REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of June 25, 1998
(this "Agreement"), is entered into by and between Regency Realty Corporation, a
Florida corporation (the "Company" or the "REIT") and the unit holder whose name
is set forth on the signature page hereto ("Unit Holder").
RECITALS
WHEREAS, in connection with the offering of 1,600,000 8.125%
Series A Cumulative Redeemable Preferred Units (the "OP Units") of Regency
Centers, L.P., a Delaware limited partnership ( the "Operating Partnership"),
Belair Capital Fund LLC, a Massachusetts limited liability company (the
"Contributor"), contributed to the Operating Partnership $80,000,000 in return
for the OP Units on terms and conditions set forth in the Contribution
Agreement, dated as of June 25, 1998 (the "Contribution Agreement"), by and
among the Company, the Operating Partnership and the Contributor;
WHEREAS, the Unit Holder will receive the OP Units in exchange
for cash contributed to the Operating Partnership;
WHEREAS, pursuant to the Partnership Agreement (as defined
below), the OP Units owned by the Unit Holder will be redeemable for cash or
exchangeable for shares of the Company's 8.125% Series A Cumulative Redeemable
Preferred Stock (the "Preferred Stock") upon the terms and subject to the
conditions contained therein; and
WHEREAS, in order to induce the Contributor to enter into the
Contribution Agreement, the Company and the Operating Partnership have agreed to
enter into this Agreement and to provide registration rights set forth herein to
the Contributor and any subsequent holder or holders of the OP Units.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. In addition to the definitions set forth above, the
following terms, as used herein, shall have the following meanings:
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under common control with such
Person. For the purposes of this definition, "control" when used with respect to
any Person, means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Amendment" means that certain Amendment No. 1 to Second
Amended and Restated Agreement of Limited Partnership, dated as of June 25,
1998, which amends the Partnership Agreement.
"Agreement" means this Registration Rights Agreement, as it
may be amended, supplemented or restated from time to time.
"Articles of Incorporation" means the Articles of Amendment
and Restatement of the Company, as the same may be amended, modified or restated
from time to time.
"Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York, New York or Jacksonville,
Florida are authorized by law to close.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time or any successor statute thereto, as interpreted by the
applicable regulations thereunder.
"Commission" means the Securities and Exchange Commission.
"Company" means Regency Realty Corporation, a Florida corporation.
"Contribution Agreement" means the Contribution Agreement,
dated June 25, 1998, by and among the Company, the Operating Partnership and the
Contributor.
"Contributor" means Belair Capital Fund LLC, a Massachusetts
limited liability company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
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"Exchangeable OP Units" means OP Units which may be redeemable
for cash pursuant to Section 7 of the Amendment or exchangeable for Preferred
Stock or redeemable for cash pursuant to Section 10 of the Amendment (without
regard to any limitations on the exercise of such exchange rights as a result of
the Ownership Limit Provisions, as defined below).
"General Partner" means the Company or its successors as general partner of the
Operating Partnership.
"Holder" means any Unit Holder who is the record or beneficial
owner of any Registrable Security or any permitted assignee or permitted
transferee of such Registrable Security (including assignments or transfers of
Registrable Securities to such assignees or transferees as a result of the
foreclosure on any loans secured by such Registrable Securities) unless such
Registrable Security is acquired in a public distribution pursuant to a
registration statement under the Securities Act or in a public distribution
pursuant to transactions exempt from registration under the Securities Act, in
each such case where securities sold in such transaction may be resold in a
public distribution without subsequent registration under the Securities Act.
"Incapacitated" shall have the meaning set forth in the Partnership Agreement.
"Indemnified Party" shall have the meaning set forth in Section 2.8 hereof.
"Indemnifying Party" shall have the meaning set forth in Section 2.8 hereof.
"Inspectors" shall have the meaning set forth in Section 2.4(g).
"Operating Partnership" means Regency Centers, L.P., a Delaware limited
partnership.
