REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), made as of the
7th day of March, 1997, among REGENCY REALTY CORPORATION, a Florida
corporation (the "Company"), and the investors listed on the signature pages
hereto (referred to collectively as the "Investors" and individually as an
"Investor");
W I T N E S S E T H
WHEREAS, the Company, certain of the Investors and other persons are
parties to that certain Contribution Agreement and Plan of Reorganization dated
as of February 10, 1997 (the "Contribution Agreement"), pursuant to the terms of
which Branch Properties, L.P. agreed to contribute certain properties and assets
to the Partnership (as hereinafter defined) in exchange for Units (as
hereinafter defined) of limited partnership interest in the Partnership which
Branch Properties, L.P. is distributing to its partners; and
WHEREAS, the Units held by Investors will be exchangeable for common
stock of the Company in accordance with the Partnership Agreement; and
WHEREAS, Branch Realty, Inc. agreed to transfer the Units it receives
pursuant to the Contribution Agreement to the general partner of the Partnership
in exchange for common stock of the Company; and
WHEREAS, the Company and Investors agreed to execute and deliver this
Agreement at the first closing pursuant to the Contribution Agreement.
NOW, THEREFORE, in consideration of the premises, TEN DOLLARS ($10.00)
in hand paid by Investors to the Company and other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged by the parties, the parties intending to be legally bound, hereby
agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have
the following respective meanings:
"Affiliate" means, with regard to a Person, a Person that controls, is
controlled by, or is under common control with, such Person. For purposes of
this definition, "control" when used with respect to any Person means the power
to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "affiliated," "controlling" and "controlled" having meanings
correlative to the foregoing.
"Commission" means the Securities and Exchange Commission or any other
applicable federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Investor" means the Persons who are listed on the signature pages
hereto and their Permitted Transferees, including the Permitted Transferees
listed on Exhibit 1 but shall not include any Investor who no longer holds
Registrable Securities.
"Partnership" means Regency Retail Partnership, L.P., a Delaware
limited partnership.
"Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership of the Partnership, executed of even date herewith, as the
same may be hereafter further amended.
"Permitted Transferee" means any Person to whom Investors may assign
Units in accordance with Section 11.3(a) of the Partnership Agreement.
"Person" means an individual, partnership, corporation, limited
liability company, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Registrable Security" means (i) any Shares issued to an Investor
pursuant to the Contribution Agreement, and any Shares issuable to an Investor
upon redemption of Units pursuant to the Partnership Agreement, (ii) any other
securities issued by the Company in exchange for any such Shares and (iii) any
securities issued by the Company as a dividend or distribution on account of
Registrable Securities or resulting from a subdivision of the outstanding
Registrable Securities into a greater number of Shares (by reclassification,
stock split or otherwise). As to any particular Registrable Securities, such
securities will cease to be Registrable Securities when (a) they have been
distributed to the public pursuant to an offering registered under the
Securities Act or (b) they have been sold to the public through a broker, dealer
or market-maker in compliance with Rule 144 under the Securities Act or (c) they
have been transferred pursuant to Section to any Person who is not a Permitted
Transferee or (d) one year shall have passed after the date of death of an
Investor who is a natural person, at which time the Registrable Securities held
by such Investor at the date of his or her death shall cease to be Registrable
Securities, (e) the Company has delivered a new certificate or other evidence of
ownership not bearing the legend set forth on the Shares upon the initial
issuance thereof, and, in the opinion of counsel to the Company and Investors,
the subsequent disposition of such security shall not require the registration
or qualification under the Securities Act, or (f) such security has ceased to be
outstanding.
"Resale Rules" means Rule 144 promulgated by the Commission or any
successor to such rule or any other rule or regulation of the Commission that
may at any time permit the Investor to sell its Shares to the public without
registration.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Shares" mean the Company's shares of voting Common Stock, $0.01 par
value per share.
"Shelf Prospectus" shall mean the prospectus included in the Shelf
Registration Statement, including any preliminary prospectus, and any amendment
or supplement thereto, including any
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supplement relating to the terms of the offering of any portion of the
Registrable Securities covered by the Shelf Registration Statement, and in each
case including all material incorporated by reference therein.
"Shelf Registration Statement" shall mean a registration statement of
the Company (and any other entity required to be a registrant with respect to
such registration statement pursuant to the requirements of the Securities Act)
that covers all of the Registrable Securities to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act, or any similar
rule that may be adopted by the Commission, and all amendments (including
post-effective amendments) to such registration statement, and all exhibits
thereto and materials incorporated by reference therein.
"Unit" shall have the meaning given to such term in the Partnership
Agreement.
