false
0001035443
0001035443
2024-02-15
2024-02-15
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
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):
February 15, 2024
ALEXANDRIA REAL ESTATE EQUITIES, INC.
(Exact name of registrant as specified in
its charter)
Maryland |
|
1-12993 |
|
95-4502084 |
(State or other jurisdiction
of
incorporation) |
|
(Commission
File Number) |
|
(I.R.S. Employer
Identification No.) |
26
North Euclid Avenue
Pasadena, California |
| 91101 |
(Address of principal executive offices) |
| (Zip Code) |
Registrant’s telephone number, including
area code: (626) 578-0777
N/A
(Former name or former address, if changed
since last report)
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:
¨ | Written communications pursuant to Rule 425 under
the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under
the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4 (c) under the Exchange Act (17 CFR
240.13e-4 (c)) |
Securities registered pursuant to Section 12(b) of the Exchange Act:
Title of each class |
|
Trading
Symbol(s) |
|
Name of each exchange
on which
registered |
Common Stock, $.01 par value per share |
|
ARE |
|
New York Stock Exchange |
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. ¨
On February 15, 2024, Alexandria Real Estate
Equities, Inc. (the “Company”) entered into a Distribution Agreement (the “Agreement”) with Mizuho
Securities USA LLC, Robert W. Baird & Co. Incorporated, Barclays Capital Inc., BBVA Securities Inc., BMO Capital Markets Corp.,
BNP Paribas Securities Corp., BofA Securities, Inc., BTIG, LLC, Capital One Securities, Inc., Citigroup Global Markets Inc.,
Citizens JMP Securities, LLC, Evercore Group L.L.C., Fifth Third Securities, Inc., Goldman Sachs & Co. LLC, Jefferies LLC, J.P.
Morgan Securities LLC, RBC Capital Markets, LLC, Regions Securities LLC, Scotia Capital (USA) Inc., TD Securities (USA) LLC, Truist
Securities, Inc. and Wedbush Securities Inc. (and in certain cases, certain of their respective affiliates or agents), the Forward
Sellers (as defined below) and the Forward Purchasers (as defined below) relating to the offer and sale of shares of common stock,
par value $0.01 per share, of the Company, from time to time, having an aggregate offering price of up to $1,500,000,000 (the
“Shares”). The Company refers to these entities, when acting in their capacity as sales agents for the Company,
individually as a “Sales Agent” and collectively as “Sales Agents.” The Company refers to these entities,
when acting as agents for Forward Purchasers (as defined below), individually as a “Forward Seller” and collectively as
“Forward Sellers,” except that with respect to (i) Nomura Global Financial Products, Inc., the relevant Forward Seller is
Nomura Securities International, Inc. (acting through BTIG, LLC as agent), and (ii) Canadian Imperial Bank of Commerce, the relevant
Forward Seller is CIBC World Markets Corp. A copy of the Agreement is attached as Exhibit
1.1 hereto.
Concurrently with entering into the Agreement,
the Company entered into separate master forward confirmations, each dated February 15, 2024 (each, a “Master Forward Confirmation”),
with each of Mizuho Markets Americas LLC, Robert W. Baird & Co. Incorporated, Barclays Bank PLC, Banco Bilbao Vizcaya Argentaria,
S.A., Bank of Montreal, BNP Paribas, Bank of America, N.A., Nomura Global Financial Products, Inc., Canadian Imperial Bank of Commerce,
Citibank, N.A., Citizens JMP Securities, LLC, Goldman Sachs & Co. LLC, Jefferies LLC, JPMorgan Chase Bank, National Association, Royal
Bank of Canada, Regions Securities LLC, The Bank of Nova Scotia, The Toronto-Dominion Bank and Truist Bank (individually, a “Forward
Purchaser” and collectively, the “Forward Purchasers”), in the form attached as Exhibit 1.2 hereto.
