================================================================================
SECURITIES AND EXCHANGE COMMISSION
UNITED STATES
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) November 12, 2004
-----------------
REGENCY CENTERS CORPORATION
---------------------------
(Exact name of registrant as specified in its charter)
Florida 001-12298 59-3191743
------- --------- ----------
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
121 West Forsyth Street, Suite 200 32202
Jacksonville, Florida -----
---------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: (904)-598-7000
--------------
Not Applicable
--------------
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
[ ] Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230 .425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c))
================================================================================
Item 5.03. Amendments to Articles of Incorporation or Bylaws;
- --------- -------------------------------------------------
Change in Fiscal Year
---------------------
On November 12, 2004, we amended our Articles of Incorporation to make
changes to the terms of our Series D cumulative redeemable preferred stock in
accordance with our agreement with the holders of the Series D preferred units
of our operating partnership, Regency Centers, L.P. The holders of the Series D
preferred units have the future right to exchange their units into shares of
Series D preferred stock. No shares of Series D preferred stock are currently
outstanding. Our board of directors adopted the amendment on October 27, 2004.
Shareholder approval of the amendment was not required.
The amendment lowers the annual dividend rate on the Series D preferred
stock from 9.125% to 7.45% from the date of issuance. The amendment also grants
additional voting rights to the holders of the Series D preferred stock. Under
the amendment, we must solicit the vote of 2/3 of the outstanding shares of
Series D preferred stock if:
(i) we elect to consummate a transaction or series of transactions that
would result in a change of control (as defined in the amendment), unless
immediately after the transaction a nationally recognized statistical rating
organization affirms or, if we are not the surviving corporation in the
transaction, upgrades its rating of our securities or gives a comparable or
upgraded rating to the securities of the surviving entity;
(ii) we elect to consummate a transaction or series of transactions
that would result in our common stock ceasing to be listed on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National Market; or
(iii) we elect to cease to qualify as a real estate investment trust
under the Internal Revenue Code.
If at least 2/3 of the outstanding shares of Series D preferred stock
fail to approve our taking of any such action, then we must redeem all the
Series D preferred stock immediately after taking the action, at a redemption
price equal to $100 per share (equal to the per share liquidation preference of
the Series D preferred stock), plus any accrued but unpaid dividends.
The amendment mirrors changes made to the distribution rate and voting
provisions of the Series D preferred units of our operating partnership.
A full copy of the amendment is attached as exhibit 3.2.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS
- --------- ---------------------------------
(c) Exhibits:
3.1 Restated Articles of Incorporation, as amended.
3.2 Amendment to Articles of Incorporation dated November 12, 2004.
2
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
REGENCY CENTERS CORPORATION
(registrant)
November 16, 2004 By: /s/ J. Christian Leavitt
-------------------------------------
J. Christian Leavitt, Senior Vice
President, Finance and Principal
Accounting Officer
3
RESTATED ARTICLES OF INCORPORATION
OF
REGENCY REALTY CORPORATION
This corporation was incorporated on July 8, 1993, effective July 9,
1993, under the name Regency Realty Corporation. Pursuant to Sections 607.1002
and 607.1007, Florida Business Corporation Act, amended and restated Articles of
Incorporation were approved at a meeting of the directors of this corporation on
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
Section 3.1 Purposes. This corporation is organized for the purpose of
transacting any or all lawful business permitted under the laws of the United
States and of the State of Florida.
ARTICLE 4
CAPITAL STOCK
Section 4.1 Authorized Capital. The maximum number of shares of stock
which the Corporation is authorized to have outstanding at any one time is
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
pproved by the shareholders. Subject to the rights of any outstanding classes or
series of Preferred Stock having preferential dividend rights, holders of Common
Stock are entitled to such dividends as may be declared by the Board of
Directors out of funds lawfully available therefor. Upon the dissolution of the
Corporation, holders of Common Stock are entitled to receive, pro rata in
accordance with the number of shares owned by each, the net assets of the
Corporation remaining after the holders of any outstanding classes or series of
Preferred Stock having preferential rights to such assets have received the
distributions to which they are entitled.
Section 4.4 Special Common Stock. The Board of Directors is authorized
to provide for the issuance of the Special Common Stock in one or more classes
and in one or more series within a class and, by filing the appropriate Articles
of Amendment with the Secretary of State of Florida which shall be effective
without shareholder action, is authorized to establish the number of shares to
be included in each class and each series and the limitations and relative
rights of each class and each series. Each class or series of Special Common
Stock (1) shall bear dividends, pari passu with dividends on the Common Stock,
in such amount as the Board of Directors shall determine, (2) shall vote
together with the Common Stock, and not separately as a class except where
otherwise required by law, on all matters on which the Common Stock is entitled
to vote, unless the Board of Directors determines that any such class or series
shall have limited voting rights or shall not be entitled to vote except as
otherwise required by law, (3) may be convertible or redeemable on such terms as
the Board of Directors
2
may determine, and (4) may have such other relative rights and limitations as
the Board of Directors is allowed by law to determine.
ARTICLE 5
REIT PROVISIONS
Section 5.1 Definitions. For the purposes of this Article 5, the
following terms shall have the following meanings:
(a) "Acquire" shall mean the acquisition of Beneficial
Ownership of shares of Capital Stock by any means including, without
limitation, acquisition pursuant to the exercise of any option, warrant,
pledge or other security interest or similar right to acquire shares,
but shall not include the acquisition of any such rights, unless, as a
result, the acquirer would be considered a Beneficial Owner as defined
below. The term "Acquisition" shall have the correlative meaning.
(b) "Actual Owner" shall mean, with respect to any Capital
Stock, that Person who is required to include in its gross income any
dividends paid with respect to such Capital Stock.
(c) "Beneficial Ownership" shall mean ownership of Capital
Stock by a Person who would be treated as an owner of such shares of
Capital Stock, either directly or indirectly, under Section 542(a)(2) of
the Code, taking into account for this purpose (i) constructive
ownership determined under Section 544 of the Code, as modified by
Section 856(h)(1)(B) of the Code (except where expressly provided
otherwise); and (ii) any future amendment to the Code which has the
effect of modifying the ownership rules under Section 542(a)(2) of
the Code. The terms "Beneficial Owner," "Beneficially Owns" and
"Beneficially Owned" shall have the correlative meanings.
(d) "Code" shall mean the Internal Revenue Code of 1986, as
amended. In the event of any future amendments to the Code involving the
renumbering of Code sections, the Board of Directors may, in its
sole discretion, determine that any reference to a Code section
herein shall mean the successor Code section pursuant to such
amendment.
(e) "Constructive Ownership" shall mean ownership of Capital
Stock by a Person who would be treated as an owner of such Capital
Stock, either directly or constructively, through the application of
Section 318 of the Code, as modified by Section 856(d)(5) of the
Code. The terms "Constructive Owner', "Constructively Owns" and
"Constructively Owned" shall have the correlative meanings.
(f) "Existing Holder" shall mean any of The Regency Group,
Inc., MEP, Ltd., and The Regency Group II, Ltd. (and any Person who is a
Beneficial Owner of Capital Stock as a result of attribution of the
Beneficial Ownership from any of the
3
Persons previously identified) who at the opening of business on the
date after the Initial Public Offering was the Beneficial Owner of
Capital Stock in excess of the Ownership Limit; and any Person who
Acquires Beneficial Ownership from another Existing Holder, except by
Acquisition on the open market, so long as, but only so long as, such
Person Beneficially Owns Capital Stock in excess of the Ownership Limit.
(g) "Existing Holder Limit" for an Existing Holder shall mean,
initially, the percentage by value of the outstanding Capital Stock
Beneficially Owned by such Existing Holder at the opening of
business on the date after the Initial Public Offering, and after
any adjustment pursuant to Section 5.8 hereof, shall mean such
percentage of the outstanding Capital Stock as so adjusted;
provided, however, that the Existing Holder Limit shall not be a
percentage which is less than the Ownership Limit or in excess of
9.8%. Beginning with the date after the Initial Public Offering, the
Secretary of the Corporation shall maintain and, upon request, make
available to each Existing Holder, a schedule which sets forth the
then current Existing Holder Limits for each Existing Holder.
(h) "Initial Public Offering" means the closing of the sale of
shares of Common Stock pursuant to the Corporation's first effective
registration statement for such Common Stock filed under the
Securities Act of 1933, as amended.
(i) "Non-U.S. Person" shall mean any Person who is not (i) a
citizen or resident of the United States, (ii) a partnership created or
organized in the United States or under the laws of the United
States or any state therein (including the District of Columbia),
(iii) a corporation created or organized in the United States or
under the laws of the United States or any state therein (including
the District of Columbia), or (iv) any estate or trust (other than a
foreign estate or foreign trust, within the meaning of Section
7701(a)(31) of the Code).
(j) "Ownership Limit" shall initially mean 7% by value of the
outstanding Capital Stock of the Corporation, and after any
adjustment as set forth in Section 5.9, shall mean such greater
percentage (but not greater than 9.8%) by value of the outstanding
Capital Stock as so adjusted.
(k) "Person" shall mean an individual, corporation,
partnership, estate, trust (including a trust qualified under Section
401(a) or 501(c)(17) of the Code), a portion of a trust permanently set
aside for or to be used exclusively for the purposes described in
Section 642(c) of the Code, association, private foundation within the
meaning of Section 509(a) of the Code, joint stock company or other
entity, and also includes a group as that term is used for purposes
of Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended; but does not include an underwriter retained by the Company
which participates in a public offering of the Capital Stock for a
period of 90 days following the purchase by such underwriter of the
Capital Stock, provided that ownership of Capital Stock by such
underwriter would not result in the Corporation
4
being "closely held" within the meaning of Section 856(h) of the Code
and would not otherwise result in the Corporation failing to quality as
a REIT.
(l) "REIT" shall mean a real estate investment trust under
Section 856 of the Code.
(m) "Redemption Price" shall mean the lower of (i) the price
paid by the transferee from whom shares are being redeemed and (ii) the
average of the last reported sales price, regular way, on the New York
Stock Exchange of the relevant class of Capital Stock on the ten trading
days immediately preceding the date fixed for redemption by the Board of
Directors, or if the relevant class of Capital Stock is not then traded
on the New York Stock Exchange, the average of the last reported sales
prices, regular way, of such class of Capital Stock (or, if sales
prices, regular way, are not reported, the average of the closing bid
and asked prices) on the ten trading days immediately preceding the
relevant date as reported on any exchange or quotation system over which
the Capital Stock may be traded, or if such class of Capital Stock is
not then traded over any exchange or quotation system, then the price
determined in good faith by the Board of Directors of the Corporation as
the fair market value of such class of Capital Stock on the relevant
date.
(n) "Related Tenant Owner" shall mean any Constructive Owner
who also owns, directly or indirectly, an interest in a Tenant, which
interest is equal to or greater than (i) 10% of the combined voting
power of all classes of stock of such Tenant, (ii) 10% of the total
number of shares of all classes of stock of such Tenant, or (iii) if
such Tenant is not a corporation, 10% of the assets or net profits
of such Tenant.
(o) "Related Tenant Limit" shall mean 9.8% by value of the
outstanding Capital Stock of the Corporation.
(p) "Restriction Termination Date" shall mean the first day
after the date of the Initial Public Offering on which the Corporation
determines pursuant to Section 5.13 that it is no longer in the best
interest of the Corporation to attempt to, or continue to, qualify
as a REIT.
(q) "Special Shareholder" shall mean any of (i) Security
Capital U.S. Realty, Security Capital Holdings S.A. and any Affiliate
(as such term is defined in the Stockholders Agreement) of Security
Capital U.S. Realty or Security Capital Holdings S.A., (ii) any Investor
(as such term is defined in Section 5.2 of the Stockholders Agreement),
(iii) any bona fide financial institution to whom Capital Stock is
Transferred in connection with any bona fide indebtedness of any
Investor or any Person previously identified, (iv) any Person who is
considered a Beneficial Owner of Capital Stock as a result of the
attribution of Beneficial Ownership from any of the Persons
previously identified and (v) any one or more Persons who Acquire
Beneficial Ownership from a Special Shareholder, except by
Acquisition on the open market.
5
(r) "Special Shareholder Limit" for a Special Shareholder shall
initially mean 45% of the outstanding shares of Common Stock, on a fully
diluted basis, of the Corporation; provided, however, that if at any
time after the effective date of this Amendment a Special Stockholder's
ownership of Common Stock, on a fully diluted basis, of the Corporation
shall have been below 45% for a continuous period of 180 days, then the
definition of "Special Shareholder Limit" shall mean 49% of the
outstanding shares of Common Stock, on a fully diluted basis, of the
Corporation. After any adjustment pursuant to Section 5.8, the
definition of "Special Shareholder Limit" shall mean the percentage of
the outstanding Common Stock as so adjusted, and the definition of
"Special Shareholder Limit" shall also be appropriately and equitably
adjusted in the event of a repurchase of shares of Common Stock of the
Corporation or other reduction in the number of outstanding shares of
Common Stock of the Corporation. Notwithstanding the foregoing, if any
Person and its Affiliates (taken as a whole), other than the Special
Shareholder, shall directly or indirectly own in the aggregate more than
45% of the outstanding shares of Common Stock, on a fully diluted basis,
of the Corporation, the definition of "Special Shareholder Limit" shall
be revised in accordance with Section 5.8 of the Stockholders Agreement.
Notwithstanding the foregoing provisions of this definition, if, as the
result of any Special Shareholder's ownership (taking into account for
this purpose constructive ownership under Section 544 of the Code, as
modified by Section 856(h)(1)(B) of the Code) of shares of Capital
Stock, any Person who is an individual within the meaning of Section
542(a)(2) of the Code (taking into account the ownership attribution
rules under Section 544 of the Code, as modified by Section 856(h) of
the Code) and who is the Beneficial Owner of any interest in a Special
Shareholder would be considered to Beneficially Own more than 9.8% of
the outstanding shares of Capital Stock, then unless such individual
reduces his or her interest in the Special Shareholder so that such
Person no longer Beneficially Owns more than 9.8% of the outstanding
shares of Capital Stock, the Special Shareholder Limit shall be reduced
to such percentage as would result in such Person not being considered
to Beneficially Own more than 9.8% of the outstanding Shares of Capital
Stock. Notwithstanding anything contained herein to the contrary, in no
event shall the Special Shareholder Limit be reduced below the Ownership
Limit. At the request of the Special Shareholders, the Secretary of the
Corporation shall maintain and, upon request, make available to each
Special Shareholder a schedule which sets forth the then current Special
Shareholder Limits for each Special Shareholder.
(s) "Stock Purchase Agreement" shall mean that Stock Purchase
Agreement dated as of June 11, 1996, by and among the Corporation,
Security Capital Holdings S.A., and Security Capital U.S. Realty, as the
same may be amended from time to time.
(t) "Stockholders Agreement" shall mean that Stockholders
Agreement dated as of July 10, 1996, by and among the Corporation,
Security Capital Holdings S.A., and Security Capital U.S. Realty, as the
same may be amended from time to time.
6
(u) "Tenant" shall mean any tenant of (i) the Corporation, (ii)
a subsidiary of the Corporation which is deemed to be a "qualified
REIT subsidiary" under Section 856(i)(2) of the Code, or (iii) a
partnership in which the Corporation or one or more of its qualified
REIT subsidiaries is a partner.
(v) "Transfer" shall mean any sale, transfer, gift, assignment,
devise, or other disposition of Capital Stock or the right to vote or
receive dividends on Capital Stock (including (i) the granting of
any option or entering into any agreement for the sale, transfer or
other disposition of Capital Stock or the right to vote or receive
dividends on the Capital Stock or (ii) the sale, transfer,
assignment or other disposition or grant of any securities or rights
convertible or exchangeable for Capital Stock), whether voluntarily
or involuntarily, whether of record or Beneficially, and whether by
operation of law or otherwise; provided, however, that any bona fide
pledge of Capital Stock shall not be deemed a Transfer until such
time as the pledgee effects an actual change in ownership of the
pledged shares of Capital Stock.
Section 5.2 Restrictions on Transfer. Except as provided in Sections
5.11 and 5.16, during the period commencing at the Initial Public Offering:
(a) No Person (other than an Existing Holder or a Special
Shareholder) shall Beneficially Own Capital Stock in excess of the
Ownership Limit, no Existing Holder shall Beneficially Own Capital Stock
in excess of the Existing Holder Limit for such Existing Holder and no
Special Shareholder shall Beneficially Own Capital Stock in excess
of the Special Shareholder Limit.
(b) No Person shall Constructively Own Capital Stock in excess
of the Related Tenant Limit for more than thirty (30) days following the
date such Person becomes a Related Tenant Owner.
(c) Any Transfer that, if effective, would result in any Person
(other than an Existing Holder or a Special Shareholder) Beneficially
Owning Capital Stock in excess of the Ownership Limit shall be void
ab initio as to the Transfer of such Capital Stock which would be
otherwise Beneficially Owned by such Person in excess of the
Ownership Limit, and the intended transferee shall Acquire no rights
in such Capital Stock.
(d) Any Transfer that, if effective, would result in any
Existing Holder Beneficially Owning Capital Stock in excess of the
applicable Existing Holder Limit shall be void ab initio as to the
Transfer of such Capital Stock which would be otherwise Beneficially
Owned by such Existing Holder in excess of the applicable Existing
Holder Limit, and such Existing Holder shall Acquire no rights in such
Capital Stock.
(e) Any Transfer that, if effective, would result in any
Special Shareholder Beneficially Owning Capital Stock in excess of the
applicable Special Shareholder Limit shall be void ab initio as to
the Transfer of such Capital Stock which would be
7
otherwise Beneficially Owned by such Special Shareholder in excess of
the applicable Special Shareholder Limit, and such Special Shareholder
shall Acquire no rights in such Capital Stock.
(f) Any Transfer that, if effective, would result in any
Related Tenant Owner Constructively Owning Capital Stock in excess of
the Related Tenant Limit shall be void ab initio as to the Transfer of
such Capital Stock which would be otherwise Constructively Owned by such
Related Tenant Owner in excess of the Related Tenant Limit, and the
intended transferee shall Acquire no rights in such Capital Stock.
(g) Any Transfer that, if effective, would result in the
Capital Stock being beneficially owned by less than 100 Persons (within
the meaning of Section 856(a)(5) of the Code) shall be void ab initio as
to the Transfer of such Capital Stock which would be otherwise
beneficially owned by the transferee, and the intended transferee
shall Acquire no rights in such Capital Stock.
(h) Any Transfer that, if effective, would result in the
Corporation being "closely held" within the meaning of Section 856(h) of
the Code shall be void ab initio as to the portion of any Transfer of
the Capital Stock which would cause the Corporation to be "closely
held" within the meaning of Section 856(h) of the Code, and the
intended transferee shall Acquire no rights in such Capital Stock.
(i) Any other Transfer that, if effective, would result in the
disqualification of the Corporation as a REIT by virtue of actual,
Beneficial or Constructive Ownership of Capital Stock shall be void
ab initio as to such portion of the Transfer resulting in the
disqualification, and the intended transferee shall Acquire no
rights in such Capital Stock.
Section 5.3 Remedies for Breach.
(a) If the Board of Directors or a committee thereof shall at
any time determine in good faith that a Transfer has taken place that
falls within the scope of Section 5.2 or that a Person intends to
Acquire Beneficial Ownership of any shares of the Corporation that would
result in a violation of Section 5.2 (whether or not such violation
is intended), the Board of Directors or a committee thereof shall
take such action as it or they deem advisable to refuse to give
effect to or to prevent such Transfer, including, but not limited
to, refusing to give effect to such Transfer on the books of the
Corporation or instituting proceedings to enjoin such Transfer,
subject, however, in all cases to the provisions of Section 5.16.
(b) Without limitation to Section 5.2 and Section 5.3(a), any
purported transferee of shares Acquired in violation of Section 5.2 and
any Person retaining shares in violation of Section 5.2(b) shall be
deemed to have acted as agent on behalf of the Corporation in holding
those shares acquired or retained in violation of Section 5.2 and shall
be deemed to hold such shares in trust on behalf of and for the benefit
of the Corporation. Such shares shall be deemed a separate class of
stock until such time as
8
the shares are sold or redeemed as provided in Section 5.3(c). The
holder shall have no right to receive dividends or other distributions
with respect to such shares, and shall have no right to vote such
shares. Such holder shall have no claim, cause of action or any other
recourse whatsoever against any transferor of shares Acquired in
violation of Section 5.2. The holder's sole right with respect to such
shares shall be to receive, at the Corporation's sole and absolute
discretion, either (i) consideration for such shares upon the resale of
the shares as directed by the Corporation pursuant to Section 5.3(c) or
(ii) the Redemption Price pursuant to Section 5.3(c). Any distribution
by the Corporation in respect of such shares Acquired or retained in
violation of Section 5.2 shall be repaid to the Corporation upon
demand.
(c) The Board of Directors shall, within six months after
receiving notice of a Transfer or Acquisition that violates Section 5.2
or a retention of shares in violation of Section 5.2(b), either (in its
sole and absolute discretion, subject to the requirements of Florida law
applicable to redemption) (i) direct the holder of such shares to sell
all shares held in trust for the Corporation pursuant to Section 5.3(b)
for cash in such manner as the Board of Directors directs or (ii) redeem
such shares for the Redemption Price in cash on such date within such
six month period as the Board of Directors may determine. If the Board
of Directors directs the holder to sell the shares, the holder shall
receive such proceeds as the trustee for the Corporation and pay the
Corporation out of the proceeds of such sale (i) all expenses incurred
by the Corporation in connection with such sale, plus (ii) any remaining
amount of such proceeds that exceeds the amount paid by the holder for
the shares, and the holder shall be entitled to retain only the amount
of such proceeds in excess of the amount required to be paid to the
Corporation.
Section 5.4 Notice of Restricted Transfer. Any Person who Acquires,
attempts or intends to Acquire, or retains shares in violation of Section 5.2
shall immediately give written notice to the Corporation of such event and shall
provide to the Corporation such other information as the Corporation may request
in order to determine the effect, if any, of such Transfer, attempted or
intended Transfer, or retention, on the Corporation's status as a REIT.
Section 5.5 Owners Required to Provide Information. From the date of
the Initial Public Offering and prior to the Restriction Termination Date:
(a) Every shareholder of record of more than 5% by value (or
such lower percentage as required by the Code or the regulations
promulgated thereunder) of the outstanding Capital Stock of the
Corporation shall, within 30 days after December 31 of each year, give
written notice to the Corporation stating the name and address of such
record shareholder, the number and class of shares of Capital Stock
Beneficially Owned by it, and a description of how such shares are held;
provided that a shareholder of record who holds outstanding Capital
Stock of the Corporation as nominee for another Person, which Person is
required to include in its gross income the dividends received on such
Capital Stock (an "Actual Owner"), shall give written notice to the
Corporation stating the name and address of such Actual Owner and the
number and class of shares
9
of such Actual Owner with respect to which the shareholder of record is
nominee. Each such shareholder of record shall provide to the
Corporation such additional information as the Corporation may request
in order to determine the effect, if any, of such Beneficial Ownership
on the Corporation's status as a REIT.
(b) Every Actual Owner of more than 5% by value (or such lower
percentage as required by the Code or Regulations promulgated
thereunder) of the outstanding Capital Stock of the Corporation who
is not a shareholder of record of the Corporation, shall within 30
days after December 31 of each year, give written notice to the
Corporation stating the name and address of such Actual Owner, the
number and class of shares Beneficially Owned, and a description of
how such shares are held.
(c) Each Person who is a Beneficial Owner of Capital Stock and
each Person (including the shareholder of record) who is holding Capital
Stock for a Beneficial Owner shall provide to the Corporation such
information as the Corporation may request, in good faith, in order
to determine the Corporation's status as a REIT.
(d) Nothing in this Section 5.5 or any request pursuant hereto
shall be deemed to waive any limitation in Section 5.2.
Section 5.6 Remedies Not Limited. Except as provided in Section 5.15,
nothing contained in this Article shall limit the authority of the Board of
Directors to take such other action as it deems necessary or advisable to
protect the Corporation and the interests of its shareholders in preserving the
Corporation's status as a REIT.
Section 5.7 Ambiguity. In the case of an ambiguity in the application
of any of the provisions of this ARTICLE 5, including without limitation any
definition contained in Section 5.1 and any determination of Beneficial
Ownership, the Board of Directors in its sole discretion shall have the power to
determine the application of the provisions of this ARTICLE 5 with respect to
any situation based on the facts known to it.
Section 5.8 Modification of Existing Holder Limits and Special
Shareholder Limits. Subject to the provisions of Section 5.10, the Existing
Holder Limits may or shall, as provided below, be modified as follows:
(a) Any Existing Holder or Special Shareholder may Transfer
Capital Stock to another Person, and, so long as such Transfer is not on
the open market, any such Transfer will decrease the Existing Holder
Limit or Special Shareholder Limit, as applicable, for such
transferor (but not below the Ownership Limit) and increase the
Existing Holder Limit or Special Shareholder Limit, as applicable,
for such transferee by the percentage of the outstanding Capital
Stock so transferred. The transferor Existing Holder or Special
Shareholder, as applicable, shall give the Board of Directors of the
Corporation prompt written notice of any such transfer. Any Transfer
by an Existing Holder or Special Shareholder on the open market
shall neither reduce its Existing Holder Limit or Special
Shareholder Limit, as applicable, nor increase the Ownership Limit,
Existing Holder Limit or Special Shareholder Limit of the
transferee.
10
(b) Any grant of Capital Stock or a stock option pursuant to
any benefit plan for directors or employees shall increase the Existing
Holder Limit or Special Shareholder Limit for the affected Existing
Holder or Special Shareholder, as the case may be, to the maximum extent
possible under Section 5.10 to permit the Beneficial Ownership of
the Capital Stock granted or issuable under such employee benefit
plan.
(c) The Board of Directors may reduce the Existing Holder Limit
of any Existing Holder, with the written consent of such Existing
Holder, after any Transfer permitted in this Article 5 by such Existing
Holder on the open market.
(d) Any Capital Stock issued to an Existing Holder or Special
Shareholder pursuant to a dividend reinvestment plan adopted by the
Corporation shall increase the Existing Holder Limit or Special
Shareholder Limit, as the case may be, for the Existing Holder or
Special Shareholder to the maximum extent possible under Section
5.10 to permit the Beneficial Ownership of such Capital Stock.
(e) Any Capital Stock issued to an Existing Holder or Special
Shareholder in exchange for the contribution or sale to the
Corporation of real property, including Capital Stock issued
pursuant to an "earn-out" provision in connection with any such
sale, shall increase the Existing Holder Limit or Special
Shareholder Limit, as the case may be, for the Existing Holder or
Special Shareholder to the maximum extent possible under Section
5.10 to permit the Beneficial Ownership of such Capital Stock.
(f) The Special Shareholder Limit shall be increased, from time
to time, whenever there is an increase in Special Shareholders'
percentage ownership (taking into account for this purpose constructive
ownership under Section 544 of the Code, as modified by Section
856(h)(1)(B) of the Code) of the Capital Stock (or any other capital
stock) of the Corporation due to any event other than the purchase
of Capital Stock (or any other capital stock) of the Corporation by
a Special Shareholder, by an amount equal to such percentage
increase multiplied by the Special Shareholder Limit.
(g) The Board of Directors may reduce the Special Shareholder
Limit for any Special Shareholder and the Existing Holder Limit for any
Existing Holder, as applicable, after the lapse (without exercise)
of an option described in Clause (b) of this Section 5.8 by the
percentage of Capital Stock that the option, if exercised, would
have represented, but in either case no Existing Holder Limit or
Special Shareholder Limit shall be reduced to a percentage which is
less than the Ownership Limit.
Section 5.9 Modification of Ownership Limit. Subject to the limitations
provided in Section 5.10, the Board of Directors may from time to time increase
or decrease the Ownership Limit; provided, however, that any decrease may only
be made prospectively as to subsequent holders (other than a decrease as a
result of a retroactive change in existing law that would require a decrease to
retain REIT status, in which case such decrease shall be effective immediately).
11
Section 5.10 Limitations on Modifications. Notwithstanding any other
provision of this Article 5:
(a) Neither the Ownership Limit, the Special Shareholder Limit
nor any Existing Holder Limit may be increased if, after giving effect
to such increase, five Persons who are considered individuals pursuant
to Section 542(a)(2) of the Code (taking into account all of the
then Existing Holders and Special Shareholders) could Beneficially
Own, in the aggregate, more than 49.5% by value of the outstanding
Capital Stock.