"OP Units" means 8.125% Series A Cumulative Redeemable
Preferred Units of the Operating Partnership issued on the date hereof.
"Ownership Limit Provisions" mean the various provisions of
the Articles of Incorporation set forth in Article 5 thereof restricting the
ownership of stock of the company, including the Preferred Stock by certain
Persons to specified percentages of the outstanding stock of the company.
"Partnership Agreement" means the Second Amended and Restated
Agreement of Limited Partnership of the Operating Partnership dated as of March
5, 1998, as amended by the Amendment as the same may be further amended,
modified or restated from time to time.
"Person" means an individual or a corporation, Partnership,
limited liability company, association, trust, or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
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"Preferred Stock" means the Company's 8.125% Series A
Cumulative Redeemable Preferred Stock.
"REIT" means a real estate investment trust under Section 856 through Section
860 of the Code.
"Registrable Securities" means shares of Preferred Stock at
any time owned, either of record or beneficially, by any Holder and no matter
how acquired (including, without limitation, shares of Preferred Stock issued or
issuable upon exchange of Exchangeable OP Units or issued or issuable by way of
stock dividend or stock split, or in connection with a merger, consolidation,
combination of shares, recapitalization or other reorganization and any other
securities issued pursuant to any other distribution with respect to the
Preferred Stock or in exchange for or replacement of such Preferred Stock) until
(i) a registration statement covering such securities has been declared
effective by the Commission and such shares have been sold or transferred
pursuant to such effective registration statement, (ii) such shares are
permitted to be distributed in a transaction that would constitute a sale
thereof under the Securities Act pursuant to Rule 144(k) or are otherwise freely
transferable to the public without registration pursuant to Section 4(l) of the
Securities Act (to be confirmed in a written opinion of counsel to the Company
addressed to the Holders) under circumstances in which all of the applicable
conditions of Rule 144 are satisfied or (iii) such shares have been otherwise
transferred pursuant to an applicable exemption under the Securities Act, new
securities for such securities not bearing a legend restricting further transfer
shall have been delivered by the Company and such securities shall be freely
transferable to the public in a transaction that would constitute a sale thereof
without registration under the Securities Act.
"Registration Expenses" shall have the meaning set forth in Section 2.5 hereof.
"Rule 144" means Rule 144 promulgated under the Securities
Act, as such rule may be amended from time to time, or any similar rule (other
than Rule 144A) or regulation hereafter adopted by the Commission providing for
offers and sales of securities made in compliance therewith resulting in offers
and sales by subsequent holders that are not affiliates of the Company of such
securities being free of the registration and prospectus delivery requirements
of the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act, as such rule may be amended from time to time, or any similar rule (other
than Rule 144) or regulation hereafter adopted by the Commission.
"Rule 415" means Rule 415 promulgated under the Securities
Act, as such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission.
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"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Selling Holder" means a Holder who is selling Registrable
Securities pursuant to a registration statement under the Securities Act
pursuant to this Agreement.
"Shelf Registration" shall have the meaning set forth in Section 2.1 hereof'.
"Shelf Registration Statement" means any registration
statement relating to a Shelf Registration that covers any shares of Preferred
Stock of the Company filed with the Commission under the Securities Act,
including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
"Underwriter" means a securities dealer who purchases any
Registrable Securities as principal and not as part of such dealer's
market-making activities.
"Unit Holder(s)" shall have the meaning set forth in the
introductory paragraphs hereto and shall include any successors, transferees or
assigns permitted under the Amendment.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1. Shelf Registration.
