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SECURITIES AND EXCHANGE COMMISSION
UNITED STATES
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 15, 2004
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REGENCY CENTERS CORPORATION
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(Exact name of registrant as specified in its charter)
Florida 001-12298 59--3191743
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
121 West Forsyth Street, Suite 200 32202
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Jacksonville, Florida
(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: (904)-598-7000
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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))
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Item 1.01 Entry into a Material Definitive Agreement
On December 15, 2004, the compensation committee of the board
of directors of Regency Centers Corporation ("Regency") adopted the Regency
Centers Corporation 2005 Deferred Compensation Plan (the "2005 Plan") to be
effective January 1, 2005.
A. Background of the 2005 Plan
On Friday, October 22, the President of the United States
signed the American Jobs Creation Act of 2004 (the "Jobs Act"), which added a
new Section 409A of the Internal Revenue Code (the "Code"). The new law changes
the operation and taxation of nonqualified deferred compensation arrangements
for amounts that are deferred or become vested on or after January 1, 2005. As a
result, Regency, like many other companies, adopted a new plan that reflects
relatively minor changes from the prior plan to comply with the new law. The
2005 Plan does not result in any substantive change in the compensation or
benefits available to Regency employees, officers or directors.
B. Material Terms of the 2005 Plan
The material terms of the 2005 Plan are substantially similar
to those of the plan it replaces. Members of management and certain highly
compensated employees of Regency are eligible to participate in the 2005 Plan.
The 2005 Plan allows eligible employee participants to annually designate all or
a portion of their annual base salary, bonus or incentive compensation as well
as shares of Regency stock received as a result of the exercise of a Regency
stock option as subject to deferral under the 2005 Plan. The 2005 Plan allows
non-employee directors on Regency's board of directors to annually defer all or
a portion of his or her fees or other compensation for services as a director as
well as shares of Regency stock received as a result of the exercise of a
Regency stock option. A participant's deferral election for a calendar year with
respect to each type of eligible compensation must be at least $25,000. Each
participant must allocate amounts credited to his or her deferred compensation
account among various hypothetical investment options, which includes a phantom
Regency common stock fund. Regency may, but is not required to, make from time
to time matching and/or other discretionary contributions to participants'
deferred compensation accounts. Amounts deferred may be distributed, as more
specifically described in the 2005 Plan, during the participant's employment or
in connection with retirement, disability, death or other termination of
employment. The 2005 Plan provides for payment in a lump sum or, in certain
circumstances, in annual installments, as elected by the participant.
The obligations of Regency under the 2005 Plan are unsecured
general obligations to pay in the future the balance of deferred compensation
accounts pursuant to the terms of the 2005 Plan. The 2005 Plan is filed as an
exhibit to this Form 8-K.
C. Compliance with the Jobs Act
The 2005 Plan is intended to comply with the Jobs Act, and the
provisions of the 2005 Plan will be construed in a manner consistent with the
requirements of such section of the Code. Regency intends to amend the 2005
Plan, to the extent necessary, to comply with guidance that the United States
Department of Treasury is expected to issue with respect to Section 409A of the
Code.
Item 1.02 Termination of a Material Definitive Plan
In connection with the adoption of the 2005 Plan described in
Item 1.01 above, Regency is freezing the prior plan that was replaced by the
2005 Plan. The prior plan was "grandfathered" under the Jobs Act and is not
affected by the new law so long as it is not materially modified. Effective
January 1, 2005, the Amended and Restated Regency Centers Corporation Deferred
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Compensation Plan was suspended with respect to new deferrals; however such plan
will continue to operate for the purpose of administering amounts deferred and
vested under those plans on or prior to January 1, 2005.
Item 9.01 Financial Statements and Exhibits
(a) Not applicable
(b) Not applicable
(c) Exhibits
Exhibit Description
10 (s) Regency Centers Corporation 2005 Deferred Compensation Plan
(as adopted effective January 1, 2005)
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
REGENCY CENTERS CORPORATION
(registrant)
Date: December 21, 2004 By: /s/ J. Christian Leavitt
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J. Christian Leavitt, Senior Vice
President, Finance and Principal
Accounting Officer
REGENCY CENTERS CORPORATION
2005 DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
Page
1. Purpose.................................................................1
2. Definitions.............................................................1
3. Administration..........................................................5
4. Effective Date; Amendment; and Term of Plan.............................6
5. Eligibility.............................................................7
6. Elective Deferrals......................................................7
7. Company Contributions..................................................11
8. Stock Option Gain Deferral.............................................12
9. Non-Transferability of Accounts........................................12
10. Amendment, Suspension and Termination..................................13
11. Miscellaneous..........................................................13
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REGENCY CENTERS CORPORATION 2005
DEFERRED COMPENSATION PLAN
1. Purpose. The Regency Centers Corporation 2005 Deferred
Compensation Plan is intended to promote the interests of the Company and its
shareholders by encouraging directors and a select group of management and
highly compensated employees of the Company and Affiliates to remain in the
employ of the Company by providing them with a means by which they may request
to defer receipt of a portion of their compensation.
2. Definitions. For purposes of the Plan, the following terms shall
have the meanings set forth below:
2.1. "Account" means the bookkeeping account established for
each Participant pursuant to Section 6.3 of the Plan.