(b) Prior to the modification of any Existing Holder Limit or
Ownership Limit pursuant to Section 5.8 or 5.9, the Board of Directors
of the Corporation may require such opinions of counsel, affidavits,
undertakings or agreements as it may deem necessary or advisable in
order to determine or insure the Corporation's status as a REIT.
(c) No Existing Holder Limit or Special Shareholder Limit may
be a percentage which is less than the Ownership Limit.
(d) The Ownership Limit may not be increased to a percentage
which is greater than 9.8%.
Section 5.11 Exceptions. The Board of Directors may, upon receipt of
either a certified copy of a ruling of the Internal Revenue Service, an opinion
of counsel satisfactory to the Board of Directors or such other evidence as the
Board of Directors deems appropriate, but shall in no case be required to,
exempt a Person (the "Exempted Holder") from the Ownership Limit, the Special
Shareholder Limit, the Existing Holder Limit or the Related Tenant Limit, as the
case may be, if the ruling or opinion concludes or the other evidence shows (A)
that no Person who is an individual as defined in Section 542(a)(2) of the Code
will, as the result of the ownership of the shares by the Exempted Holder, be
considered to have Beneficial Ownership of an amount of Capital Stock that will
violate the Ownership Limit, the Special Shareholder Limit or the applicable
Existing Holder Limit, as the case may be, or (B) in the case of an exception of
a Person from the Related Tenant Limit that the exemption from the Related
Tenant Limit would not cause the Corporation to fail to qualify as a REIT. The
Board of Directors may condition its granting of a waiver on the Exempted
Holder's agreeing to such terms and conditions as the Board of Directors
determines to be appropriate in the circumstances.
Section 5.12 Legend. All certificates representing shares of Capital
Stock of the Corporation shall bear a legend referencing the restrictions on
ownership and transfer as set forth in these Articles. The form and content of
such legend shall be determined by the Board of Directors.
Section 5.13 Termination of REIT Status. The Board of Directors may
revoke the Corporation's election of REIT status as provided in Section
856(g)(2) of the Code if, in its discretion, the qualification of the
Corporation as a REIT is no longer in the best interests of
12
the Corporation. Notwithstanding any such revocation or other termination of
REIT status, the provisions of this Article 5 shall remain in effect unless
amended pursuant to the provisions of Article 10.
Section 5.14 Certain Transfers to Non-U.S. Persons Void. 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.
13
ARTICLE 8
BYLAWS
Section 8.1 Bylaws. The Bylaws may be amended or repealed from time to
time by either the Board of Directors or the shareholders, but the Board of
Directors shall not alter, amend or repeal any Bylaw adopted by the shareholders
if the shareholders specifically provide that the Bylaw is not subject to
amendment or repeal by the Board of Directors.
ARTICLE 9
INDEMNIFICATION
Section 9.1 Indemnification. The Board of Directors is hereby
specifically authorized to make provision for indemnification of directors,
officers, employees and agents to the full extent permitted by law.
ARTICLE 10
AMENDMENT
Section 10.1 Amendment. The Corporation reserves the right to amend or
repeal any provision contained in these Restated Articles of Incorporation, and
any right conferred upon the shareholders is subject to this reservation.
IN WITNESS WHEREOF, the undersigned 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
14
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
15
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.
1
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;
2
(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
3
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
1
Board of Directors in the resolutions referred to in Article FIRST of these
Articles of Amendment) and authorizing the issuance of up to 1,600,000 shares of
8.125% Series A Cumulative Redeemable Preferred Stock.
THIRD: Pursuant to the authority conferred upon the Committee, the
Committee has, by unanimous written consent dated September 29, 1999, adopted
resolutions amending and restating the preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications, terms
and conditions of redemption and other terms and conditions of such 8.125%
Series A Cumulative Redeemable Preferred Stock (to the extent not set by the
Board of Directors in the resolutions referred to in Article FIRST of these
Articles of Amendment). There are no shares of 8.125% Series A Cumulative
Redeemable Preferred Stock outstanding and, accordingly, no shareholder approval
was required. The class of Preferred Stock of the Corporation created by the
resolutions duly adopted by the Board of Directors of the Corporation and by the
Committee and referred to in Articles FIRST and SECOND of these Articles of
Amendment and amended hereby shall have the following designation, number of
shares, preferences, conversion and other rights, voting powers, restrictions
and limitation as to dividends, qualifications, terms and conditions of
redemption and other terms and conditions:
Section 1. Designation and Number. A series of Preferred Stock,
designated the "8.125% Series A Cumulative Redeemable Preferred Stock" (the
"Series A Preferred Stock") is hereby established. The number of shares of
Series A Preferred Stock shall be 1,600,000.
Section 2. Rank. The Series A Preferred Stock will, with respect to
distributions or rights upon voluntary or involuntary liquidation, winding-up or
dissolution of the Corporation, or both, rank senior to all classes or series of
Common Stock (as defined in the Charter) and to all classes or series of equity
securities of the Corporation now or hereafter authorized, issued or
outstanding, other than any class or series of equity securities of the
Corporation expressly designated as ranking on a parity with or senior to the
Series A Preferred Stock as to distributions or rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the Corporation, or both.
For purposes of these Articles of Amendment, the term "Parity Preferred Stock"
shall be used to refer to any class or series of equity securities of the
Corporation now or hereafter authorized, issued or outstanding expressly
designated by the Corporation to rank on a parity with Series A Preferred Stock
with respect to distributions or rights upon voluntary or involuntary
liquidation, winding-up or dissolution of the Corporation, or both, as the
context may require, whether or not the dividend rates, dividend payment dates
or redemption or liquidation prices per share or conversion rights or exchange
rights shall be different from those of the Series A Preferred Stock. The term
"equity securities" does not include debt securities, which will rank senior to
the Series A Preferred Stock prior to conversion.
Section 3. Distributions.
(a) Payment of Distributions. Subject to the rights of holders
of Parity Preferred Stock as to the payment of distributions and holders of
equity securities issued after
2
the date hereof in accordance herewith ranking senior to the Series A Preferred
Stock as to payment of distributions, holders of Series A Preferred Stock shall
be entitled to receive, when, as and if declared by the Board of Directors of
the Corporation, out of funds legally available for the payment of
distributions, cumulative cash distributions at the rate per annum of 8.125% of
the $50.00 liquidation preference per share of Series A Preferred Stock. Such
distributions shall be cumulative, shall accrue from the original date of
issuance and will be payable in cash (A) quarterly in arrears, on or before
March 31, June 30, September 30 and December 31 of each year commencing on the
first of such dates to occur after the original date of issuance and, (B) in the
event of a redemption, on the redemption date (each a "Preferred Stock
Distribution Payment Date"). The amount of the distribution payable for any
period will be computed on the basis of a 360-day year of twelve 30-day months
and for any period shorter than a full quarterly period for which distributions
are computed, the amount of the distribution payable will be computed on the
basis of the actual number of days elapsed in such a 30-day month. If any date
on which distributions are to be made on the Series A Preferred Stock is not a
Business Day (as defined herein), then payment of the distribution to be made on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) except that,
if such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date. Distributions on the Series A
Preferred Stock will be made to the holders of record of the Series A Preferred
Stock on the relevant record dates to be fixed by the Board of Directors of the
Corporation, which record dates shall be not less than 10 days and not more than
30 Business Days prior to the relevant Preferred Stock Distribution Payment Date
(each a "Distribution Record Date"). Notwithstanding anything to the contrary
set forth herein, each share of Series A Preferred Stock shall also continue to
accrue all accrued and unpaid distributions, whether or not declared, up to the
exchange date on any Series A Preferred Unit (as defined in the Second Amended
and Restated Agreement of Limited Partnership of Regency Centers, L.P., dated as
March 5, 1998 as amended by that certain Amendment No. One to Second Amendment
and Restatement of Agreement of Limited Partnership dated as of June 25, 1998
(as amended the "Partnership Agreement")) validly exchanged into such share of
Series A Preferred Stock in accordance with the provisions of such Partnership
Agreement.
The term "Business Day" shall mean each day, other than
a Saturday or a Sunday, which is not a day on which banking institutions in New
York, New York are authorized or required by law, regulation or executive order
to close.
(b) Limitation on Distributions. No distribution on the Series
A Preferred Stock shall be declared or paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement of the
Corporation (other than any agreement with a holder or affiliate of holder of
Capital Stock of the Corporation) relating to its indebtedness, prohibit such
declaration, payment or setting apart for payment or provide that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration, payment or setting
apart for payment shall be restricted or prohibited by law. Nothing in this
Section 3(b) shall be deemed to modify or in any manner limit the provisions of
Section 3(c) and 3(d).
3
(c) Distributions Cumulative. Distributions on the Series A
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series A Preferred Stock will accumulate as of the Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid at
any time, without reference to a regular Preferred Stock Distribution Payment
Date to holders of record of the Series A Preferred Stock on the record date
fixed by the Board of Directors which date shall be not less than 10 days and
not more than 30 Business Days prior to the payment date. Accumulated and unpaid
distributions will not bear interest.
(d) Priority as to Distributions.
(i) So long as any Series A Preferred Stock is
outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect
to any class or series of Common Stock or any class or series of other
stock of the Corporation ranking junior as to the payment of
distributions to the Series A Preferred Stock (such Common Stock or
other junior stock, collectively, "Junior Stock"), nor shall any
cash or other property be set aside for or applied to the purchase,
redemption or other acquisition for consideration of any Series A
Preferred Stock, any Parity Preferred Stock with respect to
distributions or any Junior Stock, unless, in each case, all
distributions accumulated on all Series A Preferred Stock and all
classes and series of outstanding Parity Preferred Stock as to
payment of distributions have been paid in full. The foregoing
sentence will not prohibit (i) distributions payable solely in
Junior Stock, (ii) the conversion of Series A Preferred Stock,
Junior Stock or Parity Preferred Stock into stock of the Corporation
ranking junior to the Series A Preferred Stock as to distributions,
and (iii) purchases by the Corporation of such Series A Preferred
Stock or Parity Preferred Stock with respect to distributions or
Junior Stock pursuant to Article 5 of the Charter to the extent
required to preserve the Corporation's status as a real estate
investment trust.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably deposited
in trust for payment) upon the Series A Preferred Stock, all
distributions authorized and declared on the Series A Preferred
Stock and all classes or series of outstanding Parity Preferred
Stock with respect to distributions shall be authorized and declared
so that the amount of distributions authorized and declared per
share of Series A Preferred Stock and such other classes or series
of Parity Preferred Stock shall in all cases bear to each other the
same ratio that accrued distributions per share on the Series A
Preferred Stock and such other classes or series of Parity Preferred
Stock (which shall not include any accumulation in respect of unpaid
distributions for prior distribution periods if such class or series
of Parity Preferred Stock do not have cumulative distribution
rights) bear to each other.
4
(e) No Further Rights. Holders of Series A Preferred Stock
shall not be entitled to any distributions, whether payable in cash, other
property or otherwise, in excess of the full cumulative distributions described
herein.
Section 4. Liquidation Preference.
(a) Payment of Liquidating Distributions. Subject to the rights
of holders of Parity Preferred Stock with respect to rights upon any voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation and
subject to equity securities ranking senior to the Series A Preferred Stock with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Series A Preferred Stock shall be
entitled to receive out of the assets of the Corporation legally available for
distribution or the proceeds thereof, after payment or provision for debts and
other liabilities of the Corporation, but before any payment or distributions of
the assets shall be made to holders of Common Stock or any other class or series
of shares of the Corporation that ranks junior to the Series A Preferred Stock
as to rights upon liquidation, dissolution or winding-up of the Corporation, an
amount equal to the sum of (i) a liquidation preference of $50 per share of
Series A Preferred Stock, and (ii) an amount equal to any accumulated and unpaid
distributions thereon, whether or not declared, to the date of payment. In the
event that, upon such voluntary or involuntary liquidation, dissolution or
winding-up, there are insufficient assets to permit full payment of liquidating
distributions to the holders of Series A Preferred Stock and any Parity
Preferred Stock as to rights upon liquidation, dissolution or winding-up of the
Corporation, all payments of liquidating distributions on the Series A Preferred
Stock and such Parity Preferred Stock shall be made so that the payments on the
Series A Preferred Stock and such Parity Preferred Stock shall in all cases bear
to each other the same ratio that the respective rights of the Series A
Preferred Stock and such other Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior distribution
periods if such Parity Preferred Stock do not have cumulative distribution
rights) upon liquidation, dissolution or winding-up of the Corporation bear to
each other.
(b) Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by (i) fax and (ii) by first
class mail, postage pre-paid, not less than 30 and not more that 60 days prior
to the payment date stated therein, to each record holder of the Series A
Preferred Stock at the respective addresses of such holders as the same shall
appear on the share transfer records of the Corporation.
(c) No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series A
Preferred Stock will have no right or claim to any of the remaining assets of
the Corporation.
(d) Consolidation, Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the
5
consolidation or merger or other business combination of the Corporation with or
into, any corporation, trust or other entity (or of any corporation, trust or
other entity with or into the Corporation) shall not be deemed to constitute a
liquidation, dissolution or winding-up of the Corporation.
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
Section 5. Optional Redemption.
(a) Right of Optional Redemption. The Series A Preferred Stock
ay not be redeemed prior to June 25, 2003. On or after such date, the
Corporation shall have the right to redeem the Series A Preferred Stock, in
whole or in part, atc any time or from time to time, upon not less than 30 nor
more than 60 days' written notice, at a redemption price, payable in cash, equal
to $50 per share of Series A Preferred Stock plus accumulated and unpaid
distributions, whether or nor declared, to the date of redemption. If fewer than
all of the outstanding shares of Series A Preferred Stock are to be redeemed,
the shares of Series A Preferred Stock to be redeemed shall be selected pro rata
(as nearly as practicable without creating fractional shares).
(b) Limitation on Redemption.
(i) The redemption price of the Series A Preferred Stock
(other than the portion thereof consisting of accumulated but unpaid
distributions) will be payable solely out of sale proceeds of capital
stock of the Corporation and from no other source. For purposes of the
preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares, participation or
other ownership interests (however designated) and any rights (other
than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(ii) The Corporation may not redeem fewer than all of the
outstanding shares of Series A Preferred Stock unless all accumulated
and unpaid distributions have been paid on all Series A Preferred Stock
for all quarterly distribution periods terminating on or prior to the
date of redemption.
(c) Procedures for Redemption.
(i) Notice of redemption will be (i) faxed, and (ii)
mailed by the Corporation, postage prepaid, not less than 30 nor more
than 60 days prior to the redemption date, addressed to the respective
holders of record of the Series A Preferred
6
Stock to be redeemed at their respective addresses as they appear on the
transfer records of the Corporation. No failure to give or defect in
such notice shall affect the validity of the proceedings for the
redemption of any Series A Preferred Stock except as to the holder to
whom such notice was defective or not given. In addition to any
information required by law or by the applicable rules of any exchange
upon which the Series A Preferred Stock may be listed or admitted to
trading, each such notice shall state: (i) the redemption date, (ii) the
redemption price, (iii) the number of shares of Series A Preferred
Stock to be redeemed, (iv) the place or places where such shares of
Series A Preferred Stock are to be surrendered for payment of the
redemption price, (v) that distributions on the Series A Preferred
Stock to be redeemed will cease to accumulate on such redemption
date and (vi) that payment of the redemption price and any
accumulated and unpaid distributions will be made upon presentation
and surrender of such Series A Preferred Stock. If fewer than all of
the shares of Series A Preferred Stock held by any holder are to be
redeemed, the notice mailed to such holder shall also specify the
number of shares of Series A Preferred Stock held by such holder to
be redeemed.
(ii) If the Corporation gives a notice of redemption in
respect of Series A Preferred Stock (which notice will be irrevocable)
then, by 12:00 noon, New York City time, on the redemption date, the
Corporation will deposit irrevocably in trust for the benefit of the
Series A Preferred Stock being redeemed funds sufficient to pay the
applicable redemption price, plus any accumulated and unpaid
distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any
accumulated and unpaid distributions, if any, on such shares to the
holders of the Series A Preferred Stock upon surrender of the
certificate evidencing the Series A Preferred Stock by such holders at
the place designated in the notice of redemption. If fewer than all
Series A Preferred Stock evidenced by any certificate is being redeemed,
a new certificate shall be issued upon surrender of the certificate
evidencing all Series A Preferred Stock, evidencing the unredeemed
Series A Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on
the Series A Preferred Stock or portions thereof called for redemption,
unless the Corporation defaults in the payment thereof. If any date
fixed for redemption of Series A Preferred Stock is not a Business Day,
then payment of the redemption price payable on such date will be made
on the next succeeding day that is a Business Bay (and without any
interest or other payment in respect of any such delay) except that, if
such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date fixed for redemption. If
payment of the redemption price or any accumulated or unpaid
distributions in respect of the Series A Preferred Stock is improperly
withheld or refused and not paid by the Corporation, distributions on
such Series A Preferred Stock will continue to accumulate from the
original redemption date to the date of payment, in which case the
actual payment date will be considered the date fixed for redemption for
purposes of
7
calculating the applicable redemption price and any accumulated and
unpaid distributions.
(d) Status of Redeemed Stock. Any Series A Preferred Stock that
shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
class or series until such shares are once more designated as part of a
particular class or series by the Board of Directors.
Section 6. Voting Rights.
(a) General. Holders of the Series A Preferred Stock will not
have any voting rights, except as set forth below.
(b) Right to Elect Directors.
(i) If at any time distributions shall be in arrears
(which means that, as to any such quarterly distributions, the same have
not been paid in full) with respect to six (6) prior quarterly
distribution periods (including quarterly periods on the Series A
Preferred Units prior to the exchange into Series A Preferred Stock),
whether or not consecutive, and shall not have been paid in full (a
"Preferred Distribution Default"), the authorized number of members of
the Board of Directors shall automatically be increased by two and the
holders of record of such Series A Preferred Stock, voting together as a
single class with the holders of each class or series of Parity
Preferred Stock upon which like voting rights have been conferred and
are exercisable, will be entitled to fill the vacancies so created by
electing two additional directors to serve on the Corporation's Board of
Directors (the "Preferred Stock Directors") at a special meeting called
in accordance with Section 6(b)(ii) or at the next annual meeting of
stockholders and at each subsequent annual meeting of stockholders
or special meeting held in place thereof, until all such
distributions in arrears and distributions for the current quarterly
period on the Series A Preferred Stock and each such class or series
of Parity Preferred Stock have been paid in full.
(ii) At any time when such voting rights shall have
vested, a proper officer of the Corporation shall call or cause to be
called, upon written request of holders of record of at least 10% of the
outstanding shares of Series A Preferred Stock, a special meeting of
the holders of Series A Preferred Stock and all the series of Parity
Preferred Stock upon which like voting rights have been conferred
and are exercisable (collectively, the "Parity Securities") by mailing
or causing to be mailed to such holders a notice of such special meeting
to be held not less than ten and not more than 45 days after the date
such notice is given. The record date for determining holders of the
Parity Securities entitled to notice of and to vote at such special
meeting will be the close of business on the third Business Day
preceding the day on which such notice is mailed. At any annual or
special meeting at which Parity Securities are entitled to vote, all of
the holders of the Parity Securities, by plurality vote, voting together
as a single class without regard to series will be entitled to elect two
directors on the basis of one vote per $25.00 of liquidation preference
to which such Parity Securities are entitled by
8
their terms (excluding amounts in respect of accumulated and unpaid
dividends) and not cumulatively. The holder or holders of Parity
Securities representing one-third of the total voting power of the
Parity Securities then outstanding, present in person or by proxy, will
constitute a quorum for the election of the Preferred Stock Directors
except as otherwise provided by law. Notice of all meetings at which
holders of the Series A Preferred Stock shall be entitled to vote will
be given to such holders at their addresses as they appear in the
transfer records. At any such meeting or adjournment thereof in the
absence of a quorum, subject to the provisions of any applicable law,
the holders of Parity Securities representing a majority of the voting
power of the Parity Securities present in person or by proxy shall
have the power to adjourn the meeting for the election of the Preferred
Stock Directors, without notice other than an announcement at the
meeting, until a quorum is present. If a Preferred Distribution Default
shall terminate after the notice of an annual or special meeting has
been given but before such special meeting has been held, the
Corporation shall, as soon as practicable after such termination, mail
or cause to be mailed notice of such termination to holders of the
Series A Preferred Stock that would have been entitled to vote at such
meeting.
(iii) If and when all accumulated distributions and the
distribution for the current distribution period on the Series A
Preferred Stock shall have been paid in full or a sum sufficient for
such payment is irrevocably deposited in trust for payment, the holders
of the Series A Preferred Stock shall be divested of the voting rights
set forth in Section 6(b) herein (subject to revesting in the event of
each and every Preferred Distribution Default) and, if all distributions
in arrears and the distributions for the current distribution period
have been paid in full or set aside for payment in full on all other
classes or series of Parity Preferred Stock upon which like voting
rights have been conferred and are exercisable, the term and office of
each Preferred Stock Director so elected shall terminate. Any Preferred
Stock Director may be removed at any time with or without cause by the
vote of, and shall not be removed otherwise than by the vote of, the
holders of record of a majority of the outstanding Series A
Preferred Stock when they have the voting rights set forth in
Section 6(b) (voting separately as a single class with all other
classes or series of Parity Preferred Stock upon which like voting
rights have been conferred and are exercisable). So long as a
Preferred Distribution Default shall continue, any vacancy in the
office of a Preferred Stock Director may be filled by written
consent of the Preferred Stock Director remaining in office, or if
none remains in office, by a vote of the holders of record of a
majority of the outstanding Series A Preferred Stock when they have
the voting rights set forth in Section 6(b) (voting separately as a
single class with all other classes or series of Parity Preferred
Stock upon which like voting rights have been conferred and are
exercisable). The Preferred Stock Directors shall each be entitled
to one vote per director on any matter.
(c) Certain Voting Rights. So long as any Series A Preferred
Stock remains outstanding, the Corporation shall not, without the affirmative
vote of the holders of at least two-thirds of the Series A Preferred Stock and
Series A Preferred Units outstanding at such time and not previously surrendered
in exchange for Series A Preferred Stock together, if
9
applicable, voting as a single class based on the number of shares into which
such Series A Preferred Units are then convertible (collectively, the "Voting
Securities") (i) designate or create, or increase the authorized or issued
amount of, any class or series of shares ranking prior to the Series A Preferred
Stock with respect to payment of distributions or rights upon liquidation,
dissolution or winding-up or reclassify any authorized shares of the Corporation
into any such shares, or create, authorize or issue any obligations or
securities convertible into or evidencing the right to purchase any such shares,
(ii) designate or create, or increase the authorized or issued amount of, any
Parity Preferred Stock or reclassify any authorized shares of the Corporation
into any such shares, or create, authorize or issue any obligations or
securities convertible into or evidencing the right to purchase any such shares,
but only to the extent such Parity Preferred Stock is issued to an affiliate of
the Corporation (other than Security Capital U.S. Realty, Security Capital
Holdings, S.A. or their affiliates), or (iii) either (A) consolidate, merge
into or with, or convey, transfer or lease its assets substantially as an
entirety, to any corporation or other entity, or (B) amend, alter or repeal the
provisions of the Corporation's Charter (including these Articles of Amendment)
or By-laws, whether by merger, consolidation or otherwise, in each case that
would materially and adversely affect the powers, special rights, preferences,
privileges or voting power of the Series A Preferred Stock or the holders
thereof; provided, however, that with respect to the occurrence of a merger,
consolidation or a sale or lease of all of the Corporation's assets as an
entirety, so long as (a) the Corporation is the surviving entity and the Series
A Preferred Stock remains outstanding with the terms thereof unchanged, or (b)
the resulting, surviving or transferee entity is a corporation organized under
the laws of any state and substitutes the Series A Preferred Stock for other
preferred stock having substantially the same terms and same rights as the
Series A Preferred Stock, including with respect to distributions, voting rights
and rights upon liquidation, dissolution or winding-up, then the occurrence of
any such event shall not be deemed to materially and adversely affect such
rights, privileges or voting powers of the holders of the Series A Preferred
Stock and no vote of the Series A Voting Securities shall be required in such
case and provided further that any increase in the amount of authorized
Preferred Stock or the creation or issuance of any other class or series of
Preferred Stock, or any increase in an amount of authorized shares of each class
or series, in each case ranking either (a) junior to the Series A Preferred
Stock with respect to payment of distributions or the distribution of assets
upon liquidation, dissolution or winding-up, or (b) on a parity with the Series
A Preferred Stock with respect to payment of distributions or the distribution
of assets upon liquidation, dissolution or winding-up to the extent such
Preferred Stock is not issued to a affiliate of the Corporation, shall not be
deemed to materially and adversely affect such rights, preferences, privileges
or voting powers and no vote of the Voting Securities shall be required in such
case.
Section 7. No Conversion Rights. The holders of the Series A Preferred
Stock shall not have any rights to convert such shares into shares of any other
class or series of stock or into any other securities of, or interest in, the
Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for
the retirement or redemption of Series A Preferred Stock.
10
Section 9. No Preemptive Rights. No holder of the Series A Preferred
Stock of the Corporation shall, as such holder, have any preemptive rights to
purchase or subscribe for additional shares of stock of the Corporation or any
other security of the Corporation which it may issue or sell.
11
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
1
Amendment) and authorizing the issuance of up to 850,000 shares of 8.75% Series
B Cumulative Redeemable Preferred Stock.
THIRD: The class of Preferred Stock of the Corporation created by
the resolutions duly adopted by the Board of Directors of the Corporation and by
the Committee and referred to in Articles First and Second of these Articles of
Amendment shall have the following designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitation as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
Section 1. Designation and Number. A series of Preferred Stock,
designated the "8.75% Series B Cumulative Redeemable Preferred Stock" (the
"Series B Preferred Stock") is hereby established. The number of shares of
Series B Preferred Stock shall be 850,000.
Section 2. Rank. The Series B Preferred Stock will, with respect to
distributions or rights upon voluntary or involuntary liquidation, winding-up or
dissolution of the Corporation, or both, rank senior to all classes or series of
Common Stock (as defined in the Charter) and to all classes or series of equity
securities of the Corporation now or hereafter authorized, issued or outstanding
other than any class or series of equity securities of the Corporation expressly
designated as ranking on a parity with or senior to the Series B Preferred Stock
as to distributions or rights upon voluntary or involuntary liquidation,
winding-up or dissolution of the Corporation, or both. For purposes of these
Articles of Amendment, the term "Parity Preferred Stock" shall be used to refer
to any class or series of equity securities of the Corporation now or hereafter
authorized, issued or outstanding expressly designated by the Corporation to
rank on a parity with Series B Preferred Stock with respect to distributions or
rights upon voluntary or involuntary liquidation, winding-up or dissolution of
the Corporation, or both, as the context may require, whether or not the
dividend rates, dividend payment dates or redemption or liquidation prices per
share or conversion rights or exchange rights shall be different from those of
the Series B Preferred Stock. The term "equity securities" does not include debt
securities, which will rank senior to the Series B Preferred Stock prior to
conversion. The Series B Preferred Stock is expressly designated as ranking on a
parity with the Series A Preferred Stock.
Section 3. Distributions.
(a) Payment of Distributions. Subject to the rights of holders
of Parity Preferred Stock as to the payment of distributions and holders of
equity securities issued after the date hereof in accordance herewith ranking
senior to the Series B Preferred Stock as to payment of distributions, holders
of Series B Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors of the Corporation, out of funds legally
available for the payment of distributions, cumulative cash distributions at the
rate per annum of 8.75% of the $100.00 liquidation preference per share of
Series B Preferred Stock (the "Distribution Rate"). Notwithstanding anything
herein to the contrary, the Distribution Rate shall be equal to the Coupon Rate
(as defined in Amendment No. 1 to the Third Amended and Restated Agreement of
Limited Partnership of Regency Centers, L.P.) in effect at the time of
2
issuance of the Series C Preferred Stock. Such distributions shall be
cumulative, shall accrue from the original date of issuance and will be payable
in cash (A) quarterly in arrears, on or before March 1, June 1, September 1 and
December 1 of each year commencing on the first of such dates to occur after the
original date of issuance and, (B) in the event of a redemption, on the
redemption date (each a "Series B Preferred Stock Distribution Payment Date").
