Green Brick Partners, Inc 8-K, filed Dec 23, 2021
Green Brick Partners, Inc. (GRBK)
8-K
2021-12-23
For: 2021-12-16
View Original
Added on
April 04, 2026
About this 8-K
Green Brick Partners, Inc filed this 8-K on December 23, 2021, reporting on events of December 16, 2021.
Items reported
- Item 3.03: Change to shareholders' rights
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM 8-K
___________________
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 16, 2021
_________________________________________________
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification Number) | ||||||||||||||||||||||||
| , | ||||||||||||||||||||||||||
| , | ||||||||||||||||||||||||||
| (Address of principal executive offices, including Zip Code) | (Registrant’s telephone number, including area code) | |||||||||||||||||||||||||
(Former name or former address, if changed since last report) Not Applicable
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Securities registered pursuant to Section 12(b) of the Act:
Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||||||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 3.03. Material Modifications to Rights of Security Holders.
On December 22, 2021, Green Brick Partners, Inc. (the “Company”) filed the Certificate of Designation (“Certificate of Designation”) for the 5.75% Series A Cumulative Perpetual Preferred Stock (the “Series A Preferred Stock”) with the Secretary of State of the State of Delaware, which became effective upon acceptance for record. The Certificate of Designation classified a total of 50,000 shares of the Company’s authorized shares of preferred stock, $0.01 par value per share, as Series A Preferred Stock. The Company has previously announced that it has agreed to issue and sell an aggregate of 2,000,000 depositary shares (the “Depositary Shares”), each representing 1/1000th of a share of Series A Preferred Stock as well as up to 300,000 Depositary Shares that may be sold pursuant to the exercise of an option to purchase additional Depositary Shares by the Underwriters (as defined below).
As set forth in the Certificate of Designation, the Series A Preferred Stock will rank, as to dividend rights and rights upon the Company’s liquidation, dissolution or winding up: (i) senior to all classes or series of common stock of the Company (the “Common Stock”) and to each other class or series of capital stock issued by the Company, other than any class or series of capital stock issued with terms specifically providing that such class or series of capital stock of the Company ranks senior to or on a parity with the Series A Preferred Stock with respect to the declaration and payment of dividends and the distribution of assets upon the Company’s voluntary or involuntary liquidation, dissolution or winding up; (ii) on a parity with each class or series of capital stock issued by the Company with terms specifically providing that such class or series of capital stock of the Company ranks on a parity with the Series A Preferred Stock with respect to the declaration and payment of dividends and the distribution of assets upon the Company’s voluntary or involuntary liquidation, dissolution or winding up; (iii) junior to each class or series of capital stock issued by the Company with terms specifically providing that such class or series of capital stock of the Company ranks senior to the Series A Preferred Stock with respect to the declaration and payment of dividends and the distribution of assets upon the Company’s voluntary or involuntary liquidation, dissolution or winding up, none of which exists on the date of this Form 8-K; and (iv) effectively junior to all of the Company’s existing and future indebtedness (including indebtedness convertible into Common Stock or preferred stock) and to the indebtedness and other liabilities of (as well as any preferred equity interests held by others in) the Company’s existing or future subsidiaries.
Holders of Series A Preferred Stock, when and as authorized by the Company’s Board of Directors, are entitled to cumulative cash dividends at the rate of 5.75% of the $25,000.00 ($25.00 per Depositary Share) liquidation preference per year (equivalent to 1,437.50 per share per year or $1.4375 per Depositary Share per year). Dividends will be payable quarterly in arrears, on or about the 15th of March, June, September and December, beginning on or about March 15, 2022.
On and after December 23, 2026, the shares of Series A Preferred Stock will be redeemable at the Company’s option, in whole or in part, at a redemption price equal to $25,000.00 per share of Series A Preferred Stock ($25.00 per Depositary Share), plus an amount equal to any accrued and unpaid dividends. Furthermore, upon a change of control (as defined in the Certificate of Designation), the Company will have a special option to redeem the Series A Preferred Stock at $25,000.00 per share of Series A Preferred Stock ($25.00 per Depositary Share), plus an amount per share equal to any accrued and unpaid dividends on such shares.
Holders of the Series A Preferred Stock generally have no voting rights, except for limited voting rights, including if the Company fails to pay dividends on the Series A Preferred Stock for six or more quarterly periods (whether or not consecutive).
The foregoing description does not purport to be a complete description and is qualified in its entirety by reference to the Certificate of Designation, which is filed herewith as Exhibit 3.3 and incorporated by reference into this Item 3.03. The terms of the Depositary Shares are set forth in the Deposit Agreement dated effective as of December 23, 2021, by and among the Company, Continental Stock Transfer & Trust Company, as depositary, and the holders of the depositary receipts issued thereunder (the “Deposit Agreement”). The Deposit Agreement is filed as Exhibit 4.3 hereto.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The information about the Certificate of Designation set forth under Item 3.03 of this Current Report on Form 8-K is hereby incorporated by reference into this Item 5.03.
Item 8.01. Other Events.
On December 16, 2021, the Company entered into an Underwriting Agreement (the “Underwriting Agreement”) with BTIG, LLC as representative of the several underwriters named therein (the “Underwriters”), to issue and sell
an aggregate of 2,000,000 Depositary Shares, as well as up to 300,000 Depositary Shares that may be sold pursuant to the exercise of an option to purchase additional Depositary Shares.
The Underwriting Agreement contains customary representations, warranties and covenants of the Company, customary conditions to closing, indemnification obligations of the Company and the Underwriters, including for liabilities under the Securities Act of 1933, as amended, other obligations of the parties and termination provisions.
The foregoing description of the material terms of the Underwriting Agreement is qualified in its entirety by reference to the full text of the Underwriting Agreement, a copy of which is attached hereto as Exhibit 1.1 and is incorporated herein by reference.
Attached as Exhibit 5.1 to this Current Report and incorporated herein by reference is a copy of the opinion of Greenberg Traurig, LLP relating to the validity of the Depositary Shares and the Series A Preferred Stock (the “Legal Opinion”). The Legal Opinion is also filed with reference to, and is hereby incorporated by reference into, the Registration Statement.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit No. | Description | ||||
| 1.1 | |||||
| 3.3 | |||||
| 4.3 | |||||
| 4.4 | Form of Depositary Receipt (attached to the Deposit Agreement in Exhibit 4.3). | ||||
| 5.1 | |||||
| 23.1 | Consent of Greenberg Traurig, P.A. to the filing of Exhibit 5.1 herewith (included in Exhibit 5.1). | ||||
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). | ||||
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| GREEN BRICK PARTNERS, INC. | ||||||||
| Date: December 23, 2021 | By: | /s/ Richard A. Costello | ||||||
| Richard A. Costello | ||||||||
| Chief Financial Officer | ||||||||
Exhibit 1.1
Execution Version
2,000,000 Depositary Shares
GREEN BRICK PARTNERS, INC.
5.75% Series A Cumulative Perpetual Preferred Stock
(Par Value $0.01 Per Share)
(Par Value $0.01 Per Share)
UNDERWRITING AGREEMENT
December 16, 2021
BTIG, LLC,
600 Montgomery St., 6th Floor,
San Francisco, CA 94111
As Representative of the Underwriters
600 Montgomery St., 6th Floor,
San Francisco, CA 94111
As Representative of the Underwriters
Ladies and Gentlemen:
1.Introductory. Green Brick Partners, Inc., a Delaware corporation (the “Company”), proposes to create and provide for 5.75% Series A Cumulative Perpetual Preferred Stock, $0.01 par value per share, of the Company having a liquidation preference of $25,000.00 per share (the “Preferred Stock”), and to issue and sell to the several Underwriters on Schedule A hereto (the “Underwriters”), for whom BTIG, LLC is acting as Representative (the “Representative”), the number of Depositary Shares (as defined below), each representing, among other things, a 1/1000th fractional ownership in a share of the Preferred Stock (the “Firm Securities”), set forth opposite such Underwriter’s name on Schedule A hereto. The Company also proposes to issue and sell to the Underwriters, at the option of the Representative, on behalf of the Underwriters, an aggregate of not more than 300,000 additional Depositary Shares (the “Optional Securities”) as set forth below. The Firm Securities and the Optional Securities are herein collectively called the “Offered Securities”. The shares of the common stock, $0.01 par value per share, of the Company are hereinafter referred to as the “Common Stock”. Shares of Preferred Stock will be deposited with Continental Stock Transfer & Trust Company, as depositary (the “Depositary”), pursuant to the terms of a deposit agreement to be entered into among the Company, the Depositary and the holders from time to time of “Receipts” (as defined therein and hereinafter, “Depositary Receipts”) issued thereunder (the “Deposit Agreement”). For purposes of this agreement (the “Agreement”), “Depositary Shares” means the “depositary shares” as defined in the Deposit Agreement, each representing, among other things, a 1/1000th fractional ownership interest in a share of the Preferred Stock. The Offered Securities will be issued to Cede & Co., as nominee of the Depository Trust Company (“DTC”), pursuant
to a blanket letter of representations (the “BLOR”) to be dated on or prior to the First Closing Date (as defined herein), between the Company and DTC.
2.Representations and Warranties. The Company represents and warrants to, and agrees with, the Underwriters that:
(a)Filing and Effectiveness of Registration Statement; Certain Defined Terms. The Company has filed with the Commission a registration statement on Form S3 (No. 333-250977), including a related prospectus or prospectuses, covering the registration of the Offered Securities under the Act, which has become effective. “Registration Statement” at any particular time means such registration statement in the form then filed with the Commission, including any amendment thereto, any document incorporated by reference therein and all 430B Information and all 430C Information with respect to such registration statement, that in any case has not been superseded or modified. “Registration Statement” without reference to a time means the Registration Statement as of the Effective Time. For purposes of this definition, 430B Information shall be considered to be included in the Registration Statement as of the time specified in Rule 430B.
For purposes of this Agreement:
“430B Information” means information included in a prospectus then deemed to be a part of the Registration Statement pursuant to Rule 430B(e) or retroactively deemed to be a part of the Registration Statement pursuant to Rule 430B(f).
“430C Information” means information included in a prospectus then deemed to be a part of the Registration Statement pursuant to Rule 430C.
“Act” means the Securities Act of 1933, as amended.
“Applicable Time” means 4:10 p.m. (Eastern time) on the date of this Agreement.
“Closing Date” has the meaning defined in Section 3 hereof.
“Commission” means the Securities and Exchange Commission.
“Effective Time” of the Registration Statement relating to the Offered Securities means the time of the first contract of sale for the Offered Securities.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Final Prospectus” means the Statutory Prospectus that discloses the public offering price, other 430B Information and other final terms of the Offered Securities and otherwise satisfies Section 10(a) of the Act.
2
“General Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors, as evidenced by its being so specified in Schedule B to this Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Offered Securities in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
“Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not a General Use Issuer Free Writing Prospectus.
“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Laws” means, collectively, the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley”), the Act, the Exchange Act, the Rules and Regulations, the auditing principles, rules, standards and practices applicable to auditors of “issuers” (as defined in Sarbanes-Oxley) promulgated or approved by the Public Company Accounting Oversight Board and the rules of the NYSE (as defined below) (“Exchange Rules”).
“Statutory Prospectus” with reference to any particular time means the prospectus relating to the Offered Securities that is included in the Registration Statement immediately prior to that time, including all 430B Information and all 430C Information with respect to the Registration Statement. For purposes of the foregoing definition, 430B Information shall be considered to be included in the Statutory Prospectus only as of the actual time that form of prospectus (including a prospectus supplement) is filed with the Commission pursuant to Rule 424(b) and not retroactively.
Unless otherwise specified, a reference to a “Rule” is to the indicated Rule under the Act.
(b)Compliance with Act Requirements. (i) (A) At the time the Registration Statement initially became effective, (B) at the time of each amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether by posteffective amendment, incorporated report or form of prospectus), (C) at the Effective Time relating to the Offered Securities and (D) on the Closing Date, the Registration Statement conformed and will conform in all respects to the requirements of the Act and the Rules and Regulations and did not and will not include any 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 not misleading and (ii) (A) on its date, (B) at the time of filing the Final Prospectus pursuant to Rule 424(b) and (C) on the Closing Date, the Final Prospectus will conform in all respects to the requirements of the Act and the Rules and Regulations, and will not include any 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 not misleading. The preceding sentence does not apply to statements in or omissions from any such document based upon written
3
information furnished to the Company by any Underwriter through or on behalf of the Representative specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 8(b) hereof.
(c)Shelf Registration Statement. The date of this Agreement is not more than three years subsequent to the initial effective time of the Registration Statement. If, immediately prior to the third anniversary of the initial effective time of the Registration Statement, any of the Offered Securities remain unsold by the Underwriters, the Company will prior to that third anniversary file, if it has not already done so, a new shelf registration statement relating to the Offered Securities, in a form satisfactory to the Underwriters, will use its best efforts to cause such registration statement to be declared effective within 180 days after that third anniversary, and will take all other action necessary or appropriate to permit the public offering and sale of the Offered Securities to continue as contemplated in the expired registration statement relating to the Offered Securities. References herein to the Registration Statement shall include such new shelf registration statement. The Company has paid the registration fee for the offering contemplated by this Agreement pursuant to the Rules and Regulations.
(d)Ineligible Issuer Status. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest time thereafter that the Company or any offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Offered Securities and as of the date hereof, the Company was not and is not an “ineligible issuer”, as defined in Rule 405.
(e)General Disclosure Package; Issuer Free Writing Prospectuses. (I) As of the Applicable Time, neither (i) the General Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time and the preliminary prospectus supplement, dated December 15, 2021, including the base prospectus, dated December 4, 2020 (which is the most recent Statutory Prospectus distributed to investors generally), and the other information, set forth on Schedule B to this Agreement, including a pricing term sheet substantially in the form of Schedule C to this Agreement, to be included in the General Disclosure Package, all considered together (collectively, the “General Disclosure Package”) nor (ii) any individual Limited Use Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Statutory Prospectus or any Issuer Free Writing Prospectus in reliance upon and in conformity with written information furnished to the Company by any Underwriter through or on behalf of the Representative specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 8(b) hereof. (II) Each Issuer Free Writing Prospectus,
4
as of its issue date and at all subsequent times through the completion of the public offer and sale of the Offered Securities or until any earlier date that the Company notified or notifies the Underwriters as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information then contained in the Registration Statement. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information then contained in the Registration Statement or as a result of which such Issuer Free Writing Prospectus, if republished immediately following such event or development, would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (i) the Company has promptly notified or will promptly notify the Underwriters and (ii) the Company has promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(f)Good Standing of the Company. The Company has been duly incorporated and is existing and in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the General Disclosure Package; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not and would not reasonably be expected to (1) result in a material adverse effect on the properties, business, results of operations, condition (financial or otherwise) or affairs of the Company and its subsidiaries, taken as a whole, or (2) materially and adversely affect the ability of the Company to perform its obligations under this Agreement (a “Material Adverse Effect”).
(g)Subsidiaries. Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X of the Rules and Regulations, but substituting 5% in place of 10% in such definition, a “Significant Subsidiary”) of the Company has been duly incorporated or formed and is existing as a corporation or other entity and in good standing under the laws of the jurisdiction of its incorporation or formation, with all requisite power and authority (corporate and other) to carry on its business as it is currently being conducted and to own or lease its properties as described in the General Disclosure Package; and each Significant Subsidiary of the Company is duly qualified to do business as a foreign corporation or other entity in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have, and would not reasonably be expected to have, a Material Adverse Effect; all of the issued and outstanding capital stock or equity
5
interests of each Significant Subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and, except as described in the General Disclosure Package, the capital stock or equity interests of each Significant Subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances and defects. The subsidiaries listed on Schedule D attached hereto constitute all the Significant Subsidiaries of the Company.
(h)Offered Securities. The shares of capital stock of the Company outstanding prior to the issuance of the Offered Securities have been duly authorized and are validly issued, fully paid and nonassessable and conform to the information in the General Disclosure Package; the Preferred Stock has been duly authorized and, when the shares of Preferred Stock deposited with the Depositary pursuant to the terms of the Deposit Agreement are issued against payment therefor, and certificates evidencing such shares are delivered by the Company in accordance with the terms of the Deposit Agreement, such shares will be validly issued, fully paid and nonassessable; the Offered Securities (evidenced by the related Depositary Receipts), when issued, and the Deposit Agreement, will conform in all material respects to the description thereof contained in the General Disclosure Package and in the Final Prospectus; the deposit of the shares of Preferred Stock deposited with the Depositary pursuant to the terms of the Deposit Agreement has been duly authorized and, when the Offered Securities (evidenced by the related Depositary Receipts) are issued and delivered in accordance with the terms of the Deposit Agreement, the Offered Securities will represent legal and valid interests in the shares of Preferred Stock deposited with the Depositary, and the Offered Securities (evidenced by the related Depositary Receipts) will entitle the holders thereof to the powers (including voting powers), if any, preferences and relative, participating, optional, special and other rights, if any, and subject to the qualifications, limitations or restrictions, if any, provided in the Certificate of Designation of the 5.75% Series A Cumulative Perpetual Preferred Stock of the Company filed with the Secretary of State of the State of Delaware (the “COD”) and the rights provided in the Deposit Agreement; the authorized equity capitalization of the Company is as set forth in the General Disclosure Package; the stockholders of the Company have no preemptive rights with respect to the Offered Securities; and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive or similar rights of any security holder. Except as disclosed in the General Disclosure Package, there are no outstanding (A) securities or obligations of the Company convertible into or exchangeable for any capital stock of the Company, (B) warrants, rights or options to subscribe for or purchase from the Company any such capital stock or any such convertible or exchangeable securities or obligations or (C) obligations of the Company to issue or sell any shares of capital stock, any such convertible or exchangeable securities or obligations or any such warrants, rights or options. The Company has not, directly or indirectly, offered or sold any of the Offered Securities by means of any “prospectus” (within the meaning of the Act and the Rules and Regulations) or used any “prospectus” or
6
made any offer (within the meaning of the Act and the Rules and Regulations) in connection with the offer or sale of the Offered Securities, in each case other than the preliminary prospectus supplement referred to in Section 2(d) hereof.
(i)Other Offerings. The Company has not sold, issued or distributed any preferred stock of the Company during the six-month period preceding the date hereof, including any sales pursuant to Rule 144A under, or Regulation D or S of, the Act.
(j)No Finder’s Fee. Except as disclosed in the General Disclosure Package, there are no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(k)Registration Rights. Except as disclosed in the General Disclosure Package, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to a Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Act.
(l)Listing. The Offered Securities have been approved for listing on The New York Stock Exchange (“NYSE”), subject to notice of issuance.
(m)Absence of Further Requirements. No consent, approval, authorization or order of, or filing or registration with, any person (including any governmental agency or body or any court) is required for the consummation of the transactions contemplated by this Agreement, the Deposit Agreement and the BLOR in connection with the offering, issuance and sale of the Offered Securities by the Company, except such as have been obtained or made and such as may be required under state securities laws.
(n)Title to Property. Except as disclosed in the General Disclosure Package, (i) the Company and its subsidiaries have good and marketable title to all real properties and all other properties and assets owned by them, in each case free from liens, charges, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by them and (ii) the Company and its subsidiaries have peaceful and undisturbed possession under all leases to which any of them is a party as lessee and each such lease is valid and binding and no default exists thereunder, except, in the case of clause (ii), as, individually or in the aggregate, would not have, and would not reasonably be expected to have, a Material Adverse Effect.
7
(o)Absence of Defaults and Conflicts Resulting from Transaction. The execution, delivery and performance of this Agreement and the Deposit Agreement, and the issuance and sale of the Offered Securities, will not result in a breach or violation of any of the terms and provisions of, or constitute a default or a Debt Repayment Triggering Event (as defined below) under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, (i) the charter or by-laws of the Company or any of its Significant Subsidiaries, (ii) any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their properties, or (iii) any agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the properties of the Company or any of its subsidiaries is subject, except, in the case of clauses (ii) and (iii), as, individually or in the aggregate, would not have, and would not reasonably be expected to have, a Material Adverse Effect; a “Debt Repayment Triggering Event” means any event or condition that gives, or with the giving of notice or lapse of time would give, the holder of any note, debenture, or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the applicable issuer, borrower or other debtor or any of its Significant Subsidiaries.
(p)Absence of Existing Defaults and Conflicts. Neither the Company nor any of its Significant Subsidiaries is (i) in violation of its respective charter or by-laws or (ii) in default (or with the giving of notice or lapse of time would be in default) under any existing obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument to which any of them is a party or by which any of them is bound or to which any of the properties of any of them is subject, except, in the case of clause (ii), for such defaults as, individually or in the aggregate, would not have, and would not reasonably be expected to have, a Material Adverse Effect.
(q)Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(r)Authorization of Deposit Agreement. The Deposit Agreement has been duly authorized by the Company and, as of the First Closing Date, will be duly executed and delivered by the Company and, assuming it has been executed and delivered by the Depositary, will constitute a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or law).
8
(s)Authorization of BLOR. The BLOR has been duly authorized, executed and delivered by the Company and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or law).
(t)Performance of Agreement, Deposit Agreement and BLOR. The Company has the full right, power and authority to execute and deliver, and perform its obligations under, this Agreement, the Deposit Agreement and the BLOR.
(u)Possession of Licenses and Permits. The Company and its subsidiaries possess, and are in compliance with the terms of, all adequate certificates, authorizations, franchises, licenses and permits (“Licenses”) necessary or material to the conduct of the business now conducted or proposed in the General Disclosure Package to be conducted by them and have not received any notice of proceedings relating to the revocation or modification of any Licenses that, if determined adversely to the Company or any of its subsidiaries, individually or in the aggregate, would have, or would reasonably be expected to have, a Material Adverse Effect.
(v)Absence of Labor Dispute. No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent that, individually or in the aggregate, would have, or would reasonably be expected to have, a Material Adverse Effect.
(w)Possession of Intellectual Property. The Company and its subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, “intellectual property rights”) necessary to conduct the business now operated by them, or presently employed by them, and have not received any notice of infringement of or conflict with asserted rights of others with respect to any intellectual property rights that, if determined adversely to the Company or any of its subsidiaries, individually or in the aggregate, would have, or would reasonably be expected to have, a Material Adverse Effect.
(x)Accurate Disclosure. The statements in the General Disclosure Package and the Final Prospectus under the headings “Material United States Federal Income Tax Considerations for Non-U.S. Holders”, “Description of Capital Stock” and “Description of Series A Preferred Stock and the Depositary Shares”, insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of
9
such legal matters, agreements, documents or proceedings and present the information required to be shown.
(y)Absence of Manipulation. The Company has not taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Offered Securities.
(z)Statistical and Market-Related Data. Any third-party statistical and market-related data included or incorporated by reference in a Registration Statement, a Statutory Prospectus or the General Disclosure Package are based on or derived from sources that the Company believes to be reliable and accurate.
(aa)Internal Controls and Compliance with Sarbanes-Oxley. The Company, its subsidiaries and the Company’s Board of Directors (the “Board”) are in compliance, in all material respects, with all applicable provisions of Sarbanes-Oxley and all applicable Exchange Rules. The Company maintains a system of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act), including, but not limited to, internal controls over accounting matters and financial reporting, an internal audit function and legal and regulatory compliance controls, and disclosure controls and procedures (collectively, “Internal Controls”) that comply with the Securities Laws and are sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with U.S. generally accepted accounting principles (“GAAP”) and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences and (v) the interactive data in eXtensible Business Reporting Language included or incorporated by reference in any Registration Statement, any Statutory Prospectus and the General Disclosure Package fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto. The Internal Controls are overseen by the Audit Committee (the “Audit Committee”) of the Board in accordance with Exchange Rules. Except as set forth in the General Disclosure Package, the Company has not publicly disclosed or reported to the Audit Committee or the Board, and within the next 135 days the Company does not reasonably expect to publicly disclose or report to the Audit Committee or the Board, any significant deficiency, material weakness, change that has materially adversely affected, or is reasonably likely to materially adversely affect, the Company’s Internal Controls or fraud involving management or other employees who have a significant role in Internal Controls, any violation of, or failure to comply with, the Securities Laws, or any matter which, if determined adversely, individually or in the aggregate, would have, or would reasonably be expected to have, a Material Adverse Effect.
10
(ab)Litigation. Except as disclosed in the General Disclosure Package, there are no pending actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) against or affecting the Company, any of its subsidiaries or any of their respective properties that, if determined adversely to the Company or any of its subsidiaries, individually or in the aggregate, would have, or would reasonably be expected to have, a Material Adverse Effect, or which are otherwise material in the context of the sale of the Offered Securities; and no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are to the Company’s knowledge threatened or contemplated.