2. SHELF REGISTRATION RIGHTS.
2.1 Shelf Registration.
2.1.1 Request. The Company shall cause to be filed on the
first business day following the 420th day after the First Closing Date
(as defined in the Contribution Agreement), or as soon as practicable
thereafter, a Shelf Registration Statement providing for the sale by
the Investors of all of the Registrable Securities in accordance with
the terms hereof and will use its reasonable efforts to cause such
Shelf Registration Statement to be declared effective by the Commission
as soon as practicable thereafter. The Company agrees to use its
reasonable efforts to keep the Shelf Registration Statement with
respect to the Registrable Securities continuously effective so long as
any Investor holds Registrable Securities; provided, however, that at
any time after the Shelf Registration Statement becomes effective the
number of Registrable Securities outstanding is less than 12,500, then
the Investors owning the remaining Registrable Securities shall be
given notice that the Shelf Registration will be permitted to lapse in
not less than 90 days, after which 90-day period, the Company's
obligations under this Section shall cease. Subject to Section and
Section , the Company further agrees to amend the Shelf Registration
Statement if and as required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or any rules and
regulations thereunder; provided, however, that the Company shall not
be deemed to have used its reasonable efforts to keep the Shelf
Registration Statement effective during the applicable period if it
voluntarily takes any action that would result in the Investors not
being able to sell Registrable Securities covered thereby during that
period, unless such action is required under applicable law or the
Company has filed a post-effective amendment to the Shelf Registration
Statement and the Commission has not declared it effective or except as
otherwise permitted by the last three sentences of Section . In the
event that all the Subsequent Closings (as defined in the Contribution
Agreement) have not yet occurred at the time of the filing of a Shelf
Registration Statement hereunder, such registration statement also
shall include the maximum estimated number of Shares that Regency
reasonably anticipates could constitute Registrable Securities as a
result of the remaining Subsequent Closings, and if the number of
Registrable Securities actually issued at all Subsequent Closings
exceeds the number of shares covered by the registration statement,
Regency shall file an amendment increasing the number of Shares covered
by the Shelf Registration Statement, or shall file a new registration
statement for the additional Shares.
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2.2 Registration Procedures. In connection with the obligations
of the Company with respect to the Shelf Registration Statement
contemplated by this Article , the Company shall:
2.2.1 prepare and file with the Commission a Shelf
Registration Statement with respect to such securities, which Shelf
Registration Statement (i) shall be available for the sale of the
Registrable Securities in accordance with the intended method or
methods of distribution by the Investors and (ii) shall comply as to
form in all material respects with the requirements of the applicable
form and include all financial statements required by the Commission to
be filed therewith;
2.2.2 subject to the last three sentences of this Section and
Section hereof, (i) prepare and file with the Commission such
amendments to such Registration Statement as may be necessary to keep
such Registration Statement effective for the applicable period; (ii)
cause the Shelf Prospectus to be amended or supplemented as required
and to be filed as required by Rule 424 or any similar rule that may be
adopted under the Securities Act; (iii) respond as promptly as
practicable to any comments received from the Commission with respect
to the Shelf Registration Statement or any amendment thereto; and (iv)
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Shelf Registration
Statement during the applicable period in accordance with the intended
method or methods of distribution by the Investors. Notwithstanding
anything to the contrary contained herein, the Company shall not be
required to take any of the actions described in clauses (i), (ii) or
(iii) in this Section , Section or Section with respect to the
Registrable Securities (x) to the extent that the Company is in
possession of material non-public information that it deems advisable
not to disclose eg., it is engaged in active negotiations or planning
for a material merger or acquisition or disposition transaction, and it
delivers written notice to the Investors to the effect that the
Investors may not make offers or sales under the Shelf Registration
Statement for a period not to exceed ninety (90) days from the date of
such notice (but not to exceed 180 days during any twelve-month
period), and (y) unless and until the Company has received a written
notice (a "Shelf Registration Notice") from the Investors that they
intend to make offers or sales under the Shelf Registration Statement
as specified in such Shelf Registration Notice; provided, however, that
the Company shall have ten (10) business days to prepare and file any
such amendment or supplement after receipt of the Shelf Registration
Notice. Once the Investors have delivered a Shelf Registration Notice
to the Company, the Investors shall promptly provide to the Company
such information as the Company reasonably requests in order to
identify the method of distribution in a post-effective amendment to
the Shelf Registration Statement or a supplement to the Shelf
Prospectus. The Investors also shall notify the Company in writing upon
completion of such offer or sale or at such time as the Investors no
longer intend to make offers or sales under the Shelf Registration
Statement, in which case the Company's right not to take action by
reason of this clause (y) shall again apply;
2.2.3 furnish to the Investors, without charge, such numbers
of copies of the Shelf Registration Statement, the Shelf Prospectus and
such other documents, as the Investors may reasonably request in order
to facilitate the sale or other disposition of the Registrable
Securities owned by the Investors; the Company consents to the use of
the most recent Shelf Prospectus and any amendment or supplement
thereto by the Investors of Registrable Securities in connection with
the offering and sale of the Registrable Securities covered by the