The amount of the distribution payable for any period will be computed based on
the ratio basis of a 360-day year of twelve 30-day months and for any period
shorter than a full quarterly period for which distributions are computed, the
amount of the distribution payable will be computed on the basis of the actual
number of days elapsed in such quarterly period to 90 days. If any date on which
distributions are to be made on the Series B Preferred Stock is not a Business
Day (as defined herein), then payment of the distribution to be made on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. Distributions on the Series B Preferred Stock
will be made to the holders of record of the Series B Preferred Stock on the
relevant record dates to be fixed by the Board of Directors of the Corporation,
which record dates shall be not less than 10 days and not more than 30 Business
Days prior to the relevant Series B Preferred Stock Distribution Payment Date
(each a "Distribution Record Date"). Notwithstanding anything to the contrary
set forth herein, each share of Series B Preferred Stock shall also continue to
accrue all accrued and unpaid distributions, whether or not declared, up to the
exchange date on any Series B Preferred Unit (as defined in the Third Amended
and Restated Agreement of Limited Partnership of Regency Centers, L.P., dated as
September 1, 1999 as amended by that certain Amendment No. 1 to Third Amended
and Restated Agreement of Limited Partnership dated as of September 3, 1999 (as
amended, the "Partnership Agreement")) validly exchanged into such share of
Series B Preferred Stock in accordance with the provisions of such Partnership
Agreement.
The term "Business Day" shall mean each day, other than a
Saturday or a Sunday, which is not a day on which banking institutions in New
York, New York are authorized or required by law, regulation or executive order
to close.
(b) Distributions Cumulative. Distributions on the Series B
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series B Preferred Stock will accumulate as of the Series B Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid at
any time, without reference to a regular Series B Preferred Stock Distribution
Payment Date to holders of record of the Series B Preferred Stock on the record
date fixed by the Board of Directors which date shall be not less than 10 days
and not more than 30 Business Days prior to the payment date. Accumulated and
unpaid distributions will not bear interest.
3
(c) Priority as to Distributions.
(i) So long as any Series B Preferred Stock is
outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect
to any class or series of Common Stock or any class or series of other
stock of the Corporation ranking junior as to the payment of
distributions to the Series B Preferred Stock (such Common Stock or
other junior stock, collectively, "Junior Stock"), nor shall any
cash or other property be set aside for or applied to the purchase,
redemption or other acquisition for consideration of any Series B
Preferred Stock, any Parity Preferred Stock with respect to
distributions or any Junior Stock, unless in each case, all
distributions accumulated on all Series B Preferred Stock and all
classes and series of outstanding Parity Preferred Stock as to payment
of distributions have been paid in full. The foregoing sentence will
not prohibit (i) distributions payable solely in Junior Stock, (ii) the
conversion of Series B Preferred Stock, Junior Stock or Parity Preferred
Stock into stock of the Corporation ranking junior to the Series B
Preferred Stock as to distributions, and (iii) purchases by the
Corporation of such Series B Preferred Stock or Parity Preferred Stock
with respect to distributions or Junior Stock pursuant to Article 5 of
the Charter to the extent required to preserve the Corporation's status
as a real estate investment trust.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably deposited
in trust for payment) upon the Series B Preferred Stock, all
distributions authorized and declared on the Series B Preferred Stock
and all classes or series of outstanding Parity Preferred Stock with
respect to distributions shall be authorized and declared so that the
amount of distributions authorized and declared per share of Series B
Preferred Stock and such other classes or series of Parity Preferred
Stock shall in all cases bear to each other the same ratio that accrued
distributions per share on the Series B Preferred Stock and such other
classes or series of Parity Preferred Stock (which shall not include any
accumulation in respect of unpaid distributions for prior distribution
periods if such class or series of Parity Preferred Stock do not have
cumulative distribution rights) bear to each other.
(d) No Further Rights. Holders of Series B Preferred Stock
shall not be entitled to any distributions, whether payable in cash, other
property or otherwise, in excess of the full cumulative distributions described
herein.
Section 4. Liquidation Preference.
(a) Payment of Liquidation Distributions. Subject to the rights
of holders of Parity Preferred Stock with respect to rights upon any voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation, the
holders of Series B Preferred Stock shall be entitled to receive out of the
assets of the Corporation legally available for distribution or the proceeds
thereof, after payment or provision for debts and other liabilities of the
Corporation, but before any payment or distributions of the assets shall be made
to holders of Common
4
Stock or any other class or series of shares of the Corporation that
ranks junior to the Series B Preferred Stock as to rights upon liquidation,
dissolution or winding-up of the Corporation, an amount equal to the sum of (i)
a liquidation preference of $100.00 per share of Series B Preferred Stock, and
(ii) an amount equal to any accumulated and unpaid distributions thereon,
whether or not declared, to the date of payment. In the event that, upon such
voluntary or involuntary liquidation, dissolution or winding-up, there are
insufficient assets to permit full payment of liquidating distributions to the
holders of Series B Preferred Stock and any Parity Preferred Stock as to rights
upon liquidation, dissolution or winding-up of the Corporation, all payments of
liquidating distributions on the Series B Preferred Stock and such Parity
Preferred Stock shall be made so that the payments on the Series B Preferred
Stock and such Parity Preferred Stock shall in all cases bear to each other the
same ratio that the respective rights of the Series B Preferred Stock and such
other Parity Preferred Stock (which shall not include any accumulation in
respect of unpaid distributions for prior distribution periods if such Parity
Preferred Stock do not have cumulative distribution rights) upon liquidation,
dissolution or winding-up of the Corporation bear to each other.
(b) Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by (i) fax and (ii) by first
class mail, postage pre-paid, not less than 30 and not more that 60 days prior
to the payment date stated therein, to each record holder of the Series B
Preferred Stock at the respective addresses of such holders as the same shall
appear on the share transfer records of the Corporation.
(c) No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series B
Preferred Stock will have no right or claim to any of the remaining assets of
the Corporation.
(d) Consolidation Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the consolidation or merger or
other business combination of the Corporation with or into, any corporation,
trust or other entity (or of any corporation, trust or other entity with or into
the Corporation) shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Corporation.
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
5
Section 5. Optional Redemption.
(a) Right of Optional Redemption. The Series B Preferred Stock
may not be redeemed prior to September 3, 2004. On or after such date, the
Corporation shall have the right to redeem the Series B Preferred Stock, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' written notice, at a redemption price, payable in cash, equal
to $100.00 per share of Series B Preferred Stock plus accumulated and unpaid
distributions, whether or nor declared, to the date of redemption. If fewer than
all of the outstanding shares of Series B Preferred Stock are to be redeemed,
the shares of Series B Preferred Stock to be redeemed shall be selected pro rata
(as nearly as practicable without creating fractional shares).
(b) Limitation on Redemption.
(i) The redemption price of the Series B Preferred Stock
(other than the portion thereof consisting of accumulated but unpaid
distributions) will be payable solely out of sale proceeds of capital
stock of the Corporation and from no other source. For purposes of the
preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares, participation or
other ownership interests (however designated) and any rights (other
than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(ii) The Corporation may not redeem fewer than all of the
outstanding shares of Series B Preferred Stock unless all accumulated
and unpaid distributions have been paid on all Series B Preferred Stock
for all quarterly distribution periods terminating on or prior to the
date of redemption.
(c) Procedures for Redemption.
(i) Notice of redemption will be (i) faxed, and (ii)
mailed by the Corporation, postage prepaid, not less than 30 nor more
than 60 days prior to the redemption date, addressed to the respective
holders of record of the Series B Preferred Stock to be redeemed at
their respective addresses as they appear on the transfer records of
the Corporation. No failure to give or defect in such notice shall
affect the validity of the proceedings for the redemption of any
Series B Preferred Stock except as to the holder to whom such notice
was defective or not given. In addition to any information required
by law or by the applicable rules of any exchange upon which the
Series B Preferred Stock may be listed or admitted to trading, each
such notice shall state: (i) the redemption date, (ii) the
redemption price, (iii) the number of shares of Series B Preferred
Stock to be redeemed, (iv) the place or places where such shares of
Series B Preferred Stock are to be surrendered for payment of the
redemption price, (v) that distributions on the Series B Preferred
Stock to be redeemed will cease to accumulate on such redemption
date and (vi) that payment of the redemption price and any
accumulated and unpaid distributions will be made upon presentation
and surrender of such Series B Preferred
6
Stock. If fewer than all of the shares of Series B Preferred Stock held
by any holder are to be redeemed, the notice mailed to such holder shall
also specify the number of shares of Series B Preferred Stock held by
such holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in
respect of Series B Preferred Stock (which notice will be irrevocable)
then, by 12:00 noon, New York City time, on the redemption date, the
Corporation will deposit irrevocably in trust for the benefit of the
Series B Preferred Stock being redeemed funds sufficient to pay the
applicable redemption price' plus any accumulated and unpaid
distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any
accumulated and unpaid distributions, if any, on such shares to the
holders of the Series B Preferred Stock upon surrender of the
certificate evidencing the Series B Preferred Stock by such holders at
the place designated in the notice of redemption. If fewer than all
Series B Preferred Stock evidenced by any certificate is being redeemed,
a new certificate shall be issued upon surrender of the certificate
evidencing all Series B Preferred Stock, evidencing the unredeemed
Series B Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on
the Series B Preferred Stock or portions thereof called for redemption,
unless the Corporation defaults in the payment thereof. If any date
fixed for redemption of Series B Preferred Stock is not a Business Day,
then payment of the redemption price payable on such date will be made
on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if
such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date fixed for redemption. If
payment of the redemption price or any accumulated or unpaid
distributions in respect of the Series B Preferred Stock is improperly
withheld or refused and not paid by the Corporation, distributions on
such Series B Preferred Stock will continue to accumulate from the
original redemption date to the date of payment, in which case the
actual payment date will be considered the date fixed for redemption for
purposes of calculating the applicable redemption price and any
accumulated and unpaid distributions.
(d) Status of Redeemed Stock. Any Series B Preferred Stock that
shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
class or series until such shares are once more designated as part of a
particular class or series by the Board of Directors.
Section 6. Voting Rights.
(a) General. Holders of the Series B Preferred Stock will not
have any voting rights, except as set forth below.
(b) Right to Elect Directors.
7
(i) If at any time distributions shall be in arrears
(which means that as to any such quarterly distributions, the same have
not been paid in full) with respect to six (6) prior quarterly
distribution periods (including quarterly periods on the Series B
Preferred Units prior to the exchange into Series B Preferred Stock),
whether or not consecutive, and shall not have been paid in full (a
"Series B Preferred Distribution Default"), the authorized number of
members of the Board of Directors shall automatically be increased by
two and the holders of record of such Series B Preferred Stock, voting
together as a single class with the holders of each class or series of
Parity Preferred Stock upon which like voting rights have been conferred
and are exercisable, will be entitled to fill the vacancies so created
by electing two additional directors to serve on the Corporation's Board
of Directors (the "Preferred Stock Directors") at a special meeting
called in accordance with Section 6(b)(ii), and at each subsequent
annual meeting of stockholders or special meeting held in place thereof,
until all such distributions in arrears and distributions for the
current quarterly period on the Series B Preferred Stock and each
such class or series of Parity Preferred Stock have been paid in
full.
(ii) At any time when such voting rights shall have
vested, a proper officer of the Corporation shall call or cause to be
called, upon written request of holders of record of at least 10% of the
outstanding shares of Series B Preferred Stock, a special meeting of
the holders of Series B Preferred Stock and all the series of Parity
Preferred Stock upon which like voting rights have been conferred
and are exercisable (collectively, the "Parity Securities") by mailing
or causing to be mailed to such holders a notice of such special meeting
to be held not less than ten and not more than 45 days after the date
such notice is given. The record date for determining holders of the
Parity Securities entitled to notice of and to vote at such special
meeting will be the close of business on the third Business Day
preceding the day on which such notice is mailed. At any annual or
special meeting at which Parity Securities are entitled to vote, all of
the holders of the Parity Securities, by plurality vote, voting together
as a single class without regard to series will be entitled to elect two
directors on the basis of one vote per $25.00 of liquidation preference
to which such Parity Securities are entitled by their terms (excluding
amounts in respect of accumulated and unpaid dividends) and not
cumulatively. The holder or holders of the Parity Securities
representing one-third of the total voting power of the Parity
Securities then outstanding, present in person or by proxy, will
constitute a quorum for the election of the Preferred Stock Directors
except as otherwise provided by law. Notice of all meetings at which
holders of the Series B Preferred Stock shall be entitled to vote will
be given to such holders at their addresses as they appear in the
transfer records. At any such meeting or adjournment thereof in the
absence of a quorum, subject to the provisions of any applicable law,
the holders of the Parity Securities representing a majority of the
voting power of the Parity Securities present in person or by proxy
shall have the power to adjourn the meeting for the election of the
Preferred Stock Directors, without notice other than an announcement
at the meeting, until a quorum is present. If a Series B Preferred
Distribution Default shall terminate after the notice of an annual
or special meeting has been given but before such special meeting
has been held, the Corporation shall, as soon as practicable after
8
such termination, mail or cause to be mailed notice of such
termination to holders of the Series B Preferred Stock that would
have been entitled to vote at such meeting.
(iii) If and when all accumulated distributions and the
distribution for the current distribution period on the Series B
Preferred Stock shall have been paid in full or a sum sufficient for
such payment is irrevocably deposited in trust for payment, the holders
of the Series B Preferred Stock shall be divested of the voting rights
set forth in Section 6(b) herein (subject to revesting in the event of
each and every Series B Preferred Distribution Default) and, if all
distributions in arrears and the distributions for the current
distribution period have been paid in full or set aside for payment in
full on all other classes or series of Parity Preferred Stock upon which
like voting rights have been conferred and are exercisable, the terms
and office of each Preferred Stock Director so elected shall terminate.
Any Preferred Stock Director may be removed at any time with or without
cause by the vote of, and shall not be removed otherwise than by the
vote of, the holders of record of a majority of the outstanding Series B
Preferred Stock when they have the voting rights set forth in Section
6(b) (voting separately as a single class with all other classes or
series of Parity Preferred Stock upon which like voting rights have been
conferred and are exercisable). So long as a Series B Preferred
Distribution Default shall continue, any vacancy in the office of a
Preferred Stock Director may be filled by written consent of the
Preferred Stock Director remaining in office, or if none remains in
office, by a vote of the holders of record of a majority of the
outstanding Series B Preferred Stock when they have the voting rights
set forth in Section 6(b) (voting separately as a single class with all
other classes or series of Parity Preferred Stock upon which like voting
rights have been conferred and are exercisable). The Preferred Stock
Directors shall each be entitled to one vote per director on any matter.
(c) Certain Voting Rights. So long as any Series B Preferred
Stock or Series C Preferred Unit remains outstanding, the Corporation shall
not, without the affirmative vote of the holders of at least two-thirds of the
Series B Preferred Stock and Series B Preferred Units outstanding at the time
(together, if applicable, voting as a single class) (collectively, the "Voting
Securities") (i) designate or create, or increase the authorized or issued
amount of, any class or series of shares ranking prior to the Series B Preferred
Stock with respect to payment of distributions or rights upon liquidation,
dissolution or winding-up or reclassify any authorized shares of the Corporation
into any such shares, or create, authorize or issue any obligations or
securities convertible into or evidencing the right to purchase any such shares,
(ii) designate or create, or increase the authorized or issued amount of, any
Parity Preferred Stock or reclassify any authorized shares of the Corporation
into any such shares, or create, authorize or issue any obligations or
securities convertible into or evidencing the right to purchase any such shares,
but only to the extent such Parity Preferred Stock is issued to an affiliate of
the Corporation (other than Security Capital U.S. Realty, Security Capital
Holdings, S.A. or their affiliates purchasing preferred stock of the same series
on the same terms as non-affiliates), or (iii) either (A) consolidate, merge
into or with, or convey, transfer or lease its assets substantially as an
entirety, to any corporation or other entity, or (B) amend, alter or repeal the
provisions of the Corporation's Charter (including these Articles of
9
Amendment) or By-laws, whether by merger, consolidation or otherwise, in each
case that would materially and adversely affect the powers, special rights,
preferences, privileges or voting power of the Series B Preferred Stock or the
holders thereof; provided, however, that with respect to the occurrence of a
merger, consolidation or a sale or lease of all of the Corporation's assets
as an entirety, so long as (a) the Corporation is the surviving entity and the
Series B Preferred Stock remains outstanding (or remains exchangeable for Series
B Preferred Units) with the terms thereof unchanged, or (b) the resulting,
surviving or transferee entity is a corporation organized under the laws of any
state and substitutes the Series B Preferred Stock for other preferred stock
having substantially the same terms and same rights as the Series B Preferred
Stock, including with respect to distributions, voting rights and rights upon
liquidation, dissolution or winding-up, then the occurrence of any such event
shall not be deemed to materially and adversely affect such rights, privileges
or voting powers of the holders of the Series B Preferred Stock and no vote of
the Series B Preferred Stock shall be required in such case and provided further
that any increase in the amount of authorized Preferred Stock or the creation or
issuance of any other class or series of Preferred Stock, or any increase in an
amount of authorized shares of each class or series, in each case ranking either
(a) junior to the Series B Preferred Stock with respect to payment of
distributions and the distribution of assets upon liquidation, dissolution or
winding-up, or (b) on a parity with the Series B Preferred Stock with respect to
payment of distributions and the distribution of assets upon liquidation,
dissolution or winding-up to the extent such Preferred Stock is not issued to an
affiliate of the Corporation (other than Security Capital U.S. Realty, Security
Capital Holdings, S.A. or their affiliates purchasing preferred stock of the
same series on the same terms as non-affiliates), shall not be deemed to
materially and adversely affect such rights, preferences, privileges or voting
powers and no vote of the Voting Securities shall be required in such case.
Section 7. No Conversion Rights. The holders of the Series B Preferred
Stock shall not have any rights to convert such shares into shares of any other
class or series of stock or into any other securities of, or interest in, the
Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for
the retirement or redemption of Series B Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series B Preferred
Stock of the Corporation shall, as such holder, have any preemptive rights to
purchase or subscribe for additional shares of stock of the Corporation or any
other security of the Corporation which it may issue or sell.
10
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
1
Amendment) and authorizing the issuance of up to 750,000 shares of 9.0% Series C
Cumulative Redeemable Preferred Stock.
THIRD: The class of Preferred Stock of the Corporation created by
the resolutions duly adopted by the Board of Directors of the Corporation and by
the Committee and referred to in Articles First and Second of these Articles of
Amendment shall have the following designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitation as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
Section 1. Designation and Number. A series of Preferred Stock,
designated the "9.0% Series C Cumulative Redeemable Preferred Stock" (the
"Series C Preferred Stock") is hereby established. The number of shares of
Series C Preferred Stock shall be 750,000.
Section 2. Rank. The Series C Preferred Stock will, with respect to
distributions or rights upon voluntary or involuntary liquidation, winding-up or
dissolution of the Corporation, or both, rank senior to all classes or series of
Common Stock (as defined in the Charter) and to all classes or series of equity
securities of the Corporation now or hereafter authorized, issued or outstanding
other than any class or series of equity securities of the Corporation expressly
designated as ranking on a parity with or senior to the Series C Preferred Stock
as to distributions or rights upon voluntary or involuntary liquidation,
winding-up or dissolution of the Corporation, or both. For purposes of these
Articles of Amendment, the term "Parity Preferred Stock" shall be used to refer
to any class or series of equity securities of the Corporation now or hereafter
authorized, issued or outstanding expressly designated by the Corporation to
rank on a parity with Series C Preferred Stock with respect to distributions or
rights upon voluntary or involuntary liquidation, winding-up or dissolution of
the Corporation, or both, as the context may require, whether or not the
dividend rates, dividend payment dates or redemption or liquidation prices per
share or conversion rights or exchange rights shall be different from those of
the Series C Preferred Stock. The term "equity securities" does not include debt
securities, which will rank senior to the Series C Preferred Stock prior to
conversion. The Series C Preferred Stock is expressly designated as ranking on a
parity with the Series A Preferred Stock and the Series B Preferred Stock.
Section 3. Distributions.
(a) Payment of Distributions. Subject to the rights of holders
of Parity Preferred Stock as to the payment of distributions and holders of
equity securities issued after the date hereof in accordance herewith ranking
senior to the Series C Preferred Stock as to payment of distributions, holders
of Series C Preferred Stock shall be entitled to receive, out of funds legally
available for the payment of distributions, cumulative preferential cash
distributions at the rate per annum of 9.0% of the $100.00 liquidation
preference per share of Series C Preferred Stock. Such distributions shall be
cumulative, shall accrue from the original date of issuance and will be payable
in cash when, as and if declared by the Board of Directors of the Corporation
(A) quarterly in arrears, on or before March 31, June 30, September 30 and
December 31 of each year commencing on the first of such dates to occur after
the original
2
date of issuance and, (B) in the event of a redemption, on the redemption date
(each a "Series C Preferred Stock Distribution Payment Date"). The amount of the
distribution payable for any period will be computed on the basis of a 360-day
year of twelve 30-day months and for any period shorter than a full quarterly
period for which distributions are computed, the amount of the distribution
payable will be computed based on the ratio of the actual number of days elapsed
in such quarterly period to 90 days. If any date on which distributions are to
be made on the Series C Preferred Stock is not a Business Day (as defined
herein), then payment of the distribution to be made on such date will be made
on the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date. Distributions on the Series C Preferred Stock will be
made to the holders of record of the Series C Preferred Stock on the relevant
record dates to be fixed by the Board of Directors of the Corporation, which
record dates shall be not less than 10 days and not more than 30 Business Days
prior to the relevant Series C Preferred Stock Distribution Payment Date (each a
"Distribution Record Date"). Notwithstanding anything to the contrary set forth
herein, each share of Series C Preferred Stock shall also continue to accrue all
accrued and unpaid distributions, whether or not declared, up to the exchange
date on any Series C Preferred Unit (as defined in the Third Amended and
Restated Agreement of Limited Partnership of Regency Centers, L.P., dated as
September 1, 1999 as amended by that certain Amendment No. 2 to Third Amended
and Restated Agreement of Limited Partnership dated as of September 3, 1999 (as
amended, the "Partnership Agreement")) validly exchanged into such share of
Series C Preferred Stock in accordance with the provisions of such Partnership
Agreement.
The term "Business Day" shall mean each day, other than a Saturday
or a Sunday, which is not a day on which banking institutions in New York, New
York are authorized or required by law, regulation or executive order to close.
(b) Distributions Cumulative. Distributions on the Series C
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series C Preferred Stock will accumulate as of the Series C Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid at
any time, without reference to a regular Series C Preferred Stock Distribution
Payment Date to holders of record of the Series C Preferred Stock on the record
date fixed by the Board of Directors which date shall be not less than 10 days
and not more than 30 Business Days prior to the payment date. Accumulated and
unpaid distributions will not bear interest.
3
(c) Priority as to Distributions.
(i) So long as any Series C Preferred Stock is
outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect
to any class or series of Common Stock or any class or series of other
stock of the Corporation ranking junior as to the payment of
distributions to the Parity Preferred Stock (such Common Stock or other
junior stock, collectively, "Junior Stock"), nor shall any cash or other
property be set aside for or applied to the purchase, redemption or
other acquisition for consideration of any Series C Preferred Stock, any
Parity Preferred Stock with respect to distributions or any Junior
Stock, unless in each case, all distributions accumulated on all Series
C Preferred Stock and all classes and series of outstanding Parity
Preferred Stock as to payment of distributions have been paid in full.
The foregoing sentence will not prohibit (i) distributions payable
solely in Junior Stock, (ii) the conversion of Series C Preferred Stock,
Junior Stock or Parity Preferred Stock into stock of the Corporation
ranking junior to the Series C Preferred Stock as to distributions, and
(iii) purchases by the Corporation of such Series C Preferred Stock or
Parity Preferred Stock with respect to distributions or Junior Stock
pursuant to Article 5 of the Charter to the extent required to preserve
the Corporation's status as a real estate investment trust.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably deposited
in trust for payment) upon the Series C Preferred Stock, all
distributions authorized and declared on the Series C Preferred Stock
and all classes or series of outstanding Parity Preferred Stock with
respect to distributions shall be authorized and declared so that the
amount of distributions authorized and declared per share of Series C
Preferred Stock and such other classes or series of Parity Preferred
Stock shall in all cases bear to each other the same ratio that accrued
distributions per share on the Series C Preferred Stock and such other
classes or series of Parity Preferred Stock (which shall not include any
accumulation in respect of unpaid distributions for prior distribution
periods if such class or series of Parity Preferred Stock does not have
cumulative distribution rights) bear to each other.
(d) No Further Rights. Holders of Series C Preferred Stock
shall not be entitled to any distributions, whether payable in cash, other
property or otherwise, in excess of the full cumulative distributions described
herein.
Section 4. Liquidation Preference.
(a) Payment of Liquidation Distributions. Subject to the rights
of holders of Parity Preferred Stock with respect to rights upon any voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation and
subject to equity securities ranking senior to the Series C Preferred Stock with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Series C Preferred Stock shall be
entitled to receive out of the assets of the Corporation legally available for
4
distribution or the proceeds thereof, after payment or provision for debts and
other liabilities of the Corporation, but before any payment or distributions of
the assets shall be made to holders of Common Stock or any other class or series
of shares of the Corporation that ranks junior to the Series C Preferred Stock
as to rights upon liquidation, dissolution or winding-up of the Corporation, an
amount equal to the sum of (i) a liquidation preference of $100.00 per share of
Series C Preferred Stock, and (ii) an amount equal to any accumulated and unpaid
distributions thereon, whether or not declared, to the date of payment. In the
event that, upon such voluntary or involuntary liquidation, dissolution or
winding-up, there are insufficient assets to permit full payment of liquidating
distributions to the holders of Series C Preferred Stock and any Parity
Preferred Stock as to rights upon liquidation, dissolution or winding-up of the
Corporation, all payments of liquidating distributions on the Series C Preferred
Stock and such Parity Preferred Stock shall be made so that the payments on the
Series C Preferred Stock and such Parity Preferred Stock shall in all cases bear
to each other the same ratio that the respective rights of the Series C
Preferred Stock and such other Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior distribution
periods if such Parity Preferred Stock does not have cumulative distribution
rights) upon liquidation, dissolution or winding-up of the Corporation bear to
each other.
(b) Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by (i) fax and (ii) by first
class mail, postage pre-paid, not less than 30 and not more than 60 days prior
to the payment date stated therein, to each record holder of the Series C
Preferred Stock at the respective addresses of such holders as the same shall
appear on the share transfer records of the Corporation.
(c) No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series C
Preferred Stock will have no right or claim to any of the remaining assets of
the Corporation.
(d) Consolidation Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the consolidation or merger or
other business combination of the Corporation with or into, any corporation,
trust or other entity (or of any corporation, trust or other entity with or into
the Corporation) shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Corporation.
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
5
Section 5. Optional Redemption.
(a) Right of Optional Redemption. The Series C Preferred Stock
may not be redeemed prior to September 3, 2004. On or after such date, the
Corporation shall have the right to redeem the Series C Preferred Stock, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' written notice, at a redemption price, payable in cash, equal
to $100.00 per share of Series C Preferred Stock plus accumulated and unpaid
distributions, whether or nor declared, to the date of redemption. If fewer than
all of the outstanding shares of Series C Preferred Stock are to be redeemed,
the shares of Series C Preferred Stock to be redeemed shall be selected pro rata
(as nearly as practicable without creating fractional shares).
(b) Limitation on Redemption.
(i) The redemption price of the Series C Preferred Stock
(other than the portion thereof consisting of accumulated but unpaid
distributions) will be payable solely out of sale proceeds of capital
stock of the Corporation and from no other source. For purposes of the
preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares, participation or
other ownership interests (however designated) and any rights (other
than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(ii) The Corporation may not redeem fewer than all of the
outstanding shares of Series C Preferred Stock unless all accumulated
and unpaid distributions have been paid on all Series C Preferred Stock
for all quarterly distribution periods terminating on or prior to the
date of redemption.
(c) Procedures for Redemption.
(i) Notice of redemption will be (i) faxed, and (ii)
mailed by the Corporation, postage prepaid, not less than 30 nor more
than 60 days prior to the redemption date, addressed to the respective
holders of record of the Series C Preferred Stock to be redeemed at
their respective addresses as they appear on the transfer records of the
Corporation. No failure to give or defect in such notice shall affect
the validity of the proceedings for the redemption of any Series C
Preferred Stock except as to the holder to whom such notice was
defective or not given. In addition to any information required by law
or by the applicable rules of any exchange upon which the Series C
Preferred Stock may be listed or admitted to trading, each such notice
shall state: (i) the redemption date, (ii) the redemption price, (iii)
the number of shares of Series C Preferred Stock to be redeemed, (iv)
the place or places where such shares of Series C Preferred Stock are to
be surrendered for payment of the redemption price, (v) that
distributions on the Series C Preferred Stock to be redeemed will cease
to accumulate on such redemption date and (vi) that payment of the
redemption price and any accumulated and unpaid distributions will be
made upon presentation and surrender of such Series C Preferred Stock.