2.2. "Affiliate" means any company (including a limited
liability company) or partnership controlled by the Company as determined in the
sole discretion of the Committee.
2.3. "Board" means the Board of Directors of the Company, as
constituted from time to time.
2.4. "Cause" means
(a) the willful and substantial failure or refusal
of the Participant to perform duties assigned to the Participant (unless the
Participant shall be ill or disabled) under circumstances where the Employee
would not have Good Reason to terminate employment, which failure or refusal is
not remedied by the Participant within thirty (30) days after written notice of
such failure or refusal (for purposes of clarity, the Participant's poor
performance shall not constitute willful and substantial failure or refusal to
perform duties assigned to the Participant, but the failure to report to work
shall);
(b) a material breach of the Participant's fiduciary
duties to any Regency Entity (such as obtaining secret profits from the Regency
Entity) or a violation by the Participant in the course of performing the
Participant's duties to any Regency Entity of any law, rule or regulation (other
than traffic violations or other minor offenses) where such violation has
resulted or is likely to result in material harm to any Regency Entity, and in
either case where such breach or violation constituted an act or omission
performed or made willfully, in bad faith and without a reasonable belief that
such act or omission was within the scope of the Participant's employment
hereunder; or
(c) the Participant's engaging in illegal conduct
(other than traffic violations or other minor offenses) which results in a
conviction (or a nolo contendere plea thereto) which is not subject to further
appeal and which is injurious to the business or public image of any Regency
Entity.
2.5. "Change of Control" shall mean the occurrence of any one
or more of the following events occurring after December 31, 2004:
(a) an acquisition, in any one transaction or series
of transactions, after which any individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Exchange Act), has beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 25% or
more (or an acquisition of an additional 5% or more if such individual, entity
or group already has beneficial ownership of 25% or more) of either the then
outstanding shares of Company common stock or the combined voting power of the
then outstanding voting securities of the Company, but excluding, for this
purpose, any such acquisition (i) from the Company, (ii) by the Company or any
employee benefit plan (or related trust) of the Company or (iii) by any
corporation with respect to which, following such acquisition, all of the then
outstanding shares of common stock and voting securities of such corporation are
then beneficially owned, directly or indirectly, in substantially the same
proportions, by the beneficial owners of the common stock and voting securities
of the Company immediately prior to such acquisition;
(b) 50% or more of the members of the Board (i) are
not Continuing Directors, or (ii) whether or not they are Continuing Directors,
are nominated by or elected by the same beneficial owner or are elected or
appointed in connection with an acquisition by the Company (whether through
purchase, merger or otherwise) of all or substantially all of the operating
assets or capital stock of another entity; or
(c) the (i) consummation of a reorganization,
merger, share exchange, consolidation or similar transaction, in each case, with
respect to which the individuals and entities who were the respective beneficial
owners of the common stock and voting securities of the Company immediately
prior to such transaction do not, following such transaction, beneficially own,
directly or indirectly, more than 50% of, respectively, the then outstanding
shares of common stock and voting securities of the corporation resulting from
such reorganization, merger or consolidation, (ii) consummation of the sale or
other disposition of all or substantially all of the assets of the Company or
(iii) approval by the shareholders of the Company of a complete liquidation or
dissolution of the Company.
More than one Change of Control may occur during the term of this Plan.
Notwithstanding the foregoing, a Change of Control shall not occur to the extent
that it is not described in or under Code Section 409A(a)(2)(A)(v).
2.6. "Code" means the Internal Revenue Code of 1986, as
amended.
2.7. "Committee" means the Compensation Committee of the
Board.
2.8. "Company" means Regency Centers Corporation, or any
successors or assigns thereof.
2.9. "Consideration Shares" means shares of Company common
stock that have been held by the Participant for at least 6 months, which shares
are used to exercise an Option, the Stock Option Gain Shares of which are
deferred pursuant to Section 8.
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2.10. "Continuing Director" means any member of the Board who
was a member of the Board on January 1, 2005, and any successor of a Continuing
Director who is recommended to succeed a Continuing Director (or whose election
or nomination for election is approved) by at least a majority of the Continuing
Directors then on the Board; and
2.11. "Deferral Agreement" means an agreement to defer
compensation pursuant to this Plan. The Deferral Agreement shall be on a form
prescribed by the Committee, shall specify Distribution Options and shall
include any amendments, attachments or appendices as the Committee shall
prescribe.
2.12. "Distribution Option(s)" means, with respect to a
Participant's Account (or subaccounts) under the Plan, the election by the
Participant of (a) the event triggering the commencement of distribution, and
(b) the form of payment. Distribution Option elections are made on election
forms provided by the Company.
2.13. "Director" means a member of the Board.
2.14. "Disability" exists, and a person shall be treated as
"Disabled" where a person either (a) is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to last
for a continuous period for not less than 12 months or (b) is, by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period of not less
than 12 months, receiving income replacement benefits for a period of not less
than 3 months under an accident and health plan covering employees of the
Participant's employer. It is intended that "Disability" and "Disabled" have the
same meaning in this Plan as in Section 409A of the Code. "Disability" and
"Disabled" shall have correlative meanings.
2.15. "Employee" means a common law employee of the Company or
an Affiliate.
2.16. "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended.
2.17. "Exchange Act" means the Securities Exchange Act of
1934, as amended.
