772,575 0.62% 4
Eckerd 194,070 0.7% 1,692,366 0.59% 20
H.E.B. Grocery 150,682 0.5% 1,674,162 0.59% 2
T.J. Maxx /
Marshalls 216,759 0.8% 1,591,032 0.56% 8
Target 240,086 0.9% 1,589,996 0.56% 2
Mail Boxes, Etc. 88,966 0.3% 1,545,017 0.54% 67
Rite Aid 156,700 0.6% 1,413,979 0.50% 10
A & P 108,399 0.4% 1,405,425 0.49% 2
5
Item 2. Properties (continued)
The Company's leases have lease terms generally ranging from three to five
years for tenant space under 5,000 square feet. Leases greater than 10,000
square feet generally have lease terms in excess of five years, mostly comprised
of anchor tenants. Many of the anchor leases contain provisions allowing the
tenant the option of extending the term of the lease at expiration. The
Company's leases provide for the monthly payment in advance of fixed minimum
rentals, additional rents calculated as a percentage of the tenant's sales, the
tenant's pro rata share of real estate taxes, insurance, and common area
maintenance expenses, and reimbursement for utility costs if not directly
metered.
The following table sets forth a schedule of lease expirations for the
next ten years, assuming that no tenants exercise renewal options:
Future
Percent of Minimum Percent of
Lease Total Rent Total
Expiration Expiring Company Expiring Minimum
Year GLA GLA Leases Rent (2)
---- --- --- ------ --------
(1) 537,561 2.3% 7,054,826 2.7%
2001 1,617,159 7.0% 22,958,674 8.7%
2002 1,909,683 8.3% 25,755,163 9.8%
2003 2,055,595 8.9% 27,885,305 10.6%
2004 2,052,999 8.9% 29,313,096 11.1%
2005 2,300,866 10.0% 30,355,277 11.5%
2006 1,242,394 5.4% 13,142,805 5.0%
2007 1,027,047 4.5% 10,658,339 4.0%
2008 1,076,523 4.7% 9,299,925 3.5%
2009 740,800 3.2% 7,522,151 2.9%
2010 1,108,370 4.8% 12,240,647 4.6%
------------------------------------------------
10 Yr. Total 15,668,997 67.9% $196,186,208 74.4%
------------------------------------------------
(1) leased currently under month to month rent or in process of renewal
(2) total minimum rent includes current minimum rent and future contractual rent
steps for all properties, but excludes additional rent such as percentage rent,
common area maintenance, real estate taxes and insurance reimbursements
See the property table below and also see Item 7, Management's
Discussion and Analysis for further information about the Company's properties.
6
Year Gross
Year Con- Leasable Percent Grocery
Property Name Acquired structed (1) Area (GLA) Leased (2) Anchor
- ------------------------------------------------------------------------------------------------------------------------------------
FLORIDA
Jacksonville / North Florida
Anastasia 1993 1988 102,342 88.6% Publix
Bolton Plaza 1994 1988 172,938 100.0% --
Carriage Gate 1994 1978 76,833 69.5% --
Courtyard 1993 1987 137,256 100.0% Albertson's (4)
Ensley Square 1997 1977 62,363 30.8% --
Fleming Island 1998 2000 125,779 95.7% Publix
Highlands Square (3) 1998 1999 262,499 80.3% Publix/Winn-Dixie
Julington Village (3) 1999 1999 81,820 87.5% Publix
Millhopper 1993 1974 84,065 100.0% Publix
Newberry Square 1994 1986 180,524 97.0% Publix
Ocala Corners (3) 2000 2000 86,766 70.5% Publix
Old St. Augustine Plaza 1996 1990 175,459 100.0% Publix
Palm Harbour 1996 1991 172,758 92.7% Publix
Pine Tree Plaza 1997 1999 60,787 97.4% Publix
Regency Court 1997 1992 218,665 94.6% --
South Monroe 1996 1998 68,840 100.0% Winn-Dixie
Tampa / Orlando
Beneva Village Shops 1998 1987 141,532 94.3% Publix
Bloomingdale Square 1998 1987 267,935 99.0% Publix
Kings Crossing Sun City 1999 75,020 92.0% Publix
Mainstreet Square 1997 1988 107,159 94.7% Winn-Dixie
Mariner's Village 1997 1986 117,665 90.3% Winn-Dixie
Market Place - St. Petersburg 1995 1983 90,296 83.7% Publix
Peachland Promenade 1995 1991 82,082 92.5% Publix
Regency Square 1993 1986 341,448 92.9% --
at Brandon
Seven Springs 1994 1986 162,580 86.0% Winn-Dixie
Regency Village (3) 2000 2000 184,824 24.0% Publix
Terrace Walk 1993 1990 50,926 80.5% --
Town Square (3) 1997 1999 44,679 16.8% --
University Collections 1996 1984 106,627 87.2% Kash N Karry (4)
Village Center-Tampa 1995 1993 174,781 91.1% Publix
Willa Springs (3) 2000 2000 93,810 100.0% Publix
West Palm Beach /
Treasure Coast
Boynton Lakes Plaza 1997 1993 130,925 97.8% Winn-Dixie
Chasewood Plaza 1993 1986 141,178 89.8% Publix
Chasewood Storage 1993 1986 42,810 100.0% --
East Port Plaza 1997 1991 235,842 95.2% Publix
Martin Downs Village Center 1993 1985 121,946 95.2% --
Martin Downs Village Shoppes (3) 1993 1998 49,773 98.6% --
Ocean Breeze 1993 1985 108,209 83.0% Publix
Ocean East (5) 1996 1997 113,328 94.0% Stuart Foods
Tequesta Shoppes 1996 1986 109,937 85.5% Publix
Town Center at Martin Downs 1996 1996 64,546 100.0% Publix
Wellington Market Place 1995 1990 171,558 99.3% Winn-Dixie
Wellington Town Square 1996 1982 105,150 98.3% Publix
Miami / Ft. Lauderdale
Aventura 1994 1974 102,876 93.9% Publix
Berkshire Commons 1994 1992 106,354 97.7% Publix
Garden Square 1997 1991 90,258 98.6% Publix
North Miami 1993 1988 42,500 75.3% Publix
Palm Trails Plaza 1997 1998 76,067 96.6% Winn-Dixie
Shoppes @ 104 1998 1990 108,190 98.0% Winn Dixie
Shoppes of Pebblebrooke 2000 76,766 79.7% Publix
Tamiami Trail 1997 1987 110,867 97.3% Publix
University Market Place 1993 1990 129,121 76.2% Albertson's (4)
Welleby 1996 1982 109,949 87.5% Publix
Ft. Myers / Cape Coral
Grande Oaks (3) 2000 2000 75,880 67.6% Publix
------------------ --------------
Subtotal/Weighted
Average(Florida) 6,535,088 89.1%
------------------ --------------
7
CALIFORNIA
Los Angeles / SCA
Amerige Heights (3) 2000 2000 272,377 0.5% --
Bristol and Warner 1999 1998 121,679 97.4% Food 4 Less
Campus Marketplace (3) 2000 145,580 39.5% Ralph's
Costa Verde 1999 1988 179,319 98.9% Albertson's
Crossroads Plaza 1999 1988 60,638 100.0% Gigante
El Camino 1999 1995 135,883 100.0% Von's Food & Drug
El Norte Parkway Plaza 1984 87,990 100.0% Von's Food & Drug
Friars Mission 1999 1989 145,608 100.0% Ralph's
Garden Village (3) 2000 2000 114,983 34.4% --
Heritage Plaza 1999 1981 231,883 99.1% Ralph's
Morningside Plaza 1999 1996 91,600 98.6% Albertson's
Newland Center 1999 1985 166,492 96.1% Lucky's
Oakbrook Plaza 1999 1982 83,278 100.0% Albertson's
Plaza de Hacienda 1999 1991 127,132 96.9% Food 4 Less
Plaza El Paseo (3),(5) 2000 2000 100,350 7.0% Kohls (4)
Plaza Hermosa 1999 1984 94,939 100.0% Von's Food & Drug
Rona Plaza 1999 1989 51,779 100.0% Food 4 Less
San Fernando Value Square 2000 122,442 100.0% --
Santa Ana Downtown Plaza 1987 100,305 81.7% Food 4 Less
Twin Peaks 1999 1988 198,139 99.0% Albertson's
Ventura Village 1999 1984 76,070 97.8% Von's Food & Drug
Westlake Village Plaza 1999 1975 190,656 100.0% Von's Food & Drug
Woodman - Van Nuys 1999 1992 107,570 97.7% Gigante
San Francisco / NCA
Blossom Valley 1999 1990 93,314 100.0% Safeway
Corral Hollow (3),(5) 2000 2000 168,048 41.2% Safeway
Country Club 1999 1994 111,251 100.0% Ralph's
Diablo Plaza 1999 1982 63,265 100.0% Safeway (4)
El Cerrito Plaza (3) 2000 2000 365,733 42.3% Lucky's
El Dorado Hills (3) 2000 2000 113,521 20.3% Ralph's
Encina Grande 1999 1965 102,499 100.0% Safeway
Loehmann's Plaza 1999 1983 113,309 93.7% Safeway (4)
Prairie City Crossing (3) 1999 100,725 65.9% Safeway
San Leandro 1999 1982 50,853 99.2% Safeway (4)
Sequoia Station 1999 1996 103,388 99.8% Safeway (4)
Strawflower Village 1999 1985 78,827 100.0% Safeway
Tassajara Crossing 1999 1990 146,188 100.0% Safeway
The Promenade 1999 1989 136,022 96.2% Bel Air Market
West Park Plaza 1999 1996 88,103 100.0% Safeway
Woodside Central 1999 1993 80,591 100.0% --
------------------ --------------
Subtotal/Weighted
Average(California) 4,922,329 79.3%
------------------ --------------
TEXAS
Austin
Hancock Center 1999 1998 410,438 99.2% H.E.B.
Market @ Round Rock 1987 123,345 97.9% Albertson's
North Hills 1999 1995 144,019 97.8% H.E.B.
Dallas / Ft. Worth
Arapaho Village 1999 1997 107,737 95.6% Tom Thumb
Bethany Lake 1998 1998 74,066 100.0% Kroger
Casa Linda Plaza 1999 1997 324,639 86.9% Albertson's
Cooper Street 1999 1992 133,215 100.0% --
Creekside (5) 1998 1998 96,816 100.0% Kroger
Harwood Hills PH I & II 1999 1996 122,540 90.6% Tom Thumb
Hebron Park 1999 1999 46,800 97.0% Albertson's (4)
Hillcrest Village 1999 1991 14,530 100.0% --
Keller Town Center (3) 1999 1999 115,776 85.5% Tom Thumb
Lebanon/Legacy Center (3) 2000 57,422 11.7% Albertson's (4)
MacArthur Park Phase I 2000 33,987 100.0% --
MacArthur Park Phase II (5) 1999 198,586 93.5% Kroger
Market @ Preston Forest 1990 90,171 100.0% Tom Thumb
Matlock (3) 2000 2000 40,125 10.0% --
Mills Pointe 1999 1986 126,238 99.0% Tom Thumb
Mockingbird Commons 1987 121,531 93.7% Tom Thumb
TEXAS
Dallas / Ft. Worth (Continued)
Northview Plaza 1999 1991 116,554 89.8% Kroger
Ocotillo Center (3) 2000 2000 40,799 49.6% Safeway (4)
Preston Brook - Frisco 1998 1998 91,274 98.1% Kroger
Preston Park 1999 1985 268,869 85.6% Tom Thumb
8
Prestonwood (3) 1999 1999 100,972 67.6% Albertson's (4)
Ridglea Plaza 1999 1986 197,961 86.8% Tom Thumb
Shiloh Springs (5) 1998 1998 110,425 96.3% Kroger
Southpark 1999 1997 145,888 90.8% Albertson's
Tarrant Pkwy Plaza (3) 1999 1999 33,079 91.8% Albertson's (4)
The Village 1999 1982 95,148 93.4% Tom Thumb
Trophy Club (3) 1999 1999 125,063 73.4% Tom Thumb
Valley Ranch PH I, II & III 1997 117,187 99.0% Tom Thumb
Village Center - Southlake (5) 1998 1998 118,172 92.2% Kroger
Houston
Champions Forest 1999 1983 115,379 99.2% Randall's Food
Fort Bend Market (3) 2000 2000 107,106 66.5% Kroger
------------------ --------------
Subtotal/Weighted
Average(Texas) 4,165,857 89.6%
------------------ --------------
GEORGIA
Atlanta
Ashford Place 1997 1993 53,346 100.0% --
Briarcliff LaVista 1997 1962 39,203 87.7% --
Briarcliff Village 1997 1990 183,755 100.0% Publix
Buckhead Court 1997 1984 55,229 97.4% --
Cambridge Square 1996 1979 69,649 85.2% Harris Teeter
Cromwell Square 1997 1990 70,282 95.1% --
Cumming 400 1997 1994 126,900 98.8% Publix
Delk Spectrum 1998 1991 100,880 100.0% Publix
Dunwoody Hall (3) 1997 1986 89,511 82.4% Publix
Dunwoody Village 1997 1975 114,658 65.7% --
Killian Hill Market (3) 2000 2000 112,972 97.2% Publix
Loehmann's Plaza 1997 1986 137,635 100.0% --
Lovejoy Station 1997 1995 77,336 100.0% Publix
Memorial Bend 1997 1995 182,782 95.2% Publix
Orchard Square (3) 1995 1987 93,222 81.0% Publix
Paces Ferry Plaza 1997 1987 61,696 95.9% --
Powers Ferry Square 1997 1987 97,812 98.6% Harry's
Powers Ferry Village 1997 1994 78,995 99.9% Publix
Rivermont Station 1997 1996 90,267 100.0% Harris Teeter
Roswell Village 1997 1997 143,980 95.9% Publix
Russell Ridge 1994 1995 98,558 97.6% Kroger
Sandy Plains Village 1996 1992 175,035 95.5% Kroger
Sandy Springs Village 1997 1997 45,040 100.0% --
Other Markets
Evans Crossing 1998 1993 83,681 100.0% Kroger
LaGrangeMarketplace 1993 1989 76,327 91.9% Winn-Dixie
Parkway Station 1996 1983 94,290 90.7% Kroger
------------------ --------------
Subtotal/Weighted
Average(Georgia) 2,553,041 94.5%
------------------ --------------
OHIO
Cincinnati
Beckett Commons 1998 1995 112,936 100.0% Kroger
Cherry Grove 1998 1997 195,497 98.4% Kroger
Hyde Park Plaza 1997 1995 374,544 93.6% Kroger/Thriftway
Shoppes at Mason 1998 1997 80,800 100.0% Kroger
Westchester Plaza 1998 1988 88,181 96.8% Kroger
Columbus
East Pointe 1998 1993 86,525 98.4% Kroger
Hampstead Village (3) 1999 1999 91,805 92.4% Kroger
Kingsdale (3) 1997 1999 270,470 68.8% Big Bear
North Gate/(Maxtown) 1998 1996 85,100 100.0% Kroger
OHIO
Columbus (continued)
Park Place 1998 1988 106,833 98.6% Big Bear
Windmiller Plaza 1998 1997 120,509 95.4% Kroger
Worthington 1998 1991 93,095 98.5% Kroger
Toledo
Cherry Street Center (3) 2000 54,660 100.0% Farmer Jack
- ---------------------------------------------------------------------------------------- --------------
Subtotal/Weighted
Average(Ohio) 1,760,955 92.6%
------------------ --------------
9
NORTH CAROLINA
Asheville
Oakley Plaza 1997 1988 118,728 97.7% Bi-Lo
Charlotte
Carmel Commons 1997 1979 132,651 97.9% Fresh Market
City View 1996 1993 77,552 98.5% Winn-Dixie
Union Square 1996 1989 97,191 98.8% Harris Teeter
Greensboro
Sedgefield Village (3) 2000 2000 56,630 67.0% Food Lion
Raleigh / Durham
Bent Tree Plaza 1998 1994 79,503 100.0% Kroger
Garner Town Square 1998 1998 221,576 100.0% Kroger
Glenwood Village 1997 1983 42,864 100.0% Harris Teeter
Lake Pine Plaza 1998 1997 87,691 94.4% Kroger
Maynard Crossing 1998 1997 122,814 87.9% Kroger
Southpoint Crossing 1998 1998 103,128 98.6% Kroger
Woodcroft 1996 1984 89,833 100.0% Food Lion
Winston-Salem
Kernersville Marketplace 1998 1997 72,590 95.9% Harris Teeter
------------------ --------------
Subtotal/Weighted
Average(North Carolina) 1,302,751 96.1%
- ----------------------------------------------------------------------------------------------------------
WASHINGTON
Seattle
Cascade Plaza 1999 1999 217,817 91.1% Safeway
Inglewood Plaza 1999 1985 17,253 94.4% --
James Center 1999 1999 140,510 91.3% Fred Myer
Lake Meridian 1999 1989 165,210 89.5% Fred Myer
Pine Lake Village 1999 1989 100,953 100.0% Quality Foods
Sammamish Highlands 1999 1992 101,289 100.0% Safeway (4)
Seattle Fur Exchange (3) 2000 84,380 100.0% --
South Point Plaza 1999 1997 190,454 100.0% Cost Cutters
Southcenter 1999 1990 58,282 100.0% --
Thomas Lake 1999 1998 103,872 100.0% Albertson's
------------------ --------------
Subtotal/Weighted
Average(Washington) 1,180,020 95.8%
- ----------------------------------------------------------------------------------------------------------
COLORADO
Colorado Springs
Cheyenne Meadows 1998 1998 89,893 97.7% King Soopers
Jackson Creek 1998 1999 85,263 100.0% King Soopers
Woodmen Plaza (3),(5) 1998 1998 104,755 92.0% King Soopers
COLORADO
Denver
Boulevard Center 1999 1986 92,483 95.7% Safeway (4)
Buckley Square 1999 1978 111,146 100.0% King Soopers
Leetsdale Marketplace 1999 1993 119,916 98.7% Safeway
Littleton Square 1999 1997 94,257 97.7% King Soopers
Lloyd King Center 1998 1998 83,326 100.0% King Soopers
Redlands Marketplace (3) 1999 30,317 18.4% Albertson's (4)
Stroh Ranch 1998 1998 86,432 100.0% King Soopers
------------------ --------------
Subtotal/Weighted
Average(Colorado) 897,788 95.2%
------------------ --------------
OREGON
Portland
Cherry Park Market (Grmr) 1997 113,518 84.6% Safeway
Murrayhill Marketplace 1999 1988 149,214 88.4% Thriftway
Port of Portland (3) 2000 2000 67,240 85.3% Albertson's
Sherwood Crossroads (3) 1999 79,267 73.1% Safeway (4)
Sherwood Market Center 1995 124,256 98.1% Albertson's
Sunnside 205 1999 1988 53,279 83.7% --
Tannesbourne (3) 2000 2000 46,876 64.8% --
Walker Center 1999 1987 89,624 97.4% --
West Hills 1999 1998 53,579 100.0% QFC
------------------ --------------
Subtotal/Weighted
Average(Oregon) 776,853 87.7%
------------------ --------------
10
ALABAMA
Birmingham
Villages of Trussville 1993 1987 69,280 92.6% Bruno's
West County Marketplace 1993 1987 129,155 98.5% Food World (4)
Montgomery
Country Club 1993 1991 67,622 99.0% Winn-Dixie
Other Markets
Bonner's Point 1993 1985 87,282 100.0% Winn-Dixie
Marketplace - 1993 1987 162,723 98.3% Winn-Dixie
Alexander City
------------------ --------------
Subtotal/Weighted
Average(Alabama) 516,062 97.9%
------------------ --------------
ARIZONA
Phoenix
Carefree Marketplace (3) 2000 24,657 0.0% Fry's (4)
South Mountain (3) 2000 2000 26,341 42.0% Safeway (4)
Stonebridge Center (3) 2000 2000 30,387 19.1% Safeway (4)
The Provinces (3) 2000 2000 34,330 27.2% Safeway (4)
Scottsdale
Paseo Village 1999 1998 92,399 92.4% ABCO
Pima Crossing 1999 1996 238,330 100.0% Basha's
Tuscon
Vistoso Center (3) 2000 2000 34,771 32.4% Safeway (4)
------------------ --------------
Subtotal/Weighted
Average(Arizona) 481,215 75.1%
------------------ --------------
TENNESSEE
Nashville
Harpeth Village 1997 1998 70,091 100.0% Albertson's
Nashboro Village 1998 1998 86,811 100.0% Kroger
Northlake Village 2000 1988 151,629 99.0% Kroger
Peartree Village 1997 1997 114,795 100.0% Harris Teeter
------------------ --------------
Subtotal/Weighted
Average(Tennessee) 423,326 99.6%
------------------ --------------
VIRGINIA
Other Virgina
Brookville Plaza 1998 1991 63,664 92.5% Kroger
Statler Square 1998 1996 133,660 96.3% Kroger
Washington D.C.
Ashburn Farm Market (3) 2000 92,000 56.7% Giant
Chesire Station (3) 2000 2000 108,300 54.1% Safeway
------------------ --------------
Subtotal/Weighted
Average(Virginia) 397,624 75.0%
------------------ --------------
MISSOURI
Olde Towne Plaza (3),(5) 2000 286,547 77.0% --
St. Ann Square 1998 1986 82,498 95.8% National
------------------ --------------
Subtotal/Weighted
Average(Missouri) 369,045 81.2%
------------------ --------------
KENTUCKY
Franklin Square 1998 1988 205,061 86.8% Kroger
Silverlake 1998 1988 99,286 100.0% Kroger
------------------ --------------
Subtotal/Weighted
Average(Kentucky) 304,347 91.1%
------------------ --------------
11
MICHIGAN
Fenton Marketplace (3) 1999 97,126 87.1% Farmer Jack
Lakeshore 1998 1996 85,940 94.1% Kroger
Waterford 1998 1998 91,921 94.1% Kroger
------------------ --------------
Subtotal/Weighted
Average(Michigan) 274,987 91.6%
------------------ --------------
MISSISSIPPI
Columbia Marketplace 1993 1988 136,002 98.2% Winn-Dixie
Lucedale Marketplace 1993 1989 49,059 96.3% Delchamps
------------------ --------------
Subtotal/Weighted
Average(Mississippi) 185,061 97.7%
------------------ --------------
SOUTH CAROLINA
Merchants Village 1997 1997 79,723 94.0% Publix
Queensborough (5) 1998 1993 82,333 100.0% Publix
------------------ --------------
Subtotal/Weighted
Average(South Carolina) 162,056 97.0%
- ----------------------------------------------------------------------------------------------------------
DELEWARE
Pike Creek 1998 1981 228,169 98.6% Acme
ILLINOIS
Hinsdale Lake Commons 1998 1986 178,601 86.4% Dominick's
New Jersey
Echelon Village Plaza (3) 2000 2000 88,867 85.1% Genuardi's
WYOMING
Dell Range Road (3)(5) 1999 1999 87,777 71.2% King Soopers
------------------ --------------
Total Weighted Average 27,791,819 88.8%
==========================================================================================================
Drug Store & Other
Property Name Other Anchors Tenants
- ------------------------------------ ------------------------------------------- ----------------------------------------------
FLORIDA
Jacksonville / North Florida
Anastasia -- Hallmark, Schmagel's Bagels, Mailboxes
Bolton Plaza Wal-Mart, Blockbuster Radio Shack, Payless Shoes, Mailboxes
Carriage Gate TJ Maxx Brueggers Bagels, Bedfellows, Kinko's
Courtyard Target --
Ensley Square -- Radio Shack, Firehouse Subs, Amsouth Bank
Fleming Island Stein Mart Mail Boxes, Etc. ,Radio Shack, Hallmark
Highlands Square (3) Eckerd, Big Lots Hair Cuttery, Rent Way, Precision Printing
Julington Village (3) -- Mailboxes, Etc., H&R Block, Hallmark
Millhopper Eckerd, Jo-Ann Fabrics Book Gallery, Postal Svc., Chesapeake Bagel
Newberry Square Kmart, Jo-Ann Fabrics H & R Block, Cato Fashions, Olan Mills
Ocala Corners (3) -- --
Old St. Augustine Plaza Eckerd, Waccamaw Mail Boxes, Etc., Hallmark, Hair Cuttery
Palm Harbour Eckerd, Bealls, Blockbuster Mail Boxes, Etc., Hallmark, Merle Norman
Pine Tree Plaza -- Great Clips, CiCi's Pizza, Soupersalad
Regency Court CompUSA, Office Depot H&R Block, Mail Boxes Etc., Payless Shoes
Sports Authority Loop Restaurant, Ashley Furniture Homestore
South Monroe Blockbuster Rent-A-Center, H&R Block, GNC
Tampa / Orlando
Beneva Village Shops Walgreen's, Ross Dress for Less Movie Gallery, GNC, Hallmark, H&R Block
Bloomingdale Square Wal-Mart, Beall's, Blockbuster Video Radio Shack, H&R Block, Hallmark, Ace Hardware
Kings Crossing Sun City -- Hallmark, Mail Boxes Etc., Sally Beauty Supply
Mainstreet Square Walgreen's Rent-A-Center, Discount Auto Parts, Norwest
Mariner's Village Walgreen's, Blockbuster Supercuts. World Gym, Allstate Insurance
Market Place - St. Petersburg -- Mail Boxes, Etc., Republic Bank, Merle Norman
Peachland Promenade -- Southern Video, Hallmark, GNC
Regency Square TJ Maxx, AMC Pak Mail, Lens Crafter, Jo-Ann Fabrics
at Brandon Staples, Michaels, Marshalls S&K Famous Brands, Shoe Carnival
12
Seven Springs Kmart State Farm, Vanity Hair, H & R Block
Regency Village (3) --
Terrace Walk CitiFinancial Mortage Co. Cici's Pizza, Norwest Financial
Town Square (3) -- Panera Bread, Alltel
University Collections Eckerd, Jo-Anns Fabrics Hallmark, Dockside Imports, Kinkos
Village Center-Tampa Walgreen's, Stein Mart, Blockbuster Hallmark, Mens Warehouse
Willa Springs (3) -- Party Land, Hallmark, Radio Shack
West Palm Beach /
Treasure Coast
Boynton Lakes Plaza Walgreen's, World Gym, Blockbuster Hair Cuttery, Baskin Robbins, Dunkin Donuts
Chasewood Plaza Beall's, Books-A-Million Hallmark, GNC, Supercuts
Chasewood Storage -- --
East Port Plaza Walgreen's, Kmart, Sears Homelife H & R Block, GNC, Subway, Cato
Martin Downs Village Center Beall's, Coastal Care Payless Theater, Hallmark, Nations Bank
Martin Downs Village Shoppes (3) Walgreen's Mailbox Plus, Allstate, Optical Outlet
Ocean Breeze Walgreen's, Coastal Care Mail Box Plus, National Bank, World Travel
Ocean East (5) Medicine Shoppes,Coastal Care Mail Boxes, Nations Bank, Royal Dry Cleaners
Tequesta Shoppes -- Mail Boxes, Etc., Hallmark, Radio Shack
Town Center at Martin Downs -- Mail Boxes, Health Exchange, Champs Hair
Wellington Market Place Walgreen's, Wellington 8 Theater Pak Mail, Subway, Papa John's
Wellington Town Square Eckerd Mail Boxes, State Farm, Coldwell Banker
Miami / Ft. Lauderdale
Aventura Eckerd, Humana Footlabs, Bank United, City of Aventura
Berkshire Commons Walgreen's H & R Block, Century 21, Allstate
Garden Square Eckerd Subway, GNC, Hair Cuttery
North Miami -- --
Palm Trails Plaza -- Mail Boxes, Sal's Pizza, Personnel One
Shoppes @ 104 Navarro Discount Pharmacies Mail Boxes Etc., GNC, Subway
Shoppes of Pebblebrooke -- --
Tamiami Trail Eckerd, Blockbuster Mail Boxes, Etc., Radio Shack, Pizza Hut
University Market Place -- H & R Block, Mail Boxes Etc., Olan Mills
Welleby Walgreen's H & R Block, Mail Boxes Plus, Pizza Hut
Ft. Myers / Cape Coral
Grande Oaks (3) -- --
Subtotal/Weighted
Average(Florida)
CALIFORNIA
Los Angeles / SCA
Amerige Heights (3) Target(4) --
Bristol and Warner -- Banner Central, Hollywood Video, Domino's
Campus Marketplace (3) Sav-On Drugs
Costa Verde Petco, Bookstar, Blockbuster US Post Office, Subway, Starbucks
Crossroads Plaza -- --
El Camino Sav-On Drugs Kinkos, Bank of America, Subway, Radio Shack
El Norte Parkway Plaza -- Our Fitness, Great Clips, Lens-4-Less Optical
Friars Mission Long's Drugs, Blockbuster H&R Block, Mail Boxes Etc., Subway, Starbucks
Garden Village (3) Rite Aid Starbucks, Coldwell Banker
Heritage Plaza Sav-On Drugs, Ace Hardware Bank of America, Hollywood Video, Hallmark
Morningside Plaza -- Hallmark, Subway, Mail Boxes Etc.
Newland Center -- Wells Fargo Bank, Kinko's, Starbucks
Oakbrook Plaza Long's Drugs Century 21, TCBY Yogurt, Subway
Plaza de Hacienda -- Kragen Auto Parts, Taco Bell, Colortyme
Plaza El Paseo (3),(5) -- --
Plaza Hermosa Sav-On Drugs, Blockbuster Hallmark, Mail Boxes Etc., R.S.V.P.
Rona Plaza -- Home Video, Acapulco Travel
San Fernando Value Square Home Depot --
Santa Ana Downtown Plaza Blockbuster Little Caesars Pizza, Payless Shoes, Taco Bell
Twin Peaks Target Starbucks, Subway, GNC, Clothestime
Ventura Village Blockbuster Papa Johns Pizza, Fantastic Sams
Westlake Village Plaza Long's Drugs, Sav-On Drugs Bank of America, Citibank, Blockbuster Video
Woodman - Van Nuys -- Supercuts, H&R Block, Chief Auto Parts
San Francisco / NCA
Blossom Valley Long's Drugs US Post Office, Hallmark, Great Clips, Starbucks
Corral Hollow (3),(5) -- Precision Cuts
Country Club Long's Drugs, Blockbuster Subway, GNC, Starbucks
Diablo Plaza Long's Drugs, Jo-Ann Fabrics Hallmark, Mail Boxes Etc., Clothestime
El Cerrito Plaza (3) Long's Drugs, Woolworth Bed, Bath & Beyond, Hallmark, Walden Books
El Dorado Hills (3) Long' Drugs --
Encina Grande Walgreens, Blockbuster Radio Shack, Mail Boxes, Applebees
Loehmann's Plaza Long's Drugs, Loehmann's Starbucks, Hallmark, Blockbuster Video
Prairie City Crossing (3) -- Great Clips
San Leandro Blockbuster Radio Shack, Hallmark, Mail Boxes Etc.
Sequoia Station Long's Drugs, Old Navy Starbucks, Dress Barn, Sees Candies
Barnes and Noble, The Wherehouse
13
Strawflower Village Long's Drugs Hallmark, Mail Boxes Etc., Subway
Tassajara Crossing Long's Drugs, Ace Hardware Citibank, Hallmark, Petco, GNC
The Promenade Long's Drugs, Blockbuster Bank of America, Mail Boxes Etc., True Value
West Park Plaza Rite Aid, Blockbuster Starbucks, Supercuts, Kragen Auto Parks
Woodside Central Marshalls, Discovery Zone Hollywood Video, Pier 1 Imports, GNC
Subtotal/Weighted
Average(California)
TEXAS
Austin
Hancock Center Sears, Old Navy, Petco, Mars Music Hollywood Video, Radio Shack, GNC
Market @ Round Rock Color Tile and Carpet Radio Shack, H&R Block, Merle Norman
North Hills Goodyear Hollywood Video, Clothestime, Subway
Dallas / Ft. Worth
Arapaho Village -- H&R Block, Hallmark, GNC, Mail Boxes Etc.
Bethany Lake Blockbuster Lady of America, Mr. Parcel, Fantastic Sams
Casa Linda Plaza Eckerd, Petco, Blockbuster Mail Boxes Etc, Hallmark, 24 Hour Fitness
Cooper Street Circuit City, Office Max, Jo-Ann Fabrics, Mail Boxes Etc., State Farm
Sears Homelife
Creekside (5) -- Hollywood Video, CICI's Pizza, Lady of America
Harwood Hills PH I & II -- Good Year, Sport Clips, Pac N Mail
Hebron Park Blockbuster Lady America, Hallmark, GNC
Hillcrest Village Blockbuster American Airlines
Keller Town Center (3) -- Sports Clips, Radio Shack, Starbucks
Lebanon/Legacy Center (3) -- --
MacArthur Park Phase I Pier I Imports Men's Warehouse, Sport Clips
MacArthur Park Phase II (5) Linens 'N Things, Barnes & Noble Gap, Hallmark, Great Clips, Marble Slab
Market @ Preston Forest Petco Nations Bank, Fantastic Sams
Matlock (3) Wal-Mart (4) --
Mills Pointe Blockbuster Hallmark, H&R Block, Subway, State Farm
Mockingbird Commons -- State Farm, GNC, Starbucks, Hallmark
TEXAS
Dallas / Ft. Worth (Continued)
Northview Plaza Blockbuster Merle Norman, Glamour Nails
Ocotillo Center (3) -- State Farm, Mail Boxes Etc., Supercuts
Preston Brook - Frisco -- Coldwell Banker, GNC, Supercuts
Preston Park Gap, Blockbuster Bath & Body Works, Mail Boxes Etc., Starbucks
Culwell & Son, Williams Sonoma Hallmark, Baby Gap, Wolf Camera
Prestonwood (3) Blockbuster Hallmark, Great Clips, Mail Boxes Etc., Subway
Ridglea Plaza Eckerd, Stein Mart Radio Shack, Mail Boxes Etc., Pro-Cuts
Shiloh Springs (5) Blockbuster GNC, Great Clips, Lady of America
Southpark Bealls H&R Block, GNC, Mail Boxes Etc.
Tarrant Pkwy Plaza (3) Blockbuster Hallmark, Subway, Great Clips
The Village -- Famous Footwear, Hallmark, Boston Market
Trophy Club (3) Blockbuster Bank of America, Subway, Radio Shack
Valley Ranch PH I, II & III -- Mail Boxes Etc., GNC, H&R Block
Village Center - Southlake (5) Blockbuster Radio Shack, Papa Johns, Smoothie King
Houston
Champions Forest Eckerd Mail Boxes Etc., GNC, Sport Clips
Fort Bend Market (3) -- Mailbox Depot
Subtotal/Weighted
Average(Texas)
GEORGIA
Atlanta
Ashford Place Pier 1 Imports Baskin Robbin, Mail Boxes, Merle Norman
Briarcliff LaVista Drug Emporium Supercuts
Briarcliff Village TJ Maxx, Office Depot Subway, Hair Cuttery, Famous Footwear
Buckhead Court Pavillion Bellsouth Mobility, Outback Steakhouse
Cambridge Square -- Allstate, AAA Mail & Pkg., Wachovia
Cromwell Square CVS Drug, Haverty's, Hancock Fabrics First Union, Bellsouth Mobility
Cumming 400 Big Lots Pizza Hut, Hair Cuttery, Autozone
Delk Spectrum Eckerd, Blockbuster Mail Boxes, Etc., GNC, Hallmark
Dunwoody Hall (3) Eckerd Texaco, Blimpie, Nations Bank
Dunwoody Village -- Federal Express, Jiffy Lube, Hallmark
Killian Hill Market (3) Papa Johns Pizza, Citifinancial, Tuesday Morning
Loehmann's Plaza Eckerd, Loehmann's Mail Boxes, Etc., GNC, H & R Block
Lovejoy Station Blockbuster Subway, H&R Block, Supercuts
Memorial Bend TJ Maxx Hollywood Video, Pizza Hut, GNC, H & R Block
Orchard Square (3) -- Mail Boxes Unlimited, State Farm, Remax
Paces Ferry Plaza Blockbuster Sherwin Williams, Nations Bank
Powers Ferry Square CVS Drug, Pearl Arts & Crafts Domino's Pizza, Dunkin Donuts, Supercuts
Powers Ferry Village CVS Drug Mail Boxes, Etc., Blimpies
Rivermont Station CVS Drug, Blockbuster Pak Mail, GNC, Wolf Camera
Roswell Village Eckerd, Blockbuster Hallmark, Pizza Hut, Scholtzyky's, Act Hardware
Russell Ridge Blockbuster Pizza Hut, Pak Mail, Hallmark, GNC
Sandy Plains Village Stein Mart, Blockbuster Hallmark, Mail Boxes Etc., Subway
Sandy Springs Village Staples, Blockbuster Air Touch, Steinway Piano
14
Other Markets
Evans Crossing Olsen Tire, Blockbuster Subway, Hair Cuttery, Dollar Tree
LaGrangeMarketplace Eckerd Lee's Nails, It's Fashions, One Price Clothing
Parkway Station -- H & R Block, Pizza Hut, Olan Mills
Subtotal/Weighted
Average(Georgia)
OHIO
Cincinnati
Beckett Commons Stein Mart Mail Boxes, Etc., Subway, GNC
Cherry Grove CVS Drug, TJ Maxx, Hancock Fabric GNC, Hallmark, Sally Beauty Supply
Hyde Park Plaza Walgreen's, Michaels, Blockbuster Radio Shack, H&R Block, Hallmark,
Barnes & Noble, Old Navy Jo-Ann Fabric, US Post Office, Kinkos
Shoppes at Mason Blockbuster Mail Boxes Etc., GNC, Great Clips
Westchester Plaza -- Pizza Hut, Subway, GNC
Columbus
East Pointe Goodyear, Blockbuster Mail Boxes, Etc., Hallmark, Subway
Hampstead Village (3) Blockbuster Great Clips, Mail Boxes Etc., Blimpies
Kingsdale (3) Stein Mart, Goodyear Hallmark, Jenny Craig, Famous Footware
North Gate/(Maxtown) -- Hallmark, GNC, Great Clips
OHIO
Columbus (continued)
Park Place Blockbuster Mail Boxes Etc., Domino's, Subway
Windmiller Plaza Sears Hardware Radio Shack, Sears Optical, Great Clips
Worthington CVS Drug, Blockbuster Little Caesar's, Hallmark, Radio Shack
Toledo
Cherry Street Center (3) -- --
- ------------------------------------
Subtotal/Weighted
Average(Ohio)
NORTH CAROLINA
Asheville
Oakley Plaza CVS Drug, Western Auto Little Caesar's, Subway
Baby Superstore Life Uniform
Charlotte
Carmel Commons Eckerd, Blockbuster, Piece Goods Party City, Radio Shack, Chuck E Cheese's
City View CVS Drug, Public Library Bellsouth, Willie's Music
Union Square CVS Drug, Blockbuster Mail Boxes, Etc., Subway, TCBY, Rack Room
Consolidated Theatres
Greensboro
Sedgefield Village (3) -- --
Raleigh / Durham
Bent Tree Plaza -- Pizza Hut, Manhattan Bagel, Parcel Plus
Garner Town Square Target (4), Office Max, Blockbuster Sears Optical, Friedman's Jewelers
Petsmart, United Artists H & R Block, Shoe Carnival, Dress Barn
Glenwood Village Glenwood Pharmacy Domino's Pizza, Simple Pleasures
Lake Pine Plaza Blockbuster H & R Block, GNC, Great Clips
Maynard Crossing Blockbuster Mail Boxes, Etc., GNC, Hallmark
Southpoint Crossing Blockbuster Wolf Camera, GNC, H&R Block, Hallmark
Woodcroft True Value Domino's Pizza, Subway, Allstate
Winston-Salem
Kernersville Marketplace -- Mail Boxes, Little Caesar's, Great Clips
Subtotal/Weighted
Average(North Carolina)
- ------------------------------------
WASHINGTON
Seattle
Cascade Plaza Long's Drugs, Ross Dress for Less Bally Total Fitness, JoAnn Fabrics, Fashion Bug
Inglewood Plaza Radio Shack Subway, Great Clips
James Center Rite Aid Kinko's, Hollywood Video, U.S. Bank
Lake Meridian Bartell Drugs, 24 Hour Fitness Mail Boxes Etc., Starbucks
Pine Lake Village Rite Aid, Blockbuster Starbucks, Mail Post, Baskin Robbins
Sammamish Highlands Bartell Drugs, Ace Hardware Hollywood Video, Starbucks, GNC, H&R Block
Seattle Fur Exchange (3) Bed, Bath & Beyond The Oak Mill, Guitar Center
South Point Plaza Rite Aid, Office Depot, Outback Steakhouse, Mail Boxes Etc.
