RESTATED ARTICLES OF INCORPORATION
OF
REGENCY REALTY CORPORATION
This corporation was incorporated on July 8, 1993, effective July 9,
1993, under the name Regency Realty Corporation. Pursuant to Section 607.1007,
Florida Business Corporation Act, restated Articles of Incorporation were
approved at a meeting of the directors of this corporation on October 28, 1996.
The Restated Articles of Incorporation adopted by the directors incorporate
previously filed amendments and omit items of historical interest only.
Accordingly, shareholder approval was not required.
ARTICLE 1
NAME AND ADDRESS
Section 1.1 Name. The name of the corporation is Regency Realty Corporation
(the "Corporation").
Section 1.2 Address of Principal Office. The address of the principal
office of the Corporation is 121 West Forsyth Street, Jacksonville, Florida
32202.
ARTICLE 2
DURATION
Section 2.1 Duration. The Corporation shall exist perpetually.
ARTICLE 3
PURPOSES
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 approved by the
shareholders. Subject to the rights of any outstanding classes or series of
Preferred Stock having preferential dividend rights, holders of Common Stock are
entitled to such dividends as may be declared by the Board of Directors out of
funds lawfully available therefor. Upon the dissolution of the Corporation,
holders of Common Stock are entitled to receive, pro rata in accordance with the
number of shares owned by each, the net assets of the Corporation remaining
after the holders of any outstanding classes or series of Preferred Stock having
preferential rights to such assets have received the distributions to which they
are entitled.
Section 4.4 Special Common Stock. The Board of Directors is authorized to
provide for the issuance of the Special Common Stock in one or more classes and
in one or more series within a class and, by filing the appropriate Articles of
Amendment with the Secretary of State of Florida which shall be effective
without shareholder action, is authorized to establish the number of shares to
be included in each class and each series and the limitations and relative
rights of each class and each series. Each class or series of Special Common
Stock (1) shall bear dividends, pari passu with dividends on the Common Stock,
in such amount as the Board of Directors shall determine, (2) shall vote
together with the Common Stock, and not separately as a class except where
otherwise required by law, on all matters on which the Common Stock is entitled
to vote, unless the Board of Directors determines that any such class or series
shall have limited voting rights or shall not be entitled to vote except as
otherwise required by law, (3) may be convertible or redeemable on such terms as
the Board of Directors may determine, and (4) may have such other relative
rights and limitations as the Board of Directors is allowed by law to determine.
ARTICLE 5
REIT PROVISIONS
Section 5.1 Definitions. For the purposes of this Article 5, the following
terms shall have the following meanings:
(a) "Acquire" shall mean the acquisition of Beneficial Ownership of shares
of Capital Stock by any means including, without limitation,
acquisition pursuant to the exercise of any option, warrant, pledge or
other security interest or similar right to acquire shares, but shall
not include the acquisition of any such rights, unless, as a result,
the acquirer would be considered a Beneficial Owner as defined below.
The term "Acquisition" shall have the correlative meaning.
(b) "Actual Owner" shall mean, with respect to any Capital Stock, that
Person who is required to include in its gross income any dividends
paid with respect to such Capital Stock.
(c) "Beneficial Ownership" shall mean ownership of Capital Stock by a
Person who would be treated as an owner of such shares of Capital
Stock, either directly or indirectly, under Section 542(a)(2) of the
Code, taking into account for this purpose (i) constructive ownership
determined under Section 544 of the Code, as modified by Section
856(h)(1)(B) of the Code (except where expressly provided otherwise);
and (ii) any future amendment to the Code which has the effect of
modifying the ownership rules under Section 542(a)(2) of the Code. The
terms "Beneficial Owner," "Beneficially Owns" and "Beneficially Owned"
shall have the correlative meanings.
(d) "Code" shall mean the Internal Revenue Code of 1986, as amended. In the
event of any future amendments to the Code involving the renumbering of
Code sections, the Board of Directors may, in its sole discretion,
determine that any reference to a Code section herein shall mean the
successor Code section pursuant to such amendment.
(e) "Constructive Ownership" shall mean ownership of Capital Stock by a
Person who would be treated as an owner of such Capital Stock, either
directly or constructively, through the application of Section 318 of
the Code, as modified by Section 856(d)(5) of the Code. The terms
"Constructive Owner', "Constructively Owns" and "Constructively Owned"
shall have the correlative meanings.
(f) "Existing Holder" shall mean any of The Regency Group, Inc., MEP, Ltd.,
and The Regency Group II, Ltd. (and any Person who is a Beneficial
Owner of Capital Stock as a result of attribution of the Beneficial
Ownership from any of the Persons previously identified) who at the
opening of business on the date after the Initial Public Offering was
the Beneficial Owner of Capital Stock in excess of the Ownership Limit;
and any Person who Acquires Beneficial Ownership from another Existing
Holder, except by Acquisition on the open market, so long as, but only
so long as, such Person Beneficially Owns Capital Stock in excess of
the Ownership Limit.
(g) "Existing Holder Limit" for an Existing Holder shall mean, initially,
the percentage by value of the outstanding Capital Stock Beneficially Owned by
such Existing Holder at the opening of business on the date after the Initial
Public Offering, and after any adjustment pursuant to Section 5.8 hereof, shall
mean such percentage of the outstanding Capital Stock as so adjusted; provided,
however, that the Existing Holder Limit shall not be a percentage which is less
than the Ownership Limit or in excess of 9.8%. Beginning with the date after the
Initial Public Offering, the Secretary of the Corporation shall maintain and,
upon request, make available to each Existing Holder, a schedule which sets
forth the then current Existing Holder Limits for each Existing Holder.
(h) "Initial Public Offering" means the closing of the sale of shares of
Common Stock pursuant to the Corporation's first effective registration
statement for such Common Stock filed under the Securities Act of 1933,
as amended.
(i) "Non-U.S. Person" shall mean any Person who is not (i) a citizen or
resident of the United States, (ii) a partnership created or organized
in the United States or under the laws of the United States or any
state therein (including the District of Columbia), (iii) a corporation
created or organized in the United States or under the laws of the
United States or any state therein (including the District of
Columbia), or (iv) any estate or trust (other than a foreign estate or
foreign trust, within the meaning of Section 7701(a)(31) of the Code).
(j) "Ownership Limit" shall initially mean 7% by value of the outstanding
Capital Stock of the Corporation, and after any adjustment as set forth
in Section 5.9, shall mean such greater percentage (but not greater
than 9.8%) by value of the outstanding Capital Stock as so adjusted.
(k) "Person" shall mean an individual, corporation, partnership, estate,
trust (including a trust qualified under Section 401(a) or 501(c)(17) of the
Code), a portion of a trust permanently set aside for or to be used exclusively
for the purposes described in Section 642(c) of the Code, association, private
foundation within the meaning of Section 509(a) of the Code, joint stock company
or other entity, and also includes a group as that term is used for purposes of
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended; but does
not include an underwriter retained by the Company which participates in a
public offering of the Capital Stock for a period of 90 days following the
purchase by such underwriter of the Capital Stock, provided that ownership of
Capital Stock by such underwriter would not result in the Corporation being
"closely held" within the meaning of Section 856(h) of the Code and would not
otherwise result in the Corporation failing to quality as a REIT.
(l) "REIT" shall mean a real estate investment trust under Section 856 of
the Code.
(m) "Redemption Price" shall mean the lower of (i) the price paid by the
transferee from whom shares are being redeemed and (ii) the average of the last
reported sales price, regular way, on the New York Stock Exchange of the
relevant class of Capital Stock on the ten trading days immediately preceding
the date fixed for redemption by the Board of Directors, or if the relevant
class of Capital Stock is not then traded on the New York Stock Exchange, the
average of the last reported sales prices, regular way, of such class of Capital
Stock (or, if sales prices, regular way, are not reported, the average of the
closing bid and asked prices) on the ten trading days immediately preceding the
relevant date as reported on any exchange or quotation system over which the
Capital Stock may be traded, or if such class of Capital Stock is not then
traded over any exchange or quotation system, then the price determined in good
faith by the Board of Directors of the Corporation as the fair market value of
such class of Capital Stock on the relevant date.
(n) "Related Tenant Owner" shall mean any Constructive Owner who also owns,
directly or indirectly, an interest in a Tenant, which interest is
equal to or greater than (i) 10% of the combined voting power of all
classes of stock of such Tenant, (ii) 10% of the total number of shares
of all classes of stock of such Tenant, or (iii) if such Tenant is not
a corporation, 10% of the assets or net profits of such Tenant.
(o) "Related Tenant Limit" shall mean 9.8% by value of the outstanding
Capital Stock of the Corporation.
(p) "Restriction Termination Date" shall mean the first day after the date
of the Initial Public Offering on which the Corporation determines
pursuant to Section 5.13 that it is no longer in the best interest of
the Corporation to attempt to, or continue to, qualify as a REIT.
(q) "Special Shareholder" shall mean any of (i) Security Capital U.S.
Realty, Security Capital Holdings S.A. and any Affiliate (as such term is
defined in the Stockholders Agreement) of Security Capital U.S. Realty or
Security Capital Holdings S.A., (ii) any Investor (as such term is defined in
Section 5.2 of the Stockholders Agreement), (iii) any bona fide financial
institution to whom Capital Stock is Transferred in connection with any bona
fide indebtedness of any Investor or any Person previously identified, (iv) any
Person who is considered a Beneficial Owner of Capital Stock as a result of the
attribution of Beneficial Ownership from any of the Persons previously
identified and (v) any one or more Persons who Acquire Beneficial Ownership from
a Special Shareholder, except by Acquisition on the open market.
(r) "Special Shareholder Limit" for a Special Shareholder shall mean,
initially, 45% of the outstanding shares of Common Stock, on a fully diluted
basis, of the Corporation and after any adjustment pursuant to Section 5.8 shall
mean the percentage of the outstanding Capital Stock as so adjusted; provided,
however, that if any Person and its Affiliates (taken as a whole), other than
the Special Shareholder, shall directly or indirectly own in the aggregate more
than 45% of the outstanding shares of Common Stock, on a fully diluted basis, of
the Corporation, the definition of "Special Shareholder Limit" shall be revised
in accordance with Section 5.8 of the Stockholders Agreement. Notwithstanding
the foregoing provisions of this definition, if, as the result of any Special
Shareholder's ownership (taking into account for this purpose constructive
ownership under Section 544 of the Code, as modified by Section 856(h)(1)(B) of
the Code) of shares of Capital Stock, any Person who is an individual within the
meaning of Section 542(a)(2) of the Code (taking into account the ownership
attribution rules under Section 544 of the Code, as modified by Section 856(h)
of the Code) and who is the Beneficial Owner of any interest in a Special
Shareholder would be considered to Beneficially Own more than 9.8% of the
outstanding shares of Capital Stock, then unless such individual reduces his or
her interest in the Special Shareholder so that such Person no longer
Beneficially Owns more than 9.8% of the outstanding shares of Capital Stock, the
Special Shareholder Limit shall be reduced to such percentage as would result in
such Person not being considered to Beneficially Own more than 9.8% of the
outstanding Shares of Capital Stock. Notwithstanding anything contained herein
to the contrary, in no event shall the Special Shareholder Limit be reduced
below the Ownership Limit. At the request of the Special Shareholders, the
Secretary of the Corporation shall maintain and, upon request, make available to
each Special Shareholder a schedule which sets forth the then current Special
Shareholder Limits for each Special Shareholder.
(s) "Stock Purchase Agreement" shall mean that Stock Purchase Agreement
dated as of June 11, 1996, by and among the Corporation, Security
Capital Holdings S.A., and Security Capital U.S. Realty, as the same
may be amended from time to time.
(t) "Stockholders Agreement" shall mean that Stockholders Agreement dated
as of July 10, 1996, by and among the Corporation, Security Capital Holdings
S.A., and Security Capital U.S. Realty, as the same may be amended from time to
time.
(u) "Tenant" shall mean any tenant of (i) the Corporation, (ii) a
subsidiary of the Corporation which is deemed to be a "qualified REIT
subsidiary" under Section 856(i)(2) of the Code, or (iii) a partnership
in which the Corporation or one or more of its qualified REIT
subsidiaries is a partner.
(v) "Transfer" shall mean any sale, transfer, gift, assignment, devise, or
other disposition of Capital Stock or the right to vote or receive dividends on
Capital Stock (including (i) the granting of any option or entering into any
agreement for the sale, transfer or other disposition of Capital Stock or the
right to vote or receive dividends on the Capital Stock or (ii) the sale,
transfer, assignment or other disposition or grant of any securities or rights
convertible or exchangeable for Capital Stock), whether voluntarily or
involuntarily, whether of record or Beneficially, and whether by operation of
law or otherwise; provided, however, that any bona fide pledge of Capital Stock
shall not be deemed a Transfer until such time as the pledgee effects an actual
change in ownership of the pledged shares of Capital Stock.
Section 5.2 Restrictions on Transfer. Except as provided in Section 5.11
and Section 5.16, during the period commencing at the Initial Public Offering:
(a) No Person (other than an Existing Holder or a Special Shareholder)
shall Beneficially Own Capital Stock in excess of the Ownership Limit,
no Existing Holder shall Beneficially Own Capital Stock in excess of
the Existing Holder Limit for such Existing Holder and no Special
Shareholder shall Beneficially Own Capital Stock in excess of the
Special Shareholder Limit.
(b) No Person shall Constructively Own Capital Stock in excess of the
Related Tenant Limit for more than thirty (30) days following the date
such Person becomes a Related Tenant Owner.
(c) Any Transfer that, if effective, would result in any Person (other than
an Existing Holder or a Special Shareholder) Beneficially Owning
Capital Stock in excess of the Ownership Limit shall be void ab initio
as to the Transfer of such Capital Stock which would be otherwise
Beneficially Owned by such Person in excess of the Ownership Limit, and
the intended transferee shall Acquire no rights in such Capital Stock.
(d) Any Transfer that, if effective, would result in any Existing Holder
Beneficially Owning Capital Stock in excess of the applicable Existing
Holder Limit shall be void ab initio as to the Transfer of such Capital
Stock which would be otherwise Beneficially Owned by such Existing
Holder in excess of the applicable Existing Holder Limit, and such
Existing Holder shall Acquire no rights in such Capital Stock.
(e) Any Transfer that, if effective, would result in any Special
Shareholder Beneficially Owning Capital Stock in excess of the
applicable Special Shareholder Limit shall be void ab initio as to the
Transfer of such Capital Stock which would be otherwise Beneficially
Owned by such Special Shareholder in excess of the applicable Special
Shareholder Limit, and such Special Shareholder shall Acquire no rights
in such Capital Stock.
(f) Any Transfer that, if effective, would result in any Related Tenant
Owner Constructively Owning Capital Stock in excess of the Related
Tenant Limit shall be void ab initio as to the Transfer of such Capital
Stock which would be otherwise Constructively Owned by such Related
Tenant Owner in excess of the Related Tenant Limit, and the intended
transferee shall Acquire no rights in such Capital Stock.
(g) Any Transfer that, if effective, would result in the Capital Stock
being beneficially owned by less than 100 Persons (within the meaning
of Section 856(a)(5) of the Code) shall be void ab initio as to the
Transfer of such Capital Stock which would be otherwise beneficially
owned by the transferee, and the intended transferee shall Acquire no
rights in such Capital Stock.
(h) Any Transfer that, if effective, would result in the Corporation being
"closely held" within the meaning of Section 856(h) of the Code shall
be void ab initio as to the portion of any Transfer of the Capital
Stock which would cause the Corporation to be "closely held" within the
meaning of Section 856(h) of the Code, and the intended transferee
shall Acquire no rights in such Capital Stock.
(i) Any other Transfer that, if effective, would result in the
disqualification of the Corporation as a REIT by virtue of actual,
Beneficial or Constructive Ownership of Capital Stock shall be void ab
initio as to such portion of the Transfer resulting in the
disqualification, and the intended transferee shall Acquire no rights
in such Capital Stock.
Section 5.3 Remedies for Breach.
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(a) If the Board of Directors or a committee thereof shall at any time
determine in good faith that a Transfer has taken place that falls within the
scope of Section 5.2 or that a Person intends to Acquire Beneficial Ownership of
any shares of the Corporation that would result in a violation of Section 5.2
(whether or not such violation is intended), the Board of Directors or a
committee thereof shall take such action as it or they deem advisable to refuse
to give effect to or to prevent such Transfer, including, but not limited to,
refusing to give effect to such Transfer on the books of the Corporation or
instituting proceedings to enjoin such Transfer, subject, however, in all cases
to the provisions of Section 5.16.
(b) Without limitation to Sections 5.2 and 5.3(a), any purported transferee
of shares Acquired in violation of Section 5.2 and any Person retaining shares
in violation of Section 5.2(b) shall be deemed to have acted as agent on behalf
of the Corporation in holding those shares Acquired or retained in violation of
Section 5.2 and shall be deemed to hold such shares in trust on behalf of and
for the benefit of the Corporation. Such shares shall be deemed a separate class
of stock until such time as the shares are sold or redeemed as provided in
Section 5.3(c). The holder shall have no right to receive dividends or other
distributions with respect to such shares, and shall have no right to vote such
shares. Such holder shall have no claim, cause of action or any other recourse
whatsoever against any transferor of shares Acquired in violation of Section
5.2. The holder's sole right with respect to such shares shall be to receive, at
the Corporation's sole and absolute discretion, either (i) consideration for
such shares upon the resale of the shares as directed by the Corporation
pursuant to Section 5.3(c) or (ii) the Redemption Price pursuant to Section
5.3(c). Any distribution by the Corporation in respect of such shares Acquired
or retained in violation of Section 5.2 shall be repaid to the Corporation upon
demand.
(c) The Board of Directors shall, within six months after receiving notice
of a Transfer or Acquisition that violates Section 5.2 or a retention of shares
in violation of Section 5.2(b), either (in its sole and absolute discretion,
subject to the requirements of Florida law applicable to redemption) (i) direct
the holder of such shares to sell all shares held in trust for the Corporation
pursuant to Section 5.3(b) for cash in such manner as the Board of Directors
directs or (ii) redeem such shares for the Redemption Price in cash on such date
within such six month period as the Board of Directors may determine. If the
Board of Directors directs the holder to sell the shares, the holder shall
receive such proceeds as the trustee for the Corporation and pay the Corporation
out of the proceeds of such sale (i) all 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 of such
Actual Owner with respect to which the shareholder of record is nominee. Each
such shareholder of record shall provide to the Corporation such additional
information as the Corporation may request in order to determine the effect, if
any, of such Beneficial Ownership on the Corporation's status as a REIT.
(b) Every Actual Owner of more than 5% by value (or such lower percentage
as required by the Code or Regulations promulgated thereunder) of the
outstanding Capital Stock of the Corporation who is not a shareholder
of record of the Corporation, shall within 30 days after December 31 of
each year, give written notice to the Corporation stating the name and
address of such Actual Owner, the number and class of shares
Beneficially Owned, and a description of how such shares are held.
(c) Each Person who is a Beneficial Owner of Capital Stock and each Person
(including the shareholder of record) who is holding Capital Stock for
a Beneficial Owner shall provide to the Corporation such information as
the Corporation may request, in good faith, in order to determine the
Corporation's status as a REIT.
(d) Nothing in this Section 5.5 or any request pursuant hereto shall be
deemed to waive any limitation in Section 5.2.
Section 5.6 Remedies Not Limited. Except as provided in Section 5.15, nothing
contained in this Article shall limit the authority of the Board of Directors to
take such other action as it deems necessary or advisable to protect the
Corporation and the interests of its shareholders in preserving the
Corporation's status as a REIT.
Section 5.7 Ambiguity. In the case of an ambiguity in the application of any of
the provisions of this Article 5, including without limitation any definition
contained in Section 5.1 and any determination of Beneficial Ownership, the
Board of Directors in its sole discretion shall have the power to determine the
application of the provisions of this Article 5 with respect to any situation
based on the facts known to it.
Section 5.8 Modification of Existing Holder Limits and Special Shareholder
Limits. Subject to the provisions of Section 5.10, the Existing Holder Limits
may or shall, as provided below, be modified as follows:
(a) Any Existing Holder or Special Shareholder may Transfer Capital Stock
to another Person, and, so long as such Transfer is not on the open market, any
such Transfer will decrease the Existing Holder Limit or Special Shareholder
Limit, as applicable, for such transferor (but not below the Ownership Limit)
and increase the Existing Holder Limit or Special Shareholder Limit, as
applicable, for such transferee by the percentage of the outstanding Capital
Stock so transferred. The transferor Existing Holder or Special Shareholder, as
applicable, shall give the Board of Directors of the Corporation prompt written
notice of any such transfer. Any Transfer by an Existing Holder or Special
Shareholder on the open market shall neither reduce its Existing Holder Limit or
Special Shareholder Limit, as applicable, nor increase the Ownership Limit,
Existing Holder Limit or Special Shareholder Limit of the transferee.
(b) Any grant of Capital Stock or a stock option pursuant to any benefit
plan for directors or employees shall increase the Existing Holder
Limit or Special Shareholder Limit for the affected Existing Holder or
Special Shareholder, as the case may be, to the maximum extent possible
under Section 5.10 to permit the Beneficial Ownership of the Capital
Stock granted or issuable under such employee benefit plan.
(c) The Board of Directors may reduce the Existing Holder Limit of any
Existing Holder, with the written consent of such Existing Holder,
after any Transfer permitted in this Article 5 by such Existing Holder
on the open market.
(d) Any Capital Stock issued to an Existing Holder or Special Shareholder
pursuant to a dividend reinvestment plan adopted by the Corporation
shall increase the Existing Holder Limit or Special Shareholder Limit,
as the case may be, for the Existing Holder or Special Shareholder to
the maximum extent possible under Section 5.10 to permit the Beneficial
Ownership of such Capital Stock.
(e) Any Capital Stock issued to an Existing Holder or Special Shareholder
in exchange for the contribution or sale to the Corporation of real
property, including Capital Stock issued pursuant to an "earn-out"
provision in connection with any such sale, shall increase the Existing
Holder Limit or Special Shareholder Limit, as the case may be, for the
Existing Holder or Special Shareholder to the maximum extent possible
under Section 5.10 to permit the Beneficial Ownership of such Capital
Stock.
(f) The Special Shareholder Limit shall be increased, from time to time,
whenever there is an increase in Special Shareholders' percentage
ownership (taking into account for this purpose constructive ownership
under Section 544 of the Code, as modified by Section 856(h)(1)(B) of
the Code) of the Capital Stock (or any other capital stock) of the
Corporation due to any event other than the purchase of Capital Stock
(or any other capital stock) of the Corporation by a Special
Shareholder, by an amount equal to such percentage increase multiplied
by the Special Shareholder Limit.
(g) The Board of Directors may reduce the Special Shareholder Limit for any
Special Shareholder and the Existing Holder Limit for any Existing
Holder, as applicable, after the lapse (without exercise) of an option
described in Clause (b) of this Section 5.8 by the percentage of
Capital Stock that the option, if exercised, would have represented,
but in either case no Existing Holder Limit or Special Shareholder
Limit shall be reduced to a percentage which is less than the Ownership
Limit.
Section 5.9 Modification of Ownership Limit. Subject to the limitations provided
in Section 5.10, the Board of Directors may from time to time increase or
decrease the Ownership Limit; provided, however, that any decrease may only be
made prospectively as to subsequent holders (other than a decrease as a result
of a retroactive change in existing law that would require a decrease to retain
REIT status, in which case such decrease shall be effective immediately).
Section 5.10 Limitations on Modifications. Notwithstanding any other
provision of 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 the Corporation. Notwithstanding any such
revocation or other termination of REIT status, the provisions of this Article 5
shall remain in effect unless amended pursuant to the provisions of Article 10.
Section 5.14 Certain Transfers to Non-U.S. Persons Void. Any Transfer of shares
of Capital Stock of the Corporation to any Person (other than a Special
Shareholder) that results in the fair market value of the shares of Capital
Stock of the Corporation owned directly and indirectly by Non-U.S. Persons to
comprise 50% or more of the fair market value of the issued and outstanding
shares of Capital Stock of the Corporation (determined, until the 15%
Termination Date (as defined in the Stockholders Agreement), if any, by assuming
that the Special Shareholders are Non-U.S. Persons, and own a percentage of the
outstanding shares of Common Stock of the Corporation equal to 45%, on a fully
diluted basis), shall be void ab initio to the fullest extent permitted under
applicable law and the intended transferee shall be deemed never to have had an
interest therein. If the foregoing provision is determined to be void or invalid
by virtue of any legal decision, statute, rule or regulation, then the shares
held or purported to be held by the transferee shall, automatically and without
the necessity of any action by the Board of Directors or otherwise, (i) be
prohibited from being voted at any time such securities result in the fair
market value of the shares of Capital Stock of the Corporation owned directly
and indirectly by Non-U.S. Persons to comprise 50% or more of the fair market
value of the issued and outstanding shares of Capital Stock of the Corporation
(determined, until the 15% Termination Date, if any, assuming that the Special
Shareholders are Non-U.S. Persons, and own a percentage of the outstanding
shares of Common Stock of the Corporation equal to 45%, on a fully diluted
basis), (ii) not be entitled to dividends with respect thereto, (iii) be
considered held in trust by the transferee for the benefit of the Corporation
and shall be subject to the provisions of Section 5.3(c) as if such shares of
Capital Stock were the subject of a Transfer that violates Section 5.2, and (iv)
not be considered outstanding for the purpose of determining a quorum at any
meeting of shareholders.
Section 5.15 Severability. If any provision of this Article or any application
of any such provision is determined to be invalid by any federal or state court
having jurisdiction over the issues, the validity of the remaining provisions
shall not be affected and the application of such provisions shall be affected
only to the extent necessary to comply with the determination of such court.
Section 5.16 New York Stock Exchange Transactions. Nothing in this Article 5
shall preclude the settlement of any transaction entered into through the
facilities of the New York Stock Exchange."
ARTICLE 6
REGISTERED OFFICE AND AGENT
Section 6.1 Name and Address. The street address of the registered office of the
Corporation is 200 Laura Street, Jacksonville, Florida 32202, and the name of
the initial registered agent of this Corporation at that address is F & L Corp.
ARTICLE 7
DIRECTORS
Section 7.1 Number. The number of directors may be increased or diminished from
time to time by the bylaws, but shall never be more than fifteen (15) or less
than three (3).
Section 7.2 Classification. The Directors shall be classified into three
classes, as nearly equal in number as possible. At each annual meeting of the
shareholders of the Corporation, the date of which shall be fixed by or pursuant
to the Bylaws of the Corporation, the successors of the class of directors whose
terms expire at that meeting shall be elected to hold office for a term expiring
at the annual meeting of shareholders held in the third year following the year
of their election.
ARTICLE 8
BYLAWS
Section 8.1 Bylaws. The Bylaws may be amended or repealed from time to time by
either the Board of Directors or the shareholders, but the Board of Directors
shall not alter, amend or repeal any Bylaw adopted by the shareholders if the
shareholders specifically provide that the Bylaw is not subject to amendment or
repeal by the Board of Directors.
ARTICLE 9
INDEMNIFICATION
Section 9.1 Indemnification. The Board of Directors is hereby specifically
authorized to make provision for indemnification of directors, officers,
employees and agents to the full extent permitted by law.
ARTICLE 10
AMENDMENT
Section 10.1 Amendment. The Corporation reserves the right to amend or repeal
any provision contained in these Amended and Restated Articles of Incorporation,
and any right conferred upon the shareholders is subject to this reservation.
IN WITNESS WHEREOF, the undersigned President of the Corporation has
executed these Restated Articles this 1st day of November, 1996.
/s/ Martin E. Stein, Jr.
------------------------
Martin E. Stein, Jr., President
<PAGE>
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
<PAGE>
004.160941.1
7
004.160941.1
ADDENDUM TO RESTATED ARTICLES OF INCORPORATION
of
REGENCY REALTY CORPORATION
DESIGNATION OF
CLASS B NON-VOTING COMMON STOCK
$0.01 PAR VALUE
(Filed with the Florida Department of State on December 20, 1995)
Pursuant to Section 607.0602 of the
Florida Business Corporation Act
----------------
Pursuant to the authority expressly conferred upon the Board of
Directors by Section 4.4 of the Restated Articles of Incorporation of the
Corporation, as amended, in accordance with the provisions of Section 607.0602
of the Florida Business Corporation Act, the Board of Directors, at meetings
duly held on October 23, 1995 and December 14, 1995, duly adopted the following
resolution providing for an issue of a class of the Corporation's Special Common
Stock to be designated Class B Non-Voting Common Stock, $0.01 par value.
Shareholder action was not required with respect to such designation.
"RESOLVED, that pursuant to the authority expressly granted to the
Corporation's Board of Directors by Section 4.4 of the Restated Articles of
Incorporation of the Corporation, as amended, the Board of Directors hereby
establishes a class of the Corporation's Special Common Stock, $0.01 par value
per share, and hereby fixes the designation, the number of shares and the
relative rights, preferences and limitations thereof as follows:
1. Designation. The designation of the class of Special Common
Stock created by this resolution shall be Class B Non-Voting Convertible Common
Stock, $0.01 par value (hereinafter referred to as "Class B Common Stock"), and
the number of shares constituting such class shall be two million five hundred
thousand (2,500,000) shares.
2. Dividend Rights.
(a) Subject to the rights of classes or series of Preferred Stock now in
existence or which may from time to time come into existence, the holders of
shares of Class B Common Stock shall be entitled to receive dividends, when, as
and if declared by the Board of Directors, out of any assets legally available
therefor, pari passu with any dividend (payable other than in voting common
stock of the Corporation (hereinafter referred to as the "Common Stock")) on the
Common Stock of the Corporation, in the amount per share equal to the Class B
Dividend Amount, as in effect from time to time. The initial per share Class B
Dividend Amount per annum shall be equal to $1.9369. Each calendar quarter
hereafter (or if the Original Issue Date is not on the first day of a calendar
quarter, the period beginning on the date of issuance and ending on the last day
of the calendar quarter of issuance) is referred to hereinafter as a "Dividend
Period." The amount of dividends payable with respect to each full Dividend
Period for the Class B Common Stock shall be computed by dividing the Class B
Dividend Amount by four. The amount of dividends on the Class B Common Stock
payable with respect to the initial Dividend Period, or any other period shorter
or longer than a full Dividend Period, shall be computed ratably on the basis of
the actual number of days in such Dividend Period. In the event of any change in
the quarterly cash dividend per share applicable to the Common Stock after the
date of these Articles of Amendment, the quarterly cash dividend per share on
the Class B Common Stock shall be adjusted for the same dividend period by an
amount computed by (1) multiplying the amount of the change in the Common Stock
dividend (2) times the Conversion Ratio (as defined in Section 4.(a)).
(b) In the event the Corporation shall declare a distribution payable in
(i) securities of other persons, (ii) evidences of indebtedness issued by the
Corporation or other persons, (iii) assets (excluding cash dividends) or (iv)
options or rights to purchase capital stock or evidences of indebtedness in the
Corporation or other persons, then, in each such case for the purpose of this
Section 2.(b), the holders of the Class B Common Stock shall be entitled to a
proportionate share of any such distribution as though they were the holders of
the number of shares of Common Stock of the Corporation into which their shares
of Class B Common Stock are or would be convertible (assuming such shares of
Class B Common Stock were then convertible).
3. Liquidation Preference. The holders of record of Class B
Common Stock shall not be entitled to any liquidation preference. In the event
of any liquidation, dissolution or winding up of the affairs of the Corporation,
whether voluntary or involuntary, the holders of record of Class B Common Stock
shall be treated pari passu with the holders of record of Common Stock, with
each holder of record of Class B Common Stock being entitled to receive that
amount which such holder would be entitled to receive if such holder had
converted all its Class B Common Stock into Common Stock immediately prior to
the liquidating distribution in question.
4. Conversion.
(a) Conversion Date and Conversion Ratio. Beginning on the three-year
anniversary date of the Original Issue Date thereof (the "Third Anniversary"),
the holders of shares of Class B Common Stock shall have the right, at their
option, at any time and from time to time, to convert each such shares into
1.1901872 (hereinafter referred to as "Conversion Ratio", which shall be subject
to adjustment as hereinafter provided) shares of fully paid and nonassessable
shares of Common Stock; provided, however, that no holder of Class B Common
Stock shall be entitled to convert shares of Class B Common Stock into Common
Stock pursuant to the foregoing provision, if, as a result of such conversion
such person (x) would become the Beneficial Owner of more than 4.9% of the
Corporation's outstanding Common Stock (the "Percentage Limit"), or (y) would
acquire upon such conversion during any consecutive three-month period more than
495,911 shares of Common Stock (the "Share Limit," which shall be subject to
adjustment as hereinafter provided). Beneficial Owner shall have the meaning set
forth in Rule 13d-3 under the Securities Exchange Act of 1934 (or any successor
provision thereto). Notwithstanding the foregoing, such conversion right may be
exercised from time to time after the Third Anniversary irrespective of the
Percentage Limit or the Share Limit (and no conversion limit shall apply) as
follows:
(A) If the holder duly exercises piggyback registration rights
in connection with an underwritten public offering pursuant to a
Registration Rights Agreement executed by the Corporation on August 25,
1995, the holder shall be entitled to convert shares of Class B Common
Stock effective at the closing of the offering in an amount sufficient
to enable the holder to honor its sale obligations to the underwriters
at such closing, even though the amount so converted exceeds the
Percentage Limit or the Share Limit; and
(B) If (x) the holder arranges for the sale of Common Stock
issuable upon conversion of Class B Common Stock in a transaction that
complies with applicable securities laws and with the Corporation's
Amended and Restated Articles of Incorporation as then in effect which
transaction will not be effected on a securities exchange or through an
established quotation system or in the over-the-counter market, and (y)
the holder provides the Corporation with copies of written
documentation relating to the transaction sufficient to enable the
Corporation to determine whether the transaction meets the requirements
of the preceding clause, the holder shall be entitled to convert shares
of Class B Common Stock effective at the closing of the sale in an
amount sufficient for the holder to effect the transaction at such
closing, even though the amount so converted exceeds the Percentage
Limit or the Share Limit.