2.18. "Good Reason" means in the case of a Participant who is
an Employee (unless consented to in writing by the Participant):
(a) a material diminution or adverse change in the
nature of the Participant's title, position, reporting relationships, authority,
duties or responsibilities (including as a type of diminution, the Participant's
occupation of the same title and/or position, but with a privately-held
company);
(b) a diminution that is more than de minimis in
either the Participant's annual base salary or total compensation opportunity
(which, for this purpose, means the aggregate of the annual base salary, annual
bonus and long-term incentive compensation that the Participant has an
opportunity to earn pursuant to awards made in any one calendar year) or in the
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formula used to determine the Participant's annual bonus or long-term incentive
compensation, or a material diminution in the Participant's overall employee and
fringe benefits (it being understood by the parties that if the Participant has
the same total compensation opportunity or compensation formula, but the
compensation actually received by the Participant is diminished due to the
Company's or the Participant's performance, such diminution shall not constitute
Good Reason);
(c) the Participant's principal place of business is
relocated to a location that is both more than 50 miles from its current
location and further from the Participant's residence than the location of the
Participant's principal place of business prior to the relocation;
(d) the occurrence of any event or circumstance
constituting "Good Reason", as defined in any Change of Control Agreement
between the Participant and the Company;
(e) if the Participant is also a director of the
Company, the failure of the Participant to be re-elected to the Board, or if the
Company becomes a subsidiary of a publicly-traded company, to be elected to the
board of directors of such publicly-traded company; or
(f) if, and only if, the Participant has been
employed on a full-time basis for at least one full calendar year, both of the
following conditions are met: (A) the Participant travels at least 50 days
during a calendar year, and (B) the total number of days the Participant travels
in such calendar year exceeds by 25 days or more the average number of days the
Participant traveled per year on Company business during the two calendar years
immediately preceding such calendar year or, if the Participant has not been
employed on a full-time basis for two full calendar years, during the one
calendar year immediately preceding such calendar year.
For purposes of subsection 2.19(f) above, any day in which the Participant is
required to stay overnight shall constitute a day of travel.
No event described above shall constitute Good Reason unless the Participant has
given written notice to the Company specifying the event relied upon for such
termination within six months after the Participant becomes aware, or reasonably
should have become aware, of the occurrence of such event and, if the event can
be remedied, the Company has not remedied such within 30 days of receipt of the
notice.
2.19. "Option" means a nonqualified stock option to purchase
shares of Company common stock.
2.20. "Participant" means any individual who has been
designated as eligible to participate hereunder pursuant to Section 5.
2.21. "Participating Company" means the Company and any
Affiliate the Board designates for participation in the Plan in accordance with
Section 3.4.
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2.22. "Plan" means the Regency Centers Corporation 2005
Deferred Compensation Plan, as set forth herein and as may be amended from time
to time (together with any rules and procedures promulgated by the Committee
with respect thereto).
2.23. "Regency Entity" means the Company or any Affiliate.
2.24. "Retirement" means Termination of Employment by a
Participant at or after attaining an age and a number of years of service
necessary to become eligible for normal retirement benefits under the Company's
qualified retirement plan, or any other Termination of Employment the Committee
determines constitutes Retirement for purposes of this Plan.
2.25. "Rule 16b-3" means Rule 16b-3 of the General Rules and
Regulations under the Exchange Act as promulgated by the Securities and Exchange
Commission or its successors, as amended and in effect from time to time.
2.26. "Share Program" means the investment of deferred amounts
in phantom Company common stock as described in Section 6.4(b).
2.27. "Stock Option Gain Shares" means the shares of Company
common stock determined pursuant to Section 8.5 that result from the exercise of
an Option and that may be deferred pursuant to Section 8.
2.28. "Termination of Employment" and similar terms mean (a)
for an employee completely ceasing, voluntarily or involuntarily, to be employed
by the Company and all Affiliates, and (b) for a Director, ceasing to serve as
such for the Company and all Affiliates. The Committee may in its discretion
determine whether any leave of absence constitutes a Termination of Employment
within the meaning of the Plan. In no event shall Termination of Employment be
deemed to occur any earlier than the occurrence of a "separation from service"
within the meaning of Code Section 409A(a)(2).
2.29. "Trustee" means, if applicable, the trustee or trustees
of a trust established by the Company to assist in meeting its obligations
hereunder.
2.30. "Unforeseeable Emergency" means severe financial
hardship resulting from: (a) illness or accident of the Participant, the
Participant's spouse or the Participant's dependent(s) (as defined in Code
Section 152(a)), (b) a loss of the Participant's property due to casualty or (c)
any other similar extraordinary and unforseeable circumstancesarising as a
result of events beyond the control of the Participant, as determined by that
the Committee, in its sole discretion.
2.31. "Valuation Date" means the last business day of each
calendar month or such other day as the Committee shall determine.
3. Administration.
3.1. The Committee. The Plan shall be administered by the
Committee.
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3.2. Plan Administration and Plan Rules. The Committee is
authorized to construe and interpret the Plan and to promulgate, amend, and
rescind rules and procedures relating to the implementation, administration, and
maintenance of the Plan. Subject to the terms and conditions of the Plan, the
Committee shall make all determinations necessary or advisable for the
implementation, administration, and maintenance of the Plan. If at any time the
Committee is not composed solely of two or more "Non-Employee Directors" within
the meaning of Rule 16b-3, then all determinations affecting participation by
persons subject to Section 16 of the Exchange Act shall be made by the Board.
