NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT (the "Agreement") is made as of the
1st day of March, 1998 by and among REGENCY CENTERS, L.P., a Delaware
limited partnership (the "Partnership"), REGENCY REALTY GROUP, INC., a
Florida corporation (the "Third Party Management Company"), REGENCY REALTY
CORPORATION, a Florida corporation ("Regency") and Lee S. Wielansky, an
individual (the "Midland Principal"), under the following circumstances:
A. Pursuant to the terms and conditions of that certain
Contribution Agreement, dated as of January 12, 1998 (the "Contribution
Agreement"), by and among Midland Development Group, Inc., a Missouri
corporation ("Midland Development"), the Property Entities, the Midland
Principals, the Midland Affiliates and Regency, the Contributors are
contributing, as applicable, shopping center properties and other assets
used in their real estate businesses, ownership interests in the Joint
Ventures or the Third Party Management Assets to the Partnership or the
applicable Transferee (collectively, the "Assets").
B. The Midland Principal is an equity owner in certain Contributors
as well as an executive officer of Midland Development and is receiving
limited partnership interests in the Partnership and/or cash which such
Contributors (i) are receiving in exchange for the Assets and (ii) are
distributing to their equity owners.
C. To induce Regency to enter into the Contribution Agreement and
as a condition to closing the transfer of Assets and other transactions
contemplated thereby, the Midland Principal has agreed to enter into this
Agreement.
D. Capitalized terms used and not otherwise defined herein shall
have the meaning assigned thereto in the Contribution Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1: DEFINITIONS
1.1 "Affiliate" means, with respect to any Person, any Person
directly or indirectly controlling, controlled by or under common control
with such Person.
1.2 "Business" means the direct or indirect acquisition, ownership,
operation, control or development of Grocery Properties.
1.3 "Employee" means an individual who works at least an average of
35 hours per week as an employee, or who performs substantially the same
functions as such an employee, whether as a direct or indirect owner,
partner, director, officer, agent, consultant, independent contractor or
otherwise.
1.4 "Grocery Property" means a grocery-anchored shopping center or a
free-standing grocery store located in the Territory.
1.5 "Immediate Family" means a Person's spouse, parents, lineal
ascendants or descendants and their spouses, and trusts for the benefit of
any of the foregoing.
1.6 "In Conjunction with Another Midland Principal" means with (i)
any other Midland Principal or (ii) an entity in which the Midland
Principal or any other Midland Principal or Principals or any of his or
their Affiliates owns an equity interest, or (iii) any combination of the
foregoing.
1.7 "Indirectly" means through (i) an entity in which the Midland
Principal or any of his Affiliates has any material direct or indirect
equity interest or (ii) any member of the Midland Principal's Immediate
Family or an entity in which any member of the Midland Principal's
Immediate Family has any material direct or indirect equity interest if
the applicable action is taken or equity interest is owned by such member
for the purpose of circumventing the restrictions of this Agreement.
1.8 "Midland Principals" means Lee S. Wielansky, Stephen M.
Notestine, Joseph H. Apter, Rodney K. Jones, and Ned M. Brickman.
1.9 "NonCompete Period" means a period of three years from the date
of this Agreement.
1.10 "Nonsolicitation Period" means a period of one year from the
later of the date of this Agreement or the termination of the Midland
Principal's status as an Employee of Regency, or any Affiliate of Regency,
for any reason whatsoever, whether terminated voluntarily or
involuntarily.
1.11 "Person" means an individual or a corporation, partnership,
limited liability company, joint venture, trust, unincorporated
organization, association or other form of business or legal entity.
1.12 "Territory" means Colorado, Georgia, Illinois, Indiana,
Kentucky, Michigan, Missouri, North Carolina, Ohio, Tennessee, Texas,
Virginia and Wyoming and any other state in which the Midland Principal
engages in the Business on behalf of Regency or any Affiliate of Regency.
1.13 "Third Party Business" means acting as leasing agent for and/or
managing Grocery Properties that are owned by third parties.
ARTICLE 2: COVENANTS NOT TO COMPETE
AND NOT TO SOLICIT
2.1 Protection of Business Interest. For purposes of this Article
2, 2.6, the parties hereto agree that:
(a) The Midland Principal has substantial relationships with
existing customers of the Property Entities and Joint Ventures, including
the Kroger Co. and its Affiliates, and will continue to have such
relationships with customers in the course of his employment with Regency
or its Affiliates;
(b) Such relationships with customers will constitute a
legitimate business interest of Regency and/or its Affiliates and are a
critical inducement to entering the Contribution Agreement; and
(c) The restrictive covenants contained in this Article 2, 2.6
support such legitimate business interest, are reasonable in time and
place, are not overly broad, are reasonably necessary to protect such
interest, do not impose an unreasonable restraint on the Midland Principal
and are supported by adequate consideration.