If fewer than all of the shares of Series C Preferred
6
Stock held by any holder are to be redeemed, the notice mailed to such
holder shall also specify the number of shares of Series C Preferred
Stock held by such holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in
respect of Series C Preferred Stock (which notice will be irrevocable)
then, by 12:00 noon, New York City time, on the redemption date, the
Corporation will deposit irrevocably in trust for the benefit of the
Series C Preferred Stock being redeemed funds sufficient to pay the
applicable redemption price, plus any accumulated and unpaid
distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any
accumulated and unpaid distributions, if any, on such shares to the
holders of the Series C Preferred Stock upon surrender of the
certificate evidencing the Series C Preferred Stock by such holders at
the place designated in the notice of redemption. If fewer than all
Series C Preferred Stock evidenced by any certificate is being redeemed,
a new certificate shall be issued upon surrender of the certificate
evidencing all Series C Preferred Stock, evidencing the unredeemed
Series C Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on
the Series C Preferred Stock or portions thereof called for redemption,
unless the Corporation defaults in the payment thereof. If any date
fixed for redemption of Series C Preferred Stock is not a Business Day,
then payment of the redemption price payable on such date will be made
on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if
such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date fixed for redemption. If
payment of the redemption price or any accumulated or unpaid
distributions in respect of the Series C Preferred Stock is improperly
withheld or refused and not paid by the Corporation, distributions on
such Series C Preferred Stock will continue to accumulate from the
original redemption date to the date of payment, in which case the
actual payment date will be considered the date fixed for redemption
for purposes of calculating the applicable redemption price and any
accumulated and unpaid distributions.
(d) Status of Redeemed Stock. Any Series C Preferred Stock that
shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
class or series until such shares are once more designated as part of a
particular class or series by the Board of Directors.
7
Section 6. Voting Rights.
(a) General. Holders of the Series C Preferred Stock will not
have any voting rights, except as set forth below.
(b) Right to Elect Directors.
(i) If at any time distributions shall be in arrears
(which means that as to any such quarterly distributions, the same have
not been paid in full) with respect to six (6) prior quarterly
distribution periods (including quarterly periods on the Series C
Preferred Units prior to the exchange into Series C Preferred Stock),
whether or not consecutive, and shall not have been paid in full (a
"Series C Preferred Distribution Default"), the authorized number of
members of the Board of Directors shall automatically be increased by
two and the holders of record of such Series C Preferred Stock, voting
together as a single class with the holders of each class or series of
Parity Preferred Stock upon which like voting rights have been conferred
and are exercisable, will be entitled to fill the vacancies so created
by electing two additional directors to serve on the Corporation's
Board of Directors (the "Preferred Stock Directors") at a special
meeting called in accordance with Section 6(b)(ii), and at each
subsequent annual meeting of stockholders or special meeting held in
place thereof, until all such distributions in arrears and distributions
for the current quarterly period on the Series C Preferred Stock and
each such class or series of Parity Preferred Stock have been paid in
full.
(ii) At any time when such voting rights shall have
vested, a proper officer of the Corporation shall call or cause to be
called, upon written request of holders of record of at least 10% of the
outstanding shares of Series C Preferred Stock, a special meeting of the
holders of Series C Preferred Stock and all the series of Parity
Preferred Stock upon which like voting rights have been conferred and
are exercisable (collectively, the "Parity Securities") by mailing or
causing to be mailed to such holders a notice of such special meeting to
be held not less than ten and not more than 45 days after the date such
notice is given. The record date for determining holders of the Parity
Securities entitled to notice of and to vote at such special meeting
will be the close of business on the third Business Day preceding the
day on which such notice is mailed. At any annual or special meeting at
which Parity Securities are entitled to vote, all of the holders of the
Parity Securities, by plurality vote, voting together as a single class
without regard to series will be entitled to elect two directors on the
basis of one vote per $25.00 of liquidation preference to which such
Parity Securities are entitled by their terms (excluding amounts in
respect of accumulated and unpaid dividends) and not cumulatively.
The holder or holders of the Parity Securities representing one-third
of the total voting power of the Parity Securities then outstanding,
present in person or by proxy, will constitute a quorum for the election
of the Preferred Stock Directors except as otherwise provided by law.
Notice of all meetings at which holders of the Series C Preferred Stock
shall be entitled to vote will be given to such holders at their
addresses as they appear in the transfer records. At any such meeting or
adjournment thereof in
8
the absence of a quorum, subject to the provisions of any applicable
law, the holders of the Parity Securities representing a majority of the
voting power of the Parity Securities present in person or by proxy
shall have the power to adjourn the meeting for the election of the
Preferred Stock Directors, without notice other than an announcement at
the meeting, until a quorum is present. If a Series C Preferred
Distribution Default shall terminate after the notice of an annual or
special meeting has been given but before such meeting has been held,
the Corporation shall, as soon as practicable after such termination,
mail or cause to be mailed notice of such termination to holders of the
Series C Preferred Stock that would have been entitled to vote at such
meeting.
(iii) If and when all accumulated distributions and the
distribution for the current distribution period on the Series C
Preferred Stock shall have been paid in full or a sum sufficient for
such payment is irrevocably deposited in trust for payment, the holders
of the Series C Preferred Stock shall be divested of the voting rights
set forth in Section 6(b) herein (subject to revesting in the event of
each and every Series C Preferred Distribution Default) and, if all
distributions in arrears and the distributions for the current
distribution period have been paid in full or set aside for payment in
full on all other classes or series of Parity Preferred Stock upon which
like voting rights have been conferred and are exercisable, the terms
and office of each Preferred Stock Director so elected shall terminate.
Any Preferred Stock Director may be removed at any time with or without
cause by the vote of, and shall not be removed otherwise than by the
vote of, the holders of record of a majority of the outstanding Series C
Preferred Stock when they have the voting rights set forth in Section
6(b) (voting separately as a single class with all other classes or
series of Parity Preferred Stock upon which like voting rights have been
conferred and are exercisable). So long as a Series C Preferred
Distribution Default shall continue, any vacancy in the office of a
Preferred Stock Director may be filled by written consent of the
Preferred Stock Director remaining in office, or if none remains in
office, by a vote of the holders of record of a majority of the
outstanding Series C Preferred Stock when they have the voting rights
set forth in Section 6(b) (voting separately as a single class with all
other classes or series of Parity Preferred Stock upon which like voting
rights have been conferred and are exercisable). The Preferred Stock
Directors shall each be entitled to one vote per director on any matter.
(c) Certain Voting Rights. So long as any Series C Preferred
Stock remains outstanding, the Corporation shall not, without the affirmative
vote of the holders of at least two-thirds of the Series C Preferred Stock
outstanding at the time (i) authorize, designate or create, or increase the
authorized or issued amount of, any class or series of shares ranking prior to
the Series C Preferred Stock with respect to payment of distributions or rights
upon liquidation, dissolution or winding-up or reclassify any authorized shares
of the Corporation into any such shares, or create, authorize or issue any
obligations or securities convertible into or evidencing the right to purchase
any such shares, (ii) authorize, designate or create, or increase the authorized
or issued amount of, any Parity Preferred Stock or reclassify any authorized
shares of the Corporation into any such shares, or create, authorize or issue
any obligations or securities convertible into or evidencing the right to
purchase any such shares,
9
but only to the extent such Parity Preferred Stock is issued to an affiliate of
the Corporation (other than Security Capital U.S. Realty, Security Capital
Holdings, S.A. or their affiliates), or (iii) either (A) consolidate, merge into
or with, or convey, transfer or lease its assets substantially as an entirety,
to any corporation or other entity, or (B) amend, alter or repeal the provisions
of the Corporation's Charter (including these Articles of Amendment) or By-laws,
hether by merger, consolidation or otherwise, in each case in a manner that
would materially and adversely affect the powers, special rights, preferences,
privileges or voting power of the Series C Preferred Stock or the holders
thereof; provided, however, that with respect to the occurrence of a merger,
consolidation or a sale or lease of all of the Corporation's assets as an
entirety, so long as (a) the Corporation is the surviving entity and the Series
C Preferred Stock remains outstanding with the terms thereof unchanged, or (b)
the resulting, surviving or transferee entity is a corporation organized under
the laws of any state and substitutes the Series C Preferred Stock for other
preferred stock having substantially the same terms and same rights as the
Series C Preferred Stock, including with respect to distributions, redemptions,
transfers, voting rights and rights upon liquidation, dissolution or winding-up,
then the occurrence of any such event shall not be deemed to materially and
adversely affect such rights, privileges or voting powers of the holders of the
Series C Preferred Stock and no vote of the Series C Preferred Stock shall be
required in such case and provided further that any increase in the amount of
authorized Preferred Stock or the creation or issuance of any other class or
series of Preferred Stock, or any increase in an amount of authorized shares of
each class or series, in each case ranking either (a) junior to the Series C
Preferred Stock with respect to payment of distributions and the distribution
of assets upon liquidation, dissolution or winding-up, or (b) on a parity with
the Series C Preferred Stock with respect to payment of distributions and the
distribution of assets upon liquidation, dissolution or winding-up to the extent
such Preferred Stock is not issued to an affiliate of the Corporation (other
than Security Capital U.S. Realty, Security Capital Holdings, S.A. or their
affiliates), shall not be deemed to materially and adversely affect such rights,
preferences, privileges or voting powers and no vote of the Series C Preferred
Stock shall be required in such case.
Section 7. No Conversion Rights. The holders of the Series C Preferred
Stock shall not have any rights to convert such shares into shares of any other
class or series of stock or into any other securities of, or interest in, the
Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for
the retirement or redemption of Series C Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series C Preferred
Stock of the Corporation shall, as such holder, have any preemptive rights to
purchase or subscribe for additional shares of stock of the Corporation or any
other security of the Corporation which it may issue or sell.
10
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
1
Amendment) and authorizing the issuance of up to 500,000 shares of 9.125% Series
D Cumulative Redeemable Preferred Stock.
THIRD: The class of Preferred Stock of the Corporation created by
the resolutions duly adopted by the Board of Directors of the Corporation and by
the Committee and referred to in Articles FIRST and SECOND of these Articles of
Amendment shall have the following designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitation as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
Section 1. Designation and Number. A series of Preferred Stock,
designated the "9.125% Series D Cumulative Redeemable Preferred Stock" (the
"Series D Preferred Stock") is hereby established. The number of shares of
Series D Preferred Stock shall be 500,000.
Section 2. Rank. The Series D Preferred Stock will, with respect to
distributions and rights upon voluntary or involuntary liquidation, winding-up
or dissolution of the Corporation, rank senior to all classes or series of
Common Stock (as defined in the Charter) and to all classes or series of equity
securities of the Corporation now or hereafter authorized, issued or
outstanding, other than any class or series of equity securities of the
Corporation expressly designated as ranking on a parity with or senior to the
Series D Preferred Stock as to distributions or rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the Corporation or both.
For purposes of these Articles of Amendment, the term "Parity Preferred Stock"
shall be used to refer to any class or series of equity securities of the
Corporation now or hereafter authorized, issued or outstanding expressly
designated by the Corporation to rank on a parity with Series D Preferred Stock
with respect to distributions or rights upon voluntary or involuntary
liquidation, winding-up or dissolution of the Corporation or both, as the
context may require, whether or not the dividend rates, dividend payment dates
or redemption or liquidation prices per share or conversion rights or exchange
rights shall be different from those of the Series D Preferred Stock and
includes the Series A Cumulative Redeemable Preferred Stock, the Series B
Cumulative Redeemable Preferred Stock, the Series C Cumulative Redeemable
Preferred Stock, the Series 1 Cumulative Convertible Redeemable Preferred Stock
and the Series 2 Cumulative Convertible Redeemable Preferred Stock of the
Corporation. The term "equity securities" does not include debt securities,
which will rank senior to the Series D Preferred Stock prior to conversion.
Section 3. Distributions.
(a) Payment of Distributions. Subject to the rights of holders
of Parity Preferred Stock as to the payment of distributions and holders of
equity securities issued after the date hereof in accordance herewith ranking
senior to the Series D Preferred Stock as to payment of distributions, holders
of Series D Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors of the Corporation, out of funds legally
available for the payment of distributions, cumulative cash distributions at the
rate per annum of 9.125% of the $100.00 liquidation preference per share of
Series D Preferred Stock. Such distributions shall be cumulative, shall accrue
from the original date of issuance and will be
2
payable in cash (A) quarterly (such quarterly periods for purposes of payment
and accrual will be the quarterly periods ending on the dates specified in this
sentence) in arrears, on or before March 31, June 30, September 30 and December
31 of each year commencing on the first of such dates to occur after the
original date of issuance and, (B) in the event of a redemption, on the
redemption date (each a "Preferred Stock Distribution Payment Date"). The amount
of the distribution payable for any period will be computed on the basis of a
360-day year of twelve 30-day months and for any period shorter than a full
quarterly period for which distributions are computed, the amount of the
distribution payable will be computed on the basis of the ratio of the actual
umber of days elapsed in such period to ninety (90) days. If any date on which
distributions are to be made on the Series D Preferred Stock is not a Business
Day (as defined herein), then payment of the distribution to be made on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. Distributions on the Series D Preferred Stock
will be made to the holders of record of the Series D Preferred Stock on the
relevant record dates to be fixed by the Board of Directors of the Corporation,
which record dates shall be not less than 10 days and not more than 30 Business
Days prior to the relevant Preferred Stock Distribution Payment Date (each a
"Distribution Record Date"). Notwithstanding anything to the contrary set forth
herein, each share of Series D Preferred Stock shall also continue to accrue all
accrued and unpaid distributions, whether or not declared, up to the exchange
date on any Series D Preferred Unit (as defined in the Third Amended and
Restated Agreement of Limited Partnership of Regency Centers, L.P., dated as
September 1, 1999 as amended by Amendment No. 1 to the Third Amended and
Restated Agreement of Limited Partnership of Operating Partnership, dated as of
September 3, 1999, Amendment No. 2 to the Third Amended and Restated Agreement
of Limited Partnership of Operating Partnership, dated as of September 3, 1999
and that certain Third Amendment to Third Amended and Restated Agreement of
Limited Partnership dated as of September 29, 1999 (as amended the Partnership
Agreement")) validly exchanged into such share of Series D Preferred Stock in
accordance with the provisions of such Partnership Agreement.
The term "Business Day" shall mean each day, other than
a Saturday or a Sunday, which is not a day on which banking institutions in New
York, New York are authorized or required by law, regulation or executive order
to close.
(b) Limitation on Distributions. No distribution on the Series
D Preferred Stock shall be declared or paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement of the
Corporation (other than any agreement with a holder or affiliate of holder of
Capital Stock of the Corporation) relating to its indebtedness, prohibit such
declaration, payment or setting apart for payment or provide that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration, payment or setting
apart for payment shall be restricted or prohibited by law. Nothing in
this Section 3(b) shall be deemed to modify or in any manner limit the
provisions of Section 3(c) and 3(d).
3
(c) Distributions Cumulative. Distributions on the Series D
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series D Preferred Stock will accumulate as of the Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid
at any time, without reference to a regular Preferred Stock Distribution Payment
Date to holders of record of the Series D Preferred Stock on the record date
fixed by the Board of Directors which date shall be not less than 10 days and
not more than 30 Business Days prior to the payment date. Accumulated and unpaid
distributions will not bear interest.
(d) Priority as to Distributions.
(i) So long as any Series D Preferred Stock is
outstanding, no distribution of cash or other property shall be authorized,
declared, paid or set apart for payment on or with respect to any class or
series of Common Stock or any class or series of other stock of the Corporation
ranking junior to the Series D Preferred Stock as to the payment of
distributions (such Common Stock or other junior stock, collectively, "Junior
Stock"), nor shall any cash or other property be set aside for or applied to the
purchase, redemption or other acquisition for consideration of any Series D
Preferred Stock, any Parity Preferred Stock with respect to distributions or any
Junior Stock, unless, in each case, all distributions accumulated on all Series
D Preferred Stock and all classes and series of outstanding Parity Preferred
Stock with respect to distributions have been paid in full. Without limiting
Section 6(b) hereof, the foregoing sentence will not prohibit (i) distributions
payable solely in shares of Junior Stock, (ii) the conversion of Junior Stock or
Parity Preferred Stock into Junior Stock, and (iii) purchases by the Corporation
of such Series D Preferred Stock or Parity Preferred Stock or Junior Stock
pursuant to Article 5 of the Charter to the extent required to preserve the
Corporation's status as a real estate investment trust.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably deposited
in trust for payment) upon the Series D Preferred Stock, all
distributions authorized and declared on the Series D Preferred
Stock and all classes or series of outstanding Parity Preferred
Stock with respect to distributions shall be authorized and declared
so that the amount of distributions authorized and declared per
share of Series D Preferred Stock and such other classes or series
of Parity Preferred Stock shall in all cases bear to each other the
same ratio that accrued distributions per share on the Series D
Preferred Stock and such other classes or series of Parity Preferred
Stock (which shall not include any accumulation in respect of unpaid
distributions for prior distribution periods if such class or series
of Parity Preferred Stock do not have cumulative distribution
rights) bear to each other.
4
(e) No Further Rights. Holders of Series D Preferred Stock
shall not be entitled to any distributions, whether payable in cash, other
property or otherwise, in excess of the full cumulative distributions described
herein.
Section 4. Liquidation Preference.
(a) Payment of Liquidating Distributions. Subject to the rights
of holders of Parity Preferred Stock with respect to rights upon any voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation and
subject to equity securities ranking senior to the Series D Preferred Stock with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Series D Preferred Stock shall be
entitled to receive out of the assets of the Corporation legally available for
distribution or the proceeds thereof, after payment or provision for debts and
other liabilities of the Corporation, but before any payment or distributions of
the assets shall be made to holders of Common Stock or any other class or series
of shares of the Corporation that ranks junior to the Series D Preferred Stock
as to rights upon liquidation, dissolution or winding-up of the Corporation, an
amount equal to the sum of (i) a liquidation preference of $100 per share of
Series D Preferred Stock, and (ii) an amount equal to any accumulated and unpaid
distributions thereon, whether or not declared, to the date of payment. In the
event that, upon such voluntary or involuntary liquidation, dissolution or
winding-up, there are insufficient assets to permit full payment of liquidating
distributions to the holders of Series D Preferred Stock and any Parity
Preferred Stock as to rights upon liquidation, dissolution or winding-up of the
Corporation, all payments of liquidating distributions on the Series D Preferred
Stock and such Parity Preferred Stock shall be made so that the payments on the
Series D Preferred Stock and such Parity Preferred Stock shall in all cases bear
to each other the same ratio that the respective rights of the Series D
Preferred Stock and such other Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior distribution
periods if such Parity Preferred Stock do not have cumulative distribution
rights) upon liquidation, dissolution or winding-up of the Corporation bear to
each other.
(b) Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by (i) fax and (ii) by first
class mail, postage pre-paid, not less than 30 and not more than 60 days prior
to the payment date stated therein, to each record holder of the Series D
Preferred Stock at the respective addresses of such holders as the same shall
appear on the share transfer records of the Corporation.
(c) No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series D
Preferred Stock will have no right or claim to any of the remaining assets of
the Corporation.
(d) Consolidation, Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the
5
consolidation or merger or other business combination of the Corporation with or
into, any corporation, trust or other entity (or of any corporation, trust or
other entity with or into the Corporation) shall not be deemed to constitute a
liquidation, dissolution or winding-up of the Corporation.
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
Section 5. Optional Redemption.
(a) Right of Optional Redemption. The Series D Preferred Stock
may not be redeemed prior to September 29, 2004. On or after such date, the
Corporation shall have the right to redeem the Series D Preferred Stock, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' written notice, at a redemption price, payable in cash, equal
to $100 per share of Series D Preferred Stock plus accumulated and unpaid
distributions, whether or nor declared, to the date of redemption. If fewer than
all of the outstanding shares of Series D Preferred Stock are to be redeemed,
the shares of Series D Preferred Stock to be redeemed shall be selected pro rata
(as nearly as practicable without creating fractional units).
(b) Limitation on Redemption.
(i) The redemption price of the Series D Preferred Stock
(other than the portion thereof consisting of accumulated but unpaid
distributions) will be payable solely out of sale proceeds of capital stock of
the Corporation and from no other source. For purposes of the preceding
sentence, "capital stock" means any equity securities (including Common Stock
and Preferred Stock), shares, participation or other ownership interests
(however designated) and any rights (other than debt securities convertible into
or exchangeable for equity securities) or options to purchase any of the
foregoing.
(ii) The Corporation may not redeem fewer than all of the
outstanding shares of Series D Preferred Stock unless all accumulated and unpaid
distributions have been paid on all Series D Preferred Stock for all quarterly
distribution periods terminating on or prior to the date of redemption.
(c) Procedures for Redemption.
(i) Notice of redemption will be (i) faxed, and (ii)
mailed by the Corporation, postage prepaid, not less than 30 nor more
than 60 days prior to the redemption date, addressed to the respective
holders of record of the Series D Preferred
6
Stock to be redeemed at their respective addresses as they appear on the
transfer records of the Corporation. No failure to give or defect in
such notice shall affect the validity of the proceedings for the
redemption of any Series D Preferred Stock except as to the holder to
whom such notice was defective or not given. In addition to any
information required by law or by the applicable rules of any exchange
upon which the Series D Preferred Stock may be listed or admitted to
trading, each such notice shall state: (i) the redemption date, (ii)
the redemption price, (iii) the number of shares of Series D Preferred
Stock to be redeemed, (iv) the place or places where such shares of
Series D Preferred Stock are to be surrendered for payment of the
redemption price, (v) that distributions on the Series D Preferred Stock
to be redeemed will cease to accumulate on such redemption date and
(vi) that payment of the redemption price and any accumulated and unpaid
distributions will be made upon presentation and surrender of such
Series D Preferred Stock. If fewer than all of the shares of Series D
Preferred Stock held by any holder are to be redeemed, the notice mailed
to such holder shall also specify the number of shares of Series D
Preferred Stock held by such holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in
respect of Series D Preferred Stock (which notice will be irrevocable)
then, by 12:00 noon, New York City time, on the redemption date, the
Corporation will deposit irrevocably in trust for the benefit of the
Series D Preferred Stock being redeemed funds sufficient to pay the
applicable redemption price, plus any accumulated and unpaid
distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any
accumulated and unpaid distributions, if any, on such shares to the
holders of the Series D Preferred Stock upon surrender of the
certificate evidencing the Series D Preferred Stock by such holders at
the place designated in the notice of redemption. If fewer than all
Series D Preferred Stock evidenced by any certificate is being redeemed,
a new certificate shall be issued upon surrender of the certificate
evidencing all Series D Preferred Stock, evidencing the unredeemed
Series D Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on
the Series D Preferred Stock or portions thereof called for redemption,
unless the Corporation defaults in the payment thereof. If any date
fixed for redemption of Series D Preferred Stock is not a Business Day,
then payment of the redemption price payable on such date will be made
on the next succeeding day that is a Business Bay (and without any
interest or other payment in respect of any such delay) except that, if
such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date fixed for redemption. If
payment of the redemption price or any accumulated or unpaid
distributions in respect of the Series D Preferred Stock is improperly
withheld or refused and not paid by the Corporation, distributions on
such Series D Preferred Stock will continue to accumulate from the
original redemption date to the date of payment, in which case the
actual payment date will be considered the date fixed for redemption for
purposes of
7
calculating the applicable redemption price and any accumulated and
unpaid distributions.
(d) Status of Redeemed Stock. Any Series D Preferred Stock that
shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
class or series until such shares are once more designated as part of a
particular class or series by the Board of Directors.
Section 6. Voting Rights.
(a) General. Holders of the Series D Preferred Stock will not
have any voting rights, except as set forth below.
(b) Right to Elect Directors.
(i) If at any time distributions shall be in arrears
(which means that, as to any such quarterly distributions, the same have
not been paid in full) with respect to six (6) prior quarterly
distribution periods (including quarterly periods on the Series D
Preferred Units prior to the exchange into Series D Preferred Stock),
whether or not consecutive, and shall not have been paid in full (a
"Preferred Distribution Default"), the authorized number of members of
the Board of Directors shall automatically be increased by two and the
holders of record of such Series D Preferred Stock, voting together as a
single class with the holders of each class or series of Parity
Securities (as defined below), will be entitled to fill the vacancies so
created by electing two additional directors to serve on the
Corporation's Board of Directors (the "Preferred Stock Directors") at a
special meeting called in accordance with Section 6(b)(ii) or at the
next annual meeting of stockholders, and at each subsequent annual
meeting of stockholders or special meeting held in place thereof, until
all such distributions in arrears and distributions for the current
quarterly period on the Series D Preferred Stock and each such class or
series of Parity Securities have been paid in full.
(ii) At any time when such voting rights shall have
vested, a proper officer of the Corporation shall call or cause to be
called, upon written request of holders of record of at least 10% of the
outstanding shares of Series D Preferred Stock, a special meeting of the
holders of Series D Preferred Stock and all the series of Parity
Preferred Stock which are (i) on parity with the Series D Preferred
Stock both as to distributions and rights upon liquidation, dissolution
and winding up, (ii) with respect to Parity Preferred Stock outstanding
as a result of an acquisition of another corporation, on parity with the
Series D Preferred Stock as to distributions only or with respect to
distributions and rights upon liquidation, dissolution or winding up or
(iii) on parity with the Series D Preferred Stock as to distributions,
but junior as to rights upon liquidation, dissolution and winding up,
but if any such Parity Preferred Stock referred to in this clause (iii)
was issued for an amount less than its liquidation preference, the
holders thereof shall be entitled to one vote for each $25.00 of
issuance price, in lieu of one vote for each $25.00 of liquidation
preference, and upon which like voting rights have been conferred and
are exercisable (collectively, the "Parity Securities") by
8
mailing or causing to be mailed to such holders a notice of such special
meeting to be held not less than ten and not more than 45 days after the
date such notice is given. The record date for determining holders of
the Parity Securities entitled to notice of and to vote at such special
meeting will be the close of business on the third Business Day
preceding the day on which such notice is mailed. At any annual or
special meeting at which Parity Securities are entitled to vote, all of
the holders of the Parity Securities, by plurality vote, voting together
as a single class without regard to series will be entitled to elect two
directors on the basis of one vote per $25.00 of liquidation preference
to which such Parity Securities are entitled by their terms (excluding
amounts in respect of accumulated and unpaid dividends) and not
cumulatively. The holder or holders of the Parity Securities
representing one-third of the total voting power of the Parity
Securities then outstanding, present in person or by proxy, will
constitute a quorum for the election of the Preferred Stock Directors
except as otherwise provided by law. Notice of all meetings at which
holders of the Series D Preferred Stock shall be entitled to vote will
be given to such holders at their addresses as they appear in the
transfer records. At any such meeting or adjournment thereof in the
absence of a quorum, subject to the provisions of any applicable law,
the holders of the Parity Securities representing a majority of the
voting power of the Parity Securities present in person or by proxy
shall have the power to adjourn the meeting for the election of the
Preferred Stock Directors, without notice other than an announcement at
the meeting, until a quorum is present. If a Preferred Distribution
Default shall terminate after the notice of an annual or special meeting
has been given but before such meeting has been held, the Corporation
shall, as soon as practicable after such termination, mail or cause to
be mailed notice of such termination to holders of the Series D
Preferred Stock that would have been entitled to vote at such meeting.
(iii) If and when all accumulated distributions and the
distribution for the current distribution period on the Series D
Preferred Stock shall have been paid in full or a sum sufficient for
such payment is irrevocably deposited in trust for payment, the holders
of the Series D Preferred Stock shall be divested of the voting rights
set forth in Section 6(b) herein (subject to revesting in the event of
each and every Preferred Distribution Default) and, if all distributions
in arrears and the distributions for the current distribution period
have been paid in full or set aside for payment in full on all other
classes or series of Parity Securities upon which like voting rights
have been conferred and are exercisable, the term and office of each
Preferred Stock Director so elected shall terminate. Any Preferred
Stock Director may be removed at any time with or without cause by the
vote of, and shall not be removed otherwise than by the vote of, the
holders of record of a majority of the outstanding Series D Preferred
Stock when they have the voting rights set forth in Section 6(b) (voting
separately as a single class with all other classes or series of Parity
Preferred Stock upon which like voting rights have been conferred and
are exercisable). So long as a Preferred Distribution Default shall
continue, any vacancy in the office of a Preferred Stock Director may be
filled by written consent of the Preferred Stock Director remaining in
office, or if none remains in office, by a vote of the holders of record
of a majority of the outstanding Series D Preferred Stock when they have
the voting rights set forth in
9
Section 6(b) (voting separately as a single class with all other classes
or series of Parity Securities upon which like voting rights have been
conferred and are exercisable). The Preferred Stock Directors shall
each be entitled to one vote per director on any matter.