The Committee may designate persons other than members of the Committee to carry
out the day-to-day administration of the Plan under such conditions and
limitations as it may prescribe. The Committee's determinations under the Plan
need not be uniform and may be made selectively among Participants, whether or
not such Participants are similarly situated. Any determination, decision, or
action of the Committee in connection with the construction, interpretation,
administration, implementation, or maintenance of the Plan shall be final,
conclusive, and binding upon all Participants and any person(s) claiming under
or through any Participants.
3.3. Compensation Subject to Employee Deferral. The
Committee, in its sole discretion and upon such terms as it may prescribe, may
designate all or a portion of annual base salary, bonus, or incentive
compensation as subject to a deferral under Section 6.1(b).
3.4. Participating Affiliates. The Committee, in its sole
discretion and upon such terms as it may prescribe, may designate any Affiliate
to be a Participating Company and at any time may rescind such designation;
provided, however, that no such rescission shall adversely affect the rights of
any Participant to benefits under an existing Account without the written
consent of such Participant.
3.5. Liability Limitation. Neither the Board nor the
Committee, nor any member of either, shall be liable for any act, omission,
interpretation, construction, or determination made in good faith in connection
with the Plan, and the members of the Board and the Committee shall be entitled
to indemnification and reimbursement by the Company in respect of any claim,
loss, damage, or expense (including, without limitation, attorneys' fees)
arising or resulting therefrom to the fullest extent permitted by law and/or
under any Directors and Officers liability insurance coverage which may be in
effect from time to time.
4. Effective Date; Term of Plan. The Plan shall be first made
effective January 1, 2005. The Plan shall continue in effect until terminated by
the Board. Benefits relating to Accounts in existence on the date of termination
of the Plan shall continue in effect pursuant to the terms hereunder, however,
no further deferrals shall be made after such date.
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5. Eligibility. All Directors shall be eligible under the Plan and
key executive employees or classes of key executive employees selected by the
Committee who comprise a select group of management or highly compensated
employees shall be eligible under the Plan.
6. Elective Deferrals.
6.1. Deferral Elections.
(a) Subject to Section 6.1(h), each Director
Participant may elect to defer all or a portion of his or her fees or other
compensation for services as a Director and Stock Option Gain Shares. Such
election shall be made on a Deferral Agreement. Director Participants shall also
select Distribution Options on election forms provided by the Company.
(b) Subject to Section 6.1(h), each Employee
Participant may elect to defer all or a portion of any annual base salary,
bonus, or incentive compensation payable in cash or Company common stock
designated by the Committee as eligible for a deferral, which would otherwise be
paid to the Participant and Stock Option Gain Shares. Such election shall be
made on a Deferral Agreement. Employee Participants shall also select
Distribution Options on election forms provided by the Company.
(c) Except as otherwise provided in this Section
6.1(c), elections to defer director fees and other director compensation and
elections to defer annual base salary must be made no later than the December
31st immediately preceding the beginning of the calendar year in which the
services are provided for which such amounts would be paid absent a deferral
election or, if earlier, such dates as the Committee may prescribe from time to
time. Notwithstanding the foregoing deferral election deadlines, when an
individual first becomes eligible to participate in the Plan, the newly eligible
Participant may make an election to defer director fees and other director
compensation or annual base salary for services to be performed subsequent to
such election within 30 days after the individual becomes eligible.
(d) Elections to defer bonuses or incentive
compensation shall be made according to rules and procedures established by the
Committee and designed to comply with the advance election provisions of Section
409A of the Code. Notwithstanding anything to the contrary in this Plan, no
election shall be effective to the extent it would permit a Participant
contribution or distribution to be made that is not in compliance with Section
409A of the Code. To the extent such election related to Participant
contributions that complied with such statute and the regulations thereunder,
that portion of the election shall remain valid, except as otherwise provided
under this Plan.
(e) Deferral Agreements shall be in writing and
properly completed upon a form approved by the Committee, which shall be the
sole judge of the proper completion thereof. Such agreement shall specify the
amount or amounts to be deferred, the Distribution Options, and may include such
other provisions as the Committee deems appropriate.
(f) Participants shall select Distribution Options
for each deferral made under the Plan and such Distribution Options shall apply
separately to each deferral unless provided otherwise in the election form.
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(g) Deferral elections and Distribution Options
selected by a Participant pursuant to a Deferral Agreement shall automatically
remain in effect for calendar years following the year in which the elections
are first made unless the Participant terminates such Deferral Agreement or
executes a new Deferral Agreement, in either case, in accordance with the terms
of the Plan. Participants may terminate a Deferral Agreement by providing
written notice to the Committee prior to December 31 of any calendar year, in
which case the Deferral Agreement shall not be effective for amounts earned in
subsequent calendar years.