(ac)Financial Statements. The financial statements included in the Registration Statement and the General Disclosure Package present fairly in all material respects the financial position of the Company and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and such financial statements have been prepared in conformity with GAAP applied on a consistent basis. RSM US LLP, which has certified the financial statements of the Company as of and for the years ended December 31, 2020, 2019 and 2018 included in, or incorporated by reference into, the General Disclosure Package and the Final Prospectus, is an independent registered public accounting firm with respect to the Company within the Rules and Regulations and as required by the Act and the applicable rules and guidance from the Public Company Accounting Oversight Board (United States). The summary and selected financial data included in the Registration Statement, the General Disclosure Package and the Final Prospectus presents fairly in all material respects the information shown therein and such data has been compiled on a basis consistent with the financial statements presented therein and the books and records of the Company. The Company does not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations or any “variable interest entities” within the meaning of Financial Accounting Standards Board Interpretation No. 46), not disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus. There are no financial statements that are required to be included in the Registration Statement, the General Disclosure Package or the Final Prospectus that are not included as required.
(ad)No Material Adverse Change in Business. Except as disclosed in the General Disclosure Package, since the end of the period covered by the latest audited financial statements included in the General Disclosure Package (i) there has been no change, nor any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole that is material and adverse, (ii) except as disclosed in or contemplated by the General Disclosure Package, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock,
11
(iii) except as disclosed in or contemplated by the General Disclosure Package, there has been no material adverse change in the capital stock, short-term indebtedness, long-term indebtedness, net current assets or net assets of the Company and its subsidiaries, (iv) there has been no material transaction entered into, and there is no material transaction that is probable of being entered into, by the Company or any of its subsidiaries other than transactions in the ordinary course of business, (v) there has been no obligation, direct or contingent, that is material to the Company and its subsidiaries taken as a whole, incurred by the Company or any of its subsidiaries, except obligations incurred in the ordinary course of business and (vi) neither the Company nor any of its subsidiaries has sustained any loss or interference with its business that is material to the Company and its subsidiaries, taken as a whole, from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority.
(ae)Investment Company Act. The Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(af)Ratings. No “nationally recognized statistical rating organization” as such term is defined for purposes of Section 3(a)(62) of the Exchange Act (i) has imposed (or has informed the Company that it is considering imposing) any condition (financial or otherwise) on the Company’s retaining any rating assigned to the Company or any securities of the Company or (ii) has indicated to the Company that it is considering any of the actions described in Section 7(c)(ii) hereof.
(ag)Taxes. The Company and its subsidiaries have filed all federal, state, local and non-U.S. tax returns that are required to be filed or have requested extensions thereof (except in any case in which the failure so to file, individually or in the aggregate, would not have, and would not reasonably be expected to have, a Material Adverse Effect); and, except as set forth in the General Disclosure Package, the Company and its subsidiaries have paid all taxes (including any assessments, fines or penalties) required to be paid by them, except for any such taxes, assessments, fines or penalties currently being contested in good faith or as, individually or in the aggregate, would not have, and would not reasonably be expected to have, a Material Adverse Effect.
(ah)Insurance. The Company and its subsidiaries are insured by insurers with appropriately rated claims paying abilities against such losses and risks and in such amounts as are prudent and customary for the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Company or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; the Company
12
and its subsidiaries are in compliance with the terms of such policies and instruments in all material respects; and there are no claims by the Company or any of its subsidiaries under any such policy or instrument as to which, to the Company’s knowledge, any insurance company is denying liability or defending under a reservation of rights clause; neither the Company nor any such subsidiary has been refused any insurance coverage sought or applied for; and neither the Company nor any such subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that, individually or in the aggregate, would not have, and would not reasonably be expected to have, a Material Adverse Effect, except as set forth in or contemplated in the General Disclosure Package.
(ai)Environmental Matters. Except as disclosed in the General Disclosure Package, (i) (A) neither the Company nor any of its subsidiaries is in violation of, or has any liability under, any federal, state, local or non-U.S. statute, law, rule, regulation, ordinance, code, other requirement or rule of law (including common law), or decision or order of any domestic or foreign governmental agency, governmental body or court, relating to pollution, to the use, handling, transportation, treatment, storage, discharge, disposal or release of Hazardous Substances (as defined below), to the protection or restoration of the environment or natural resources (including biota), to health and safety including as such relates to exposure to Hazardous Substances, and to natural resource damages (collectively, “Environmental Laws”), (B) neither the Company nor any of its subsidiaries owns, occupies, operates or uses any real property contaminated with Hazardous Substances, (C) neither the Company nor any of its subsidiaries is conducting or funding any investigation, remediation, remedial action or monitoring of actual or suspected Hazardous Substances in the environment, (D) neither the Company nor any of its subsidiaries is liable or allegedly liable for any release or threatened release of Hazardous Substances, including at any off-site treatment, storage or disposal site, (E) neither the Company nor any of its subsidiaries is subject to any claim by any governmental agency or governmental body or person relating to Environmental Laws or Hazardous Substances, and (F) the Company and its subsidiaries have received and are in compliance with all, and have no liability under any, permits, licenses, authorizations, identification numbers or other approvals required under applicable Environmental Laws to conduct their respective businesses, except in each case covered by subclauses (A) – (F) above such as, individually or in the aggregate, would not have, and would not reasonably be expected to have, a Material Adverse Effect; (ii) to the knowledge of the Company there are no facts or circumstances that would reasonably be expected to result in a violation of, liability under, or claim pursuant to any Environmental Law that, individually or in the aggregate, would have, or would reasonably be expected to have, a Material Adverse Effect; (iii) to the knowledge of the Company there are no requirements proposed for adoption or implementation under any Environmental Law that, individually or in the aggregate, would have, or would reasonably be expected to
13
have, a Material Adverse Effect; and (iv) in the ordinary course of its business, the Company periodically evaluates the effect, including associated costs and liabilities, of Environmental Laws on the business, properties, results of operations and financial condition of it and its subsidiaries, and, on the basis of such evaluation, the Company has reasonably concluded that such Environmental Laws, individually or in the aggregate, would not have, and would not reasonably be expected to have, a Material Adverse Effect. For purposes of this subsection “Hazardous Substances” means (x) petroleum and petroleum products, by-products or breakdown products, radioactive materials, asbestos-containing materials, polychlorinated biphenyls and mold and (y) any other chemical, material or substance defined or regulated as toxic or hazardous or as a pollutant, contaminant or waste under Environmental Laws.
(aj)Compliance with Anti-Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(ak)Compliance with OFAC. None of the Company, any of its subsidiaries, or, to the Company’s knowledge, any director or officer of the Company, any agent, employee or affiliate of the Company or any of its subsidiaries is currently subject to any sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company will not, directly or indirectly, use the proceeds from the sale of the Offered Securities sold by it, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(al)No Unlawful Payments. None of the Company, any of its subsidiaries, or, to the Company’s knowledge, any director or officer of the Company, any agent, employee or other affiliate of the Company or any of its subsidiaries, is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or
14
official thereof or any candidate for foreign political office, in contravention of the FCPA; and the Company, its subsidiaries and, to the knowledge of the Company, their respective affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(am)No Restrictions on Payments by Subsidiaries. Except as described in the General Disclosure Package, no subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, (i) from paying any dividends to the Company, (ii) from making any other distribution on such subsidiary’s capital stock, (iii) from repaying to the Company any loans or advances to such subsidiary from the Company or (iv) from transferring any of such subsidiary’s material properties or assets to the Company or any other subsidiary of the Company.
(an)Cybersecurity. (i)(x) Except as disclosed in the General Disclosure Package, to the knowledge of the Company there has been no security breach or other compromise of or relating to any of the Company’s or its subsidiaries’ information technology and computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and Data”) and (y) the Company and its subsidiaries have not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any security breach or other compromise to their IT Systems and Data, except as would not, in the case of this clause (i), individually or in the aggregate, have or reasonably be expected to have a Material Adverse Effect; and (ii) to the knowledge of the Company, the Company and its subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as would not, in the case of this clause (ii), individually or in the aggregate, have or reasonably be expected to have a Material Adverse Effect.
3.Purchase, Sale and Delivery of Offered Securities. On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company hereby agrees to sell to the several Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase price of $24.125 per share, that number of shares of Firm Securities set forth opposite its name in Schedule A hereto.
The Company will deliver the Firm Securities to the several Underwriters (or as otherwise instructed by the Underwriters) in a form reasonably acceptable to the Underwriters against payment of the purchase price therefor by the Underwriters in
15
Federal (same day) funds by wire transfer to an account at a bank specified by the Company and acceptable to the Underwriters, at the office of Cravath, Swaine & Moore LLP, 825 Eighth Avenue, New York, NY 10019-7475 at 9:00 A.M., New York time, on December 23, 2021, or at such other time not later than seven full business days thereafter as the Underwriters and the Company determine, such time being herein referred to as the “First Closing Date”. For purposes of Rule 15c6-1 under the Exchange Act, the First Closing Date (if later than the otherwise applicable settlement date) shall be the settlement date for payment of funds and delivery of securities for all the Offered Securities sold pursuant to the offering. The Firm Securities so to be delivered or evidence of their issuance will be made available for checking at the above office of Cravath, Swaine & Moore LLP at least 24 hours prior to the First Closing Date.
In addition, upon written notice from the Representative given to the Company from time to time not more than 30 days subsequent to the date of the Final Prospectus, the Underwriters may purchase all or less than all of the Optional Securities at the purchase price per Offered Security to be paid for the Firm Securities, determined in accordance with the first paragraph of this Section 3. The Company agrees to sell to the Underwriters the Optional Securities specified in such notice or notices and the Underwriters agree, severally and not jointly, to purchase such Optional Securities. Such Optional Securities shall be purchased for the account of each Underwriter in the same proportion as the number of shares of Firm Securities set forth opposite such Underwriter’s name bears to the total number of shares of Firm Securities (subject to adjustment by the Underwriters to eliminate fractions). No Optional Securities shall be sold or delivered unless the Firm Securities previously have been, or simultaneously are, sold and delivered. The right to purchase the Optional Securities or any portion thereof may be exercised from time to time and to the extent not previously exercised may be surrendered and terminated at any time upon notice by the Underwriters to the Company.
Each time for the delivery of and payment for the Optional Securities, being herein referred to as an “Optional Closing Date”, which may be the First Closing Date (the First Closing Date and each Optional Closing Date, if any, being sometimes referred to as a “Closing Date”), shall be determined by the Underwriters but shall be not later than five full business days after written notice of election to purchase Optional Securities is given. The Company will deliver the Optional Securities being purchased on each Optional Closing Date to the several Underwriters (or as otherwise instructed by the Underwriters) in a form reasonably acceptable to the Underwriters against payment of the purchase price therefor in Federal (same day) funds by wire transfer to an account at a bank specified by the Company and acceptable to the Underwriters, at the above office of Cravath, Swaine & Moore LLP. The Optional Securities being purchased on each Optional Closing Date or evidence of their issuance will be made available for checking at the above office of Cravath, Swaine & Moore LLP at a reasonable time in advance of such Optional Closing Date.
16
4.Offering by the Underwriters. It is understood that the several Underwriters propose to offer the Firm Securities and, if applicable, the Optional Securities for sale to the public as set forth in the Final Prospectus.
5.Certain Agreements of the Company. The Company agrees with the several Underwriters that:
(a)Filing of Prospectuses. The Company has filed or will file each Statutory Prospectus (including the Final Prospectus) pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and consented to by the Underwriters, Rule 424(b)(5)) not later than the second business day following the earlier of the date it is first used or the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433.
(b)Filing of Amendments; Response to Commission Requests. The Company will promptly advise the Representative of any proposal to amend or supplement the Registration Statement or any Statutory Prospectus at any time and will offer the Representative a reasonable opportunity to comment on any such amendment or supplement; and the Company will also advise the Representative promptly of (i) the filing of any such amendment or supplement, (ii) any request by the Commission or its staff for any amendment to the Registration Statement, for any supplement to any Statutory Prospectus or for any additional information, (iii) the institution by the Commission of any stop order proceedings in respect of the Registration Statement or, to the Company’s knowledge, the threatening of any proceeding for that purpose, and (iv) the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities in any jurisdiction or the institution or threatening of any proceedings for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c)Continued Compliance with Securities Laws. If, at any time when a prospectus relating to the Offered Securities is (or but for the exemption in Rule 172 would be) required to be delivered under the Act by any Underwriter or dealer, any event occurs as a result of which the Final Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Registration Statement or supplement the Final Prospectus to comply with the Act, the Company will promptly notify the Underwriters of such event and the Company will promptly prepare and file with the Commission and furnish, at its own expense, to the Underwriters and the dealers and any other dealers upon request of the Underwriters, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Underwriters’ consent to, nor the Underwriters’ delivery
17
of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7 hereof.
(d)Rule 158. As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Act and Rule 158.
(e)Furnishing of Prospectuses. The Company will furnish to the Underwriters copies of the Registration Statement, including all exhibits, any Statutory Prospectus, the Final Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Underwriters reasonably request. The Final Prospectus shall be so furnished on or prior to 5:00 p.m. (Eastern time) on the second business day following the execution and delivery of this Agreement. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f)Blue Sky Qualifications. The Company will arrange for the qualification of the Offered Securities for sale under the laws of such jurisdictions as the Underwriters designate and will continue such qualifications in effect so long as required for the distribution, except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any such jurisdiction or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise subject.
(g)Reserved.
(h)Payment of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including but not limited to any filing fees and other reasonable expenses (including reasonable and documented fees and disbursements of counsel to the Underwriters) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as the Underwriters designate and the preparation and printing of memoranda relating thereto (which shall not exceed $5,000), costs and expenses relating to investor presentations or any “road show” as defined in Rule 433(h) under the Securities Act (a “road show”) in connection with the offering and sale of the Offered Securities including, without limitation, any travel expenses of the Company’s officers and employees and any other expenses of the Company including the chartering of airplanes (provided, that the Company shall pay only fifty percent (50%) of the cost of aircraft (if any) chartered in connection with the road show), fees and expenses incident to listing the Offered Securities on NYSE, fees and expenses in connection with the registration of the Offered Securities under the Act, and expenses incurred in distributing preliminary prospectuses and the Final Prospectus (including any amendments and supplements thereto) to the Underwriters. It is understood that, except as
18
provided in this Agreement, the Underwriters will pay all of their own costs and expenses incurred in connection with the offering and the other transactions contemplated hereby, including fees and disbursements of their own counsel.
(i)Reserved.
(j)Absence of Manipulation. The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company to facilitate the sale or resale of the Offered Securities.
(k)Restriction on Sale of Securities by the Company. For the period specified below (the “Lock-Up Period”), the Company will not, directly or indirectly, take any of the following actions with respect to any preferred stock of the Company or depositary shares representing interests therein or any securities convertible into or exchangeable or exercisable for preferred stock of the Company or depositary shares representing interests therein (“Lock-Up Securities”): (i) offer, sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iii) enter into any swap, hedge or any other agreement that transfers, in whole or in part, the economic consequences of ownership of Lock-Up Securities, (iv) establish or increase a put equivalent position or liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16 of the Exchange Act or (v) file with the Commission a registration statement under the Act relating to Lock-Up Securities, or publicly disclose the intention to take any such action, without the prior written consent of the Representative, except grants of stock options, stock awards, restricted stock, restricted stock units, or other equity awards and the issuance of shares of Preferred Stock or securities convertible into or exercisable or exchangeable for shares of Preferred Stock (whether upon the exercise of stock options or otherwise) to the Company’s employees, officers, and directors pursuant to the terms of the Company’s equity compensation plan in effect on the date hereof and described in the Registration Statement and the General Disclosure Package. The Lock-Up Period will commence on the date hereof and continue for 45 days after the date hereof or such earlier date that the Representative consents to in writing.
(l)COD. Prior to the First Closing Date, the Board shall adopt the COD and establish the rights, preferences and entitlements thereof, which shall conform in all material respects to the description thereof in the General Disclosure Package and to the description of such Offered Securities contained in the Final Prospectus. The Company shall file such COD with the Secretary of State of the State of Delaware, accompanied by all fees required to be paid therewith, and cause the COD to become effective on or prior to the Closing Date.
19
6.Free Writing Prospectuses. The Company represents and agrees that, unless it obtains the prior consent of the Underwriters (not to be unreasonably withheld or delayed), and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company (not to be unreasonably withheld or delayed), it has not made and will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Underwriters is hereinafter referred to as a “Permitted Free Writing Prospectus”. The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. The Company represents that it has satisfied and agrees that it will satisfy the conditions in Rule 433 to avoid a requirement to file with the Commission any electronic road show.
7.Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties of the Company herein as though made on such Closing Date, to the accuracy of the statements of Company officers and authorized signatories made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to the following additional conditions precedent:
(a)Accountants’ Comfort Letters. The Underwriters shall have received letters, dated, respectively, the date hereof and each Closing Date, from RSM US LLP, in form and substance satisfactory to the Underwriters, confirming that it is or was at all relevant times a registered public accounting firm and an independent public accountant within the meaning of the Securities Laws and containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Final Prospectus (except that any letter dated a Closing Date shall use a “cut off” date no more than three days prior to such Closing Date).
(b)Filing of Prospectus. The Final Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 5(a) hereof. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or any Underwriter, shall be contemplated by the Commission.
(c)No Material Adverse Change. Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any
20
development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole which, in the judgment of the Underwriters, is material and adverse and makes it impractical or inadvisable to market the Offered Securities; (ii) any downgrading in the rating of any debt securities or preferred stock of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) of the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities or preferred stock of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls the effect of which is such as to make it, in the judgment of the Underwriters, impractical to market or to enforce contracts for the sale of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any suspension or material limitation of trading in securities generally on the New York Stock Exchange or on Nasdaq, or any setting of minimum or maximum prices for trading on such exchange; (v) or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by any U.S. federal or New York authorities; (vii) any major disruption of settlements of securities, payment, or clearance services in the United States or any other country where such securities are listed; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Underwriters, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to make it impractical or inadvisable to market the Offered Securities or to enforce contracts for the sale of the Offered Securities.
(d)Opinion and 10b-5 Statement of Counsel for Company. The Underwriters shall have received an opinion and 10b-5 statement, dated such Closing Date, of Greenberg Traurig, LLP, counsel for the Company, in the form of Exhibit A hereto.
(e)Opinion and 10b-5 Statement of Counsel for the Underwriter. The Underwriters shall have received from Cravath, Swaine & Moore LLP, counsel for the Underwriters, such opinion or opinions and 10b-5 statement, dated such Closing Date, with respect to such matters as the Underwriters may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f)Reserved.
(g)Officers’ Certificate. The Underwriters shall have received a certificate, dated such Closing Date, of an executive officer of the Company and a
21
principal financial or accounting officer of the Company in which such officers shall state that: the representations and warranties of the Company in this Agreement are true and correct; the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date; no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge and after reasonable investigation, are contemplated by the Commission; and, subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole except as set forth in the General Disclosure Package or as described in such certificate.
(h)Tax Forms. The Company shall have delivered to the Underwriters prior to or on such Closing Date properly completed and executed United States Treasury Department Forms W-8 or W-9 (or other applicable forms or statements specified by Treasury Department regulations in lieu thereof), as applicable.
(i)FinCEN Certificate. On or before the date of this Agreement, the Underwriters shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Underwriters, along with such additional supporting documentation as the Underwriters have requested in connection with the verification of the foregoing certificate.
(j)The Company and the Depositary shall have executed and delivered the Deposit Agreement and the Depositary Receipts to the Underwriters.
The Company will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Underwriters reasonably request. The Underwriters may in their sole discretion waive compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of an Optional Closing Date or otherwise.
8.Indemnification and Contribution. Indemnification of the Underwriters by the Company. The Company will indemnify and hold harmless each Underwriter, its partners, members, directors, officers, employees, agents, affiliates and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an “Indemnified Party”), against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any part of the Registration Statement
22
at any time, any Statutory Prospectus as of any time, the General Disclosure Package at any time, the Final Prospectus or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission of a material fact required to be stated therein or necessary in order to make the statements therein not misleading, and will reimburse each Indemnified Party for any reasonable and documented legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to any of the above as such expenses are incurred; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through or on behalf of the Representative specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 8(b) below.
(b)Indemnification of Company. Each Underwriter will severally and not jointly indemnify and hold harmless the Company, each of its directors and each of its officers who signs a Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an “Underwriter Indemnified Party”), against any losses, claims, damages or liabilities to which such Underwriter Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any part of the Registration Statement at any time, any Statutory Prospectus as of any time, the General Disclosure Package at any time or the Final Prospectus, or arise out of or are based upon the omission or the alleged omission of a material fact required to be stated therein or necessary in order to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Underwriter through or on behalf of the Representative specifically for use therein, and will reimburse any reasonable and documented legal or other expenses reasonably incurred by such Underwriter Indemnified Party in connection with investigating or defending against any such loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Underwriter Indemnified Party is a party thereto), whether threatened or commenced, based upon any such untrue statement or omission, or any such alleged untrue statement or omission as such expenses are incurred, it being understood and agreed that the only such information furnished by any Underwriter through or on behalf of the Representative consists of the following information in the Final Prospectus
23
furnished on behalf of each Underwriter: the concession figures appearing in the fourth paragraph under the caption “Underwriting” and the information contained in the tenth paragraph (related to stabilizing transactions, syndicate covering transactions, penalty bids and passive market making) and eleventh paragraph (related to electronic prospectus distribution) under the caption “Underwriting”.
(c)Actions against Parties; Notification. Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b), notify the indemnifying party of the commencement thereof; provided that the failure to notify the indemnifying party shall not relieve it from any liability that it may have under subsection (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under subsection (a) or (b) above. In case any such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided that in any such action, 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 contrary or (ii) the named parties in any such proceeding (including any impleaded parties) included both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (and in which case the indemnifying party shall not have the right to assume the defense of such proceeding); provided further that, with respect to each action or proceeding for which indemnification is sought under this Section, the indemnifying party shall only be required to pay the fees and expenses of one firm of counsel for all indemnified parties in connection with such action or proceeding and, if necessary, one local counsel in each relevant jurisdiction and special counsel for each relevant specialty. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of 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 (i) includes an unconditional release of
24
such indemnified party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an indemnified party. No indemnifying party shall be liable for any settlement or compromise of, or consent to the entry of judgment with respect to, any such action or claim effected without its consent (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated herein effected without its written consent if (x) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (y) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (z) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(d)Contribution. If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Offered Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and 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. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters. The relative fault shall be determined by reference to, among other things, whether the untrue statement 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 the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any reasonable and documented legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by
25
which the total price at which the Offered 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. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 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 this Section 8(d).
(e)The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Party or Underwriter Indemnified Party at law or in equity.
9.Default of Underwriters. If any Underwriter or Underwriters default in their obligations to purchase Offered Securities hereunder on either the First Closing Date or any Optional Closing Date and the aggregate number of shares of Offered Securities that such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of the total number of shares of Offered Securities that the Underwriters are obligated to purchase on such Closing Date, the Underwriters may make arrangements satisfactory to the Company for the purchase of such Offered Securities by other persons, including any of the Underwriters, but if no such arrangements are made by such Closing Date, the non-defaulting Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the Offered Securities that such defaulting Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters so default and the aggregate number of shares of Offered Securities with respect to which such default or defaults occur exceeds 10% of the total number of shares of Offered Securities that the Underwriters are obligated to purchase on such Closing Date and arrangements reasonably satisfactory to the Underwriters and the Company for the purchase of such Offered Securities by other persons are not made within 36 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter, the Company or the Company, except as provided in Section 10 hereof (provided that if such default occurs with respect to Optional Securities after the First Closing Date, this Agreement will not terminate as to the Firm Securities or any Optional Securities purchased prior to such termination). As used in this Agreement, the term “Underwriter” includes any person substituted for an Underwriter under this Section. Nothing herein will relieve a defaulting Underwriter from liability for its default
10.Survival of Certain Representations and Obligations. The respective indemnities, rights of contribution, agreements, representations, warranties and other statements of the Company or its officers and of the several Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the Company or any of their respective representatives, officers or directors
26
or any controlling person, and will survive delivery of and payment for the Offered Securities. If the purchase of the Offered Securities by the Underwriters is not consummated for any reason other than solely because of the termination of this Agreement pursuant to Section 9 hereof, the Company will reimburse the Underwriters for all reasonable and documented out-of-pocket expenses (including reasonable fees and disbursements of counsel) reasonably incurred by them in connection with the offering of the Offered Securities, and the respective obligations of the Company and the Underwriters pursuant to Section 8 hereof shall remain in effect. In addition, if any Offered Securities have been purchased hereunder, the representations and warranties in Section 2 and all obligations under Section 5 shall also remain in effect.
11.Notices. All communications hereunder will be in writing and,
(a) if sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed to the Representative at the following address: BTIG, LLC, 600 Montgomery St., 6th Floor, San Francisco, CA 94111, Attention: BTIG Equity Capital Markets; or
(b) if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it at 2805 Dallas Parkway, Suite 400, Plano, Texas 75903 Attention: James R. Brickman, with a copy to Greenberg Traurig, LLP, 401 East Las Olas Boulevard, Suite 2000, Fort Lauderdale, FL 33301, Attention: Kara L. MacCullough.
12.Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons and other indemnified persons referred to in Section 8, and no other person will have any right or obligation hereunder.
13.Reserved.
14.Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement. Delivery of this Agreement by one party to any other party may be made by facsimile, electronic mail (including any electronic signature complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time) or other transmission method, and the parties hereto agree that any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
15.Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a)No Other Relationship. The Underwriters have been retained solely to act as underwriters in connection with the sale of Offered Securities and no fiduciary, advisory or agency relationship between the Company and the Underwriters have been created in respect of any of the transactions contemplated
27
by this Agreement or the Final Prospectus, irrespective of whether the Underwriters have advised or are advising the Company on other matters;
(b)Arms’ Length Negotiations. The price of the Offered Securities set forth in this Agreement was established by the Company following discussions and arms-length negotiations with the Underwriters and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement;
(c)Absence of Obligation to Disclose. The Company has been advised that the Underwriters and their affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Company and the Underwriters have no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship; and
(d)Waiver. The Company hereby waives, to the fullest extent permitted by law, any claims it may have against the Underwriters for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that the Underwriters shall have no liability (whether direct or indirect) to the Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including stockholders, employees or creditors of the Company.
16.Applicable Law. This Agreement and any claim, controversy or dispute arising out of or relating to this Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
The Company hereby submits to the non-exclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Company irrevocably and unconditionally waives any objection to the laying of venue of any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in Federal and state courts in the Borough of Manhattan in The City of New York and irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such suit or proceeding in any such court has been brought in an inconvenient forum.
17.Patriot Act. The Company acknowledges that, in accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriter to properly identify their respective clients.
18.Regulation BI. The Company acknowledges and agrees that, although the Underwriters may provide the Company with certain Regulation Best Interest and Form CRS disclosures or other related documentation in connection with the offering and the
28
other transactions contemplated hereby, the Underwriters are not making a recommendation to the Company to participate in the offering and the other transactions contemplated hereby or to sell any Offered Securities at the purchase price, and nothing set forth in such disclosures or documentation is intended to suggest that the Underwriters are making such a recommendation.
19.Recognition of the U.S. Special Resolution Regimes.
In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section 19, a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
[Remainder of page intentionally left blank]
29
If the foregoing is in accordance with the Underwriters’ understanding of our agreement, kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a binding agreement among the Company and the several Underwriters in accordance with its terms.
Very truly yours,
Green Brick Partners, Inc.
By /s/ Richard A. Costello
Richard A. Costello
Chief Financial Officer
Chief Financial Officer
| The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above written: | ||||||||
| BTIG, LLC, | ||||||||
| By | ||||||||
| /s/ Dan Blood | ||||||||
| Name: Dan Blood | ||||||||
| Title: Managing Director | ||||||||
Acting severally on behalf of itself and the
several Underwriters named in Schedule A
hereto.
several Underwriters named in Schedule A
hereto.
31
SCHEDULE A
to the Underwriting Agreement
to the Underwriting Agreement
| Underwriter | Number of Firm Securities | ||||
BTIG, LLC | 1,450,000 | ||||
InspereX LLC | 320,000 | ||||
Janney Montgomery Scott LLC | 230,000 | ||||
Total | 2,000,000 | ||||
SCHEDULE B
to the Underwriting Agreement
to the Underwriting Agreement
General Use Free Writing Prospectuses (included in the General Disclosure Package)
1. None.
Other Information Included in the General Disclosure Package
Pricing Term Sheet, dated December 16, 2021, relating to the Offered Securities, substantially in the form of Schedule C hereto, which will be filed pursuant to Rule 433 under the Act.
SCHEDULE C
to the Underwriting Agreement
to the Underwriting Agreement
[Pricing Term Sheet]
| Filed pursuant to Rule 433 Registration No. 333-250977 Issuer Free Writing Prospectus Supplementing the Preliminary Prospectus Supplement dated December 15, 2021 | |||||
GREEN BRICK PARTNERS, INC.
2,000,000 Depositary Shares
Each Representing a 1/1000th Interest in a Share of
5.75% Series A Cumulative Perpetual Preferred Stock
(Liquidation Amount of $25.00 Per Depositary Share)
Each Representing a 1/1000th Interest in a Share of
5.75% Series A Cumulative Perpetual Preferred Stock
(Liquidation Amount of $25.00 Per Depositary Share)
Final Term Sheet
Issuer: | GREEN BRICK PARTNERS, INC. | ||||
Securities: | Depositary shares each representing a 1/1000th fractional interest in a share of 5.75% Series A Cumulative Perpetual Preferred Stock (the “Series A Preferred Stock”) | ||||
Number of Shares: | 2,000,000 depositary shares (representing 2,000 shares of Series A Preferred Stock) | ||||
Option to Purchase Additional Shares: | Up to 300,000 depositary shares (representing 300 shares of Series A Preferred Stock) | ||||
Trade Date: | December 17, 2021 | ||||
Settlement Date: | December 23, 2021 (T + 4)* | ||||
Listing: | Expected NYSE “GRBK PRA” | ||||
Size: | $50,000,000 | ||||
Option: | Up to $7,500,000 | ||||
Maturity Date: | Perpetual (unless redeemed by us on or after December 23, 2026 or in connection with a change of control). | ||||
Rating: | A (Egan Jones) | ||||
Dividend Rate (Cumulative): | We will pay cumulative cash dividends on the Series A Preferred Stock, when and as declared by the board of directors, at the rate of 5.75% of the $25,000.00 liquidation preference per share of Series A Preferred Stock (equivalent to $25.00 per depositary share) per year (equivalent to $1,437.50 per share of Series A Preferred Stock per year or $1.4375 per depositary share per year). | ||||
Dividend Payment Dates: | Dividends will be payable quarterly in arrears, on or about the 15th day of March, June, September and December of each year, beginning on or about March 15, 2022; provided that if any dividend payment date is not a business day, then the dividend that would otherwise have been payable on that dividend payment date may be paid on the immediately preceding or next succeeding business day; provided further that if such business day is in the next succeeding year, such payment shall be made on the immediately preceding business day; provided further that if paid on the next succeeding business day, no interest, additional dividends or other sums will accumulate on the amounts so payable for the period from and after that dividend payment date to the next succeeding business day. Dividends will accumulate and be cumulative from, and including, the date of original issuance, which is expected to be December 23, 2021. The first dividend, which is scheduled to be paid on or about March 15, 2022 in the amount of $327.43 per share of Series A Preferred Stock (equivalent to $0.3274 per depositary share), will be for less than a full quarter and will cover the period from, and including, the date we issue and sell the depositary shares through, but not including March 15, 2022. | ||||
Price to the Public: | 100% | ||||
Day Count: | 30/360 | ||||
2
Liquidation Preference: | The liquidation preference of each share of Series A Preferred Stock is $25,000.00 per share (equivalent to $25.00 per depositary share). Upon liquidation, the holders of the Series A Preferred Stock will be entitled to receive the liquidation preference with respect to their shares of Series A Preferred Stock plus an amount equal to accrued but unpaid dividends with respect to such shares. | ||||
Optional Redemption: | We may not redeem the Series A Preferred Stock represented by the depositary shares prior to December 23, 2026, which is the fifth anniversary of the date of issuance of the Series A Preferred Stock, except as described below under “Special Optional Redemption Upon a Change of Control.” At any time on or after December 23, 2026, we may, at our option, redeem the Series A Preferred Stock, in whole or from time to time in part, by paying $25,000.00 per share of Series A Preferred Stock (equivalent to $25.00 per depositary share), plus any accrued and unpaid dividends to, but not including, the date of redemption. | ||||
Special Optional Redemption Upon a Change of Control: | Upon the occurrence of a change of control, we may, at our option, redeem the Series A Preferred Stock represented by the depositary shares, in whole or in part, within 120 days after the first date on which such change of control occurred, for cash, at a redemption price of $25,000.00 per share of Series A Preferred Stock (equivalent to $25.00 per depositary share), plus any accrued and unpaid dividends to, but not including, the date of redemption, and the depositary will redeem a proportional number of depositary shares representing the shares redeemed. The circumstances that will constitute a “change of control” will be set forth in the documents governing the Series A Preferred Stock. | ||||
Special Conversion Right Upon a Change of Control: | Upon the occurrence of a change of control, each holder of depositary shares representing interests in the Series A Preferred Stock will have the right to convert some or all of the Series A Preferred Stock represented by the depositary shares held by such holder into a number of shares of our common stock (or equivalent value of alternative consideration) at a predetermined ratio. | ||||
Share Cap: | 1.7059 | ||||
3
DRD/QDI Eligible: | Yes | ||||
Minimum Denomination / Multiples: | $25.00/$25.00 | ||||
Depositary Shares CUSIP/ISIN: | 392709 200 / US3927092003 | ||||
Sole Book-Running Manager: | BTIG, LLC | ||||
Co-Managers: | InspereX LLC Janney Montgomery Scott LLC | ||||
* It is expected that delivery of the depositary shares will be made to investors on or about December 23, 2021, which will be the fourth business day following the date hereof (such settlement being referred to as “T+4”). Under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended, trades in the secondary market are required to settle in two business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade depositary shares prior to the second business day before settlement will be required, by virtue of the fact that the depositary shares initially settle in T+4, to specify an alternate settlement arrangement at the time of any such trade to prevent a failed settlement. Purchasers of depositary shares who wish to trade depositary shares prior to two business days before their date of delivery hereunder should consult their advisors.
This communication is intended for the sole use of the person to whom it is provided by the issuer.
The issuer has filed a registration statement (including a base prospectus dated December 4, 2020) and a preliminary prospectus supplement dated December 15, 2021 with the Securities and Exchange Commission (“SEC”) for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering.
You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus and related preliminary prospectus supplement if you request them from BTIG, LLC, 65 East 55th Street, New York, NY 10022, email: ProspectusDelivery@btig.com.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER E-MAIL SYSTEM.
4
SCHEDULE D
to the Underwriting Agreement
to the Underwriting Agreement
List of Significant Subsidiaries and Jurisdiction of Organization
| Subsidiary | Jurisdiction | ||||
| JBGL Ownership LLC | Delaware | ||||
| JBGL Builder Finance LLC | Texas | ||||
| JBGL Exchange LLC | Texas | ||||
| JBGL Mustang LLC | Texas | ||||
| GRBK Edgewood LLC | Texas | ||||
| GRBK Frisco LLC | Texas | ||||
| Johns Creek 206, LLC | Georgia | ||||
| JBGL Atlanta Development, LLC | Georgia | ||||
| SGHDAL, LLC | Texas | ||||
| CB JENI Homes DFW LLC | Texas | ||||
1
1" = "1" "[[5746499v.9]]" "" [[5746499v.9]]
Exhibit 3.3
CERTIFICATE OF DESIGNATION
OF
5.75% SERIES A CUMULATIVE PERPETUAL PREFERRED STOCK
OF
GREEN BRICK PARTNERS, INC.
Pursuant to Section 151 of the General Corporation Law of the State of Delaware
Green Brick Partners, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware (hereinafter, the “Corporation”), hereby certifies that the following resolution was duly adopted by the Board of Directors of the Corporation or a duly authorized committee of the Board of Directors of the Corporation as required by Section 151 of the General Corporation Law of the State of Delaware.
“NOW, THEREFORE, BE IT RESOLVED, that pursuant to the authority expressly granted to and vested in the Board of Directors of the Corporation in accordance with the provisions of the certificate of incorporation of the Corporation, there is hereby created and provided out of the authorized but unissued preferred stock, par value $0.01 per share, of the Corporation (“Preferred Stock”), a new series of Preferred Stock, and there is hereby fixed the number of shares constituting such series and the designation of such series, and the voting powers of the shares of such series, preferences and relative, participating, optional and other special rights and privileges, and the qualifications, limitations and restrictions thereof, of the shares of such series as set forth on Exhibit A attached hereto and incorporated herein by reference.”
IN WITNESS WHEREOF, this Certificate of Designation is executed on behalf of the Corporation by its Chief Financial Officer this 21 day of December, 2021.
| By: | /s/ Richard A. Costello | |||||||
| Name: Richard A. Costello | ||||||||
| Title: Chief Financial Officer | ||||||||
EXHIBIT A
TO
CERTIFICATE OF DESIGNATION
OF
5.75% SERIES A CUMULATIVE PERPETUAL PREFERRED STOCK
OF
GREEN BRICK PARTNERS, INC.
GREEN BRICK PARTNERS, INC.
Section 1. Designation and Number. The designation of the series of Preferred Stock shall be “5.75% Series A Cumulative Perpetual Preferred Stock,” par value $0.01 per share, of the Corporation (hereinafter referred to as the “Series A Preferred Stock”), and the number of shares constituting such series shall be 50,000. The number of shares of Series A Preferred Stock may from time to time be increased (but not above the total number of authorized shares Preferred Stock) or decreased (but not below the number of shares of Series A Preferred Stock then outstanding) by further resolution or resolutions duly adopted by the Board of Directors of the Corporation (the “Board of Directors”) or any duly authorized committee of the Board of Directors and by the execution, acknowledgement and filing of a certificate pursuant to the provisions of the General Corporation Law of the State of Delaware (the “Delaware General Corporation Law”) stating that such specific increase or reduction, as the case may be, has been so authorized and directed. The Corporation shall have the authority to issue fractional shares of Series A Preferred Stock. Each share of Series A Preferred Stock shall be identical in all respects to every other share of Series A Preferred Stock.
Section 2. Rank. The Series A Preferred Stock shall, as to dividend rights and rights upon the Corporation’s voluntary or involuntary liquidation, dissolution or winding up, rank: (1) senior to all classes or series of common stock of the Corporation (the “Common Stock”) and to each other class or series of capital stock of the Corporation issued by the Corporation, other than any class or series of capital stock of the Corporation issued with terms specifically providing that such class or series of capital stock of the Corporation ranks senior to or on a parity with the Series A Preferred Stock with respect to the declaration and payment of dividends and the distribution of assets upon the Corporation’s voluntary or involuntary liquidation, dissolution or winding up; (2) on a parity with each class or series of capital stock of the Corporation issued by the Corporation with terms specifically providing that such class or series of capital stock of the Corporation ranks on a parity with the Series A Preferred Stock with respect to the declaration and payment of dividends and the distribution of assets upon the Corporation’s voluntary or involuntary liquidation, dissolution or winding up; and (3) junior to each class or series of capital stock of the Corporation issued by the Corporation with terms specifically providing that such class or series of capital stock of the Corporation ranks senior to the Series A Preferred Stock with respect to the declaration and payment of dividends and the distribution of assets upon the Corporation’s voluntary or involuntary liquidation, dissolution or winding up, none of which exists on the original effective date of this Certificate of Designation (as the same may be amended, amended and restated or restated from time to time, this “Certificate of Designation”).
Section 3. Dividends.
(a) Subject to the preferential rights, if any, of the holders of any class or series of capital stock of the Corporation then outstanding and ranking, with respect to the designation and payment of dividends, senior to the Series A Preferred Stock, the holders of shares of the Series A Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors,
1
out of funds legally available for the payment of dividends, cumulative cash dividends at the rate of 5.75% per annum of the $25,000.00 liquidation preference per share of the Series A Preferred Stock. Such dividends shall accrue and be cumulative from and including the first date on which any shares of Series A Preferred Stock are issued (the “Original Issue Date”), or, if later, the most recent Dividend Payment Date (as defined below) to which dividends have been paid in full and shall be payable quarterly in arrears on each Dividend Payment Date, commencing on or about March 15, 2022; provided, however, that if any Dividend Payment Date is not a Business Day (as defined below), then the dividend which would otherwise have been payable on such Dividend Payment Date may be paid, at the Corporation’s option, on either the immediately preceding Business Day or the next succeeding Business Day, except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if paid on such Dividend Payment Date, and no interest or additional dividends or other sums shall accrue on the amount so payable from such Dividend Payment Date to such next succeeding Business Day; provided, further, that no dividends shall accrue on any share of Series A Preferred Stock for any Dividend Period (as defined below) having a Dividend Record Date (as defined below) before the date such share of Series A Preferred Stock was issued. The amount of any dividend payable on the Series A Preferred Stock for any period greater or less than a full Dividend Period shall be prorated and computed on the basis of a 360-day year consisting of twelve 30-day months. Such dividends shall be payable to holders of record of shares of Series A Preferred Stock as they appear in the stockholder records of the Corporation at the close of business on the applicable Dividend Record Date. Notwithstanding any provision to the contrary contained in this Section 2, each holder of an outstanding share of Series A Preferred Stock shall be entitled to receive a dividend with respect to any Dividend Record Date equal to the dividend paid with respect to each other share of Series A Preferred Stock that is outstanding on such date. “Dividend Record Date” shall mean the record date fixed by the Board of Directors for determining the holders of shares of the Series A Preferred Stock entitled to receive payment of dividends on the applicable Dividend Payment Date, which record date may not be more than 30 or fewer than 10 days prior to the applicable Dividend Payment Date. “Dividend Payment Date” shall mean the 15th calendar day of each March, June, September and December commencing on March 15, 2022. “Dividend Period” shall mean the respective periods commencing on the 15th day of January, April, July and October of each year and ending on and including the day immediately preceding the first day of the next succeeding Dividend Period (other than (i) the initial Dividend Period, which shall commence on the Original Issue Date and end on but exclude March 15, 2022, (ii) the Dividend Period during which any shares of Series A Preferred Stock shall be redeemed pursuant to Section 5 or Section 6, which shall end on and include the day immediately preceding the redemption date with respect to the shares of Series A Preferred Stock being redeemed, and (iii) the Dividend Period during which any shares of Series A Preferred Stock shall be purchased pursuant to Section 5, which shall end on and include the day immediately preceding the purchase date with respect to the shares of Series A Preferred Stock being purchased).
The term “Business Day” shall mean any day, other than a Saturday or Sunday, that is neither a federal legal holiday nor a day on which banking institutions in New York City are authorized or required by applicable law, regulation or executive order to close.
(b) Notwithstanding anything contained in this Section 2 to the contrary, dividends on the Series A Preferred Stock shall accrue whether or not the terms and provisions of any of the Corporation’s agreements relating to its indebtedness prohibit the authorization, declaration or
2
payment or setting aside for payment of such dividends, whether or not the Corporation has earnings, whether or not there are funds legally available for the payment or setting aside for payment of such dividends, and whether or not such dividends are authorized or declared.
(c) Except as provided in Section 3(d) or Section 3(f), no dividends shall be declared and paid or declared and set aside for payment, and no other distribution of cash or other property may be declared and made, directly or indirectly, on or with respect to any shares of Common Stock or shares of any other class or series of capital stock of the Corporation ranking, with respect to the declaration and payment of dividends, on parity with or junior to the Series A Preferred Stock for any period, nor shall any shares of Common Stock or any other shares of any other class or series of capital stock of the Corporation ranking, with respect to the declaration and payment of dividends and the distribution of assets upon the Corporation’s voluntary or involuntary liquidation, dissolution or winding up, on parity with or junior to the Series A Preferred Stock, be redeemed, purchased or otherwise acquired for any consideration, nor shall any funds be paid or made available for a sinking fund for the redemption of such shares, and no other distribution of cash or other property may be made, directly or indirectly, on or with respect thereto by the Corporation, unless full cumulative dividends on the Series A Preferred Stock for all past Dividend Periods shall have been or contemporaneously are (i) declared and paid or (ii) declared and a sum sufficient for the payment thereof is set aside for such payment.
(d) Except as provided in Section 3(f), when dividends are not paid in full (or declared and a sum sufficient for such full payment is not so set aside) on the Series A Preferred Stock and the shares of any other class or series of capital stock of the Corporation ranking, with respect to the declaration and payment of dividends, on parity with the Series A Preferred Stock, all dividends declared upon the Series A Preferred Stock and each such other class or series of capital stock ranking, with respect to the declaration and payment of dividends, on parity with the Series A Preferred Stock (which, for the avoidance of doubt, shall not include the redemption or purchase of shares of any such class or series), shall be declared pro rata so that the amount of dividends declared per share of Series A Preferred Stock and such other class or series of capital stock shall in all cases bear to each other the same ratio that accrued dividends per share on the Series A Preferred Stock and such other class or series of capital stock (which shall not include any accrual in respect of unpaid dividends on such other class or series of capital stock for prior Dividend Periods if such other class or series of capital stock does not have a cumulative dividend) bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Series A Preferred Stock which may be in arrears.
(e) Holders of shares of Series A Preferred Stock shall not be entitled to any dividend, whether payable in cash, property or shares of any class or series of capital stock, in excess of full cumulative dividends on the Series A Preferred Stock as provided in this Section 2. Any dividend payment made on the Series A Preferred Stock shall first be credited against the earliest accrued but unpaid dividends due with respect to such shares which remain payable. Accrued but unpaid dividends on the Series A Preferred Stock shall accrue as of the Dividend Payment Date on which they first become payable.
(f) Notwithstanding the provisions of this Section 3, Section 5 or Section 6 and regardless of whether dividends are paid in full (or declared and a sum sufficient for such full payment is set aside for payment) on the Series A Preferred Stock or the shares of any other class or series of capital stock of the Corporation ranking, with respect to the declaration and payment of
3
dividends, on parity with the Series A Preferred Stock, for any or all Dividend Periods, the Corporation shall not be prohibited or limited from (i) declaring and paying (or declaring and setting aside for payment) dividends on any shares of any class or series of capital stock of the Corporation in the form of shares of Common Stock or in the form of shares of any other class or series of capital stock of the Corporation ranking, with respect to the declaration and payment of dividends and the distribution of assets upon the Corporation’s voluntary or involuntary liquidation, dissolution or winding up, junior to the Series A Preferred Stock, (ii) converting or exchanging any shares of any class or series of capital stock of the Corporation for shares of any other class or series of capital stock of the Corporation ranking, with respect to the declaration and payment of dividends and the distribution of assets upon the Corporation’s voluntary or involuntary liquidation, dissolution or winding up, junior to the Series A Preferred Stock, or (iii) purchasing or otherwise acquiring shares of Series A Preferred Stock, in each case, pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding shares of Series A Preferred Stock.
Section 4. Liquidation Preference.
(a) Upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, before any distribution or payment shall be made to holders of shares of Common Stock or any other class or series of capital stock of the Corporation ranking, with respect to the distribution of assets upon the Corporation’s voluntary or involuntary liquidation, dissolution or winding up, junior to the Series A Preferred Stock, the holders of shares of Series A Preferred Stock shall be entitled to be paid out of the assets of the Corporation legally available for distribution to its stockholders, after payment of or provision for the debts and other liabilities of the Corporation and any class or series of capital stock of the Corporation ranking, with respect to the distribution of assets upon the Corporation’s voluntary or involuntary liquidation, dissolution or winding up, senior to the Series A Preferred Stock, a liquidation preference of $25,000.00 per share of Series A Preferred Stock, plus an amount per such share equal to any accrued and unpaid dividends on such share up to, but excluding, the date of payment, without interest. In the event that, upon such voluntary or involuntary liquidation, dissolution or winding up, the available assets of the Corporation are insufficient to pay the full amount of the liquidating distributions on all outstanding shares of Series A Preferred Stock and the corresponding amounts payable on all shares of other classes or series of capital stock of the Corporation ranking, with respect to the distribution of assets upon the Corporation’s voluntary or involuntary liquidation, dissolution or winding up, on parity with the Series A Preferred Stock, then the holders of the Series A Preferred Stock and each such other class or series of capital stock ranking, with respect to the distribution of assets upon the Corporation’s voluntary or involuntary liquidation, dissolution or winding up, on parity with the Series A Preferred Stock, shall share ratably in any such distribution of assets in proportion to the full liquidating distributions to which they would otherwise be respectively entitled. Written notice of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, stating the payment date or dates when, and the place or places where, the amounts distributable in such circumstances shall be payable, shall be given not fewer than 30 or more than 60 days prior to the payment date stated therein, to each record holder of shares of Series A Preferred Stock at the respective addresses of such holder as the same shall appear on the stock transfer records of the Corporation. After payment of the full amount of the liquidating distributions to which they are entitled, the holders of Series A Preferred Stock shall have no right or claim to any of the remaining assets of the Corporation. The consolidation, merger or conversion of the Corporation with or into any other corporation, trust or entity, or the voluntary sale, lease, transfer or
4
conveyance of all or substantially all of the property and assets of the Corporation (which shall not, in fact, result in the voluntary or involuntary liquidation, dissolution or winding up of the Corporation and the distribution of the Corporation’s assets to its stockholders), shall not be deemed to constitute a voluntary or involuntary liquidation, dissolution or winding up of the Corporation.
(b) In determining whether a distribution (other than upon voluntary or involuntary liquidation, dissolution or winding up of the Corporation), by dividend, redemption, purchase or other acquisition of shares of capital stock of the Corporation or otherwise, is permitted under the Delaware General Corporation Law, amounts that would be needed, if the Corporation were to be liquidated, dissolved or wound up at the time of the distribution, to satisfy the preferential rights of holders of shares of Series A Preferred Stock upon such liquidation, dissolution or winding up shall not, to the fullest extent permitted by applicable law, be added to the Corporation’s total liabilities.
Section 5. Redemption.
(a) On or after December 23, 2026, the Corporation, at its option, upon notice in accordance with Section 5(c), may redeem the Series A Preferred Stock, in whole or in part, at any time or from time to time, for cash at a redemption price of $25,000.00 per share of Series A Preferred Stock, plus, subject to Section 5(d), an amount equal to any accrued and unpaid dividends on such share up to, but excluding, the date fixed for redemption, without interest, to the extent the Corporation has funds legally available therefor (the “Redemption Right”). If fewer than all of the outstanding shares of Series A Preferred Stock are to be redeemed pursuant to this Section 5(a), the shares of Series A Preferred Stock to be redeemed shall be redeemed pro rata (as nearly as may be practicable without creating fractional shares) or by lot as determined by the Corporation. Holders of Series A Preferred Stock to be redeemed shall surrender such Series A Preferred Stock at the place, or in accordance with the book-entry procedures, designated in such notice and shall be entitled to the redemption price of $25,000.00 per share of Series A Preferred Stock, plus an amount per such share equal to any accrued and unpaid dividends on such share up to, but excluding, the date fixed for redemption, without interest, upon such redemption following such surrender. If (i) notice of redemption of any shares of Series A Preferred Stock has been given, (ii) the funds necessary for such redemption have been set aside by the Corporation for the benefit of the holders of any shares of Series A Preferred Stock so called for redemption, and (iii) irrevocable instructions have been given to pay the redemption price and all accrued and unpaid dividends, then, from and after the redemption date, dividends shall cease to accrue on such shares of Series A Preferred Stock, such shares of Series A Preferred Stock shall no longer be deemed outstanding, and all rights of the holders of such shares of Series A Preferred Stock shall terminate, except the right to receive the redemption price plus any accrued and unpaid dividends payable upon such redemption, without interest. So long as full cumulative dividends on the Series A Preferred Stock and any class or series of capital stock of the Corporation ranking, with respect to the declaration and payment of dividends, on parity with the Series A Preferred Stock, for all past Dividend Periods shall have been or contemporaneously are (i) declared and paid, or (ii) declared and a sum sufficient for the payment thereof is set aside for payment, nothing in this Certificate of Designation shall prevent or restrict the Corporation’s right or ability to purchase, from time to time, either at a public or a private sale, all or any portion of the shares of the Series A Preferred Stock (or a receipt or other instrument issued by a depository representing an interest in one or more shares or fractions of a share of Series A Preferred Stock, which shares are deposited with the depository (hereinafter,
5
“depositary receipts”)) or Common Stock at such price or prices as the Corporation may determine, subject to the provisions of applicable law, including the purchase of shares of Series A Preferred Stock or Common Stock in open-market transactions duly authorized by the Board of Directors.
(b) (i) Except as provided in Section 3(f), unless full cumulative dividends on the Series A Preferred Stock for all past Dividend Periods shall have been or contemporaneously are (i) declared and paid in cash, or (ii) declared and a sum sufficient for the payment thereof in cash is set aside for payment, no shares of Series A Preferred Stock shall be redeemed pursuant to the Redemption Right or Special Optional Redemption Right (defined below) unless all outstanding shares of Series A Preferred Stock are simultaneously redeemed, and the Corporation shall not purchase or otherwise acquire directly or indirectly any shares of Series A Preferred Stock or redeem, purchase or otherwise acquire directly or indirectly any class or series of capital stock of the Corporation ranking, with respect to the declaration and payment of dividends and the distribution of assets upon the Corporation’s voluntary or involuntary liquidation, dissolution or winding, on parity with or junior to the Series A Preferred Stock (except by conversion into or exchange for shares of any class or series of capital stock of the Corporation ranking, with respect to the declaration and payment of dividends and the distribution of assets upon a voluntary or involuntary liquidation, dissolution or winding up of the Corporation, junior to the Series A Preferred Stock).
(ii) So long as all cumulative dividends on the Series A Preferred Stock and any class or series of capital stock of the Corporation ranking, with respect to the declaration and payment of dividends, on parity with the Series A Preferred Stock, for all past Dividend Periods shall have been or contemporaneously are (A) declared and paid, or (B) declared and a sum sufficient for the payment thereof is set aside for payment, nothing in this Certificate of Designation shall prevent or restrict the Corporation’s right or ability to purchase, from time to time, either at a public or a private sale, all or any portion of the shares of Series A Preferred Stock (or depositary receipts) or Common Stock at such price or prices as the Corporation may determine, subject to the provisions of applicable law, including the purchase of shares of Series A Preferred Stock (or depositary receipts) or Common Stock in open-market transactions duly authorized by the Board of Directors. Regardless of whether all cumulative dividends (A) are declared and paid, or (B) declared and a sum sufficient for the payment thereof is set aside for payment on the Series A Preferred Stock and any class or series of capital stock of the Corporation ranking, with respect to the declaration and payment of dividends, on parity with or junior to the Series A Preferred Stock, for all past Dividend Periods, the Corporation may purchase or acquire shares of Series A Preferred Stock (or depositary receipts) pursuant to a purchase or exchange offer made on the same or economically equivalent terms to holders of all outstanding shares of Series A Preferred Stock (or depositary receipts).
(c) Notice of redemption pursuant to the Corporation’s exercise of the Redemption Right shall be delivered or caused to be delivered by the Corporation, not fewer than 30 or more than 60 days prior to the date fixed for redemption, addressed to the respective holders of record of the Series A Preferred Stock to be redeemed at their respective addresses as they appear on the stock transfer records of the Corporation. No failure to give or defect in such notice shall affect the validity of the proceedings for the redemption of any shares of Series A Preferred Stock except as to the holder to whom such notice was defective or not given. In addition to any information required by applicable law or by the applicable rules of any exchange upon which the Series A Preferred Stock (or depositary receipts) may be listed or admitted to trading, each
6
such notice shall state: (i) the date fixed for redemption; (ii) the redemption price; (iii) the number of shares of Series A Preferred Stock to be redeemed; (iv) the place or places where the certificates, if any, representing shares of Series A Preferred Stock are to be surrendered for payment of the redemption price; (v) procedures for surrendering uncertificated shares of Series A Preferred Stock for payment of the redemption price; (vi) that dividends on the shares of Series A Preferred Stock to be redeemed will cease to accrue on such redemption date; and (vii) that payment of the redemption price and any accrued and unpaid dividends will be made upon presentation and surrender of such Series A Preferred Stock. If fewer than all of the shares of Series A Preferred Stock held by any holder are to be redeemed pursuant to this Section 5, the notice delivered to such holder shall also specify the number of shares of Series A Preferred Stock held by such holder to be redeemed.
(d) If the date fixed for redemption falls after a Dividend Record Date and on or prior to the corresponding Dividend Payment Date, each holder of shares of Series A Preferred Stock at the close of business of such Dividend Record Date shall be entitled to payment of the dividend payable on such shares on the corresponding Dividend Payment Date, notwithstanding the redemption of such shares on or prior to such Dividend Payment Date, and each holder of shares of Series A Preferred Stock that surrenders such holder’s shares on such redemption date shall be entitled to the dividends accruing after the end of the Dividend Period to which such Dividend Payment Date relates up to, but excluding, such redemption date. Except as provided in this Section 5, the Corporation shall make no payment or allowance for accrued and unpaid dividends, whether or not in arrears, on shares of Series A Preferred Stock for which a notice of redemption has been given pursuant to this Section 5.
(e) If any share of Series A Preferred Stock is converted, redeemed, purchased or otherwise acquired by the Corporation, in any manner whatsoever, the share of Series A Preferred Stock so acquired shall, to the fullest extent permitted by applicable law, be retired and cancelled upon such acquisition, and shall not be reissued as a share of Series A Preferred Stock. Any share of Series A Preferred Stock so acquired shall, upon its retirement and cancellation, and upon the taking of any action required by applicable law, become an authorized but unissued share of Preferred Stock undesignated as to series and may be reissued a part of a new series of Preferred Stock, subject to the conditions and restrictions set forth in the Corporation’s certificate of incorporation or imposed by the Delaware General Corporation Law.
Section 6. Special Optional Redemption by the Corporation.
(a) Upon the occurrence of a Change of Control (as defined below), the Corporation, at its option, upon notice of redemption in accordance with Section 6(b) delivered or caused to be delivered by the Corporation no fewer than 30 nor more than 60 days prior to the dated fixed for such redemption addressed to the holders of record of shares of the Series A Preferred Stock to be redeemed at their respective addresses as they appear on the stock transfer records of the Corporation, may redeem the Series A Preferred Stock, in whole or in part, within 120 days after the first date on which the Change of Control occurred for cash at $25,000.00 per share of
7
Series A Preferred Stock, plus, subject to Section 6(d), an amount per such share equal to any accrued and unpaid dividends on such share up to, but excluding, the date fixed for redemption, without interest, to the extent the Corporation has funds legally available therefor (“Special Optional Redemption Right”). No failure to give or defect in such notice shall affect the validity of the proceedings for the redemption of any shares of Series A Preferred Stock except as to the holder to whom such notice was defective or not given. If, on or prior to the Change of Control Conversion Date (as defined below), the Corporation has provided or provides notice of redemption with respect to the Series A Preferred Stock (whether pursuant to the Redemption Right or the Special Optional Redemption Right), the holders of shares of Series A Preferred Stock shall not have the conversion right described below in Section 8.
A “Change of Control” occurs when, after the Original Issue Date, each of the following has occurred and is continuing:
(i) the acquisition by any person, including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of purchases, mergers or other acquisition transactions of shares of any class or series of capital stock of the Corporation entitling that person to exercise more than 50% of the total voting power of all shares of any class or series of capital stock of the Corporation entitled to vote generally in the election of the Corporation’s directors (except that such person shall be deemed to have beneficial ownership of all securities that such person has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition); and
(ii) following the closing of any transaction referred to in clause (i) above, neither the Corporation nor the acquiring or surviving entity (or, if in connection with such transaction holders of Common Stock receive Alternative Form Consideration (as defined below) consisting of common equity securities of another entity, such other entity) has a class of common securities (or depositary receipts representing such securities) listed on the New York Stock Exchange (the “NYSE”), the NYSE American, LLC (the “NYSE AMER”), or the Nasdaq Stock Market (“Nasdaq”) or listed or quoted on an exchange or quotation system that is a successor to Nasdaq, the NYSE or the NYSE AMER.
(b) In addition to any information required by applicable law or by the applicable rules of any exchange upon which the Series A Preferred Stock may be listed or admitted to trading, such notice shall state: (i) the date fixed for redemption; (ii) the redemption price; (iii) the number of shares of Series A Preferred Stock to be redeemed; (iv) the place or places where the certificates, if any, representing shares of Series A Preferred Stock are to be surrendered for payment of the redemption price; (v) procedures for surrendering uncertificated shares of Series A Preferred Stock for payment of the redemption price; (vi) that dividends on the shares of Series A Preferred Stock to be redeemed will cease to accrue on the redemption date; (vii) that payment of the redemption price and any accrued and unpaid dividends will be made upon presentation and surrender of such Series A Preferred Stock; (viii) that the shares of Series A Preferred Stock are being redeemed pursuant to the Special Optional Redemption Right in connection with the occurrence of a Change of Control, and a brief description of the transaction or transactions constituting such Change of Control; and (ix) that holders of the shares of Series A Preferred Stock to which the notice relates will not be able to tender such shares of Series A Preferred Stock for conversion in connection with the Change of Control, and each share of Series A
8
Preferred Stock tendered for conversion that is selected, prior to the Change of Control Conversion Date, for redemption pursuant to this Section 6, will be redeemed on the related redemption date instead of converted on the Change of Control Conversion Date. If fewer than all of the shares of Series A Preferred Stock held by any holder are to be redeemed pursuant to this Section 6, the notice delivered to such holder shall also specify the number of shares of Series A Preferred Stock held by such holder to be redeemed. Holders of Series A Preferred Stock to be redeemed shall surrender such Series A Preferred Stock at the place, or in accordance with the book-entry procedures, designated in such notice and shall be entitled to the redemption price of $25,000.00 per share of Series A Preferred Stock, plus an amount per such share equal to any accrued and unpaid dividends on such share up to, but excluding, the date fixed for redemption, without interest, upon such redemption following such surrender.
If fewer than all of the outstanding shares of Series A Preferred Stock are to be redeemed pursuant to the Special Optional Redemption Right, the shares of Series A Preferred Stock to be redeemed shall be redeemed pro rata (as nearly as may be practicable without creating fractional shares) or by lot as determined by the Corporation.
(c) (i) If (A) the Corporation has given a notice of redemption pursuant to the Special Optional Redemption Right, (B) the funds necessary for such redemption have been set aside by the Corporation for the benefit of the holders of any shares of Series A Preferred Stock so called for redemption, and (C) irrevocable instructions have been given to pay the redemption price and all accrued and unpaid dividends, then, from and after the redemption date, dividends shall cease to accrue on such shares of Series A Preferred Stock, such shares of Series A Preferred Stock shall no longer be deemed outstanding, and all rights of the holders of such shares shall terminate, except the right to receive the redemption price plus any accrued and unpaid dividends payable upon such redemption, without interest.
(ii) So long as all cumulative dividends on the Series A Preferred Stock and any class or series of capital stock of the Corporation ranking, with respect to the declaration and payment of dividends, on parity with the Series A Preferred Stock, for all past Dividend Periods shall have been or contemporaneously are (A) declared and paid, or (B) declared and a sum sufficient for the payment thereof is set aside for payment, nothing in this Certificate of Designation shall prevent or restrict the Corporation’s right or ability to purchase, from time to time, either at a public or a private sale, all or any portion of the shares of the Series A Preferred Stock (or depositary receipts) or Common Stock at such price or prices as the Corporation may determine, subject to the provisions of applicable law, including the purchase of shares of Series A Preferred Stock (or depositary receipts) or Common Stock in open-market transactions duly authorized by the Board of Directors. Regardless of whether cumulative dividends (A) are declared and paid, or (B) declared and a sum sufficient for the payment thereof is set aside for payment on the Series A Preferred Stock and any class or series of capital stock of the Corporation ranking, with respect to the declaration and payment of dividends, on parity with or junior to the Series A Preferred Stock, for all past Dividend Periods, the Corporation may purchase or acquire shares of Series A Preferred Stock (or depositary receipts) pursuant to a purchase or exchange offer made on the same or economically equivalent terms to holders of all outstanding shares of Series A Preferred Stock (or depositary receipts).
(d) If the date fixed for redemption falls after a Dividend Record Date and on or prior to the corresponding Dividend Payment Date, each holder of shares of Series A Preferred Stock at the close of business of such Dividend Record Date shall be entitled to payment of the dividend
9
payable on such shares on the corresponding Dividend Payment Date, notwithstanding the redemption of such shares on or prior to such Dividend Payment Date, and each holder of shares of Series A Preferred Stock that surrenders such holder’s shares on such redemption date shall be entitled to the dividends accruing after the end of the Dividend Period to which such Dividend Payment Date relates up to, but excluding, such redemption date. Except as provided in this Section 6, the Corporation shall make no payment or allowance for accrued and unpaid dividends, whether or not in arrears, on shares of Series A Preferred Stock for which a notice of redemption has been given pursuant to this Section 6.
(e) If any share of Series A Preferred Stock is converted, redeemed, purchased or otherwise acquired by the Corporation, in any manner whatsoever, the share of Series A Preferred Stock so acquired shall, to the fullest extent permitted by applicable law, be retired and cancelled upon such acquisition, and shall not be reissued as a share of Series A Preferred Stock. Any share of Series A Preferred Stock so acquired shall, upon its retirement and cancellation, and upon the taking of any action required by applicable law, become an authorized but unissued share of Preferred Stock undesignated as to series and may be reissued a part of a new series of Preferred Stock, subject to the conditions and restrictions set forth in the Corporation’s certificate of incorporation or imposed by the Delaware General Corporation Law.
Section 7. Voting Rights.
(a) Holders of the Series A Preferred Stock shall not have any voting rights, except as set forth in this Section 7.
(b) Whenever dividends on any shares of Series A Preferred Stock shall be in arrears for six or more consecutive or non-consecutive quarterly periods (a “Preferred Dividend Default”), the holders of Series A Preferred Stock, together with the holders of all other classes or series of capital stock of the Corporation, if any, ranking, with respect to the declaration and payment of dividends, on parity with the Series A Preferred Stock, and having the right to vote or consent, together as a single class with the holders of the Series A Preferred Stock, with respect to the election of directors of the Corporation (the “Parity Preferred”), shall, voting or consenting together as a single class, be entitled to elect two additional directors to serve on the Board of Directors (the “Preferred Directors”) until all dividends accrued and unpaid on the Series A Preferred Stock for all past Dividend Periods shall have been declared and paid. Upon a Preferred Dividend Default, the number of directors constituting the Board of Directors shall be increased automatically by two directors (unless the number of directors has previously been so increased pursuant to the terms of any class or series of Parity Preferred). For the purposes of determining whether a Preferred Dividend Default has occurred or is continuing, a dividend in respect of Series A Preferred Stock shall be considered timely made if made within two Business Days after the applicable Dividend Payment Date if at the time of such late payment date there shall not be any prior quarterly Dividend Periods in respect of which full dividends were not timely made at the applicable Dividend Payment Date.
(c) A Preferred Director shall be elected by a plurality of the votes cast in the election of Preferred Directors and shall serve until the next annual meeting of stockholders and until his or her successor is duly elected and qualified, subject to Section 7(e), or such Preferred Director’s earlier death, disqualification, resignation or removal. The election of Preferred Directors shall take place at (i) either (A) a special meeting called in accordance with Section 7(d) if the request is received more than 90 days before the date fixed for the Corporation’s next annual or special
10
meeting of stockholders or (B) the next annual or special meeting of stockholders if the request is received within 90 days of the date fixed for the Corporation’s next annual or special meeting of stockholders, and (ii) at each subsequent annual meeting of stockholders, or special meeting at which Preferred Directors are to be elected, until the right of holders of Series A Preferred Stock to elect Preferred Directors shall have terminated as specified in Section 7(e).
(d) At any time when a Preferred Dividend Default has occurred or is continuing, the Secretary of the Corporation shall, unless the request is received more than 90 days before the date fixed for the Corporation’s next annual or special meeting of stockholders, call or cause to be called, upon written request of holders of record of at least 10% of the outstanding shares of Series A Preferred Stock and Parity Preferred, a special meeting of stockholders for the purpose of electing Preferred Directors by delivering (or causing to be delivered) to the stockholders entitled to vote a notice of such special meeting to be held not fewer than ten or more than 45 days after the date such notice is given. The record date for determining holders of the Series A Preferred Stock entitled to notice of and to vote at such special meeting shall, to the fullest extent permitted by applicable law, be the close of business on the third Business Day preceding the day on which such notice is delivered. The holder or holders of one-third of the outstanding shares of Series A Preferred Stock and Parity Preferred, present in person or by proxy, shall constitute a quorum for the election of the Preferred Directors except as otherwise required by applicable law. Notice of all meetings of stockholders at which holders of Series A Preferred Stock are entitled to vote in the election of Preferred Directors shall be given to such holders at their addresses as they appear in the Corporation’s stock transfer records. At any such meeting or adjournment thereof, in the absence of a quorum, subject to the provisions of applicable law, the affirmative vote of a majority of the holders of the Series A Preferred Stock and Parity Preferred present in person or by proxy, voting together as a single class, shall be sufficient to adjourn the meeting for the election of the Preferred Directors, without notice other than an announcement at the meeting, until a quorum is present. If a Preferred Dividend Default shall terminate after the notice of a special meeting for the purpose of electing Preferred Directors has been given, but before such special meeting has been held, the Corporation shall, as soon as practicable after such termination, deliver or cause to be delivered, notice of such termination to holders of the Series A Preferred Stock that would have been entitled to vote at such special meeting.
(e) If and when all cumulative dividends on such Series A Preferred Stock for all past Dividend Periods shall have been declared and paid, the right of the holders of Series A Preferred Stock, voting or consenting together with the holders of any Parity Preferred, to elect the Preferred Directors, shall immediately cease (subject to revesting in the event of each and every future Preferred Dividend Default), and, unless there are outstanding shares of Parity Preferred that at such time have the right to vote or consent with respect to the election of the Preferred Directors, the term of office of each Preferred Director so elected shall automatically terminate and the number of directors constituting the Board of Directors shall automatically be reduced accordingly. If the rights of holders of Series A Preferred Stock, voting or consenting together with the holders of any Parity Preferred, to elect Preferred Directors have terminated in accordance with this Section 7(e) after any record date for the determination of stockholders entitled to vote in the election of such Preferred Directors, but before the closing of the polls in such election, holders of Series A Preferred Stock outstanding as of such record date shall not be entitled to vote in such election of Preferred Directors. Any Preferred Director may be removed at any time with or without cause by the vote or consent of, and shall not be removed otherwise than by the vote or consent of, the holders of record of a majority of the outstanding shares of Series A Preferred Stock and the Parity Preferred, voting or consenting together as a single class.
11
So long as a Preferred Dividend Default shall continue, any vacancy in the office of a Preferred Director may be filled by written consent of the Preferred Director remaining in office, or if none remains in office, by a plurality of the votes cast in the election of Preferred Directors. Each of the Preferred Directors shall be entitled to one vote on any matter before the Board of Directors.
(f) So long as any shares of Series A Preferred Stock remain outstanding, the affirmative vote or consent of the holders of two-thirds of the outstanding shares of Series A Preferred Stock and the Parity Preferred, voting or consenting together as a single class, shall be required to: (i) authorize, create or issue, or increase the number of authorized or issued number of shares of, any class or series of capital stock of the Corporation ranking, with respect to the declaration and payment of dividends or the distribution of assets upon the Corporation’s voluntary or involuntary liquidation, dissolution or winding up, senior to the Series A Preferred Stock (collectively, “Senior Capital Stock”) or reclassify any authorized shares of any class or series of capital stock of the Corporation into Senior Capital Stock, or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase any Senior Capital Stock; or (ii) amend, alter or repeal the provisions of the Corporation’s certificate of incorporation, including the terms of the Series A Preferred Stock, whether by merger, consolidation, transfer or conveyance of all or substantially all of its assets or otherwise (an “Event”), so as to materially and adversely affect any powers, preferences or special rights of the Series A Preferred Stock; provided, however, with respect to the occurrence of any Event, so long as the Series A Preferred Stock remains outstanding with the terms thereof materially unchanged or the holders of the Series A Preferred Stock receive stock of the successor with substantially identical rights, taking into account that, upon the occurrence of such Event, the Corporation may not be the surviving entity and the surviving entity may not be a corporation, the occurrence of such Event shall not be deemed to materially and adversely affect such powers, preferences or special rights of Series A Preferred Stock, and, in such case, the holders of the outstanding shares of Series A Preferred Stock shall not have any voting rights with respect to the occurrence of any Event. If any Event would materially and adversely affect the powers, preferences or special rights of the Series A Preferred Stock disproportionately relative to any Parity Preferred, then the affirmative vote or consent of the holders of at least two-thirds of the outstanding shares of the Series A Preferred Stock, voting as a separate class, shall also be required. Notwithstanding the foregoing, and to the fullest extent permitted by applicable law, holders of shares of Series A Preferred Stock shall not be entitled to vote or consent with respect to (A) any increase in the total number of authorized shares of all capital stock of the Corporation or the total number of authorized shares of Common Stock or Preferred Stock, (B) any increase or decrease in the number of authorized shares of Series A Preferred Stock, the issuance of additional shares of Series A Preferred Stock (or depositary receipts), or the creation or issuance of any other class or series of capital stock of the Corporation, or (C) any increase in the number of authorized shares of any other class or series of capital stock of the Corporation; provided that, in each case referred to in clause (A), (B) or (C) above, such class or series capital stock of the Corporation ranks on parity with or junior to the Series A Preferred Stock with respect to the declaration and payment of dividends and the distribution of assets upon the Corporation’s voluntary or involuntary liquidation, dissolution or winding up. Except as set forth in this Section 7, holders of the Series A Preferred Stock shall not have any voting rights with respect to, and the vote or consent of the holders of the Series A Preferred Stock shall not be required for, the taking of any corporate action, including, without limitation, an Event, regardless of the effect that such corporate action or Event may have upon the voting powers, if any, and the preferences and relative, participating, optional or other special rights or privileges, if any, and the qualifications, limitations or restrictions, if any, of the Series A Preferred Stock.
