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W/383321v6
[EXECUTION COUNTERPART]
AMENDMENT NO. 4 TO STOCKHOLDERS AGREEMENT
THIS AMENDMENT NO. 4 TO STOCKHOLDERS AGREEMENT (this "Amendment"),
dated as of September 2, 1999, is made by and among Regency Realty Corporation,
a Florida corporation (the "Company"), Security Capital U.S. Realty, a
Luxembourg corporation, and Security Capital Holdings S.A., a Luxembourg
corporation (together with Security Capital U.S. Realty and others specified in
the Stockholders Agreement, "Investor").
Background:
WHEREAS, the Company, Investor and The Regency Group, Inc. entered into
a Stockholders Agreement, dated as of July 10, 1996, as amended by Amendment
No.1 to Stockholders Agreement dated as of February 10, 1997 ("Amendment No.1"),
Amendment No. 2 to Stockholders Agreement dated as of December 4, 1997
("Amendment No. 2"), and Amendment No. 3 to Stockholders Agreement dated as of
September 23, 1998 ("Amendment No. 3") (as so amended, the "Agreement"); and
WHEREAS, the parties wish to amend the Agreement in the manner set
forth herein;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
1. Additional Section 1.28a. The Agreement is hereby amended by adding
a new Section 1.28a following Section 1.28, as follows:
Section 1.28a. "Operating Partnership" shall mean Regency Centers, L.P.
(formerly known as Regency Retail Partnership, L.P.), a Delaware limited
partnership.
2. Additional Section 1.28b. The Agreement is hereby amended by adding
a new Section 1.28b following Section 1.28a, as follows:
"Operating Partnership Units" shall mean any class of limited
partnership units representing partnership or other equity
interests in the Operating Partnership.
3. Participation Rights. Section 4.2 of the Agreement is hereby
restated in its entirety as follows:
Section 4.2 Participation Rights. (a) Right to
Participate. From and after the date hereof until the 15%
Termination Date, if any, Investor shall be entitled to a
participation right to purchase or subscribe for up to that
number of additional shares of capital stock (including as
"capital stock" for purposes of this Section 4.2, any stock,
unit, partnership unit or participation, or other equity
security, and including any security, option, warrant, call,
commitment, subscription, right to purchase or other agreement
of any character that is convertible into or exchangeable or
redeemable for shares of capital stock or other similar equity
interests of the Company or any Subsidiary or the Operating
Partnership (and all references in this Section 4.2 to capital
stock shall, as appropriate, be deemed to be references to any
such securities), and also including additional shares of
capital stock to be issued pursuant to the conversion,
exchange or redemption of any security, option, warrant, call,
commitment, subscription, right to purchase or other agreement
of any character that is convertible into or exchangeable or
redeemable for shares of capital stock, as if the price at
which such additional shares of capital stock is issued
pursuant to any such conversion, exchange or redemption were
the market price on the date of such issuance) to be issued or
sold by the Company or the Operating Partnership which
represents the same proportion of the total number of shares
of capital stock to be issued or sold by the Company or the
Operating Partnership (including the shares of capital stock
to be issued to Investor upon exercise of its participation
rights hereunder; it being understood and agreed that the
Company or the Operating Partnership will accordingly be
required to either increase the number of shares of capital
stock to be issued or sold so that Investor may purchase
additional shares to maintain its proportionate interest, or
to reduce the number of shares of capital stock to be issued
or sold to Persons other than Investor) as is represented by
the number of shares of Company Common Stock owned by Investor
prior to such sale or issuance relative to the number of
shares of Company Common Stock outstanding prior to such sale
or issuance (but in no event more than 49% of the total number
of shares of capital stock to be issued or sold by the Company
at all subsequent offerings); provided, however, that in lieu
of any participation right of Investor under the provisions of
this Section 4.2 which arises in connection with the issuance
of any capital stock of the Operating Partnership, Investor
shall have the right to acquire equivalent shares of capital
stock of the Company (it being understood and agreed that the
Company will accordingly be required to issue such shares of
capital stock to Investor); provided, further, that the
provisions of this Section 4.2 shall not apply to (i) the
issuance or sale by the Company or the Operating Partnership
of any of its capital stock issued to the Company or any of
its Subsidiaries or pursuant to options, rights or warrants or
other commitments or securities in effect or outstanding on
the date of the Stock Purchase Agreement, or (ii) the issuance
of capital stock pursuant to the conversion, exchange or
redemption of any other capital stock, and with respect to the
original issuance of which other capital stock Investor had
and fully exercised participation rights pursuant to this
Section 4.2, but shall, without limitation, apply to the
issuance by the Company of any of its capital stock pursuant
to benefit, option, stock purchase, or other similar plans or
arrangements, including pursuant to or upon the exercise of
options, rights, warrants, or other securities or agreements
(including those issued pursuant to the Company's benefit
plans), as if the price at which such capital stock is issued
were the market price on the date of such issuance.