In addition, notwithstanding the foregoing, the conversion right set
forth above may be exercised without regard to the Percentage Limit or the Share
Limit (and no conversion limit shall apply) before the Third Anniversary if one
of the following conditions has occurred:
(i) For any two consecutive fiscal quarters, the aggregate amount
outstanding as of the end of the quarter under (1) all mortgage indebtedness of
the Corporation and its consolidated entities and (2) unsecured indebtedness of
the Corporation and its consolidated entities for money borrowed that has not
been made generally subordinate to any other indebtedness for borrowed money of
the Corporation or any consolidated entity exceeds sixty five percent (65%) of
the amount arrived at by (A) taking the Corporation's consolidated gross
revenues less property-related expenses, including real estate taxes, insurance,
maintenance and utilities, but excluding depreciation, amortization and
corporate general and administrative expenses, for the quarter in question and
the immediately preceding quarter, (B) multiplying the amount in clause A by two
(2), and (C) dividing the resulting product in clause B by nine percent (9%)
(all as such items of indebtedness, revenues and expenses are reported in
consolidated financial statements contained in the Corporation's Form 10-Ks and
Form 10-Qs as filed with the Securities and Exchange Commission); or
(ii) In the event that (1) Martin E. Stein, Jr. has ceased to be an
executive officer of the Corporation, or (2) Bruce M. Johnson and any one of (a)
Richard E. Cook, (b) Robert C. Gillander, Jr. or (c) James D. Thompson have
ceased to be executive officers of the Corporation, or (3) all of Richard E.
Cook, Robert C. Gillander, Jr., and James. D. Thompson have ceased to be
executive officers of the Corporation; or
(iii) If (A) the Corporation shall be party to, or shall have announced or
entered into an agreement for, any transaction (including, without limitation, a
merger, consolidation, statutory share exchange or sale of all or substantially
all of its assets (each of the foregoing being referred to herein as a
"Transaction")), in each case as a result of which shares of Common Stock shall
have been or will be converted into the right to receive stock, securities or
other property (including cash or any combination thereof) or which has resulted
or will result in the holders of Common Stock immediately prior to the
Transaction owning less than 50% of the Common Stock after the Transaction, or
(B) a "change of control" as defined in the next sentence occurs with respect to
the Corporation. A change of control shall mean the acquisition (including by
virtue of a merger, share exchange or other business combination) by one
stockholder or a group of stockholders acting in concert of the power to elect a
majority of the Corporation's board of directors. The Corporation shall notify
the holder of Class B Common Stock promptly if any of the events listed in this
Section 4.(a)(iii) shall occur.
Calculations set forth in Section 4.(a)(i) shall be made without regard
to unconsolidated indebtedness incurred as a joint venture partner, and the
effect of any unconsolidated joint venture, including any income from such
unconsolidated joint venture, shall be excluded for purposes of the calculation
set forth in Section 4.(a)(i).
(b) Procedure for Conversion. In order to convert shares of Class B Common
Stock into Common Stock, the holder thereof shall surrender the certificate(s)
therefor, duly endorsed if the Corporation shall so require, or accompanied by
appropriate instruments of transfer satisfactory to the Corporation, at the
office of any transfer agent for the Class B Common Stock, or if there is no
such transfer agent, at the principal offices of the Corporation, or at such
other office as may be designated by the Corporation, together with written
notice that such holder irrevocably elects to convert such shares. Such notice
shall also state the name(s) and address(es) in which such holder wishes the
certificate(s) for the shares of Common Stock issuable upon conversion to be
issued. As soon as practicable thereafter, the Corporation shall issue and
deliver at said office a certificate or certificates for the number of shares of
Common Stock issuable upon conversion of the shares of Class B Common Stock duly
surrendered for conversion, to the person(s) entitled to receive the same.
Shares of Class B Common Stock shall be deemed to have been converted
immediately prior to the close of business on the date on which the certificates
therefor and notice of election to convert the same are duly received by the
Corporation in accordance with the foregoing provisions, and the person(s)
entitled to receive the Common Stock issuable upon such conversion shall be
deemed for all purposes as record holder(s) of such Common Stock as of the close
of business on such date.
(c) No Fractional Shares. No fractional shares shall be issued upon
conversion of the Class B Common Stock into Common Stock, and the number of
shares of Common Stock to be issued shall be rounded to the nearest whole share.
Whether or not fractional shares are issuable upon such conversion shall be
determined on the basis of the total number of shares of Class B Common Stock
the holder is at the time converting into Common Stock and the number of shares
of Common Stock issuable upon such aggregate conversion.
(d )Payment of Adjusted Accrued Dividends Upon Conversion. On the next
dividend payment date (or such later date as is permitted in this Section 4.(d)
following any conversion hereunder, the Corporation shall pay in cash Adjusted
Accrued Dividends (as defined below) on shares of Class B Common Stock so
converted. The holder shall be entitled to receive accrued and unpaid dividends
accrued to and including the conversion date on the shares of Class B Common
Stock converted (assuming that such dividends accrue ratably each day that such
shares are outstanding), less an amount equal to the pre-conversion portion of
the dividends paid on the shares of Common Stock issued upon such conversion the
record date for which such Common Stock dividend occurs on or after the
conversion date but before the three-month anniversary date of the conversion
date (the "Subsequent Record Date"). The pre-conversion portion of such Common
Stock dividend means that portion of such dividend as is attributable to the
period ending on the conversion date, assuming that such dividend accrues
ratably during the period that (i) begins on the day after the last Common Stock
dividend record date occurring before such Subsequent Record Date and (ii) ends
on such Subsequent Record Date. The term "Adjusted Accrued Dividends" means the
amount arrived at through the application of the foregoing formula. Adjusted
Accrued Dividends shall not be less than zero. The formula for Adjusted Accrued
Dividends shall be applied to effectuate the Corporation's intent that the
holder converting shares of Class B Common Stock to Common Stock shall be
entitled to receive dividends on such shares of Class B Common Stock up to and
including the conversion date and shall be entitled to the dividends on the
shares of Common Stock issued upon such conversion which are deemed to accrue
beginning on the first day after the conversion date, but shall not be entitled
to dividends attributable to the same period for both the shares of Class B
Common Stock converted and the shares of Common Stock issued upon such
conversion. The Corporation shall be entitled to withhold (to the extent
consistent with the intent to avoid double dividends for overlapping portions of
Class B Common Stock and Common Stock dividend periods) the payment of Adjusted
Accrued Dividends until the Common Stock dividend declaration date for the
applicable Subsequent Record Date, even though such date occurs after the
applicable dividend payment date with respect to the Class B Common Stock, in
which event the Corporation shall mail to each holder who converted Class B
Common Stock a check for the Adjusted Accrued Dividends thereon within five (5)
business days after such Common Stock dividend declaration date. Adjusted
Accrued Dividends shall be accompanied by an explanation of how such Adjusted
Accrued Dividends have been calculated. Adjusted Accrued Dividends shall not
bear interest.
5. Adjustments. (a) In the event the Corporation shall at any time (i) pay
a dividend or make a distribution to holders of Common Stock in shares of Common
Stock, (ii) subdivide its outstanding shares of Common Stock into a larger
number of shares, or (iii) combine its outstanding shares of Common Stock into a
smaller number of shares, the Conversion Ratio and the Share Limit shall be
adjusted on the effective date of the dividend, distribution, subdivision or
combination by multiplying the Conversion Ratio or the Share Limit (as the case
may be) by a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding immediately prior to such dividend, distribution,
subdivision or combination and the denominator of which shall be the number of
shares of Common Stock outstanding immediately after such dividend,
distribution, subdivision or combination.
(b) Whenever the Conversion Ratio and the Share Limit shall be adjusted as
herein provided, the Corporation shall cause to be mailed by first class mail,
postage prepaid, as soon as practicable to each holder of record of shares of
Class B Common Stock a notice stating that the Conversion Ratio and the Share
Limit has been adjusted and setting forth the adjusted Conversion Ratio and the
Share Limit, together with an explanation of the calculation of the same.
(c) If the Corporation shall be party to any Transaction in each case as a
result of which shares of Common Stock shall be converted into the right to
receive stock, securities or other property (including cash or any combination
thereof), the holder of each share of Class B Common Stock shall have the right,
after such Transaction to convert such share pursuant to the conversion
provisions hereof, into the number and kind of shares of stock or other
securities and the amount and kind of property receivable upon such Transaction
by a holder of the number of shares of Common Stock issuable upon conversion of
such share of Class B Common Stock immediately prior to such Transaction. The
Corporation shall not be party to any Transaction unless the terms of such
Transaction are consistent with the provisions of this Section 5.(c), and it
shall not consent to or agree to the occurrence of any Transaction until the
Corporation has entered into an agreement with the successor or purchasing
entity, as the case may be, for the benefit of the holders of the Class B Common
Stock, thereby enabling the holders of the Class B Common Stock to receive the
benefits of this Section 5.(c) and the other provisions of these Articles of
Amendment. Without limiting the generality of the foregoing, provision shall be
made for adjustments in the Conversion Ratio which shall be as nearly equivalent
as may be practicable to the adjustments provided for in Section 5.(a). The
provisions of this Section 5.(c) shall similarly apply to successive
Transactions. In the event that the Corporation shall propose to effect any
Transaction which would result in an adjustment under Section 5.(c), the
Corporation shall cause to be mailed to the holders of record of Class B Common
Stock at least 20 days prior to the applicable date hereinafter specified a
notice stating the date on which such Transaction is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such Transaction. Failure to give
such notice, or any defect therein, shall not affect the legality or validity of
such Transaction.
6. Other.
(a) The Corporation shall at all times reserve and keep available out of
its authorized but unissued Common Stock the maximum number of shares of Common
Stock issuable upon the conversion of all shares of Class B Common Stock then
outstanding and if, at any time, the number of authorized but unissued shares of
Common Stock shall not be sufficient to effect the conversion of all then
outstanding shares of the Class B Common Stock, in addition to such other
remedies as shall be available to the holder of such Class B Common Stock, the
Corporation shall take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for such purposes.
(b) The Corporation shall pay any taxes that may be payable in respect of
the issuance of shares of Common Stock upon conversion of shares of Class B
Common Stock, but the Corporation shall not be required to pay any taxes which
may be payable in respect of any transfer of shares of Class B Common Stock or
any transfer involved in the issuance of shares of Common Stock in a name other
than that in which the shares of Class B Common Stock so converted are
registered, and the Corporation shall not be required to transfer any such
shares of Class B Common Stock or to issue or deliver any such shares of Common
Stock unless and until the person(s) requesting such transfer or issuance shall
have paid to the Corporation the amount of any such taxes, or shall have
established to the satisfaction of the Corporation that such taxes have been
paid.
(c) The Corporation will not, by amendment of the Articles of Incorporation
or through any reorganization, recapitalization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Corporation, but will at
all times in good faith assist in carrying out of all the provisions of these
Articles of Amendment and in the taking of all such action as may be necessary
or appropriate to protect the conversion rights of the holders of the Class B
Common Stock against impairment.
(d) Holders of Class B Common Stock shall be entitled to receive copies of
all communications by the Corporation to its holders of Common Stock,
concurrently with the distribution to such shareholders.
7. Voting Rights. The holders of record of Class B Common
Stock shall not be entitled to vote on any matter on which the holders of record
of Common Stock are entitled to vote, except where a separate vote of the Class
B Common Stock is required by law.
8. Reacquired Shares. Shares of Class B Common Stock converted, redeemed or
otherwise purchased or acquired by the Corporation shall be restored to the
status of authorized but unissued shares of Non-Voting Common Stock without
designation as to class or series.
<PAGE>
004.160941.1
2
004.160941.1
ARTICLES OF AMENDMENT
OF
REGENCY REALTY CORPORATION
This corporation was incorporated on July 8, 1993 effective July 9,
1993 under the name Regency Realty Corporation. Pursuant to Sections 607.1001,
607.1003, 607.1004 and 607.1006, Florida Business Corporation Act, amendments to
the Articles of Incorporation, as restated on November 4, 1996, were approved by
the Board of Directors at a meeting held on January 27, 1997 and adopted by the
shareholders of the corporation on June 12, 1997. The only voting group entitled
to vote on the adoption of the amendment to the Articles of Incorporation
consists of the holders of the corporation's common stock. The number of votes
cast by such voting group was sufficient for approval by that voting group. The
Restated Articles of Incorporation of the Company are hereby amended as follows
(amended language is underscored):
Section 4.1 is amended to read as follows:
"Section 4.1 Authorized Capital. The maximum number of shares
of stock which the corporation is authorized to have outstanding at any
one time is one hundred seventy million (170,000,000) shares (the
"Capital Stock") divided into classes as follows:
(a) Ten million (10,000,000) shares of preferred
stock having a par value of $0.01 per share (the "Preferred
Stock"), and which may be issued in one or more classes or
series as further described in Section 4.2;
(b) One hundred fifty million (150,000,000) shares of voting common stock
having a par value of $0.01 per share (the "Common Stock"); and
(c) Ten million (10,000,000) shares of common stock
having a par value of $0.01 per share (the "Special Common
Stock") and which may be issued in one or more classes or
series as further described in Section 4.4.
All such shares shall be issued fully paid and non assessable."
Section 5.14 is hereby amended in its entirety to read as follows:
"Section 5.14 Certain Transfers to Non-U.S. Persons Void. Any
Transfer of shares of Capital Stock of the Corporation to any Person
(other than a Special Shareholder) that results in the fair market
value of the shares of Capital Stock of the Corporation owned directly
and indirectly by Non-U.S. Persons to comprise 50% or more of the fair
market value of the issued and outstanding shares of Capital Stock of
the Corporation (determined, until the 15% Termination Date (as defined
in the Stockholders Agreement), if any, by assuming that the Special
Shareholders (i) are Non-U.S. Persons and (ii) own (A) a percentage of
the outstanding shares of Common Stock of the Corporation equal to 45%,
on a fully diluted basis, and (B) a percentage of the outstanding
shares of each class of Capital Stock of the Corporation (other than
Common Stock) equal to the quotient obtained by dividing the sum of its
actual ownership thereof and, without duplication of shares included in
clause (A), the shares it has a right to acquire by the number of
outstanding shares of such class (clauses (i) and (ii) are referred to
collectively as the "Presumption") shall be void ab initio to the
fullest extent permitted under applicable law and the intended
transferee shall be deemed never to have had an interest therein. If
the foregoing provision is determined to be void or invalid by virtue
of any legal decision, statute, rule or regulation, then the shares
held or purported to be held by the transferee shall, automatically and
without the necessity of any action by the Board of Directors or
otherwise, (i) be prohibited from being voted at any time such
securities result in the fair market value of the shares of Capital
Stock of the Corporation owned directly and indirectly by Non-U.S.
Persons to comprise 50% or more of the fair market value of the issued
and outstanding shares of Capital Stock of the Corporation (determined,
until the 15% Termination Date, if any, by applying the Presumption,
(ii) not be entitled to dividends with respect thereto, (iii) be
considered held in trust by the transferee for the benefit of the
Corporation and shall be subject to the provisions of Section 5.3(c) as
if such shares of Capital Stock were the subject of a Transfer that
violates Section 5.2, and (iv) not be considered outstanding for the
purpose of determining a quorum at any meeting of shareholders. The
Special Shareholders may, in their sole discretion, with prior notice
to and the approval of the Board of Directors, waive in writing all or
any portion of the Presumption, on such terms and conditions as they in
their sole discretion determine.
IN WITNESS WHEREOF, the undersigned Executive Vice President of this
corporation has executed these Articles of Amendment this 12th day of June,
1997.
/s/ Bruce M. Johnson
--------------------
Bruce M. Johnson, Managing Director
<PAGE>
004.160941.1
2
004.160941.1
ARTICLES OF MERGER
OF
RRC FL TWO, INC. AND REGENCY ATLANTA, INC.
WITH AND INTO
REGENCY REALTY CORPORATION
Pursuant to the provisions of Sections 607.1105 and 607.1107 of the
Florida Business Corporation Act (the "Florida Act") and Sections 14-2-1105 and
14-2-1107 of the Georgia Business Corporation Code (the "Georgia Act"), the
undersigned corporations enter into these Articles of Merger by which RRC FL
Two, Inc., a Florida corporation and Regency Atlanta, Inc., a Georgia
corporation, both of which are wholly owned subsidiaries of Regency Realty
Corporation, shall be merged with and into Regency Realty Corporation, a Florida
corporation, and Regency Realty Corporation shall be the surviving corporation,
in accordance with a Plan of Merger (the "Plan"), adopted pursuant to Section
607.1104 of the Florida Act and Section 14-2-1104 of the Georgia Act, and the
undersigned corporations hereby certify as follows:
FIRST, a copy of the Plan is attached hereto and made a part hereof.
SECOND, the merger shall become effective at the close of business on
the date on which these Articles of Merger are filed with the Department of
State of Florida and the Secretary of State of Georgia.
THIRD, pursuant to Sections 607.1101 and 607.1103 of the Florida Act,
the Plan was adopted the Board of Directors of Regency Realty Corporation on
February 3, 1998. Shareholder approval of the Plan was not required. Pursuant to
Sections 607.1101 and 607.1103 of the Florida Act, the Plan was adopted the
Board of Directors of RRC FL Two, Inc. on February 3, 1998. Shareholder approval
of the Plan was not required. Pursuant to Sections 14-2-1101 and 14-2-1103 of
the Georgia Act, the Plan was adopted by the Board of Directors of Regency
Atlanta, Inc. on February 3, 1998. Shareholder approval of the Plan was not
required.
IN WITNESS WHEREOF, these Articles of Merger have been executed by RRC FL
Two, Inc. and Regency Atlanta, Inc., as the merging corporations, and by Regency
Realty Corporation, as surviving corporation, this 16th day of February, 1998.
WITNESSES RRC FL TWO, INC., a Florida corporation
/s/ Yona C. Sharp
Yona C. Sharp By: /s/ J. Christian Leavitt
-----------------------------
J. Christian Leavitt, Vice President
121 West Forsyth Street, Suite 200
/s/ Karen R. Peterson Jacksonville, Florida 32202
---------------------
Karen R. Peterson
REGENCY ATLANTA, INC., a Georgia
corporation
/s/ Yona C. Sharp
Yona C. Sharp By: /s/ J. Christian Leavitt
-----------------------------
J. Christian Leavitt, Vice President
121 West Forsyth Street, Suite 200
/s/ Karen R. Peterson Jacksonville, Florida 32202
---------------------
Karen R. Peterson
REGENCY REALTY CORPORATION,
a Florida corporation
/s/ Yona C. Sharp
Yona C. Sharp By: /s/ J. Christian Leavitt
-----------------------------
J. Christian Leavitt, Vice President
121 West Forsyth Street, Suite 200
/s/ Karen R. Peterson Jacksonville, Florida 32202
---------------------
Karen R. Peterson
<PAGE>
STATE OF FLORIDA
COUNTY OF DUVAL
The foregoing instrument was acknowledged before me this 16th day of
February, 1998, by J. Christian Leavitt, Vice President of RRC FL Two, Inc. Such
person did take an oath and: (notary must check applicable box)
|X| is/are personally known to me.
o produced a current Florida driver's license as identification.
o produced _______________________________ as identification.
{Notary Seal must be affixed} /s/ Yona C. Sharp
--------------------------
Signature of Notary
Yona C. Sharp
----------------------
Name of Notary (Typed, Printed or Stamped)
Commission Number (if not legible on seal): CC 578957
My Commission Expires (if not legible on seal): September 15, 2000
STATE OF FLORIDA
COUNTY OF DUVAL
The foregoing instrument was acknowledged before me this 16th day of
February, 1998, by J. Christian Leavitt, Vice President of Regency Atlanta, Inc.
Such person did take an oath and: (notary must check applicable box)
|X| is/are personally known to me.
o produced a current Florida driver's license as identification.
o produced _______________________________ as identification.
{Notary Seal must be affixed} /s/ Yona C. Sharp
--------------------------
Signature of Notary
Yona C. Sharp
----------------------
Name of Notary (Typed, Printed or Stamped)
Commission Number (if not legible on seal): CC 578957
My Commission Expires (if not legible on seal): September 15, 2000
STATE OF FLORIDA
COUNTY OF DUVAL
The foregoing instrument was acknowledged before me this 16th day of
February, 1998, by J. Christian Leavitt, Vice President of Regency Realty
Corporation. Such person did take an oath and: (notary must check applicable
box)
|X| is/are personally known to me.
o produced a current Florida driver's license as identification.
o produced _______________________________ as identification.
{Notary Seal must be affixed} /s/ Yona C. Sharp
--------------------------
Signature of Notary
Yona C. Sharp
----------------------
Name of Notary (Typed, Printed or Stamped)
Commission Number (if not legible on seal): CC 578957
My Commission Expires (if not legible on seal): September 15, 2000
<PAGE>
PLAN OF MERGER
This Plan of Merger (the "Plan") provides for the merger of RRC FL TWO,
INC., a Florida corporation, and REGENCY ATLANTA, INC., a Georgia corporation,
with and into REGENCY REALTY CORPORATION, a Florida corporation as follows:
1. Merger of Subsidiaries into Parent. RRC FL Two, Inc. and Regency
Atlanta, Inc. (the "Merging Corporations") are both wholly owned subsidiaries of
Regency Realty Corporation (the "Surviving Corporation"). The Merging
Corporations shall be merged with and into the Surviving Corporation, the
separate corporate existence of the Merging Corporations shall cease and the
Surviving Corporation shall be the surviving corporation.
2. Effective Date. The Merger shall become effective at the close of
business on the date on which Articles of Merger are filed with the Florida
Department of State and the Georgia Secretary of State (the "Effective Date").
3. Cancellation of Merging Corporation Stock. Each share of common stock of the
Merging Corporations which is issued and outstanding on the Effective Date shall
be deemed retired and canceled by virtue of the Merger, automatically, without
any action on the part of the Merging Corporations or otherwise.
4. Effect of Merger. On the Effective Date, the separate existence of the
Merging Corporations shall cease, and the Surviving Corporation shall succeed to
all the rights, privileges, immunities, and franchises, and to all the property,
real, personal and mixed, of the Merging Corporations, without the necessity for
any separate transfer. The Surviving Corporation shall thereafter be responsible
and liable for all liabilities and obligations of the Merging Corporations,
including but not limited to the obligations of Regency Atlanta, Inc. as general
partner of Regency Retail Partnership, L.P., and neither the rights of creditors
nor any liens on the property of the Merging Corporations shall be impaired by
the Merger. If at any time after the Effective Date the Surviving Corporation
shall consider or be advised that any deeds, bills of sale, assignments or
assurances or any other acts or things are necessary, desirable or proper (a) to
vest, perfect or confirm, of record or otherwise, in the Surviving Corporation,
its right, title or interest in, to or under any of the rights, privileges,
powers, franchises, properties or assets of the Merging Corporations acquired or
to be acquired as a result of the Merger, or (b) otherwise to carry out the
purposes of this Plan, the Surviving Corporation and its officers and directors
or their designees shall be authorized to execute and deliver, in the name and
on behalf of the Merging Corporations, all deeds, bills of sale, assignments and
assurances, and to do, in the name and on behalf of the Merging Corporations,
all other acts and things necessary, desirable or proper to vest, perfect or
confirm the Surviving Corporation's right, title or interest in, to or under any
of the rights, privileges, powers, franchises, properties or assets of the
Merging Corporations acquired or to be acquired as a result of the Merger and
otherwise to carry out the purposes of this Plan.
5. Waiver of Notice. The Surviving Corporation, being the sole shareholder of
both of the Merging Corporations, by execution of the Articles of Merger waives
the notice requirements of Section 607.1104 of the Florida Business Corporation
Act and Section 14-2-1104 of the Georgia Business Corporation Code.
6. Abandonment. This Plan may be abandoned at any time prior to the Effective
Date by either of the Merging Corporations or the Surviving Corporation, without
further shareholder action and, if Articles of Merger have been filed with the
Department of State of Florida, the Department of State of Alabama, and the
Department of State of Georgia, by filing a Notice of Abandonment with each such
Department.
<PAGE>
004.160941.1
2
004.160941.1
REGENCY REALTY CORPORATION
AMENDMENT TO ARTICLES OF INCORPORATION
This corporation was incorporated on July 8, 1993 effective July 9,
1993 under the name Regency Realty Corporation. Pursuant to Sections 607.1001,
607.1003, 607.1004 and 607.1006, Florida Business Corporation Act, amendments to
Section 5.14 of the Articles of Incorporation, as restated on November 4, 1996,
were approved by the Board of Directors at a meeting held on December 5, 1997
and adopted by the shareholders of the corporation on May 26, 1998. The only
voting group entitled to vote on the adoption of the amendment to Section 5.14
of the Articles of Incorporation consists of the holders of the corporation's
common stock. The number of votes cast by such voting group was sufficient for
approval by that voting group. Section 5.14 of the Restated Articles of
Incorporation of the Company is hereby amended in its entirety to read as
follows:
"Section 5.14 Certain Transfers to Non-U.S. Persons Void. Any Transfer
of shares of Capital Stock of the Corporation to any Person on or after the
effective date of this Amendment shall be void ab initio to the fullest extent
permitted under applicable law and the intended transferee shall be deemed never
to have had an interest therein if the Transfer:
1. occurs prior to the 15% Termination Date and results in the
fair market value of the shares of Capital Stock of the
Corporation owned directly or indirectly by Non-U.S. Persons
(other than a Special Shareholder who is a Non-U.S. Person)
comprising five percent (5%) or more of the fair market value
of the issued and outstanding shares of Capital Stock of the
Corporation; or
2. results in the fair market value of the shares of Capital
Stock of the Corporation owned directly or indirectly by
Non-U.S. Persons (including Special Shareholders who are
Non-U.S. Persons) comprising fifty percent (50%) or more of
the fair market value of the issued and outstanding shares of
Capital Stock of the Corporation.
If either of the foregoing provisions is determined to be void or
invalid by virtue of any legal decision, statute, rule or regulation,
then the shares held or purported to be held by the transferee shall,
automatically and without the necessity of any action by the Board of
Directors or otherwise:
(i) be prohibited from being voted at any time such
securities result in the fair market value of the shares of
Capital Stock of the Corporation owned directly or indirectly
by Non-U.S. Persons (other than Special Shareholders who are
Non-U.S. Persons) or by Non-U.S. Persons (including Special
Shareholders who are Non-U.S. Persons) comprising five percent
(5%) or more or fifty percent (50%) or more, respectively, of
the fair market value of the issued and outstanding shares of
Capital Stock of the Corporation;
(ii) not be entitled to dividends with respect thereto;
(iii) be considered held in trust by the transferee
for the benefit of the Corporation and shall be subject to the
provisions of Section 5.3(c) as if such shares of Capital
Stock were the subject of a Transfer that violates Section
5.2; and
(iv) not be considered outstanding for the purpose of determining a quorum
at any meeting of shareholders.
The Special Shareholders may, in their sole discretion, with prior
notice to the Board of Directors, waive, alter or revise in writing all
or any portion of the Transfer restrictions set forth in this Section
5.14 from and after the date on which such notice is given, on such
terms and conditions as they in their sole discretion determine."
IN WITNESS WHEREOF, the undersigned Chairman of this corporation has
executed these Articles of Amendment this 26th day of May, 1998.
/s/ Martin E. Stein, Jr.
------------------------
Martin E. Stein, Jr., Chairman and Chief Executive
Officer
<PAGE>
004.160941.1
3
004.160941.1
ARTICLES OF MERGER
OF
REGENCY RETAIL CENTERS OF OHIO, INC.
WITH AND INTO
REGENCY REALTY CORPORATION
Pursuant to the provisions of Sections 607.1104 and 607.1105 of the Florida
Business Corporation Act (the "Florida Act"), the undersigned corporations enter
into these Articles of Merger by which Regency Retail Centers of Ohio, Inc., an
Ohio corporation shall be merged with and into Regency Realty Corporation, a
Florida corporation, and Regency Realty Corporation shall be the surviving
corporation, in accordance with an Agreement and Plan of Merger (the "Plan"),
adopted pursuant to Section 607.1104 of the Act and Section 1701.80 of the Ohio
General Corporation Law (the "Ohio Act"). The undersigned corporations hereby
certify as follows:
FIRST, a copy of the Plan is attached hereto and made a part hereof.
SECOND, the merger shall become effective at the close of business on
the date on which these Articles of Merger are filed with the Department of
State of Florida and a Certificate of Merger is filed with the Secretary of
State of Ohio.
THIRD, pursuant to Section 607.1104 of the Florida Act and Section
1701.80 of the Ohio Act, the Plan was adopted the Board of Directors of Regency
Realty Corporation, the sole shareholder of Regency Retail Centers of Ohio,
Inc., on December 15, 1998. Approval by shareholders of Regency Realty
Corporation was not required.
IN WITNESS WHEREOF, these Articles of Merger have been executed by
Regency Retail Centers of Ohio, Inc., as the merging corporation, and by Regency
Realty Corporation., as the surviving corporation, this 28th day of December,
1998.
WITNESSES REGENCY RETAIL CENTERS OF
OHIO, INC., an Ohio corporation
_________________________________ By:
J. Christian Leavitt, Vice President
121 West Forsyth Street, Suite 200
_____________________ Jacksonville, Florida 32202
REGENCY REALTY CORPORATION., a
Florida corporation
_________________________________ By:
J. Christian Leavitt, Vice President
121 West Forsyth Street, Suite 200
____ _____________________ Jacksonville, Florida 32202
STATE OF FLORIDA
COUNTY OF DUVAL
The foregoing instrument was acknowledged before me this 28th day of
December, 1998, by J. Christian Leavitt, Vice President of Regency Retail
Centers of Ohio, Inc. Such person did take an oath and: (notary must check
applicable box)
|_| is/are personally known to me.
|_| produced a current Florida driver's license as identification.
|_| produced _______________________________ as identification.
{Notary Seal must be affixed}
----------------------------------------------
Signature of Notary
----------------------------------------------
Name of Notary (Typed, Printed or Stamped)
Commission Number (if not legible on seal): __________________________ My
Commission Expires (if not legible on seal): _______________________
<PAGE>
STATE OF FLORIDA
COUNTY OF DUVAL
The foregoing instrument was acknowledged before me this 28th day of
December, 1998, by J. Christian Leavitt, Vice President of Regency Realty
Corporation Such person did take an oath and: (notary must check applicable box)
|_| is/are personally known to me.
|_| produced a current Florida driver's license as identification.
|_| produced _______________________________ as identification.
{Notary Seal must be affixed}
----------------------------------------------
Signature of Notary
----------------------------------------------
Name of Notary (Typed, Printed or Stamped)
Commission Number (if not legible on seal): __________________________ My
Commission Expires (if not legible on seal): _______________________
<PAGE>
004.160941.1
6
004.160941.1
ARTICLES OF MERGER AND PLAN OF MERGER
Merging
PACIFIC RETAIL TRUST
(a real estate investment trust formed under the laws of the
State of Maryland)
with and into
REGENCY REALTY CORPORATION
(a corporation incorporated under the laws of the State of Florida)
Pursuant to Sections 607.1101 and 607.1108, Florida Statutes and
Sections 3-109 and 8-501.1 of the Corporations and Associations Article of the
Annotated Code of Maryland, as amended.
Regency Realty Corporation, a corporation organized and existing under
the laws of the State of Florida ("Regency"), and Pacific Retail Trust, a real
estate investment trust formed and existing under the laws of the State of
Maryland ("Pacific Retail"), agree that Pacific Retail shall be merged with and
into Regency, the latter of which is to survive the merger, and hereby adopt the
following Articles of Merger. The terms and conditions of the merger and the
mode of carrying the same into effect are as herein set forth in these Articles
of Merger.
FIRST: The parties to these Articles of Merger are Pacific Retail, a
real estate investment trust formed and existing under the laws of the State of
Maryland, and Regency, a corporation organized and existing under the general
laws of the State of Florida. Regency was incorporated on July 9, 1993 under the
Florida Business Corporation Act (the "Florida Act") and qualified to do
business in Maryland on February 9, 1999.
SECOND: Pacific Retail shall be merged with and into Regency in
accordance with Title 8 of the Corporations and Associations Article of the
Annotated Code of Maryland (the "Maryland Code") and the Florida Act and Regency
shall survive the merger and continue under its present name (the "Surviving
Entity"). At the effective time of the merger (the "Effective Time"), the
separate existence of Pacific Retail shall cease in accordance with the
provisions of the Maryland Code. From and after the Effective Time, the
Surviving Entity shall continue its existence as a corporation under the Florida
Act, shall succeed to all of the rights, privileges, properties, real, personal
and mixed, liabilities and other assets without the necessity of any separate
deed or other transfer and shall be subject to all of the liabilities and
obligations of Pacific Retail without further action by either of the parties
hereto, and will continue to be governed by the laws of the State of Florida. If
at any time after the Effective Time the Surviving Entity shall consider or be
advised that any deeds, bills of sale, assignments or assurances or any other
acts or things are necessary, desirable or proper (a) to vest, perfect or
confirm, of record or otherwise, in the Surviving Entity, its right, title or
interest in, to or under any of the rights, privileges, powers, franchises,
properties or assets of Pacific Retail acquired or to be acquired as a result of
the merger, or (b) otherwise to carry out the purposes of these Articles, the
Surviving Entity and its officers and directors or their designees shall be
authorized to execute and deliver, in the name and on behalf of Pacific Retail,
all deeds, bills of sale, assignments and assurances, and to do, in the name and
on behalf of Pacific Retail, all other acts or things necessary, desirable or
proper to vest, perfect or confirm the Surviving Entity's right, title or
interest in, to or under any of the rights, privileges, powers, franchises,
properties or assets of Pacific Retail acquired or to be acquired as a result of
the merger and otherwise to carry out the purposes of these Articles.