(a) At any time (and from time to time) OP Units representing in the
aggregate 25% or more of the 1,600,000 OP Units issued in accordance with the
Contribution Agreement are exchanged for shares of Preferred Stock, the Company
shall prepare and file a "shelf" registration statement (the "Shelf Registration
Statement") with respect to such Registrable Securities covering the resale
thereof by the Holders on an appropriate form for an offering to be made on a
continuous or delayed basis pursuant to Rule 415 (the "Shelf Registration")
within 60 days after the date such OP Units are exchanged for shares of
Preferred Stock and shall use all commercially reasonable efforts to cause such
Shelf Registration Statement to be declared effective within 120 days after the
date of such exchange. The Company shall use all commercially reasonable efforts
to keep such Shelf Registration Statement continuously effective with respect to
such Registrable Securities until the earliest of (A) 28 months following the
date such Registrable Securities are issued by the Company to such Holder or
Holders and (B) such time as all of the Registrable Securities which are the
subject of such Shelf Registration Statement have been sold pursuant to the
Shelf Registration Statement or Rule 144.
(b) In lieu of the Shelf Registrations set forth in Section
2.1(a), the Company may, at the Company's option, to the extent permitted by
applicable law, rules and regulations, upon
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the first exchange of OP Units for shares of Preferred Stock, prepare and file a
Shelf Registration Statement with respect to all Registrable Securities (i)
issued in exchange for OP Units and (ii) thereafter issuable in exchange for OP
Units, and covering the resale thereof by the Holders on an appropriate form for
an offering to be made on a continuous or delayed basis pursuant to Rule 415
within 60 days after the date OP Units are first exchanged for shares of
Preferred Stock and shall use all commercially reasonable efforts to cause such
Shelf Registration Statement to be declared effective within 120 days after the
date of such exchange. The Company shall use all commercially reasonable efforts
to keep such Shelf Registration Statement continuously effective with respect to
all such Registrable Securities theretofore or thereafter issued until such time
as all such Registrable Securities which are the subject of such Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement or Rule 144.
SECTION 2.3. Registration Procedures; Filings; Information. In
connection with any Shelf Registration Statement under Section 2.1 hereof, the
Company will use all commercially reasonable efforts to effect the registration
and the sale of such Registrable Securities in accordance with the intended
method or methods of disposition thereof as expeditiously as possible (and in
any event within the periods referred to in Section 2.1), and in connection with
any such request:
(a) As provided in Section 2.1 hereof, the Company will as expeditiously
as possible prepare and file with the Commission a registration statement on any
form for which the Company then qualifies or which counsel for the Company shall
deem appropriate and which form shall be available for the sale by the Selling
Holders of the Registrable Securities to be registered thereunder in accordance
with the intended method of distribution thereof and which shall comply as to
form in all material respects with the requirements of the applicable form and
include or incorporate by reference all financial statements required by the
Commission to be filed therewith, and use all commercially reasonable efforts to
cause such filed registration statement to become and remain effective for the
period specified elsewhere herein.
(b) The Company will, if requested, prior to filing a registration statement
or prospectus or any amendment or supplement thereto, notify each Holder of
Registrable Securities that a Shelf Registration Statement is being filed and
advise such Holder that an offering of Registrable Securities will be made in
accordance with the method or methods elected (which method may also include an
underwritten offering by a nationally recognized Underwriter selected by the
Company and reasonably acceptable to the electing Holders) by the Holders of a
majority of the Registrable Securities, furnish to each Selling Holder and each
Underwriter, if any, of the Registrable Securities covered by such registration
statement or prospectus copies of such registration statement or prospectus or
any amendment or supplement thereto as proposed to be filed, and thereafter
furnish to such Selling Holder and Underwriter, if any, such number of conformed
copies of such registration statement, each amendment and supplement thereto (in
each case including all exhibits thereto and documents incorporated by reference
therein), the prospectus included in such registration statement (including each
preliminary prospectus) and such other
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documents as such Selling Holder or Underwriter may reasonably request in order
to facilitate the disposition of the Registrable Securities owned by such
Selling Holder.