Pep Boys
15
Southcenter Target (4) GTE Wireless, Supercuts, Starbucks
Thomas Lake Rite Aid, Blockbuster Great Clips, Subway
Subtotal/Weighted
Average(Washington)
- ------------------------------------
COLORADO
Colorado Springs
Cheyenne Meadows -- Hallmark, Nail Center, Cost Cutters
Jackson Creek -- Cost Cutters, Pak Mail
Woodmen Plaza (3),(5) -- Hallmark, GNC, Mail Boxes Etc., H&R Block
COLORADO
Denver
Boulevard Center One Hour Optical Bennigans, Great Clips, Mail Boxes Etc.
Buckley Square True Value Hardware Hollywood Video, Radio Shack, Subway
Leetsdale Marketplace Blockbuster Radio Shack, GNC, Checkers Auto Parts
Littleton Square Walgreens, Blockbuster Hallmark, H&R Block, Radio Shack, Great Clips
Lloyd King Center -- GNC, Cost Cutters, Hollywood Video
Redlands Marketplace (3) -- Great Clips
Stroh Ranch -- Cost Cutters, Post Net, Dry Clean Station
Subtotal/Weighted
Average(Colorado)
OREGON
Portland
Cherry Park Market (Grmr) -- Hollywood Video, Subway, Baskin Robbins
Murrayhill Marketplace -- True Value, Great Clips, Allstate
Port of Portland (3) -- --
Sherwood Crossroads (3) -- Great Clips, Starbucks
Sherwood Market Center -- Hallmark, Blimpies, GNC, Supercuts
Sunnside 205 -- Kinko's, State Farm, Coffee Bistro
Tannesbourne (3) Bed, Bath & Beyond Party City
Walker Center Sportmart, Blockbuster Postal Annex
West Hills Blockbuster GNC, Starbucks, Great Clips, State Farm
Subtotal/Weighted
Average(Oregon)
ALABAMA
Birmingham
Villages of Trussville CVS Drug Movie Gallery, Cellular One, Mattress Max
West County Marketplace Rite Aid, Wal-Mart Domino's Pizza, GNC, Cato, Payless Shoes
Montgomery
Country Club Rite Aid Radio Shack, Subway, Premiere Video, GNC
Other Markets
Bonner's Point Wal-Mart Subway, Domino's Pizza, Cato, Movie Gallery
Marketplace - Wal-Mart, Goody's Family Clothing Domino's Pizza, Subway, Hallmark
Alexander City
Subtotal/Weighted
Average(Alabama)
ARIZONA
Phoenix
Carefree Marketplace (3) -- --
South Mountain (3) -- Fashion Avenue
Stonebridge Center (3) -- Cost Cutters, Post Net
The Provinces (3) -- Supercuts, L.A. Nails, New York Bagels
Scottsdale
Paseo Village Walgreens, Blockbuster Domino's Pizza, McDonalds
Pima Crossing Stein Mart, Blockbuster Pier 1 Imports, Bally Total Fitness, GNC
Tuscon
Vistoso Center (3) -- Lady of America, L.A. Nails, State Farm
Subtotal/Weighted
Average(Arizona)
16
TENNESSEE
Nashville
Harpeth Village Blockbuster Mail Boxes, Etc., Heritage Cleaners, Great Clips
Nashboro Village -- Hallmark, Fantastic Sams, Cellular Sales
Northlake Village CVS Drug Petco, Franks Nursery, GNC
Peartree Village Eckerd, Office Max Hollywood Video, AAA Auto, Royal Thai
Subtotal/Weighted
Average(Tennessee)
VIRGINIA
Other Virgina
Brookville Plaza -- H&R Block, Cost Cutters, Liberty Mutual
Statler Square CVS Drug, Staples Hallmark, H & R Block, Hair Cuttery
Washington D.C.
Ashburn Farm Market (3) -- --
Chesire Station (3) -- Hair Cuttery, Petco Animal Supplies
Subtotal/Weighted
Average(Virginia)
MISSOURI
Olde Towne Plaza (3),(5) Stein Mart, Lowes, --
Marshalls, Homegoods
St. Ann Square Bally Total Fitness Great Clips, US Navy, US Marines, US Army
Subtotal/Weighted
Average(Missouri)
KENTUCKY
Franklin Square Rite Aid, JC Penney, Office Depot Mail Boxes, Baskin Robbins, Kay Jewelers
Hallmark, Radio Shack
Silverlake Blockbuster Radio Shack, H&R Block, Great Clips
Subtotal/Weighted
Average(Kentucky)
MICHIGAN
Fenton Marketplace (3) Blockbuster, Micheals Supercuts
Lakeshore Rite Aid Hallmark, Subway, Baskin Robbins
Waterford -- Supercuts, Hollywood Video, Starbucks
Subtotal/Weighted
Average(Michigan)
17
MISSISSIPPI
Columbia Marketplace Wal-Mart (4) GNC, Radio Shack, Cato, Movie Gallery
Lucedale Marketplace Edwards Discount Drugs, Wal-Mart Subway, Cato, Byrd's Cleaners
Subtotal/Weighted
Average(Mississippi)
SOUTH CAROLINA
Merchants Village Firestone Tire Mail Boxes Etc., Hair Cuttery, Hallmark
Queensborough (5) Pet Emporium Mail Boxes, Etc., Supercuts, Pizza Hut
Subtotal/Weighted
Average(South Carolina)
- ------------------------------------
DELAWARE
Pike Creek Eckerd, K-mart Radio Shack, H&R Block, TCBY
ILLINOIS
Hinsdale Lake Commons Ace Hardware, Blockbuster Hallmark, Mail Boxes Etc., Fannie Mae
New Jersey
Echelon Village Plaza (3) -- Dunkin Donuts, Hair Cuttery
WYOMING
Dell Range Road (3)(5) -- Great Clips, Hallmark
Total Weighted Average
- --------------------------------------------------------------------
(1) Or latest renovation
(2) Includes development properties. If development properties are
excluded, the total percentage leased would be 95.3% for Company
shopping centers.
(3) Property under development or redevelopment.
(4) Tenant owns its own building.
(5) Owned by a partnership with outside investors in which the Partnership
or an affiliate is the general partner.
18
Item 3. Legal Proceedings
The Company is, from time to time, a party to legal proceedings, which
arise, in the ordinary course of its business. The Company is not currently
involved in any litigation nor, to management's knowledge, is any litigation
threatened against the Company, the outcome of which would, in management's
judgement based on information currently available, have a material adverse
effect on the financial position or results of operations of the Company.
Item 4. Submission of Matters to a Vote of Security Holders
No matters were submitted for stockholder vote during the fourth quarter
of 2000.
PART Il
Item 5. Market for the Registrant's Common Equity and Related Shareholder
Matters
The Company's common stock is traded on the New York Stock Exchange
("NYSE") under the symbol "REG". The Company currently has approximately 3,500
shareholders. The following table sets forth the high and low prices and the
cash dividends declared on the Company's common stock by quarter for 2000 and
1999.
2000 1999
----------------------------------- -------------------------------------
Cash Cash
Quarter High Low Dividends High Low Dividends
Ended Price Price Declared Price Price Declared
------------ ---------- --------- ------------ ---------- -------- -----------
March 31 $ 20.9375 18.3125 .48 23.1250 18.7500 .46
June 30 23.7500 19.2500 .48 22.5000 19.0000 .46
September 30 24.0000 21.2500 .48 22.1250 19.8750 .46
December 31 24.0625 20.7500 .48 20.8125 18.7500 .46
19
Regency intends to pay regular quarterly distributions to its common
stockholders. Future distributions will be declared and paid at the discretion
of the Board of Directors, and will depend upon cash generated by operating
activities, Regency's financial condition, capital requirements, annual
distribution requirements under the REIT provisions of the Internal Revenue Code
of 1986, as amended, and such other factors as the Board of Directors deems
relevant. Regency anticipates that for the foreseeable future, cash available
for distribution will be greater than earnings and profits due to non-cash
expenses, primarily depreciation and amortization, to be incurred by Regency.
Distributions by Regency to the extent of its current and accumulated earnings
and profits for federal income tax purposes will be taxable to stockholders as
ordinary dividend income. Distributions in excess of earnings and profits
generally will be treated as a non-taxable return of capital. Such distributions
have the effect of deferring taxation until the sale of a stockholder's common
stock. In order to maintain its qualification as a REIT, Regency must make
annual distributions to stockholders of at least 95% of its taxable income.
Under certain circumstances, which management does not expect to occur, Regency
could be required to make distributions in excess of cash available for
distributions in order to meet such requirements. Regency currently maintains
the Regency Centers Corporation Dividend Reinvestment and Stock Purchase Plan
which enables its stockholders to automatically reinvest distributions, as well
as, make voluntary cash payments towards the purchase of additional shares.
Under the loan agreement with the lenders of Regency's line of credit,
distributions may not exceed 95% of Funds from Operations ("FFO") based on the
immediately preceding four quarters. FFO is defined in accordance with the
NAREIT definition as described in Regency's consolidated financial statements.
Also, in the event of any monetary default, Regency will not make distributions
to stockholders.
The following describes the registrant's sales of unregistered
securities during the periods covered by this report, each sold in reliance on
Rule 506 of the Securities Act.
In May and September 2000, Regency issued $70 million and $24 million of
8.75% Series E and Series F Cumulative Redeemable Preferred Units (the
"Preferred Units"), respectively. The issues were sold to institutional
investors in private placements for $100.00 per unit. The Preferred Units, which
may be called by the Partnership at par on or after May and September, 2005
respectively, have no stated maturity or mandatory redemption, and pay a
cumulative, quarterly dividend at an annualized rate of 8.75%. At any time after
10 years from the date of issuance, the Preferred Units may be exchanged for
8.75% Cumulative Redeemable Preferred Stock ("Preferred Stock") at an exchange
rate of one share for one unit. The Preferred Units and the related Preferred
Stock are not convertible into common stock of Regency. The net proceeds of
these offerings were used to reduce the Line. In 1999, Regency issued similar
preferred units in several series in the amount of $210 million with an average
fixed distribution rate of 8.93%. At December 31, 2000, the face value of total
preferred units issued was $384 million with an average fixed distribution rate
of 8.72% vs. $290 million with an average fixed distribution rate of 8.71% at
December 31, 1999.
During 1998, Regency acquired 43 shopping centers and joint ventures for
a total investment of $384.3 million. On June 30, 2000, Regency acquired the
non-owned portion of five of the joint ventures for $4.4 million consisting of
cash, common stock and Units.
20
Item 6. Selected Consolidated Financial Data
(in thousands, except per share data and number of properties)
The following table sets forth Selected Financial Data on a historical
basis for the five years ended December 31, 2000, for the Company. This
information should be read in conjunction with the financial statements of the
Company (including the related notes thereto) and Management's Discussion and
Analysis of the Financial Condition and Results of Operations, each included
elsewhere in this Form 10-K. This historical Selected Financial Data has been
derived from the audited financial statements.
2000 1999 1998 1997 1996
---- ---- ---- ---- ----
Operating Data:
Revenues:
Rental revenues $ 331,218 278,960 130,487 88,855 43,433
Service operations revenue 27,226 18,239 11,863 8,448 3,444
Equity in income of investments
in real estate partnerships 3,139 4,688 946 33 70
---------- --------- --------- --------- ----------
Total revenues 361,583 301,887 143,296 97,336 46,947
---------- --------- --------- --------- ----------
Operating expenses:
Operating, maintenance and real
estate taxes 82,296 67,457 30,844 22,904 12,065
General and administrative and other
expenses 21,870 19,747 15,064 9,964 6,048
Depreciation and amortization 59,430 48,612 25,046 16,303 8,059
---------- --------- --------- ---------- ----------
Total operating expenses 163,596 135,816 70,954 49,171 26,172
---------- --------- --------- --------- ----------
Interest expense, net of interest income 67,163 57,870 26,829 18,667 10,811
---------- --------- --------- --------- ----------
Income before minority interests, gain and
provision on real estate investments 130,824 108,201 45,513 29,498 9,964
Gain (loss) on sale of operating properties 4,507 (233) 10,726 451 -
Provision for loss on operating properties
held for sale (12,995) - - - -
---------- --------- --------- --------- ----------
Income before minority interests 122,336 107,968 56,239 29,948 9,964
Minority interest preferred unit
distribution (29,601) (12,368) (3,359) - -
Minority interest of exchangeable
partnership units (2,492) (2,898) (1,826) (2,042) -
Minority interest of limited partners (2,632) (2,856) (464) (505) -
---------- --------- --------- --------- ----------
Net income 87,611 89,846 50,590 27,402 9,964
Preferred stock dividends (2,817) (2,245) - - 58
---------- --------- --------- --------- ----------
Net income for common
stockholders $ 84,794 87,601 50,590 27,402 9,906
========== ========= ========= ========= ==========
Earnings per share:
Basic $ 1.49 1.61 1.80 1.28 0.82
========== ========= ========= ========= ==========
Diluted $ 1.49 1.61 1.75 1.23 0.82
========== ========= ========= ========= ==========
Other Data:
Common stock outstanding 56,898 56,924 25,489 23,992 13,590
Common Units, preferred stock and Class
B common stock outstanding 3,150 3,565 4,337 3,550 29
Company owned gross leasable area 27,792 24,769 14,652 9,981 5,512
Number of properties (at end of period) 242 216 129 89 50
Ratio of earnings to fixed charges 1.7 1.9 2.1 2.3 1.8
Common dividends per share $ 0.48 0.46 0.44 0.42 0.405
Balance Sheet Data:
Real estate investments at cost $ 2,943,627 2,636,193 1,250,332 833,402 393,403
Total assets 3,035,144 2,654,936 1,240,107 826,849 386,524
Total debt 1,307,072 1,011,967 548,126 278,050 171,607
Stockholders' equity 1,225,415 1,247,249 550,741 513,627 206,726
21
7. Management's Discussion and Analysis of Financial Condition and Results of
Operations
The following discussion should be read in conjunction with the
accompanying Consolidated Financial Statements and Notes thereto of Regency
Centers Corporation ("Regency" or "Company") appearing elsewhere within.
Organization
Regency is a qualified real estate investment trust ("REIT") which began
operations in 1993. Regency had previously operated under the name Regency
Realty Corporation, but changed its name to Regency Centers Corporation in
February 2001 to more appropriately acknowledge its brand and position in the
shopping center industry. Regency invests in retail shopping centers through its
partnership interest in Regency Centers, L.P., ("RCLP") an operating partnership
in which Regency currently owns approximately 98% of the outstanding common
partnership units ("Units"). The acquisition, development, operations and
financing activity of Regency including the issuance of Units or preferred units
is executed by RCLP.
Shopping Center Business
Regency is a national owner, operator and developer of grocery-anchored
neighborhood retail shopping centers. Regency's shopping centers summarized by
state and in order by largest holdings including their gross leasable areas
(GLA) follows:
December 31, 2000 December 31, 1999
----------------- -----------------
Location # Properties GLA % Leased # Properties GLA % Leased
------------ ----- -------- ------------ -------- -----------
Florida 53 6,535,088 92.8% 48 5,909,534 91.7%
California 39 4,922,329 98.3% 36 3,858,628 98.2%
Texas 34 4,165,857 94.2% 29 3,849,549 94.2%
Georgia 26 2,553,041 95.4% 27 2,716,763 92.3%
Ohio 13 1,760,955 97.0% 14 1,923,100 98.1%
North Carolina 13 1,302,751 97.4% 12 1,241,639 97.9%
Washington 10 1,180,020 95.5% 9 1,066,962 98.1%
Colorado 10 897,788 97.9% 10 903,502 98.0%
Oregon 9 776,853 91.7% 7 616,070 94.2%
Alabama 5 516,062 97.9% 5 516,061 99.5%
Arizona 7 481,215 97.9% 2 326,984 99.7%
Tennessee 4 423,326 99.6% 3 271,697 98.9%
Virginia 4 397,624 95.1% 2 197,324 96.1%
Missouri 2 369,045 95.8% 1 82,498 95.8%
Kentucky 2 304,347 91.1% 1 205,061 91.8%
Michigan 3 274,987 94.1% 3 250,655 98.7%
Delaware 1 228,169 98.6% 1 232,754 96.3%
Mississippi 2 185,061 97.7% 2 185,061 96.6%
Illinois 1 178,601 86.4% 1 178,600 85.9%
South Carolina 2 162,056 97.0% 2 162,056 98.8%
New Jersey 1 88,867 - - - -
Wyoming 1 87,777 - 1 75,000 -
------------ ------------ ------------- ------------ ----------- -----------
Total 242 27,791,819 95.3% 216 24,769,498 95.0%
============ ============ ============= ============ =========== ===========
* Excludes pre-stabilized properties under development
Regency is focused on building a platform of grocery anchored
neighborhood shopping centers because grocery stores provide convenience
shopping of daily necessities, foot traffic for adjacent local tenants, and
should withstand adverse economic conditions. Regency's current investment
markets have continued to offer stable economies, and accordingly, Regency
expects to realize growth in net income as a result of increasing occupancy in
the portfolio, increasing rental rates, development and acquisition of shopping
centers in targeted markets, and redevelopment of existing shopping centers.
22
The following table summarizes the four largest grocery tenants
occupying Regency's shopping centers at December 31, 2000:
Grocery Number of % of % of Annualized Average Remaining
Anchor Stores (a) Total GLA Base Rent (b) Lease Term
------- ---------- --------- ------------- ----------
Kroger 57 11.8% 10.39% 17 years
Publix 43 7.0% 5.07% 13 years
Safeway 41 5.3% 4.69% 13 years
Albertsons 21 2.5% 2.21% 14 years
(a) Includes tenant owned stores
(b) Includes properties owned through joint ventures
Acquisition and Development of Shopping Centers
Regency has implemented a growth strategy dedicated to developing
high-quality shopping centers. This development process can require 12 to 36
months from initial land or redevelopment acquisition through construction and
lease-up and finally stabilized income, depending upon the size and type of
project. Generally, anchor tenants begin operating their stores prior to
construction completion of the entire center, resulting in rental income during
the development phase. At December 31, 2000, Regency had 56 projects under
construction or undergoing major renovations, which when complete will represent
an investment of $644.4 million. Total cost necessary to complete these
developments is estimated to be $311.5 million and will be expended through
2002. These developments are approximately 52% complete and over 50% pre-leased.
On August 3, 2000, Regency acquired the non-owned portion of two
properties in one joint venture for $2.5 million in cash. The net assets of the
joint venture were and continue to be consolidated by Regency. Prior to
acquiring the non-owned portion, the joint venture partner's interest was
reflected as limited partners' interest in consolidated partnerships in
Regency's financial statements.
On June 30, 2000, Regency acquired the non-owned portion of nine
properties in five joint ventures, previously accounted for using the equity
method, for $4.4 million consisting of cash, common stock and Units. As a
result, these joint ventures are wholly owned by Regency and are consolidated
for financial reporting purposes as of the date of the acquisition.
On February 28, 1999, Regency acquired Pacific Retail Trust ("Pacific")
for approximately $1.157 billion. At the date of the acquisition, Pacific was
operating or had under development 71 retail shopping centers representing 8.4
million SF of gross leaseable area. During 1998, Regency acquired 43 shopping
centers and joint ventures for a total investment of $384.3 million ("1998
Acquisitions") excluding contingent consideration. During 2000 and 1999, the
Company paid contingent consideration of $5 million and $9 million,
respectively, related to the 1998 Acquisitions. No additional contingent
consideration is due related to any acquisitions of the Company.
Liquidity and Capital Resources
Management anticipates that cash generated from operating activities
will provide the necessary funds on a short-term basis for its operating
expenses, interest expense and scheduled principal payments on outstanding
indebtedness, recurring capital expenditures necessary to properly maintain the
shopping centers, and distributions to share and Unit holders. Net cash provided
by operating activities was $178.5 million and $151.3 million for the years
ended December 31, 2000 and 1999, respectively. Regency incurred capital
expenditures of $19.1 million and $21.5 million during 2000 and 1999,
respectively. Regency paid scheduled principal payments of $6.2 million and $6.1
million during 2000 and 1999, respectively. Regency paid dividends and
distributions of $145.1 million and $113.1 million during 2000 and 1999,
respectively, to its share and Unit holders.
Management expects to meet long-term liquidity requirements for maturing
debt, non-recurring capital expenditures, and acquisition, renovation and
development of shopping centers from: (i) excess cash generated from operating
activities, (ii) working capital reserves, (iii) additional debt borrowings, and
(iv) additional equity raised in the private and public markets. Net cash used
in investing activities was $335.3 million and $216.6 million during 2000 and
1999, respectively, primarily for the purposes discussed under Acquisition and
Development of Shopping Centers. Net cash provided by financing activities was
$203.6 million and $99.5 million during 2000 and 1999, respectively, primarily
related to proceeds from the preferred unit and debt offerings completed during
2000 and 1999 further discussed below.
23
During 1999, the Board of Directors authorized the repurchase of
approximately $65 million of Regency's outstanding shares through periodic open
market transactions or privately negotiated transactions. At March 31, 2000,
Regency had completed the program by purchasing 3.25 million shares.
Regency's outstanding debt at December 31, 2000 and 1999 consists of the
following (in thousands):
2000 1999
Notes Payable:
Fixed rate mortgage loans $ 270,491 382,715
Variable rate mortgage loans 40,640 11,376
Fixed rate unsecured loans 529,941 370,696
------------ ------------
Total notes payable 841,072 764,787
Unsecured line of credit 466,000 247,179
------------ ------------
Total $ 1,307,072 1,011,966
============ ============
Mortgage loans are secured by certain real estate properties, and may be
prepaid, but could be subject to a yield-maintenance premium. Mortgage loans are
generally due in monthly installments of interest and principal and mature over
various terms through 2019. Variable interest rates on mortgage loans are
currently based on LIBOR plus a spread in a range of 125 basis points to 150
basis points. Fixed interest rates on mortgage loans range from 7.04% to 9.5%.
During 2000, Regency modified the terms of its unsecured line of credit
(the "Line") by reducing the commitment to $625 million and extending the term.
The Line matures in March 2002, but may be extended annually for one-year
periods. Borrowings under the Line bear interest at a variable rate based on
LIBOR plus 1% (7.875% at December 31, 2000) compared to LIBOR plus a 1.075%
spread (7.575% at December 31, 1999), which is dependent on Regency maintaining
its investment grade rating. Regency is required to comply and is in compliance
with certain financial and other covenants customary with this type of unsecured
financing. The Line is used primarily to finance the acquisition and development
of real estate, but is also available for general working capital purposes.
Subsequent to December 31, 2000, Regency paid down the Line by $265
million from the proceeds of an unsecured debt offering for $220 million
completed on January 22, 2001, and from the proceeds from the sale of two
shopping centers to Columbia Regency Retail Partners, LLC ("Columbia") completed
on December 31, 2000. Regency currently owns 10% of Columbia with the remaining
90% owned by Columbia PERFCO Partners, L.P., an affiliate of Oregon Public
Employees Retirement Fund. Regency intends to sell three additional shopping
centers to Columbia during 2001 upon completion of development.
On December 15, 2000, Regency completed a $10 million unsecured debt
offering with an interest rate of 8.0%. The notes were priced at 99.375%, and
are due on December 15, 2010. On August 29, 2000, Regency completed a $150
million unsecured debt offering with an interest rate of 8.45%. The notes were
priced at 99.819%, and are due on September 1, 2010. On April 15, 1999, Regency
completed $250 million of unsecured debt offerings with interest rates of 7.4%
to 7.75% due April 1, 2009. The net proceeds of these offerings were used to
reduce the balance of the Line.
During 1999, Regency assumed debt with a fair value of $402.6 million
related to the acquisition of real estate, which included debt premiums of $4.1
million based upon the above market interest rates of the debt instruments. Debt
premiums are amortized over the terms of the related debt instruments.
In May and September 2000, Regency issued $70 million and $24 million of
8.75% Series E and Series F Cumulative Redeemable Preferred Units (the
"Preferred Units"), respectively. The issues were sold to institutional
investors in private placements for $100.00 per unit. The Preferred Units, which
may be called by the Partnership at par on or after May and September, 2005
respectively, have no stated maturity or mandatory redemption, and pay a
cumulative, quarterly dividend at an annualized rate of 8.75%. At any time after
10 years from the date of issuance, the Preferred Units may be exchanged for
8.75% Cumulative Redeemable Preferred Stock ("Preferred Stock") at an exchange
rate of one share for one unit. The Preferred Units and the related Preferred
Stock are not convertible into common stock of Regency. The net proceeds of
these offerings were used to reduce the Line. In 1999, Regency issued similar
preferred units in several series in the amount of $210 million with an average
fixed distribution rate of 8.93%. At December 31, 2000, the face value of total
preferred units issued was $384 million with an average fixed distribution rate
of 8.72% vs. $290 million with an average fixed distribution rate of 8.71% at
December 31, 1999.
24
As of December 31, 2000, scheduled principal repayments on notes payable
and the Line were as follows (in thousands):
Scheduled
Principal Term Loan Total
Scheduled Payments by Year Payments Maturities Payments
-------------------------- ------------ ----------- -------------
2001 $ 5,413 67,676 73,089
2002 (includes the Line) 4,719 510,084 514,803
2003 4,691 23,299 27,990
2004 5,066 199,897 204,963
2005 3,883 148,031 151,914
Beyond 5 Years 32,016 292,490 324,506
Unamortized debt premiums - 9,807 9,807
------------ ----------- -------------
Total $ 55,788 1,251,284 1,307,072
============ =========== =============
Unconsolidated partnerships and joint ventures had mortgage loans
payable of $14.3 million at December 31, 2000, and Regency's proportionate share
of these loans was $5.9 million.
Regency believes it qualifies and intends to qualify as a REIT under the
Internal Revenue Code. As a REIT, Regency is allowed to reduce taxable income by
all or a portion of its distributions to stockholders. As distributions have
exceeded taxable income, no provision for federal income taxes has been made.
While Regency intends to continue to pay dividends to its stockholders, it also
will reserve such amounts of cash flow as it considers necessary for the proper
maintenance and improvement of its real estate, while still maintaining its
qualification as a REIT.
Regency's real estate portfolio has grown substantially during 2000 as a
result of the development activity discussed above. Regency intends to continue
to acquire and develop shopping centers in the near future, and expects to meet
the related capital requirements from borrowings on the Line. Regency expects to
repay the Line from time to time from additional public and private equity or
debt offerings, such as those completed in previous years. Because acquisition
and development activities are discretionary in nature, they are not expected to
burden Regency's capital resources currently available for liquidity
requirements. Regency expects that cash provided by operating activities, unused
amounts available under the Line, and cash reserves are adequate to meet
liquidity requirements.
Results from Operations
Comparison 2000 to 1999
Revenues increased $59.7 million or 20% to $361.6 million in 2000. The
increase was due primarily to the Pacific acquisition which did not occur until
February 28, 1999, revenues from newly completed developments that only
partially operated during 1999, and from growth in rental rates and occupancy
levels at the operating properties. Minimum rent increased $38.2 million or 18%,
and recoveries from tenants increased $13.8 million or 25%. At December 31,
2000, Regency was operating or developing 242 shopping centers. Regency
identifies its shopping centers as either development properties or stabilized
properties. Development properties are defined as properties that are in the
construction and initial lease-up process that are not yet 93% leased and
occupied. Stabilized properties are all properties not identified as
development. At December 31, 2000, Regency had 194 stabilized shopping centers
that were 95.3% leased. At December 31, 1999, these properties were 94.2%
leased. In 2000, rental rates grew by 8% from renewal leases and new leases
replacing previously occupied spaces in the stabilized properties.
Service operations revenue includes fees earned in Regency's service
operations segment which includes property management and leasing commissions
earned from third parties, and development profits earned from the sale of
shopping centers, build to suit properties, and land to third parties. Service
operations revenue increased by $9.0 million to $27.2 million in 2000, or 49%.
The increase was primarily due to a $11.1 million increase in development
profits offset by a $2.1 million reduction in property management fees. During
2000 Regency continued to reduce the portfolio of properties managed for third
party owners.
Operating expenses increased $27.8 million or 20% to $163.6 million in
2000. Combined operating and maintenance, and real estate taxes increased $14.8
million or 22% during 2000 to $82.3 million. The increase was primarily due to
the Pacific acquisition, expenses incurred by newly completed developments that
only partially operated during 1999, and general increases in operating expenses
on the stabilized properties. General and administrative expenses were $19.9
million during 2000 vs. $19.3 million in 1999 or 3% higher as a result of
general salary and benefit increases, and new employees hired in 2000.
Depreciation and amortization increased $10.8 million during 2000 or 22%
primarily due to the Pacific acquisition and developments that only partially
operated during 1999.
25
Periodically, Regency identifies shopping centers that no longer meet
its long-term investment standards, such as expected growth in revenue or market
dominance. Once identified and marketed for sale, these properties are
segregated on the balance sheet as operating properties held for sale. Regency
also develops shopping centers and stand-alone retail stores for resale. Once
completed, these developments are also included in operating properties held for
sale. Operating properties held for sale are carried at the lower of cost or
fair value less estimated selling costs. Depreciation and amortization are
suspended during the period held for sale. During 2000 Regency entered into a
contract to sell seven shopping centers for $74.6 million and recorded a
provision for loss on operating properties held for sale of $13.0 million.
Interest expense increased to $72.0 million in 2000 from $60.1 million
in 1999 or 20%. The increase was primarily due to the assumption of debt from
the Pacific acquisition, and higher interest costs related to interest rate
increases on outstanding debt balances including the unsecured debt offerings
completed in 2000 and 1999.
Preferred unit distributions increased $17.2 million to $29.6 million
during 2000 as a result of the preferred units issued in 2000 and 1999. Average
fixed distribution rates of the preferred units were 8.72% at December 31, 2000
vs. 8.71% at December 31, 1999.
Net income for common stockholders was $84.8 million in 2000 vs. $87.6
million in 1999, or a 3% decrease. The decline was primarily a result of the
provision for loss on operating properties held for sale and increased preferred
unit distributions, net of the acquisition and development activity described
above. Diluted earnings per share was $1.49 in 2000 vs. $1.61 in 1999, or 7.5%
lower as a result of the decrease in net income.
Comparison 1999 to 1998
Revenues increased $158.6 million or 111% to $301.9 million in 1999. The
increase was due primarily to the Pacific and the 1998 Acquisitions providing
increases in revenues of $143.9 million during 1999. Minimum rent increased
$114.7 million or 111%, and recoveries from tenants increased $31.8 million or
132%. At December 31, 1999, Regency was operating or developing 216 shopping
centers of which 190 were stabilized properties. These stabilized properties
were 95% leased at December 31, 1999, and 93.6% leased at December 31, 1998. On
a same property basis (excluding Pacific, the 1998 Acquisitions, and four office
buildings sold during 1998) gross rental revenues increased $8.9 million or 8%,
primarily due to higher base rents. In 1999, rental rates grew by 7.8% from
renewal leases and new leases replacing previously occupied spaces in the
stabilized properties.
Service operations revenue increased by $6.3 million to $18.2 million in
1999, or 53%. The increase was primarily due to a $8.8 million increase in
development profits offset by a $2.5 million reduction in property management
fees. During 1999, Regency significantly reduced the portfolio of properties
managed on behalf of third party owners.
Operating expenses increased $64.9 million or 91% to $135.8 million in
1999. Combined operating and maintenance, and real estate taxes increased $36.6
million or 118% during 1999 to $67.5 million. The increases are due to Pacific
and the 1998 Acquisitions generating operating and maintenance expenses and real
estate tax increases of $35.9 million during 1999. On a same property basis,
operating and maintenance expenses and real estate taxes increased $879,000 or
3.4%. General and administrative expenses increased 32% during 1999 to $19.3
million due to the hiring of new employees and related office expenses necessary
to manage the shopping centers acquired during 1999 and 1998. Depreciation and
amortization increased $23.6 million during 1999 or 94% primarily due to Pacific
and the 1998 Acquisitions.
Interest expense increased to $60.1 million in 1999 from $28.8 million
in 1998 or 109% due to increased average outstanding loan balances related to
the financing of the 1998 Acquisitions on the Line, the assumption of debt from
the Pacific acquisition and the debt offerings completed in 1999.
Net income for common stockholders was $87.6 million in 1999 vs. $50.6
million in 1998, a $37 million or 73% increase primarily related to the
acquisition activity discussed. Diluted earnings per share was $1.61 in 1999 vs.
$1.75 in 1998 due to the increase in net income offset by the increase in
weighted average common shares primarily related to the acquisition of Pacific.
26
New Accounting Standards and Accounting Changes
The Financial Accounting Standards Board issued Statement of Financial
Accounting Standards No. 138, "Accounting for Certain Derivative Instruments and
Certain Hedging Activities, an Amendment to FASB Statement No. 133" ("FAS 138"),
which is effective for all fiscal quarters of all fiscal years beginning after
June 15, 2000. FAS 138 and FAS 133 establish accounting and reporting standards
for derivative instruments and hedging activities. FAS 138 and FAS 133 require
entities to recognize all derivatives as either assets or liabilities in the
balance sheet and measure those instruments at fair value. FAS 138 and FAS 133
will have no impact to the financial statements as Regency has no derivative
instruments.
Environmental Matters
Regency, like others in the commercial real estate industry, is subject
to numerous environmental laws and regulations. The operation of dry cleaning
plants at Regency's shopping centers is the principal environmental concern.
Regency believes that the tenants who operate these plants do so in accordance
with current laws and regulations and has established procedures to monitor
their operations. Additionally, Regency uses all legal means to cause tenants to
remove dry cleaning plants from its shopping centers. Where available, Regency
has applied and been accepted into state sponsored environmental programs.
Regency has a blanket environmental insurance policy that covers it against
third party liabilities and remediation costs on shopping centers that currently
have no known environmental contamination. Regency has also placed environmental
insurance on specific properties with known contamination in order to mitigate
its environmental risk. Management believes that the ultimate disposition of
currently known environmental matters will not have a material effect on the
financial position, liquidity, or operations of Regency.
Inflation
Inflation has remained relatively low during 2000 and 1999 and has had a
minimal impact on the operating performance of the shopping centers; however,
substantially all of Regency's long-term leases contain provisions designed to
mitigate the adverse impact of inflation. Such provisions include clauses
enabling Regency to receive percentage rentals based on tenants' gross sales,
which generally increase as prices rise, and/or escalation clauses, which
generally increase rental rates during the terms of the leases. Such escalation
clauses are often related to increases in the consumer price index or similar
inflation indices. In addition, many of Regency's leases are for terms of less
than ten years, which permits Regency to seek increased rents upon re-rental at
market rates. Most of Regency's leases require the tenants to pay their share of
operating expenses, including common area maintenance, real estate taxes,
insurance and utilities, thereby reducing Regency's exposure to increases in
costs and operating expenses resulting from inflation.
Item 7a. Quantitative and Qualitative Disclosures about Market Risk
Market Risk
Regency is exposed to interest rate changes primarily as a result of its
line of credit and long-term debt used to maintain liquidity and fund capital
expenditures and expansion of Regency's real estate investment portfolio and
operations. Regency's interest rate risk management objective is to limit the
impact of interest rate changes on earnings and cash flows and to lower its
overall borrowing costs. To achieve its objectives Regency borrows primarily at
fixed rates and may enter into derivative financial instruments such as interest
rate swaps, caps and treasury locks in order to mitigate its interest rate risk
on a related financial instrument. Regency has no plans to enter into derivative
or interest rate transactions for speculative purposes, and at December 31,
2000, Regency did not have any borrowings hedged with derivative financial
instruments.
Regency's interest rate risk is monitored using a variety of techniques.
The table below presents the principal amounts maturing (in thousands), weighted
average interest rates of remaining debt, and the fair value of total debt (in
thousands), by year of expected maturity to evaluate the expected cash flows and
sensitivity to interest rate changes.
27
Fair
2001 2002 2003 2004 2005 Thereafter Total Value
---- ---- ---- ---- ---- ---------- ----- -----
Fixed rate debt 42,450 48,803 17,990 204,963 151,914 324,505 790,625 800,433
Average interest rate for
all debt 7.92% 7.87% 7.84% 8.02% 8.19% 8.25% - -
Variable rate LIBOR debt 30,640 466,000 10,000 - - - 506,640 506,639
Average interest rate for
all debt 7.65% 7.75% - - - - - -
As the table incorporates only those exposures that exist as of December
31, 2000, it does not consider those exposures or positions, which could arise
after that date. Moreover, because firm commitments are not presented in the
table above, the information presented therein has limited predictive value. As
a result, Regency's ultimate realized gain or loss with respect to interest rate
fluctuations will depend on the exposures that arise during the period,
Regency's hedging strategies at that time, and interest rates.
Item 8. Consolidated Financial Statements and Supplementary Data
The Consolidated Financial Statements and supplementary data included in this
Report are listed in Part IV, Item 14(a).
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
None.
28
PART III
Item 10. Directors and Executive Officers of the Registrant
Information concerning the directors of Regency is incorporated herein
by reference to Regency's definitive proxy statement to be filed with the
Securities and Exchange Commission within 120 days after the end of the fiscal
year covered by this Form 10-K with respect to its 2001 Annual Meeting of
Shareholders. The following provides information concerning the executive
officers of Regency.
MARTIN E. STEIN, JR. Mr. Stein, age 48, is Chairman of the Board and
Chief Executive Officer of Regency. He served as President of Regency from its
initial public offering in October 1993 until December 31, 1998. Mr. Stein also
served as President of Regency's predecessor real estate division since 1981,
and Vice President from 1976 to 1981. He is a director of Patriot Transportation
Holding, Inc., a publicly held transportation and real estate company, and Stein
Mart, Inc.
MARY LOU FIALA. Ms. Fiala, age 49, became President and Chief Operating
Officer of Regency in January 1999. Before joining Regency she was Managing
Director - Security Capital U.S. Realty Strategic Group from March 1997 to
January 1999. Ms. Fiala was Senior Vice President and Director of Stores, New
England - Macy's East/ Federated Department Stores from 1994 to March 1997.
From 1976 to 1994, Ms. Fiala held various merchandising and store operations
positions with Macy's/Federated Department Stores.
BRUCE M. JOHNSON Mr. Johnson, age 53, has been Managing Director and
Chief Financial Officer of Regency since its initial public offering in October
1993. Mr. Johnson also served as Executive Vice President of Regency's
predecessor real estate division since 1979.
Item 11. Executive Compensation
Incorporated herein by reference to Regency's definitive proxy statement
to be filed with the Securities and Exchange Commission within 120 days after
the end of the fiscal year covered by this Form 10-K with respect to its 2001
Annual Meeting of Shareholders.
Item 12. Security Ownership of Certain Beneficial Owners and Management
Incorporated herein by reference to Regency's definitive proxy statement
to be filed with the Securities and Exchange Commission within 120 days after
the end of the fiscal year covered by this Form 10-K with respect to its 2001
Annual Meeting of Shareholders.
Item 13. Certain Relationships and Related Transactions
Incorporated herein by reference to Regency's definitive proxy statement
to be filed with the Securities and Exchange Commission within 120 days after
the end of the fiscal year covered by this Form 10-K with respect to its 2001
Annual Meeting of Shareholders.
29
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
(a) Financial Statements and Financial Statement Schedules:
Regency's 2000 financial statements and financial statement schedule,
together with the report of KPMG LLP are listed on the index immediately
preceding the financial statements at the end of this report.