(b) Notice. In the event the Company or the Operating
Partnership proposes to issue or sell any shares of capital
stock in a transaction giving rise to the participation rights
provided for in this Section, the Company shall send a written
notice (the "Participation Notice") to Investor setting forth
the number of shares of such capital stock of the Company or
the Operating Partnership that the Company or the Operating
Partnership proposes to sell or issue, the price (before any
commission or discount) at which such shares are proposed to
be issued (or, in the case of an underwritten or privately
placed offering in which the price is not known at the time
the Participation Notice is given, the method of determining
such price and an estimate thereof), and all other relevant
information as to such proposed transaction as may be
necessary for Investor to determine whether or not to exercise
the rights granted in this Section. At any time within 20 days
after its receipt of the Participation Notice, Investor may
exercise its participation rights to purchase or subscribe for
shares of such shares of capital stock, as provided for in
this Section, by so informing the Company in writing (an
"Exercise Notice"). Each Exercise Notice shall state the
percentage of the proposed sale or issuance that the Investor
elects to purchase. Each Exercise Notice shall be irrevocable,
subject to the conditions to the closing of the transaction
giving rise to the participation right provided for in this
Section.
(c) Abandonment of Sale or Issuance. The Company or
the Operating Partnership, as the case may be, shall have the
right, in its sole discretion, at all times prior to
consummation of any proposed sale or issuance giving rise to
the participation right granted by this Section, to abandon,
rescind, annul, withdraw or otherwise terminate such sale or
issuance, whereupon all participation rights in respect of
such proposed sale or issuance pursuant to this Section shall
become null and void, and neither the Company nor the
Operating Partnership shall have no any liability or
obligation to Investor or any Affiliate thereof who has
acquired shares of Company Stock pursuant to the Stock
Purchase Agreement or from Investor with respect thereto by
virtue of such abandonment, rescission, annulment, withdrawal
or termination.
(d) Terms of Sale. The purchase or subscription by
Investor or an Affiliate thereof, as the case may be, pursuant
to this Section shall be on the same price and other terms and
conditions, including the date of sale or issuance, as are
applicable to the purchasers or subscribers of the additional
shares of capital stock of the Company or the Operating
Partnership whose purchases or subscriptions give rise to the
participation rights, which price and other terms and
conditions shall be substantially as stated in the relevant
Participation Notice (which standard shall be satisfied if the
price, in the case of a negotiated transaction, is not greater
than 110% of the estimated price set forth in the relevant
Participation Notice or, in the case of an underwritten or
privately placed offering, is not greater than the greater of
(i) 110% of the estimated price set forth in the relevant
Participation Notice, and (ii) the most recent closing price
on or prior to the date of the pricing of the offering);
provided, however, that in the event the consideration to be
received by the Company or the Operating Partnership in
connection with the issuance of shares of capital stock giving
rise to participation rights hereunder is other than cash or
cash equivalents, the price per share at which the
participation rights may be exercised shall be the price per
share set forth in the Participation Notice or determined in
the manner set forth in the Participation Notice (which shall
in either event be the price as set forth in the agreement
pursuant to which such shares are to be issued, provided that
the consideration to be received therefor is valued based upon
the fair market value thereof, as determined in good faith by
the Company's independent directors, after consultation with
appropriate financial and legal advisors, or the price
determined in accordance with paragraph (a) of this Section
4.2); provided, further, however, that in the event the
consideration to be received by the Company or the Operating
Partnership in connection with the issuance of shares of
capital stock giving rise to participation rights hereunder is
other than cash or cash equivalents, and the fair market value
of the consideration to be received is not determinable, the
price per share at which the participation rights may be
exercised shall, (i) in the event that shares of capital stock
with an established trading market are being issued or sold,
be the average ten-day trailing market price of such shares as
of the date of receipt of the Participation Notice, and (ii)
in the event any other shares of capital stock are being
issued or sold, be determined by reference to the amount set
forth above, adjusted as may be appropriate to reflect the
relationship between those shares of capital stock with an
established trading market and those shares of capital stock
to be issued in the relevant transaction; provided, however,
that if the consideration otherwise covered by the second
proviso of this Section 4.2(d) is received in connection with
a merger or consolidation by the Company or the Operating
Partnership, the price per share at which the participation
rights may be exercised shall be the market value per share of
Company Common Stock or Operating Partnership Units, as the
case may be, issued in respect of such merger or consolidation
as of the date of the merger or consolidation agreement; and
provided, finally, that in the event the purchases or
subscriptions giving rise to the participation rights are
effected by an offering of securities registered under the
1933 Act and in which offering it is not legally permissible
for the securities to be purchased by Investor to be included,
such securities to be purchased by Investor will be purchased
in a concurrent private placement.