Shelf Prospectus or amendment or supplement thereto;
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2.2.4 use its reasonable efforts to register and qualify the
securities covered by the Shelf Registration Statement under all
applicable state securities or blue sky laws of such jurisdictions as
the Investors shall reasonably request, keep each such registration or
qualification effective during the period such Shelf Registration
Statement is required to be kept effective or during the period offers
or sales are being made by the Investors after they have delivered a
Shelf Registration Notice to the Company, whichever is shorter, and do
any and all other acts and things reasonably requested by the Investors
to assist the Investors to consummate the sale or other disposition in
such jurisdictions of the Registrable Securities owned by the
Investors, except that the Company shall not for any such purpose be
required to do business as a foreign corporation in any jurisdiction
wherein it is not so qualified or to file therein any general consent
to service of process;
2.2.5 otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make available
to its security holders, as soon as reasonably practicable, an earning
statement covering the period of at least twelve months, beginning with
the first fiscal quarter beginning after the effective date of the
Shelf Registration Statement, which earning statement shall satisfy the
provisions of Section 11(a) of the Securities Act;
2.2.6 use its reasonable efforts to list such securities on
any securities exchange on which any Shares are then listed, if the
listing of such securities is then permitted under the rules of such
exchange;
2.2.7 if the Investors intend to dispose of their securities
through an underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter or underwriters of such
underwritten offering provided that such underwriter(s) are reasonably
acceptable to the Company, including, without limitation, obtaining an
opinion of counsel to the Company and a "comfort letter" from the
independent public accountants to the Company in the usual and
customary form for such underwritten offering;
2.2.8 notify the Investors promptly and, if requested by the
Investors, confirm in writing, (i) when the Shelf Registration
Statement and any post-effective amendments thereto have become
effective, (ii) when any amendment or supplement to the Shelf
Prospectus has been filed with the Commission, (iii) of the issuance by
the Commission or any state securities authority of any stop order
suspending the effectiveness of the Shelf Registration Statement or any
part thereof or the initiation of any proceedings for that purpose,
(iv) if the Company receives any notification with respect to the
suspension of the qualification of the Registrable Securities for offer
or sale in any jurisdiction or the initiation of any proceeding for
such purpose, and (v) at any time when a Shelf Prospectus is required
to be delivered under the Securities Act, of the happening of any event
of which it has knowledge as a result of which the Shelf Registration
Statement or the Shelf Prospectus, as then in effect, contains an
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
2.2.9 make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of the Shelf Registration
Statement or any part thereof as promptly as possible;
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2.2.10 furnish to the Investors after they have delivered a
Shelf Registration Notice to the Company, without charge, at least one
conformed copy of the Shelf Registration Statement and any
post-effective amendment thereto (without documents incorporated
therein by reference or exhibits thereto, unless requested);
2.2.11 cooperate with the Investors to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any Securities Act legend; and
enable certificates for such Registrable Securities to be issued for
such numbers of shares as the Investors may reasonably request at least
two business days prior to any sale of Registrable Securities;
2.2.12 subject to the last three sentences of Section hereof,
upon the occurrence of any event contemplated by clause (x) of Section
or clause (v) of Section hereof, use its reasonable efforts promptly to
prepare and file an amendment or a supplement to the Shelf Prospectus
or any document incorporated therein by reference or prepare, file and
obtain effectiveness of a post-effective amendment to the Shelf
Registration Statement, or file any other required document, in any
such case to the extent necessary so that, as thereafter delivered to
the purchasers of the Registrable Securities, such Shelf Prospectus as
then amended or supplemented will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances under which
they are made, not misleading;
2.2.13 make available for inspection by the Investors after
they have provided a Shelf Registration Notice to the Company and any
counsel, accountants or other representatives retained by the Investors
during normal business hours and upon reasonable prior notice all
financial and other records, pertinent corporate documents and
properties of the Company and cause the officers, directors and
employees of the Company to supply all such records, documents or
information reasonably requested by the Investors, counsel, accountants
or representatives in connection with the Shelf Registration Statement;
provided, however, that such records, documents or information which
the Company determines in good faith to be confidential and notifies
the Investors, counsel, accountants or representatives in writing that
such records, documents or information are confidential shall not be
disclosed by the Investors, counsel, accountants or representatives
unless (i) such disclosure is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, or (ii) such records,
documents or information become generally available to the public other
than through a breach of this Agreement;
2.2.14 a reasonable time prior to the filing of any Shelf
Registration Statement or any amendment thereto, or any Shelf
Prospectus or any amendment or supplement thereto, provide copies of
such document (not including any documents incorporated by reference
therein unless requested) to the Investors after they have provided a
Shelf Registration Notice to the Company; and
2.2.15 provide a CUSIP number for all Registrable Securities,
not later than the effective date of a Shelf Registration Statement.
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2.3 Piggyback and Demand Registration Rights Under Certain
Circumstances.