2.2 Agreement to Not Compete. (a) At any time that the Midland
Principal is an Employee of Regency or any Affiliate of Regency, the
Midland Principal shall not directly or Indirectly engage in the Business
or Third Party Business other than on behalf of Regency or any such
Affiliate of Regency and (b) during the NonCompete Period, the Midland
Principal shall not directly or Indirectly engage in the Business in the
Territory In Conjunction With Another Midland Principal, other than in the
course of their employment by Regency or any Affiliate of Regency on
behalf of Regency or such Affiliate of Regency. Notwithstanding the
foregoing, if the Midland Principal is not an Employee of Regency or any
Affiliate of Regency at the time, the Midland Principal may engage during
the NonCompete Period in the Business in the Territory with respect to
supercenters of mass merchandisers (including but not limited to Walmart,
K-Mart and Target supercenters) In Conjunction With Another Midland
Principal who is not an Employee of Regency or any Affiliate of Regency at
the time.
2.3 Limitations. The obligations described in Section 2.2 shall not
preclude the Midland Principal from (i) owning publicly-traded securities
for investment purposes of any entity engaged in the Business or Third
Party Business in the Territory, in an amount not exceeding five percent
of the total number of outstanding securities of the same class, and (ii)
owning, developing or operating any Excluded Property that is listed on
Schedule 1.1.39 to the Contribution Agreement even though it constitutes a
Grocery Property.
2.4 No Solicitation. At any time that the Midland Principal is an
Employee of Regency or any Affiliate of Regency and during the
Nonsolicitation Period, the Midland Principal shall not directly or
Indirectly, on behalf of himself or any person, entity, corporation,
partnership, association, joint venture or other organization, hire,
solicit, attempt to solicit, induce, attempt to induce or assist others in
attempting to solicit (i) any employee of Regency, the Partnership, the
Third Party Management Company and/or any of their respective Affiliates
(collectively, the "Regency Entities") for the purpose of persuading such
employee to leave as an employee of any Regency Entity or (ii) The Kroger
Co. and any of its Affiliates for the purpose of persuading such client to
leave as a client of any Regency Entity or terminate any joint venture,
management, development or other contract with any Regency Entity, or
(iii) any Third Party Business client for which any Regency Entities
perform management and/or leasing services for more than one property, for
the purpose of inducing such client to terminate such services.
2.5 Remedies. The parties hereby declare and agree that any breach
by the Midland Principal of this Article 2, 2.6 will cause Regency and/or
the applicable Regency Entity irreparable injury and damage, and further
agree that it would be difficult, if not impossible, to calculate the
monetary damages that might accrue to Regency and/or the applicable
Regency Entity as a result of such breach. Accordingly, the Midland
Principal agrees that in the event of any breach or anticipated breach of
the terms or provisions of this Article 2, 2.6 Regency and/or the
applicable Regency Entity shall be entitled to injunctive or similar
equitable relief to prevent a breach of this Article, and the Midland
Principal waives the claim or defense that Regency and/or the applicable
Regency Entity have an adequate remedy at law. Nothing herein shall be
construed as prohibiting Regency and/or the applicable Regency Entity from
pursuing any other remedies available for such breach, including the
recovery of monetary damages to the extent calculable.
2.6 Blue Pencil. If any court of competent jurisdiction shall hold
that any restriction contained in this Article is unreasonable in duration
or geographic scope, such restriction shall be reduced to the extent
necessary in the opinion of such court to make it reasonable, the
intention of the parties being that Regency and the Regency Entities be
given the broadest protection allowed by law or equity with respect to
such provision in connection with their acquisition of the Assets.
ARTICLE 3: MISCELLANEOUS
3.1 Headings. The headings contained in this Agreement are for
reference purposes only and are in no way intended to describe, interpret,
define or limit the scope, extent or intent of this Agreement or any
provision hereof.
3.2 Pronouns and Plurals. Whenever required by the context, any
pronoun used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns, pronouns and
verbs shall include the plural and vice versa.
3.3 Costs of Litigation. The parties agree that the prevailing
party in any action brought with respect to or to enforce any right or
remedy under this Agreement shall be entitled to recover from the other
party or parties all reasonable costs and expenses of any nature
whatsoever actually incurred by the prevailing party in connection with
such action, including, without limitation, attorneys' fees (whether
incurred before or at trial or on appeal) and prejudgment interest.
3.4 Remedies Cumulative. The remedies provided in this Agreement
shall be cumulative and, except as otherwise expressly provided shall not
preclude the assertion or exercise of any other rights or remedies
available by law, in equity or otherwise.
3.5 Amendment and Modification. No amendment, modification or
discharge of, or supplement to, this Agreement shall be valid or binding
unless set forth in writing and duly executed and delivered by the party
against whom enforcement of the amendment, modification, or discharge is
sought.
