AMENDMENT TO ARTICLES OF INCORPORATION OF
REGENCY CENTERS CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 3,000,000 SHARES OF
6.70% SERIES 5 CUMULATIVE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation Act
("FBCA"), Regency Centers Corporation, a Florida corporation (the
"Corporation"), does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Amended and Restated Articles
of Incorporation of the Corporation (the "Charter") and Section 607.0602 of the
FBCA, the Board of Directors of the Corporation (the "Board of Directors"), by
resolutions duly adopted on May 3, 2005 and resolutions duly adopted on July 27,
2005 by a committee appointed by the Board of Directors, has classified
3,000,000 shares of the authorized but unissued Preferred Stock, par value $.01
per share ("Preferred Stock"), as a separate series of Preferred Stock,
authorized the issuance of a maximum of 3,000,000 shares of such series of
Preferred Stock, set certain of the preferences, voting powers, restrictions,
limitations as to dividends, qualifications, terms and conditions of redemption
and other terms and conditions of such series of Preferred Stock, and pursuant
to the powers contained in the Bylaws of the Corporation and the FBCA, appointed
a committee (the "Committee") and delegated to the Committee, to the fullest
extent permitted by the FBCA and the Charter and Bylaws of the Corporation, all
powers of the Board of Directors with respect to designating, and setting all
other preferences, voting powers, restrictions, limitations as to dividends and
other distributions, qualifications and terms and conditions of redemption and
other terms and conditions of, such series of Preferred Stock and determining
the number of shares of such series of Preferred Stock (not in excess of the
aforesaid maximum number) to be issued and the consideration and other terms and
conditions upon which such shares of such series of Preferred Stock are to be
issued. Shareholder approval was not required under the Charter with respect to
such designation.
SECOND: Pursuant to the authority conferred upon the Committee as
aforesaid, the Committee has unanimously adopted resolutions designating the
aforesaid series of Preferred Stock as the "6.70% Series 5 Cumulative Redeemable
Preferred Stock," setting the preferences, voting powers, restrictions,
limitations as to dividends and other distributions, qualifications, terms and
conditions of redemption and other terms and conditions of such 6.70% Series 5
Cumulative Redeemable Preferred Stock (to the extent not set by the Board of
Directors in the resolutions referred to in Article FIRST of these Articles of
Amendment) and authorizing the issuance of up to 3,000,000 shares of 6.70%
Series 5 Cumulative Redeemable Preferred Stock.
THIRD: The series of Preferred Stock of the Corporation created by the
resolutions duly adopted by the Board of Directors of the Corporation and by the
Committee and referred to in Articles FIRST and SECOND of these Articles of
Amendment shall have the following designation, number of shares, preferences,
voting powers, restrictions and limitation as to dividends and other
distributions, qualifications, terms and conditions of redemption and other
terms and conditions:
Section 1. Designation and Number. A series of Preferred Stock,
designated the "6.70% Series 5 Cumulative Redeemable Preferred Stock" (the
"Series 5 Preferred Stock") is hereby established. The number of shares of
Series 5 Preferred Stock shall be 3,000,000.
Section 2. Rank. The Series 5 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 5 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 5 Preferred Stock
with respect to distributions or rights upon voluntary or involuntary
liquidation, winding-up or dissolution of the Corporation or both, as the
context may require, whether or not the dividend rates, dividend payment dates
or redemption or liquidation prices per share shall be different from those of
the Series 5 Preferred Stock and includes the 7.45% Series 3 Cumulative
Redeemable Preferred Stock, the 7.25% Series 4 Cumulative Redeemable Preferred
Stock, the Series D Cumulative Redeemable Preferred Stock, the Series E
Cumulative Redeemable Preferred Stock and the Series F Cumulative Convertible
Redeemable Preferred Stock of the Corporation. The term "equity securities" does
not include debt securities, which will rank senior to the Series 5 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 5 Preferred Stock as to payment of distributions, holders
of Series 5 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 6.70% of the $25.00 liquidation preference per share of Series
5 Preferred Stock. Such distributions shall be cumulative, shall accrue from the
original date of issuance and will be payable in cash (A) quarterly (such
quarterly periods for purposes of payment and accrual will be the quarterly
periods ending on the dates specified in this sentence) in arrears, on or before
March 31, June 30, September 30 and December 31 of each year commencing on
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September 30, 2005 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 5 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 5 Preferred Stock will be
made to the holders of record of the Series 5 Preferred Stock on the first day
of the month in which the Preferred Stock Distribution Payment Date occurs, or
on such other record dates to be fixed by the Board of Directors of the
Corporation, which record dates shall be not less than 10 days and not more than
30 Business Days prior to the relevant Preferred Stock Distribution Payment Date
(each a "Distribution Record Date ").