2.3.1 Piggyback Registration. In the event that the Shelf
Registration shall not be declared effective within 60 days after the
filing thereof with the Commission, or in the event that it shall cease
to be effective during any period while it is required to be kept
effective hereunder (any such period during which the Shelf
Registration Statement is not effective is referred to as the
"Noneffective Period"), if the Company at any time during a
Noneffective Period proposes to register any of its shares of Common
Stock under the Securities Act (other than a registration on Form S-4,
Form S-8 or any successor or similar forms), and in the case of a
proposed registration for the account of any Person where the Company's
obligations as of the date of this Agreement to register the securities
held by such other Person do not prohibit the inclusion of securities
held by third parties, in such event, the Company shall give prompt,
written notice to Investors who hold a record in the Registrable
Securities. Upon the written request of any Investor made within a
reasonable period of time as specified in the Company's Notice (which
request shall specify the Registrable Securities intended to be
disposed of by the Investor and the intended method of distribution
thereof), the Company shall use its reasonable efforts to effect the
registration (the "Piggyback Registration") under the Securities Act of
all Registrable Securities which the Company has been so requested to
register by the Investors thereof, to the extent requisite to permit
the disposition of the Registrable Stock so to be registered in
accordance with the intended methods of distribution thereof specified
in such requests; provided that (i) if, at any time after giving
written notice of its intention to register any securities and prior to
the effective date of the registration statement filed in connection
with such registration, the Corporation shall determine for any reason
not to register such securities, or if the Shelf Registration shall be
declared effective, the Company may, at its election, give written
notice of such determination to all such Holders who hold of record any
Registrable Stock and, thereupon, shall be relieved of its obligation
to register any Registrable Securities in connection with such
registration, and (ii) in case of a determination by the Company to
delay registration of its securities, the Corporation shall be
permitted to delay the registration of Registrable Securities for the
same period as the delay in registering such other securities. No
Piggyback Registrations effected under this Section shall relieve the
Company of its obligations to effect the Shelf Registration.
2.3.2 Priority in Piggyback Registrations. If the managing
underwriter for a Piggyback Registration which involves an underwritten
offering shall advise the Corporation in writing that, in its opinion,
the number of shares of stock of the Corporation (including Registrable
Stock) requested to be included in such registration by the holders
thereof (including the Holders) exceeds the number of shares of stock
of the Corporation (the "Sale Number") which can be sold in an orderly
manner in such offering within a price range acceptable to the
Corporation and the holders of shares of stock of the Corporation
requested to be registered in such offering, the Corporation shall
include (i) first, all shares of stock of the Corporation that the
Corporation proposes to register for its own account and (ii) second,
to the extent that the number of shares of stock of the Corporation to
be included by the Corporation is less than the Sale Number, all
Registrable Stock requested to be included by the Investors and all
other shares of stock of the Corporation requested to be included by
the holders thereof, pro rata based on the relative numbers of shares
requested to be included by each.
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2.3.3 Demand Registrations for the Benefit of the Investors.
(a) Requests for Demand Registration. In the event
that the Company is not permitted to file the Shelf
Registration Statement in accordance with the provisions of
Section 2 hereof, the Investors during any Noneffective Period
shall additionally become entitled to the rights of this
Section 2.3.3. Accordingly, each of (i) the Investors (other
than Opportunity Capital Partners II Limited Partnership
("OCP")) (the "Non-OCP Investors") who hold in the aggregate
50% or more of such Non-OCP Investors' Registrable Securities
and (ii) OCP, by written request delivered to the Company, may
request registration under the Securities Act of all or any
portion of the Registrable Securities held by such Investor(s)
for sale in the manner specified in such request. Each initial
request for a registration pursuant to this Section 2.3.3
shall specify the number of Registrable Securities requested
to be registered and sold by such Non-OCP Investors and/or
OCP, as the case may be, and the method of disposition to be
employed. Within 10 days after receipt of any request for
registration under this Section 2.3.3, the Company shall
promptly give written notice to any other Investor from whom
notice has not been received and shall use its commercially
reasonable efforts to include in such registration (for sale
in accordance with the method of disposition specified in the
initial request) all Registrable Securities with respect to
which the Company has received written requests for inclusion
therein within 20 days after the receipt of the notice from
the Company, which written requests shall specify the number
of Registrable Securities to be included. Any request for
registration pursuant to this Section 2.3.3 shall be referred
to herein as a "Demand Registration Request" and all
registrations requested pursuant to this Section 2.3.3 are
referred to herein as "Demand Registrations."
(b) Number of Demand Registrations. The Company,
pursuant to this Section 2.3.3, shall be required to effect up
to (i) three (3) Demand Registrations for the Non-OCP
Investors, and (ii) three (3) Demand Registrations for OCP.
Notwithstanding anything to the contrary contained herein, a
registration shall count as a Demand Registration only when a
registration statement covering all Registrable Securities
covered by such Demand Registration Request shall have become
effective (except that if, after it has become effective, the
offering of Registrable Securities pursuant to such
registration statement is interfered with by any stop order,
injunction or action of the SEC not occasioned by the fault of
any Investor, such registration shall be deemed not to have
been effected unless such stop order, injunction or other
order or request shall subsequently have been vacated or
otherwise removed), and if such method of disposition is a
firm commitment underwritten public offering, all such
Registrable Securities shall have been sold pursuant thereto;
provided, however, that if a registration statement filed by
the Company pursuant to a Demand Registration Request shall be
abandoned or withdrawn at the behest of the Non-OCP Investors
or OCP, as the case may be, then, unless such Investor(s)
shall, promptly upon receipt of a request by the Company
therefor supported by an invoice setting forth the expenses in
reasonable detail, reimburse the Company for the expenses
directly attributable to the Demand Registration, the Company
shall be deemed to have effected a Demand Registration.
