RESTATED ARTICLES OF INCORPORATION
OF
REGENCY REALTY CORPORATION
This corporation was incorporated on July 8, 1993, effective July 9,
1993, under the name Regency Realty Corporation. Pursuant to Sections 607.1002
and 607.1007, Florida Business Corporation Act, amended and restated Articles of
Incorporation were approved at a meeting of the directors of this corporation on
November 1, 2000. The Restated Articles of Incorporation adopted by the
directors incorporate previously filed amendments, delete authorization for the
corporation's Class B Non-Voting Common Stock authorized pursuant to Section
607.0602, of which no shares are outstanding and omit items of historical
interest only. Accordingly, shareholder approval was not required.
ARTICLE 1
NAME AND ADDRESS
Section 1.1 Name. The name of the corporation is Regency Realty
Corporation (the "Corporation").
Section 1.2 Address of Principal Office. The address of the principal
office of the Corporation is 121 West Forsyth Street, Jacksonville, Florida
32202.
ARTICLE 2
DURATION
Section 2.1 Duration. The Corporation shall exist perpetually.
ARTICLE 3
PURPOSES
Section 3.1 Purposes. This corporation is organized for the purpose of
transacting any or all lawful business permitted under the laws of the United
States and of the State of Florida.
ARTICLE 4
CAPITAL STOCK
Section 4.1 Authorized Capital. The maximum number of shares of stock
which the Corporation is authorized to have outstanding at any one time is one
hundred seventy million (170,000,000) shares (the "Capital Stock") divided into
classes as follows:
(a) Ten million (10,000,000) shares of preferred stock
having a par value of $0.01 per share (the "Preferred Stock"), and
which may be issued in one or more classes or series as further
described in Section 4.2; and
(b) One hundred fifty million (150,000,000) shares of voting
common stock having a par value of $0.01 per share (the "Common Stock");
and
(c) Ten million (10,000,000) shares of common stock having a
par value of $0.01 per share (the "Special Common Stock") and which may
be issued in one or more classes or series as further described in
Section 4.4.
All such shares shall be issued fully paid and nonassessable.
Section 4.2 Preferred Stock. The Board of Directors is authorized to
provide for the issuance of the Preferred Stock in one or more classes and in
one or more series within a class and, by filing the appropriate Articles of
Amendment with the Secretary of State of Florida which shall be effective
without shareholder action, is authorized to establish the number of shares to
be included in each class and each series and the preferences, limitations and
relative rights of each class and each series. Such preferences must include the
preferential right to receive distributions of dividends or the preferential
right to receive distributions of assets upon the dissolution of the Corporation
before shares of Common Stock are entitled to receive such distributions.
Section 4.3 Voting Common Stock. Holders of Voting Common Stock are
entitled to one vote per share on all matters required by Florida law to be
pproved by the shareholders. Subject to the rights of any outstanding classes or
series of Preferred Stock having preferential dividend rights, holders of Common
Stock are entitled to such dividends as may be declared by the Board of
Directors out of funds lawfully available therefor. Upon the dissolution of the
Corporation, holders of Common Stock are entitled to receive, pro rata in
accordance with the number of shares owned by each, the net assets of the
Corporation remaining after the holders of any outstanding classes or series of
Preferred Stock having preferential rights to such assets have received the
distributions to which they are entitled.
Section 4.4 Special Common Stock. The Board of Directors is authorized
to provide for the issuance of the Special Common Stock in one or more classes
and in one or more series within a class and, by filing the appropriate Articles
of Amendment with the Secretary of State of Florida which shall be effective
without shareholder action, is authorized to establish the number of shares to
be included in each class and each series and the limitations and relative
rights of each class and each series. Each class or series of Special Common
Stock (1) shall bear dividends, pari passu with dividends on the Common Stock,
in such amount as the Board of Directors shall determine, (2) shall vote
together with the Common Stock, and not separately as a class except where
otherwise required by law, on all matters on which the Common Stock is entitled
to vote, unless the Board of Directors determines that any such class or series
shall have limited voting rights or shall not be entitled to vote except as
otherwise required by law, (3) may be convertible or redeemable on such terms as
the Board of Directors
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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
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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
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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.
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(r) "Special Shareholder Limit" for a Special Shareholder shall
initially mean 60% of the outstanding shares of Common Stock, on a fully
diluted basis, of the Corporation; provided, however, that if at any
time after the effective date of this Amendment a Special Stockholder's
ownership of Common Stock, on a fully diluted basis, of the Corporation
shall have been below 45% for a continuous period of 180 days, then the
definition of "Special Shareholder Limit" shall mean 49% of the
outstanding shares of Common Stock, on a fully diluted basis, of the
Corporation. After any adjustment pursuant to Section 5.8, the
definition of "Special Shareholder Limit" shall mean the percentage of
the outstanding Common Stock as so adjusted, and the definition of
"Special Shareholder Limit" shall also be appropriately and equitably
adjusted in the event of a repurchase of shares of Common Stock of the
Corporation or other reduction in the number of outstanding shares of
Common Stock of the Corporation. Notwithstanding the foregoing, if any
Person and its Affiliates (taken as a whole), other than the Special
Shareholder, shall directly or indirectly own in the aggregate more than
45% of the outstanding shares of Common Stock, on a fully diluted basis,
of the Corporation, the definition of "Special Shareholder Limit" shall
be revised in accordance with Section 5.8 of the Stockholders Agreement.
Notwithstanding the foregoing provisions of this definition, if, as the
result of any Special Shareholder's ownership (taking into account for
this purpose constructive ownership under Section 544 of the Code, as
modified by Section 856(h)(1)(B) of the Code) of shares of Capital
Stock, any Person who is an individual within the meaning of Section
542(a)(2) of the Code (taking into account the ownership attribution
rules under Section 544 of the Code, as modified by Section 856(h) of
the Code) and who is the Beneficial Owner of any interest in a Special
Shareholder would be considered to Beneficially Own more than 9.8% of
the outstanding shares of Capital Stock, then unless such individual
reduces his or her interest in the Special Shareholder so that such
Person no longer Beneficially Owns more than 9.8% of the outstanding
shares of Capital Stock, the Special Shareholder Limit shall be reduced
to such percentage as would result in such Person not being considered
to Beneficially Own more than 9.8% of the outstanding Shares of Capital
Stock. Notwithstanding anything contained herein to the contrary, in no
event shall the Special Shareholder Limit be reduced below the Ownership
Limit. At the request of the Special Shareholders, the Secretary of the
Corporation shall maintain and, upon request, make available to each
Special Shareholder a schedule which sets forth the then current Special
Shareholder Limits for each Special Shareholder.
(s) "Stock Purchase Agreement" shall mean that Stock Purchase
Agreement dated as of June 11, 1996, by and among the Corporation,
Security Capital Holdings S.A., and Security Capital U.S. Realty, as the
same may be amended from time to time.
(t) "Stockholders Agreement" shall mean that Stockholders
Agreement dated as of July 10, 1996, by and among the Corporation,
Security Capital Holdings S.A., and Security Capital U.S. Realty, as the
same may be amended from time to time.
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(u) "Tenant" shall mean any tenant of (i) the Corporation, (ii)
a subsidiary of the Corporation which is deemed to be a "qualified
REIT subsidiary" under Section 856(i)(2) of the Code, or (iii) a
partnership in which the Corporation or one or more of its qualified
REIT subsidiaries is a partner.
(v) "Transfer" shall mean any sale, transfer, gift, assignment,
devise, or other disposition of Capital Stock or the right to vote or
receive dividends on Capital Stock (including (i) the granting of
any option or entering into any agreement for the sale, transfer or
other disposition of Capital Stock or the right to vote or receive
dividends on the Capital Stock or (ii) the sale, transfer,
assignment or other disposition or grant of any securities or rights
convertible or exchangeable for Capital Stock), whether voluntarily
or involuntarily, whether of record or Beneficially, and whether by
operation of law or otherwise; provided, however, that any bona fide
pledge of Capital Stock shall not be deemed a Transfer until such
time as the pledgee effects an actual change in ownership of the
pledged shares of Capital Stock.
Section 5.2 Restrictions on Transfer. Except as provided in Sections
5.11 and 5.16, during the period commencing at the Initial Public Offering:
(a) No Person (other than an Existing Holder or a Special
Shareholder) shall Beneficially Own Capital Stock in excess of the
Ownership Limit, no Existing Holder shall Beneficially Own Capital Stock
in excess of the Existing Holder Limit for such Existing Holder and no
Special Shareholder shall Beneficially Own Capital Stock in excess
of the Special Shareholder Limit.
(b) No Person shall Constructively Own Capital Stock in excess
of the Related Tenant Limit for more than thirty (30) days following the
date such Person becomes a Related Tenant Owner.
(c) Any Transfer that, if effective, would result in any Person
(other than an Existing Holder or a Special Shareholder) Beneficially
Owning Capital Stock in excess of the Ownership Limit shall be void
ab initio as to the Transfer of such Capital Stock which would be
otherwise Beneficially Owned by such Person in excess of the
Ownership Limit, and the intended transferee shall Acquire no rights
in such Capital Stock.
(d) Any Transfer that, if effective, would result in any
Existing Holder Beneficially Owning Capital Stock in excess of the
applicable Existing Holder Limit shall be void ab initio as to the
Transfer of such Capital Stock which would be otherwise Beneficially
Owned by such Existing Holder in excess of the applicable Existing
Holder Limit, and such Existing Holder shall Acquire no rights in such
Capital Stock.
(e) Any Transfer that, if effective, would result in any
Special Shareholder Beneficially Owning Capital Stock in excess of the
applicable Special Shareholder Limit shall be void ab initio as to
the Transfer of such Capital Stock which would be
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otherwise Beneficially Owned by such Special Shareholder in excess of
the applicable Special Shareholder Limit, and such Special Shareholder
shall Acquire no rights in such Capital Stock.
(f) Any Transfer that, if effective, would result in any
Related Tenant Owner Constructively Owning Capital Stock in excess of
the Related Tenant Limit shall be void ab initio as to the Transfer of
such Capital Stock which would be otherwise Constructively Owned by such
Related Tenant Owner in excess of the Related Tenant Limit, and the
intended transferee shall Acquire no rights in such Capital Stock.
(g) Any Transfer that, if effective, would result in the
Capital Stock being beneficially owned by less than 100 Persons (within
the meaning of Section 856(a)(5) of the Code) shall be void ab initio as
to the Transfer of such Capital Stock which would be otherwise
beneficially owned by the transferee, and the intended transferee
shall Acquire no rights in such Capital Stock.
(h) Any Transfer that, if effective, would result in the
Corporation being "closely held" within the meaning of Section 856(h) of
the Code shall be void ab initio as to the portion of any Transfer of
the Capital Stock which would cause the Corporation to be "closely
held" within the meaning of Section 856(h) of the Code, and the
intended transferee shall Acquire no rights in such Capital Stock.
(i) Any other Transfer that, if effective, would result in the
disqualification of the Corporation as a REIT by virtue of actual,
Beneficial or Constructive Ownership of Capital Stock shall be void
ab initio as to such portion of the Transfer resulting in the
disqualification, and the intended transferee shall Acquire no
rights in such Capital Stock.
Section 5.3 Remedies for Breach.
(a) If the Board of Directors or a committee thereof shall at
any time determine in good faith that a Transfer has taken place that
falls within the scope of Section 5.2 or that a Person intends to
Acquire Beneficial Ownership of any shares of the Corporation that would
result in a violation of Section 5.2 (whether or not such violation
is intended), the Board of Directors or a committee thereof shall
take such action as it or they deem advisable to refuse to give
effect to or to prevent such Transfer, including, but not limited
to, refusing to give effect to such Transfer on the books of the
Corporation or instituting proceedings to enjoin such Transfer,
subject, however, in all cases to the provisions of Section 5.16.
(b) Without limitation to Section 5.2 and Section 5.3(a), any
purported transferee of shares Acquired in violation of Section 5.2 and
any Person retaining shares in violation of Section 5.2(b) shall be
deemed to have acted as agent on behalf of the Corporation in holding
those shares acquired or retained in violation of Section 5.2 and shall
be deemed to hold such shares in trust on behalf of and for the benefit
of the Corporation. Such shares shall be deemed a separate class of
stock until such time as
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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
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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.
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(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).
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Section 5.10 Limitations on Modifications. Notwithstanding any other
provision of this Article 5:
(a) Neither the Ownership Limit, the Special Shareholder Limit
nor any Existing Holder Limit may be increased if, after giving effect
to such increase, five Persons who are considered individuals pursuant
to Section 542(a)(2) of the Code (taking into account all of the
then Existing Holders and Special Shareholders) could Beneficially
Own, in the aggregate, more than 49.5% by value of the outstanding
Capital Stock.
(b) Prior to the modification of any Existing Holder Limit or
Ownership Limit pursuant to Section 5.8 or 5.9, the Board of Directors
of the Corporation may require such opinions of counsel, affidavits,
undertakings or agreements as it may deem necessary or advisable in
order to determine or insure the Corporation's status as a REIT.
(c) No Existing Holder Limit or Special Shareholder Limit may
be a percentage which is less than the Ownership Limit.
(d) The Ownership Limit may not be increased to a percentage
which is greater than 9.8%.
Section 5.11 Exceptions. The Board of Directors may, upon receipt of
either a certified copy of a ruling of the Internal Revenue Service, an opinion
of counsel satisfactory to the Board of Directors or such other evidence as the
Board of Directors deems appropriate, but shall in no case be required to,
exempt a Person (the "Exempted Holder") from the Ownership Limit, the Special
Shareholder Limit, the Existing Holder Limit or the Related Tenant Limit, as the
case may be, if the ruling or opinion concludes or the other evidence shows (A)
that no Person who is an individual as defined in Section 542(a)(2) of the Code
will, as the result of the ownership of the shares by the Exempted Holder, be
considered to have Beneficial Ownership of an amount of Capital Stock that will
violate the Ownership Limit, the Special Shareholder Limit or the applicable
Existing Holder Limit, as the case may be, or (B) in the case of an exception of
a Person from the Related Tenant Limit that the exemption from the Related
Tenant Limit would not cause the Corporation to fail to qualify as a REIT. The
Board of Directors may condition its granting of a waiver on the Exempted
Holder's agreeing to such terms and conditions as the Board of Directors
determines to be appropriate in the circumstances.
Section 5.12 Legend. All certificates representing shares of Capital
Stock of the Corporation shall bear a legend referencing the restrictions on
ownership and transfer as set forth in these Articles. The form and content of
such legend shall be determined by the Board of Directors.
Section 5.13 Termination of REIT Status. The Board of Directors may
revoke the Corporation's election of REIT status as provided in Section
856(g)(2) of the Code if, in its discretion, the qualification of the
Corporation as a REIT is no longer in the best interests of
12
the Corporation. Notwithstanding any such revocation or other termination of
REIT status, the provisions of this Article 5 shall remain in effect unless
amended pursuant to the provisions of Article 10.
Section 5.14 Certain Transfers to Non-U.S. Persons Void.
(a) At any time that Non-U.S. Persons (including Special
Shareholders who will at all times be presumed to be Non-U.S. Persons)
own directly or indirectly 50% or more of the fair market value of the
issued and outstanding shares of Capital Stock of the Corporation,
any Transfer of shares of Capital Stock of the Corporation by any
Person (other than a Special Shareholder) on or after the effective
date of this Amendment that results in such shares being owned
directly or indirectly by a Non-U.S. Person (other than a Special
Shareholder) shall be void ab initio to the fullest extent permitted
under applicable law and the intended transferee shall be deemed
never to have had an interest therein.
(b) At any time that Non-U.S. Persons (including Special
Shareholders who will at all times be presumed to be Non-U.S. Persons)
own directly or indirectly less than 50% of the fair market value of the
issued and outstanding shares of Capital Stock of the Corporation,
any Transfer of shares of Capital Stock of the Corporation by any
Person (other than a Special Shareholder) to any Person on or after
the effective date of this Amendment shall be void ab initio to the
fullest extent permitted under applicable law and the intended
transferee shall be deemed never to have had an interest therein if
such Transfer
(i) occurs prior to the 10% Termination Date and results
in the fair market value of the shares of Capital Stock of the
Corporation owned directly or indirectly by Non-U.S. Persons
(other than Special Shareholders) comprising 4.9 percent (4.9%)
or more of the fair market value of the issued and outstanding
shares of Capital Stock of the Corporation; or
(ii) results in the fair market value of the shares of
Capital Stock of the Corporation owned directly or indirectly by
Non-U.S. Persons (including Special Shareholders who will at all
times be presumed to be Non-U.S. Persons) comprising fifty
percent (50%) or more of the fair market value of the issued and
outstanding shares of Capital Stock the Corporation.
(c) If any of the foregoing provisions is determined to be void
or invalid by virtue of any legal decision, statute, rule or regulation,
then the shares of Capital Stock of the Corporation held or purported to
be held by the transferee shall, automatically and without the necessity
of any action by the Board of Directors or otherwise:
(i) be prohibited from being voted;
(ii) not be entitled to dividends with respect thereto;
13
(iii) be considered held in trust by the transferee for the
benefit of the Corporation and shall be subject to the
provisions of Section 5.3(c) as if such shares of Capital Stock
were the subject of a Transfer that violates Section 5.2; and
(iv) not be considered outstanding for the purpose of
determining a quorum at any meeting of shareholders.
(d) The Special Shareholders may, in their sole discretion,
with prior notice to the Board of Directors, waive, alter or revise in
writing all or any portion of the Transfer restrictions set forth in
this Section 5.14 from and after the date on which such notice is given,
on such terms and conditions as they in their sole discretion determine.
Section 5.15 Severability. If any provision of this Article or any
application of any such provision is determined to be invalid by any federal or
state court having jurisdiction over the issues, the validity of the remaining
provisions shall not be affected and the application of such provisions shall be
affected only to the extent necessary to comply with the determination of such
court.
Section 5.16 New York Stock Exchange Transactions. Nothing in this
Article 5 shall preclude the settlement of any transaction entered into through
the facilities of the New York Stock Exchange."
ARTICLE 6
REGISTERED OFFICE AND AGENT
Section 6.1 Name and Address. The street address of the registered
office of the Corporation is 200 Laura Street, Jacksonville, Florida 32202, and
the name of the initial registered agent of this Corporation at that address is
F & L Corp.
ARTICLE 7
DIRECTORS
Section 7.1 Number. The number of directors may be increased or
diminished from time to time by the bylaws, but shall never be more than fifteen
(15) or less than three (3).
Section 7.2 Classification. The Directors shall be classified into
three classes, as nearly equal in number as possible. At each annual meeting of
the shareholders of the Corporation, the date of which shall be fixed by or
pursuant to the Bylaws of the Corporation, the successors of the class of
directors whose terms expire at that meeting shall be elected to hold office for
a term expiring at the annual meeting of shareholders held in the third year
following the year of their election.
14
ARTICLE 8
BYLAWS
Section 8.1 Bylaws. The Bylaws may be amended or repealed from time to
time by either the Board of Directors or the shareholders, but the Board of
Directors shall not alter, amend or repeal any Bylaw adopted by the shareholders
if the shareholders specifically provide that the Bylaw is not subject to
amendment or repeal by the Board of Directors.
ARTICLE 9
INDEMNIFICATION
Section 9.1 Indemnification. The Board of Directors is hereby
specifically authorized to make provision for indemnification of directors,
officers, employees and agents to the full extent permitted by law.
ARTICLE 10
AMENDMENT
Section 10.1 Amendment. The Corporation reserves the right to amend or
repeal any provision contained in these Restated Articles of Incorporation, and
any right conferred upon the shareholders is subject to this reservation.
IN WITNESS WHEREOF, the undersigned Senior Vice President of the
Corporation has executed these Restated Articles this 1st day of November, 2000.
/s/ J. Christian Leavitt
----------------------------------------
J. Christian Leavitt, Senior Vice
President
15
ACCEPTANCE BY REGISTERED AGENT
Having been named to accept service of process for the above-stated
corporation, at the place designated in the above Articles of Incorporation, I
hereby agree to act in this capacity, and I further agree to comply with the
provisions of all statutes relative to the proper and complete performance of my
duties. I am familiar with and I accept the obligations of a registered agent.
F & L CORP., Registered Agent
/s/ Charles V. Hedrick
----------------------------------------
Charles V. Hedrick, Authorized Signatory
Date: November __, 2000
16
ADDENDUM 1 TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 542,532 SHARES OF
SERIES 1 CUMULATIVE CONVERTIBLE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation
Act ("FBCA"), Regency Realty Corporation, a Florida corporation (the
"Corporation"), does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Restated Articles of
Incorporation of the Corporation, as amended (the "Charter") and Section
607.0602 of the FBCA, the Board of Directors of the Corporation, by resolutions
duly adopted on September 23, 1998 has classified 542,532 shares of the
authorized but unissued Preferred Stock par value $.01 per share (the "Series 1
Preferred Stock") as a separate class of Preferred Stock, authorized the
issuance of a maximum of 542,532 shares of such class of Series 1 Preferred
Stock, set certain of the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such class of Series
1 Preferred Stock. Shareholder approval was not required under the Charter with
respect to such designation.
SECOND: The class of Series 1 Preferred Stock of the Corporation
created by the resolutions duly adopted by the Board of Directors of the
Corporation shall have the following designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitation as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
Section 1. Number of Shares and Designation. The number of shares of
Series 1 Preferred Stock which shall constitute such series shall not be more
than 542,532 shares, par value $0.01 per share, which number may be decreased
(but not below the number thereof then outstanding plus the number required to
fulfill the Corporation's obligations under certain agreements, options,
warrants or similar rights issued by the Corporation) from time to time by the
Board of Directors of the Corporation. Except as otherwise specifically stated
herein, the Series 1 Preferred Stock shall have the same rights and privileges
as Common Stock under Florida law.
Section 2. Definitions. For purposes of the Series 1 Preferred Stock,
the following terms shall have the meanings indicated:
A-1.1
"Board" shall mean the Board of Directors of the
Corporation or any committee authorized by such Board of Directors to perform
any of its responsibilities with respect to the Series 1 Preferred Stock.
"Business Day" shall mean any day other than a Saturday,
Sunday or a day on which state or federally chartered banking institutions in
New York City, New York are not required to be open.
"Call Date" shall mean the date specified in the notice
to holders required under subparagraph (d) of Section 5 as the Call Date.
"Common Stock" shall mean the common capital stock of
the Corporation, par value $0.01 per share.
"Constituent Person" shall have the meaning set forth in
paragraph (c) of Section 6 hereof.
"Dividend Payment Date" shall mean the date on which any
cash dividend is paid on the Common Stock.
"Dividend Periods" shall mean quarterly dividend periods
commencing on April 1, July 1, October 1 and January 1 of each year and ending
on and including the day preceding the first day of the next succeeding Dividend
Period (other than the initial Dividend Period, which shall commence on the
Issue Date).
"Fully Junior Stock" shall mean any class or series of
capital stock of the Corporation now or hereafter issued and outstanding over
which the Series 1 Preferred Stock has preference or priority in both (i) the
payment of dividends and (ii) the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
"Funds from Operations per Share" shall mean the amount
determined by dividing (a) the net income of the Corporation before
extraordinary items (determined in accordance with generally accepted accounting
principles) as reported by the Corporation in its year-end audited financial
statements, minus gains (or losses) from debt restructuring and sales of
property, plus real property depreciation and amortization and amortization of
capitalized leasing expenses and tenant allowances or improvements (to the
extent such allowances or improvements are capital items), and after adjustments
for unconsolidated partnerships, corporations and joint ventures (such items of
depreciation and amortization and such gains, losses and adjustments as
determined in accordance with generally accepted accounting principles and as
reported by the Corporation in its year-end audited financial statements) by (b)
the weighted average number of shares of common stock of the Corporation
outstanding as reported by the Corporation in its year-end audited financial
statements. Adjustments for unconsolidated partnerships, corporations and joint
ventures shall be calculated to reflect Funds from Operations per Share on the
same basis. If the Corporation shall after the Issue Date (A) pay a dividend or
make a distribution in shares of common stock on its outstanding shares of
common stock, (B) subdivide its outstanding shares of common stock into a
greater
A-1.2
number of shares, (C) combine its outstanding Common Stock into a smaller number
of shares or (D) issue any shares of common stock by reclassification of its
outstanding shares of common stock, the Funds from Operations per Share shall be
appropriately adjusted to give effect to such events.
"Issue Date" shall mean the first date on which the
Series 1 Preferred Stock is issued.
"Junior Stock" shall mean the Common Stock and any other
class or series of capital stock of the Corporation now or hereafter issued and
outstanding over which the Series 1 Preferred Stock has preference or priority
in the payment of dividends or in the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
"Minimum Amount" shall mean the greater of (A) $0.2083
and (B) 65% of the highest amount of Funds from Operations per Share for any
preceding fiscal year beginning with the fiscal year ending December 31, 1996,
divided by four.
"Non-Electing Share" shall have the meaning set forth in
paragraph (c) of Section 6 hereof.
"Parity Stock" shall have the meaning set forth in
paragraph (b) of Section 8.
"Person" shall mean any individual, firm, partnership,
corporation, or trust or other entity, and shall include any successor (by
merger
or otherwise) of such entity.
"PRT Issue Date" means October 13, 1995.
"Series 1 Preferred Stock" shall have the meaning set
forth in Article FIRST hereof.
"Series 2 Preferred Stock" shall mean the Series 2
Cumulative Convertible Redeemable Preferred Stock of the Corporation, par value
$0.01
per share.
"set apart for payment" shall be deemed to include,
without any action other than the following, the recording by the Corporation in
its accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of dividends or other distribution by the Board, the
allocation of funds to be so paid on any series or class of capital stock of the
Corporation; provided, however, that if any funds for any class or series of
Junior Stock, Fully Junior Stock or any class or series of shares of capital
stock ranking on a parity with the Series 1 Preferred Stock as to the payment of
dividends are placed in a separate account of the Corporation or delivered to a
disbursing, paying or other similar agent, then "set apart for payment" with
respect to the Series 1 Preferred Stock shall mean placing such funds in a
separate account or delivering such funds to a disbursing, paying or other
similar agent.
A-1.3
"Transaction" shall have the meaning set forth in
paragraph (c) of Section 6 hereof.
"Transfer Agent" means initially the Corporation and
shall include such other agent or agents of the Corporation as may be designated
by the Board or their designee as the transfer agent for the Series 1 Preferred
Stock.
"Voting Preferred Stock" shall have the meaning set
forth in Section 9 hereof.
Section 3. Dividends.
(a) The holders of Series 1 Preferred Stock shall be entitled
to receive, when, as and if declared by the Board out of funds legally available
for that purpose, quarterly dividends payable in cash in an amount per share
equal to the greater of (i) the Minimum Amount or (ii) an amount equal to
$0.02708 less than the dividends (determined on each Dividend Payment Date) on a
share of Common Stock, or portion thereof, into which a share of Series 2
Preferred Stock is convertible upon conversion of a share of Series 1 Preferred
Stock. For purposes of clause (ii) of the preceding sentence, such dividends
shall equal the number of shares of Common Stock, or portion thereof, into which
a share of Series 2 Preferred Stock is convertible upon conversion of a share of
Series 1 Preferred Stock, multiplied by the most current quarterly dividend paid
or payable on a share of Common Stock on or before the applicable Dividend
Payment Date. Dividends on the Series 1 Preferred Stock shall begin to accrue
and shall be fully cumulative from the Issue Date, whether or not for any
Dividend Period or Periods there shall be funds of the Corporation legally
available for the payment of such dividends, and shall be payable quarterly,
when, as and if declared by the Board, in arrears on Dividend Payment Dates,
commencing on the first Dividend Payment Date after the Issue Date. Accrued and
unpaid dividends on shares of Series 1 Preferred Stock shall include any accrued
and unpaid dividends on the Series A Cumulative Convertible Redeemable Preferred
Shares of Beneficial Interest of Pacific Retail Trust which are exchanged by
operation of law into such shares of Series 1 Preferred Stock pursuant to the
merger of Pacific Retail Trust into the Corporation. Each dividend on the Series
1 Preferred Stock shall be payable to the holders of record of Series 1
Preferred Stock, as they appear on the stock records of the Corporation at the
close of business on such record dates as shall be fixed by the Board. Accrued
and unpaid dividends for any past Dividend Periods may be declared and paid at
any time and for such interim periods, without reference to any regular Dividend
Payment Date, to holders of record on such date as may be fixed by the Board.
(b) The amount of dividends payable for any dividend period
shorter or longer than a full Dividend Period, on the Series 1 Preferred Stock
shall be computed on the basis of twelve 30-day months and a 360-day year.
Holders of Series 1 Preferred Stock shall not be entitled to any dividends,
whether payable in cash, property or stock, in excess of current and cumulative
but unpaid dividends, as herein provided, on the Series 1 Preferred Stock. No
interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on the Series 1 Preferred Stock that may be in
arrears.
A-1.4
(c) So long as any Series 1 Preferred Stock is outstanding, no
dividends, except as described in the immediately following sentence, shall be
declared or paid or set apart for payment on any class or series of Parity Stock
for any period unless full cumulative dividends have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for such payment on the Series 1 Preferred Stock for all Dividend
Periods terminating on or prior to the Dividend Payment Date on such class or
series of Parity Stock. When dividends are not paid in full or a sum sufficient
for such payment is not set apart, as aforesaid, all dividends declared upon
Series 1 Preferred Stock and all dividends declared upon any other class or
series of Parity Stock shall be declared ratably in proportion to the respective
amounts of dividends accumulated and unpaid on the Series 1 Preferred Stock and
accumulated and unpaid on such Parity Stock.
(d) So long as any Series 1 Preferred Stock is outstanding, no
dividends (other than dividends or distributions paid solely in shares of, or
options, warrants or rights to subscribe for or purchase shares of, Fully Junior
Stock) shall be declared or paid or set apart for payment or other distribution
declared or made upon Junior Stock, nor shall any Junior Stock be redeemed,
purchased or otherwise acquired (other than a redemption, purchase or other
acquisition of Common Stock made for purposes of an employee incentive or
benefit plan of the Corporation or any subsidiary) for any consideration (or any
moneys be paid to or made available for a sinking fund for the redemption of any
shares of any such stock) by the Corporation, directly or indirectly (except by
conversion into or exchange for Fully Junior Stock), unless in each case (i) the
full cumulative dividends on all outstanding Series 1 Preferred Stock and any
other Parity Stock of the Corporation shall have been paid or declared and set
apart for payment for all past Dividend Periods with respect to the Series 1
Preferred Stock and all past dividend periods with respect to such Parity Stock
and (ii) sufficient funds shall have been paid or declared and set apart for the
payment of the dividend for the current Dividend Period with respect to the
Series 1 Preferred Stock and the current dividend period with respect to such
Parity Stock.