(c) Certain Voting Rights. So long as any Series D Preferred
Stock remains outstanding, the Corporation shall not, without the affirmative
vote of the holders of at least two-thirds of the Series D Preferred Stock and
the Series D Preferred Units outstanding at such time and not previously
surrendered in exchange for Series D Preferred Stock together, if applicable,
voting as a single class based on the number of shares into which such Series D
Preferred Units are then convertible (collectively, the "Series D Voting
Securities") (i) designate or create, or increase the authorized or issued
amount of, any class or series of shares ranking senior to the Series D
Preferred Stock with respect to payment of distributions or rights upon
liquidation, dissolution or winding-up or reclassify any authorized shares of
the Corporation into any such shares, or create, authorize or issue any
obligations or securities convertible into or evidencing the right to purchase
any such shares, (ii) designate or create, or increase the authorized or issued
amount of, any Parity Preferred Stock or reclassify any authorized shares of the
Corporation into any such shares, or create, authorize or issue any obligations
or securities convertible into or evidencing the right to purchase any such
shares, but only to the extent such Parity Preferred Stock is issued to an
affiliate of the Corporation (other than Security Capital U.S. Realty,
Security Capital Holdings, S.A. or their affiliates if issued upon arms-length
terms in the good faith determination of the Board of Directors), or (iii)
either (A) consolidate, merge into or with, or convey, transfer or lease its
assets substantially as an entirety, to any corporation or other entity, or (B)
amend, alter or repeal the provisions of the Corporation?s Charter (including
these Articles of Amendment) or By-laws, whether by merger, consolidation
or otherwise, in each case that would materially and adversely affect the
powers, special rights, preferences, privileges or voting power of the Series D
Preferred Stock or the holders thereof; provided, however, that with respect to
the occurrence of a merger, consolidation or a sale or lease of all of the
Corporation's assets as an entirety, so long as (a) the Corporation is the
surviving entity and the Series D Preferred Stock remains outstanding with the
terms thereof unchanged, or (b) the resulting, surviving or transferee entity is
a corporation organized under the laws of any state and substitutes the Series D
Preferred Stock for other preferred stock having substantially the same terms
and same rights as the Series D Preferred Stock, including with respect to
distributions, voting rights and rights upon liquidation, dissolution or
winding-up, then the occurrence of any such event shall not be deemed to
materially and adversely affect such rights, privileges or voting powers of the
holders of the Series D Preferred Stock and no vote of the Series D Voting
Securities shall be required in such case; and provided further that any
increase in the amount of authorized Preferred Stock or the creation or issuance
of any other class or series of Preferred Stock, or any increase in an amount of
authorized shares of each class or series, in each case ranking either (a)
junior to the Series D Preferred Stock with respect to payment of distributions
or the distribution of assets upon liquidation, dissolution or winding-up, or
(b) on a parity with the Series D Preferred Stock with respect to payment of
distributions or the distribution of assets upon liquidation, dissolution or
winding-up to the extent such Preferred Stock is not issued to a affiliate of
the Corporation (other than Security Capital U.S. Realty, Security Capital
Holdings, S.A. or their affiliates if issued upon arms-length terms in the good
10
faith determination of the Board of Directors), shall not be deemed to
materially and adversely affect such rights, preferences, privileges or voting
powers and no vote of the Series D Preferred Stock shall be required in such
case.
Section 7. No Conversion Rights. The holders of the Series D Preferred
Stock shall not have any rights to convert such shares into shares of any other
class or series of stock or into any other securities of, or interest in, the
Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for
the retirement or redemption of Series D Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series D Preferred
Stock of the Corporation shall, as such holder, have any preemptive rights to
purchase or subscribe for additional shares of stock of the Corporation or any
other security of the Corporation which it may issue or sell.
11
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:
ARTICLE 1: Pursuant to the authority expressly vested in the Board
of Directors of the Corporation by Section 4.2 of the Amended and Restated
Articles of Incorporation of the Corporation (as amended, the "Charter") and
Section 607.0602 of the FBCA, the Board of Directors of the Corporation (the
"Board of Directors"), by resolutions duly adopted on May 25, 2000 has
classified 700,000 shares of the authorized but unissued Preferred Stock par
value $.0l per share ("Preferred Stock") as a separate class of Preferred Stock,
authorized the issuance of a maximum of 700,000 shares of such class of
Preferred Stock, set certain of the preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications, terms
and conditions of redemption and other terms and conditions of such class of
Preferred Stock, and pursuant to the powers contained in the Bylaws of the
Corporation and the FBCA, appointed a committee (the "Committee") of the Board
of Directors and delegated to the Committee, to the fullest extent permitted by
the FBCA and the Charter and Bylaws of the Corporation, all powers of the Board
of Directors with respect to designating, and setting all other preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends and other distributions, qualifications and terms and conditions of
redemption of, such class of Preferred Stock, determining the number of shares
of such class of Preferred Stock (not in excess of the aforesaid maximum number)
to be issued and the consideration and other terms and conditions upon which
such shares of such class of Preferred Stock are to be issued. Shareholder
approval was not required under the Charter with respect to such designation.
Capitalized terms used and not otherwise defined herein shall have the meaning
assigned thereto in the Charter.
ARTICLE II: Pursuant to the authority conferred upon the Committee
as aforesaid, the Committee has unanimously adopted resolutions designating the
aforesaid class of Preferred Stock as the "8.75% Series E Cumulative Redeemable
Preferred Stock," setting the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such 8.75% Series E
Cumulative Redeemable Preferred Stock (to the extent not set by the Board of
Directors in the resolutions referred to in Article 0 of these Articles of
Amendment)
1
and authorizing the issuance of up to 700,000 shares of 8.75% Series E
Cumulative Redeemable Preferred Stock.
ARTICLE III: The class of Preferred Stock of the Corporation created
by the resolutions duly adopted by the Board of Directors of the Corporation and
by the Committee and referred to in Articles 0 and 0 of these Articles of
Amendment shall have the following designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitation as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
Section 1. Designation and Number. A series of Preferred Stock,
designated the "8.75% Series E Cumulative Redeemable Preferred Stock" (the
"Series E Preferred Stock") is hereby established. The number of shares of
Series E Preferred Stock shall be 700,000.
Section 2. Rank. The Series E Preferred Stock will, with respect to
distributions or rights upon voluntary or involuntary liquidation, winding-up or
dissolution of the Corporation, or both, rank senior to all classes or series of
Common Stock (as defined in the Charter) and to all classes or series of equity
securities of the Corporation now or hereafter authorized, issued or outstanding
other than any class or series of equity securities of the Corporation expressly
designated as ranking on a parity with or senior to the Series E Preferred Stock
as to distributions or rights upon voluntary or involuntary liquidation,
winding-up or dissolution of the Corporation, or both. For purposes of these
Articles of Amendment, the term "Parity Preferred Stock" shall be used to refer
to any class or series of equity securities of the Corporation now or hereafter
authorized, issued or outstanding expressly designated by the Corporation to
rank on a parity with Series E Preferred Stock with respect to distributions or
rights upon voluntary or involuntary liquidation, winding-up or dissolution of
the Corporation, or both, as the context may require, whether or not the
dividend rates, dividend payment dates or redemption or liquidation prices per
share or conversion rights or exchange rights shall be different from those of
the Series E Preferred Stock. The term "equity securities" does not include debt
securities, which will rank senior to the Series E Preferred Stock prior to
conversion. The Series E Preferred Stock is expressly designated as ranking on a
parity with the Series 1 Cumulative Convertible Redeemable Preferred Stock, the
Series 2 Cumulative Convertible Redeemable Preferred Stock, Series A Preferred
Stock, the Series B Preferred Stock, the Series C Preferred Stock and the Series
D Preferred Stock.
Section 3. Distributions
(a) Payment of Distributions. Subject to the rights of holders
of Parity Preferred Stock as to the payment of distributions and holders of
equity securities issued after the date hereof in accordance herewith ranking
senior to the Series E Preferred Stock as to payment of distributions, holders
of Series E Preferred Stock shall be entitled to receive, out of funds legally
available for the payment of distributions, cumulative preferential cash
distributions at the rate per annum of 8.75% of the $100.00 liquidation
preference per share of Series E Preferred Stock. Such distributions shall be
cumulative, shall accrue from the original date of issuance and will be payable
in cash when, as and if declared by the Board of Directors
2
of the Corporation (A) quarterly in arrears, on or before March 31, June 30,
September 30 and December 31 of each year commencing on the first of such dates
to occur after the original date of issuance and, (B) in the event of a
redemption, on the redemption date (each a "Series E Preferred Stock
Distribution Payment Date"). The amount of the distribution payable for any
period will be computed on the basis of a 360-day year of twelve 30-day months
and for any period shorter than a full quarterly period for which distributions
are computed, the amount of the distribution payable will be computed based on
the ratio of the actual number of days elapsed in such quarterly period to 90
days. If any date on which distributions are to be made on the Series E
Preferred Stock is not a Business Day (as defined herein), then payment of the
distribution to be made on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
Distributions on the Series E Preferred Stock will be made to the holders of
record of the Series E Preferred Stock on the relevant record dates to be fixed
by the Board of Directors of the Corporation, which record dates shall be not
less than 10 days and not more than 30 Business Days prior to the relevant
Series E Preferred Stock Distribution Payment Date (each a "Distribution Record
Date"). Notwithstanding anything to the contrary set forth herein, each share of
Series E Preferred Stock shall also continue to accrue all accrued and unpaid
distributions, whether or not declared, up to the exchange date on any Series E
Preferred Unit (as defined in the Third Amended and Restated Agreement of
Limited Partnership of Regency Centers, L.P., dated as September 1, 1999 as
amended by that certain Amendment No. 4 to Third Amended and Restated Agreement
of Limited Partnership dated as of May 25, 2000 (as amended, the "Partnership
Agreement")) validly exchanged into such share of Series E Preferred Stock in
accordance with the provisions of such Partnership Agreement.
The term "Business Day" shall mean each day, other than a Saturday
or a Sunday, which is not a day on which banking institutions in New York, New
York are authorized or required by law, regulation or executive order to close.
(b) Distributions Cumulative. Distributions on the Series E
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series E Preferred Stock will accumulate as of the Series E Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid at
any time, without reference to a regular Series E Preferred Stock Distribution
Payment Date to holders of record of the Series E Preferred Stock on the record
date fixed by the Board of Directors which date shall be not less than 10 days
and not more than 30 Business Days prior to the payment date. Accumulated and
unpaid distributions will not bear interest.
3
(c) Priority as to Distributions.
(i) So long as any Series E Preferred Stock is
outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect
to any class or series of Common Stock or any class or series of other
stock of the Corporation ranking junior as to the payment of
distributions to the Parity Preferred Stock (such Common Stock or other
junior stock, collectively, "Junior Stock"), nor shall any cash or other
property be set aside for or applied to the purchase, redemption or
other acquisition for consideration of any Series E Preferred Stock, any
Parity Preferred Stock with respect to distributions or any Junior
Stock, unless in each case, all distributions accumulated on all Series
E Preferred Stock and all classes and series of outstanding Parity
Preferred Stock as to payment of distributions have been paid in full.
The foregoing sentence will not prohibit (i) distributions payable
solely in Junior Stock, (ii) the conversion of Series E Preferred Stock,
Junior Stock or Parity Preferred Stock into stock of the Corporation
ranking junior to the Series E Preferred Stock as to distributions, and
(iii) purchases by the Corporation of such Series E Preferred Stock or
Parity Preferred Stock with respect to distributions or Junior Stock
pursuant to Article 5 of the Charter to the extent required to preserve
the Corporation's status as a real estate investment trust.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably deposited
in trust for payment) upon the Series E Preferred Stock, all
distributions authorized and declared on the Series E Preferred Stock
and all classes or series of outstanding Parity Preferred Stock with
respect to distributions shall be authorized and declared so that the
amount of distributions authorized and declared per share of Series E
Preferred Stock and such other classes or series of Parity Preferred
Stock shall in all cases bear to each other the same ratio that accrued
distributions per share on the Series E Preferred Stock and such other
classes or series of Parity Preferred Stock (which shall not include any
accumulation in respect of unpaid distributions for prior distribution
periods if such class or series of Parity Preferred Stock does not have
cumulative distribution rights) bear to each other.
(d) No Further Rights. Holders of Series E Preferred Stock
shall not be entitled to any distributions, whether payable in cash, other
property or otherwise, in excess of the full cumulative distributions described
herein.
Section 4. Liquidation Preference.
(a) Payment of Liquidation Distributions. Subject to the rights
of holders of Parity Preferred Stock with respect to rights upon any voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation and
subject to equity securities ranking senior to the Series E Preferred Stock with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Series E Preferred Stock shall be
entitled to receive out of the assets of the Corporation legally available for
4
distribution or the proceeds thereof, after payment or provision for debts and
other liabilities of the Corporation, but before any payment or distributions of
the assets shall be made to holders of Common Stock or any other class or series
of shares of the Corporation that ranks junior to the Series E Preferred Stock
as to rights upon liquidation, dissolution or winding-up of the Corporation, an
amount equal to the sum of (i) a liquidation preference of $100.00 per share of
Series E Preferred Stock, and (ii) an amount equal to any accumulated and unpaid
distributions thereon, whether or not declared, to the date of payment. In the
event that, upon such voluntary or involuntary liquidation, dissolution or
winding-up, there are insufficient assets to permit full payment of liquidating
distributions to the holders of Series E Preferred Stock and any Parity
Preferred Stock as to rights upon liquidation, dissolution or winding-up of the
Corporation, all payments of liquidating distributions on the Series E Preferred
Stock and such Parity Preferred Stock shall be made so that the payments on the
Series E Preferred Stock and such Parity Preferred Stock shall in all cases bear
to each other the same ratio that the respective rights of the Series E
Preferred Stock and such other Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior distribution
periods if such Parity Preferred Stock does not have cumulative distribution
rights) upon liquidation, dissolution or winding-up of the Corporation bear to
each other.
(b) Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by (i) fax and (ii) by first
class mail, postage pre-paid, not less than 30 and not more than 60 days prior
to the payment date stated therein, to each record holder of the Series E
Preferred Stock at the respective addresses of such holders as the same shall
appear on the share transfer records of the Corporation.
(c) No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series E
Preferred Stock will have no right or claim to any of the remaining assets of
the Corporation.
(d) Consolidation Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the consolidation or merger or
other business combination of the Corporation with or into, any corporation,
trust or other entity (or of any corporation, trust or other entity with or into
the Corporation) shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Corporation.
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
5
Section 5. Optional Redemption.
(a) Right of Optional Redemption. The Series E Preferred Stock
may not be redeemed prior to May 25, 2005. On or after such date, the
Corporation shall have the right to redeem the Series E Preferred Stock, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' written notice, at a redemption price, payable in cash, equal
to $100.00 per share of Series E Preferred Stock plus accumulated and unpaid
distributions, whether or nor declared, to the date of redemption. If fewer than
all of the outstanding shares of Series E Preferred Stock are to be redeemed,
the shares of Series E Preferred Stock to be redeemed shall be selected pro rata
(as nearly as practicable without creating fractional shares).
(b) Limitation on Redemption.
(i) The redemption price of the Series E Preferred Stock
(other than the portion thereof consisting of accumulated but unpaid
distributions) will be payable solely out of sale proceeds of capital
stock of the Corporation and from no other source. For purposes of the
preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares, participation or
other ownership interests (however designated) and any rights (other
than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(ii) The Corporation may not redeem fewer than all of the
outstanding shares of Series E Preferred Stock unless all accumulated
and unpaid distributions have been paid on all Series E Preferred Stock
for all quarterly distribution periods terminating on or prior to the
date of redemption.
(c) Procedures for Redemption.
(i) Notice of redemption will be (i) faxed, and (ii)
mailed by the Corporation, postage prepaid, not less than 30 nor more
than 60 days prior to the redemption date, addressed to the respective
holders of record of the Series E Preferred Stock to be redeemed at
their respective addresses as they appear on the transfer records of the
Corporation. No failure to give or defect in such notice shall affect
the validity of the proceedings for the redemption of any Series E
Preferred Stock except as to the holder to whom such notice was
defective or not given. In addition to any information required by law
or by the applicable rules of any exchange upon which the Series E
Preferred Stock may be listed or admitted to trading, each such notice
shall state: (i) the redemption date, (ii) the redemption price, (iii)
the number of shares of Series E Preferred Stock to be redeemed, (iv)
the place or places where such shares of Series E Preferred Stock are to
be surrendered for payment of the redemption price, (v) that
distributions on the Series E Preferred Stock to be redeemed will cease
to accumulate on such redemption date and (vi) that payment of the
redemption price and any accumulated and unpaid distributions will be
made upon presentation and surrender of such Series E Preferred Stock.
If fewer than all of the shares of Series E Preferred
6
Stock held by any holder are to be redeemed, the notice mailed to such
holder shall also specify the number of shares of Series E Preferred
Stock held by such holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in
respect of Series E Preferred Stock (which notice will be irrevocable)
then, by 12:00 noon, New York City time, on the redemption date, the
Corporation will deposit irrevocably in trust for the benefit of the
Series E Preferred Stock being redeemed funds sufficient to pay the
applicable redemption price, plus any accumulated and unpaid
distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any
accumulated and unpaid distributions, if any, on such shares to the
holders of the Series E Preferred Stock upon surrender of the
certificate evidencing the Series E Preferred Stock by such holders at
the place designated in the notice of redemption. If fewer than all
Series E Preferred Stock evidenced by any certificate is being redeemed,
a new certificate shall be issued upon surrender of the certificate
evidencing all Series E Preferred Stock, evidencing the unredeemed
Series E Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on
the Series E Preferred Stock or portions thereof called for redemption,
unless the Corporation defaults in the payment thereof. If any date
fixed for redemption of Series E Preferred Stock is not a Business Day,
then payment of the redemption price payable on such date will be made
on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if
such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date fixed for redemption. If
payment of the redemption price or any accumulated or unpaid
distributions in respect of the Series E Preferred Stock is improperly
withheld or refused and not paid by the Corporation, distributions on
such Series E Preferred Stock will continue to accumulate from the
original redemption date to the date of payment, in which case the
actual payment date will be considered the date fixed for redemption for
purposes of calculating the applicable redemption price and any
accumulated and unpaid distributions.
(d) Status of Redeemed Stock. Any Series E Preferred Stock that
shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
class or series until such shares are once more designated as part of a
particular class or series by the Board of Directors.
7
Section 6. Voting Rights.
(a) General. Holders of the Series E Preferred Stock will not
have any voting rights, except as set forth below.
(b) Right to Elect Directors.
(i) If at any time distributions shall be in arrears
(which means that as to any such quarterly distributions, the same have
not been paid in full) with respect to six (6) prior quarterly
distribution periods (including quarterly periods on the Series E
Preferred Units prior to the exchange into Series E Preferred Stock),
whether or not consecutive, and shall not have been paid in full (a
"Series E Preferred Distribution Default"), the authorized number of
members of the Board of Directors shall automatically be increased by
two and the holders of record of such Series E Preferred Stock, voting
together as a single class with the holders of each class or series of
Parity Preferred Stock upon which like voting rights have been conferred
and are exercisable, will be entitled to fill the vacancies so created
by electing two additional directors to serve on the Corporation's
Board of Directors (the "Preferred Stock Directors") at a special
meeting called in accordance with Section 6(b)(i), and at each
subsequent annual meeting of stockholders or special meeting held in
place thereof, until all such distributions in arrears and distributions
for the current quarterly period on the Series E Preferred Stock and
each such class or series of Parity Preferred Stock have been paid in
full.
(ii) At any time when such voting rights shall have
vested, a proper officer of the Corporation shall call or cause to be
called, upon written request of holders of record of at least 10% of the
outstanding shares of Series E Preferred Stock, a special meeting of the
holders of Series E Preferred Stock and all the series of Parity
Preferred Stock upon which like voting rights have been conferred and
are exercisable (collectively, the "Parity Securities") by mailing or
causing to be mailed to such holders a notice of such special meeting to
be held not less than ten and not more than 45 days after the date such
notice is given. The record date for determining holders of the Parity
Securities entitled to notice of and to vote at such special meeting
will be the close of business on the third Business Day preceding the
day on which such notice is mailed. At any annual or special meeting at
which Parity Securities are entitled to vote, all of the holders of the
Parity Securities, by plurality vote, voting together as a single
class without regard to series will be entitled to elect two directors
on the basis of one vote per $25.00 of liquidation preference to which
such Parity Securities are entitled by their terms (excluding amounts
in respect of accumulated and unpaid dividends) and not cumulatively.
The holder or holders of the Parity Securities representing one-third of
the total voting power of the Parity Securities then outstanding,
present in person or by proxy, will constitute a quorum for the election
of the Preferred Stock Directors except as otherwise provided by law.
Notice of all meetings at which holders of the Series E Preferred Stock
shall be entitled to vote will be given to such holders at their
addresses as they appear in the transfer records. At any such meeting or
adjournment thereof in
8
the absence of a quorum, subject to the provisions of any applicable
law, the holders of the Parity Securities representing a majority of
the voting power of the Parity Securities present in person or by proxy
shall have the power to adjourn the meeting for the election of the
Preferred Stock Directors, without notice other than an announcement at
the meeting, until a quorum is present. If a Series E Preferred
Distribution Default shall terminate after the notice of an annual or
special meeting has been given but before such meeting has been held,
the Corporation shall, as soon as practicable after such termination,
mail or cause to be mailed notice of such termination to holders of the
Series E Preferred Stock that would have been entitled to vote at such
meeting.
(iii) If and when all accumulated distributions and the
distribution for the current distribution period on the Series E
Preferred Stock shall have been paid in full or a sum sufficient for
such payment is irrevocably deposited in trust for payment, the holders
of the Series E Preferred Stock shall be divested of the voting rights
set forth in Section 6(b) herein (subject to revesting in the event of
each and every Series E Preferred Distribution Default) and, if all
distributions in arrears and the distributions for the current
distribution period have been paid in full or set aside for payment in
full on all other classes or series of Parity Preferred Stock upon which
like voting rights have been conferred and are exercisable, the terms
and office of each Preferred Stock Director so elected shall terminate.
Any Preferred Stock Director may be removed at any time with or without
cause by the vote of, and shall not be removed otherwise than by the
vote of, the holders of record of a majority of the outstanding Series E
Preferred Stock when they have the voting rights set forth in Section
6(b) (voting separately as a single class with all other classes or
series of Parity Preferred Stock upon which like voting rights have been
conferred and are exercisable). So long as a Series E Preferred
Distribution Default shall continue, any vacancy in the office of a
Preferred Stock Director may be filled by written consent of the
Preferred Stock Director remaining in office, or if none remains in
office, by a vote of the holders of record of a majority of the
outstanding Series E Preferred Stock when they have the voting rights
set forth in Section 6(b) (voting separately as a single class with all
other classes or series of Parity Preferred Stock upon which like
voting rights have been conferred and are exercisable). The Preferred
Stock Directors shall each be entitled to one vote per director on any
matter.
(c) Certain Voting Rights. So long as any Series E Preferred
Stock remains outstanding, the Corporation shall not, without the affirmative
vote of the holders of at least two-thirds of the Series E Preferred Stock
outstanding at the time (i) authorize, designate or create, or increase the
authorized or issued amount of, any class or series of shares ranking prior to
the Series E Preferred Stock with respect to payment of distributions or rights
upon liquidation, dissolution or winding-up or reclassify any authorized shares
of the Corporation into any such shares, or create, authorize or issue any
obligations or securities convertible into or evidencing the right to purchase
any such shares,
9
(ii) authorize, designate or create, or increase the authorized or issued amount
of, any Parity Preferred Stock or reclassify any authorized shares of the
Corporation into any such shares, or create, authorize or issue any obligations
or securities convertible into or evidencing the right to purchase any such
shares, but only to the extent such Parity Preferred Stock is issued to an
affiliate of the Corporation (other than Security Capital U.S. Realty, Security
Capital Holdings, S.A. or their affiliates), or (iii) either (A) consolidate,
merge into or with, or convey, transfer or lease its assets substantially as an
entirety, to any corporation or other entity, or (B) amend, alter or repeal
the provisions of the Corporation's Charter (including these Articles of
Amendment) or By-laws, whether by merger, consolidation or otherwise, in each
case in a manner that would materially and adversely affect the powers, special
rights, preferences, privileges or voting power of the Series E Preferred Stock
or the holders thereof; provided, however, that with respect to the occurrence
of a merger, consolidation or a sale or lease of all of the Corporation's assets
as an entirety, so long as (a) the Corporation is the surviving entity and the
Series E Preferred Stock remains outstanding with the terms thereof unchanged,
or (b) the resulting, surviving or transferee entity is a corporation organized
under the laws of any state and substitutes the Series E Preferred Stock for
other preferred stock having substantially the same terms and same rights as the
Series E Preferred Stock, including with respect to distributions, redemptions,
transfers, voting rights and rights upon liquidation, dissolution or winding-up,
then the occurrence of any such event shall not be deemed to materially and
adversely affect such rights, privileges or voting powers of the holders of the
Series E Preferred Stock and no vote of the Series E Preferred Stock shall be
required in such case and provided further that any increase in the amount of
authorized Preferred Stock or the creation or issuance of any other class or
series of Preferred Stock, or any increase in an amount of authorized shares of
each class or series, in each case ranking either (a) junior to the Series E
Preferred Stock with respect to payment of distributions and the distribution
of assets upon liquidation, dissolution or winding-up, or (b) on a parity with
the Series E Preferred Stock with respect to payment of distributions and the
distribution of assets upon liquidation, dissolution or winding-up to the extent
such Preferred Stock is not issued to an affiliate of the Corporation (other
than Security Capital U.S. Realty, Security Capital Holdings, S.A. or their
affiliates), shall not be deemed to materially and adversely affect such rights,
preferences, privileges or voting powers and no vote of the Series E Preferred
Stock shall be required in such case.
Section 7. No Conversion Rights. The holders of the Series E Preferred
Stock shall not have any rights to convert such shares into shares of any other
class or series of stock or into any other securities of, or interest in, the
Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for
the retirement or redemption of Series E Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series E Preferred
Stock of the Corporation shall, as such holder, have any preemptive rights to
purchase or subscribe for additional shares of stock of the Corporation or any
other security of the Corporation which it may issue or sell.
10
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
1
Amendment) and authorizing the issuance of up to 240,000 shares of 8.75% Series
F Cumulative Redeemable Preferred Stock.
THIRD: The class of Preferred Stock of the Corporation created by
the resolutions duly adopted by the Board of Directors of the Corporation and by
the Committee and referred to in Articles FIRST and SECOND of these Articles of
Amendment shall have the following designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitation as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
Section 1. Designation and Number. A series of Preferred Stock,
designated the "8.75% Series F Cumulative Redeemable Preferred Stock" (the
"Series F Preferred Stock") is hereby established. The number of shares of
Series F Preferred Stock shall be 240,000.
Section 2. Rank. The Series F Preferred Stock will, with respect to
distributions and rights upon voluntary or involuntary liquidation, winding-up
or dissolution of the Corporation, rank senior to all classes or series of
Common Stock (as defined in the Charter) and to all classes or series of equity
securities of the Corporation now or hereafter authorized, issued or
outstanding, other than any class or series of equity securities of the
Corporation expressly designated as ranking on a parity with or senior to the
Series F Preferred Stock as to distributions or rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the Corporation or both.
For purposes of these Articles of Amendment, the term "Parity Preferred Stock"
shall be used to refer to any class or series of equity securities of the
Corporation now or hereafter authorized, issued or outstanding expressly
designated by the Corporation to rank on a parity with Series F Preferred Stock
with respect to distributions or rights upon voluntary or involuntary
liquidation, winding-up or dissolution of the Corporation or both, as the
context may require, whether or not the dividend rates, dividend payment dates
or redemption or liquidation prices per share or conversion rights or exchange
rights shall be different from those of the Series F Preferred Stock and
includes the Series A Cumulative Redeemable Preferred Stock, the Series B
Cumulative Redeemable Preferred Stock, the Series C Cumulative Redeemable
Preferred Stock, the Series D Cumulative Redeemable Preferred Stock, the Series
E Cumulative Redeemable Preferred Stock, the Series 1 Cumulative Convertible
Redeemable Preferred Stock and the Series 2 Cumulative Convertible Redeemable
Preferred Stock of the Corporation. The term "equity securities" does not
include debt securities, which will rank senior to the Series F Preferred Stock
prior to conversion.