(c) The Company will notify each Holder of Registrable Securities and
counsel for such Holder promptly and, if requested by such Holder or counsel,
confirm such advice in writing promptly (i) when a registration statement has
become effective and when any post-effective amendments and supplements thereto
become effective, (ii) of any request by the Commission or any state securities
authority for post-effective amendments and supplements to a registration
statement that has become effective, (iii) of the issuance by the Commission or
any state securities authority of any stop order suspending the effectiveness of
a registration statement or the initiation of any proceedings for that purpose,
(iv) if, during the period a registration statement is effective, the
representations and warranties of the Company contained in any underwriting
agreement, securities sales agreement or other similar agreement, if any,
relating to such offering
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cease to be true and correct in all material respects, (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, and (vi) of any determination by
the Company that a post-effective amendment to a registration statement would be
appropriate.
(d) The Company will use all commercially reasonable efforts to (i)
register or qualify the Registrable Securities under such other securities or
blue sky laws of such jurisdictions in the United States (where an exemption is
not available) as any Selling Holder or managing Underwriter or Underwriters, if
any, reasonably (in light of such Selling Holder's intended plan of
distribution) requests by the time the registration statement relating thereto
is declared effective by the Commission and (ii) cause such Registrable
Securities to be registered with or approved by such other governmental agencies
or authorities, including the National Association of Securities Dealers
("NASD"), as may be necessary by virtue of the business and operations of the
Company and do any and all other acts and things that may be reasonably
necessary or advisable to enable such Selling Holder to consummate the
disposition of the Registrable Securities owned by such Selling Holder; provided
that the Company will not be required to (A) qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify but for
this paragraph (d), (B) subject itself to taxation in any such jurisdiction or
(C) consent to general service of process in any such jurisdiction except as may
be required by the Securities Act.
(e) The Company will immediately notify each Selling Holder or
Underwriter of such Registrable Securities, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
occurrence of an event requiring the preparation of a supplement or amendment to
such prospectus and shall file with the Commission such amendments and
supplements to such prospectus and deliver copies of the same to the Selling
Holders or Underwriters, as the case may be, so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances then existing, not misleading and promptly make
available to each Selling Holder a reasonable number of copies of any such
supplement or amendment.
(f) The Company will enter into customary agreements (including an
underwriting agreement or securities sale agreement, if any, in customary form)
containing such representations and warranties to the Holders of such
Registrable Securities and the Underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in similar underwritten
offerings as may be reasonably requested by them and take such other actions as
are reasonably required in order to expedite or facilitate the disposition of
such Registrable Securities.
(g) The Company will make available for inspection by any Selling
Holder of such Registrable Securities, any Underwriter participating in any
disposition pursuant to such registration statement and any attorney, accountant
or other professional retained by any such
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Selling Holder or Underwriter (collectively, the "Inspectors"), all financial
and other records, pertinent corporate documents and properties of the Company
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
Inspectors in connection with such registration statement. Records which the
Company determines, in good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a misstatement
or omission in such registration statement or (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction. Each Selling Holder of such Registrable Securities agrees that
information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company or its Affiliates or otherwise
disclosed by it unless and until such is made generally available to the public.
Each Selling Holder of such Registrable Securities further agrees that it will,
upon learning that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company, at its expense,
to undertake appropriate action to prevent disclosure of the Records deemed
confidential.
(h) The Company will furnish to each Selling Holder and to each
Underwriter, if any, a signed counterpart, addressed to such Selling Holder or
Underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a
comfort letter or comfort letters from the Company's independent public
accountants (to the extent permitted by the standards of the American Institute
of Certified Public Accountants), each in customary form and covering such
matters of the type customarily covered by opinions or comfort letters, as the
case may be, as the Holders of a majority of the Registrable Securities included
in such offering or the managing Underwriter or Underwriters therefor reasonably
request.
(i) The Company will otherwise use all commercially reasonable efforts
to comply with all applicable rules and regulations of the Commission. and make
available to its securityholders, as soon as reasonably practicable, an earnings
statement covering a period of twelve (12) months, beginning within three (3)
months after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 of the Commission promulgated thereunder (or any successor rule or
regulation hereafter adopted by the Commission).