Section 4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, before any payment or
distribution of the assets of the Corporation (whether capital or surplus) shall
be made to or set apart for payment to the holders of Junior Stock or Fully
Junior Stock, the holders of the Series 1 Preferred Stock shall be entitled to
receive $20.8333 per share of Series 1 Preferred Stock plus an amount equal to
all dividends declared but unpaid thereon to the date of final distribution to
such holders; but such holders shall not be entitled to any further payment. If,
upon any liquidation, dissolution or winding up of the Corporation, the assets
of the Corporation, or proceeds thereof, distributable among the holders of the
Series 1 Preferred Stock shall be insufficient to pay in full the preferential
amount aforesaid and liquidating payments on any other shares of any class or
series of Parity Stock, then such assets, or the proceeds thereof, shall be
distributed among the holders of Series 1 Preferred Stock and any such other
Parity Stock ratably in accordance with the respective amounts that would be
payable on such Series 1 Preferred Stock and any such other Parity Stock if all
amounts payable thereon were paid in
A-1.5
full. For the purposes of this Section 4, (i) a consolidation or merger of the
Corporation with one or more Persons, (ii) a sale or transfer of all or
substantially all of the Corporation's assets or (iii) a statutory share
exchange shall not be deemed to be a liquidation, dissolution or winding up,
voluntary or involuntary, of the Corporation.
(b) Subject to the rights of the holders of shares of any
series or class or classes of shares of capital stock ranking on a parity with
or prior to the Series 1 Preferred Stock upon liquidation, dissolution or
winding up, upon any liquidation, dissolution or winding up of the Corporation,
after payment shall have been made in full to the holders of the Series 1
Preferred Stock, as provided in this Section 4, any other series or class or
classes of Junior Stock or Fully Junior Stock shall, subject to the respective
terms and provisions (if any) applying thereto, be entitled to receive any and
all assets remaining to be paid or distributed, and the holders of the Series 1
Preferred Stock shall not be entitled to share therein.
Section 5. Redemption at the Option of the Corporation.
(a) The Series 1 Preferred Stock shall not be redeemable by the
Corporation prior to October 20, 2010. On and after October 20, 2010, the
Corporation, at its option, may redeem the Series 1 Preferred Stock, in whole at
any time or from time to time in part at the option of the Corporation at a
redemption price of $20.8333 per share of Series 1 Preferred Stock, plus the
amounts indicated in Section 5(b).
(b) Upon any redemption of Series 1 Preferred Stock pursuant to
this Section 5, the Corporation shall pay in full any and all accrued and unpaid
dividends (without interest or sum of money in lieu of interest) for any and all
Dividend Periods ending on or prior to the Call Date. If the Call Date falls
after a dividend payment record date and prior to the corresponding Dividend
Payment Date, then each holder of Series 1 Preferred Stock at the close of
business on such dividend payment record date shall be entitled to the dividend
payable on such shares on the corresponding dividend payment date
notwithstanding the redemption of such shares before such Dividend Payment Date.
(c) If full cumulative dividends on the Series 1 Preferred
Stock and any other class or series of Parity Stock of the Corporation have not
been paid or declared and set apart for payment, the Series 1 Preferred Stock
may not be redeemed under this Section 5 in part and the Corporation may not
purchase or acquire shares of Series 1 Preferred Stock, otherwise than pursuant
to a voluntary purchase or exchange offer made on the same terms to all holders
of Series 1 Preferred Stock.
(d) Notice of the redemption of any Series 1 Preferred Stock
under this Section 5 shall be mailed by first-class mail to each holder of
record of Series 1 Preferred Stock to be redeemed at the address of each such
holder as shown on the Corporation's record, not less than 30 nor more than 90
days prior to the Call Date. Neither the failure to mail any notice required by
this paragraph (d), nor any defect therein or in the mailing thereof, to any
particular holder, shall affect the sufficiency of the notice or the validity of
the proceedings for redemption with respect to the other holders. Any notice
which was mailed in the manner herein provided shall be conclusively presumed to
have been duly given on the date mailed
A-1.6
whether or not the holder receives the notice. Each such mailed notice shall
state, as appropriate: (1) the Call Date; (2) the number of shares of Series 1
Preferred Stock to be redeemed and, if fewer than all the shares held by such
holder are to be redeemed, the number of such shares to be redeemed from such
holder; (3) the place or places at which certificates for such shares are to be
surrendered; and (4) that dividends on the shares to be redeemed shall cease to
accrue on such Call Date except as otherwise provided herein. Notice having been
mailed as aforesaid, from and after the Call Date (unless the Corporation shall
fail to make available an amount of cash necessary to effect such redemption),
(i) except as otherwise provided herein, dividends on the Series 1 Preferred
Stock so called for redemption shall cease to accrue, (ii) said shares shall no
longer be deemed to be outstanding and (iii) all rights of the holders thereof
as holders of Series 1 Preferred Stock of the Corporation shall cease (except
the rights to convert and to receive cash payable upon such redemption, without
interest thereon, upon surrender and endorsement of their certificates if so
required and to receive any dividends payable thereon). The Corporation's
obligation to provide cash in accordance with the preceding sentence shall be
deemed fulfilled if, on or before the Call Date, the Corporation shall deposit
with a bank or trust company (which may be an affiliate of the Corporation) that
has an office in the Borough of Manhattan, City of New York, and that has, or is
an affiliate of a bank or trust company that has, capital and surplus of at
least $50,000,000, sufficient cash necessary for such redemption, in trust, with
irrevocable instructions that such cash be applied to the redemption of the
Series 1 Preferred Stock so called for redemption. No interest shall accrue for
the benefit of the holders of Series 1 Preferred Stock to be redeemed on any
cash so set aside by the Corporation. Subject to applicable escheat laws and
other unclaimed property laws, any such cash unclaimed at the end of two years
from the Call Date shall revert to the general funds of the Corporation, after
which reversion the holders of such shares so called for redemption shall look
only to the general funds of the Corporation for the payment of such cash.
Notwithstanding the above, at any time after such redemption notice is received
and on or prior to the Call Date, any holder may exercise its conversion rights
under Section 6 below.
As promptly as practicable after the surrender in accordance
with said notice of the certificates for any such shares so redeemed (properly
endorsed or assigned for transfer, if the Corporation shall so require and if
the notice shall so state), such shares shall be exchanged for any cash
(including accumulated and unpaid dividends but without interest thereon) for
which such shares have been redeemed. If fewer than all the outstanding shares
of Series 1 Preferred Stock are to be redeemed, shares to be redeemed shall be
selected by the Corporation from outstanding Series 1 Preferred Stock not
previously called for redemption by lot or pro rata (as nearly as may be) or by
any other method determined by the Corporation in its sole discretion to be
equitable. If fewer than all shares of the Series 1 Preferred Stock represented
by any certificate are redeemed, then new certificates representing the
unredeemed shares shall be issued without cost to the holder thereof.
Section 6. Conversion. Subject to subparagraph (f) of this Section 6,
holders of Series 1 Preferred Stock shall have the right, at any time and from
time to time, to convert all or a portion of such shares into Series 2 Preferred
Stock, as follows:
A-1.7
(a) Subject to and upon compliance with the provisions of this
Section 6, a holder of Series 1 Preferred Stock shall have the right, at such
holder's option, at any time to convert each share of Series 1 Preferred Stock
into one fully paid and non-assessable share of Series 2 Preferred Stock by
surrendering such shares to be converted, such surrender to be made in the
manner provided in paragraph (b) of this Section 6. In addition, upon conversion
of Series 1 Preferred Stock any holder may elect to simultaneously convert the
Series 2 Preferred Stock issuable upon such conversion into that number of
shares of Common Stock into which such Series 2 Preferred Stock is then
convertible pursuant to the terms of the Series 2 Preferred Stock.
(b) In order to exercise the conversion right, the holder of
each share of Series 1 Preferred Stock to be converted shall surrender the
certificate representing such share, duly endorsed or assigned to the
Corporation or in blank, at the office of the Transfer Agent, accompanied by
written notice to the Corporation that the holder thereof elects to convert such
Series 1 Preferred Stock and payment of the amount, if any, determined pursuant
to subparagraph (f) of this Section 6. Unless the shares issuable on conversion
are to be issued in the same name as the name in which such Series 1 Preferred
tock is registered, each share surrendered for conversion shall be accompanied
by instruments of transfer, in form satisfactory to the Corporation, duly
executed by the holder or such holder's duly authorized attorney and an amount
sufficient to pay any transfer or similar tax (or evidence reasonably
satisfactory to the Corporation demonstrating that such taxes have been paid).
Holders of Series 1 Preferred Stock at the close of business on
a dividend payment record date shall be entitled to receive the dividend payable
on such shares on the corresponding dividend payment date notwithstanding the
conversion thereof following such dividend payment record date and on or prior
to such dividend payment date. In no event shall a holder of Series 1 Preferred
Stock be entitled to receive a dividend payment on Series 2 Preferred Stock
issued or issuable upon conversion of Series 1 Preferred Stock if such holder is
entitled to receive a dividend in respect of the Series 1 Preferred Stock
surrendered for conversion. The Corporation shall make no payment or allowance
for unpaid dividends, whether or not in arrears, on converted shares or for
dividends on the Series 2 Preferred Stock issued upon such conversion, except as
contemplated pursuant to subparagraph (f) of this Section 6.
As promptly as practicable after the surrender of certificates
for Series 1 Preferred Stock as aforesaid, the Corporation shall issue and shall
deliver at such office to such holder, or such holder's written order, a
certificate or certificates for the number of full shares of Series 2 Preferred
Stock issuable upon the conversion of such shares in accordance with provisions
of this Section 6.
Each conversion shall be deemed to have been effected
immediately prior to the close of business on the date on which the certificates
for Series 1 Preferred Stock shall have been surrendered and such notice
(together with the undertaking described below if such conversion occurs on or
prior to the fifth anniversary of the PRT Issue Date) received by the
Corporation as aforesaid, and the person or persons in whose name or names any
certificate or
A-1.8
certificates for Series 2 Preferred Stock shall be issuable upon such conversion
shall be deemed to have become the holder or holders of record of the shares
represented thereby at such time on such date unless the stock transfer books
of the Corporation shall be closed on that date, in which event such person or
persons shall be deemed to have become such holder or holders of record at the
close of business on the next succeeding day on which such stock transfer books
are open. Concurrently with the delivery of any notice of conversion prior to
the fifth anniversary of the PRT Issue Date, any holder converting its Series 1
Preferred Stock shall deliver to the Corporation an undertaking to pay the
amount, if any, pursuant to the last sentence of subparagraph (f) of this
Section 6.
(c) If the Corporation shall be a party to any transaction
(including without limitation a merger, consolidation, statutory share exchange,
self tender offer for all or substantially all Series 2 Preferred Stock, sale of
all or substantially all of the Corporation's assets or recapitalization of the
Series 2 Preferred Stock) (each of the foregoing being referred to herein as a
"Transaction"), in each case as a result of which all or substantially all
Series 2 Preferred Stock is converted into the right to receive stock,
securities or other property (including cash or any combination thereof) of
another Person, each share of Series 1 Preferred Stock, which is not converted
into a Series 2 Preferred Share prior to such Transaction, shall thereafter be
convertible into the kind and amount of shares of stock, securities and other
property (including cash or any combination thereof) receivable upon the
consummation of such Transaction by a holder of that number of shares of Series
2 Preferred Stock into which one share of Series 1 Preferred Stock was
convertible immediately prior to such Transaction, assuming such holder of
Series 2 Preferred Stock (i) is not a Person with which the Corporation
consolidated or into which the Corporation merged or which merged into the
Corporation or to which such sale or transfer was made, as the case may be
("Constituent Person"), or an affiliate of a Constituent Person and (ii) failed
to exercise his rights of election, if any, as to the kind or amount of stock,
securities and other property (including cash) receivable upon such Transaction
(provided that if the kind or amount of stock, securities and other property
(including cash) receivable upon such Transaction is not the same for each share
of Series 2 Preferred Share held immediately prior to such Transaction by other
than a Constituent Person or an affiliate thereof and in respect of which such
rights of election shall not have been exercised ("Non-Electing Share"), then
for the purpose of this paragraph (c) the kind and amount of stock, securities
and other property (including cash) receivable upon such Transaction by each
Non-Electing Share shall be deemed to be the kind and amount so receivable per
share by a plurality of the Non-Electing Shares). The Corporation shall not be a
party to any Transaction unless the terms of such Transaction are consistent
with the provisions of this paragraph (c), and it shall not consent or agree to
the occurrence of any Transaction until the Corporation has entered into an
agreement with the successor or purchasing entity, as the case may be, for the
benefit of the holders of the Series 1 Preferred Stock that will contain
provisions enabling the holders of the Series 1 Preferred Stock that remain
outstanding after such Transaction to convert into the consideration received by
holders of Series 2 Preferred Stock at the conversion price in effect
immediately prior to such Transaction. The provisions of this paragraph (c)
shall similarly apply to successive Transactions.
A-1.9
(d) The Corporation covenants that it will at all times reserve
and keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued shares of Series 2 Preferred Stock, for the purpose of
effecting conversion of the Series 1 Preferred Stock, the full number of shares
of Series 2 Preferred Stock deliverable upon the conversion of all outstanding
Series 1 Preferred Stock not theretofore converted.
The Corporation covenants that any shares of Series 2 Preferred
Stock issued upon conversion of the Series 1 Preferred Stock shall be validly
issued, fully paid and non-assessable.
Prior to the delivery of any securities that the Corporation
shall be obligated to deliver upon conversion of the Series 1 Preferred Stock,
the Corporation shall endeavor to comply with all federal and state laws and
regulations thereunder requiring the registration of such securities with, or
any approval of or consent to the delivery thereof by, any governmental
authority.
(e) The Corporation will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery of
Series 2 Preferred Stock or other securities or property on conversion of the
Series 1 Preferred Stock pursuant hereto; provided, however, that the
Corporation shall not be required to pay any tax that may be payable in respect
of any transfer involved in the issue or delivery of Series 2 Preferred Stock or
other securities or property in a name other than that of the holder of the
Series 1 Preferred Stock to be converted, and no such issue or delivery shall be
made unless and until the person requesting such issue or delivery has paid to
the Corporation the amount of any such tax or established, to the reasonable
satisfaction of the Corporation, that such tax has been paid.
(f) In the event that any holder of Series 1 Preferred Stock
shall exercise its right to convert such shares into Series 2 Preferred Stock
prior to the fifth anniversary of the PRT Issue Date, upon any such conversion,
the holder of the Series 1 Preferred Stock surrendered for conversion shall pay
an amount in cash to the Corporation equal to the amount obtained by multiplying
(i) 0.0052 times (ii) the quotient obtained by dividing (A) the actual number of
days that will elapse beginning on and including the date on which the
conversion is deemed to have been effected and ending on and including the fifth
anniversary of the PRT Issue Date by (B) 365 times (iii) the difference between
(X) the aggregate liquidation preference (excluding accrued and unpaid
dividends) of the Series 1 Preferred Stock being converted and (Y) the aggregate
amount of accrued and unpaid dividends on the Series 1 Preferred Stock being
converted (provided that the amount determined pursuant to this clause (iii)
shall not be less than zero). In addition, immediately after the dividend
payment record date next following the conversion date with respect to the
Series 2 Preferred Stock into which the Series 1 Preferred Stock is convertible
(or the Common Stock into which such Series 2 Preferred Stock is convertible,
whichever is applicable), the holder of the Series 1 Preferred Stock shall pay
to the Corporation an amount, if any, necessary to ensure that the holder has
received an aggregate amount of $0.02708 per share being converted less than the
dividend payable on Common Stock for the dividend period during which the
conversion was effected.
A-1.10
Section 7. Shares to Be Retired. All shares of Series 1 Preferred
Stock which shall have been issued and reacquired in any manner by the
Corporation shall be restored to the status of authorized but unissued shares of
Preferred Stock of the Corporation, without designation as to class or series.
Section 8. Ranking. Any class or series of shares of capital stock of
the Corporation shall be deemed to rank:
(a) prior to the Series 1 Preferred Stock, as to the payment of
dividends and as to distribution of assets upon liquidation, dissolution or
winding up, if the holders of such class or series shall be entitled to the
receipt of dividends or of amounts distributable upon liquidation, dissolution
or winding up, as the case may be, in preference or priority to the holders of
Series 1 Preferred Stock;
(b) on a parity with the Series 1 Preferred Stock, as to the
payment of dividends and as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the dividend rates, dividend payment
dates or liquidation prices per share thereof shall be different from those of
the Series 1 Preferred Stock, if the holders of such class or series and the
Series 1 Preferred Stock shall be entitled to the receipt of dividends and of
amounts distributable upon liquidation, dissolution or winding up in proportion
to their respective amounts of accrued and unpaid dividends per share or
liquidation preferences, without preference or priority one over the other
("Parity Stock");
(c) junior to the Series 1 Preferred Stock, as to the payment
of dividends or as to the distribution of assets upon liquidation, dissolution
or winding up, if such class or series shall be Junior Stock; and
(d) junior to the Series 1 Preferred Stock, as to the payment
of dividends and as to the distribution of assets upon liquidation, dissolution
or winding up, if such class or series shall be Fully Junior Stock.
The Corporation's Series 2 Cumulative Convertible Redeemable
Preferred Stock and the Corporation's 8.125% Series A Cumulative Redeemable
Preferred Stock shall constitute Parity Stock.
Section 9. Voting.
(a) Each issued and outstanding share of Series 1 Preferred
Stock shall entitle the holder thereof to the number of votes per share
of Common Stock into which a share of Series 2 Preferred Stock is convertible
upon conversion of a share of Series 1 Preferred Stock (as of the close of
business on the record date for determination of shareholders entitled to vote
on a matter) on all matters presented for a vote of shareholders of the
Corporation and, except as required by applicable law and subject to the further
provisions of this Section 9, the Series 1 Preferred Stock shall be voted
together with all issued and outstanding Common Stock and Series 2 Preferred
Stock voting as a single class.
A-1.11
(b) If and whenever twelve consecutive quarterly dividends
payable on the Series 1 Preferred Stock or any series or class of Parity
Stock shall be in arrears (which shall, with respect to any such quarterly
dividend, mean that any such dividend has not been paid in full), whether or not
earned or declared, the number of directors then constituting the Board shall be
increased by one and the holders of Series 1 Preferred Stock, together with the
holders of shares of every other series of Parity Stock, including the Series 2
Preferred Stock (any such other series, the "Voting Preferred Stock"), voting
as a single class regardless of series, shall be entitled to elect, at a special
meeting of the holders of the Series 1 Preferred Stock and the Voting Preferred
Stock called as hereinafter provided, the additional director to serve on the
Board. Whenever all arrearages in dividends on the Series 1 Preferred Stock and
the Voting Preferred Stock then outstanding shall have been paid and dividends
thereon for the current quarterly dividend period shall have been paid or
declared and set apart for payment, then the right of the holders of the Series
1 Preferred Stock and the Voting Preferred Stock to elect such additional
director shall cease (but subject always to the same provision for the vesting
of such voting rights in the case of any similar future arrearages in twelve
quarterly dividends), and the terms of office of the person elected as director
by the holders of the Series 1 Preferred Stock and the Voting Preferred Stock
shall forthwith terminate and the number of members of the Board shall be
reduced accordingly. At any time after such voting power shall have been so
vested in the holders of Series 1 Preferred Stock and the Voting Preferred Stock
(or if any vacancy shall occur in respect of the director previously elected by
the holders of the Series 1 Preferred Stock and the Voting Preferred Stock), the
secretary of the Corporation shall call a special meeting of the holders of the
Series 1 Preferred Stock and of the Voting Preferred Stock for the election of
the director to be elected by them as herein provided, such call to be made by
notice similar to that provided in the Bylaws of the Corporation for a special
meeting of the shareholders or as required by law. If any such special meeting
required to be called as above provided shall not be called by the secretary
within 30 days after the end of the most recent Dividend Period during which the
right to elect such additional director arose or such vacancy occurred, then any
holder of Series 1 Preferred Stock may call such meeting, upon the notice
above provided, and for that purpose shall have access to the stock records of
the Corporation. The director elected at any such special meeting shall hold
office until the next annual meeting of the shareholders or special meeting held
in lieu thereof if such office shall not have previously terminated as above
provided.
(c) So long as any Series 1 Preferred Stock is outstanding, in addition
to any other vote or consent of shareholders required by law or by the Charter,
the affirmative vote of at least 66 2/3% of the votes entitled to be cast by the
holders of the Series 1 Preferred Stock, together with the holders of Voting
Preferred Stock, at the time outstanding, acting as a single class regardless of
series, given in person or by proxy, either in writing without a meeting or by
vote at any meeting called for the purpose, shall be necessary for effecting or
validating:
(i) Any amendment, alteration or repeal of any of the
provisions of the Charter or these Articles of Amendment that
materially and adversely affects the voting powers, rights or
preferences of the holders of the Series 1 Preferred Stock or
the Voting Preferred Stock; provided, however, that the
amendment of the provisions of the Charter so as to authorize or
create or to increase the authorized amount of any
A-1.12
Fully Junior Stock, Junior Stock that is not senior in any
respect to the Series 1 Preferred Stock, or any stock of any
class ranking on a parity with the Series 1 Preferred Stock or
the Voting Preferred Stock shall not be deemed to materially
adversely affect the voting powers, rights or preferences of the
holders of Series 1 Preferred Stock; and provided, further, that
if any such amendment, alteration or repeal would materially and
adversely affect any voting powers, rights or preferences of the
Series 1 Preferred Stock or another series of Voting Preferred
Stock that are not enjoyed by some or all of the other series
otherwise entitled to vote in accordance herewith, the
affirmative vote of at least 66 2/3% of the votes entitled to be
cast by the holders of all series similarly affected, similarly
given, shall be required in lieu of the affirmative vote of at
least 66 2/3% of the votes entitled to be cast by the holders of
the Series 1 Preferred Stock and the Voting Preferred Stock
otherwise entitled to vote in accordance herewith; or
(ii) A share exchange that affects the Series 1 Preferred
Stock, a consolidation with or merger of the Corporation into
another Person, or a consolidation with or merger of another
Person into the Corporation, unless in each such case each share
of Series 1 Preferred Stock (A) shall remain outstanding without
a material and adverse change to its terms and rights or (B)
shall be converted into or exchanged for convertible preferred
stock of the surviving entity having preferences, conversion or
other rights, voting powers, restrictions, limitations as to
dividends, qualifications and terms or conditions of redemption
thereof identical to that of a share of Series 1 Preferred Stock
(except for changes that do not materially and adversely affect
the holders of the Series 1 Preferred Stock); or
(iii) The authorization or creation of, or the increase in
the authorized amount of, any shares of any class or any
security convertible into shares of any class ranking prior to
the Series 1 Preferred Stock in the distribution of assets on
any liquidation, dissolution or winding up of the Corporation or
in the payment of dividends.
(d) For purposes of voting in respect to those matters referred
to in subparagraphs (b) and (c) of this Section 9, unless otherwise provided
under applicable law, each share of Series 1 Preferred Stock shall have one (1)
vote per share, except that when any other series of Preferred Stock shall have
the right to vote with the Series 1 Preferred Stock as a single class on any
matter, then the Series 1 Preferred Stock and such other series shall have with
respect to such matters one (1) vote per $20.8333 of stated liquidation
preference. Except as otherwise required by applicable law or as set forth
herein, the Series 1 Preferred Stock shall not have any relative, participating,
optional or other special voting rights and powers other than as set forth
herein, and the consent of the holders thereof shall not be required for the
taking of any corporate action.
Section 10. Record Holders. The Corporation and the Transfer Agent may
deem and treat the record holder of any shares of Series 1 Preferred Stock as
the true and lawful owner thereof for all purposes, and neither the Corporation
nor the Transfer Agent shall be affected by any notice to the contrary.
A-1.13
Section 11. Sinking Fund. The Series 1 Preferred Stock shall not be
entitled to the benefits of any retirement or sinking fund.
A-1.14
ADDENDUM 2 TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 1,502,532 SHARES OF
SERIES 2 CUMULATIVE CONVERTIBLE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation
Act ("FBCA"), Regency Realty Corporation, a Florida corporation (the
"Corporation"), does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Restated Articles of
Incorporation of the Corporation, as amended (the "Charter") and Section
607.0602 of the FBCA, the Board of Directors of the Corporation, by resolutions
duly adopted on September 23, 1998 has classified 1,502,532 shares of the
authorized but unissued Preferred Stock par value $.01 per share (the "Series 2
Preferred Stock") as a separate class of Preferred Stock, authorized the
issuance of a maximum of 1,502,532 shares of such class of Series 2 Preferred
Stock, set certain of the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such class of Series
2 Preferred Stock. Shareholder approval was not required under the Charter with
respect to such designation.
SECOND: The class of Series 2 Preferred Stock of the Corporation
created by the resolutions duly adopted by the Board of Directors of the
Corporation shall have the following designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitation as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
Section 1. Number of Shares and Designation. The number of shares of
Series 2 Preferred Stock which shall constitute such series shall not be more
than 1,502,532 shares, par value $0.01 per share, which number may be decreased
(but not below the number thereof then outstanding plus the number required to
fulfill the Corporation's obligations under certain agreements, options,
warrants or similar rights issued by the Corporation) from time to time by the
Board of Directors of the Corporation. Except as otherwise specifically stated
herein, the Series 2 Preferred Stock shall have the same rights and privileges
as Common Stock under Florida law.
A-2.1
Section 2. Definitions. For purposes of the Series 2 Preferred Stock,
the following terms shall have the meanings indicated:
"Board" shall mean the Board of Directors of the Corporation or any
committee authorized by such Board of Directors to perform any of its
responsibilities with respect to the Series 2 Preferred Stock.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which state or federally chartered banking institutions in New York City,
New York are not required to be open.
"Call Date" shall mean the date specified in the notice to holders
required under subparagraph (d) of Section 5 as the Call Date.
"Common Stock" shall mean the common capital stock of the
Corporation, par value $0.01 per share.
"Constituent Person" shall have the meaning set forth in paragraph
(e) of Section 6 hereof.
"Conversion Price" shall mean the conversion price per share of
Common Stock for which the Series 2 Preferred Stock is convertible, as such
Conversion Price may be adjusted pursuant to Section 6. The initial conversion
price shall be $20.8333 (equivalent to a conversion rate of one (1) share of
Common Stock for each share of Series 2 Preferred Stock).
"Current Market Price" of publicly traded Common Stock or any other
class of capital stock or other security of the Corporation or any other issuer
for any day shall mean the last reported sales price on such day, regular way,
or, if no sale takes place on such day, the average of the reported closing bid
and asked prices on such day, regular way, in either case as reported on the New
York Stock Exchange ("NYSE") or, if such security is not listed or admitted for
trading on the NYSE, on the principal national securities exchange on which such
security is listed or admitted for trading or, if not listed or admitted for
trading on any national securities exchange, on the National Market System of
the National Association of Securities Dealers, Inc. Automated Quotations System
("NASDAQ") or, if such security is not quoted on such National Market System,
the average of the closing bid and asked prices on such day in the
over-the-counter market as reported by NASDAQ or, if bid and asked prices for
such security on such day shall not have been reported through NASDAQ, as
reported by the National Quotation Bureau, Incorporated, or, if not so reported,
the average of the closing bid and asked prices as furnished by any member of
the National Association of Securities Dealers, Inc. selected from time to time
by the Corporation for such purpose, or, if no such prices are furnished, the
fair market value of the security as determined in good faith by the Board.
"Dividend Payment Date" shall mean the date on which any cash
dividend is paid on the Common Stock.
A-2.2
"Dividend Periods" shall mean quarterly dividend periods commencing
on April 1, July 1, October 1 and January 1 of each year and ending on and
including the day preceding the first day of the next succeeding Dividend Period
(other than the initial Dividend Period, which shall commence on the Issue
Date).
"Fully Junior Stock" shall mean any class or series of capital stock
of the Corporation now or hereafter issued and outstanding over which the Series
2 Preferred Stock has preference or priority in both (i) the payment of
dividends and (ii) the distribution of assets on any liquidation, dissolution or
winding up of the Corporation.
"Funds from Operations per Share" shall mean the amount determined
by dividing (a) the net income of the Corporation before extraordinary items
(determined in accordance with generally accepted accounting principles) as
reported by the Corporation in its year-end audited financial statements, minus
gains (or losses) from debt restructuring and sales of property, plus real
property depreciation and amortization and amortization of capitalized leasing
expenses and tenant allowances or improvements (to the extent such allowances or
improvements are capital items), and after adjustments for unconsolidated
partnerships, corporations and joint ventures (such items of depreciation and
amortization and such gains, losses and adjustments as determined in accordance
with generally accepted accounting principles and as reported by the Corporation
in its year-end audited financial statements) by (b) the weighted average number
of shares of common stock of the Corporation outstanding as reported by the
Corporation in its year-end audited financial statements. Adjustments for
unconsolidated partnerships, corporations and joint ventures shall be calculated
to reflect Funds from Operations per Share on the same basis. If the Corporation
shall after the Issue Date (A) pay a dividend or make a distribution in shares
of common stock on its outstanding shares of common stock, (B) subdivide its
outstanding shares of common stock into a greater number of shares, (C) combine
its outstanding Common Stock into a smaller number of shares or (D) issue any
shares of common stock by reclassification of its outstanding shares of common
stock, the Funds from Operations per Share shall be appropriately adjusted to
give effect to such events.
"Issue Date" shall mean the first date on which the Series 2
Preferred Stock is issued.
"Junior Stock" shall mean the Common Stock and any other class or
series of capital stock of the Corporation now or hereafter issued and
outstanding over which the Series 2 Preferred Stock has preference or priority
in the payment of dividends or in the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
"Minimum Amount" shall mean the greater of (A) $0.2083 and (B) 65%
of the highest amount of Funds from Operations per Share for any preceding
fiscal year, beginning with the fiscal year ending December 31, 1996, divided by
four.
"Non-Electing Share" shall have the meaning set forth in paragraph
(e) of Section 6 hereof.
"Parity Stock" shall have the meaning set forth in paragraph (b) of
Section 8.
A-2.3
"Person" shall mean any individual, firm, partnership, corporation,
or trust or other entity, and shall include any successor (by merger or
otherwise) of such entity.
"Securities" and "Security" shall have the meanings set forth in
paragraph (d)(iv) of Section 6 hereof.
"Series 1 Preferred Stock" shall mean the Series 1 Cumulative
Convertible Redeemable Preferred Stock of the Corporation, par value $0.01 per
share.
"Series 2 Preferred Stock" shall have the meaning set forth in
Article FIRST hereof.
"set apart for payment" shall be deemed to include, without any
action other than the following, the recording by the Corporation in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of dividends or other distribution by the Board, the
allocation of funds to be so paid on any series or class of capital stock of the
Corporation; provided, however, that if any funds for any class or series of
Junior Stock, Fully Junior Stock or any class or series of shares of capital
stock ranking on a parity with the Series 2 Preferred Stock as to the payment of
dividends are placed in a separate account of the Corporation or delivered to a
disbursing, paying or other similar agent, then "set apart for payment" with
respect to the Series 2 Preferred Stock shall mean placing such funds in a
separate account or delivering such funds to a disbursing, paying or other
similar agent.
"Transaction" shall have the meaning set forth in paragraph (e) of
Section 6 hereof.
"Transfer Agent" means initially the Corporation and shall include
such other agent or agents of the Corporation as may be designated by the Board
or their designee as the transfer agent for the Series 2 Preferred Stock.
"Voting Preferred Stock" shall have the meaning set forth in Section
9 hereof.