Section 3. Distributions.
(a) Payment of Distributions. Subject to the rights of holders
of Parity Preferred Stock as to the payment of distributions and holders of
equity securities issued after the date hereof in accordance herewith ranking
senior to the Series F Preferred Stock as to payment of distributions, holders
of Series F Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors of the Corporation, out of funds legally
available for the payment of distributions, cumulative cash distributions at the
rate per annum of 8.75% of the $100.00 liquidation preference per share of
Series F Preferred Stock. Such distributions
2
shall be cumulative, shall accrue from the original date of issuance and will be
payable in cash (A) quarterly (such quarterly periods for purposes of payment
and accrual will be the quarterly periods ending on the dates specified in this
sentence) in arrears, on or before March 31, June 30, September 30 and December
31 of each year commencing on the first of such dates to occur after the
original date of issuance and, (B) in the event of a redemption, on the
redemption date (each a "Preferred Stock Distribution Payment Date"). The amount
of the distribution payable for any period will be computed on the basis of a
360-day year of twelve 30-day months and for any period shorter than a full
quarterly period for which distributions are computed, the amount of the
distribution payable will be computed on the basis of the ratio of the actual
number of days elapsed in such period to ninety (90) days. If any date on which
distributions are to be made on the Series F Preferred Stock is not a Business
Day (as defined herein), then payment of the distribution to be made on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. Distributions on the Series F Preferred Stock
will be made to the holders of record of the Series F Preferred Stock on the
relevant record dates to be fixed by the Board of Directors of the Corporation,
which record dates shall be not less than 10 days and not more than 30 Business
Days prior to the relevant Preferred Stock Distribution Payment Date (each a
"Distribution Record Date "). Notwithstanding anything to the contrary
set forth herein, each share of Series F Preferred Stock shall also continue to
accrue all accrued and unpaid distributions, whether or not declared, up to the
exchange date on any Series F Preferred Unit (as defined in the Third Amended
and Restated Agreement of Limited Partnership of Regency Centers, L.P., dated as
September 1, 1999 as amended by Amendment No. 1 to the Third Amended and
Restated Agreement of Limited Partnership of Operating Partnership, dated as of
September 3, 1999, Amendment No. 2 to the Third Amended and Restated Agreement
of Limited Partnership of Operating Partnership, dated as of September 3, 1999,
that certain Third Amendment to Third Amended and Restated Agreement of Limited
Partnership dated as of September 29, 1999, Amendment No. 4 to the Third Amended
and Restated Agreement of Limited Partnership of Operating Partnership, undated,
Amendment No. 5 to the Third Amended and Restated Agreement of Limited
Partnership of Operating Partnership, dated as of September 7, 2000, and that
certain Amendment No. 6 to the Third Amended and Restated Agreement of Limited
Partnership of Operating Partnership, dated as of September 8, 2000 (as amended
the "Partnership Agreement")) validly exchanged into such share of Series F
Preferred Stock in accordance with the provisions of such Partnership Agreement.
The term "Business Day" shall mean each day, other than
a Saturday or a Sunday, which is not a day on which banking institutions in New
York, New York are authorized or required by law, regulation or executive order
to close.
(b) Limitation on Distributions. No distribution on the Series
F Preferred Stock shall be declared or paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement of the
Corporation (other than any agreement with a holder or affiliate of holder of
Capital Stock (as defined in the Charter) of the Corporation)
3
relating to its indebtedness, prohibit such declaration, payment or setting
apart for payment or provide that such declaration, payment or setting apart for
payment would constitute a breach thereof or a default thereunder, or if such
declaration, payment or setting apart for payment shall be restricted or
prohibited by law. Nothing in this Section 3(b) shall be deemed to modify or in
any manner limit the provisions of Section 3(c) and 3(d).
(c) Distributions Cumulative. Distributions on the Series F
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series F Preferred Stock will accumulate as of the Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid at
any time, without reference to a regular Preferred Stock Distribution Payment
Date to holders of record of the Series F Preferred Stock on the record date
fixed by the Board of Directors which date shall be not less than 10 days and
not more than 30 Business Days prior to the payment date. Accumulated and
unpaid distributions will not bear interest.
(d) Priority as to Distributions.
(i) So long as any Series F Preferred Stock is
outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect
to any class or series of Common Stock or any class or series of other
stock of the Corporation ranking junior to the Series F Preferred Stock
as to the payment of distributions (such Common Stock or other junior
stock, collectively, "Junior Stock"), nor shall any cash or other
property be set aside for or applied to the purchase, redemption or
other acquisition for consideration of any Series F Preferred Stock, any
Parity Preferred Stock with respect to distributions or any Junior
Stock, unless, in each case, all distributions accumulated on all
Series F Preferred Stock and all classes and series of outstanding
Parity Preferred Stock with respect to distributions have been paid in
full. Without limiting Section 6(b) hereof, the foregoing sentence will
not prohibit (i) distributions payable solely in shares of Junior Stock,
(ii) the conversion of Junior Stock or Parity Preferred Stock into
Junior Stock, and (iii) purchases by the Corporation of such Series F
Preferred Stock or Parity Preferred Stock or Junior Stock pursuant to
Article 5 of the Charter to the extent required to preserve the
Corporation's status as a real estate investment trust.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably deposited
in trust for payment) upon the Series F Preferred Stock, all
distributions authorized and declared on the Series F Preferred Stock
and all classes or series of outstanding Parity Preferred Stock with
respect to distributions shall be authorized and declared so that the
amount of distributions authorized and declared per share of Series F
Preferred Stock and such other classes or series of Parity Preferred
Stock shall in all cases bear to each other the
4
same ratio that accrued distributions per share on the Series F
Preferred Stock and such other classes or series of Parity Preferred
Stock (which shall not include any accumulation in respect of unpaid
distributions for prior distribution periods if such class or series
of Parity Preferred Stock does not have cumulative distribution
rights) bear to each other.
(e) No Further Rights. Holders of Series F Preferred Stock
shall not be entitled to any distributions, whether payable in cash,
other property or otherwise, in excess of the full cumulative
distributions described herein.
Section 4. Liquidation Preference.
(a) Payment of Liquidating Distributions. Subject to the rights
of holders of Parity Preferred Stock with respect to rights upon any voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation and
subject to equity securities ranking senior to the Series F Preferred Stock with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Series F Preferred Stock shall be
entitled to receive out of the assets of the Corporation legally available for
distribution or the proceeds thereof, after payment or provision for debts and
other liabilities of the Corporation, but before any payment or distributions of
the assets shall be made to holders of Common Stock or any other class or series
of shares of the Corporation that ranks junior to the Series F Preferred Stock
as to rights upon liquidation, dissolution or winding-up of the Corporation, an
amount equal to the sum of (i) a liquidation preference of $100 per share of
Series F Preferred Stock, and (ii) an amount equal to any accumulated and unpaid
distributions thereon, whether or not declared, to the date of payment. In the
event that, upon such voluntary or involuntary liquidation, dissolution or
winding-up, there are insufficient assets to permit full payment of liquidating
distributions to the holders of Series F Preferred Stock and any Parity
Preferred Stock as to rights upon liquidation, dissolution or winding-up of the
Corporation, all payments of liquidating distributions on the Series F Preferred
Stock and such Parity Preferred Stock shall be made so that the payments on the
Series F Preferred Stock and such Parity Preferred Stock shall in all cases bear
to each other the same ratio that the respective rights of the Series F
Preferred Stock and such other Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior distribution
periods if such Parity Preferred Stock do not have cumulative distribution
rights) upon liquidation, dissolution or winding-up of the Corporation bear to
each other.
(b) Notice. Written notice of any such voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation, stating
the payment date or dates when, and the place or places where, the amounts
distributable in such circumstances shall be payable, shall be given by (i) fax
and (ii) by first class mail, postage pre-paid, not less than 30 and not more
than 60 days prior to the payment date stated therein, to each record holder of
the Series F Preferred Stock at the respective addresses of such holders as the
same shall appear on the share transfer records of the Corporation.
5
(c) No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series F
Preferred Stock will have no right or claim to any of the remaining assets of
the Corporation.
(d) Consolidation, Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the consolidation or merger or
other business combination of the Corporation with or into, any corporation,
trust or other entity (or of any corporation, trust or other entity with or into
the Corporation) shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Corporation.
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
Section 5. Optional Redemption.
(a) Right of Optional Redemption. The Series F Preferred Stock
may not be redeemed prior to September 8, 2005. On or after such date, the
Corporation shall have the right to redeem the Series F Preferred Stock, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' written notice, at a redemption price, payable in cash, equal
to $100 per share of Series F Preferred Stock plus accumulated and unpaid
distributions, whether or nor declared, to the date of redemption. If fewer than
all of the outstanding shares of Series F Preferred Stock are to be redeemed,
the shares of Series F Preferred Stock to be redeemed shall be selected pro
rata (as nearly as practicable without creating fractional units).
(b) Limitation on Redemption.
(i) The redemption price of the Series F Preferred Stock
(other than the portion thereof consisting of accumulated but unpaid
distributions) will be payable solely out of sale proceeds of capital
stock of the Corporation and from no other source. For purposes of the
preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares, participation or
other ownership interests (however designated) and any rights (other
than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(ii) The Corporation may not redeem fewer than all of the
outstanding shares of Series F Preferred Stock unless all accumulated
and unpaid
6
distributions have been paid on all Series F Preferred Stock for all
quarterly distribution periods terminating on or prior to the date
of redemption.
(c) Procedures for Redemption.
(i) Notice of redemption will be (i) faxed, and (ii)
mailed by the Corporation, postage prepaid, not less than 30 nor more
than 60 days prior to the redemption date, addressed to the respective
holders of record of the Series F Preferred Stock to be redeemed at
their respective addresses as they appear on the transfer records of the
Corporation. No failure to give or defect in such notice shall affect
the validity of the proceedings for the redemption of any Series F
Preferred Stock except as to the holder to whom such notice was
defective or not given. In addition to any information required by law
or by the applicable rules of any exchange upon which the Series F
Preferred Stock may be listed or admitted to trading, each such notice
shall state: (i) the redemption date, (ii) the redemption price, (iii)
the number of shares of Series F Preferred Stock to be redeemed, (iv)
the place or places where such shares of Series F Preferred Stock are to
be surrendered for payment of the redemption price, (v) that
distributions on the Series F Preferred Stock to be redeemed will cease
to accumulate on such redemption date and (vi) that payment of the
redemption price and any accumulated and unpaid distributions will be
made upon presentation and surrender of such Series F Preferred Stock.
If fewer than all of the shares of Series F Preferred Stock held by any
holder are to be redeemed, the notice mailed to such holder shall also
specify the number of shares of Series F Preferred Stock held by such
holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in
respect of Series F Preferred Stock (which notice will be irrevocable)
then, by 12:00 noon, New York City time, on the redemption date, the
Corporation will deposit irrevocably in trust for the benefit of the
Series F Preferred Stock being redeemed funds sufficient to pay the
applicable redemption price, plus any accumulated and unpaid
distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any
accumulated and unpaid distributions, if any, on such shares to the
holders of the Series F Preferred Stock upon surrender of the
certificate evidencing the Series F Preferred Stock by such holders at
the place designated in the notice of redemption. If fewer than all
Series F Preferred Stock evidenced by any certificate is being redeemed,
a new certificate shall be issued upon surrender of the certificate
evidencing all Series F Preferred Stock, evidencing the unredeemed
Series F Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on
the Series F Preferred Stock or portions thereof called for redemption,
unless the Corporation defaults in the payment thereof. If any date
fixed for redemption of Series F Preferred Stock is not a Business Day,
then payment of the redemption price payable on such date will be made
on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if
such Business Day falls in the next calendar
7
year, such payment will be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date
fixed for redemption. If payment of the redemption price or any
accumulated or unpaid distributions in respect of the Series F Preferred
Stock is improperly withheld or refused and not paid by the Corporation,
distributions on such Series F Preferred Stock will continue to
accumulate from the original redemption date to the date of payment, in
which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the applicable redemption price
and any accumulated and unpaid distributions.
(d) Status of Redeemed Stock. Any Series F Preferred Stock that
shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
class or series until such shares are once more designated as part of a
particular class or series by the Board of Directors.
Section 6. Voting Rights.
(a) General. Holders of the Series F Preferred Stock will not
have any voting rights, except as set forth below.
(b) Right to Elect Directors.
(i) If at any time distributions shall be in arrears
(which means that, as to any such quarterly distributions, the same have
not been paid in full) with respect to six (6) prior quarterly
distribution periods (including quarterly periods on the Series F
Preferred Units prior to the exchange into Series F Preferred Stock),
whether or not consecutive, and shall not have been paid in full (a
"Preferred Distribution Default"), the authorized number of members of
the Board of Directors shall automatically be increased by two and the
holders of record of such Series F Preferred Stock, voting together as a
single class with the holders of each class or series of Parity
Securities (as defined below), will be entitled to fill the vacancies so
created by electing two additional directors to serve on the
Corporation's Board of Directors (the "Preferred Stock Directors") at a
special meeting called in accordance with Section 6(b)(ii) or at the
next annual meeting of stockholders, and at each subsequent annual
meeting of stockholders or special meeting held in place thereof, until
all such distributions in arrears and distributions for the current
quarterly period on the Series F Preferred Stock and each such class or
series of Parity Securities have been paid in full.
(ii) At any time when such voting rights shall have
vested, a proper officer of the Corporation shall call or cause to be
called, upon written request of holders of record of at least 10% of the
outstanding shares of Series F Preferred Stock, a special meeting of the
holders of Series F Preferred Stock and all the series of Parity
Preferred Stock which are (i) on parity with the Series F Preferred
Stock both as to distributions and rights upon liquidation, dissolution
and winding up, (ii) with respect to Parity Preferred Stock outstanding
as a result of an acquisition of another corporation, on parity with the
Series F Preferred Stock as to distributions only or with
8
respect to distributions and rights upon liquidation, dissolution or
winding up or (iii) on parity with the Series F Preferred Stock as to
distributions, but junior as to rights upon liquidation, dissolution and
winding up, but if any such Parity Preferred Stock referred to in this
clause (iii) was issued for an amount less than its liquidation
preference, the holders thereof shall be entitled to one vote for each
$25.00 of issuance price, in lieu of one vote for each $25.00 of
liquidation preference, and upon which like voting rights have been
conferred and are exercisable (collectively, the "Parity Securities") by
mailing or causing to be mailed to such holders a notice of such special
meeting to be held not less than ten and not more than 45 days after the
date such notice is given. The record date for determining holders of
the Parity Securities entitled to notice of and to vote at such special
meeting will be the close of business on the third Business Day
preceding the day on which such notice is mailed. At any annual or
special meeting at which Parity Securities are entitled to vote, all of
the holders of the Parity Securities, by plurality vote, voting together
as a single class without regard to series will be entitled to elect two
directors on the basis of one vote per $25.00 of liquidation preference
to which such Parity Securities are entitled by their terms (excluding
amounts in respect of accumulated and unpaid dividends) and not
cumulatively. The holder or holders of the Parity Securities
representing one-third of the total voting power of the Parity
Securities then outstanding, present in person or by proxy, will
constitute a quorum for the election of the Preferred Stock Directors
except as otherwise provided by law. Notice of all meetings at which
holders of the Series F Preferred Stock shall be entitled to vote will
be given to such holders at their addresses as they appear in the
transfer records. At any such meeting or adjournment thereof in the
absence of a quorum, subject to the provisions of any applicable law,
the holders of the Parity Securities representing a majority of the
voting power of the Parity Securities present in person or by proxy
shall have the power to adjourn the meeting for the election of the
Preferred Stock Directors, without notice other than an announcement at
the meeting, until a quorum is present. If a Preferred Distribution
Default shall terminate after the notice of an annual or special meeting
has been given but before such meeting has been held, the Corporation
shall, as soon as practicable after such termination, mail or cause to
be mailed notice of such termination to holders of the Series F
Preferred Stock that would have been entitled to vote at such meeting.
(iii) If and when all accumulated distributions and the
distribution for the current distribution period on the Series F
Preferred Stock shall have been paid in full or a sum sufficient for
such payment is irrevocably deposited in trust for payment, the holders
of the Series F Preferred Stock shall be divested of the voting rights
set forth in Section 6(b) herein (subject to revesting in the event of
each and every Preferred Distribution Default) and, if all distributions
in arrears and the distributions for the current distribution period
have been paid in full or set aside for payment in full on all other
classes or series of Parity Securities upon which like voting rights
have been conferred and are exercisable, the term and office of each
Preferred Stock Director so elected shall terminate. Any Preferred Stock
Director may be removed at any time with or without cause by the vote
of, and shall not be removed otherwise than by the vote of, the holders
of record of a majority of the outstanding Series F Preferred
9
Stock when they have the voting rights set forth in Section 6(b) (voting
separately as a single class with all other classes or series of Parity
Preferred Stock upon which like voting rights have been conferred and
are exercisable). So long as a Preferred Distribution Default shall
continue, any vacancy in the office of a Preferred Stock Director may be
filled by written consent of the Preferred Stock Director remaining in
office, or if none remains in office, by a vote of the holders of record
of a majority of the outstanding Series F Preferred Stock when they have
the voting rights set forth in Section 6(b) (voting separately as a
single class with all other classes or series of Parity Securities upon
which like voting rights have been conferred and are exercisable). The
Preferred Stock Directors shall each be entitled to one vote per
director on any matter.
(c) Certain Voting Rights. So long as any Series F Preferred
Stock remains outstanding, the Corporation shall not, without the affirmative
vote of the holders of at least two-thirds of the Series F Preferred Stock and
the Series F Preferred Units outstanding at such time and not previously
surrendered in exchange for Series F Preferred Stock together, if applicable,
voting as a single class based on the number of shares into which such Series F
Preferred Units are then convertible (collectively, the "Series F Voting
Securities") (i) designate or create, or increase the authorized or issued
amount of, any class or series of shares ranking senior to the Series F
Preferred Stock with respect to payment of distributions or rights upon
liquidation, dissolution or winding-up or reclassify any authorized shares of
the Corporation into any such shares, or create, authorize or issue any
obligations or securities convertible into or evidencing the right to purchase
any such shares, (ii) designate or create, or increase the authorized or
issued amount of, any Parity Preferred Stock or reclassify any authorized
shares of the Corporation into any such shares, or create, authorize or issue
any obligations or securities convertible into or evidencing the right to
purchase any such shares, but only to the extent such Parity Preferred Stock is
issued to an affiliate of the Corporation (other than Security Capital U.S.
Realty, Security Capital Holdings, S.A. or their affiliates if issued upon
arms-length terms in the good faith determination of the Board of Directors), or
(iii) either (A) consolidate, merge into or with, or convey, transfer or lease
its assets substantially as an entirety, to any corporation or other entity, or
(B) amend, alter or repeal the provisions of the Corporation's Charter
(including these Articles of Amendment) or By-laws, whether by merger,
consolidation or otherwise, in each case that would materially and adversely
affect the powers, special rights, preferences, privileges or voting power of
the Series F Preferred Stock or the holders thereof; provided, however, that
with respect to the occurrence of a merger, consolidation or a sale or lease of
all of the Corporation's assets as an entirety, so long as (a) the Corporation
is the surviving entity and the Series F Preferred Stock remains outstanding
with the terms thereof unchanged, or (b) the resulting, surviving or transferee
entity is a corporation organized under the laws of any state and substitutes
the Series F Preferred Stock for other preferred stock having substantially the
same terms and same rights as the Series F Preferred Stock, including with
respect to distributions, voting rights and rights upon liquidation, dissolution
or winding-up, then the occurrence of any such event shall not be deemed to
materially and adversely affect such rights, privileges or voting powers of the
holders of the Series F Preferred Stock and no vote of the Series F Voting
Securities shall be required in such case; and provided further that any
increase in the amount of authorized Preferred Stock or the creation or issuance
of any other class or series of
10
Preferred Stock, or any increase in an amount of authorized shares of each class
or series, in each case ranking either (a) junior to the Series F Preferred
Stock with respect to payment of distributions or the distribution of assets
upon liquidation, dissolution or winding-up, or (b) on a parity with the Series
F Preferred Stock with respect to payment of distributions or the distribution
of assets upon liquidation, dissolution or winding-up to the extent such
Preferred Stock is not issued to a affiliate of the Corporation (other than
Security Capital U.S. Realty, Security Capital Holdings, S.A. or their
affiliates if issued upon arms-length terms in the good faith determination of
the Board of Directors), shall not be deemed to materially and adversely affect
such rights, preferences, privileges or voting powers and no vote of the Series
F Preferred Stock shall be required in such case.
Section 7. No Conversion Rights. The holders of the Series F Preferred
Stock shall not have any rights to convert such shares into shares of any other
class or series of stock or into any other securities of, or interest in, the
Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for
the retirement or redemption of Series F Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series F Preferred
Stock of the Corporation shall, as such holder, have any preemptive rights to
purchase or subscribe for additional shares of stock of the Corporation or any
other security of the Corporation which it may issue or sell.
11
REGENCY REALTY CORPORATION
AMENDMENT TO ARTICLES OF INCORPORATION
(Changing Name to Regency Centers Corporation)
This corporation was incorporated on July 8, 1993 effective July 9,
1993 under the name Regency Realty Corporation. Pursuant to Sections 607.1001,
607.1003, 607.1004 and 607.1006, Florida Business Corporation Act, an amendment
to Section 1.1 of the Articles of Incorporation, as restated on November 4,
1996, was approved by the Board of Directors at a meeting held on November 1,
2000 and adopted by the written consent dated January 15, 2001 of shareholders
owning a majority of the corporation's outstanding voting stock. The only voting
group entitled to vote on the adoption of the amendment consists of the holders
of the corporation's common stock and Series 2 Preferred Stock, voting together
as a single class. The number of votes cast by such voting group was sufficient
for approval by that voting group. Section 1.1 of the Restated Articles of
Incorporation of the Company is hereby amended in its entirety to read as
follows:
"Section 1.1 Name. The name of the corporation is Regency
Centers Corporation (the "Corporation")."
This amendment shall be effective February 12, 2001.
IN WITNESS WHEREOF, the undersigned Senior Vice President of this
corporation has executed these Articles of Amendment this 9th day of February,
2001.
/s/ J. Christian Leavitt
----------------------------------------
J. Christian Leavitt, Senior Vice
President
REGENCY CENTERS CORPORATION
AMENDMENT TO ARTICLES OF INCORPORATION
This corporation was incorporated on July 8, 1993 effective July 9,
1993 under the name Regency Realty Corporation. Pursuant to Sections 607.1003,
607.1004 and 607.1006, Florida Business Corporation Act, the following
amendments to the Articles of Incorporation, as restated on November 4, 1996,
were approved by the Board of Directors at a meeting held on January 30, 2001
and adopted at a meeting of shareholders on May 1, 2001. The only voting group
entitled to vote on the adoption of the amendment consists of the holders of the
corporation's common stock and Series 2 Preferred Stock, voting together as a
single class. The number of votes cast by such voting group was sufficient for
approval by that voting group. The Restated Articles of Incorporation of the
corporation are hereby amended as follows:
Section 5.1(i) "Non-U.S. Person" is hereby deleted.
Section 5.14 Certain Transfers to Non-U.S. Persons Void
is hereby deleted in its entirety.
IN WITNESS WHEREOF, the undersigned Senior Vice President of this
corporation has executed these Articles of Amendment this 7th day of May, 2001.
/s/ J. Christian Leavitt
----------------------------------------
J. Christian Leavitt, Senior Vice
President
REGENCY CENTERS CORPORATION
AMENDMENT TO ARTICLES OF INCORPORATION
Deleting Authorization for Class B Non-Voting Common Stock
and Series 1 Cumulative Convertible Redeemable Preferred Stock
Pursuant to Section 607.1002 of the Florida Business Corporation Act
("FBCA"), Regency Centers Corporation, a Florida corporation (the
"Corporation"), does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Restated Articles of
Incorporation of the Corporation, as amended, and Section 607.0602 of the FBCA,
the Board of Directors of the Corporation by resolutions duly adopted on
September 23, 1998 classified 542,532 shares of the authorized but unissued
Preferred Stock as a separate class designated as Series 1 Preferred Stock and
set the preferences, rights, terms and conditions of the class of Series 1
Preferred Stock, including the requirement that all shares of Series 1 Preferred
Stock that have been issued and reacquired by the Corporation shall be restored
to the status of authorized but unissued shares of Preferred Stock of the
Corporation, without designation.
SECOND: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.4 of the Restated Articles of
Incorporation of the Corporation, as amended, and Section 607.0602 of the FBCA,
the Board of Directors of the Corporation by resolutions duly adopted on October
23, 1995 and December 14, 1995 classified 2,500,000 shares of the authorized but
unissued Special Common Stock as a separate class designated as Class B
Non-Voting Convertible Common Stock and set the rights, terms and conditions of
the Class B Non-Voting Convertible Common Stock, including the requirement that
all shares of Class B Non-Voting Convertible Common Stock that have been
converted, redeemed or otherwise reacquired by the Corporation shall be restored
to the status of authorized but unissued shares of Non-Voting Common Stock of
the Corporation, without designation.
THIRD: All 542,532 previously issued shares of Series 1 Preferred
Stock have been converted , pursuant to their terms, to Series 2 Preferred Stock
and, accordingly have been retired and restored to the status of authorized but
unissued shares of Preferred Stock of the Corporation, without designation.
FOURTH: All 2,500,000 previously issued shares of Class B Non-Voting
Convertible Common Stock have been converted, pursuant to their terms, to Common
Stock and, accordingly have been retired and restored to the status of
authorized but unissued shares of Non-Voting Common Stock of the Corporation,
without designation.
FIFTH: this Amendment is being filed for the purpose of deleting the
authority to issue Series 1 Preferred Stock and Class B Non-Voting Convertible
Common Stock.
This Amendment was approved by the Board of Directors by resolutions
adopted September 23, 1998 as to the Series 1 Preferred Stock and by resolutions
adopted October 23, 1995 and December 14, 1995 as to the Class B Non-Voting
Convertible Common Stock. Shareholder approval was not required.
IN WITNESS WHEREOF, the undersigned Vice President of the
Corporation has executed these Articles of Amendment this 30th day of October,
2001.
REGENCY CENTERS CORPORATION
By: /s/ Kathy D. Miller
-------------------------------------
Kathy D. Miller, Vice President
AMENDMENT TO ARTICLES OF INCORPORATION OF
REGENCY CENTERS CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 300,000 SHARES OF
7.45% SERIES 3 CUMULATIVE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation Act
("FBCA"), Regency Centers Corporation, a Florida corporation (the
"Corporation"), does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Amended and Restated Articles
of Incorporation of the Corporation (the "Charter") and Section 607.0602 of the
FBCA, the Board of Directors of the Corporation (the "Board of Directors"), by
resolutions duly adopted on March 21, 2003 and resolutions duly adopted on March
27, 2003 by a committee appointed by the Board of Directors, has classified
300,000 shares of the authorized but unissued Preferred Stock par value $.01 per
share ("Preferred Stock") as a separate series of Preferred Stock, authorized
the issuance of a maximum of 300,000 shares of such series of Preferred Stock,
set certain of the preferences, voting powers, restrictions, limitations as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions of such series of Preferred Stock, and pursuant to the powers
contained in the Bylaws of the Corporation and the FBCA, appointed a committee
(the "Committee") and delegated to the Committee, to the fullest extent
permitted by the FBCA and the Charter and Bylaws of the Corporation, all powers
of the Board of Directors with respect to designating, and setting all other
preferences, voting powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of redemption of, such
series of Preferred Stock determining the number of shares of such series of
Preferred Stock (not in excess of the aforesaid maximum number) to be issued and
the consideration and other terms and conditions upon which such shares of such
series of Preferred Stock are to be issued. Shareholder approval was not
required under the Charter with respect to such designation.