The Agreement provides that, in addition to
the issuance and sale of the Shares by the Company through the Sales Agents, the Company may also enter into one or more forward
sale agreements under any of the Master Forward Confirmations or under any master forward confirmations the Company may enter into,
from time to time, with any Sales Agents or their affiliates or agents in the future. In connection with any particular forward sale
agreement, the term of which may not be less than three months or more than two years, the relevant Forward Purchaser, each of which
is either a Sales Agent or an affiliate of a Sales Agent, will, at the Company’s request, borrow from third parties and,
through the relevant Forward Seller, sell a number of Shares equal to the number of shares of common stock underlying the particular
forward sale agreement. In no event will the aggregate number of Shares sold through the Sales Agents or the Forward Sellers under
the Agreement and under any forward sale agreement have an aggregate sales price in excess of $1,500,000,000.
The sales, if any, of Shares made under the Agreement
will be made in “at the market” offerings as defined in Rule 415 under the Securities Act of 1933, as amended, including sales
made directly on the New York Stock Exchange, the existing trading market for the Company’s common stock, or sales made to or through
a market maker or through an electronic communications network. In addition, the Shares may be offered and sold by such other methods,
including privately negotiated transactions, as the Company and the applicable Sales Agent or Forward Seller may agree to in writing.
The Shares may be offered in one or more selling periods, none of which will exceed 20 consecutive trading days. The Company shall specify
to the applicable Sales Agent or the applicable Forward Purchaser and Forward Seller (i) the aggregate selling price of the Shares to
be sold during a selling period and (ii) the minimum price below which such Sales Agent or Forward Seller shall not sell Shares during
a selling period. The Agreement provides that each Sales Agent will be entitled to compensation of up to 1.5% of the gross sales price
per share for any of the Shares sold under the Agreement.
The Company or the applicable Sales Agent or Forward
Seller may suspend the offering of the shares of common stock at any time upon proper notice to the other party, upon which the selling
period will immediately terminate.
In connection with any forward sale agreement,
the Company will pay the relevant Forward Seller, in the form of a reduced initial forward sale price under the related forward sale agreement
with the related Forward Purchaser, commissions at a mutually agreed rate that will not exceed 1.5% of the gross sales prices of all borrowed
Shares sold during the applicable forward hedge selling period by it as a Forward Seller.
The Company will not initially receive any proceeds
from the sale of borrowed Shares by a Forward Seller. The Company expects to fully physically settle each particular forward sale agreement
(by delivering shares of our common stock) with the relevant Forward Purchaser on one or more dates specified by the Company on or prior
to the maturity date of that particular forward sale agreement, in which case the Company will expect to receive aggregate net cash proceeds
at settlement equal to the number of shares underlying the particular forward sale agreement multiplied by the relevant forward sale price.
However, subject to certain conditions, the Company may also elect to cash settle or net share settle a particular forward sale agreement,
in which case the Company may not receive any proceeds (in the case of cash settlement) or will not receive any proceeds (in the case
of net share settlement), and the Company may owe cash (in the case of cash settlement) or shares of common stock (in the case of net
share settlement) to the relevant Forward Purchaser.
The Shares will be offered pursuant to the Company’s
automatic shelf registration statement on Form S-3 (File No. 333-276803) and a prospectus supplement of the Company, filed with the Securities
and Exchange Commission on February 1, 2024 and February 15, 2024, respectively.
The description of the Agreement and the Master
Forward Confirmations does not purport to be complete and is qualified in its entirety by reference to the Agreement filed herewith as
Exhibit 1.1 and the form of Master Forward Confirmation filed herewith as Exhibit 1.2 and are incorporated herein by reference.