Section 3. Dividends.
(a) The holders of Series 2 Preferred Stock shall be entitled
to receive, when, as and if declared by the Board out of funds legally available
for that purpose, quarterly dividends payable in cash in an amount per share
equal to the greater of (i) the Minimum Amount or (ii) an amount equal to the
dividend (determined on each Dividend Payment Date) on a share of Common Stock,
or portion thereof, into which a share of Series 2 Preferred Stock is
convertible. For purposes of clause (ii) of the preceding sentence, such
dividends shall equal the number of shares of Common Stock, or portion thereof,
into which a share of Series 2 Preferred Stock is convertible, multiplied by the
most current quarterly dividend paid or payable on a share of Common Stock on or
before the applicable Dividend Payment Date. Dividends on the Series 2 Preferred
Stock shall begin to accrue and shall be fully cumulative from the Issue Date,
whether or not for any Dividend Period or Periods there shall be funds of the
Corporation legally available for the payment of such dividends, and shall be
payable quarterly, when, as and if declared by the Board, in arrears on Dividend
Payment Dates, commencing on the first Dividend Payment Date after the Issue
Date. Accrued and unpaid
A-2.4
dividends on shares of Series 2 Preferred Stock shall include any accrued and
unpaid dividends on the Series B Cumulative Convertible Redeemable Preferred
Shares of Beneficial Interest of Pacific Retail Trust which are exchanged by
operation of law into such shares of Series 2 Preferred Stock pursuant to the
merger of Pacific Retail Trust into the Corporation. Each dividend on the Series
2 Preferred Stock shall be payable to the holders of record of Series 2
Preferred Stock, as they appear on the stock records of the Corporation at the
close of business on such record dates as shall be fixed by the Board. Accrued
and unpaid dividends for any past Dividend Periods may be declared and paid at
any time and for such interim periods, without reference to any regular Dividend
Payment Date, to holders of record on such date as may be fixed by the Board.
(b) The amount of dividends payable for any dividend period
shorter or longer than a full Dividend Period, on the Series 2 Preferred Stock
shall be computed on the basis of twelve 30-day months and a 360-day year.
Holders of Series 2 Preferred Stock shall not be entitled to any dividends,
whether payable in cash, property or stock, in excess of current and cumulative
but unpaid dividends, as herein provided, on the Series 2 Preferred Stock. No
interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on the Series 2 Preferred Stock that may be in
arrears.
(c) So long as any Series 2 Preferred Stock is outstanding, no
dividends, except as described in the immediately following sentence, shall be
declared or paid or set apart for payment on any class or series of Parity Stock
for any period unless full cumulative dividends have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for such payment on the Series 2 Preferred Stock for all Dividend
Periods terminating on or prior to the Dividend Payment Date on such class or
series of Parity Stock. When dividends are not paid in full or a sum sufficient
for such payment is not set apart, as aforesaid, all dividends declared upon
Series 2 Preferred Stock and all dividends declared upon any other class or
series of Parity Stock shall be declared ratably in proportion to the respective
amounts of dividends accumulated and unpaid on the Series 2 Preferred Stock and
accumulated and unpaid on such Parity Stock.
(d) So long as any Series 2 Preferred Stock is outstanding, no
dividends (other than dividends or distributions paid solely in shares of, or
options, warrants or rights to subscribe for or purchase shares of, Fully Junior
Stock) shall be declared or paid or set apart for payment or other distribution
declared or made upon Junior Stock, nor shall any Junior Stock be redeemed,
purchased or otherwise acquired (other than a redemption, purchase or other
acquisition of Common Stock made for purposes of an employee incentive or
benefit plan of the Corporation or any subsidiary) for any consideration (or any
moneys be paid to or made available for a sinking fund for the redemption of any
shares of any such stock) by the Corporation, directly or indirectly (except by
conversion into or exchange for Fully Junior Stock), unless in each case (i) the
full cumulative dividends on all outstanding Series 2 Preferred Stock and any
other Parity Stock of the Corporation shall have been paid or declared and set
apart for payment for all past Dividend Periods with respect to the Series 2
Preferred Stock and all past dividend periods with respect to such Parity Stock
and (ii) sufficient funds shall have been paid or declared and set apart for the
payment of the dividend for the current
A-2.5
Dividend Period with respect to the Series 2 Preferred Stock and the current
dividend period with respect to such Parity Stock.
Section 4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, before any payment or
distribution of the assets of the Corporation (whether capital or surplus) shall
be made to or set apart for payment to the holders of Junior Stock or Fully
Junior Stock, the holders of the Series 2 Preferred Stock shall be entitled to
receive $20.8333 per share of Series 2 Preferred Stock plus an amount equal to
all dividends declared but unpaid thereon to the date of final distribution to
such holders; but such holders shall not be entitled to any further payment. If,
upon any liquidation, dissolution or winding up of the Corporation, the assets
of the Corporation, or proceeds thereof, distributable among the holders of the
Series 2 Preferred Stock shall be insufficient to pay in full the preferential
amount aforesaid and liquidating payments on any other shares of any class or
series of Parity Stock, then such assets, or the proceeds thereof, shall be
distributed among the holders of Series 2 Preferred Stock and any such other
Parity Stock ratably in accordance with the respective amounts that would be
payable on such Series 2 Preferred Stock and any such other Parity Stock if all
amounts payable thereon were paid in full. For the purposes of this Section 4,
(i) a consolidation or merger of the Corporation with one or more Persons, (ii)
a sale or transfer of all or substantially all of the Corporation's assets or
(iii) a statutory share exchange shall not be deemed to be a liquidation,
dissolution or winding up, voluntary or involuntary, of the Corporation.
(b) Subject to the rights of the holders of shares of any
series or class or classes of shares of capital stock ranking on a parity with
or prior to the Series 2 Preferred Stock upon liquidation, dissolution or
winding up, upon any liquidation, dissolution or winding up of the Corporation,
after payment shall have been made in full to the holders of the Series 2
Preferred Stock, as provided in this Section 4, any other series or class or
classes of Junior Stock or Fully Junior Stock shall, subject to the respective
terms and provisions (if any) applying thereto, be entitled to receive any and
all assets remaining to be paid or distributed, and the holders of the Series 2
Preferred Stock shall not be entitled to share therein.
Section 5. Redemption at the Option of the Corporation.
(a) The Series 2 Preferred Stock shall not be redeemable by the
Corporation prior to October 20, 2010. On and after October 20, 2010, the
Corporation, at its option, may redeem the Series 2 Preferred Stock, in whole at
any time or from time to time in part, at the option of the Corporation at a
redemption price of $20.8333 per share of Series 2 Preferred Stock, plus the
amounts indicated in Section 5(b).
(b) Upon any redemption of Series 2 Preferred Stock pursuant to
this Section 5, the Corporation shall pay in full any and all accrued and unpaid
dividends (without interest or sum of money in lieu of interest) for any and all
Dividend Periods ending on or prior to the Call Date. If the Call Date falls
after a dividend payment record date and prior to the corresponding Dividend
Payment Date, then each holder of Series 2 Preferred Stock at the
A-2.6
close of business on such dividend payment record date shall be entitled to the
dividend payable on such shares on the corresponding dividend payment date
notwithstanding the redemption of such shares before such Dividend Payment Date.
(c) If full cumulative dividends on the Series 2 Preferred
Stock and any other class or series of Parity Stock of the Corporation have not
been paid or declared and set apart for payment, the Series 2 Preferred Stock
may not be redeemed under this Section 5 in part and the Corporation may not
purchase or acquire shares of Series 2 Preferred Stock, otherwise than pursuant
to a voluntary purchase or exchange offer made on the same terms to all holders
of Series 2 Preferred Stock.
(d) Notice of the redemption of any Series 2 Preferred Stock
under this Section 5 shall be mailed by first-class mail to each holder of
record of Series 2 Preferred Stock to be redeemed at the address of each such
holder as shown on the Corporation's record, not less than 30 nor more than 90
days prior to the Call Date. Neither the failure to mail any notice required by
this paragraph (d), nor any defect therein or in the mailing thereof, to any
particular holder, shall affect the sufficiency of the notice or the validity of
the proceedings for redemption with respect to the other holders. Any notice
which was mailed in the manner herein provided shall be conclusively presumed to
have been duly given on the date mailed whether or not the holder receives the
notice. Each such mailed notice shall state, as appropriate: (1) the Call Date;
(2) the number of shares of Series 2 Preferred Stock to be redeemed and, if
fewer than all the shares held by such holder are to be redeemed, the number of
such shares to be redeemed from such holder; (3) the place or places at which
certificates for such shares are to be surrendered; and (4) that dividends on
the shares to be redeemed shall cease to accrue on such Call Date except as
otherwise provided herein. Notice having been mailed as aforesaid, from and
after the Call Date (unless the Corporation shall fail to make available an
amount of cash necessary to effect such redemption), (i) except as otherwise
provided herein, dividends on the Series 2 Preferred Stock so called for
redemption shall cease to accrue, (ii) said shares shall no longer be deemed to
be outstanding and (iii) all rights of the holders thereof as holders of Series
2 Preferred Stock of the Corporation shall cease (except the rights to convert
and to receive cash payable upon such redemption, without interest thereon, upon
surrender and endorsement of their certificates if so required and to receive
any dividends payable thereon). The Corporation's obligation to provide cash in
accordance with the preceding sentence shall be deemed fulfilled if, on or
before the Call Date, the Corporation shall deposit with a bank or trust company
(which may be an affiliate of the Corporation) that has an office in the Borough
of Manhattan, City of New York, and that has, or is an affiliate of a bank or
trust company that has, capital and surplus of at least $50,000,000, sufficient
cash necessary for such redemption, in trust, with irrevocable instructions that
such cash be applied to the redemption of the Series 2 Preferred Stock so called
for redemption. No interest shall accrue for the benefit of the holders of
Series 2 Preferred Stock to be redeemed on any cash so set aside by the
Corporation. Subject to applicable escheat laws and other unclaimed property
laws, any such cash unclaimed at the end of two years from the Call Date shall
revert to the general funds of the Corporation, after which reversion the
holders of such shares so called for redemption shall look only to the general
funds of the Corporation for the payment of such
A-2.7
cash. Notwithstanding the above, at any time after such redemption notice is
received and on or prior to the Call Date, any holder may exercise its
conversion rights under Section 6 below.
As promptly as practicable after the surrender in accordance with
said notice of the certificates for any such shares so redeemed (properly
endorsed or assigned for transfer, if the Corporation shall so require and if
the notice shall so state), such shares shall be exchanged for any cash
(including accumulated and unpaid dividends but without interest thereon) for
which such shares have been redeemed. If fewer than all the outstanding shares
of Series 2 Preferred Stock are to be redeemed, shares to be redeemed shall be
selected by the Corporation from outstanding Series 2 Preferred Stock not
previously called for redemption by lot or pro rata (as nearly as may be) or by
any other method determined by the Corporation in its sole discretion to be
equitable. If fewer than all shares of the Series 2 Preferred Stock represented
by any certificate are redeemed, then new certificates representing the
unredeemed shares shall be issued without cost to the holder thereof.
Section 6. Conversion. Holders of Series 2 Preferred Stock shall have
the right, at any time and from time to time, to convert all or a portion of
such shares into Common Stock, as follows:
(a) Subject to and upon compliance with the provisions of this
Section 6, a holder of Series 2 Preferred Stock shall have the right, at such
holder's option, at any time to convert each share of Series 2 Preferred Stock
into the number of fully paid and non-assessable shares of Common Stock obtained
by dividing the aggregate liquidation preference of such shares by the
Conversion Price (as in effect at the time and on the date provided for in the
last paragraph of paragraph (b) of this Section 6) by surrendering such shares
to be converted, such surrender to be made in the manner provided in paragraph
(b) of this Section 6.
(b) In order to exercise the conversion right, each holder of
shares of Series 2 Preferred Stock to be converted shall surrender the
certificate representing such shares, duly endorsed or assigned to the
Corporation or in blank, at the office of the Transfer Agent, accompanied by
written notice to the Corporation that the holder thereof elects to convert such
Series 2 Preferred Stock. Unless the shares issuable on conversion are to be
issued in the same name as the name in which such Series 2 Preferred Stock is
registered, each share surrendered for conversion shall be accompanied by
instruments of transfer, in form satisfactory to the Corporation, duly executed
by the holder or such holder's duly authorized attorney and an amount sufficient
to pay any transfer or similar tax (or evidence reasonably satisfactory to the
Corporation demonstrating that such taxes have been paid).
Holders of Series 2 Preferred Stock at the close of business on a
dividend payment record date shall be entitled to receive the dividend payable
on such shares on the corresponding dividend payment date notwithstanding the
conversion thereof following such dividend payment record date and on or prior
to such dividend payment date. In no event shall a holder of Series 2 Preferred
Stock be entitled to receive a dividend payment on Common Stock issued or
issuable upon conversion of Series 2 Preferred Stock if such holder is entitled
to receive a dividend in respect of the Series 2 Preferred Stock surrendered for
conversion.
A-2.8
The Corporation shall make no payment or allowance for unpaid dividends, whether
or not in arrears, on converted shares or for dividends on the Common Stock
issued upon such conversion.
As promptly as practicable after the surrender of certificates for
Series 2 Preferred Stock as aforesaid, the Corporation shall issue and shall
deliver at such office to such holder, or such holder's written order, a
certificate or certificates for the number of full shares of Common Stock
issuable upon the conversion of such shares in accordance with provisions of
this Section 6, and any fractional interest in respect of a share of Common
Stock arising upon such conversion shall be settled as provided in paragraph (c)
of this Section 6.
Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which the certificates for Series
2 Preferred Stock shall have been surrendered and such notice received by the
Corporation as aforesaid, and the person or persons in whose name or names any
certificate or certificates for Common Stock shall be issuable upon such
conversion shall be deemed to have become the holder or holders of record of the
shares represented thereby at such time on such date and such conversion shall
be at the Conversion Price in effect at such time on such date unless the stock
transfer books of the Corporation shall be closed on that date, in which event
such person or persons shall be deemed to have become such holder or holders of
record at the close of business on the next succeeding day on which such stock
transfer books are open, but such conversion shall be at the Conversion Price in
effect on the date on which such shares shall have been surrendered and such
notice received by the Corporation.
(c) No fractional shares or scrip representing fractions of a
share of Common Stock shall be issued upon conversion of the Series 2 Preferred
Stock. Instead of any fractional interest in a share of Common Stock that would
otherwise be deliverable upon the conversion of a share of Series 2 Preferred
Stock, the Corporation shall pay to the holder of such share an amount in cash
based upon the Current Market Price of Common Stock on the Business Day
immediately preceding the date of conversion. If more than one share shall be
surrendered for conversion at one time by the same holder, the number of full
shares of Common Stock issuable upon conversion thereof shall be computed on the
basis of the aggregate number of Series 2 Preferred Stock so surrendered.
(d) The Conversion Price shall be adjusted from time to time as
follows:
(i) If the Corporation shall after the Issue Date (A) pay
a dividend or make a distribution in shares of Common Stock on its
Common Stock, (B) subdivide its outstanding shares of Common Stock into
a greater number of shares, (C) combine its outstanding shares of Common
Stock into a smaller number of shares or (D) issue any shares of Common
Stock by reclassification of its Common Stock, the Conversion Price in
effect at the opening of business on the day following the date fixed
for the determination of shareholders entitled to receive such dividend
or distribution or at the opening of business on the Business Day next
following the day on which such subdivision, combination or
reclassification becomes effective, as the case may be, shall
A-2.9
be adjusted so that the holder of any shares of Series 2 Preferred Stock
thereafter surrendered for conversion shall be entitled to receive the
number of shares of Common Stock that such holder would have owned or
have been entitled to receive after the happening of any of the events
described above as if such shares of Series 2 Preferred Stock had been
converted immediately prior to the record date in the case of a dividend
or distribution or the effective date in the case of a subdivision,
combination or reclassification. An adjustment made pursuant to this
subparagraph (i) shall become effective immediately after the opening of
business on the Business Day next following the record date (except as
provided in paragraph (g) below) in the case of a dividend or
distribution and shall become effective immediately after the opening
of business on the Business Day next following the effective date in the
case of a subdivision, combination or reclassification.
(ii) If the Corporation shall issue after the Issue Date
rights, options or warrants to subscribe for or purchase Common Stock,
or to subscribe for or purchase any security convertible into Common
Stock, and the price per share for which Common Stock is issuable upon
exercise of such rights, options or warrants, or upon the conversion or
exchange of such convertible securities, is less than the lesser of the
Conversion Price then in effect and the Current Market Price per share
of Common Stock on the date such rights, options or warrants are issued,
then the Conversion Price in effect at the opening of business on the
Business Day next following such issue date shall be adjusted to equal
the price determined by multiplying (A) the Conversion Price in effect
immediately prior to the opening of business on the date for such
issuance by (B) a fraction, the numerator of which shall be the sum of
(I) the number of shares of Common Stock outstanding immediately prior
to such issuance and (II) the number of shares that the aggregate
proceeds to the Corporation from the exercise of such rights, options or
warrants for Common Stock, or in the case of rights to purchase
convertible securities, the aggregate proceeds from the exercise of such
rights, options or warrants and the subsequent conversion of such
convertible securities, would purchase at such Conversion Price or
Current Market Price, as applicable, and the denominator of which shall
be the sum of (A) the number of shares of Common Stock outstanding
immediately prior to such issuance and (B) the number of additional
shares of Common Stock offered for subscription or purchase pursuant to
such rights, options or warrants. Such adjustment shall become effective
immediately after the opening of business on the day next following such
issue date (except as provided in paragraph (g) below). In determining
whether any rights, options or warrants entitle the holders of Common
Stock to subscribe for or purchase Common Stock or any security
convertible into or exchangeable for Common Stock at less than such
Conversion Price or Current Market Price, as applicable, there shall be
taken into account any consideration received by the Corporation upon
issuance and upon exercise of such rights, options or warrants, and in
the case of rights, options or warrants to subscribe for or purchase
convertible securities, upon the subsequent conversion of such
securities, the value of such consideration, if other than cash, to be
determined in good faith by the Board. In the event that the securities
referenced in this subparagraph (ii) are only issued to all holders of
Common Stock, no adjustment shall be made to the Conversion Price under
A-2.10
this subparagraph (ii) if the Corporation shall issue to all holders of
Series 2 Preferred Stock, the same number of rights, options or
warrants to subscribe for or purchase Common Stock or any security
convertible into or exchangeable for Common Stock, as those issued to
holders of Common Stock, based upon the number of shares of Common Stock
into which each share of Series 2 Preferred Stock is then convertible.
(iii) If the Corporation shall issue after the Issue Date
any shares of capital stock or security convertible or exchangeable for
Common Stock (excluding rights, options or warrants referred to in
subparagraph (ii) above) and the price per share for which Common Stock
is issuable upon the conversion or exchange of such convertible or
exchangeable securities is less than the lesser of the Conversion Price
then in effect and the Current Market Price per share of Common Stock on
the date such convertible or exchangeable securities are issued, then
the Conversion Price in effect at the opening of business on the
Business Day next following such issue date shall be adjusted to equal
the price determined by multiplying (A) the Conversion Price in effect
immediately prior to the opening of business on the Business Day next
following the issue date by (B) a fraction, the numerator of which shall
be the sum of (I) the number of shares of Common Stock outstanding on
the close of business on the Business Day immediately preceding the
issue date and (II) the number of shares of Common Stock that the
aggregate proceeds to the Corporation from the conversion into or in
exchange for Common Stock would purchase at such Conversion Price or
Current Market Price, as applicable, and the denominator of which shall
be the sum of (A) the number of shares of Common Stock outstanding on
the close of business on the Business Day immediately preceding the
issue date and (B) the number of additional shares of Common Stock
issuable upon conversion or exchange of such convertible or exchangeable
securities. Such adjustment shall become effective immediately after the
opening of business on the day next following such issue date (except as
provided in paragraph (g) below). In determining whether any securities
are convertible for or exchangeable into Common Stock at less than
such Conversion Price or Current Market Price, as applicable, there
shall be taken into account any consideration received by the
Corporation upon issuance and upon conversion or exchange of such
convertible or exchangeable securities, the value of such consideration,
if other than cash, to be determined in good faith by the Board.
(iv) If the Corporation shall distribute to all holders of
its Common Stock any shares of capital stock of the Corporation (other
than Common Stock) or evidence of its indebtedness or assets (excluding
cash dividends or distributions) or rights, options or warrants to
subscribe for or purchase any of its securities (excluding those rights,
options and warrants referred to in subparagraph (ii) above and
excluding those convertible or exchangeable securities referred to in
subparagraph (iii) above (any of the foregoing being hereinafter in this
subparagraph (iv) collectively called the "Securities" and individually
a "Security"), then in each such case the Conversion Price shall be
adjusted so that it shall equal the price determined by multiplying (A)
the Conversion Price in effect immediately prior to the close of
business on the date fixed for the determination of shareholders
entitled to receive such distribution by (B) a
A-2.11
fraction, the numerator of which shall be the lesser of the Conversion
Price then in effect and the Current Market Price per share of Common
Stock on the record date mentioned below less the then fair market value
(as determined in good faith by the Board) of the portion of the shares
of capital stock or assets or evidences of indebtedness so distributed
or of such rights, options or warrants applicable to one share of Common
Stock, and the denominator of which shall be the lesser of the
Conversion Price then in effect and the Current Market Price per share
of Common Stock on the record date mentioned below. Such adjustment
shall become effective immediately at the opening of business on the
Business Day next following (except as provided in paragraph (g) below)
the record date for the determination of shareholders entitled to
receive such distribution. For the purposes of this clause (iv), the
distribution of a Security, which is distributed not only to the holders
of the Common Stock on the date fixed for the determination of
shareholders entitled to such distribution of such Security, but also is
distributed with each share of Common Stock delivered to a Person
converting Series 2 Preferred Stock after such determination date, shall
not require an adjustment of the Conversion Price pursuant to this
clause (iv); provided that on the date, if any, on which a Person
converting a share of Series 2 Preferred Stock would no longer be
entitled to receive such Security with a share of Common Stock (other
than as a result of the termination of all such Securities), a
distribution of such Securities shall be deemed to have occurred and the
Conversion Price shall be adjusted as provided in this clause (iv) (and
such day shall be deemed to be "the date fixed for the determination of
the shareholders entitled to receive such distribution" and "the record
date" within the meaning of the two preceding sentences).
(v) No adjustment in the Conversion Price shall be
required unless such adjustment would require a cumulative increase or
decrease of at least 1% in such price; provided, however, that any
adjustments that by reason of this subparagraph (v) are not required to
be made shall be carried forward and taken into account in any
subsequent adjustment until made; and provided, further, that any
adjustment shall be required and made in accordance with the provisions
of this Section 6 (other than this subparagraph (v)) not later than such
time as may be required in order to preserve the tax-free nature of a
distribution to the holders of Common Stock. Notwithstanding any other
provisions of this Section 6, the Corporation shall not be required to
make any adjustment of the Conversion Price for the issuance of any
Common Stock pursuant to (A) any plan providing for the reinvestment of
dividends or interest payable on securities of the Corporation and the
investment of additional optional amounts in Common Stock under such
plan or (B) any right, option or warrant to acquire Common Stock granted
to any employee (as such term is defined in General Instruction A to
Form S-8 under the Securities Act) of the Corporation under a plan
providing for the granting of such securities to employees; provided,
however, that such plan is approved by the shareholders and the
aggregate amount of Common Stock issuable under the rights, options and
warrants granted under such plan shall not exceed 20% of the shares of
Common Stock issued and outstanding on the date such plan is approved by
shareholders. In addition, the Corporation shall not be required to make
any adjustment of the Conversion Price for the issuance of any Common
Stock or any other
A-2.12
class or series of shares of capital stock pursuant to the terms of that
certain Shareholders' Agreement among Pacific Retail Trust (to which the
Corporation is successor by merger), Security Capital Holdings S.A.
and Opportunity Capital Partners Limited Partnership. All calculations
under this Section 6 shall be made to the nearest cent (with $.005 being
rounded upward) or to the nearest one-tenth of a share (with .05 of a
share being rounded upward), as the case may be. Anything in this
paragraph (d) to the contrary notwithstanding, the Corporation shall be
entitled, to the extent permitted by law, to make such reductions in the
Conversion Price, in addition to those required by this paragraph (d),
as it in its discretion shall determine to be advisable in order that
any share dividends, subdivision of shares, reclassification or
combination of shares, distribution of rights, options or warrants to
purchase stock or securities, or a distribution of other assets (other
than cash dividends) hereafter made by the Corporation to its
shareholders shall not be taxable.
(e) If the Corporation shall be a party to any transaction
(including without limitation a merger, consolidation, statutory share exchange,
self tender offer for all or substantially all Common Stock, sale of all or
substantially all of the Corporation's assets or recapitalization of the Common
Stock and excluding any transaction as to which subparagraph (d)(i) of this
Section 6 applies) (each of the foregoing being referred to herein as a
"Transaction"), in each case as a result of which all or substantially all
shares of Common Stock are converted into the right to receive stock, securities
or other property (including cash or any combination thereof) of another Person,
each share of Series 2 Preferred Stock, which is not converted into the right to
receive stock, securities or other property of such Person prior to such
Transaction (and each share of Series 2 Preferred Stock issuable after such
Transaction upon conversion of securities convertible into Series 2 Preferred
Stock), shall thereafter be convertible into the kind and amount of shares of
stock, securities and other property (including cash or any combination thereof)
receivable upon the consummation of such Transaction by a holder of that number
of shares of Common Stock into which one share of Series 2 Preferred Stock was
convertible immediately prior to such Transaction, assuming such holder of
Common Stock (i) is not a Person with which the Corporation consolidated or into
which the Corporation merged or which merged into the Corporation or to which
such sale or transfer was made, as the case may be ("Constituent Person"), or an
affiliate of a Constituent Person and (ii) failed to exercise his rights of
election, if any, as to the kind or amount of stock, securities and other
property (including cash) receivable upon such Transaction (provided that if the
kind or amount of stock, securities and other property (including cash)
receivable upon such Transaction is not the same for each share of Common Stock
held immediately prior to such Transaction by other than a Constituent Person or
an affiliate thereof and in respect of which such rights of election shall not
have been exercised ("Non-Electing Share"), then for the purpose of this
paragraph (e) the kind and amount of stock, securities and other property
(including cash) receivable upon such Transaction by each Non-Electing Share
shall be deemed to be the kind and amount so receivable per share by a plurality
of the Non-Electing Shares). The Corporation shall not be a party to any
Transaction unless the terms of such Transaction are consistent with the
provisions of this paragraph (e), and it shall not consent or agree to the
occurrence of any Transaction until the Corporation has entered into an
agreement with the successor or purchasing entity, as the case may be, for the
A-2.13
benefit of the holders of the Series 2 Preferred Stock (and securities
convertible into Series 2 Preferred Stock) that will contain provisions enabling
the holders of the Series 2 Preferred Stock that remain outstanding (or are
issuable upon conversion of securities convertible into Series 2 Preferred
Stock) after such Transaction to convert into the consideration received by
holders of Common Stock at the Conversion Price in effect immediately prior to
such Transaction. The provisions of this paragraph (e) shall similarly apply to
successive Transactions.
(f) Whenever the Conversion Price is adjusted as herein
provided, the Corporation shall promptly mail notice of such adjustment of the
Conversion Price to each holder of Series 2 Preferred Stock at such holder's
last address as shown on the share records of the Corporation.
(g) In any case in which paragraph (d) of this Section 6
provides that an adjustment shall become effective on the day next following the
record date for an event, the Corporation may defer until the occurrence of such
event (A) issuing to the holder of any Series 2 Preferred Stock converted after
such record date and before the occurrence of such event the additional shares
of Common Stock issuable upon such conversion by reason of the adjustment
required by such event over and above the shares of Common Stock issuable upon
such conversion before giving effect to such adjustment and (B) paying to such
holder any amount of cash in lieu of any fraction pursuant to paragraph (c) of
this Section 6.
(h) There shall be no adjustment of the Conversion Price in
case of the issuance of any shares of capital stock of the Corporation in a
reorganization, acquisition or other similar transaction except as specifically
set forth in this Section 6. If any action or transaction would require
adjustment of the Conversion Price pursuant to more than one paragraph of this
Section 6, only one adjustment shall be made and such adjustment shall be the
adjustment that yields the highest absolute value.
(i) The Corporation covenants that it will at all times reserve
and keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued Common Stock, for the purpose of effecting conversion of
the Series 2 Preferred Stock, the full number of shares of Common Stock
deliverable upon the conversion of all outstanding Series 2 Preferred Stock not
theretofore converted. For purposes of this paragraph (i), the number of shares
of Common Stock that shall be deliverable upon the conversion of all outstanding
Series 2 Preferred Stock shall be computed as if at the time of computation all
such outstanding shares were held by a single holder.
The Corporation covenants that any shares of Common Stock issued
upon conversion of the Series 2 Preferred Stock shall be validly issued, fully
paid and non-assessable. Before taking any action that would cause an adjustment
reducing the Conversion Price below the then-par value of the Common Stock
deliverable upon conversion of the Series 2 Preferred Stock, the Corporation
will take any corporate action that, in the opinion of its counsel, may be
necessary in order that the Corporation may validly and legally issue fully paid
and non-assessable shares of Common Stock at such adjusted Conversion Price.
A-2.14
Prior to the delivery of any securities that the Corporation shall
be obligated to deliver upon conversion of the Series 2 Preferred Stock, the
Corporation shall endeavor to comply with all federal and state laws and
regulations thereunder requiring the registration of such securities with, or
any approval of or consent to the delivery thereof by, any governmental
authority.
(j) The Corporation will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery of
Common Stock or other securities or property on conversion of the Series 2
Preferred Stock pursuant hereto; provided, however, that the Corporation shall
not be required to pay any tax that may be payable in respect of any transfer
involved in the issue or delivery of Common Stock or other securities or
property in a name other than that of the holder of the Series 2 Preferred Stock
to be converted, and no such issue or delivery shall be made unless and until
the person requesting such issue or delivery has paid to the Corporation the
amount of any such tax or established, to the reasonable satisfaction of the
Corporation, that such tax has been paid.
Section 7. Shares to Be Retired. All shares of Series 2 Preferred
Stock which shall have been issued and reacquired in any manner by the
Corporation shall be restored to the status of authorized but unissued shares of
Preferred Stock of the Corporation, without designation as to class or series.
Section 8. Ranking. Any class or series of shares of capital stock of
the Corporation shall be deemed to rank:
(a) prior to the Series 2 Preferred Stock, as to the payment of
dividends and as to distribution of assets upon liquidation, dissolution or
winding up, if the holders of such class or series shall be entitled to the
receipt of dividends or of amounts distributable upon liquidation, dissolution
or winding up, as the case may be, in preference or priority to the holders of
Series 2 Preferred Stock;
(b) on a parity with the Series 2 Preferred Stock, as to the
payment of dividends and as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the dividend rates, dividend payment
dates or liquidation prices per share thereof shall be different from those of
the Series 2 Preferred Stock, if the holders of such class or series and the
Series 2 Preferred Stock shall be entitled to the receipt of dividends and of
amounts distributable upon liquidation, dissolution or winding up in proportion
to their respective amounts of accrued and unpaid dividends per share or
liquidation preferences, without preference or priority one over the other
("Parity Stock");
(c) junior to the Series 2 Preferred Stock, as to the payment
of dividends or as to the distribution of assets upon liquidation, dissolution
or winding up, if such class or series shall be Junior Stock; and
(d) junior to the Series 2 Preferred Stock, as to the payment
of dividends and as to the distribution of assets upon liquidation, dissolution
or winding up, if such class or series shall be Fully Junior Stock.