SECOND: Pursuant to the authority conferred upon the Committee as
aforesaid, the Committee has unanimously adopted resolutions designating the
aforesaid series of Preferred Stock as the "7.45% Series 3 Cumulative Redeemable
Preferred Stock," setting the preferences, voting powers, restrictions,
limitations as to dividends, qualifications, terms and conditions of redemption
and other terms and conditions of such 7.45% Series 3 Cumulative Redeemable
Preferred Stock (to the extent not set by the Board of Directors in the
resolutions
referred to in Article FIRST of these Articles of Amendment) and authorizing the
issuance of up to 300,000 shares of 7.45% Series 3 Cumulative Redeemable
Preferred Stock.
THIRD: The series of Preferred Stock of the Corporation created by the
resolutions duly adopted by the Board of Directors of the Corporation and by the
Committee and referred to in Articles FIRST and SECOND of these Articles of
Amendment shall have the following designation, number of shares, preferences,
voting powers, restrictions and limitation as to dividends, qualifications,
terms and conditions of redemption and other terms and conditions:
Section 1. Designation and Number. A series of Preferred Stock,
designated the "7.45% Series 3 Cumulative Redeemable Preferred Stock" (the
"Series 3 Preferred Stock") is hereby established. The number of shares of
Series 3 Preferred Stock shall be 300,000.
Section 2. Rank. The Series 3 Preferred Stock will, with respect to
distributions and rights upon voluntary or involuntary liquidation, winding-up
or dissolution of the Corporation, rank senior to all classes or series of
Common Stock (as defined in the Charter) and to all classes or series of equity
securities of the Corporation now or hereafter authorized, issued or
outstanding, other than any class or series of equity securities of the
Corporation expressly designated as ranking on a parity with or senior to the
Series 3 Preferred Stock as to distributions or rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the Corporation or both.
For purposes of these Articles of Amendment, the term "Parity Preferred Stock"
shall be used to refer to any class or series of equity securities of the
Corporation now or hereafter authorized, issued or outstanding expressly
designated by the Corporation to rank on a parity with Series 3 Preferred Stock
with respect to distributions or rights upon voluntary or involuntary
liquidation, winding-up or dissolution of the Corporation or both, as the
context may require, whether or not the dividend rates, dividend payment dates
or redemption or liquidation prices per share shall be different from those of
the Series 3 Preferred Stock and includes the Series A Cumulative Redeemable
Preferred Stock, the Series B Cumulative Redeemable Preferred Stock, the Series
C Cumulative Redeemable Preferred Stock, the Series D Cumulative Redeemable
Preferred Stock, the Series E Cumulative Redeemable Preferred Stock and the
Series F Cumulative Convertible Redeemable Preferred Stock of the Corporation.
The term "equity securities" does not include debt securities, which will rank
senior to the Series 3 Preferred Stock prior to conversion.
Section 3. Distributions.
(a) Payment of Distributions. Subject to the rights of holders
of Parity Preferred Stock as to the payment of distributions and holders of
equity securities issued after the date hereof in accordance herewith ranking
senior to the Series 3 Preferred Stock as to payment of distributions, holders
of Series 3 Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors of the Corporation, out of funds legally
available for the payment of distributions, cumulative cash distributions at the
rate per annum of 7.45% of the $250 liquidation preference per share of Series 3
Preferred Stock. Such distributions shall be cumulative, shall accrue from the
original date of issuance and will be payable in cash
2
(A) quarterly (such quarterly periods for purposes of payment and accrual will
be the quarterly periods ending on the dates specified in this sentence) in
arrears, on or before March 31, June 30, September 30 and December 31 of each
year commencing on June 30, 2003 and, (B) in the event of a redemption, on the
redemption date (each a "Preferred Stock Distribution Payment Date"). The amount
of the distribution payable for any period will be computed on the basis of a
360-day year of twelve 30-day months and for any period shorter than a full
quarterly period for which distributions are computed, the amount of the
distribution payable will be computed on the basis of the ratio of the actual
number of days elapsed in such period to ninety (90) days. If any date on which
distributions are to be made on the Series 3 Preferred Stock is not a Business
Day (as defined herein), then payment of the distribution to be made on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. Distributions on the Series 3 Preferred Stock
will be made to the holders of record of the Series 3 Preferred Stock on the
first day of the month in which the Preferred Stock Distribution Payment Date
occurs, or on such other record dates to be fixed by the Board of Directors of
the Corporation, which record dates shall be not less than 10 days and not more
than 30 Business Days prior to the relevant Preferred Stock Distribution Payment
Date (each a "Distribution Record Date ").
The term "Business Day" shall mean each day, other than a
Saturday or a Sunday, which is not a day on which banking institutions in New
York, New York are authorized or required by law, regulation or executive order
to close.
(b) Limitation on Distributions. No distribution on the Series
3 Preferred Stock shall be declared or paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement of the
Corporation relating to its indebtedness, prohibit such declaration, payment or
setting apart for payment or provide that such declaration, payment or setting
apart for payment would constitute a breach thereof or a default thereunder, or
if such declaration, payment or setting apart for payment shall be restricted or
prohibited by law. Nothing in this Section 3(b) shall be deemed to modify or in
any manner limit the provisions of Section 3(c) and 3(d).
(c) Distributions Cumulative. Distributions on the Series 3
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series 3 Preferred Stock will accumulate as of the Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid at
any time, without reference to a regular Preferred Stock Distribution Payment
Date to holders of record of the Series 3 Preferred Stock on the record date
fixed by the Board of
3
Directors which date shall be not less than 10 days and not more than 30
Business Days prior to the payment date. Accumulated and unpaid distributions
will not bear interest.
(d) Priority as to Distributions.
(i) So long as any Series 3 Preferred Stock is
outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect
to any class or series of Common Stock or any class or series of other
stock of the Corporation ranking junior to the Series 3 Preferred Stock
as to the payment of distributions (such Common Stock or other junior
stock, collectively, "Junior Stock"), nor shall any cash or other
property be set aside for or applied to the purchase, redemption or
other acquisition for consideration of any Series 3 Preferred Stock,
any Parity Preferred Stock with respect to distributions or any Junior
Stock, unless, in each case, all distributions accumulated on all
Series 3 Preferred Stock and all classes and series of outstanding
Parity Preferred Stock with respect to distributions have been paid in
full. Without limiting Section 6(b) hereof, the foregoing sentence
will not prohibit (i) distributions payable solely in shares of Junior
Stock, (ii) the conversion of Junior Stock or Parity Preferred Stock
into Junior Stock, (iii) purchases by the Corporation of such Series 3
Preferred Stock or Parity Preferred Stock or Junior Stock pursuant to
Article 5 of the Charter to the extent required to preserve the
Corporation's status as a real estate investment trust, (iv) purchases
or other acquisitions of Junior Stock for purposes of any employee or
director incentive or benefit plan of the Corporation or any
subsidiary, and (v) purchases or acquisitions of shares of Series 3
Preferred Stock pursuant to a purchase or exchange offer that is made
on the same terms to all holders of Series 3 Preferred Stock.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably deposited
in trust for payment) upon the Series 3 Preferred Stock, all
distributions authorized and declared on the Series 3 Preferred Stock
and all classes or series of outstanding Parity Preferred Stock with
respect to distributions shall be authorized and declared so that the
amount of distributions authorized and declared per share of Series 3
Preferred Stock and such other classes or series of Parity Preferred
Stock shall in all cases bear to each other the same ratio that accrued
distributions per share on the Series 3 Preferred Stock and such other
classes or series of Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior
distribution periods if such class or series of Parity Preferred Stock
does not have cumulative distribution rights) bear to each other.
(e) No Further Rights. Holders of Series 3 Preferred Stock
shall not be entitled to any distributions, whether payable in cash, other
property or otherwise, in excess of the full cumulative distributions described
herein.
4
Section 4. Liquidation Preference.
(a) Payment of Liquidating Distributions. Subject to the rights
of holders of Parity Preferred Stock with respect to rights upon any voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation and
subject to equity securities ranking senior to the Series 3 Preferred Stock with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Series 3 Preferred Stock shall be
entitled to receive out of the assets of the Corporation legally available for
distribution or the proceeds thereof, after payment or provision for debts and
other liabilities of the Corporation, but before any payment or distributions of
the assets shall be made to holders of Common Stock or any other class or series
of shares of the Corporation that ranks junior to the Series 3 Preferred Stock
as to rights upon liquidation, dissolution or winding-up of the Corporation, an
amount equal to the sum of (i) a liquidation preference of $250 per share of
Series 3 Preferred Stock, and (ii) an amount equal to any accumulated and unpaid
distributions thereon, whether or not declared, to the date of payment. In the
event that, upon such voluntary or involuntary liquidation, dissolution or
winding-up, there are insufficient assets to permit full payment of liquidating
distributions to the holders of Series 3 Preferred Stock and any Parity
Preferred Stock as to rights upon liquidation, dissolution or winding-up of the
Corporation, all payments of liquidating distributions on the Series 3 Preferred
Stock and such Parity Preferred Stock shall be made so that the payments on the
Series 3 Preferred Stock and such Parity Preferred Stock shall in all cases bear
to each other the same ratio that the respective rights of the Series 3
Preferred Stock and such other Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior distribution
periods if such Parity Preferred Stock does not have cumulative distribution
rights) upon liquidation, dissolution or winding-up of the Corporation bear to
each other.
(b) Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by first class mail, postage
pre-paid, not less than 30 and not more than 60 days prior to the payment date
stated therein, to each record holder of the Series 3 Preferred Stock at the
respective addresses of such holders as the same shall appear on the share
transfer records of the Corporation.
(c) No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series 3
Preferred Stock will have no right or claim to any of the remaining assets of
the Corporation.
(d) Consolidation, Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the consolidation or merger or
other business combination of the Corporation with or into, any corporation,
trust or other entity (or of any corporation, trust or other entity with or into
the Corporation) shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Corporation.
5
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
Section 5. Optional Redemption.
(a) Right of Optional Redemption. The Series 3 Preferred Stock
may not be redeemed prior to April 3, 2008. On or after such date, the
Corporation shall have the right to redeem the Series 3 Preferred Stock, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' written notice, at a redemption price, payable in cash, equal
to $250 per share of Series 3 Preferred Stock plus accumulated and unpaid
distributions, whether or nor declared, to the date of redemption. If fewer than
all of the outstanding shares of Series 3 Preferred Stock are to be redeemed,
the shares of Series 3 Preferred Stock to be redeemed shall be selected pro rata
(as nearly as practicable without creating fractional shares).
(b) Limitation on Redemption. The Corporation may not redeem
fewer than all of the outstanding shares of Series 3 Preferred Stock unless all
accumulated and unpaid distributions have been paid on all Series 3 Preferred
Stock for all quarterly distribution periods terminating on or prior to the date
of redemption; provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of Series 3 Preferred Stock pursuant to a
purchase or exchange offer that is made on the same terms to all holders of
Series 3 Preferred Stock.
(c) Procedures for Redemption.
(i) Notice of redemption will be mailed by the
Corporation, postage prepaid, not less than 30 nor more than 60 days
prior to the redemption date, addressed to the respective holders of
record of the Series 3 Preferred Stock to be redeemed at their
respective addresses as they appear on the transfer records of the
Corporation. No failure to give or defect in such notice shall affect
the validity of the proceedings for the redemption of any Series 3
Preferred Stock except as to the holder to whom such notice was
defective or not given. In addition to any information required by law
or by the applicable rules of any exchange upon which the Series 3
Preferred Stock may be listed or admitted to trading, each such notice
shall state: (i) the redemption date, (ii) the redemption price, (iii)
the number of shares of Series 3 Preferred Stock to be redeemed, (iv)
the place or places where such shares of Series 3 Preferred Stock are
to be surrendered for payment of the redemption price, (v) that
distributions on the Series 3 Preferred Stock to be redeemed will cease
to accumulate on such redemption date and (vi) that payment of the
redemption price and any accumulated and unpaid distributions will be
made upon presentation and surrender of such Series 3 Preferred Stock.
If
6
fewer than all of the shares of Series 3 Preferred Stock held by any
holder are to be redeemed, the notice mailed to such holder shall also
specify the number of shares of Series 3 Preferred Stock held by such
holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in
respect of Series 3 Preferred Stock (which notice will be irrevocable)
then, by 12:00 noon, New York City time, on the redemption date, the
Corporation will deposit irrevocably in trust for the benefit of the
Series 3 Preferred Stock being redeemed funds sufficient to pay the
applicable redemption price, plus any accumulated and unpaid
distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any
accumulated and unpaid distributions, if any, on such shares to the
holders of the Series 3 Preferred Stock upon surrender of the
certificates evidencing the Series 3 Preferred Stock by such holders at
the place designated in the notice of redemption. If fewer than all
Series 3 Preferred Stock evidenced by any certificate is being
redeemed, a new certificate shall be issued upon surrender of the
certificate evidencing all Series 3 Preferred Stock, evidencing the
unredeemed Series 3 Preferred Stock, without cost to the holder
thereof. On and after the date of redemption, distributions will
cease to accumulate on the Series 3 Preferred Stock or portions thereof
called for redemption, unless the Corporation defaults in the payment
thereof. If any date fixed for redemption of Series 3 Preferred Stock
is not a Business Day, then payment of the redemption price payable on
such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such
date fixed for redemption. If payment of the redemption price or any
accumulated or unpaid distributions in respect of the Series 3
Preferred Stock is improperly withheld or refused and not paid by the
Corporation, distributions on such Series 3 Preferred Stock will
continue to accumulate from the original redemption date to the date of
payment, in which case the actual payment date will be considered the
date fixed for redemption for purposes of calculating the applicable
redemption price and any accumulated and unpaid distributions.
(d) Status of Redeemed Stock. Any Series 3 Preferred Stock that
shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation
as to class or series until such shares are once more designated as
part of a particular class or series by the Board of Directors.
Section 6. Voting Rights.
(a) General. Holders of the Series 3 Preferred Stock will not
have any voting rights, except as set forth below or as required by the FBCA.
7
(b) Voting Power. For purposes of this Section 6, "Parity
Voting Securities" means the Series 3 Preferred Stock and all classes or series
of Preferred Stock which are (i) on parity with the Series 3 Preferred Stock as
to distributions and/or rights upon liquidation, dissolution or winding up, (ii)
upon which like voting rights have been conferred and are exercisable as to the
matter in question to be submitted to a vote, and (iii) which would be affected
in the same or substantially similar way by such matter. When Parity Voting
Securities are entitled to vote on a matter, they shall vote together as a
single class without regard to series, and each holder of record of Parity
Voting Securities shall be entitled to one vote for each $25.00 liquidation
preference (excluding amounts in respect of accumulated and unpaid
distributions), except that if any Parity Voting Securities were issued for an
amount less than their liquidation preference, the holders thereof shall be
entitled to one vote for each $25.00 of issuance price in lieu of one vote for
each $25.00 of liquidation preference.
(c) Right to Elect Directors.
(i) If at any time distributions shall be in arrears
(which means that, as to any such quarterly distributions, the same
have not been paid in full) with respect to six (6) prior quarterly
distribution periods, whether or not consecutive, and shall not have
been paid in full (a "Preferred Distribution Default"), the authorized
number of members of the Board of Directors shall automatically be
increased by two and the holders of record of Series 3 Preferred Stock,
voting together as a single class with the holders of each other class
or series of Parity Voting Securities, will be entitled to fill the
vacancies so created by electing two additional directors to serve on
the Corporation's Board of Directors (the "Preferred Stock Directors")
at a special meeting called in accordance with Section 6(c)(ii) or at
the next annual meeting of stockholders, and at each subsequent annual
meeting of stockholders or special meeting held in place thereof, until
all such distributions in arrears and distributions for the current
quarterly period on the Series 3 Preferred Stock and each such class or
series of Parity Voting Securities have been paid in full.
(ii) At any time when such voting rights shall have
vested, a proper officer of the Corporation shall call or cause to be
called, upon written request of holders of record of at least 10% of
the outstanding shares of Series 3 Preferred Stock, a special meeting
of the holders of record of Parity Voting Securities by mailing or
causing to be mailed to such holders a notice of such special meeting
to be held not less than ten and not more than 45 days after the date
such notice is given. At any annual or special meeting at which Parity
Voting Securities are entitled to vote, all of the holders of the
Parity Voting Securities, by a plurality of the votes, and not
cumulatively, will be entitled to elect two directors. The holders of
the Parity Voting Securities representing the lesser of one-third of
the total voting power of the Parity Voting Securities then
outstanding, present in person or by proxy or the quorum required for a
vote of the holders of Common Stock, will constitute a quorum for the
election of the Preferred Stock Directors except as otherwise provided
by law. Notice of all meetings at which holders of record of the Series
3 Preferred Stock shall be entitled to vote will be given to such
holders at their addresses as they appear in the transfer records. At
any such
8
meeting or adjournment thereof in the absence of a quorum, subject to
the provisions of any applicable law, the holders of the Parity Voting
Securities representing a majority of the voting power of the Parity
Voting Securities present in person or by proxy shall have the power to
adjourn the meeting for the election of the Preferred Stock Directors,
without notice other than an announcement at the meeting, until a
quorum is present. If a Preferred Distribution Default shall terminate
after the notice of an annual or special meeting has been given but
before such meeting has been held, the Corporation shall, as soon as
practicable after such termination, mail or cause to be mailed notice
of such termination to holders of the Series 3 Preferred Stock that
would have been entitled to vote at such meeting.
(iii) If and when all accumulated distributions and the
distribution for the current distribution period on the Series 3
Preferred Stock shall have been paid in full or a sum sufficient for
such payment is irrevocably deposited in trust for payment, the holders
of the Series 3 Preferred Stock shall be divested of the voting rights
set forth in Section 6(c) herein (subject to revesting in the event of
each and every Preferred Distribution Default) and, if all
distributions in arrears and the distributions for the current
distribution period have been paid in full or set aside for payment in
full on all other classes or series of Parity Voting Securities, the
term and office of each Preferred Stock Director so elected shall
terminate. Any Preferred Stock Director may be removed at any time
with or without cause by the vote of, and shall not be removed
otherwise than by the vote of, the holders of record of a majority of
the voting power of the Parity Voting Securities. So long as a
Preferred Distribution Default shall continue, any vacancy in the
office of a Preferred Stock Director may be filled by written consent
of the Preferred Stock Director remaining in office, or if none remains
in office, by a vote of the holders of record of a majority of the
outstanding Series 3 Preferred Stock (voting separately as a single
class with all other classes or series of Parity Voting Securities).
The Preferred Stock Directors shall each be entitled to one vote per
director on any matter.
(d) Certain Voting Rights. In addition to any other vote
required by the FBCA, so long as any Series 3 Preferred Stock remains
outstanding, the Corporation shall not, without the affirmative vote of the
holders of record of at least two-thirds of the voting power entitled to be cast
by the holders of Series 3 Preferred Stock and the holders of other Parity
Voting Securities upon which like voting rights have been conferred and are
exercisable, voting separately as a single class:
(i) amend the Charter to designate or create, or increase
the authorized amount of, any class or series of shares ranking senior
to the Series 3 Preferred Stock with respect to payment of
distributions or rights upon liquidation, dissolution or winding-up
("Senior Shares") or reclassify any authorized shares of the
Corporation into any Senior Shares; provided that no such vote shall be
required if:
(x) at or prior to the time any such event is to take
place, provision is made for the redemption of all shares of
Series 3 Preferred Stock,
9
so long as no portion of the redemption price will be paid from
the proceeds from the sale of such Senior Shares; or
(y) the holders of Series 3 Preferred Stock have
previously voted pursuant to this Section 6(d) to grant
authority to the Board of Directors to create Senior Shares
pursuant to Section 607.0602 of the FBCA.
(ii) either (A) consolidate, merge into or with, or
convey, transfer or lease its assets substantially as an entirety, to
any corporation or other entity, or (B) amend, alter or repeal the
provisions of the Corporation's Charter (including these Articles of
Amendment) or By-laws, whether by merger, consolidation or otherwise,
in each case in a manner that would materially and adversely affect the
powers, special rights, preferences, privileges or voting power of the
Series 3 Preferred Stock; provided, however, that:
(x) with respect to the occurrence of a merger,
consolidation or a sale or lease of all of the Corporation's
assets as an entirety, so long as (a) the Corporation is the
surviving entity and the Series 3 Preferred Stock remains
outstanding with the terms thereof unchanged, or (b) the
resulting, surviving or transferee entity is a corporation
organized under the laws of any state and substitutes for the
Series 3 Preferred Stock other preferred stock having
substantially the same terms and same rights as the Series 3
Preferred Stock, including with respect to distributions, voting
rights and rights upon liquidation, dissolution or winding-up,
then the occurrence of any such event shall not be deemed to
materially and adversely affect such rights, privileges or
voting powers of the holders of the Series 3 Preferred Stock and
no vote of the Series 3 Preferred Stock shall be required in
such case;
(y) any increase in the amount of authorized
Preferred Stock or the creation or issuance of any other class
or series of Preferred Stock, or any increase in an amount of
authorized shares of each class or series, in each case
ranking either (a) junior to the Series 3 Preferred Stock with
respect to payment of distributions or the distribution of
assets upon liquidation, dissolution or winding-up, or (b) on
a parity with the Series 3 Preferred Stock with respect to
payment of distributions or the distribution of assets upon
liquidation, dissolution or winding-up, shall not be deemed to
materially and adversely affect such rights, preferences,
privileges or voting powers for purposes of this Section
6(d)(ii)(y); and
(z) if any event in Section 6(d)(ii) would
materially and adversely affect the powers, special rights,
preferences, privileges or voting power of the Series 3
Preferred Stock that are not enjoyed by some or all of the
other classes or series of Parity Voting Securities, the
affirmative vote of the holders of record of two-thirds of the
voting power entitled to be cast by the holders of all series
similarly affected shall be required in lieu of the
affirmative
10
vote of the holders of two-thirds of the voting power entitled
to be cast by the holders of the Parity Voting Securities.
In addition, so long as any Series 3 Preferred Stock remains outstanding, the
Corporation shall not amend the Charter to increase the number of shares of
authorized Preferred Stock (unless such shares are junior to the Series 3
Preferred Stock as to distributions and liquidation, dissolution or winding-up)
without the affirmative vote of the holders of record of at least a majority of
the voting power entitled to be cast by the holders of Series 3 Preferred Stock
and the holders of other Parity Voting Securities upon which like voting rights
have been conferred and are exercisable, voting separately as single class, but
no such vote shall be required for the Board to designate and issue shares of
authorized Preferred Stock pursuant to Section 607.0602 of the FBCA.
Section 7. No Conversion Rights. The holders of the Series 3 Preferred
Stock shall not have any rights to convert such shares into shares of any other
class or series of stock or into any other securities of, or interest in, the
Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for
the retirement or redemption of Series 3 Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series 3 Preferred
Stock of the Corporation shall, as such holder, have any preemptive rights to
purchase or subscribe for additional shares of stock of the Corporation or any
other security of the Corporation which it may issue or sell.
FOURTH: The Series 3 Preferred Stock has been classified and designated
by the Board of Directors under the authority contained in the Charter.
FIFTH: These Articles of Amendment have been approved by the Board of
Directors in the manner and by the vote required by law.
SIXTH: The undersigned officer of the Corporation acknowledges these
Articles of Amendment to be the corporate act of the Corporation and, as to all
matters or facts required to be verified under oath, the undersigned officer
acknowledges that to the best of his knowledge, information and belief, these
matters and facts are true in all material respects and that this statement is
made under the penalties for perjury.
11
IN WITNESS WHEREOF, the Corporation has caused this Amendment to be
signed by Bruce M. Johnson, its Managing Director and Executive Vice President,
this ____ day of April, 2003.
REGENCY CENTERS CORPORATION
By: /s/ Bruce M. Johnson
-------------------------------------
Name: Bruce M. Johnson
Title: Managing Director and Executive
Vice President
REGENCY CENTERS CORPORATION
AMENDMENT TO ARTICLES OF INCORPORATION
Deleting Authorization for Series Cumulative Convertible Redeemable
Preferred Stock: Reducing the Number of Shares Designated as 9.0% Series C
Cumulative Redeemable Preferred Stock; and Reducing the Number of Shares of
8.75% Series E Cumulative Redeemable Preferred Stock
Pursuant to Section 607.1002 of the Florida Business Corporation Act
("FBCA"), Regency Centers Corporation, a Florida corporation (the
"Corporation"), does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Restated Articles of
Incorporation of the Corporation, as amended, and Section 607.0602 of the FBCA,
the Board of Directors of the Corporation by resolutions duly adopted on
September 23, 1998 classified 1,502,532 shares of the authorized but unissued
Preferred Stock as a separate class designated as Series 2 Preferred Stock and
set the preferences, rights, terms and conditions of the class of Series 2
Preferred Stock, including the requirement that all shares of Series 2 Preferred
Stock that have been issued and reacquired by the Corporation shall be restored
to the status of authorized but unissued shares of Preferred Stock of the
Corporation, without designation.
SECOND: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.4 of the Restated Articles of
Incorporation of the Corporation, as amended, and Section 607.0602 of the FBCA,
the Board of Directors of the Corporation by resolutions duly adopted on August
23, 1999 classified 750,000 shares of the authorized but unissued Preferred
Stock as a separate series designated as 9.0% Series C Cumulative Redeemable
Preferred Stock (the "Series C Preferred Stock") and set the rights, terms and
conditions of the Series C Preferred Stock, including the requirement that all
shares of Series C Preferred Stock that have been redeemed or otherwise
reacquired by the Corporation shall be restored to the status of authorized but
unissued shares of Preferred Stock of the Corporation, without designation.
THIRD: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.4 of the Restated Articles of
Incorporation of the Corporation, as amended, and Section 607.0602 of the FBCA,
the Board of Directors of the Corporation by resolutions duly adopted on May 25,
2000 classified 700,000 shares of the authorized but unissued Preferred Stock as
a separate series designated as 8.75% Series E Cumulative Redeemable Preferred
Stock (the "Series E Preferred Stock") and set the rights, terms and conditions
of the Series E Preferred Stock, including the requirement that all shares of
Series E Preferred Stock that have been redeemed or otherwise reacquired by the
Corporation shall be restored to the status of authorized but unissued shares of
Preferred Stock of the Corporation, without designation.
FOURTH: All 1,502,532 previously issued shares of Series 2 Preferred
Stock have been converted , pursuant to their terms, to Common Stock and,
accordingly have been
retired and restored to the status of authorized but unissued shares of
Preferred Stock of the Corporation, without designation.
FIFTH: Of the 750,000 previously issued shares of Series C Preferred
Stock, 350,000 shares have been redeemed pursuant to their terms and,
accordingly, have been retired and restored to the status of authorized but
unissued shares of Preferred Stock of the Corporation, without designation.
SIXTH: Of the 700,000 previously issued shares of Series E Preferred
Stock, 400,000 shares have been redeemed pursuant to their terms and,
accordingly, have been retired and restored to the status of authorized but
unissued shares of Preferred Stock of the Corporation, without designation.
SEVENTH: this Amendment is being filed for the purposes of (i)
deleting the authority to issue Series 2 Preferred Stock, (ii) reducing the
number of shares designated as Class C Preferred Stock to 400,000 shares, and
(iii) reducing the number of shares designated as Class E Preferred Stock to
300,000 shares.
These amendments were approved by the Board of Directors by
resolutions adopted March 21, 2003. These amendments do not adversely affect the
rights or preferences of the holders of outstanding shares of any class or
series. Accordingly, shareholder approval was not required.
IN WITNESS WHEREOF, the undersigned Senior Vice President of the
Corporation has executed these Articles of Amendment this 27th day of June,
2003.
REGENCY CENTERS CORPORATION
By: /s/ J. Christian Leavitt
--------------------------------------
J. Christian Leavitt, Senior Vice
President
2
REGENCY CENTERS CORPORATION
AMENDMENT TO ARTICLES OF INCORPORATION
This corporation was incorporated on July 8, 1993 effective July 9,
1993 under the name Regency Realty Corporation. Pursuant to Sections 607.1003,
607.1004 and 607.1006, Florida Business Corporation Act, the following
amendments to the Articles of Incorporation, as restated on November 4, 1996,
were approved by the Board of Directors at a meeting held on November 4, 2003
and adopted at a meeting of shareholders on April 28, 2004. The only voting
group entitled to vote on the adoption of the amendment 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 corporation are hereby amended as follows:
Article 5 of our Restated Articles of Incorporation is amended
in its entirety to read as follows:
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) [Intentionally omitted.]
(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
2
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) [Intentionally omitted.]
(r) [Intentionally omitted.]
(s) [Intentionally omitted.]
(t) [Intentionally omitted.]