THIRD: The principal office of Pacific Retail in the State of Maryland
is located at 11 East Chase Street, the City of Baltimore, Maryland. The name
and address of the registered agent of Regency is CSC - Lawyers Incorporating
Service Company, 11 East Chase Street, Baltimore, Maryland 21202 The principal
office of Regency is located at 121 W. Forsyth Street, Suite 200, Jacksonville,
Florida 32202. Neither Regency nor Pacific Retail owns any interest in land in
any county in the State of Maryland or in Baltimore City.
FOURTH: The terms and conditions of the transaction set forth in these
Articles of Merger were advised, authorized and approved by each party to these
Articles of Merger in the manner and by the vote required by Regency's articles
of incorporation and the Florida Act or Pacific Retail's declaration of trust
and the Maryland Code, as the case may be.
FIFTH: The merger was duly (a) advised by the board of directors of
Regency by the adoption of a resolution declaring that the merger set forth in
these Articles of Merger was advisable on substantially the terms and conditions
set forth in the resolution and directing that the proposed merger be submitted,
together with the board's recommendation, for consideration at a special meeting
of the shareholders of Regency and (b) approved by the shareholders of Regency
on February 26, 1999 by the vote required by its articles of incorporation and
the Florida Act. The only voting group of Regency entitled to vote on the
adoption of the Plan was the holders of Regency Common Stock. The number of
votes cast by such voting group was sufficient for approval by that group.
SIXTH: The merger was duly (a) advised by the board of trustees of
Pacific Retail by the adoption of a resolution declaring that the merger set
forth in these Articles of Merger was advisable on substantially the terms and
conditions set forth or referred to in the resolution and directing that the
proposed merger be submitted for consideration at a special meeting of the
shareholders of Pacific Retail and (b) approved by the shareholders of Pacific
Retail on February 26, 1999 by the vote required by its declaration of trust and
the Maryland Code.
SEVENTH: The total number of shares of beneficial interest of all
classes which Pacific Retail has authority to issue is 150,000,000 shares of
beneficial interest, of the par value of $.01 each, all such shares having an
aggregate par value of $1,500,000. Of such shares of beneficial interest,
142,739,448 shares are classified as common shares ("Pacific Retail Common
Stock"), 1,130,276 shares have been classified as Series A Cumulative
Convertible Redeemable Preferred Shares of Beneficial Interest ("Pacific Retail
Series A Preferred Stock"), and 6,130,276 shares have been classified as Series
B Cumulative Convertible Redeemable Preferred Shares of Beneficial Interest
("Pacific Retail Series B Preferred Stock").
Immediately before the Effective Time, the total number of shares of
stock of all classes which Regency had authority to issue is 170,000,000 shares,
of the par value of $.01 each, all such shares having an aggregate par value of
$1,700,000. Of such 170,000,000 shares, 150,000,000 shares were classified as
common stock ("Regency Common Stock"), 10,000,000 shares were classified as
Special Common Stock (of which 2,500,000 have been classified as Class B
Non-Voting Stock) and 10,000,000 shares were classified as Preferred Stock (of
which 1,600,000 have been classified as 8.125% Series A Cumulative Redeemable
Preferred Stock). Immediately after the Effective Time, the total number of
shares of stock of all classes which Regency has authority to issue is
170,000,000 shares, of the par value of $0.01 each, all such shares having an
aggregate par value of $1,700,000. Of such 170,000,000 shares, 150,000,000
shares are classified as Regency Common Stock, 10,000,000 shares are classified
as Special Common Stock (of which 2,500,000 are classified as Class B Non-Voting
Common Stock) and 10,000,000 shares are classified as Preferred Stock (of which
542,532 shares have been classified as Series 1 Cumulative Convertible
Redeemable Preferred Stock and 1,502,532 shares have been classified as Series 2
Cumulative Convertible Redeemable Preferred Stock and 1,600,000 have been
classified as 8.125% Series A Cumulative Redeemable Preferred Stock).
EIGHTH: As of the Effective Time, by virtue of the Merger and without any
action on the part of Regency, Pacific Retail, or any holder of any of the
following securities:
(a) Cancellation of Treasury Stock and Regency-Owned Shares of Beneficial
Interest of Pacific Retail. Each share of beneficial interest of Pacific Retail
that is owned by Pacific Retail or any subsidiary of Pacific Retail or Regency
or any subsidiary of Regency shall automatically be cancelled and retired and
shall cease to exist, and no consideration shall be delivered or deliverable in
exchange therefor.
(b) Conversion of Pacific Retail Common Stock. Each issued and outstanding share
of Pacific Retail Common Stock, other than shares cancelled pursuant to
paragraph (a) of this Article or shares as to which a demand for dissenter's
rights has been duly perfected in accordance with the Maryland Code, shall be
converted into the right to receive 0.48 validly issued, fully paid, and
nonassessable shares of Regency Common Stock. The consideration to be issued to
the holders of Pacific Retail Common Stock is referred to herein as the "Common
Stock Merger Consideration." No fractional shares shall be issued as part of the
Common Stock Merger Consideration.
(c) Conversion of Pacific Retail Series A Preferred Stock. Each issued and
outstanding share of Pacific Retail Series A Preferred Stock, other than shares
cancelled pursuant to paragraph (a) of this Article or shares as to which a
demand for dissenters rights has been duly perfected in accordance with the
Maryland Code, shall be converted into the right to receive 0.48 validly issued,
fully paid and nonassessable shares of Series 1 Cumulative Convertible
Redeemable Preferred Stock of Regency ("Regency Series 1 Preferred Stock"). The
consideration to be issued to holders of Pacific Retail Series A Preferred Stock
is referred to as the "Series A Merger Consideration."
(d) Conversion of Pacific Retail Series B Preferred Stock. Each issued and
outstanding share of Pacific Retail Series B Preferred Stock, other than shares
cancelled pursuant to paragraph (a) of this Article or shares as to which a
demand for dissenters rights has been duly perfected in accordance with the
Maryland Code, shall be converted into the right to receive 0.48 validly issued,
fully paid and nonassessable shares of Series 2 Cumulative Convertible
Redeemable Preferred Stock of Regency ("Regency Series 2 Preferred Stock"). The
consideration to be issued to holders of Pacific Retail Series B Preferred Stock
is referred to as the "Series B Merger Consideration." The Common Stock Merger
Consideration, Series A Merger Consideration and Series B Merger Consideration
are referred to collectively herein as the "Merger Consideration."
(e) No Fractional Shares. Each holder of Pacific Retail Common Stock, Pacific
Retail Series A Preferred Stock or Pacific Retail Series B Preferred Stock
exchanged pursuant to the Merger who would otherwise have been entitled to
receive a fraction of a share of (i) Regency Common Stock, (ii) Regency Series A
Preferred Stock or (iii) Regency Series B Preferred Stock, as the case may be
(after taking into account all shares of Pacific Retail Common Stock, Pacific
Retail Series A Preferred Stock or Pacific Retail Series B Preferred Stock held
of record by such holder at the Effective Time), shall receive, in lieu of such
fraction of a share, cash in an amount arrived at by multiplying such fraction
times the average closing price of a share of Regency Common Stock on the New
York Stock Exchange on the ten (10) consecutive trading days ending on the fifth
day immediately preceding the Effective Time.
(f) Cancellation and Retirement of Shares of Beneficial Interest of Pacific
Retail. As of the Effective Time, all shares of beneficial interest of Pacific
Retail converted into the right to receive the applicable Merger Consideration
pursuant to this Article shall no longer be outstanding and shall automatically
be cancelled and retired and shall cease to exist, and each holder of a
certificate evidencing any such shares of beneficial interest of Pacific Retail
shall cease to have any rights with respect thereto, except the right to receive
the applicable Merger Consideration in accordance with this Article, and any
cash in lieu of fractional shares of Regency Common Stock, Regency Series 1
Preferred Stock or Regency Series 2 Preferred Stock paid in cash by Regency
based on the average of the closing price of the Regency Common Stock on the New
York Stock Exchange for the ten (10) consecutive trading days ending on the
fifth day immediately preceding the Effective Time.
(g) Conversion of Pacific Retail Stock Options. Each option granted by Pacific
Retail to purchase shares of Pacific Retail Common Stock (a "Pacific Retail
Stock Option") which is outstanding and unexercised immediately prior to the
Effective Time shall cease to represent a right to acquire such shares and shall
be converted into an option to purchase shares of Regency Common Stock (a
"Regency Stock Option") in an amount and at an exercise price determined as
provided below and otherwise subject to the terms and conditions of Regency's
Long-Term Omnibus Plan and the agreements evidencing grants thereunder but
having the same vesting, exercise, and termination dates that such Pacific
Retail Stock Options had immediately prior to the Effective Time except that
departing officers' options shall fully vest and shall terminate on the dates
set forth in agreements between the departing officers and Regency.
(i) the number of shares of Regency Common Stock to be subject to the new
Regency Stock Option will be equal to the product of (A) the number of shares of
Pacific Retail Common Stock subject to the existing Pacific Retail Stock Option
immediately prior to the Effective Time and (B) the ratio of the value per share
of Pacific Retail Common Stock immediately prior to the Effective Time to the
value per share of Regency Common Stock immediately after the Effective Time,
and
(ii) the exercise price per share of Regency Common Stock under the new Regency
Stock Option will be equal to (A) the value per share of Regency Common Stock
immediately after the Effective Time multiplied by (B) the ratio of the exercise
price per share of Pacific Retail Common Stock to the value per share of Pacific
Retail Common Stock immediately prior to the Effective Time.
NINTH: The parties hereto intend that the execution of these Articles
of Merger constitute the adoption of a "plan of reorganization" within the
meaning of Section 368 of the Internal Revenue Code of 1996, as amended.
TENTH: The merger shall be effective at 11:59 p.m. Eastern Standard Time on
February 28, 1999.
ELEVENTH: The merger may be abandoned at any time prior to the
Effective Time by either Pacific Retail or the Surviving Entity, without further
shareholder action by filing a Notice of Abandonment with each state authority
with which these Articles of Merger are filed.
TWELFTH: The Articles of Incorporation of Regency shall continue to be the
Articles of Incorporation of Regency on and after the Effective Time, except for
the following amendments:
(a) The Articles of Incorporation of Regency are hereby amended to add the
Certificate of Designations, Rights, Preferences and Limitations of Series 1
Cumulative Convertible Redeemable Preferred Stock of Regency attached hereto as
Exhibit A.
(b) The Articles of Incorporation of Regency are hereby amended to add the
Certificate of Designations, Rights, Preferences and Limitations of Series 2
Cumulative Convertible Redeemable Preferred Stock of Regency attached hereto as
Exhibit B.
(c) Article V of the Articles of Incorporation of Regency is hereby amended
as set forth in Exhibit C hereto.
<PAGE>
IN WITNESS WHEREOF, Regency Realty Corporation, a Florida corporation,
and Pacific Retail Trust, a Maryland real estate investment trust, the entities
parties to the merger, have caused these Articles of Merger to be signed in
their respective names and on their behalf and witnessed or attested all as of
the 26th day of February, 1999. Each of the individuals signing these Articles
of Merger on behalf of Regency Realty Corporation or Pacific Retail Trust
acknowledges these Articles of Merger to be the act of such respective entity
and, as to all other matters or facts required to be verified under oath, that
to the best of his or her knowledge, information and belief, these matters are
true in all material respects and that this statement is made under the
penalties for perjury.
REGENCY REALTY CORPORATION,
a Florida corporation
By: ___________________________________
Mary Lou Rogers, President
Attest:
-------------------------------
J. Christian Leavitt, Secretary
PACIFIC RETAIL TRUST,
a Maryland real estate investment trust
By: ___________________________________
Jane E. Mody, Managing Director and
Chief Financial Officer
Attest:
--------------------------------
Kelli Hlavenka, Assistant Secretary
<PAGE>
EXHIBIT "A'
ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 542,532 SHARES OF
SERIES 1 CUMULATIVE CONVERTIBLE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business
Corporation Act ("FBCA"), Regency Realty Corporation, a Florida corporation (the
"Corporation"), does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Restated Articles of
Incorporation of the Corporation, as amended (the "Charter") and Section
607.0602 of the FBCA, the Board of Directors of the Corporation, by resolutions
duly adopted on September 23, 1998 has classified 542,532 shares of the
authorized but unissued Preferred Stock par value $.01 per share (the "Series 1
Preferred Stock") as a separate class of Preferred Stock, authorized the
issuance of a maximum of 542,532 shares of such class of Series 1 Preferred
Stock, set certain of the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such class of Series
1 Preferred Stock. Shareholder approval was not required under the Charter with
respect to such designation.
SECOND: The class of Series 1 Preferred Stock of the Corporation
created by the resolutions duly adopted by the Board of Directors of the
Corporation shall have the following designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitation as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
Section 1. Number of Shares and Designation. The number of shares of Series 1
Preferred Stock which shall constitute such series shall not be more than
542,532 shares, par value $0.01 per share, which number may be decreased (but
not below the number thereof then outstanding plus the number required to
fulfill the Corporation's obligations under certain agreements, options,
warrants or similar rights issued by the Corporation) from time to time by the
Board of Directors of the Corporation. Except as otherwise specifically stated
herein, the Series 1 Preferred Stock shall have the same rights and privileges
as Common Stock under Florida law.
Section 2. Definitions. For purposes of the Series 1 Preferred Stock, the
following terms shall have the meanings indicated:
"Board" shall mean the Board of Directors of the Corporation
or any committee authorized by such Board of Directors to perform any of its
responsibilities with respect to the Series 1 Preferred Stock.
"Business Day" shall mean any day other than a Saturday,
Sunday or a day on which state or federally chartered banking institutions in
New York City, New York are not required to be open.
"Call Date" shall mean the date specified in the notice to
holders required under subparagraph (d) of Section 5 as the Call Date.
"Common Stock" shall mean the common capital stock of the Corporation, par
value $0.01 per share.
"Constituent Person" shall have the meaning set forth in
paragraph (c) of Section 6 hereof.
"Dividend Payment Date" shall mean the last calendar day of
March, June, September and December, in each year, commencing on March 31, 1999;
provided, however, that if any Dividend Payment Date falls on any day other than
a Business Day, the dividend payment due on such Dividend Payment Date shall be
paid on the Business Day immediately following such Dividend Payment Date.
"Dividend Periods" shall mean quarterly dividend periods
commencing on April 1, July 1, October 1 and January 1 of each year and ending
on and including the day preceding the first day of the next succeeding Dividend
Period (other than the initial Dividend Period, which shall commence on the
Issue Date).
"Fully Junior Stock" shall mean any class or series of capital
stock of the Corporation now or hereafter issued and outstanding over which the
Series 1 Preferred Stock has preference or priority in both (i) the payment of
dividends and (ii) the distribution of assets on any liquidation, dissolution or
winding up of the Corporation.
"Funds from Operations per Share" shall mean the amount
determined by dividing (a) the net income of the Corporation before
extraordinary items (determined in accordance with generally accepted accounting
principles) as reported by the Corporation in its year-end audited financial
statements, minus gains (or losses) from debt restructuring and sales of
property, plus real property depreciation and amortization and amortization of
capitalized leasing expenses and tenant allowances or improvements (to the
extent such allowances or improvements are capital items), and after adjustments
for unconsolidated partnerships, corporations and joint ventures (such items of
depreciation and amortization and such gains, losses and adjustments as
determined in accordance with generally accepted accounting principles and as
reported by the Corporation in its year-end audited financial statements) by (b)
the weighted average number of shares of common stock of the Corporation
outstanding as reported by the Corporation in its year-end audited financial
statements. Adjustments for unconsolidated partnerships, corporations and joint
ventures shall be calculated to reflect Funds from Operations per Share on the
same basis. If the Corporation shall after the Issue Date (A) pay a dividend or
make a distribution in shares of common stock on its outstanding shares of
common stock, (B) subdivide its outstanding shares of common stock into a
greater number of shares, (C) combine its outstanding Common Stock into a
smaller number of shares or (D) issue any shares of common stock by
reclassification of its outstanding shares of common stock, the Funds from
Operations per Share shall be appropriately adjusted to give effect to such
events.
"Issue Date" shall mean the first date on which the Series 1
Preferred Stock is issued.
"Junior Stock" shall mean the Common Stock and any other class
or series of capital stock of the Corporation now or hereafter issued and
outstanding over which the Series 1 Preferred Stock has preference or priority
in the payment of dividends or in the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
"Minimum Amount" shall mean the greater of (A) $0.2083 and (B)
65% of the highest amount of Funds from Operations per Share for any preceding
fiscal year beginning with the fiscal year ending December 31, 1996, divided by
four.
"Non-Electing Share" shall have the meaning set forth in
paragraph (c) of Section 6 hereof.
"Parity Stock" shall have the meaning set forth in paragraph
(b) of Section 8.
"Person" shall mean any individual, firm, partnership,
corporation, or trust or other entity, and shall include any successor (by
merger or otherwise) of such entity.
"PRT Issue Date" means October 13, 1995.
"Series 1 Preferred Stock" shall have the meaning set forth in
Article FIRST hereof.
"Series 2 Preferred Stock" shall mean the Series 2 Cumulative
Convertible Redeemable Preferred Stock of the Corporation, par value $0.01 per
share.
"set apart for payment" shall be deemed to include, without
any action other than the following, the recording by the Corporation in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of dividends or other distribution by the Board, the
allocation of funds to be so paid on any series or class of capital stock of the
Corporation; provided, however, that if any funds for any class or series of
Junior Stock, Fully Junior Stock or any class or series of shares of capital
stock ranking on a parity with the Series 1 Preferred Stock as to the payment of
dividends are placed in a separate account of the Corporation or delivered to a
disbursing, paying or other similar agent, then "set apart for payment" with
respect to the Series 1 Preferred Stock shall mean placing such funds in a
separate account or delivering such funds to a disbursing, paying or other
similar agent.
"Transaction" shall have the meaning set forth in paragraph
(c) of Section 6 hereof.
"Transfer Agent" means initially the Corporation and shall
include such other agent or agents of the Corporation as may be designated by
the Board or their designee as the transfer agent for the Series 1 Preferred
Stock.
"Voting Preferred Stock" shall have the meaning set forth in
Section 9 hereof.
Section 3. Dividends.
(a) The holders of Series 1 Preferred Stock shall be entitled to receive, when,
as and if declared by the Board out of funds legally available for that purpose,
quarterly dividends payable in cash in an amount per share equal to the greater
of (i) the Minimum Amount or (ii) an amount equal to $0.02708 less than the
dividends (determined on each Dividend Payment Date) on a share of Common Stock,
or portion thereof, into which a share of Series 2 Preferred Stock is
convertible upon conversion of a share of Series 1 Preferred Stock. For purposes
of clause (ii) of the preceding sentence, such dividends shall equal the number
of shares of Common Stock, or portion thereof, into which a share of Series 2
Preferred Stock is convertible upon conversion of a share of Series 1 Preferred
Stock, multiplied by the most current quarterly dividend paid or payable on a
share of Common Stock on or before the applicable Dividend Payment Date.
Dividends on the Series 1 Preferred Stock shall begin to accrue and shall be
fully cumulative from the Issue Date, whether or not for any Dividend Period or
Periods there shall be funds of the Corporation legally available for the
payment of such dividends, and shall be payable quarterly, when, as and if
declared by the Board, in arrears on Dividend Payment Dates, commencing on the
first Dividend Payment Date after the Issue Date. Accrued and unpaid dividends
on shares of Series 1 Preferred Stock shall include any accrued and unpaid
dividends on the Series A Cumulative Convertible Redeemable Preferred Shares of
Beneficial Interest of Pacific Retail Trust which are exchanged by operation of
law into such shares of Series 1 Preferred Stock pursuant to the merger of
Pacific Retail Trust into the Corporation. Each dividend on the Series 1
Preferred Stock shall be payable to the holders of record of Series 1 Preferred
Stock, as they appear on the stock records of the Corporation at the close of
business on such record dates as shall be fixed by the Board. Accrued and unpaid
dividends for any past Dividend Periods may be declared and paid at any time and
for such interim periods, without reference to any regular Dividend Payment
Date, to holders of record on such date as may be fixed by the Board.
(b) The amount of dividends payable for any dividend period shorter or longer
than a full Dividend Period, on the Series 1 Preferred Stock shall be computed
on the basis of twelve 30-day months and a 360-day year. Holders of Series 1
Preferred Stock shall not be entitled to any dividends, whether payable in cash,
property or stock, in excess of current and cumulative but unpaid dividends, as
herein provided, on the Series 1 Preferred Stock. No interest, or sum of money
in lieu of interest, shall be payable in respect of any dividend payment or
payments on the Series 1 Preferred Stock that may be in arrears.
(c) So long as any Series 1 Preferred Stock is outstanding, no dividends, except
as described in the immediately following sentence, shall be declared or paid or
set apart for payment on any class or series of Parity Stock for any period
unless full cumulative dividends have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart for such
payment on the Series 1 Preferred Stock for all Dividend Periods terminating on
or prior to the Dividend Payment Date on such class or series of Parity Stock.
When dividends are not paid in full or a sum sufficient for such payment is not
set apart, as aforesaid, all dividends declared upon Series 1 Preferred Stock
and all dividends declared upon any other class or series of Parity Stock shall
be declared ratably in proportion to the respective amounts of dividends
accumulated and unpaid on the Series 1 Preferred Stock and accumulated and
unpaid on such Parity Stock.
(d) So long as any Series 1 Preferred Stock is outstanding, no dividends (other
than dividends or distributions paid solely in shares of, or options, warrants
or rights to subscribe for or purchase shares of, Fully Junior Stock) shall be
declared or paid or set apart for payment or other distribution declared or made
upon Junior Stock, nor shall any Junior Stock be redeemed, purchased or
otherwise acquired (other than a redemption, purchase or other acquisition of
Common Stock made for purposes of an employee incentive or benefit plan of the
Corporation or any subsidiary) for any consideration (or any moneys be paid to
or made available for a sinking fund for the redemption of any shares of any
such stock) by the Corporation, directly or indirectly (except by conversion
into or exchange for Fully Junior Stock), unless in each case (i) the full
cumulative dividends on all outstanding Series 1 Preferred Stock and any other
Parity Stock of the Corporation shall have been paid or declared and set apart
for payment for all past Dividend Periods with respect to the Series 1 Preferred
Stock and all past dividend periods with respect to such Parity Stock and (ii)
sufficient funds shall have been paid or declared and set apart for the payment
of the dividend for the current Dividend Period with respect to the Series 1
Preferred Stock and the current dividend period with respect to such Parity
Stock.
Section 4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, before any payment or
distribution of the assets of the Corporation (whether capital or surplus) shall
be made to or set apart for payment to the holders of Junior Stock or Fully
Junior Stock, the holders of the Series 1 Preferred Stock shall be entitled to
receive $20.8333 per share of Series 1 Preferred Stock plus an amount equal to
all dividends declared but unpaid thereon to the date of final distribution to
such holders; but such holders shall not be entitled to any further payment. If,
upon any liquidation, dissolution or winding up of the Corporation, the assets
of the Corporation, or proceeds thereof, distributable among the holders of the
Series 1 Preferred Stock shall be insufficient to pay in full the preferential
amount aforesaid and liquidating payments on any other shares of any class or
series of Parity Stock, then such assets, or the proceeds thereof, shall be
distributed among the holders of Series 1 Preferred Stock and any such other
Parity Stock ratably in accordance with the respective amounts that would be
payable on such Series 1 Preferred Stock and any such other Parity Stock if all
amounts payable thereon were paid in full. For the purposes of this Section 4,
(i) a consolidation or merger of the Corporation with one or more Persons, (ii)
a sale or transfer of all or substantially all of the Corporation's assets or
(iii) a statutory share exchange shall not be deemed to be a liquidation,
dissolution or winding up, voluntary or involuntary, of the Corporation.
(b) Subject to the rights of the holders of shares of any series or class or
classes of shares of capital stock ranking on a parity with or prior to the
Series 1 Preferred Stock upon liquidation, dissolution or winding up, upon any
liquidation, dissolution or winding up of the Corporation, after payment shall
have been made in full to the holders of the Series 1 Preferred Stock, as
provided in this Section 4, any other series or class or classes of Junior Stock
or Fully Junior Stock shall, subject to the respective terms and provisions (if
any) applying thereto, be entitled to receive any and all assets remaining to be
paid or distributed, and the holders of the Series 1 Preferred Stock shall not
be entitled to share therein.
Section 5. Redemption at the Option of the Corporation.
(a) The Series 1 Preferred Stock shall not be redeemable by the Corporation
prior to October 20, 2010. On and after October 20, 2010, the Corporation, at
its option, may redeem the Series 1 Preferred Stock, in whole at any time or
from time to time in part at the option of the Corporation at a redemption price
of $20.8333 per share of Series 1 Preferred Stock, plus the amounts indicated in
Section 5(b).
(b) Upon any redemption of Series 1 Preferred Stock pursuant to this Section 5,
the Corporation shall pay in full any and all accrued and unpaid dividends
(without interest or sum of money in lieu of interest) for any and all Dividend
Periods ending on or prior to the Call Date. If the Call Date falls after a
dividend payment record date and prior to the corresponding Dividend Payment
Date, then each holder of Series 1 Preferred Stock at the close of business on
such dividend payment record date shall be entitled to the dividend payable on
such shares on the corresponding dividend payment date notwithstanding the
redemption of such shares before such Dividend Payment Date.
(c) If full cumulative dividends on the Series 1 Preferred Stock and any other
class or series of Parity Stock of the Corporation have not been paid or
declared and set apart for payment, the Series 1 Preferred Stock may not be
redeemed under this Section 5 in part and the Corporation may not purchase or
acquire shares of Series 1 Preferred Stock, otherwise than pursuant to a
voluntary purchase or exchange offer made on the same terms to all holders of
Series 1 Preferred Stock.
(d) Notice of the redemption of any Series 1 Preferred Stock under this Section
5 shall be mailed by first-class mail to each holder of record of Series 1
Preferred Stock to be redeemed at the address of each such holder as shown on
the Corporation's record, not less than 30 nor more than 90 days prior to the
Call Date. Neither the failure to mail any notice required by this paragraph
(d), nor any defect therein or in the mailing thereof, to any particular holder,
shall affect the sufficiency of the notice or the validity of the proceedings
for redemption with respect to the other holders. Any notice which was mailed in
the manner herein provided shall be conclusively presumed to have been duly
given on the date mailed whether or not the holder receives the notice. Each
such mailed notice shall state, as appropriate: (1) the Call Date; (2) the
number of shares of Series 1 Preferred Stock to be redeemed and, if fewer than
all the shares held by such holder are to be redeemed, the number of such shares
to be redeemed from such holder; (3) the place or places at which certificates
for such shares are to be surrendered; and (4) that dividends on the shares to
be redeemed shall cease to accrue on such Call Date except as otherwise provided
herein. Notice having been mailed as aforesaid, from and after the Call Date
(unless the Corporation shall fail to make available an amount of cash necessary
to effect such redemption), (i) except as otherwise provided herein, dividends
on the Series 1 Preferred Stock so called for redemption shall cease to accrue,
(ii) said shares shall no longer be deemed to be outstanding and (iii) all
rights of the holders thereof as holders of Series 1 Preferred Stock of the
Corporation shall cease (except the rights to convert and to receive cash
payable upon such redemption, without interest thereon, upon surrender and
endorsement of their certificates if so required and to receive any dividends
payable thereon). The Corporation's obligation to provide cash in accordance
with the preceding sentence shall be deemed fulfilled if, on or before the Call
Date, the Corporation shall deposit with a bank or trust company (which may be
an affiliate of the Corporation) that has an office in the Borough of Manhattan,
City of New York, and that has, or is an affiliate of a bank or trust company
that has, capital and surplus of at least $50,000,000, sufficient cash necessary
for such redemption, in trust, with irrevocable instructions that such cash be
applied to the redemption of the Series 1 Preferred Stock so called for
redemption. No interest shall accrue for the benefit of the holders of Series 1
Preferred Stock to be redeemed on any cash so set aside by the Corporation.
Subject to applicable escheat laws and other unclaimed property laws, any such
cash unclaimed at the end of two years from the Call Date shall revert to the
general funds of the Corporation, after which reversion the holders of such
shares so called for redemption shall look only to the general funds of the
Corporation for the payment of such cash. Notwithstanding the above, at any time
after such redemption notice is received and on or prior to the Call Date, any
holder may exercise its conversion rights under Section 6 below.
As promptly as practicable after the surrender in accordance with said
notice of the certificates for any such shares so redeemed (properly endorsed or
assigned for transfer, if the Corporation shall so require and if the notice
shall so state), such shares shall be exchanged for any cash (including
accumulated and unpaid dividends but without interest thereon) for which such
shares have been redeemed. If fewer than all the outstanding shares of Series 1
Preferred Stock are to be redeemed, shares to be redeemed shall be selected by
the Corporation from outstanding Series 1 Preferred Stock not previously called
for redemption by lot or pro rata (as nearly as may be) or by any other method
determined by the Corporation in its sole discretion to be equitable. If fewer
than all shares of the Series 1 Preferred Stock represented by any certificate
are redeemed, then new certificates representing the unredeemed shares shall be
issued without cost to the holder thereof.
Section 6. Conversion. Subject to subparagraph (f) of this Section 6, holders of
Series 1 Preferred Stock shall have the right, at any time and from time to
time, to convert all or a portion of such shares into Series 2 Preferred Stock,
as follows:
(a) Subject to and upon compliance with the provisions of this Section 6, a
holder of Series 1 Preferred Stock shall have the right, at such holder's
option, at any time to convert each share of Series 1 Preferred Stock into one
fully paid and non-assessable share of Series 2 Preferred Stock by surrendering
such shares to be converted, such surrender to be made in the manner provided in
paragraph (b) of this Section 6. In addition, upon conversion of Series 1
Preferred Stock any holder may elect to simultaneously convert the Series 2
Preferred Stock issuable upon such conversion into that number of shares of
Common Stock into which such Series 2 Preferred Stock is then convertible
pursuant to the terms of the Series 2 Preferred Stock.
(b) In order to exercise the conversion right, the holder of each share of
Series 1 Preferred Stock to be converted shall surrender the certificate
representing such share, duly endorsed or assigned to the Corporation or in
blank, at the office of the Transfer Agent, accompanied by written notice to the
Corporation that the holder thereof elects to convert such Series 1 Preferred
Stock and payment of the amount, if any, determined pursuant to subparagraph (f)
of this Section 6. Unless the shares issuable on conversion are to be issued in
the same name as the name in which such Series 1 Preferred Stock is registered,
each share surrendered for conversion shall be accompanied by instruments of
transfer, in form satisfactory to the Corporation, duly executed by the holder
or such holder's duly authorized attorney and an amount sufficient to pay any
transfer or similar tax (or evidence reasonably satisfactory to the Corporation
demonstrating that such taxes have been paid).
Holders of Series 1 Preferred Stock at the close of business on a dividend
payment record date shall be entitled to receive the dividend payable on such
shares on the corresponding dividend payment date notwithstanding the conversion
thereof following such dividend payment record date and on or prior to such
dividend payment date. In no event shall a holder of Series 1 Preferred Stock be
entitled to receive a dividend payment on Series 2 Preferred Stock issued or
issuable upon conversion of Series 1 Preferred Stock if such holder is entitled
to receive a dividend in respect of the Series 1 Preferred Stock surrendered for
conversion. The Corporation shall make no payment or allowance for unpaid
dividends, whether or not in arrears, on converted shares or for dividends on
the Series 2 Preferred Stock issued upon such conversion, except as contemplated
pursuant to subparagraph (f) of this Section 6.
As promptly as practicable after the surrender of certificates for Series 1
Preferred Stock as aforesaid, the Corporation shall issue and shall deliver at
such office to such holder, or such holder's written order, a certificate or
certificates for the number of full shares of Series 2 Preferred Stock issuable
upon the conversion of such shares in accordance with provisions of this Section
6.
Each conversion shall be deemed to have been effected immediately prior to
the close of business on the date on which the certificates for Series 1
Preferred Stock shall have been surrendered and such notice (together with the
undertaking described below if such conversion occurs on or prior to the fifth
anniversary of the PRT Issue Date) received by the Corporation as aforesaid, and
the person or persons in whose name or names any certificate or certificates for
Series 2 Preferred Stock shall be issuable upon such conversion shall be deemed
to have become the holder or holders of record of the shares represented thereby
at such time on such date unless the stock transfer books of the Corporation
shall be closed on that date, in which event such person or persons shall be
deemed to have become such holder or holders of record at the close of business
on the next succeeding day on which such stock transfer books are open.
Concurrently with the delivery of any notice of conversion prior to the fifth
anniversary of the PRT Issue Date, any holder converting its Series 1 Preferred
Stock shall deliver to the Corporation an undertaking to pay the amount, if any,
pursuant to the last sentence of subparagraph (f) of this Section 6.
(c) If the Corporation shall be a party to any transaction (including without
limitation a merger, consolidation, statutory share exchange, self tender offer
for all or substantially all Series 2 Preferred Stock, sale of all or
substantially all of the Corporation's assets or recapitalization of the Series
2 Preferred Stock) (each of the foregoing being referred to herein as a
"Transaction"), in each case as a result of which all or substantially all
Series 2 Preferred Stock is converted into the right to receive stock,
securities or other property (including cash or any combination thereof) of
another Person, each share of Series 1 Preferred Stock, which is not converted
into a Series 2 Preferred Share prior to such Transaction, shall thereafter be
convertible into the kind and amount of shares of stock, securities and other
property (including cash or any combination thereof) receivable upon the
consummation of such Transaction by a holder of that number of shares of Series
2 Preferred Stock into which one share of Series 1 Preferred Stock was
convertible immediately prior to such Transaction, assuming such holder of
Series 2 Preferred Stock (i) is not a Person with which the Corporation
consolidated or into which the Corporation merged or which merged into the
Corporation or to which such sale or transfer was made, as the case may be
("Constituent Person"), or an affiliate of a Constituent Person and (ii) failed
to exercise his rights of election, if any, as to the kind or amount of stock,
securities and other property (including cash) receivable upon such Transaction
(provided that if the kind or amount of stock, securities and other property
(including cash) receivable upon such Transaction is not the same for each share
of Series 2 Preferred Share held immediately prior to such Transaction by other
than a Constituent Person or an affiliate thereof and in respect of which such
rights of election shall not have been exercised ("Non-Electing Share"), then
for the purpose of this paragraph (c) the kind and amount of stock, securities
and other property (including cash) receivable upon such Transaction by each
Non-Electing Share shall be deemed to be the kind and amount so receivable per
share by a plurality of the Non-Electing Shares). The Corporation shall not be a
party to any Transaction unless the terms of such Transaction are consistent
with the provisions of this paragraph (c), and it shall not consent or agree to
the occurrence of any Transaction until the Corporation has entered into an
agreement with the successor or purchasing entity, as the case may be, for the
benefit of the holders of the Series 1 Preferred Stock that will contain
provisions enabling the holders of the Series 1 Preferred Stock that remain
outstanding after such Transaction to convert into the consideration received by
holders of Series 2 Preferred Stock at the conversion price in effect
immediately prior to such Transaction. The provisions of this paragraph (c)
shall similarly apply to successive Transactions.
(d) The Corporation covenants that it will at all times reserve and keep
available, free from preemptive rights, out of the aggregate of its authorized
but unissued shares of Series 2 Preferred Stock, for the purpose of effecting
conversion of the Series 1 Preferred Stock, the full number of shares of Series
2 Preferred Stock deliverable upon the conversion of all outstanding Series 1
Preferred Stock not theretofore converted.
The Corporation covenants that any shares of Series 2 Preferred Stock
issued upon conversion of the Series 1 Preferred Stock shall be validly issued,
fully paid and non-assessable.
Prior to the delivery of any securities that the Corporation shall be
obligated to deliver upon conversion of the Series 1 Preferred Stock, the
Corporation shall endeavor to comply with all federal and state laws and
regulations thereunder requiring the registration of such securities with, or
any approval of or consent to the delivery thereof by, any governmental
authority.
(e) The Corporation will pay any and all documentary stamp or similar issue or
transfer taxes payable in respect of the issue or delivery of Series 2 Preferred
Stock or other securities or property on conversion of the Series 1 Preferred
Stock pursuant hereto; provided, however, that the Corporation shall not be
required to pay any tax that may be payable in respect of any transfer involved
in the issue or delivery of Series 2 Preferred Stock or other securities or
property in a name other than that of the holder of the Series 1 Preferred Stock
to be converted, and no such issue or delivery shall be made unless and until
the person requesting such issue or delivery has paid to the Corporation the
amount of any such tax or established, to the reasonable satisfaction of the
Corporation, that such tax has been paid.
(f) In the event that any holder of Series 1 Preferred Stock shall exercise its
right to convert such shares into Series 2 Preferred Stock prior to the fifth
anniversary of the PRT Issue Date, upon any such conversion, the holder of the
Series 1 Preferred Stock surrendered for conversion shall pay an amount in cash
to the Corporation equal to the amount obtained by multiplying (i) 0.0052 times
(ii) the quotient obtained by dividing (A) the actual number of days that will
elapse beginning on and including the date on which the conversion is deemed to
have been effected and ending on and including the fifth anniversary of the PRT
Issue Date by (B) 365 times (iii) the difference between (X) the aggregate
liquidation preference (excluding accrued and unpaid dividends) of the Series 1
Preferred Stock being converted and (Y) the aggregate amount of accrued and
unpaid dividends on the Series 1 Preferred Stock being converted (provided that
the amount determined pursuant to this clause (iii) shall not be less than
zero). In addition, immediately after the dividend payment record date next
following the conversion date with respect to the Series 2 Preferred Stock into
which the Series 1 Preferred Stock is convertible (or the Common Stock into
which such Series 2 Preferred Stock is convertible, whichever is applicable),
the holder of the Series 1 Preferred Stock shall pay to the Corporation an
amount, if any, necessary to ensure that the holder has received an aggregate
amount of $0.02708 per share being converted less than the dividend payable on
Common Stock for the dividend period during which the conversion was effected.
Section 7. Shares to Be Retired. All shares of Series 1 Preferred Stock which
shall have been issued and reacquired in any manner by the Corporation shall be
restored to the status of authorized but unissued shares of Preferred Stock of
the Corporation, without designation as to class or series.
Section 8. Ranking. Any class or series of shares of capital stock of the
Corporation shall be deemed to rank:
(a) prior to the Series 1 Preferred Stock, as to the payment of dividends and as
to distribution of assets upon liquidation, dissolution or winding up, if the
holders of such class or series shall be entitled to the receipt of dividends or
of amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of Series 1 Preferred
Stock;
(b) on a parity with the Series 1 Preferred Stock, as to the payment of
dividends and as to distribution of assets upon liquidation, dissolution or
winding up, whether or not the dividend rates, dividend payment dates or
liquidation prices per share thereof shall be different from those of the Series
1 Preferred Stock, if the holders of such class or series and the Series 1
Preferred Stock shall be entitled to the receipt of dividends and of amounts
distributable upon liquidation, dissolution or winding up in proportion to their
respective amounts of accrued and unpaid dividends per share or liquidation
preferences, without preference or priority one over the other ("Parity Stock");
(c) junior to the Series 1 Preferred Stock, as to the payment of dividends or as
to the distribution of assets upon liquidation, dissolution or winding up, if
such class or series shall be Junior Stock; and
(d) junior to the Series 1 Preferred Stock, as to the payment of dividends and
as to the distribution of assets upon liquidation, dissolution or winding up, if
such class or series shall be Fully Junior Stock.
The Corporation's Series 2 Cumulative Convertible Redeemable
Preferred Stock and the Corporation's 8.125% Series A Cumulative Redeemable
Preferred Stock shall constitute Parity Stock.
Section 9. Voting.
(a) Each issued and outstanding share of Series 1 Preferred Stock shall entitle
the holder thereof to the number of votes per share of Common Stock into which a
share of Series 2 Preferred Stock is convertible upon conversion of a share of
Series 1 Preferred Stock (as of the close of business on the record date for
determination of shareholders entitled to vote on a matter) on all matters
presented for a vote of shareholders of the Corporation and, except as required
by applicable law and subject to the further provisions of this Section 9, the
Series 1 Preferred Stock shall be voted together with all issued and outstanding
Common Stock and Series 2 Preferred Stock voting as a single class.
(b) If and whenever twelve consecutive quarterly dividends payable on the Series
1 Preferred Stock or any series or class of Parity Stock shall be in arrears
(which shall, with respect to any such quarterly dividend, mean that any such
dividend has not been paid in full), whether or not earned or declared, the
number of directors then constituting the Board shall be increased by one and
the holders of Series 1 Preferred Stock, together with the holders of shares of
every other series of Parity Stock, including the Series 2 Preferred Stock (any
such other series, the "Voting Preferred Stock"), voting as a single class
regardless of series, shall be entitled to elect, at a special meeting of the
holders of the Series 1 Preferred Stock and the Voting Preferred Stock called as
hereinafter provided, the additional director to serve on the Board. Whenever
all arrearages in dividends on the Series 1 Preferred Stock and the Voting
Preferred Stock then outstanding shall have been paid and dividends thereon for
the current quarterly dividend period shall have been paid or declared and set
apart for payment, then the right of the holders of the Series 1 Preferred Stock
and the Voting Preferred Stock to elect such additional director shall cease
(but subject always to the same provision for the vesting of such voting rights
in the case of any similar future arrearages in twelve quarterly dividends), and
the terms of office of the person elected as director by the holders of the
Series 1 Preferred Stock and the Voting Preferred Stock shall forthwith
terminate and the number of members of the Board shall be reduced accordingly.
At any time after such voting power shall have been so vested in the holders of
Series 1 Preferred Stock and the Voting Preferred Stock (or if any vacancy shall
occur in respect of the director previously elected by the holders of the Series
1 Preferred Stock and the Voting Preferred Stock), the secretary of the
Corporation shall call a special meeting of the holders of the Series 1
Preferred Stock and of the Voting Preferred Stock for the election of the
director to be elected by them as herein provided, such call to be made by
notice similar to that provided in the Bylaws of the Corporation for a special
meeting of the shareholders or as required by law. If any such special meeting
required to be called as above provided shall not be called by the secretary
within 30 days after the end of the most recent Dividend Period during which the
right to elect such additional director arose or such vacancy occurred, then any
holder of Series 1 Preferred Stock may call such meeting, upon the notice above
provided, and for that purpose shall have access to the stock records of the
Corporation. The director elected at any such special meeting shall hold office
until the next annual meeting of the shareholders or special meeting held in
lieu thereof if such office shall not have previously terminated as above
provided.
(c) So long as any Series 1 Preferred Stock is outstanding, in addition to any
other vote or consent of shareholders required by law or by the Charter, the
affirmative vote of at least 66 2/3% of the votes entitled to be cast by the
holders of the Series 1 Preferred Stock, together with the holders of Voting
Preferred Stock, at the time outstanding, acting as a single class regardless of
series, given in person or by proxy, either in writing without a meeting or by
vote at any meeting called for the purpose, shall be necessary for effecting or
validating:
(i) Any amendment, alteration or repeal of any of the
provisions of the Charter or these Articles of Amendment that
materially and adversely affects the voting powers, rights or
preferences of the holders of the Series 1 Preferred Stock or the
Voting Preferred Stock; provided, however, that the amendment of the
provisions of the Charter so as to authorize or create or to increase
the authorized amount of any Fully Junior Stock, Junior Stock that is
not senior in any respect to the Series 1 Preferred Stock, or any stock
of any class ranking on a parity with the Series 1 Preferred Stock or
the Voting Preferred Stock shall not be deemed to materially adversely
affect the voting powers, rights or preferences of the holders of
Series 1 Preferred Stock; and provided, further, that if any such
amendment, alteration or repeal would materially and adversely affect
any voting powers, rights or preferences of the Series 1 Preferred
Stock or another series of Voting Preferred Stock that are not enjoyed
by some or all of the other series otherwise entitled to vote in
accordance herewith, the affirmative vote of at least 66 2/3% of the
votes entitled to be cast by the holders of all series similarly
affected, similarly given, shall be required in lieu of the affirmative
vote of at least 66 2/3% of the votes entitled to be cast by the
holders of the Series 1 Preferred Stock and the Voting Preferred Stock
otherwise entitled to vote in accordance herewith; or
(ii) A share exchange that affects the Series 1
Preferred Stock, a consolidation with or merger of the Corporation into
another Person, or a consolidation with or merger of another Person
into the Corporation, unless in each such case each share of Series 1
Preferred Stock (A) shall remain outstanding without a material and
adverse change to its terms and rights or (B) shall be converted into
or exchanged for convertible preferred stock of the surviving entity
having preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms or
conditions of redemption thereof identical to that of a share of Series
1 Preferred Stock (except for changes that do not materially and
adversely affect the holders of the Series 1 Preferred Stock); or
(iii) The authorization or creation of, or the
increase in the authorized amount of, any shares of any class or any
security convertible into shares of any class ranking prior to the
Series 1 Preferred Stock in the distribution of assets on any
liquidation, dissolution or winding up of the Corporation or in the
payment of dividends.
(d) For purposes of voting in respect to those matters referred to in
subparagraphs (b) and (c) of this Section 9, unless otherwise provided under
applicable law, each share of Series 1 Preferred Stock shall have one (1) vote
per share, except that when any other series of Preferred Stock shall have the
right to vote with the Series 1 Preferred Stock as a single class on any matter,
then the Series 1 Preferred Stock and such other series shall have with respect
to such matters one (1) vote per $20.8333 of stated liquidation preference.
Except as otherwise required by applicable law or as set forth herein, the
Series 1 Preferred Stock shall not have any relative, participating, optional or
other special voting rights and powers other than as set forth herein, and the
consent of the holders thereof shall not be required for the taking of any
corporate action.
Section 10. Record Holders. The Corporation and the Transfer Agent may deem and
treat the record holder of any shares of Series 1 Preferred Stock as the true
and lawful owner thereof for all purposes, and neither the Corporation nor the
Transfer Agent shall be affected by any notice to the contrary.
Section 11. Sinking Fund. The Series 1 Preferred Stock shall not be
entitled to the benefits of any retirement or sinking fund.
THIRD: The Series 1 Preferred Stock has been classified and designated by
the Board of Directors under the authority contained in Section 4.2 of the
Charter.
FOURTH: These Articles of Amendment have been approved by the Board of
Directors in the manner and by the vote required by law.
FIFTH: The undersigned President of the Corporation acknowledges these
Articles of Amendment to be the corporate act of the Corporation and, as to all
matters or facts required to be verified under oath, the undersigned President
acknowledges that to the best of her knowledge, information and belief, these
matters and facts are true in all material respects and that this statement is
made under the penalties for perjury.
[Signature Page Follows]
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused these Articles
of Amendment to be executed under seal in its name and on its behalf by its
President and attested to by its Secretary on this 26th day of February, 1999.
REGENCY REALTY CORPORATION
By: /s/ Mary Lou Rogers
Name: Mary Lou Rogers
Title: President
[SEAL]
ATTEST:
/s/ J. Christian Leavitt
Name: J. Christian Leavitt
Title: Secretary
<PAGE>
EXHIBIT "B'
ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 1,502,532 SHARES OF
SERIES 2 CUMULATIVE CONVERTIBLE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business
Corporation Act ("FBCA"), Regency Realty Corporation, a Florida corporation (the
"Corporation"), does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Restated Articles of
Incorporation of the Corporation, as amended (the "Charter") and Section
607.0602 of the FBCA, the Board of Directors of the Corporation, by resolutions
duly adopted on September 23, 1998 has classified 1,502,532 shares of the
authorized but unissued Preferred Stock par value $.01 per share (the "Series 2
Preferred Stock") as a separate class of Preferred Stock, authorized the
issuance of a maximum of 1,502,532 shares of such class of Series 2 Preferred
Stock, set certain of the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such class of Series
2 Preferred Stock. Shareholder approval was not required under the Charter with
respect to such designation.
SECOND: The class of Series 2 Preferred Stock of the Corporation
created by the resolutions duly adopted by the Board of Directors of the
Corporation shall have the following designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitation as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
Section 1. Number of Shares and Designation. The number of shares of Series 2
Preferred Stock which shall constitute such series shall not be more than
1,502,532 shares, par value $0.01 per share, which number may be decreased (but
not below the number thereof then outstanding plus the number required to
fulfill the Corporation's obligations under certain agreements, options,
warrants or similar rights issued by the Corporation) from time to time by the
Board of Directors of the Corporation. Except as otherwise specifically stated
herein, the Series 2 Preferred Stock shall have the same rights and privileges
as Common Stock under Florida law.
Section 2. Definitions. For purposes of the Series 2 Preferred Stock, the
following terms shall have the meanings indicated:
"Board" shall mean the Board of Directors of the Corporation
or any committee authorized by such Board of Directors to perform any of its
responsibilities with respect to the Series 2 Preferred Stock.
"Business Day" shall mean any day other than a Saturday,
Sunday or a day on which state or federally chartered banking institutions in
New York City, New York are not required to be open.
"Call Date" shall mean the date specified in the notice to
holders required under subparagraph (d) of Section 5 as the Call Date.
"Common Stock" shall mean the common capital stock of the Corporation, par
value $0.01 per share.
"Constituent Person" shall have the meaning set forth in
paragraph (e) of Section 6 hereof.
"Conversion Price" shall mean the conversion price per share
of Common Stock for which the Series 2 Preferred Stock is convertible, as such
Conversion Price may be adjusted pursuant to Section 6. The initial conversion
price shall be $20.8333 (equivalent to a conversion rate of one (1) share of
Common Stock for each share of Series 2 Preferred Stock).
"Current Market Price" of publicly traded Common Stock or any
other class of capital stock or other security of the Corporation or any other
issuer for any day shall mean the last reported sales price on such day, regular
way, or, if no sale takes place on such day, the average of the reported closing
bid and asked prices on such day, regular way, in either case as reported on the
New York Stock Exchange ("NYSE") or, if such security is not listed or admitted
for trading on the NYSE, on the principal national securities exchange on which
such security is listed or admitted for trading or, if not listed or admitted
for trading on any national securities exchange, on the National Market System
of the National Association of Securities Dealers, Inc. Automated Quotations
System ("NASDAQ") or, if such security is not quoted on such National Market
System, the average of the closing bid and asked prices on such day in the
over-the-counter market as reported by NASDAQ or, if bid and asked prices for
such security on such day shall not have been reported through NASDAQ, as
reported by the National Quotation Bureau, Incorporated, or, if not so reported,
the average of the closing bid and asked prices as furnished by any member of
the National Association of Securities Dealers, Inc. selected from time to time
by the Corporation for such purpose, or, if no such prices are furnished, the
fair market value of the security as determined in good faith by the Board.
"Dividend Payment Date" shall mean the last calendar day of
March, June, September and December, in each year, commencing on March 31, 1999;
provided, however, that if any Dividend Payment Date falls on any day other than
a Business Day, the dividend payment due on such Dividend Payment Date shall be
paid on the Business Day immediately following such Dividend Payment Date.
"Dividend Periods" shall mean quarterly dividend periods
commencing on April 1, July 1, October 1 and January 1 of each year and ending
on and including the day preceding the first day of the next succeeding Dividend
Period (other than the initial Dividend Period, which shall commence on the
Issue Date).
"Fully Junior Stock" shall mean any class or series of capital
stock of the Corporation now or hereafter issued and outstanding over which the
Series 2 Preferred Stock has preference or priority in both (i) the payment of
dividends and (ii) the distribution of assets on any liquidation, dissolution or
winding up of the Corporation.
"Funds from Operations per Share" shall mean the amount
determined by dividing (a) the net income of the Corporation before
extraordinary items (determined in accordance with generally accepted accounting
principles) as reported by the Corporation in its year-end audited financial
statements, minus gains (or losses) from debt restructuring and sales of
property, plus real property depreciation and amortization and amortization of
capitalized leasing expenses and tenant allowances or improvements (to the
extent such allowances or improvements are capital items), and after adjustments
for unconsolidated partnerships, corporations and joint ventures (such items of
depreciation and amortization and such gains, losses and adjustments as
determined in accordance with generally accepted accounting principles and as
reported by the Corporation in its year-end audited financial statements) by (b)
the weighted average number of shares of common stock of the Corporation
outstanding as reported by the Corporation in its year-end audited financial
statements. Adjustments for unconsolidated partnerships, corporations and joint
ventures shall be calculated to reflect Funds from Operations per Share on the
same basis. If the Corporation shall after the Issue Date (A) pay a dividend or
make a distribution in shares of common stock on its outstanding shares of
common stock, (B) subdivide its outstanding shares of common stock into a
greater number of shares, (C) combine its outstanding Common Stock into a
smaller number of shares or (D) issue any shares of common stock by
reclassification of its outstanding shares of common stock, the Funds from
Operations per Share shall be appropriately adjusted to give effect to such
events.
"Issue Date" shall mean the first date on which the Series 2
Preferred Stock is issued.
"Junior Stock" shall mean the Common Stock and any other class
or series of capital stock of the Corporation now or hereafter issued and
outstanding over which the Series 2 Preferred Stock has preference or priority
in the payment of dividends or in the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
"Minimum Amount" shall mean the greater of (A) $0.2083 and (B)
65% of the highest amount of Funds from Operations per Share for any preceding
fiscal year, beginning with the fiscal year ending December 31, 1996, divided by
four.
"Non-Electing Share" shall have the meaning set forth in
paragraph (e) of Section 6 hereof.
"Parity Stock" shall have the meaning set forth in paragraph
(b) of Section 8.
"Person" shall mean any individual, firm, partnership,
corporation, or trust or other entity, and shall include any successor (by
merger or otherwise) of such entity.
"Securities" and "Security" shall have the meanings set forth in paragraph
(d)(iv) of Section 6 hereof.
"Series 1 Preferred Stock" shall mean the Series 1 Cumulative
Convertible Redeemable Preferred Stock of the Corporation, par value $0.01 per
share.
"Series 2 Preferred Stock" shall have the meaning set forth in
Article FIRST hereof.
"set apart for payment" shall be deemed to include, without
any action other than the following, the recording by the Corporation in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of dividends or other distribution by the Board, the
allocation of funds to be so paid on any series or class of capital stock of the
Corporation; provided, however, that if any funds for any class or series of
Junior Stock, Fully Junior Stock or any class or series of shares of capital
stock ranking on a parity with the Series 2 Preferred Stock as to the payment of
dividends are placed in a separate account of the Corporation or delivered to a
disbursing, paying or other similar agent, then "set apart for payment" with
respect to the Series 2 Preferred Stock shall mean placing such funds in a
separate account or delivering such funds to a disbursing, paying or other
similar agent.
"Transaction" shall have the meaning set forth in paragraph
(e) of Section 6 hereof.
"Transfer Agent" means initially the Corporation and shall
include such other agent or agents of the Corporation as may be designated by
the Board or their designee as the transfer agent for the Series 2 Preferred
Stock.
"Voting Preferred Stock" shall have the meaning set forth in
Section 9 hereof.
Section 3. Dividends.
(a) The holders of Series 2 Preferred Stock shall be entitled to receive, when,
as and if declared by the Board out of funds legally available for that purpose,
quarterly dividends payable in cash in an amount per share equal to the greater
of (i) the Minimum Amount or (ii) an amount equal to the dividend (determined on
each Dividend Payment Date) on a share of Common Stock, or portion thereof, into
which a share of Series 2 Preferred Stock is convertible. For purposes of clause
(ii) of the preceding sentence, such dividends shall equal the number of shares
of Common Stock, or portion thereof, into which a share of Series 2 Preferred
Stock is convertible, multiplied by the most current quarterly dividend paid or
payable on a share of Common Stock on or before the applicable Dividend Payment
Date. Dividends on the Series 2 Preferred Stock shall begin to accrue and shall
be fully cumulative from the Issue Date, whether or not for any Dividend Period
or Periods there shall be funds of the Corporation legally available for the
payment of such dividends, and shall be payable quarterly, when, as and if
declared by the Board, in arrears on Dividend Payment Dates, commencing on the
first Dividend Payment Date after the Issue Date. Accrued and unpaid dividends
on shares of Series 2 Preferred Stock shall include any accrued and unpaid
dividends on the Series B Cumulative Convertible Redeemable Preferred Shares of
Beneficial Interest of Pacific Retail Trust which are exchanged by operation of
law into such shares of Series 2 Preferred Stock pursuant to the merger of
Pacific Retail Trust into the Corporation. Each dividend on the Series 2
Preferred Stock shall be payable to the holders of record of Series 2 Preferred
Stock, as they appear on the stock records of the Corporation at the close of
business on such record dates as shall be fixed by the Board. Accrued and unpaid
dividends for any past Dividend Periods may be declared and paid at any time and
for such interim periods, without reference to any regular Dividend Payment
Date, to holders of record on such date as may be fixed by the Board.
(b) The amount of dividends payable for any dividend period shorter or longer
than a full Dividend Period, on the Series 2 Preferred Stock shall be computed
on the basis of twelve 30-day months and a 360-day year. Holders of Series 2
Preferred Stock shall not be entitled to any dividends, whether payable in cash,
property or stock, in excess of current and cumulative but unpaid dividends, as
herein provided, on the Series 2 Preferred Stock. No interest, or sum of money
in lieu of interest, shall be payable in respect of any dividend payment or
payments on the Series 2 Preferred Stock that may be in arrears.
(c) So long as any Series 2 Preferred Stock is outstanding, no dividends, except
as described in the immediately following sentence, shall be declared or paid or
set apart for payment on any class or series of Parity Stock for any period
unless full cumulative dividends have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart for such
payment on the Series 2 Preferred Stock for all Dividend Periods terminating on
or prior to the Dividend Payment Date on such class or series of Parity Stock.
When dividends are not paid in full or a sum sufficient for such payment is not
set apart, as aforesaid, all dividends declared upon Series 2 Preferred Stock
and all dividends declared upon any other class or series of Parity Stock shall
be declared ratably in proportion to the respective amounts of dividends
accumulated and unpaid on the Series 2 Preferred Stock and accumulated and
unpaid on such Parity Stock.
(d) So long as any Series 2 Preferred Stock is outstanding, no dividends (other
than dividends or distributions paid solely in shares of, or options, warrants
or rights to subscribe for or purchase shares of, Fully Junior Stock) shall be
declared or paid or set apart for payment or other distribution declared or made
upon Junior Stock, nor shall any Junior Stock be redeemed, purchased or
otherwise acquired (other than a redemption, purchase or other acquisition of
Common Stock made for purposes of an employee incentive or benefit plan of the
Corporation or any subsidiary) for any consideration (or any moneys be paid to
or made available for a sinking fund for the redemption of any shares of any
such stock) by the Corporation, directly or indirectly (except by conversion
into or exchange for Fully Junior Stock), unless in each case (i) the full
cumulative dividends on all outstanding Series 2 Preferred Stock and any other
Parity Stock of the Corporation shall have been paid or declared and set apart
for payment for all past Dividend Periods with respect to the Series 2 Preferred
Stock and all past dividend periods with respect to such Parity Stock and (ii)
sufficient funds shall have been paid or declared and set apart for the payment
of the dividend for the current Dividend Period with respect to the Series 2
Preferred Stock and the current dividend period with respect to such Parity
Stock.
Section 4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, before any payment or
distribution of the assets of the Corporation (whether capital or surplus) shall
be made to or set apart for payment to the holders of Junior Stock or Fully
Junior Stock, the holders of the Series 2 Preferred Stock shall be entitled to
receive $20.8333 per share of Series 2 Preferred Stock plus an amount equal to
all dividends declared but unpaid thereon to the date of final distribution to
such holders; but such holders shall not be entitled to any further payment. If,
upon any liquidation, dissolution or winding up of the Corporation, the assets
of the Corporation, or proceeds thereof, distributable among the holders of the
Series 2 Preferred Stock shall be insufficient to pay in full the preferential
amount aforesaid and liquidating payments on any other shares of any class or
series of Parity Stock, then such assets, or the proceeds thereof, shall be
distributed among the holders of Series 2 Preferred Stock and any such other
Parity Stock ratably in accordance with the respective amounts that would be
payable on such Series 2 Preferred Stock and any such other Parity Stock if all
amounts payable thereon were paid in full. For the purposes of this Section 4,
(i) a consolidation or merger of the Corporation with one or more Persons, (ii)
a sale or transfer of all or substantially all of the Corporation's assets or
(iii) a statutory share exchange shall not be deemed to be a liquidation,
dissolution or winding up, voluntary or involuntary, of the Corporation.
(b) Subject to the rights of the holders of shares of any series or class or
classes of shares of capital stock ranking on a parity with or prior to the
Series 2 Preferred Stock upon liquidation, dissolution or winding up, upon any
liquidation, dissolution or winding up of the Corporation, after payment shall
have been made in full to the holders of the Series 2 Preferred Stock, as
provided in this Section 4, any other series or class or classes of Junior Stock
or Fully Junior Stock shall, subject to the respective terms and provisions (if
any) applying thereto, be entitled to receive any and all assets remaining to be
paid or distributed, and the holders of the Series 2 Preferred Stock shall not
be entitled to share therein.
Section 5. Redemption at the Option of the Corporation.
(a) The Series 2 Preferred Stock shall not be redeemable by the Corporation
prior to October 20, 2010. On and after October 20, 2010, the Corporation, at
its option, may redeem the Series 2 Preferred Stock, in whole at any time or
from time to time in part, at the option of the Corporation at a redemption
price of $20.8333 per share of Series 2 Preferred Stock, plus the amounts
indicated in Section 5(b).
(b) Upon any redemption of Series 2 Preferred Stock pursuant to this Section 5,
the Corporation shall pay in full any and all accrued and unpaid dividends
(without interest or sum of money in lieu of interest) for any and all Dividend
Periods ending on or prior to the Call Date. If the Call Date falls after a
dividend payment record date and prior to the corresponding Dividend Payment
Date, then each holder of Series 2 Preferred Stock at the close of business on
such dividend payment record date shall be entitled to the dividend payable on
such shares on the corresponding dividend payment date notwithstanding the
redemption of such shares before such Dividend Payment Date.
(c) If full cumulative dividends on the Series 2 Preferred Stock and any other
class or series of Parity Stock of the Corporation have not been paid or
declared and set apart for payment, the Series 2 Preferred Stock may not be
redeemed under this Section 5 in part and the Corporation may not purchase or
acquire shares of Series 2 Preferred Stock, otherwise than pursuant to a
voluntary purchase or exchange offer made on the same terms to all holders of
Series 2 Preferred Stock.
(d) Notice of the redemption of any Series 2 Preferred Stock under this Section
5 shall be mailed by first-class mail to each holder of record of Series 2
Preferred Stock to be redeemed at the address of each such holder as shown on
the Corporation's record, not less than 30 nor more than 90 days prior to the
Call Date. Neither the failure to mail any notice required by this paragraph
(d), nor any defect therein or in the mailing thereof, to any particular holder,
shall affect the sufficiency of the notice or the validity of the proceedings
for redemption with respect to the other holders. Any notice which was mailed in
the manner herein provided shall be conclusively presumed to have been duly
given on the date mailed whether or not the holder receives the notice. Each
such mailed notice shall state, as appropriate: (1) the Call Date; (2) the
number of shares of Series 2 Preferred Stock to be redeemed and, if fewer than
all the shares held by such holder are to be redeemed, the number of such shares
to be redeemed from such holder; (3) the place or places at which certificates
for such shares are to be surrendered; and (4) that dividends on the shares to
be redeemed shall cease to accrue on such Call Date except as otherwise provided
herein. Notice having been mailed as aforesaid, from and after the Call Date
(unless the Corporation shall fail to make available an amount of cash necessary
to effect such redemption), (i) except as otherwise provided herein, dividends
on the Series 2 Preferred Stock so called for redemption shall cease to accrue,
(ii) said shares shall no longer be deemed to be outstanding and (iii) all
rights of the holders thereof as holders of Series 2 Preferred Stock of the
Corporation shall cease (except the rights to convert and to receive cash
payable upon such redemption, without interest thereon, upon surrender and
endorsement of their certificates if so required and to receive any dividends
payable thereon). The Corporation's obligation to provide cash in accordance
with the preceding sentence shall be deemed fulfilled if, on or before the Call
Date, the Corporation shall deposit with a bank or trust company (which may be
an affiliate of the Corporation) that has an office in the Borough of Manhattan,
City of New York, and that has, or is an affiliate of a bank or trust company
that has, capital and surplus of at least $50,000,000, sufficient cash necessary
for such redemption, in trust, with irrevocable instructions that such cash be
applied to the redemption of the Series 2 Preferred Stock so called for
redemption. No interest shall accrue for the benefit of the holders of Series 2
Preferred Stock to be redeemed on any cash so set aside by the Corporation.
Subject to applicable escheat laws and other unclaimed property laws, any such
cash unclaimed at the end of two years from the Call Date shall revert to the
general funds of the Corporation, after which reversion the holders of such
shares so called for redemption shall look only to the general funds of the
Corporation for the payment of such cash. Notwithstanding the above, at any time
after such redemption notice is received and on or prior to the Call Date, any
holder may exercise its conversion rights under Section 6 below.
As promptly as practicable after the surrender in accordance
with said notice of the certificates for any such shares so redeemed (properly
endorsed or assigned for transfer, if the Corporation shall so require and if
the notice shall so state), such shares shall be exchanged for any cash
(including accumulated and unpaid dividends but without interest thereon) for
which such shares have been redeemed. If fewer than all the outstanding shares
of Series 2 Preferred Stock are to be redeemed, shares to be redeemed shall be
selected by the Corporation from outstanding Series 2 Preferred Stock not
previously called for redemption by lot or pro rata (as nearly as may be) or by
any other method determined by the Corporation in its sole discretion to be
equitable. If fewer than all shares of the Series 2 Preferred Stock represented
by any certificate are redeemed, then new certificates representing the
unredeemed shares shall be issued without cost to the holder thereof.
Section 6. Conversion. Holders of Series 2 Preferred Stock shall have the
right, at any time and from time to time, to convert all or a portion of such
shares into Common Stock, as follows:
(a) Subject to and upon compliance with the provisions of this Section 6, a
holder of Series 2 Preferred Stock shall have the right, at such holder's
option, at any time to convert each share of Series 2 Preferred Stock into the
number of fully paid and non-assessable shares of Common Stock obtained by
dividing the aggregate liquidation preference of such shares by the Conversion
Price (as in effect at the time and on the date provided for in the last
paragraph of paragraph (b) of this Section 6) by surrendering such shares to be
converted, such surrender to be made in the manner provided in paragraph (b) of
this Section 6.
(b) In order to exercise the conversion right, each holder of shares of Series 2
Preferred Stock to be converted shall surrender the certificate representing
such shares, duly endorsed or assigned to the Corporation or in blank, at the
office of the Transfer Agent, accompanied by written notice to the Corporation
that the holder thereof elects to convert such Series 2 Preferred Stock. Unless
the shares issuable on conversion are to be issued in the same name as the name
in which such Series 2 Preferred Stock is registered, each share surrendered for
conversion shall be accompanied by instruments of transfer, in form satisfactory
to the Corporation, duly executed by the holder or such holder's duly authorized
attorney and an amount sufficient to pay any transfer or similar tax (or
evidence reasonably satisfactory to the Corporation demonstrating that such
taxes have been paid).
Holders of Series 2 Preferred Stock at the close of business
on a dividend payment record date shall be entitled to receive the dividend
payable on such shares on the corresponding dividend payment date
notwithstanding the conversion thereof following such dividend payment record
date and on or prior to such dividend payment date. In no event shall a holder
of Series 2 Preferred Stock be entitled to receive a dividend payment on Common
Stock issued or issuable upon conversion of Series 2 Preferred Stock if such
holder is entitled to receive a dividend in respect of the Series 2 Preferred
Stock surrendered for conversion. The Corporation shall make no payment or
allowance for unpaid dividends, whether or not in arrears, on converted shares
or for dividends on the Common Stock issued upon such conversion.