12
(g) Intentionally omitted.
(h) The foregoing voting provisions of this Section 7 shall not apply if, at or prior to the time the act with respect to which such vote would otherwise be required shall be effected, all outstanding shares of Series A Preferred Stock shall have been redeemed or called for redemption upon proper notice pursuant to this Certificate of Designation, and the funds necessary for such redemption have been set aside by the Corporation for the benefit of the holders of such shares of Series A Preferred Stock.
(i) In any matter in which the Series A Preferred Stock may vote or consent together as a single class with any Parity Preferred (as expressly provided in this Section 7), each share of Series A Preferred Stock shall be entitled to one vote per $25,000.00 of liquidation preference.
Section 8. Conversion. The shares of Series A Preferred Stock are not convertible into or exchangeable for any shares of any other class or series of capital stock of the Corporation, except as provided in this Section 8.
(a) Upon the occurrence of a Change of Control, each holder of outstanding shares of Series A Preferred Stock shall have the right, unless, on or prior to the Change of Control Conversion Date, the Corporation has provided or provides notice of its election to redeem the Series A Preferred Stock pursuant to the Redemption Right or Special Optional Redemption Right, to convert some or all of the shares of Series A Preferred Stock held by such holder (the “Change of Control Conversion Right”) on the Change of Control Conversion Date, into a number of shares of Common Stock per share of Series A Preferred Stock to be converted, equal to the lesser of (the “Common Stock Conversion Consideration”) (i) the quotient obtained by dividing (A) the sum of (x) the $25,000.00 liquidation preference per share of Series A Preferred Stock to be converted, plus (y) the amount per such share equal to any accrued and unpaid dividends on such share up to, to, but excluding, the Change of Control Conversion Date (unless the Change of Control Conversion Date, is after a Dividend Record Date and prior to the corresponding Dividend Payment Date, in which case no additional amount for such accrued and unpaid dividends shall be included in such sum), without interest, by (B) the Common Stock Price (as defined below), and (ii) 1.7059 (the “Share Cap”), subject to the immediately succeeding paragraph.
The Share Cap is subject to pro rata adjustments for any stock splits, subdivisions or combinations or the declaration and payment of a dividend in the form of shares of Common Stock to the holders of outstanding shares of Common Stock, in each case, occurring after the Original Issue Date (in each case, a “Share Split”) as follows: the adjusted Share Cap as the result of a Share Split shall be the number of shares of Common Stock that is equivalent to the product obtained by multiplying (i) the Share Cap in effect immediately prior to giving effect to such Share Split by (ii) a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after giving effect to such Share Split and the denominator of which is the number of shares of Common Stock outstanding immediately prior to giving effect to such Share Split.
In the case of a Change of Control pursuant to which outstanding shares of Common Stock shall be converted into cash, securities or other property or assets (including any combination thereof) (the “Alternative Form Consideration”), a holder of outstanding shares of Series A Preferred Stock shall receive, upon conversion of such shares of Series A Preferred Stock in such
13
Change of Control, the kind and amount of Alternative Form Consideration which such holder would have received or been entitled to receive upon such Change of Control, had such holder held a number of shares of Common Stock equal to the Common Stock Conversion Consideration immediately prior to the effective time of the Change of Control (the “Alternative Conversion Consideration”, and the Common Stock Conversion Consideration or the Alternative Conversion Consideration, as may be applicable to a Change of Control, shall be referred to herein as the “Conversion Consideration”). In the event that holders of outstanding shares of Common Stock have the opportunity to elect the form of consideration to be received by them upon the conversion of outstanding shares of Common Stock in such Change of Control, the Conversion Consideration shall be deemed to be the kind and amount of consideration actually received by holders of a majority of the outstanding shares of Common Stock that participated in such an election (if electing between two types of consideration) or holders of a plurality of the outstanding shares of Common Stock that participated in such an election (if electing between more than two types of consideration), as the case may be, and shall be subject to any limitations to which all holders of outstanding shares of Common Stock are subject, including, without limitation, pro rata reductions applicable to any portion of the consideration payable upon the conversion of outstanding shares of Common Stock in the Change of Control.
The “Change of Control Conversion Date” shall be a Business Day set forth in the notice of Change of Control provided in accordance with Section 8(c) that is no less than 20 days nor more than 35 days after the date on which the Corporation provides such notice pursuant to Section 8(c).
The “Common Stock Price” shall be (i) if the consideration to be received in the Change of Control by the holders of outstanding shares of Common Stock is solely cash, the amount of cash consideration per such share of Common Stock, or (ii) if the consideration to be received in the Change of Control by holders of outstanding shares of Common Stock is other than solely cash, (x) the average of the closing sale prices per share of Common Stock on the principal U.S. securities exchange on which the Common Stock is then traded (or, if no closing sale price is reported, the average of the closing bid and ask prices or, if more than one, in either case, the average of the average closing bid and the average closing ask prices) for the ten consecutive trading days immediately preceding, but not including, the effective date of the Change of Control as reported on the principal U.S. securities exchange on which the Common Stock is then traded, or (y) the average of the last quoted bid prices for the Common Stock in the over-the-counter market as reported by OTC Markets Group, Inc. or similar organization for the ten consecutive trading days immediately preceding, but not including, the effective date of the Change of Control, if the Common Stock is not then listed for trading on a U.S. securities exchange.
(b) No fractional shares of Common Stock shall be issued upon the conversion of Series A Preferred Stock pursuant to this Section 8. In lieu of fractional shares of Common Stock otherwise issuable in respect of the aggregate number of shares of Series A Preferred Stock of any holder that are converted pursuant to this Section 8, that holder shall be entitled to receive the cash value of such fractional shares based on the Common Stock Price. If more than one share of Series A Preferred Stock is surrendered for conversion at one time by or for the same holder, the number of full shares of Common Stock issuable upon conversion thereof shall be computed on the basis of the aggregate number of shares of Series A Preferred Stock so surrendered.
14
(c) Within 15 days following the occurrence of a Change of Control, a notice of occurrence of the Change of Control, describing the resulting Change of Control Conversion Right, shall be delivered to the holders of record of the Series A Preferred Stock at their addresses as they appear on the Corporation’s stock transfer records. No failure to give or defect in such notice shall affect the validity of the proceedings for the conversion of any shares of Series A Preferred Stock except as to the holder to whom notice was defective or not given. Each notice shall state: (i) the events constituting the Change of Control; (ii) the date of the Change of Control; (iii) the last date on which the holders of Series A Preferred Stock may exercise their Change of Control Conversion Right; (iv) the method and period for calculating the Common Stock Price; (v) the Change of Control Conversion Date; (vi) that if, on or prior to the Change of Control Conversion Date, the Corporation has provided or provides notice of its election to redeem the Series A Preferred Stock pursuant to the Redemption Right or the Special Optional Redemption Right, the holder will not be able to convert shares of Series A Preferred Stock designated for redemption and such shares of Series A Preferred Stock will be redeemed on the related redemption date, even if such shares have already been tendered for conversion pursuant to the Change of Control Conversion Right; (vii) if applicable, the type and amount of Alternative Conversion Consideration entitled to be received per share of Series A Preferred Stock; (viii) the name and address of the paying agent and the conversion agent; and (ix) the procedures that the holders of Series A Preferred Stock must follow to exercise the Change of Control Conversion Right.
(d) The Corporation shall issue a press release for publication on the Dow Jones & Corporation, Inc., Business Wire, PR Newswire or Bloomberg Business News (or, if such organizations are not in existence at the time of issuance of such press release, such other news or press organization as is reasonably calculated to broadly disseminate the relevant information to the public), or post notice on the Corporation’s website, in any event, prior to the opening of business on the first Business Day following any date on which the Corporation provides notice pursuant to Section 8(c) to the holders of Series A Preferred Stock.
(e) In order to exercise the Change of Control Conversion Right, a holder of outstanding shares of Series A Preferred Stock shall be required to deliver, on or before the close of business on the Change of Control Conversion Date, the certificates, if any, representing the shares of Series A Preferred Stock to be converted, duly endorsed for transfer, together with a written conversion notice completed, to the transfer agent for the Series A Preferred Stock. Such notice shall state: (i) the relevant Change of Control Conversion Date; (ii) the number of shares of Series A Preferred Stock to be converted; and (iii) that the shares of Series A Preferred Stock are to be converted pursuant to the applicable provisions of this Certificate of Designation. Notwithstanding the foregoing, if the shares of Series A Preferred Stock are held in global form, such notice shall comply with applicable procedures of The Depository Trust Corporation (“DTC”).
(f) Holders of Series A Preferred Stock may withdraw any notice of exercise of a Change of Control Conversion Right (in whole or in part) by a written notice of withdrawal delivered to the transfer agent for the Series A Preferred Stock prior to the close of business on the Business Day prior to the Change of Control Conversion Date. The notice of withdrawal shall state: (i) the number of withdrawn shares of Series A Preferred Stock; (ii) if certificated shares of Series A Preferred Stock have been delivered by a holder pursuant to Section 8(e), the certificate numbers of the shares of withdrawn Series A Preferred Stock; and (iii) the number of shares of Series A Preferred Stock, if any, which remain subject to the conversion notice. Notwithstanding the
15
foregoing, if the shares of Series A Preferred Stock are held in global form, the notice of withdrawal shall comply with applicable procedures of DTC.
(g) Shares of Series A Preferred Stock as to which the Change of Control Conversion Right has been properly exercised, and for which the conversion notice has not been properly withdrawn, shall be converted into the applicable Conversion Consideration in accordance with the Change of Control Conversion Right on the Change of Control Conversion Date, unless, on or prior to the Change of Control Conversion Date, the Corporation has provided or provides notice of its election to redeem the shares of Series A Preferred Stock pursuant to the Redemption Right or the Special Optional Redemption Right. If the Corporation elects to redeem shares of Series A Preferred Stock that would otherwise be converted into the applicable Conversion Consideration on a Change of Control Conversion Date, such shares of Series A Preferred Stock shall not be so converted and the holders of such shares shall be entitled to receive on the applicable redemption date $25,000.00 per share of Series A Preferred Stock, plus an amount per share equal to any accrued and unpaid dividends on such share up to, but excluding, the date fixed for redemption, without interest.
(h) The Corporation shall deliver or cause to be delivered the applicable Conversion Consideration no later than the third Business Day following the Change of Control Conversion Date.
(i) If any share of Series A Preferred Stock is converted, redeemed, purchased or otherwise acquired by the Corporation, in any manner whatsoever, the share of Series A Preferred Stock so acquired shall, to the fullest extent permitted by applicable law, be retired and cancelled upon such acquisition, and shall not be reissued as a share of Series A Preferred Stock. Any share of Series A Preferred Stock so acquired shall, upon its retirement and cancellation, and upon the taking of any action required by applicable law, become an authorized but unissued share of Preferred Stock undesignated as to series and may be reissued a part of a new series of Preferred Stock, subject to the conditions and restrictions set forth in the Corporation’s certificate of incorporation or imposed by the Delaware General Corporation Law.
Section 9. No Conversion Rights. The shares of Series A Preferred Stock shall not be convertible into or exchangeable for any other property or securities of the Corporation or any other entity, except as expressly provided in this Certificate of Designation.
Section 10. Record Holders. To the fullest extent permitted by applicable law, the Corporation and its transfer agent may deem and treat the record holder of any Series A Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Corporation nor its transfer agent shall be affected by any notice to the contrary.
Section 11. No Maturity or Sinking Fund. The Series A Preferred Stock has no maturity date, and no sinking fund has been established for the retirement or redemption of Series A Preferred Stock.
Section 12. Exclusion of Other Rights. The Series A Preferred Stock shall not have any voting powers, or preferences or relative, participating, optional or other special rights or privileges or qualifications, limitations or restrictions, other than as expressly set forth in the Corporation’s certificate of incorporation (including, for the avoidance of doubt, this Certificate of Designation).
16
Section 13. Headings of Subdivisions. The headings of the various subdivisions of this Certificate of Designation are for convenience of reference only and shall not affect the interpretation of any of the provisions.
Section 14. Severability of Provisions. If any of the voting powers or preferences and relative, participating, optional, or other special rights or privileges, or qualifications, limitations or restrictions of the Series A Preferred Stock set forth in this Certificate of Designation are invalid, unlawful or incapable of being enforced by reason of any rule of law or public policy, all other voting powers, preferences and relative, participating, optional, and other special rights and privileges, if any, and qualifications, limitations and restrictions, if any, of Series A Preferred Stock set forth in this Certificate of Designation which can be given effect without the invalid, unlawful or unenforceable provision thereof shall, nevertheless, remain in full force and effect and none of the voting powers, if any, preferences and relative, participating, optional, or other special rights or privileges, if any, or qualifications, limitations or restrictions, if any, of the Series A Preferred Stock herein set forth shall be deemed dependent upon any other provision thereof unless so expressed therein.
Section 15. No Preemptive Rights. No holder of Series A Preferred Stock shall be entitled to any preemptive rights to subscribe for or acquire any unissued shares of any class or series of capital stock of the Corporation (whether now or hereafter authorized) or securities of the Corporation convertible into or carrying a right to subscribe to or acquire shares of any class or series of capital stock of the Corporation.
Section 16. Waiver. The voting powers, if any, of the Series A Preferred Stock and the preferences and relative, participating, optional, and other special rights and privileges, if any, and the qualifications, limitations or restrictions, if any, of the Series A Preferred Stock may be waived as to all shares of Series A Preferred Stock in any instance (without the necessity of calling, noticing or holding a meeting of stockholders) by the consent or agreement of the holders of at least a majority of the shares of Series A Preferred Stock then outstanding, consenting or agreeing separately as a single class.
* * *
17
Exhibit 4.3
DEPOSIT AGREEMENT
Made and entered into as of December 23, 2021
among
GREEN BRICK PARTNERS, INC.,
AS THE COMPANY,
CONTINENTAL STOCK TRANSFER & TRUST COMPANY,
AS DEPOSITARY, TRANSFER AGENT AND REGISTRAR,
-and-
HOLDERS OF RECEIPTS
RELATING TO RECEIPTS, DEPOSITARY SHARES AND
5.75% SERIES A CUMULATIVE PERPETUAL PREFERRED STOCK
TABLE OF CONTENTS
Article I DEFINITIONS | ||||||||
Article II FORM OF RECEIPTS, DEPOSIT OF SERIES A PREFERRED STOCK, EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS | ||||||||
Section 2.01 | Form and Transferability of Receipts | |||||||
Section 2.02 | Deposit of Series A Preferred Stock; Execution and Delivery of Receipts in Respect Thereof | |||||||
Section 2.03 | Registration of Transfers of Receipts | |||||||
Section 2.04 | Combinations and Split-ups of Receipts | |||||||
Section 2.05 | Surrender of Receipts and Withdrawal of Series A Preferred Stock | |||||||
Section 2.06 | Limitations on Execution and Delivery, Transfer, Split-up, Combination, Surrender and Exchange of Receipts | |||||||
Section 2.07 | Lost Receipts, etc | |||||||
Section 2.08 | Cancellation and Destruction of Surrendered Receipts | |||||||
Section 2.09 | Redemption of Series A Preferred Stock for Cash | |||||||
Section 2.10 | Conversion Upon a Change of Control | |||||||
Section 2.11 | No Pre-Release | |||||||
Article III CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY | ||||||||
Section 3.01 | Filing Proofs, Certificates and Other Information | |||||||
Section 3.02 | Payment of Fees and Expenses | |||||||
Section 3.03 | Representations and Warranties as to Series A Preferred Stock | |||||||
Section 3.04 | Representation and Warranty as to Receipts and Depositary Shares | |||||||
Article IV SERIES A PREFERRED STOCK; NOTICES | ||||||||
Section 4.01 | Cash Distributions | |||||||
Section 4.02 | Distributions Other Than Cash | |||||||
Section 4.03 | Rights, Preferences or Privileges | |||||||
Section 4.04 | Notice of Dividends; Fixing of Record Date for Holders of Receipts | |||||||
Section 4.05 | Voting Rights | |||||||
Section 4.06 | Changes Affecting Series A Preferred Stock and Reorganization Events | |||||||
Section 4.07 | Inspection of Reports | |||||||
Section 4.08 | Lists of Receipt Holders | |||||||
Section 4.09 | Withholding | |||||||
Article V THE DEPOSITARY AND THE COMPANY | ||||||||
Section 5.01 | Maintenance of Offices, Agencies and Transfer Books by the Depositary and the Registrar | |||||||
Section 5.02 | Prevention or Delay in Performance by the Depositary, the Depositary’s Agents, the Registrar or the Company | |||||||
Section 5.03 | Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Company | |||||||
Section 5.04 | Resignation and Removal of the Depositary; Appointment of Successor Depositary | |||||||
i
Section 5.05 | Notices, Reports and Documents | |||||||
Section 5.06 | ||||||||
Section 5.07 | ||||||||
Article VI AMENDMENT AND TERMINATION | ||||||||
Section 6.01 | Amendment | |||||||
Section 6.02 | Termination | |||||||
Section 7.01 | Counterparts | |||||||
Section 7.02 | Exclusive Benefits of Parties | |||||||
Section 7.03 | Invalidity of Provisions | |||||||
Section 7.04 | Notices | |||||||
Section 7.05 | Depositary’s Agents | |||||||
Section 7.06 | Holders of Receipts Are Parties | |||||||
Section 7.07 | Governing Law | |||||||
Section 7.08 | Inspection of Deposit Agreement and Certificate of Designation | |||||||
Section 7.09 | ||||||||
ii
DEPOSIT AGREEMENT
This DEPOSIT AGREEMENT is made and entered into as of December 23, 2021, among Green Brick Partners, Inc., a Delaware corporation (the “Company”), Continental Stock Transfer & Trust Company, a New York limited liability trust company, as Depositary, Transfer Agent and Registrar (each as hereinafter defined), and all holders from time to time of Receipts (as hereinafter defined) issued hereunder.
WITNESSETH:
WHEREAS, all capitalized terms used in this Deposit Agreement shall have the meanings set forth in Article I;
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit Agreement, for the deposit of shares of the Series A Preferred Stock with the Depositary for the purposes set forth in this Deposit Agreement and for the issuance hereunder of the Depositary Shares representing fractional interests in the Series A Preferred Stock deposited and for the execution and delivery of Receipts evidencing Depositary Shares; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A annexed to this Deposit Agreement, with appropriate insertions, modifications and omissions, as hereinafter provided in this Deposit Agreement.
NOW, THEREFORE, in consideration of the promises contained herein, it is agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
The following definitions shall apply to the respective terms (in the singular and plural forms of such terms) used in this Deposit Agreement and the Receipts:
Section 1.01“Alternative Conversion Consideration” shall have the meaning assigned to such term in the Certificate of Designation.
Section 1.02“Business Day” shall have the meaning assigned to such term in the Certificate of Designation.
Section 1.03“Certificate of Designation” shall mean the Certificate of Designation, designating 50,000 shares of Series A Preferred Stock as a series of preferred stock of the Company, in the form filed with the Secretary of State of the State of Delaware, as amended, amended and restated or restated from time to time.
Section 1.04“Certificate of Incorporation” shall mean the certificate of incorporation of the Company, as amended, amended and restated or restated from time to time, including the amendment resulting from filing the Certificate of Designation.
Section 1.05“Change of Control” shall have the meaning assigned to such term in the Certificate of Designation.
Section 1.06“Change of Control Conversion Date” shall have the meaning assigned to such term in the Certificate of Designation.
Section 1.07“Change of Control Conversion Right” shall have the meaning set forth in Section 2.10 hereof.
1
Section 1.08“Common Stock” shall mean the common stock, par value $0.01 per share, of the Company.
Section 1.09“Common Stock Price” shall have the meaning assigned to such term in the Certificate of Designation.
Section 1.10“Company” shall have the meaning set forth in the preamble hereof.
Section 1.11“Conversion Consideration” shall have the meaning assigned to such term in the Certificate of Designation.
Section 1.12“Deposit Agreement” shall mean this agreement, as the same may be amended, modified or supplemented from time to time.
Section 1.13“Depositary” shall mean Continental Stock Transfer & Trust Company, a New York limited liability trust company, having its principal executive office in the United States and having a combined capital and surplus of at least $50,000,000, and any successor as depositary under this Deposit Agreement.
Section 1.14“Depositary Office” shall mean the principal office of the Depositary at which at any particular time its business in respect of matters governed by this Deposit Agreement shall be administered, which at the date of this Deposit Agreement is located at 1 State Street 30th Floor, New York, New York.
Section 1.15“Depositary Share” shall mean the security representing a 1/1000th fractional ownership interest in a share of Series A Preferred Stock deposited with the Depositary under this Deposit Agreement and the same proportionate interest in any and all other property received by the Depositary in respect of such share of Series A Preferred Stock and held under this Deposit Agreement, all as evidenced by the Receipts issued under this Deposit Agreement. Subject to the terms of this Deposit Agreement and to the fullest extent permitted by applicable law, each owner of a Depositary Share is entitled, proportionately, to all of the voting powers, if any, and the preferences and relative, participating, optional, and other special rights or privileges, if any, and the qualifications, limitations and restrictions thereof, of the fraction of a share of the Series A Preferred Stock represented by such Depositary Share as contained in the Certificate of Designation.
Section 1.16“Depositary’s Agent” shall mean an agent appointed by the Depositary as provided, and for the purposes specified, in Section 7.05.
Section 1.17“DTC” means The Depository Trust Company.
Section 1.18“DTC Receipt” has the meaning set forth in Section 2.01.
Section 1.19“Optional Redemption Right” has the meaning set forth under Section 2.09.
Section 1.20“Receipt” shall, as the context requires, mean (i) a receipt issued under this Deposit Agreement to evidence one or more Depositary Shares, or (ii) a DTC Receipt, in each case, substantially in the form set forth as Exhibit A hereto.
Section 1.21“Record date” shall mean the date fixed pursuant to Section 4.04.
Section 1.22“Record holder” or “holder” as applied to a Receipt shall mean the individual, entity or person in whose name a Receipt is registered on the books maintained by the Depositary for such purpose.
Section 1.23“redemption date” has the meaning set forth under Section 2.09.
Section 1.24“redemption price” has the meaning set forth under Section 2.09.
2
Section 1.25“Registrar” shall mean Continental Stock Transfer & Trust Company, or any other entity appointed to register ownership and transfers of Receipts and the deposited Series A Preferred Stock, as provided in this Deposit Agreement.
Section 1.26“Securities Act” shall mean the Securities Act of 1933, as amended.
Section 1.27“Series A Preferred Stock” shall mean shares of the Company’s 5.75% Series A Cumulative Perpetual Preferred Stock (liquidation preference $25,000.00 per share), par value $0.01 per share.
Section 1.28“Special Optional Redemption Right” shall have the meaning set forth in Section 2.09 hereof.
Section 1.29“Transfer Agent” shall mean Continental Stock Transfer & Trust Company, a New York limited liability trust company, or any other entity appointed to transfer the Receipts and the deposited Series A Preferred Stock, as provided in this Deposit Agreement.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF SERIES A PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF
RECEIPTS
FORM OF RECEIPTS, DEPOSIT OF SERIES A PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF
RECEIPTS
Section 2.01 Form and Transferability of Receipts.
(a)Receipts shall be printed and shall be substantially in the form set forth in Exhibit A annexed to this Deposit Agreement, in each case with appropriate insertions, modifications and omissions, as hereinafter provided.