(b) Reports on Form 8-K:
None
(c) Exhibits:
2. Agreement and Plan of Merger dated as of September 23, 1998 between
Regency Centers Corporation and Pacific Retail Trust (incorporated by
reference to Exhibit 2.1 to the registration statement on Form S-4 of
Regency Centers Corporation, No. 333-65491)
3. Articles of Incorporation and Bylaws
(i) Restated Articles of Incorporation of Regency Centers
Corporation as amended to date.
(ii) Restated Bylaws of Regency Centers Corporation,
(incorporated by reference to Exhibit 10 of the Company's
Form 10-Q filed November 7, 2000).
4. (a) See exhibits 3(i) and 3(ii) for provisions of the Articles of
Incorporation and Bylaws of Regency Centers Corporation defining
rights of security holders.
(b) Indenture dated July 20, 1998 between Regency Centers, L.P., the
guarantors name dtherein and First Union National Bank, as
trustee (incorporated by reference to Exhibit 4.1 to the
registration statement on Form S-4 of Regency Centers, L.P., No.
333-63723).
(c) Indenture dated March 9, 1999 between Regency Centers, L.P., the
guarantors named therein and First Union National Bank, as
trustee (incorporated by reference to Exhibit 4.1 to the
registration statement on Form S-3 of Regency Centers, L.P., No.
333-72899)
10. Material Contracts
~(a) Regency Centers Corporation 1993 Long Term Omnibus
Plan, as amended.
~*(b) Form of Stock Purchase Award Agreement
~*(c) Form of Management Stock Pledge Agreement, relating to
the Stock Purchase Award Agreement filed as Exhibit 10
(b)
~*(d) Form of Promissory Note, relating to the Stock Purchase
Award Agreement filed as Exhibit 10(b)
~*(e) Form of Option Award Agreement for Key Employees
~*(f) Form of Option Award Agreement for Non-Employee
Directors
~*(g) Annual Incentive for Management Plan
~*(h) Form of Director/Officer Indemnification Agreement
- --------------------------
~ Management contract or compensatory plan or arrangement filed pursuant
to S-K 601(10)(iii)(A).
* Included as an exhibit to Pre-effective Amendment No. 2 to the Company's
registration statement on Form S-11 filed October 5, 1993 (33-67258),
and incorporated herein by reference
30
~*(i) Form of Non-Competition Agreement between Regency Centers
Corporation and Joan W. Stein, Robert L. Stein, Richard
W. Stein, the Martin E. Stein Testamentary Trust A and
the Martin E. Stein Testamentary Trust B.
(j) The following documents relating to the purchase by
Security Capital U.S. Realty and Security Capital
Holdings, S.A. of up to 45% of the Registrant's
outstanding common stock:
++ (i) Stock Purchase Agreement dated June 11, 1996.
++ (ii) Stockholders' Agreement dated July 10, 1996.
(A) First Amendment of Stockholders' Agreement
dated February 10, 1997 (incorporated by
reference to the Company's Form 8-K report
filed March 14, 1997)
(B) Amendment No. 2 to Stockholders' Agreement
dated December 4, 1997 (incorporated by
reference to Exhibit 6.2 to Schedule 13D/A
filed by Security Capital U.S. Realty on
December 11, 1997)
- ------------------------
~ Management contract or compensatory plan or arrangement filed
pursuant to S-K 601(10)(iii)(A).
* Included as an exhibit to Pre-effective Amendment No. 2 to the
Company's registration statement on Form S-11 filed October 5, 1993
(33-67258), and incorporated herein by reference
++ Filed as appendices to the Company's definitive proxy statement dated
August 2, 1996 and incorporated herein by reference.
31
(C) Amendment No. 3 to Stockholders Agreement dated September 23, 1998
(incorporated by reference to Exhibit 8.2 to Schedule 13D/A filed by
Security Capital U.S. Realty on October 2, 1998)
++ (iii) Registration Rights Agreement dated July 10, 1996.
(k) Stock Grant Plan adopted on January 31, 1994 to grant
stock to employees (incorporated by reference to the
Company's Form 10-Q filed May 12, 1994).
~@ (l) Criteria for Restricted Stock Awards under 1993 Long
Term Omnibus Plan.
~@ (m) Form of 1996 Stock Purchase Award Agreement.
@ (n) Form of 1996 Management Stock Pledge Agreement relating to
the Stock Purchase Award Agreement filed as Exhibit 10(o).
~@ (o) Form of Promissory Note relating to 1996 Stock Purchase
Award Agreement filed as Exhibit 10(o).
(p) Third Amended and Restated Agreement of Limited
Partnership of Regency Centers, L.P., as amended.
(q) Second Amended and Restated Credit Agreement dated as of
July 21, 2000 by and among Regency Centers, L.P., a
Delaware limited partnership (the "Borrower"), Regency
Realty Corporation, a Florida corporation (the "Parent"),
each of the financial institutions initially a signatory
hereto together with their assignees, (the "Lenders"), and
Wells Fargo Bank, National Association, as contractual
representative of the Lenders to the extent and in the
manner provided, (incorporated by reference to Exhibit 10
of the Company's Form 10-Q filed November 7, 2000).
~(r) Change of Control Agreement dated as of June 1, 2000 by
and between REGENCY REALTY CORPORATION, a Florida
corporation (the "Company") and Mary Lou Fiala and
Bruce M. Johnson
21. Subsidiaries of the Registrant
23. Consent of KPMG LLP
- --------------------------
~ Management contract or compensatory plan or arrangement filed pursuant
to S-K 601(10)(iii)(A).
++ Filed as appendices to the Company's definitive proxy statement dated
August 2, 1996 and incorporated herein by reference.
@ Filed as an exhibit to the Company's Form 10-K filed March 25, 1997 and
incorporated herein by reference.
32
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
REGENCY REALTY CORPORATION
Date: March 16, 2001 By: /s/ Martin E. Stein, Jr.
------------------------
Martin E Stein, Jr., Chairman of the Board
and Chief Executive Officer
Date: March 16, 2001 By: /s/ Bruce M. Johnson
--------------------
Bruce M. Johnson, Managing Director and
Principal Financial Officer
Date: March 16, 2001 By: /s/ J. Christian Leavitt
------------------------
J. Christian Leavitt, Senior Vice
President,Finance and Principal
Accounting Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated:
Date: March 16, 2001 /s/ Martin E. Stein, Jr.
------------------------
Martin E. Stein, Jr., Chairman of the Board
and Chief Executive Officer
Date: March 16, 2001
/s/ Mary Lou Fiala
Mary Lou Rogers, President, Chief Operating
Officer and Director
Date: March 16, 2001 /s/ Raymond L. Bank
-------------------
Raymond L. Bank, Director
Date: March 16, 2001 /s/ C. Ronald Blankenship
-------------------------
C. Ronald Blankenship, Director
Date: March 16, 2001 /s/ A. R. Carpenter
-------------------
A. R. Carpenter, Director
Date: March 16, 2001 /s/ J. Dix Druce, Jr.
---------------------
J. Dix Druce, Jr., Director
Date: March 16, 2001 /s/ John T. Kelley
------------------
John T. Kelley, Director
Date: March 16, 2001 /s/ Douglas S. Luke
-------------------
Douglas S. Luke, Director
Date: March 16, 2001 /s/ John C. Schweitzer
----------------------
John C. Schweitzer, Director
Date: March 16, 2001 /s/ Thomas G. Wattles
---------------------
Thomas G. Wattles, Director
Date: March 16, 2001 /s/ Terry N. Worrell
--------------------
Terry N. Worrell, Director
33
REGENCY CENTERS CORPORATION
INDEX TO FINANCIAL STATEMENTS
Regency Centers Corporation
Independent Auditors' Report F-2
Consolidated Balance Sheets as of December 31, 2000 and 1999 F-3
Consolidated Statements of Operations for the years ended
December 31, 2000, 1999, and 1998 F-4
Consolidated Statements of Stockholders' Equity for the years
ended December 31, 2000, 1999 and 1998 F-5
Consolidated Statements of Cash Flows for the years ended
December 31, 2000, 1999, and 1998 F-7
Notes to Consolidated Financial Statements F-9
Financial Statement Schedule
Independent Auditors' Report on Financial Statement Schedule S-1
Schedule III - Regency Centers Corporation Combined Real Estate and
Accumulated Depreciation - December 31, 2000 S-2
All other schedules are omitted because they are not applicable or because
information required therein is shown in the consolidated financial statements
or notes thereto.
F-1
Independent Auditors' Report
The Shareholders and Board of Directors
Regency Centers Corporation:
We have audited the accompanying consolidated balance sheets of Regency Centers
Corporation as of December 31, 2000 and 1999, and the related consolidated
statements of operations, stockholders' equity, and cash flows for each of the
years in the three-year period ended December 31, 2000. These consolidated
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these consolidated financial
statements based on our audits.
We conducted our audits in accordance with auditing standards generally accepted
in the United States of America. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Regency Centers
Corporation as of December 31, 2000 and 1999, and the results of their
operations and their cash flows for each of the years in the three-year period
ended December 31, 2000 in conformity with accounting principles generally
accepted in the United States of America.
KPMG LLP
Jacksonville, Florida
January 30, 2001
F-2
REGENCY CENTERS CORPORATION
Consolidated Balance Sheets
December 31, 2000 and 1999
2000 1999
------ ------
Assets
Real estate investments (notes 2, 5 and 9):
Land $ 564,089,984 567,673,872
Buildings and improvements 1,813,554,881 1,834,279,432
---------------- ----------------
2,377,644,865 2,401,953,304
Less: accumulated depreciation 147,053,900 104,467,176
---------------- ----------------
2,230,590,965 2,297,486,128
Properties in development 296,632,730 167,300,893
Operating properties held for sale 184,150,762 -
Investments in real estate partnerships (note 4) 85,198,279 66,938,784
---------------- ----------------
Net real estate investments 2,796,572,736 2,531,725,805
Cash and cash equivalents 100,987,895 54,117,443
Notes receivable 66,423,893 15,673,125
Tenant receivables, net of allowance for uncollectible accounts of
$4,414,085 and $1,883,547 at December 31, 2000 and 1999, respectively 39,407,777 33,515,040
Deferred costs, less accumulated amortization of $13,910,018 and
$8,802,559 at December 31, 2000 and 1999, respectively 21,317,141 12,530,546
Other assets 10,434,298 7,374,019
---------------- ----------------
$ 3,035,143,740 2,654,935,978
================ ================
Liabilities and Stockholders' Equity
Liabilities:
Notes payable (note 5) $ 841,072,156 764,787,207
Unsecured line of credit (note 5) 466,000,000 247,179,310
Accounts payable and other liabilities 75,460,304 48,886,111
Tenants' security and escrow deposits 8,262,885 7,952,707
---------------- ----------------
Total liabilities 1,390,795,345 1,068,805,335
---------------- ----------------
Preferred units (note 6) 375,407,777 283,816,274
Exchangeable operating partnership units 34,899,813 44,589,873
Limited partners' interest in consolidated partnerships 8,625,839 10,475,321
---------------- ----------------
Total minority interest 418,933,429 338,881,468
---------------- ----------------
Stockholders' equity (notes 6, 7 and 8):
Cumulative convertible preferred stock Series 1 and paid in capital $.01
par value per share: 542,532 shares authorized; 537,107 issued and
outstanding at December 31, 1999; liquidation preference $20.83 per share - 12,528,032
Cumulative convertible preferred stock Series 2 and paid in capital $.01
par value per share: 1,502,532 shares authorized;
1,487,507 and 950,400 shares issued and outstanding at
December 31, 2000 and 1999, respectively;
liquidation preference $20.83 per share 34,696,112 22,168,080
Common stock $.01 par value per share: 150,000,000 shares
authorized; 60,234,925 and 59,639,536 shares issued
at December 31, 2000 and 1999, respectively 602,349 596,395
Treasury stock; 3,336,754 and 2,715,851 shares held at December 31, 2000
and 1999, respectively, at cost (66,957,282) (54,536,612)
Additonal paid in capital 1,317,668,173 1,304,257,610
Distributions in excess of net income (51,064,870) (26,779,538)
Stock loans (9,529,516) (10,984,792)
---------------- ----------------
Total stockholders' equity 1,225,414,966 1,247,249,175
---------------- ----------------
Commitments and contingencies (notes 9 and 10)
$ 3,035,143,740 2,654,935,978
================ ================
See accompanying notes to consolidated financial statements
F-3
REGENCY CENTERS CORPORATION
Consolidated Statements of Operations
For the Years ended December 31, 2000, 1999 and 1998
2000 1999 1998
------ ------ ------
Revenues:
Minimum rent (note 9) $ 256,279,019 218,039,441 103,365,322
Percentage rent 5,231,517 5,000,272 3,012,105
Recoveries from tenants 69,707,918 55,919,788 24,109,519
Service operations revenue 27,226,411 18,239,486 11,862,784
Equity in income of investments in
real estate partnerships 3,138,553 4,687,944 946,271
----------------- ------------------ -----------------
Total revenues 361,583,418 301,886,931 143,296,001
----------------- ------------------ -----------------
Operating expenses:
Depreciation and amortization 59,430,262 48,611,519 25,046,001
Operating and maintenance 47,297,799 39,204,109 18,455,672
General and administrative 19,932,609 19,274,225 14,564,148
Real estate taxes 34,998,404 28,253,961 12,388,521
Other expenses 1,936,686 472,526 500,000
----------------- ------------------ -----------------
Total operating expenses 163,595,760 135,816,340 70,954,342
----------------- ------------------ -----------------
Interest expense (income):
Interest expense 71,970,783 60,067,007 28,786,431
Interest income (4,807,711) (2,196,954) (1,957,575)
----------------- ------------------ -----------------
Net interest expense 67,163,072 57,870,053 26,828,856
----------------- ------------------ -----------------
Income before minority interests, gain and
provision on real estate investments 130,824,586 108,200,538 45,512,803
Gain (loss) on sale of operating properties 4,506,982 (232,989) 10,725,975
Provison for loss on operating properties held for sale (12,995,412) - -
----------------- ------------------ -----------------
Income before minority interests 122,336,156 107,967,549 56,238,778
Minority interest preferred unit distributions (29,601,184) (12,368,403) (3,358,333)
Minority interest of exchangeable partnership units (2,492,419) (2,897,778) (1,826,273)
Minority interest of limited partners (2,631,721) (2,855,404) (464,098)
----------------- ------------------ -----------------
Net income 87,610,832 89,845,964 50,590,074
Preferred stock dividends (2,817,228) (2,244,593) -
----------------- ------------------ -----------------
Net income for common stockholders $ 84,793,604 87,601,371 50,590,074
================= ================== =================
Net income per share (note 7):
Basic $ 1.49 1.61 1.80
================= ================== =================
Diluted $ 1.49 1.61 1.75
================= ================== =================
See accompanying notes to consolidated financial statements
F-4
REGENCY CENTERS CORPORATION
Consolidated Statements of Stockholders' Equity
For the Years ended December 31, 2000, 1999 and 1998
Class B
Series 1 Series 2 Common Common Treasury
Preferred Stock Preferred Stock Stock Stock Stock
--------------- ---------------- ------------- ------------ -----------
Balance at
December 31, 1997 $ - - 239,920 25,000 -
Common stock issued to
SCG (note 6) - - 4,358 - -
Common stock issued as
compensation, purchased by
directors or officers, or issued
under stock options - - 4,208 - -
Common stock issued for
partnership units redeemed - - 752 - -
Common stock issued to
acquire real estate (note 2) - - 5,651 - -
Reallocation of minority interest - - - - -
Partial forgiveness or
repayment of stock loans - - - - -
Cash dividends declared:1
Common stock, $1.76 per share - - - - -
Net income - - - - -
----------------- -------------- -------------- -------------- ----------
Balance at
December 31, 1998 $ - - 254,889 25,000 -
Common stock issued as
compensation, purchased by
directors or officers, or issued
under stock options - - 2,499 - -
Common stock issued or cancelled
under stock loans - - (528) - -
Common stock issued for
partnership units redeemed - - 3,961 - -
Common stock issued for
Class B conversion (note 6) - - 29,755 (25,000) -
Preferred stock issued to
acquire Pacific (note 6) 12,654,570 22,392,000 - - -
Common stock issued to
acquire Pacific (notes 2 and 6) - - 305,669 - -
Common stock issued for
preferred stock conversion (note 6) (126,538) (223,920) 150 - -
Repurchase of common stock (note 6) - - - - (54,536,612)
Cash dividends declared:
Common stock, ($1.84 per share)
and preferred stock - - - - -
Net income - - - - -
--------------- -------------- ------------- -------------- -----------
Balance at
December 31, 1999 $ 12,528,032 22,168,080 596,395 - (54,536,612)
Common stock issued as
compensation or purchased by
directors or officers, or issued
under stock options - - 2,226 - -
Common stock cancelled
under stock loans - - (445) - (1,332,251)
Common stock issued for
partnership units redeemed - - 4,138 - -
Common stock issued to
acquire real estate - - 35 - -
Preferred stock conversion (note 6) (12,528,032) 12,528,032
Reallocation of minority interest - - - -
Repurchase of common stock (note 6) - - - - (11,088,419)
Cash dividends declared:
Common stock, ($1.92 per share)
and preferred stock - - - - -
Net income - - - - -
--------------- --------------- --------------- -------------- -----------
Balance at
December 31, 2000 $ - 34,696,112 602,349 - (66,957,282)
=============== ================ =============== ============= ============
See accompanying notes to consolidated financial statements
F-5
REGENCY CENTERS CORPORATION
Consolidated Statements of Stockholders' Equity
For the Years ended December 31, 2000, 1999 and 1998
Additional Distributions Total
Paid In in Exess of Stock Stockholders'
Capital Net Income Loans Equity
--------------- -------------- ------------ -----------------
Balance at
December 31, 1997 535,498,878 (20,494,893) (1,642,252) 513,626,653
Common stock issued to
SCG (note 6) 9,637,208 - - 9,641,566
Common stock issued as
compensation, purchased by
directors or officers, or issued
under stock options 10,746,701 - (7,409,151) 3,341,758
Common stock issued for
partnership units redeemed 1,670,631 - - 1,671,383
Common stock issued to
acquire real estate (note 2) 14,263,472 - - 14,269,123
Reallocation of minority interest 6,649,818 - - 6,649,818
Partial forgiveness or
repayment of stock loans - - 442,013 442,013
Cash dividends declared:
Common stock, $1.76 per share - (49,490,925) - (49,490,925)
Net income - 50,590,074 - 50,590,074
--------------- --------------- -------------- -----------------
Balance at
December 31, 1998 578,466,708 (19,395,744) (8,609,390) 550,741,463
Common stock issued as
compensation, purchased by
directors or officers, or issued
under stock options 3,731,625 - - 3,734,124
Common stock issued or cancelled
under stock loans (1,312,203) - 1,623,552 310,821
Common stock issued for
partnership units redeemed 7,591,712 - - 7,595,673
Common stock issued for
Class B conversion (note 6) (4,755) - - -
Preferred stock issued to
acquire Pacific (note 6) - - - 35,046,570
Common stock issued to
acquire Pacific (notes 2 and 6) 715,434,215 - (3,998,954) 711,740,930
Common stock issued for
preferred stock conversion (note 6) 350,308 - - -
Repurchase of common stock (note 6) - - - (54,536,612)
Cash dividends declared:
Common stock, ($1.84 per share)
and preferred stock - (97,229,758) - (97,229,758)
Net income - 89,845,964 - 89,845,964
--------------- ---------------- ------------- ---------------
Balance at
December 31, 1999 1,304,257,610 (26,779,538) (10,984,792) 1,247,249,175
Common stock issued as
compensation or purchased by
directors or officers, or issued
under stock options 4,791,861 - - 4,794,087
Common stock cancelled
under stock loans (192,818) - 1,455,276 (70,238)
Common stock issued for
partnership units redeemed 9,807,737 - - 9,811,875
Common stock issued to
acquire real estate 88,889 - - 88,924
Preferred stock conversion (note 6)
Reallocation of minority interest (1,085,106) - - (1,085,106)
Repurchase of common stock (note 6) - - - (11,088,419)
Cash dividends declared:
Common stock, ($1.92 per share)
and preferred stock - (111,896,164) - (111,896,164)
Net income - 87,610,832 - 87,610,832
------------- --------------- -------------- ---------------
Balance at
December 31, 2000 1,317,668,173 (51,064,870) (9,529,516) 1,225,414,966
============= ============== ============== ===============
See accompanying notes to consolidated financial statements
F-6
REGENCY CENTERS CORPORATION
Consolidated Statements of Cash Flows
For the Years ended December 31, 2000, 1999 and 1998
2000 1999 1998
------ ------- -------
Cash flows from operating activities:
Net income $ 87,610,832 89,845,964 50,590,074
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 59,430,262 48,611,519 25,046,001
Deferred loan cost and debt premium amortization 609,107 556,100 (822,276)
Stock based compensation 4,719,212 2,411,907 2,422,547
Minority interest preferred unit distribution 29,601,184 12,368,403 3,358,333
Minority interest of exchangeable operating partnership units 2,492,419 2,897,778 1,826,273
Minority interest of limited partners 2,631,721 2,855,404 464,098
Equity in income of investments in real estate partnerships (3,138,553) (4,687,944) (946,271)
(Gain) loss on sale of operating properties (4,506,982) 232,989 (10,725,975)
Provision for loss on operating properties held for sale 12,995,412 - -
Changes in assets and liabilities:
Tenant receivables (4,170,897) (12,342,419) (5,143,938)
Deferred leasing costs (10,454,805) (5,025,687) (2,337,253)
Other assets (4,732,220) 74,863 (4,059,535)
Tenants' security and escrow deposits 248,331 1,238,955 517,396
Accounts payable and other liabilities 5,196,868 12,264,438 4,811,991
-------------- -------------- ---------------
Net cash provided by operating activities 178,531,891 151,302,270 65,001,465
-------------- -------------- ---------------
Cash flows from investing activities:
Acquisition and development of real estate, net (304,223,421) (161,372,019) (230,045,015)
Acquisition of Pacific, net of cash acquired - (9,046,230) -
Acquistion of partners' interest in investments
in real estate partnerships, net of cash acquired (1,402,371) - -
Investment in real estate partnerships (71,391,125) (30,752,019) (29,068,392)
Capital improvements (19,134,500) (21,535,961) (8,325,492)
Proceeds from sale of operating properties 42,104,610 5,389,760 30,662,197
Repayment of notes receivable 15,673,125 - -
Distributions received from investments in real estate partnerships 3,109,586 704,474 383,853
-------------- -------------- ---------------
Net cash used in investing activities (335,264,096) (216,611,995) (236,392,849)
-------------- -------------- ---------------
Cash flows from financing activities:
Net proceeds from common stock issuance 25,276 223,375 10,225,529
Repurchase of common stock (11,088,419) (54,536,612) -
Proceeds from issuance of exchangeable operating partnership units - - 7,694
Redemption of exchangeable operating partnership units (1,435,694) (1,620,939) -
Purchase of limited partner's interest in consolidated partnership (2,925,158) (633,673) -
Contributions from limited partners in consolidated partnerships - - 4,289,995
Net distributions to limited partners in consolidated partnerships (2,139,886) (1,071,831) (672,656)
Distributions to exchangeable operating partnership unit holders (3,652,033) (3,534,515) (2,023,132)
Distributions to preferred unit holders (29,601,184) (12,368,403) (3,358,333)
Dividends paid to common stockholders (109,078,935) (94,985,165) (49,490,925)
Dividends paid to preferred stockholders (2,817,228) (2,244,593) -
Net proceeds from fixed rate unsecured notes 159,728,500 249,845,300 99,758,000
Net proceeds from issuance of preferred units 91,591,503 205,016,274 78,800,000
Proceeds (repayment) of unsecured line of credit, net 218,820,690 (142,051,875) 69,500,000
Proceeds from notes payable 18,153,368 445,207 7,345,000
Repayment of notes payable (112,669,554) (32,534,707) (33,988,244)
Scheduled principal payments (6,230,191) (6,085,360) (3,366,124)
Deferred loan costs (3,078,398) (4,355,008) (2,301,821)
-------------- -------------- ---------------
Net cash provided by financing activities 203,602,657 99,507,475 174,724,983
-------------- -------------- ---------------
Net increase in cash and cash equivalents 46,870,452 34,197,750 3,333,599
Cash and cash equivalents at beginning of period 54,117,443 19,919,693 16,586,094
-------------- -------------- ---------------
Cash and cash equivalents at end of period $ 100,987,895 54,117,443 19,919,693
============== ============== ===============
See accompanying notes to consolidated financial statements
F-7
REGENCY CENTERS CORPORATION
Consolidated Statements of Cash Flows
For the Years Ended December 31, 2000, 1999 and 1998
(continued)
2000 1999 1998
------ ------ ------
Supplemental disclosure of cash flow information -
cash paid for interest (net of capitalized interest of
approximately $14,553,000, $11,029,000 and $3,417,000 in
2000, 1999 and 1998, respectively) $ 66,261,518 52,914,976 24,693,895
============== ============== ===============
Supplemental disclosure of non-cash transactions:
Mortgage loans assumed for the acquisition of Pacific and real estate $ 19,947,565 402,582,015 132,832,342
============== ============== ===============
Common stock and exchangeable operating partnership units issued
for investments in real estate partnerships $ 329,948 1,949,020 -
============== ============== ===============
Common stock and exchangeable operating partnership units
issued for the acquisition of partners' interest in investments
in real estate partnerships $ 1,287,111 - -
============== ============== ===============
Preferred and common stock and exchangeable operating partnership
units issued for the acquisition of Pacific and real estate $ 103,885 771,351,617 37,023,849
============== ============== ===============
Other liabilities assumed to acquire Pacific $ - 13,897,643 -
============== ============== ===============
Notes receivable taken in connection with sales of development properties $ 66,423,893 15,673,125 -
============== ============== ===============
See accompanying notes to consolidated financial statements
F-8
REGENCY CENTERS CORPORATION
Notes to Consolidated Financial Statements
December 31, 2000
1. Summary of Significant Accounting Policies
(a) Organization and Principles of Consolidation
The accompanying consolidated financial statements include the
accounts of Regency Centers Corporation, its wholly owned qualified
REIT subsidiaries, and its majority owned or controlled subsidiaries
and partnerships (the "Company" or "Regency"). All significant
intercompany balances and transactions have been eliminated in the
consolidated financial statements. The Company owns approximately 98%
of the outstanding common units of Regency Centers, L.P., ("RCLP" or
the "Partnership") and partnership interests ranging from 50.01% to
55% in majority owned real estate partnerships (the "Majority
Partnerships"). The equity interests of third parties held by RCLP
and the Majority Partnerships are included in the consolidated
financial statements as preferred or exchangeable operating
partnership units ("Units") and limited partners' interest in
consolidated partnerships. The Company is a qualified real estate
investment trust ("REIT") which began operations in 1993 as Regency
Realty Corporation. In February 2001, the Company changed its name to
Regency Centers Corporation.
(b) Revenues
The Company leases space to tenants under agreements with varying
terms. Leases are accounted for as operating leases with minimum rent
recognized on a straight-line basis over the term of the lease
regardless of when payments are due. Accrued rents are included in
tenant receivables. Minimum rent has been adjusted to reflect the
effects of recognizing rent on a straight-line basis.
Substantially all of the lease agreements contain provisions which
provide additional rents based on tenants' sales volume (contingent
or percentage rent) or reimbursement of the tenants' share of real
estate taxes and certain common area maintenance (CAM) costs. These
additional rents are recognized as the tenants achieve the specified
targets as defined in the lease agreements.
Service operations revenue includes property management fees and
leasing commissions earned from third parties, and development
profits from the sale of shopping centers, build to suit properties,
and land to third parties.
F-9
REGENCY CENTERS CORPORATION
Notes to Consolidated Financial Statements
December 31, 2000
(c) Real Estate Investments
Land, buildings and improvements are recorded at cost. All direct and
indirect costs clearly associated with the acquisition, development
and construction of real estate projects are capitalized as buildings
and improvements.
Maintenance and repairs which do not improve or extend the useful
lives of the respective assets are reflected in operating and
maintenance expense. The property cost includes the capitalization of
interest expense incurred during construction based on average
outstanding expenditures.
Depreciation is computed using the straight line method over
estimated useful lives of up to forty years for buildings and
improvements, term of lease for tenant improvements, and three to
seven years for furniture and equipment.
Operating properties held for sale include properties that no longer
meet the Company's long-term investment standards such as expected
growth in revenue or market dominance. Once identified and marketed
for sale, these properties are segregated on the balance sheet as
operating properties held for sale. The Company also develops
shopping centers and stand-alone retail stores for resale. Once
completed, these developments are also included in operating
properties held for sale. Operating properties held for sale are
carried at the lower of cost or fair value less estimated selling
costs. Depreciation and amortization are suspended during the period
held for sale. At December 31, 2000, the Company had seven properties
under contract for sale for $74.6 million, and recorded a provision
for loss on the sale of $13.0 million. The results of operations from
these seven properties was $6.8 million for the year ended December
31, 2000.
The Company reviews its real estate investments for impairment
whenever events or changes in circumstances indicate that the
carrying amount of an asset may not be recoverable.
(d) Income Taxes
The Company believes it qualifies and intends to continue to qualify
as a REIT under the Internal Revenue Code (the "Code"). As a REIT,
the Company is allowed to reduce taxable income by all or a portion
of its distributions to stockholders. As distributions have exceeded
taxable income, no provision for federal income taxes has been made
in the accompanying consolidated financial statements.
Earnings and profits, which determine the taxability of dividends to
stockholders, differ from net income reported for financial reporting
purposes primarily because of different depreciable lives and cost
bases of the shopping centers, and other timing differences.
F-10
REGENCY CENTERS CORPORATION
Notes to Consolidated Financial Statements
December 31, 2000
(d) Income Taxes (continued)
In July 2000, two subsidiaries of the Company, Regency Realty Group,
Inc., ("RRG") and PRT Development Corporation ("PRTDC") merged with
RRG being the surviving entity. RRG is subject to federal and state
income taxes and files separate tax returns. RRG, including
historical amounts of PRTDC, had taxable income of $2,245,101,
$5,029,438, and $774,756 for the years ended December 31, 2000, 1999
and 1998, respectively. RRG incurred federal and state income tax of
$890,318, $2,011,629 and $223,657 in 2000, 1999 and 1998,
respectively.
The Company and RRG plan to jointly elect for RRG to be treated as a
Taxable REIT Subsidiary of the Company as such term is defined in
Section 856(l) of the Code. Such election, if made, will be effective
for the tax year beginning January 1, 2001, and is not expected to
impact the tax treatment of either the Company or RRG.
At December 31, 2000 and 1999, the net book basis of real estate
assets exceeds the tax basis by approximately $170 million and $197
million, respectively, primarily due to the difference between the
cost basis of the assets acquired and their carryover basis recorded
for tax purposes.
The following summarizes the tax status of dividends paid during the
years ended December 31 (unaudited):
2000 1999 1998
---- ---- ----
Dividend per share $ 1.92 1.84 1.76
Ordinary income 82% 75% 71%
Capital gain 5% 2% 2%
Return of capital 11% 23% 27%
Unrecaptured Section
1250 gain 2% - -
(e) Deferred Costs
Deferred costs include deferred leasing costs and deferred loan
costs, net of amortization. Such costs are amortized over the periods
through lease expiration or loan maturity. Deferred leasing costs
consist of internal and external commissions associated with leasing
the Company's shopping centers. Deferred leasing costs were $15.3
million and $7.1 million at December 31, 2000 and 1999, respectively.
Deferred loan costs consists of initial direct and incremental costs
associated with financing activities. Deferred loan costs were $6.0
million and $5.4 million at December 31, 2000 and 1999, respectively.
F-11
REGENCY CENTERS CORPORATION
Notes to Consolidated Financial Statements
December 31, 2000
(f) Earnings Per Share
Basic net income per share of common stock is computed based upon the
weighted average number of common shares outstanding during the year.
Diluted net income per share also includes common share equivalents
for stock options, exchangeable operating partnership units,
preferred stock, and Class B common stock when dilutive. See note 7
for the calculation of earnings per share.
(g) Cash and Cash Equivalents
Any instruments which have an original maturity of ninety days or
less when purchased are considered cash equivalents.
(h) Estimates
The preparation of financial statements in conformity with accounting
principles generally accepted in the United States of America
requires the Company's management to make estimates and assumptions
that affect the reported amounts of assets and liabilities, and
disclosure of contingent assets and liabilities, at the date of the
financial statements and the reported amounts of revenues and
expenses during the reporting period. Actual results could differ
from those estimates.
(i) Stock Option Plan
The Company applies the provisions of SFAS No. 123, "Accounting for
Stock Based Compensation", which allows companies a choice in the
method of accounting for stock options. Entities may recognize as
expense over the vesting period the fair value of all stock-based
awards on the date of grant or continue to apply the provisions of
APB Opinion No. 25 and provide pro forma net income and pro forma
earnings per share disclosures for employee stock option grants made
as if the fair-value-based method defined in SFAS No. 123 had been
applied. APB Opinion No. 25 "Accounting for Stock Issued to
Employees" and related interpretations state that compensation
expense would be recorded on the date of grant only if the current
market price of the underlying stock exceeded the exercise price. The
Company has elected to continue to apply the provisions of APB
Opinion No. 25 and provide the pro forma disclosure provisions of
SFAS No. 123.
(j) Reclassifications
Certain reclassifications have been made to the 1999 amounts to
conform to classifications adopted in 2000.
F-12
REGENCY CENTERS CORPORATION
Notes to Consolidated Financial Statements
December 31, 2000
2. Acquisitions of Shopping Centers
On August 3, 2000, the Company acquired the non-owned portion of two
properties in one joint venture for $2.5 million in cash. The net assets
of the joint venture were and continue to be consolidated by the Company.
Prior to acquiring the non-owned portion, the joint venture partner's
interest was reflected as limited partners' interest in consolidated
partnerships in the Company's financial statements.
On February 28, 1999, the Company acquired Pacific Retail Trust
("Pacific") for approximately $1.157 billion. The operating results of
Pacific are included in the Company's consolidated financial statements
from the date each property was acquired. The following unaudited pro
forma information presents the consolidated results of operations as if
the acquisition of Pacific had occurred on January 1, 1999. Such pro forma
information reflects adjustments to 1) increase depreciation, interest
expense, and general and administrative costs and 2) adjust the weighted
average common shares and common equivalent shares outstanding issued to
acquire the properties. Pro forma revenues would have been $324.7 million
as of December 31, 1999. Pro forma net income for common stockholders
would have been $94.1 million as of December 31, 1999. Pro forma basic net
income per share and pro forma diluted net income per share would have
been $1.58 and $1.58, respectively, as of December 31, 1999. This data
does not purport to be indicative of what would have occurred had the
Pacific acquisition been made on January 1, 1999, or of results which may
occur in the future.
During 2000 and 1999, the Company paid contingent consideration of $5
million and $9 million, respectively, related to the acquisition of 43
shopping centers and joint ventures acquired during 1998. No additional
contingent consideration is due related to any acquisitions of the
Company.
F-13
REGENCY CENTERS CORPORATION
Notes to Consolidated Financial Statements
December 31, 2000
3. Segments
The Company was formed, and currently operates, for the purpose of 1)
operating and developing Company owned retail shopping centers (Retail
segment), and 2) providing services including property management and
commissions earned from third parties, and development related profits and
fees earned from the sales of shopping centers and build to suit
properties to third parties (Service operations segment). The Company had
previously operated four office buildings that were sold during 1998
(Office buildings segment). The Company's reportable segments offer
different products or services and are managed separately because each
requires different strategies and management expertise. There are no
material inter-segment sales or transfers.
The Company assesses and measures operating results starting with net
operating income for the Retail and Office Buildings segments and income
for the Service operations segment and converts such amounts into a
performance measure referred to as Funds From Operations ("FFO"). The
operating results for the individual retail shopping centers have been
aggregated since all of the Company's shopping centers exhibit highly
similar economic characteristics as neighborhood shopping centers, and
offer similar degrees of risk and opportunities for growth. FFO as defined
by the National Association of Real Estate Investment Trusts consists of
net income (computed in accordance with generally accepted accounting
principles) excluding gains (or losses) from debt restructuring and sales
of income producing property held for investment, plus depreciation and
amortization of real estate, and adjustments for unconsolidated
investments in real estate partnerships and joint ventures. The Company
further adjusts FFO by distributions made to holders of Units and
preferred stock that results in a diluted FFO amount. The Company
considers diluted FFO to be the industry standard for reporting the
operations of real estate investment trusts ("REITs"). Adjustments for
investments in real estate partnerships are calculated to reflect diluted
FFO on the same basis. While management believes that diluted FFO is the
most relevant and widely used measure of the Company's performance, such
amount does not represent cash flow from operations as defined by
generally accepted accounting principles, should not be considered an
alternative to net income as an indicator of the Company's operating
performance, and is not indicative of cash available to fund all cash flow
needs. Additionally, the Company's calculation of diluted FFO, as provided
below, may not be comparable to similarly titled measures of other REITs.
The accounting policies of the segments are the same as those described in
note 1. The revenues, diluted FFO, and assets for each of the reportable
segments are summarized as follows for the years ended December 31, 2000,
1999, and 1998. Assets not attributable to a particular segment consist
primarily of cash and deferred costs.
F-14
REGENCY CENTERS CORPORATION
Notes to Consolidated Financial Statements
December 31, 2000
3. Segments (continued)
2000 1999 1998
---- ---- ----
Revenues:
Retail segment $ 334,357,007 283,647,445 130,900,785
Service operations segment 27,226,411 18,239,486 11,862,784
Office buildings segment - - 532,432
------------- ------------- --------------
Total revenues $ 361,583,418 301,886,931 143,296,001
============= ============= ==============
Funds from Operations:
Retail segment net operating income $ 252,060,804 216,189,375 100,239,863
Service operations segment income 27,226,411 18,239,486 11,862,784
Office buildings segment net operating
income - - 349,161
Adjustments to calculate diluted FFO:
Interest expense (71,970,783) (60,067,007) (28,786,431)
Interest income 4,807,711 2,196,954 1,957,575
Earnings from recurring land sales - - 901,853
General and administrative and other (21,869,295) (19,746,751) (15,064,148)
Non-real estate depreciation (1,459,326) (1,003,092) (679,740)
Minority interest of limited partners,
net of gains excluded from FFO (1,207,364) (2,855,404) (464,098)
Minority interest in depreciation
and amortization (481,184) (584,048) (526,018)
Share of joint venture depreciation
and amortization 1,287,793 987,912 688,686
Distributions on preferred units (29,601,184) (12,368,403) (3,358,333)
------------- ------------- --------------
Funds from Operations - diluted 158,793,583 140,989,022 67,121,154
------------- ------------- --------------
Reconciliation to net income for common
stockholders:
Real estate related depreciation
and amortization (57,970,936) (47,608,427) (24,366,261)
Minority interest in depreciation
and amortization 481,184 584,048 526,018
Share of joint venture depreciation
and amortization (1,287,793) (987,912) (688,686)
Provision for loss on operating
properties held for sale (12,995,412) - -
Gain (loss) on sale of operating
properties 3,082,625 (232,989) 9,824,122
Minority interest of exchangeable
operating partnership units (2,492,419) (2,897,778) (1,826,273)
------------- ------------- --------------
Net income $ 87,610,832 89,845,964 50,590,074
============= ============= ==============
Assets (in thousands):
Retail segment $ 2,454,476 2,463,639 1,187,238
Service operations segment 447,929 123,233 20,870
Cash and other assets 132,739 68,064 31,999
------------- ------------- --------------
Total assets $ 3,035,144 2,654,936 1,240,107
============= ============= ==============
F-15
REGENCY CENTERS CORPORATION
Notes to Consolidated Financial Statements
December 31, 2000
4. Investments in Real Estate Partnerships
The Company accounts for all investments in which it owns less than 50%
and does not have controlling financial interest using the equity method.