The term "Business Day" shall mean each day, other than a
Saturday or a Sunday, which is not a day on which banking institutions in New
York, New York are authorized or required by law, regulation or executive order
to close.
(b) imitation on Distributions. No distribution on the Series 5
Preferred Stock shall be declared or paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement of the
Corporation relating to its indebtedness, prohibit such declaration, payment or
setting apart for payment or provide that such declaration, payment or setting
apart for payment would constitute a breach thereof or a default thereunder, or
if such declaration, payment or setting apart for payment shall be restricted or
prohibited by law. Nothing in this Section 3(b) shall be deemed to modify or in
any manner limit the provisions of Section 3(c) and 3(d).
(c) Distributions Cumulative. Distributions on the Series 5
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 5 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 5 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.
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(d) Priority as to Distributions.
(i) So long as any Series 5 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 5 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 5 Preferred Stock,
any Parity Preferred Stock with respect to distributions or any Junior
Stock, unless, in each case, all distributions accumulated on all
Series 5 Preferred Stock and all classes and series of outstanding
Parity Preferred Stock with respect to distributions have been paid in
full. Without limiting Section 6(b) hereof, the foregoing sentence will
not prohibit (i) distributions payable solely in shares of Junior
Stock, (ii) the conversion of Junior Stock or Parity Preferred Stock
into Junior Stock, (iii) purchases by the Corporation of such Series 5
Preferred Stock or Parity Preferred Stock or Junior Stock pursuant to
Article 5 of the Charter to the extent required to preserve the
Corporation's status as a real estate investment trust, (iv) purchases
or other acquisitions of Junior Stock for purposes of any employee or
director incentive or benefit plan of the Corporation or any
subsidiary, and (v) purchases or acquisitions of shares of Series 5
Preferred Stock pursuant to a purchase or exchange offer that is made
on the same terms to all holders of Series 5 Preferred Stock.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably
deposited in trust for payment) upon the Series 5 Preferred Stock, all
distributions authorized and declared on the Series 5 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 5
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 5 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 5 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 5 Preferred Stock with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Series 5 Preferred Stock shall be
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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 5 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 $25.00 per share of
Series 5 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 5 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 5 Preferred
Stock and such Parity Preferred Stock shall be made so that the payments on the
Series 5 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 5
Preferred Stock and such other Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior distribution
periods if such Parity Preferred Stock does not have cumulative distribution
rights) upon liquidation, dissolution or winding-up of the Corporation bear to
each other.
(b) Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by first class mail, postage
pre-paid, not less than 30 and not more than 60 days prior to the payment date
stated therein, to each record holder of the Series 5 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 5
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.
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Section 5. Optional Redemption.
(a) Right of Optional Redemption. The Series 5 Preferred
Stock may not be redeemed prior to August 2, 2010. On or after such date, the
Corporation shall have the right to redeem the Series 5 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 $25.00 per share of Series 5 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 5 Preferred Stock are to be redeemed,
the shares of Series 5 Preferred Stock to be redeemed shall be selected pro
rata (as nearly as practicable without creating fractional shares).