| Item 9.01 | FINANCIAL STATEMENTS AND EXHIBITS |
(d) Exhibits
| 1.1 | Distribution Agreement, dated February 15, 2024, among Alexandria
Real Estate Equities, Inc., Mizuho Securities USA LLC, Robert W. Baird & Co. Incorporated, Barclays Capital Inc., BBVA
Securities Inc., BMO Capital Markets Corp., BNP Paribas Securities Corp., BofA Securities, Inc., BTIG, LLC, Capital One Securities,
Inc., Citigroup Global Markets Inc., Citizens JMP Securities, LLC, Evercore Group L.L.C., Fifth Third Securities, Inc., Goldman
Sachs & Co. LLC, Jefferies LLC, J.P. Morgan Securities LLC, RBC Capital Markets, LLC, Regions Securities LLC, Scotia Capital
(USA) Inc., TD Securities (USA) LLC, Truist Securities, Inc. and Wedbush Securities Inc. as Sales Agents and, if applicable,
together with Nomura Securities International, Inc. (acting through BTIG, LLC as agent) and CIBC World Markets Corp., as Forward
Sellers, and Mizuho Markets Americas LLC, Robert W. Baird & Co. Incorporated, Barclays Bank PLC, Banco Bilbao Vizcaya
Argentaria, S.A., Bank of Montreal, BNP Paribas, Bank of America, N.A., Nomura Global Financial Products, Inc., Canadian Imperial
Bank of Commerce, Citibank, N.A., Citizens JMP Securities, LLC, Goldman Sachs & Co. LLC, Jefferies LLC, JPMorgan Chase Bank,
National Association, Royal Bank of Canada, Regions Securities LLC, The Bank of Nova Scotia, The Toronto-Dominion Bank and Truist
Bank as Forward Purchasers |
| 104 | Cover Page Interactive Data File (embedded within the inline
XBRL document) |
SIGNATURES
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.
|
ALEXANDRIA REAL ESTATE EQUITIES, INC. |
|
(Registrant) |
|
|
Date: February 15, 2024 |
By: |
/s/ Marc E. Binda |
|
Marc E. Binda |
|
Chief Financial Officer and Treasurer |
Exhibit 1.1
DISTRIBUTION AGREEMENT
DISTRIBUTION
AGREEMENT (this "Agreement"), dated as of February 15, 2024, among ALEXANDRIA REAL ESTATE EQUITIES, INC., a
Maryland corporation (the "Company"), Mizuho Securities USA LLC ("Mizuho"), Robert W. Baird &
Co. Incorporated ("Baird"), Barclays Capital Inc. ("Barclays"), BBVA Securities Inc. ("BBVA"),
BMO Capital Markets Corp. ("BMO"), BNP Paribas Securities Corp. ("BNPP"), BofA Securities, Inc.
("BofA"), BTIG, LLC ("BTIG"), Capital One Securities, Inc. ("Capital One"), Citigroup
Global Markets Inc. ("CGMI"), Citizens JMP Securities, LLC ("Citizens JMP"), Evercore Group L.L.C. ("Evercore
ISI"), Fifth Third Securities, Inc. ("Fifth Third"), Goldman Sachs & Co. LLC ("Goldman
Sachs"), Jefferies LLC ("Jefferies"), J.P. Morgan Securities LLC ("J.P. Morgan"), RBC Capital
Markets, LLC ("RBC"), Regions Securities LLC ("Regions"), Scotia Capital (USA) Inc. ("Scotia"),
TD Securities (USA) LLC ("TD Securities"), Truist Securities, Inc. ("Truist Securities") and Wedbush
Securities Inc. ("Wedbush" and together with Mizuho, Baird, Barclays, BBVA, BMO, BNPP, BofA, BTIG, Capital One, CGMI,
Citizens JMP, Evercore ISI, Fifth Third, Goldman Sachs, Jefferies, J.P. Morgan, RBC, Regions, Scotia, TD Securities and Truist Securities
in their capacities as agents for the Company in connection with the offer and sale of any Issuance Shares hereunder, the "Sales
Agents"), Mizuho Markets Americas LLC, Baird, Barclays Bank PLC, Banco Bilbao Vizcaya Argentaria, S.A., Bank of Montreal,
BNP Paribas, Bank of America, N.A., Nomura Global Financial Products, Inc., Canadian Imperial Bank of Commerce, Citibank, N.A., Citizens
JMP, Goldman Sachs & Co. LLC, Jefferies, JPMorgan Chase Bank, National Association, Royal Bank of Canada, Regions, The Bank of
Nova Scotia, The Toronto-Dominion Bank and Truist Bank (collectively, in their capacities as counterparties under any Forward Contract,
together with any Additional Forward Purchasers, the "Forward Purchasers"), and Mizuho, Baird, Barclays, BBVA, BMO, BNPP,
BofA, Nomura Securities International, Inc. (acting through BTIG, LLC as agent), CIBC World Markets Corp., CGMI, Citizens JMP, Evercore
ISI, Goldman Sachs, Jefferies, J.P. Morgan, RBC, Regions, Scotia, TD Securities and Truist Securities (collectively, in their capacities
as agents for the Forward Purchasers in connection with the offering and sale of any Forward Hedge Shares hereunder, together with any
Additional Forward Sellers, the "Forward Sellers").
