EXHIBIT 8.3
SHAREHOLDER VOTING AGREEMENT
THIS SHAREHOLDER VOTING AGREEMENT, dated as of September 23, 1998, is
entered into by and among Regency Realty Corporation, a Florida corporation
("East"), Pacific Retail Trust, a Maryland real estate investment trust
("West"), Security Capital U.S. Realty, a Luxembourg corporation ("U.S.
Realty"), and its wholly-owned subsidiary, Security Capital Holdings, S.A., a
Luxembourg corporation ("SCH," and together with U.S. Realty, "Shareholder").
WHEREAS, as of the date hereof SCH beneficially owns 11,720,216 shares
of common stock, $0.01 par value per share ("East Common Stock"), of East (all
such shares and any shares of East Common Stock that hereafter become
beneficially owned by the SCH prior to the termination of this Agreement being
referred to herein as the "East Shares" and collectively with the West Shares,
the "Shares"), representing 45.96% of the issued and outstanding shares of East
Common Stock as of the date hereof;
WHEREAS, as of the date hereof SCH beneficially owns 46,985,458.985
shares of $0.01 par value per share ("West Common Stock"), of West (all such
shares and any shares of West Common Stock that hereafter become beneficially
owned by the SCH prior to the termination of this Agreement being referred to
herein as the "West Shares"), representing 69.93% of the issued and outstanding
shares of West Common Stock as of the date hereof;
WHEREAS, concurrently herewith, West and East are entering into an
Agreement and Plan of Merger (as such Agreement may hereafter be amended from
time to time, the "Merger Agreement"), pursuant to which, upon the terms and
subject to the conditions thereof, West will merge with and into East (the
"Merger"); and
WHEREAS, as a condition to the willingness of East and West to enter
into the Merger Agreement, each of East and West has requested that Shareholder
agree, and, in order induce East and West to enter into the Merger Agreement,
Shareholder has agreed, to the matters addressed herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
representations warranties, covenants and agreements set forth herein and in the
Merger Agreement, the parties hereto, intending to be legally bound, hereby
agree as follows:
1
ARTICLE I
Section 1.01. Voting of Shares; Further Assurances. Subject to the
terms and conditions of this Agreement, SCH will vote all of the East Shares and
West Shares, as the case may be, that it owns of record on the respective record
dates for voting at the Special Meetings (or will execute written consents with
respect to such Shares) (i) in favor of the adoption of the Merger Agreement and
approval of the Merger and the other transactions contemplated by the Merger
Agreement, (ii) against any East Alternative Proposal or West Alternative
Proposal (each as defined in the Merger Agreement), (iii) in favor of the
amendment of the Articles of Incorporation of East substantially in the form
attached hereto as Exhibit A (iv) in favor of the amendments to East's Long Term
Omnibus Plan increasing the shares available for award thereunder as
contemplated by the Merger Agreement, by such additional number as shares as may
be determined by the East Compensation Committee and making any other changes
necessary to permit East to assume West Options on the terms set forth in the
Merger Agreement and (v) in favor of any other matter necessary to the
consummation of the Merger and the other transactions contemplated by the Merger
Agreement and considered and voted upon at a Special Meeting (or as to which
written consents are solicited). SCH will cause any East Shares and West Shares,
as the case may be, owned by it beneficially, but not of record, on the
respective record dates for voting at the Special Meetings (or will cause
written consents to be executed with respect to such Shares) to be voted in
accordance with the foregoing. Shareholder acknowledges receipt and review of a
copy of the Merger Agreement prior to the execution thereof and hereof.
Section 1.02. No Solicitation. Subject to the terms and conditions of
this Agreement, prior to the Effective Time (as defined in the Merger
Agreement), (a) Shareholder shall not, and shall not permit any of its officers,
directors, employees, subsidiaries, agents or representatives (including,
without limitation, any investment banker, attorney or accountant retained by
it) to directly or indirectly, (i) initiate, solicit, or encourage, any
inquiries or the making or implementation of any proposal or offer (including,
without limitation, any proposal or offer to East's or West's shareholders) with
respect to an East Alternative Proposal or a West Alternative Proposal or (ii)
engage in any negotiations concerning, or provide any confidential information
or data to, or have any discussions with, any person relating to an East
Alternative Proposal or a West Alternative Proposal, or otherwise facilitate any
effort or attempt to make or implement an East Alternative Proposal or a West
Alternative Proposal; and (b) Shareholder will notify East and West immediately
if any such inquiries or proposals are received by, any such information is
requested from, or any such negotiations or discussions are sought to be
initiated or continued with, it, and East or West, as the case may be, will
notify Shareholder immediately if any such inquiries or proposals are received
by, any such information is requested from, or any such negotiations or
discussions are sought to be initiated or continued with, it; provided, however,
that the foregoing shall not prevent any discussions or other communications
between or among Shareholder, West, and East.