(h) A Participant's deferral election for base
salary shall not be effective unless, when combined with all other deferrals of
base salary made by the Participant for the same calendar year, it would result
in the deferral of at least $25,000. A Participant's deferral election for bonus
and/or incentive compensation shall not be effective unless, when combined with
all other deferrals of bonus and/or incentive compensation made by the
Participant for the same calendar year, it would result in the deferral of at
least $25,000. A Participant's deferral election for Stock Option Gain Shares
shall not be effective unless, when combined with all other deferrals of Stock
Option Gain Shares made by the Participant for the same calendar year, it would
result in the deferral of at least $25,000. In determining whether a
Participant's deferrals of Stock Option Gain Shares results in the required
$25,000 or greater minimum deferral, any Stock Option Gain Shares shall be
valued on the date that the deferred amounts would have otherwise been paid to
the Participant (based on the closing price for that day).
6.2. Non Revocable. Except as otherwise expressly provided in
Section 6.1(g), an election to defer an amount under the plan shall not be
revocable.
6.3. Accounts. Separate Accounts shall be maintained for each
Participant. Each Account may be comprised on one or more subaccounts as
necessary to reflect different deferral, investment and Distribution Option
elections.
6.4. Investment Earnings.
(a) Subject to Section 6.4(b), each month, the
balance of each Participant's Account shall be credited with investment gains
and losses determined by assuming that the Account was invested in such
investments and in such percentages specified by the Participant based upon such
investment vehicles and in accordance with such procedures as specified by the
Committee. Such a choice is nominal in nature, and grants Participants no real
or beneficial interest in any specific fund or property. Provision of a choice
among hypothetical investment options grants the Participant no ability to
affect the actual aggregate investments the Company may or may not make to cover
its obligations under the Plan. Any adjustments the Company may make in its
actual investments for the Plan may only be instigated by the Company, and may
or may not bear a resemblance to the Participants' hypothetical investment
choices on an account-by-account basis. The timing, allowance and frequency of
hypothetical investment choices, and a Participant's ability to change how his
or her Deferral Account is credited, is within the sole discretion of the
Committee. Notwithstanding the above, the Committee has the discretion to
reject a Participant's request of a particular investment and to select an
alternative investment of its choosing. Each affected Participant shall be given
notice of any such Committee action.
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(b) Any amounts deferred by a Participant to the
Share Program shall be deemed to have been invested in shares of phantom Company
common stock on the date that the deferred amounts would have been paid to the
participant (based on the closing price for that day). Such credited amount
shall be reflected in one or more subaccounts in the Participant's Account. This
subaccount shall only be a bookkeeping entry and no actual shares shall be held
in the subaccount. If dividends are declared on Company common stock, the
Participant's Account shall be credited as of the dividend payment date with an
amount equal to the cash dividends the Participant would have received were he
or she a shareholder with respect to the phantom shares of Company common stock
in the subaccount as of the related dividend record date. Deferred amounts
(including credits for phantom dividends on phantom shares in the Share Program)
may be transferred into or out of the Share Program from or to other investments
in the Participant's Account; provided that no Stock Option Gain Shares
(including credits for phantom dividends on phantom Stock Option Gain Shares in
the Share Program) may be transferred into or out of the Share Program from or
to other investments in the Participant's Account. For avoidance of doubt, no
Stock Option Gain Shares deferred under the Plan (including credits for phantom
dividends on phantom Stock Option Gain Shares in the Share Program) may be
diversifeid hereunder into any other other investments. The Committee shall
credit the subaccount of a Participant in the Share Program on a dividend
payment date with additional shares of phantom stock in lieu of crediting the
Participant's Account with phantom dividends, with the number of shares so
credited (including fractional shares) computed by dividing the aggregate of
such phantom dividends by the closing price of Company common stock on such
dividend payment date. Amounts deferred under the Share Program may be
distributed only in the form of shares of Company common stock. A Participant
shall be entitled (upon distribution) to one share of Company common stock for
each phantom share of Company common stock in the Participant's subaccount, with
fractional shares paid in cash.
(c) A Participant who is subject to Section 16 of
the Exchange Act may make transfers of existing balances into or out of the
Share Program, as described above, if the transfer is effected pursuant to an
election made at least 6 months after the date of the Participant's most recent
opposite-way election making a transfer of existing Account balances out of or
into the Share Program or existing account balances out of or into a Company
stock fund under any other Company plan, or more frequently as permitted by the
Committee.
(d) In the event of any stock dividends, stock
splits, reverse stock splits, recapitalizations, combinations, exchanges of
shares, mergers, consolidations, liquidations, split-ups, split-offs, spin-offs
or other similar changes in capitalization, or any distribution to stockholders,
other than regular cash dividends, or any other event for which the Company
believes an adjustment is appropriate, appropriate adjustments shall be made to
that portion of the Participant's Account deemed invested in the Share Program
to prevent dilution or unintended enlargement of benefits hereunder.
(e) Deferred cash amounts arising from deferrals of
base pay, bonus and incentive amounts shall be credited to a Participant's
Account as soon as practicable after such amount would otherwise have been paid.
6.5. Vesting. Except (a) as otherwise provided in Section 7.2
or (b) for any vesting conditions imposed upon, or with respect to, any Company
common stock deferred under this Plan (which vesting conditions the deferred
9
stock or any resulting Plan account balance shall remain subject to), a
Participant shall be 100% vested in his Account.
6.6. Payment.
(a) Subject to earlier distribution pursuant to
Sections 6.7 and 6.9, distribution of a Participant's vested Account shall be
made pursuant to the Distribution Option(s) selected by the Participant.