W I T N E S S E T H:
WHEREAS, the Company has authorized
and proposes to issue and sell in the manner contemplated by this Agreement Common Shares with an aggregate Sales Price of up to $1,500,000,000
upon the terms and subject to the conditions contained herein;
WHEREAS, each of the Sales
Agents has been appointed by the Company as its agent to sell the Issuance Shares and agrees to use its commercially reasonable efforts
to sell the Issuance Shares offered by the Company upon the terms and subject to the conditions contained herein; and
WHEREAS, each of the Forward
Sellers has been appointed by the Company and a Forward Purchaser as such Forward Purchaser's agent to sell the Forward Hedge
Shares and agrees with the Company and such Forward Purchaser to use its commercially reasonable efforts to sell the Forward
Hedge Shares to be borrowed by the Forward Purchaser or its affiliate and offered on behalf of the Company upon the terms and subject
to the conditions contained herein.
NOW, THEREFORE, in consideration
of the premises, representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound hereby, the parties hereto agree as follows:
Article I
DEFINITIONS
Section 1.01 Certain
Definitions. For purposes of this Agreement, capitalized terms used herein and not otherwise defined shall have the following respective
meanings:
"Actual Sold Forward
Amount" means, for any Forward Hedge Selling Period for any Forward, the number of Forward Hedge Shares that a Forward Seller
has sold during such Forward Hedge Selling Period.
"Actual Sold Issuance
Amount" means, for any Issuance Selling Period for any Issuance, the number of Issuance Shares that a Sales Agent has sold during
such Issuance Selling Period.
"Additional Forward
Purchaser" has the meaning set forth in Section 9.06.
"Additional Forward
Seller" has the meaning set forth in Section 9.06.
"Affiliate"
of a Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under
common control with, such first mentioned Person. The term "control" (including the terms "controlling," "controlled
by" and "under common control with") means the possession, direct or indirect, of the power to direct or cause the direction
of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
"Agreement"
has the meaning set forth in the introductory paragraph of this Agreement.
"Closing"
has the meaning set forth in Section 2.02.
"Closing Date"
means the date on which the Closing occurs.
"Code" has
the meaning set forth in Section 3.15.
"Commission"
means the United States Securities and Exchange Commission.
"Commitment Period"
means the period commencing on the date of this Agreement and expiring on the earliest to occur of (x) the date on which the Sales
Agents and the Forward Sellers, in the aggregate, shall have sold the Maximum Program Amount pursuant to this Agreement, (y) the
date this Agreement is terminated pursuant to Article VII and (z) 36 months from the date of this Agreement.
"Common Shares"
shall mean Issuance Shares and Forward Hedge Shares.
"Common Stock"
shall mean the Company's common stock, $.01 par value per share.
"Company"
has the meaning set forth in the introductory paragraph of this Agreement.
"Company Controlling
Person" has the meaning set forth in Section 6.02.
"Controlling Persons"
has the meaning set forth in Section 6.01.
"DWAC" has
the meaning set forth in Section 2.03(e)(i).
"Earnings 8-K"
has the meaning set forth in Section 2.05(b).
"Earnings Announcement"
has the meaning set forth in Section 2.05(a).
"EDGAR" has
the meaning set forth in Section 4.03.