(e) Timing of Sale. If, with respect to any
Participation Notice, Investor fails to deliver an Exercise
Notice within the requisite time period, the Company or the
Operating Partnership, as the case may be, shall have 120 days
after the expiration of the time in which the Exercise Notice
is required to be delivered in which to sell not more than
110% of the number of shares of capital stock of the Company
or the Operating Partnership, as the case may be, described in
the Participation Notice (plus, in the event such shares are
to be sold in an underwritten public offering, an additional
number of shares of capital stock of the Company or the
Operating Partnership, as the case may be, not in excess of
15% of 110% of the number of shares of capital stock of the
Company or the Operating Partnership, as the case may be,
described in the Participation Notice, in respect of any
underwriters overallotment option) and not less than 90% of
the number of shares of capital stock of the Company or the
Operating Partnership, as the case may be, described in the
Participation Notice on terms not more favorable to the
purchaser than were set forth in the Participation Notice. If,
at the end of 120 days following the expiration of the time in
which the Exercise Notice is required to be delivered, the
Company or the Operating Partnership, as the case may be, has
not completed the sale or issuance of capital stock of the
Company or the Operating Partnership, as the case may be, in
accordance with the terms described in the Participation
Notice (or at a price which is at least 90% of the estimated
price set forth in the Participation Notice), or in the event
of any contemplated sale or issuance within such 120-day
period but outside such price parameters, the Company or the
Operating Partnership, as the case may be, shall again be
obligated to comply with the provisions of this Section with
respect to, and provide the opportunity to participate in, any
proposed sale or issuance of shares of capital stock of the
Company or the Operating Partnership, as the case may be;
provided, however, that notwithstanding the foregoing, if the
price at which such capital stock is to be sold in an
underwritten offering (or a privately placed offering in which
the price is not less than 97% of the most recent closing
price at the time of the pricing of the offering) is not at
least 90% of the estimated price set forth in the
Participation Notice, the Company or the Operating
Partnership, as the case may be, may inform Investor of such
fact and Investor shall be entitled to elect, by written
notice delivered within two Business Days following such
notice from the Company, to participate in such offering in
accordance with the provisions of this Section 4.2.
4. Standstill Period; Ownership Limit. Section 5.2(a)(iii) of the
Agreement is hereby restated in its entirety as follows:
(iii) purchase or otherwise acquire shares of Company Common
Stock (or options, rights or warrants or other commitments to
purchase and securities convertible into (or exchangeable or
redeemable for) shares of Company Common Stock) as a result of
which, after giving effect to such pur
chase or acquisition, Investor will own more than 60% of the
outstanding shares of Company Common Stock, on a fully diluted
basis;
5. Exception to Special Shareholder Limit; Application of Section
5.1(r) of Company Charter. Pursuant to and in accordance with the provisions of
Section 5.11 of the Company Charter, the Board of Directors of the Company shall
duly approve, and the Company shall otherwise take all other action necessary
pursuant to Section 5.11 of the Company Charter and otherwise by no later than
Monday, September 13, 1999, to irrevocably and permanently grant, an exception
to the Special Shareholder Limit such that, from and after the date hereof,
Section 5.1(r) of the Company Charter (setting forth the definition of "Special
Shareholder Limit") shall apply to the Special Shareholder (as defined in the
Company Charter) in all respects and for all purposes as if the first sentence
of Section 5.1(r) did not contain the proviso "provided, however, that if at any
time after the effective date of this Amendment a Special Shareholder's
ownership of Common Stock, on a fully diluted basis, of the Corporation shall
have been below 45% for a continuous period of 180 days, then the definition of
`Special Shareholder Limit' shall mean 49% of the outstanding shares of Common
Stock, on a fully diluted basis, of the Corporation". At the request of
Investor, the Board of Directors will authorize and recommend for approval (and
shall not thereafter withdraw or modify such recommendation) by the shareholders
of the Company at the next annual or special meeting of the Company's
shareholders following the date of such request an amendment to the Company's
Charter in a form reasonably approved by Investor to amend Section 5.1(r) of the
Company Charter so as to eliminate the foregoing proviso, and to replace it with
the phrase "or such other percentage of the outstanding shares of Common Stock
as the Board of Directors may from time to time determine".
6. No Effect on Consistent Terms. All terms of the Agreement not
inconsistent with this Amendment shall remain in place and in full force and
effect and shall be unaffected by this Amendment, and shall continue to apply
(i) to the Agreement as amended hereby and (ii) to this Amendment. From and
after the date hereof, each reference to the Agreement in any other instrument
or document shall be deemed a reference to the Agreement as amended by Amendment
Xx. 0, Xxxxxxxxx Xx. 0, Xxxxxxxxx Xx. 0, and as amended hereby, unless the
context otherwise requires.
7. Headings. The headings contained in this Amendment are inserted for
convenience of reference only and shall not affect the meaning or interpretation
of this Amendment.
8. Counterparts. This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each
party hereto and delivered to the other party.
IN WITNESS WHEREOF, this Amendment has been signed by or on behalf of
each of the parties hereto as of the day first above written.
REGENCY REALTY CORPORATION
By:
Name:
Title:
SECURITY CAPITAL HOLDINGS S.A.
By:
Name:
Title:
SECURITY CAPITAL U.S. REALTY
By:
Name:
Title:
