EXHIBIT 8.4
TRANSFER RESTRICTION AGREEMENT
THIS TRANSFER RESTRICTION AGREEMENT, dated as of September 23, 1998, is
entered into by and between Pacific Retail Trust, a Maryland real estate
investment trust ("West"), and Security Capital Holdings S.A., a Luxembourg
corporation ("Shareholder").
WHEREAS, as of the date hereof Shareholder beneficially owns 11,720,216
shares of common stock, $0.01 par value per share ("East Common Stock"), of
Regency Realty Corporation, a Florida corporation ("East") (all such shares and
any shares of East Common Stock that hereafter become beneficially owned by
Shareholder prior to the termination of this Agreement being referred to herein
as the "East Shares"), representing 45.96% of the issued and outstanding shares
of East 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 West to enter into the
Merger Agreement, West has requested that Shareholder agree, and, in order
induce 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:
SECTION 1. TRANSFER OF SHARES. Subject to the terms and conditions of
this Agreement, until the earlier of (i) the termination of the Merger Agreement
or (ii) the close of business on the date of the later to occur of the special
meetings of shareholders of East and West called to consider and vote upon the
Merger (including any adjournments thereof, the "Special Meetings") and except
as otherwise provided herein, Shareholder will not, and will cause any record
holder of East Shares not to, (a) sell or otherwise dispose of any of the East
Shares (provided that the foregoing shall not preclude a pledge of East Shares
as security with respect to a bona fide loan from a financial institution), (b)
deposit any of the East Shares into a voting trust or enter into a voting
agreement or arrangement (other than this Agreement) with respect to any of the
East Shares or grant any proxy with respect thereto, or (c) enter into any
contract, option or other arrangement or undertaking with respect to the direct
or indirect sale, assignment, transfer or other disposition of any of the East
Shares.
SECTION 2. 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,
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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 West, to:
Pacific Retail Trust
0000 Xxxxxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxxx, Xxxxxx & Xxxxx LLP
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: R. Xxxxxxx Xxxxxx
Fax: (000) 000-0000
and 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 Holdings S.A.
00, Xxxxx x'Xxxx
X-0000 Xxxxxxxxxx
Xxxxxxxxx: Xxxxx Xxxx
With a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx
Fax: (000) 000-0000
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SECTION 3. 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 4. 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 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 5. 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 6. CERTAIN EVENTS. Shareholder agrees that this Agreement and
the obligations hereunder shall attach to each of Shareholder's East 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 East Shares shall
pass, whether by operation of law or otherwise. Notwithstanding any transfer of
East Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor.
SECTION 7. ASSIGNMENT; AMENDMENT. This Agreement shall not be assigned
by operation of law or otherwise. This Agreement may not be amended except in
writing signed by each of the parties hereto and without the prior written
consent of East.
SECTION 8. 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 9. 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 10. 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.
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SECTION 11. 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 12. TERMINATION. This Agreement shall terminate automatically
and immediately upon the earlier of (a) termination of the Merger Agreement in
accordance with the terms of Article 8 thereof and (b) the consummation of the
Merger.
SECTION 13. DEFINITIONS. Any capitalized terms used in this Agreement
that are not otherwise defined herein has the meaning given to it in the Merger
Agreement.
SECTION 14. LIMITATION OF LIABILITY. Any obligation or liability
whatsoever of 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 West's assets. 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.
SECTION 15. 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.
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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.
PACIFIC RETAIL TRUST
By:
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
SECURITY CAPITAL HOLDINGS S.A.
By:
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