A-2.15
The Corporation's Series 1 Cumulative Convertible
Redeemable Preferred Stock and the Corporations 8.125% Series A Cumulative
Redeemable Preferred Stock shall constitute Parity Stock.
Section 9. Voting.
(a) Each issued and outstanding share of Series 2 Preferred
Stock shall entitle the holder thereof to the number of votes per share of
Common Stock into which such share of Series 2 Preferred Stock is convertible
(as of the close of business on the record date for determination of
shareholders entitled to vote on a matter) on all matters presented for a vote
of shareholders of the Corporation and, except as required by applicable law and
subject to the further provisions of this Section 9, the Series 2 Preferred
Stock shall be voted together with all issued and outstanding Common Stock and
Series 1 Preferred Stock voting as a single class.
(b) If and whenever twelve consecutive quarterly dividends
payable on the Series 2 Preferred Stock or any series or class of Parity Stock
shall be in arrears (which shall, with respect to any such quarterly dividend,
mean that any such dividend has not been paid in full), whether or not earned or
declared, the number of directors then constituting the Board shall be increased
by one and the holders of Series 2 Preferred Stock, together with the holders of
shares of every other series of Parity Stock, including the Series 1 Preferred
Stock (any such other series, the "Voting Preferred Stock"), voting as a single
class regardless of series, shall be entitled to elect, at a special meeting of
the holders of the Series 2 Preferred Stock and the Voting Preferred Stock
called as hereinafter provided, the additional director to serve on the Board.
Whenever all arrearages in dividends on the Series 2 Preferred Stock and the
Voting Preferred Stock then outstanding shall have been paid and dividends
thereon for the current quarterly dividend period shall have been paid or
declared and set apart for payment, then the right of the holders of the Series
2 Preferred Stock and the Voting Preferred Stock to elect such additional
director shall cease (but subject always to the same provision for the vesting
of such voting rights in the case of any similar future arrearages in twelve
quarterly dividends), and the terms of office of the person elected as director
by the holders of the Series 2 Preferred Stock and the Voting Preferred Stock
shall forthwith terminate and the number of members of the Board shall be
reduced accordingly. At any time after such voting power shall have been so
vested in the holders of Series 2 Preferred Stock and the Voting Preferred Stock
(or if any vacancy shall occur in respect of the director previously elected by
the holders of the Series 2 Preferred Stock and the Voting Preferred Stock), the
secretary of the Corporation shall call a special meeting of the holders of the
Series 2 Preferred Stock and of the Voting Preferred Stock for the election of
the director to be elected by them as herein provided, such call to be made by
notice similar to that provided in the Bylaws of the Corporation for a special
meeting of the shareholders or as required by law. If any such special meeting
required to be called as above provided shall not be called by the secretary
within 30 days after the end of the most recent Dividend Period during which the
right to elect such additional director arose or such vacancy occurred, then any
holder of Series 2 Preferred Stock may call such meeting, upon the notice
above provided, and for that purpose shall have access to the stock records of
the Corporation. The director elected at any such special meeting shall hold
office until the next
A-2.16
annual meeting of the shareholders or special meeting held in lieu thereof if
such office shall not have previously terminated as above provided.
(c) So long as any Series 2 Preferred Stock is outstanding, in
addition to any other vote or consent of shareholders required by law or by
the Charter, the affirmative vote of at least 66 2/3% of the votes entitled to
be cast by the holders of the Series 2 Preferred Stock, together with the
holders of Voting Preferred Stock, at the time outstanding, acting as a single
class regardless of series, given in person or by proxy, either in writing
without a meeting or by vote at any meeting called for the purpose, shall be
necessary for effecting or validating:
(i) Any amendment, alteration or repeal of any of the
provisions of the Charter or these Articles of Amendment that materially
and adversely affects the voting powers, rights or preferences of the
holders of the Series 2 Preferred Stock or the Voting Preferred Stock;
provided, however, that the amendment of the provisions of the Charter
so as to authorize or create or to increase the authorized amount of,
any Fully Junior Stock, Junior Stock that is not senior in any respect
to the Series 2 Preferred Stock, or any stock of any class ranking on a
parity with the Series 2 Preferred Stock or the Voting Preferred Stock
shall not be deemed to materially adversely affect the voting
powers, rights or preferences of the holders of Series 2 Preferred
Stock; and provided, further, that if any such amendment, alteration
or repeal would materially and adversely affect any voting powers,
rights or preferences of the Series 2 Preferred Stock or another
series of Voting Preferred Stock that are not enjoyed by some or all
of the other series otherwise entitled to vote in accordance
herewith, the affirmative vote of at least 66 2/3% of the votes
entitled to be cast by the holders of all series similarly affected,
similarly given, shall be required in lieu of the affirmative vote
of at least 66 2/3% of the votes entitled to be cast by the holders
of the Series 2 Preferred Stock and the Voting Preferred Stock
otherwise entitled to vote in accordance herewith; or
(ii) A share exchange that affects the Series 2 Preferred
Stock, a consolidation with or merger of the Corporation into another
Person, or a consolidation with or merger of another Person into the
Corporation, unless in each such case each share of Series 2
Preferred Stock (A) shall remain outstanding without a material and
adverse change to its terms and rights or (B) shall be converted
into or exchanged for convertible preferred stock of the surviving
entity having preferences, conversion or other rights, voting
powers, restrictions, limitations as to dividends, qualifications
and terms or conditions of redemption thereof identical to that of a
share of Series 2 Preferred Stock (except for changes that do not
materially and adversely affect the holders of the Series 2
Preferred Stock); or
(iii) The authorization or creation of, or the increase in
the authorized amount of, any shares of any class or any security
convertible into shares of any class ranking prior to the Series 2
Preferred Stock in the distribution of assets on any liquidation,
dissolution or winding up of the Corporation or in the payment of
dividends.
A-2.17
(d) For purposes of voting in respect to those matters referred
to in subparagraphs (b) and (c) of this Section 9, unless otherwise provided
under applicable law, each Series 2 Preferred Stock shall have one (1) vote per
share, except that when any other series of Preferred Stock shall have the right
to vote with the Series 2 Preferred Stock as a single class on any matter, then
the Series 2 Preferred Stock and such other series shall have with respect to
such matters one (1) vote per $20.8333 of stated liquidation preference. Except
as otherwise required by applicable law or as set forth herein, the Series 2
Preferred Stock shall not have any relative, participating, optional or other
special voting rights and powers other than as set forth herein, and the consent
of the holders thereof shall not be required for the taking of any corporate
action.
Section 10. Record Holders. The Corporation and the Transfer Agent may
deem and treat the record holder of any shares of Series 2 Preferred Stock as
the true and lawful owner thereof for all purposes, and neither the Corporation
nor the Transfer Agent shall be affected by any notice to the contrary.
Section 11. Sinking Fund. The Series 2 Preferred Stock shall not be
entitled to the benefits of any retirement or sinking fund.
A-2.18
ADDENDUM 3 TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
AMENDING AND RESTATING THE DESIGNATION OF THE PREFERENCES,
RIGHTS AND LIMITATIONS OF 1,600,000 SHARES OF
8.125% SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation
Act ("FBCA"), Regency Realty Corporation, a Florida corporation (the
"Corporation"), does hereby certify that the Articles of Amendment to the
Articles of Incorporation of the Corporation Designating the Preferences, Rights
and Limitations of 1,600,000 shares of 8.125% Series A Cumulative Redeemable
Preferred Stock, as filed in the Office of the Florida Secretary of State on
June 24, 1998, shall be amended and restated in its entirety as follows:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Amended and Restated Articles
of Incorporation of the Corporation (the "Charter") and Section 607.0602 of the
FBCA, the Board of Directors of the Corporation (the "Board of Directors"), by
resolutions duly adopted on May 26, 1998 has classified 1,600,000 shares of the
authorized but unissued Preferred Stock par value $.01 per share ("Preferred
Stock") as a separate class of Preferred Stock, authorized the issuance of a
maximum of 1,600,000 shares of such class of Preferred Stock, set certain of the
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, terms and conditions of redemption
and other terms and conditions of such class of Preferred Stock, and pursuant to
the powers contained in the Bylaws of the Corporation and the FBCA, appointed a
committee (the "Committee") of the Board of Directors and delegated to the
Committee, to the fullest extent permitted by the FBCA and the Charter and
Bylaws of the Corporation, all powers of the Board of Directors with respect to
designating, and setting all other preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of redemption of, such
class of Preferred Stock determining the number of shares of such class of
Preferred Stock (not in excess of the aforesaid maximum number) to be issued and
the consideration and other terms and conditions upon which such shares of such
class of Preferred Stock are to be issued. Shareholder approval was not required
under the Charter with respect to such designation.
SECOND: Pursuant to the authority conferred upon the Committee as
aforesaid, the Committee has unanimously adopted resolutions designating the
aforesaid class of Preferred Stock as the "8.125% Series A Cumulative Redeemable
Preferred Stock," setting the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such 8.125% Series A
Cumulative Redeemable Preferred Stock (to the extent not set by the
A-3.1
Board of Directors in the resolutions referred to in Article FIRST of these
Articles of Amendment) and authorizing the issuance of up to 1,600,000 shares of
8.125% Series A Cumulative Redeemable Preferred Stock.
THIRD: Pursuant to the authority conferred upon the Committee, the
Committee has, by unanimous written consent dated September 29, 1999, adopted
resolutions amending and restating the preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications, terms
and conditions of redemption and other terms and conditions of such 8.125%
Series A Cumulative Redeemable Preferred Stock (to the extent not set by the
Board of Directors in the resolutions referred to in Article FIRST of these
Articles of Amendment). There are no shares of 8.125% Series A Cumulative
Redeemable Preferred Stock outstanding and, accordingly, no shareholder approval
was required. The class of Preferred Stock of the Corporation created by the
resolutions duly adopted by the Board of Directors of the Corporation and by the
Committee and referred to in Articles FIRST and SECOND of these Articles of
Amendment and amended hereby shall have the following designation, number of
shares, preferences, conversion and other rights, voting powers, restrictions
and limitation as to dividends, qualifications, terms and conditions of
redemption and other terms and conditions:
Section 1. Designation and Number. A series of Preferred Stock,
designated the "8.125% Series A Cumulative Redeemable Preferred Stock" (the
"Series A Preferred Stock") is hereby established. The number of shares of
Series A Preferred Stock shall be 1,600,000.
Section 2. Rank. The Series A Preferred Stock will, with respect to
distributions or rights upon voluntary or involuntary liquidation, winding-up or
dissolution of the Corporation, or both, rank senior to all classes or series of
Common Stock (as defined in the Charter) and to all classes or series of equity
securities of the Corporation now or hereafter authorized, issued or
outstanding, other than any class or series of equity securities of the
Corporation expressly designated as ranking on a parity with or senior to the
Series A Preferred Stock as to distributions or rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the Corporation, or both.
For purposes of these Articles of Amendment, the term "Parity Preferred Stock"
shall be used to refer to any class or series of equity securities of the
Corporation now or hereafter authorized, issued or outstanding expressly
designated by the Corporation to rank on a parity with Series A Preferred Stock
with respect to distributions or rights upon voluntary or involuntary
liquidation, winding-up or dissolution of the Corporation, or both, as the
context may require, whether or not the dividend rates, dividend payment dates
or redemption or liquidation prices per share or conversion rights or exchange
rights shall be different from those of the Series A Preferred Stock. The term
"equity securities" does not include debt securities, which will rank senior to
the Series A Preferred Stock prior to conversion.
Section 3. Distributions.
(a) Payment of Distributions. Subject to the rights of holders
of Parity Preferred Stock as to the payment of distributions and holders of
equity securities issued after
A-3.2
the date hereof in accordance herewith ranking senior to the Series A Preferred
Stock as to payment of distributions, holders of Series A Preferred Stock shall
be entitled to receive, when, as and if declared by the Board of Directors of
the Corporation, out of funds legally available for the payment of
distributions, cumulative cash distributions at the rate per annum of 8.125% of
the $50.00 liquidation preference per share of Series A Preferred Stock. Such
distributions shall be cumulative, shall accrue from the original date of
issuance and will be payable in cash (A) quarterly in arrears, on or before
March 31, June 30, September 30 and December 31 of each year commencing on the
first of such dates to occur after the original date of issuance and, (B) in the
event of a redemption, on the redemption date (each a "Preferred Stock
Distribution Payment Date"). The amount of the distribution payable for any
period will be computed on the basis of a 360-day year of twelve 30-day months
and for any period shorter than a full quarterly period for which distributions
are computed, the amount of the distribution payable will be computed on the
basis of the actual number of days elapsed in such a 30-day month. If any date
on which distributions are to be made on the Series A Preferred Stock is not a
Business Day (as defined herein), then payment of the distribution to be made on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) except that,
if such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date. Distributions on the Series A
Preferred Stock will be made to the holders of record of the Series A Preferred
Stock on the relevant record dates to be fixed by the Board of Directors of the
Corporation, which record dates shall be not less than 10 days and not more than
30 Business Days prior to the relevant Preferred Stock Distribution Payment Date
(each a "Distribution Record Date"). Notwithstanding anything to the contrary
set forth herein, each share of Series A Preferred Stock shall also continue to
accrue all accrued and unpaid distributions, whether or not declared, up to the
exchange date on any Series A Preferred Unit (as defined in the Second Amended
and Restated Agreement of Limited Partnership of Regency Centers, L.P., dated as
March 5, 1998 as amended by that certain Amendment No. One to Second Amendment
and Restatement of Agreement of Limited Partnership dated as of June 25, 1998
(as amended the "Partnership Agreement")) validly exchanged into such share of
Series A Preferred Stock in accordance with the provisions of such Partnership
Agreement.
The term "Business Day" shall mean each day, other than
a Saturday or a Sunday, which is not a day on which banking institutions in New
York, New York are authorized or required by law, regulation or executive order
to close.
(b) Limitation on Distributions. No distribution on the Series
A Preferred Stock shall be declared or paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement of the
Corporation (other than any agreement with a holder or affiliate of holder of
Capital Stock of the Corporation) relating to its indebtedness, prohibit such
declaration, payment or setting apart for payment or provide that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration, payment or setting
apart for payment shall be restricted or prohibited by law. Nothing in this
Section 3(b) shall be deemed to modify or in any manner limit the provisions of
Section 3(c) and 3(d).
A-3.3
(c) Distributions Cumulative. Distributions on the Series A
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series A Preferred Stock will accumulate as of the Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid at
any time, without reference to a regular Preferred Stock Distribution Payment
Date to holders of record of the Series A Preferred Stock on the record date
fixed by the Board of Directors which date shall be not less than 10 days and
not more than 30 Business Days prior to the payment date. Accumulated and unpaid
distributions will not bear interest.
(d) Priority as to Distributions.
(i) So long as any Series A Preferred Stock is
outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect
to any class or series of Common Stock or any class or series of other
stock of the Corporation ranking junior as to the payment of
distributions to the Series A Preferred Stock (such Common Stock or
other junior stock, collectively, "Junior Stock"), nor shall any
cash or other property be set aside for or applied to the purchase,
redemption or other acquisition for consideration of any Series A
Preferred Stock, any Parity Preferred Stock with respect to
distributions or any Junior Stock, unless, in each case, all
distributions accumulated on all Series A Preferred Stock and all
classes and series of outstanding Parity Preferred Stock as to
payment of distributions have been paid in full. The foregoing
sentence will not prohibit (i) distributions payable solely in
Junior Stock, (ii) the conversion of Series A Preferred Stock,
Junior Stock or Parity Preferred Stock into stock of the Corporation
ranking junior to the Series A Preferred Stock as to distributions,
and (iii) purchases by the Corporation of such Series A Preferred
Stock or Parity Preferred Stock with respect to distributions or
Junior Stock pursuant to Article 5 of the Charter to the extent
required to preserve the Corporation's status as a real estate
investment trust.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably deposited
in trust for payment) upon the Series A Preferred Stock, all
distributions authorized and declared on the Series A Preferred
Stock and all classes or series of outstanding Parity Preferred
Stock with respect to distributions shall be authorized and declared
so that the amount of distributions authorized and declared per
share of Series A Preferred Stock and such other classes or series
of Parity Preferred Stock shall in all cases bear to each other the
same ratio that accrued distributions per share on the Series A
Preferred Stock and such other classes or series of Parity Preferred
Stock (which shall not include any accumulation in respect of unpaid
distributions for prior distribution periods if such class or series
of Parity Preferred Stock do not have cumulative distribution
rights) bear to each other.
A-3.4
(e) No Further Rights. Holders of Series A Preferred Stock
shall not be entitled to any distributions, whether payable in cash, other
property or otherwise, in excess of the full cumulative distributions described
herein.
Section 4. Liquidation Preference.
(a) Payment of Liquidating Distributions. Subject to the rights
of holders of Parity Preferred Stock with respect to rights upon any voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation and
subject to equity securities ranking senior to the Series A Preferred Stock with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Series A Preferred Stock shall be
entitled to receive out of the assets of the Corporation legally available for
distribution or the proceeds thereof, after payment or provision for debts and
other liabilities of the Corporation, but before any payment or distributions of
the assets shall be made to holders of Common Stock or any other class or series
of shares of the Corporation that ranks junior to the Series A Preferred Stock
as to rights upon liquidation, dissolution or winding-up of the Corporation, an
amount equal to the sum of (i) a liquidation preference of $50 per share of
Series A Preferred Stock, and (ii) an amount equal to any accumulated and unpaid
distributions thereon, whether or not declared, to the date of payment. In the
event that, upon such voluntary or involuntary liquidation, dissolution or
winding-up, there are insufficient assets to permit full payment of liquidating
distributions to the holders of Series A Preferred Stock and any Parity
Preferred Stock as to rights upon liquidation, dissolution or winding-up of the
Corporation, all payments of liquidating distributions on the Series A Preferred
Stock and such Parity Preferred Stock shall be made so that the payments on the
Series A Preferred Stock and such Parity Preferred Stock shall in all cases bear
to each other the same ratio that the respective rights of the Series A
Preferred Stock and such other Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior distribution
periods if such Parity Preferred Stock do not have cumulative distribution
rights) upon liquidation, dissolution or winding-up of the Corporation bear to
each other.
(b) Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by (i) fax and (ii) by first
class mail, postage pre-paid, not less than 30 and not more that 60 days prior
to the payment date stated therein, to each record holder of the Series A
Preferred Stock at the respective addresses of such holders as the same shall
appear on the share transfer records of the Corporation.
(c) No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series A
Preferred Stock will have no right or claim to any of the remaining assets of
the Corporation.
(d) Consolidation, Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the
A-3.5
consolidation or merger or other business combination of the Corporation with or
into, any corporation, trust or other entity (or of any corporation, trust or
other entity with or into the Corporation) shall not be deemed to constitute a
liquidation, dissolution or winding-up of the Corporation.
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
Section 5. Optional Redemption.
(a) Right of Optional Redemption. The Series A Preferred Stock
ay not be redeemed prior to June 25, 2003. On or after such date, the
Corporation shall have the right to redeem the Series A Preferred Stock, in
whole or in part, atc any time or from time to time, upon not less than 30 nor
more than 60 days' written notice, at a redemption price, payable in cash, equal
to $50 per share of Series A Preferred Stock plus accumulated and unpaid
distributions, whether or nor declared, to the date of redemption. If fewer than
all of the outstanding shares of Series A Preferred Stock are to be redeemed,
the shares of Series A Preferred Stock to be redeemed shall be selected pro rata
(as nearly as practicable without creating fractional shares).
(b) Limitation on Redemption.
(i) The redemption price of the Series A Preferred Stock
(other than the portion thereof consisting of accumulated but unpaid
distributions) will be payable solely out of sale proceeds of capital
stock of the Corporation and from no other source. For purposes of the
preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares, participation or
other ownership interests (however designated) and any rights (other
than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(ii) The Corporation may not redeem fewer than all of the
outstanding shares of Series A Preferred Stock unless all accumulated
and unpaid distributions have been paid on all Series A Preferred Stock
for all quarterly distribution periods terminating on or prior to the
date of redemption.
(c) Procedures for Redemption.
(i) Notice of redemption will be (i) faxed, and (ii)
mailed by the Corporation, postage prepaid, not less than 30 nor more
than 60 days prior to the redemption date, addressed to the respective
holders of record of the Series A Preferred
A-3.6
Stock to be redeemed at their respective addresses as they appear on the
transfer records of the Corporation. No failure to give or defect in
such notice shall affect the validity of the proceedings for the
redemption of any Series A Preferred Stock except as to the holder to
whom such notice was defective or not given. In addition to any
information required by law or by the applicable rules of any exchange
upon which the Series A Preferred Stock may be listed or admitted to
trading, each such notice shall state: (i) the redemption date, (ii) the
redemption price, (iii) the number of shares of Series A Preferred
Stock to be redeemed, (iv) the place or places where such shares of
Series A Preferred Stock are to be surrendered for payment of the
redemption price, (v) that distributions on the Series A Preferred
Stock to be redeemed will cease to accumulate on such redemption
date and (vi) that payment of the redemption price and any
accumulated and unpaid distributions will be made upon presentation
and surrender of such Series A Preferred Stock. If fewer than all of
the shares of Series A Preferred Stock held by any holder are to be
redeemed, the notice mailed to such holder shall also specify the
number of shares of Series A Preferred Stock held by such holder to
be redeemed.
(ii) If the Corporation gives a notice of redemption in
respect of Series A Preferred Stock (which notice will be irrevocable)
then, by 12:00 noon, New York City time, on the redemption date, the
Corporation will deposit irrevocably in trust for the benefit of the
Series A Preferred Stock being redeemed funds sufficient to pay the
applicable redemption price, plus any accumulated and unpaid
distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any
accumulated and unpaid distributions, if any, on such shares to the
holders of the Series A Preferred Stock upon surrender of the
certificate evidencing the Series A Preferred Stock by such holders at
the place designated in the notice of redemption. If fewer than all
Series A Preferred Stock evidenced by any certificate is being redeemed,
a new certificate shall be issued upon surrender of the certificate
evidencing all Series A Preferred Stock, evidencing the unredeemed
Series A Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on
the Series A Preferred Stock or portions thereof called for redemption,
unless the Corporation defaults in the payment thereof. If any date
fixed for redemption of Series A Preferred Stock is not a Business Day,
then payment of the redemption price payable on such date will be made
on the next succeeding day that is a Business Bay (and without any
interest or other payment in respect of any such delay) except that, if
such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date fixed for redemption. If
payment of the redemption price or any accumulated or unpaid
distributions in respect of the Series A Preferred Stock is improperly
withheld or refused and not paid by the Corporation, distributions on
such Series A Preferred Stock will continue to accumulate from the
original redemption date to the date of payment, in which case the
actual payment date will be considered the date fixed for redemption for
purposes of
A-3.7
calculating the applicable redemption price and any accumulated and
unpaid distributions.
(d) Status of Redeemed Stock. Any Series A Preferred Stock that
shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
class or series until such shares are once more designated as part of a
particular class or series by the Board of Directors.
Section 6. Voting Rights.
(a) General. Holders of the Series A Preferred Stock will not
have any voting rights, except as set forth below.
(b) Right to Elect Directors.
(i) If at any time distributions shall be in arrears
(which means that, as to any such quarterly distributions, the same have
not been paid in full) with respect to six (6) prior quarterly
distribution periods (including quarterly periods on the Series A
Preferred Units prior to the exchange into Series A Preferred Stock),
whether or not consecutive, and shall not have been paid in full (a
"Preferred Distribution Default"), the authorized number of members of
the Board of Directors shall automatically be increased by two and the
holders of record of such Series A Preferred Stock, voting together as a
single class with the holders of each class or series of Parity
Preferred Stock upon which like voting rights have been conferred and
are exercisable, will be entitled to fill the vacancies so created by
electing two additional directors to serve on the Corporation's Board of
Directors (the "Preferred Stock Directors") at a special meeting called
in accordance with Section 6(b)(ii) or at the next annual meeting of
stockholders and at each subsequent annual meeting of stockholders
or special meeting held in place thereof, until all such
distributions in arrears and distributions for the current quarterly
period on the Series A Preferred Stock and each such class or series
of Parity Preferred Stock have been paid in full.
(ii) At any time when such voting rights shall have
vested, a proper officer of the Corporation shall call or cause to be
called, upon written request of holders of record of at least 10% of the
outstanding shares of Series A Preferred Stock, a special meeting of
the holders of Series A Preferred Stock and all the series of Parity
Preferred Stock upon which like voting rights have been conferred
and are exercisable (collectively, the "Parity Securities") by mailing
or causing to be mailed to such holders a notice of such special meeting
to be held not less than ten and not more than 45 days after the date
such notice is given. The record date for determining holders of the
Parity Securities entitled to notice of and to vote at such special
meeting will be the close of business on the third Business Day
preceding the day on which such notice is mailed. At any annual or
special meeting at which Parity Securities are entitled to vote, all of
the holders of the Parity Securities, by plurality vote, voting together
as a single class without regard to series will be entitled to elect two
directors on the basis of one vote per $25.00 of liquidation preference
to which such Parity Securities are entitled by
A-3.8
their terms (excluding amounts in respect of accumulated and unpaid
dividends) and not cumulatively. The holder or holders of Parity
Securities representing one-third of the total voting power of the
Parity Securities then outstanding, present in person or by proxy, will
constitute a quorum for the election of the Preferred Stock Directors
except as otherwise provided by law. Notice of all meetings at which
holders of the Series A Preferred Stock shall be entitled to vote will
be given to such holders at their addresses as they appear in the
transfer records. At any such meeting or adjournment thereof in the
absence of a quorum, subject to the provisions of any applicable law,
the holders of Parity Securities representing a majority of the voting
power of the Parity Securities present in person or by proxy shall
have the power to adjourn the meeting for the election of the Preferred
Stock Directors, without notice other than an announcement at the
meeting, until a quorum is present. If a Preferred Distribution Default
shall terminate after the notice of an annual or special meeting has
been given but before such special meeting has been held, the
Corporation shall, as soon as practicable after such termination, mail
or cause to be mailed notice of such termination to holders of the
Series A Preferred Stock that would have been entitled to vote at such
meeting.
(iii) If and when all accumulated distributions and the
distribution for the current distribution period on the Series A
Preferred Stock shall have been paid in full or a sum sufficient for
such payment is irrevocably deposited in trust for payment, the holders
of the Series A Preferred Stock shall be divested of the voting rights
set forth in Section 6(b) herein (subject to revesting in the event of
each and every Preferred Distribution Default) and, if all distributions
in arrears and the distributions for the current distribution period
have been paid in full or set aside for payment in full on all other
classes or series of Parity Preferred Stock upon which like voting
rights have been conferred and are exercisable, the term and office of
each Preferred Stock Director so elected shall terminate. Any Preferred
Stock Director may be removed at any time with or without cause by the
vote of, and shall not be removed otherwise than by the vote of, the
holders of record of a majority of the outstanding Series A
Preferred Stock when they have the voting rights set forth in
Section 6(b) (voting separately as a single class with all other
classes or series of Parity Preferred Stock upon which like voting
rights have been conferred and are exercisable). So long as a
Preferred Distribution Default shall continue, any vacancy in the
office of a Preferred Stock Director may be filled by written
consent of the Preferred Stock Director remaining in office, or if
none remains in office, by a vote of the holders of record of a
majority of the outstanding Series A Preferred Stock when they have
the voting rights set forth in Section 6(b) (voting separately as a
single class with all other classes or series of Parity Preferred
Stock upon which like voting rights have been conferred and are
exercisable). The Preferred Stock Directors shall each be entitled
to one vote per director on any matter.
(c) Certain Voting Rights. So long as any Series A Preferred
Stock remains outstanding, the Corporation shall not, without the affirmative
vote of the holders of at least two-thirds of the Series A Preferred Stock and
Series A Preferred Units outstanding at such time and not previously surrendered
in exchange for Series A Preferred Stock together, if
A-3.9
applicable, voting as a single class based on the number of shares into which
such Series A Preferred Units are then convertible (collectively, the "Voting
Securities") (i) designate or create, or increase the authorized or issued
amount of, any class or series of shares ranking prior to the Series A Preferred
Stock with respect to payment of distributions or rights upon liquidation,
dissolution or winding-up or reclassify any authorized shares of the Corporation
into any such shares, or create, authorize or issue any obligations or
securities convertible into or evidencing the right to purchase any such shares,
(ii) designate or create, or increase the authorized or issued amount of, any
Parity Preferred Stock or reclassify any authorized shares of the Corporation
into any such shares, or create, authorize or issue any obligations or
securities convertible into or evidencing the right to purchase any such shares,
but only to the extent such Parity Preferred Stock is issued to an affiliate of
the Corporation (other than Security Capital U.S. Realty, Security Capital
Holdings, S.A. or their affiliates), or (iii) either (A) consolidate, merge
into or with, or convey, transfer or lease its assets substantially as an
entirety, to any corporation or other entity, or (B) amend, alter or repeal the
provisions of the Corporation's Charter (including these Articles of Amendment)
or By-laws, whether by merger, consolidation or otherwise, in each case that
would materially and adversely affect the powers, special rights, preferences,
privileges or voting power of the Series A Preferred Stock or the holders
thereof; provided, however, that with respect to the occurrence of a merger,
consolidation or a sale or lease of all of the Corporation's assets as an
entirety, so long as (a) the Corporation is the surviving entity and the Series
A Preferred Stock remains outstanding with the terms thereof unchanged, or (b)
the resulting, surviving or transferee entity is a corporation organized under
the laws of any state and substitutes the Series A Preferred Stock for other
preferred stock having substantially the same terms and same rights as the
Series A Preferred Stock, including with respect to distributions, voting rights
and rights upon liquidation, dissolution or winding-up, then the occurrence of
any such event shall not be deemed to materially and adversely affect such
rights, privileges or voting powers of the holders of the Series A Preferred
Stock and no vote of the Series A Voting Securities shall be required in such
case and provided further that any increase in the amount of authorized
Preferred Stock or the creation or issuance of any other class or series of
Preferred Stock, or any increase in an amount of authorized shares of each class
or series, in each case ranking either (a) junior to the Series A Preferred
Stock with respect to payment of distributions or the distribution of assets
upon liquidation, dissolution or winding-up, or (b) on a parity with the Series
A Preferred Stock with respect to payment of distributions or the distribution
of assets upon liquidation, dissolution or winding-up to the extent such
Preferred Stock is not issued to a affiliate of the Corporation, shall not be
deemed to materially and adversely affect such rights, preferences, privileges
or voting powers and no vote of the Voting Securities shall be required in such
case.