(j) The Company will use all commercially reasonable efforts to cause
all such Registrable Securities to be listed on each securities exchange on
which similar securities issued by the Company are then listed.
(k) The Company will use all commercially reasonable efforts to obtain
CUSIP numbers for the Preferred Stock not later than the effective date of the
Shelf Registration Statement.
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The Company may require, as a condition precedent to the
obligations of the Company under the Agreement, each Selling Holder of
Registrable Securities to promptly furnish in writing to the Company such
information regarding such Selling Holder, the Registrable Securities held by it
and the intended method of distribution of the Registrable Securities as the
Company may from time to time reasonably request and such other information as
may be legally required in connection with such registration.
Each Selling Holder agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind described in Section
2.3(e) hereof, such Selling Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement and prospectus
covering such Registrable Securities until such Selling Holder's receipt of the
copies of the supplemented or amended prospectus contemplated by Section 2.3(e)
hereof, and, if so directed by the Company, such Selling Holder will deliver to
the Company all copies, other than permanent file copies then in such Selling
Holder's possession, of the most recent prospectus covering such Registrable
Securities at the time of receipt of such notice. Each Selling Holder of
Registrable Securities agrees that it will immediately notify the Company at any
time when a prospectus relating to the registration of such Registrable
securities is required to be delivered under the Securities Act of the happening
of an event as a result of which information previously furnished by such
Selling Holder to the Company in writing for inclusion in such prospectus
contains an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading. In the
event the Company shall give such notice, the Company shall extend the period
during which such registration statement shall be maintained effective
(including the periods referred to in Section 2.1 hereof) by the number of days
during the period from and including the date of the giving of notice pursuant
to Section 2.3(e) hereof to the date when the Company shall make available to
the Selling Holders of Registrable Securities covered by such registration
statement a prospectus supplemented or amended to conform with the requirements
of Section 2.3(e) hereof.
SECTION 2.4. Registration Expenses. In connection with any
registration statement required to be filed hereunder, the Company shall pay the
following registration expenses incurred in connection with the registration
hereunder (the "Registration Expenses"): (i) all Commission, stock exchange,
NASD or other registration and filing fees, (ii) fees and expenses of compliance
with securities or blue sky laws and compliance with the rules of the NASD
(including reasonable fees and disbursements of U.S. and local counsel for any
Underwriters and Holders in connection with blue sky qualifications of the
Registrable Securities), (iii) printing expenses of any persons in preparing and
distributing any Shelf Registration Statement, any prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales agreements,
certificates representing the Preferred Stock and any other document relating to
the performance of, and compliance with, this Agreement, (iv) internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), (v) the fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange, (vi) reasonable fees and disbursements of counsel for the
Company and customary fees and expenses for independent certified public
accountants retained by the Company
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(including the expenses of any special audits or comfort letters or costs
associated with compliance with such special audits of with the delivery by
independent certified public accountants of a comfort letter or comfort letters
requested pursuant to Section 2.3(h) hereof, (vii) the reasonable fees and
expenses of any special experts retained by the Company in connection with such
registration, and (viii) reasonable fees and expenses of one counsel (who shall
be reasonably acceptable to the Company) for the Selling Holders. Except as
expressly provided in the preceding sentence, the Company shall have no
obligation to pay any underwriting fees, discounts or commissions attributable
to the sale of Registrable Securities, or any out-of-pocket expenses of the
Holders (or the agents who manage their accounts) or any transfer taxes relating
to the registration or sale of the Registrable Securities.