(b) Subject to Section 6.7, distribution will be in
one of the following forms, as elected by the Participant pursuant to Section
6.1:
(i) a lump sum; or
(ii) annual installments over a period of
between 2 and 10 years (as elected by the Participant), with each installment
equal to the balance in the Participant's Account (or portion thereof subject to
the election) as of the Valuation Date immediately preceding the installment
date, divided by the number of remaining installments (including the installment
being determined).
(c) If a Participant has elected to receive (or
begin receiving) distribution of all or part of his or her Account on a specific
date, distribution of amounts subject to such election shall be made (or
commence) on such date, with annual installments, if applicable, being made on
subsequent anniversaries thereof. If a Participant has elected to receive (or
begin receiving) distribution of all or part of his or her Account upon
Termination of Employment or if distribution is made because of an event
described in Section 6.7 or 6.9, distribution of amounts subject to such
election or event, as the case may be, shall be made as soon as practicable
thereafter, but in no event more than 30 days after the date of such Termination
of Employment or event.
(d) Notwithstanding any other Plan provision, no
payment to a "specified employee" (as defined in Section 409A of the Code) based
upon Termination of Employment shall commence earlier than six (6) months after
the date of such individual's Termination of Employment (except in the case of a
termination by death). The commencement of a validly elected payment should be
delayed to the day that is at least six (6) months after such separation.
6.7. Death or Disability. All amounts in a Participant's
Account shall be distributed in a lump sum within 30 days following a
Participant's Disability (other than any unvested Company contributions made
pursuant to Section 7 or any unvested Company common stock deferrals) or death.
6.8. Revised Election. A Participant may make a request to
the Committee to revise the Distribution Options previously selected to defer a
scheduled distribution of the Participant's account for five (5) additional
calendar years beyond that previously elected. Unless otherwise provided by the
Committee, the election to defer the distribution must be made before the last
business day of the December that is at least one year before the scheduled
distribution. Notwithstanding anything to the contrary in this Plan, (1) an
election to defer the distribution of an Account balance must be made at least
10
12 months prior to the date of the first scheduled payment under the prior
distribution election and (2) the election shall not take effect until at least
12 months after the date on which the election is made. A deferral request under
this Section 6.8 shall not result in a forfeiture of the Participant's or former
Participant's Account.
6.9. Unforeseeable Emergency. If a Participant suffers an
Unforeseeable Emergency, the Committee, in its sole discretion, may pay to the
Participant that portion of his or her vested Account which the Committee
determines is necessary to satisfy the emergency need, including any amount(s)
necessary to pay any federal, state or local income taxes reasonably anticipated
to result from the distribution. In determining the maximum amount distributable
under this Section 6.9, the Committee shall take into account the extent to
which the such hardship is or may be relieved through reimbursement or
compensation by insurance or otherwise by liquidation of the Participant's
assets (to the extent the liquidation of such assets would not itself cause
severe financial hardship). A Participant requesting an emergency payment shall
apply for the payment in writing on a form approved by the Committee and shall
provide such additional information as the Committee may require.
7. Company Contributions.
7.1. Company Discretionary Matching Contributions and Company
Discretionary Contributions. The Company may, but shall not be required to,
make, from time to time as it shall determine, matching and/or other
discretionary Company contributions to all or some Participants' Accounts.
Whether or not such contributions are made, and, if made, the terms and
conditions of such contributions, shall be determined in the sole discretion of
the Board (or the Committee if delegated the authority to make such
determinations).
7.2. Vesting of Company Contributions. Unless otherwise
determined by the Committee, a Participant shall be vested in the same
percentage of the Company discretionary matching contributions and Company
discretionary contributions as he or she is vested (or would be vested if a
participant) in Company contributions under the Regency Centers 401(k) Profit
Sharing Plan as may be amended from time to time, or any successor plan;
provided, however, that, unless otherwise determined by the Committee prior to
the occurrence of such event, Participants shall become 100% vested in all
Company discretionary matching contributions and Company discretionary
contributions upon the Company's Insolvency (as determined by the Committee and
only if such vesting would not subject a Participant to taxation, interest and
penalties under and by reason of Code Section 409A(b)(2)), the Participant's
death or a Change of Control, but only if the Company terminates the
Participant's employment without Cause or the Participant terminates the
Participant's employment for Good Reason, in each case within two years
following a Change of Control. In its discretion, the Committee may provide for
accelerated vesting of any unvested Company discretionary matching contributions
and/or Company discretionary contributions upon the Disability or Retirement of
a Participant, provided that in the absence of any express Committee provision
of accellerated vesting in the event of Disability or Retirement of a
Participant, no accellerated vesting shall occur upon those events
notwithstanding anything else herein or in the Regency Centers 401K Profit
Sharing Plan. Any such acceleration need not be uniform among all Participants.
Anything herein to the contrary notwithstanding, a Participant shall forfeit all
vested and unvested Company discretionary matching contributions and Company
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discretionary contributions if the Participant's employment is terminated for
Cause.
8. Stock Option Gain Deferral.
8.1. In General. Subject to provisions of this Section 8,
Participants may elect to defer receipt of the gain related to the exercise of
an Option by properly filing a Deferral Agreement (in the form and manner
prescribed by the Committee for deferral of Stock Option Gain Shares) with the
Committee.