Section 7. No Conversion Rights. The holders of the Series A Preferred
Stock shall not have any rights to convert such shares into shares of any other
class or series of stock or into any other securities of, or interest in, the
Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for
the retirement or redemption of Series A Preferred Stock.
A-3.10
Section 9. No Preemptive Rights. No holder of the Series A Preferred
Stock of the Corporation shall, as such holder, have any preemptive rights to
purchase or subscribe for additional shares of stock of the Corporation or any
other security of the Corporation which it may issue or sell.
A-3.11
ADDENDUM 4 TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 850,000 SHARES OF
8.75% SERIES B CUMULATIVE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation Act
("FBCA"), Regency Realty Corporation, a Florida corporation (the "Corporation"),
does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Amended and Restated Articles
of Incorporation of the Corporation (as amended, the "Charter") and Section
607.0602 of the FBCA, the Board of Directors of the Corporation (the "Board of
Directors"), by resolutions duly adopted on August 23, 1999 has classified
850,000 shares of the authorized but unissued Preferred Stock par value $.0l per
share ("Preferred Stock") as a separate class of Preferred Stock, authorized the
issuance of a maximum of 850,000 shares of such class of Preferred Stock, set
certain of the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications, terms and conditions
of redemption and other terms and conditions of such class of Preferred Stock,
and pursuant to the powers contained in the Bylaws of the Corporation and the
FBCA, appointed a committee (the "Committee") of the Board of Directors and
delegated to the Committee, to the fullest extent permitted by the FBCA and the
Charter and Bylaws of the Corporation, all powers of the Board of Directors with
respect to designating, and setting all other preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of redemption of, such
class of Preferred Stock, determining the number of shares of such class of
Preferred Stock (not in excess of the aforesaid maximum number) to be issued and
the consideration and other terms and conditions upon which such shares of such
class of Preferred Stock are to be issued. Shareholder approval was not required
under the Charter with respect to such designation. Capitalized terms used and
not otherwise defined herein shall have the meaning assigned thereto in the
Charter.
SECOND: Pursuant to the authority conferred upon the Committee as
aforesaid, the Committee has unanimously adopted resolutions designating the
aforesaid class of Preferred Stock as the "8.75% Series B Cumulative Redeemable
Preferred Stock," setting the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such 8.75% Series B
Cumulative Redeemable Preferred Stock (to the extent not set by the Board of
Directors in the resolutions referred to in Article First of these Articles of
A-4.1
Amendment) and authorizing the issuance of up to 850,000 shares of 8.75% Series
B Cumulative Redeemable Preferred Stock.
THIRD: The class of Preferred Stock of the Corporation created by
the resolutions duly adopted by the Board of Directors of the Corporation and by
the Committee and referred to in Articles First and Second of these Articles of
Amendment shall have the following designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitation as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
Section 1. Designation and Number. A series of Preferred Stock,
designated the "8.75% Series B Cumulative Redeemable Preferred Stock" (the
"Series B Preferred Stock") is hereby established. The number of shares of
Series B Preferred Stock shall be 850,000.
Section 2. Rank. The Series B Preferred Stock will, with respect to
distributions or rights upon voluntary or involuntary liquidation, winding-up or
dissolution of the Corporation, or both, rank senior to all classes or series of
Common Stock (as defined in the Charter) and to all classes or series of equity
securities of the Corporation now or hereafter authorized, issued or outstanding
other than any class or series of equity securities of the Corporation expressly
designated as ranking on a parity with or senior to the Series B Preferred Stock
as to distributions or rights upon voluntary or involuntary liquidation,
winding-up or dissolution of the Corporation, or both. For purposes of these
Articles of Amendment, the term "Parity Preferred Stock" shall be used to refer
to any class or series of equity securities of the Corporation now or hereafter
authorized, issued or outstanding expressly designated by the Corporation to
rank on a parity with Series B Preferred Stock with respect to distributions or
rights upon voluntary or involuntary liquidation, winding-up or dissolution of
the Corporation, or both, as the context may require, whether or not the
dividend rates, dividend payment dates or redemption or liquidation prices per
share or conversion rights or exchange rights shall be different from those of
the Series B Preferred Stock. The term "equity securities" does not include debt
securities, which will rank senior to the Series B Preferred Stock prior to
conversion. The Series B Preferred Stock is expressly designated as ranking on a
parity with the Series A Preferred Stock.
Section 3. Distributions.
(a) Payment of Distributions. Subject to the rights of holders
of Parity Preferred Stock as to the payment of distributions and holders of
equity securities issued after the date hereof in accordance herewith ranking
senior to the Series B Preferred Stock as to payment of distributions, holders
of Series B Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors of the Corporation, out of funds legally
available for the payment of distributions, cumulative cash distributions at the
rate per annum of 8.75% of the $100.00 liquidation preference per share of
Series B Preferred Stock (the "Distribution Rate"). Notwithstanding anything
herein to the contrary, the Distribution Rate shall be equal to the Coupon Rate
(as defined in Amendment No. 1 to the Third Amended and Restated Agreement of
Limited Partnership of Regency Centers, L.P.) in effect at the time of
A-4.2
issuance of the Series C Preferred Stock. Such distributions shall be
cumulative, shall accrue from the original date of issuance and will be payable
in cash (A) quarterly in arrears, on or before March 1, June 1, September 1 and
December 1 of each year commencing on the first of such dates to occur after the
original date of issuance and, (B) in the event of a redemption, on the
redemption date (each a "Series B Preferred Stock Distribution Payment Date").
The amount of the distribution payable for any period will be computed based on
the ratio basis of a 360-day year of twelve 30-day months and for any period
shorter than a full quarterly period for which distributions are computed, the
amount of the distribution payable will be computed on the basis of the actual
number of days elapsed in such quarterly period to 90 days. If any date on which
distributions are to be made on the Series B Preferred Stock is not a Business
Day (as defined herein), then payment of the distribution to be made on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. Distributions on the Series B Preferred Stock
will be made to the holders of record of the Series B Preferred Stock on the
relevant record dates to be fixed by the Board of Directors of the Corporation,
which record dates shall be not less than 10 days and not more than 30 Business
Days prior to the relevant Series B Preferred Stock Distribution Payment Date
(each a "Distribution Record Date"). Notwithstanding anything to the contrary
set forth herein, each share of Series B Preferred Stock shall also continue to
accrue all accrued and unpaid distributions, whether or not declared, up to the
exchange date on any Series B Preferred Unit (as defined in the Third Amended
and Restated Agreement of Limited Partnership of Regency Centers, L.P., dated as
September 1, 1999 as amended by that certain Amendment No. 1 to Third Amended
and Restated Agreement of Limited Partnership dated as of September 3, 1999 (as
amended, the "Partnership Agreement")) validly exchanged into such share of
Series B Preferred Stock in accordance with the provisions of such Partnership
Agreement.
The term "Business Day" shall mean each day, other than a
Saturday or a Sunday, which is not a day on which banking institutions in New
York, New York are authorized or required by law, regulation or executive order
to close.
(b) Distributions Cumulative. Distributions on the Series B
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series B Preferred Stock will accumulate as of the Series B Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid at
any time, without reference to a regular Series B Preferred Stock Distribution
Payment Date to holders of record of the Series B Preferred Stock on the record
date fixed by the Board of Directors which date shall be not less than 10 days
and not more than 30 Business Days prior to the payment date. Accumulated and
unpaid distributions will not bear interest.
A-4.3
(c) Priority as to Distributions.
(i) So long as any Series B Preferred Stock is
outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect
to any class or series of Common Stock or any class or series of other
stock of the Corporation ranking junior as to the payment of
distributions to the Series B Preferred Stock (such Common Stock or
other junior stock, collectively, "Junior Stock"), nor shall any
cash or other property be set aside for or applied to the purchase,
redemption or other acquisition for consideration of any Series B
Preferred Stock, any Parity Preferred Stock with respect to
distributions or any Junior Stock, unless in each case, all
distributions accumulated on all Series B Preferred Stock and all
classes and series of outstanding Parity Preferred Stock as to payment
of distributions have been paid in full. The foregoing sentence will
not prohibit (i) distributions payable solely in Junior Stock, (ii) the
conversion of Series B Preferred Stock, Junior Stock or Parity Preferred
Stock into stock of the Corporation ranking junior to the Series B
Preferred Stock as to distributions, and (iii) purchases by the
Corporation of such Series B Preferred Stock or Parity Preferred Stock
with respect to distributions or Junior Stock pursuant to Article 5 of
the Charter to the extent required to preserve the Corporation's status
as a real estate investment trust.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably deposited
in trust for payment) upon the Series B Preferred Stock, all
distributions authorized and declared on the Series B Preferred Stock
and all classes or series of outstanding Parity Preferred Stock with
respect to distributions shall be authorized and declared so that the
amount of distributions authorized and declared per share of Series B
Preferred Stock and such other classes or series of Parity Preferred
Stock shall in all cases bear to each other the same ratio that accrued
distributions per share on the Series B Preferred Stock and such other
classes or series of Parity Preferred Stock (which shall not include any
accumulation in respect of unpaid distributions for prior distribution
periods if such class or series of Parity Preferred Stock do not have
cumulative distribution rights) bear to each other.
(d) No Further Rights. Holders of Series B Preferred Stock
shall not be entitled to any distributions, whether payable in cash, other
property or otherwise, in excess of the full cumulative distributions described
herein.
Section 4. Liquidation Preference.
(a) Payment of Liquidation Distributions. Subject to the rights
of holders of Parity Preferred Stock with respect to rights upon any voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation, the
holders of Series B Preferred Stock shall be entitled to receive out of the
assets of the Corporation legally available for distribution or the proceeds
thereof, after payment or provision for debts and other liabilities of the
Corporation, but before any payment or distributions of the assets shall be made
to holders of Common
A-4.4
Stock or any other class or series of shares of the Corporation that
ranks junior to the Series B Preferred Stock as to rights upon liquidation,
dissolution or winding-up of the Corporation, an amount equal to the sum of (i)
a liquidation preference of $100.00 per share of Series B Preferred Stock, and
(ii) an amount equal to any accumulated and unpaid distributions thereon,
whether or not declared, to the date of payment. In the event that, upon such
voluntary or involuntary liquidation, dissolution or winding-up, there are
insufficient assets to permit full payment of liquidating distributions to the
holders of Series B Preferred Stock and any Parity Preferred Stock as to rights
upon liquidation, dissolution or winding-up of the Corporation, all payments of
liquidating distributions on the Series B Preferred Stock and such Parity
Preferred Stock shall be made so that the payments on the Series B Preferred
Stock and such Parity Preferred Stock shall in all cases bear to each other the
same ratio that the respective rights of the Series B Preferred Stock and such
other Parity Preferred Stock (which shall not include any accumulation in
respect of unpaid distributions for prior distribution periods if such Parity
Preferred Stock do not have cumulative distribution rights) upon liquidation,
dissolution or winding-up of the Corporation bear to each other.
(b) Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by (i) fax and (ii) by first
class mail, postage pre-paid, not less than 30 and not more that 60 days prior
to the payment date stated therein, to each record holder of the Series B
Preferred Stock at the respective addresses of such holders as the same shall
appear on the share transfer records of the Corporation.
(c) No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series B
Preferred Stock will have no right or claim to any of the remaining assets of
the Corporation.
(d) Consolidation Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the consolidation or merger or
other business combination of the Corporation with or into, any corporation,
trust or other entity (or of any corporation, trust or other entity with or into
the Corporation) shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Corporation.
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
A-4.5
Section 5. Optional Redemption.
(a) Right of Optional Redemption. The Series B Preferred Stock
may not be redeemed prior to September 3, 2004. On or after such date, the
Corporation shall have the right to redeem the Series B Preferred Stock, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' written notice, at a redemption price, payable in cash, equal
to $100.00 per share of Series B Preferred Stock plus accumulated and unpaid
distributions, whether or nor declared, to the date of redemption. If fewer than
all of the outstanding shares of Series B Preferred Stock are to be redeemed,
the shares of Series B Preferred Stock to be redeemed shall be selected pro rata
(as nearly as practicable without creating fractional shares).
(b) Limitation on Redemption.
(i) The redemption price of the Series B Preferred Stock
(other than the portion thereof consisting of accumulated but unpaid
distributions) will be payable solely out of sale proceeds of capital
stock of the Corporation and from no other source. For purposes of the
preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares, participation or
other ownership interests (however designated) and any rights (other
than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(ii) The Corporation may not redeem fewer than all of the
outstanding shares of Series B Preferred Stock unless all accumulated
and unpaid distributions have been paid on all Series B Preferred Stock
for all quarterly distribution periods terminating on or prior to the
date of redemption.
(c) Procedures for Redemption.
(i) Notice of redemption will be (i) faxed, and (ii)
mailed by the Corporation, postage prepaid, not less than 30 nor more
than 60 days prior to the redemption date, addressed to the respective
holders of record of the Series B Preferred Stock to be redeemed at
their respective addresses as they appear on the transfer records of
the Corporation. No failure to give or defect in such notice shall
affect the validity of the proceedings for the redemption of any
Series B Preferred Stock except as to the holder to whom such notice
was defective or not given. In addition to any information required
by law or by the applicable rules of any exchange upon which the
Series B Preferred Stock may be listed or admitted to trading, each
such notice shall state: (i) the redemption date, (ii) the
redemption price, (iii) the number of shares of Series B Preferred
Stock to be redeemed, (iv) the place or places where such shares of
Series B Preferred Stock are to be surrendered for payment of the
redemption price, (v) that distributions on the Series B Preferred
Stock to be redeemed will cease to accumulate on such redemption
date and (vi) that payment of the redemption price and any
accumulated and unpaid distributions will be made upon presentation
and surrender of such Series B Preferred
A-4.6
Stock. If fewer than all of the shares of Series B Preferred Stock held
by any holder are to be redeemed, the notice mailed to such holder shall
also specify the number of shares of Series B Preferred Stock held by
such holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in
respect of Series B Preferred Stock (which notice will be irrevocable)
then, by 12:00 noon, New York City time, on the redemption date, the
Corporation will deposit irrevocably in trust for the benefit of the
Series B Preferred Stock being redeemed funds sufficient to pay the
applicable redemption price' plus any accumulated and unpaid
distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any
accumulated and unpaid distributions, if any, on such shares to the
holders of the Series B Preferred Stock upon surrender of the
certificate evidencing the Series B Preferred Stock by such holders at
the place designated in the notice of redemption. If fewer than all
Series B Preferred Stock evidenced by any certificate is being redeemed,
a new certificate shall be issued upon surrender of the certificate
evidencing all Series B Preferred Stock, evidencing the unredeemed
Series B Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on
the Series B Preferred Stock or portions thereof called for redemption,
unless the Corporation defaults in the payment thereof. If any date
fixed for redemption of Series B Preferred Stock is not a Business Day,
then payment of the redemption price payable on such date will be made
on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if
such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date fixed for redemption. If
payment of the redemption price or any accumulated or unpaid
distributions in respect of the Series B Preferred Stock is improperly
withheld or refused and not paid by the Corporation, distributions on
such Series B Preferred Stock will continue to accumulate from the
original redemption date to the date of payment, in which case the
actual payment date will be considered the date fixed for redemption for
purposes of calculating the applicable redemption price and any
accumulated and unpaid distributions.
(d) Status of Redeemed Stock. Any Series B Preferred Stock that
shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
class or series until such shares are once more designated as part of a
particular class or series by the Board of Directors.
Section 6. Voting Rights.
(a) General. Holders of the Series B Preferred Stock will not
have any voting rights, except as set forth below.
(b) Right to Elect Directors.
A-4.7
(i) If at any time distributions shall be in arrears
(which means that as to any such quarterly distributions, the same have
not been paid in full) with respect to six (6) prior quarterly
distribution periods (including quarterly periods on the Series B
Preferred Units prior to the exchange into Series B Preferred Stock),
whether or not consecutive, and shall not have been paid in full (a
"Series B Preferred Distribution Default"), the authorized number of
members of the Board of Directors shall automatically be increased by
two and the holders of record of such Series B Preferred Stock, voting
together as a single class with the holders of each class or series of
Parity Preferred Stock upon which like voting rights have been conferred
and are exercisable, will be entitled to fill the vacancies so created
by electing two additional directors to serve on the Corporation's Board
of Directors (the "Preferred Stock Directors") at a special meeting
called in accordance with Section 6(b)(ii), and at each subsequent
annual meeting of stockholders or special meeting held in place thereof,
until all such distributions in arrears and distributions for the
current quarterly period on the Series B Preferred Stock and each
such class or series of Parity Preferred Stock have been paid in
full.
(ii) At any time when such voting rights shall have
vested, a proper officer of the Corporation shall call or cause to be
called, upon written request of holders of record of at least 10% of the
outstanding shares of Series B Preferred Stock, a special meeting of
the holders of Series B Preferred Stock and all the series of Parity
Preferred Stock upon which like voting rights have been conferred
and are exercisable (collectively, the "Parity Securities") by mailing
or causing to be mailed to such holders a notice of such special meeting
to be held not less than ten and not more than 45 days after the date
such notice is given. The record date for determining holders of the
Parity Securities entitled to notice of and to vote at such special
meeting will be the close of business on the third Business Day
preceding the day on which such notice is mailed. At any annual or
special meeting at which Parity Securities are entitled to vote, all of
the holders of the Parity Securities, by plurality vote, voting together
as a single class without regard to series will be entitled to elect two
directors on the basis of one vote per $25.00 of liquidation preference
to which such Parity Securities are entitled by their terms (excluding
amounts in respect of accumulated and unpaid dividends) and not
cumulatively. The holder or holders of the Parity Securities
representing one-third of the total voting power of the Parity
Securities then outstanding, present in person or by proxy, will
constitute a quorum for the election of the Preferred Stock Directors
except as otherwise provided by law. Notice of all meetings at which
holders of the Series B Preferred Stock shall be entitled to vote will
be given to such holders at their addresses as they appear in the
transfer records. At any such meeting or adjournment thereof in the
absence of a quorum, subject to the provisions of any applicable law,
the holders of the Parity Securities representing a majority of the
voting power of the Parity Securities present in person or by proxy
shall have the power to adjourn the meeting for the election of the
Preferred Stock Directors, without notice other than an announcement
at the meeting, until a quorum is present. If a Series B Preferred
Distribution Default shall terminate after the notice of an annual
or special meeting has been given but before such special meeting
has been held, the Corporation shall, as soon as practicable after
A-4.8
such termination, mail or cause to be mailed notice of such
termination to holders of the Series B Preferred Stock that would
have been entitled to vote at such meeting.
(iii) If and when all accumulated distributions and the
distribution for the current distribution period on the Series B
Preferred Stock shall have been paid in full or a sum sufficient for
such payment is irrevocably deposited in trust for payment, the holders
of the Series B Preferred Stock shall be divested of the voting rights
set forth in Section 6(b) herein (subject to revesting in the event of
each and every Series B Preferred Distribution Default) and, if all
distributions in arrears and the distributions for the current
distribution period have been paid in full or set aside for payment in
full on all other classes or series of Parity Preferred Stock upon which
like voting rights have been conferred and are exercisable, the terms
and office of each Preferred Stock Director so elected shall terminate.
Any Preferred Stock Director may be removed at any time with or without
cause by the vote of, and shall not be removed otherwise than by the
vote of, the holders of record of a majority of the outstanding Series B
Preferred Stock when they have the voting rights set forth in Section
6(b) (voting separately as a single class with all other classes or
series of Parity Preferred Stock upon which like voting rights have been
conferred and are exercisable). So long as a Series B Preferred
Distribution Default shall continue, any vacancy in the office of a
Preferred Stock Director may be filled by written consent of the
Preferred Stock Director remaining in office, or if none remains in
office, by a vote of the holders of record of a majority of the
outstanding Series B Preferred Stock when they have the voting rights
set forth in Section 6(b) (voting separately as a single class with all
other classes or series of Parity Preferred Stock upon which like voting
rights have been conferred and are exercisable). The Preferred Stock
Directors shall each be entitled to one vote per director on any matter.
(c) Certain Voting Rights. So long as any Series B Preferred
Stock or Series C Preferred Unit remains outstanding, the Corporation shall
not, without the affirmative vote of the holders of at least two-thirds of the
Series B Preferred Stock and Series B Preferred Units outstanding at the time
(together, if applicable, voting as a single class) (collectively, the "Voting
Securities") (i) designate or create, or increase the authorized or issued
amount of, any class or series of shares ranking prior to the Series B Preferred
Stock with respect to payment of distributions or rights upon liquidation,
dissolution or winding-up or reclassify any authorized shares of the Corporation
into any such shares, or create, authorize or issue any obligations or
securities convertible into or evidencing the right to purchase any such shares,
(ii) designate or create, or increase the authorized or issued amount of, any
Parity Preferred Stock or reclassify any authorized shares of the Corporation
into any such shares, or create, authorize or issue any obligations or
securities convertible into or evidencing the right to purchase any such shares,
but only to the extent such Parity Preferred Stock is issued to an affiliate of
the Corporation (other than Security Capital U.S. Realty, Security Capital
Holdings, S.A. or their affiliates purchasing preferred stock of the same series
on the same terms as non-affiliates), or (iii) either (A) consolidate, merge
into or with, or convey, transfer or lease its assets substantially as an
entirety, to any corporation or other entity, or (B) amend, alter or repeal the
provisions of the Corporation's Charter (including these Articles of
A-4.9
Amendment) or By-laws, whether by merger, consolidation or otherwise, in each
case that would materially and adversely affect the powers, special rights,
preferences, privileges or voting power of the Series B Preferred Stock or the
holders thereof; provided, however, that with respect to the occurrence of a
merger, consolidation or a sale or lease of all of the Corporation's assets
as an entirety, so long as (a) the Corporation is the surviving entity and the
Series B Preferred Stock remains outstanding (or remains exchangeable for Series
B Preferred Units) with the terms thereof unchanged, or (b) the resulting,
surviving or transferee entity is a corporation organized under the laws of any
state and substitutes the Series B Preferred Stock for other preferred stock
having substantially the same terms and same rights as the Series B Preferred
Stock, including with respect to distributions, voting rights and rights upon
liquidation, dissolution or winding-up, then the occurrence of any such event
shall not be deemed to materially and adversely affect such rights, privileges
or voting powers of the holders of the Series B Preferred Stock and no vote of
the Series B Preferred Stock shall be required in such case and provided further
that any increase in the amount of authorized Preferred Stock or the creation or
issuance of any other class or series of Preferred Stock, or any increase in an
amount of authorized shares of each class or series, in each case ranking either
(a) junior to the Series B Preferred Stock with respect to payment of
distributions and the distribution of assets upon liquidation, dissolution or
winding-up, or (b) on a parity with the Series B Preferred Stock with respect to
payment of distributions and the distribution of assets upon liquidation,
dissolution or winding-up to the extent such Preferred Stock is not issued to an
affiliate of the Corporation (other than Security Capital U.S. Realty, Security
Capital Holdings, S.A. or their affiliates purchasing preferred stock of the
same series on the same terms as non-affiliates), shall not be deemed to
materially and adversely affect such rights, preferences, privileges or voting
powers and no vote of the Voting Securities shall be required in such case.
Section 7. No Conversion Rights. The holders of the Series B Preferred
Stock shall not have any rights to convert such shares into shares of any other
class or series of stock or into any other securities of, or interest in, the
Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for
the retirement or redemption of Series B Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series B Preferred
Stock of the Corporation shall, as such holder, have any preemptive rights to
purchase or subscribe for additional shares of stock of the Corporation or any
other security of the Corporation which it may issue or sell.
A-4.10
ADDENDUM 5 TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 750,000 SHARES OF
9.0% SERIES C CUMULATIVE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation
Act ("FBCA"), Regency Realty Corporation, a Florida corporation (the
"Corporation"), does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Amended and Restated Articles
of Incorporation of the Corporation (as amended, the "Charter") and Section
607.0602 of the FBCA, the Board of Directors of the Corporation (the "Board of
Directors"), by resolutions duly adopted on August 23, 1999 has classified
750,000 shares of the authorized but unissued Preferred Stock par value $.0l per
share ("Preferred Stock") as a separate class of Preferred Stock, authorized the
issuance of a maximum of 750,000 shares of such class of Preferred Stock, set
certain of the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications, terms and conditions
of redemption and other terms and conditions of such class of Preferred Stock,
and pursuant to the powers contained in the Bylaws of the Corporation and the
FBCA, appointed a committee (the "Committee") of the Board of Directors and
delegated to the Committee, to the fullest extent permitted by the FBCA and the
Charter and Bylaws of the Corporation, all powers of the Board of Directors with
respect to designating, and setting all other preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of redemption of, such
class of Preferred Stock, determining the number of shares of such class of
Preferred Stock (not in excess of the aforesaid maximum number) to be issued and
the consideration and other terms and conditions upon which such shares of such
class of Preferred Stock are to be issued. Shareholder approval was not required
under the Charter with respect to such designation. Capitalized terms used and
not otherwise defined herein shall have the meaning assigned thereto in the
Charter.
SECOND: Pursuant to the authority conferred upon the Committee as
aforesaid, the Committee has unanimously adopted resolutions designating the
aforesaid class of Preferred Stock as the "9.0% Series C Cumulative Redeemable
Preferred Stock," setting the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such 9.0% Series C
Cumulative Redeemable Preferred Stock (to the extent not set by the Board of
Directors in the resolutions referred to in Article First of these Articles of
A-5.1
Amendment) and authorizing the issuance of up to 750,000 shares of 9.0% Series C
Cumulative Redeemable Preferred Stock.
THIRD: The class of Preferred Stock of the Corporation created by
the resolutions duly adopted by the Board of Directors of the Corporation and by
the Committee and referred to in Articles First and Second of these Articles of
Amendment shall have the following designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitation as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
Section 1. Designation and Number. A series of Preferred Stock,
designated the "9.0% Series C Cumulative Redeemable Preferred Stock" (the
"Series C Preferred Stock") is hereby established. The number of shares of
Series C Preferred Stock shall be 750,000.
Section 2. Rank. The Series C Preferred Stock will, with respect to
distributions or rights upon voluntary or involuntary liquidation, winding-up or
dissolution of the Corporation, or both, rank senior to all classes or series of
Common Stock (as defined in the Charter) and to all classes or series of equity
securities of the Corporation now or hereafter authorized, issued or outstanding
other than any class or series of equity securities of the Corporation expressly
designated as ranking on a parity with or senior to the Series C Preferred Stock
as to distributions or rights upon voluntary or involuntary liquidation,
winding-up or dissolution of the Corporation, or both. For purposes of these
Articles of Amendment, the term "Parity Preferred Stock" shall be used to refer
to any class or series of equity securities of the Corporation now or hereafter
authorized, issued or outstanding expressly designated by the Corporation to
rank on a parity with Series C Preferred Stock with respect to distributions or
rights upon voluntary or involuntary liquidation, winding-up or dissolution of
the Corporation, or both, as the context may require, whether or not the
dividend rates, dividend payment dates or redemption or liquidation prices per
share or conversion rights or exchange rights shall be different from those of
the Series C Preferred Stock. The term "equity securities" does not include debt
securities, which will rank senior to the Series C Preferred Stock prior to
conversion. The Series C Preferred Stock is expressly designated as ranking on a
parity with the Series A Preferred Stock and the Series B Preferred Stock.
Section 3. Distributions.
(a) Payment of Distributions. Subject to the rights of holders
of Parity Preferred Stock as to the payment of distributions and holders of
equity securities issued after the date hereof in accordance herewith ranking
senior to the Series C Preferred Stock as to payment of distributions, holders
of Series C Preferred Stock shall be entitled to receive, out of funds legally
available for the payment of distributions, cumulative preferential cash
distributions at the rate per annum of 9.0% of the $100.00 liquidation
preference per share of Series C Preferred Stock. Such distributions shall be
cumulative, shall accrue from the original date of issuance and will be payable
in cash when, as and if declared by the Board of Directors of the Corporation
(A) quarterly in arrears, on or before March 31, June 30, September 30 and
December 31 of each year commencing on the first of such dates to occur after
the original
A-5.2
date of issuance and, (B) in the event of a redemption, on the redemption date
(each a "Series C Preferred Stock Distribution Payment Date"). The amount of the
distribution payable for any period will be computed on the basis of a 360-day
year of twelve 30-day months and for any period shorter than a full quarterly
period for which distributions are computed, the amount of the distribution
payable will be computed based on the ratio of the actual number of days elapsed
in such quarterly period to 90 days. If any date on which distributions are to
be made on the Series C Preferred Stock is not a Business Day (as defined
herein), then payment of the distribution to be made on such date will be made
on the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date. Distributions on the Series C Preferred Stock will be
made to the holders of record of the Series C Preferred Stock on the relevant
record dates to be fixed by the Board of Directors of the Corporation, which
record dates shall be not less than 10 days and not more than 30 Business Days
prior to the relevant Series C Preferred Stock Distribution Payment Date (each a
"Distribution Record Date"). Notwithstanding anything to the contrary set forth
herein, each share of Series C Preferred Stock shall also continue to accrue all
accrued and unpaid distributions, whether or not declared, up to the exchange
date on any Series C Preferred Unit (as defined in the Third Amended and
Restated Agreement of Limited Partnership of Regency Centers, L.P., dated as
September 1, 1999 as amended by that certain Amendment No. 2 to Third Amended
and Restated Agreement of Limited Partnership dated as of September 3, 1999 (as
amended, the "Partnership Agreement")) validly exchanged into such share of
Series C Preferred Stock in accordance with the provisions of such Partnership
Agreement.
The term "Business Day" shall mean each day, other than a Saturday
or a Sunday, which is not a day on which banking institutions in New York, New
York are authorized or required by law, regulation or executive order to close.
(b) Distributions Cumulative. Distributions on the Series C
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series C Preferred Stock will accumulate as of the Series C Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid at
any time, without reference to a regular Series C Preferred Stock Distribution
Payment Date to holders of record of the Series C Preferred Stock on the record
date fixed by the Board of Directors which date shall be not less than 10 days
and not more than 30 Business Days prior to the payment date. Accumulated and
unpaid distributions will not bear interest.
A-5.3
(c) Priority as to Distributions.
(i) So long as any Series C Preferred Stock is
outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect
to any class or series of Common Stock or any class or series of other
stock of the Corporation ranking junior as to the payment of
distributions to the Parity Preferred Stock (such Common Stock or other
junior stock, collectively, "Junior Stock"), nor shall any cash or other
property be set aside for or applied to the purchase, redemption or
other acquisition for consideration of any Series C Preferred Stock, any
Parity Preferred Stock with respect to distributions or any Junior
Stock, unless in each case, all distributions accumulated on all Series
C Preferred Stock and all classes and series of outstanding Parity
Preferred Stock as to payment of distributions have been paid in full.