SECTION 2.5. Indemnification by the Company. The Company
agrees to indemnify and hold harmless each Selling Holder of Registrable
Securities, its officers, directors and agents, and each Person, if any, who
controls such Selling Holder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any and all losses,
claims, damages, expenses and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement or prospectus relating to the Registrable Securities (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any Preliminary Prospectus, or caused by any 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 in which
they were made, not misleading, except insofar as such losses, claims, damages
or liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information furnished in writing to the
Company by such Selling Holder or on such Selling Holder's behalf expressly for
inclusion therein. The Company also agrees to indemnify Underwriters of the
Registrable Securities, their officers and directors and each Person who
controls such Underwriters within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act on substantially the same basis as that of
the indemnification of the Selling Holders provided in this Section 2.5,
provided that the foregoing indemnity with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter of the Registrable Securities
from whom the Person asserting any such losses, claims, damages or liabilities
purchased the Registrable Securities which are the subject thereof if (i) such
person did not receive a copy of the prospectus (or the prospectus as
supplemented) at or prior to the confirmation of the sale of such Registrable
Securities to such person in any case where such delivery is required by the
Securities Act and the untrue statement or omission of a material fact contained
in such preliminary Prospectus was corrected in the prospectus (or the
prospectus as supplemented), provided that such Underwriter received prior
notice that such prospectus (or the Prospectus as supplemented) corrected such
untrue statement or omission of a material fact; or (ii) such person received a
prospectus at or prior to the confirmation of the sale of such Registrable
Securities to such person during the period when the use of such Prospectus has
been suspended in accordance with Section 2.3, provided that such Underwriter
received prior notice of such suspension.
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SECTION 2.6. Indemnification by Holders of Registrable
Securities. Each Selling Holder agrees, severally but not jointly, to indemnify
and hold harmless the Company, its officers, directors and agents and each
Person, if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to such Selling Holder, but only with
respect to information relating to such Selling Holder furnished in writing by
such Selling Holder or on such Selling Holder's behalf expressly for use in any
registration statement or prospectus relating to the Registrable Securities, or
any amendment or supplement thereto, or any preliminary prospectus. In case any
action or proceeding shall be brought against the Company or its officers,
directors or agents or any such controlling person, in respect of which
indemnity may be sought against such Selling Holder, such Selling Holder shall
have the rights and duties given to the Company, and the Company or its
officers, directors or agents or such controlling person shall have the rights
and duties given to such Selling Holder, by Section 2.5 hereof.
SECTION 2.7. Conduct of Indemnification Proceedings. In case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
Sections 2.5 or 2.6 hereof, such person (an "Indemnified Party") shall promptly
notify the person against whom such indemnity may be sought (an "Indemnifying
Party") in writing and the Indemnifying Party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified
Party, and shall assume the payment of all fees and expenses. In any such
proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnified Party and the Indemnifying Party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying Party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) at any time for
all such Indemnified Parties, and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate firm for the
Indemnified Parties, such firm shall be designated in writing by (i) in the case
of Persons indemnified pursuant to Section 2.5 hereof, by the Selling Holders
which owned a majority of the Registrable Securities sold under the applicable
registration statement and (ii) in the case of Persons indemnified pursuant to
Section 2.6 hereof, the Company. The Indemnifying Party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent, or if there be a final judgment for the plaintiff,
the Indemnifying Party shall indemnify and hold harmless such Indemnified
Parties from and against any loss or liability (to the extent stated above) by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Party shall have requested an Indemnifying Party
to reimburse the Indemnified Party for fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the Indemnifying Party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than
thirty (30)
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Business Days after receipt by such Indemnifying Party of the aforesaid request,
(ii) such Indemnifying Party shall not have responded to such request (or, if
such Indemnifying Party shall have responded, the same shall be contesting in
good faith any portion of the requested reimbursement) and (iii) such
Indemnifying Party shall not have reimbursed the Indemnified Party for the
uncontested fees and expenses of counsel in accordance with such request prior
to the date of such settlement. No Indemnifying Party shall, without the prior
written consent of the Indemnified Party, effect any settlement of any pending
or threatened proceeding in which any Indemnified Party is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Party,
unless such settlement includes an unconditional release of such Indemnified
Party from all liability arising out of such proceeding.