2
Section 1.03. Termination of Certain Restrictions in Certain Events. If
the West Board validly exercises any of its rights under clauses (i) through
(iv) of the first proviso to Section 5.4(b) of the Merger Agreement, Shareholder
shall be relieved of the prohibition set forth in clause (a)(ii) of Section 1.02
of this Agreement with respect to, but only with respect to, the particular West
Alternative Proposal and third party making it that gives rise to the West Board
exercising such rights and only for so long as the West Board continues to
exercise such rights. If the East Board validly exercises any of its rights
under the clauses (i) through (iv) of the first proviso to Section 5.4(a) of the
Merger Agreement, Shareholder shall be relieved of the prohibition set forth in
clause (a)(ii) of Section 1.02 of this Agreement with respect to, but only with
respect to, the particular East Alternative Proposal and third party making it
that gives rise to the East Board exercising such rights and only for so long as
the East Board continues to exercise such rights.
Section 1.04. Termination of Certain Agreements. As of the Effective
Time (as defined in the Merger Agreement), that certain Investor Agreement dated
as of October 20, 1995 between SCH and West shall terminate automatically,
without any action being required by SCH or West. Neither SCH nor West shall
thereafter have any further obligation under the Investor Agreement.
Section 1.05. Conduct of Business of West Management. Shareholder
hereby covenants that it shall cause West Management Company to act and carry on
its business in the usual, regular and ordinary course of business consistent
with past practice and with Section 5.2 of the Merger Agreement.
ARTICLE II
Section 2.01. Notices. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made as of the date delivered, mailed or transmitted, and shall be
effective upon receipt, if delivered personally, mailed by registered or
certified mail (postage prepaid, return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like changes of address) or sent by electronic transmission to the telecopier
number specified below:
If to East, to:
Regency Realty Corporation
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Xx.
Fax: (000) 000-0000
3
with a copy to:
Xxxxx & Lardner
0000 Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Fax: (000) 000-0000
If to West, to:
Pacific Retail Trust
0000 Xxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Fax: (000) 000-0000
If to Shareholder, to:
Security Capital U.S. Realty
00, Xxxxx x' Xxxx
X-0000 Xxxxxxxxxx
Attention: Xxxxx Xxxx
and with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxxx
Fax: (000) 000-0000
Section 2.02. Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 2.03. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all
4
other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforce, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
Section 2.04. Entire Agreement. This Agreement constitutes the entire
agreement of the parties and supersedes all prior agreements and undertakings,
both written and oral, between the parties, or any of them, with respect to the
subject matter hereof.
Section 2.05. Certain Events. SCH agrees that this Agreement and the
obligations hereunder shall attach to each of SCH's Shares and shall be binding
upon any person to which legal or beneficial ownership (as such term is applied
under Rule 13d-3 of the Exchange Act) of such Shares shall pass, whether by
operation of law or otherwise. Notwithstanding any transfer of Shares, the
transferor shall remain liable for the performance of all obligations under this
Agreement of the transferor.
Section 2.06. Assignment. This Agreement shall not be assigned by
operation of law or otherwise.
Section 2.07. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any person
any right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
Section 2.08. Specific Performance. The parties hereto agree that
irreparable damages would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
Section 2.09. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Florida without giving
effect to principles of conflicts of laws.
Section 2.10. Counterparts. This Agreement may be executed by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but both of which, taken together, shall
constitute one and the same agreement.
Section 2.11. Termination. This Agreement shall terminate automatically
and immediately upon the earlier of (a) termination of the Merger Agreement in
accordance
5
with the terms of Article 8 thereof and (b) the consummation of the Merger.
Section 2.12. Definitions. Any capitalized term used in this Agreement
that is not otherwise defined herein has the meaning given to it in the Merger
Agreement.
Section 2.13. Limitation of Liability. Any obligation or liability
whatsoever of East or West which may arise at any time under this Agreement or
any obligation or liability which may be incurred by it pursuant to any other
instrument, transaction or undertaking contemplated hereby shall be satisfied,
if at all, only out of East's or West's assets respectively. No such obligation
or liability shall be personally binding upon, nor shall resort for the
enforcement thereof be had to, the property of any of its shareholders,
trustees, officers, employees or agents, regardless of whether such obligation
or liability is in the nature of contract, tort or otherwise.
6
Section 2.14. No Presumption Against Drafter. Each of the parties
hereto have jointly participated in the negotiation and drafting of this
Agreement. In the event of an ambiguity or a question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by each of the parties hereto and no presumptions or burdens of proof shall
arise favoring any party by virtue of the authorship of any of the provisions of
this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective, duly authorized officers, as of the date first
above written.
REGENCY REALTY CORPORATION
By:_________________________
Name:
Title:
PACIFIC RETAIL TRUST
By: _________________________
Name:
Title:
SECURITY CAPITAL HOLDINGS S.A.
By: _________________________
Name:
Title:
SECURITY CAPITAL U.S. REALTY
By: _________________________
Name:
Title:
7