The Company's combined investment in these partnerships was $85.2 million
and $66.9 million at December 31, 2000 and 1999, respectively. Net income
is allocated to the Company in accordance with the respective partnership
agreements. On June 30, 2000, the Company acquired the non-owned portion
of nine joint ventures, previously accounted for using the equity method,
for $4.4 million consisting of cash, common stock and Units. As a result,
these joint ventures are wholly-owned by the Company and are consolidated
for financial reporting purposes as of the date of acquisition.
On December 31, 2000, the Company contributed $4.5 million to Columbia
Regency Retail Partners, LLC ("Columbia") representing a 10% equity
interest. The remaining 90% of Columbia is owned by Columbia PERFCO
Partners, L.P., an affiliate of Oregon Public Employees Retirement Fund.
Columbia was formed for the purpose of investing in grocery anchored
shopping centers.
5. Notes Payable and Unsecured Line of Credit
The Company's outstanding debt at December 31, 2000 and 1999 consists of
the following (in thousands):
2000 1999
------ ------
Notes Payable:
Fixed rate mortgage loans $ 270,491 382,715
Variable rate mortgage loans 40,640 11,376
Fixed rate unsecured loans 529,941 370,696
------------ ------------
Total notes payable 841,072 764,787
Unsecured line of credit 466,000 247,179
------------ ------------
Total $ 1,307,072 1,011,966
============ ============
On December 15, 2000, the Company, through RCLP, completed a $10 million
unsecured private debt offering with an interest rate of 8.0%. The notes
were priced at 99.375%, are due on December 15, 2010 and are guaranteed by
the Company. On August 29, 2000, the Company, through RCLP, completed a
$150 million unsecured debt offering with an interest rate of 8.45%. The
notes were priced at 99.819%, are due on September 1, 2010 and are
guaranteed by the Company. The net proceeds of the offerings were used to
reduce the balance of the unsecured line of credit (the "Line").
F-16
REGENCY CENTERS CORPORATION
Notes to Consolidated Financial Statements
December 31, 2000
5. Notes Payable and Unsecured Line of Credit (continued)
In July 2000, the Company modified the terms of its Line by reducing the
commitment to $625 million. The Line matures in March 2002, but may be
extended annually for one-year periods. Borrowings under the Line bear
interest at a variable rate based on LIBOR plus a 1% spread (7.875% at
December 31, 2000) compared to LIBOR plus a 1.075% spread (7.575% at
December 31, 1999), and is dependent on the Company maintaining its
investment grade rating. The Company is required to comply and is in
compliance with certain financial and other covenants customary with this
type of unsecured financing. The Line is used primarily to finance the
acquisition and development of real estate, but is also available for
general working capital purposes.
Subsequent to December 31, 2000, the Company paid down the Line by $265
million from the proceeds of an unsecured debt offering for $220 million
completed on January 22, 2001, and from the proceeds from the sale of two
shopping centers to Columbia completed on December 31, 2000.
Mortgage loans are secured by certain real estate properties, and may be
prepaid, but could be subject to a yield-maintenance premium. Mortgage
loans are generally due in monthly installments of interest and principal
and mature over various terms through 2019. Variable interest rates on
mortgage loans are currently based on LIBOR plus a spread in a range of
125 basis points to 150 basis points. Fixed interest rates on mortgage
loans range from 7.04% to 9.5%.
During 1999, the Company assumed debt with a fair value of $402.6 million
related to the acquisition of real estate, which included debt premiums of
$4.1 million based upon the above market interest rates of the debt
instruments. Debt premiums are amortized over the terms of the related
debt instruments.
On April 15, 1999, the Company, through RCLP, completed a $250 million
unsecured debt offering in two tranches. The Company issued $200 million
7.4% notes due April 1, 2004, priced at 99.922% to yield 7.42%, and $50
million 7.75% notes due April 1, 2009, priced at 100%. The net proceeds of
the offering were used to reduce the balance of the Line.
As of December 31, 2000, scheduled principal repayments on notes payable
and the Line were as follows (in thousands):
Scheduled
Principal Term Loan Total
Scheduled Payments by Year Payments Maturities Payments
----------- ------------ ------------
2001 $ 5,413 67,676 73,089
2002 (includes the Line) 4,719 510,084 514,803
2003 4,691 23,299 27,990
2004 5,066 199,897 204,963
2005 3,883 148,031 151,914
Beyond 5 Years 32,016 292,490 324,506
Unamortized debt premiums - 9,807 9,807
----------- ------------ ------------
Total $ 55,788 1,251,284 1,307,072
=========== ============ ============
F-17
REGENCY CENTERS CORPORATION
Notes to Consolidated Financial Statements
December 31, 2000
5. Notes Payable and Unsecured Line of Credit (continued)
Unconsolidated partnerships and joint ventures had mortgage loans payable
of $14.3 million at December 31, 2000, and the Company's proportionate
share of these loans was $5.9 million.
The fair value of the Company's notes payable and Line are estimated based
on the current rates available to the Company for debt of the same
remaining maturities. Variable rate notes payable, and the Line, are
considered to be at fair value since the interest rates on such
instruments reprice based on current market conditions. Notes payable with
fixed rates, that have been assumed in connection with acquisitions, are
recorded in the accompanying financial statements at fair value. The
Company considers the carrying value of all other fixed rate notes payable
to be a reasonable estimation of their fair value based on the fact that
the rates of such notes are similar to rates available to the Company for
debt of the same terms.
6. Stockholders' Equity and Minority Interest
In May and September 2000, the Company issued $70 million and $24 million
of 8.75% Series E and Series F Cumulative Redeemable Preferred Units (the
"Preferred Units"), respectively. The issues were sold to institutional
investors in private placements for $100.00 per unit. The Preferred Units,
which may be called by the Partnership at par on or after May and
September 2005, respectively, have no stated maturity or mandatory
redemption, and pay a cumulative, quarterly dividend at an annualized rate
of 8.75%. At any time after 10 years from the date of issuance, the
Preferred Units may be exchanged for 8.75% Cumulative Redeemable Preferred
Stock ("Preferred Stock") at an exchange rate of one share for one unit.
The Preferred Units and the related Preferred Stock are not convertible
into common stock of the Company. The net proceeds of these offerings were
used to reduce the Line. In 1999, the Company issued similar preferred
units in several series in the amount of $210 million with an average
fixed distribution rate of 8.93%. At December 31, 2000, the face value of
total preferred units issued was $384 million with an average fixed
distribution rate of 8.72% vs. $290 million with an average fixed
distribution rate of 8.71% at December 31, 1999.
Terms and conditions of the Preferred Units are summarized as follows:
Units Issue Issuance Distribution Callable Redeemable
Series Issued Price Amount Rate By Company by Unitholder
- ------------ ---------- ----------- -------------- ------------- ------------- ---------------
Series A 1,600,000 $ 50.00 $ 80,000,000 8.125% 06/25/03 06/25/08
Series B 850,000 100.00 85,000,000 8.750% 09/03/04 09/03/09
Series C 750,000 100.00 75,000,000 9.000% 09/03/04 09/03/09
Series D 500,000 100.00 50,000,000 9.125% 09/29/04 09/29/09
Series E 700,000 100.00 70,000,000 8.750% 05/25/05 05/25/10
Series F 240,000 100.00 24,000,000 8.750% 09/08/05 09/08/10
----------------
-----------
4,640,000 $ 384,000,000
=========== ================
F-18
REGENCY CENTERS CORPORATION
Notes to Consolidated Financial Statements
December 31, 2000
6. Stockholders' Equity and Minority Interest (continued)
As part of the acquisition of Pacific, the Company issued Series 1 and
Series 2 preferred stock. During 1999, a holder of Series 2 preferred
stock converted all of their shares into 14,987 shares of common stock.
During 2000, the remaining Series 1 preferred stock was converted into
537,107 shares of Series 2 preferred stock. Series 2 preferred stock is
convertible into common stock on a one-for-one basis. The Series 2
preferred shares are entitled to quarterly dividends in an amount equal to
the common dividend and are cumulative. The Company may redeem the
preferred stock any time after October 20, 2010 at a price of $20.83 per
share, plus all accrued but unpaid dividends.
During 1999, the Board of Directors authorized the repurchase of
approximately $65 million of the Company's outstanding shares through
periodic open market transactions or privately negotiated transactions. At
March 31, 2000, the Company had completed the program by purchasing 3.25
million shares.
During 1999, 2,500,000 shares of Class B common stock converted into
2,975,468 shares of common stock.
On June 11, 1996, the Company entered into a Stockholders Agreement with a
subsidiary of Security Capital Group Incorporated ("SCG") granting it
certain rights such as purchasing common stock, nominating representatives
to the Company's Board of Directors, and subjecting SCG to certain
restrictions including voting and ownership restrictions. In conjunction
with the acquisition of Pacific in 1999, SCG exchanged their Pacific
shares for 22.6 million Regency common shares.
F-19
REGENCY CENTERS CORPORATION
Notes to Consolidated Financial Statements
December 31, 2000
7. Earnings Per Share
The following summarizes the calculation of basic and diluted earnings per
share for the years ended December 31, 2000, 1999 and 1998 (in thousands
except per share data):
2000 1999 1998
---------- ----------- ------------
Basic Earnings Per Share (EPS) Calculation:
-------------------------------------------
Weighted average common shares
outstanding 56,754 53,494 25,150
========== =========== ============
Net income for common stockholders $ 84,794 87,601 50,590
Less: dividends paid on Class B common
stock - 1,409 5,378
---------- ----------- ------------
Net income for Basic EPS $ 84,794 86,192 45,212
========== =========== ============
Basic EPS $ 1.49 1.61 1.80
========== =========== ============
Diluted Earnings Per Share (EPS) Calculation:
---------------------------------------------
Weighted average shares outstanding
for Basic EPS 56,754 53,494 25,150
Exchangeable operating partnership units 1,851 2,004 1,223
Incremental shares to be issued under
common stock options using the Treasury
method 54 4 14
Contingent units or shares for the
acquisition of real estate - - 511
---------- ----------- ------------
Total diluted shares 58,659 55,502 26,898
========== =========== ============
Net income for Basic EPS $ 84,794 86,192 45,212
Add: minority interest of exchangeable
operating partnership units 2,492 2,898 1,826
---------- ----------- ------------
Net income for Diluted EPS $ 87,286 89,090 47,038
========== =========== ============
Diluted EPS $ 1.49 1.61 1.75
========== =========== ============
The Series 1 and Series 2 preferred stock and the Class B common stock
are not included in the above calculation because their effects are
anti-dilutive.
F-20
REGENCY CENTERS CORPORATION
Notes to Consolidated Financial Statements
December 31, 2000
8. Long-Term Stock Incentive Plans
In 1993, the Company adopted a Long-Term Omnibus Plan (the "Plan")
pursuant to which the Board of Directors may grant stock and stock options
to officers, directors and other key employees. The Plan provides for the
issuance of up to 12% of the Company's common shares outstanding not to
exceed 8.5 million shares. Stock options are granted with an exercise
price equal to the stock's fair market value at the date of grant. All
stock options granted have ten year terms, and contain vesting terms of
one to five years from the date of grant.
At December 31, 2000, there were approximately 2 million shares available
for grant under the Plan. The per share weighted-average fair value of
stock options granted during 2000 and 1999 was $2.18 and $1.23 on the date
of grant using the Black Scholes option-pricing model with the following
weighted-average assumptions: 2000 - expected dividend yield 8.1%,
risk-free interest rate of 6.7%, expected volatility 20%, and an expected
life of 6.0 years; 1999 - expected dividend yield 9.2%, risk-free interest
rate of 5.7%, expected volatility 21%, and an expected life of 5.3 years.
The Company applies APB Opinion No. 25 in accounting for its Plan and,
accordingly, no compensation cost has been recognized for its stock
options in the consolidated financial statements.
Had the Company determined compensation cost based on the fair value at
the grant date for its stock options under SFAS No. 123, the Company's net
income for common stockholders would have been reduced to the pro forma
amounts indicated below (in thousands except per share data):
Net income for
common stockholders 2000 1999 1998
------------------- ---- ---- ----
As reported: $ 84,794 87,601 50,590
Net income per share:
Basic $ 1.49 1.61 1.80
Diluted $ 1.49 1.61 1.75
Pro forma: $ 83,864 85,448 49,565
Net income per share:
Basic $ 1.48 1.57 1.76
Diluted $ 1.47 1.57 1.71
F-21
REGENCY CENTERS CORPORATION
Notes to Consolidated Financial Statements
December 31, 2000
8. Long-Term Stock Incentive Plans (continued)
Stock option activity during the periods indicated is as follows:
Weighted
Number of Average
Shares Exercise Price
-------------- -----------------
Outstanding, December 31, 1997 1,318,507 $ 25.08
-------------- -----------------
Granted 741,265 24.39
Forfeited (123,495) 25.33
Exercised (227,700) 24.97
-------------- -----------------
Outstanding, December 31, 1998 1,708,577 24.71
-------------- -----------------
Granted 860,767 20.70
Pacific Merger 1,251,719 24.24
Forfeited (87,395) 25.69
Exercised (4,000) 17.88
-------------- -----------------
Outstanding, December 31, 1999 3,729,668 23.61
-------------- -----------------
Granted 52,924 21.59
Forfeited (170,798) 25.52
Exercised (21,017) 21.69
-------------- -----------------
Outstanding, December 31, 2000 3,590,777 $ 23.50
============== =================
The following table presents information regarding all options outstanding
at December 31, 2000:
Weighted
Average Weighted
Number of Remaining Range of Average
Options Contractual Exercise Exercise
Outstanding Life Prices Price
- -------------- ---------------- ------------------- -------------------
412,823 8.32 $ 16.75 - 19.81 $ 19.73
1,410,239 7.72 20.83 - 23.19 21.87
1,767,715 6.37 25.00 - 27.69 25.68
- ------------- ----------------- ------------------ --------------------
3,590,777 7.12 $ 16.75 - 27.69 $ 23.50
============= ================= ================== ====================
F-22
REGENCY CENTERS CORPORATION
Notes to Consolidated Financial Statements
December 31, 2000
8. Long-Term Stock Incentive Plans (continued)
The following table presents information regarding options currently
exercisable at December 31, 2000:
Weighted
Number of Range of Average
Options Exercise Exercise
Exercisable Prices Price
- ------------------- -------------------------- ----------------------
135,850 $ 16.75 - 19.81 $ 19.55
653,789 20.83 - 23.19 21.96
1,176,409 25.00 - 27.69 25.62
- ------------------ --------------------------- ----------------------
1,966,048 $ 16.75 - 27.69 $ 23.98
================== =========================== ======================
Also as part of the Plan, officers and other key employees have received
loans to purchase stock with market rates of interest, have been granted
restricted stock, and have been granted dividend equivalents. During 2000,
1999, and 1998, the Company charged $3,423,079, $1,030,645, and
$1,322,164, respectively, to income on the consolidated statements of
operations related to the Plan.
9. Operating Leases
The Company's properties are leased to tenants under operating leases with
expiration dates extending to the year 2032. Future minimum rents under
noncancelable operating leases as of December 31, 2000, excluding tenant
reimbursements of operating expenses and excluding additional contingent
rentals based on tenants' sales volume are as follows:
Year Ending December 31, Amount
---------------------------- ------------------
2001 $ 248,534,659
2002 237,070,457
2003 214,939,060
2004 184,882,360
2005 156,602,001
Thereafter 1,033,051,454
------------------
Total $ 2,075,079,991
==================
The shopping centers' tenant base includes primarily national and regional
supermarkets, drug stores, discount department stores and other retailers
and, consequently, the credit risk is concentrated in the retail industry.
There were no tenants which individually represented 10% or more of the
Company's combined minimum rent.
F-23
REGENCY CENTERS CORPORATION
Notes to Consolidated Financial Statements
December 31, 2000
10. Contingencies
The Company, like others in the commercial real estate industry, is
subject to numerous environmental laws and regulations. The operation of
dry cleaning plants at the Company's shopping centers is the principal
environmental concern. The Company believes that the tenants who operate
these plants do so in accordance with current laws and regulations and has
established procedures to monitor their operations. Additionally, the
Company uses all legal means to cause tenants to remove dry cleaning
plants from its shopping centers. Where available, the Company has applied
and been accepted into state sponsored environmental programs. The Company
has a blanket environmental insurance policy that covers it against third
party liabilities and remediation costs on shopping centers that currently
have no known environmental contamination. The Company has also placed
environmental insurance on specific properties with known contamination in
order to mitigate its environmental risk. Management believes that the
ultimate disposition of currently known environmental matters will not
have a material effect on the financial position, liquidity, or operations
of the Company. At December 31, 2000 and 1999, the Company had recorded
environmental liabilities of $2.1 million and $2.6 million, respectively.
11. Market and Dividend Information (Unaudited)
The Company's common stock is traded on the New York Stock Exchange
("NYSE") under the symbol "REG". The Company currently has approximately
3,500 shareholders. The following table sets forth the high and low prices
and the cash dividends declared on the Company's common stock by quarter
for 2000 and 1999:
2000 1999
----------------------------------- -------------------------------------
Cash Cash
Quarter High Low Dividends High Low Dividends
Ended Price Price Declared Price Price Declared
------------ ---------- --------- ------------ ---------- -------- -----------
March 31 $ 20.9375 18.3125 .48 23.1250 18.7500 .46
June 30 23.7500 19.2500 .48 22.5000 19.0000 .46
September 30 24.0000 21.2500 .48 22.1250 19.8750 .46
December 31 24.0625 20.7500 .48 20.8125 18.7500 .46
F-24
REGENCY CENTERS CORPORATION
Notes to Consolidated Financial Statements
December 31, 2000
12. Summary of Quarterly Financial Data (Unaudited)
Presented below is a summary of the consolidated quarterly financial data
for the years ended December 31, 2000 and 1999 (amounts in thousands,
except per share data):
First Second Third Fourth
Quarter Quarter Quarter Quarter
--------- --------- --------- ---------
2000:
Revenues $ 81,202 86,263 92,638 101,480
Net income for
common stockholders 21,621 15,418 23,881 23,874
Net income per share:
Basic .38 .27 .42 .42
Diluted .38 .27 .42 .42
1999:
Revenues $ 51,422 79,664 79,598 91,203
Net income for
common stockholders 13,456 24,330 23,965 25,850
Net income per share:
Basic .34 .41 .40 .44
Diluted .34 .41 .40 .44
F-25
Independent Auditors' Report
On Financial Statement Schedule
The Shareholders and Board of Directors
Regency Centers Corporation
Under date of January 30, 2001, we reported on the consolidated balance sheets
of Regency Centers Corporation as of December 31, 2000 and 1999, and the related
consolidated statements of operations, stockholders' equity, and cash flows for
each of the years in the three-year period ended December 31, 2000, as contained
in the annual report on Form 10-K for the year 2000. In connection with our
audits of the aforementioned consolidated financial statements, we also audited
the related financial statement schedule as listed in the accompanying index on
page F-1 of the annual report on Form 10-K for the year 2000. This financial
statement schedule is the responsibility of the Company's management. Our
responsibility is to express an opinion on the financial statement schedule
based on our audits.
In our opinion, the related financial statement schedule, when considered in
relation to the basic consolidated financial statements taken as a whole,
presents fairly, in all material respects, the information set forth therein.
KPMG LLP
Jacksonville, Florida
January 30, 2001
S-1
REGENCY CENTERS CORPORATION
Combined Real Estate and Accumulated Depreciation
December 31, 2000
Schedule III
Initial Cost Total Cost
--------------------------- -----------------------------------------
Cost Capitalized Properties
Building & Subsequent to Building & Held
Land Improvements Acquisition Land Improvements For Sale
--------- ------------ ---------------- --------- ------------ ----------
ANASTASIA SHOPPING PLAZA 1,072,451 3,617,493 301,711 1,072,451 3,919,204 -
ASHFORD PLACE 2,803,998 9,943,994 (403,272) 2,583,998 9,760,722 -
AVENTURA SHOPPING CENTER 2,751,094 9,317,790 540,734 2,751,094 9,858,524 -
BECKETT COMMONS 1,625,242 5,844,871 2,309,405 1,625,242 8,154,276 -
BENEVA 2,483,547 8,851,199 313,511 2,483,547 9,164,710 -
BENT TREE PLAZA 1,927,712 6,659,082 10,197 1,927,712 6,669,279 -
BERKSHIRE COMMONS 2,294,960 8,151,236 156,479 2,294,960 8,307,715 -
BLOOMINGDALE 3,861,759 14,100,891 361,499 3,861,759 14,462,390 -
BOLTON PLAZA 2,660,227 6,209,110 1,512,090 2,634,664 7,746,763 -
BONNERS POINT 859,854 2,878,641 207,833 859,854 3,086,474 -
BOYNTON LAKES PLAZA 2,783,000 10,043,027 1,318,669 2,783,000 11,361,696 -
BRAELINN VILLAGE EQUIPORT 4,191,214 12,389,585 (16,580,799) - - -
BRIARCLIFF LA VISTA 694,120 2,462,819 583,747 694,120 3,046,566 -
BRIARCLIFF VILLAGE 4,597,018 16,303,813 7,021,607 4,597,018 23,325,420 -
BROOKVILLE PLAZA 1,208,012 4,205,994 376,817 1,208,012 4,582,811 -
BUCKHEAD COURT 1,737,569 6,162,941 1,654,283 1,627,569 7,927,224 -
CAMBRIDGE SQUARE 792,000 2,916,034 1,207,880 792,000 4,123,914 -
CARMEL COMMONS 2,466,200 8,903,187 1,804,831 2,466,200 10,708,018 -
CARRIAGE GATE 740,960 2,494,750 1,272,011 740,960 3,766,761 -
CENTER OF SEVEN SPRINGS 1,737,994 6,290,048 (2,260,073) - - 5,767,969
CHASEWOOD PLAZA 1,675,000 11,390,727 6,401,312 2,476,486 16,990,553 -
CHERRY GROVE 3,533,146 12,710,297 1,826,211 3,533,146 14,536,508 -
CITY VIEW SHOPPING CENTER 1,207,204 4,341,304 118,113 1,207,204 4,459,417 -
COLUMBIA MARKETPLACE 1,280,158 4,285,745 354,411 1,280,158 4,640,156 -
COUNTRY CLUB 1,105,201 3,709,452 170,907 1,105,201 3,880,359 -
COURTYARD SHOPPING CENTER 1,761,567 4,187,039 1,520,641 1,761,567 5,707,680 -
CROMWELL SQUARE 1,771,892 6,285,288 342,314 1,771,892 6,627,602 -
CUMMING 400 2,374,562 8,420,776 558,693 2,374,562 8,979,469 -
DELK SPECTRUM 2,984,577 11,048,896 20,949 2,984,577 11,069,845 -
DUNWOODY HALL 1,819,209 6,450,922 3,747,250 1,819,209 10,198,172 -
DUNWOODY VILLAGE 2,326,063 7,216,045 2,484,374 2,326,063 9,700,419 -
EAST POINTE 1,868,120 6,742,983 919,777 2,634,366 6,896,514 -
EAST PORT PLAZA 3,257,023 11,611,363 (1,938,895) - - 12,929,491
ENSLEY SQUARE 915,493 3,120,928 610,824 915,493 3,731,752 -
EVANS CROSSING 1,468,743 5,123,617 955,407 1,634,997 5,912,770 -
FLEMING ISLAND 3,076,701 6,291,505 3,090,987 3,076,701 9,382,492 -
FRANKLIN SQUARE 2,584,025 9,379,749 1,404,392 2,584,383 10,783,783 -
GARDEN SQUARE 2,073,500 7,614,748 483,109 2,136,135 8,035,222 -
GARNER FESTIVAL 5,591,099 19,897,197 1,793,888 5,591,099 21,691,085 -
GLENWOOD VILLAGE 1,194,198 4,235,476 242,011 1,194,198 4,477,487 -
HAMILTON MEADOWS 2,034,566 6,582,429 (8,616,995) - - -
HAMPSTEAD VILLAGE 2,769,901 6,379,103 1,240,203 3,392,115 6,997,092 -
HARPETH VILLAGE FIELDSTONE 2,283,874 5,559,498 3,734,419 2,283,874 9,293,917 -
HIGHLAND SQUARE 2,615,250 9,359,722 5,666,627 2,615,250 15,026,349 -
HINSDALE LAKE COMMONS 4,217,840 15,039,854 1,584,249 5,729,008 15,112,935 -
HYDE PARK 9,240,000 33,340,181 2,776,959 9,735,102 35,622,038 -
KERNERSVILLE PLAZA 1,741,562 6,081,020 528,997 1,741,562 6,610,017 -
KINGS CROSSING (SUN CITY) 2,349,602 4,599,101 - - - 6,948,703
KINGSDALE SHOPPING CENTER 3,866,500 14,019,614 5,321,237 4,027,691 19,179,660 -
LAGRANGE MARKETPLACE 983,923 3,294,003 130,433 983,923 3,424,436 -
LAKE PINE PLAZA 2,008,110 6,908,986 612,580 2,008,110 7,521,566 -
LAKESHORE 1,617,940 5,371,499 64,081 1,617,940 5,435,580 -
LOEHMANNS PLAZA 3,981,525 14,117,891 868,942 3,981,525 14,986,833 -
LOVEJOY STATION 1,540,000 5,581,468 59,667 1,540,000 5,641,135 -
LUCEDALE MARKETPLACE 641,565 2,147,848 139,567 641,565 2,287,415 -
MAINSTREET SQUARE 1,274,027 4,491,897 93,113 1,274,027 4,585,010 -
MARINERS VILLAGE 1,628,000 5,907,835 195,659 1,628,000 6,103,494 -
MARKETPLACE ST PETE 1,287,000 4,662,740 317,523 1,287,000 4,980,263 -
MARTIN DOWNS VILLAGE CENTER 2,000,000 5,133,495 3,244,491 2,437,664 7,940,322 -
MARTIN DOWNS VILLAGE SHOPPES 700,000 1,207,861 3,356,349 817,135 4,447,075 -
MAXTOWN ROAD (NORTHGATE) 1,753,136 6,244,449 39,147 1,753,136 6,283,596 -
MAYNARD CROSSING 4,066,381 14,083,800 1,226,756 4,066,381 15,310,556 -
MEMORIAL BEND SHOPPING CENTER 3,256,181 11,546,660 2,357,507 3,366,181 13,794,167 -
MERCHANTS VILLAGE 1,054,306 3,162,919 3,408,515 1,054,306 6,571,434 -
MILLHOPPER 1,073,390 3,593,523 1,051,405 1,073,390 4,644,928 -
NASHBORO 1,824,320 7,167,679 432,712 1,824,320 7,600,391 -
NEWBERRY SQUARE 2,341,460 8,466,651 1,223,887 2,341,460 9,690,538 -
NORTH MIAMI SHOPPING CENTER 603,750 2,021,250 95,210 603,750 2,116,460 -
NORTHLAKE VILLAGE I 2,662,000 9,684,740 - 2,662,000 9,684,740 -
OAKLEY PLAZA 1,772,540 6,406,975 78,733 1,772,540 6,485,708 -
OCEAN BREEZE 1,250,000 3,341,199 2,530,807 1,527,400 5,594,606 -
OLD ST AUGUSTINE PLAZA 2,047,151 7,355,162 1,080,463 2,047,151 8,435,625 -
ORCHARD SQUARE 1,155,000 4,135,353 2,090,979 1,155,000 6,226,332 -
PACES FERRY PLAZA 2,811,522 9,967,557 2,111,899 2,811,622 12,079,356 -
PALM HARBOUR SHOPPING VILLAGE 2,899,928 10,998,230 1,359,022 2,905,098 12,352,082 -
PALM TRAILS PLAZA 2,438,996 5,818,523 (31,171) 2,218,233 6,008,115 -
PARK PLACE 2,231,745 7,974,362 86,600 2,231,745 8,060,962 -
PARKWAY STATION 1,123,200 4,283,917 300,648 1,123,200 4,584,565 -
PEACHLAND PROMENADE 1,284,562 5,143,564 173,687 1,284,561 5,317,252 -
PEARTREE VILLAGE 5,196,653 8,732,711 10,768,493 5,196,653 19,501,204 -
PIKE CREEK 5,077,406 18,860,183 724,905 5,077,406 19,585,088 -
PINE TREE PLAZA 539,000 1,995,927 3,381,345 539,000 5,377,272 -
POWERS FERRY SQUARE 3,607,647 12,790,749 4,022,113 3,607,647 16,812,862 -
POWERS FERRY 1,190,822 4,223,606 263,165 1,190,822 4,486,771 -
QUEENSBOROUGH 1,826,000 6,501,056 (807,932) 1,163,021 6,356,103 -
REGENCY COURT 3,571,337 12,664,014 (1,930,142) - - 14,305,209
REGENCY SQUARE BRANDON 577,975 18,156,719 8,320,161 4,491,461 22,563,394 -
RIVERMONT STATION 2,887,213 10,445,109 101,952 2,887,213 10,547,061 -
ROSWELL VILLAGE 2,304,345 6,777,200 (9,081,545) - - -
RUSSELL RIDGE 2,153,214 - 6,608,950 2,215,341 6,546,823 -
SANDY PLAINS VILLAGE 2,906,640 10,412,440 1,691,401 2,906,640 12,103,841 -
SANDY SPRINGS VILLAGE 733,126 2,565,411 1,112,061 733,126 3,677,472 -
SHOPPES @ 104 2,651,000 9,523,429 610,192 2,651,000 10,133,621 -
SHOPPES AT MASON 1,576,656 5,357,855 - 1,576,656 5,357,855 -
SILVERLAKE 2,004,860 7,161,869 98,371 2,004,860 7,260,240 -
SOUTH MONROE 1,200,000 6,566,974 (1,345,539) 874,999 5,546,436 -
SOUTH POINTE CROSSING 4,399,303 11,116,491 927,990 4,399,303 12,044,481 -
ST ANN SQUARE 1,541,883 5,597,282 19,817 1,541,883 5,617,099 -
STATLER SQUARE 2,227,819 7,479,952 720,700 2,227,819 8,200,652 -
TAMIAMI TRAILS 2,046,286 7,462,646 196,617 2,046,286 7,659,263 -
TEQUESTA SHOPPES 1,782,000 6,426,042 (2,482,514) - - 5,725,528
TERRACE WALK 1,196,286 2,935,683 149,052 1,196,286 3,084,735 -
THE MARKETPLACE 1,211,605 4,056,242 2,927,775 1,758,434 6,437,188 -
TINWOOD HOTEL SITE 6,942,321 - - - - 6,942,321
TOWN CENTER AT MARTIN DOWNS 1,364,000 4,985,410 35,225 1,364,000 5,020,635 -
TOWN SQUARE 438,302 1,555,481 4,815,369 768,302 6,040,850 -
TROWBRIDGE CROSSING EQUIPORT 910,263 1,914,551 (2,824,814) - - -
UNION SQUARE SHOPPING CENTER 1,578,654 5,933,889 425,198 1,578,656 6,359,085 -
UNIVERSITY COLLECTION 2,530,000 8,971,597 209,563 2,530,000 9,181,160 -
UNIVERSITY MARKETPLACE 3,250,562 7,044,579 (3,925,333) - - 6,369,808
VILLAGE CENTER 6 3,885,444 10,799,316 505,099 3,885,444 11,304,415 -
VILLAGE IN TRUSSVILLE 973,954 3,260,627 133,183 973,954 3,393,810 -
WATERFORD TOWNE CENTER 5,650,058 6,843,671 1,188,271 6,289,801 7,392,199 -
WELLEBY 1,496,000 5,371,636 1,450,793 1,496,000 6,822,429 -
WELLINGTON MARKET PLACE 5,070,384 13,308,972 (2,531,150) - - 15,848,206
WELLINGTON TOWN SQUARE 1,914,000 7,197,934 837,800 1,914,000 8,035,734 -
WEST COUNTY 1,491,462 4,993,155 146,986 1,491,462 5,140,141 -
WESTCHESTER PLAZA 1,857,048 6,456,178 646,769 1,857,048 7,102,947 -
WINDMILLER PLAZA PHASE I 2,620,355 11,190,526 926,947 2,620,355 12,117,473 -
WOODCROFT SHOPPING CENTER 1,419,000 5,211,981 392,720 1,419,000 5,604,701 -
WORTHINGTON PARK CENTRE 3,346,203 10,053,858 947,237 3,346,203 11,001,095 -
ARAPAHO VILLAGE 837,148 8,031,688 260,963 837,148 8,292,651 -
ARDEN SQUARE 3,140,000 7,420,438 (10,560,438) - - -
BETHANY PARK PLACE 4,604,877 5,791,750 - 4,604,877 5,791,750 -
BLOSSOM VALLEY 7,803,568 10,320,913 135,248 7,803,568 10,456,161 -
BOULEVARD CENTER 3,659,040 9,658,227 200,350 3,659,040 9,858,577 -
BRISTOL WARNER 5,000,000 11,997,016 138,051 5,000,000 12,135,067 -
BUCKLEY SQUARE 2,970,000 5,126,240 45,247 2,970,000 5,171,487 -
CASA LINDA PLAZA 4,515,000 30,809,330 204,222 4,515,000 31,013,552 -
CASCADE PLAZA 3,023,165 10,694,460 4,758,038 - - 18,475,663
CHAMPIONS FOREST 2,665,875 8,678,603 36,800 2,665,875 8,715,403 -
CHERRY PARK MARKET 2,400,000 16,162,934 298,667 2,400,000 16,461,601 -
CHEYENNE MEADOWS 1,601,425 7,700,084 - 1,601,425 7,700,084 -
COOPER STREET 2,078,891 10,682,189 38,749 2,078,891 10,720,938 -
COSTA VERDE 12,740,000 25,261,188 114,685 12,740,000 25,375,873 -
COUNTRY CLUB CALIF 3,000,000 11,657,200 59,857 3,000,000 11,717,057 -
CREEKSIDE PHASE II 390,802 1,397,415 - 390,802 1,397,415 -
CROSSROADS 3,513,903 2,595,055 - 3,513,903 2,595,055 -
DIABLO PLAZA 5,300,000 7,535,866 56,934 5,300,000 7,592,800 -
EL CAMINO 7,600,000 10,852,428 259,628 7,600,000 11,112,056 -
EL NORTE PARKWAY PLA 2,833,510 6,332,078 73,976 2,833,510 6,406,054 -
ENCINA GRANDE 5,040,000 10,378,539 164,054 5,040,000 10,542,593 -
FRIARS MISSION 6,660,000 27,276,992 29,524 6,660,000 27,306,516 -
FRISCO PRESTONBROOK 4,703,516 10,761,732 - 4,703,516 10,761,732 -
HANCOCK 8,231,581 24,248,620 1,272,299 8,231,581 25,520,919 -
HARWOOD HILLS VILLAGE 2,852,704 8,996,133 70,486 2,852,704 9,066,619 -
HAWTHORNE PLAZA - 196,481 (196,481) - - -
HEBRON PARK 1,887,281 5,375,951 - - - 7,263,232
HERITAGE LAND 12,390,000 - - 12,390,000 - -
HERITAGE PLAZA - 23,675,957 301,686 - 23,977,643 -
HILLCREST VILLAGE 1,600,000 1,797,686 8,506 1,600,000 1,806,192 -
INGLEWOOD PLAZA 1,300,000 1,862,406 122,591 1,300,000 1,984,997 -
JAMES CENTER 2,706,000 9,451,497 7,812,892 - - 19,970,389
KELLER TOWN CENTER - 690 (690) - - -
LAKE MERIDIAN 6,510,000 12,121,889 243,497 6,510,000 12,365,386 -
LEETSDALE MARKETPLACE 3,420,000 9,933,701 13,863 3,420,000 9,947,564 -
LITTLETON SQUARE 2,030,000 8,254,964 4,653 2,030,000 8,259,617 -
LLOYD KING CENTER 1,779,180 8,854,803 - 1,779,180 8,854,803 -
LOEHMANNS PLAZA CALIFORNIA 5,420,000 8,679,135 123,476 5,420,000 8,802,611 -
MACARTHUR PARK PHASE I 3,915,848 6,837,889 - - - 10,753,737
MARKET AT PRESTON FOREST 4,400,000 10,752,712 3,919 4,400,000 10,756,631 -
MARKET AT ROUND ROCK 2,000,000 9,676,170 43,868 2,000,000 9,720,038 -
MILLS POINTE 2,000,000 11,919,176 33,869 2,000,000 11,953,045 -
MOCKINGBIRD COMMON 3,000,000 9,675,600 214,737 3,000,000 9,890,337 -
MONUMENT JACKSON CREEK 2,999,482 6,476,151 - 2,999,482 6,476,151 -
MORNINGSIDE PLAZA 4,300,000 13,119,929 113,015 4,300,000 13,232,944 -
MURRAYHILL MARKETPLACE 2,600,000 15,753,034 335,958 2,600,000 16,088,992 -
NEWLAND CENTER 12,500,000 12,221,279 351,933 12,500,000 12,573,212 -
NORTH HILLS 4,900,000 18,972,202 78,584 4,900,000 19,050,786 -
NORTHVIEW PLAZA 1,956,961 8,694,879 47,155 1,956,961 8,742,034 -
OAKBROOK PLAZA 4,000,000 6,365,704 5,229 4,000,000 6,370,933 -
PASEO VILLAGE 2,550,000 7,780,102 79,597 2,550,000 7,859,699 -
PIMA CROSSING 5,800,000 24,891,690 192,340 5,800,000 25,084,030 -
PINE LAKE VILLAGE 6,300,000 10,522,041 56,514 6,300,000 10,578,555 -
PLAZA DE HACIENDA 4,230,000 11,741,933 118,865 4,230,000 11,860,798 -
PLAZA HERMOSA 4,200,000 9,369,630 48,788 4,200,000 9,418,418 -
PRESTON PARK 6,400,000 46,896,071 109,678 6,400,000 47,005,749 -
PRESTONWOOD PARK - 12,276 (12,276) - - -
REDLANDS MARKET - - - - - -
REDONDO VILLAGE CENTER - - 24,752 - 24,752 -
RIDGLEA PLAZA 1,675,498 12,912,138 128,081 1,675,498 13,040,219 -
RONA PLAZA 1,500,000 4,356,480 15,370 1,500,000 4,371,850 -
SAMMAMISH HIGHLAND 9,300,000 7,553,288 100,138 9,300,000 7,653,426 -
SAN FERNANDO VALUE SQUARE 2,448,407 8,765,266 - - - 11,213,673
SAN LEANDRO 1,300,000 7,891,091 34,326 1,300,000 7,925,417 -
SANTA ANA DOWTOWN 4,240,000 7,319,468 51,218 4,240,000 7,370,686 -
SEQUOIA STATION 9,100,000 17,899,819 19,740 9,100,000 17,919,559 -
SHERWOOD MARKET CENTER 3,475,000 15,897,972 44,542 3,475,000 15,942,514 -
SHILOH PHASE II 288,135 1,822,692 - 288,135 1,822,692 -
SOUTH POINT PLAZA 5,000,000 10,085,995 64,627 5,000,000 10,150,622 -
SOUTHCENTER 1,300,000 12,250,504 5,321 1,300,000 12,255,825 -
SOUTHPARK 3,077,667 9,399,976 48,068 3,077,667 9,448,044 -
STRAWFLOWER VILLAGE 4,060,228 7,232,936 71,139 4,060,228 7,304,075 -
STROH RANCH 4,138,423 7,110,856 - 4,138,423 7,110,856 -
SUNNYSIDE 205 1,200,000 8,703,281 51,636 1,200,000 8,754,917 -
TARRANT PARKWAY VILLAGE - - - - - -
TASSAJARA CROSSING 8,560,000 14,899,929 26,755 8,560,000 14,926,684 -
THE PROMENADE 2,526,480 12,712,811 162,056 2,526,480 12,874,867 -
THE VILLAGE 522,313 6,984,992 116,839 522,313 7,101,831 -
THOMAS LAKE 6,000,000 10,301,811 5,136 6,000,000 10,306,947 -
TWIN PEAKS 5,200,000 25,119,758 71,465 5,200,000 25,191,223 -
VALLEY RANCH CENTRE 3,021,181 10,727,623 - 3,021,181 10,727,623 -
VENTURA VILLAGE 4,300,000 6,351,012 23,271 4,300,000 6,374,283 -
WALKER CENTER 3,840,000 6,417,522 4,398 3,840,000 6,421,920 -
WEST HILLS 2,200,000 6,045,233 - 2,200,000 6,045,233 -
WEST PARK PLAZA 5,840,225 4,991,746 110,970 5,840,225 5,102,716 -
WESTLAKE VILLAGE CENTER 7,042,728 25,744,011 394,390 7,042,728 26,138,401 -
WOODMAN VAN NUYS 5,500,000 6,835,246 45,215 5,500,000 6,880,461 -
WOODSIDE CENTRAL 3,500,000 8,845,697 21,979 3,500,000 8,867,676 -
OPERATING BUILD TO SUIT PROPERTIES 11,158,450 30,478,383 - - - 41,636,833
---------------------------------------------------------------------------------------------
620,308,743 1,833,804,353 107,682,531 564,089,984 1,813,554,881 184,150,762
==============================================================================================
Total
Net of
Accumulated Accumulated
Total Depreciation Depreciation Mortgages
----- ------------ ------------ ---------
ANASTASIA SHOPPING PLAZA 4,991,655 834,635 4,157,020 -
ASHFORD PLACE 12,344,720 1,264,099 11,080,621 4,439,839
AVENTURA SHOPPING CENTER 12,609,618 3,090,545 9,519,073 8,325,714
BECKETT COMMONS 9,779,518 477,481 9,302,037 -
BENEVA 11,648,257 477,015 11,171,242 -
BENT TREE PLAZA 8,596,991 521,063 8,075,928 5,425,181
BERKSHIRE COMMONS 10,602,675 1,531,756 9,070,919 -
BLOOMINGDALE 18,324,149 1,074,042 17,250,107 -
BOLTON PLAZA 10,381,427 1,412,866 8,968,561 -
BONNERS POINT 3,946,328 747,759 3,198,569 -
BOYNTON LAKES PLAZA 14,144,696 803,345 13,341,351 -
BRAELINN VILLAGE EQUIPORT - - - -
BRIARCLIFF LA VISTA 3,740,686 409,919 3,330,767 -
BRIARCLIFF VILLAGE 27,922,438 2,290,157 25,632,281 12,932,901
BROOKVILLE PLAZA 5,790,823 367,136 5,423,687 -
BUCKHEAD COURT 9,554,793 902,438 8,652,355 -
CAMBRIDGE SQUARE 4,915,914 330,962 4,584,952 -
CARMEL COMMONS 13,174,218 1,019,471 12,154,747 -
CARRIAGE GATE 4,507,721 1,093,281 3,414,440 2,202,286
CENTER OF SEVEN SPRINGS 5,767,969 - 5,767,969 -
CHASEWOOD PLAZA 19,467,039 3,733,220 15,733,819 -
CHERRY GROVE 18,069,654 979,644 17,090,010 -
CITY VIEW SHOPPING CENTER 5,666,621 508,109 5,158,512 -
COLUMBIA MARKETPLACE 5,920,314 961,958 4,958,356 -
COUNTRY CLUB 4,985,560 797,642 4,187,918 -
COURTYARD SHOPPING CENTER 7,469,247 1,627,178 5,842,069 -
CROMWELL SQUARE 8,399,494 797,071 7,602,423 -
CUMMING 400 11,354,031 1,078,135 10,275,896 6,272,880
DELK SPECTRUM 14,054,422 877,663 13,176,759 10,000,000
DUNWOODY HALL 12,017,381 849,171 11,168,210 -
DUNWOODY VILLAGE 12,026,482 1,087,192 10,939,290 7,015,740
EAST POINTE 9,530,880 546,513 8,984,367 5,072,570
EAST PORT PLAZA 12,929,491 - 12,929,491 -
ENSLEY SQUARE 4,647,245 450,754 4,196,491 -
EVANS CROSSING 7,547,767 430,440 7,117,327 4,164,789
FLEMING ISLAND 12,459,193 408,968 12,050,225 3,278,199
FRANKLIN SQUARE 13,368,166 857,149 12,511,017 8,827,413
GARDEN SQUARE 10,171,357 662,842 9,508,515 6,280,967
GARNER FESTIVAL 27,282,184 1,176,383 26,105,801 -
GLENWOOD VILLAGE 5,671,685 562,428 5,109,257 2,028,574
HAMILTON MEADOWS - - - -
HAMPSTEAD VILLAGE 10,389,207 266,895 10,122,312 10,362,993
HARPETH VILLAGE FIELDSTONE 11,577,791 680,182 10,897,609 -
HIGHLAND SQUARE 17,641,599 846,864 16,794,735 3,719,181
HINSDALE LAKE COMMONS 20,841,943 797,810 20,044,133 -
HYDE PARK 45,357,140 3,240,897 42,116,243 24,750,000
KERNERSVILLE PLAZA 8,351,579 448,209 7,903,370 5,068,534
KINGS CROSSING (SUN CITY) 6,948,703 - 6,948,703 -
KINGSDALE SHOPPING CENTER 23,207,351 1,326,800 21,880,551 -
LAGRANGE MARKETPLACE 4,408,359 716,774 3,691,585 -
LAKE PINE PLAZA 9,529,676 515,286 9,014,390 5,782,351
LAKESHORE 7,053,520 400,597 6,652,923 3,602,120
LOEHMANNS PLAZA 18,968,358 1,831,189 17,137,169 -
LOVEJOY STATION 7,181,135 492,642 6,688,493 -
LUCEDALE MARKETPLACE 2,928,980 495,134 2,433,846 -
MAINSTREET SQUARE 5,859,037 446,758 5,412,279 -
MARINERS VILLAGE 7,731,494 606,338 7,125,156 -
MARKETPLACE ST PETE 6,267,263 652,196 5,615,067 -
MARTIN DOWNS VILLAGE CENTER 10,377,986 1,810,700 8,567,286 -
MARTIN DOWNS VILLAGE SHOPPES 5,264,210 718,297 4,545,913 -
MAXTOWN ROAD (NORTHGATE) 8,036,732 444,588 7,592,144 5,230,580
MAYNARD CROSSING 19,376,937 1,037,540 18,339,397 11,374,878
MEMORIAL BEND SHOPPING CENTER 17,160,348 1,691,123 15,469,225 7,822,505
MERCHANTS VILLAGE 7,625,740 553,291 7,072,449 -
MILLHOPPER 5,718,318 1,353,102 4,365,216 -
NASHBORO 9,424,711 347,547 9,077,164 -
NEWBERRY SQUARE 12,031,998 1,984,916 10,047,082 6,166,402
NORTH MIAMI SHOPPING CENTER 2,720,210 843,093 1,877,117 -
NORTHLAKE VILLAGE I 12,346,740 63,615 12,283,125 6,874,684
OAKLEY PLAZA 8,258,248 622,549 7,635,699 -
OCEAN BREEZE 7,122,006 1,307,238 5,814,768 -
OLD ST AUGUSTINE PLAZA 10,482,776 964,259 9,518,517 -
ORCHARD SQUARE 7,381,332 593,771 6,787,561 -
PACES FERRY PLAZA 14,890,978 1,406,588 13,484,390 -
PALM HARBOUR SHOPPING VILLAGE 15,257,180 1,373,908 13,883,272 -
PALM TRAILS PLAZA 8,226,348 401,001 7,825,347 -
PARK PLACE 10,292,707 439,261 9,853,446 -
PARKWAY STATION 5,707,765 561,309 5,146,456 -
PEACHLAND PROMENADE 6,601,813 880,779 5,721,034 4,002,787
PEARTREE VILLAGE 24,697,857 1,747,608 22,950,249 12,433,938
PIKE CREEK 24,662,494 1,249,361 23,413,133 12,012,638
PINE TREE PLAZA 5,916,272 301,909 5,614,363 -
POWERS FERRY SQUARE 20,420,509 1,880,304 18,540,205 -
POWERS FERRY 5,677,593 530,917 5,146,676 2,851,309
QUEENSBOROUGH 7,519,124 346,699 7,172,425 -
REGENCY COURT 14,305,209 - 14,305,209 -
REGENCY SQUARE BRANDON 27,054,855 7,484,193 19,570,662 -
RIVERMONT STATION 13,434,274 937,782 12,496,492 -
ROSWELL VILLAGE - - - -
RUSSELL RIDGE 8,762,164 1,011,633 7,750,531 5,961,171
SANDY PLAINS VILLAGE 15,010,481 1,294,591 13,715,890 -
SANDY SPRINGS VILLAGE 4,410,598 450,089 3,960,509 -
SHOPPES @ 104 12,784,621 691,798 12,092,823 -
SHOPPES AT MASON 6,934,511 386,510 6,548,001 3,791,705
SILVERLAKE 9,265,100 471,440 8,793,660 -
SOUTH MONROE 6,421,435 382,069 6,039,366 -
SOUTH POINTE CROSSING 16,443,784 589,761 15,854,023 -
ST ANN SQUARE 7,158,982 548,212 6,610,770 4,749,168
STATLER SQUARE 10,428,471 610,841 9,817,630 5,306,699
TAMIAMI TRAILS 9,705,549 689,222 9,016,327 -
TEQUESTA SHOPPES 5,725,528 - 5,725,528 -
TERRACE WALK 4,281,021 786,840 3,494,181 -
THE MARKETPLACE 8,195,622 1,227,572 6,968,050 2,129,448
TINWOOD HOTEL SITE 6,942,321 - 6,942,321 -
TOWN CENTER AT MARTIN DOWNS 6,384,635 514,055 5,870,580 -
TOWN SQUARE 6,809,152 260,555 6,548,597 -
TROWBRIDGE CROSSING EQUIPORT - - - -
UNION SQUARE SHOPPING CENTER 7,937,741 738,870 7,198,871 -
UNIVERSITY COLLECTION 11,711,160 979,939 10,731,221 -
UNIVERSITY MARKETPLACE 6,369,808 - 6,369,808 -
VILLAGE CENTER 6 15,189,859 1,511,545 13,678,314 -
VILLAGE IN TRUSSVILLE 4,367,764 734,953 3,632,811 -
WATERFORD TOWNE CENTER 13,682,000 326,425 13,355,575 -
WELLEBY 8,318,429 1,054,642 7,263,787 -
WELLINGTON MARKET PLACE 15,848,206 - 15,848,206 -
WELLINGTON TOWN SQUARE 9,949,734 907,099 9,042,635 -
WEST COUNTY 6,631,603 1,160,716 5,470,887 -
WESTCHESTER PLAZA 8,959,995 621,736 8,338,259 5,600,542
WINDMILLER PLAZA PHASE I 14,737,828 737,265 14,000,563 -
WOODCROFT SHOPPING CENTER 7,023,701 639,384 6,384,317 -
WORTHINGTON PARK CENTRE 14,347,298 848,258 13,499,040 4,748,362
ARAPAHO VILLAGE 9,129,799 385,189 8,744,610 -
ARDEN SQUARE - - - -
BETHANY PARK PLACE 10,396,627 556,948 9,839,679
BLOSSOM VALLEY 18,259,729 485,999 17,773,730 -
BOULEVARD CENTER 13,517,617 447,686 13,069,931 -
BRISTOL WARNER 17,135,067 571,758 16,563,309 -
BUCKLEY SQUARE 8,141,487 278,470 7,863,017 -
CASA LINDA PLAZA 35,528,552 1,460,938 34,067,614 -
CASCADE PLAZA 18,475,663 - 18,475,663 -
CHAMPIONS FOREST 11,381,278 399,594 10,981,684 -
CHERRY PARK MARKET 18,861,601 781,399 18,080,202 -
CHEYENNE MEADOWS 9,301,509 431,938 8,869,571 -
COOPER STREET 12,799,829 499,146 12,300,683 -
COSTA VERDE 38,115,873 1,395,884 36,719,989 -
COUNTRY CLUB CALIF 14,717,057 537,025 14,180,032 -
CREEKSIDE PHASE II 1,788,217 17,037 1,771,180 -
CROSSROADS 6,108,958 118,794 5,990,164 -
DIABLO PLAZA 12,892,800 349,573 12,543,227 -
EL CAMINO 18,712,056 522,595 18,189,461 -
EL NORTE PARKWAY PLA 9,239,564 302,695 8,936,869 -
ENCINA GRANDE 15,582,593 496,383 15,086,210 -
FRIARS MISSION 33,966,516 1,248,338 32,718,178 17,453,137
FRISCO PRESTONBROOK 15,465,248 367,845 15,097,403 13,260,822
HANCOCK 33,752,500 1,188,985 32,563,515 -
HARWOOD HILLS VILLAGE 11,919,323 420,040 11,499,283 -
HAWTHORNE PLAZA - - - -
HEBRON PARK 7,263,232 - 7,263,232 -
HERITAGE LAND 12,390,000 - 12,390,000 -
HERITAGE PLAZA 23,977,643 1,135,395 22,842,248 -
HILLCREST VILLAGE 3,406,192 83,526 3,322,666 -
INGLEWOOD PLAZA 3,284,997 88,139 3,196,858 -
JAMES CENTER 19,970,389 - 19,970,389 5,595,471
KELLER TOWN CENTER - - - -
LAKE MERIDIAN 18,875,386 585,478 18,289,908 -
LEETSDALE MARKETPLACE 13,367,564 469,014 12,898,550 -
LITTLETON SQUARE 10,289,617 378,156 9,911,461 -
LLOYD KING CENTER 10,633,983 474,316 10,159,667 -
LOEHMANNS PLAZA CALIFORNIA 14,222,611 417,764 13,804,847 -
MACARTHUR PARK PHASE I 10,753,737 - 10,753,737 -
MARKET AT PRESTON FOREST 15,156,631 492,863 14,663,768 -
MARKET AT ROUND ROCK 11,720,038 454,263 11,265,775 7,166,436
MILLS POINTE 13,953,045 558,274 13,394,771 -
MOCKINGBIRD COMMON 12,890,337 458,892 12,431,445 -
MONUMENT JACKSON CREEK 9,475,633 309,046 9,166,587 -
MORNINGSIDE PLAZA 17,532,944 621,997 16,910,947 -
MURRAYHILL MARKETPLACE 18,688,992 764,161 17,924,831 8,026,284
NEWLAND CENTER 25,073,212 618,954 24,454,258 -
NORTH HILLS 23,950,786 874,016 23,076,770 8,395,474
NORTHVIEW PLAZA 10,698,995 404,387 10,294,608 -
OAKBROOK PLAZA 10,370,933 331,533 10,039,400 -
PASEO VILLAGE 10,409,699 369,153 10,040,546 3,917,989
PIMA CROSSING 30,884,030 1,155,342 29,728,688 -
PINE LAKE VILLAGE 16,878,555 485,956 16,392,599 -
PLAZA DE HACIENDA 16,090,798 551,477 15,539,321 6,509,029
PLAZA HERMOSA 13,618,418 435,598 13,182,820 -
PRESTON PARK 53,405,749 2,162,645 51,243,104 -
PRESTONWOOD PARK - - - -
REDLANDS MARKET - - - -
REDONDO VILLAGE CENTER 24,752 - 24,752 -
RIDGLEA PLAZA 14,715,717 621,794 14,093,923 -
RONA PLAZA 5,871,850 200,250 5,671,600 -
SAMMAMISH HIGHLAND 16,953,426 353,196 16,600,230 -
SAN FERNANDO VALUE SQUARE 11,213,673 - 11,213,673 -
SAN LEANDRO 9,225,417 370,718 8,854,699 -
SANTA ANA DOWTOWN 11,610,686 347,982 11,262,704 -
SEQUOIA STATION 27,019,559 820,913 26,198,646 -
SHERWOOD MARKET CENTER 19,417,514 767,550 18,649,964 -
SHILOH PHASE II 2,110,827 10,654 2,100,173 -
SOUTH POINT PLAZA 15,150,622 467,948 14,682,674 -
SOUTHCENTER 13,555,825 565,867 12,989,958 -
SOUTHPARK 12,525,711 433,470 12,092,241 -
STRAWFLOWER VILLAGE 11,364,303 345,656 11,018,647 -
STROH RANCH 11,249,279 339,149 10,910,130 -
SUNNYSIDE 205 9,954,917 411,200 9,543,717 -
TARRANT PARKWAY VILLAGE - - - -
TASSAJARA CROSSING 23,486,684 687,485 22,799,199 -
THE PROMENADE 15,401,347 607,064 14,794,283 -
THE VILLAGE 7,624,144 328,429 7,295,715 -
THOMAS LAKE 16,306,947 473,042 15,833,905 -
TWIN PEAKS 30,391,223 1,176,551 29,214,672 -
VALLEY RANCH CENTRE 13,748,804 506,816 13,241,988 -
VENTURA VILLAGE 10,674,283 292,309 10,381,974 -
WALKER CENTER 10,261,920 302,713 9,959,207 -
WEST HILLS 8,245,233 276,868 7,968,365 5,137,993
WEST PARK PLAZA 10,942,941 230,599 10,712,342 -
WESTLAKE VILLAGE CENTER 33,181,129 1,441,904 31,739,225 -
WOODMAN VAN NUYS 12,380,461 312,143 12,068,318 5,713,756
WOODSIDE CENTRAL 12,367,676 411,251 11,956,425 -
OPERATING BUILD TO SUIT PROPERTIES 41,636,833 1,147,506 40,489,327 -
-------------------------------------------------------------------------
2,561,795,627 147,053,900 2,414,741,727 321,785,439
=========================================================================
REGENCY CENTERS CORPORATION
Combined Real Estate and Accumulated Depreciation
December 31, 2000
Depreciation and amortization of the Company's investment in buildings and
improvements reflected in the statements of operation is calculated over the
estimated useful lives of the assets as follows:
Buildings and improvements up to 40 years
The aggregate cost for Federal income tax purposes was approximately
$2.3 billion at December 31, 2000.
The changes in total real estate assets for the period ended December 31, 2000,
1999 and 1998:
2000 1999 1998
---------------- ----------------- ----------------
Balance, beginning of period 2,401,953,304 1,183,184,013 799,801,367
Developed or acquired properties 219,887,989 1,215,563,938 399,305,955
Sale of properties (56,037,062) (18,330,608) (24,248,801)
Provision for loss on properties held for sale (12,995,412) - -
Reclass Accum Depr. Property held for Sale (10,147,692) - -
Improvements 19,134,500 21,535,961 8,325,492
---------------- ----------------- ----------------
Balance, end of period 2,561,795,627 2,401,953,304 1,183,184,013
================ ================= ================
The changes in accumulated depreciation for the period ended December 31, 2000,
1999 and 1998:
2000 1999 1998
---------------- ----------------- ----------------
Balance, beginning of period 104,467,176 58,983,738 40,795,801
Prior depreciation Midland JV'S Transferred i 1,662,125 - -
Sale of properties (3,800,803) (721,007) (5,121,929)
Reclass Accum Depr. Property held for Sale (10,147,692) - -
Depreciation for period 54,873,094 46,204,445 23,309,866
---------------- ----------------- ----------------
Balance, end of period 147,053,900 104,467,176 58,983,738
================ ================= ================
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 Section 607.1007, Florida
Business Corporation Act, restated Articles of Incorporation were approved at a
meeting of the directors of this corporation on October 28, 1996. The Restated
Articles of Incorporation adopted by the directors incorporate previously filed
amendments 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
Sectio 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 forty-five million (45,000,000) 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) Twenty-five million (25,000,000) 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 approved 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 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 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 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.
(r) "Special Shareholder Limit" for a Special Shareholder shall mean,
initially, 45% of the outstanding shares of Common Stock, on a fully
diluted basis, of the Corporation and after any adjustment pursuant to
Section 5.8 shall mean the percentage of the outstanding Capital Stock
as so adjusted; provided, however, that 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.
(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 Section 5.11 and
Section 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 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 Sections 5.2 and 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 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 expense 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 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.(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).
Section 5.10 Limitations on Modifications. Notwithstanding any other
provision of his 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 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. Any Transfer of shares
of Capital Stock of the Corporation to any Person (other than a Special
Shareholder) that results in the fair market value of the shares of Capital
Stock of the Corporation owned directly and indirectly by Non-U.S. Persons to
comprise 50% or more of the fair market value of the issued and outstanding
shares of Capital Stock of the Corporation (determined, until the 15%
Termination Date (as defined in the Stockholders Agreement), if any, by assuming
that the Special Shareholders are Non-U.S. Persons, and own a percentage of the
outstanding shares of Common Stock of the Corporation equal to 45%, on a fully
diluted basis), 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 the foregoing provision is determined to be void or invalid
by virtue of any legal decision, statute, rule or regulation, then the shares
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 at any time such securities result in the fair
market value of the shares of Capital Stock of the Corporation owned directly
and indirectly by Non-U.S. Persons to comprise 50% or more of the fair market
value of the issued and outstanding shares of Capital Stock of the Corporation
(determined, until the 15% Termination Date, if any, assuming that the Special
Shareholders are Non-U.S. Persons, and own a percentage of the outstanding
shares of Common Stock of the Corporation equal to 45%, on a fully diluted
basis), (ii) not be entitled to dividends with respect thereto, (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.
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.
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 Amended and Restated Articles of Incorporation,
and any right conferred upon the shareholders is subject to this reservation.
IN WITNESS WHEREOF, the undersigned President of the Corporation has
executed these Restated Articles this 1st day of November, 1996.
/s/ Martin E. Stein, Jr.
------------------------
Martin E. Stein, Jr., President
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 4, 1996
004.160941.1
7
004.160941.1
ADDENDUM TO RESTATED ARTICLES OF INCORPORATION
of
REGENCY REALTY CORPORATION
DESIGNATION OF
CLASS B NON-VOTING COMMON STOCK
$0.01 PAR VALUE
(Filed with the Florida Department of State on December 20, 1995)
Pursuant to Section 607.0602 of the
Florida Business Corporation Act
----------------
Pursuant to the authority expressly conferred upon the Board of Directors
by Section 4.4 of the Restated Articles of Incorporation of the Corporation, as
amended, in accordance with the provisions of Section 607.0602 of the Florida
Business Corporation Act, the Board of Directors, at meetings duly held on
October 23, 1995 and December 14, 1995, duly adopted the following resolution
providing for an issue of a class of the Corporation's Special Common Stock to
be designated Class B Non-Voting Common Stock, $0.01 par value. Shareholder
action was not required with respect to such designation.
"RESOLVED, that pursuant to the authority expressly granted to the
Corporation's Board of Directors by Section 4.4 of the Restated Articles of
Incorporation of the Corporation, as amended, the Board of Directors hereby
establishes a class of the Corporation's Special Common Stock, $0.01 par value
per share, and hereby fixes the designation, the number of shares and the
relative rights, preferences and limitations thereof as follows:
1. Designation. The designation of the class of Special Common Stock
created by this resolution shall be Class B Non-Voting Convertible Common Stock,
$0.01 par value (hereinafter referred to as "Class B Common Stock"), and the
number of shares constituting such class shall be two million five hundred
thousand (2,500,000) shares.
2. Dividend Rights.
(a) Subject to the rights of classes or series of Preferred
Stock now in existence or which may from time to time come into existence, the
holders of shares of Class B Common Stock shall be entitled to receive
dividends, when, as and if declared by the Board of Directors, out of any assets
legally available therefor, pari passu with any dividend (payable other than in
voting common stock of the Corporation (hereinafter referred to as the "Common
Stock")) on the Common Stock of the Corporation, in the amount per share equal
to the Class B Dividend Amount, as in effect from time to time. The initial per
share Class B Dividend Amount per annum shall be equal to $1.9369. Each calendar
quarter hereafter (or if the Original Issue Date is not on the first day of a
calendar quarter, the period beginning on the date of issuance and ending on the
last day of the calendar quarter of issuance) is referred to hereinafter as a
"Dividend Period." The amount of dividends payable with respect to each full
Dividend Period for the Class B Common Stock shall be computed by dividing the
Class B Dividend Amount by four. The amount of dividends on the Class B Common
Stock payable with respect to the initial Dividend Period, or any other period
shorter or longer than a full Dividend Period, shall be computed ratably on the
basis of the actual number of days in such Dividend Period. In the event of any
change in the quarterly cash dividend per share applicable to the Common Stock
after the date of these Articles of Amendment, the quarterly cash dividend per
share on the Class B Common Stock shall be adjusted for the same dividend period
by an amount computed by (1) multiplying the amount of the change in the Common
Stock dividend (2) times the Conversion Ratio (as defined in Section 4.(a)).
(b) In the event the Corporation shall declare a distribution
payable in (i) securities of other persons, (ii) evidences of indebtedness
issued by the Corporation or other persons, (iii) assets (excluding cash
dividends) or (iv) options or rights to purchase capital stock or evidences of
indebtedness in the Corporation or other persons, then, in each such case for
the purpose of this Section 2.(b), the holders of the Class B Common Stock shall
be entitled to a proportionate share of any such distribution as though they
were the holders of the number of shares of Common Stock of the Corporation into
which their shares of Class B Common Stock are or would be convertible (assuming
such shares of Class B Common Stock were then convertible).
3. Liquidation Preference. The holders of record of Class B Common
Stock shall not be entitled to any liquidation preference. In the event of any
liquidation, dissolution or winding up of the affairs of the Corporation,
whether voluntary or involuntary, the holders of record of Class B Common Stock
shall be treated pari passu with the holders of record of Common Stock, with
each holder of record of Class B Common Stock being entitled to receive that
amount which such holder would be entitled to receive if such holder had
converted all its Class B Common Stock into Common Stock immediately prior to
the liquidating distribution in question.
4. Conversion.
(a) Conversion Date and Conversion Ratio. Beginning on the
three-year anniversary date of the Original Issue Date thereof (the "Third
Anniversary"), the holders of shares of Class B Common Stock shall have the
right, at their option, at any time and from time to time, to convert each such
shares into 1.1901872 (hereinafter referred to as "Conversion Ratio", which
shall be subject to adjustment as hereinafter provided) shares of fully paid and
nonassessable shares of Common Stock; provided, however, that no holder of Class
B Common Stock shall be entitled to convert shares of Class B Common Stock into
Common Stock pursuant to the foregoing provision, if, as a result of such
conversion such person (x) would become the Beneficial Owner of more than 4.9%
of the Corporation's outstanding Common Stock (the "Percentage Limit"), or (y)
would acquire upon such conversion during any consecutive three-month period
more than 495,911 shares of Common Stock (the "Share Limit," which shall be
subject to adjustment as hereinafter provided). Beneficial Owner shall have the
meaning set forth in Rule 13d-3 under the Securities Exchange Act of 1934 (or
any successor provision thereto). Notwithstanding the foregoing, such conversion
right may be exercised from time to time after the Third Anniversary
irrespective of the Percentage Limit or the Share Limit (and no conversion limit
shall apply) as follows:
(A) If the holder duly exercises piggyback registration rights in
connection with an underwritten public offering pursuant to a Registration
Rights Agreement executed by the Corporation on August 25, 1995, the
holder shall be entitled to convert shares of Class B Common Stock
effective at the closing of the offering in an amount sufficient to enable
the holder to honor its sale obligations to the underwriters at such
closing, even though the amount so converted exceeds the Percentage Limit
or the Share Limit; and
(B) If (x) the holder arranges for the sale of Common Stock issuable
upon conversion of Class B Common Stock in a transaction that complies
with applicable securities laws and with the Corporation's Amended and
Restated Articles of Incorporation as then in effect which transaction
will not be effected on a securities exchange or through an established
quotation system or in the over-the-counter market, and (y) the holder
provides the Corporation with copies of written documentation relating to
the transaction sufficient to enable the Corporation to determine whether
the transaction meets the requirements of the preceding clause, the holder
shall be entitled to convert shares of Class B Common Stock effective at
the closing of the sale in an amount sufficient for the holder to effect
the transaction at such closing, even though the amount so converted
exceeds the Percentage Limit or the Share Limit.
In addition, notwithstanding the foregoing, the conversion right set forth
above may be exercised without regard to the Percentage Limit or the Share Limit
(and no conversion limit shall apply) before the Third Anniversary if one of the
following conditions has occurred:
(i) For any two consecutive fiscal quarters, the
aggregate amount outstanding as of the end of the quarter under (1) all
mortgage indebtedness of the Corporation and its consolidated entities and
(2) unsecured indebtedness of the Corporation and its consolidated
entities for money borrowed that has not been made generally subordinate
to any other indebtedness for borrowed money of the Corporation or any
consolidated entity exceeds sixty five percent (65%) of the amount arrived
at by (A) taking the Corporation's consolidated gross revenues less
property-related expenses, including real estate taxes, insurance,
maintenance and utilities, but excluding depreciation, amortization and
corporate general and administrative expenses, for the quarter in question
and the immediately preceding quarter, (B) multiplying the amount in
clause A by two (2), and (C) dividing the resulting product in clause B by
nine percent (9%) (all as such items of indebtedness, revenues and
expenses are reported in consolidated financial statements contained in
the Corporation's Form 10-Ks and Form 10-Qs as filed with the Securities
and Exchange Commission); or
(ii) In the event that (1) Martin E. Stein, Jr. has
ceased to be an executive officer of the Corporation, or (2) Bruce M.
Johnson and any one of (a) Richard E. Cook, (b) Robert C. Gillander, Jr.
or (c) James D. Thompson have ceased to be executive officers of the
Corporation, or (3) all of Richard E. Cook, Robert C. Gillander, Jr.,
and James. D. Thompson have ceased to be executive officers of the
Corporation; or
(iii) If (A) the Corporation shall be party to, or shall
have announced or entered into an agreement for, any transaction
(including, without limitation, a merger, consolidation, statutory share
exchange or sale of all or substantially all of its assets (each of the
foregoing being referred to herein as a "Transaction")), in each case as a
result of which shares of Common Stock shall have been or will be
converted into the right to receive stock, securities or other property
(including cash or any combination thereof) or which has resulted or will
result in the holders of Common Stock immediately prior to the Transaction
owning less than 50% of the Common Stock after the Transaction, or (B) a
"change of control" as defined in the next sentence occurs with respect to
the Corporation. A change of control shall mean the acquisition (including
by virtue of a merger, share exchange or other business combination) by
one stockholder or a group of stockholders acting in concert of the power
to elect a majority of the Corporation's board of directors. The
Corporation shall notify the holder of Class B Common Stock promptly if
any of the events listed in this Section 4.(a)(iii) shall occur.
Calculations set forth in Section 4.(a)(i) shall be made without regard to
unconsolidated indebtedness incurred as a joint venture partner, and the effect
of any unconsolidated joint venture, including any income from such
unconsolidated joint venture, shall be excluded for purposes of the calculation
set forth in Section 4.(a)(i).
(b) Procedure for Conversion. In order to convert shares of
Class B Common Stock into Common Stock, the holder thereof shall surrender the
certificate(s) therefor, duly endorsed if the Corporation shall so require, or
accompanied by appropriate instruments of transfer satisfactory to the
Corporation, at the office of any transfer agent for the Class B Common Stock,
or if there is no such transfer agent, at the principal offices of the
Corporation, or at such other office as may be designated by the Corporation,
together with written notice that such holder irrevocably elects to convert such
shares. Such notice shall also state the name(s) and address(es) in which such
holder wishes the certificate(s) for the shares of Common Stock issuable upon
conversion to be issued. As soon as practicable thereafter, the Corporation
shall issue and deliver at said office a certificate or certificates for the
number of shares of Common Stock issuable upon conversion of the shares of Class
B Common Stock duly surrendered for conversion, to the person(s) entitled to
receive the same. Shares of Class B Common Stock shall be deemed to have been
converted immediately prior to the close of business on the date on which the
certificates therefor and notice of election to convert the same are duly
received by the Corporation in accordance with the foregoing provisions, and the
person(s) entitled to receive the Common Stock issuable upon such conversion
shall be deemed for all purposes as record holder(s) of such Common Stock as of
the close of business on such date.
(c) No Fractional Shares. No fractional shares shall be issued
upon conversion of the Class B Common Stock into Common Stock, and the number of
shares of Common Stock to be issued shall be rounded to the nearest whole share.
Whether or not fractional shares are issuable upon such conversion shall be
determined on the basis of the total number of shares of Class B Common Stock
the holder is at the time converting into Common Stock and the number of shares
of Common Stock issuable upon such aggregate conversion.
(d )Payment of Adjusted Accrued Dividends Upon Conversion. On
the next dividend payment date (or such later date as is permitted in this
Section 4.(d) following any conversion hereunder, the Corporation shall pay in
cash Adjusted Accrued Dividends (as defined below) on shares of Class B Common
Stock so converted. The holder shall be entitled to receive accrued and unpaid
dividends accrued to and including the conversion date on the shares of Class B
Common Stock converted (assuming that such dividends accrue ratably each day
that such shares are outstanding), less an amount equal to the pre-conversion
portion of the dividends paid on the shares of Common Stock issued upon such
conversion the record date for which such Common Stock dividend occurs on or
after the conversion date but before the three-month anniversary date of the
conversion date (the "Subsequent Record Date"). The pre-conversion portion of
such Common Stock dividend means that portion of such dividend as is
attributable to the period ending on the conversion date, assuming that such
dividend accrues ratably during the period that (i) begins on the day after the
last Common Stock dividend record date occurring before such Subsequent Record
Date and (ii) ends on such Subsequent Record Date. The term "Adjusted Accrued
Dividends" means the amount arrived at through the application of the foregoing
formula. Adjusted Accrued Dividends shall not be less than zero. The formula for
Adjusted Accrued Dividends shall be applied to effectuate the Corporation's
intent that the holder converting shares of Class B Common Stock to Common Stock
shall be entitled to receive dividends on such shares of Class B Common Stock up
to and including the conversion date and shall be entitled to the dividends on
the shares of Common Stock issued upon such conversion which are deemed to
accrue beginning on the first day after the conversion date, but shall not be
entitled to dividends attributable to the same period for both the shares of
Class B Common Stock converted and the shares of Common Stock issued upon such
conversion.
The Corporation shall be entitled to withhold (to the extent
consistent with the intent to avoid double dividends for overlapping portions of
Class B Common Stock and Common Stock dividend periods) the payment of Adjusted
Accrued Dividends until the Common Stock dividend declaration date for the
applicable Subsequent Record Date, even though such date occurs after the
applicable dividend payment date with respect to the Class B Common Stock, in
which event the Corporation shall mail to each holder who converted Class B
Common Stock a check for the Adjusted Accrued Dividends thereon within five (5)
business days after such Common Stock dividend declaration date. Adjusted
Accrued Dividends shall be accompanied by an explanation of how such Adjusted
Accrued Dividends have been calculated. Adjusted Accrued Dividends shall not
bear interest.
5. Adjustments.
(a) In the event the Corporation shall at any time (i) pay a
dividend or make a distribution to holders of Common Stock in shares of Common
Stock, (ii) subdivide its outstanding shares of Common Stock into a larger
number of shares, or (iii) combine its outstanding shares of Common Stock into a
smaller number of shares, the Conversion Ratio and the Share Limit shall be
adjusted on the effective date of the dividend, distribution, subdivision or
combination by multiplying the Conversion Ratio or the Share Limit (as the case
may be) by a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding immediately prior to such dividend, distribution,
subdivision or combination and the denominator of which shall be the number of
shares of Common Stock outstanding immediately after such dividend,
distribution, subdivision or combination.
(b) Whenever the Conversion Ratio and the Share Limit shall be
adjusted as herein provided, the Corporation shall cause to be mailed by first
class mail, postage prepaid, as soon as practicable to each holder of record of
shares of Class B Common Stock a notice stating that the Conversion Ratio and
the Share Limit has been adjusted and setting forth the adjusted Conversion
Ratio and the Share Limit, together with an explanation of the calculation of
the same.
(c) If the Corporation shall be party to any Transaction in
each case as a result of which shares of Common Stock shall be converted into
the right to receive stock, securities or other property (including cash or any
combination thereof), the holder of each share of Class B Common Stock shall
have the right, after such Transaction to convert such share pursuant to the
conversion provisions hereof, into the number and kind of shares of stock or
other securities and the amount and kind of property receivable upon such
Transaction by a holder of the number of shares of Common Stock issuable upon
conversion of such share of Class B Common Stock immediately prior to such
Transaction. The Corporation shall not be party to any Transaction unless the
terms of such Transaction are consistent with the provisions of this Section
5.(c), and it shall not consent to 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
Class B Common Stock, thereby enabling the holders of the Class B Common Stock
to receive the benefits of this Section 5.(c) and the other provisions of these
Articles of Amendment. Without limiting the generality of the foregoing,
provision shall be made for adjustments in the Conversion Ratio which shall be
as nearly equivalent as may be practicable to the adjustments provided for in
Section 5.(a). The provisions of this Section 5.(c) shall similarly apply to
successive Transactions. In the event that the Corporation shall propose to
effect any Transaction which would result in an adjustment under Section 5.(c),
the Corporation shall cause to be mailed to the holders of record of Class B
Common Stock at least 20 days prior to the applicable date hereinafter specified
a notice stating the date on which such Transaction is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such Transaction. Failure to give
such notice, or any defect therein, shall not affect the legality or validity of
such Transaction.
6. Other.
(a) The Corporation shall at all times reserve and keep
available out of its authorized but unissued Common Stock the maximum number of
shares of Common Stock issuable upon the conversion of all shares of Class B
Common Stock then outstanding and if, at any time, the number of authorized but
unissued shares of Common Stock shall not be sufficient to effect the conversion
of all then outstanding shares of the Class B Common Stock, in addition to such
other remedies as shall be available to the holder of such Class B Common Stock,
the Corporation shall take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for such purposes.
(b) The Corporation shall pay any taxes that may be payable in
respect of the issuance of shares of Common Stock upon conversion of shares of
Class B Common Stock, but the Corporation shall not be required to pay any taxes
which may be payable in respect of any transfer of shares of Class B Common
Stock or any transfer involved in the issuance of shares of Common Stock in a
name other than that in which the shares of Class B Common Stock so converted
are registered, and the Corporation shall not be required to transfer any such
shares of Class B Common Stock or to issue or deliver any such shares of Common
Stock unless and until the person(s) requesting such transfer or issuance shall
have paid to the Corporation the amount of any such taxes, or shall have
established to the satisfaction of the Corporation that such taxes have been
paid.
(c) The Corporation will not, by amendment of the Articles of
Incorporation or through any reorganization, recapitalization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms to be observed or performed hereunder by the Corporation, but
will at all times in good faith assist in carrying out of all the provisions of
these Articles of Amendment and in the taking of all such action as may be
necessary or appropriate to protect the conversion rights of the holders of the
Class B Common Stock against impairment.
(d) Holders of Class B Common Stock shall be entitled to
receive copies of all communications by the Corporation to its holders of Common
Stock, concurrently with the distribution to such shareholders.
7. Voting Rights. The holders of record of Class B Common Stock
shall not be entitled to vote on any matter on which the holders of record of
Common Stock are entitled to vote, except where a separate vote of the Class B
Common Stock is required by law.
8. Reacquired Shares. Shares of Class B Common Stock converted
redeemed or otherwise purchased or acquired by the Corporation shall be
restored to the status of authorized but unissued shares of Non-Voting Common
Stock without designation as to class or series.
004.160941.1
2
004.160941.1
ARTICLES OF AMENDMENT
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 607.1001,
607.1003, 607.1004 and 607.1006, Florida Business Corporation Act, 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 27, 1997 and adopted by the
shareholders of the corporation on June 12, 1997. The only voting group entitled
to vote on the adoption of the amendment to the Articles of Incorporation
consists of the holders of the corporation's common stock. The number of votes
cast by such voting group was sufficient for approval by that voting group. The
Restated Articles of Incorporation of the Company are hereby amended as follows
(amended language is underscored):
Section 4.1 is amended to read as follows:
"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;
(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 non assessable."
Section 5.14 is hereby amended in its entirety to read as follows:
"Section 5.14 Certain Transfers to Non-U.S. Persons Void. Any
Transfer of shares of Capital Stock of the Corporation to any Person
(other than a Special Shareholder) that results in the fair market value
of the shares of Capital Stock of the Corporation owned directly and
indirectly by Non-U.S. Persons to comprise 50% or more of the fair market
value of the issued and outstanding shares of Capital Stock of the
Corporation (determined, until the 15% Termination Date (as defined in the
Stockholders Agreement), if any, by assuming that the Special Shareholders
(i) are Non-U.S. Persons and (ii) own (A) a percentage of the outstanding
shares of Common Stock of the Corporation equal to 45%, on a fully diluted
basis, and (B) a percentage of the outstanding shares of each class of
Capital Stock of the Corporation (other than Common Stock) equal to the
quotient obtained by dividing the sum of its actual ownership thereof and,
without duplication of shares included in clause (A), the shares it has a
right to acquire by the number of outstanding shares of such class
(clauses (i) and (ii) are referred to collectively as the "Presumption")
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 the foregoing provision is determined to be void or
invalid by virtue of any legal decision, statute, rule or regulation, then
the shares 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 at any time
such securities result in the fair market value of the shares of Capital
Stock of the Corporation owned directly and indirectly by Non-U.S. Persons
to comprise 50% or more of the fair market value of the issued and
outstanding shares of Capital Stock of the Corporation (determined, until
the 15% Termination Date, if any, by applying the Presumption, (ii) not be
entitled to dividends with respect thereto, (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. The Special Shareholders may, in their sole
discretion, with prior notice to and the approval of the Board of
Directors, waive in writing all or any portion of the Presumption, on such
terms and conditions as they in their sole discretion determine.
IN WITNESS WHEREOF, the undersigned Executive Vice President of this
corporation has executed these Articles of Amendment this 12th day of June,
1997.
/s/ Bruce M. Johnson
Bruce M. Johnson, Managing Director
004.160941.1
2
004.160941.1
ARTICLES OF MERGER
OF
RRC FL TWO, INC. AND REGENCY ATLANTA, INC.
WITH AND INTO
REGENCY REALTY CORPORATION
Pursuant to the provisions of Sections 607.1105 and 607.1107 of the
Florida Business Corporation Act (the "Florida Act") and Sections 14-2-1105 and
14-2-1107 of the Georgia Business Corporation Code (the "Georgia Act"), the
undersigned corporations enter into these Articles of Merger by which RRC FL
Two, Inc., a Florida corporation and Regency Atlanta, Inc., a Georgia
corporation, both of which are wholly owned subsidiaries of Regency Realty
Corporation, shall be merged with and into Regency Realty Corporation, a Florida
corporation, and Regency Realty Corporation shall be the surviving corporation,
in accordance with a Plan of Merger (the "Plan"), adopted pursuant to Section
607.1104 of the Florida Act and Section 14-2-1104 of the Georgia Act, and the
undersigned corporations hereby certify as follows:
FIRST, a copy of the Plan is attached hereto and made a part hereof.
SECOND, the merger shall become effective at the close of business on the
date on which these Articles of Merger are filed with the Department of State of
Florida and the Secretary of State of Georgia.
THIRD, pursuant to Sections 607.1101 and 607.1103 of the Florida Act, the
Plan was adopted the Board of Directors of Regency Realty Corporation on
February 3, 1998. Shareholder approval of the Plan was not required. Pursuant to
Sections 607.1101 and 607.1103 of the Florida Act, the Plan was adopted the
Board of Directors of RRC FL Two, Inc. on February 3, 1998. Shareholder approval
of the Plan was not required. Pursuant to Sections 14-2-1101 and 14-2-1103 of
the Georgia Act, the Plan was adopted by the Board of Directors of Regency
Atlanta, Inc. on February 3, 1998. Shareholder approval of the Plan was not
required.
IN WITNESS WHEREOF, these Articles of Merger have been executed by RRC
FL Two, Inc. and Regency Atlanta, Inc., as the merging corporations, and by
Regency Realty Corporation, as surviving corporation, this 16th day of February,
1998.
WITNESSES RRC FL TWO, INC., a Florida corporation
/s/ Yona C. Sharp
Yona C. Sharp By: /s/ J. Christian Leavitt
-----------------------------
J. Christian Leavitt, Vice President
121 West Forsyth Street, Suite 200
/s/ Karen R. Peterson Jacksonville, Florida 32202
- ------------------------------------
Karen R. Peterson
REGENCY ATLANTA, INC., a Georgia
corporation
/s/ Yona C. Sharp
Yona C. Sharp By: /s/ J. Christian Leavitt
-----------------------------
J. Christian Leavitt, Vice President
121 West Forsyth Street, Suite 200
/s/ Karen R. Peterson Jacksonville, Florida 32202
- ------------------------------------
Karen R. Peterson
REGENCY REALTY CORPORATION,
a Florida corporation
/s/ Yona C. Sharp
Yona C. Sharp By: /s/ J. Christian Leavitt
-----------------------------
J. Christian Leavitt, Vice President
121 West Forsyth Street, Suite 200
/s/ Karen R. Peterson Jacksonville, Florida 32202
- ------------------------------------
Karen R. Peterson
STATE OF FLORIDA
COUNTY OF DUVAL
The foregoing instrument was acknowledged before me this 16th day of
February, 1998, by J. Christian Leavitt, Vice President of RRC FL Two, Inc.
Such person did take an oath and: (notary must check applicable box)
|X| is/are personally known to me.
o produced a current Florida driver's license as identification.
o produced _______________________________ as identification.
{Notary Seal must be affixed} /s/ Yona C. Sharp
-----------------------
Signature of Notary
Yona C. Sharp
Name of Notary (Typed, Printed or Stamped)
Commission Number (if not legible on seal): CC 5798957
My Commission Expires (if not legible on seal): September 15, 2000
STATE OF FLORIDA
COUNTY OF DUVAL
The foregoing instrument was acknowledged before me this 16th day of
February, 1998, by J. Christian Leavitt, Vice President of Regency Atlanta,
Inc. Such person did take an oath and: (notary must check applicable box)
|X| is/are personally known to me.
o produced a current Florida driver's license as identification.
o produced _______________________________ as identification.
{Notary Seal must be affixed} \/s/ Yona C. Sharp
-----------------------
Signature of Notary
Yona C. Sharp
Name of Notary (Typed, Printed or Stamped)
Commission Number (if not legible on seal): CC 578957
My Commission Expires (if not legible on seal): September 15, 2000
STATE OF FLORIDA
COUNTY OF DUVAL
The foregoing instrument was acknowledged before me this 16th day of
February, 1998, by J. Christian Leavitt, Vice President of Regency Realty
Corporation. Such person did take an oath and:(notary must check applicable box)
|X| is/are personally known to me.
o produced a current Florida driver's license as identification.
o produced _______________________________ as identification.
{Notary Seal must be affixed} /s/ Yona C. Sharp
-----------------------
Signature of Notary
Yona C. Sharp
Name of Notary (Typed, Printed or Stamped)
Commission Number (if not legible on seal): CC 578957
My Commission Expires (if not legible on seal): September 15,2000
PLAN OF MERGER
This Plan of Merger (the "Plan") provides for the merger of RRC FL TWO,
INC., a Florida corporation, and REGENCY ATLANTA, INC., a Georgia corporation,
with and into REGENCY REALTY CORPORATION, a Florida corporation as follows:
1.Merger of Subsidiaries into Parent. RRC FL Two, Inc. and Regency Atlanta,
Inc. (the "Merging Corporations") are both wholly owned subsidiaries of
Regency Realty Corporation (the "Surviving Corporation"). The Merging
Corporations shall be merged with and into the Surviving Corporation,
the separate corporate existence of the Merging Corporations shall cease
and the Surviving Corporation shall be the surviving corporation.
2. Effective Date. The Merger shall become effective at the close of
business on the date on which Articles of Merger are filed with the
Florida Department of State and the Georgia Secretary of State (the
"Effective Date").
3. Cancellation of Merging Corporation Stock. Each share of common stock of the
Merging Corporations which is issued and outstanding on the Effective Date shall
be deemed retired and canceled by virtue of the Merger, automatically, without
any action on the part of the Merging Corporations or otherwise.
4. Effect of Merger. On the Effective Date, the separate existence of the
Merging Corporations shall cease, and the Surviving Corporation shall succeed to
all the rights, privileges, immunities, and franchises, and to all the property,
real, personal and mixed, of the Merging Corporations, without the necessity for
any separate transfer. The Surviving Corporation shall thereafter be responsible
and liable for all liabilities and obligations of the Merging Corporations,
including but not limited to the obligations of Regency Atlanta, Inc. as general
partner of Regency Retail Partnership, L.P., and neither the rights of creditors
nor any liens on the property of the Merging Corporations shall be impaired by
the Merger. If at any time after the Effective Date the Surviving Corporation
shall consider or be advised that any deeds, bills of sale, assignments or
assurances or any other acts or things are necessary, desirable or proper (a) to
vest, perfect or confirm, of record or otherwise, in the Surviving Corporation,
its right, title or interest in, to or under any of the rights, privileges,
powers, franchises, properties or assets of the Merging Corporations acquired or
to be acquired as a result of the Merger, or (b) otherwise to carry out the
purposes of this Plan, the Surviving Corporation and its officers and directors
or their designees shall be authorized to execute and deliver, in the name and
on behalf of the Merging Corporations, all deeds, bills of sale, assignments and
assurances, and to do, in the name and on behalf of the Merging Corporations,
all other acts and things necessary, desirable or proper to vest, perfect or
confirm the Surviving Corporation's right, title or interest in, to or under any
of the rights, privileges, powers, franchises, properties or assets of the
Merging Corporations acquired or to be acquired as a result of the Merger and
otherwise to carry out the purposes of this Plan.
5. Waiver of Notice. The Surviving Corporation, being the sole shareholder of
both of the Merging Corporations, by execution of the Articles of Merger waives
the notice requirements of Section 607.1104 of the Florida Business Corporation
Act and Section 14-2-1104 of the Georgia Business Corporation Code.
6. Abandonment. This Plan may be abandoned at any time prior to the Effective
Date by either of the Merging Corporations or the Surviving Corporation, without
further shareholder action and, if Articles of Merger have been filed with the
Department of State of Florida, the Department of State of Alabama, and the
Department of State of Georgia, by filing a Notice of Abandonment with each such
Department.
004.160941.1
2
004.160941.1
REGENCY REALTY 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 607.1001,
607.1003, 607.1004 and 607.1006, Florida Business Corporation Act, amendments to
Section 5.14 of the Articles of Incorporation, as restated on November 4, 1996,
were approved by the Board of Directors at a meeting held on December 5, 1997
and adopted by the shareholders of the corporation on May 26, 1998. The only
voting group entitled to vote on the adoption of the amendment to Section 5.14
of the Articles of Incorporation consists of the holders of the corporation's
common stock. The number of votes cast by such voting group was sufficient for
approval by that voting group. Section 5.14 of the Restated Articles of
Incorporation of the Company is hereby amended in its entirety to read as
follows:
"Section 5.14 Certain Transfers to Non-U.S. Persons Void. Any Transfer of
shares of Capital Stock of the Corporation 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 the Transfer:
1. occurs prior to the 15% 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 a Special
Shareholder who is a Non-U.S. Person) comprising five percent (5%)
or more of the fair market value of the issued and outstanding
shares of Capital Stock of the Corporation; or
2. 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 are Non-U.S. Persons) comprising
fifty percent (50%) or more of the fair market value of the issued
and outstanding shares of Capital Stock of the Corporation.
If either of the foregoing provisions is determined to be void or invalid
by virtue of any legal decision, statute, rule or regulation, then the
shares 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 at any time such securities
result 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 who are Non-U.S. Persons) or by
Non-U.S. Persons (including Special Shareholders who are Non-U.S.
Persons) comprising five percent (5%) or more or fifty percent (50%)
or more, respectively, of the fair market value of the issued and
outstanding shares of Capital Stock of the Corporation;
(ii) not be entitled to dividends with respect thereto;
(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.
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."
IN WITNESS WHEREOF, the undersigned Chairman of this corporation has
executed these Articles of Amendment this 26th day of May, 1998.
/s/ Martin E. Stein, Jr.
Martin E. Stein, Jr., Chairman and Chief Executive
Officer
004.160941.1
3
004.160941.1
ARTICLES OF MERGER
OF
REGENCY RETAIL CENTERS OF OHIO, INC.
WITH AND INTO
REGENCY REALTY CORPORATION
Pursuant to the provisions of Sections 607.1104 and 607.1105 of the Florida
Business Corporation Act (the "Florida Act"), the undersigned corporations enter
into these Articles of Merger by which Regency Retail Centers of Ohio, Inc., an
Ohio corporation shall be merged with and into Regency Realty Corporation, a
Florida corporation, and Regency Realty Corporation shall be the surviving
corporation, in accordance with an Agreement and Plan of Merger (the "Plan"),
adopted pursuant to Section 607.1104 of the Act and Section 1701.80 of the Ohio
General Corporation Law (the "Ohio Act"). The undersigned corporations hereby
certify as follows:
FIRST, a copy of the Plan is attached hereto and made a part hereof.
SECOND, the merger shall become effective at the close of business on the
date on which these Articles of Merger are filed with the Department of State of
Florida and a Certificate of Merger is filed with the Secretary of State of
Ohio.
THIRD, pursuant to Section 607.1104 of the Florida Act and Section 1701.80
of the Ohio Act, the Plan was adopted the Board of Directors of Regency Realty
Corporation, the sole shareholder of Regency Retail Centers of Ohio, Inc., on
December 15, 1998. Approval by shareholders of Regency Realty Corporation was
not required.
IN WITNESS WHEREOF, these Articles of Merger have been executed by Regency
Retail Centers of Ohio, Inc., as the merging corporation, and by Regency Realty
Corporation., as the surviving corporation, this 28th day of December, 1998.
WITNESSES REGENCY RETAIL CENTERS OF
OHIO, INC., an Ohio corporation
_________________________________ By:
J. Christian Leavitt, Vice President
121 West Forsyth Street, Suite 200
_________________________________ Jacksonville, Florida 32202
REGENCY REALTY CORPORATION., a
Florida corporation
_________________________________ By:
J. Christian Leavitt, Vice President
121 West Forsyth Street, Suite 200
__________________________________ Jacksonville, Florida 32202
STATE OF FLORIDA
COUNTY OF DUVAL
The foregoing instrument was acknowledged before me this 28th day of
December, 1998, by J. Christian Leavitt, Vice President of Regency Retail
Centers of Ohio, Inc. Such person did take an oath and: (notary must check
applicable box)
|_| is/are personally known to me.
|_| produced a current Florida driver's license as identification.
|_| produced _______________________________ as identification.
{Notary Seal must be affixed}
- ----------------------------------------------
Signature of Notary
- ----------------------------------------------
Name of Notary (Typed, Printed or Stamped)
Commission Number (if not legible on seal): __________________________
My Commission Expires (if not legible on seal): _______________________
STATE OF FLORIDA
COUNTY OF DUVAL
The foregoing instrument was acknowledged before me this 28th day of
December, 1998, by J. Christian Leavitt, Vice President of Regency Realty
Corporation Such person did take an oath and: (notary must check applicable box)
|_| is/are personally known to me.
|_| produced a current Florida driver's license as identification.
|_| produced _______________________________ as identification.
{Notary Seal must be affixed}
- ----------------------------------------------
Signature of Notary
- ----------------------------------------------
Name of Notary (Typed, Printed or Stamped)
Commission Number (if not legible on seal): __________________________
My Commission Expires (if not legible on seal): _______________________
004.160941.1
6
004.160941.1
ARTICLES OF MERGER AND PLAN OF MERGER
Merging
PACIFIC RETAIL TRUST
(a real estate investment trust formed under the laws of the State of Maryland)
with and into
REGENCY REALTY CORPORATION
(a corporation incorporated under the laws of the State of Florida)
Pursuant to Sections 607.1101 and 607.1108, Florida Statutes and Sections
3-109 and 8-501.1 of the Corporations and Associations Article of the Annotated
Code of Maryland, as amended.
Regency Realty Corporation, a corporation organized and existing under the
laws of the State of Florida ("Regency"), and Pacific Retail Trust, a real
estate investment trust formed and existing under the laws of the State of
Maryland ("Pacific Retail"), agree that Pacific Retail shall be merged with and
into Regency, the latter of which is to survive the merger, and hereby adopt the
following Articles of Merger. The terms and conditions of the merger and the
mode of carrying the same into effect are as herein set forth in these Articles
of Merger.
FIRST: The parties to these Articles of Merger are Pacific Retail, a real
estate investment trust formed and existing under the laws of the State of
Maryland, and Regency, a corporation organized and existing under the general
laws of the State of Florida. Regency was incorporated on July 9, 1993 under the
Florida Business Corporation Act (the "Florida Act") and qualified to do
business in Maryland on February 9, 1999.
SECOND: Pacific Retail shall be merged with and into Regency in accordance
with Title 8 of the Corporations and Associations Article of the Annotated Code
of Maryland (the "Maryland Code") and the Florida Act and Regency shall survive
the merger and continue under its present name (the "Surviving Entity"). At the
effective time of the merger (the "Effective Time"), the separate existence of
Pacific Retail shall cease in accordance with the provisions of the Maryland
Code. From and after the Effective Time, the Surviving Entity shall continue its
existence as a corporation under the Florida Act, shall succeed to all of the
rights, privileges, properties, real, personal and mixed, liabilities and other
assets without the necessity of any separate deed or other transfer and shall be
subject to all of the liabilities and obligations of Pacific Retail without
further action by either of the parties hereto, and will continue to be governed
by the laws of the State of Florida. If at any time after the Effective Time the
Surviving Entity shall consider or be advised that any deeds, bills of sale,
assignments or assurances or any other acts or things are necessary, desirable
or proper (a) to vest, perfect or confirm, of record or otherwise, in the
Surviving Entity, its right, title or interest in, to or under any of the
rights, privileges, powers, franchises, properties or assets of Pacific Retail
acquired or to be acquired as a result of the merger, or (b) otherwise to carry
out the purposes of these Articles, the Surviving Entity and its officers and
directors or their designees shall be authorized to execute and deliver, in the
name and on behalf of Pacific Retail, all deeds, bills of sale, assignments and
assurances, and to do, in the name and on behalf of Pacific Retail, all other
acts or things necessary, desirable or proper to vest, perfect or confirm the
Surviving Entity's right, title or interest in, to or under any of the rights,
privileges, powers, franchises, properties or assets of Pacific Retail acquired
or to be acquired as a result of the merger and otherwise to carry out the
purposes of these Articles.
THIRD: The principal office of Pacific Retail in the State of Maryland is
located at 11 East Chase Street, the City of Baltimore, Maryland. The name and
address of the registered agent of Regency is CSC - Lawyers Incorporating
Service Company, 11 East Chase Street, Baltimore, Maryland 21202 The principal
office of Regency is located at 121 W. Forsyth Street, Suite 200, Jacksonville,
Florida 32202. Neither Regency nor Pacific Retail owns any interest in land in
any county in the State of Maryland or in Baltimore City.
FOURTH: The terms and conditions of the transaction set forth in these
Articles of Merger were advised, authorized and approved by each party to these
Articles of Merger in the manner and by the vote required by Regency's articles
of incorporation and the Florida Act or Pacific Retail's declaration of trust
and the Maryland Code, as the case may be.
FIFTH: The merger was duly (a) advised by the board of directors of
Regency by the adoption of a resolution declaring that the merger set forth in
these Articles of Merger was advisable on substantially the terms and conditions
set forth in the resolution and directing that the proposed merger be submitted,
together with the board's recommendation, for consideration at a special meeting
of the shareholders of Regency and (b) approved by the shareholders of Regency
on February 26, 1999 by the vote required by its articles of incorporation and
the Florida Act. The only voting group of Regency entitled to vote on the
adoption of the Plan was the holders of Regency Common Stock. The number of
votes cast by such voting group was sufficient for approval by that group.
SIXTH: The merger was duly (a) advised by the board of trustees of Pacific
Retail by the adoption of a resolution declaring that the merger set forth in
these Articles of Merger was advisable on substantially the terms and conditions
set forth or referred to in the resolution and directing that the proposed
merger be submitted for consideration at a special meeting of the shareholders
of Pacific Retail and (b) approved by the shareholders of Pacific Retail on
February 26, 1999 by the vote required by its declaration of trust and the
Maryland Code.
SEVENTH: The total number of shares of beneficial interest of all classes
which Pacific Retail has authority to issue is 150,000,000 shares of beneficial
interest, of the par value of $.01 each, all such shares having an aggregate par
value of $1,500,000. Of such shares of beneficial interest, 142,739,448 shares
are classified as common shares ("Pacific Retail Common Stock"), 1,130,276
shares have been classified as Series A Cumulative Convertible Redeemable
Preferred Shares of Beneficial Interest ("Pacific Retail Series A Preferred
Stock"), and 6,130,276 shares have been classified as Series B Cumulative
Convertible Redeemable Preferred Shares of Beneficial Interest ("Pacific Retail
Series B Preferred Stock").
Immediately before the Effective Time, the total number of shares of stock
of all classes which Regency had authority to issue is 170,000,000 shares, of
the par value of $.01 each, all such shares having an aggregate par value of
$1,700,000. Of such 170,000,000 shares, 150,000,000 shares were classified as
common stock ("Regency Common Stock"), 10,000,000 shares were classified as
Special Common Stock (of which 2,500,000 have been classified as Class B
Non-Voting Stock) and 10,000,000 shares were classified as Preferred Stock (of
which 1,600,000 have been classified as 8.125% Series A Cumulative Redeemable
Preferred Stock). Immediately after the Effective Time, the total number of
shares of stock of all classes which Regency has authority to issue is
170,000,000 shares, of the par value of $0.01 each, all such shares having an
aggregate par value of $1,700,000. Of such 170,000,000 shares, 150,000,000
shares are classified as Regency Common Stock, 10,000,000 shares are classified
as Special Common Stock (of which 2,500,000 are classified as Class B Non-Voting
Common Stock) and 10,000,000 shares are classified as Preferred Stock (of which
542,532 shares have been classified as Series 1 Cumulative Convertible
Redeemable Preferred Stock and 1,502,532 shares have been classified as Series 2
Cumulative Convertible Redeemable Preferred Stock and 1,600,000 have been
classified as 8.125% Series A Cumulative Redeemable Preferred Stock).
EIGHTH: As of the Effective Time, by virtue of the Merger and without
any action on the part of Regency, Pacific Retail, or any holder of any of the
following securities:
(a) Cancellation of Treasury Stock and Regency-Owned Shares of Beneficial
Interest of Pacific Retail. Each share of beneficial interest of Pacific Retail
that is owned by Pacific Retail or any subsidiary of Pacific Retail or Regency
or any subsidiary of Regency shall automatically be cancelled and retired and
shall cease to exist, and no consideration shall be delivered or deliverable in
exchange therefor.
(b) Conversion of Pacific Retail Common Stock. Each issued and outstanding share
of Pacific Retail Common Stock, other than shares cancelled pursuant to
paragraph (a) of this Article or shares as to which a demand for dissenter's
rights has been duly perfected in accordance with the Maryland Code, shall be
converted into the right to receive 0.48 validly issued, fully paid, and
nonassessable shares of Regency Common Stock. The consideration to be issued to
the holders of Pacific Retail Common Stock is referred to herein as the "Common
Stock Merger Consideration." No fractional shares shall be issued as part of the
Common Stock Merger Consideration.
(c) Conversion of Pacific Retail Series A Preferred Stock. Each issued and
outstanding share of Pacific Retail Series A Preferred Stock, other than shares
cancelled pursuant to paragraph (a) of this Article or shares as to which a
demand for dissenters rights has been duly perfected in accordance with the
Maryland Code, shall be converted into the right to receive 0.48 validly issued,
fully paid and nonassessable shares of Series 1 Cumulative Convertible
Redeemable Preferred Stock of Regency ("Regency Series 1 Preferred Stock"). The
consideration to be issued to holders of Pacific Retail Series A Preferred Stock
is referred to as the "Series A Merger Consideration."
(d) Conversion of Pacific Retail Series B Preferred Stock. Each issued and
outstanding share of Pacific Retail Series B Preferred Stock, other than shares
cancelled pursuant to paragraph (a) of this Article or shares as to which a
demand for dissenters rights has been duly perfected in accordance with the
Maryland Code, shall be converted into the right to receive 0.48 validly issued,
fully paid and nonassessable shares of Series 2 Cumulative Convertible
Redeemable Preferred Stock of Regency ("Regency Series 2 Preferred Stock"). The
consideration to be issued to holders of Pacific Retail Series B Preferred Stock
is referred to as the "Series B Merger Consideration." The Common Stock Merger
Consideration, Series A Merger Consideration and Series B Merger Consideration
are referred to collectively herein as the "Merger Consideration."
(e) No Fractional Shares. Each holder of Pacific Retail Common Stock, Pacific
Retail Series A Preferred Stock or Pacific Retail Series B Preferred Stock
exchanged pursuant to the Merger who would otherwise have been entitled to
receive a fraction of a share of (i) Regency Common Stock, (ii) Regency Series A
Preferred Stock or (iii) Regency Series B Preferred Stock, as the case may be
(after taking into account all shares of Pacific Retail Common Stock, Pacific
Retail Series A Preferred Stock or Pacific Retail Series B Preferred Stock held
of record by such holder at the Effective Time), shall receive, in lieu of such
fraction of a share, cash in an amount arrived at by multiplying such fraction
times the average closing price of a share of Regency Common Stock on the New
York Stock Exchange on the ten (10) consecutive trading days ending on the fifth
day immediately preceding the Effective Time.
(f) Cancellation and Retirement of Shares of Beneficial Interest of Pacific
Retail. As of the Effective Time, all shares of beneficial interest of Pacific
Retail converted into the right to receive the applicable Merger Consideration
pursuant to this Article shall no longer be outstanding and shall automatically
be cancelled and retired and shall cease to exist, and each holder of a
certificate evidencing any such shares of beneficial interest of Pacific Retail
shall cease to have any rights with respect thereto, except the right to receive
the applicable Merger Consideration in accordance with this Article, and any
cash in lieu of fractional shares of Regency Common Stock, Regency Series 1
Preferred Stock or Regency Series 2 Preferred Stock paid in cash by Regency
based on the average of the closing price of the Regency Common Stock on the New
York Stock Exchange for the ten (10) consecutive trading days ending on the
fifth day immediately preceding the Effective Time.
(g) Conversion of Pacific Retail Stock Options. Each option granted by Pacific
Retail to purchase shares of Pacific Retail Common Stock (a "Pacific Retail
Stock Option") which is outstanding and unexercised immediately prior to the
Effective Time shall cease to represent a right to acquire such shares and shall
be converted into an option to purchase shares of Regency Common Stock (a
"Regency Stock Option") in an amount and at an exercise price determined as
provided below and otherwise subject to the terms and conditions of Regency's
Long-Term Omnibus Plan and the agreements evidencing grants thereunder but
having the same vesting, exercise, and termination dates that such Pacific
Retail Stock Options had immediately prior to the Effective Time except that
departing officers' options shall fully vest and shall terminate on the dates
set forth in agreements between the departing officers and Regency.
(i) the number of shares of Regency Common Stock to be subject to the new
Regency Stock Option will be equal to the product of (A) the number of shares of
Pacific Retail Common Stock subject to the existing Pacific Retail Stock Option
immediately prior to the Effective Time and (B) the ratio of the value per share
of Pacific Retail Common Stock immediately prior to the Effective Time to the
value per share of Regency Common Stock immediately after the Effective Time,
and
(ii) the exercise price per share of Regency Common Stock under the new Regency
Stock Option will be equal to (A) the value per share of Regency Common Stock
immediately after the Effective Time multiplied by (B) the ratio of the exercise
price per share of Pacific Retail Common Stock to the value per share of Pacific
Retail Common Stock immediately prior to the Effective Time.
NINTH: The parties hereto intend that the execution of these Articles of
Merger constitute the adoption of a "plan of reorganization" within the meaning
of Section 368 of the Internal Revenue Code of 1996, as amended.
TENTH: The merger shall be effective at 11:59 p.m. Eastern Standard Time
on February 28, 1999.
ELEVENTH: The merger may be abandoned at any time prior to the Effective
Time by either Pacific Retail or the Surviving Entity, without further
shareholder action by filing a Notice of Abandonment with each state authority
with which these Articles of Merger are filed.
TWELFTH: The Articles of Incorporation of Regency shall continue to be
the Articles of Incorporation of Regency on and after the Effective Time,
except for the following amendments:
(a) The Articles of Incorporation of Regency are hereby amended to add the
Certificate of Designations, Rights, Preferences and Limitations of Series 1
Cumulative Convertible Redeemable Preferred Stock of Regency attached hereto as
Exhibit A.
(b) The Articles of Incorporation of Regency are hereby amended to add the
Certificate of Designations, Rights, Preferences and Limitations of Series 2
Cumulative Convertible Redeemable Preferred Stock of Regency attached hereto as
Exhibit B.
(c) Article V of the Articles of Incorporation of Regency is hereby amended as
set forth in Exhibit C hereto.
IN WITNESS WHEREOF, Regency Realty Corporation, a Florida corporation, and
Pacific Retail Trust, a Maryland real estate investment trust, the entities
parties to the merger, have caused these Articles of Merger to be signed in
their respective names and on their behalf and witnessed or attested all as of
the 26th day of February, 1999. Each of the individuals signing these Articles
of Merger on behalf of Regency Realty Corporation or Pacific Retail Trust
acknowledges these Articles of Merger to be the act of such respective entity
and, as to all other matters or facts required to be verified under oath, that
to the best of his or her knowledge, information and belief, these matters are
true in all material respects and that this statement is made under the
penalties for perjury.
REGENCY REALTY CORPORATION,
a Florida corporation
By: ___________________________________
Mary Lou Rogers, President
Attest:
- -------------------------------
J. Christian Leavitt, Secretary
PACIFIC RETAIL TRUST,
a Maryland real estate investment trust
By: ___________________________________
Jane E. Mody, Managing Director and
Chief Financial Officer
Attest:
- --------------------------------
Kelli Hlavenka, Assistant Secretary
004.160941.1
16
EXHIBIT "A'
004.160941.1
ARTICLES OF AMENDMENT 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:
"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 last calendar day of March,
June, September and December, in each year, commencing on March 31, 1999;
provided, however, that if any Dividend Payment Date falls on any day other than
a Business Day, the dividend payment due on such Dividend Payment Date shall be
paid on the Business Day immediately following such Dividend Payment Date.
"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 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.
"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.
(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 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 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) 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 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 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 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.
(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.
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.
(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
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.
Section 11. Sinking Fund. The Series 1 Preferred Stock shall not be
entitled to the benefits of any retirement or sinking fund.
THIRD: The Series 1 Preferred Stock has been classified and designated
by the Board of Directors under the authority contained in Section 4.2 of the
Charter.
FOURTH: These Articles of Amendment have been approved by the Board of
Directors in the manner and by the vote required by law.
FIFTH: The undersigned President 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 President
acknowledges that to the best of her 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.
[Signature Page Follows]
IN WITNESS WHEREOF, the Corporation has caused these Articles of
Amendment to be executed under seal in its name and on its behalf by its
President and attested to by its Secretary on this 26th day of February, 1999.
REGENCY REALTY CORPORATION
By: /s/ Mary Lou Rogers
Name: Mary Lou Rogers
Title: President
[SEAL]
ATTEST:
/s/ J. Christian Leavitt
Name: J. Christian Leavitt
Title: Secretary
004.160941.1
3
EXHIBIT "B'
004.160941.1
ARTICLES OF AMENDMENT 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.
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 last calendar day of March,
June, September and December, in each year, commencing on March 31, 1999;
provided, however, that if any Dividend Payment Date falls on any day other than
a Business Day, the dividend payment due on such Dividend Payment Date shall be
paid on the Business Day immediately following such Dividend Payment Date.
"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.
"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 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 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 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 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. 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 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 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 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 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 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.
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.
The Corporation's Series 1 Cumulative Convertible Redeemable
Preferred Stock and the Corporation's 8.125% Series A Cumulative Redeemable
Preferred Stock shall constitute Parity Stock.
Section 9. Voting.
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(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 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.
(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.
THIRD: The Series 2 Preferred Stock has been classified and designated
by the Board of Directors under the authority contained in Section 4.2 of the
Charter.
FOURTH: These Articles of Amendment have been approved by the Board of
Directors in the manner and by the vote required by law.
FIFTH: The undersigned President 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 President
acknowledges that to the best of her 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.
[Signature Page Follows]
IN WITNESS WHEREOF, the Corporation has caused these Articles of
Amendment to be executed under seal in its name and on its behalf by its
President and attested to by its Secretary on this 26th day of February, 1999.
REGENCY REALTY CORPORATION
By: /s/ Mary Lou Rogers
Name: Mary Lou Rogers
Title: President
[SEAL]
ATTEST:
/s/ J. Christian Leavitt
Name: J. Christian Leavitt
Title: Secretary
EXHIBIT "C'
004.160941.1
AMENDMENT TO 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 607.1001,
607.1003, 607.1004 and 607.1006 of the Florida Business Corporation Act,
amendments to Section 5.1(r) and Section 5.14 of the Articles of Incorporation
of Regency Realty Corporation were approved by the Board of Directors at a
meeting held on September 23, 1998, and adopted by the shareholders of the
corporation on February 26, 1999.
Section 5.1(r) is hereby amended in its entirety as follows:
(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.
Section 5.14 is hereby amended in its entirety as follows:
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;
(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.
IN WITNESS WHEREOF, the undersigned President of this corporation has
executed these Articles of Amendment this 26th day of February, 1999.
/s/ Mary Lou Rogers
Mary Lou Rogers, President
004.160941.1
11
004.160941.1
ARTICLES OF AMENDMENT 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 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 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).
(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.
(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 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 may 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, 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 $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 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 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 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 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.
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.
FOURTH: The Series A Preferred Stock have 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 President 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
President 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.
[Signature Page Follows]
IN WITNESS WHEREOF, the Corporation has caused these Articles of
Amendment to be executed under seal in its name and on its behalf by its
Executive Vice President and attested to by its Secretary on this ________ day
of September, 1999
REGENCY REALTY CORPORATION
By: /s/ Bruce M. Johnson
--------------------------
Name: Bruce M. Johnson
Title: Executive Vice President
[SEAL]
ATTEST:
/s/ J. Christian Leavitt
Name: J. Christian Leavitt
Title: Secretary
Fax Audit No.
Fax Audit No. ________________________10
Fax Audit No.
Prepared by: Linda Y. Kelso (FL Bar No. 298662)
Foley & Lardner
P.O. Box 240
Jacksonville, FL 32202
Telephone No. (904)359-2000
Fax Audit No. ________________________
ARTICLES OF AMENDMENT 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
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 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.
(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 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.
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 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. (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 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 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.
FOURTH: The Series B Preferred Stock have 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.
[Signature Page Follows]
Fax Audit No. ________________________11
IN WITNESS WHEREOF, the Corporation has caused these Articles of Amendment
to be executed under seal in its name and on its behalf by its Executive Vice
President and attested to by its Secretary on this __________ day of September,
1999.
REGENCY REALTY CORPORATION
By: /s/ Bruce M. Johnson
--------------------------------
Name: Bruce M. Johnson
Title: Executive Vice President
[SEAL]
[ATTEST]
/s/ J. Christian Leavitt
Name: J. Christian Leavitt
Title: Secretary
Fax Audit No. H99000022256
Fax Audit No. H99000022256 10
Fax Audit No. H99000022256
Prepared by: Linda Y. Kelso (FL Bar No. 298662)
Foley & Lardner
P.O. Box 240
Jacksonville, FL 32202
Telephone No. (904)359-2000
Fax Audit No. H99000022256
ARTICLES OF AMENDMENT 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
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 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.
(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 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.
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 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.
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 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, 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 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.
FOURTH: The Series C Preferred Stock have 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.
[Signature Page Follows]
Fax Audit No. H99000022256 11
IN WITNESS WHEREOF, the Corporation has caused these Articles of Amendment
to be executed under seal in its name and on its behalf by its Executive Vice
President and attested to by its Secretary on this _________ day of September,
1999.
REGENCY REALTY CORPORATION
By: /s/ Bruce M. Johnson
--------------------------------
Name: Bruce M. Johnson
Title: Executive Vice President
[SEAL]
[ATTEST]
J. Christian Leavitt
Name: J. Christian Leavitt
Title: Secretary
NYDOCS03/486174 6 7
004.160941.1
NYDOCS03/486174 6
004.160941.1
ARTICLES OF AMENDMENT 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
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 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 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).
(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.
(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 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 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 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 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 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 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.
FOURTH: The Series D Preferred Stock have 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.
IN WITNESS WHEREOF, the Corporation has caused these Articles of
Amendment to be executed under seal in its name and on its behalf by its Senior
Vice President and attested to by its Secretary on this ______ day of September,
1999.
REGENCY REALTY CORPORATION
By: /s/ Robert L. Miller
Name: Robert L. Miller
Title: Sr. Vice President
[SEAL]
ATTEST:
/s/ J. Christian Leavitt
Name: J. Christian Leavitt
Title: Secretary
22
004.160941.1
ARTICLES OF AMENDMENT 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:
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 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.
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 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) and authorizing the issuance of up to 700,000 shares of 8.75% Series
E 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 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 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.
(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 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.
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 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.
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)(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 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 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, (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.
FOURTH: The Series E Preferred Stock have 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.
[Signature Page Follows]
IN WITNESS WHEREOF, the Corporation has caused these Articles of Amendment
to be executed under seal in its name and on its behalf by its Executive Vice
President and attested to by its Secretary on this day of May, 2000.
REGENCY REALTY CORPORATION
By:
Name: Bruce M. Johnson
Title: Executive Vice President
[SEAL]
[ATTEST]
Name: J. Christian Leavitt
Title: Secretary
004.160941.1
004.160941.1
2
004.160941.1
ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
AMENDING THE DESIGNATION OF THE PREFERENCES, RIGHTS
AND LIMITATIONS OF 542,532 SHARES OF
SERIES 1 CUMULATIVE CONVERTIBLE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.1003 of the Florida Business Corporation Act
("FBCA"), Regency Realty Corporation, a Florida corporation (the "Corporation"),
does hereby certify that:
The Corporation was incorporated on July 8, 1993, effective July 9,
1993, under the name Regency Realty Corporation. By resolutions duly adopted on
July 29, 1999, the Board of Directors of the Corporation has approved an
amendment ("Amendment") to the Articles of Amendment to the Charter (the
"Designation") designating the preferences, rights and limitations of 542,532
shares of Series 1 Cumulative Convertible Redeemable Preferred Stock, par value
$0.01 per share (the "Series 1 Preferred Stock"). Pursuant to Section 9(c) of
the Designation and pursuant to Sections 607.0704 and 607.1004 of the FBCA, the
Amendment was approved by the written consent of the holders of record of a
majority of the outstanding shares of the Series 1 Preferred Stock effective
August ___, 1999. The number of votes cast by such voting group was sufficient
for approval of the Amendment by such voting group. No other voting group was
entitled to vote on the Amendment.
The definition in the Designation of "Dividend Payment Date" is
hereby amended to read in full as follows:
"'Dividend Payment Date' shall mean the date on which any cash
dividend is paid on the Common Stock."
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned Chief Executive Officer of the
Corporation has executed these Articles of Amendment this _____ day of
______________, 1999.
REGENCY REALTY CORPORATION
By:
Name: Bruce M. Johnson
Title: Executive Vice President and
Managing Director
[SEAL]
004.160941.1
004.160941.1
2
004.160941.1
ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
AMENDING THE DESIGNATION OF 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 607.1003 of the Florida Business Corporation Act
("FBCA"), Regency Realty Corporation, a Florida corporation (the "Corporation"),
does hereby certify that:
The Corporation was incorporated on July 8, 1993, effective July 9,
1993, under the name Regency Realty Corporation. By resolutions duly adopted on
July 29, 1999, the Board of Directors of the Corporation has approved an
amendment ("Amendment") to the Articles of Amendment to the Charter (the
"Designation") designating the preferences, rights and limitations of 1,502,532
shares of Series 2 Cumulative Convertible Redeemable Preferred Stock, par value
$0.01 per share (the "Series 2 Preferred Stock"). Pursuant to Section 9(c) of
the Designation and pursuant to Sections 607.0704 and 607.1004 of the FBCA, the
Amendment was approved by the written consent of the holders of record of a
majority of the outstanding shares of the Series 2 Preferred Stock effective
August ___, 1999. The number of votes cast by such voting group was sufficient
for approval of the Amendment by such voting group. No other voting group was
entitled to vote on the Amendment.
The definition in the Designation of "Dividend Payment Date" is
hereby amended to read in full as follows:
"'Dividend Payment Date' shall mean the date on which any cash
dividend is paid on the Common Stock."
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned Chief Executive Officer of the
Corporation has executed these Articles of Amendment this _____ day of
______________, 1999.
REGENCY REALTY CORPORATION
By:
Name: Bruce M. Johnson
Title: Executive Vice President and
Managing Director
[SEAL]
15
ARTICLES OF AMENDMENT 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
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 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)
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
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.
(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 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 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 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 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 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.
FOURTH: The Series F Preferred Stock have 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.
(SPACE LEFT INTENTIONALLY BLANK)
IN WITNESS WHEREOF, the Corporation has caused these Articles of Amendment
to be executed under seal in its name and on its behalf by its
______________________ and attested to by its Secretary on this 8th day of
September, 2000.
REGENCY REALTY CORPORATION
By:_____________________________
Name:
Title:
[SEAL]
ATTEST:
- ----------------------------
J. Christian Leavitt
Secretary
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 day of February, 2001.
J. Christian Leavitt, Senior Vice President
CHANGE OF CONTROL AGREEMENT
THIS AGREEMENT is made as of this 1st day of June, 2000, by and between
REGENCY REALTY CORPORATION, a Florida corporation (the "Company") and
__________________ ("Employee").
WHEREAS, the Company wishes to provide inducement to Employee to remain
as an executive officer of the Company and a key employee of the Company and/or
one or more of its Affiliates (as defined below) or other entities the ownership
of which is attributable to the Company pursuant to Section 318 (including any
successor provision) of the Internal Revenue Code of 1986, as amended (the
"Code") (the Company, its Affiliates and such entities are referred to
collectively as the "Regency Entities");
WHEREAS, the parties agree that the restrictive covenants underlying
certain of Employee's obligations under this Agreement are necessary to protect
the goodwill or other business interests of the Regency Entities and that such
restrictive covenants do not impose a greater restraint than is necessary to
protect such goodwill or other business interests.
In consideration of Employee's agreement to continue as an executive
officer of the Company and as an employee of one or more of the Regency
Entities, Employee and the Company agree as follows:
1. Definitions. The following definitions shall apply:
-----------
(a) "Beneficial Owner" of securities means any securities:
----------------
(i) which such Person or any of such Person's "Affiliates" and "Associates,
as such terms are defined in Rule 12b-2 of the General Rules and
Regulations of the Securities Exchange Act of 1934 (the "Exchange
Act"), has the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding, or upon the exercise of
conversion rights, exchange rights, rights, warrants or options,
or otherwise; provided, however, that a Person shall not be
deemed the Beneficial Owner of, or to beneficially own,
securities tendered pursuant to a tender or exchange offer made by
or on behalf of such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for purchase;
or
(ii) which such Person or any of such Person's Affiliates or Associates,
directly or indirectly, has the right to vote or dispose of or has
"beneficial ownership" of (as determined pursuant to Rule 13d-3 of
the General Rules and Regulations under the Exchange Act or any
successor provision), including pursuant to any agreement,
arrangement or understanding; provided, however, that a Person shall
not be deemed the Beneficial Owner of, or to beneficially own, any
security under this subsection (ii) as a result of an agreement,
arrangement or understanding to vote security if the agreement,
arrangement or understanding arises solely from a revocable proxy or
consent given to such Person in response to a public proxy or
consent solicitation made pursuant to, and in accordance with, the
applicable rules and regulations under the Exchange Act and is not
also then reportable on a Schedule 13D under the Exchange Act (or any
comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly, by any other
Person with which such Person or any of such Person's Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting (except pursuant to a
revocable proxy as described in subsection (ii) above) or disposing
of any voting securities of the Company);
(b) "Cause" means:
(i) The willful and substantial failure or refusal of Employee to
perform duties assigned to Employee (unless Employee shall be
ill or disabled) under circumstances where Employee would not
have Good Reason to terminate Employee's employment hereunder,
which failure or refusal is not remedied by Employee within
thirty (30) days after written notice from the Chief Executive
Officer of the Company or the Board of Directors of such
failure or refusal;
(ii) A material breach of Employee's fiduciary duties to any
Regency Entity (such as obtaining secret profits from the
Regency Entity) or a violation by Employee in the course of
performing Employee's duties to any Regency Entity of any law,
rule or regulation (other than traffic violations or other
minor offenses) where such violation has resulted or is likely
to result in material harm to any Regency Entity, and in
either case where such breach or violation constituted an act
or omission performed or made willfully, in bad faith and
without a reasonable belief that such act or omission was
within the scope of Employee's employment hereunder; or
(iii) Employee's engaging in illegal conduct (other than traffic
violations or other minor offenses) which results in a
conviction (or a no contest or nolo contendere plea thereto)
which is not subject to further appeal and which is materially
injurious to the business or public image of any Regency
Entity.
(c) "Change of Control" means:
(i) Fifty percent (50%) or more of the members of the Board of
Directors of the Company:
(1) are not Continuing Directors, or
(2) whether or not they are Continuing Directors, are
nominated by or elected by the same Beneficial Owner
(for this purpose, a director of the Company shall be
deemed to be nominated or elected by the Security
Capital Entities if the director also is a director
of Security Capital Group, Inc., including any
successor);
(ii) Any individual, firm, partnership, corporation or other
entity, including any successor (by merger or otherwise) of
such entity, or a group of any of the foregoing acting in
concert (a "Person") (other than any employee benefit plan
maintained by the Company or any entity controlled by the
Company or any entity holding securities of the Company for or
pursuant to the terms of any such plan or any trustee,
administrator or fiduciary of such a plan) becomes the
Beneficial Owner of securities of the Company representing at
least twenty-five percent (25%) of the combined voting power
of the Company's then outstanding securities except:
(1) any acquisition by any Security Capital Entity or any
of its Affiliates (including the pledge to any bona
fide pledgee of securities of the Company by such
investor or its Affiliates to secure bona fide
indebtedness of such Person but excluding any
transfer to or for the benefit of the pledgee
pursuant to its rights as pledgee) which is made
while the standstill provisions of the Stockholders
Agreement are in effect and which is made in
compliance with such provisions;
(2) any acquisition by the Company;
(3) transfers between and among the Security Capital Entities and their
respective Affiliates; or
(4) any transaction or series of related transactions
directly with the Company which have been authorized
by a majority of the Continuing Directors then
serving on the Company's Board of Directors;
(iii) There shall be consummated or the shareholders shall have
approved (and the Board shall not have abandoned):
(1) any reorganization, consolidation, share exchange, or merger
(a "Business Combination") of the Company in which the Company is not
the continuing or surviving corporation or pursuant to which the
Company's common stock would be converted into cash, securities or
other property, other than a Business Combination in which the
holders of the Company's voting common stock immediately prior to
such Business Combination Beneficially Own, directly or indirectly,
more than 50% of the combined voting power of the then-
outstanding voting securities entitled to vote generally in the
election of directors of the corporation resulting from such
initial Business Combination in substantially the same proportions
as their ownership, immediately prior to such Business Combination,
of the outstanding Company voting stock, or
(2) except as provided in clause (1), any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions)
of all, or substantially all, of the assets of the Company;
(iv) The Company acquires, whether through purchase, merger or
otherwise, all or substantially all of the operating assets or
capital stock of another entity and in connection with such
acquisition persons are elected or appointed to the Board of
Directors of the Company who are not directors immediately
prior to the acquisition and such persons, even though they
may be Continuing Directors, constitute at least fifty percent
(50%) of the Board of Directors after such acquisition; or
(v) The shareholders of the Company approve any plan or proposal for the
liquidation or dissolution of the Company;
(d) "Continuing Director" means:
(i) any member of the Board of Directors of the Company who was a
member of such Board on January 1, 2000, and any successor of
a Continuing Director who is recommended to succeed a
Continuing Director by at least a majority of the Continuing
Directors then on such Board;
(ii) any individual who becomes a director subsequent to January 1,
2000, whose election or nomination for election by the
Company's shareholders was approved by a vote of at least a
majority of the directors then comprising the Continuing
Directors; and
(iii) any individual who becomes a director pursuant to Article 2 of the
Stockholders Agreement;
(e) "Good Reason" means (unless consented to in writing by the Employee):
(i) a diminution or adverse change, in the nature of Employee's
title, position, reporting relationships, authority, duties or
responsibilities (including as a type of diminution, the
Employee's occupation of the same title and/or position, but
with a privately-held company); or
(ii) a diminution in Employee's total compensation and benefits or
the formula for Employee's incentive compensation, in either
case for reasons not reasonably related to Employee's
performance; or
(iii) a diminution, without Employee's consent, in the nature of
Employee's working conditions, or
(iv) Employee shall be required to perform duties which would
necessitate relocating Employee's residence beyond a
reasonable commuting distance from the Company's offices where
Employee was based immediately prior to the Change of Control;
or
(v) a successor fails to assume this Agreement, or amends or modifies this
Agreement; or
(vi) a material breach of this Agreement by the Company or a successor
thereto; or
(vii) in the case of an Employee who is also a director, the failure of
the Employee to be nominated for re-election to the board; or
(viii) the Company or its successor giving notice that this Agreement will not
be automatically extended;
(f) "Security Capital Entities" means Security Capital Holdings S.A.
and Security Capital U.S. Realty and any Affiliates of either who are
bound by the Stockholders Agreement; and
(g) "Stockholders Agreement" means the Stockholders Agreement dated
July 10, 1996, as amended, among the Security Capital Entities and the
Company.
2. Term. The term of this Agreement shall begin on the date hereof and
end at 11:59 p.m. on December 31, 2005, and thereafter shall
automatically renew for successive additional five-year terms unless
either party delivers written notice of non-renewal within 90 days
of the end of the then current term; provided, however, that if a
Change of Control has occurred during the original or any extended term
the term of this Agreement shall extend for 24 calendar months after
the end of the calendar month in which the Change of Control
occurs.
3. Change of Control. In the event that during the term of this Agreement
the Company terminates Employee's employment without Cause or Employee
terminates Employee's employment for Good Reason, in each case within
two years following a Change of Control:
(a) Employee shall be entitled to receive a lump sum cash payment within
fifteen (15) days after the date of termination (or at Employee's
election, equal monthly installments at the end of each month for
twenty-four months, the "Termination Payment Period") equal to the
sum of (i) two times Employee's annual base salary in effect on the
date of termination or, if greater, immediately prior to the Change
of Control, and (ii) an amount in cash equal to two times Employee's
most recent annual bonus, if any, paid pursuant to the Company's
Annual Incentive for Management Plan or any successor plan ("Annual
Incentive Plan"), or if greater, two times Employee's targeted Annual
Incentive Plan bonus for the current year in which the termination
occurs.
(b) Employee shall receive fringe benefits and other employee benefits
during the Termination Payment Period (other than vacations, stock
options and profit sharing contributions but including the life,
health, and disability insurance) comparable to those that Employee was
receiving on the date of termination or immediately prior to the Change
of Control, if greater. If such benefits cannot be provided under the
Company's existing benefit plans or programs, individual coverage
will be provided at no additional charge to the Employee or the cash
equivalent thereof will be paid to the Employee.
(c) All unvested stock options and unvested dividend equivalent units
(DEU's) held by Employee, or by the Company on the Employee's behalf,
will fully vest on the date of termination of Employee. Employee shall
be entitled to exercise all unexercised stock options within the
later of ninety (90) days following termination or the expiration
date of such options as provided in each option agreement pertaining
thereto. All DEU's held by the Company on Employee's behalf will be
immediately distributed to the Employee.
(d) All unvested restricted stock held by the Company on the Employee's
behalf will fully vest on the date of termination of Employee and
be immediately distributed to Employee.
(e) All amounts held by the Company on account for Employee in the
Regency Realty Deferre Compensation Plan will be distributed to
Employee in accordance with the Employee's election under the Plan.
(f) The following provisions shall apply to any stock purchase loans owed
by Employee to the Company (the "Stock Purchase Loans"):
(i) Stock Purchase Loans will become non-recourse obligations on the date
of termination of Employee.
(ii) Stock Purchase Loans that contain forgiveness provisions based
on Employee remaining employed by any Regency Entity and/or
the satisfaction by the Company of certain performance
criteria (A) will not be due and payable upon termination of
employment, anything in the loan documents to the contrary
notwithstanding, (B) shall remain outstanding, and (C) shall
be subject to forgiveness as if Employee's employment had not
been terminated.
(iii) In the event that (A) a Stock Purchase Loan becomes due and payable
as a result of termination of employment and the settlement of the
Stock Purchase Loan results in ordinary income to Employee for federal
income tax purposes ("Loan Income"), or (B) the change in the
obligation to non-recourse results in Loan Income, the Company
shall also pay to Employee at the same time that it pays the other
amounts due hereunder (or in the case of subsequent forgiveness, at
the time of such forgiveness) an amount with respect to such Loan
Income sufficient to cover the federal income tax and any state or
local income taxes due on such Loan Income and on the cash
payment made under this subsection (iii).
(g) If any payment or benefit (including, but not by way of limitation,
benefits such as accelerated vesting and/or distributions of stock
options, dividend equivalents and restricted stock, loan forgiveness,
and the continuation of fringe and other benefits) to Employee
hereunder or any other payments received or to be received by
Employee from the Company or any successor thereto (collectively,
"Severance Benefits") (whether payable pursuant to the terms hereof
or any other plan, agreement or arrangement with the Company or any
corporation affiliated with the Company within the meaning of Section
1504 of the Code) would, in the opinion of Tax Counsel (as hereafter
defined) constitute a "parachute payment" under Section 280G of the
Code, or if it is ultimately determined by a court or pursuant to a
final determination by the Internal Revenue Service that any portion
of the Severance Benefits is subject to the tax (the "Excise Tax")
imposed by Section 4999 of the Code, then except as provided in the
last sentence of this Section 3(g), the Company shall pay to Employee
fifteen days after such determination an additional amount (the
"Gross-Up Payment") such that the net amount retained by the Employee
after deduction of (i) any Excise Tax; (ii) any federal, state or
local income tax arising in respect of imposition of such Excise Tax;
(iii) any federal, state or local income tax or Excise Tax imposed
upon the payment provided for by this Section 3(g); and (iv) any
interest charges or penalties arising as a result of filing federal,
state or local income tax returns in accordance with the opinion of Tax
Counsel described in Section 4(a), shall be equal to the Severance
Benefits. Notwithstanding the foregoing, if the amount of the Severance
Benefits does not exceed by more than ten percent (10%) the amount
that would be payable to Employee if the Severance Benefits were
reduced to one dollar less than what would constitute a "parachute
payment" under Section 280G of the Code (the "Scaled Back Amount"),
then the Severance Benefits shall be reduced to the Scaled Back
Amount, and Employee shall not be entitled to any Gross-Up Payment.
(h) For purposes of determining the amount of the payments made pursuant
to Sections 3(f)(iii) and 3(g) hereof, Employee shall be deemed to
pay federal income taxes at the highest marginal federal tax rates in
the calendar year in which such payment is made and any state or local
income taxes at the highest marginal rates applicable in the state and
locality of Employee's domicile for income tax purposes in the calendar
year in which such payment is made hereunder and assuming the maximum
available deduction from income for federal income taxes purposes of
any such state or local income taxes.
4. Procedure.
(a) For purposes of Section 3(g), within sixty (60) days after delivery
of a written notice of termination by the Employee or by the Company
pursuant to this Agreement, the Company shall obtain, at its expense,
the opinion (which need not be unqualified) of nationally recognized
tax counsel ("Tax Counsel") selected by the Company's independent
auditors, which sets forth (i) the "base amount" within the meaning of
Section 280G; (ii) the aggregate present value of the payments in the
nature of compensation to the Employee as prescribed in Section 280G(b)
(2)(A)(ii); and (iii) the amount and present value of any
"excess parachute payment" within the meaning of Section 280G(b)
(1). For purposes of such opinion, the value of any non-cash benefits
or any deferred payment or benefit shall be determined by the
Company's independent auditors in accordance with the principles of
Section 280G, which determination shall be evidenced in a certificate
of such auditors addressed to the Company and Employee. Such opinion
shall be dated as of the date of termination of Employee's
employment and addressed to the Company and the Employee and shall be
binding upon the Company and the Employee.
(b) The provisions of Section 3, including the calculations, notices
and opinions provided for herei shall be based upon the conclusive
presumption that
(i) the compensation and benefits provided for in Section 3 hereof, and
(ii) any other compensation earned prior to the Change in Control
by the Employee pursuant to the Company's compensation programs if such
payments would have been made in the future in any event, even
though the timing of such payment is triggered by the Change
of Control, is reasonable, provided, however, that in the event
such Tax Counsel so equests in connection with the opinion required
by Section 4(a), the Company shall obtain at its expense, and Tax
Counsel may rely on in providing the opinion, the advice of a firm of
recognized executive compensation consultants as to the
reasonableness of any item ofcompensation to be received by the
Employee.
5. Compensation Upon Termination. Except as provided in Section 3(g)
with respect to the Scaled Back Amount, Employee shall not be
required to mitigate the amount of any compensation or other amounts
payable to Employee hereunder pursuant to Section 3 ("Change of
Control") following the early termination of Employee's employment,
by securing other employment or otherwise, nor will such compensation
be reduced by reason of Employee securing other employment or for any
other reason.
6. Confidentiality and Non-Competition.
(a) Employee will not use or disclose any confidential information of any
Regency Entity without the Company's prior written consent,
except in furtherance of the business of the Regency Entities or except
as may be required by law. Additionally, and without limiting the
foregoing, Employee agrees not to participate in or facilitate the
dissemination to the media or any other third party (i) of any
confidential information concerning any Regency Entity or any employee
of any Regency Entity, or (ii) of any damaging or defamatory
information concerning Employee's experiences as an employee of any
Regency Entity, without the Company's prior written consent except as
may be required by law. Notwithstanding the foregoing, this paragraph
does not apply to information which is already in the public domain
through no fault of the Employee.
(b) The Company agrees not to disclose to any third party any
information concerning the terms of Employee's employment or Employee's
work-related performance or, in the event that Employee ceases to be
employed hereunder, the reasons or basis for Employee's termination of
employment, without Employee's prior written consent or except as may
be required by law.
(c) During Employee's employment and during the one-year period after
Employee ceases to be employed by any of the Regency Entities, Employee
agrees that:
(i) unless Employee's employment is terminated following a Change
of Control without Cause or for Good Reason, Employee shall
not directly or knowingly and intentionally through another
party recruit, induce, solicit or assist any other Person in
recruiting, inducing or soliciting any other employee of any
Regency Entity to leave such employment;
(ii) whether or not a Change of Control has occurred, Employee shall not
personally solicit, induce or assist any other Person in soliciting
or inducing (A) any tenant in a shopping center of any Regency
Entity that was a tenant on the date of termination of Employee's
employment (the "Termination Date") to terminate a lease, or (B) any
tenant, property owner or build-to-suit customer with whom any
Regency Entity entered into a lease, acquisition contract, business
combination contract, or development contract on the Termination
Date to terminate such lease or other contract, or (C) any prospective
tenant, property owner or prospective build-to-suit customer with
which any Regency Entity was actively conducting negotiations on the
Termination Date with respect to a lease, acquisition, business
combination or development project to cease such negotiations, unless
Employee was not aware that such negotiations were being conducted.
(d) The parties agree that any breach of this Section 6 will result
in irreparable harm to the non-breaching party which cannot be fully
compensated by monetary damages and accordingly, in the event of any
breach or threatened breach of this Section 6, the non-breaching
party shall be entitled to injunctive relief. Should any provision
of this Section 6 be determined by a court of law or equity to be
unreasonable or unenforceable, the parties agree that to the extent
it is valid and enforceable, they shall be bound by the same, the
intention of the parties being that the parties be given the
broadest protection allowed by law or equity with respect to such
provision.
(e) The provisions of Sections 6(a) and 6(b) shall survive the termination
of this Agreement.
7. Withholding. The Company shall withhold from all payments to Employee
hereunder all amounts required to be withheld under applicable local,
state or federal income tax law.
8. Dispute Resolution. Any dispute, controversy or claim between the
Company and Employee or other person arising out of or relating to this
Agreement shall be settled by arbitration conducted in the City of
Jacksonville in accordance with the Commercial Rules of the American
Arbitration Association then in force and Florida law within 30 days
after written notice from one party to the other requesting that the
matter be submitted to arbitration. The arbitration decision or award
shall be binding and final upon the parties. The arbitration award
shall be in writing and shall set forth the basis thereof. The parties
hereto shall abide by all awards rendered in such arbitration
proceedings, and all such awards may be enforced and executed upon in
any court having jurisdiction over the party against whom enforcement
of such award is sought. The Company shall bear the cost with respect
to such arbitration (including reasonable attorney's fees and expenses
incurred by Employee), provided, however, that in the event that no
award is made to Employee, the Employee will be responsible to
reimburse the Company for one-half of such costs.
9. Miscellaneous. This Agreement shall be construed and enforced in
accordance with the laws of the State of Florida (exclusive of conflict
of law principles). In the event that any provision of this Agreement
shall be invalid, illegal or unenforceable, the remainder shall not
be affected thereby. This Agreement supersedes and terminates any
prior employment agreement, change of control agreement or non-
competition agreement between the Company or Pacific Retail Trust
(to which the Company is successor by merger) and Employee. This
Agreement shall be binding upon and inure to the benefit of the
Employee and Employee's heirs and personal representatives and the
Company and its successors, assigns and legal representatives. The
Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation, or otherwise) to expressly assume
and agree to perform under this Agreement in the same manner and to
the same extent that the Company would be required to perform if no
such succession had taken place. This Agreement may not be terminated,
amended, or modified except by a written agreement executed by the
parties hereto or their respective successors and legal representatives
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
REGENCY REALTY CORPORATION
By:
Its:
"Company"
"Employee"
REGENCY REALTY CORPORATION
1993 LONG TERM OMNIBUS PLAN
iii
REGENCY REALTY CORPORATION
1993 LONG TERM OMNIBUS PLAN
Table of Contents
Page
Article I. Purpose..........................................................1
1.1 Purpose..........................................................1
1.2 Adoption.........................................................1
Article II. Definitions......................................................1
2.1 Affiliate........................................................1
2.2 Annual Retainer..................................................1
2.3 Award............................................................1
2.4 Award Agreement..................................................1
2.5 Board............................................................1
2.6 Code.............................................................1
2.7 Committee........................................................1
2.8 Company Matching Contribution....................................2
2.9 DEU Option.......................................................2
2.10 Dividend Equivalent Account......................................2
2.11 Dividend Equivalent Units........................................2
2.12 Exchange Act.....................................................2
2.13 Fair Market Value................................................2
2.14 Incentive Stock Option...........................................2
2.15 Key Employee.....................................................2
2.16 Net Dividend Rate................................................2
2.17 Non-Employee Director............................................2
2.18 Non-Qualified Stock Option.......................................3
2.19 Option...........................................................3
2.20 PRT Merger Agreement.............................................3
2.21 Participant......................................................3
2.22 Performance Award................................................3
2.23 Plan.............................................................3
2.24 Plan Year........................................................3
2.25 Quarterly Period.................................................3
2.26 Released Securities..............................................3
2.27 Restricted Stock.................................................3
2.28 Rule 16b-3.......................................................3
2.29 Share Equivalents................................................3
2.30 Shares...........................................................3
2.31 Share Value......................................................3
2.32 Stock Appreciation Rights........................................4
2.33 Stock Purchase Award.............................................4
Article III. Administration.................................................4
3.1 Committee........................................................4
3.2 Delegation of Authority..........................................4
Article IV. Shares...........................................................5
4.1 Number of Shares Available.......................................5
4.2 Shares Subject to Terminated Awards..............................5
4.3 Adjustments......................................................5
Article V. Participation....................................................6
5.1 Eligible Participants............................................6
Article VI. Stock Options and Stock Appreciation Rights......................6
6.1 Grant of Option..................................................6
6.2 Award of Dividend Equivalent Units...............................7
6.3 Stock Appreciation Rights........................................9
6.4 Compliance With Code Section 162(m)..............................9
Article VII. Restricted Stock...............................................9
7.1 Restricted Stock Awards..........................................9
Article VIII. Stock Purchase Awards.........................................10
8.1 Grant of Stock Purchase Award...................................10
Article IX. Performance Awards..............................................10
9.1 Performance Awards..............................................10
Article X. Other Share-Based Awards........................................11
10.1 Grant of Other Awards...........................................11
10.2 Terms of Other Awards...........................................12
Article XI. Non-Employee Director Awards....................................12
11.1 Automatic Grant of Non-Employee Director Option Awards..........12
11.2 Payment of Annual Retainer......................................13
Article XII. Non-Employee Director Share Purchase Rights...................14
12.1 Share Purchase Rights...........................................14
12.2 Company Matching Contribution...................................14
12.3 Deferral Election...............................................15
12.4 Termination of Participation....................................15
12.5 Registration....................................................15
Article XIII. Terms Applicable to All Awards Granted Under the Plan.........15
13.1 Award Agreement.................................................15
13.2 No Consideration for Awards.....................................16
13.3 Awards May Be Granted Separately or Together; No Limitations
on Other Awards to Non-Employee Directors.......................16
13.4 Limitations on Transfer of Awards...............................16
13.5 Term............................................................16
13.6 Taxes...........................................................16
13.7 Rights and Status of Recipients.................................17
13.8 Awards Not Includable for Benefit Purposes......................17
13.9 Share Certificates; Representation by Key Employee Participants;
Registration Requirements.......................................17
13.10 Amendments to Awards............................................17
13.11 Adjustment to Awards Upon Certain Acquisitions..................17
13.12 Correction of Defects, Omissions, and Inconsistencies...........17
Article XIV. Amendment and Termination.....................................18
14.1 Amendment.......................................................18
14.2 Termination.....................................................18
Article XV. General Provisions..............................................18
15.1 Effective Date of the Plan......................................18
15.2 Term of Plan....................................................18
15.3 Governing Law...................................................18
15.4 Unfunded Status of Plan.........................................18
15.5 Headings........................................................19
15.6 Severability....................................................19
004.132335.5
2
004.132335.5
REGENCY REALTY CORPORATION
1993 LONG TERM OMNIBUS PLAN
Article I. Purpose
1.1 Purpose. The purpose of the Regency Realty Corporation 1993 Long Term
Omnibus Plan, as amended (the "Plan"), is to assist Regency Realty Corporation
(the "Company"), together with any successor thereto, and its Affiliates, to
attract and retain highly competent individuals to serve as Key Employees and as
Non-Employee Directors who will contribute to the Company's success, and to
motivate such Non-Employee Directors and Key Employees to achieve long-term
objectives which will inure to the benefit of all shareholders of the Company.
1.2 Adoption. The Plan has been approved by the Board of Directors of the
Company subject to the approval of the Company's shareholders.
Article II. Definitions
For purposes of this Plan, capitalized terms shall have the following
meanings:
2.1 Affiliate means any entity of which shares (or other ownership interests)
having 50 percent or more of the voting power are owned or controlled, directly
or indirectly, by the Company. "Affiliate" also includes, other than for
purposes of issuance of Incentive Stock Option Awards under the Plan, Regency
Realty Group, Inc. and its wholly-owned subsidiaries.
2.2 Annual Retainer means the total amount each Non-Employee Director is
entitled to receive as annual director's fees, including fees for service as
committee member and chair, for serving as a director of the Company, and any
attendance or other director fees or payments for other services of the
Non-Employee Director to the Company or its Affiliates, at the rate in effect on
the date an Award is granted to such Non-Employee Director pursuant to Article
XI.
2.3 Award means any Non-Qualified Stock Options or Incentive Stock Options,
Stock Appreciation Rights, Restricted Stock, Stock Purchase Awards, Performance
Awards, or any other award made under the terms of the Plan (other than Shares
acquired by Non-Employee Directors pursuant to Article XII), or any Award
granted to a Non-Employee Director pursuant to Article XI.
2.4 Award Agreement means a written agreement, contract, or other instrument or
document specifically setting forth the terms and conditions of any Award
granted under the Plan.
2.5 Board means the Board of Directors of the Company.
2.6 Code means the Internal Revenue Code of 1986, as amended from time to time.
2.7 Committee means a committee of the Board designated by the Board to
administer the Plan and composed of not less than two directors.
2.8 Company Matching Contribution means the amount contributed by the Company
pursuant to Section 12.2 based on the amount of a Non-Employee Director's Total
Purchases.
2.9 DEU Option means an Option that also carries the right to receive Dividend
Equivalent Units.
2.10 Dividend Equivalent Account means an account established for a Participant
pursuant to Section 6.2 to which there are credited Dividend Equivalent Units
for any DEU Option held by the Participant.
2.11 Dividend Equivalent Units means the right to receive additional Shares,
based on dividends paid on Shares, which right may be awarded with respect to an
Option as described in Section 6.2.
2.12 Exchange Act means the Securities Exchange Act of 1934, as amended.
2.13 Fair Market Value means, with respect to any property (including, without
limitation, any Shares or other securities), the fair market value of such
property determined by such methods or procedures as shall be established from
time to time by the Committee.
2.14 Incentive Stock Option means an Option designated as an incentive stock
option as defined in Code Section 422.
2.15 Key Employee means any officer or other key employee of the Company or of
any Affiliate who is responsible for or contributes to the management, growth,
or profitability of the business of the Company or any Affiliate as determined
by the Committee. For purposes of the grant of substitute options pursuant to
the PRT Merger Agreement, each of Dennis H. Alberts, Jane E. Mody and Joshua M.
Brown shall be deemed to be a Key Employee even though such person may not be a
Key Employee of the Company or of any Affiliate. In connection with any merger,
acquisition or other business combination to which the Company or any Affiliate
is a party, the Board is authorized to designate other persons who may be deemed
Key Employees for purposes of the Plan (other than the award of Incentive Stock
Options) where such persons are key employees of another party to the business
combination (or key employees of any affiliate of such party) but do not become
employees of the Company or any Affiliate following the business combination,
provided that the Board determines that granting substitute Awards under the
Plan, in place of outstanding awards held by the recipient under one or more
plans of the predecessor employer, constitutes appropriate severance
compensation.
2.16 Net Dividend Rate means as to any dividend record date the cash dividend in
question computed on an annualized basis, divided by the exercise price of the
DEU Option, less the average annual dividend yield on the date the DEU Option
was awarded for the companies included in the Standard and Poors 500 Index (or
such other similar index selected by the Committee), as determined under
procedures established by the Committee.
2.17 Non-Employee Director means each member of the Board who is not an employee
of the Company or any Affiliate.
2.18 Non-Qualified Stock Option means an Option that is not an Incentive Stock
Option as defined by Code Section 422.
2.19 Option means any option to purchase Shares granted pursuant to the Plan,
including any reload feature which also may be awarded.
2.20 PRT Merger Agreement means the Agreement and Plan of Merger dated September
23, 1998 between the Company and Pacific Retail Trust.
2.21 Participant shall mean any Key Employee (referred to as a Key Employee
Participant) or any Non-Employee Director (referred to as a Non-Employee
Director Participant) receiving an Award under the Plan.
2.22 Performance Award means the right, granted pursuant to Article IX, to
receive an Award, payable in cash or Shares or a combination of both at the end
of a specified period for which performance goals have been established.
2.23 Plan means the Regency Realty Corporation 1993 Long Term Omnibus Plan as
set forth herein, and as the same may be amended from time to time.
2.24 Plan Year means the twelve month period ending on any December 31.
2.25 Quarterly Period means a consecutive three month period commencing on the
first day of each January, April, July and October.
2.26 Released Securities mean Shares of Restricted Stock with respect to which
all applicable restrictions have expired, lapsed, or been waived.
2.27 Restricted Stock means Shares subject to restrictions imposed in connection
with Awards granted under the Plan.
2.28 Rule 16b-3 means Rule 16b-3 as promulgated by the Securities and Exchange
Commission under Section 16 of the Exchange Act, as the same may be amended from
time to time, and any successor rule.
2.29 Share Equivalents means securities of the Company or any Affiliate which
are convertible into or exchangeable for Shares, including units of limited
partnership interest of Regency Centers, L.P. which are exchangeable for Shares,
but shall exclude Options and any Shares of special common stock of the Company
counted as Shares.
2.30 Shares mean the shares of common stock of the Company, $.01 par value per
share, and such other securities or property as may become subject to Awards
pursuant to an adjustment made under Section 4.3 of the Plan. Shares shall also
include shares of special common stock of the Company, $.01 par value per share,
except that if shares of special common stock are convertible into a different
number of shares of common stock, such shares of special common stock shall be
treated as Share Equivalents.
2.31 Share Value means the value of a Share based on the average of the closing
prices of a Share, as determined by the Committee, during the Quarterly Period.
2.32 Stock Appreciation Rights mean awards granted in accordance with Article
VI.
2.33 Stock Purchase Award means an Award, granted in accordance with Article
VIII, of the right to acquire Shares of the Company.
Article III.......Administration
3.1 Committee. The Plan will be administered by the Committee; provided,
however, that if at any time the Committee shall not be in existence, the
functions of the Committee shall be exercised by the Board. Subject to the terms
of the Plan and applicable law, the Committee shall have full power and
authority to: (i) designate Key Employees to be Participants; (ii) determine the
type or types of Awards to be granted to Key Employee Participants under the
Plan; (iii) determine the number of Shares to be covered by (or with respect to
which payments, rights, or other matters are to be calculated in connection
with) Awards granted to Key Employee Participants; (iv) determine the terms and
conditions of any Award granted to a Key Employee Participant; (v) determine
whether, to what extent, and under what circumstances Awards granted to Key
Employee Participants may be settled or exercised in cash, Shares, other
securities, other awards, or other property, or canceled, forfeited, or
suspended to the extent permitted in Sections 13.10--13.12 of the Plan, and the
method or methods by which Awards may be settled, exercised, canceled,
forfeited, or suspended; (vi) determine whether, to what extent, and under what
circumstances cash, Shares, other securities, other Awards, other property, and
other amounts payable with respect to an Award granted to Key Employee
Participants under the Plan shall be deferred either automatically or at the
election of the holder thereof; (vii) interpret and administer the Plan and any
instrument or agreement relating to, or Award made under, the Plan (including,
without limitation, any Award Agreement); (viii) establish, amend, suspend, or
waive such rules and regulations and appoint such agents as it shall deem
appropriate for the proper administration of the Plan; and (ix) make any other
determination and take any other action that the Committee deems necessary or
desirable for the administration of the Plan. Unless otherwise expressly
provided in the Plan, all designations, determinations, interpretations, and
other decisions under or with respect to the Plan or any Award shall be within
the discretion of the Committee, may be made at any time, and shall be final,
conclusive, and binding upon all persons, including the Company, any Affiliate,
any Key Employee Participant, any Non-Employee Director Participant, any holder
or beneficiary of any Award, any shareholder, and any employee of the Company or
of any Affiliate. Option Awards to Non-Employee Directors under Section 11.1 of
the Plan shall be automatic and the amount and terms of such Awards shall be
determined as provided in Article XI of the Plan.
The Committee shall solicit and consider the recommendations of the Chief
Executive Officer of the Company with regard to, among other things, the
designation of Key Employee Participants, the type of Awards to be granted under
the Plan to such Key Employee Participants and the number of Shares to be
subject thereto, and the other terms and conditions of such Awards.
3.2 Delegation of Authority. To the extent permitted by applicable law, the
Board may, in its discretion, delegate to another committee of the Board or to
one or more officers of the Company any or all of the authority and
responsibility of the Committee with respect to awards to Key Employee
Participants other than those who are subject to the provisions of Section 16 of
the Exchange Act at the time any such delegated authority or responsibility is
exercised. To the extent that the Board has delegated to such other committee or
one or more officers the authority and responsibility of the Committee, all
references to the Committee herein shall include such other committee or one or
more officers. In addition, the Committee may appoint an administrator to
administer the Non-Employee Director Share purchase program set forth in Article
XII and assist the Committee with the related recordkeeping and other
ministerial type functions.
Article IV. Shares
4.1 Number of Shares Available. The maximum number of Shares which may be issued
under the Plan is the lesser of (1) 8,520,000 Shares, or (2) 12 percent of all
Shares and Share Equivalents then outstanding, except that this 12 percent
limitation shall not invalidate any Awards made prior to a decrease in the
number of outstanding Shares or Share Equivalents even though such Awards have
resulted or may result in Shares constituting more than 12 percent of the
outstanding Shares and Share Equivalents being available for issuance under the
Plan. Shares available under the Plan which are not awarded in one particular
year may be awarded in subsequent years. Any and all Shares may be issued in
respect of any of the types of Awards. The Shares to be offered under the Plan
may be authorized and unissued Shares or treasury Shares. The number of Shares
covered by an Award under the Plan, or to which such Award relates, shall be
counted on the date of grant of such Award against the number of Shares
available for granting Awards under the Plan.
4.2 Shares Subject to Terminated Awards. The (i) Shares covered by any
unexercised portions of terminated Options, (ii) Shares forfeited as provided
under the Plan, and (iii) Shares subject to any Awards which are otherwise
surrendered by the Participant and as to which Shares no Participant has
received any payment or other benefit of ownership with respect thereto, may
again be subject to new Awards under the Plan. In the event the purchase price
of an Option is paid in whole or in part through the delivery of Shares, the
gross number of Shares issuable in connection with the exercise of the Option
shall not again be available for the grant of Awards under the Plan. Shares used
to measure the amount payable to a Participant in respect of an earned
Performance Award shall not again be available for the grant of Awards under the
Plan. Shares issued in payment of Performance Awards which are denominated in
cash amounts shall not again be available for the grant of Awards under the
Plan.
4.3 Adjustments. In the event that the Committee shall determine that any
dividend or other distribution (whether in the form of cash, Shares, other
securities, or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, or exchange of securities of the Company, or other similar corporate
transaction or event affects the Shares such that an adjustment is determined by
the Committee to be appropriate in order to prevent dilution or enlargement of
the benefits or potential benefits intended to be made available under the Plan,
then the Committee may, in such manner as it may deem equitable, adjust any or
all of (i) the number and type of Shares subject to the Plan and which
thereafter may be issued under the Plan, (ii) the number and type of Shares
subject to outstanding Awards, (iii) the grant, purchase, or exercise price with
respect to any Award, and (iv) the number and type of outstanding Dividend
Equivalent Units, or, if deemed appropriate, make provisions for a cash payment
to the holder of an outstanding Award; provided, however, in each case, that
with respect to Awards of Incentive Stock Options no such adjustment shall be
authorized to the extent that such authority would cause the Plan to violate
Section 422(b)(1) of the Code or any successor provision thereto; and provided
further, however, that the number of Shares subject to any Award payable or
denominated in Shares shall always be a whole number. Notwithstanding the
foregoing, Nonqualified Stock Option Awards subject to grant or previously
granted to Non-Employee Directors under the Plan at the time of any event
described in the preceding sentence shall be subject to only such adjustment as
shall be necessary to maintain the proportionate interest of the optionee and
preserve, without exceeding, the value of such Option Awards.