The foregoing sentence will not prohibit (i) distributions payable
solely in Junior Stock, (ii) the conversion of Series C Preferred Stock,
Junior Stock or Parity Preferred Stock into stock of the Corporation
ranking junior to the Series C Preferred Stock as to distributions, and
(iii) purchases by the Corporation of such Series C Preferred Stock or
Parity Preferred Stock with respect to distributions or Junior Stock
pursuant to Article 5 of the Charter to the extent required to preserve
the Corporation's status as a real estate investment trust.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably deposited
in trust for payment) upon the Series C Preferred Stock, all
distributions authorized and declared on the Series C Preferred Stock
and all classes or series of outstanding Parity Preferred Stock with
respect to distributions shall be authorized and declared so that the
amount of distributions authorized and declared per share of Series C
Preferred Stock and such other classes or series of Parity Preferred
Stock shall in all cases bear to each other the same ratio that accrued
distributions per share on the Series C Preferred Stock and such other
classes or series of Parity Preferred Stock (which shall not include any
accumulation in respect of unpaid distributions for prior distribution
periods if such class or series of Parity Preferred Stock does not have
cumulative distribution rights) bear to each other.
(d) No Further Rights. Holders of Series C Preferred Stock
shall not be entitled to any distributions, whether payable in cash, other
property or otherwise, in excess of the full cumulative distributions described
herein.
Section 4. Liquidation Preference.
(a) Payment of Liquidation Distributions. Subject to the rights
of holders of Parity Preferred Stock with respect to rights upon any voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation and
subject to equity securities ranking senior to the Series C Preferred Stock with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Series C Preferred Stock shall be
entitled to receive out of the assets of the Corporation legally available for
A-5.4
distribution or the proceeds thereof, after payment or provision for debts and
other liabilities of the Corporation, but before any payment or distributions of
the assets shall be made to holders of Common Stock or any other class or series
of shares of the Corporation that ranks junior to the Series C Preferred Stock
as to rights upon liquidation, dissolution or winding-up of the Corporation, an
amount equal to the sum of (i) a liquidation preference of $100.00 per share of
Series C Preferred Stock, and (ii) an amount equal to any accumulated and unpaid
distributions thereon, whether or not declared, to the date of payment. In the
event that, upon such voluntary or involuntary liquidation, dissolution or
winding-up, there are insufficient assets to permit full payment of liquidating
distributions to the holders of Series C Preferred Stock and any Parity
Preferred Stock as to rights upon liquidation, dissolution or winding-up of the
Corporation, all payments of liquidating distributions on the Series C Preferred
Stock and such Parity Preferred Stock shall be made so that the payments on the
Series C Preferred Stock and such Parity Preferred Stock shall in all cases bear
to each other the same ratio that the respective rights of the Series C
Preferred Stock and such other Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior distribution
periods if such Parity Preferred Stock does not have cumulative distribution
rights) upon liquidation, dissolution or winding-up of the Corporation bear to
each other.
(b) Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by (i) fax and (ii) by first
class mail, postage pre-paid, not less than 30 and not more than 60 days prior
to the payment date stated therein, to each record holder of the Series C
Preferred Stock at the respective addresses of such holders as the same shall
appear on the share transfer records of the Corporation.
(c) No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series C
Preferred Stock will have no right or claim to any of the remaining assets of
the Corporation.
(d) Consolidation Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the consolidation or merger or
other business combination of the Corporation with or into, any corporation,
trust or other entity (or of any corporation, trust or other entity with or into
the Corporation) shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Corporation.
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
A-5.5
Section 5. Optional Redemption.
(a) Right of Optional Redemption. The Series C Preferred Stock
may not be redeemed prior to September 3, 2004. On or after such date, the
Corporation shall have the right to redeem the Series C Preferred Stock, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' written notice, at a redemption price, payable in cash, equal
to $100.00 per share of Series C Preferred Stock plus accumulated and unpaid
distributions, whether or nor declared, to the date of redemption. If fewer than
all of the outstanding shares of Series C Preferred Stock are to be redeemed,
the shares of Series C Preferred Stock to be redeemed shall be selected pro rata
(as nearly as practicable without creating fractional shares).
(b) Limitation on Redemption.
(i) The redemption price of the Series C Preferred Stock
(other than the portion thereof consisting of accumulated but unpaid
distributions) will be payable solely out of sale proceeds of capital
stock of the Corporation and from no other source. For purposes of the
preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares, participation or
other ownership interests (however designated) and any rights (other
than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(ii) The Corporation may not redeem fewer than all of the
outstanding shares of Series C Preferred Stock unless all accumulated
and unpaid distributions have been paid on all Series C Preferred Stock
for all quarterly distribution periods terminating on or prior to the
date of redemption.
(c) Procedures for Redemption.
(i) Notice of redemption will be (i) faxed, and (ii)
mailed by the Corporation, postage prepaid, not less than 30 nor more
than 60 days prior to the redemption date, addressed to the respective
holders of record of the Series C Preferred Stock to be redeemed at
their respective addresses as they appear on the transfer records of the
Corporation. No failure to give or defect in such notice shall affect
the validity of the proceedings for the redemption of any Series C
Preferred Stock except as to the holder to whom such notice was
defective or not given. In addition to any information required by law
or by the applicable rules of any exchange upon which the Series C
Preferred Stock may be listed or admitted to trading, each such notice
shall state: (i) the redemption date, (ii) the redemption price, (iii)
the number of shares of Series C Preferred Stock to be redeemed, (iv)
the place or places where such shares of Series C Preferred Stock are to
be surrendered for payment of the redemption price, (v) that
distributions on the Series C Preferred Stock to be redeemed will cease
to accumulate on such redemption date and (vi) that payment of the
redemption price and any accumulated and unpaid distributions will be
made upon presentation and surrender of such Series C Preferred Stock.
If fewer than all of the shares of Series C Preferred
A-5.6
Stock held by any holder are to be redeemed, the notice mailed to such
holder shall also specify the number of shares of Series C Preferred
Stock held by such holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in
respect of Series C Preferred Stock (which notice will be irrevocable)
then, by 12:00 noon, New York City time, on the redemption date, the
Corporation will deposit irrevocably in trust for the benefit of the
Series C Preferred Stock being redeemed funds sufficient to pay the
applicable redemption price, plus any accumulated and unpaid
distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any
accumulated and unpaid distributions, if any, on such shares to the
holders of the Series C Preferred Stock upon surrender of the
certificate evidencing the Series C Preferred Stock by such holders at
the place designated in the notice of redemption. If fewer than all
Series C Preferred Stock evidenced by any certificate is being redeemed,
a new certificate shall be issued upon surrender of the certificate
evidencing all Series C Preferred Stock, evidencing the unredeemed
Series C Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on
the Series C Preferred Stock or portions thereof called for redemption,
unless the Corporation defaults in the payment thereof. If any date
fixed for redemption of Series C Preferred Stock is not a Business Day,
then payment of the redemption price payable on such date will be made
on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if
such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date fixed for redemption. If
payment of the redemption price or any accumulated or unpaid
distributions in respect of the Series C Preferred Stock is improperly
withheld or refused and not paid by the Corporation, distributions on
such Series C Preferred Stock will continue to accumulate from the
original redemption date to the date of payment, in which case the
actual payment date will be considered the date fixed for redemption
for purposes of calculating the applicable redemption price and any
accumulated and unpaid distributions.
(d) Status of Redeemed Stock. Any Series C Preferred Stock that
shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
class or series until such shares are once more designated as part of a
particular class or series by the Board of Directors.
A-5.7
Section 6. Voting Rights.
(a) General. Holders of the Series C Preferred Stock will not
have any voting rights, except as set forth below.
(b) Right to Elect Directors.
(i) If at any time distributions shall be in arrears
(which means that as to any such quarterly distributions, the same have
not been paid in full) with respect to six (6) prior quarterly
distribution periods (including quarterly periods on the Series C
Preferred Units prior to the exchange into Series C Preferred Stock),
whether or not consecutive, and shall not have been paid in full (a
"Series C Preferred Distribution Default"), the authorized number of
members of the Board of Directors shall automatically be increased by
two and the holders of record of such Series C Preferred Stock, voting
together as a single class with the holders of each class or series of
Parity Preferred Stock upon which like voting rights have been conferred
and are exercisable, will be entitled to fill the vacancies so created
by electing two additional directors to serve on the Corporation's
Board of Directors (the "Preferred Stock Directors") at a special
meeting called in accordance with Section 6(b)(ii), and at each
subsequent annual meeting of stockholders or special meeting held in
place thereof, until all such distributions in arrears and distributions
for the current quarterly period on the Series C Preferred Stock and
each such class or series of Parity Preferred Stock have been paid in
full.
(ii) At any time when such voting rights shall have
vested, a proper officer of the Corporation shall call or cause to be
called, upon written request of holders of record of at least 10% of the
outstanding shares of Series C Preferred Stock, a special meeting of the
holders of Series C Preferred Stock and all the series of Parity
Preferred Stock upon which like voting rights have been conferred and
are exercisable (collectively, the "Parity Securities") by mailing or
causing to be mailed to such holders a notice of such special meeting to
be held not less than ten and not more than 45 days after the date such
notice is given. The record date for determining holders of the Parity
Securities entitled to notice of and to vote at such special meeting
will be the close of business on the third Business Day preceding the
day on which such notice is mailed. At any annual or special meeting at
which Parity Securities are entitled to vote, all of the holders of the
Parity Securities, by plurality vote, voting together as a single class
without regard to series will be entitled to elect two directors on the
basis of one vote per $25.00 of liquidation preference to which such
Parity Securities are entitled by their terms (excluding amounts in
respect of accumulated and unpaid dividends) and not cumulatively.
The holder or holders of the Parity Securities representing one-third
of the total voting power of the Parity Securities then outstanding,
present in person or by proxy, will constitute a quorum for the election
of the Preferred Stock Directors except as otherwise provided by law.
Notice of all meetings at which holders of the Series C Preferred Stock
shall be entitled to vote will be given to such holders at their
addresses as they appear in the transfer records. At any such meeting or
adjournment thereof in
A-5.8
the absence of a quorum, subject to the provisions of any applicable
law, the holders of the Parity Securities representing a majority of the
voting power of the Parity Securities present in person or by proxy
shall have the power to adjourn the meeting for the election of the
Preferred Stock Directors, without notice other than an announcement at
the meeting, until a quorum is present. If a Series C Preferred
Distribution Default shall terminate after the notice of an annual or
special meeting has been given but before such meeting has been held,
the Corporation shall, as soon as practicable after such termination,
mail or cause to be mailed notice of such termination to holders of the
Series C Preferred Stock that would have been entitled to vote at such
meeting.
(iii) If and when all accumulated distributions and the
distribution for the current distribution period on the Series C
Preferred Stock shall have been paid in full or a sum sufficient for
such payment is irrevocably deposited in trust for payment, the holders
of the Series C Preferred Stock shall be divested of the voting rights
set forth in Section 6(b) herein (subject to revesting in the event of
each and every Series C Preferred Distribution Default) and, if all
distributions in arrears and the distributions for the current
distribution period have been paid in full or set aside for payment in
full on all other classes or series of Parity Preferred Stock upon which
like voting rights have been conferred and are exercisable, the terms
and office of each Preferred Stock Director so elected shall terminate.
Any Preferred Stock Director may be removed at any time with or without
cause by the vote of, and shall not be removed otherwise than by the
vote of, the holders of record of a majority of the outstanding Series C
Preferred Stock when they have the voting rights set forth in Section
6(b) (voting separately as a single class with all other classes or
series of Parity Preferred Stock upon which like voting rights have been
conferred and are exercisable). So long as a Series C Preferred
Distribution Default shall continue, any vacancy in the office of a
Preferred Stock Director may be filled by written consent of the
Preferred Stock Director remaining in office, or if none remains in
office, by a vote of the holders of record of a majority of the
outstanding Series C Preferred Stock when they have the voting rights
set forth in Section 6(b) (voting separately as a single class with all
other classes or series of Parity Preferred Stock upon which like voting
rights have been conferred and are exercisable). The Preferred Stock
Directors shall each be entitled to one vote per director on any matter.
(c) Certain Voting Rights. So long as any Series C Preferred
Stock remains outstanding, the Corporation shall not, without the affirmative
vote of the holders of at least two-thirds of the Series C Preferred Stock
outstanding at the time (i) authorize, designate or create, or increase the
authorized or issued amount of, any class or series of shares ranking prior to
the Series C Preferred Stock with respect to payment of distributions or rights
upon liquidation, dissolution or winding-up or reclassify any authorized shares
of the Corporation into any such shares, or create, authorize or issue any
obligations or securities convertible into or evidencing the right to purchase
any such shares, (ii) authorize, designate or create, or increase the authorized
or issued amount of, any Parity Preferred Stock or reclassify any authorized
shares of the Corporation into any such shares, or create, authorize or issue
any obligations or securities convertible into or evidencing the right to
purchase any such shares,
A-5.9
but only to the extent such Parity Preferred Stock is issued to an affiliate of
the Corporation (other than Security Capital U.S. Realty, Security Capital
Holdings, S.A. or their affiliates), or (iii) either (A) consolidate, merge into
or with, or convey, transfer or lease its assets substantially as an entirety,
to any corporation or other entity, or (B) amend, alter or repeal the provisions
of the Corporation's Charter (including these Articles of Amendment) or By-laws,
hether by merger, consolidation or otherwise, in each case in a manner that
would materially and adversely affect the powers, special rights, preferences,
privileges or voting power of the Series C Preferred Stock or the holders
thereof; provided, however, that with respect to the occurrence of a merger,
consolidation or a sale or lease of all of the Corporation's assets as an
entirety, so long as (a) the Corporation is the surviving entity and the Series
C Preferred Stock remains outstanding with the terms thereof unchanged, or (b)
the resulting, surviving or transferee entity is a corporation organized under
the laws of any state and substitutes the Series C Preferred Stock for other
preferred stock having substantially the same terms and same rights as the
Series C Preferred Stock, including with respect to distributions, redemptions,
transfers, voting rights and rights upon liquidation, dissolution or winding-up,
then the occurrence of any such event shall not be deemed to materially and
adversely affect such rights, privileges or voting powers of the holders of the
Series C Preferred Stock and no vote of the Series C Preferred Stock shall be
required in such case and provided further that any increase in the amount of
authorized Preferred Stock or the creation or issuance of any other class or
series of Preferred Stock, or any increase in an amount of authorized shares of
each class or series, in each case ranking either (a) junior to the Series C
Preferred Stock with respect to payment of distributions and the distribution
of assets upon liquidation, dissolution or winding-up, or (b) on a parity with
the Series C Preferred Stock with respect to payment of distributions and the
distribution of assets upon liquidation, dissolution or winding-up to the extent
such Preferred Stock is not issued to an affiliate of the Corporation (other
than Security Capital U.S. Realty, Security Capital Holdings, S.A. or their
affiliates), shall not be deemed to materially and adversely affect such rights,
preferences, privileges or voting powers and no vote of the Series C Preferred
Stock shall be required in such case.
Section 7. No Conversion Rights. The holders of the Series C Preferred
Stock shall not have any rights to convert such shares into shares of any other
class or series of stock or into any other securities of, or interest in, the
Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for
the retirement or redemption of Series C Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series C Preferred
Stock of the Corporation shall, as such holder, have any preemptive rights to
purchase or subscribe for additional shares of stock of the Corporation or any
other security of the Corporation which it may issue or sell.
A-5.10
ADDENDUM 6 TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 500,000 SHARES OF
9.125% SERIES D CUMULATIVE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation
Act ("FBCA"), Regency Realty Corporation, a Florida corporation (the
"Corporation"), does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Amended and Restated Articles
of Incorporation of the Corporation (the "Charter") and Section 607.0602 of the
FBCA, the Board of Directors of the Corporation (the "Board of Directors"), by
resolutions duly adopted on August 23, 1999 and resolutions duly adopted by a
committee of the Board of Directors on September 29, 1999 has classified 500,000
shares of the authorized but unissued Preferred Stock par value $.01 per share
("Preferred Stock") as a separate class of Preferred Stock, authorized the
issuance of a maximum of 500,000 shares of such class of Preferred Stock, set
certain of the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications, terms and conditions
of redemption and other terms and conditions of such class of Preferred Stock,
and pursuant to the powers contained in the Bylaws of the Corporation and the
FBCA, appointed a committee (the "Committee") of the Board of Directors and
delegated to the Committee, to the fullest extent permitted by the FBCA and the
Charter and Bylaws of the Corporation, all powers of the Board of Directors with
respect to designating, and setting all other preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of redemption of, such
class of Preferred Stock determining the number of shares of such class of
Preferred Stock (not in excess of the aforesaid maximum number) to be issued and
the consideration and other terms and conditions upon which such shares of such
class of Preferred Stock are to be issued. Shareholder approval was not required
under the Charter with respect to such designation.
SECOND: Pursuant to the authority conferred upon the Committee as
aforesaid, the Committee has unanimously adopted resolutions designating the
aforesaid class of Preferred Stock as the ?9.125% Series D Cumulative Redeemable
Preferred Stock," setting the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such 9.125% Series D
Cumulative Redeemable Preferred Stock (to the extent not set by the Board of
Directors in the resolutions referred to in Article FIRST of these Articles of
A-6.1
Amendment) and authorizing the issuance of up to 500,000 shares of 9.125% Series
D Cumulative Redeemable Preferred Stock.
THIRD: The class of Preferred Stock of the Corporation created by
the resolutions duly adopted by the Board of Directors of the Corporation and by
the Committee and referred to in Articles FIRST and SECOND of these Articles of
Amendment shall have the following designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitation as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
Section 1. Designation and Number. A series of Preferred Stock,
designated the "9.125% Series D Cumulative Redeemable Preferred Stock" (the
"Series D Preferred Stock") is hereby established. The number of shares of
Series D Preferred Stock shall be 500,000.
Section 2. Rank. The Series D Preferred Stock will, with respect to
distributions and rights upon voluntary or involuntary liquidation, winding-up
or dissolution of the Corporation, rank senior to all classes or series of
Common Stock (as defined in the Charter) and to all classes or series of equity
securities of the Corporation now or hereafter authorized, issued or
outstanding, other than any class or series of equity securities of the
Corporation expressly designated as ranking on a parity with or senior to the
Series D Preferred Stock as to distributions or rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the Corporation or both.
For purposes of these Articles of Amendment, the term "Parity Preferred Stock"
shall be used to refer to any class or series of equity securities of the
Corporation now or hereafter authorized, issued or outstanding expressly
designated by the Corporation to rank on a parity with Series D Preferred Stock
with respect to distributions or rights upon voluntary or involuntary
liquidation, winding-up or dissolution of the Corporation or both, as the
context may require, whether or not the dividend rates, dividend payment dates
or redemption or liquidation prices per share or conversion rights or exchange
rights shall be different from those of the Series D Preferred Stock and
includes the Series A Cumulative Redeemable Preferred Stock, the Series B
Cumulative Redeemable Preferred Stock, the Series C Cumulative Redeemable
Preferred Stock, the Series 1 Cumulative Convertible Redeemable Preferred Stock
and the Series 2 Cumulative Convertible Redeemable Preferred Stock of the
Corporation. The term "equity securities" does not include debt securities,
which will rank senior to the Series D Preferred Stock prior to conversion.
Section 3. Distributions.
(a) Payment of Distributions. Subject to the rights of holders
of Parity Preferred Stock as to the payment of distributions and holders of
equity securities issued after the date hereof in accordance herewith ranking
senior to the Series D Preferred Stock as to payment of distributions, holders
of Series D Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors of the Corporation, out of funds legally
available for the payment of distributions, cumulative cash distributions at the
rate per annum of 9.125% of the $100.00 liquidation preference per share of
Series D Preferred Stock. Such distributions shall be cumulative, shall accrue
from the original date of issuance and will be
A-6.2
payable in cash (A) quarterly (such quarterly periods for purposes of payment
and accrual will be the quarterly periods ending on the dates specified in this
sentence) in arrears, on or before March 31, June 30, September 30 and December
31 of each year commencing on the first of such dates to occur after the
original date of issuance and, (B) in the event of a redemption, on the
redemption date (each a "Preferred Stock Distribution Payment Date"). The amount
of the distribution payable for any period will be computed on the basis of a
360-day year of twelve 30-day months and for any period shorter than a full
quarterly period for which distributions are computed, the amount of the
distribution payable will be computed on the basis of the ratio of the actual
umber of days elapsed in such period to ninety (90) days. If any date on which
distributions are to be made on the Series D Preferred Stock is not a Business
Day (as defined herein), then payment of the distribution to be made on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. Distributions on the Series D Preferred Stock
will be made to the holders of record of the Series D Preferred Stock on the
relevant record dates to be fixed by the Board of Directors of the Corporation,
which record dates shall be not less than 10 days and not more than 30 Business
Days prior to the relevant Preferred Stock Distribution Payment Date (each a
"Distribution Record Date"). Notwithstanding anything to the contrary set forth
herein, each share of Series D Preferred Stock shall also continue to accrue all
accrued and unpaid distributions, whether or not declared, up to the exchange
date on any Series D Preferred Unit (as defined in the Third Amended and
Restated Agreement of Limited Partnership of Regency Centers, L.P., dated as
September 1, 1999 as amended by Amendment No. 1 to the Third Amended and
Restated Agreement of Limited Partnership of Operating Partnership, dated as of
September 3, 1999, Amendment No. 2 to the Third Amended and Restated Agreement
of Limited Partnership of Operating Partnership, dated as of September 3, 1999
and that certain Third Amendment to Third Amended and Restated Agreement of
Limited Partnership dated as of September 29, 1999 (as amended the Partnership
Agreement")) validly exchanged into such share of Series D Preferred Stock in
accordance with the provisions of such Partnership Agreement.
The term "Business Day" shall mean each day, other than
a Saturday or a Sunday, which is not a day on which banking institutions in New
York, New York are authorized or required by law, regulation or executive order
to close.
(b) Limitation on Distributions. No distribution on the Series
D Preferred Stock shall be declared or paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement of the
Corporation (other than any agreement with a holder or affiliate of holder of
Capital Stock of the Corporation) relating to its indebtedness, prohibit such
declaration, payment or setting apart for payment or provide that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration, payment or setting
apart for payment shall be restricted or prohibited by law. Nothing in
this Section 3(b) shall be deemed to modify or in any manner limit the
provisions of Section 3(c) and 3(d).
A-6.3
(c) Distributions Cumulative. Distributions on the Series D
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series D Preferred Stock will accumulate as of the Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid
at any time, without reference to a regular Preferred Stock Distribution Payment
Date to holders of record of the Series D Preferred Stock on the record date
fixed by the Board of Directors which date shall be not less than 10 days and
not more than 30 Business Days prior to the payment date. Accumulated and unpaid
distributions will not bear interest.
(d) Priority as to Distributions.
(i) So long as any Series D Preferred Stock is
outstanding, no distribution of cash or other property shall be authorized,
declared, paid or set apart for payment on or with respect to any class or
series of Common Stock or any class or series of other stock of the Corporation
ranking junior to the Series D Preferred Stock as to the payment of
distributions (such Common Stock or other junior stock, collectively, "Junior
Stock"), nor shall any cash or other property be set aside for or applied to the
purchase, redemption or other acquisition for consideration of any Series D
Preferred Stock, any Parity Preferred Stock with respect to distributions or any
Junior Stock, unless, in each case, all distributions accumulated on all Series
D Preferred Stock and all classes and series of outstanding Parity Preferred
Stock with respect to distributions have been paid in full. Without limiting
Section 6(b) hereof, the foregoing sentence will not prohibit (i) distributions
payable solely in shares of Junior Stock, (ii) the conversion of Junior Stock or
Parity Preferred Stock into Junior Stock, and (iii) purchases by the Corporation
of such Series D Preferred Stock or Parity Preferred Stock or Junior Stock
pursuant to Article 5 of the Charter to the extent required to preserve the
Corporation's status as a real estate investment trust.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably deposited
in trust for payment) upon the Series D Preferred Stock, all
distributions authorized and declared on the Series D Preferred
Stock and all classes or series of outstanding Parity Preferred
Stock with respect to distributions shall be authorized and declared
so that the amount of distributions authorized and declared per
share of Series D Preferred Stock and such other classes or series
of Parity Preferred Stock shall in all cases bear to each other the
same ratio that accrued distributions per share on the Series D
Preferred Stock and such other classes or series of Parity Preferred
Stock (which shall not include any accumulation in respect of unpaid
distributions for prior distribution periods if such class or series
of Parity Preferred Stock do not have cumulative distribution
rights) bear to each other.
A-6.4
(e) No Further Rights. Holders of Series D Preferred Stock
shall not be entitled to any distributions, whether payable in cash, other
property or otherwise, in excess of the full cumulative distributions described
herein.
Section 4. Liquidation Preference.
(a) Payment of Liquidating Distributions. Subject to the rights
of holders of Parity Preferred Stock with respect to rights upon any voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation and
subject to equity securities ranking senior to the Series D Preferred Stock with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Series D Preferred Stock shall be
entitled to receive out of the assets of the Corporation legally available for
distribution or the proceeds thereof, after payment or provision for debts and
other liabilities of the Corporation, but before any payment or distributions of
the assets shall be made to holders of Common Stock or any other class or series
of shares of the Corporation that ranks junior to the Series D Preferred Stock
as to rights upon liquidation, dissolution or winding-up of the Corporation, an
amount equal to the sum of (i) a liquidation preference of $100 per share of
Series D Preferred Stock, and (ii) an amount equal to any accumulated and unpaid
distributions thereon, whether or not declared, to the date of payment. In the
event that, upon such voluntary or involuntary liquidation, dissolution or
winding-up, there are insufficient assets to permit full payment of liquidating
distributions to the holders of Series D Preferred Stock and any Parity
Preferred Stock as to rights upon liquidation, dissolution or winding-up of the
Corporation, all payments of liquidating distributions on the Series D Preferred
Stock and such Parity Preferred Stock shall be made so that the payments on the
Series D Preferred Stock and such Parity Preferred Stock shall in all cases bear
to each other the same ratio that the respective rights of the Series D
Preferred Stock and such other Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior distribution
periods if such Parity Preferred Stock do not have cumulative distribution
rights) upon liquidation, dissolution or winding-up of the Corporation bear to
each other.
(b) Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by (i) fax and (ii) by first
class mail, postage pre-paid, not less than 30 and not more than 60 days prior
to the payment date stated therein, to each record holder of the Series D
Preferred Stock at the respective addresses of such holders as the same shall
appear on the share transfer records of the Corporation.
(c) No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series D
Preferred Stock will have no right or claim to any of the remaining assets of
the Corporation.
(d) Consolidation, Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the
A-6.5
consolidation or merger or other business combination of the Corporation with or
into, any corporation, trust or other entity (or of any corporation, trust or
other entity with or into the Corporation) shall not be deemed to constitute a
liquidation, dissolution or winding-up of the Corporation.
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
Section 5. Optional Redemption.
(a) Right of Optional Redemption. The Series D Preferred Stock
may not be redeemed prior to September 29, 2004. On or after such date, the
Corporation shall have the right to redeem the Series D Preferred Stock, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' written notice, at a redemption price, payable in cash, equal
to $100 per share of Series D Preferred Stock plus accumulated and unpaid
distributions, whether or nor declared, to the date of redemption. If fewer than
all of the outstanding shares of Series D Preferred Stock are to be redeemed,
the shares of Series D Preferred Stock to be redeemed shall be selected pro rata
(as nearly as practicable without creating fractional units).
(b) Limitation on Redemption.
(i) The redemption price of the Series D Preferred Stock
(other than the portion thereof consisting of accumulated but unpaid
distributions) will be payable solely out of sale proceeds of capital stock of
the Corporation and from no other source. For purposes of the preceding
sentence, "capital stock" means any equity securities (including Common Stock
and Preferred Stock), shares, participation or other ownership interests
(however designated) and any rights (other than debt securities convertible into
or exchangeable for equity securities) or options to purchase any of the
foregoing.
(ii) The Corporation may not redeem fewer than all of the
outstanding shares of Series D Preferred Stock unless all accumulated and unpaid
distributions have been paid on all Series D Preferred Stock for all quarterly
distribution periods terminating on or prior to the date of redemption.
(c) Procedures for Redemption.
(i) Notice of redemption will be (i) faxed, and (ii)
mailed by the Corporation, postage prepaid, not less than 30 nor more
than 60 days prior to the redemption date, addressed to the respective
holders of record of the Series D Preferred
A-6.6
Stock to be redeemed at their respective addresses as they appear on the
transfer records of the Corporation. No failure to give or defect in
such notice shall affect the validity of the proceedings for the
redemption of any Series D Preferred Stock except as to the holder to
whom such notice was defective or not given. In addition to any
information required by law or by the applicable rules of any exchange
upon which the Series D Preferred Stock may be listed or admitted to
trading, each such notice shall state: (i) the redemption date, (ii)
the redemption price, (iii) the number of shares of Series D Preferred
Stock to be redeemed, (iv) the place or places where such shares of
Series D Preferred Stock are to be surrendered for payment of the
redemption price, (v) that distributions on the Series D Preferred Stock
to be redeemed will cease to accumulate on such redemption date and
(vi) that payment of the redemption price and any accumulated and unpaid
distributions will be made upon presentation and surrender of such
Series D Preferred Stock. If fewer than all of the shares of Series D
Preferred Stock held by any holder are to be redeemed, the notice mailed
to such holder shall also specify the number of shares of Series D
Preferred Stock held by such holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in
respect of Series D Preferred Stock (which notice will be irrevocable)
then, by 12:00 noon, New York City time, on the redemption date, the
Corporation will deposit irrevocably in trust for the benefit of the
Series D Preferred Stock being redeemed funds sufficient to pay the
applicable redemption price, plus any accumulated and unpaid
distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any
accumulated and unpaid distributions, if any, on such shares to the
holders of the Series D Preferred Stock upon surrender of the
certificate evidencing the Series D Preferred Stock by such holders at
the place designated in the notice of redemption. If fewer than all
Series D Preferred Stock evidenced by any certificate is being redeemed,
a new certificate shall be issued upon surrender of the certificate
evidencing all Series D Preferred Stock, evidencing the unredeemed
Series D Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on
the Series D Preferred Stock or portions thereof called for redemption,
unless the Corporation defaults in the payment thereof. If any date
fixed for redemption of Series D Preferred Stock is not a Business Day,
then payment of the redemption price payable on such date will be made
on the next succeeding day that is a Business Bay (and without any
interest or other payment in respect of any such delay) except that, if
such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date fixed for redemption. If
payment of the redemption price or any accumulated or unpaid
distributions in respect of the Series D Preferred Stock is improperly
withheld or refused and not paid by the Corporation, distributions on
such Series D Preferred Stock will continue to accumulate from the
original redemption date to the date of payment, in which case the
actual payment date will be considered the date fixed for redemption for
purposes of
A-6.7
calculating the applicable redemption price and any accumulated and
unpaid distributions.
(d) Status of Redeemed Stock. Any Series D Preferred Stock that
shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
class or series until such shares are once more designated as part of a
particular class or series by the Board of Directors.
Section 6. Voting Rights.
(a) General. Holders of the Series D Preferred Stock will not
have any voting rights, except as set forth below.
(b) Right to Elect Directors.