(c) Minimum Offering Amount. The Company shall not be
required to register Registrable Securities pursuant to this
Section 2.3.3 unless the aggregate current market price of all
Registrable Securities covered by the Demand Registration Request
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shall be $500,000 or more (unless and to the extent the
Non-OCP Investors or OCP, as the case may be, shall hold in
the aggregate less than $500,000 of Registrable Securities, in
which case such minimum offering amount shall be equal to the
amount of Registrable Securities so held).
(d) Selection of Underwriters. If the method of
disposition specified in a Demand Registration Request shall
be an underwritten public offering, the Company may designate
the managing underwriter of such offering, subject to the
approval of the Non-OCP Investors or OCP, as the case may be,
which approval shall not be unreasonably withheld.
(e) Priority on Demand Registrations. The Company
shall be entitled to include in any registration statement
referred to in this Section 2.3.3, for sale in accordance with
the method of disposition specified in the Demand Registration
Request, shares of common stock to be sold by the Company for
its own account or by other shareholders of the Company for
their account. Nonetheless, whether or not the Company desires
to include any such additional shares in a Demand
Registration, if such method of disposition is an underwritten
public offering and the managing underwriters advise the
Company in writing that in their opinion the number of
securities requested to be included in such registration
exceeds the Sale Number (as defined in Section 2.3.2 hereof),
then the Company will limit the number of shares included in
such registration to the Sale Number, and the shares
registered shall be selected in the following order of
priority: (i) first, Registrable Securities covered by the
Demand Registration Request, pro rata among the Investors
making the Demand Registration request, based on the relative
number of Registrable Securities requested to be included by
each, (ii) second, securities the Company proposes to sell and
(iii) third, other securities requested to be included in such
registration.
2.4 Expenses.
2.4.1 Except as set forth in Section , all expense incurred in
the registration of Registrable Securities in accordance with this
Agreement shall be paid by the Company. The expenses shall include,
without limitation, printing and photocopying expenses, all
registration and filing fees under federal and state securities laws,
expenses of complying with the securities or blue sky laws of any
jurisdictions, fees and expenses of Company counsel, and the fees and
expenses of the Company's independent auditors in connection with any
comfort letter required by any underwriters.
2.4.2 The Investors shall be responsible for underwriting and
brokerage discounts and commissions, stock transfer taxes and fees and
disbursements of any counsel for the holders of Registrable Securities.
2.5 Indemnification. In the event any Registrable Securities are
included in a Registration Statement under this Section :
2.5.1 Indemnity by Company. Without limitation of any other
indemnity provided to any Investor, to the extent permitted by law, the
Company will indemnify and hold harmless each Investor and, as
applicable, its directors, officers, employees, agents and partners and
each
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Person, if any, who controls such Investor (within the meaning of the
Securities Act), against any losses, claims, damages, liabilities and
expenses (joint or several) to which they may become subject under the
Securities Act or other federal or state law, insofar as such losses,
claims, damages, liabilities and expenses (or actions in respect
thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation"): (i)
any untrue statement or alleged untrue statement of a material fact
contained in any registration statement (including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto), (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading, (iii) any violation or alleged
violation by the Company of the Securities Act, any state securities
law or any rule or regulation promulgated under the Securities Act or
any state securities law, (iv) any and all loss, liability, claim,
damage and expense whatsoever, as reasonably incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or alleged untrue statement or any omission or alleged
omission, if such settlement is effected with the written consent of
the Company, or (v) subject to the limitations set forth in Section ,
any and all reasonable expense whatsoever, as incurred (including
reasonable fees and disbursements of counsel), in investigating,
preparing or defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or threatened,
in each case whether or not a party, or any claim whatsoever based upon
any such untrue statement or alleged untrue statement or omission or
alleged omission, to the extent that any such expense is not paid under
subparagraphs (i) through (v) above, and the Company will reimburse
such Investor and its directors, officers, employees, agents and
partners, and any controlling person thereof, for any reasonable legal
or other expenses incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, expense or action;
provided, however, that the Company shall not be liable in any such
case for any such loss, claim, damage, liability, expense or action to
the extent that it arises out of or is based upon a Violation that
occurs in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration by any
such Investor or controlling person thereof, and provided, further,
that the Company shall not be liable to the extent that any such loss,
claim, damage, liability, expense or action arises out of such person's
failure to send or give a copy of the final prospectus or supplement to
the persons asserting an untrue statement or alleged untrue statement
or omission or alleged omission at or prior to the written confirmation
of the sale of Registrable Securities to such person if such statement
or omission was corrected in such final prospectus or supplement. In
connection with an underwritten offering, the Company will indemnify
such underwriters and their directors, officers and each Person, if
any, who controls such underwriters (within the meaning of the
Securities Act) to the same extent as indemnification is provided to
the Investors.