"Effective Date"
has the meaning set forth in Section 3.02.
"Exchange Act"
means the Securities Exchange Act of 1934, as amended.
"Exchange Act Regulations"
means the rules and regulations of the Commission under the Exchange Act.
"Filing Time"
has the meaning set forth in Section 2.05(a).
"Floor Price"
means the minimum price set by the Company in the Placement Notice, below which a Sales Agent (in the case of an Issuance) or a Forward
Seller (in the case of a Forward) shall not sell Issuance Shares or Forward Hedge Shares, respectively, during the applicable Selling
Period, which may be adjusted by the Company at any time during the applicable Selling Period by notifying such Sales Agent or Forward
Seller, as applicable, by telephone or by e-mail (in each case, confirmed immediately by verifiable facsimile transmission) and which
in no event shall be less than $1.00 without the prior written consent of such Sales Agent or Forward Seller, which may be withheld in
such Sales Agent's or Forward Seller's sole discretion.
"Forward"
means the transaction resulting from a Placement Notice specifying that it relates to a "Forward" and requiring a Forward Seller
to use its commercially reasonable efforts to sell, on behalf of the Company, the Forward Hedge Shares as specified in such Placement
Notice, subject to the terms and conditions of this Agreement and the applicable Forward Contract.
"Forward Contract"
means, for each Forward, the contract evidencing such Forward between the Company and a Forward Purchaser, which shall be comprised of
the Master Forward Confirmation and the related "Supplemental Confirmation" (as defined in the Master Forward Confirmation)
for such Forward.
"Forward Date"
means any Trading Day during the Commitment Period that a Placement Notice specifying that it relates to a "Forward" is delivered
or deemed to be delivered pursuant to Section 2.03(b).
"Forward Hedge Amount"
means the aggregate Sales Price of the Forward Hedge Shares to be sold by a Forward Seller with respect to any Forward as specified in
the Placement Notice for such Forward, subject to the terms and conditions of this Agreement.
"Forward Hedge Price"
means, for any Forward Contract, the product of (x) an amount equal to one (1) minus the Forward Hedge Selling Commission Rate
for such Forward Contract; and (y) the "Volume-Weighted Hedge Price" (as defined in the Master Forward Confirmation) for
such Forward Contract.
"Forward Hedge Selling
Commission" means, for any Forward Contract, the product of (x) the Forward Hedge Selling Commission Rate for such Forward
Contract and (y) the "Volume-Weighted Hedge Price" (as defined in the Master Forward Confirmation) for such Forward Contract.
"Forward Hedge Selling
Commission Rate" means, for any Forward Contract, a rate mutually agreed between the Company and a Forward Seller, not to exceed
1.5%.
"Forward Hedge Selling
Period" means the period of one to 20 consecutive Trading Days (as determined by the Company in the Company's sole discretion
and specified in the applicable Placement Notice specifying that it relates to a "Forward") following the Trading Day on which
such Placement Notice specifying that it relates to a "Forward" is delivered or deemed to be delivered pursuant to Section 2.03(b);
provided that if, prior to the scheduled end of any Forward Hedge Selling Period (x) any event occurs that would permit the
Forward Purchaser to designate a "Scheduled Trading Day" as a "Termination Settlement Date" (as each such term is
defined in the Master Forward Confirmation) under, and pursuant to, the provisions opposite the caption "Termination Settlement"
in Section 7(c) of the Master Forward Confirmation or (y) a "Bankruptcy Termination Event" (as such term is defined
in the Master Forward Confirmation) occurs, then the Forward Hedge Selling Period shall immediately terminate as of the first such occurrence
(or, if later, when Persons at the Forward Seller responsible for executing sales of Forward Hedge Shares become aware of such occurrence).
"Forward Hedge Settlement
Date" means the second (2nd) Trading Day (and on and after May 28, 2024, the first (1st) Trading Day, or any such earlier
day as is industry practice for regular-way trading) following each Trading Day during the applicable Forward Hedge Selling Period on
which a Forward Seller sells any Forward Hedge Shares pursuant to this Agreement.