SECTION 2.8. Contribution. If the indemnification provided for
in Sections 2.5 or 2.6 hereof is unavailable to an Indemnified Party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each such Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities (i)
as between the Company and the Selling Holders on the one hand and the
Underwriters on the other, in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Holders on the one
hand and the Underwriters on the other from the offering of the securities, or
if such allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits but also the relative
fault of the Company and the Selling Holders on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations and (ii) as between the Company on the one
hand and each Selling Holder on the other, in such proportion as is appropriate
to reflect the relative fault of the Company and of each Selling Holder in
connection with such statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Holders on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total Proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and the Selling Holders bear to the total underwriting discounts
and commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the prospectus. The relative fault of the Company and
the Selling Holders on the one hand and of the Underwriters on the other shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company and the Selling
Holders or by the Underwriters. The relative fault of the Company on the one
hand and of each Selling Holder on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or such Selling Holder, and the
Company's and the Selling Holder's relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
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The Company and the Selling Holders agree that it would not be
just and equitable if contribution pursuant to this Section 2.8 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages or liabilities referred to in Sections 2.5 and 2.6
hereof shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 2.8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no Selling Holder
shall be required to contribute any amount in excess of the amount by which the
total price at which the securities of such Selling Holder were offered to the
public exceeds the amount of any damages which such Selling Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. 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. The Selling Holder's obligations to contribute pursuant to
this Section 2.8 are several in the proportion that the proceeds of the offering
received by such Selling Holder bears to the total proceeds of the offering
received by all the Selling Holders and not joint.
SECTION 2.9. Participation in Underwritten Registrations. No
Person may participate in any underwritten registration hereunder unless such
Person (a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents in customary
form and reasonably required under the terms of such underwriting arrangements
and these registration rights provided for in this Article II.
SECTION 2.10. Rule 144. The Company covenants that it will use
all commercially reasonable efforts to file any reports required to be filed by
it under the Securities Act and the Exchange Act and that it will use all
commercially reasonable efforts take such further action as any Holder may
reasonably request, all to the extent required from time to time to enable
Holders to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the Commission. Upon the request
of any Holder, the Company will deliver to such Holder a written statement as to
whether it has complied with such requirements.
SECTION 2.11. Holdback Agreements.
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(a) Restrictions on Public Sale by Holder of Registrable Securities. To
the extent not inconsistent with applicable law, upon receipt of written notice
front the Company, each Holder whose securities are included in a registration
statement pursuant to Section 2.1 agrees not to effect any sale or distribution
of the issue being registered or a similar security of the Company, or any
securities convertible into or exchangeable or exercisable for such securities,
including a "broker's transaction" pursuant to Rule 144, but excluding any
private sale made in reliance on Section 4(2) of the Securities Act, during the
7 days prior to, and during the 90-day period beginning on, the effective date
of such registration statement , if and to the extent requested in writing by
the Company in the case of a non-underwritten public offering or if and to the
extent requested in writing by the managing Underwriter or Underwriters in the
case of an underwritten public offering.
(b) If the Company determines in its good faith judgment that the filing
of the Shelf Registration Statement under Section 2.1 hereof or the use of any
related prospectus would require the disclosure of non-public material
information that the Company has a bona fide business purpose for preserving as
confidential or the disclosure of which would impede the Company's ability to
consummate a material transaction, and that the Company is not otherwise
required by applicable securities laws or regulations to disclose, upon written
notice of such determination by the Company, the rights of the Holders to offer,
sell or distribute any Registrable Securities pursuant to the Shelf Registration
Statement or to require the Company to take action with respect to the
registration or sale of any Registrable Securities pursuant to the Shelf
Registration Statement shall be suspended until the earlier of (i) the date upon
which the Company notifies the Holders in writing that suspension of such rights
for the grounds set forth in this Section 2.11(b) is no longer necessary and
(ii) 45 days; provided however, the aggregate number of days in any consecutive
twelve (12) month period during which such suspension or suspensions shall
continue shall not exceed one hundred twenty (120) days. The Company agrees to
give such notice as promptly as practicable following the date that such
suspension of rights is no longer necessary.