8.2. Timing of Filing Stock Option Gain Share Deferral
Election. A Stock Option Gain Share Deferral Agreement must be filed at least
six months prior to the date the Option is exercised or, if earlier, such dates
as the Committee may prescribe from time to time. If an Option with respect to
which a Deferral Agreement has been filed is exercised prior to the expiration
of such six month period, the Deferral Agreement shall not be effective.
8.3. Contents of Stock Option Gain Share Deferral Agreement.
Each Stock Option Gain share Deferral Agreement shall set forth, as applicable,
such information as is required generally for Deferral Agreements pursuant to
Section 6.1 hereof, and any other information determined to be appropriate by
the Committee. A Participant may elect to defer gain in increments of 25%, 50%,
75% or 100% of the total number of Stock Option Gain Shares resulting from
exercise of the Option.
8.4. Manner of Exercising Options. A Participant who desires
to exercise an Option and to defer current receipt and distribution of the
related Stock Option Gain Shares must exercise the Option by tendering
Consideration Shares to satisfy the exercise price or, if permitted by the
Committee, by attesting to ownership of a number of Consideration Shares
necessary to effectuate the exercise contemplated hereunder, in addition to any
other terms and conditions in the Option award agreement and related plan,
including the procedures and requirements relating to the exercise of an Option
exercise.
8.5. Determination of Stock Option Gain Shares. Upon exercise
of an Option, the number of Stock Option Gain Shares that will be deferred
pursuant to a Participant's Deferral Agreement shall be equal to the excess of
the number of shares of Company common stock with respect to which the Option is
being exercised, over the number of Consideration Shares needed to satisfy the
exercise price (and any tax withholding) that must be paid to purchase such
shares pursuant to the Option (as determined by the Committee, subject to the
terms and conditions of the Option award agreement and related plan). Any
fractional Stock Option Gain Share that results from the computations hereunder
shall be rounded up to the nearest whole number. The total number of Stock
Option Gain Shares that is deferred shall be based upon the percentage of such
Stock Option Gain Shares that the Participant has elected to defer pursuant to
Subsection 8.3.
8.6. Investment of Deferred Stock Option Gain Shares. Any
Stock Option Gain Shares deferred by a Participant pursuant to this Section 8
shall be credited to the Share Program described in Section 6.4(b).
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9. Non-Transferability of Accounts. No Account under the Plan, and
no rights or interests herein or therein, including any right to the payment of
benefits under the Plan, shall or may be assigned, transferred, sold, exchanged,
encumbered, pledged, or otherwise hypothecated or disposed of by a Participant
or any beneficiary of any Participant, except by testamentary disposition by the
Participant or the laws of descent and distribution. No such interest shall be
subject to execution, attachment or similar legal process, including, without
limitation, seizure for the payment of the Participant's debts, judgements,
alimony, or separate maintenance. The rights of a Participant hereunder are
exercisable during the Participant's lifetime only by the Participant or the
Participant's guardian or legal representative.
10. Amendment, Suspension and Termination. The Board may suspend or
terminate the Plan (or any portion thereof) at any time and may amend the Plan
at any time and from time to time. No such amendment, suspension or termination
shall materially adversely affect the rights of any Participant to benefits
under an existing Account, without the consent of such Participant. Plan
amendments adopted pursuant to this section shall govern all Deferral Agreements
and Distribution Options and all Accounts uniformly except to the extent
otherwise specifically provided by such amendment. Action by the Company may be
taken by the Board or the Committee. There shall be no time limit on the
duration of the Plan. This Section shall not restrict the right of the Board to
cause all Accounts to be distributed in the event of Plan termination, provided
all Participants and beneficiaries are treated in a uniform and
nondiscriminatory manner.
11. Miscellaneous.
11.1. Tax Withholding. The Company has the right to deduct
from any payment, settlement, or deferral under the Plan or any payment made
outside of the Plan, payments of any federal, state, local, or other taxes of
any kind which the Committee, in its sole discretion, deems necessary to be
withheld to comply with the Code and/or any other applicable law, rule, or
regulation.
11.2. No Rights to Employment. Neither the adoption of the
Plan nor the designation as a Participant shall confer upon any Employee of the
Company or any Affiliate any right to continued employment with the Company or
any Affiliate, as the case may be, nor shall it interfere in any way with the
right, if any, of the Company or any Affiliate to terminate the employment of
any Employee at any time for any reason. Neither the adoption of the Plan nor
the designation of a Participant shall confer upon any Director the right to
continue as such.
11.3. No Rights as Shareholder. Participants shall have no
rights as a shareholder pertaining to phantom Company common stock credited to
their Accounts under the Share Program.
11.4. Code Section 409. Notwithstanding anything herein or
elsewhere to the contrary, the terms, provisions and conditions of this Plan
shall be construed, interpreted and/or restricted in such a manner which will
permit all deferrals hereunder to meet the requirements of, and for the Plan to
be operated in accordance with, Code Section 409A and not be subject to the
gross income, interest and additional tax provisions of Section 409A.
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11.5. Unfunded Plan.