"Forward Hedge Shares"
means all shares of Common Stock borrowed by a Forward Purchaser or its affiliate and offered and sold by the Forward Seller in connection
with any Forward that has occurred or may occur in accordance with the terms and conditions of this Agreement.
"Forward Purchaser"
has the meaning set forth in the introductory paragraph of this Agreement.
"Forward Seller"
has the meaning set forth in the introductory paragraph of this Agreement.
"Hazardous Materials"
has the meaning set forth in Section 3.16.
"Indemnified Party"
has the meaning set forth in Section 6.03.
"Indemnifying Party"
has the meaning set forth in Section 6.03.
"Issuance"
means each occasion the Company elects to exercise its right to deliver a Placement Notice that specifies that it relates to an "Issuance"
and requires a Sales Agent to use its commercially reasonable efforts to sell the Issuance Shares as specified in such Placement Notice,
subject to the terms and conditions of this Agreement, which Placement Notice is accepted by the Sales Agent in accordance with Section 2.01(a).
"Issuance Amount"
means the aggregate Sales Price of the Issuance Shares to be sold by a Sales Agent with respect to any Issuance as specified in the Placement
Notice for such Issuance, subject to the terms and conditions of this Agreement.
"Issuance Date"
means any Trading Day during the Commitment Period that a Placement Notice specifying that it relates to an "Issuance" is delivered
or deemed to be delivered pursuant to Section 2.03(b).
"Issuance Price"
means the Sales Price less the Issuance Selling Commission.
"Issuance Selling
Commission" means up to 1.5% of the Sales Price of Issuance Shares sold during an Issuance Selling Period.
"Issuance Selling
Period" means the period of one to 20 consecutive Trading Days (as determined by the Company in the Company's sole discretion
and specified in the applicable Placement Notice specifying that it relates to an "Issuance") following the Trading Day on which
a Placement Notice specifying that it relates to an "Issuance" is delivered or deemed to be delivered pursuant to Section 2.03(b).
"Issuance Settlement
Date" means the second (2nd) Trading Day (and on and after May 28, 2024, the first (1st) Trading Day, or any such earlier
day as is industry practice for regular-way trading) following each Trading Day during the applicable Issuance Selling Period on which
a Sales Agent sells any Issuance Shares pursuant to this Agreement.
"Issuance Shares"
means all shares of Common Stock issued or issuable pursuant to an Issuance that has occurred or may occur in accordance with the terms
and conditions of this Agreement.
"Joinder Agreement"
has the meaning set forth in Section 9.06.
"Master Forward Confirmation"
means the Master Confirmation for Registered Forward Transactions, dated as of the date hereof (or, in the case of an Additional Forward
Purchaser, as of the effective date of the related Joinder Agreement), by and between the Company and the applicable Forward Purchaser,
substantially in the form attached as Exhibit D.
"Material Adverse
Effect" has the meaning set forth in Section 3.04.
"Material Subsidiary"
has the meaning set forth in Section 3.04.
"Maximum Program Amount"
means Common Shares with an aggregate Sales Price of $1,500,000,000.
"Person"
means an individual or a corporation, partnership, limited liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, governmental authority or other entity of any kind.
"Placement Date"
means any Issuance Date or any Forward Date.
"Placement Notice"
means a written notice to a Sales Agent or a Forward Purchaser and a Forward Seller, as applicable, delivered in accordance with this
Agreement in the form attached as Exhibit A.
"Pricing Supplement"
has the meaning set forth in Section 3.02.
"Principal Market"
means the New York Stock Exchange.
"Prospectus"
has the meaning set forth in Section 3.02.
"Prospectus Supplement"
has the meaning set forth in Section 5.01(i).
"Registration Statement"
has the meaning set forth in Section 3.02.
"REIT" has
the meaning set forth in Section 3.15.
"Replacement Prospectus"
has the meaning set forth in Section 4.14.
"Replacement
Registration Statement" has the meaning set forth in Section 4.14.