3.6 Notices. All notices, demands, requests, and other
communications which may be or are required to be given, served, or sent
by any party to any other party pursuant to this Agreement shall be in
writing and shall be hand delivered, sent by overnight courier or mailed
by first-class, registered or certified U.S. mail, return receipt
requested and postage prepaid, or transmitted by facsimile, telegram,
telecopy or telex, addressed as follows:
(i) If to the Partnership: (ii) If to the Midland
Principal:
c/o Regency Realty Corporation Lee S. Wielansky
121 W. Forsyth Street, Suite 200 13462 Maple Ridge Ct.
Jacksonville, FL 32202 Creve Coeur, MO 63141
Attn: Bruce M. Johnson Telephone: 314/469-3663
Telephone: (904) 356-7000
Facsimile: (904) 634-3428
or to such other person or address as a party shall furnish to the other
parties in writing.
If personally delivered, such communication shall be deemed delivered
upon actual receipt; if electronically transmitted, such communication
shall be deemed delivered the next business day after transmission (and
sender shall bear the burden of proof of delivery); if sent by overnight
courier, such communication shall be deemed delivered upon receipt; and if
sent by U.S. mail, such communication shall be deemed delivered as of the
date of delivery indicated on the receipt issued by the relevant postal
service, or, if the addressee fails or refuses to accept delivery, as of
the date of such failure or refusal. Any party to this Agreement may
change its address for the purposes of this Agreement by giving notice
thereof in accordance with this Section 3.6.
3.7 Waivers. No delay or failure on the part of any party hereto in
exercising any right, power or privilege under this Agreement or under any
other documents furnished in connection with or pursuant to this Agreement
shall impair any such right, power or privilege or be construed as a
waiver of any default or any acquiescence therein. No single or partial
exercise of any such right, power or privilege shall preclude the further
exercise of such right, power or privilege, or the exercise of any other
right, power or privilege. No waiver shall be valid against any party
hereto unless made in writing and signed by the party against whom
enforcement of such waiver is sought and then only to the extent expressly
specified therein.
3.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.9 Governing Law. This Agreement, the rights and obligations of
the parties hereto, and any claim or disputes relating thereto, shall be
governed by and construed and enforced in accordance with the laws and
judicial decisions of the State of Missouri, without regard to conflict of
law principles and excluding the choice of law rules thereof.
3.10 Jurisdiction. The parties agree that any action hereunder shall
be taken in a state court of competent jurisdiction in St. Louis,
Missouri. The parties agree that should any action in enforcement of this
Agreement be undertaken in any federal court or in any other court outside
of St. Louis, Missouri, this Agreement shall serve as the filing party's
unconditional agreement to transfer said action, or dismiss it without
prejudice for refiling, to a proper state court in St. Louis, Missouri.
3.11 Assignment; Parties in Interest.
3.11.1 No party hereto shall assign its rights and/or
obligations under this Agreement, in whole or in part, whether by
operation of law or otherwise, without the prior written consent of
the other parties hereto; provided, that any of Regency, the
Partnership, or the Third Party Management Company, without the
consent of the Midland Principal, may assign its rights and/or
obligations under this Agreement, in whole or in part, to any of
their respective Affiliates.
3.11.2 Parties in Interest. This Agreement shall be binding
upon, inure to the benefit of, and be enforceable by the respective
heirs, executors, administrators, successors, legal representatives
and permitted assigns of the parties hereto. Nothing contained
herein shall be deemed to confer upon any other person any right or
remedy under or by reason of this Agreement.
3.12 Severability. Every provision of this Agreement is intended to
be severable. If any provision or term of this Agreement, or the
application of a provision or term to any person or circumstance, shall be
held invalid, illegal or unenforceable, the validity, legality or
enforceability of the other provisions and terms hereof, or the
application of such provision of such provision or term to persons or
circumstances other than those to which it is held invalid, illegal or
enforceable, shall not be affected thereby, and there shall be deemed
substituted for the provision or term at issue a valid, legal and
enforceable provision as similar as possible to the provision or term at
issue.
3.13 Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
THE PROVISIONS OF THIS SECTION 3.13 SHALL SURVIVE ANY TERMINATION OF THIS
AGREEMENT.
3.14 Entire Agreement. This Agreement, including the exhibits and
other documents referred to herein or furnished pursuant hereto,
constitutes the entire understanding and agreement among the parties
hereto with respect to the transactions contemplated herein, and
supersedes all prior oral or written agreements, commitments or
understandings with respect to the matters provided for herein.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have executed this Agreement on the date first written above.
REGENCY CENTERS, L.P. REGENCY REALTY GROUP, INC.
By: Regency Realty By: /s/ Bruce M. Johnson
Corporation, Bruce M. Johnson
Its General Partner Executive Vice President
/s/ Bruce M. Johnson
Bruce M. Johnson
Managing Director,
Executive Vice
President and CFO
REGENCY REALTY CORPORATION
By: /s/ Bruce M. Johnson
Bruce M. Johnson
Managing Director,
Executive Vice
President and CFO
MIDLAND PRINCIPAL
By: /s/ Lee S. Wielansky
Lee S. Wielansky