Article V. Participation
5.1 Eligible Participants. Any Key Employee, including any executive officer or
employee-director of the Company or of any Affiliate, shall be eligible to be
designated a Key Employee Participant. Key Employees who hold unexercised
options under the Pacific Retail Trust 1996 Share Incentive Plan and became
employees of the Company or any of its Affiliates as a result of the merger
shall receive substitute options pursuant to and on the terms set forth in the
PRT Merger Agreement. All Non-Employee Directors shall be Participants and
receive Awards as provided in Article XI of the Plan (the provisions of which
are automatic and non-discretionary in operation), shall have the right to
receive Options under Article VI, and shall have the right to purchase Shares
from the Company pursuant to Article XII.
Article VI. Stock Options and Stock Appreciation Rights
6.1 Grant of Option. The Committee is hereby authorized to grant Options to Key
Employee Participants as set forth below and with such additional terms and
conditions, in either case not inconsistent with the provisions of the Plan, as
the Committee shall determine. The Board is hereby authorized to grant Options
to Non-Employee Directors as set forth below with such additional terms and
conditions, in either case not inconsistent with the provisions of the Plan, as
the Board shall determine, and any reference to the Committee in this Article V
shall mean the Board with reference to any Options granted to Non-Employee
Directors under this Article V.
(a) Exercise Price. The exercise price per Share purchasable under an Option
shall be determined by the Committee at the time of grant but shall be not less
than 100% of the Fair Market Value of the Share on the date of grant of such
Option, which shall not be earlier than the date on which the Committee approves
such grant.
(b) Option Term. The term of each Option shall be fixed by the Committee,
but no Incentive Stock Option shall be exercisable more than ten years after
the date of grant.
(c) Exercisability and Method of Exercise. An Option Award may contain such
performance targets and waiting periods, and shall become exercisable in such
manner and within such period or periods and in such installments or otherwise,
as shall be determined by the Committee at the time of grant. The Committee
shall also determine the method or methods by which, and the form or forms,
including, without limitation, cash, Shares, other securities, other Awards, or
other property, or any combination thereof, having a Fair Market Value on the
exercise date equal to the relevant exercise price, in which payment of the
exercise price with respect to any Option may be made or deemed to have been
made (including payment in accordance with a cashless exercise program under
which, if so instructed by the Participant, Shares may be issued directly to the
Participant's broker or dealer upon receipt of the purchase price in cash from
the broker or dealer). No Shares shall be issued until payment, as provided
herein, therefor has been made. A Participant shall generally have the rights to
dividends or other rights of a shareholder with respect to Shares subject to the
Option when the Participant has given written notice of exercise and has paid
for such Shares as provided herein. Notwithstanding the foregoing, if payment in
full or in part has been made in the form of Restricted Stock, an equivalent
number of Shares issued on exercise of the Option shall be subject to the same
restrictions and conditions for the remainder of the Award Period applicable to
the Restricted Stock surrendered therefor. In the case of Incentive Stock
Options the right to make payment of the purchase price in the form of Shares
may be authorized only at the time of grant.
(d) Incentive Stock Options. The maximum number of Incentive Options which may
be awarded under the Plan is 8,520,000. The terms of any Incentive Stock Option
granted under the Plan shall comply in all respects with the provisions of Code
Section 422, or any successor provision thereto, and any regulations promulgated
thereunder.
(e) Reload Feature. The Committee shall have the authority to specify, at the
time of grant or, with respect to Non-qualified Stock Options, at or after the
time of grant, that a Key Employee Participant's Options, in part or in whole,
shall include a "reload feature." The reload feature is a provision which the
Committee may, but is not required to, include in any Option granted to Key
Employee Participants under this Plan to the effect that at such time as the
original Option is exercised, the optionee shall automatically be granted a new
Option pursuant hereto to purchase a number of Shares equal to the number of
Shares utilized by the optionee to pay the option exercise price on the original
option. A reload Option shall have an exercise price equal to the Fair Market
Value of the Shares on the date it is granted and shall expire on the stated
expiration date of the original Option. A reload Option shall contain such other
terms and conditions as the Committee, in its discretion, deems to be desirable.
6.2 Award of Dividend Equivalent Units. If so specified by the Committee, a
Participant who is awarded an Option under the Plan shall also receive Dividend
Equivalent Units with respect to such Option ("DEU Option"), as follows, and
each Non-Employee Director receiving an Option under Section 11.1(a) at any time
after the 1999 annual meeting shall receive Dividend Equivalent Units with
respect to such DEU Option, as follows:
(a) With respect to the number of Shares subject to a DEU Option, a notional
number of shares shall be credited to an account ("Dividend Equivalent Account")
to be established for the Participant, which account shall be unfunded and
unsecured and shall be held with the general assets of the Company. Each such
credit shall be recorded as of the first business day of the calendar quarter
immediately following each record date for a cash dividend declared on Shares
for any DEU Option which is outstanding on such record date. The notional share
amounts (such amounts, together with any amounts credited pursuant to Section
6.2(b), the "Dividend Equivalent Units") credited to the Participant's Dividend
Equivalent Account shall be the aggregate number of Shares, rounded to the
nearest whole Share, derived by (1) multiplying (x) the Net Dividend Rate by (y)
the exercise price of the DEU Option, (2) dividing the product thereof by four
(or whatever other multiplier was used in arriving at the annualized dividend
rate), (3) multiplying the resultant quotient by the number of Shares subject to
the unexercised portion of the DEU Option as of the dividend record date, and
(4) dividing the product thereof by the average closing price of a Share during
the immediately preceding calendar quarter on the principal exchange on which
the Shares are traded. For example, assume that (1) on January 1, 2000 the
Committee awards a DEU Option to a Key Employee for 1,000 Shares having an
exercise price of $25 per Share, (2) on January 1, 2000, the average annual
yield of the Standard and Poors 500 Index is 1.5%, (3) the Board declares a
quarterly dividend of $.50 for shareholders of record as of February 10, 2000,
(4) the Participant has not exercised the DEU Option as of February 10, 2000,
and (5) the average closing price for Shares on the New York Stock Exchange
during the calendar quarter ending March 31, 2000 is $26. The Net Dividend Rate
for the DEU Option is 4 times .$50 divided by $25, i.e., 8.0%, less 1.5%, or
6.5%. As of April 3, 2000, the first business day of the next calendar quarter,
there would be credited to the Participant's Dividend Equivalent Account the
number of Dividend Equivalent Units as follows: First, 6.5% times $25 divided by
4 times 1,000 Shares equals $406.25. Next, $406.25 divided by $26 equals 15.625
Shares, or 16 Dividend Equivalent Units, rounded to the nearest whole number.
(b) Dividend Equivalent Units shall be credited for each Dividend Equivalent
Unit on the same basis as on the Shares subject to the unexercised portion of
the DEU Option, except that the actual dividend rate per Share shall be used
instead of the Net Dividend Rate.
(c) Unless determined otherwise by the Committee with respect to DEU Options
awarded to Key Employees, Dividend Equivalent Units (including Dividend
Equivalent Units paid on DEU Options issued to Non-Employee Director pursuant to
Section 11.1(a)) shall be subject to the following terms and conditions:
(1) Dividend Equivalent Units shall vest in accordance with the vesting
schedule applicable to the DEU Option with respect to which the Dividend
Equivalent Unit was awarded.
(2) All Dividend Equivalent Units which are not vested upon the Participant's
date of termination of employment (or termination as a Non-Employee
Director, as the case may be) shall be forfeited.
(3) At the election of the Participant, any vested Dividend Equivalent Units
may be withdrawn from the Participant's Dividend Equivalent Account, upon
delivery of written notice to the Committee stating the number of vested
Dividend Equivalent Units being withdrawn. As promptly as practicable
after receipt of written notice of withdrawal, the Committee shall cause
one whole Share to be issued for each Dividend Equivalent Unit so
withdrawn. Any fractional Dividend Equivalent Units withdrawn from the
Participant's Dividend Equivalent Account shall be settled in cash, based
on the Fair Market Value of a Share on the date of the notice of
withdrawal. The Participant shall be deemed to have withdrawn all vested
Dividend Equivalent Units on the date of termination of employment (or
termination as a Non-Employee Director, as the case may be.
(d) The Committee shall have sole and absolute authority to award other types of
Dividend Equivalent Units to Key Employees from time to time, and the Board of
Directors shall have sole and absolute authority to award other types of
Dividend Equivalent Units to Non-Employee Directors from time to time. In
addition, the Committee shall have sole and absolute authority to revise the
procedure for determining the value of Shares, the Net Dividend Rate and the
crediting date for Dividend Equivalent Units if the Committee determines, in its
sole and absolute discretion, that such revised procedure simplifies the
administration of Dividend Equivalent Units or more fairly reflects the intent
of this Section 6.2 and the Committee determines that the impact of such
revision is not significant in terms of the amount to be credited to Dividend
Equivalent Accounts.
6.3 Stock Appreciation Rights. The Committee is hereby authorized to grant Stock
Appreciation Rights to Key Employee Participants. Stock Appreciation Rights
granted in tandem with Incentive Stock Options may only be granted
simultaneously with the grant of the related Incentive Stock Option to such
Participant. Subject to the terms of the Plan, the grant price, term, methods of
exercise, methods of settlement (including whether Stock Appreciation Rights
will be settled in cash, Shares, other securities, other Awards, or other
property, or any combination thereof), and any other terms and conditions of any
Stock Appreciation Right shall be as determined by the Committee. The Committee
may impose such conditions or restrictions on the exercise of any Stock
Appreciation Right as it may deem appropriate.
6.4 Compliance With Code Section 162(m). Notwithstanding any other provision of
the Plan, the maximum number of Options and Stock Appreciation Rights, in the
aggregate, which may be awarded to any individual Key Employee Participant
during any calendar year under the Plan is 400,000 Shares and/or Rights.
Article VII.......Restricted Stock
7.1 Restricted Stock Awards. The Committee is hereby authorized to grant Awards
of Restricted Stock to Key Employee Participants as set forth below and with
such additional terms and conditions, in either case not inconsistent with the
provisions of the Plan, as the Committee shall determine. Non-Employee Directors
shall not be eligible to be granted Restricted Stock under this Article VII.
(a) Restrictions. The Committee may grant to any Key Employee an Award of
Restricted Stock in such number, and subject to such terms and conditions
relating to forfeitability (whether based on performance standards, periods of
service or otherwise) and relating to restrictions (including, without
limitation, any limitation on the right to vote a share of Restricted Stock or
the right to receive any dividend or other right or property), which
restrictions may lapse separately or in combination at such time or times, in
such installments or otherwise, as the Committee may deem appropriate.
(b) Registration. Any Restricted Stock granted under the Plan to a Key Employee
Participant may be evidenced in such manner as the Committee may deem
appropriate, including, without limitation, book-entry registration or issuance
of a stock certificate or certificates. In the event any stock certificate is
issued in respect of Shares of Restricted Stock granted under the Plan to a Key
Employee Participant, such certificate shall be registered in the name of the
employee and shall bear an appropriate legend (as determined by the Committee)
referring to the terms, conditions, and restrictions applicable to such
Restricted Stock.
(c) Shareholder Rights. Unless otherwise provided by an Award Agreement, a Key
Employee Participant shall become a shareholder of the Company with respect to
all Shares subject to the Award Agreement and shall have all of the rights of a
shareholder, including, but not limited to, the right to vote such Shares and
the right to receive dividends (or dividend equivalents); provided, however,
that any Shares distributed as a dividend or otherwise with respect to any
Restricted Stock as to which the restrictions have not yet lapsed shall be
subject to the same restrictions, and evidenced in the same manner, as such
Restricted Stock and shall be evidenced in the same manner as such Restricted
Stock.
(d) Payment of Restricted Stock. At the end of the applicable restriction period
relating to Restricted Stock granted to a Key Employee Participant, one or more
stock certificates for the appropriate number of Shares, free of restrictions,
shall be delivered to the employee, or, if the employee received stock
certificates representing the Restricted Stock at the time of grant, the legends
placed on such certificates shall be removed.
(e) Forfeiture. Except as otherwise determined by the Committee, upon
termination of employment of a Key Employee (as determined under criteria
established by the Committee) for any reason during the applicable restriction
period, all Shares of Restricted Stock still subject to restriction shall be
forfeited by the employee and reacquired by the Company; provided, however, that
the Committee may, when it finds that a waiver would be in the interests of the
Company, waive in whole or in part any or all remaining restrictions with
respect to Shares of Restricted Stock held by a Key Employee Participant.
Article VIII......Stock Purchase Awards
8.1 Grant of Stock Purchase Award. The Committee is hereby authorized to grant
Stock Purchase Awards to Key Employee Participants as set forth below and with
such additional terms and conditions, in either case not inconsistent with the
provisions of the Plan, as the Committee shall determine. Non-Employee Directors
shall not be eligible to be granted Stock Purchase Awards under the Plan.
(a) Issuance. A Stock Purchase Award shall consist of the right to purchase
Shares of the Company and to pay for such Shares with a stock purchase loan, the
terms of which shall be as set forth in the Award Agreement and which may
include forgiveness by the Company of a portion of such indebtedness over such
time, or pursuant to such schedule, as is determined by the Committee and set
forth in such Award Agreement. The Committee may, when it finds that additional
forgiveness by the Company of indebtedness under a stock purchase loan is in the
interest of the Company, forgive any or all remaining indebtedness with respect
to Shares covered by such Award Agreement whether or not such forgiveness is
specifically provided for in such Award Agreement.
(b) Tax Loan. The Committee may also provide a "tax loan" to Key Employee
Participants equal to a percentage of any federal, state, and local taxes which
such Participant incurs as a result of the forgiveness of the loan described in
(a), above.
Article IX. Performance Awards
9.1 Performance Awards. The Committee is hereby authorized to grant Performance
Awards to Key Employee Participants as set forth below and with such additional
terms and conditions, in either case not inconsistent with the provisions of the
Plan, as the Committee shall determine. Non-Employee Directors shall not be
eligible to be granted Performance Awards under the Plan.
(a) Issuance. A Performance Award shall consist of the right to receive a
payment (measured by (i) the Fair Market Value of a specified number of Shares
at the end of the Award period or (ii) the increase in the Fair Market Value of
a specified number of Shares during the Award period or (iii) a fixed cash
amount payable at the end of the Award period) contingent upon the extent to
which certain predetermined performance targets have been met during an Award
period.
(b) Performance Targets. The performance targets may include individual
performance standards or specified levels of funds from operations, earnings per
share, return on investment, return on shareholder equity and/or such other
goals related to the performance of the Company as may be established by the
Committee in its sole discretion. The Committee, in its sole discretion, but
only under circumstances when events or transactions occur to cause the
performance targets to be an inappropriate measure of achievement as determined
by the Committee, may change the performance targets for any Award period at any
time prior to the final determination of the Award.
(c) Earning Performance Awards. The Committee at the date of grant shall
prescribe a formula to determine the percentage of the Performance Award to be
earned based upon the degree of attainment of performance targets. The degree of
attainment of performance targets shall be determined as of the last day of the
Award period. In the event the minimum performance targets established by the
Committee are not achieved, no payment shall be made to the Participant.
(d) Payment of Earned Performance Awards. Payments of earned Performance Awards
shall be made in cash or Shares (based on the Fair Market Value of a Share on
the last day of the Award period), or a combination of cash and Shares at the
sole discretion of the Committee. Payment normally will be made as soon as is
practicable following the end of an Award period; the Committee, however, may
permit deferral of the payment of all or a portion of a Performance Award
payable in cash upon the request of the Participant timely made in accordance
with rules prescribed by the Committee. Deferred amounts may generate earnings
for the Participant under the conditions of a separate agreement approved by the
Committee and executed by the Participant. The Committee, in its sole
discretion, may define in the Award Agreement such other conditions of payment
of earned Performance Awards as it may deem desirable in carrying out the
purposes of the Plan.
Article X. Other Share-Based Awards
10.1 Grant of Other Awards. Other Awards, valued in whole or in part by
reference to, or otherwise based on, Shares may be granted either alone or in
addition to or in conjunction with other Awards under the Plan by the Committee
to Key Employee Participants or by the Board to Non-Employee Directors. Subject
to the provisions of the Plan, the Committee (or the Board in the case of an
Award to a Non-Employee Director) shall have authority to determine the persons
to whom and the time or times at which such Awards shall be made, the number of
Shares to be granted pursuant to such Awards, and all other conditions of the
Awards. Any such Award shall be confirmed by an Award Agreement executed by the
Committee and the Participant, which Award Agreement shall contain such
provisions as the Committee (or the Board in the case of an Award to a
Non-Employee Director) determines to be necessary or appropriate to carry out
the intent of this Plan with respect to such Award.
10.2 Terms of Other Awards. In addition to the terms and conditions specified in
the Award Agreement, Shares issued as a bonus pursuant to this Article X shall
be issued for such consideration as the Committee (or the Board in the case of
an Award to a Non-Employee Director) shall determine, in its sole discretion,
but purchase rights shall be priced at 100% of Fair Market Value on the date of
the Award.
Article XI. Non-Employee Director Awards
11.1 Automatic Grant of Non-Employee Director Option Awards.
(a) Periodic Option Awards. Each person serving as a Non-Employee Director of
the Company on December 31, 1994, and December 31 of each succeeding year,
through and including December 31, 1998, shall, as of each such date, be granted
a Nonqualified Stock Option Award consisting of an option to purchase 1,000
Shares. Each person serving as a Non-Employee Director immediately following any
annual meeting of shareholders of the Company, beginning with the 1999 annual
meeting, and who is not initially elected to membership on the Board at the
annual meeting in question shall be granted on the date of such annual meeting a
Nonqualified Stock Option Award consisting of an option to purchase 5,000 Shares
and the right to receive Dividend Equivalent Units with respect thereto. The
exercise price for such Options shall be the greater of the Fair Market Value of
the Shares on the date of such grant or the average of the closing prices of
Shares, as determined by the Committee, on the 20 business days preceding the
date of such grant. The Dividend Equivalent Units shall have the terms and
conditions set forth in Section 6.2.
(b) Initial Option Awards. Upon initial election to membership on the Board, at
any time prior to January 1, 1999, each Non-Employee Director joining the Board
for the first time shall receive a Nonqualified Stock Option Award consisting of
an Option to purchase 2,000 Shares, with an exercise price equal to the greater
of the Fair Market Value of the Shares on the date of such grant or the average
trading price of Shares, as determined by the Committee, on the 20 business days
preceding the date of such grant. Non-Employee Directors who (1) were directors
of Pacific Retail Trust immediately prior to the effective time of the merger of
Pacific Retail Trust into the Company, (2) hold unexercised options under the
Pacific Retail Trust 1996 Share Incentive Plan, and (3) become non-employee
directors of the Company, shall receive substitute options pursuant to and on
the terms set forth in the Merger Agreement.
(c) Restrictions. A Non-Employee Director must serve continuously as a
Non-Employee Director of the Company for a period of twelve consecutive months
from the date of grant of an Option Award under this Article XI before he or she
can exercise any part of such Award. On and after the first anniversary of the
date of grant, the Non-Employee Director may exercise an Award granted under
this Article XI prior to the 1999 annual meeting of shareholders with respect to
any or all Shares covered thereby, at any time or from time to time before the
expiration of the stated term of the Award. Awards granted under this Article XI
after the 1999 annual meeting of shareholders become exercisable in 25%
increments on each anniversary date of grant, beginning with the first
anniversary date and ending on the fourth anniversary date. Each Award granted
under this Article XI shall expire ten years (10) from the date of grant.
(d) Termination.
(1) If a Non-Employee Director's service with the Company terminates by reason
of death or disability (within the meaning of Code Section 22(a)(3)) any
Option Award granted under this Article XI to such Non-Employee Director
prior to the 1999 annual meeting of shareholders may be exercised for a
period of two (2) years from the date of such termination or until the
expiration of the Award, whichever is shorter, to the extent to which the
individual would on the date of exercise have been entitled to exercise
the Award if such individual had continued to serve as a Non-Employee
Director. If a Non-Employee Director's service with the Company terminates
other than by reason of death or disability, under mutually satisfactory
conditions, any such Award held by such Non-Employee Director may be
exercised for a period of two (2) years from the date of such termination,
or until the expiration of the stated term of the Award, whichever is
shorter, to the extent to which the individual would on the date of
exercise have been entitled to exercise the Award if such individual had
continued to serve as a Non-Employee Director.
(2) If a Non Employee Director's service with the Company terminates by reason
of death, disability (within the meaning of Code Section 22(a)(3)) or
involuntary termination for any other reason, any Option Award granted
under this Article XI to such Non-Employee Director after the 1999 annual
meeting shall vest in full upon the date of termination and may be
exercised for a period of two (2) years from the date of such termination,
or until expiration of the Award, whichever is shorter.
(e) Other Provisions. All applicable provisions of the Plan not
inconsistent with this Section 11.1 shall apply to Option Awards granted to
Non-Employee Directors.
11.2 Payment of Annual Retainer.
(a) Payment in Shares. During the term of this Plan, each Non-Employee Director
shall receive his or her Annual Retainer, in the form of quarterly payments in
arrears, in the form of Shares, unless the Non-Employee Director elects to
receive such payment in cash in accordance with paragraph (b), below. The total
number of Shares to be issued to a Non-Employee Director pursuant to this
Section 11.2 shall be determined by dividing the dollar amount of the Annual
Retainer due for the payment period (which shall be prorated in the event that
the Non-Employee Director serves for less than a full quarter based on the
number of days of service) by the average of the closing prices of Shares, as
determined by the Committee, during the quarter constituting the payment period.
In no event shall the Company be required to issue fractional Shares. Whenever
under the terms of this Section the issuance of a fractional Share would
otherwise be required, an amount in lieu thereof shall be paid in cash based
upon the Fair Market Value of such fractional share. The Shares issuable to
Non-Employee Directors hereunder shall be issued and any remaining cash portion
of the Annual Retainer shall be paid on the first business day immediately
following the payment period. Shares issued pursuant to this Section 11.2 shall
not be transferable unless registered under the Securities Act of 1933, as
amended, or in the opinion of counsel to the Company, such registration is not
required.
(b) Optional Payment in Cash. Non-Employee Directors who would otherwise receive
payment of their Annual Retainer in Shares may make a written election prior to
the payment date, in the manner and form prescribed for this purpose by the
Committee, to receive payment in cash.
Article XII.......Non-Employee Director Share Purchase Rights
12.1 Share Purchase Rights.
(a) Annual Purchases. Each Plan Year each Non-Employee Director shall have the
right to purchase from the Company such number of Shares whose aggregate Share
Value does not exceed $20,000. Subject to the limitations in the Plan,
Non-Employee Directors may exercise their rights to purchase Shares each
Quarterly Period by completing an application on a form prescribed by the
Committee. The application must be submitted to the Committee by the last
business day of a Quarterly Period and accompanied by payment in full in cash or
its equivalent for the aggregate Share Value of Shares to be purchased (the
"Purchase Price"). The number of Shares to be purchased will be determined by
dividing the Purchase Price by the Share Value of a Share for the Quarterly
Period. The Committee shall establish and maintain a separate account
("Account") for each participating Non-Employee Director. The number of Shares
purchased during the Quarterly Period will be credited to the Non-Employee
Directors' Accounts. No interest will be paid on funds held by the Committee
pending determination of the number of Shares to be purchased during a Quarterly
Period.
(b) Cash Dividends. All cash dividends paid by the Company on Shares held in a
Non-Employee Director's Account will be paid in cash, unless the Non-Employee
Director elects to have any such cash dividends automatically reinvested in
additional Shares and credited to his account. The election shall be made in
writing in accordance with such rules and procedures as the Committee may
determine.
(c) Shareholder Rights. A Non-Employee Director will become a shareholder with
respect to all Shares credited to his Account and shall have all of the rights
of a shareholder, including but not limited to the right to vote Shares and the
right to receive dividends.
12.2 Company Matching Contribution.
(a) Amount of Match. The Company will contribute to a Non-Employee Director's
Account a Company Matching Contribution equal to up to 50% of the amount of the
Non-Employee Director's Total Purchases (as defined below) during a Quarterly
Period, subject to a maximum Company Matching Contribution of $10,000 per Plan
Year. The Company Matching Contribution shall be paid to the Committee within
ten (10) business days following the end of the applicable Quarterly Period,
subject to deferral pursuant to Section 12.3. The number of Shares credited to a
Non-Employee Director's Account will equal the amount of the Company Matching
Contribution divided by the Share Value of a Share for the Quarterly Period.
(b) Total Purchases. A Non-Employee Director's Total Purchases during a
Quarterly Period shall equal the sum of the aggregate Share Value of Director
Shares purchased by the Non-Employee Director from the Company during the
Quarterly Period pursuant to Section 12.1(a), the dollar amount of any Shares
purchased by the Non-Employee Director under the Company's dividend reinvestment
plan (including purchases with optional cash payments) during the Quarterly
Period, and the dollar amount of any Shares purchased by the Non-Employee
Director in the open market during the Quarterly Period, as evidenced by
confirmation slips or other similar documentation provided to the Committee.
12.3 Deferral Election.
(a) Deferral. Each Non-Employee Director may elect to defer receiving all or any
portion of the Company Matching Contribution or the Annual Retainer that would
otherwise be paid in Shares pursuant to Section 11.2. A deferral election shall
be effective on the ____ day of the month that is coincident with or following
the date the election is delivered. A deferral election must be in writing and
delivered to the Committee.
(b) Stock Deferral Plan. All Shares deferred pursuant to Section 12.3(a)
shall be deferred into and subject to all of the terms and conditions of the
Company's Stock Deferral Plan.
12.4 Termination of Participation.
(a) Voluntary. A participating Non-Employee Director may terminate his Account
at any time by completing a form authorized by the Committee and delivering it
to the Committee. Promptly after receipt of the form, the Committee will
transfer all certificates representing full Shares in the Non-Employee
Director's Account to the Non-Employee Director and sell any fractional Shares
at the current market price. The Committee will remit the proceeds from the sale
of the fractional Shares less applicable brokerage fees to the Non-Employee
Director within a reasonable period of time thereafter. No interest will be
earned on the Account while it is awaiting payment.
(b) Termination of Director Status. Upon termination as a Non-Employee Director
of the Company for any reason, the Non-Employee Director's participation in the
Plan will cease. The former Non-Employee Director may either request the sale of
all Shares in his Account at current market price or the transfer of all
certificates representing full Shares in the Account to the former Non-Employer
Director. A former Non-Employee Director who directs the Committee to sell
Shares will be charged for the fees, commissions and other expenses incurred by
the Committee in connection with the sale. No interest will be paid on the
Account while it is awaiting payment.
12.5 Registration. Shares issued pursuant to this Article XII shall not be
transferrable unless registered under the Securities Act of 1933, as amended, or
in the opinion of counsel to the Company, such registration is not required.
Article XIII......Terms Applicable to All Awards Granted Under the Plan
13.1 Award Agreement. No person shall have any rights under any Award granted
under the Plan unless and until the Company and the Participant to whom such
Award shall have been granted shall have executed and delivered an Award
Agreement or received any other Award acknowledgment authorized by the Committee
expressly granting the Award to such person and containing provisions setting
forth the terms of the Award. If there is any conflict between the provisions of
an Award Agreement and the terms of the Plan, the terms of the Plan shall
control.
13.2 No Consideration for Awards. Awards shall be granted to Key Employee
Participants for no cash consideration unless otherwise determined by the
Committee. Non-Employee Director Awards under Article XI shall be granted for no
cash consideration unless otherwise required by law.
13.3 Awards May Be Granted Separately or Together; No Limitations on Other
Awards to Non-Employee Directors. Subject to the limitations of Section 6.2,
regarding Stock Appreciation Rights, Awards to Key Employee Participants under
the Plan may be granted either alone or in addition to, in tandem with, or in
substitution for any other Award or any award granted under any other plan of
the Company or any Affiliate and the terms and conditions of an Award need not
be the same with respect to each such Participant. Awards granted in addition to
or in tandem with other Awards, or in addition to or in tandem with awards
granted under any other plan of the Company or any Affiliate may be granted
either at the same time as or at a different time from the grant of such other
Awards or awards. Grants to the Non-Employee Directors pursuant to the Plan
shall not limit the rights of such Non-Employee Directors to receive awards or
other benefits provided under other plans of the Company or of any Affiliate.
13.4 Limitations on Transfer of Awards. Awards granted under the Plan shall not
be transferable other than by will or the laws of descent and distribution,
except that a Key Employee Participant or Non-Employee Director Participant may,
to the extent allowed by the Committee and in a manner specified by the
Committee, (a) designate in writing a beneficiary to exercise the Award after
the Key Employee Participant's or Non-Employee Director Participant's death, as
the case may be, and (b) transfer any award. No Award (other than Released
Securities), and no right under any such Award, may be pledged, alienated,
attached, or otherwise encumbered, and any purported pledge, alienation,
attachment, or encumbrance thereof shall be void and unenforceable against the
Company or any Affiliate.
13.5 Term. Except as otherwise provided in the Plan, the term of each Award
shall be for such period as may be determined by the Committee.
13.6 Taxes. The Company shall be entitled, if the Committee deems it necessary
or desirable, to withhold (or secure payment from the Participant in lieu of
withholding) the amount of any withholding or other tax required by law to be
withheld or paid by the Company with respect to any amount payable and/or Shares
issuable to such Participant under the Plan, or with respect to any income
recognized upon the lapse of restrictions applicable to an Award or upon a
disqualifying disposition of Shares received pursuant to the exercise of an
Incentive Stock Option, and the Company may defer payment or issuance of the
cash or Shares upon the grant, exercise or vesting of an Award unless
indemnified to its satisfaction against any liability for any such tax. The
amount of such withholding or tax payment shall be determined by the Committee
and shall be payable by the Participant at such time as the Committee
determines. The Committee may prescribe in each Award Agreement one or more
methods by which the Participant will be permitted to satisfy his or her tax
withholding obligation, which methods may include, without limitation, the
payment of cash by the Participant to the Company and the withholding from the
Award, at the appropriate time, of a number of Shares sufficient, based upon the
Fair Market Value of such Shares, to satisfy such tax withholding requirements.
The Committee shall be authorized, in its sole discretion, to establish such
rules and procedures relating to any such withholding methods as it deems
necessary or appropriate.
13.7 Rights and Status of Recipients. No Employee, Participant (other than a
Non-Employee Director Participant as provided in Article XI), or other person
shall have any claim or right to be granted an Award under this Plan. Neither
the Plan nor any action taken hereunder shall be construed as giving any
employee any right to be retained in the employ of the Company or any Affiliate.
The grant of an Award to a Non-Employee Director pursuant to Article XI of the
Plan shall confer no right on such Non-Employee Director to continue as a
director of the Company.
13.8 Awards Not Includable for Benefit Purposes. Income recognized by a
Participant pursuant to the provisions of the Plan shall not be included in the
determination of benefits under any employee pension benefit plan (as such term
is defined in Section 3(2) of the Employee Retirement Income Security Act of
1974, as amended) or group insurance or other benefit plans applicable to the
Participant which are maintained by the Company, except as may be provided under
the terms of such plans or determined by resolution of the Board.
13.9 Share Certificates; Representation by Key Employee Participants;
Registration Requirements. In addition to the restrictions imposed pursuant to
Article VII hereof, all certificates for Shares delivered under the Plan,
whether pursuant to any Award or the exercise thereof or otherwise, shall be
subject to such stop transfer orders and other restrictions as the Committee may
deem advisable under the Plan or the rules, regulations, and other requirements
of the Securities Exchange Commission, any stock exchange or other market upon
which such Shares are then listed or traded, and any applicable federal or state
securities laws, and the Committee may cause a legend or legends to be put on
any such certificates to make appropriate reference to such restrictions. The
Committee may require each Key Employee Participant or other person who acquires
Shares under the Plan by means of an Award originally made to a Key Employee
Participant to represent to the Company in writing that such Key Employee
Participant or other person is acquiring the Shares without a view to the
distribution thereof.
13.10 Amendments to Awards. The Committee may, in whole or in part, waive any
conditions or other restrictions with respect to, and may amend, alter, suspend,
discontinue, or terminate any Award granted under the Plan to a Key Employee
Participant, prospectively or retroactively, but no such action shall impair the
rights of any Key Employee Participant without his or her consent except as
provided in Sections 4.3, 9.1(b), and 13.11.
13.11 Adjustment to Awards Upon Certain Acquisitions. In addition to and not in
lieu of the authority granted the Committee under Section 4.3 hereof, in the
event the Company or any Affiliate shall assume outstanding employee awards or
the right or obligation to make future awards in connection with the acquisition
of another business or another corporation or business entity, the Committee may
make such adjustments, not inconsistent with the terms of the Plan, in the terms
of Awards granted to Key Employee Participants as it shall deem appropriate in
order to achieve reasonable comparability or other equitable relationship
between the assumed awards and the Awards granted under the Plan granted to Key
Employees as so adjusted.
13.12 Correction of Defects, Omissions, and Inconsistencies. The Committee may
correct any defect, supply any omission, or reconcile any inconsistency in any
Award or Award Agreement in the manner and to the extent it shall deem desirable
to carry the Plan into effect.
Article XIV.......Amendment and Termination
14.1 Amendment. The Board may amend, alter, suspend, discontinue, or terminate
the Plan or any part thereof at any time it is deemed necessary or appropriate;
provided, however, that no amendment, alteration, suspension, discontinuation or
termination of the Plan shall in any manner (except as otherwise provided in
this Article XIV) adversely affect any Award granted and then outstanding under
the Plan, without the consent of the respective Key Employee or Non-Employee
Director Participant, as the case may be; and provided, further, that
shareholder approval of any amendment of the Plan shall also be obtained if
otherwise required by (i) the Code or any rules promulgated thereunder (in order
to allow for Incentive Stock Options to be granted under the Plan or to enable
the Company to comply with the provisions of Section 162(m) of the Code so that
the Company can deduct compensation in excess of the limitation set forth
therein), or (ii) the listing requirements of the principal securities exchange
or market on which the Shares are then traded (in order to maintain the listing
or quotation of the Shares thereon).
14.2 Termination. The Board shall have the right and the power to terminate the
Plan at any time. No Award shall be granted under the Plan after the termination
of the Plan, but the termination of the Plan shall not have any other effect and
any Award outstanding at the time of the termination of the Plan may be
exercised after termination of the Plan at any time prior to the expiration date
of such Award to the same extent such Award would have been exercisable had the
Plan not terminated.
Article XV. General Provisions
15.1 Effective Date of the Plan. The Plan shall be effective as of
September 23, 1993.
15.2 Term of Plan. The term of the Plan shall be indefinite except that no
Incentive Stock Option Award shall be granted under the Plan after September 23,
2003. However, unless otherwise expressly provided in the Plan or in an
applicable Award Agreement, any Incentive Stock Option Award theretofore granted
may extend beyond such date, and, to the extent set forth in the Plan, the
authority of the Committee to amend, alter, adjust, suspend, discontinue, or
terminate any such Award, or to waive any conditions or restrictions with
respect to any such Award, and the authority of the Board to amend the Plan,
shall extend beyond such date.
15.3 Governing Law. The Plan and all determinations made and actions taken
pursuant to the Plan shall be governed by the laws of the state of Florida
and applicable federal laws.
15.4 Unfunded Status of Plan. Unless otherwise determined by the Committee, the
Plan shall be unfunded and shall not create (or be construed to create) a trust
or a separate fund or funds. The Plan shall not establish any fiduciary
relationship between the Company and any Key Employee Participant, any
Non-Employee Director Participant, or other person. To the extent any person
holds any right by virtue of a grant under the Plan, such right (unless
otherwise determined by the Committee) shall be no greater than the right of an
unsecured general creditor of the Company.
15.5 Headings. Section headings are used in the Plan for convenience only, do
not constitute a part of the Plan, and shall not be deemed in any way to be
material or relevant to the construction or interpretation of the Plan or any
provision thereof.
15.6 Severability. Whenever possible, each provision in the Plan and every Award
and right at any time granted under the Plan shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of the
Plan or any Award at any time granted under the Plan shall be held to be
prohibited by or invalid under applicable law, then (a) such provision shall be
deemed amended to accomplish the objectives of the provision as originally
written to the fullest extent permitted by law and (b) all other provisions of
the Plan and every other Award or right at any time granted under the Plan shall
remain in full force and effect.
REGENCY CENTERS CORPORATION
Subsidiaries
Regency Centers, L.P., a Delaware limited partnership
Equiport Associates, L.P., a Georgia limited partnership
Queensboro Associates, L.P., a Georgia limited partnership
Delk Spectrum, L.P., a Georgia limited partnership
Northlake Village Shopping Center, LLC, a Florida limited liability
company
Regency Centers Advisors, LLC, a Florida limited liability company
RC Georgia Holdings, LLC, a Georgia limited liability company
Regency Centers Georgia, L.P., a Georgia limited liability company
T&M Durham Development Company, LLC, a North Carolina limited liability
company
T&R New Albany Development, LLC, an Ohio limited liability company
RRG-RMC/Tracy, LLC, a Delaware limited liability company
Regency Ocean East, Ltd. a Florida limited partnership
Regency Remediation, LLC, a Florida limited liability company
Regency Centers Texas, LLC, a Florida limited liability company
Regency Realty Group, Inc., a Florida corporation
Chestnut Powder LLC, a Georgia limited liability company
Marietta Outparcel, Inc., a Georgia corporation
Thompson-Nolensville, LLC, a Florida limited liability company
Dixon LLC, a Florida limited liability company
Atlantic-Pennsylvania, LLC, a Florida limited liability company
Rhett-Remount, LLC, a Florida limited liability company
Regency Realty Group-NE, Inc., a Florida corporation
Regency Realty Colorado, Inc., a Florida corporation
Mountain Meadow, LLC, a Delaware limited liability company
Edmunson Orange Corp., a Tennessee corporation
Luther Properties, Inc., a Tennessee corporation
Tulip Grove, LLC, a Florida limited liability company
Hermitage Development, LLC, a Florida limited liability company
Hermitage Development II, LLC, a Florida limited liability company
West End Property, LLC, a Florida limited liability company
Bordeaux Development, LLC, a Florida limited liability company
Tinwood, LLC, a Florida limited liability company
8th & 20th Chelsea, LLC, a Delaware limited liability company
Middle Tennessee Development, LLC, a Delaware limited liability company
R2 Media, LLC, a Florida limited liability company
K&G/RRG II, LLC, a Delaware limited liability company
Regency Grocery Anchored Properties, Inc., a Maryland corporation
Regency Trailblazer LLC, a Delaware limited liability company
Regency Grocery Anchored Properties, L.P., a Delaware
limited
Partnership
Regency/DS Ballwin LLC, a Missouri limited liability company
GME/RRG I, LLC, a Delaware limited liability company
R&M Western Partnership, L.P., a Delaware limited liability company
OTR/Regency Colorado Realty Holdings, L.P., an Ohio limited
partnership
OTR/Regency Texas Realty Holdings, L.P., an Ohio limited
partnership
T&M Allen Development Company, a Texas general partnership
T&M Arlington Development Company, a Texas general partnership
M&KS Woodmen Development LLC, a Colorado limited liability company
R&KS Dell Range LLC, a Wyoming limited liability company
T&M Frisco Development Company, a Texas general partnership
T&M Shiloh Development Company, a Texas general partnership
R&KS Aspen Park Development, LLC, a Colorado limited liability
company
Independent Auditors' Consent
The Board of Directors
Regency Centers Corporation:
We consent to incorporation by reference in the registration statements (No.
333-930, No. 333-37911, No. 333-52089 and No. 333-44724) on Form S-3 and (No.
333-24971 and No. 333-55062) on Form S-8 of Regency Centers Corporation
(formerly known as Regency Realty Corporation), of our reports dated January 30,
2001, relating to the consolidated balance sheets of Regency Centers Corporation
as of December 31, 2000 and 1999, and the related consolidated statements of
operations, stockholders' equity, and cash flows for each of the years in the
three year period ended December 31, 2000, and related schedule, which reports
appear in the December 31, 2000 annual report on Form 10-K of Regency Centers
Corporation.
KPMG LLP
Jacksonville, Florida
March 16, 2001