2.5.2 Indemnity by Investors. In connection with any
registration statement in which an Investor is participating, each such
Investor will furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection
with any such registration statement or prospectus and, to the extent
permitted by law, will indemnify the Company, its trustees, officers,
employees and agents and each Person who controls the Company (within
the meaning of the Securities Act) against any losses, claims, damages,
liabilities and expenses resulting from any Violation which occurs
solely in reliance upon and in conformity with any information or
affidavit so furnished in writing by such Investor expressly for use in
10
connection with such registration; provided, that the obligation to
indemnify will be several and not joint and several with any other
Person and will be limited to the net amount received by such Investor
from the sale of Registrable Securities pursuant to such registration
statement.
2.5.3 Notice; Right to Defend. Promptly after receipt by an
indemnified party under this Section of notice of the commencement of
any action (including any governmental action), such indemnified party
will, if a claim in respect thereof is to be made against any
indemnifying party under this Section , deliver to the indemnifying
party a written notice of the commencement thereof and the indemnifying
party shall have the right to participate in, and, if the indemnifying
party agrees in writing that it will be responsible for any costs,
expenses, judgments, damages and losses incurred by the indemnified
party with respect to such claim, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an
indemnified party shall have the right to retain its own counsel, with
reasonable fees and expenses to be paid by the indemnifying party, if
the indemnified party reasonably believes that representation of such
indemnified party by the counsel retained by the indemnifying party
would be inappropriate due to actual or potential differing interests
between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to
the indemnifying party within a reasonable time of the commencement of
any such action shall relieve such indemnifying party of any liability
to the indemnified party under this Section only if and to the extent
that such failure is prejudicial to its ability to defend such action,
and the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any
indemnified party other than under this Section . If the indemnifying
party does not assume the defense of any such action or proceeding,
after having received the notice referred to in the first sentence of
this paragraph, the indemnifying party will pay the reasonable fees and
expenses of counsel (which shall be limited to a single law firm) for
the indemnified party. In such event, however, the indemnifying party
will be liable for any settlement effected without the written consent
of such indemnifying party. If the indemnifying party assumes the
defense of any such action or proceeding in accordance with this
paragraph, such indemnifying party shall not be liable for any fees and
expenses of counsel for the indemnified party incurred thereafter in
connection with such action or proceeding, except as set forth in the
proviso in the first sentence of this Section .
2.5.4 Contribution. If the indemnification provided for in
this Section is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any loss,
liability, claim, damage or expense referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative
fault of the indemnifying party on the one hand and of the indemnified
party on the other hand in connection with the statements or omissions
which resulted in such loss, liability, claim, damage or expense as
well as any other relevant equitable considerations. The relevant fault
of the indemnifying party and the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material
fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. Notwithstanding the foregoing, the amount any
Investor shall be obligated to contribute pursuant to this Section
shall be limited to an amount equal to the net proceeds to such
Investor of
11
the Registrable Securities sold pursuant to the registration statement
which gives rise to such obligation to contribute (less the aggregate
amount of any damages which the Investor has otherwise been required to
pay in respect of such loss, claim, damage, liability or action or any
substantially similar loss, claim, damage, liability or action arising
from the sale of such Registrable Securities). Notwithstanding the
foregoing, no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section . each person, if any,
who controls any Investor within the meaning of Section 15 of the
Securities Act and partners, directors and officers of any Investor, as
applicable, shall have the same rights to contribution as that
Investor, and each director of the Company, each officer of the Company
who signed the Shelf Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the
Securities Act shall have the same rights to contribution as the
Company.
2.5.5 Survival of Indemnity. The indemnification provided by
this Section shall be a continuing right to indemnification and shall
survive the registration and sale of any securities by any Person
entitled to indemnification hereunder and the expiration or termination
of this Agreement.
2.6 Rule 144. In order to permit the Investors to sell the Registrable
Securities they hold, if they so desire, from time to time pursuant to Rule 144
under the Securities Act, or any successor to such rule, the Company shall use
reasonable efforts to (i) make available adequate current public information and
(ii) file with the Commission in a timely manner all reports and other documents
required of the Company under the Exchange Act. In connection with any sale,
transfer or other disposition by any Investor of Registrable Securities pursuant
to Rule 144 under the Securities Act, the Company shall cooperate with such
Investor to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any Securities
Act legend, and enable certificates for such Registrable Securities to be sold
for such number of shares and registered in such names as the selling Investors
may reasonably request at least two business days prior to any sale of
Registrable Securities, provided that such Investors provide counsel to the
Company with seller's and broker's representation letters customary for Rule 144
sales.