(b) Limitation on Redemption. The Corporation may not
redeem fewer than all of the outstanding shares of Series 5 Preferred Stock
unless all accumulated and unpaid distributions have been paid on all Series 5
Preferred Stock for all quarterly distribution periods terminating on or prior
to the date of redemption; provided, however, that the foregoing shall not
prevent the purchase or acquisition of shares of Series 5 Preferred Stock
pursuant to a purchase or exchange offer that is made on the same terms to all
holders of Series 5 Preferred Stock.
(c) Procedures for Redemption.
(i) Notice of redemption will be mailed by the
Corporation, postage prepaid, not less than 30 nor more than 60 days
prior to the redemption date, addressed to the respective holders of
record of the Series 5 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 5
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 5
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 5 Preferred Stock to be redeemed, (iv)
the place or places where such shares of Series 5 Preferred Stock are
to be surrendered for payment of the redemption price, (v) that
distributions on the Series 5 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 5 Preferred Stock.
If fewer than all of the shares of Series 5 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 5 Preferred Stock held by such
holder to be redeemed.
(ii) If the Corporation gives a notice of redemption in
respect of Series 5 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 5 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
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accumulated and unpaid distributions, if any, on such shares to the
holders of the Series 5 Preferred Stock upon surrender of the
certificates evidencing the Series 5 Preferred Stock by such holders at
the place designated in the notice of redemption. If fewer than all
Series 5 Preferred Stock evidenced by any certificate is being
redeemed, a new certificate shall be issued upon surrender of the
certificate evidencing all Series 5 Preferred Stock, evidencing the
unredeemed Series 5 Preferred Stock, without cost to the holder
thereof. On and after the date of redemption, distributions will cease
to accumulate on the Series 5 Preferred Stock or portions thereof
called for redemption, unless the Corporation defaults in the payment
thereof. If any date fixed for redemption of Series 5 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 5
Preferred Stock is improperly withheld or refused and not paid by the
Corporation, distributions on such Series 5 Preferred Stock will
continue to accumulate from the original redemption date to the date of
payment, in which case the actual payment date will be considered the
date fixed for redemption for purposes of calculating the applicable
redemption price and any accumulated and unpaid distributions.
(iii) Subject to applicable escheat laws, if funds
deposited by the Corporation in trust pursuant to Section 5(c)(ii)
remain unclaimed by the holders of shares called for redemption, such
funds shall be repaid to the Corporation at the end of three years, and
thereafter the holder of any such shares shall look only to the general
funds of the Corporation for the payment, without interest, of the
redemption price.
(d) Status of Redeemed Stock. Any Series 5 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 5 Preferred Stock will not
have any voting rights, except as set forth below or as required by the FBCA.
(b) Voting Power. For purposes of this Section 6, "Parity
Voting Securities" means the Series 5 Preferred Stock, the Series 3 Preferred
Stock and all classes or series of Preferred Stock which are (i) on parity with
the Series 5 Preferred Stock as to distributions and/or rights upon liquidation,
dissolution or winding up, (ii) upon which like voting rights have been
conferred and are exercisable as to the matter in question to be submitted to a
vote, and (iii) which would be affected in the same or substantially similar way
by such matter. When Parity Voting Securities are entitled to vote on a matter,
they shall vote together as a single class without regard to series, and each
holder of record of Parity Voting Securities shall be entitled to one vote for
each $25.00 liquidation preference (excluding amounts in respect of accumulated
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and unpaid distributions), except that if any Parity Voting Securities were
issued for an amount less than their liquidation preference, the holders thereof
shall be entitled to one vote for each $25.00 of issuance price in lieu of one
vote for each $25.00 of liquidation preference.
(c) Right to Elect Directors.
(i) If at any time distributions shall be in arrears
(which means that, as to any such quarterly distributions, the same
have not been paid in full) with respect to six (6) prior quarterly
distribution periods, whether or not consecutive, and shall not have
been paid in full (a "Preferred Distribution Default"), the authorized
number of members of the Board of Directors shall automatically be
increased by two and the holders of record of Series 5 Preferred Stock,
voting together as a single class with the holders of each other class
or series of Parity Voting Securities, will be entitled to fill the
vacancies so created by electing two additional directors to serve on
the Corporation's Board of Directors (the "Preferred Stock Directors")
at a special meeting called in accordance with Section 6(c)(ii) or at
the next annual meeting of stockholders, and at each subsequent annual
meeting of stockholders or special meeting held in place thereof, until
all such distributions in arrears and distributions for the current
quarterly period on the Series 5 Preferred Stock and each such class or
series of Parity Voting Securities have been paid in full.