(b)Receipts shall be executed by the Depositary by the manual or facsimile signature of a duly authorized signatory of the Depositary and shall also be countersigned by manual or facsimile signature of a duly authorized signatory of the Registrar; provided that no such countersignature shall be required if the Depositary acts as the Registrar. No Receipt shall be entitled to any benefits under this Deposit Agreement or be valid or obligatory for any purpose unless it shall have been executed as provided in the preceding sentence. The Depositary shall record on its books each Receipt executed as provided above and delivered as hereinafter provided. Receipts bearing the manual or facsimile signature of a duly authorized signatory of the Depositary who was at any time a proper signatory of the Depositary shall bind the Depositary, notwithstanding that such signatory ceased to hold such office prior to the execution and delivery of such Receipts by the Registrar or did not hold such office on the date of issuance of such Receipts.
(c)Receipts shall be in denominations of any number of whole Depositary Shares. All Receipts shall be dated the date of their issuance. Receipts may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Deposit Agreement as may be required by the Depositary and approved by the Company, or which the Company has determined are required to comply with any applicable law or regulation or with the rules and regulations of any securities exchange or interdealer quotation system upon which the Common Stock, the Series A Preferred Stock, the Depositary Shares or the Receipts may be listed for trading or quoted or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Receipts are subject, in each case as directed by the Company.
(d)Title to any Receipt (and to the Depositary Shares evidenced by such Receipt) that is properly endorsed, or accompanied by a properly executed instrument of transfer or endorsement, shall be transferable by delivery with the same effect as in the case of a negotiable instrument; provided, however, that until transfer of a Receipt shall be registered on the books of the Depositary as provided in Section 2.03, the Depositary may, notwithstanding any notice to the contrary, treat the record holder thereof at such time as the absolute owner thereof for the purpose of determining the person entitled to distributions of dividends or other distributions or payments
3
with respect to the Series A Preferred Stock, to exercise any redemption, conversion or voting rights or to receive any notice provided for in this Deposit Agreement and for all other purposes.
(e)Notwithstanding the foregoing, upon request by the Company, the Depositary and the Company will make application to DTC for acceptance of all or a portion of the Receipts for its book-entry settlement system. In connection with any such request, the Company hereby appoints the Depositary, acting through any authorized officer thereof as its attorney-in-fact, with full power to delegate, for purposes of executing any agreements, certifications or other instruments or documents necessary or desirable in order to effect the acceptance of such Receipts for DTC eligibility. So long as the Receipts are eligible for book-entry settlement with DTC, unless otherwise required by applicable law, all Depositary Shares to be traded on the New York Stock Exchange (the “NYSE”) with book-entry settlement through DTC shall be represented by a single receipt (the “DTC Receipt”), substantially in the form set forth in the attached Exhibit A, which shall be deposited with DTC (or its custodian) evidencing all such Depositary Shares and registered in the name of the nominee of DTC (initially expected to be Cede & Co.). The Transfer Agent shall hold the DTC Receipt as custodian for DTC. Beneficial ownership of Depository Shares evidenced by the DTC Receipt shall be shown on, and the transfer of such ownership shall be effected through, records maintained by (i) DTC or its nominee for such DTC Receipt, or (ii) institutions that have accounts with DTC.
(f)If issued, the DTC Receipt shall be exchangeable for Receipts only if (i) DTC notifies the Company at any time that it is unwilling or unable to continue to make its book-entry settlement system available for the Receipts and a successor to DTC is not appointed by the Company within 90 days of the date the Company is so informed in writing, (ii) DTC notifies the Company at any time that it has ceased to be a clearing agency registered under applicable law and a successor to DTC is not appointed by the Company within 90 days of the date the Company is so informed in writing or (iii) the Company executes and delivers to DTC a notice to the effect that such DTC Receipt shall be so exchangeable. If the DTC Receipt shall be exchangeable for Receipts as the result of an event described in clause (i), (ii) or (iii) of the preceding sentence, then without unnecessary delay but in any event not later than the earliest date on which the DTC Receipt may be so exchanged, the Depositary is hereby directed to and shall provide written instructions to DTC to deliver to the Depositary for cancellation the DTC Receipt, and the Company shall instruct the Depositary in writing to execute and deliver to the beneficial owners of the Depositary Shares previously evidenced by the DTC Receipt, Receipts in physical form evidencing such Depositary Shares. The DTC Receipt shall be in such form and shall bear such legend or legends as may be appropriate or required by DTC in order for it to accept the Depositary Shares for its book-entry settlement system. Notwithstanding any other provision herein to the contrary, if the Receipts are at any time eligible for book-entry settlement through DTC, delivery of shares of Series A Preferred Stock and other property in connection with the withdrawal or redemption of Depositary Shares will be made through DTC and in accordance with its procedures, unless the holder of the relevant Receipt otherwise requests and such request is reasonably acceptable to the Depositary and the Company.
Section 2.02 Deposit of Series A Preferred Stock; Execution and Delivery of Receipts in Respect Thereof.
(a)Concurrently with the execution of this Deposit Agreement, the Company is delivering to the Depositary a certificate or certificates, registered in the name of the Depositary and evidencing 2,000 shares of Series A Preferred Stock, and the Company may, after the execution of this Deposit Agreement and from time to time, deliver to the Depositary a certificate or certificates, registered in the name of Depositary and evidencing up to an additional 48,000 shares of Series A Preferred Stock (e.g., an aggregate of up to 50,000 shares of Series A Preferred Stock), in each case, properly endorsed or accompanied, if required by the Depositary, by a duly executed instrument of transfer or endorsement, in form satisfactory to the Depositary, together with (i) all such certifications as may be required by the Depositary in accordance with the provisions of this Deposit Agreement and (ii) a written letter of instruction of the Company directing the Depositary to execute and deliver to, or upon the written order of the person or persons stated in such order a Receipt or Receipts for the Depositary Shares representing such deposited Series A Preferred Stock registered in such names specified in such written letter of instructions. The Depositary acknowledges receipt of the aforementioned 2,000 shares of Series A Preferred Stock and related documentation (and will, upon receipt of up to an additional 48,000 shares of Series A Preferred Stock acknowledge receipt of such additional shares and related documentation) and agrees to hold such deposited Series A Preferred Stock in an account to be established by the Depositary at the Depositary Office or at such other office as the
4
Depositary shall determine. The Company hereby appoints Continental Stock Transfer & Trust Company as the Registrar and Transfer Agent for the Series A Preferred Stock deposited hereunder and Continental Stock Transfer & Trust Company hereby accepts such appointment and, as such, will reflect changes in the number of shares (including any fractional shares) of deposited Series A Preferred Stock held by the Depositary by notation, book-entry or other appropriate method.
(b)If required by the Depositary, Series A Preferred Stock presented for deposit by the Company at any time, whether or not the register of stockholders of the Company is closed, shall also be accompanied by an agreement or assignment, or other instrument satisfactory to the Depositary, that will provide for the prompt transfer to the Depositary or its nominee of any distribution or right to subscribe for additional Series A Preferred Stock or to receive other property that any person in whose name the Series A Preferred Stock is or has been registered may thereafter receive upon or in respect of such deposited Series A Preferred Stock, or in lieu thereof such agreement of indemnity or other agreement as shall be satisfactory to the Depositary.
(c)Upon receipt by the Depositary of a certificate or certificates evidencing Series A Preferred Stock deposited under this Deposit Agreement, together with the other documents specified above, and upon registering such Series A Preferred Stock in the name of the Depositary, the Depositary, subject to the terms and conditions of this Deposit Agreement, shall execute and deliver to, or upon the order of, the person or persons named in the written order delivered to the Depositary referred to in Section 2.02(a), a Receipt or Receipts for the number of whole Depositary Shares representing the Series A Preferred Stock so deposited and registered in such name or names as may be requested by such person or persons. The Depositary shall execute and deliver such Receipt or Receipts at the Depositary Office, except that, at the request, risk and expense of any person requesting such delivery, such delivery may be made at such other place as may be designated by such person. Other than in the case of splits, combinations or other reclassifications affecting the Series A Preferred Stock, or in the case of dividends or other distributions of Series A Preferred Stock, if any, there shall be deposited under this Deposit Agreement not more than the number of shares constituting the Series A Preferred Stock as set forth in the Certificate of Designation.
(d)The Company shall deliver to the Depositary from time to time such quantities of shares of Series A Preferred Stock as the Depositary may request to enable the Depositary to perform its obligations under this Deposit Agreement.
Section 2.03 Registration of Transfers of Receipts.
The Company hereby appoints Continental Stock Transfer & Trust Company as the Registrar and Transfer Agent for the Receipts and Continental Stock Transfer & Trust Company hereby accepts such appointment and, as such, shall register on its books from time to time transfers of Receipts upon any surrender thereof by the holder in person or by a duly authorized attorney, agent or representative properly endorsed or accompanied by a properly executed instrument of transfer or endorsement, together with evidence of the payment by the applicable party of any transfer taxes as may be required by applicable law. Upon such surrender, the Depositary shall execute a new Receipt or Receipts and deliver the same to or upon the order of the person entitled thereto evidencing the same aggregate number of Depositary Shares evidenced by the Receipt or Receipts surrendered.
Section 2.04 Combinations and Split-ups of Receipts.
Upon surrender of a Receipt or Receipts at the Depositary Office or such other office as the Depositary may designate for the purpose of effecting a split-up or combination of Receipts, subject to the terms and conditions of this Deposit Agreement, the Depositary shall execute and deliver a new Receipt or Receipts in the authorized denominations requested evidencing the same aggregate number of Depositary Shares evidenced by the Receipt or Receipts surrendered.
Section 2.05 Surrender of Receipts and Withdrawal of Series A Preferred Stock.
5
(a)Any holder of a Receipt or Receipts may withdraw any or all of the fractional ownership interest in a share of Series A Preferred Stock evidenced by such Receipt or Receipts and all money and other property, if any, received by the Depository in respect of such fractional ownership interest in such share by surrendering such Receipt or Receipts to the Depositary Office or at such other office as the Depositary may designate for such withdrawals; provided, however, that a holder of a Receipt or Receipts may not withdraw any or all of the fractional ownership interest in a share (or money and other property, if any) which has previously been called for redemption. Upon such surrender, upon payment of the fee of the Depositary for the surrender of Receipts to the extent provided in Section 5.07 and payment of all taxes and governmental charges in connection with such surrender and withdrawal, and subject to the terms and conditions of this Deposit Agreement, without unreasonable delay, the Depositary shall deliver to such holder, or to the person or persons designated by such holder as hereinafter provided, the number of whole or fractional shares of Series A Preferred Stock and all such money and other property, if any, evidenced by the Receipt or Receipts so surrendered for withdrawal, but holders of such whole or fractional shares of Series A Preferred Stock will not thereafter be entitled to deposit such Series A Preferred Stock under this Deposit Agreement or to receive Depositary Shares therefor. If the Receipt or Receipts delivered by the holder to the Depositary in connection with such withdrawal shall evidence a number of Depositary Shares in excess of the number of Depositary Shares representing the number of whole or fractional shares of deposited shares of Series A Preferred Stock to be withdrawn, the Depositary shall at the same time, in addition to such number of whole or fractional shares of Series A Preferred Stock and such money and other property, if any, to be withdrawn, deliver to such holder, or (subject to Section 2.03) upon such holder’s order, a new Receipt or Receipts evidencing such excess number of Depositary Shares. Delivery of such whole or fractional shares of Series A Preferred Stock and such money and other property being withdrawn may be made by the delivery of such certificates, documents of title and other instruments as the Depositary may deem appropriate, which, if required by the Depositary, shall be properly endorsed or accompanied by proper instruments of transfer.
(b)If the deposited Series A Preferred Stock and the money and other property being withdrawn are to be delivered to a person or persons other than the record holder of the Receipt or Receipts being surrendered for withdrawal, such holder shall execute and deliver to the Depositary a written order so directing the Depositary and the Depositary may require that the Receipt or Receipts surrendered by such holder for withdrawal be properly endorsed in blank or accompanied by a properly executed instrument of transfer or endorsement in blank.
(c)The Depositary shall deliver the deposited Series A Preferred Stock and the money and other property, if any, represented by the Depositary Shares evidenced by Receipts surrendered for withdrawal at the Depositary Office, except that, at the request, risk and expense of the holder surrendering such Receipt or Receipts and for the account of the holder thereof, such delivery may be made at such other place as may be designated by such holder.
Section 2.06 Limitations on Execution and Delivery, Transfer, Split-up, Combination, Surrender and Exchange of Receipts.
(a)As a condition precedent to the execution and delivery, transfer, split-up, combination, surrender or exchange of any Receipt, the Depositary, any of the Depositary’s Agents or the Company may require any or all of the following: (i) payment to it of a sum sufficient for the payment (or, in the event that the Company shall have made such payment, the reimbursement to it) of any tax or other governmental charge and stock transfer or registration fee with respect thereto (including any such tax or charge with respect to the Series A Preferred Stock being deposited or withdrawn); (ii) the production of proof satisfactory to it as to the identity and genuineness of any signature (or the authority of any signature); and (iii) compliance with such regulations, if any, as the Depositary or the Company may establish consistent with the provisions of this Deposit Agreement as may be required by any securities exchange on which the Common Stock, the deposited Series A Preferred Stock, the Depositary Shares or the Receipts may be included for quotation or listed.
(b)The deposit of Series A Preferred Stock may be refused, the delivery of Receipts against Series A Preferred Stock may be suspended, the transfer of Receipts may be refused, and the transfer, split-up, combination, surrender, exchange or redemption of outstanding Receipts may be suspended (i) during any period when the register of stockholders of the Company is closed or (ii) if any such action is deemed reasonably necessary or
6
advisable by the Depositary, any of the Depositary’s Agents or the Company at any time or from time to time because of any requirement of applicable law or of any government or governmental body or commission, or under any other provision of this Deposit Agreement.
Section 2.07 Lost Receipts, etc.
In case any Receipt shall be mutilated and surrendered to the Depositary or destroyed or lost or stolen, the Depositary shall execute and deliver a Receipt of like form and tenor in exchange and substitution for such mutilated Receipt or in lieu of and in substitution for such destroyed, lost or stolen Receipt; provided, that the holder thereof shall have (a) filed with the Depositary (i) a request for such execution and delivery before the Depositary has notice that the Receipt has been acquired by a protected purchaser and (ii) an indemnity bond and (b) satisfied any other reasonable requirements imposed by the Depositary.
Section 2.08 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary or any Depositary’s Agent shall be cancelled by the Depositary. Except as prohibited by applicable law or regulation, the Depositary is authorized, but not required, to destroy such Receipts so cancelled.
Section 2.09 Redemption of Series A Preferred Stock for Cash.
(a)The Company may redeem the Series A Preferred Stock at its option, in whole or in part, at any time, or from time to time, as provided for in Section 5 of the Certificate of Designation, on or after December 23, 2026 (the “Optional Redemption Right”). There will be no sinking fund for the redemption or purchase of the Series A Preferred Stock or the Depositary Shares. No holder of the Series A Preferred Stock or of the Depositary Shares will have the right to require the redemption of the Series A Preferred Stock.
(b)Upon the occurrence of a Change of Control, the Company shall have the option to redeem the Series A Preferred Stock for cash, in whole or in part, in accordance with the provisions of Section 6 of the Certificate of Designation, within 120 days after the first date on which the Change of Control occurred (the “Special Optional Redemption Right”). In the case of any redemption, whether pursuant to the Optional Redemption Right or the Special Optional Redemption Right, the Company shall (unless otherwise agreed in writing with the Depositary) give the Depositary not less than 30 and not more than 60 days’ prior written notice of the date fixed for redemption of such Series A Preferred Stock (the “redemption date”) and of the number of such shares of Series A Preferred Stock held by the Depositary to be redeemed and the applicable redemption price (the “redemption price”), as set forth in the Certificate of Designation. The Depositary shall deliver through electronic mail or first-class postage prepaid mail, notice of the redemption of such Series A Preferred Stock and the proposed simultaneous redemption of the Depositary Shares representing the Series A Preferred Stock to be redeemed, not less than 30 and not more than 60 days prior to the date fixed for redemption, to the holders of record on the record date fixed for such redemption pursuant to Section 4.04, of the Receipts evidencing the Depositary Shares to be so redeemed, at the addresses of such holders as the same appear on the records of the Depositary; but neither the failure to deliver any such notice to one or more such holder nor any defect in any such notice shall affect the sufficiency of the proceedings for redemption except as to the holder to whom notice was defective or not given.
(c)In connection with any redemption of the Series A Preferred Stock at the option of the Company in accordance with the Certificate of Designation, the Company shall deliver an officers’ certificate to the Depositary stating that it has complied with all of the conditions to the exercise of its optional redemption rights set forth in the Certificate of Designation, and the Depositary shall have no duty or obligation to inquire or investigate whether the Company has complied with the terms of the Certificate of Designation.
(d)The Company shall also prepare and provide the Depositary with the notice provided for in Section 2.09(b), and each such notice shall state: (i) the date fixed for redemption; (ii) the redemption price; (iii) the number of shares of deposited Series A Preferred Stock and Depositary Shares to be redeemed; (iv) if fewer than all Depositary Shares held by any holder are to be redeemed, the number of such Depositary Shares held by such holder
7
to be so redeemed; (v) the place or places where certificates (if any) representing the Series A Preferred Stock and the Receipts evidencing Depositary Shares to be redeemed are to be surrendered for payment of the redemption price; and (vi) that dividends on the Series A Preferred Stock to be redeemed pursuant to the Certificate of Designation and the Receipts evidencing Depositary Shares to be redeemed pursuant to this Deposit Agreement will cease to accrue on the redemption date. In the event the Company is exercising its Special Optional Redemption Right, the notice referred to above shall also state: (i) that the Series A Preferred Stock is being redeemed pursuant to the Company’s Special Optional Redemption Right and the Receipts evidencing Depositary Shares are being redeemed pursuant to this Deposit Agreement in connection with the occurrence of a Change of Control, and a brief description of the transaction(s) constituting such Change of Control; and (ii) that holders of the Series A Preferred Stock and Depositary Shares will not be able to tender such shares for conversion in connection with the Change of Control, and that each share of Series A Preferred Stock so tendered for conversion that is selected prior to the Change of Control Conversion Date pursuant to such Special Optional Redemption Right for redemption and each Depositary Share so tendered will be redeemed on the related date of redemption instead of converted on the Change of Control Conversion Date.
(e)In the event that notice of redemption has been made as described in the immediately preceding paragraphs and the Company shall then have paid in full to the Depositary the redemption price (determined pursuant to the Certificate of Designation) of the Series A Preferred Stock deposited with the Depositary to be redeemed, the Depositary shall redeem the number of Depositary Shares representing such Series A Preferred Stock so called for redemption by the Company and on the redemption date (unless the Company shall have failed to pay for the shares of Series A Preferred Stock to be redeemed by it as set forth in the Company’s notice provided for in the preceding paragraph), the Depositary Shares called for redemption shall be deemed no longer to be outstanding and all rights of the holders of Receipts evidencing such Depositary Shares (except the right to receive the redemption price) shall, to the extent of such Depositary Shares, cease and terminate. Upon surrender in accordance with said notice of the Receipts evidencing such Depositary Shares (properly endorsed or assigned for transfer, if the Depositary shall so require), such Depositary Shares shall be redeemed at a cash redemption price set forth in such notice, plus an amount equal to any accrued but unpaid dividends on the fractional ownership interest in a share of Series A Preferred Stock represented by such Depositary Shares as provided in the Certificate of Designation. The foregoing shall be further subject to the terms and conditions of the Certificate of Designation.
(f)In the event of any conflict between the provisions of this Deposit Agreement and the provisions of the Certificate of Designation, the provisions of the Certificate of Designation will govern and the Company will instruct the Depositary in writing accordingly of such governing terms; provided, however, that under no circumstances will the Certificate of Designation be deemed to change or modify any of the rights, duties or immunities of the Depositary contained in this Deposit Agreement.
(g)Subject to the Certificate of Designation, so long as all cumulative dividends on the Series A Preferred Stock and any class or series of capital stock of the Company ranking, with respect to the declaration and payment of dividends, on parity with the Series A Preferred Stock, for all past dividend periods shall have been or contemporaneously are (i) declared and paid, or (ii) declared and a sum sufficient for the payment thereof is set aside for payment, the Company will not be prevented or restricted from purchasing, from time to time, either at a public or a private sale, all or any portion of the shares of the Series A Preferred Stock (or Receipts) or Common Stock at such price or prices as the Company may determine, subject to the provisions of applicable law, including the purchase of shares of Series A Preferred Stock (or Receipts) or Common Stock in open-market transactions duly authorized by the Company’s Board of Directors.
(h)If fewer than all of the Depositary Shares evidenced by a Receipt are to be redeemed, the Depositary will deliver to the holder of such Receipt upon its surrender to the Depositary, together with payment of the redemption price for and all other amounts payable in respect of the Depositary Shares called for redemption, a new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not redeemed.
(i)If less than all of the Series A Preferred Stock is redeemed pursuant to the Company’s exercise of its Optional Redemption Right or Special Redemption Right, the Depositary will select the Depositary Shares to be redeemed pursuant to this Section 2.09 on a pro rata basis or by lot as determined by the Company.
8
Section 2.10 Conversion Upon a Change of Control.
Shares of Series A Preferred Stock shall not be convertible into or exchangeable for any shares of any other class or series of capital stock of the Company, except as provided in the Certificate of Designation, and the Depository Shares shall not be convertible or exchangeable except as provided in this Deposit Agreement.
(a)Upon the occurrence of a Change of Control, each holder of Depositary Shares shall have the right, unless, prior to the Change of Control Conversion Date, the Company has provided or provides notice of its election to redeem the Series A Preferred Stock pursuant to the Optional Redemption Right or Special Optional Redemption Right, to convert some or all of the Depositary Shares held by such holder (the “Change of Control Conversion Right”) on the Change of Control Conversion Date, into a number of shares of Common Stock per share or fractional shares of Series A Preferred Stock represented by such Depositary Shares determined as provided in the Certificate of Designation.
(b)No fractional shares of Common Stock shall be issued upon the conversion of Depositary Shares. In lieu of fractional shares, holders shall be entitled to receive the cash value of such fractional shares based on the Common Stock Price.
(c)Within 15 days following the occurrence of a Change of Control, a notice of occurrence of the Change of Control describing the resulting Change of Control Conversion Right, shall be delivered by the Company to the Depository, and the Depository shall deliver through electronic mail or first-class postage prepaid mail, notice of occurrence of the Change of Control describing the resulting Change of Control Right, to the holders of record of the Depositary Shares at their addresses as they appear on the Company’s share transfer records. No failure to give such notice or any defect thereto or in the delivery thereof shall affect the validity of the proceedings for the conversion of any Depositary Shares except as to the holder to whom notice was defective or not given. Each notice shall state: (i) the events constituting the Change of Control; (ii) the date of the Change of Control; (iii) the last date on which the holders of Series A Preferred Stock may exercise a Change of Control Conversion Right (as defined in the Certificate of Designation) and on which the holders of Depository Shares may exercise their Change of Control Conversion Right; (iv) the method and period for calculating the Common Stock Price; (v) the Change of Control Conversion Date; (vi) that if, on or prior to the Change of Control Conversion Date, the Company has provided or provides notice of its election to redeem all or any portion of the Series A Preferred Stock, the holder will not be able to convert shares of Series A Preferred Stock designated for redemption pursuant to the Certificate of Designation or Depositary Shares designated for redemption pursuant to this Deposit Agreement and such shares of Series A Preferred Stock and Depository Shares will be redeemed on the related redemption date, even if they have already been tendered for conversion; (vii) if applicable, the type and amount of Alternative Conversion Consideration entitled to be received per share of Series A Preferred Stock; (viii) the name and address of the paying agent and the conversion agent; and (ix) the procedures that the holders of Depositary Shares must follow to exercise the Change of Control Conversion Right.
(d)In order to exercise the Change of Control Conversion Right under this Deposit Agreement, a holder of Depositary Shares shall be required to deliver, on or before the close of business on the Change of Control Conversion Date, the Receipt(s) evidencing the Depositary Shares to be converted, duly endorsed for transfer, together with a written conversion notice completed, to the Company’s transfer agent. Such notice shall state: (i) the relevant Change of Control Conversion Date; (ii) the number of Depositary Shares to be converted; and (iii) that the shares of Series A Preferred Stock are to be converted pursuant to the applicable provisions of the Certificate of Designation.