2.7 Limitations.
2.7.1 The Investors shall not, without prior written consent
of the Company, effect any public sale or distribution (including sales pursuant
to the Resale Rules under the Securities Act) of securities of the Company
during any period commencing 15 days prior to the proposed filing date of a
preliminary prospectus supplement for a shelf registration for an underwritten
offering and ending 60 days following the date of filing of the final prospectus
supplement (or 75 days following the date of filing of the preliminary
prospectus, if sooner) filed by the Company for the benefit of Security Capital
Holdings, S.A., its assigns or pledgees (collectively, "Security Capital") (as
to which the Company shall give at least 90 days' prior written notice to the
Investors), provided, however, that the Investors' obligations under this
Section shall be limited to two occasions. The Investors shall not, without
prior written consent of the Company, effect any public sale or distribution
(including sales pursuant to the Resale Rules under the Securities Act) of
securities of the Company during any period commencing 30 days prior to the
proposed filing date of a registration statement or a preliminary prospectus
supplement for a shelf registration and ending 90 days following the effective
date of such registration statement or the date of filing of the final
prospectus supplement, in either case for an underwritten offering of equity
12
securities of the Company for the account of the Company (as to which the
Company shall give at least 90 days' prior written notice to the Investors).
2.7.2 As a condition to the inclusion of such Investor's
Registrable Securities in a registration statement hereunder, each Investor
agrees to provide written notice to the Company within ten days after the end of
any calendar quarter in which the Investor has made any transfers of Registrable
Securities, stating the number transferred during such quarter and the date and
type (e.g., open market sale) of each transfer.
3. PUT OPTION. All capitalized terms in this Section 3 not
otherwise defined in this Agreement shall have the meanings set forth in the
Partnership Agreement.
3.1 General. In the event that the Company's shareholders do not
approve the issuance of Shares pursuant to the transactions contemplated by the
Contribution Agreement in accordance with Rule 312.03 of the New York Stock
Exchange's Listed Company Manual within one year after the First Closing, the
Registrable Securities of each Investor shall be limited to the Maximum
Aggregate Shares for such Investor described on Schedule 3.1 attached hereto,
and any remaining Shares issuable to such Investor shall be deemed "Unlisted
Securities" hereunder. In such case, beginning on the first anniversary of the
First Closing each Investor shall have the right to require the Company to
purchase all or, from time to time, any portion of such Investor's Unlisted
Securities, in exchange for an amount equal to the per Share Value thereof (the
"Put Payment"), by delivering written notice to the Company. An Investor may not
exercise such put option for less than one thousand (1,000) Unlisted Securities
or if the Investor holds less than one thousand (1,000) Unlisted Securities, all
of the Unlisted Securities held by such Investor. Upon receipt of the Investor's
Put Notice, on the Put Date (as hereinafter defined), the Company shall pay the
Investor exercising the put option an amount in cash equal to the Put Payment.
3.2 Put Notice. In order to exercise the right to require the Company
to purchase all or any portion of its Unlisted Securities, the Investor
exercising its put option shall surrender any certificates representing such
Unlisted Securities, duly endorsed if the Company shall so require or
accompanied by appropriate instruments of transfer satisfactory to the Company,
at the Company's principal office, together with written notice that the
Investor irrevocably elects to sell such Unlisted Securities to the Company.
3.3 Put Date. The closing of the purchase and sale of the Unlisted
Securities put to the Company shall take place on the tenth Business Day after
the Company receives the Put Notice, or on such other day as the Investor
exercising the Put Option and the Company shall agree in writing. Upon the
payment of the Put Payment, the Company shall be treated for all purposes as the
owner of the Unlisted Securities to which the Put Option has been exercised.
4. MISCELLANEOUS.
4.1 Notices.
4.1.1 All communications under this Agreement shall be in
writing and shall be delivered by telefax (with appropriate request for
assurance of receipt, and a confirmation copy sent concurrently by
mail), reputable overnight courier or shall be mailed by registered or
certified mail, postage prepaid,
13
(a) if to the Company, at:
Regency Realty Corporation
121 W. Forsyth Street, Suite 200
Jacksonville, Florida 32202
Attention: Mr. Martin E. Stein, Jr.
or at such other address as it may have furnished in writing
to the holders of Registrable Securities at the time
outstanding, or
(b) if to any Person who is the registered holder of
Registrable Securities, to the address of such Investor as it
appears in the stock ledger of the Company or in the records
of the Partnership.
4.1.2 Any notice so addressed shall be deemed given when
received.
4.2 Notices of Sale. Investors shall, promptly upon the Company's
written request from time to time advise the Company of the number of
Registrable Securities they continue to hold.
4.3 Successors and Assigns. Except as otherwise expressly provided
herein, this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the Company and each of the Investors. Without the
prior written consent of the Company, the rights of the Investors may not be
transferred other than to a Permitted Transferee.
4.4 Amendment and Waiver. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, but only with the
written consent of the Company and the Investors holding a majority of the
Registrable Securities; provided, however, that no such amendment or waiver
shall take away any registration right of any Investor or reduce the amount of
reimbursable costs to any Investor in connection with any registration hereunder
without the consent of such Investor; further provided, however, that without
the consent of any other Investor, any Investor may from time to time enter into
one or more agreements amending, modifying or waiving the provisions of this
Agreement if such action does not adversely affect the rights or interest of any
other Investor. No delay on the part of any party in the exercise of any right,
power or remedy shall operate as a waiver thereof, nor shall any single or
partial exercise by any party of any right, power or remedy preclude other or
further exercise thereof, or the exercise of any other right, power or remedy.