As promptly as practicable after the surrender of certificates
for Series 2 Preferred Stock as aforesaid, the Corporation shall issue and shall
deliver at such office to such holder, or such holder's written order, a
certificate or certificates for the number of full shares of Common Stock
issuable upon the conversion of such shares in accordance with provisions of
this Section 6, and any fractional interest in respect of a share of Common
Stock arising upon such conversion shall be settled as provided in paragraph (c)
of this Section 6.
Each conversion shall be deemed to have been effected
immediately prior to the close of business on the date on which the certificates
for Series 2 Preferred Stock shall have been surrendered and such notice
received by the Corporation as aforesaid, and the person or persons in whose
name or names any certificate or certificates for Common Stock shall be issuable
upon such conversion shall be deemed to have become the holder or holders of
record of the shares represented thereby at such time on such date and such
conversion shall be at the Conversion Price in effect at such time on such date
unless the stock transfer books of the Corporation shall be closed on that date,
in which event such person or persons shall be deemed to have become such holder
or holders of record at the close of business on the next succeeding day on
which such stock transfer books are open, but such conversion shall be at the
Conversion Price in effect on the date on which such shares shall have been
surrendered and such notice received by the Corporation.
(c) No fractional shares or scrip representing fractions of a share of Common
Stock shall be issued upon conversion of the Series 2 Preferred Stock. Instead
of any fractional interest in a share of Common Stock that would otherwise be
deliverable upon the conversion of a share of Series 2 Preferred Stock, the
Corporation shall pay to the holder of such share an amount in cash based upon
the Current Market Price of Common Stock on the Business Day immediately
preceding the date of conversion. If more than one share shall be surrendered
for conversion at one time by the same holder, the number of full shares of
Common Stock issuable upon conversion thereof shall be computed on the basis of
the aggregate number of Series 2 Preferred Stock so surrendered.
(d) The Conversion Price shall be adjusted from time to time as follows:
(i) If the Corporation shall after the Issue Date (A) pay a
dividend or make a distribution in shares of Common Stock on its Common
Stock, (B) subdivide its outstanding shares of Common Stock into a
greater number of shares, (C) combine its outstanding shares of Common
Stock into a smaller number of shares or (D) issue any shares of Common
Stock by reclassification of its Common Stock, the Conversion Price in
effect at the opening of business on the day following the date fixed
for the determination of shareholders entitled to receive such dividend
or distribution or at the opening of business on the Business Day next
following the day on which such subdivision, combination or
reclassification becomes effective, as the case may be, shall be
adjusted so that the holder of any shares of Series 2 Preferred Stock
thereafter surrendered for conversion shall be entitled to receive the
number of shares of Common Stock that such holder would have owned or
have been entitled to receive after the happening of any of the events
described above as if such shares of Series 2 Preferred Stock had been
converted immediately prior to the record date in the case of a
dividend or distribution or the effective date in the case of a
subdivision, combination or reclassification. An adjustment made
pursuant to this subparagraph (i) shall become effective immediately
after the opening of business on the Business Day next following the
record date (except as provided in paragraph (g) below) in the case of
a dividend or distribution and shall become effective immediately after
the opening of business on the Business Day next following the
effective date in the case of a subdivision, combination or
reclassification.
(ii) If the Corporation shall issue after the Issue Date
rights, options or warrants to subscribe for or purchase Common Stock,
or to subscribe for or purchase any security convertible into Common
Stock, and the price per share for which Common Stock is issuable upon
exercise of such rights, options or warrants, or upon the conversion or
exchange of such convertible securities, is less than the lesser of the
Conversion Price then in effect and the Current Market Price per share
of Common Stock on the date such rights, options or warrants are
issued, then the Conversion Price in effect at the opening of business
on the Business Day next following such issue date shall be adjusted to
equal the price determined by multiplying (A) the Conversion Price in
effect immediately prior to the opening of business on the date for
such issuance by (B) a fraction, the numerator of which shall be the
sum of (I) the number of shares of Common Stock outstanding immediately
prior to such issuance and (II) the number of shares that the aggregate
proceeds to the Corporation from the exercise of such rights, options
or warrants for Common Stock, or in the case of rights to purchase
convertible securities, the aggregate proceeds from the exercise of
such rights, options or warrants and the subsequent conversion of such
convertible securities, would purchase at such Conversion Price or
Current Market Price, as applicable, and the denominator of which shall
be the sum of (A) the number of shares of Common Stock outstanding
immediately prior to such issuance and (B) the number of additional
shares of Common Stock offered for subscription or purchase pursuant to
such rights, options or warrants. Such adjustment shall become
effective immediately after the opening of business on the day next
following such issue date (except as provided in paragraph (g) below).
In determining whether any rights, options or warrants entitle the
holders of Common Stock to subscribe for or purchase Common Stock or
any security convertible into or exchangeable for Common Stock at less
than such Conversion Price or Current Market Price, as applicable,
there shall be taken into account any consideration received by the
Corporation upon issuance and upon exercise of such rights, options or
warrants, and in the case of rights, options or warrants to subscribe
for or purchase convertible securities, upon the subsequent conversion
of such securities, the value of such consideration, if other than
cash, to be determined in good faith by the Board. In the event that
the securities referenced in this subparagraph (ii) are only issued to
all holders of Common Stock, no adjustment shall be made to the
Conversion Price under this subparagraph (ii) if the Corporation shall
issue to all holders of Series 2 Preferred Stock, the same number of
rights, options or warrants to subscribe for or purchase Common Stock
or any security convertible into or exchangeable for Common Stock, as
those issued to holders of Common Stock, based upon the number of
shares of Common Stock into which each share of Series 2 Preferred
Stock is then convertible.
(iii) If the Corporation shall issue after the Issue Date any
shares of capital stock or security convertible or exchangeable for
Common Stock (excluding rights, options or warrants referred to in
subparagraph (ii) above) and the price per share for which Common Stock
is issuable upon the conversion or exchange of such convertible or
exchangeable securities is less than the lesser of the Conversion Price
then in effect and the Current Market Price per share of Common Stock
on the date such convertible or exchangeable securities are issued,
then the Conversion Price in effect at the opening of business on the
Business Day next following such issue date shall be adjusted to equal
the price determined by multiplying (A) the Conversion Price in effect
immediately prior to the opening of business on the Business Day next
following the issue date by (B) a fraction, the numerator of which
shall be the sum of (I) the number of shares of Common Stock
outstanding on the close of business on the Business Day immediately
preceding the issue date and (II) the number of shares of Common Stock
that the aggregate proceeds to the Corporation from the conversion into
or in exchange for Common Stock would purchase at such Conversion Price
or Current Market Price, as applicable, and the denominator of which
shall be the sum of (A) the number of shares of Common Stock
outstanding on the close of business on the Business Day immediately
preceding the issue date and (B) the number of additional shares of
Common Stock issuable upon conversion or exchange of such convertible
or exchangeable securities. Such adjustment shall become effective
immediately after the opening of business on the day next following
such issue date (except as provided in paragraph (g) below). In
determining whether any securities are convertible for or exchangeable
into Common Stock at less than such Conversion Price or Current Market
Price, as applicable, there shall be taken into account any
consideration received by the Corporation upon issuance and upon
conversion or exchange of such convertible or exchangeable securities,
the value of such consideration, if other than cash, to be determined
in good faith by the Board.
(iv) If the Corporation shall distribute to all holders of its
Common Stock any shares of capital stock of the Corporation (other than
Common Stock) or evidence of its indebtedness or assets (excluding cash
dividends or distributions) or rights, options or warrants to subscribe
for or purchase any of its securities (excluding those rights, options
and warrants referred to in subparagraph (ii) above and excluding those
convertible or exchangeable securities referred to in subparagraph
(iii) above (any of the foregoing being hereinafter in this
subparagraph (iv) collectively called the "Securities" and individually
a "Security"), then in each such case the Conversion Price shall be
adjusted so that it shall equal the price determined by multiplying (A)
the Conversion Price in effect immediately prior to the close of
business on the date fixed for the determination of shareholders
entitled to receive such distribution by (B) a fraction, the numerator
of which shall be the lesser of the Conversion Price then in effect and
the Current Market Price per share of Common Stock on the record date
mentioned below less the then fair market value (as determined in good
faith by the Board) of the portion of the shares of capital stock or
assets or evidences of indebtedness so distributed or of such rights,
options or warrants applicable to one share of Common Stock, and the
denominator of which shall be the lesser of the Conversion Price then
in effect and the Current Market Price per share of Common Stock on the
record date mentioned below. Such adjustment shall become effective
immediately at the opening of business on the Business Day next
following (except as provided in paragraph (g) below) the record date
for the determination of shareholders entitled to receive such
distribution. For the purposes of this clause (iv), the distribution of
a Security, which is distributed not only to the holders of the Common
Stock on the date fixed for the determination of shareholders entitled
to such distribution of such Security, but also is distributed with
each share of Common Stock delivered to a Person converting Series 2
Preferred Stock after such determination date, shall not require an
adjustment of the Conversion Price pursuant to this clause (iv);
provided that on the date, if any, on which a Person converting a share
of Series 2 Preferred Stock would no longer be entitled to receive such
Security with a share of Common Stock (other than as a result of the
termination of all such Securities), a distribution of such Securities
shall be deemed to have occurred and the Conversion Price shall be
adjusted as provided in this clause (iv) (and such day shall be deemed
to be "the date fixed for the determination of the shareholders
entitled to receive such distribution" and "the record date" within the
meaning of the two preceding sentences).
(v) No adjustment in the Conversion Price shall be required
unless such adjustment would require a cumulative increase or decrease
of at least 1% in such price; provided, however, that any adjustments
that by reason of this subparagraph (v) are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment until made; and provided, further, that any adjustment shall
be required and made in accordance with the provisions of this Section
6 (other than this subparagraph (v)) not later than such time as may be
required in order to preserve the tax-free nature of a distribution to
the holders of Common Stock. Notwithstanding any other provisions of
this Section 6, the Corporation shall not be required to make any
adjustment of the Conversion Price for the issuance of any Common Stock
pursuant to (A) any plan providing for the reinvestment of dividends or
interest payable on securities of the Corporation and the investment of
additional optional amounts in Common Stock under such plan or (B) any
right, option or warrant to acquire Common Stock granted to any
employee (as such term is defined in General Instruction A to Form S-8
under the Securities Act) of the Corporation under a plan providing for
the granting of such securities to employees; provided, however, that
such plan is approved by the shareholders and the aggregate amount of
Common Stock issuable under the rights, options and warrants granted
under such plan shall not exceed 20% of the shares of Common Stock
issued and outstanding on the date such plan is approved by
shareholders. In addition, the Corporation shall not be required to
make any adjustment of the Conversion Price for the issuance of any
Common Stock or any other class or series of shares of capital stock
pursuant to the terms of that certain Shareholders' Agreement among
Pacific Retail Trust (to which the Corporation is successor by merger),
Security Capital Holdings S.A. and Opportunity Capital Partners Limited
Partnership. All calculations under this Section 6 shall be made to the
nearest cent (with $.005 being rounded upward) or to the nearest
one-tenth of a share (with .05 of a share being rounded upward), as the
case may be. Anything in this paragraph (d) to the contrary
notwithstanding, the Corporation shall be entitled, to the extent
permitted by law, to make such reductions in the Conversion Price, in
addition to those required by this paragraph (d), as it in its
discretion shall determine to be advisable in order that any share
dividends, subdivision of shares, reclassification or combination of
shares, distribution of rights, options or warrants to purchase stock
or securities, or a distribution of other assets (other than cash
dividends) hereafter made by the Corporation to its shareholders shall
not be taxable.
(e) If the Corporation shall be a party to any transaction (including without
limitation a merger, consolidation, statutory share exchange, self tender offer
for all or substantially all Common Stock, sale of all or substantially all of
the Corporation's assets or recapitalization of the Common Stock and excluding
any transaction as to which subparagraph (d)(i) of this Section 6 applies) (each
of the foregoing being referred to herein as a "Transaction"), in each case as a
result of which all or substantially all shares of Common Stock are converted
into the right to receive stock, securities or other property (including cash or
any combination thereof) of another Person, each share of Series 2 Preferred
Stock, which is not converted into the right to receive stock, securities or
other property of such Person prior to such Transaction (and each share of
Series 2 Preferred Stock issuable after such Transaction upon conversion of
securities convertible into Series 2 Preferred Stock), shall thereafter be
convertible into the kind and amount of shares of stock, securities and other
property (including cash or any combination thereof) receivable upon the
consummation of such Transaction by a holder of that number of shares of Common
Stock into which one share of Series 2 Preferred Stock was convertible
immediately prior to such Transaction, assuming such holder of Common Stock (i)
is not a Person with which the Corporation consolidated or into which the
Corporation merged or which merged into the Corporation or to which such sale or
transfer was made, as the case may be ("Constituent Person"), or an affiliate of
a Constituent Person and (ii) failed to exercise his rights of election, if any,
as to the kind or amount of stock, securities and other property (including
cash) receivable upon such Transaction (provided that if the kind or amount of
stock, securities and other property (including cash) receivable upon such
Transaction is not the same for each share of Common Stock held immediately
prior to such Transaction by other than a Constituent Person or an affiliate
thereof and in respect of which such rights of election shall not have been
exercised ("Non-Electing Share"), then for the purpose of this paragraph (e) the
kind and amount of stock, securities and other property (including cash)
receivable upon such Transaction by each Non-Electing Share shall be deemed to
be the kind and amount so receivable per share by a plurality of the
Non-Electing Shares). The Corporation shall not be a party to any Transaction
unless the terms of such Transaction are consistent with the provisions of this
paragraph (e), and it shall not consent or agree to the occurrence of any
Transaction until the Corporation has entered into an agreement with the
successor or purchasing entity, as the case may be, for the benefit of the
holders of the Series 2 Preferred Stock (and securities convertible into Series
2 Preferred Stock) that will contain provisions enabling the holders of the
Series 2 Preferred Stock that remain outstanding (or are issuable upon
conversion of securities convertible into Series 2 Preferred Stock) after such
Transaction to convert into the consideration received by holders of Common
Stock at the Conversion Price in effect immediately prior to such Transaction.
The provisions of this paragraph (e) shall similarly apply to successive
Transactions.
(f) Whenever the Conversion Price is adjusted as herein provided, the
Corporation shall promptly mail notice of such adjustment of the Conversion
Price to each holder of Series 2 Preferred Stock at such holder's last address
as shown on the share records of the Corporation.
(g) In any case in which paragraph (d) of this Section 6 provides that an
adjustment shall become effective on the day next following the record date for
an event, the Corporation may defer until the occurrence of such event (A)
issuing to the holder of any Series 2 Preferred Stock converted after such
record date and before the occurrence of such event the additional shares of
Common Stock issuable upon such conversion by reason of the adjustment required
by such event over and above the shares of Common Stock issuable upon such
conversion before giving effect to such adjustment and (B) paying to such holder
any amount of cash in lieu of any fraction pursuant to paragraph (c) of this
Section 6.
(h) There shall be no adjustment of the Conversion Price in case of the issuance
of any shares of capital stock of the Corporation in a reorganization,
acquisition or other similar transaction except as specifically set forth in
this Section 6. If any action or transaction would require adjustment of the
Conversion Price pursuant to more than one paragraph of this Section 6, only one
adjustment shall be made and such adjustment shall be the adjustment that yields
the highest absolute value.
(i) The Corporation covenants that it will at all times reserve and keep
available, free from preemptive rights, out of the aggregate of its authorized
but unissued Common Stock, for the purpose of effecting conversion of the Series
2 Preferred Stock, the full number of shares of Common Stock deliverable upon
the conversion of all outstanding Series 2 Preferred Stock not theretofore
converted. For purposes of this paragraph (i), the number of shares of Common
Stock that shall be deliverable upon the conversion of all outstanding Series 2
Preferred Stock shall be computed as if at the time of computation all such
outstanding shares were held by a single holder.
The Corporation covenants that any shares of Common Stock
issued upon conversion of the Series 2 Preferred Stock shall be validly issued,
fully paid and non-assessable. Before taking any action that would cause an
adjustment reducing the Conversion Price below the then-par value of the Common
Stock deliverable upon conversion of the Series 2 Preferred Stock, the
Corporation will take any corporate action that, in the opinion of its counsel,
may be necessary in order that the Corporation may validly and legally issue
fully paid and non-assessable shares of Common Stock at such adjusted Conversion
Price.
Prior to the delivery of any securities that the Corporation
shall be obligated to deliver upon conversion of the Series 2 Preferred Stock,
the Corporation shall endeavor to comply with all federal and state laws and
regulations thereunder requiring the registration of such securities with, or
any approval of or consent to the delivery thereof by, any governmental
authority.
(j) The Corporation will pay any and all documentary stamp or similar issue or
transfer taxes payable in respect of the issue or delivery of Common Stock or
other securities or property on conversion of the Series 2 Preferred Stock
pursuant hereto; provided, however, that the Corporation shall not be required
to pay any tax that may be payable in respect of any transfer involved in the
issue or delivery of Common Stock or other securities or property in a name
other than that of the holder of the Series 2 Preferred Stock to be converted,
and no such issue or delivery shall be made unless and until the person
requesting such issue or delivery has paid to the Corporation the amount of any
such tax or established, to the reasonable satisfaction of the Corporation, that
such tax has been paid.
Section 7. Shares to Be Retired. All shares of Series 2 Preferred Stock which
shall have been issued and reacquired in any manner by the Corporation shall be
restored to the status of authorized but unissued shares of Preferred Stock of
the Corporation, without designation as to class or series.
Section 8. Ranking. Any class or series of shares of capital stock of the
Corporation shall be deemed to rank:
(a) prior to the Series 2 Preferred Stock, as to the payment of dividends and as
to distribution of assets upon liquidation, dissolution or winding up, if the
holders of such class or series shall be entitled to the receipt of dividends or
of amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of Series 2 Preferred
Stock;
(b) on a parity with the Series 2 Preferred Stock, as to the payment of
dividends and as to distribution of assets upon liquidation, dissolution or
winding up, whether or not the dividend rates, dividend payment dates or
liquidation prices per share thereof shall be different from those of the Series
2 Preferred Stock, if the holders of such class or series and the Series 2
Preferred Stock shall be entitled to the receipt of dividends and of amounts
distributable upon liquidation, dissolution or winding up in proportion to their
respective amounts of accrued and unpaid dividends per share or liquidation
preferences, without preference or priority one over the other ("Parity Stock");
(c) junior to the Series 2 Preferred Stock, as to the payment of dividends or as
to the distribution of assets upon liquidation, dissolution or winding up, if
such class or series shall be Junior Stock; and
(d) junior to the Series 2 Preferred Stock, as to the payment of dividends and
as to the distribution of assets upon liquidation, dissolution or winding up, if
such class or series shall be Fully Junior Stock.
The Corporation's Series 1 Cumulative Convertible Redeemable
Preferred Stock and the Corporation's 8.125% Series A Cumulative Redeemable
Preferred Stock shall constitute Parity Stock.
Section 9. Voting.
(a) Each issued and outstanding share of Series 2 Preferred Stock shall entitle
the holder thereof to the number of votes per share of Common Stock into which
such share of Series 2 Preferred Stock is convertible (as of the close of
business on the record date for determination of shareholders entitled to vote
on a matter) on all matters presented for a vote of shareholders of the
Corporation and, except as required by applicable law and subject to the further
provisions of this Section 9, the Series 2 Preferred Stock shall be voted
together with all issued and outstanding Common Stock and Series 1 Preferred
Stock voting as a single class.
(b) If and whenever twelve consecutive quarterly dividends payable on the Series
2 Preferred Stock or any series or class of Parity Stock shall be in arrears
(which shall, with respect to any such quarterly dividend, mean that any such
dividend has not been paid in full), whether or not earned or declared, the
number of directors then constituting the Board shall be increased by one and
the holders of Series 2 Preferred Stock, together with the holders of shares of
every other series of Parity Stock, including the Series 1 Preferred Stock (any
such other series, the "Voting Preferred Stock"), voting as a single class
regardless of series, shall be entitled to elect, at a special meeting of the
holders of the Series 2 Preferred Stock and the Voting Preferred Stock called as
hereinafter provided, the additional director to serve on the Board. Whenever
all arrearages in dividends on the Series 2 Preferred Stock and the Voting
Preferred Stock then outstanding shall have been paid and dividends thereon for
the current quarterly dividend period shall have been paid or declared and set
apart for payment, then the right of the holders of the Series 2 Preferred Stock
and the Voting Preferred Stock to elect such additional director shall cease
(but subject always to the same provision for the vesting of such voting rights
in the case of any similar future arrearages in twelve quarterly dividends), and
the terms of office of the person elected as director by the holders of the
Series 2 Preferred Stock and the Voting Preferred Stock shall forthwith
terminate and the number of members of the Board shall be reduced accordingly.
At any time after such voting power shall have been so vested in the holders of
Series 2 Preferred Stock and the Voting Preferred Stock (or if any vacancy shall
occur in respect of the director previously elected by the holders of the Series
2 Preferred Stock and the Voting Preferred Stock), the secretary of the
Corporation shall call a special meeting of the holders of the Series 2
Preferred Stock and of the Voting Preferred Stock for the election of the
director to be elected by them as herein provided, such call to be made by
notice similar to that provided in the Bylaws of the Corporation for a special
meeting of the shareholders or as required by law. If any such special meeting
required to be called as above provided shall not be called by the secretary
within 30 days after the end of the most recent Dividend Period during which the
right to elect such additional director arose or such vacancy occurred, then any
holder of Series 2 Preferred Stock may call such meeting, upon the notice above
provided, and for that purpose shall have access to the stock records of the
Corporation. The director elected at any such special meeting shall hold office
until the next annual meeting of the shareholders or special meeting held in
lieu thereof if such office shall not have previously terminated as above
provided.
(c) So long as any Series 2 Preferred Stock is outstanding, in addition to any
other vote or consent of shareholders required by law or by the Charter, the
affirmative vote of at least 66 2/3% of the votes entitled to be cast by the
holders of the Series 2 Preferred Stock, together with the holders of Voting
Preferred Stock, at the time outstanding, acting as a single class regardless of
series, given in person or by proxy, either in writing without a meeting or by
vote at any meeting called for the purpose, shall be necessary for effecting or
validating:
(i) Any amendment, alteration or repeal of any of the
provisions of the Charter or these Articles of Amendment that
materially and adversely affects the voting powers, rights or
preferences of the holders of the Series 2 Preferred Stock or the
Voting Preferred Stock; provided, however, that the amendment of the
provisions of the Charter so as to authorize or create or to increase
the authorized amount of, any Fully Junior Stock, Junior Stock that is
not senior in any respect to the Series 2 Preferred Stock, or any stock
of any class ranking on a parity with the Series 2 Preferred Stock or
the Voting Preferred Stock shall not be deemed to materially adversely
affect the voting powers, rights or preferences of the holders of
Series 2 Preferred Stock; and provided, further, that if any such
amendment, alteration or repeal would materially and adversely affect
any voting powers, rights or preferences of the Series 2 Preferred
Stock or another series of Voting Preferred Stock that are not enjoyed
by some or all of the other series otherwise entitled to vote in
accordance herewith, the affirmative vote of at least 66 2/3% of the
votes entitled to be cast by the holders of all series similarly
affected, similarly given, shall be required in lieu of the affirmative
vote of at least 66 2/3% of the votes entitled to be cast by the
holders of the Series 2 Preferred Stock and the Voting Preferred Stock
otherwise entitled to vote in accordance herewith; or
(ii) A share exchange that affects the Series 2 Preferred
Stock, a consolidation with or merger of the Corporation into another
Person, or a consolidation with or merger of another Person into the
Corporation, unless in each such case each share of Series 2 Preferred
Stock (A) shall remain outstanding without a material and adverse
change to its terms and rights or (B) shall be converted into or
exchanged for convertible preferred stock of the surviving entity
having preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms or
conditions of redemption thereof identical to that of a share of Series
2 Preferred Stock (except for changes that do not materially and
adversely affect the holders of the Series 2 Preferred Stock); or
(iii) The authorization or creation of, or the increase in the
authorized amount of, any shares of any class or any security
convertible into shares of any class ranking prior to the Series 2
Preferred Stock in the distribution of assets on any liquidation,
dissolution or winding up of the Corporation or in the payment of
dividends.
(d) For purposes of voting in respect to those matters referred to in
subparagraphs (b) and (c) of this Section 9, unless otherwise provided under
applicable law, each Series 2 Preferred Stock shall have one (1) vote per share,
except that when any other series of Preferred Stock shall have the right to
vote with the Series 2 Preferred Stock as a single class on any matter, then the
Series 2 Preferred Stock and such other series shall have with respect to such
matters one (1) vote per $20.8333 of stated liquidation preference. Except as
otherwise required by applicable law or as set forth herein, the Series 2
Preferred Stock shall not have any relative, participating, optional or other
special voting rights and powers other than as set forth herein, and the consent
of the holders thereof shall not be required for the taking of any corporate
action.
Section 10. Record Holders. The Corporation and the Transfer Agent may deem and
treat the record holder of any shares of Series 2 Preferred Stock as the true
and lawful owner thereof for all purposes, and neither the Corporation nor the
Transfer Agent shall be affected by any notice to the contrary.
Section 11. Sinking Fund. The Series 2 Preferred Stock shall not be
entitled to the benefits of any retirement or sinking fund.
THIRD: The Series 2 Preferred Stock has been classified and designated by
the Board of Directors under the authority contained in Section 4.2 of the
Charter.
FOURTH: These Articles of Amendment have been approved by the Board of
Directors in the manner and by the vote required by law.
FIFTH: The undersigned President of the Corporation acknowledges these
Articles of Amendment to be the corporate act of the Corporation and, as to all
matters or facts required to be verified under oath, the undersigned President
acknowledges that to the best of her knowledge, information and belief, these
matters and facts are true in all material respects and that this statement is
made under the penalties for perjury.
[Signature Page Follows]
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused these Articles
of Amendment to be executed under seal in its name and on its behalf by its
President and attested to by its Secretary on this 26th day of February, 1999.
REGENCY REALTY CORPORATION
By: /s/ Mary Lou Rogers
Name: Mary Lou Rogers
Title: President
[SEAL]
ATTEST:
/s/ J. Christian Leavitt
Name: J. Christian Leavitt
Title: Secretary
<PAGE>
EXHIBIT "C'
004.160941.1
AMENDMENT TO ARTICLES OF INCORPORATION
OF
REGENCY REALTY CORPORATION
This corporation was incorporated on July 8, 1993 effective July 9,
1993 under the name Regency Realty Corporation. Pursuant to Sections 607.1001,
607.1003, 607.1004 and 607.1006 of the Florida Business Corporation Act,
amendments to Section 5.1(r) and Section 5.14 of the Articles of Incorporation
of Regency Realty Corporation were approved by the Board of Directors at a
meeting held on September 23, 1998, and adopted by the shareholders of the
corporation on February 26, 1999.
Section 5.1(r) is hereby amended in its entirety as follows:
(r) "Special Shareholder Limit" for a Special Shareholder
shall initially mean 60% of the outstanding shares of Common Stock, on a fully
diluted basis, of the Corporation; provided, however, that if at any time after
the effective date of this Amendment a Special Stockholder's ownership of Common
Stock, on a fully diluted basis, of the Corporation shall have been below 45%
for a continuous period of 180 days, then the definition of "Special Shareholder
Limit" shall mean 49% of the outstanding shares of Common Stock, on a fully
diluted basis, of the Corporation. After any adjustment pursuant to Section 5.8,
the definition of "Special Shareholder Limit" shall mean the percentage of the
outstanding Common Stock as so adjusted, and the definition of "Special
Shareholder Limit" shall also be appropriately and equitably adjusted in the
event of a repurchase of shares of Common Stock of the Corporation or other
reduction in the number of outstanding shares of Common Stock of the
Corporation. Notwithstanding the foregoing, if any Person and its Affiliates
(taken as a whole), other than the Special Shareholder, shall directly or
indirectly own in the aggregate more than 45% of the outstanding shares of
Common Stock, on a fully diluted basis, of the Corporation, the definition of
"Special Shareholder Limit" shall be revised in accordance with Section 5.8 of
the Stockholders Agreement. Notwithstanding the foregoing provisions of this
definition, if, as the result of any Special Shareholder's ownership (taking
into account for this purpose constructive ownership under Section 544 of the
Code, as modified by Section 856(h)(1)(B) of the Code) of shares of Capital
Stock, any Person who is an individual within the meaning of Section 542(a)(2)
of the Code (taking into account the ownership attribution rules under Section
544 of the Code, as modified by Section 856(h) of the Code) and who is the
Beneficial Owner of any interest in a Special Shareholder would be considered to
Beneficially Own more than 9.8% of the outstanding shares of Capital Stock, then
unless such individual reduces his or her interest in the Special Shareholder so
that such Person no longer Beneficially Owns more than 9.8% of the outstanding
shares of Capital Stock, the Special Shareholder Limit shall be reduced to such
percentage as would result in such Person not being considered to Beneficially
Own more than 9.8% of the outstanding Shares of Capital Stock. Notwithstanding
anything contained herein to the contrary, in no event shall the Special
Shareholder Limit be reduced below the Ownership Limit. At the request of the
Special Shareholders, the Secretary of the Corporation shall maintain and, upon
request, make available to each Special Shareholder a schedule which sets forth
the then current Special Shareholder Limits for each Special Shareholder.
Section 5.14 is hereby amended in its entirety as follows:
Section 5.14 Certain Transfers to Non-U.S. Persons Void.
(a) At any time that Non-U.S. Persons (including Special Shareholders who will
at all times be presumed to be Non-U.S. Persons) own directly or indirectly 50%
or more of the fair market value of the issued and outstanding shares of Capital
Stock of the Corporation, any Transfer of shares of Capital Stock of the
Corporation by any Person (other than a Special Shareholder) on or after the
effective date of this Amendment that results in such shares being owned
directly or indirectly by a Non-U.S. Person (other than a Special Shareholder)
shall be void ab initio to the fullest extent permitted under applicable law and
the intended transferee shall be deemed never to have had an interest therein.
(b) At any time that Non-U.S. Persons (including Special Shareholders who will
at all times be presumed to be Non-U.S. Persons) own directly or indirectly less
than 50% of the fair market value of the issued and outstanding shares of
Capital Stock of the Corporation, any Transfer of shares of Capital Stock of the
Corporation by any Person (other than a Special Shareholder) to any Person on or
after the effective date of this Amendment shall be void ab initio to the
fullest extent permitted under applicable law and the intended transferee shall
be deemed never to have had an interest therein if such Transfer
(i) occurs prior to the 10% Termination Date and results in the
fair market value of the shares of Capital Stock of the
Corporation owned directly or indirectly by Non-U.S. Persons
(other than Special Shareholders) comprising 4.9 percent
(4.9%) or more of the fair market value of the issued and
outstanding shares of Capital Stock of the Corporation; or
(ii) results in the fair market value of the shares of Capital
Stock of the Corporation owned directly or indirectly by
Non-U.S. Persons (including Special Shareholders who will at
all times be presumed to be Non-U.S. Persons) comprising fifty
percent (50%) or more of the fair market value of the issued
and outstanding shares of Capital Stock the Corporation.
(c) If any of the foregoing provisions is determined to be void or invalid by
virtue of any legal decision, statute, rule or regulation, then the shares of
Capital Stock of the Corporation held or purported to be held by the transferee
shall, automatically and without the necessity of any action by the Board of
Directors or otherwise:
(i) be prohibited from being voted;
(ii) not be entitled to dividends with respect thereto;
(iii) be considered held in trust by the transferee for the benefit
of the Corporation and shall be subject to the provisions of
Section 5.3(c) as if such shares of Capital Stock were the
subject of a Transfer that violates Section 5.2; and
(iv) not be considered outstanding for the purpose of determining a quorum
at any meeting of shareholders.
(d) The Special Shareholders may, in their sole discretion, with prior notice to
the Board of Directors, waive, alter or revise in writing all or any portion of
the Transfer restrictions set forth in this Section 5.14 from and after the date
on which such notice is given, on such terms and conditions as they in their
sole discretion determine.
IN WITNESS WHEREOF, the undersigned President of this corporation has
executed these Articles of Amendment this 26th day of February, 1999.
/s/ Mary Lou Rogers
Mary Lou Rogers, President
<PAGE>
004.160941.1
11
004.160941.1
ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
AMENDING AND RESTATING THE DESIGNATION OF THE PREFERENCES,
RIGHTS AND LIMITATIONS OF 1,600,000 SHARES OF
8.125% SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business
Corporation Act ("FBCA"), Regency Realty Corporation, a Florida corporation (the
"Corporation"), does hereby certify that the Articles of Amendment to the
Articles of Incorporation of the Corporation Designating the Preferences, Rights
and Limitations of 1,600,000 shares of 8.125% Series A Cumulative Redeemable
Preferred Stock, as filed in the Office of the Florida Secretary of State on
June 24, 1998, shall be amended and restated in its entirety as follows:
FIRST: Pursuant to the authority expressly vested in the Board
of Directors of the Corporation by Section 4.2 of the Amended and Restated
Articles of Incorporation of the Corporation (the "Charter") and Section
607.0602 of the FBCA, the Board of Directors of the Corporation (the "Board of
Directors"), by resolutions duly adopted on May 26, 1998 has classified
1,600,000 shares of the authorized but unissued Preferred Stock par value $.01
per share ("Preferred Stock") as a separate class of Preferred Stock, authorized
the issuance of a maximum of 1,600,000 shares of such class of Preferred Stock,
set certain of the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications, terms and conditions
of redemption and other terms and conditions of such class of Preferred Stock,
and pursuant to the powers contained in the Bylaws of the Corporation and the
FBCA, appointed a committee (the "Committee") of the Board of Directors and
delegated to the Committee, to the fullest extent permitted by the FBCA and the
Charter and Bylaws of the Corporation, all powers of the Board of Directors with
respect to designating, and setting all other preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of redemption of, such
class of Preferred Stock determining the number of shares of such class of
Preferred Stock (not in excess of the aforesaid maximum number) to be issued and
the consideration and other terms and conditions upon which such shares of such
class of Preferred Stock are to be issued. Shareholder approval was not required
under the Charter with respect to such designation.