(e)Holders of Depositary Shares may withdraw any notice of exercise of a Change of Control Conversion Right (in whole or in part) by a written notice of withdrawal delivered to the Transfer Agent prior to the close of business on the Business Day prior to the Change of Control Conversion Date. The notice of withdrawal shall state: (i) the number of withdrawn Depositary Shares; (ii) if Receipts have been delivered by such holder pursuant to this Deposit Agreement, the numbers of the withdrawn Receipts; and (iii) the number of Depositary Shares, if any, which remain subject to the conversion notice.
9
(f)Depositary Shares as to which the Change of Control Conversion Right has been properly exercised, and for which the conversion notice has not been properly withdrawn, shall be converted into the applicable Conversion Consideration in accordance with the Change of Control Conversion Right on the Change of Control Conversion Date unless, on or prior to the Change of Control Conversion Date, the Company has provided or provides notice of its election to redeem such shares of Series A Preferred Stock, whether pursuant to its Optional Redemption Right or Special Optional Redemption Right. If the Company elects to redeem shares of Series A Preferred Stock that would otherwise be converted into the applicable Conversion Consideration on a Change of Control Conversion Date, such shares of Series A Preferred Stock shall not be so converted and the holders of such shares shall be entitled to receive the redemption price on the applicable redemption date in accordance with the Certificate of Designation.
(g)The Company shall deliver or cause to be delivered the applicable Conversion Consideration to the Depository no later than the third Business Day following the Change of Control Conversion Date.
(h)In the event that holders of Common Stock have the opportunity to elect the form of consideration to be received by them upon the conversion of shares of Common Stock in the Change of Control, the holders of Depositary Shares shall receive Conversion Consideration of the same kind and amount actually received by the holders of a majority of the shares of Common Stock that participated in such election (if electing between two types of consideration) or the holders of a plurality of the shares of Common Stock that participated in such election (if electing between more than two types of consideration), as the case may be, and shall be subject to any limitations to which all holders of Common Stock are subject, including, without limitation, pro rata reductions applicable to any portion of the consideration payable upon the conversion of shares of Common Stock in the Change of Control.
Section 2.11 No Pre-Release.
The Depositary shall not deliver any deposited Series A Preferred Stock evidenced by Receipts prior to the receipt and cancellation of such Receipts or other similar method used with respect to Receipts held by DTC. The Depositary shall not issue any Receipts prior to the receipt by the Depositary of the corresponding Series A Preferred Stock represented by the Depositary Shares evidenced by such Receipts. At no time will any Receipts be outstanding if such Receipts do not evidence the Depositary Shares representing Series A Preferred Stock deposited with the Depositary.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.01 Filing Proofs, Certificates and Other Information.
Any person presenting Series A Preferred Stock for deposit or any holder of a Receipt may be required from time to time to file with the Depositary such proof of residence, guarantee of signature or other information and to execute such certificates as the Depositary may reasonably deem necessary or proper or the Company may reasonably require by written request to the Depositary. The Depositary or the Company may withhold or delay the delivery of any Receipt, the transfer, redemption or exchange of any Receipt, the withdrawal of the fractional ownership interest in a share of Series A Preferred Stock represented by a Depositary Share evidenced by any Receipt, the distribution of any dividend or other distribution or the sale of any rights or of the proceeds thereof, until such proof or other information is filed, or such certificates are executed.
Section 3.02 Payment of Fees and Expenses.
Holders of Receipts shall be obligated to make payments to the Depositary of certain fees and expenses, as provided in Section 5.07, or provide evidence reasonably satisfactory to the Depositary that such fees and expenses have been paid. Until such payment is made, transfer of any Receipt or any withdrawal of any or all of the fractional interest in a share of Series A Preferred Stock or money or other property, if any, received by the Depository in respect of such share, represented by a Depositary Share evidenced by such Receipt may be refused, any dividend or other distribution may be withheld, and any part or all of the fractional interest in a share of Series A Preferred Stock or other property, if any, received by the Depository in respect of such share, represented by a Depositary Share evidenced by such Receipt may be sold for the account of the holder thereof (after attempting by reasonable means to notify such holder a reasonable number of days prior to such sale). Any dividend or other distribution so withheld
10
and the proceeds of any such sale may be applied to any payment of such fees or expenses, the holder of such Receipt remaining liable for any deficiency.
Section 3.03 Representations and Warranties as to Series A Preferred Stock.
In the case of the initial deposit of the Series A Preferred Stock hereunder, the Company represents and warrants that such Series A Preferred Stock is validly issued, fully paid and non-assessable and each certificate therefor has been validly executed and delivered. Such representations and warranties shall survive the deposit of the Series A Preferred Stock and the issuance of Receipts.
Section 3.04 Representation and Warranty as to Receipts and Depositary Shares.
The Company hereby represents and warrants that each Depositary Share will represent a legal and valid 1/1000th fractional interest in a share of deposited Series A Preferred Stock and each Receipt, when issued, will evidence a legal a valid ownership interest in a Depositary Share. Such representation and warranty shall survive the deposit of the Series A Preferred Stock and the issuance of Receipts evidencing the Depositary Shares.
ARTICLE IV
SERIES A PREFERRED STOCK; NOTICES
SERIES A PREFERRED STOCK; NOTICES
Section 4.01 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other cash distribution on the deposited Series A Preferred Stock, including any cash received upon redemption or conversion of any shares of Series A Preferred Stock pursuant to the Certificate of Designation, the Depositary shall, subject to Section 3.02, distribute to record holders of Receipts on the record date fixed pursuant to Section 4.04 such amounts of such sum as are, as nearly as practicable, in proportion to the respective numbers of Depositary Shares evidenced by the Receipts held by such holders; provided, however, that in case the Company or the Depositary shall be required by applicable law to and shall withhold from any cash dividend or other cash distribution in respect of the Series A Preferred Stock or the Depository Shares represented by the Receipts, as applicable, held by any holder an amount on account of taxes or as otherwise required by applicable law, regulation or court process, the amount made available for distribution or distributed in respect of Depositary Shares represented by such Receipts subject to such withholding shall be reduced accordingly. The Depositary, however, shall distribute or make available for distribution, as the case may be, only such amount as can be distributed without attributing to any holder of Receipts a fraction of one cent. Any such fractional amounts shall be rounded down to the nearest whole cent and so distributed to registered holders entitled thereto and any balance not so distributable shall be held by the Depositary (without liability for interest thereon) and shall be added to and be treated as part of the next succeeding distribution to record holders of such Receipts. Each holder of a Receipt shall provide the Depositary with a properly completed Form W-8 (i.e., Form W-8BEN, Form W-8EXP, Form W-8IMY, Form W8ECI or another applicable Form W-8) or Form W-9 (which form shall set forth such holder’s certified taxpayer identification number if requested on such form), as may be applicable. Each holder of a Receipt acknowledges that, in the event of non-compliance with the preceding sentence the Internal Revenue Code of 1986, as amended, may require withholding by the Depositary of a portion of any of the distribution to be made hereunder.
Section 4.02 Distributions Other Than Cash.
Whenever the Depositary shall receive any distribution other than cash on the deposited Series A Preferred Stock, the Depositary shall, subject to Section 3.02, distribute to record holders of Receipts on the record date fixed pursuant to Section 4.04 such amounts of the securities or property received by it as are, as nearly as practicable, in proportion to the respective numbers of Depositary Shares evidenced by the Receipts held by such holders, in any manner that the Depositary and the Company may deem equitable and practicable for accomplishing such distribution. If in the opinion of the Depositary after consultation with the Company, such distribution cannot be made proportionately among such record holders, or if for any other reason (including any requirement that the Company or the Depositary withhold an amount on account of taxes), the Depositary deems, after consultation with the Company, such distribution not to be feasible, the Depositary may, with the approval of the Company, adopt such method as it deems equitable and practicable for the purpose of effecting such distribution, including the sale (at public or private sale) of the securities or property thus received, or any part thereof at such place or places and
11
upon such terms as it may deem proper. The net proceeds of any such sale shall, subject to Section 3.02, be distributed or made available for distribution, as the case may be, by the Depositary to record holders of Receipts as provided by Section 4.01 in the case of a distribution received in cash. The Depository shall not make any distribution of such securities or property to the holders of the Receipts unless the Company shall have provided to the Depositary an opinion of counsel stating that such securities have been registered under the Securities Act or do not need to be registered in order to be freely transferable.
Section 4.03 Rights, Preferences or Privileges.
(a)If the Company shall at any time offer or cause to be offered to the persons in whose names deposited Series A Preferred Stock is registered on the books of the Company, any rights, preferences or privileges of any nature, such rights, preferences or privileges shall, in each such instance, be made available by the Depositary to the record holders of Receipts in such manner as the Company shall instruct (including by the issue to such record holders of warrants representing such rights, preferences or privileges); provided, however, that (i) if, at the time of issue or offer of any such rights, preferences or privileges, the Company determines, upon advice of its legal counsel, that it is not lawful or feasible to make such rights, preferences or privileges available to the holders of Receipts (by the issue of warrants or otherwise) or (ii) if and to the extent instructed by holders of Receipts who do not desire to exercise such rights, preferences or privileges, the Depositary shall then, if so directed by the Company, and if applicable laws or the terms of such rights, preferences or privileges so permit, sell such rights, preferences or privileges of such holders at public or private sale, at such place or places and upon such terms as it may deem proper. The net proceeds of any such sale shall, subject to Section 3.01 and Section 3.02, be distributed by the Depositary to the record holders of Receipts entitled thereto as provided by Section 4.01 in the case of a distribution received in cash. The Depositary shall not make any distribution of such rights, preferences or privileges, unless the Company shall have provided to the Depositary an opinion of counsel stating that such rights, preferences or privileges have been registered under the Securities Act or do not need to be registered in order to be freely transferable.
(b)If registration under the Securities Act of the securities to which any rights, preferences or privileges relate is required in order for holders of Receipts to be offered or sold the securities to which such rights, preferences or privileges relate, the Company agrees that it will promptly notify the Depositary of such requirement, will promptly file a registration statement pursuant to the Securities Act with respect to such rights, preferences or privileges and securities and use its commercially reasonable efforts and take all steps available to it to cause such registration statement to become effective sufficiently in advance of the expiration of such rights, preferences or privileges to enable such holders to exercise such rights, preferences or privileges. In no event shall the Depositary make available to the holders of Receipts any right, preference or privilege to subscribe for or to purchase any securities unless and until such a registration statement shall have become effective or unless the offering and sale of such securities to such holders are exempt from registration under the provisions of the Securities Act and the Company shall have provided to the Depositary an opinion of counsel to such effect.
(c)If any other action under the law of any jurisdiction or any governmental or administrative authorization, consent or permit is required in order for such rights, preferences or privileges to be made available to holders of Receipts, the Company agrees to use its commercially reasonable efforts to take such action or obtain such authorization, consent or permit sufficiently in advance of the expiration of such rights, preferences or privileges to enable such holders to exercise such rights, preferences or privileges.
Section 4.04 Notice of Dividends; Fixing of Record Date for Holders of Receipts.
Whenever any cash dividend or other cash distribution shall become payable, any distribution other than cash shall be made, or any rights, preferences or privileges shall at any time be offered, in each case, with respect to the deposited Series A Preferred Stock, or whenever the Depositary shall receive notice of (i) any meeting at which holders of such Series A Preferred Stock are entitled to vote or of which holders of such Series A Preferred Stock are entitled to notice or (ii) any election on the part of the Company to redeem any shares of such Series A Preferred Stock, the Depositary shall, in each such instance, fix a record date (which shall be the same date as the record date fixed by the Company with respect to the Series A Preferred Stock) for the determination of the holders of Receipts
12
who shall be entitled to receive such dividend, distribution, rights, preferences or privileges or the net proceeds of the sale thereof, to give instructions for the exercise of voting rights at any such meeting or to receive notice of such meeting or whose Depositary Shares are to be so redeemed.
Section 4.05 Voting Rights.
Upon receipt of notice of any meeting at which the holders of deposited Series A Preferred Stock are entitled to vote, the Depositary shall, as soon as practicable thereafter, deliver to the record holders of Receipts a notice, by electronic mail or first-class postage prepaid mail, a copy of which shall be provided by the Company and which shall contain (i) such information as is contained in the Company’s notice of such meeting, (ii) a statement that the holders of Receipts at the close of business on a specified record date fixed pursuant to Section 4.04 will be entitled, subject to any applicable provision of law, to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Series A Preferred Stock represented by their respective Depositary Shares and (iii) a brief statement as to the manner in which such instructions may be given. Upon the request of a holder of a Receipt on such record date, the Depositary shall insofar as practicable vote or cause to be voted the amount of Series A Preferred Stock represented by the Depositary Shares evidenced by such Receipt in accordance with the instructions set forth in such request. To the extent any such instructions request the voting of a fractional interest of a share of deposited Series A Preferred Stock, the Depositary shall aggregate such fractional interest with all other fractional interests resulting from requests with the same voting instructions and shall vote the number of whole votes resulting from such aggregation in accordance with the instructions received in such requests. On such matters as the Series A Preferred Stock is entitled to vote, each share of Series A Preferred Stock is entitled to one vote and, accordingly, each Depositary Share is entitled to 1/1000th of a vote pursuant to this Deposit Agreement. The Company hereby agrees to take all reasonable action that may be deemed necessary by the Depositary in order to enable the Depositary to vote such Series A Preferred Stock or cause such Series A Preferred Stock to be voted. In the absence of specific instructions from the holder of a Receipt, the Depositary will not vote the amount of Series A Preferred Stock represented by such Depositary Shares. The Depositary shall not exercise any discretion in voting any Series A Preferred Stock represented by the Depositary Shares evidenced by such Receipt.
Section 4.06 Changes Affecting Series A Preferred Stock and Reorganization Events.
Upon any change in par value, split-up, combination or any other reclassification of the Series A Preferred Stock, or upon any recapitalization, reorganization, merger, amalgamation or consolidation affecting the Company or to which it is a party or sale of all or substantially all of the Company’s assets, the Depositary shall, upon the written instructions of the Company setting forth any of the following adjustments, (i) reflect such adjustments in the Depositary’s books and records in (a) the fractional interest represented by one Depositary Share in one share of Series A Preferred Stock and (b) the ratio of the redemption price per Depositary Share to the redemption price of a share of the Series A Preferred Stock, in each case, as may be required by or as is consistent with the provisions of the Certificate of Designation to fully reflect the effects of such change in liquidation preference, split-up, combination or other reclassification, or of such recapitalization, reorganization, merger, amalgamation, consolidation or sale and (ii) treat any shares of stock or other securities or property (including cash) that shall be received by the Depositary in exchange for or upon conversion of or in respect of the Series A Preferred Stock as new deposited property under this Deposit Agreement, and Receipts then outstanding shall thenceforth represent the proportionate interests of holders thereof in the new deposited property so received in exchange for or in respect of such Series A Preferred Stock. In any such case, the Depositary may, in its discretion, with the approval of the Company, execute and deliver additional Receipts, or may call for the surrender of all outstanding Receipts to be exchanged for new Receipts specifically describing such new deposited property. Anything to the contrary herein notwithstanding, but subject to Section 2.04, holders of Receipts shall have the right from and after the effective date of any such change in par value, split-up, combination or other reclassification of the Series A Preferred Stock or any such recapitalization, reorganization, merger, amalgamation or consolidation or sale of substantially all the assets of the Company to surrender such Receipts to the Depositary with instructions to convert, exchange or surrender the Series A Preferred Stock represented thereby only into or for, as the case may be, the kind and amount of shares of stock and other securities and property and cash into which the deposited Series A Preferred Stock evidenced by such Receipts might have been converted or for which such Series A Preferred Stock might have been exchanged or surrendered immediately prior to the effective date of such transaction, subject to any subsequent change in par value, split-up, combination or other reclassification or any subsequent recapitalization, reorganization, merger, amalgamation or consolidation or sale of substantially all the assets. The Company shall cause any such surviving corporation (if other than the Company) expressly to assume the obligations of the Company under this Deposit Agreement.
Section 4.07 Inspection of Reports.
13
The Depositary shall make available for inspection by holders of Receipts at the Depositary Office and at such other places as it may from time to time deem advisable, during normal business hours, any reports and communications received from the Company that are both received by the Depositary as the holder of deposited Series A Preferred Stock and made generally available to the holders of the Series A Preferred Stock. In addition, the Depositary shall transmit, upon written request by the Company, certain notices and reports to the holders of Receipts as provided in Section 5.05.
Section 4.08 Lists of Receipt Holders.
Promptly upon request from time to time by the Company, the Registrar shall furnish to the Company a list, as of a recent date specified by the Company, of the names, addresses and holdings of Depositary Shares of all persons in whose names Receipts are registered on the books of the Registrar.
Section 4.09 Withholding.
Notwithstanding any other provision of this Deposit Agreement to the contrary, in the event that the Depositary determines that any distribution in property is subject to any tax or other governmental charge which the Depositary is obligated by applicable law to withhold, the Depositary may dispose of, by public or private sale, all or a portion of such property in such amounts and in such manner as the Depositary deems necessary and practicable to pay such taxes, and the Depositary shall distribute the net proceeds of any such sale or the balance of any such property after deduction of such taxes to the holders of Receipts entitled thereto in proportion to the number of Depositary Shares held by them, respectively; provided, however, that in the event the Depositary determines that such distribution of property is subject to withholding tax only with respect to some but not all holders of Receipts, the Depositary will use its best efforts (i) to sell only that portion of such property distributable to such holders that is required to generate sufficient proceeds to pay such withholding tax and (ii) to effect any such sale in such a manner so as to avoid affecting the rights of any other holders of Receipts to receive such distribution in property.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
THE DEPOSITARY AND THE COMPANY
Section 5.01 Maintenance of Offices, Agencies and Transfer Books by the Depositary and the Registrar.
(a)The Depositary shall maintain at the Depositary Office, facilities for the execution and delivery, transfer, surrender and exchange, split-up, combination and redemption of Receipts and deposit and withdrawal of Series A Preferred Stock and, at the offices of the Depositary’s Agents, if any, facilities for the delivery, transfer, surrender and exchange, split-up, combination and redemption of Receipts and deposit and withdrawal of Series A Preferred Stock, all in accordance with the provisions of this Deposit Agreement.
(b)The Registrar shall keep books at the Depositary Office for the registration and transfer of Receipts, which books at all reasonable times shall be open for inspection by the record holders of Receipts as provided by applicable law. The Company may cause the Registrar to close such books, at any time or from time to time, when deemed expedient by it in connection with the performance of its duties under this Deposit Agreement.
(c)If the Receipts or the Depositary Shares evidenced thereby shall be listed on the NYSE or any other stock exchange, the Depositary and the Company hereby appoint the Registrar to serve as the registrar for registration of such Receipts or Depositary Shares in accordance with the requirements of such exchange. The Registrar may be removed from serving as the registrar for registration of the Receipts or Depositary Shares in accordance with the requirements of the listing stock exchange by the Depositary or the Company, in which case the Company shall appoint a substitute registrar. If the Receipts or such Depositary Shares are listed on one or more other stock exchanges, the Registrar will, at the request and expense of the Company, arrange such facilities for the delivery, transfer, surrender, redemption and exchange of such Receipts or such Depositary Shares as may be required by applicable law or applicable stock exchange regulations.
14
Section 5.02 Prevention or Delay in Performance by the Depositary, the Depositary’s Agents, the Registrar or the Company.
None of the Depositary, any Depositary’s Agent, any Registrar, any Transfer Agent, or the Company shall incur any liability to any holder of any Receipt, if by reason of any provision of any present or future law or regulation thereunder of the United States of America or of any other governmental authority or, in the case of the Depositary, the Depositary’s Agent or the Registrar or Transfer Agent, by reason of any provision, present or future, of the Certificate of Designation or, in the case of the Company, the Depositary, the Depositary’s Agent, the Transfer Agent or the Registrar, by reason of any act of God or war or other circumstance beyond the control of the relevant party, the Depositary, any Depositary’s Agent, the Transfer Agent, the Registrar or the Company shall be prevented or forbidden from doing or performing any act or thing that the terms of this Deposit Agreement provide shall be done or performed; nor shall the Depositary, any Depositary’s Agent, the Transfer Agent, any Registrar or the Company incur any liability to any holder of a Receipt by reason of any nonperformance or delay, caused as aforesaid, in the performance of any act or thing that the terms of this Deposit Agreement provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in this Deposit Agreement.
Section 5.02 Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Company.
(a)Except as otherwise provided by this Deposit Agreement (including without limitation Section 5.06 hereof), the Company does not assume any obligation, nor shall the Company be subject to any liability under this Deposit Agreement or any Receipt to holders of Receipts other than from acts or omissions arising out of conduct constituting bad faith, gross negligence or willful misconduct in the performance of such duties as are specifically set forth in this Deposit Agreement. Each of the Depositary, any Depositary’s Agent, Transfer Agent and Registrar shall at all times act in good faith and shall use its best efforts within reasonable time limits to insure the accuracy of all services performed pursuant to this Deposit Agreement. Except as otherwise provided by this Deposit Agreement (including without limitation Section 5.06), neither the Depositary, nor any Depositary’s Agent, nor any Transfer Agent or Registrar assumes any obligation, nor shall the Depositary, any Depositary’s Agent or any Transfer Agent or Registrar be subject to any liability under this Deposit Agreement to holders of Receipts, the Company or any other person or entity other than for its bad faith, gross negligence or willful misconduct in the performance of such duties as are specifically set forth in this Deposit Agreement. Notwithstanding anything to the contrary contained herein, neither the Company, the Depositary, any Depositary’s Agent, Transfer Agent or Registrar shall be liable for any special, indirect, incidental, consequential, punitive or exemplary damages, including but not limited to, lost profits, even if such person or entity alleged to be liable has knowledge of the possibility of such damages.
(b)None of the Depositary, any Depositary’s Agent, any Registrar or Transfer Agent or the Company shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding with respect to the deposited Series A Preferred Stock, Depositary Shares or Receipts that in its reasonable opinion may involve it in expense or liability, unless indemnity reasonably satisfactory to it against all expense and liability be furnished as often as may be required.
(c)None of the Depositary, any Depositary’s Agent, any Registrar or Transfer Agent or the Company shall be liable for any action or any failure to act by it in reliance upon the advice of legal counsel or accountants, or information provided by any person presenting Series A Preferred Stock for deposit or any holder of a Receipt. The Depositary, any Depositary’s Agent, any Registrar or Transfer Agent and the Company may each rely and shall each be protected in acting upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties.
(d)In the event the Depositary shall receive conflicting claims, requests or instructions from any holders of Receipts, on the one hand, and the Company, on the other hand, the Depositary shall be entitled to act on such claims, requests or instructions received from the Company, and shall incur no liability and shall be entitled to the full indemnification set forth in Section 5.06 in connection with any action so taken.
(e)The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the deposited Series A Preferred Stock or for the manner or effect of any such vote made, as long as any such action
15
or non-action does not result from bad faith, gross negligence or willful misconduct of the Depositary. The Depositary undertakes, and any Registrar or Transfer Agent shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar or Transfer Agent.
(f)The Depositary, its parent, affiliate, or subsidiaries, any Depositary’s Agent, and any Registrar or Transfer Agent may own, buy, sell or deal in any class of securities of the Company and its affiliates and in Receipts or Depositary Shares or become pecuniarily interested in any transaction in which the Company or its affiliates may be interested or contract with or lend money to or otherwise act as fully or as freely as if it were not the Depositary or the Depositary’s Agent hereunder. The Depositary may also act as transfer agent or registrar of any of the securities of the Company and its affiliates or act in any other capacity for the Company or its affiliates.
(g)It is intended that neither the Depositary nor any Depositary’s Agent shall be deemed to be an “issuer” of the securities under the federal securities laws or applicable state securities laws, it being expressly understood and agreed that the Depositary and any Depositary’s Agent are acting only in a ministerial capacity as Depositary for the deposited Series A Preferred Stock; provided, however, that the Depositary agrees to comply with all information reporting and withholding requirements applicable to it under law or this Deposit Agreement in its capacity as Depositary.
(h)Neither the Depositary (or its officers, directors, employees, agents or affiliates) nor any Depositary’s Agent makes any representation or has any responsibility as to the validity of the registration statement pursuant to which the Depositary Shares are registered under the Securities Act, the deposited Series A Preferred Stock, the Depositary Shares, the Receipts (except its countersignature thereon) or any instruments referred to therein or herein, or as to the correctness of any statement made therein or herein; provided, however, that the Depositary is responsible for its representations in this Deposit Agreement and for the validity of any action taken or required to be taken by the Depositary in connection with this Deposit Agreement.