(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
3
or entering into any agreement for the sale, transfer or other disposition of
Capital Stock or the right to vote or receive dividends on the Capital Stock or
(ii) the sale, transfer, assignment or other disposition or grant of any
securities or rights convertible or exchangeable for Capital Stock), whether
voluntarily or involuntarily, whether of record or Beneficially, and whether by
operation of law or otherwise; provided, however, that any bona fide pledge of
Capital Stock shall not be deemed a Transfer until such time as the pledgee
effects an actual change in ownership of the pledged shares of Capital Stock.
Section 5.2 Restrictions on Transfer. Except as provided in
Sections 5.11 and 5.16, during the period commencing at the Initial Public
Offering:
(a) No Person (other than an Existing Holder) shall
Beneficially Own Capital Stock in excess of the Ownership Limit, and no Existing
Holder shall Beneficially Own Capital Stock in excess of the Existing Holder
Limit for such Existing Holder.
(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) 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) [Intentionally omitted.]
(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
4
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 5.16, any purported
transferee of shares Acquired in violation of Section 5.2 and any Person
retaining shares in violation of 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
expenses incurred by the Corporation in connection with such sale, plus (ii) any
remaining amount of such proceeds that exceeds the amount paid by the holder for
the shares, and the holder shall be entitled to retain only the amount of such
proceeds in excess of the amount required to be paid to the Corporation.
5
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
6
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. 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 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 for such transferor (but not
below the Ownership Limit) and increase the Existing Holder Limit for such
transferee by the percentage of the outstanding Capital Stock so transferred.
The transferor Existing Holder shall give the Board of Directors of the
Corporation prompt written notice of any such transfer. Any Transfer by an
Existing Holder on the open market shall neither reduce its Existing Holder
Limit nor increase the Ownership Limit or Existing Holder 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 for the affected Existing Holder 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 pursuant to
a dividend reinvestment plan adopted by the Corporation shall increase the
Existing Holder Limit for the Existing Holder 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 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 for the Existing Holder to
the maximum extent possible under Section 5.10 to permit the Beneficial
Ownership of such Capital Stock.
(f) [Intentionally omitted.]
(g) The Board of Directors may reduce the Existing Holder
Limit for any Existing Holder 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 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
7
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 this Article 5:
(a) Neither the Ownership 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) 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 Sections 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 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 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 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
8
provisions of this Article 5 shall remain in effect unless amended pursuant to
the provisions of Article 10.
Section 5.14 [Intentionally omitted.]
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 7.2 of our Restated Articles of Incorporation is
amended in its entirety to read as follows:
Section 7.2. Classification. The term of office of each
director who was elected before the 2004 annual meeting of shareholders shall
expire at the 2005 annual meeting or until his or her successor is elected and
qualifies. The term of office of each director elected at or after the 2004
annual meeting of shareholders shall expire at the next annual meeting of
shareholders thereafter or until his or her successor is elected and qualifies.
IN WITNESS WHEREOF, the undersigned Senior Vice President of this
corporation has executed these Articles of Amendment this 9th day of August,
2004.
/s/ Lisa Palmer
----------------------------------------
Lisa Palmer, Senior Vice President
9
AMENDMENT TO ARTICLES OF INCORPORATION OF
REGENCY CENTERS CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 500,000 SHARES OF
7.25% SERIES 4 CUMULATIVE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation Act
("FBCA"), Regency Centers Corporation, a Florida corporation (the
"Corporation"), does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Amended and Restated Articles
of Incorporation of the Corporation (the "Charter") and Section 607.0602 of the
FBCA, the Board of Directors of the Corporation (the "Board of Directors"), by
resolutions duly adopted on April 28, 2004 and resolutions duly adopted on
August 4, 2004 by a committee appointed by the Board of Directors, has
classified 500,000 shares of the authorized but unissued Preferred Stock par
value $.01 per share ("Preferred Stock") as a separate series of Preferred
Stock, authorized the issuance of a maximum of 500,000 shares of such series of
Preferred Stock, set certain of the preferences, voting powers, restrictions,
limitations as to dividends, qualifications, terms and conditions of redemption
and other terms and conditions of such series of Preferred Stock, and pursuant
to the powers contained in the Bylaws of the Corporation and the FBCA, appointed
a committee (the "Committee") and delegated to the Committee, to the fullest
extent permitted by the FBCA and the Charter and Bylaws of the Corporation, all
powers of the Board of Directors with respect to designating, and setting all
other preferences, voting powers, restrictions, limitations as to dividends and
other distributions, qualifications and terms and conditions of redemption of,
such series of Preferred Stock determining the number of shares of such series
of Preferred Stock (not in excess of the aforesaid maximum number) to be issued
and the consideration and other terms and conditions upon which such shares of
such series of Preferred Stock are to be issued. Shareholder approval was not
required under the Charter with respect to such designation.
SECOND: Pursuant to the authority conferred upon the Committee as
aforesaid, the Committee has unanimously adopted resolutions designating the
aforesaid series of Preferred Stock as the "7.25% Series 4 Cumulative Redeemable
Preferred Stock," setting the preferences, voting powers, restrictions,
limitations as to dividends, qualifications, terms and conditions of redemption
and other terms and conditions of such 7.25% Series 4 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 7.25% Series 4 Cumulative
Redeemable Preferred Stock.
THIRD: The series of Preferred Stock of the Corporation created by the
resolutions duly adopted by the Board of Directors of the Corporation and by the
Committee and referred to in Articles FIRST and SECOND of these Articles of
Amendment shall have the following designation, number of shares, preferences,
voting powers, restrictions and limitation as to dividends, qualifications,
terms and conditions of redemption and other terms and conditions:
Section 1. Designation and Number. A series of Preferred Stock,
designated the "7.25% Series 4 Cumulative Redeemable Preferred Stock" (the
"Series 4 Preferred Stock") is hereby established. The number of shares of
Series 4 Preferred Stock shall be 500,000.
Section 2. Rank. The Series 4 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 4 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 4 Preferred Stock with respect to distributions or rights upon voluntary
or involuntary liquidation, winding-up or dissolution of the Corporation or
both, as the context may require, whether or not the dividend rates, dividend
payment dates or redemption or liquidation prices per share shall be different
from those of the Series 4 Preferred Stock and includes the 7.45% Series 3
Cumulative Redeemable Preferred Stock, the Series B Cumulative Redeemable
Preferred Stock, the Series C Cumulative Redeemable Preferred Stock, the Series
D Cumulative Redeemable Preferred Stock, the Series E Cumulative Redeemable
Preferred Stock and the Series F Cumulative Convertible Redeemable Preferred
Stock of the Corporation. The term "equity securities" does not include debt
securities, which will rank senior to the Series 4 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 4 Preferred Stock as to payment of distributions, holders
of Series 4 Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors of the Corporation, out of funds legally
available for the payment of distributions, cumulative cash distributions at the
rate per annum of 7.25% of the $250 liquidation preference per share of Series 4
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
September 30, 2004 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
2
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 4 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 4 Preferred Stock will be
made to the holders of record of the Series 4 Preferred Stock on the first day
of the month in which the Preferred Stock Distribution Payment Date occurs, or
on such other record dates to be fixed by the Board of Directors of the
Corporation, which record dates shall be not less than 10 days and not more than
30 Business Days prior to the relevant Preferred Stock Distribution Payment Date
(each a "Distribution Record Date ").
The term "Business Day" shall mean each day, other than a
Saturday or a Sunday, which is not a day on which banking institutions in New
York, New York are authorized or required by law, regulation or executive order
to close.
(b) Limitation on Distributions. No distribution on the Series
4 Preferred Stock shall be declared or paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement of the
Corporation relating to its indebtedness, prohibit such declaration, payment
or setting apart for payment or provide that such declaration, payment or
setting apart for payment would constitute a breach thereof or a default
thereunder, or if such declaration, payment or setting apart for payment shall
be restricted or prohibited by law. Nothing in this Section 3(b) shall be
deemed to modify or in any manner limit the provisions of Section 3(c) and 3(d).
(c) Distributions Cumulative. Distributions on the Series 4
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 4 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 4 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 4 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 4 Preferred Stock
3
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 4 Preferred Stock, any
Parity Preferred Stock with respect to distributions or any Junior
Stock, unless, in each case, all distributions accumulated on all
Series 4 Preferred Stock and all classes and series of outstanding
Parity Preferred Stock with respect to distributions have been paid in
full. Without limiting Section 6(b) hereof, the foregoing sentence will
not prohibit (i) distributions payable solely in shares of Junior Stock,
(ii) the conversion of Junior Stock or Parity Preferred Stock into
Junior Stock, (iii) purchases by the Corporation of such Series 4
Preferred Stock or Parity Preferred Stock or Junior Stock pursuant to
Article 5 of the Charter to the extent required to preserve the
Corporation's status as a real estate investment trust, (iv) purchases
or other acquisitions of Junior Stock for purposes of any employee or
director incentive or benefit plan of the Corporation or any subsidiary,
and (v) purchases or acquisitions of shares of Series 4 Preferred Stock
pursuant to a purchase or exchange offer that is made on the same terms
to all holders of Series 4 Preferred Stock.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably deposited
in trust for payment) upon the Series 4 Preferred Stock, all
distributions authorized and declared on the Series 4 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 4
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 4 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 4 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 4
Preferred Stock with respect to rights upon any voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, the holders of Series
4 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 4 Preferred Stock as to rights upon liquidation,
dissolution or winding-up of the Corporation, an amount equal to the sum of (i)
4
aliquidation preference of $250 per share of Series 4 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 4 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 4 Preferred Stock and such Parity
Preferred Stock shall be made so that the payments on the Series 4 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 4 Preferred Stock and such
other Parity Preferred Stock (which shall not include any accumulation in
respect of unpaid distributions for prior distribution periods if such Parity
Preferred Stock does not have cumulative distribution rights) upon liquidation,
dissolution or winding-up of the Corporation bear to each other.
(b) Notice. Written notice of any such voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation, stating
the payment date or dates when, and the place or places where, the amounts
distributable in such circumstances shall be payable, shall be given by first
class mail, postage pre-paid, not less than 30 and not more than 60 days prior
to the payment date stated therein, to each record holder of the Series 4
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 4
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 4 Preferred Stock
may not be redeemed prior to August 31, 2009. On or after such date, the
Corporation shall have the right to redeem the Series 4 Preferred Stock, in
whole or in part, at any time or from time to time, upon not less than 30 nor
5
more than 60 days' written notice, at a redemption price, payable in cash,
equal to $250 per share of Series 4 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 4 Preferred Stock are to be
redeemed, the shares of Series 4 Preferred Stock to be redeemed shall be
selected pro rata (as nearly as practicable without creating fractional shares).
(b) Limitation on Redemption. The Corporation may not redeem
fewer than all of the outstanding shares of Series 4 Preferred Stock unless all
accumulated and unpaid distributions have been paid on all Series 4 Preferred
Stock for all quarterly distribution periods terminating on or prior to the date
of redemption; provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of Series 4 Preferred Stock pursuant to a
purchase or exchange offer that is made on the same terms to all holders of
Series 4 Preferred Stock.
(c) Procedures for Redemption.
(i) Notice of redemption will be mailed by the
Corporation, postage prepaid, not less than 30 nor more than 60 days
prior to the redemption date, addressed to the respective holders of
record of the Series 4 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 4
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 4
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 4 Preferred Stock to be redeemed, (iv)
the place or places where such shares of Series 4 Preferred Stock are to
be surrendered for payment of the redemption price, (v) that
distributions on the Series 4 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 4 Preferred Stock.
If fewer than all of the shares of Series 4 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 4 Preferred Stock held by such
holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in
respect of Series 4 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 4 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 4 Preferred Stock upon surrender of the
certificates evidencing the Series 4 Preferred Stock by such holders at
the place designated in the notice of redemption. If fewer than all
Series 4 Preferred Stock evidenced by any certificate is being redeemed,
a new certificate shall be issued upon surrender of the certificate
evidencing all Series 4 Preferred Stock, evidencing the unredeemed
Series 4 Preferred Stock, without cost to the holder thereof. On and
6
after the date of redemption, distributions will cease to accumulate on
the Series 4 Preferred Stock or portions thereof called for redemption,
unless the Corporation defaults in the payment thereof. If any date
fixed for redemption of Series 4 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 4 Preferred Stock is improperly
withheld or refused and not paid by the Corporation, distributions on
such Series 4 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.
(iii) Subject to applicable escheat laws, if funds deposited
by the Corporation in trust pursuant to Section 5(c)(ii) remain
unclaimed by the holders of shares called for redemption, such funds
shall be repaid to the Corporation at the end of three years, and
thereafter the holder of any such shares shall look only to the
general funds of the Corporation for the payment, without interest, of
the redemption price.
(d) Status of Redeemed Stock. Any Series 4 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 4 Preferred Stock will not
have any voting rights, except as set forth below or as required by the FBCA.
(b) Voting Power. For purposes of this Section 6, "Parity
Voting Securities" means the Series 4 Preferred Stock, the Series 3 Preferred
Stock and all classes or series of Preferred Stock which are (i) on parity with
the Series 4 Preferred Stock as to distributions and/or rights upon liquidation,
dissolution or winding up, (ii) upon which like voting rights have been
conferred and are exercisable as to the matter in question to be submitted to a
vote, and (iii) which would be affected in the same or substantially similar way
by such matter. When Parity Voting Securities are entitled to vote on a matter,
they shall vote together as a single class without regard to series, and each
holder of record of Parity Voting Securities shall be entitled to one vote for
each $25.00 liquidation preference (excluding amounts in respect of accumulated
and unpaid distributions), except that if any Parity Voting Securities were
issued for an amount less than their liquidation preference, the holders thereof
shall be entitled to one vote for each $25.00 of issuance price in lieu of one
vote for each $25.00 of liquidation preference.
7
(c) Right to Elect Directors.
(i) If at any time distributions shall be in arrears
(which means that, as to any such quarterly distributions, the same have
not been paid in full) with respect to six (6) prior quarterly
distribution periods, whether or not consecutive, and shall not have
been paid in full (a "Preferred Distribution Default"), the authorized
number of members of the Board of Directors shall automatically be
increased by two and the holders of record of Series 4 Preferred Stock,
voting together as a single class with the holders of each other class
or series of Parity Voting Securities, will be entitled to fill the
vacancies so created by electing two additional directors to serve on
the Corporation's Board of Directors (the "Preferred Stock Directors")
at a special meeting called in accordance with Section 6(c)(ii) or at
the next annual meeting of stockholders, and at each subsequent annual
meeting of stockholders or special meeting held in place thereof, until
all such distributions in arrears and distributions for the current
quarterly period on the Series 4 Preferred Stock and each such class or
series of Parity Voting Securities have been paid in full.
(ii) At any time when such voting rights shall have vested,
a proper officer of the Corporation shall call or cause to be called,
upon written request of holders of record of at least 10% of the
outstanding shares of Series 4 Preferred Stock, a special meeting of the
holders of record of Parity Voting Securities by mailing or causing to
be mailed to such holders a notice of such special meeting to be held
not less than ten and not more than 45 days after the date such notice
is given. At any annual or special meeting at which Parity Voting
Securities are entitled to vote, all of the holders of the Parity Voting
Securities, by a plurality of the votes, and not cumulatively, will be
entitled to elect two directors. The holders of the Parity Voting
Securities representing the lesser of one-third of the total voting
power of the Parity Voting Securities then outstanding, present in
person or by proxy or the quorum required for a vote of the holders of
Common Stock, will constitute a quorum for the election of the Preferred
Stock Directors except as otherwise provided by law. Notice of all
meetings at which holders of record of the Series 4 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 Voting
Securities representing a majority of the voting power of the Parity
Voting Securities present in person or by proxy shall have the power to
adjourn the meeting for the election of the Preferred Stock Directors,
without notice other than an announcement at the meeting, until a quorum
is present. If a Preferred Distribution Default shall terminate after
the notice of an annual or special meeting has been given but before
such meeting has been held, the Corporation shall, as soon as
practicable after such termination, mail or cause to be mailed notice of
such termination to holders of the Series 4 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 4
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 4 Preferred Stock shall be divested of the voting rights
set forth in Section 6(c) herein (subject to revesting in the event of
8
each and every Preferred Distribution Default) and, if all distributions
in arrears and the distributions for the current distribution period
have been paid in full or set aside for payment in full on all other
classes or series of Parity Voting Securities, the term and office of
each Preferred Stock Director so elected shall terminate. Any Preferred
Stock Director may be removed at any time with or without cause by the
vote of, and shall not be removed otherwise than by the vote of, the
holders of record of a majority of the voting power of the Parity
Voting Securities. So long as a Preferred Distribution Default shall
continue, any vacancy in the office of a Preferred Stock Director may be
filled by written consent of the Preferred Stock Director remaining in
office, or if none remains in office, by a vote of the holders of record
of a majority of the outstanding Series 4 Preferred Stock (voting
separately as a single class with all other classes or series of Parity
Voting Securities). The Preferred Stock Directors shall each be
entitled to one vote per director on any matter.
(d) Certain Voting Rights. In addition to any other vote
required by the FBCA, so long as any Series 4 Preferred Stock remains
outstanding, the Corporation shall not, without the affirmative vote of the
holders of record of at least two-thirds of the voting power entitled to be cast
by the holders of Series 4 Preferred Stock and the holders of other Parity
Voting Securities upon which like voting rights have been conferred and are
exercisable, voting separately as a single class:
(i) amend the Charter to designate or create, or increase
the authorized amount of, any class or series of shares ranking senior
to the Series 4 Preferred Stock with respect to payment of distributions
or rights upon liquidation, dissolution or winding-up ("Senior Shares")
or reclassify any authorized shares of the Corporation into any Senior
Shares; provided that no such vote shall be required if:
(x) at or prior to the time any such event is to take
place, provision is made for the redemption of all shares of
Series 4 Preferred Stock, so long as no portion of the
redemption price will be paid from the proceeds from the sale of
such Senior Shares; or
(y) the holders of Series 4 Preferred Stock have
previously voted pursuant to this Section 6(d) to grant
authority to the Board of Directors to create Senior Shares
pursuant to Section 607.0602 of the FBCA.
(ii) either (A) consolidate, merge into or with, or convey,
transfer or lease its assets substantially as an entirety, to any
corporation or other entity, or (B) amend, alter or repeal the
provisions of the Corporation's Charter (including these Articles of
Amendment) or By-laws, whether by merger, consolidation or otherwise, in
each case in a manner that would materially and adversely affect the
powers, special rights, preferences, privileges or voting power of the
Series 4 Preferred Stock; provided, however, that:
(x) with respect to the occurrence of a merger,
consolidation or a sale or lease of all of the Corporation's
assets as an entirety, so long as (a) the Corporation is the
9
surviving entity and the Series 4 Preferred Stock remains
outstanding with the terms thereof unchanged, or (b) the
resulting, surviving or transferee entity is a corporation
organized under the laws of any state and substitutes for the
Series 4 Preferred Stock other preferred stock having
substantially the same terms and same rights as the Series 4
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 4 Preferred Stock and
no vote of the Series 4 Preferred Stock shall be required in
such case;
(y) any increase in the amount of authorized
Preferred Stock or the creation or issuance of any other class
or series of Preferred Stock, or any increase in an amount of
authorized shares of each class or series, in each case ranking
either (a) junior to the Series 4 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 4 Preferred Stock with respect to payment of
distributions or the distribution of assets upon liquidation,
dissolution or winding-up, shall not be deemed to materially and
adversely affect such rights, preferences, privileges or voting
powers for purposes of this Section 6(d)(ii)(y); and
(z) if any event in Section 6(d)(ii) would materially
and adversely affect the powers, special rights, preferences,
privileges or voting power of the Series 4 Preferred Stock that
are not enjoyed by some or all of the other classes or series
of Parity Voting Securities, the affirmative vote of the holders
of record of two-thirds of the voting power entitled to be cast
by the holders of all series similarly affected shall be
required in lieu of the affirmative vote of the holders of
two-thirds of the voting power entitled to be cast by the
holders of the Parity Voting Securities.
In addition, so long as any Series 4 Preferred Stock remains outstanding, the
Corporation shall not amend the Charter to increase the number of shares of
authorized Preferred Stock (unless such shares are junior to the Series 4
Preferred Stock as to distributions and liquidation, dissolution or winding-up)
without the affirmative vote of the holders of record of at least a majority of
the voting power entitled to be cast by the holders of Series 4 Preferred Stock
and the holders of other Parity Voting Securities upon which like voting rights
have been conferred and are exercisable, voting separately as single class, but
no such vote shall be required for the Board to designate and issue shares of
authorized Preferred Stock pursuant to Section 607.0602 of the FBCA or for the
Corporation to increase the number of shares of authorized Preferred Stock to 30
million shares if such amendment is approved by the holders of record as of July
29, 2004 of a majority of the Corporation's outstanding 7.45% Series 3
Cumulative Preferred Stock.
Section 7. No Conversion Rights. The holders of the Series 4 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.
10
Section 8. No Sinking Fund. No sinking fund shall be established for
the retirement or redemption of Series 4 Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series 4 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 4 Preferred Stock has been classified and designated
by the Board of Directors under the authority contained in the Charter.
FIFTH: These Articles of Amendment have been approved by the Board of
Directors in the manner and by the vote required by law.
SIXTH: The undersigned officer of the Corporation acknowledges these
Articles of Amendment to be the corporate act of the Corporation and, as to all
matters or facts required to be verified under oath, the undersigned officer
acknowledges that to the best of his knowledge, information and belief, these
matters and facts are true in all material respects and that this statement is
made under the penalties for perjury.
11
IN WITNESS WHEREOF, the Corporation has caused this Amendment
to be signed by Lisa Palmer, its Senior Vice President, this 11th day of August,
2004.
REGENCY CENTERS CORPORATION
By: /s/ Lisa Palmer
-------------------------------------
Name: Lisa Palmer
Title: Senior Vice President
REGENCY CENTERS CORPORATION
AMENDMENT TO ARTICLES OF INCORPORATION
This corporation was incorporated on July 8, 1993 effective July 9,
1993 under the name Regency Realty Corporation. Pursuant to Sections 607.1003,
607.1004 and 607.1006, Florida Business Corporation Act, the following amendment
to the Articles of Incorporation, as restated on November 4, 1996, was approved
by the Board of Directors at a meeting held on November 4, 2004. Holders of the
corporation's common stock, voting as a separate class, approved the amendments
at a meeting held on April 28, 2004. Holders of the corporation's Series 3
Preferred Stock, voting as a separate class, approved the amendment at a special
meeting held on September 10, 2004. The only voting groups entitled to vote on
the adoption of the amendment consist of (1) the holders of the corporation's
common stock and (2) holders of the corporation's Series 3 Preferred Stock,
voting as separate classes. The number of votes cast by such voting groups was
sufficient for approval by those voting groups. Section 4.1 of the Restated
Articles of Incorporation of the corporation is hereby amended to read in full
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 ninety million (190,000,000) shares (the "Capital
Stock") divided into classes as follows:
i. Thirty million (30,000,000) 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
ii. 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
iii. 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 fully paid and nonassessable."
IN WITNESS WHEREOF, the undersigned Senior Vice President of this
corporation has executed these Articles of Amendment this ___ day of September,
2004.
/s/ J. Christian Leavitt
----------------------------------------
J. Christian Leavitt, Senior Vice
President
AMENDMENT TO ARTICLES OF INCORPORATION OF
REGENCY CENTERS CORPORATION
AMENDING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 500,000 SHARES OF
SERIES D CUMULATIVE REDEEMABLE PREFERRED STOCK
Pursuant to Section 607.1006 of the Florida Business
Corporation Act ("FBCA"), Regency Centers Corporation, a Florida corporation
formerly known as Regency Realty Corporation ( the "Corporation"), does hereby
certify that:
WHEREAS, the Board of Directors of the Corporation designated
500,000 shares of its authorized but unissued Preferred Stock, par value $.01
per share, as its 9.125% Series D Cumulative Redeemable Preferred Stock (the
"Series D Preferred Stock") pursuant to Articles of Amendment adopted in
accordance with Section 607.0602 of the FBCA, filed with the Florida Department
of State on October 1, 1999 (the "Designation");
WHEREAS, the Corporation has committed to issue shares of
Series D Preferred Stock to the holders of Series D preferred units (the "Series
D Preferred Partners") in the Corporation's affiliate, Regency Centers, L.P., a
Delaware limited partnership (the "Partnership"), but no shares of Series D
Preferred Stock have yet been issued;
WHEREAS, the Partnership and the Series D Preferred Partners
have agreed to amend the Designation to provide that, inter alia, dividends
shall accrue at the rate per annum of 7.45% rather than 9.125% on shares of
Series D Preferred Stock, when issued, and that the holders of the Series D
Preferred Stock shall have certain additional voting rights as set forth herein;
WHEREAS, the Board of Directors of the Corporation adopted
this amendment on October 27, 2004 without shareholder action;
WHEREAS, shareholder approval of this amendment is not
required;
NOW, THEREFORE, ARTICLE THIRD of the Designation is hereby
amended as follows (all capitalized terms not otherwise defined herein shall
have the meanings given to them in the Designation):
1. Distribution Rate
-----------------
Section 3(a) of the Designation is hereby amended to change
the annual distribution rate from 9.125% to 7.45%.
In addition, all references throughout the Designation to
9.125% are hereby changed to 7.45%, and the Series D Preferred Stock shall be
known as the "7.45% Series D Cumulative Redeemable Preferred Stock."
2. Voting
------
A new Section 6(d) is hereby added to the Designation, which
reads in full as follows:
"(d) Certain Additional Voting Rights.
Notwithstanding anything herein to the contrary, so long as
any shares of Series D Preferred Stock remain outstanding, the
Corporation shall solicit the affirmative vote of the holders
of at least two-thirds (2/3) of the Series D Preferred Stock
outstanding at the time, prior to:
(i) electing to consummate any transaction or series
of transactions which would result in a Change of Control of
the Corporation,
(ii) electing to consummate any transaction or series
of transactions which would result in the common shares of the
Corporation or any successor entity of the Corporation ceasing
to be listed on at least one of the New York Stock Exchange,
the American Stock Exchange or the NASDAQ National Market (or,
in each case, a successor thereto), or
(iii) electing not to qualify for taxation as a real
estate investment trust under Section 856 et seq. of the
Internal Revenue Code.
For the purposes of this Section 6(d) "Change of Control"
shall mean: (x) any sale or other disposition of all or
substantially all of the Corporation to an entity that is not
an Affiliate (as defined in Rule 12b-2 under the Securities
Exchange Act of 1934) of the Corporation; or (y) any
consolidation, amalgamation, merger, business combination,
share exchange, reorganization or similar transaction
involving the Corporation pursuant to which the stockholders
of the Corporation immediately prior to the consummation of
such transaction will own, directly or indirectly, less than a
majority of the equity interest in the entity surviving such
transaction; provided, however, a Change of Control shall not
include a transaction or series of transactions consummated
with the offeror of an unsolicited "hostile" tender offer for
control of the Corporation. If the requisite holders of the
Series D Preferred Stock fail to approve any of the
Corporation's actions specified in clauses (i), (ii) or (iii)
of the first sentence of this Section 6(d) (each a "Mandatory
Redemption Event") and the Corporation still effectuates such
2
action, then the sole remedy of the holders of Series D
Preferred Stock shall be that the Corporation shall
immediately redeem all of the Series D Preferred Stock
outstanding at a redemption price, payable in cash, equal to
$100 per share of Series D Preferred Stock plus accumulative
and unpaid distributions, whether or not declared, to the date
of such redemption; provided, however, that notwithstanding
any provision hereof to the contrary, the actions specified in
clause (i) of the first sentence of this Section 6(d) shall
not constitute a Mandatory Redemption Event if, on or prior to
the date of the consummation of such transaction or
transactions, a "nationally recognized statistical rating
organization" (as such term is defined for purposes of Rule
436(g)(2) promulgated under the Securities Act of 1933, as
amended) shall have affirmed the rating accorded the
securities of the Corporation immediately prior to the public
announcement of such transaction or transactions, or shall
have upgraded such rating (or, if the Corporation is not the
surviving entity in such transaction or transactions, affirmed
that the rating of the securities of the successor to the
Corporation shall be at least equal to the rating accorded the
securities of the Corporation immediately prior to the public
announcement of such transaction or transactions). The date of
such redemption shall be the date of the Mandatory Redemption
Event."
[Signature appears on following page.]
3
IN WITNESS WHEREOF, the undersigned Senior Vice President of
the Corporation has executed this amendment this 12th day of November, 2004.
/s/ Lisa Palmer
----------------------------------------
Lisa Palmer, Senior Vice President
4