SECOND: Pursuant to the authority conferred upon the Committee
as aforesaid, the Committee has unanimously adopted resolutions designating the
aforesaid class of Preferred Stock as the "8.125% Series A Cumulative Redeemable
Preferred Stock," setting the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such 8.125% Series A
Cumulative Redeemable Preferred Stock (to the extent not set by the Board of
Directors in the resolutions referred to in Article FIRST of these Articles of
Amendment) and authorizing the issuance of up to 1,600,000 shares of 8.125%
Series A Cumulative Redeemable Preferred Stock.
THIRD: Pursuant to the authority conferred upon the Committee,
the Committee has, by unanimous written consent dated September 29, 1999,
adopted resolutions amending and restating the preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends,
qualifications, terms and conditions of redemption and other terms and
conditions of such 8.125% Series A Cumulative Redeemable Preferred Stock (to the
extent not set by the Board of Directors in the resolutions referred to in
Article FIRST of these Articles of Amendment). There are no shares of 8.125%
Series A Cumulative Redeemable Preferred Stock outstanding and, accordingly, no
shareholder approval was required. The class of Preferred Stock of the
Corporation created by the resolutions duly adopted by the Board of Directors of
the Corporation and by the Committee and referred to in Articles FIRST and
SECOND of these Articles of Amendment and amended hereby shall have the
following designation, number of shares, preferences, conversion and other
rights, voting powers, restrictions and limitation as to dividends,
qualifications, terms and conditions of redemption and other terms and
conditions:
Section 1. Designation and Number. A series of Preferred
Stock, designated the "8.125% Series A Cumulative Redeemable Preferred Stock"
(the "Series A Preferred Stock") is hereby established. The number of shares of
Series A Preferred Stock shall be 1,600,000.
Section 2. Rank. The Series A Preferred Stock will, with
respect to distributions or rights upon voluntary or involuntary liquidation,
winding-up or dissolution of the Corporation, or both, rank senior to all
classes or series of Common Stock (as defined in the Charter) and to all classes
or series of equity securities of the Corporation now or hereafter authorized,
issued or outstanding, other than any class or series of equity securities of
the Corporation expressly designated as ranking on a parity with or senior to
the Series A Preferred Stock as to distributions or rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the Corporation, or both.
For purposes of these Articles of Amendment, the term "Parity Preferred Stock"
shall be used to refer to any class or series of equity securities of the
Corporation now or hereafter authorized, issued or outstanding expressly
designated by the Corporation to rank on a parity with Series A Preferred Stock
with respect to distributions or rights upon voluntary or involuntary
liquidation, winding-up or dissolution of the Corporation, or both, as the
context may require, whether or not the dividend rates, dividend payment dates
or redemption or liquidation prices per share or conversion rights or exchange
rights shall be different from those of the Series A Preferred Stock. The term
"equity securities" does not include debt securities, which will rank senior to
the Series A Preferred Stock prior to conversion.
Section 3. Distributions. (a) Payment of Distributions.
Subject to the rights of holders of Parity Preferred Stock as to the payment of
distributions and holders of equity securities issued after the date hereof in
accordance herewith ranking senior to the Series A Preferred Stock as to payment
of distributions, holders of Series A Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors of the Corporation,
out of funds legally available for the payment of distributions, cumulative cash
distributions at the rate per annum of 8.125% of the $50.00 liquidation
preference per share of Series A Preferred Stock. Such distributions shall be
cumulative, shall accrue from the original date of issuance and will be payable
in cash (A) quarterly in arrears, on or before March 31, June 30, September 30
and December 31 of each year commencing on the first of such dates to occur
after the original date of issuance and, (B) in the event of a redemption, on
the redemption date (each a "Preferred Stock Distribution Payment Date"). The
amount of the distribution payable for any period will be computed on the basis
of a 360-day year of twelve 30-day months and for any period shorter than a full
quarterly period for which distributions are computed, the amount of the
distribution payable will be computed on the basis of the actual number of days
elapsed in such a 30-day month. If any date on which distributions are to be
made on the Series A Preferred Stock is not a Business Day (as defined herein),
then payment of the distribution to be made on such date will be made on the
next succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. Distributions on the Series A Preferred Stock will be made to the
holders of record of the Series A Preferred Stock on the relevant record dates
to be fixed by the Board of Directors of the Corporation, which record dates
shall be not less than 10 days and not more than 30 Business Days prior to the
relevant Preferred Stock Distribution Payment Date (each a "Distribution Record
Date"). Notwithstanding anything to the contrary set forth herein, each share of
Series A Preferred Stock shall also continue to accrue all accrued and unpaid
distributions, whether or not declared, up to the exchange date on any Series A
Preferred Unit (as defined in the Second Amended and Restated Agreement of
Limited Partnership of Regency Centers, L.P., dated as March 5, 1998 as amended
by that certain Amendment No. One to Second Amendment and Restatement of
Agreement of Limited Partnership dated as of June 25, 1998 (as amended the
"Partnership Agreement")) validly exchanged into such share of Series A
Preferred Stock in accordance with the provisions of such Partnership Agreement.
The term "Business Day" shall mean each day, other than a
Saturday or a Sunday, which is not a day on which banking institutions in New
York, New York are authorized or required by law, regulation or executive order
to close.
(b) Limitation on Distributions. No distribution on the Series
A Preferred Stock shall be declared or paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement of the
Corporation (other than any agreement with a holder or affiliate of holder of
Capital Stock of the Corporation) relating to its indebtedness, prohibit such
declaration, payment or setting apart for payment or provide that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration, payment or setting
apart for payment shall be restricted or prohibited by law. Nothing in this
Section 3(b) shall be deemed to modify or in any manner limit the provisions of
Section 3(c) and 3(d).
(c) Distributions Cumulative. Distributions on the Series A
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series A Preferred Stock will accumulate as of the Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid at
any time, without reference to a regular Preferred Stock Distribution Payment
Date to holders of record of the Series A Preferred Stock on the record date
fixed by the Board of Directors which date shall be not less than 10 days and
not more than 30 Business Days prior to the payment date. Accumulated and unpaid
distributions will not bear interest.
(d) Priority as to Distributions. (i) So long as any Series A
Preferred Stock is outstanding, no distribution of cash or other property shall
be authorized, declared, paid or set apart for payment on or with respect to any
class or series of Common Stock or any class or series of other stock of the
Corporation ranking junior as to the payment of distributions to the Series A
Preferred Stock (such Common Stock or other junior stock, collectively, "Junior
Stock"), nor shall any cash or other property be set aside for or applied to the
purchase, redemption or other acquisition for consideration of any Series A
Preferred Stock, any Parity Preferred Stock with respect to distributions or any
Junior Stock, unless, in each case, all distributions accumulated on all Series
A Preferred Stock and all classes and series of outstanding Parity Preferred
Stock as to payment of distributions have been paid in full. The foregoing
sentence will not prohibit (i) distributions payable solely in Junior Stock,
(ii) the conversion of Series A Preferred Stock, Junior Stock or Parity
Preferred Stock into stock of the Corporation ranking junior to the Series A
Preferred Stock as to distributions, and (iii) purchases by the Corporation of
such Series A Preferred Stock or Parity Preferred Stock with respect to
distributions or Junior Stock pursuant to Article 5 of the Charter to the extent
required to preserve the Corporation's status as a real estate investment trust.
(ii) So long as distributions have not been paid in full (or a sum
sufficient for such full payment is not irrevocably deposited in trust for
payment) upon the Series A Preferred Stock, all distributions authorized and
declared on the Series A Preferred Stock and all classes or series of
outstanding Parity Preferred Stock with respect to distributions shall be
authorized and declared so that the amount of distributions authorized and
declared per share of Series A Preferred Stock and such other classes or series
of Parity Preferred Stock shall in all cases bear to each other the same ratio
that accrued distributions per share on the Series A Preferred Stock and such
other classes or series of Parity Preferred Stock (which shall not include any
accumulation in respect of unpaid distributions for prior distribution periods
if such class or series of Parity Preferred Stock do not have cumulative
distribution rights) bear to each other.
(e) No Further Rights. Holders of Series A Preferred Stock
shall not be entitled to any distributions, whether payable in cash, other
property or otherwise, in excess of the full cumulative distributions described
herein.
Section 4. Liquidation Preference. (a) Payment of Liquidating
Distributions. Subject to the rights of holders of Parity Preferred Stock with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation and subject to equity securities ranking senior to
the Series A Preferred Stock with respect to rights upon any voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation, the
holders of Series A Preferred Stock shall be entitled to receive out of the
assets of the Corporation legally available for distribution or the proceeds
thereof, after payment or provision for debts and other liabilities of the
Corporation, but before any payment or distributions of the assets shall be made
to holders of Common Stock or any other class or series of shares of the
Corporation that ranks junior to the Series A Preferred Stock as to rights upon
liquidation, dissolution or winding-up of the Corporation, an amount equal to
the sum of (i) a liquidation preference of $50 per share of Series A Preferred
Stock, and (ii) an amount equal to any accumulated and unpaid distributions
thereon, whether or not declared, to the date of payment. In the event that,
upon such voluntary or involuntary liquidation, dissolution or winding-up, there
are insufficient assets to permit full payment of liquidating distributions to
the holders of Series A Preferred Stock and any Parity Preferred Stock as to
rights upon liquidation, dissolution or winding-up of the Corporation, all
payments of liquidating distributions on the Series A Preferred Stock and such
Parity Preferred Stock shall be made so that the payments on the Series A
Preferred Stock and such Parity Preferred Stock shall in all cases bear to each
other the same ratio that the respective rights of the Series A Preferred Stock
and such other Parity Preferred Stock (which shall not include any accumulation
in respect of unpaid distributions for prior distribution periods if such Parity
Preferred Stock do not have cumulative distribution rights) upon liquidation,
dissolution or winding-up of the Corporation bear to each other.
(b) Notice. Written notice of any such voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation, stating
the payment date or dates when, and the place or places where, the amounts
distributable in such circumstances shall be payable, shall be given by (i) fax
and (ii) by first class mail, postage pre-paid, not less than 30 and not more
that 60 days prior to the payment date stated therein, to each record holder of
the Series A Preferred Stock at the respective addresses of such holders as the
same shall appear on the share transfer records of the Corporation.
(c) No Further Rights. After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of Series A Preferred
Stock will have no right or claim to any of the remaining assets of the
Corporation.
(d) Consolidation, Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the consolidation or merger or
other business combination of the Corporation with or into, any corporation,
trust or other entity (or of any corporation, trust or other entity with or into
the Corporation) shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Corporation.
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
Section 5. Optional Redemption. (a) Right of Optional
Redemption. The Series A Preferred Stock may not be redeemed prior to June 25,
2003. On or after such date, the Corporation shall have the right to redeem the
Series A Preferred Stock, in whole or in part, at any time or from time to time,
upon not less than 30 nor more than 60 days' written notice, at a redemption
price, payable in cash, equal to $50 per share of Series A Preferred Stock plus
accumulated and unpaid distributions, whether or nor declared, to the date of
redemption. If fewer than all of the outstanding shares of Series A Preferred
Stock are to be redeemed, the shares of Series A Preferred Stock to be redeemed
shall be selected pro rata (as nearly as practicable without creating fractional
shares).
(b) Limitation on Redemption. (i) The redemption price of the
Series A Preferred Stock (other than the portion thereof consisting of
accumulated but unpaid distributions) will be payable solely out of sale
proceeds of capital stock of the Corporation and from no other source. For
purposes of the preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares, participation or other
ownership interests (however designated) and any rights (other than debt
securities convertible into or exchangeable for equity securities) or options to
purchase any of the foregoing.
(ii) The Corporation may not redeem fewer than all of the outstanding
shares of Series A Preferred Stock unless all accumulated and unpaid
distributions have been paid on all Series A Preferred Stock for all quarterly
distribution periods terminating on or prior to the date of redemption.
(c) Procedures for Redemption. (i) Notice of redemption will
be (i) faxed, and (ii) mailed by the Corporation, postage prepaid, not less than
30 nor more than 60 days prior to the redemption date, addressed to the
respective holders of record of the Series A Preferred Stock to be redeemed at
their respective addresses as they appear on the transfer records of the
Corporation. No failure to give or defect in such notice shall affect the
validity of the proceedings for the redemption of any Series A Preferred Stock
except as to the holder to whom such notice was defective or not given. In
addition to any information required by law or by the applicable rules of any
exchange upon which the Series A Preferred Stock may be listed or admitted to
trading, each such notice shall state: (i) the redemption date, (ii) the
redemption price, (iii) the number of shares of Series A Preferred Stock to be
redeemed, (iv) the place or places where such shares of Series A Preferred Stock
are to be surrendered for payment of the redemption price, (v) that
distributions on the Series A Preferred Stock to be redeemed will cease to
accumulate on such redemption date and (vi) that payment of the redemption price
and any accumulated and unpaid distributions will be made upon presentation and
surrender of such Series A Preferred Stock. If fewer than all of the shares of
Series A Preferred Stock held by any holder are to be redeemed, the notice
mailed to such holder shall also specify the number of shares of Series A
Preferred Stock held by such holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in respect of Series A
Preferred Stock (which notice will be irrevocable) then, by 12:00 noon, New York
City time, on the redemption date, the Corporation will deposit irrevocably in
trust for the benefit of the Series A Preferred Stock being redeemed funds
sufficient to pay the applicable redemption price, plus any accumulated and
unpaid distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any accumulated and
unpaid distributions, if any, on such shares to the holders of the Series A
Preferred Stock upon surrender of the certificate evidencing the Series A
Preferred Stock by such holders at the place designated in the notice of
redemption. If fewer than all Series A Preferred Stock evidenced by any
certificate is being redeemed, a new certificate shall be issued upon surrender
of the certificate evidencing all Series A Preferred Stock, evidencing the
unredeemed Series A Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on the
Series A Preferred Stock or portions thereof called for redemption, unless the
Corporation defaults in the payment thereof. If any date fixed for redemption of
Series A Preferred Stock is not a Business Day, then payment of the redemption
price payable on such date will be made on the next succeeding day that is a
Business Bay (and without any interest or other payment in respect of any such
delay) except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date fixed for redemption. If
payment of the redemption price or any accumulated or unpaid distributions in
respect of the Series A Preferred Stock is improperly withheld or refused and
not paid by the Corporation, distributions on such Series A Preferred Stock will
continue to accumulate from the original redemption date to the date of payment,
in which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the applicable redemption price and any
accumulated and unpaid distributions.
(d) Status of Redeemed Stock. Any Series A Preferred Stock
that shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
class or series until such shares are once more designated as part of a
particular class or series by the Board of Directors.
Section 6. Voting Rights. (a) General. Holders of the Series A Preferred
Stock will not have any voting rights, except as set forth below.
(b) Right to Elect Directors. (i) If at any time distributions
shall be in arrears (which means that, as to any such quarterly distributions,
the same have not been paid in full) with respect to six (6) prior quarterly
distribution periods (including quarterly periods on the Series A Preferred
Units prior to the exchange into Series A Preferred Stock), whether or not
consecutive, and shall not have been paid in full (a "Preferred Distribution
Default"), the authorized number of members of the Board of Directors shall
automatically be increased by two and the holders of record of such Series A
Preferred Stock, voting together as a single class with the holders of each
class or series of Parity Preferred Stock upon which like voting rights have
been conferred and are exercisable, will be entitled to fill the vacancies so
created by electing two additional directors to serve on the Corporation's Board
of Directors (the "Preferred Stock Directors") at a special meeting called in
accordance with Section 6(b)(ii) or at the next annual meeting of stockholders
and at each subsequent annual meeting of stockholders or special meeting held in
place thereof, until all such distributions in arrears and distributions for the
current quarterly period on the Series A Preferred Stock and each such class or
series of Parity Preferred Stock have been paid in full.
(ii) At any time when such voting rights shall have vested, a proper
officer of the Corporation shall call or cause to be called, upon written
request of holders of record of at least 10% of the outstanding shares of Series
A Preferred Stock, a special meeting of the holders of Series A Preferred Stock
and all the series of Parity Preferred Stock upon which like voting rights have
been conferred and are exercisable (collectively, the "Parity Securities") by
mailing or causing to be mailed to such holders a notice of such special meeting
to be held not less than ten and not more than 45 days after the date such
notice is given. The record date for determining holders of the Parity
Securities entitled to notice of and to vote at such special meeting will be the
close of business on the third Business Day preceding the day on which such
notice is mailed. At any annual or special meeting at which Parity Securities
are entitled to vote, all of the holders of the Parity Securities, by plurality
vote, voting together as a single class without regard to series will be
entitled to elect two directors on the basis of one vote per $25.00 of
liquidation preference to which such Parity Securities are entitled by their
terms (excluding amounts in respect of accumulated and unpaid dividends) and not
cumulatively. The holder or holders of Parity Securities representing one-third
of the total voting power of the Parity Securities then outstanding, present in
person or by proxy, will constitute a quorum for the election of the Preferred
Stock Directors except as otherwise provided by law. Notice of all meetings at
which holders of the Series A Preferred Stock shall be entitled to vote will be
given to such holders at their addresses as they appear in the transfer records.
At any such meeting or adjournment thereof in the absence of a quorum, subject
to the provisions of any applicable law, the holders of Parity Securities
representing a majority of the voting power of the Parity Securities present in
person or by proxy shall have the power to adjourn the meeting for the election
of the Preferred Stock Directors, without notice other than an announcement at
the meeting, until a quorum is present. If a Preferred Distribution Default
shall terminate after the notice of an annual or special meeting has been given
but before such special meeting has been held, the Corporation shall, as soon as
practicable after such termination, mail or cause to be mailed notice of such
termination to holders of the Series A Preferred Stock that would have been
entitled to vote at such meeting.
(iii) If and when all accumulated distributions and the distribution for
the current distribution period on the Series A Preferred Stock shall have been
paid in full or a sum sufficient for such payment is irrevocably deposited in
trust for payment, the holders of the Series A Preferred Stock shall be divested
of the voting rights set forth in Section 6(b) herein (subject to revesting in
the event of each and every Preferred Distribution Default) and, if all
distributions in arrears and the distributions for the current distribution
period have been paid in full or set aside for payment in full on all other
classes or series of Parity Preferred Stock upon which like voting rights have
been conferred and are exercisable, the term and office of each Preferred Stock
Director so elected shall terminate. Any Preferred Stock Director may be removed
at any time with or without cause by the vote of, and shall not be removed
otherwise than by the vote of, the holders of record of a majority of the
outstanding Series A Preferred Stock when they have the voting rights set forth
in Section 6(b) (voting separately as a single class with all other classes or
series of Parity Preferred Stock upon which like voting rights have been
conferred and are exercisable). So long as a Preferred Distribution Default
shall continue, any vacancy in the office of a Preferred Stock Director may be
filled by written consent of the Preferred Stock Director remaining in office,
or if none remains in office, by a vote of the holders of record of a majority
of the outstanding Series A Preferred Stock when they have the voting rights set
forth in Section 6(b) (voting separately as a single class with all other
classes or series of Parity Preferred Stock upon which like voting rights have
been conferred and are exercisable). The Preferred Stock Directors shall each be
entitled to one vote per director on any matter.
(c) Certain Voting Rights. So long as any Series A Preferred
Stock remains outstanding, the Corporation shall not, without the affirmative
vote of the holders of at least two-thirds of the Series A Preferred Stock and
Series A Preferred Units outstanding at such time and not previously surrendered
in exchange for Series A Preferred Stock together, if applicable, voting as a
single class based on the number of shares into which such Series A Preferred
Units are then convertible (collectively, the "Voting Securities") (i) designate
or create, or increase the authorized or issued amount of, any class or series
of shares ranking prior to the Series A Preferred Stock with respect to payment
of distributions or rights upon liquidation, dissolution or winding-up or
reclassify any authorized shares of the Corporation into any such shares, or
create, authorize or issue any obligations or securities convertible into or
evidencing the right to purchase any such shares, (ii) designate or create, or
increase the authorized or issued amount of, any Parity Preferred Stock or
reclassify any authorized shares of the Corporation into any such shares, or
create, authorize or issue any obligations or securities convertible into or
evidencing the right to purchase any such shares, but only to the extent such
Parity Preferred Stock is issued to an affiliate of the Corporation (other than
Security Capital U.S. Realty, Security Capital Holdings, S.A. or their
affiliates), or (iii) either (A) consolidate, merge into or with, or convey,
transfer or lease its assets substantially as an entirety, to any corporation or
other entity, or (B) amend, alter or repeal the provisions of the Corporation's
Charter (including these Articles of Amendment) or By-laws, whether by merger,
consolidation or otherwise, in each case that would materially and adversely
affect the powers, special rights, preferences, privileges or voting power of
the Series A Preferred Stock or the holders thereof; provided, however, that
with respect to the occurrence of a merger, consolidation or a sale or lease of
all of the Corporation's assets as an entirety, so long as (a) the Corporation
is the surviving entity and the Series A Preferred Stock remains outstanding
with the terms thereof unchanged, or (b) the resulting, surviving or transferee
entity is a corporation organized under the laws of any state and substitutes
the Series A Preferred Stock for other preferred stock having substantially the
same terms and same rights as the Series A Preferred Stock, including with
respect to distributions, voting rights and rights upon liquidation, dissolution
or winding-up, then the occurrence of any such event shall not be deemed to
materially and adversely affect such rights, privileges or voting powers of the
holders of the Series A Preferred Stock and no vote of the Series A Voting
Securities shall be required in such case and provided further that any increase
in the amount of authorized Preferred Stock or the creation or issuance of any
other class or series of Preferred Stock, or any increase in an amount of
authorized shares of each class or series, in each case ranking either (a)
junior to the Series A Preferred Stock with respect to payment of distributions
or the distribution of assets upon liquidation, dissolution or winding-up, or
(b) on a parity with the Series A Preferred Stock with respect to payment of
distributions or the distribution of assets upon liquidation, dissolution or
winding-up to the extent such Preferred Stock is not issued to a affiliate of
the Corporation, shall not be deemed to materially and adversely affect such
rights, preferences, privileges or voting powers and no vote of the Voting
Securities shall be required in such case.
Section 7. No Conversion Rights. The holders of the Series A
Preferred Stock shall not have any rights to convert such shares into shares of
any other class or series of stock or into any other securities of, or interest
in, the Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for the
retirement or redemption of Series A Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series A
Preferred Stock of the Corporation shall, as such holder, have any preemptive
rights to purchase or subscribe for additional shares of stock of the
Corporation or any other security of the Corporation which it may issue or sell.
FOURTH: The Series A Preferred Stock have been classified and designated by
the Board of Directors under the authority contained in the Charter.
FIFTH: These Articles of Amendment have been approved by the Board of
Directors in the manner and by the vote required by law.
SIXTH: The undersigned President of the Corporation
acknowledges these Articles of Amendment to be the corporate act of the
Corporation and, as to all matters or facts required to be verified under oath,
the undersigned President acknowledges that to the best of his knowledge,
information and belief, these matters and facts are true in all material
respects and that this statement is made under the penalties for perjury.
[Signature Page Follows]
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused these Articles
of Amendment to be executed under seal in its name and on its behalf by its
Executive Vice President and attested to by its Secretary on this ________ day
of September, 1999
REGENCY REALTY CORPORATION
By: /s/ Bruce M. Johnson
-----------------------------
Name: Bruce M. Johnson
Title: Executive Vice President
[SEAL]ATTEST:
/s/ J. Christian Leavitt
Name: J. Christian Leavitt
Title: Secretary
<PAGE>
Fax Audit No.
Fax Audit No. ________________________ 10
Fax Audit No.
Prepared by: Linda Y. Kelso (FL Bar No. 298662)
Foley & Lardner
P.O. Box 240
Jacksonville, FL 32202
Telephone No. (904)359-2000
Fax Audit No. ________________________
ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 850,000 SHARES OF
8.75% SERIES B CUMULATIVE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation Act
("FBCA"), Regency Realty Corporation, a Florida corporation (the "Corporation"),
does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board
of Directors of the Corporation by Section 4.2 of the Amended and Restated
Articles of Incorporation of the Corporation (as amended, the "Charter") and
Section 607.0602 of the FBCA, the Board of Directors of the Corporation (the
"Board of Directors"), by resolutions duly adopted on August 23, 1999 has
classified 850,000 shares of the authorized but unissued Preferred Stock par
value $.0l per share ("Preferred Stock") as a separate class of Preferred Stock,
authorized the issuance of a maximum of 850,000 shares of such class of
Preferred Stock, set certain of the preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications, terms
and conditions of redemption and other terms and conditions of such class of
Preferred Stock, and pursuant to the powers contained in the Bylaws of the
Corporation and the FBCA, appointed a committee (the "Committee") of the Board
of Directors and delegated to the Committee, to the fullest extent permitted by
the FBCA and the Charter and Bylaws of the Corporation, all powers of the Board
of Directors with respect to designating, and setting all other preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends and other distributions, qualifications and terms and conditions of
redemption of, such class of Preferred Stock, determining the number of shares
of such class of Preferred Stock (not in excess of the aforesaid maximum number)
to be issued and the consideration and other terms and conditions upon which
such shares of such class of Preferred Stock are to be issued. Shareholder
approval was not required under the Charter with respect to such designation.
Capitalized terms used and not otherwise defined herein shall have the meaning
assigned thereto in the Charter.
SECOND: Pursuant to the authority conferred upon the Committee
as aforesaid, the Committee has unanimously adopted resolutions designating the
aforesaid class of Preferred Stock as the "8.75% Series B Cumulative Redeemable
Preferred Stock," setting the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such 8.75% Series B
Cumulative Redeemable Preferred Stock (to the extent not set by the Board of
Directors in the resolutions referred to in Article First of these Articles of
Amendment) and authorizing the issuance of up to 850,000 shares of 8.75% Series
B Cumulative Redeemable Preferred Stock.
THIRD: The class of Preferred Stock of the Corporation created
by the resolutions duly adopted by the Board of Directors of the Corporation and
by the Committee and referred to in Articles First and Second of these Articles
of Amendment shall have the following designation, number of shares,
preferences, conversion and other rights, voting powers, restrictions and
limitation as to dividends, qualifications, terms and conditions of redemption
and other terms and conditions:
Section 1. Designation and Number. A series of Preferred
Stock, designated the "8.75% Series B Cumulative Redeemable Preferred Stock"
(the "Series B Preferred Stock") is hereby established. The number of shares of
Series B Preferred Stock shall be 850,000.
Section 2. Rank. The Series B Preferred Stock will, with
respect to distributions or rights upon voluntary or involuntary liquidation,
winding-up or dissolution of the Corporation, or both, rank senior to all
classes or series of Common Stock (as defined in the Charter) and to all classes
or series of equity securities of the Corporation now or hereafter authorized,
issued or outstanding other than any class or series of equity securities of the
Corporation expressly designated as ranking on a parity with or senior to the
Series B Preferred Stock as to distributions or rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the Corporation, or both.
For purposes of these Articles of Amendment, the term "Parity Preferred Stock"
shall be used to refer to any class or series of equity securities of the
Corporation now or hereafter authorized, issued or outstanding expressly
designated by the Corporation to rank on a parity with Series B Preferred Stock
with respect to distributions or rights upon voluntary or involuntary
liquidation, winding-up or dissolution of the Corporation, or both, as the
context may require, whether or not the dividend rates, dividend payment dates
or redemption or liquidation prices per share or conversion rights or exchange
rights shall be different from those of the Series B Preferred Stock. The term
"equity securities" does not include debt securities, which will rank senior to
the Series B Preferred Stock prior to conversion. The Series B Preferred Stock
is expressly designated as ranking on a parity with the Series A Preferred
Stock.
Section 3. Distributions. (a) Payment of Distributions.
Subject to the rights of holders of Parity Preferred Stock as to the payment of
distributions and holders of equity securities issued after the date hereof in
accordance herewith ranking senior to the Series B Preferred Stock as to payment
of distributions, holders of Series B Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors of the Corporation,
out of funds legally available for the payment of distributions, cumulative cash
distributions at the rate per annum of 8.75% of the $100.00 liquidation
preference per share of Series B Preferred Stock (the "Distribution Rate").
Notwithstanding anything herein to the contrary, the Distribution Rate shall be
equal to the Coupon Rate (as defined in Amendment No. 1 to the Third Amended and
Restated Agreement of Limited Partnership of Regency Centers, L.P.) in effect at
the time of issuance of the Series C Preferred Stock. Such distributions shall
be cumulative, shall accrue from the original date of issuance and will be
payable in cash (A) quarterly in arrears, on or before March 1, June 1,
September 1 and December 1 of each year commencing on the first of such dates to
occur after the original date of issuance and, (B) in the event of a redemption,
on the redemption date (each a "Series B Preferred Stock Distribution Payment
Date"). The amount of the distribution payable for any period will be computed
based on the ratio basis of a 360-day year of twelve 30-day months and for any
period shorter than a full quarterly period for which distributions are
computed, the amount of the distribution payable will be computed on the basis
of the actual number of days elapsed in such quarterly period to 90 days. If any
date on which distributions are to be made on the Series B Preferred Stock is
not a Business Day (as defined herein), then payment of the distribution to be
made on such date will be made on the next succeeding day that is a Business Day
(and without any interest or other payment in respect of any such delay) except
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date. Distributions on the Series B
Preferred Stock will be made to the holders of record of the Series B Preferred
Stock on the relevant record dates to be fixed by the Board of Directors of the
Corporation, which record dates shall be not less than 10 days and not more than
30 Business Days prior to the relevant Series B Preferred Stock Distribution
Payment Date (each a "Distribution Record Date"). Notwithstanding anything to
the contrary set forth herein, each share of Series B Preferred Stock shall also
continue to accrue all accrued and unpaid distributions, whether or not
declared, up to the exchange date on any Series B Preferred Unit (as defined in
the Third Amended and Restated Agreement of Limited Partnership of Regency
Centers, L.P., dated as September 1, 1999 as amended by that certain Amendment
No. 1 to Third Amended and Restated Agreement of Limited Partnership dated as of
September 3, 1999 (as amended, the "Partnership Agreement")) validly exchanged
into such share of Series B Preferred Stock in accordance with the provisions of
such Partnership Agreement.
The term "Business Day" shall mean each day, other than a
Saturday or a Sunday, which is not a day on which banking institutions in New
York, New York are authorized or required by law, regulation or executive order
to close.
(b) Distributions Cumulative. Distributions on the Series B
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series B Preferred Stock will accumulate as of the Series B Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid at
any time, without reference to a regular Series B Preferred Stock Distribution
Payment Date to holders of record of the Series B Preferred Stock on the record
date fixed by the Board of Directors which date shall be not less than 10 days
and not more than 30 Business Days prior to the payment date. Accumulated and
unpaid distributions will not bear interest.
(c) Priority as to Distributions. (i) So long as any Series B
Preferred Stock is outstanding, no distribution of cash or other property shall
be authorized, declared, paid or set apart for payment on or with respect to any
class or series of Common Stock or any class or series of other stock of the
Corporation ranking junior as to the payment of distributions to the Series B
Preferred Stock (such Common Stock or other junior stock, collectively, "Junior
Stock"), nor shall any cash or other property be set aside for or applied to the
purchase, redemption or other acquisition for consideration of any Series B
Preferred Stock, any Parity Preferred Stock with respect to distributions or any
Junior Stock, unless in each case, all distributions accumulated on all Series B
Preferred Stock and all classes and series of outstanding Parity Preferred Stock
as to payment of distributions have been paid in full. The foregoing sentence
will not prohibit (i) distributions payable solely in Junior Stock, (ii) the
conversion of Series B Preferred Stock, Junior Stock or Parity Preferred Stock
into stock of the Corporation ranking junior to the Series B Preferred Stock as
to distributions, and (iii) purchases by the Corporation of such Series B
Preferred Stock or Parity Preferred Stock with respect to distributions or
Junior Stock pursuant to Article 5 of the Charter to the extent required to
preserve the Corporation's status as a real estate investment trust.
(ii) So long as distributions have not been paid in full (or a sum
sufficient for such full payment is not irrevocably deposited in trust for
payment) upon the Series B Preferred Stock, all distributions authorized and
declared on the Series B Preferred Stock and all classes or series of
outstanding Parity Preferred Stock with respect to distributions shall be
authorized and declared so that the amount of distributions authorized and
declared per share of Series B Preferred Stock and such other classes or series
of Parity Preferred Stock shall in all cases bear to each other the same ratio
that accrued distributions per share on the Series B Preferred Stock and such
other classes or series of Parity Preferred Stock (which shall not include any
accumulation in respect of unpaid distributions for prior distribution periods
if such class or series of Parity Preferred Stock do not have cumulative
distribution rights) bear to each other.
(d) No Further Rights. Holders of Series B Preferred Stock shall not be
entitled to any distributions, whether payable in cash, other property or
otherwise, in excess of the full cumulative distributions described herein.
Section 4. Liquidation Preference. (a) Payment of Liquidation
Distributions. Subject to the rights of holders of Parity Preferred Stock with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Series B Preferred Stock shall be
entitled to receive out of the assets of the Corporation legally available for
distribution or the proceeds thereof, after payment or provision for debts and
other liabilities of the Corporation, but before any payment or distributions of
the assets shall be made to holders of Common Stock or any other class or series
of shares of the Corporation that ranks junior to the Series B Preferred Stock
as to rights upon liquidation, dissolution or winding-up of the Corporation, an
amount equal to the sum of (i) a liquidation preference of $100.00 per share of
Series B Preferred Stock, and (ii) an amount equal to any accumulated and unpaid
distributions thereon, whether or not declared, to the date of payment. In the
event that, upon such voluntary or involuntary liquidation, dissolution or
winding-up, there are insufficient assets to permit full payment of liquidating
distributions to the holders of Series B Preferred Stock and any Parity
Preferred Stock as to rights upon liquidation, dissolution or winding-up of the
Corporation, all payments of liquidating distributions on the Series B Preferred
Stock and such Parity Preferred Stock shall be made so that the payments on the
Series B Preferred Stock and such Parity Preferred Stock shall in all cases bear
to each other the same ratio that the respective rights of the Series B
Preferred Stock and such other Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior distribution
periods if such Parity Preferred Stock do not have cumulative distribution
rights) upon liquidation, dissolution or winding-up of the Corporation bear to
each other.