(a) The Plan shall be unfunded and the Company shall
not be required to segregate any assets in connection with any Accounts. Any
liability of the Company to any person with respect to any Account shall be
based solely upon the contractual obligations that may be created as a result of
the Plan. No such obligation of the Company shall be deemed to be secured by any
pledge of, encumbrance on, or other interest in, any property or asset of the
Company or any Affiliate. Nothing contained in the Plan shall be construed as
creating in respect of any Participant (or beneficiary thereof or any other
person) any equity or other interest of any kind in any assets of the Company or
any Affiliate or creating a trust of any kind or a fiduciary relationship of any
kind between the Company, any Affiliate and/or any such Participant, any
beneficiary thereof, or any other person.
(b) The Company may elect to establish, and may
fund, a trust which conforms substantially with the terms of the Internal
Revenue Service model trust as described in Treasury Revenue Procedure 92-64,
1992-C C.B. 422 and any successor Revenue Procedure.
(c) Upon a Change of Control, the Company shall
establish the trust referred to in Section 11.5(b), if not already established,
and shall contribute to such trust an amount equal to the aggregate of all of
the Plan's Participants' Account balances, including any unvested portions
thereof, as of the date of the Change of Control.
(d) This Plan is intended to constitute an unfunded,
unsecured plan of deferred compensation for Directors and a select group of
management or highly compensated employees within the meaning of Sections
201(2), 301(a)(3) and 401(a)(1) of ERISA ("a Top-Hat Plan"). In the event (a) of
any change in law or interpretation thereof which the Committee determines, in
its discretion, will cause the Plan to fail to qualify as a Top-Hat Plan or (b)
if at any time any Employee Participant is finally determined by the Internal
Revenue Service or the U.S. Department of Labor not to qualify as a member of a
select group of "management or highly compensated employees" as such term is
used in Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA, the Committee may, in
its sole discretion, terminate the participation of such Participants as it
deems necessary to preserve or restore the Plan's status, and may take such
other action, if necessary to preserve or restore the Plan's status as a Top-Hat
Plan. A final determination of the Internal Revenue Service or the U.S.
Department of Labor shall be a decision rendered by the Internal Revenue Service
or the U.S. Department of Labor which is no longer subject to administrative
appeal within such agency.
11.6. Designation of Beneficiary. Each Participant under the
Plan may designate a beneficiary or beneficiaries (including any individual,
trust, estate, partnership, association, corporation, or other entity) to
receive any payment which under the terms of the Plan may become payable on or
after the Participant's death. At any time, and from time to time, any such
designation may be changed or canceled by the Participant without the consent of
any such beneficiary. Any such designation, change, or cancellation must be on a
form provided for that purpose by the Committee and shall not be effective until
received by the Committee. If no beneficiary has been designated by a deceased
Participant, or if the designated beneficiaries have predeceased the
Participant, the beneficiary shall be the Participant's estate. If the
Participant designates more than one beneficiary, any payments under the Plan to
14
such beneficiaries shall be made in equal shares unless the Participant has
expressly designated otherwise, in which case the payments shall be made in the
shares designated by the Participant.
11.7. Governing Law. The Plan and all actions taken thereunder
shall be governed by and construed in accordance with the laws of the State of
Florida, without reference to the principles of conflict of laws thereof, except
to the extent preempted by ERISA. Any titles and headings herein are for
reference purposes only and shall in no way limit, define or otherwise affect
the meaning, construction or interpretation of any provisions of the Plan.
11.8. Plan Binding on Successors. The Plan and all of the
Company's liabilities hereunder shall be binding upon any successor or assign of
the Company (whether by merger, consolidation, reorganization, or otherwise) or
any purchaser of all or substantially all of the stock or assets of the Company.
Occurrence of a merger, consolidation, reorganization, sale or other similar
transaction shall not relieve the Trustee of any obligations arising hereunder
or under any trust agreement entered into in connection with this Plan
(including, but not limited to, any obligation to make payments to Participants
or beneficiaries pursuant to the terms of this Plan).
11.9. Dispute Resolution. Any dispute, controversy, or claim
between the Company and any Participant, beneficiary, or other person arising
out of or relating to the Plan shall be settled by arbitration conducted in the
City of Jacksonville in accordance with the Commercial Rules of the American
Arbitration Association then in force and Florida law. In any dispute or
controversy or claim challenging any determination by the Committee, the
arbitrator(s) shall uphold such determination in the absence of the arbitrator's
finding of the presence of arbitrary or capricious action by the Committee. The
arbitration decision or award shall be final and binding upon the parties. The
arbitration shall be in writing and shall set forth the basis therefor. The
parties hereto shall abide by all awards rendered in such arbitration
proceedings, and all such awards may be enforced and executed upon in any court
having jurisdiction over the party against whom enforcement of such award is
sought. Each party shall bear its own costs with respect to such arbitration,
including reasonable attorneys' fees; provided, however, that: (a) the fees of
the American Arbitration Association shall be borne equally by the parties; and
(b) if the arbitration is resolved in favor (as determined by the arbitrator(s))
of the Participant, beneficiary, or other person asserting a claim under the
Plan, such person's cost of the arbitration shall be paid by the Company.
IN WITNESS WHEREOF, this Plan is first made effective January
1, 2005.
REGENCY CENTERS CORPORATION
By: /s/ J. Christian Leavitt
-------------------------------------
Name: J. Christian Leavitt
Title: Senior Vice President &
Treasurer
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