(ii) At any time when such voting rights shall have
vested, a proper officer of the Corporation shall call or cause to be
called, upon written request of holders of record of at least 10% of
the outstanding shares of Series 5 Preferred Stock, a special meeting
of the holders of record of Parity Voting Securities by mailing or
causing to be mailed to such holders a notice of such special meeting
to be held not less than ten and not more than 45 days after the date
such notice is given. At any annual or special meeting at which Parity
Voting Securities are entitled to vote, all of the holders of the
Parity Voting Securities, by a plurality of the votes, and not
cumulatively, will be entitled to elect two directors. The holders of
the Parity Voting Securities representing the lesser of one-third of
the total voting power of the Parity Voting Securities then
outstanding, present in person or by proxy or the quorum required for a
vote of the holders of Common Stock, will constitute a quorum for
the election of the Preferred Stock Directors except as otherwise
provided by law. Notice of all meetings at which holders of record of
the Series 5 Preferred Stock shall be entitled to vote will be given to
such holders at their addresses as they appear in the transfer records.
At any such meeting or adjournment thereof in the absence of a quorum,
subject to the provisions of any applicable law, the holders of the
Parity Voting Securities representing a majority of the voting power of
the Parity Voting Securities present in person or by proxy shall have
the power to adjourn the meeting for the election of the Preferred
Stock Directors, without notice other than an announcement at the
meeting, until a quorum is present. If a Preferred Distribution Default
shall terminate after the notice of an annual or special meeting has
been given but before such meeting has been held, the Corporation
shall, as soon as practicable after such termination, mail or cause to
be mailed notice of such termination to holders of the Series 5
Preferred Stock that would have been entitled to vote at such meeting.
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(iii) If and when all accumulated distributions and the
distribution for the current distribution period on the Series 5
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 5 Preferred Stock shall be divested of the voting rights
set forth in Section 6(c) herein (subject to revesting in the event of
each and every Preferred Distribution Default) and, if all
distributions in arrears and the distributions for the current
distribution period have been paid in full or set aside for payment in
full on all other classes or series of Parity Voting Securities, the
term and office of each Preferred Stock Director so elected shall
terminate. Any Preferred Stock Director may be removed at any time with
or without cause by the vote of, and shall not be removed otherwise
than by the vote of, the holders of record of a majority of the voting
power of the Parity Voting Securities. So long as a Preferred
Distribution Default shall continue, any vacancy in the office of a
Preferred Stock Director may be filled by written consent of the
Preferred Stock Director remaining in office, or if none remains in
office, by a vote of the holders of record of a majority of the
outstanding Series 5 Preferred Stock (voting separately as a single
class with all other classes or series of Parity Voting Securities).
The Preferred Stock Directors shall each be entitled to one vote per
director on any matter.