(b) Notice. Written notice of any such voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation, stating
the payment date or dates when, and the place or places where, the amounts
distributable in such circumstances shall be payable, shall be given by (i) fax
and (ii) by first class mail, postage pre-paid, not less than 30 and not more
that 60 days prior to the payment date stated therein, to each record holder of
the Series B Preferred Stock at the respective addresses of such holders as the
same shall appear on the share transfer records of the Corporation.
(c) No Further Rights. After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of Series B Preferred
Stock will have no right or claim to any of the remaining assets of the
Corporation.
(d) Consolidation Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the consolidation or merger or
other business combination of the Corporation with or into, any corporation,
trust or other entity (or of any corporation, trust or other entity with or into
the Corporation) shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Corporation.
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
Section 5. Optional Redemption. (a) Right of Optional
Redemption. The Series B Preferred Stock may not be redeemed prior to September
3, 2004. On or after such date, the Corporation shall have the right to redeem
the Series B Preferred Stock, in whole or in part, at any time or from time to
time, upon not less than 30 nor more than 60 days' written notice, at a
redemption price, payable in cash, equal to $100.00 per share of Series B
Preferred Stock plus accumulated and unpaid distributions, whether or nor
declared, to the date of redemption. If fewer than all of the outstanding shares
of Series B Preferred Stock are to be redeemed, the shares of Series B Preferred
Stock to be redeemed shall be selected pro rata (as nearly as practicable
without creating fractional shares).
(b) Limitation on Redemption. (i) The redemption price of the
Series B Preferred Stock (other than the portion thereof consisting of
accumulated but unpaid distributions) will be payable solely out of sale
proceeds of capital stock of the Corporation and from no other source. For
purposes of the preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares, participation or other
ownership interests (however designated) and any rights (other than debt
securities convertible into or exchangeable for equity securities) or options to
purchase any of the foregoing.
(ii) The Corporation may not redeem fewer than all of the outstanding
shares of Series B Preferred Stock unless all accumulated and unpaid
distributions have been paid on all Series B Preferred Stock for all quarterly
distribution periods terminating on or prior to the date of redemption.
(c) Procedures for Redemption. (i) Notice of redemption will
be (i) faxed, and (ii) mailed by the Corporation, postage prepaid, not less than
30 nor more than 60 days prior to the redemption date, addressed to the
respective holders of record of the Series B Preferred Stock to be redeemed at
their respective addresses as they appear on the transfer records of the
Corporation. No failure to give or defect in such notice shall affect the
validity of the proceedings for the redemption of any Series B Preferred Stock
except as to the holder to whom such notice was defective or not given. In
addition to any information required by law or by the applicable rules of any
exchange upon which the Series B Preferred Stock may be listed or admitted to
trading, each such notice shall state: (i) the redemption date, (ii) the
redemption price, (iii) the number of shares of Series B Preferred Stock to be
redeemed, (iv) the place or places where such shares of Series B Preferred Stock
are to be surrendered for payment of the redemption price, (v) that
distributions on the Series B Preferred Stock to be redeemed will cease to
accumulate on such redemption date and (vi) that payment of the redemption price
and any accumulated and unpaid distributions will be made upon presentation and
surrender of such Series B Preferred Stock. If fewer than all of the shares of
Series B Preferred Stock held by any holder are to be redeemed, the notice
mailed to such holder shall also specify the number of shares of Series B
Preferred Stock held by such holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in respect of Series B
Preferred Stock (which notice will be irrevocable) then, by 12:00 noon, New York
City time, on the redemption date, the Corporation will deposit irrevocably in
trust for the benefit of the Series B Preferred Stock being redeemed funds
sufficient to pay the applicable redemption price' plus any accumulated and
unpaid distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any accumulated and
unpaid distributions, if any, on such shares to the holders of the Series B
Preferred Stock upon surrender of the certificate evidencing the Series B
Preferred Stock by such holders at the place designated in the notice of
redemption. If fewer than all Series B Preferred Stock evidenced by any
certificate is being redeemed, a new certificate shall be issued upon surrender
of the certificate evidencing all Series B Preferred Stock, evidencing the
unredeemed Series B Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on the
Series B Preferred Stock or portions thereof called for redemption, unless the
Corporation defaults in the payment thereof. If any date fixed for redemption of
Series B Preferred Stock is not a Business Day, then payment of the redemption
price payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date fixed for redemption. If
payment of the redemption price or any accumulated or unpaid distributions in
respect of the Series B Preferred Stock is improperly withheld or refused and
not paid by the Corporation, distributions on such Series B Preferred Stock will
continue to accumulate from the original redemption date to the date of payment,
in which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the applicable redemption price and any
accumulated and unpaid distributions.
(d) Status of Redeemed Stock. Any Series B Preferred Stock
that shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
class or series until such shares are once more designated as part of a
particular class or series by the Board of Directors.
Section 6. Voting Rights. (a) General. Holders of the Series B Preferred
Stock will not have any voting rights, except as set forth below.
(b) Right to Elect Directors. (i) If at any time distributions
shall be in arrears (which means that as to any such quarterly distributions,
the same have not been paid in full) with respect to six (6) prior quarterly
distribution periods (including quarterly periods on the Series B Preferred
Units prior to the exchange into Series B Preferred Stock), whether or not
consecutive, and shall not have been paid in full (a "Series B Preferred
Distribution Default"), the authorized number of members of the Board of
Directors shall automatically be increased by two and the holders of record of
such Series B Preferred Stock, voting together as a single class with the
holders of each class or series of Parity Preferred Stock upon which like voting
rights have been conferred and are exercisable, will be entitled to fill the
vacancies so created by electing two additional directors to serve on the
Corporation's Board of Directors (the "Preferred Stock Directors") at a special
meeting called in accordance with Section 6(b)(ii), and at each subsequent
annual meeting of stockholders or special meeting held in place thereof, until
all such distributions in arrears and distributions for the current quarterly
period on the Series B Preferred Stock and each such class or series of Parity
Preferred Stock have been paid in full.
(ii) At any time when such voting rights shall have vested, a proper
officer of the Corporation shall call or cause to be called, upon written
request of holders of record of at least 10% of the outstanding shares of Series
B Preferred Stock, a special meeting of the holders of Series B Preferred Stock
and all the series of Parity Preferred Stock upon which like voting rights have
been conferred and are exercisable (collectively, the "Parity Securities") by
mailing or causing to be mailed to such holders a notice of such special meeting
to be held not less than ten and not more than 45 days after the date such
notice is given. The record date for determining holders of the Parity
Securities entitled to notice of and to vote at such special meeting will be the
close of business on the third Business Day preceding the day on which such
notice is mailed. At any annual or special meeting at which Parity Securities
are entitled to vote, all of the holders of the Parity Securities, by plurality
vote, voting together as a single class without regard to series will be
entitled to elect two directors on the basis of one vote per $25.00 of
liquidation preference to which such Parity Securities are entitled by their
terms (excluding amounts in respect of accumulated and unpaid dividends) and not
cumulatively. The holder or holders of the Parity Securities representing
one-third of the total voting power of the Parity Securities then outstanding,
present in person or by proxy, will constitute a quorum for the election of the
Preferred Stock Directors except as otherwise provided by law. Notice of all
meetings at which holders of the Series B Preferred Stock shall be entitled to
vote will be given to such holders at their addresses as they appear in the
transfer records. At any such meeting or adjournment thereof in the absence of a
quorum, subject to the provisions of any applicable law, the holders of the
Parity Securities representing a majority of the voting power of the Parity
Securities present in person or by proxy shall have the power to adjourn the
meeting for the election of the Preferred Stock Directors, without notice other
than an announcement at the meeting, until a quorum is present. If a Series B
Preferred Distribution Default shall terminate after the notice of an annual or
special meeting has been given but before such special meeting has been held,
the Corporation shall, as soon as practicable after such termination, mail or
cause to be mailed notice of such termination to holders of the Series B
Preferred Stock that would have been entitled to vote at such meeting.
(iii) If and when all accumulated distributions and the distribution for
the current distribution period on the Series B Preferred Stock shall have been
paid in full or a sum sufficient for such payment is irrevocably deposited in
trust for payment, the holders of the Series B Preferred Stock shall be divested
of the voting rights set forth in Section 6(b) herein (subject to revesting in
the event of each and every Series B Preferred Distribution Default) and, if all
distributions in arrears and the distributions for the current distribution
period have been paid in full or set aside for payment in full on all other
classes or series of Parity Preferred Stock upon which like voting rights have
been conferred and are exercisable, the terms and office of each Preferred Stock
Director so elected shall terminate. Any Preferred Stock Director may be removed
at any time with or without cause by the vote of, and shall not be removed
otherwise than by the vote of, the holders of record of a majority of the
outstanding Series B Preferred Stock when they have the voting rights set forth
in Section 6(b) (voting separately as a single class with all other classes or
series of Parity Preferred Stock upon which like voting rights have been
conferred and are exercisable). So long as a Series B Preferred Distribution
Default shall continue, any vacancy in the office of a Preferred Stock Director
may be filled by written consent of the Preferred Stock Director remaining in
office, or if none remains in office, by a vote of the holders of record of a
majority of the outstanding Series B Preferred Stock when they have the voting
rights set forth in Section 6(b) (voting separately as a single class with all
other classes or series of Parity Preferred Stock upon which like voting rights
have been conferred and are exercisable). The Preferred Stock Directors shall
each be entitled to one vote per director on any matter.
(c) Certain Voting Rights. So long as any Series B Preferred
Stock or Series C Preferred Unit remains outstanding, the Corporation shall not,
without the affirmative vote of the holders of at least two-thirds of the Series
B Preferred Stock and Series B Preferred Units outstanding at the time
(together, if applicable, voting as a single class) (collectively, the "Voting
Securities") (i) designate or create, or increase the authorized or issued
amount of, any class or series of shares ranking prior to the Series B Preferred
Stock with respect to payment of distributions or rights upon liquidation,
dissolution or winding-up or reclassify any authorized shares of the Corporation
into any such shares, or create, authorize or issue any obligations or
securities convertible into or evidencing the right to purchase any such shares,
(ii) designate or create, or increase the authorized or issued amount of, any
Parity Preferred Stock or reclassify any authorized shares of the Corporation
into any such shares, or create, authorize or issue any obligations or
securities convertible into or evidencing the right to purchase any such shares,
but only to the extent such Parity Preferred Stock is issued to an affiliate of
the Corporation (other than Security Capital U.S. Realty, Security Capital
Holdings, S.A. or their affiliates purchasing preferred stock of the same series
on the same terms as non-affiliates), or (iii) either (A) consolidate, merge
into or with, or convey, transfer or lease its assets substantially as an
entirety, to any corporation or other entity, or (B) amend, alter or repeal the
provisions of the Corporation's Charter (including these Articles of Amendment)
or By-laws, whether by merger, consolidation or otherwise, in each case that
would materially and adversely affect the powers, special rights, preferences,
privileges or voting power of the Series B Preferred Stock or the holders
thereof; provided, however, that with respect to the occurrence of a merger,
consolidation or a sale or lease of all of the Corporation's assets as an
entirety, so long as (a) the Corporation is the surviving entity and the Series
B Preferred Stock remains outstanding (or remains exchangeable for Series B
Preferred Units) with the terms thereof unchanged, or (b) the resulting,
surviving or transferee entity is a corporation organized under the laws of any
state and substitutes the Series B Preferred Stock for other preferred stock
having substantially the same terms and same rights as the Series B Preferred
Stock, including with respect to distributions, voting rights and rights upon
liquidation, dissolution or winding-up, then the occurrence of any such event
shall not be deemed to materially and adversely affect such rights, privileges
or voting powers of the holders of the Series B Preferred Stock and no vote of
the Series B Preferred Stock shall be required in such case and provided further
that any increase in the amount of authorized Preferred Stock or the creation or
issuance of any other class or series of Preferred Stock, or any increase in an
amount of authorized shares of each class or series, in each case ranking either
(a) junior to the Series B Preferred Stock with respect to payment of
distributions and the distribution of assets upon liquidation, dissolution or
winding-up, or (b) on a parity with the Series B Preferred Stock with respect to
payment of distributions and the distribution of assets upon liquidation,
dissolution or winding-up to the extent such Preferred Stock is not issued to an
affiliate of the Corporation (other than Security Capital U.S. Realty, Security
Capital Holdings, S.A. or their affiliates purchasing preferred stock of the
same series on the same terms as non-affiliates), shall not be deemed to
materially and adversely affect such rights, preferences, privileges or voting
powers and no vote of the Voting Securities shall be required in such case.
Section 7. No Conversion Rights. The holders of the Series B
Preferred Stock shall not have any rights to convert such shares into shares of
any other class or series of stock or into any other securities of, or interest
in, the Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for the
retirement or redemption of Series B Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series B
Preferred Stock of the Corporation shall, as such holder, have any preemptive
rights to purchase or subscribe for additional shares of stock of the
Corporation or any other security of the Corporation which it may issue or sell.
FOURTH: The Series B Preferred Stock have been classified and designated by
the Board of Directors under the authority contained in the Charter.
FIFTH: These Articles of Amendment have been approved by the Board of
Directors in the manner and by the vote required by law.
SIXTH: The undersigned Officer of the Corporation acknowledges
these Articles of Amendment to be the corporate act of the Corporation and, as
to all matters or facts required to be verified under oath, the undersigned
Officer acknowledges that to the best of his knowledge, information and belief,
these matters and facts are true in all material respects and that this
statement is made under the penalties for perjury.
[Signature Page Follows]
<PAGE>
Fax Audit No. ________________________ 11
IN WITNESS WHEREOF, the Corporation has caused these Articles of
Amendment to be executed under seal in its name and on its behalf by its
Executive Vice President and attested to by its Secretary on this __________ day
of September, 1999.
REGENCY REALTY CORPORATION
By: /s/ Bruce M. Johnson
Name: Bruce M. Johnson
Title: Executive Vice President
[SEAL]
[ATTEST]
/s/ J. Christian Leavitt
Name: J. Christian Leavitt
Title: Secretary
<PAGE>
ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 750,000 SHARES OF
9.0% SERIES C CUMULATIVE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business
Corporation Act ("FBCA"), Regency Realty Corporation, a Florida corporation (the
"Corporation"), does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board
of Directors of the Corporation by Section 4.2 of the Amended and Restated
Articles of Incorporation of the Corporation (as amended, the "Charter") and
Section 607.0602 of the FBCA, the Board of Directors of the Corporation (the
"Board of Directors"), by resolutions duly adopted on August 23, 1999 has
classified 750,000 shares of the authorized but unissued Preferred Stock par
value $.0l per share ("Preferred Stock") as a separate class of Preferred Stock,
authorized the issuance of a maximum of 750,000 shares of such class of
Preferred Stock, set certain of the preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications, terms
and conditions of redemption and other terms and conditions of such class of
Preferred Stock, and pursuant to the powers contained in the Bylaws of the
Corporation and the FBCA, appointed a committee (the "Committee") of the Board
of Directors and delegated to the Committee, to the fullest extent permitted by
the FBCA and the Charter and Bylaws of the Corporation, all powers of the Board
of Directors with respect to designating, and setting all other preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends and other distributions, qualifications and terms and conditions of
redemption of, such class of Preferred Stock, determining the number of shares
of such class of Preferred Stock (not in excess of the aforesaid maximum number)
to be issued and the consideration and other terms and conditions upon which
such shares of such class of Preferred Stock are to be issued. Shareholder
approval was not required under the Charter with respect to such designation.
Capitalized terms used and not otherwise defined herein shall have the meaning
assigned thereto in the Charter.
SECOND: Pursuant to the authority conferred upon the Committee
as aforesaid, the Committee has unanimously adopted resolutions designating the
aforesaid class of Preferred Stock as the "9.0% Series C Cumulative Redeemable
Preferred Stock," setting the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such 9.0% Series C
Cumulative Redeemable Preferred Stock (to the extent not set by the Board of
Directors in the resolutions referred to in Article First of these Articles of
Amendment) and authorizing the issuance of up to 750,000 shares of 9.0% Series C
Cumulative Redeemable Preferred Stock.
THIRD: The class of Preferred Stock of the Corporation created
by the resolutions duly adopted by the Board of Directors of the Corporation and
by the Committee and referred to in Articles First and Second of these Articles
of Amendment shall have the following designation, number of shares,
preferences, conversion and other rights, voting powers, restrictions and
limitation as to dividends, qualifications, terms and conditions of redemption
and other terms and conditions:
Section 1. Designation and Number. A series of Preferred
Stock, designated the "9.0% Series C Cumulative Redeemable Preferred Stock" (the
"Series C Preferred Stock") is hereby established. The number of shares of
Series C Preferred Stock shall be 750,000.
Section 2. Rank. The Series C Preferred Stock will, with
respect to distributions or rights upon voluntary or involuntary liquidation,
winding-up or dissolution of the Corporation, or both, rank senior to all
classes or series of Common Stock (as defined in the Charter) and to all classes
or series of equity securities of the Corporation now or hereafter authorized,
issued or outstanding other than any class or series of equity securities of the
Corporation expressly designated as ranking on a parity with or senior to the
Series C Preferred Stock as to distributions or rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the Corporation, or both.
For purposes of these Articles of Amendment, the term "Parity Preferred Stock"
shall be used to refer to any class or series of equity securities of the
Corporation now or hereafter authorized, issued or outstanding expressly
designated by the Corporation to rank on a parity with Series C Preferred Stock
with respect to distributions or rights upon voluntary or involuntary
liquidation, winding-up or dissolution of the Corporation, or both, as the
context may require, whether or not the dividend rates, dividend payment dates
or redemption or liquidation prices per share or conversion rights or exchange
rights shall be different from those of the Series C Preferred Stock. The term
"equity securities" does not include debt securities, which will rank senior to
the Series C Preferred Stock prior to conversion. The Series C Preferred Stock
is expressly designated as ranking on a parity with the Series A Preferred Stock
and the Series B Preferred Stock.
Section 3. Distributions. (a) Payment of Distributions.
Subject to the rights of holders of Parity Preferred Stock as to the payment of
distributions and holders of equity securities issued after the date hereof in
accordance herewith ranking senior to the Series C Preferred Stock as to payment
of distributions, holders of Series C Preferred Stock shall be entitled to
receive, out of funds legally available for the payment of distributions,
cumulative preferential cash distributions at the rate per annum of 9.0% of the
$100.00 liquidation preference per share of Series C Preferred Stock. Such
distributions shall be cumulative, shall accrue from the original date of
issuance and will be payable in cash when, as and if declared by the Board of
Directors of the Corporation (A) quarterly in arrears, on or before March 31,
June 30, September 30 and December 31 of each year commencing on the first of
such dates to occur after the original date of issuance and, (B) in the event of
a redemption, on the redemption date (each a "Series C Preferred Stock
Distribution Payment Date"). The amount of the distribution payable for any
period will be computed on the basis of a 360-day year of twelve 30-day months
and for any period shorter than a full quarterly period for which distributions
are computed, the amount of the distribution payable will be computed based on
the ratio of the actual number of days elapsed in such quarterly period to 90
days. If any date on which distributions are to be made on the Series C
Preferred Stock is not a Business Day (as defined herein), then payment of the
distribution to be made on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
Distributions on the Series C Preferred Stock will be made to the holders of
record of the Series C Preferred Stock on the relevant record dates to be fixed
by the Board of Directors of the Corporation, which record dates shall be not
less than 10 days and not more than 30 Business Days prior to the relevant
Series C Preferred Stock Distribution Payment Date (each a "Distribution Record
Date"). Notwithstanding anything to the contrary set forth herein, each share of
Series C Preferred Stock shall also continue to accrue all accrued and unpaid
distributions, whether or not declared, up to the exchange date on any Series C
Preferred Unit (as defined in the Third Amended and Restated Agreement of
Limited Partnership of Regency Centers, L.P., dated as September 1, 1999 as
amended by that certain Amendment No. 2 to Third Amended and Restated Agreement
of Limited Partnership dated as of September 3, 1999 (as amended, the
"Partnership Agreement")) validly exchanged into such share of Series C
Preferred Stock in accordance with the provisions of such Partnership Agreement.
The term "Business Day" shall mean each day, other than a Saturday or a
Sunday, which is not a day on which banking institutions in New York, New York
are authorized or required by law, regulation or executive order to close.
(b) Distributions Cumulative. Distributions on the Series C
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series C Preferred Stock will accumulate as of the Series C Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid at
any time, without reference to a regular Series C Preferred Stock Distribution
Payment Date to holders of record of the Series C Preferred Stock on the record
date fixed by the Board of Directors which date shall be not less than 10 days
and not more than 30 Business Days prior to the payment date. Accumulated and
unpaid distributions will not bear interest.
(c) Priority as to Distributions. (i) So long as any Series C
Preferred Stock is outstanding, no distribution of cash or other property shall
be authorized, declared, paid or set apart for payment on or with respect to any
class or series of Common Stock or any class or series of other stock of the
Corporation ranking junior as to the payment of distributions to the Parity
Preferred Stock (such Common Stock or other junior stock, collectively, "Junior
Stock"), nor shall any cash or other property be set aside for or applied to the
purchase, redemption or other acquisition for consideration of any Series C
Preferred Stock, any Parity Preferred Stock with respect to distributions or any
Junior Stock, unless in each case, all distributions accumulated on all Series C
Preferred Stock and all classes and series of outstanding Parity Preferred Stock
as to payment of distributions have been paid in full. The foregoing sentence
will not prohibit (i) distributions payable solely in Junior Stock, (ii) the
conversion of Series C Preferred Stock, Junior Stock or Parity Preferred Stock
into stock of the Corporation ranking junior to the Series C Preferred Stock as
to distributions, and (iii) purchases by the Corporation of such Series C
Preferred Stock or Parity Preferred Stock with respect to distributions or
Junior Stock pursuant to Article 5 of the Charter to the extent required to
preserve the Corporation's status as a real estate investment trust.
(ii) So long as distributions have not been paid in full (or a sum
sufficient for such full payment is not irrevocably deposited in trust for
payment) upon the Series C Preferred Stock, all distributions authorized and
declared on the Series C Preferred Stock and all classes or series of
outstanding Parity Preferred Stock with respect to distributions shall be
authorized and declared so that the amount of distributions authorized and
declared per share of Series C Preferred Stock and such other classes or series
of Parity Preferred Stock shall in all cases bear to each other the same ratio
that accrued distributions per share on the Series C Preferred Stock and such
other classes or series of Parity Preferred Stock (which shall not include any
accumulation in respect of unpaid distributions for prior distribution periods
if such class or series of Parity Preferred Stock does not have cumulative
distribution rights) bear to each other.
(d) No Further Rights. Holders of Series C Preferred Stock shall not be
entitled to any distributions, whether payable in cash, other property or
otherwise, in excess of the full cumulative distributions described herein.
Section 4. Liquidation Preference. (a) Payment of Liquidation
Distributions. Subject to the rights of holders of Parity Preferred Stock with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation and subject to equity securities ranking senior to
the Series C Preferred Stock with respect to rights upon any voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation, the
holders of Series C Preferred Stock shall be entitled to receive out of the
assets of the Corporation legally available for distribution or the proceeds
thereof, after payment or provision for debts and other liabilities of the
Corporation, but before any payment or distributions of the assets shall be made
to holders of Common Stock or any other class or series of shares of the
Corporation that ranks junior to the Series C Preferred Stock as to rights upon
liquidation, dissolution or winding-up of the Corporation, an amount equal to
the sum of (i) a liquidation preference of $100.00 per share of Series C
Preferred Stock, and (ii) an amount equal to any accumulated and unpaid
distributions thereon, whether or not declared, to the date of payment. In the
event that, upon such voluntary or involuntary liquidation, dissolution or
winding-up, there are insufficient assets to permit full payment of liquidating
distributions to the holders of Series C Preferred Stock and any Parity
Preferred Stock as to rights upon liquidation, dissolution or winding-up of the
Corporation, all payments of liquidating distributions on the Series C Preferred
Stock and such Parity Preferred Stock shall be made so that the payments on the
Series C Preferred Stock and such Parity Preferred Stock shall in all cases bear
to each other the same ratio that the respective rights of the Series C
Preferred Stock and such other Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior distribution
periods if such Parity Preferred Stock does not have cumulative distribution
rights) upon liquidation, dissolution or winding-up of the Corporation bear to
each other.
(b) Notice. Written notice of any such voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation, stating
the payment date or dates when, and the place or places where, the amounts
distributable in such circumstances shall be payable, shall be given by (i) fax
and (ii) by first class mail, postage pre-paid, not less than 30 and not more
than 60 days prior to the payment date stated therein, to each record holder of
the Series C Preferred Stock at the respective addresses of such holders as the
same shall appear on the share transfer records of the Corporation.
(c) No Further Rights. After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of Series C Preferred
Stock will have no right or claim to any of the remaining assets of the
Corporation.
(d) Consolidation Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the consolidation or merger or
other business combination of the Corporation with or into, any corporation,
trust or other entity (or of any corporation, trust or other entity with or into
the Corporation) shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Corporation.
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
Section 5. Optional Redemption. (a) Right of Optional
Redemption. The Series C Preferred Stock may not be redeemed prior to September
3, 2004. On or after such date, the Corporation shall have the right to redeem
the Series C Preferred Stock, in whole or in part, at any time or from time to
time, upon not less than 30 nor more than 60 days' written notice, at a
redemption price, payable in cash, equal to $100.00 per share of Series C
Preferred Stock plus accumulated and unpaid distributions, whether or nor
declared, to the date of redemption. If fewer than all of the outstanding shares
of Series C Preferred Stock are to be redeemed, the shares of Series C Preferred
Stock to be redeemed shall be selected pro rata (as nearly as practicable
without creating fractional shares).
(b) Limitation on Redemption. (i) The redemption price of the
Series C Preferred Stock (other than the portion thereof consisting of
accumulated but unpaid distributions) will be payable solely out of sale
proceeds of capital stock of the Corporation and from no other source. For
purposes of the preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares, participation or other
ownership interests (however designated) and any rights (other than debt
securities convertible into or exchangeable for equity securities) or options to
purchase any of the foregoing.
(ii) The Corporation may not redeem fewer than all of the outstanding
shares of Series C Preferred Stock unless all accumulated and unpaid
distributions have been paid on all Series C Preferred Stock for all quarterly
distribution periods terminating on or prior to the date of redemption.
(c) Procedures for Redemption. (i) Notice of redemption will
be (i) faxed, and (ii) mailed by the Corporation, postage prepaid, not less than
30 nor more than 60 days prior to the redemption date, addressed to the
respective holders of record of the Series C Preferred Stock to be redeemed at
their respective addresses as they appear on the transfer records of the
Corporation. No failure to give or defect in such notice shall affect the
validity of the proceedings for the redemption of any Series C Preferred Stock
except as to the holder to whom such notice was defective or not given. In
addition to any information required by law or by the applicable rules of any
exchange upon which the Series C Preferred Stock may be listed or admitted to
trading, each such notice shall state: (i) the redemption date, (ii) the
redemption price, (iii) the number of shares of Series C Preferred Stock to be
redeemed, (iv) the place or places where such shares of Series C Preferred Stock
are to be surrendered for payment of the redemption price, (v) that
distributions on the Series C Preferred Stock to be redeemed will cease to
accumulate on such redemption date and (vi) that payment of the redemption price
and any accumulated and unpaid distributions will be made upon presentation and
surrender of such Series C Preferred Stock. If fewer than all of the shares of
Series C Preferred Stock held by any holder are to be redeemed, the notice
mailed to such holder shall also specify the number of shares of Series C
Preferred Stock held by such holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in respect of Series C
Preferred Stock (which notice will be irrevocable) then, by 12:00 noon, New York
City time, on the redemption date, the Corporation will deposit irrevocably in
trust for the benefit of the Series C Preferred Stock being redeemed funds
sufficient to pay the applicable redemption price, plus any accumulated and
unpaid distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any accumulated and
unpaid distributions, if any, on such shares to the holders of the Series C
Preferred Stock upon surrender of the certificate evidencing the Series C
Preferred Stock by such holders at the place designated in the notice of
redemption. If fewer than all Series C Preferred Stock evidenced by any
certificate is being redeemed, a new certificate shall be issued upon surrender
of the certificate evidencing all Series C Preferred Stock, evidencing the
unredeemed Series C Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on the
Series C Preferred Stock or portions thereof called for redemption, unless the
Corporation defaults in the payment thereof. If any date fixed for redemption of
Series C Preferred Stock is not a Business Day, then payment of the redemption
price payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date fixed for redemption. If
payment of the redemption price or any accumulated or unpaid distributions in
respect of the Series C Preferred Stock is improperly withheld or refused and
not paid by the Corporation, distributions on such Series C Preferred Stock will
continue to accumulate from the original redemption date to the date of payment,
in which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the applicable redemption price and any
accumulated and unpaid distributions.
(d) Status of Redeemed Stock. Any Series C Preferred Stock
that shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
class or series until such shares are once more designated as part of a
particular class or series by the Board of Directors.
Section 6. Voting Rights. (a) General. Holders of the Series C Preferred
Stock will not have any voting rights, except as set forth below.
(b) Right to Elect Directors. (i) If at any time distributions
shall be in arrears (which means that as to any such quarterly distributions,
the same have not been paid in full) with respect to six (6) prior quarterly
distribution periods (including quarterly periods on the Series C Preferred
Units prior to the exchange into Series C Preferred Stock), whether or not
consecutive, and shall not have been paid in full (a "Series C Preferred
Distribution Default"), the authorized number of members of the Board of
Directors shall automatically be increased by two and the holders of record of
such Series C Preferred Stock, voting together as a single class with the
holders of each class or series of Parity Preferred Stock upon which like voting
rights have been conferred and are exercisable, will be entitled to fill the
vacancies so created by electing two additional directors to serve on the
Corporation's Board of Directors (the "Preferred Stock Directors") at a special
meeting called in accordance with Section 6(b)(ii), and at each subsequent
annual meeting of stockholders or special meeting held in place thereof, until
all such distributions in arrears and distributions for the current quarterly
period on the Series C Preferred Stock and each such class or series of Parity
Preferred Stock have been paid in full.
(ii) At any time when such voting rights shall have vested, a proper
officer of the Corporation shall call or cause to be called, upon written
request of holders of record of at least 10% of the outstanding shares of Series
C Preferred Stock, a special meeting of the holders of Series C Preferred Stock
and all the series of Parity Preferred Stock upon which like voting rights have
been conferred and are exercisable (collectively, the "Parity Securities") by
mailing or causing to be mailed to such holders a notice of such special meeting
to be held not less than ten and not more than 45 days after the date such
notice is given. The record date for determining holders of the Parity
Securities entitled to notice of and to vote at such special meeting will be the
close of business on the third Business Day preceding the day on which such
notice is mailed. At any annual or special meeting at which Parity Securities
are entitled to vote, all of the holders of the Parity Securities, by plurality
vote, voting together as a single class without regard to series will be
entitled to elect two directors on the basis of one vote per $25.00 of
liquidation preference to which such Parity Securities are entitled by their
terms (excluding amounts in respect of accumulated and unpaid dividends) and not
cumulatively. The holder or holders of the Parity Securities representing
one-third of the total voting power of the Parity Securities then outstanding,
present in person or by proxy, will constitute a quorum for the election of the
Preferred Stock Directors except as otherwise provided by law. Notice of all
meetings at which holders of the Series C Preferred Stock shall be entitled to
vote will be given to such holders at their addresses as they appear in the
transfer records. At any such meeting or adjournment thereof in the absence of a
quorum, subject to the provisions of any applicable law, the holders of the
Parity Securities representing a majority of the voting power of the Parity
Securities present in person or by proxy shall have the power to adjourn the
meeting for the election of the Preferred Stock Directors, without notice other
than an announcement at the meeting, until a quorum is present. If a Series C
Preferred Distribution Default shall terminate after the notice of an annual or
special meeting has been given but before such meeting has been held, the
Corporation shall, as soon as practicable after such termination, mail or cause
to be mailed notice of such termination to holders of the Series C Preferred
Stock that would have been entitled to vote at such meeting.
(iii) If and when all accumulated distributions and the distribution for
the current distribution period on the Series C Preferred Stock shall have been
paid in full or a sum sufficient for such payment is irrevocably deposited in
trust for payment, the holders of the Series C Preferred Stock shall be divested
of the voting rights set forth in Section 6(b) herein (subject to revesting in
the event of each and every Series C Preferred Distribution Default) and, if all
distributions in arrears and the distributions for the current distribution
period have been paid in full or set aside for payment in full on all other
classes or series of Parity Preferred Stock upon which like voting rights have
been conferred and are exercisable, the terms and office of each Preferred Stock
Director so elected shall terminate. Any Preferred Stock Director may be removed
at any time with or without cause by the vote of, and shall not be removed
otherwise than by the vote of, the holders of record of a majority of the
outstanding Series C Preferred Stock when they have the voting rights set forth
in Section 6(b) (voting separately as a single class with all other classes or
series of Parity Preferred Stock upon which like voting rights have been
conferred and are exercisable). So long as a Series C Preferred Distribution
Default shall continue, any vacancy in the office of a Preferred Stock Director
may be filled by written consent of the Preferred Stock Director remaining in
office, or if none remains in office, by a vote of the holders of record of a
majority of the outstanding Series C Preferred Stock when they have the voting
rights set forth in Section 6(b) (voting separately as a single class with all
other classes or series of Parity Preferred Stock upon which like voting rights
have been conferred and are exercisable). The Preferred Stock Directors shall
each be entitled to one vote per director on any matter.