(i) If at any time distributions shall be in arrears
(which means that, as to any such quarterly distributions, the same have
not been paid in full) with respect to six (6) prior quarterly
distribution periods (including quarterly periods on the Series D
Preferred Units prior to the exchange into Series D Preferred Stock),
whether or not consecutive, and shall not have been paid in full (a
"Preferred Distribution Default"), the authorized number of members of
the Board of Directors shall automatically be increased by two and the
holders of record of such Series D Preferred Stock, voting together as a
single class with the holders of each class or series of Parity
Securities (as defined below), will be entitled to fill the vacancies so
created by electing two additional directors to serve on the
Corporation's Board of Directors (the "Preferred Stock Directors") at a
special meeting called in accordance with Section 6(b)(ii) or at the
next annual meeting of stockholders, and at each subsequent annual
meeting of stockholders or special meeting held in place thereof, until
all such distributions in arrears and distributions for the current
quarterly period on the Series D Preferred Stock and each such class or
series of Parity Securities have been paid in full.
(ii) At any time when such voting rights shall have
vested, a proper officer of the Corporation shall call or cause to be
called, upon written request of holders of record of at least 10% of the
outstanding shares of Series D Preferred Stock, a special meeting of the
holders of Series D Preferred Stock and all the series of Parity
Preferred Stock which are (i) on parity with the Series D Preferred
Stock both as to distributions and rights upon liquidation, dissolution
and winding up, (ii) with respect to Parity Preferred Stock outstanding
as a result of an acquisition of another corporation, on parity with the
Series D Preferred Stock as to distributions only or with respect to
distributions and rights upon liquidation, dissolution or winding up or
(iii) on parity with the Series D Preferred Stock as to distributions,
but junior as to rights upon liquidation, dissolution and winding up,
but if any such Parity Preferred Stock referred to in this clause (iii)
was issued for an amount less than its liquidation preference, the
holders thereof shall be entitled to one vote for each $25.00 of
issuance price, in lieu of one vote for each $25.00 of liquidation
preference, and upon which like voting rights have been conferred and
are exercisable (collectively, the "Parity Securities") by
A-6.8
mailing or causing to be mailed to such holders a notice of such special
meeting to be held not less than ten and not more than 45 days after the
date such notice is given. The record date for determining holders of
the Parity Securities entitled to notice of and to vote at such special
meeting will be the close of business on the third Business Day
preceding the day on which such notice is mailed. At any annual or
special meeting at which Parity Securities are entitled to vote, all of
the holders of the Parity Securities, by plurality vote, voting together
as a single class without regard to series will be entitled to elect two
directors on the basis of one vote per $25.00 of liquidation preference
to which such Parity Securities are entitled by their terms (excluding
amounts in respect of accumulated and unpaid dividends) and not
cumulatively. The holder or holders of the Parity Securities
representing one-third of the total voting power of the Parity
Securities then outstanding, present in person or by proxy, will
constitute a quorum for the election of the Preferred Stock Directors
except as otherwise provided by law. Notice of all meetings at which
holders of the Series D Preferred Stock shall be entitled to vote will
be given to such holders at their addresses as they appear in the
transfer records. At any such meeting or adjournment thereof in the
absence of a quorum, subject to the provisions of any applicable law,
the holders of the Parity Securities representing a majority of the
voting power of the Parity Securities present in person or by proxy
shall have the power to adjourn the meeting for the election of the
Preferred Stock Directors, without notice other than an announcement at
the meeting, until a quorum is present. If a Preferred Distribution
Default shall terminate after the notice of an annual or special meeting
has been given but before such meeting has been held, the Corporation
shall, as soon as practicable after such termination, mail or cause to
be mailed notice of such termination to holders of the Series D
Preferred Stock that would have been entitled to vote at such meeting.
(iii) If and when all accumulated distributions and the
distribution for the current distribution period on the Series D
Preferred Stock shall have been paid in full or a sum sufficient for
such payment is irrevocably deposited in trust for payment, the holders
of the Series D Preferred Stock shall be divested of the voting rights
set forth in Section 6(b) herein (subject to revesting in the event of
each and every Preferred Distribution Default) and, if all distributions
in arrears and the distributions for the current distribution period
have been paid in full or set aside for payment in full on all other
classes or series of Parity Securities upon which like voting rights
have been conferred and are exercisable, the term and office of each
Preferred Stock Director so elected shall terminate. Any Preferred
Stock Director may be removed at any time with or without cause by the
vote of, and shall not be removed otherwise than by the vote of, the
holders of record of a majority of the outstanding Series D Preferred
Stock when they have the voting rights set forth in Section 6(b) (voting
separately as a single class with all other classes or series of Parity
Preferred Stock upon which like voting rights have been conferred and
are exercisable). So long as a Preferred Distribution Default shall
continue, any vacancy in the office of a Preferred Stock Director may be
filled by written consent of the Preferred Stock Director remaining in
office, or if none remains in office, by a vote of the holders of record
of a majority of the outstanding Series D Preferred Stock when they have
the voting rights set forth in
A-6.9
Section 6(b) (voting separately as a single class with all other classes
or series of Parity Securities upon which like voting rights have been
conferred and are exercisable). The Preferred Stock Directors shall
each be entitled to one vote per director on any matter.
(c) Certain Voting Rights. So long as any Series D Preferred
Stock remains outstanding, the Corporation shall not, without the affirmative
vote of the holders of at least two-thirds of the Series D Preferred Stock and
the Series D Preferred Units outstanding at such time and not previously
surrendered in exchange for Series D Preferred Stock together, if applicable,
voting as a single class based on the number of shares into which such Series D
Preferred Units are then convertible (collectively, the "Series D Voting
Securities") (i) designate or create, or increase the authorized or issued
amount of, any class or series of shares ranking senior to the Series D
Preferred Stock with respect to payment of distributions or rights upon
liquidation, dissolution or winding-up or reclassify any authorized shares of
the Corporation into any such shares, or create, authorize or issue any
obligations or securities convertible into or evidencing the right to purchase
any such shares, (ii) designate or create, or increase the authorized or issued
amount of, any Parity Preferred Stock or reclassify any authorized shares of the
Corporation into any such shares, or create, authorize or issue any obligations
or securities convertible into or evidencing the right to purchase any such
shares, but only to the extent such Parity Preferred Stock is issued to an
affiliate of the Corporation (other than Security Capital U.S. Realty,
Security Capital Holdings, S.A. or their affiliates if issued upon arms-length
terms in the good faith determination of the Board of Directors), or (iii)
either (A) consolidate, merge into or with, or convey, transfer or lease its
assets substantially as an entirety, to any corporation or other entity, or (B)
amend, alter or repeal the provisions of the Corporation?s Charter (including
these Articles of Amendment) or By-laws, whether by merger, consolidation
or otherwise, in each case that would materially and adversely affect the
powers, special rights, preferences, privileges or voting power of the Series D
Preferred Stock or the holders thereof; provided, however, that with respect to
the occurrence of a merger, consolidation or a sale or lease of all of the
Corporation's assets as an entirety, so long as (a) the Corporation is the
surviving entity and the Series D Preferred Stock remains outstanding with the
terms thereof unchanged, or (b) the resulting, surviving or transferee entity is
a corporation organized under the laws of any state and substitutes the Series D
Preferred Stock for other preferred stock having substantially the same terms
and same rights as the Series D Preferred Stock, including with respect to
distributions, voting rights and rights upon liquidation, dissolution or
winding-up, then the occurrence of any such event shall not be deemed to
materially and adversely affect such rights, privileges or voting powers of the
holders of the Series D Preferred Stock and no vote of the Series D Voting
Securities shall be required in such case; and provided further that any
increase in the amount of authorized Preferred Stock or the creation or issuance
of any other class or series of Preferred Stock, or any increase in an amount of
authorized shares of each class or series, in each case ranking either (a)
junior to the Series D Preferred Stock with respect to payment of distributions
or the distribution of assets upon liquidation, dissolution or winding-up, or
(b) on a parity with the Series D Preferred Stock with respect to payment of
distributions or the distribution of assets upon liquidation, dissolution or
winding-up to the extent such Preferred Stock is not issued to a affiliate of
the Corporation (other than Security Capital U.S. Realty, Security Capital
Holdings, S.A. or their affiliates if issued upon arms-length terms in the good
A-6.10
faith determination of the Board of Directors), shall not be deemed to
materially and adversely affect such rights, preferences, privileges or voting
powers and no vote of the Series D Preferred Stock shall be required in such
case.
Section 7. No Conversion Rights. The holders of the Series D Preferred
Stock shall not have any rights to convert such shares into shares of any other
class or series of stock or into any other securities of, or interest in, the
Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for
the retirement or redemption of Series D Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series D Preferred
Stock of the Corporation shall, as such holder, have any preemptive rights to
purchase or subscribe for additional shares of stock of the Corporation or any
other security of the Corporation which it may issue or sell.
A-6.11
ADDENDUM 7 TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 700,000 SHARES OF
8.75% SERIES E CUMULATIVE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation Act
("FBCA"), Regency Realty Corporation, a Florida corporation (the "Corporation"),
does hereby certify that:
ARTICLE 1: Pursuant to the authority expressly vested in the Board
of Directors of the Corporation by Section 4.2 of the Amended and Restated
Articles of Incorporation of the Corporation (as amended, the "Charter") and
Section 607.0602 of the FBCA, the Board of Directors of the Corporation (the
"Board of Directors"), by resolutions duly adopted on May 25, 2000 has
classified 700,000 shares of the authorized but unissued Preferred Stock par
value $.0l per share ("Preferred Stock") as a separate class of Preferred Stock,
authorized the issuance of a maximum of 700,000 shares of such class of
Preferred Stock, set certain of the preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications, terms
and conditions of redemption and other terms and conditions of such class of
Preferred Stock, and pursuant to the powers contained in the Bylaws of the
Corporation and the FBCA, appointed a committee (the "Committee") of the Board
of Directors and delegated to the Committee, to the fullest extent permitted by
the FBCA and the Charter and Bylaws of the Corporation, all powers of the Board
of Directors with respect to designating, and setting all other preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends and other distributions, qualifications and terms and conditions of
redemption of, such class of Preferred Stock, determining the number of shares
of such class of Preferred Stock (not in excess of the aforesaid maximum number)
to be issued and the consideration and other terms and conditions upon which
such shares of such class of Preferred Stock are to be issued. Shareholder
approval was not required under the Charter with respect to such designation.
Capitalized terms used and not otherwise defined herein shall have the meaning
assigned thereto in the Charter.
ARTICLE II: Pursuant to the authority conferred upon the Committee
as aforesaid, the Committee has unanimously adopted resolutions designating the
aforesaid class of Preferred Stock as the "8.75% Series E Cumulative Redeemable
Preferred Stock," setting the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such 8.75% Series E
Cumulative Redeemable Preferred Stock (to the extent not set by the Board of
Directors in the resolutions referred to in Article 0 of these Articles of
Amendment)
A-7.1
and authorizing the issuance of up to 700,000 shares of 8.75% Series E
Cumulative Redeemable Preferred Stock.
ARTICLE III: The class of Preferred Stock of the Corporation created
by the resolutions duly adopted by the Board of Directors of the Corporation and
by the Committee and referred to in Articles 0 and 0 of these Articles of
Amendment shall have the following designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitation as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
Section 1. Designation and Number. A series of Preferred Stock,
designated the "8.75% Series E Cumulative Redeemable Preferred Stock" (the
"Series E Preferred Stock") is hereby established. The number of shares of
Series E Preferred Stock shall be 700,000.
Section 2. Rank. The Series E Preferred Stock will, with respect to
distributions or rights upon voluntary or involuntary liquidation, winding-up or
dissolution of the Corporation, or both, rank senior to all classes or series of
Common Stock (as defined in the Charter) and to all classes or series of equity
securities of the Corporation now or hereafter authorized, issued or outstanding
other than any class or series of equity securities of the Corporation expressly
designated as ranking on a parity with or senior to the Series E Preferred Stock
as to distributions or rights upon voluntary or involuntary liquidation,
winding-up or dissolution of the Corporation, or both. For purposes of these
Articles of Amendment, the term "Parity Preferred Stock" shall be used to refer
to any class or series of equity securities of the Corporation now or hereafter
authorized, issued or outstanding expressly designated by the Corporation to
rank on a parity with Series E Preferred Stock with respect to distributions or
rights upon voluntary or involuntary liquidation, winding-up or dissolution of
the Corporation, or both, as the context may require, whether or not the
dividend rates, dividend payment dates or redemption or liquidation prices per
share or conversion rights or exchange rights shall be different from those of
the Series E Preferred Stock. The term "equity securities" does not include debt
securities, which will rank senior to the Series E Preferred Stock prior to
conversion. The Series E Preferred Stock is expressly designated as ranking on a
parity with the Series 1 Cumulative Convertible Redeemable Preferred Stock, the
Series 2 Cumulative Convertible Redeemable Preferred Stock, Series A Preferred
Stock, the Series B Preferred Stock, the Series C Preferred Stock and the Series
D Preferred Stock.
Section 3. Distributions
(a) Payment of Distributions. Subject to the rights of holders
of Parity Preferred Stock as to the payment of distributions and holders of
equity securities issued after the date hereof in accordance herewith ranking
senior to the Series E Preferred Stock as to payment of distributions, holders
of Series E Preferred Stock shall be entitled to receive, out of funds legally
available for the payment of distributions, cumulative preferential cash
distributions at the rate per annum of 8.75% of the $100.00 liquidation
preference per share of Series E Preferred Stock. Such distributions shall be
cumulative, shall accrue from the original date of issuance and will be payable
in cash when, as and if declared by the Board of Directors
A-7.2
of the Corporation (A) quarterly in arrears, on or before March 31, June 30,
September 30 and December 31 of each year commencing on the first of such dates
to occur after the original date of issuance and, (B) in the event of a
redemption, on the redemption date (each a "Series E Preferred Stock
Distribution Payment Date"). The amount of the distribution payable for any
period will be computed on the basis of a 360-day year of twelve 30-day months
and for any period shorter than a full quarterly period for which distributions
are computed, the amount of the distribution payable will be computed based on
the ratio of the actual number of days elapsed in such quarterly period to 90
days. If any date on which distributions are to be made on the Series E
Preferred Stock is not a Business Day (as defined herein), then payment of the
distribution to be made on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
Distributions on the Series E Preferred Stock will be made to the holders of
record of the Series E Preferred Stock on the relevant record dates to be fixed
by the Board of Directors of the Corporation, which record dates shall be not
less than 10 days and not more than 30 Business Days prior to the relevant
Series E Preferred Stock Distribution Payment Date (each a "Distribution Record
Date"). Notwithstanding anything to the contrary set forth herein, each share of
Series E Preferred Stock shall also continue to accrue all accrued and unpaid
distributions, whether or not declared, up to the exchange date on any Series E
Preferred Unit (as defined in the Third Amended and Restated Agreement of
Limited Partnership of Regency Centers, L.P., dated as September 1, 1999 as
amended by that certain Amendment No. 4 to Third Amended and Restated Agreement
of Limited Partnership dated as of May 25, 2000 (as amended, the "Partnership
Agreement")) validly exchanged into such share of Series E Preferred Stock in
accordance with the provisions of such Partnership Agreement.
The term "Business Day" shall mean each day, other than a Saturday
or a Sunday, which is not a day on which banking institutions in New York, New
York are authorized or required by law, regulation or executive order to close.
(b) Distributions Cumulative. Distributions on the Series E
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series E Preferred Stock will accumulate as of the Series E Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid at
any time, without reference to a regular Series E Preferred Stock Distribution
Payment Date to holders of record of the Series E Preferred Stock on the record
date fixed by the Board of Directors which date shall be not less than 10 days
and not more than 30 Business Days prior to the payment date. Accumulated and
unpaid distributions will not bear interest.
A-7.3
(c) Priority as to Distributions.
(i) So long as any Series E Preferred Stock is
outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect
to any class or series of Common Stock or any class or series of other
stock of the Corporation ranking junior as to the payment of
distributions to the Parity Preferred Stock (such Common Stock or other
junior stock, collectively, "Junior Stock"), nor shall any cash or other
property be set aside for or applied to the purchase, redemption or
other acquisition for consideration of any Series E Preferred Stock, any
Parity Preferred Stock with respect to distributions or any Junior
Stock, unless in each case, all distributions accumulated on all Series
E Preferred Stock and all classes and series of outstanding Parity
Preferred Stock as to payment of distributions have been paid in full.
The foregoing sentence will not prohibit (i) distributions payable
solely in Junior Stock, (ii) the conversion of Series E Preferred Stock,
Junior Stock or Parity Preferred Stock into stock of the Corporation
ranking junior to the Series E Preferred Stock as to distributions, and
(iii) purchases by the Corporation of such Series E Preferred Stock or
Parity Preferred Stock with respect to distributions or Junior Stock
pursuant to Article 5 of the Charter to the extent required to preserve
the Corporation's status as a real estate investment trust.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably deposited
in trust for payment) upon the Series E Preferred Stock, all
distributions authorized and declared on the Series E Preferred Stock
and all classes or series of outstanding Parity Preferred Stock with
respect to distributions shall be authorized and declared so that the
amount of distributions authorized and declared per share of Series E
Preferred Stock and such other classes or series of Parity Preferred
Stock shall in all cases bear to each other the same ratio that accrued
distributions per share on the Series E Preferred Stock and such other
classes or series of Parity Preferred Stock (which shall not include any
accumulation in respect of unpaid distributions for prior distribution
periods if such class or series of Parity Preferred Stock does not have
cumulative distribution rights) bear to each other.
(d) No Further Rights. Holders of Series E Preferred Stock
shall not be entitled to any distributions, whether payable in cash, other
property or otherwise, in excess of the full cumulative distributions described
herein.
Section 4. Liquidation Preference.
(a) Payment of Liquidation Distributions. Subject to the rights
of holders of Parity Preferred Stock with respect to rights upon any voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation and
subject to equity securities ranking senior to the Series E Preferred Stock with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Series E Preferred Stock shall be
entitled to receive out of the assets of the Corporation legally available for
A-7.4
distribution or the proceeds thereof, after payment or provision for debts and
other liabilities of the Corporation, but before any payment or distributions of
the assets shall be made to holders of Common Stock or any other class or series
of shares of the Corporation that ranks junior to the Series E Preferred Stock
as to rights upon liquidation, dissolution or winding-up of the Corporation, an
amount equal to the sum of (i) a liquidation preference of $100.00 per share of
Series E Preferred Stock, and (ii) an amount equal to any accumulated and unpaid
distributions thereon, whether or not declared, to the date of payment. In the
event that, upon such voluntary or involuntary liquidation, dissolution or
winding-up, there are insufficient assets to permit full payment of liquidating
distributions to the holders of Series E Preferred Stock and any Parity
Preferred Stock as to rights upon liquidation, dissolution or winding-up of the
Corporation, all payments of liquidating distributions on the Series E Preferred
Stock and such Parity Preferred Stock shall be made so that the payments on the
Series E Preferred Stock and such Parity Preferred Stock shall in all cases bear
to each other the same ratio that the respective rights of the Series E
Preferred Stock and such other Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior distribution
periods if such Parity Preferred Stock does not have cumulative distribution
rights) upon liquidation, dissolution or winding-up of the Corporation bear to
each other.
(b) Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by (i) fax and (ii) by first
class mail, postage pre-paid, not less than 30 and not more than 60 days prior
to the payment date stated therein, to each record holder of the Series E
Preferred Stock at the respective addresses of such holders as the same shall
appear on the share transfer records of the Corporation.
(c) No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series E
Preferred Stock will have no right or claim to any of the remaining assets of
the Corporation.
(d) Consolidation Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the consolidation or merger or
other business combination of the Corporation with or into, any corporation,
trust or other entity (or of any corporation, trust or other entity with or into
the Corporation) shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Corporation.
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
A-7.5
Section 5. Optional Redemption.
(a) Right of Optional Redemption. The Series E Preferred Stock
may not be redeemed prior to May 25, 2005. On or after such date, the
Corporation shall have the right to redeem the Series E Preferred Stock, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' written notice, at a redemption price, payable in cash, equal
to $100.00 per share of Series E Preferred Stock plus accumulated and unpaid
distributions, whether or nor declared, to the date of redemption. If fewer than
all of the outstanding shares of Series E Preferred Stock are to be redeemed,
the shares of Series E Preferred Stock to be redeemed shall be selected pro rata
(as nearly as practicable without creating fractional shares).
(b) Limitation on Redemption.
(i) The redemption price of the Series E Preferred Stock
(other than the portion thereof consisting of accumulated but unpaid
distributions) will be payable solely out of sale proceeds of capital
stock of the Corporation and from no other source. For purposes of the
preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares, participation or
other ownership interests (however designated) and any rights (other
than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(ii) The Corporation may not redeem fewer than all of the
outstanding shares of Series E Preferred Stock unless all accumulated
and unpaid distributions have been paid on all Series E Preferred Stock
for all quarterly distribution periods terminating on or prior to the
date of redemption.
(c) Procedures for Redemption.
(i) Notice of redemption will be (i) faxed, and (ii)
mailed by the Corporation, postage prepaid, not less than 30 nor more
than 60 days prior to the redemption date, addressed to the respective
holders of record of the Series E Preferred Stock to be redeemed at
their respective addresses as they appear on the transfer records of the
Corporation. No failure to give or defect in such notice shall affect
the validity of the proceedings for the redemption of any Series E
Preferred Stock except as to the holder to whom such notice was
defective or not given. In addition to any information required by law
or by the applicable rules of any exchange upon which the Series E
Preferred Stock may be listed or admitted to trading, each such notice
shall state: (i) the redemption date, (ii) the redemption price, (iii)
the number of shares of Series E Preferred Stock to be redeemed, (iv)
the place or places where such shares of Series E Preferred Stock are to
be surrendered for payment of the redemption price, (v) that
distributions on the Series E Preferred Stock to be redeemed will cease
to accumulate on such redemption date and (vi) that payment of the
redemption price and any accumulated and unpaid distributions will be
made upon presentation and surrender of such Series E Preferred Stock.
If fewer than all of the shares of Series E Preferred
A-7.6
Stock held by any holder are to be redeemed, the notice mailed to such
holder shall also specify the number of shares of Series E Preferred
Stock held by such holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in
respect of Series E Preferred Stock (which notice will be irrevocable)
then, by 12:00 noon, New York City time, on the redemption date, the
Corporation will deposit irrevocably in trust for the benefit of the
Series E Preferred Stock being redeemed funds sufficient to pay the
applicable redemption price, plus any accumulated and unpaid
distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any
accumulated and unpaid distributions, if any, on such shares to the
holders of the Series E Preferred Stock upon surrender of the
certificate evidencing the Series E Preferred Stock by such holders at
the place designated in the notice of redemption. If fewer than all
Series E Preferred Stock evidenced by any certificate is being redeemed,
a new certificate shall be issued upon surrender of the certificate
evidencing all Series E Preferred Stock, evidencing the unredeemed
Series E Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on
the Series E Preferred Stock or portions thereof called for redemption,
unless the Corporation defaults in the payment thereof. If any date
fixed for redemption of Series E Preferred Stock is not a Business Day,
then payment of the redemption price payable on such date will be made
on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if
such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date fixed for redemption. If
payment of the redemption price or any accumulated or unpaid
distributions in respect of the Series E Preferred Stock is improperly
withheld or refused and not paid by the Corporation, distributions on
such Series E Preferred Stock will continue to accumulate from the
original redemption date to the date of payment, in which case the
actual payment date will be considered the date fixed for redemption for
purposes of calculating the applicable redemption price and any
accumulated and unpaid distributions.
(d) Status of Redeemed Stock. Any Series E Preferred Stock that
shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
class or series until such shares are once more designated as part of a
particular class or series by the Board of Directors.
A-7.7
Section 6. Voting Rights.
(a) General. Holders of the Series E Preferred Stock will not
have any voting rights, except as set forth below.
(b) Right to Elect Directors.
(i) If at any time distributions shall be in arrears
(which means that as to any such quarterly distributions, the same have
not been paid in full) with respect to six (6) prior quarterly
distribution periods (including quarterly periods on the Series E
Preferred Units prior to the exchange into Series E Preferred Stock),
whether or not consecutive, and shall not have been paid in full (a
"Series E Preferred Distribution Default"), the authorized number of
members of the Board of Directors shall automatically be increased by
two and the holders of record of such Series E Preferred Stock, voting
together as a single class with the holders of each class or series of
Parity Preferred Stock upon which like voting rights have been conferred
and are exercisable, will be entitled to fill the vacancies so created
by electing two additional directors to serve on the Corporation's
Board of Directors (the "Preferred Stock Directors") at a special
meeting called in accordance with Section 6(b)(i), and at each
subsequent annual meeting of stockholders or special meeting held in
place thereof, until all such distributions in arrears and distributions
for the current quarterly period on the Series E Preferred Stock and
each such class or series of Parity Preferred Stock have been paid in
full.
(ii) At any time when such voting rights shall have
vested, a proper officer of the Corporation shall call or cause to be
called, upon written request of holders of record of at least 10% of the
outstanding shares of Series E Preferred Stock, a special meeting of the
holders of Series E Preferred Stock and all the series of Parity
Preferred Stock upon which like voting rights have been conferred and
are exercisable (collectively, the "Parity Securities") by mailing or
causing to be mailed to such holders a notice of such special meeting to
be held not less than ten and not more than 45 days after the date such
notice is given. The record date for determining holders of the Parity
Securities entitled to notice of and to vote at such special meeting
will be the close of business on the third Business Day preceding the
day on which such notice is mailed. At any annual or special meeting at
which Parity Securities are entitled to vote, all of the holders of the
Parity Securities, by plurality vote, voting together as a single
class without regard to series will be entitled to elect two directors
on the basis of one vote per $25.00 of liquidation preference to which
such Parity Securities are entitled by their terms (excluding amounts
in respect of accumulated and unpaid dividends) and not cumulatively.
The holder or holders of the Parity Securities representing one-third of
the total voting power of the Parity Securities then outstanding,
present in person or by proxy, will constitute a quorum for the election
of the Preferred Stock Directors except as otherwise provided by law.
Notice of all meetings at which holders of the Series E Preferred Stock
shall be entitled to vote will be given to such holders at their
addresses as they appear in the transfer records. At any such meeting or
adjournment thereof in
A-7.8
the absence of a quorum, subject to the provisions of any applicable
law, the holders of the Parity Securities representing a majority of
the voting power of the Parity Securities present in person or by proxy
shall have the power to adjourn the meeting for the election of the
Preferred Stock Directors, without notice other than an announcement at
the meeting, until a quorum is present. If a Series E Preferred
Distribution Default shall terminate after the notice of an annual or
special meeting has been given but before such meeting has been held,
the Corporation shall, as soon as practicable after such termination,
mail or cause to be mailed notice of such termination to holders of the
Series E Preferred Stock that would have been entitled to vote at such
meeting.
(iii) If and when all accumulated distributions and the
distribution for the current distribution period on the Series E
Preferred Stock shall have been paid in full or a sum sufficient for
such payment is irrevocably deposited in trust for payment, the holders
of the Series E Preferred Stock shall be divested of the voting rights
set forth in Section 6(b) herein (subject to revesting in the event of
each and every Series E Preferred Distribution Default) and, if all
distributions in arrears and the distributions for the current
distribution period have been paid in full or set aside for payment in
full on all other classes or series of Parity Preferred Stock upon which
like voting rights have been conferred and are exercisable, the terms
and office of each Preferred Stock Director so elected shall terminate.
Any Preferred Stock Director may be removed at any time with or without
cause by the vote of, and shall not be removed otherwise than by the
vote of, the holders of record of a majority of the outstanding Series E
Preferred Stock when they have the voting rights set forth in Section
6(b) (voting separately as a single class with all other classes or
series of Parity Preferred Stock upon which like voting rights have been
conferred and are exercisable). So long as a Series E Preferred
Distribution Default shall continue, any vacancy in the office of a
Preferred Stock Director may be filled by written consent of the
Preferred Stock Director remaining in office, or if none remains in
office, by a vote of the holders of record of a majority of the
outstanding Series E Preferred Stock when they have the voting rights
set forth in Section 6(b) (voting separately as a single class with all
other classes or series of Parity Preferred Stock upon which like
voting rights have been conferred and are exercisable). The Preferred
Stock Directors shall each be entitled to one vote per director on any
matter.
(c) Certain Voting Rights. So long as any Series E Preferred
Stock remains outstanding, the Corporation shall not, without the affirmative
vote of the holders of at least two-thirds of the Series E Preferred Stock
outstanding at the time (i) authorize, designate or create, or increase the
authorized or issued amount of, any class or series of shares ranking prior to
the Series E Preferred Stock with respect to payment of distributions or rights
upon liquidation, dissolution or winding-up or reclassify any authorized shares
of the Corporation into any such shares, or create, authorize or issue any
obligations or securities convertible into or evidencing the right to purchase
any such shares,
A-7.9
(ii) authorize, designate or create, or increase the authorized or issued amount
of, any Parity Preferred Stock or reclassify any authorized shares of the
Corporation into any such shares, or create, authorize or issue any obligations
or securities convertible into or evidencing the right to purchase any such
shares, but only to the extent such Parity Preferred Stock is issued to an
affiliate of the Corporation (other than Security Capital U.S. Realty, Security
Capital Holdings, S.A. or their affiliates), or (iii) either (A) consolidate,
merge into or with, or convey, transfer or lease its assets substantially as an
entirety, to any corporation or other entity, or (B) amend, alter or repeal
the provisions of the Corporation's Charter (including these Articles of
Amendment) or By-laws, whether by merger, consolidation or otherwise, in each
case in a manner that would materially and adversely affect the powers, special
rights, preferences, privileges or voting power of the Series E Preferred Stock
or the holders thereof; provided, however, that with respect to the occurrence
of a merger, consolidation or a sale or lease of all of the Corporation's assets
as an entirety, so long as (a) the Corporation is the surviving entity and the
Series E Preferred Stock remains outstanding with the terms thereof unchanged,
or (b) the resulting, surviving or transferee entity is a corporation organized
under the laws of any state and substitutes the Series E Preferred Stock for
other preferred stock having substantially the same terms and same rights as the
Series E Preferred Stock, including with respect to distributions, redemptions,
transfers, voting rights and rights upon liquidation, dissolution or winding-up,
then the occurrence of any such event shall not be deemed to materially and
adversely affect such rights, privileges or voting powers of the holders of the
Series E Preferred Stock and no vote of the Series E Preferred Stock shall be
required in such case and provided further that any increase in the amount of
authorized Preferred Stock or the creation or issuance of any other class or
series of Preferred Stock, or any increase in an amount of authorized shares of
each class or series, in each case ranking either (a) junior to the Series E
Preferred Stock with respect to payment of distributions and the distribution
of assets upon liquidation, dissolution or winding-up, or (b) on a parity with
the Series E Preferred Stock with respect to payment of distributions and the
distribution of assets upon liquidation, dissolution or winding-up to the extent
such Preferred Stock is not issued to an affiliate of the Corporation (other
than Security Capital U.S. Realty, Security Capital Holdings, S.A. or their
affiliates), shall not be deemed to materially and adversely affect such rights,
preferences, privileges or voting powers and no vote of the Series E Preferred
Stock shall be required in such case.
Section 7. No Conversion Rights. The holders of the Series E Preferred
Stock shall not have any rights to convert such shares into shares of any other
class or series of stock or into any other securities of, or interest in, the
Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for
the retirement or redemption of Series E Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series E Preferred
Stock of the Corporation shall, as such holder, have any preemptive rights to
purchase or subscribe for additional shares of stock of the Corporation or any
other security of the Corporation which it may issue or sell.