(d) Certain Voting Rights. In addition to any other vote
required by the FBCA, so long as any Series 5 Preferred Stock remains
outstanding and subject to the last sentence of this Section 6(d), the
Corporation shall not, without the affirmative vote of the holders of
record of at least two-thirds of the voting power entitled to be cast by the
holders of Series 5 Preferred Stock and the holders of other Parity Voting
Securities upon which like voting rights have been conferred and are
exercisable, voting separately as a single class:
(i) amend the Charter to designate or create, or
increase the authorized amount of, any class or series of shares
ranking senior to the Series 5 Preferred Stock with respect to payment
of distributions or rights upon liquidation, dissolution or winding-up
("Senior Shares") or reclassify any authorized shares of the
Corporation into any Senior Shares; provided that no such vote shall be
required if:
(x) at or prior to the time any such event is to
take place, provision is made for the redemption of all shares
of Series 5 Preferred Stock, so long as no portion of the
redemption price will be paid from the proceeds from the sale of
such Senior Shares; or
(y) the holders of Series 5 Preferred Stock have
previously voted pursuant to this Section 6(d) to grant
authority to the Board of Directors to create Senior Shares
pursuant to Section 607.0602 of the FBCA;
(ii) either (A) consolidate, merge into or with, or
convey, transfer or lease its assets substantially as an entirety, to
any corporation or other entity, or (B) amend, alter or repeal the
provisions of the Corporation's Charter (including these Articles of
Amendment) or By-laws, whether by merger, consolidation or otherwise,
in each case in a manner that would materially and adversely affect the
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powers, special rights, preferences, privileges or voting power of the
Series 5 Preferred Stock; provided, however, that:
(x) with respect to the occurrence of a
merger, consolidation or a sale or lease of all of the
Corporation's assets as an entirety, so long as (a) the
Corporation is the surviving entity and the Series 5 Preferred
Stock remains outstanding with the terms thereof unchanged, or
(b) the resulting, surviving or transferee entity is a
corporation organized under the laws of any state and
substitutes for the Series 5 Preferred Stock other preferred
stock having substantially the same terms and same rights as
the Series 5 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 5 Preferred Stock and no vote of the Series 5 Preferred
Stock shall be required in such case;
(y) any increase in the amount of authorized
Preferred Stock or the creation or issuance of any other class
or series of Preferred Stock, or any increase in an amount of
authorized shares of each class or series, in each case
ranking either (a) junior to the Series 5 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 5 Preferred Stock with respect to
payment of distributions or the distribution of assets upon
liquidation, dissolution or winding-up, shall not be deemed to
materially and adversely affect such rights, preferences,
privileges or voting powers for purposes of this Section
6(d)(ii)(y); and
(z) if any event in Section 6(d)(ii) would
materially and adversely affect the powers, special rights,
preferences, privileges or voting power of the Series 5
Preferred Stock that are not enjoyed by some or all of the
other classes or series of Parity Voting Securities, the
affirmative vote of the holders of record of two-thirds of the
voting power entitled to be cast by the holders of all series
similarly affected shall be required in lieu of the
affirmative vote of the holders of two-thirds of the voting
power entitled to be cast by the holders of the Parity Voting
Securities.
In addition, so long as any Series 5 Preferred Stock remains outstanding, the
Corporation shall not amend the Charter to increase the number of shares of
authorized Preferred Stock (unless such shares are junior to the Series 5
Preferred Stock as to distributions and liquidation, dissolution or winding-up)
without the affirmative vote of the holders of record of at least a majority of
the voting power entitled to be cast by the holders of Series 5 Preferred Stock
and the holders of other Parity Voting Securities upon which like voting rights
have been conferred and are exercisable, voting separately as single class.
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Section 7. No Conversion Rights. The holders of the Series 5 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 5 Preferred Stock.
Section 9. No Preemptive Rights. No holder of the Series 5 Preferred
Stock of the Corporation shall, as such holder, have any preemptive rights to
purchase or subscribe for additional shares of stock of the Corporation or any
other security of the Corporation which it may issue or sell.
FOURTH: The Series 5 Preferred Stock has been classified and designated
by the Board of Directors under the authority contained in the Charter.
FIFTH: These Articles of Amendment have been approved by the Board of
Directors in the manner and by the vote required by law.
SIXTH: The undersigned officer of the Corporation acknowledges these
Articles of Amendment to be the corporate act of the Corporation and, as to all
matters or facts required to be verified under oath, the undersigned officer
acknowledges that to the best of the undersigned's knowledge, information and
belief, these matters and facts are true in all material respects and that this
statement is made under the penalties for perjury.
11
IN WITNESS WHEREOF, the Corporation has caused this Amendment to be
signed by J. Christian Leavitt, its Senior Vice President, Finance, this 28th
day of July, 2005.
REGENCY CENTERS CORPORATION
By: /s/ J. Christian Leavitt
-------------------------------------
Name: J. Christian Leavitt
Title: Senior Vice President, Finance