(i)The Company agrees that it will register either the Receipts, the Depository Shares or the deposited Series A Preferred Stock in accordance with the applicable securities laws.
(j)In the event the Depositary, the Depositary’s Agent or any Registrar or Transfer Agent believes any ambiguity or uncertainty exists in any notice, instruction, direction, request or other communication, paper or document received by it pursuant to this Deposit Agreement, the Depositary, the Depositary’s Agent, Transfer Agent or Registrar shall promptly notify the Company of the details of such alleged ambiguity or uncertainty, and may, in its reasonable discretion, refrain from taking any action, and the Depositary, the Depositary’s Agent, Transfer Agent or Registrar shall be fully protected and shall incur no liability to any person from refraining from taking such action, absent bad faith, gross negligence or willful misconduct, unless and until (i) the rights of all parties have been fully and finally adjudicated by a court of appropriate jurisdiction or (ii) the Depositary, the Depositary’s Agent, Transfer Agent or Registrar receives written instructions with respect to such matter signed by the Company that eliminates such ambiguity or uncertainty to the satisfaction of the Depositary, the Depositary’s Agent, Transfer Agent or Registrar.
(k)Whenever in the performance of its duties under this Deposit Agreement, the Depositary, the Depositary’s Agent, Transfer Agent or Registrar shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively provided and established by a certificate signed by any one of the Chief Executive Officer, the President, the Chief Financial Officer, or the Chief Accounting Officer of the Company and delivered to the Depositary, the Depositary’s Agent, Transfer Agent or Registrar; and such certificate shall be full and complete authorization and protection to the Depositary, the Depositary’s Agent, Transfer Agent or Registrar, and the Depositary, the Depositary’s Agent, Transfer Agent or Registrar shall incur no liability for or in respect of any action taken, suffered or omitted by it under the provisions of this Deposit Agreement in reliance upon such certificate.
16
(l)The Depositary, the Depositary’s Agent, Transfer Agent or Registrar will not be under any duty or responsibility to ensure compliance with any applicable federal or state securities laws in connection with the issuance, transfer or exchange of the Receipts, Series A Preferred Stock or Depositary Shares.
(m)Notwithstanding anything herein to the contrary, no amendment to the Certificate of Designation shall affect the rights, duties, obligations or immunities of the Depositary, Transfer Agent, the Depositary’s Agent or Registrar under this Deposit Agreement.
(n)The Depositary, Transfer Agent and Registrar under this Deposit Agreement:
(i)shall have no duties or obligations other than those specifically set forth in this Deposit Agreement (and no implied duties or obligations), or as may subsequently be agreed to in writing by the parties;
(ii)shall have no obligation to make payment under this Deposit Agreement unless the Company shall have provided immediately available funds or securities or property, as the case may be, to pay in full amounts due and payable with respect thereto;
(iii)shall not be obligated to take any legal or other action under this Deposit Agreement; if, however, such person determines to take any legal or other action under this Deposit Agreement, and, where the taking of such action might in such person’s judgment subject or expose it to any expense or liability, such person shall not be required to act unless it shall have been furnished with an indemnity satisfactory to it;
(iv)may rely on and shall be authorized and protected in acting or failing to act upon any certificate, instrument, opinion, notice, letter, facsimile transmission or other document or security delivered to such person and believed by such person to be genuine and to have been signed by the proper party or parties, and shall have no responsibility for determining the accuracy thereof;
(v)may rely on and shall be authorized and protected in acting or failing to act upon the written instructions with respect to any matter relating to such person’s actions as depositary covered by this Deposit Agreement (or supplementing or qualifying any such actions) of officers of the Company;
(vi)may consult counsel reasonably satisfactory to it, and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by the Depositary under this Deposit Agreement in accordance with the advice of such counsel;
(vii)shall not be called upon at any time to advise any person with respect to the Depositary Shares or Receipts;
(viii)shall not be liable or responsible for any recital or statement contained in any documents relating to this Deposit Agreement or the Depositary Shares or Receipts; and
(ix)shall not be liable in any respect on account of the identity, authority or rights of the parties (other than with respect to the Depositary) executing or delivering or purporting to execute or deliver this Deposit Agreement or any documents or papers deposited or called for under this Deposit Agreement.
Section 5.04 Resignation and Removal of the Depositary; Appointment of Successor Depositary.
(a)The Depositary may at any time resign as Depositary under this Deposit Agreement by notice of
17
its election to do so delivered to the Company, such resignation to take effect upon the appointment of a successor depositary and its acceptance of such appointment as hereinafter provided.
(b)The Depositary may at any time be removed by the Company by notice of such removal delivered to the Depositary, such removal to take effect upon the appointment of a successor depositary and its acceptance of such appointment as hereinafter provided. Upon any such removal or appointment, the Company shall deliver notice thereof by electronic mail or first-class mail, postage prepaid, to the holders of Receipts.
(c)In case at any time the Depositary acting under this Deposit Agreement shall resign or be removed, the Company shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor depositary, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If a successor depositary shall not have been appointed and have accepted appointment in 60 days, the resigning Depositary may petition a court of competent jurisdiction to appoint a successor depositary. Every successor depositary shall execute and deliver to its predecessor and to the Company an instrument in writing accepting its appointment under this Deposit Agreement, and thereupon such successor depositary, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depositary under this Deposit Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Company, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor under this Deposit Agreement, shall duly assign, transfer and deliver all rights, title and interest in the deposited Series A Preferred Stock and any moneys or property held under this Deposit Agreement, to such successor and shall deliver to such successor a list of the record holders of all outstanding Receipts. Any successor depositary shall promptly deliver notice of its appointment under this Deposit Agreement to the record holders of Receipts.
(d)Any corporation or other entity into or with which the Depositary may be merged, consolidated or converted, or any corporation or other entity to which all or a substantial part of the assets of the Depositary may be transferred, shall be the successor of such Depositary without the execution or filing of any document or any further act. Such successor depositary may execute the Receipts either in the name of the predecessor depositary or in the name of the successor depositary.
(e)The provisions of this Section 5.04 as they apply to the Depositary apply to the Registrar and Transfer Agent, as if specifically enumerated herein.
Section 5.05 Notices, Reports and Documents.
The Company agrees that it will deliver to the Depositary, and the Depositary will promptly after receipt of such notice, transmit to the record holders of Receipts, in each case, at the address recorded in the Depositary’s books, copies of all notices and reports (including financial statements) required by applicable law, by the rules of any national securities exchange or interdealer quotation system upon which any of the Receipts, the Depository Shares or the Series A Preferred Stock are listed or quoted or by the Certificate of Designation to be furnished by the Company to holders of the deposited Series A Preferred Stock and, if requested by the holder of any Receipt, a copy of this Deposit Agreement, the form of Receipt and the Certificate of Designation. Such transmission will be at the Company’s expense and the Company will provide the Depositary with such number of copies of such documents as the Depositary may reasonably request. In addition, the Depositary will transmit to the record holders of Receipts at the Company’s expense such other documents as may be requested by the Company.
Section 5.06 Indemnification.
(a)Indemnification by the Company. The Company shall indemnify the Depositary, any Depositary’s Agent and any Transfer Agent or Registrar against, and hold each of them harmless from, any loss, liability, damage, cost or expense (including the costs and expenses of defending itself) which may arise out of (i) acts performed or omitted in connection with this Deposit Agreement and the Receipts by the Company or any of its agents, or (ii) the offer, sale or registration of the Receipts or shares of Series A Preferred Stock pursuant to the provisions of this Deposit Agreement. The obligations of the Company set forth in this Section 5.06 shall survive the replacement, removal or resignation of any Depositary, Registrar, Transfer Agent or Depositary’s Agent or
18
termination of this Deposit Agreement. In no event shall the Depositary have any right of set off or counterclaim against the Depositary Shares or the Series A Preferred Stock.
(b)Indemnification by the Depositary. The Depositary agrees to indemnify the Company against, and hold the Company harmless from, any liability, costs and expenses (including reasonable attorneys’ fees) that may arise out of, or in connection with, the refusal or failure of any of the Depositary, any Depositary’s Agent or the Registrar to comply with the terms of this Deposit Agreement, or which arise out of the willful misconduct, gross negligence, or bad faith on the part of any such person or persons; provided, however, that the Depositary’s aggregate liability with respect to, arising from, or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid by the Company to the Depositary as fees and charges under this Deposit Agreement or otherwise, but not including reimbursable expenses, during the six (6) calendar months immediately preceding the event for which recovery from the Depositary is being sought. The obligations of the Depositary set forth in this Section 5.06 shall survive any succession of the Company or termination of this Deposit Agreement.
Section 5.07 Fees, Charges and Expenses.
No charges and expenses of the Depositary or any Depositary’s Agent hereunder shall be payable by any person, except as provided in this Section 5.07. The Company shall pay all transfer and other taxes and governmental charges arising solely from the existence of this Deposit Agreement. The Company shall also pay all fees and expenses of the Depositary in connection with the initial deposit of the Series A Preferred Stock and the initial issuance of the Receipts, any redemption of the Series A Preferred Stock at the option of the Company and all withdrawals of the Series A Preferred Stock by holders of Receipts as previously agreed between the Depositary and the Company. The Company will not, however, be required to pay any such tax that may be payable in respect of any transfer involved in the issuance or delivery of shares of Series A Preferred Stock, Depositary Shares, shares of Common Stock or other securities in a name other than that in which the Receipts with respect to which such shares or other securities are issued or delivered were registered, or in respect of any payment to any person other than a payment to the registered holder thereof, and will not be required to make any such issuance, delivery or payment unless and until the person otherwise entitled to such issuance, delivery or payment has paid to the Company the amount of any such tax or has established, to the satisfaction of the Company, that such tax has been paid or is not payable. All other fees and expenses of the Depositary and any Depositary’s Agent under this Deposit Agreement and of any Registrar or Transfer Agent (including, in each case, fees and expenses of counsel) incurred incident to the performance of their respective obligations under this Deposit Agreement will be paid by the Company as previously agreed between the Depositary and the Company or any Registrar or Transfer Agent; provided that holders of Receipts shall pay any transfer fees, taxes or governmental charges and other such charges as expressly provided in this Deposit Agreement. The Depositary (and if applicable, the Transfer Agent and Registrar) shall present its statement for fees and expenses to the Company annually or at such other intervals as the Company and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
AMENDMENT AND TERMINATION
Section 6.01 Amendment.
The form of the Receipts and any provision of this Deposit Agreement may at any time and from time to time be amended by agreement between the Company and the Depositary without the consent of holders of Receipts in any respect that the Company and the Depositary may deem necessary or desirable; provided, however, that no such amendment (other than any change in the fees of any Depositary, Registrar or Transfer Agent that are payable by the Company) which (i) shall materially and adversely alter the rights of the holders of Receipts or (ii) would be materially and adversely inconsistent with the rights granted to the holders of the Series A Preferred Stock pursuant to the Certificate of Designation shall be effective unless such amendment shall have been approved by the holders of Receipts evidencing at least a majority of the affected Depositary Shares then outstanding. In no event shall any
19
amendment of this Deposit Agreement impair the right, subject to the provisions of Section 2.05 and Article III, of any holder of any Receipts to surrender any Receipt with instructions to the Depositary to deliver to the holder the deposited Series A Preferred Stock and all money and other property, if any, represented thereby, except in order to comply with mandatory provisions of applicable law. Every holder who retains or acquires Receipts after an amendment becomes effective shall be deemed, by continuing to hold such Receipt, to consent and agree to such amendment and to be bound by this Deposit Agreement as amended thereby.
Section 6.02 Termination.
(a)This Deposit Agreement may be terminated by the Company upon not less than 35 days’ prior written notice to the Depositary, and the Depositary shall give notice of the termination to record holders of all Receipts not less than 30 days before the termination date. In the event of such termination, the Depositary shall deliver or make available to each holder of a Receipt, upon surrender of the Receipt held by such holder, such number of whole or fractional ownership interest in shares of deposited Series A Preferred Stock represented by the Depositary Shares evidenced by such Receipt, together with any other property held by the Depositary in respect of such shares. In the event that this Deposit Agreement is terminated pursuant to clause (i) of the immediately preceding sentence, the Company hereby agrees to use its reasonable best efforts to list or quote the Series A Preferred Stock issued upon surrender of the Receipt evidencing the Depositary Shares represented thereby on a national securities exchange or interdealer quotation system. This Deposit Agreement will automatically terminate if (i) all outstanding Depositary Shares shall have been redeemed in accordance with the provisions of this Deposit Agreement or (ii) there shall have been made a final distribution in respect of the deposited Series A Preferred Stock in connection with any liquidation, dissolution or winding up of the Company and such distribution shall have been distributed to the holders of Receipts entitled thereto.
(b)Upon the termination of this Deposit Agreement, the Company shall be discharged from all obligations under this Deposit Agreement except for its obligations to the Depositary, any Depositary’s Agent and any Transfer Agent or Registrar under Section 5.06 and Section 5.07 and (ii) the Depositary shall be discharged from all obligations under this Deposit Agreement except for its obligations to the Company under Section 5.06.
ARTICLE VII
MISCELLANEOUS
MISCELLANEOUS
Section 7.01 Counterparts.
This Deposit Agreement may be executed in any number of counterparts, and by each of the parties hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed an original, but all such counterparts taken together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Deposit Agreement by facsimile or in electronic format (e.g., “.pdf” or “.tif”) shall be effective as delivery of a manually executed counterpart of this Deposit Agreement.
Section 7.02 Exclusive Benefits of Parties.
This Deposit Agreement is for the exclusive benefit of the parties hereto, and their respective successors hereunder, and shall not be deemed to give any legal or equitable right, remedy or claim to any other person whatsoever.
Section 7.03 Invalidity of Provisions.
In case any one or more of the provisions contained in this Deposit Agreement or in the Receipts should be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby.
Section 7.04 Notices.
20
(a)Any and all notices to be given to the Company under this Deposit Agreement or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by certified or registered mail or nationally recognized overnight carrier, addressed to the Company at:
Green Brick Partners, Inc.
2805 Dallas Parkway
Plano, Texas 75093
Attention: Chief Financial Officer
2805 Dallas Parkway
Plano, Texas 75093
Attention: Chief Financial Officer
or at any other address of which the Company shall have notified the Depositary in writing.
(b)Any notices to be given to the Depositary, Transfer Agent or Registrar under this Deposit Agreement or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by certified or registered mail or nationally recognized overnight carrier, addressed to the Depositary, Transfer Agent or Registrar at:
Continental Stock Transfer & Trust Company
1 State Street 30th Floor
New York, New York 10004
Attention: Compliance Department
1 State Street 30th Floor
New York, New York 10004
Attention: Compliance Department
(c)Any notices given to any record holder of a Receipt under this Deposit Agreement or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by certified or registered mail or nationally recognized overnight carrier or any other method permitted by applicable Delaware law for notices to stockholders of the Company, addressed to such record holder at the address of such record holder as it appears on the books of the Depositary, provided that any record holder may direct the Depositary to deliver notices to such record holder at an alternate address or in a specific manner that is reasonably requested by such record holder in a written request timely filed with the Depositary and that is reasonably acceptable to the Depositary.
(d)Delivery of a notice sent by mail or overnight courier shall be deemed to be effected at the time when a duly addressed letter containing the same is deposited, postage prepaid, in a post office letter box, or in the case of a next-day courier service, when deposited with such courier, courier fees prepaid.
Section 7.05 Depositary’s Agents.
The Depositary may from time to time appoint Depositary’s Agents to act in any respect for the Depositary for the purposes of this Deposit Agreement and may at any time appoint additional Depositary’s Agents and vary or terminate the appointment of such Depositary’s Agents. The Depositary will notify the Company of any such action.
Section 7.06 Holders of Receipts Are Parties.
The holders of Receipts from time to time shall be deemed to be parties to this Deposit Agreement and shall be bound by all of the terms and conditions of this Deposit Agreement and of the Receipts by acceptance of delivery thereof to the same extent as though such person executed and delivered this Deposit Agreement.
Section 7.07 Governing Law.
This Deposit Agreement and the Receipts and all rights hereunder and thereunder and provisions hereof and thereof shall be governed by, and construed in accordance with, the laws of the State of New York applicable to agreements made and to be performed in said State, without regard to conflicts of laws principles thereof, except to the extent that the “internal affairs doctrine” requires the application of the laws of the State of Delaware.
21
Section 7.08 Inspection of Deposit Agreement and Certificate of Designation.
Copies of this Deposit Agreement and the Certificate of Designation shall be filed with the Depositary and the Depositary’s Agents and shall be open to inspection during business hours at the Depositary Office by any holder of any Receipt.
Section 7.09 Headings.
The headings of articles and sections in this Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto have been inserted for convenience only and are not to be regarded as a part of this Deposit Agreement or any Receipt or to have any bearing upon the meaning or interpretation of any provision contained in this Deposit Agreement or in any Receipt.
[Signature Page Follows]
22
IN WITNESS WHEREOF, the parties hereto have duly executed this Deposit Agreement as of the day and year first above set forth and all holders of Receipts shall become parties hereto by and upon acceptance by them of delivery of Receipts issued in accordance with the terms of this Deposit Agreement.
| GREEN BRICK PARTNERS, INC. as Issuer | ||||||||
| By: | /s/ Richard A. Costello | |||||||
| Name: | Richard A. Costello | |||||||
| Title: | Chief Financial Officer | |||||||
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Depositary, Transfer Agent and Registrar | ||||||||
| By: | /s/ Henry Farrell | |||||||
| Name: | Henry Farrell | |||||||
| Title: | Vice President | |||||||
[Signature Page to Deposit Agreement]
EXHIBIT A
FORM OF FACE OF RECEIPT
UNLESS THIS RECEIPT IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE CORPORATION OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY RECEIPT ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL RECEIPT SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL RECEIPT SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE CERTIFICATE OF DESIGNATION REFERRED TO BELOW.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH REGISTRAR AND TRANSFER AGENT MAY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE RESTRICTIONS ON TRANSFER AND OTHER PROVISIONS OF SAID AGREEMENT. ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE WITH SAID AGREEMENT WILL BE VOID.
Certificate Number ___________ Number of Depositary Shares _______________
FORM OF RECEIPT
RECEIPT FOR DEPOSITARY SHARES
EACH REPRESENTING 1/1000TH OF A SHARE OF
5.75% SERIES A CUMULATIVE PERPETUAL PREFERRED STOCK
(LIQUIDATION PREFERENCE $25,000.00 PER SHARE, OR $25.00 PER DEPOSITARY SHARE)
Continental Stock Transfer & Trust Company, as Depositary (the “Depositary”), hereby certifies that Cede & Co. is the registered owner of Depositary Shares (“Depositary Shares”), each Depositary Share representing 1/1000th of an ownership interest in a share of 5.75% Series A Cumulative Perpetual Preferred Stock, liquidation preference of $25,000.00 per share (the “Stock”), of Green Brick Partners, Inc., a Delaware corporation (the “Company”), on deposit with the Depositary, subject to the terms and entitled to the benefits of the Deposit Agreement, made and entered into as of December 23, 2021 (as the same may be amended, modified or supplemented from time to time, the “Deposit Agreement”), among the Company, the Depositary, and the holders from time to time of receipts evidencing one or more Depositary Shares (“Depositary Share Receipts”). By accepting this Depositary Share Receipt, the holder hereof becomes a party to and agrees to be bound by all the terms and conditions of the Deposit Agreement. This Depositary Share Receipt shall not be valid or obligatory for any purpose or entitled to any benefits under the Deposit Agreement unless it shall have been executed by the Depositary by the manual or facsimile signature of a duly authorized officer and, if a Registrar in respect of the Depositary Share Receipt (other than the Depositary) shall have been appointed, by the manual signature of a duly authorized officer of such Registrar.
Dated: December 23, 2021
| Continental Stock Transfer & Trust Company, as Depositary | ||||||||||||||
| By: | ||||||||||||||
| Authorized Signatory | ||||||||||||||
| Countersigned: | Continental Stock Transfer & Trust Company, as Registrar | |||||||
| By: | ||||||||
| Authorized Signatory | ||||||||
[FORM OF REVERSE OF RECEIPT]
The following abbreviations when used in the instructions on the face of this Receipt shall be construed as though they were written out in full according to applicable laws or regulations.
| TEN COM - | as tenants in common | UNIF GIFT MIN ACT - | ___________ Custodian ____________ | |||||||||||||||||
| (Cust) | (Minor) | |||||||||||||||||||
| TEN ENT - | as tenants by the entireties | Under Uniform Gifts to Minors | ||||||||||||||||||
| Act ___________________________ | ||||||||||||||||||||
| (State) | ||||||||||||||||||||
| JT TEN - | as joint tenants with right of survivorship and not as tenants in common | |||||||||||||||||||
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
For value received, ________________________ hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE, AS APPLICABLE
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF ASSIGNEE
Depositary Shares represented by the within Receipt, and does hereby irrevocably constitute and appoint __________________ as Attorney to transfer the said Depositary Shares on the books of the within named Depositary with full power of substitution in the premises.
Dated:
NOTICE: The signature to the assignment must correspond with the name as written upon the face of this Receipt in every particular, without alteration or enlargement or any change whatever.
SIGNATURE GUARANTEED:
NOTICE: The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations, and credit unions with membership in an approved signature guarantee medallion program), pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934.
Exhibit 5.1
December 23, 2021
Green Brick Partners, Inc.
2805 Dallas Pkwy, Ste. 400
Plano, TX 75093
Re: Green Brick Partners, Inc. Depositary Shares and Series A Cumulative Perpetual Preferred Stock
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection with the offering by Green Brick Partners, Inc., a Delaware corporation (the “Company”), of up to 2,300,000 depositary shares (the “Depositary Shares”), each representing a 1/1000th fractional interest in a share of 5.75% Series A Cumulative Perpetual Preferred Stock, par value $0.01 per share (the “Preferred Shares”), with a liquidation preference of $25.00 per Depositary Share, pursuant to a Registration Statement on Form S-3 (Registration Statement No. 333- 250977) (the “Registration Statement”), filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), the prospectus included therein (the “Base Prospectus”), and the prospectus supplement, dated December 16, 2021, filed with the Commission pursuant to Rule 424(b) under the Act (together with the Base Prospectus, the “Prospectus”). The Preferred Shares are to be deposited by the Company with Continental Stock Transfer & Trust Company acting as depositary (the “Depositary”), pursuant to the Deposit Agreement, to be dated on or about the date of the first issuance of Depositary Shares thereunder (the “Deposit Agreement”), between the Company, the Depositary and the holders from time to time of depositary receipts (the “Receipts”) to be issued under the Deposit Agreement.
In connection with this opinion, we have examined and relied upon (i) the Registration Statement and the Prospectus, (ii) the Company’s Amended and Restated Certificate of Incorporation, as amended, including the Certificate of Designation of the Preferred Shares, and the Company’s Amended and Restated Bylaws, as amended, as currently in effect, (iii) the Deposit Agreement, and (iv) originals or copies certified to our satisfaction of such records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the accuracy, completeness and authenticity of certificates of public officials, and the due authorization, execution and delivery of all documents by all persons other than the Company where authorization, execution and delivery are prerequisites to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified such matters.
Based upon, subject to and limited by the foregoing, and assuming that (i) the Company receives the payment of the consideration determined by the Offering Committee of the Board of Directors of the Company for the issuance of the Preferred Shares, (ii) certificates evidencing the Preferred Shares are duly executed and delivered in accordance with Delaware law and (iii) the
Greenberg Traurig, P.A. | Attorneys at Law
www.gtlaw.com
December 23, 2021
Page 2
Preferred Shares are recorded on the stock ledger of the Company in accordance with Delaware law, the Preferred Shares will be validly issued, fully paid and non-assessable and the Receipts evidencing the Depositary Shares, when issued under the Deposit Agreement against deposit of Preferred Shares by the Company in accordance with the Deposit Agreement against payment therefor, will entitle the registered holders thereof to the rights specified in the Deposit Agreement, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
We express no opinion as to matters governed by any laws other than the General Corporation Law of the State of Delaware, the State of New York and the federal laws of the United States of America, as in effect on the date hereof.
We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the Company’s Current Report on Form 8-K dated December 23, 2021, which is incorporated by reference into the Registration Statement and to the use of our name under the caption “Legal Matters” in the Prospectus Supplement. In giving such consent, we do not thereby admit that we are included within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations promulgated thereunder.
Very truly yours,
/s/ Greenberg Traurig, P.A.
GREENBERG TRAURIG, P.A.
Greenberg Traurig, P.A. | Attorneys at Law
www.gtlaw.com