A-7.10
ADDENDUM 8 TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 240,000 SHARES OF
8.75% SERIES F CUMULATIVE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation Act
("FBCA"), Regency Realty Corporation, a Florida corporation (the "Corporation"),
does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Amended and Restated Articles
of Incorporation of the Corporation (the "Charter") and Section 607.0602 of the
FBCA, the Board of Directors of the Corporation (the "Board of Directors"), by
resolutions duly adopted on May 15, 2000 and resolutions duly adopted by the
Pricing Committee, a committee of the Board of Directors, on September 8, 2000
has classified 240,000 shares of the authorized but unissued Preferred Stock par
value $.01 per share ("Preferred Stock") as a separate class of Preferred Stock,
authorized the issuance of a maximum of 240,000 shares of such class of
Preferred Stock, set certain of the preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications, terms
and conditions of redemption and other terms and conditions of such class of
Preferred Stock, and pursuant to the powers contained in the Bylaws of the
Corporation and the FBCA, appointed a committee (the "Committee") of the Board
of Directors and delegated to the Committee, to the fullest extent permitted by
the FBCA and the Charter and Bylaws of the Corporation, all powers of the Board
of Directors with respect to designating, and setting all other preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends and other distributions, qualifications and terms and conditions of
redemption of, such class of Preferred Stock determining the number of shares of
such class of Preferred Stock (not in excess of the aforesaid maximum number) to
be issued and the consideration and other terms and conditions upon which such
shares of such class of Preferred Stock are to be issued. Shareholder approval
was not required under the Charter with respect to such designation.
SECOND: Pursuant to the authority conferred upon the Committee as
aforesaid, the Committee has unanimously adopted resolutions designating the
aforesaid class of Preferred Stock as the "8.75% Series F Cumulative Redeemable
Preferred Stock," setting the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such 8.75% Series F
Cumulative Redeemable Preferred Stock (to the extent not set by the Board of
Directors in the resolutions referred to in Article FIRST of these Articles of
A-8.1
Amendment) and authorizing the issuance of up to 240,000 shares of 8.75% Series
F Cumulative Redeemable Preferred Stock.
THIRD: The class of Preferred Stock of the Corporation created by
the resolutions duly adopted by the Board of Directors of the Corporation and by
the Committee and referred to in Articles FIRST and SECOND of these Articles of
Amendment shall have the following designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitation as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
Section 1. Designation and Number. A series of Preferred Stock,
designated the "8.75% Series F Cumulative Redeemable Preferred Stock" (the
"Series F Preferred Stock") is hereby established. The number of shares of
Series F Preferred Stock shall be 240,000.
Section 2. Rank. The Series F Preferred Stock will, with respect to
distributions and rights upon voluntary or involuntary liquidation, winding-up
or dissolution of the Corporation, rank senior to all classes or series of
Common Stock (as defined in the Charter) and to all classes or series of equity
securities of the Corporation now or hereafter authorized, issued or
outstanding, other than any class or series of equity securities of the
Corporation expressly designated as ranking on a parity with or senior to the
Series F Preferred Stock as to distributions or rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the Corporation or both.
For purposes of these Articles of Amendment, the term "Parity Preferred Stock"
shall be used to refer to any class or series of equity securities of the
Corporation now or hereafter authorized, issued or outstanding expressly
designated by the Corporation to rank on a parity with Series F Preferred Stock
with respect to distributions or rights upon voluntary or involuntary
liquidation, winding-up or dissolution of the Corporation or both, as the
context may require, whether or not the dividend rates, dividend payment dates
or redemption or liquidation prices per share or conversion rights or exchange
rights shall be different from those of the Series F Preferred Stock and
includes the Series A Cumulative Redeemable Preferred Stock, the Series B
Cumulative Redeemable Preferred Stock, the Series C Cumulative Redeemable
Preferred Stock, the Series D Cumulative Redeemable Preferred Stock, the Series
E Cumulative Redeemable Preferred Stock, the Series 1 Cumulative Convertible
Redeemable Preferred Stock and the Series 2 Cumulative Convertible Redeemable
Preferred Stock of the Corporation. The term "equity securities" does not
include debt securities, which will rank senior to the Series F Preferred Stock
prior to conversion.
Section 3. Distributions.
(a) Payment of Distributions. Subject to the rights of holders
of Parity Preferred Stock as to the payment of distributions and holders of
equity securities issued after the date hereof in accordance herewith ranking
senior to the Series F Preferred Stock as to payment of distributions, holders
of Series F Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors of the Corporation, out of funds legally
available for the payment of distributions, cumulative cash distributions at the
rate per annum of 8.75% of the $100.00 liquidation preference per share of
Series F Preferred Stock. Such distributions
A-8.2
shall be cumulative, shall accrue from the original date of issuance and will be
payable in cash (A) quarterly (such quarterly periods for purposes of payment
and accrual will be the quarterly periods ending on the dates specified in this
sentence) in arrears, on or before March 31, June 30, September 30 and December
31 of each year commencing on the first of such dates to occur after the
original date of issuance and, (B) in the event of a redemption, on the
redemption date (each a "Preferred Stock Distribution Payment Date"). The amount
of the distribution payable for any period will be computed on the basis of a
360-day year of twelve 30-day months and for any period shorter than a full
quarterly period for which distributions are computed, the amount of the
distribution payable will be computed on the basis of the ratio of the actual
number of days elapsed in such period to ninety (90) days. If any date on which
distributions are to be made on the Series F Preferred Stock is not a Business
Day (as defined herein), then payment of the distribution to be made on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. Distributions on the Series F Preferred Stock
will be made to the holders of record of the Series F Preferred Stock on the
relevant record dates to be fixed by the Board of Directors of the Corporation,
which record dates shall be not less than 10 days and not more than 30 Business
Days prior to the relevant Preferred Stock Distribution Payment Date (each a
"Distribution Record Date "). Notwithstanding anything to the contrary
set forth herein, each share of Series F Preferred Stock shall also continue to
accrue all accrued and unpaid distributions, whether or not declared, up to the
exchange date on any Series F Preferred Unit (as defined in the Third Amended
and Restated Agreement of Limited Partnership of Regency Centers, L.P., dated as
September 1, 1999 as amended by Amendment No. 1 to the Third Amended and
Restated Agreement of Limited Partnership of Operating Partnership, dated as of
September 3, 1999, Amendment No. 2 to the Third Amended and Restated Agreement
of Limited Partnership of Operating Partnership, dated as of September 3, 1999,
that certain Third Amendment to Third Amended and Restated Agreement of Limited
Partnership dated as of September 29, 1999, Amendment No. 4 to the Third Amended
and Restated Agreement of Limited Partnership of Operating Partnership, undated,
Amendment No. 5 to the Third Amended and Restated Agreement of Limited
Partnership of Operating Partnership, dated as of September 7, 2000, and that
certain Amendment No. 6 to the Third Amended and Restated Agreement of Limited
Partnership of Operating Partnership, dated as of September 8, 2000 (as amended
the "Partnership Agreement")) validly exchanged into such share of Series F
Preferred Stock in accordance with the provisions of such Partnership Agreement.
The term "Business Day" shall mean each day, other than
a Saturday or a Sunday, which is not a day on which banking institutions in New
York, New York are authorized or required by law, regulation or executive order
to close.
(b) Limitation on Distributions. No distribution on the Series
F Preferred Stock shall be declared or paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement of the
Corporation (other than any agreement with a holder or affiliate of holder of
Capital Stock (as defined in the Charter) of the Corporation)
A-8.3
relating to its indebtedness, prohibit such declaration, payment or setting
apart for payment or provide that such declaration, payment or setting apart for
payment would constitute a breach thereof or a default thereunder, or if such
declaration, payment or setting apart for payment shall be restricted or
prohibited by law. Nothing in this Section 3(b) shall be deemed to modify or in
any manner limit the provisions of Section 3(c) and 3(d).
(c) Distributions Cumulative. Distributions on the Series F
Preferred Stock will accrue whether or not the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness at any time prohibit the current payment of distributions, whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized or declared. Accrued but unpaid distributions on
the Series F Preferred Stock will accumulate as of the Preferred Stock
Distribution Payment Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be declared and paid at
any time, without reference to a regular Preferred Stock Distribution Payment
Date to holders of record of the Series F Preferred Stock on the record date
fixed by the Board of Directors which date shall be not less than 10 days and
not more than 30 Business Days prior to the payment date. Accumulated and
unpaid distributions will not bear interest.
(d) Priority as to Distributions.
(i) So long as any Series F Preferred Stock is
outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect
to any class or series of Common Stock or any class or series of other
stock of the Corporation ranking junior to the Series F Preferred Stock
as to the payment of distributions (such Common Stock or other junior
stock, collectively, "Junior Stock"), nor shall any cash or other
property be set aside for or applied to the purchase, redemption or
other acquisition for consideration of any Series F Preferred Stock, any
Parity Preferred Stock with respect to distributions or any Junior
Stock, unless, in each case, all distributions accumulated on all
Series F Preferred Stock and all classes and series of outstanding
Parity Preferred Stock with respect to distributions have been paid in
full. Without limiting Section 6(b) hereof, the foregoing sentence will
not prohibit (i) distributions payable solely in shares of Junior Stock,
(ii) the conversion of Junior Stock or Parity Preferred Stock into
Junior Stock, and (iii) purchases by the Corporation of such Series F
Preferred Stock or Parity Preferred Stock or Junior Stock pursuant to
Article 5 of the Charter to the extent required to preserve the
Corporation's status as a real estate investment trust.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably deposited
in trust for payment) upon the Series F Preferred Stock, all
distributions authorized and declared on the Series F Preferred Stock
and all classes or series of outstanding Parity Preferred Stock with
respect to distributions shall be authorized and declared so that the
amount of distributions authorized and declared per share of Series F
Preferred Stock and such other classes or series of Parity Preferred
Stock shall in all cases bear to each other the
A-8.4
same ratio that accrued distributions per share on the Series F
Preferred Stock and such other classes or series of Parity Preferred
Stock (which shall not include any accumulation in respect of unpaid
distributions for prior distribution periods if such class or series
of Parity Preferred Stock does not have cumulative distribution
rights) bear to each other.
(e) No Further Rights. Holders of Series F Preferred Stock
shall not be entitled to any distributions, whether payable in cash,
other property or otherwise, in excess of the full cumulative
distributions described herein.
Section 4. Liquidation Preference.
(a) Payment of Liquidating Distributions. Subject to the rights
of holders of Parity Preferred Stock with respect to rights upon any voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation and
subject to equity securities ranking senior to the Series F Preferred Stock with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Series F Preferred Stock shall be
entitled to receive out of the assets of the Corporation legally available for
distribution or the proceeds thereof, after payment or provision for debts and
other liabilities of the Corporation, but before any payment or distributions of
the assets shall be made to holders of Common Stock or any other class or series
of shares of the Corporation that ranks junior to the Series F Preferred Stock
as to rights upon liquidation, dissolution or winding-up of the Corporation, an
amount equal to the sum of (i) a liquidation preference of $100 per share of
Series F Preferred Stock, and (ii) an amount equal to any accumulated and unpaid
distributions thereon, whether or not declared, to the date of payment. In the
event that, upon such voluntary or involuntary liquidation, dissolution or
winding-up, there are insufficient assets to permit full payment of liquidating
distributions to the holders of Series F Preferred Stock and any Parity
Preferred Stock as to rights upon liquidation, dissolution or winding-up of the
Corporation, all payments of liquidating distributions on the Series F Preferred
Stock and such Parity Preferred Stock shall be made so that the payments on the
Series F Preferred Stock and such Parity Preferred Stock shall in all cases bear
to each other the same ratio that the respective rights of the Series F
Preferred Stock and such other Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior distribution
periods if such Parity Preferred Stock do not have cumulative distribution
rights) upon liquidation, dissolution or winding-up of the Corporation bear to
each other.
(b) Notice. Written notice of any such voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation, stating
the payment date or dates when, and the place or places where, the amounts
distributable in such circumstances shall be payable, shall be given by (i) fax
and (ii) by first class mail, postage pre-paid, not less than 30 and not more
than 60 days prior to the payment date stated therein, to each record holder of
the Series F Preferred Stock at the respective addresses of such holders as the
same shall appear on the share transfer records of the Corporation.
A-8.5
(c) No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series F
Preferred Stock will have no right or claim to any of the remaining assets of
the Corporation.
(d) Consolidation, Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Corporation to, or the consolidation or merger or
other business combination of the Corporation with or into, any corporation,
trust or other entity (or of any corporation, trust or other entity with or into
the Corporation) shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Corporation.
(e) Permissible Distributions. In determining whether a
distribution (other than upon voluntary liquidation) by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise is
permitted under the FBCA, no effect shall be given to amounts that would be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of holders of shares of
stock of the Corporation whose preferential rights upon dissolution are superior
to those receiving the distribution.
Section 5. Optional Redemption.
(a) Right of Optional Redemption. The Series F Preferred Stock
may not be redeemed prior to September 8, 2005. On or after such date, the
Corporation shall have the right to redeem the Series F Preferred Stock, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' written notice, at a redemption price, payable in cash, equal
to $100 per share of Series F Preferred Stock plus accumulated and unpaid
distributions, whether or nor declared, to the date of redemption. If fewer than
all of the outstanding shares of Series F Preferred Stock are to be redeemed,
the shares of Series F Preferred Stock to be redeemed shall be selected pro
rata (as nearly as practicable without creating fractional units).
(b) Limitation on Redemption.
(i) The redemption price of the Series F Preferred Stock
(other than the portion thereof consisting of accumulated but unpaid
distributions) will be payable solely out of sale proceeds of capital
stock of the Corporation and from no other source. For purposes of the
preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares, participation or
other ownership interests (however designated) and any rights (other
than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(ii) The Corporation may not redeem fewer than all of the
outstanding shares of Series F Preferred Stock unless all accumulated
and unpaid
A-8.6
distributions have been paid on all Series F Preferred Stock for all
quarterly distribution periods terminating on or prior to the date
of redemption.
(c) Procedures for Redemption.
(i) Notice of redemption will be (i) faxed, and (ii)
mailed by the Corporation, postage prepaid, not less than 30 nor more
than 60 days prior to the redemption date, addressed to the respective
holders of record of the Series F Preferred Stock to be redeemed at
their respective addresses as they appear on the transfer records of the
Corporation. No failure to give or defect in such notice shall affect
the validity of the proceedings for the redemption of any Series F
Preferred Stock except as to the holder to whom such notice was
defective or not given. In addition to any information required by law
or by the applicable rules of any exchange upon which the Series F
Preferred Stock may be listed or admitted to trading, each such notice
shall state: (i) the redemption date, (ii) the redemption price, (iii)
the number of shares of Series F Preferred Stock to be redeemed, (iv)
the place or places where such shares of Series F Preferred Stock are to
be surrendered for payment of the redemption price, (v) that
distributions on the Series F Preferred Stock to be redeemed will cease
to accumulate on such redemption date and (vi) that payment of the
redemption price and any accumulated and unpaid distributions will be
made upon presentation and surrender of such Series F Preferred Stock.
If fewer than all of the shares of Series F Preferred Stock held by any
holder are to be redeemed, the notice mailed to such holder shall also
specify the number of shares of Series F Preferred Stock held by such
holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in
respect of Series F Preferred Stock (which notice will be irrevocable)
then, by 12:00 noon, New York City time, on the redemption date, the
Corporation will deposit irrevocably in trust for the benefit of the
Series F Preferred Stock being redeemed funds sufficient to pay the
applicable redemption price, plus any accumulated and unpaid
distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any
accumulated and unpaid distributions, if any, on such shares to the
holders of the Series F Preferred Stock upon surrender of the
certificate evidencing the Series F Preferred Stock by such holders at
the place designated in the notice of redemption. If fewer than all
Series F Preferred Stock evidenced by any certificate is being redeemed,
a new certificate shall be issued upon surrender of the certificate
evidencing all Series F Preferred Stock, evidencing the unredeemed
Series F Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on
the Series F Preferred Stock or portions thereof called for redemption,
unless the Corporation defaults in the payment thereof. If any date
fixed for redemption of Series F Preferred Stock is not a Business Day,
then payment of the redemption price payable on such date will be made
on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if
such Business Day falls in the next calendar
A-8.7
year, such payment will be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date
fixed for redemption. If payment of the redemption price or any
accumulated or unpaid distributions in respect of the Series F Preferred
Stock is improperly withheld or refused and not paid by the Corporation,
distributions on such Series F Preferred Stock will continue to
accumulate from the original redemption date to the date of payment, in
which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the applicable redemption price
and any accumulated and unpaid distributions.
(d) Status of Redeemed Stock. Any Series F Preferred Stock that
shall at any time have been redeemed shall after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
class or series until such shares are once more designated as part of a
particular class or series by the Board of Directors.
Section 6. Voting Rights.
(a) General. Holders of the Series F Preferred Stock will not
have any voting rights, except as set forth below.
(b) Right to Elect Directors.
(i) If at any time distributions shall be in arrears
(which means that, as to any such quarterly distributions, the same have
not been paid in full) with respect to six (6) prior quarterly
distribution periods (including quarterly periods on the Series F
Preferred Units prior to the exchange into Series F Preferred Stock),
whether or not consecutive, and shall not have been paid in full (a
"Preferred Distribution Default"), the authorized number of members of
the Board of Directors shall automatically be increased by two and the
holders of record of such Series F Preferred Stock, voting together as a
single class with the holders of each class or series of Parity
Securities (as defined below), will be entitled to fill the vacancies so
created by electing two additional directors to serve on the
Corporation's Board of Directors (the "Preferred Stock Directors") at a
special meeting called in accordance with Section 6(b)(ii) or at the
next annual meeting of stockholders, and at each subsequent annual
meeting of stockholders or special meeting held in place thereof, until
all such distributions in arrears and distributions for the current
quarterly period on the Series F Preferred Stock and each such class or
series of Parity Securities have been paid in full.
(ii) At any time when such voting rights shall have
vested, a proper officer of the Corporation shall call or cause to be
called, upon written request of holders of record of at least 10% of the
outstanding shares of Series F Preferred Stock, a special meeting of the
holders of Series F Preferred Stock and all the series of Parity
Preferred Stock which are (i) on parity with the Series F Preferred
Stock both as to distributions and rights upon liquidation, dissolution
and winding up, (ii) with respect to Parity Preferred Stock outstanding
as a result of an acquisition of another corporation, on parity with the
Series F Preferred Stock as to distributions only or with
A-8.8
respect to distributions and rights upon liquidation, dissolution or
winding up or (iii) on parity with the Series F Preferred Stock as to
distributions, but junior as to rights upon liquidation, dissolution and
winding up, but if any such Parity Preferred Stock referred to in this
clause (iii) was issued for an amount less than its liquidation
preference, the holders thereof shall be entitled to one vote for each
$25.00 of issuance price, in lieu of one vote for each $25.00 of
liquidation preference, and upon which like voting rights have been
conferred and are exercisable (collectively, the "Parity Securities") by
mailing or causing to be mailed to such holders a notice of such special
meeting to be held not less than ten and not more than 45 days after the
date such notice is given. The record date for determining holders of
the Parity Securities entitled to notice of and to vote at such special
meeting will be the close of business on the third Business Day
preceding the day on which such notice is mailed. At any annual or
special meeting at which Parity Securities are entitled to vote, all of
the holders of the Parity Securities, by plurality vote, voting together
as a single class without regard to series will be entitled to elect two
directors on the basis of one vote per $25.00 of liquidation preference
to which such Parity Securities are entitled by their terms (excluding
amounts in respect of accumulated and unpaid dividends) and not
cumulatively. The holder or holders of the Parity Securities
representing one-third of the total voting power of the Parity
Securities then outstanding, present in person or by proxy, will
constitute a quorum for the election of the Preferred Stock Directors
except as otherwise provided by law. Notice of all meetings at which
holders of the Series F Preferred Stock shall be entitled to vote will
be given to such holders at their addresses as they appear in the
transfer records. At any such meeting or adjournment thereof in the
absence of a quorum, subject to the provisions of any applicable law,
the holders of the Parity Securities representing a majority of the
voting power of the Parity Securities present in person or by proxy
shall have the power to adjourn the meeting for the election of the
Preferred Stock Directors, without notice other than an announcement at
the meeting, until a quorum is present. If a Preferred Distribution
Default shall terminate after the notice of an annual or special meeting
has been given but before such meeting has been held, the Corporation
shall, as soon as practicable after such termination, mail or cause to
be mailed notice of such termination to holders of the Series F
Preferred Stock that would have been entitled to vote at such meeting.
(iii) If and when all accumulated distributions and the
distribution for the current distribution period on the Series F
Preferred Stock shall have been paid in full or a sum sufficient for
such payment is irrevocably deposited in trust for payment, the holders
of the Series F Preferred Stock shall be divested of the voting rights
set forth in Section 6(b) herein (subject to revesting in the event of
each and every Preferred Distribution Default) and, if all distributions
in arrears and the distributions for the current distribution period
have been paid in full or set aside for payment in full on all other
classes or series of Parity Securities upon which like voting rights
have been conferred and are exercisable, the term and office of each
Preferred Stock Director so elected shall terminate. Any Preferred Stock
Director may be removed at any time with or without cause by the vote
of, and shall not be removed otherwise than by the vote of, the holders
of record of a majority of the outstanding Series F Preferred
A-8.9
Stock when they have the voting rights set forth in Section 6(b) (voting
separately as a single class with all other classes or series of Parity
Preferred Stock upon which like voting rights have been conferred and
are exercisable). So long as a Preferred Distribution Default shall
continue, any vacancy in the office of a Preferred Stock Director may be
filled by written consent of the Preferred Stock Director remaining in
office, or if none remains in office, by a vote of the holders of record
of a majority of the outstanding Series F Preferred Stock when they have
the voting rights set forth in Section 6(b) (voting separately as a
single class with all other classes or series of Parity Securities upon
which like voting rights have been conferred and are exercisable). The
Preferred Stock Directors shall each be entitled to one vote per
director on any matter.
(c) Certain Voting Rights. So long as any Series F Preferred
Stock remains outstanding, the Corporation shall not, without the affirmative
vote of the holders of at least two-thirds of the Series F Preferred Stock and
the Series F Preferred Units outstanding at such time and not previously
surrendered in exchange for Series F Preferred Stock together, if applicable,
voting as a single class based on the number of shares into which such Series F
Preferred Units are then convertible (collectively, the "Series F Voting
Securities") (i) designate or create, or increase the authorized or issued
amount of, any class or series of shares ranking senior to the Series F
Preferred Stock with respect to payment of distributions or rights upon
liquidation, dissolution or winding-up or reclassify any authorized shares of
the Corporation into any such shares, or create, authorize or issue any
obligations or securities convertible into or evidencing the right to purchase
any such shares, (ii) designate or create, or increase the authorized or
issued amount of, any Parity Preferred Stock or reclassify any authorized
shares of the Corporation into any such shares, or create, authorize or issue
any obligations or securities convertible into or evidencing the right to
purchase any such shares, but only to the extent such Parity Preferred Stock is
issued to an affiliate of the Corporation (other than Security Capital U.S.
Realty, Security Capital Holdings, S.A. or their affiliates if issued upon
arms-length terms in the good faith determination of the Board of Directors), or
(iii) either (A) consolidate, merge into or with, or convey, transfer or lease
its assets substantially as an entirety, to any corporation or other entity, or
(B) amend, alter or repeal the provisions of the Corporation's Charter
(including these Articles of Amendment) or By-laws, whether by merger,
consolidation or otherwise, in each case that would materially and adversely
affect the powers, special rights, preferences, privileges or voting power of
the Series F Preferred Stock or the holders thereof; provided, however, that
with respect to the occurrence of a merger, consolidation or a sale or lease of
all of the Corporation's assets as an entirety, so long as (a) the Corporation
is the surviving entity and the Series F Preferred Stock remains outstanding
with the terms thereof unchanged, or (b) the resulting, surviving or transferee
entity is a corporation organized under the laws of any state and substitutes
the Series F Preferred Stock for other preferred stock having substantially the
same terms and same rights as the Series F Preferred Stock, including with
respect to distributions, voting rights and rights upon liquidation, dissolution
or winding-up, then the occurrence of any such event shall not be deemed to
materially and adversely affect such rights, privileges or voting powers of the
holders of the Series F Preferred Stock and no vote of the Series F Voting
Securities shall be required in such case; and provided further that any
increase in the amount of authorized Preferred Stock or the creation or issuance
of any other class or series of
A-8.10
Preferred Stock, or any increase in an amount of authorized shares of each class
or series, in each case ranking either (a) junior to the Series F Preferred
Stock with respect to payment of distributions or the distribution of assets
upon liquidation, dissolution or winding-up, or (b) on a parity with the Series
F Preferred Stock with respect to payment of distributions or the distribution
of assets upon liquidation, dissolution or winding-up to the extent such
Preferred Stock is not issued to a affiliate of the Corporation (other than
Security Capital U.S. Realty, Security Capital Holdings, S.A. or their
affiliates if issued upon arms-length terms in the good faith determination of
the Board of Directors), shall not be deemed to materially and adversely affect
such rights, preferences, privileges or voting powers and no vote of the Series
F Preferred Stock shall be required in such case.
Section 7. No Conversion Rights. The holders of the Series F Preferred
Stock shall not have any rights to convert such shares into shares of any other
class or series of stock or into any other securities of, or interest in, the
Corporation.
Section 8. No Sinking Fund. No sinking fund shall be established for
the retirement or redemption of Series F Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series F Preferred
Stock of the Corporation shall, as such holder, have any preemptive rights to
purchase or subscribe for additional shares of stock of the Corporation or any
other security of the Corporation which it may issue or sell.
A-8.11
REGENCY REALTY CORPORATION
AMENDMENT TO ARTICLES OF INCORPORATION
(Changing Name to Regency Centers Corporation)
This corporation was incorporated on July 8, 1993 effective July 9,
1993 under the name Regency Realty Corporation. Pursuant to Sections 607.1001,
607.1003, 607.1004 and 607.1006, Florida Business Corporation Act, an amendment
to Section 1.1 of the Articles of Incorporation, as restated on November 4,
1996, was approved by the Board of Directors at a meeting held on November 1,
2000 and adopted by the written consent dated January 15, 2001 of shareholders
owning a majority of the corporation's outstanding voting stock. The only voting
group entitled to vote on the adoption of the amendment consists of the holders
of the corporation's common stock and Series 2 Preferred Stock, voting together
as a single class. The number of votes cast by such voting group was sufficient
for approval by that voting group. Section 1.1 of the Restated Articles of
Incorporation of the Company is hereby amended in its entirety to read as
follows:
"Section 1.1 Name. The name of the corporation is Regency
Centers Corporation (the "Corporation")."
This amendment shall be effective February 12, 2001.
IN WITNESS WHEREOF, the undersigned Senior Vice President of this
corporation has executed these Articles of Amendment this 9th day of February,
2001.
/s/ J. Christian Leavitt
J. Christian Leavitt, Senior Vice
President
REGENCY CENTERS CORPORATION
AMENDMENT TO ARTICLES OF INCORPORATION
This corporation was incorporated on July 8, 1993 effective July 9,
1993 under the name Regency Realty Corporation. Pursuant to Sections 607.1003,
607.1004 and 607.1006, Florida Business Corporation Act, the following
amendments to the Articles of Incorporation, as restated on November 4, 1996,
were approved by the Board of Directors at a meeting held on January 30, 2001
and adopted at a meeting of shareholders on May 1, 2001. The only voting group
entitled to vote on the adoption of the amendment consists of the holders of the
corporation's common stock and Series 2 Preferred Stock, voting together as a
single class. The number of votes cast by such voting group was sufficient for
approval by that voting group. The Restated Articles of Incorporation of the
corporation are hereby amended as follows:
Section 5.1(i) "Non-U.S. Person" is hereby deleted.
Section 5.14 Certain Transfers to Non-U.S. Persons Void
is hereby deleted in its entirety.
IN WITNESS WHEREOF, the undersigned Senior Vice President of this
corporation has executed these Articles of Amendment this 7th day of May, 2001.
/s/ J. Christian Leavitt
----------------------------------------
J. Christian Leavitt, Senior Vice
President
REGENCY CENTERS CORPORATION
AMENDMENT TO ARTICLES OF INCORPORATION
Deleting Authorization for Class B Non-Voting Common Stock
and Series 1 Cumulative Convertible Redeemable Preferred Stock
Pursuant to Section 607.1002 of the Florida Business Corporation Act
("FBCA"), Regency Centers Corporation, a Florida corporation (the
"Corporation"), does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Restated Articles of
Incorporation of the Corporation, as amended, and Section 607.0602 of the FBCA,
the Board of Directors of the Corporation by resolutions duly adopted on
September 23, 1998 classified 542,532 shares of the authorized but unissued
Preferred Stock as a separate class designated as Series 1 Preferred Stock and
set the preferences, rights, terms and conditions of the class of Series 1
Preferred Stock, including the requirement that all shares of Series 1 Preferred
Stock that have been issued and reacquired by the Corporation shall be restored
to the status of authorized but unissued shares of Preferred Stock of the
Corporation, without designation.
SECOND: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.4 of the Restated Articles of
Incorporation of the Corporation, as amended, and Section 607.0602 of the FBCA,
the Board of Directors of the Corporation by resolutions duly adopted on October
23, 1995 and December 14, 1995 classified 2,500,000 shares of the authorized but
unissued Special Common Stock as a separate class designated as Class B
Non-Voting Convertible Common Stock and set the rights, terms and conditions of
the Class B Non-Voting Convertible Common Stock, including the requirement that
all shares of Class B Non-Voting Convertible Common Stock that have been
converted, redeemed or otherwise reacquired by the Corporation shall be restored
to the status of authorized but unissued shares of Non-Voting Common Stock of
the Corporation, without designation.
THIRD: All 542,532 previously issued shares of Series 1 Preferred
Stock have been converted , pursuant to their terms, to Series 2 Preferred Stock
and, accordingly have been retired and restored to the status of authorized but
unissued shares of Preferred Stock of the Corporation, without designation.
FOURTH: All 2,500,000 previously issued shares of Class B Non-Voting
Convertible Common Stock have been converted, pursuant to their terms, to Common
Stock and, accordingly have been retired and restored to the status of
authorized but unissued shares of Non-Voting Common Stock of the Corporation,
without designation.
FIFTH: this Amendment is being filed for the purpose of deleting the
authority to issue Series 1 Preferred Stock and Class B Non-Voting Convertible
Common Stock.
This Amendment was approved by the Board of Directors by resolutions
adopted September 23, 1998 as to the Series 1 Preferred Stock and by resolutions
adopted October 23, 1995 and December 14, 1995 as to the Class B Non-Voting
Convertible Common Stock. Shareholder approval was not required.
IN WITNESS WHEREOF, the undersigned Vice President of the
Corporation has executed these Articles of Amendment this 30th day of October,
2001.
REGENCY CENTERS CORPORATION
By: /s/ Kathy D. Miller
-------------------------------------
Kathy D. Miller, Vice President