(c) If all reports required to be filed by the Company pursuant to the
Exchange Act have not been filed by the required date without regard to any
extension, or if the consummation of any business combination or property
acquisition by the Company has occurred or is probable for purposes of Rule 3-05
or 3-14 or Article 11 of Regulation S-X under the Act, upon written notice
thereof by the Company to the Holders, the rights of the Holders to offer, sell
or distribute any Registrable Securities pursuant to the Shelf Registration
Statement or to require the Company to take action with respect to the
registration or sale of any Registrable Securities pursuant to the Shelf
Registration Statement shall be suspended until the date on which the Company
has filed such reports or obtained and filed the financial information required
by Rule 3-5 or 3-14 or Article 11 of Regulation S-X to be included or
incorporated by reference, as applicable, in the Shelf Registration Statement,
and the Company shall notify the Holders as promptly as practicable when such
suspension is no longer required.
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(d) The Company shall extend the period during which a registration
statement shall be maintained effective (including the periods referred to in
Section 2.1 hereof by the number of days of suspension pursuant to Section
2.11(a), Section 2.11(b) or Section 2.11(c).
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Remedies. In addition to being entitled to
exercise all rights provided herein and granted by law, including recovery of
damages. the Holders shall be entitled to specific performance of the rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
SECTION 3.2. Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given without the prior written consent of the
Company and the Holders or any such Holder's representative if any such Holder
is Incapacitated. No failure or delay by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement or
to exercise any right or remedy consequent upon any breach thereof shall
constitute a waiver of any such breach or any other covenant, duty, agreement or
condition.
SECTION 3.3. Notices. All notices and other communications in
connection with this Agreement shall be made in writing by hand delivery,
registered first-class mail, telex, telecopier, or air courier guaranteeing
overnight delivery:
(1) if to any Unit Holder:
Belair Capital Fund LLC
c/o Xxxxx Xxxxx Management
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Facsimile Number: (000) 000-0000
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with a copy to:
Xxxxx Xxxxxxxx, Esq.
(6544-4)
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
(2) if to the Company or the Operating Partnership:
Regency Realty Corporation
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile Number: (000) 000-0000
or to such other address as the Company may hereafter specify in
writing.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; when
received if deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when receipt acknowledged, if telecopied; and on the next
business day, if timely delivered to an air courier guaranteeing overnight
delivery.
SECTION 3.4. Successors and Assigns. The rights and
obligations of any Holder hereunder may be assigned to any other Holder. Except
as expressly provided in this Agreement, the rights and obligations of the
Holders under this Agreement shall not be assignable by any Holder to any Person
that is not a Holder. This Agreement shall be binding upon the parties hereto
and their respective successors and assigns.
SECTION 3.5. Counterparts; Facsimile Signatures. This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement. Each party shall become bound by this Agreement immediately upon
affixing its signature hereto, which may be an original signature or facsimile
thereof.
SECTION 3.6. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida without
regard to the choice of law provisions thereof.
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SECTION 3.7. Severability. In the event that any one or more
of the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
SECTION 3.8. Entire Agreement. This Agreement is intended by
the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the registration rights granted by the
Company with respect to the Registrable Securities. This Agreement supersedes
all prior agreements and understandings between the parties with respect to such
subject matter.
SECTION 3.9. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
SECTION 3.10. No Third Party Beneficiaries. Nothing express or
implied herein is intended or shall be construed to confer upon any person or
entity, other than the parties hereto and their respective successors and
assigns, any rights, remedies or other benefits under or by reason of this
Agreement.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date above written.
REGENCY REALTY CORPORATION,
a Florida corporation
By:
Xxxxx X. Xxxxxxx
Chief Financial Officer
BELAIR CAPITAL FUND LLC
By: Xxxxx Xxxxx Management, as its
Manager
By:
Xxx Xxxx
Vice President
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