(c) Certain Voting Rights. So long as any Series C Preferred
Stock remains outstanding, the Corporation shall not, without the affirmative
vote of the holders of at least two-thirds of the Series C Preferred Stock
outstanding at the time (i) authorize, designate or create, or increase the
authorized or issued amount of, any class or series of shares ranking prior to
the Series C Preferred Stock with respect to payment of distributions or rights
upon liquidation, dissolution or winding-up or reclassify any authorized shares
of the Corporation into any such shares, or create, authorize or issue any
obligations or securities convertible into or evidencing the right to purchase
any such shares, (ii) authorize, designate or create, or increase the authorized
or issued amount of, any Parity Preferred Stock or reclassify any authorized
shares of the Corporation into any such shares, or create, authorize or issue
any obligations or securities convertible into or evidencing the right to
purchase any such shares, but only to the extent such Parity Preferred Stock is
issued to an affiliate of the Corporation (other than Security Capital U.S.
Realty, Security Capital Holdings, S.A. or their affiliates), or (iii) either
(A) consolidate, merge into or with, or convey, transfer or lease its assets
substantially as an entirety, to any corporation or other entity, or (B) amend,
alter or repeal the provisions of the Corporation's Charter (including these
Articles of Amendment) or By-laws, whether by merger, consolidation or
otherwise, in each case in a manner that would materially and adversely affect
the powers, special rights, preferences, privileges or voting power of the
Series C Preferred Stock or the holders thereof; provided, however, that with
respect to the occurrence of a merger, consolidation or a sale or lease of all
of the Corporation's assets as an entirety, so long as (a) the Corporation is
the surviving entity and the Series C Preferred Stock remains outstanding with
the terms thereof unchanged, or (b) the resulting, surviving or transferee
entity is a corporation organized under the laws of any state and substitutes
the Series C Preferred Stock for other preferred stock having substantially the
same terms and same rights as the Series C Preferred Stock, including with
respect to distributions, redemptions, transfers, voting rights and rights upon
liquidation, dissolution or winding-up, then the occurrence of any such event
shall not be deemed to materially and adversely affect such rights, privileges
or voting powers of the holders of the Series C Preferred Stock and no vote of
the Series C Preferred Stock shall be required in such case and provided further
that any increase in the amount of authorized Preferred Stock or the creation or
issuance of any other class or series of Preferred Stock, or any increase in an
amount of authorized shares of each class or series, in each case ranking either
(a) junior to the Series C Preferred Stock with respect to payment of
distributions and the distribution of assets upon liquidation, dissolution or
winding-up, or (b) on a parity with the Series C Preferred Stock with respect to
payment of distributions and the distribution of assets upon liquidation,
dissolution or winding-up to the extent such Preferred Stock is not issued to an
affiliate of the Corporation (other than Security Capital U.S. Realty, Security
Capital Holdings, S.A. or their affiliates), shall not be deemed to materially
and adversely affect such rights, preferences, privileges or voting powers and
no vote of the Series C Preferred Stock shall be required in such case.
Section 7. No Conversion Rights. The holders of the Series C
Preferred Stock shall not have any rights to convert such shares into shares of
any other class or series of stock or into any other securities of, or interest
in, the Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for the
retirement or redemption of Series C Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series C
Preferred Stock of the Corporation shall, as such holder, have any preemptive
rights to purchase or subscribe for additional shares of stock of the
Corporation or any other security of the Corporation which it may issue or sell.
FOURTH: The Series C Preferred Stock have been classified and designated by
the Board of Directors under the authority contained in the Charter.
FIFTH: These Articles of Amendment have been approved by the Board of
Directors in the manner and by the vote required by law.
SIXTH: The undersigned Officer of the Corporation acknowledges
these Articles of Amendment to be the corporate act of the Corporation and, as
to all matters or facts required to be verified under oath, the undersigned
Officer acknowledges that to the best of his knowledge, information and belief,
these matters and facts are true in all material respects and that this
statement is made under the penalties for perjury.
[Signature Page Follows]
<PAGE>
Fax Audit No. H99000022256 11
IN WITNESS WHEREOF, the Corporation has caused these Articles of
Amendment to be executed under seal in its name and on its behalf by its
Executive Vice President and attested to by its Secretary on this _________ day
of September, 1999.
REGENCY REALTY CORPORATION
By: /s/ Bruce M. Johnson
Name: Bruce M. Johnson
Title: Executive Vice President
[SEAL]
[ATTEST]
J. Christian Leavitt
Name: J. Christian Leavitt
Title: Secretary
<PAGE>
NYDOCS03/486174 6 12
004.160941.1
NYDOCS03/486174 6
004.160941.1
ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 500,000 SHARES OF
9.125% SERIES D CUMULATIVE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business
Corporation Act ("FBCA"), Regency Realty Corporation, a Florida corporation (the
"Corporation"), does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board
of Directors of the Corporation by Section 4.2 of the Amended and Restated
Articles of Incorporation of the Corporation (the "Charter") and Section
607.0602 of the FBCA, the Board of Directors of the Corporation (the "Board of
Directors"), by resolutions duly adopted on August 23, 1999 and resolutions duly
adopted by a committee of the Board of Directors on September 29, 1999 has
classified 500,000 shares of the authorized but unissued Preferred Stock par
value $.01 per share ("Preferred Stock") as a separate class of Preferred Stock,
authorized the issuance of a maximum of 500,000 shares of such class of
Preferred Stock, set certain of the preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications, terms
and conditions of redemption and other terms and conditions of such class of
Preferred Stock, and pursuant to the powers contained in the Bylaws of the
Corporation and the FBCA, appointed a committee (the "Committee") of the Board
of Directors and delegated to the Committee, to the fullest extent permitted by
the FBCA and the Charter and Bylaws of the Corporation, all powers of the Board
of Directors with respect to designating, and setting all other preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends and other distributions, qualifications and terms and conditions of
redemption of, such class of Preferred Stock determining the number of shares of
such class of Preferred Stock (not in excess of the aforesaid maximum number) to
be issued and the consideration and other terms and conditions upon which such
shares of such class of Preferred Stock are to be issued. Shareholder approval
was not required under the Charter with respect to such designation.
SECOND: Pursuant to the authority conferred upon the Committee
as aforesaid, the Committee has unanimously adopted resolutions designating the
aforesaid class of Preferred Stock as the "9.125% Series D Cumulative Redeemable
Preferred Stock," setting the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such 9.125% Series D
Cumulative Redeemable Preferred Stock (to the extent not set by the Board of
Directors in the resolutions referred to in Article FIRST of these Articles of
Amendment) and authorizing the issuance of up to 500,000 shares of 9.125% Series
D Cumulative Redeemable Preferred Stock.
THIRD: The class of Preferred Stock of the Corporation created
by the resolutions duly adopted by the Board of Directors of the Corporation and
by the Committee and referred to in Articles FIRST and SECOND of these Articles
of Amendment shall have the following designation, number of shares,
preferences, conversion and other rights, voting powers, restrictions and
limitation as to dividends, qualifications, terms and conditions of redemption
and other terms and conditions:
Section 1. Designation and Number. A series of Preferred
Stock, designated the "9.125% Series D Cumulative Redeemable Preferred Stock"
(the "Series D Preferred Stock") is hereby established. The number of shares of
Series D Preferred Stock shall be 500,000.
Section 2. Rank. The Series D Preferred Stock will, with
respect to distributions and rights upon voluntary or involuntary liquidation,
winding-up or dissolution of the Corporation, rank senior to all classes or
series of Common Stock (as defined in the Charter) and to all classes or series
of equity securities of the Corporation now or hereafter authorized, issued or
outstanding, other than any class or series of equity securities of the
Corporation expressly designated as ranking on a parity with or senior to the
Series D Preferred Stock as to distributions or rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the Corporation or both.
For purposes of these Articles of Amendment, the term "Parity Preferred Stock"
shall be used to refer to any class or series of equity securities of the
Corporation now or hereafter authorized, issued or outstanding expressly
designated by the Corporation to rank on a parity with Series D Preferred Stock
with respect to distributions or rights upon voluntary or involuntary
liquidation, winding-up or dissolution of the Corporation or both, as the
context may require, whether or not the dividend rates, dividend payment dates
or redemption or liquidation prices per share or conversion rights or exchange
rights shall be different from those of the Series D Preferred Stock and
includes the Series A Cumulative Redeemable Preferred Stock, the Series B
Cumulative Redeemable Preferred Stock, the Series C Cumulative Redeemable
Preferred Stock, the Series 1 Cumulative Convertible Redeemable Preferred Stock
and the Series 2 Cumulative Convertible Redeemable Preferred Stock of the
Corporation. The term "equity securities" does not include debt securities,
which will rank senior to the Series D Preferred Stock prior to conversion.
Section 3. Distributions. (a) Payment of Distributions.
Subject to the rights of holders of Parity Preferred Stock as to the payment of
distributions and holders of equity securities issued after the date hereof in
accordance herewith ranking senior to the Series D Preferred Stock as to payment
of distributions, holders of Series D Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors of the Corporation,
out of funds legally available for the payment of distributions, cumulative cash
distributions at the rate per annum of 9.125% of the $100.00 liquidation
preference per share of Series D Preferred Stock. Such distributions shall be
cumulative, shall accrue from the original date of issuance and will be payable
in cash (A) quarterly (such quarterly periods for purposes of payment and
accrual will be the quarterly periods ending on the dates specified in this
sentence) in arrears, on or before March 31, June 30, September 30 and December
31 of each year commencing on the first of such dates to occur after the
original date of issuance and, (B) in the event of a redemption, on the
redemption date (each a "Preferred Stock Distribution Payment Date"). The amount
of the distribution payable for any period will be computed on the basis of a
360-day year of twelve 30-day months and for any period shorter than a full
quarterly period for which distributions are computed, the amount of the
distribution payable will be computed on the basis of the ratio of the actual
number of days elapsed in such period to ninety (90) days. If any date on which
distributions are to be made on the Series D Preferred Stock is not a Business
Day (as defined herein), then payment of the distribution to be made on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. Distributions on the Series D Preferred Stock
will be made to the holders of record of the Series D Preferred Stock on the
relevant record dates to be fixed by the Board of Directors of the Corporation,
which record dates shall be not less than 10 days and not more than 30 Business
Days prior to the relevant Preferred Stock Distribution Payment Date (each a
"Distribution Record Date"). Notwithstanding anything to the contrary set forth
herein, each share of Series D Preferred Stock shall also continue to accrue all
accrued and unpaid distributions, whether or not declared, up to the exchange
date on any Series D Preferred Unit (as defined in the Third Amended and
Restated Agreement of Limited Partnership of Regency Centers, L.P., dated as
September 1, 1999 as amended by Amendment No. 1 to the Third Amended and
Restated Agreement of Limited Partnership of Operating Partnership, dated as of
September 3, 1999, Amendment No. 2 to the Third Amended and Restated Agreement
of Limited Partnership of Operating Partnership, dated as of September 3, 1999
and that certain Third Amendment to Third Amended and Restated Agreement of
Limited Partnership dated as of September 29, 1999 (as amended the "Partnership
Agreement")) validly exchanged into such share of Series D Preferred Stock in
accordance with the provisions of such Partnership Agreement.
The term "Business Day" shall mean each day, other than a
Saturday or a Sunday, which is not a day on which banking institutions in New
York, New York are authorized or required by law, regulation or executive order
to close.
(b) Limitation on Distributions. No distribution on the Series
D Preferred Stock shall be declared or paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement of the
Corporation (other than any agreement with a holder or affiliate of holder of
Capital Stock of the Corporation) relating to its indebtedness, prohibit such
declaration, payment or setting apart for payment or provide that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration, payment or setting
apart for payment shall be restricted or prohibited by law. Nothing in this
Section 3(b) shall be deemed to modify or in any manner limit the provisions of
Section 3(c) and 3(d).
(c) Distributions Cumulative. Distributions on the Series D
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series D Preferred Stock will accumulate as of the Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid at
any time, without reference to a regular Preferred Stock Distribution Payment
Date to holders of record of the Series D Preferred Stock on the record date
fixed by the Board of Directors which date shall be not less than 10 days and
not more than 30 Business Days prior to the payment date. Accumulated and unpaid
distributions will not bear interest.
(d) Priority as to Distributions. (i) So long as any Series D
Preferred Stock is outstanding, no distribution of cash or other property shall
be authorized, declared, paid or set apart for payment on or with respect to any
class or series of Common Stock or any class or series of other stock of the
Corporation ranking junior to the Series D Preferred Stock as to the payment of
distributions (such Common Stock or other junior stock, collectively, "Junior
Stock"), nor shall any cash or other property be set aside for or applied to the
purchase, redemption or other acquisition for consideration of any Series D
Preferred Stock, any Parity Preferred Stock with respect to distributions or any
Junior Stock, unless, in each case, all distributions accumulated on all Series
D Preferred Stock and all classes and series of outstanding Parity Preferred
Stock with respect to distributions have been paid in full. Without limiting
Section 6(b) hereof, the foregoing sentence will not prohibit (i) distributions
payable solely in shares of Junior Stock, (ii) the conversion of Junior Stock or
Parity Preferred Stock into Junior Stock, and (iii) purchases by the Corporation
of such Series D Preferred Stock or Parity Preferred Stock or Junior Stock
pursuant to Article 5 of the Charter to the extent required to preserve the
Corporation's status as a real estate investment trust.
(ii) So long as distributions have not been paid in full (or a sum
sufficient for such full payment is not irrevocably deposited in trust for
payment) upon the Series D Preferred Stock, all distributions authorized and
declared on the Series D Preferred Stock and all classes or series of
outstanding Parity Preferred Stock with respect to distributions shall be
authorized and declared so that the amount of distributions authorized and
declared per share of Series D Preferred Stock and such other classes or series
of Parity Preferred Stock shall in all cases bear to each other the same ratio
that accrued distributions per share on the Series D Preferred Stock and such
other classes or series of Parity Preferred Stock (which shall not include any
accumulation in respect of unpaid distributions for prior distribution periods
if such class or series of Parity Preferred Stock do not have cumulative
distribution rights) bear to each other.
(e) No Further Rights. Holders of Series D Preferred Stock
shall not be entitled to any distributions, whether payable in cash, other
property or otherwise, in excess of the full cumulative distributions described
herein.
Section 4. Liquidation Preference. (a) Payment of Liquidating
Distributions. Subject to the rights of holders of Parity Preferred Stock with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation and subject to equity securities ranking senior to
the Series D Preferred Stock with respect to rights upon any voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation, the
holders of Series D Preferred Stock shall be entitled to receive out of the
assets of the Corporation legally available for distribution or the proceeds
thereof, after payment or provision for debts and other liabilities of the
Corporation, but before any payment or distributions of the assets shall be made
to holders of Common Stock or any other class or series of shares of the
Corporation that ranks junior to the Series D Preferred Stock as to rights upon
liquidation, dissolution or winding-up of the Corporation, an amount equal to
the sum of (i) a liquidation preference of $100 per share of Series D Preferred
Stock, and (ii) an amount equal to any accumulated and unpaid distributions
thereon, whether or not declared, to the date of payment. In the event that,
upon such voluntary or involuntary liquidation, dissolution or winding-up, there
are insufficient assets to permit full payment of liquidating distributions to
the holders of Series D Preferred Stock and any Parity Preferred Stock as to
rights upon liquidation, dissolution or winding-up of the Corporation, all
payments of liquidating distributions on the Series D Preferred Stock and such
Parity Preferred Stock shall be made so that the payments on the Series D
Preferred Stock and such Parity Preferred Stock shall in all cases bear to each
other the same ratio that the respective rights of the Series D Preferred Stock
and such other Parity Preferred Stock (which shall not include any accumulation
in respect of unpaid distributions for prior distribution periods if such Parity
Preferred Stock do not have cumulative distribution rights) upon liquidation,
dissolution or winding-up of the Corporation bear to each other.
(b) Notice. Written notice of any such voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation, stating
the payment date or dates when, and the place or places where, the amounts
distributable in such circumstances shall be payable, shall be given by (i) fax
and (ii) by first class mail, postage pre-paid, not less than 30 and not more
than 60 days prior to the payment date stated therein, to each record holder of
the Series D Preferred Stock at the respective addresses of such holders as the
same shall appear on the share transfer records of the Corporation.
(c) No Further Rights. After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of Series D Preferred
Stock will have no right or claim to any of the remaining assets of the
Corporation.
(d) Consolidation, Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the consolidation or merger or
other business combination of the Corporation with or into, any corporation,
trust or other entity (or of any corporation, trust or other entity with or into
the Corporation) shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Corporation.
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
Section 5. Optional Redemption. (a) Right of Optional
Redemption. The Series D Preferred Stock may not be redeemed prior to September
29, 2004. On or after such date, the Corporation shall have the right to redeem
the Series D Preferred Stock, in whole or in part, at any time or from time to
time, upon not less than 30 nor more than 60 days' written notice, at a
redemption price, payable in cash, equal to $100 per share of Series D Preferred
Stock plus accumulated and unpaid distributions, whether or nor declared, to the
date of redemption. If fewer than all of the outstanding shares of Series D
Preferred Stock are to be redeemed, the shares of Series D Preferred Stock to be
redeemed shall be selected pro rata (as nearly as practicable without creating
fractional units).
(b) Limitation on Redemption. (i) The redemption price of the
Series D Preferred Stock (other than the portion thereof consisting of
accumulated but unpaid distributions) will be payable solely out of sale
proceeds of capital stock of the Corporation and from no other source. For
purposes of the preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares, participation or other
ownership interests (however designated) and any rights (other than debt
securities convertible into or exchangeable for equity securities) or options to
purchase any of the foregoing.
(ii) The Corporation may not redeem fewer than all of the outstanding
shares of Series D Preferred Stock unless all accumulated and unpaid
distributions have been paid on all Series D Preferred Stock for all quarterly
distribution periods terminating on or prior to the date of redemption.
(c) Procedures for Redemption. (i) Notice of redemption will
be (i) faxed, and (ii) mailed by the Corporation, postage prepaid, not less than
30 nor more than 60 days prior to the redemption date, addressed to the
respective holders of record of the Series D Preferred Stock to be redeemed at
their respective addresses as they appear on the transfer records of the
Corporation. No failure to give or defect in such notice shall affect the
validity of the proceedings for the redemption of any Series D Preferred Stock
except as to the holder to whom such notice was defective or not given. In
addition to any information required by law or by the applicable rules of any
exchange upon which the Series D Preferred Stock may be listed or admitted to
trading, each such notice shall state: (i) the redemption date, (ii) the
redemption price, (iii) the number of shares of Series D Preferred Stock to be
redeemed, (iv) the place or places where such shares of Series D Preferred Stock
are to be surrendered for payment of the redemption price, (v) that
distributions on the Series D Preferred Stock to be redeemed will cease to
accumulate on such redemption date and (vi) that payment of the redemption price
and any accumulated and unpaid distributions will be made upon presentation and
surrender of such Series D Preferred Stock. If fewer than all of the shares of
Series D Preferred Stock held by any holder are to be redeemed, the notice
mailed to such holder shall also specify the number of shares of Series D
Preferred Stock held by such holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in respect of Series D
Preferred Stock (which notice will be irrevocable) then, by 12:00 noon, New York
City time, on the redemption date, the Corporation will deposit irrevocably in
trust for the benefit of the Series D Preferred Stock being redeemed funds
sufficient to pay the applicable redemption price, plus any accumulated and
unpaid distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any accumulated and
unpaid distributions, if any, on such shares to the holders of the Series D
Preferred Stock upon surrender of the certificate evidencing the Series D
Preferred Stock by such holders at the place designated in the notice of
redemption. If fewer than all Series D Preferred Stock evidenced by any
certificate is being redeemed, a new certificate shall be issued upon surrender
of the certificate evidencing all Series D Preferred Stock, evidencing the
unredeemed Series D Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on the
Series D Preferred Stock or portions thereof called for redemption, unless the
Corporation defaults in the payment thereof. If any date fixed for redemption of
Series D Preferred Stock is not a Business Day, then payment of the redemption
price payable on such date will be made on the next succeeding day that is a
Business Bay (and without any interest or other payment in respect of any such
delay) except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date fixed for redemption. If
payment of the redemption price or any accumulated or unpaid distributions in
respect of the Series D Preferred Stock is improperly withheld or refused and
not paid by the Corporation, distributions on such Series D Preferred Stock will
continue to accumulate from the original redemption date to the date of payment,
in which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the applicable redemption price and any
accumulated and unpaid distributions.
(d) Status of Redeemed Stock. Any Series D Preferred Stock
that shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
class or series until such shares are once more designated as part of a
particular class or series by the Board of Directors.
Section 6. Voting Rights. (a) General. Holders of the Series D Preferred
Stock will not have any voting rights, except as set forth below.
(b) Right to Elect Directors. (i) If at any time distributions
shall be in arrears (which means that, as to any such quarterly distributions,
the same have not been paid in full) with respect to six (6) prior quarterly
distribution periods (including quarterly periods on the Series D Preferred
Units prior to the exchange into Series D Preferred Stock), whether or not
consecutive, and shall not have been paid in full (a "Preferred Distribution
Default"), the authorized number of members of the Board of Directors shall
automatically be increased by two and the holders of record of such Series D
Preferred Stock, voting together as a single class with the holders of each
class or series of Parity Securities (as defined below), will be entitled to
fill the vacancies so created by electing two additional directors to serve on
the Corporation's Board of Directors (the "Preferred Stock Directors") at a
special meeting called in accordance with Section 6(b)(ii) or at the next annual
meeting of stockholders, and at each subsequent annual meeting of stockholders
or special meeting held in place thereof, until all such distributions in
arrears and distributions for the current quarterly period on the Series D
Preferred Stock and each such class or series of Parity Securities have been
paid in full.
(ii) At any time when such voting rights shall have vested, a proper
officer of the Corporation shall call or cause to be called, upon written
request of holders of record of at least 10% of the outstanding shares of Series
D Preferred Stock, a special meeting of the holders of Series D Preferred Stock
and all the series of Parity Preferred Stock which are (i) on parity with the
Series D Preferred Stock both as to distributions and rights upon liquidation,
dissolution and winding up, (ii) with respect to Parity Preferred Stock
outstanding as a result of an acquisition of another corporation, on parity with
the Series D Preferred Stock as to distributions only or with respect to
distributions and rights upon liquidation, dissolution or winding up or (iii) on
parity with the Series D Preferred Stock as to distributions, but junior as to
rights upon liquidation, dissolution and winding up, but if any such Parity
Preferred Stock referred to in this clause (iii) was issued for an amount less
than its liquidation preference, the holders thereof shall be entitled to one
vote for each $25.00 of issuance price, in lieu of one vote for each $25.00 of
liquidation preference, and upon which like voting rights have been conferred
and are exercisable (collectively, the "Parity Securities") by mailing or
causing to be mailed to such holders a notice of such special meeting to be held
not less than ten and not more than 45 days after the date such notice is given.
The record date for determining holders of the Parity Securities entitled to
notice of and to vote at such special meeting will be the close of business on
the third Business Day preceding the day on which such notice is mailed. At any
annual or special meeting at which Parity Securities are entitled to vote, all
of the holders of the Parity Securities, by plurality vote, voting together as a
single class without regard to series will be entitled to elect two directors on
the basis of one vote per $25.00 of liquidation preference to which such Parity
Securities are entitled by their terms (excluding amounts in respect of
accumulated and unpaid dividends) and not cumulatively. The holder or holders of
the Parity Securities representing one-third of the total voting power of the
Parity Securities then outstanding, present in person or by proxy, will
constitute a quorum for the election of the Preferred Stock Directors except as
otherwise provided by law. Notice of all meetings at which holders of the Series
D Preferred Stock shall be entitled to vote will be given to such holders at
their addresses as they appear in the transfer records. At any such meeting or
adjournment thereof in the absence of a quorum, subject to the provisions of any
applicable law, the holders of the Parity Securities representing a majority of
the voting power of the Parity Securities present in person or by proxy shall
have the power to adjourn the meeting for the election of the Preferred Stock
Directors, without notice other than an announcement at the meeting, until a
quorum is present. If a Preferred Distribution Default shall terminate after the
notice of an annual or special meeting has been given but before such meeting
has been held, the Corporation shall, as soon as practicable after such
termination, mail or cause to be mailed notice of such termination to holders of
the Series D Preferred Stock that would have been entitled to vote at such
meeting.
(iii) If and when all accumulated distributions and the distribution for
the current distribution period on the Series D Preferred Stock shall have been
paid in full or a sum sufficient for such payment is irrevocably deposited in
trust for payment, the holders of the Series D Preferred Stock shall be divested
of the voting rights set forth in Section 6(b) herein (subject to revesting in
the event of each and every Preferred Distribution Default) and, if all
distributions in arrears and the distributions for the current distribution
period have been paid in full or set aside for payment in full on all other
classes or series of Parity Securities upon which like voting rights have been
conferred and are exercisable, the term and office of each Preferred Stock
Director so elected shall terminate. Any Preferred Stock Director may be removed
at any time with or without cause by the vote of, and shall not be removed
otherwise than by the vote of, the holders of record of a majority of the
outstanding Series D Preferred Stock when they have the voting rights set forth
in Section 6(b) (voting separately as a single class with all other classes or
series of Parity Preferred Stock upon which like voting rights have been
conferred and are exercisable). So long as a Preferred Distribution Default
shall continue, any vacancy in the office of a Preferred Stock Director may be
filled by written consent of the Preferred Stock Director remaining in office,
or if none remains in office, by a vote of the holders of record of a majority
of the outstanding Series D Preferred Stock when they have the voting rights set
forth in Section 6(b) (voting separately as a single class with all other
classes or series of Parity Securities upon which like voting rights have been
conferred and are exercisable). The Preferred Stock Directors shall each be
entitled to one vote per director on any matter.
(c) Certain Voting Rights. So long as any Series D Preferred
Stock remains outstanding, the Corporation shall not, without the affirmative
vote of the holders of at least two-thirds of the Series D Preferred Stock and
the Series D Preferred Units outstanding at such time and not previously
surrendered in exchange for Series D Preferred Stock together, if applicable,
voting as a single class based on the number of shares into which such Series D
Preferred Units are then convertible (collectively, the "Series D Voting
Securities") (i) designate or create, or increase the authorized or issued
amount of, any class or series of shares ranking senior to the Series D
Preferred Stock with respect to payment of distributions or rights upon
liquidation, dissolution or winding-up or reclassify any authorized shares of
the Corporation into any such shares, or create, authorize or issue any
obligations or securities convertible into or evidencing the right to purchase
any such shares, (ii) designate or create, or increase the authorized or issued
amount of, any Parity Preferred Stock or reclassify any authorized shares of the
Corporation into any such shares, or create, authorize or issue any obligations
or securities convertible into or evidencing the right to purchase any such
shares, but only to the extent such Parity Preferred Stock is issued to an
affiliate of the Corporation (other than Security Capital U.S. Realty, Security
Capital Holdings, S.A. or their affiliates if issued upon arms-length terms in
the good faith determination of the Board of Directors), or (iii) either (A)
consolidate, merge into or with, or convey, transfer or lease its assets
substantially as an entirety, to any corporation or other entity, or (B) amend,
alter or repeal the provisions of the Corporation's Charter (including these
Articles of Amendment) or By-laws, whether by merger, consolidation or
otherwise, in each case that would materially and adversely affect the powers,
special rights, preferences, privileges or voting power of the Series D
Preferred Stock or the holders thereof; provided, however, that with respect to
the occurrence of a merger, consolidation or a sale or lease of all of the
Corporation's assets as an entirety, so long as (a) the Corporation is the
surviving entity and the Series D Preferred Stock remains outstanding with the
terms thereof unchanged, or (b) the resulting, surviving or transferee entity is
a corporation organized under the laws of any state and substitutes the Series D
Preferred Stock for other preferred stock having substantially the same terms
and same rights as the Series D Preferred Stock, including with respect to
distributions, voting rights and rights upon liquidation, dissolution or
winding-up, then the occurrence of any such event shall not be deemed to
materially and adversely affect such rights, privileges or voting powers of the
holders of the Series D Preferred Stock and no vote of the Series D Voting
Securities shall be required in such case; and provided further that any
increase in the amount of authorized Preferred Stock or the creation or issuance
of any other class or series of Preferred Stock, or any increase in an amount of
authorized shares of each class or series, in each case ranking either (a)
junior to the Series D Preferred Stock with respect to payment of distributions
or the distribution of assets upon liquidation, dissolution or winding-up, or
(b) on a parity with the Series D Preferred Stock with respect to payment of
distributions or the distribution of assets upon liquidation, dissolution or
winding-up to the extent such Preferred Stock is not issued to a affiliate of
the Corporation (other than Security Capital U.S. Realty, Security Capital
Holdings, S.A. or their affiliates if issued upon arms-length terms in the good
faith determination of the Board of Directors), shall not be deemed to
materially and adversely affect such rights, preferences, privileges or voting
powers and no vote of the Series D Preferred Stock shall be required in such
case.
Section 7. No Conversion Rights. The holders of the Series D
Preferred Stock shall not have any rights to convert such shares into shares of
any other class or series of stock or into any other securities of, or interest
in, the Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for the
retirement or redemption of Series D Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series D
Preferred Stock of the Corporation shall, as such holder, have any preemptive
rights to purchase or subscribe for additional shares of stock of the
Corporation or any other security of the Corporation which it may issue or sell.
FOURTH: The Series D Preferred Stock have been classified and designated by
the Board of Directors under the authority contained in the Charter.
FIFTH: These Articles of Amendment have been approved by the Board of
Directors in the manner and by the vote required by law.
SIXTH: The undersigned officer of the Corporation acknowledges
these Articles of Amendment to be the corporate act of the Corporation and, as
to all matters or facts required to be verified under oath, the undersigned
officer acknowledges that to the best of his knowledge, information and belief,
these matters and facts are true in all material respects and that this
statement is made under the penalties for perjury.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused these Articles
of Amendment to be executed under seal in its name and on its behalf by its
Senior Vice President and attested to by its Secretary on this ______ day of
September, 1999.
REGENCY REALTY CORPORATION
By: /s/ Robert L. Miller
Name: Robert L. Miller
Title: Sr. Vice President
[SEAL]
ATTEST:
/s/ J. Christian Leavitt
Name: J. Christian Leavitt
Title: Secretary
<PAGE>
004.160941.1
004.160941.1
2
004.160941.1
ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
AMENDING THE DESIGNATION OF THE PREFERENCES, RIGHTS
AND LIMITATIONS OF 542,532 SHARES OF
SERIES 1 CUMULATIVE CONVERTIBLE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.1003 of the Florida Business
Corporation Act ("FBCA"), Regency Realty Corporation, a Florida corporation (the
"Corporation"), does hereby certify that:
The Corporation was incorporated on July 8, 1993, effective
July 9, 1993, under the name Regency Realty Corporation. By resolutions duly
adopted on July 29, 1999, the Board of Directors of the Corporation has approved
an amendment ("Amendment") to the Articles of Amendment to the Charter (the
"Designation") designating the preferences, rights and limitations of 542,532
shares of Series 1 Cumulative Convertible Redeemable Preferred Stock, par value
$0.01 per share (the "Series 1 Preferred Stock"). Pursuant to Section 9(c) of
the Designation and pursuant to Sections 607.0704 and 607.1004 of the FBCA, the
Amendment was approved by the written consent of the holders of record of a
majority of the outstanding shares of the Series 1 Preferred Stock effective
August ___, 1999. The number of votes cast by such voting group was sufficient
for approval of the Amendment by such voting group. No other voting group was
entitled to vote on the Amendment.
The definition in the Designation of "Dividend Payment Date"
is hereby amended to read in full as follows:
"'Dividend Payment Date' shall mean the date on which any cash
dividend is paid on the Common Stock."
[Signature Page Follows]
<PAGE>
IN WITNESS WHEREOF, the undersigned Chief Executive Officer of
the Corporation has executed these Articles of Amendment this _____ day of
______________, 1999.
REGENCY REALTY CORPORATION
By:
Name: Bruce M. Johnson
Title: Executive Vice President and
Managing Director
[SEAL]
<PAGE>
004.160941.1
004.160941.1
2
004.160941.1
ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
AMENDING THE DESIGNATION OF THE PREFERENCES, RIGHTS
AND LIMITATIONS OF 1,502,532 SHARES OF
SERIES 2 CUMULATIVE CONVERTIBLE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.1003 of the Florida Business
Corporation Act ("FBCA"), Regency Realty Corporation, a Florida corporation (the
"Corporation"), does hereby certify that:
The Corporation was incorporated on July 8, 1993, effective
July 9, 1993, under the name Regency Realty Corporation. By resolutions duly
adopted on July 29, 1999, the Board of Directors of the Corporation has approved
an amendment ("Amendment") to the Articles of Amendment to the Charter (the
"Designation") designating the preferences, rights and limitations of 1,502,532
shares of Series 2 Cumulative Convertible Redeemable Preferred Stock, par value
$0.01 per share (the "Series 2 Preferred Stock"). Pursuant to Section 9(c) of
the Designation and pursuant to Sections 607.0704 and 607.1004 of the FBCA, the
Amendment was approved by the written consent of the holders of record of a
majority of the outstanding shares of the Series 2 Preferred Stock effective
August ___, 1999. The number of votes cast by such voting group was sufficient
for approval of the Amendment by such voting group. No other voting group was
entitled to vote on the Amendment.
The definition in the Designation of "Dividend Payment Date"
is hereby amended to read in full as follows:
"'Dividend Payment Date' shall mean the date on which any cash
dividend is paid on the Common Stock."
[Signature Page Follows]
<PAGE>
IN WITNESS WHEREOF, the undersigned Chief Executive Officer of
the Corporation has executed these Articles of Amendment this _____ day of
______________, 1999.
REGENCY REALTY CORPORATION
By:
Name: Bruce M. Johnson
Title: Executive Vice President and
Managing Director
[SEAL]