4.5 Counterparts. One or more counterparts of this Agreement may be
signed by the parties, each of which shall be an original but all of which
together shall constitute one and the same instrument.
4.6 Governing Law. This Agreement shall be construed in accordance with
and governed by the internal laws of the State of Florida, which shall prevail
in all matters arising under or in connection with this Agreement.
4.7 Invalidity of Provisions. If any provision of this Agreement is or
becomes invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not be
affected thereby.
14
4.8 Headings. The headings in this Agreement are for convenience of
reference only and shall not be deemed to alter or affect the meaning or
interpretation of any provisions hereof.
4.9 Time of the Essence. Time is of the essence to this Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date and year first above written.
COMPANY: INVESTORS:
REGENCY REALTY CORPORATION BRANCH PROPERTIES, L.P.
By: Branch Realty, Inc., General Partner
By: /s/ Bruce M. Johnson
Bruce M. Johnson By: /s/ Richard H. Lee
Executive Vice President Name: Richard H. Lee
Title: Executive Vice President
and Secretary
INVESTORS:
BRANCH REALTY, INC.
By: /s/ Richard H. Lee
Name: Richard H. Lee
Title: Executive Vice President
and Secretary
15
ADDITIONAL INVESTOR (upon such person's execution hereof):
/s/ Arnold von Bohlen und Halbach Date: March 7, 1997
------------------------------
Arnold von Bohlen und Halbach
16
EXHIBIT 1
PERMITTED TRANSFEREES
Opportunity Capital Corporation
LaSalle Advisors Limited Partnership
The State of Oregon Public Employees' Retirement Fund
Rudolf Augstein
BAF Holding Corp.
Dr. Michael Beier
Rebie M. Benedict
Roger Biard
Hans J. Bidermann
Dr. Axel Born
Branch Investment Company, Inc.
Branch Investment Group, Inc.
Irene Graats Branch as Trustee for Christopher M. Branch
u/a James Alexander Branch dated October 13, 1987
Irene Graats Branch as Trustee for George G. Branch
u/a James Alexander Branch dated October 13, 1987
Mr. J. Alexander Branch III
Branch/InterAllianz Realty Fund, L.P.
Stephen D. Broome
G. Owen Brown
Chris A. Case
Mary S. Close
Coro, Inc.
Dal Vast B.V., Inc.
Erika Dirtl
Katja Dirtl
Willi Dirtl
Euart Investment Company., Inc.
John F. Euart, Jr.
Dr. Albert Feichtner
Fontana Insurance Brokerage, Ltd.
Frascati Im-Und Export GmbH, Inc.
The Garlington Group Profit Sharing Trust
J. Peek Garlington, Jr.
Gardiner W. Garrard
Gehrke Investments, Ltd.
German-Hope Properties, Inc.
Mark Gottlieb
Nina Gretsch
Robert S. Griffith, Jr.
Griffith & Griffith
Dr. Ulrich Guntram
Dr. Helmut Hagemann
17
Dr. rer. nat. Gert Hagen
Warren R. Hall
Gerda Holm
Werner Holm
HOP Equities, Ltd.
Volker Jakobs
JH Holdings, Ltd.
Lawrence P. Kelly
Klaus Nottbohm Investments, Ltd.
A.J. Land, Jr.
Samuel P. Latone
Richard H. Lee
Dr. Michael Lichtenauer
John W. Lundeen, III
Harry E. Morgan
Dr. Michael Muth
Henk Nieuwenhuys
Peter Nunn
Dr. Arend Oetker
Opportunity Capital Partners II Limited Partnership
Patricia L. Pearlberg
Dr. Lutz Peters
Plaza Limited Partnership
Dr. Wilhelm Rall
Hermann-Hinrich Reemtsma
R.E.N.L., Ltd.
RHL Investment Company, Inc.
Hajo Riesenbeck
Franz und Rita Rohrbach
Roland Management, Inc.
Richard H. Ross
Dr. Bernhard Schwaighofer
Dr. Gerbert Schwaighofer
SDB Investment Company, Inc.
Smith Barney, Inc.,Successor Custodian
for Robert S. Griffith, Jr.
Hans Stegmann
Nicholas B. Telesca
Armin Timmermann
Dr. Lothar Tirala
Michael Ulmer
Michaele Ulmer
Gustav Adolph von Halem
Herbert von Halem
Gundolf von Hammerstein
Philipp von Hammerstein
Sophie von Hammerstein
Valerie von Hammerstein
18
Dr. Georg von Segesser
Dr. Renate Waclawiczek
Warren Investments, Inc.
WEN Investments, Inc.
West Shaw Properties, Inc.
Marianne Wittich
Hans Wolfgang Zanders
Stanley R. Zippin
\DOCS\SOFT\4267.7|03/06/97 9:48AM|JAXC17|LYK:dkm
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