"Representation Date"
has the meaning set forth in the introductory paragraph of Article III.
"Rule 163"
has the meaning set forth in Section 3.02(a).
"Rules 3-10 and
3-14" have the meaning set forth in Section 3.17.
"Rule 405"
has the meaning set forth in Section 3.01.
"Rule 462(e)"
has the meaning set forth in Section 3.02.
"Sales Agents"
has the meaning set forth in the introductory paragraph of this Agreement.
"Sales Price"
means, for each Forward or each Issuance hereunder, the actual sale execution price of each Forward Hedge Share or Issuance Share, respectively,
sold by a Forward Seller or a Sales Agent, as applicable, on the Principal Market hereunder, in the case of ordinary brokers' transactions,
or as otherwise agreed by the parties in other methods of sale.
"Securities Act"
means the Securities Act of 1933, as amended.
"Securities Act Regulations"
means the rules and regulations of the Commission under the Securities Act.
"Selling Period"
means any Forward Hedge Selling Period or any Issuance Selling Period.
"Settlement Date"
means any Forward Hedge Settlement Date or any Issuance Settlement Date.
"Trading Day"
means any day which is a trading day on the New York Stock Exchange, other than a day on which trading is scheduled to close prior to
its regular weekday closing time.
"Voting Stock"
of any Person as of any date means the capital stock of such Person that is at the time entitled to vote in the election of the Board
of Directors of such Person.
Article II
ISSUANCES AND FORWARDS
Section 2.01 Issuances
and Forwards.
(a) Placements.
(i) Upon
the terms and subject to the conditions of this Agreement, the Company may issue Issuance Shares through the Sales Agents, and the Sales
Agents shall use their commercially reasonable efforts to sell Issuance Shares, with an aggregate Sales Price of up to the Maximum Program
Amount, less the aggregate Sales Price for any Forward Hedge Shares previously sold under this Agreement, based on and in accordance
with such number of Placement Notices, each specifying that it relates to an "Issuance," as the Company in its sole discretion
shall choose to deliver during the Commitment Period, as accepted by the Sales Agents in accordance with this Agreement, until the aggregate
Sales Price of the Issuance Shares sold under this Agreement plus the aggregate Sales Price of any Forward Hedge Shares previously
sold under this Agreement equals the Maximum Program Amount or this Agreement is otherwise terminated. Subject to the foregoing and the
other terms and conditions of this Agreement, upon the delivery of a Placement Notice specifying that it relates to an "Issuance"
to a Sales Agent and such Sales Agent's acceptance of such Placement Notice by e-mail confirming the terms of such Placement Notice, and
unless the sale of the Issuance Shares described therein has been suspended, cancelled or otherwise terminated in accordance with the
terms of this Agreement, such Sales Agent will use its commercially reasonable efforts consistent with its normal trading and sales practices
to sell such Issuance Shares up to the amount specified in such Placement Notice into the Principal Market, and otherwise in accordance
with the terms of such Placement Notice. Such Sales Agent will provide written confirmation to the Company no later than the opening of
the Trading Day next following the Trading Day on which it has made sales of Issuance Shares hereunder setting forth the portion of the
Actual Sold Issuance Amount for such Trading Day, the corresponding Sales Price and the Issuance Price payable to the Company in respect
thereof. Such Sales Agent may sell Issuance Shares in the manner described in Section 2.01(b). The Company acknowledges and agrees
that (i) there can be no assurance that such Sales Agent will be successful in selling Issuance Shares and (ii) such Sales Agent
will incur no liability or obligation to the Company or any other Person if it does not sell Issuance Shares for any reason other than
a failure by such Sales Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell
such Issuance Shares as required under this Section 2.01. In acting hereunder, such Sales Agent will be acting as agent for the Company
and not as principal.
(ii) In
addition, upon the terms and subject to the conditions of this Agreement and the applicable Master Forward Confirmation, a Forward Purchaser
may borrow, offer and sell Forward Hedge Shares through a Forward Seller to hedge each Forward, and such Forward
Seller shall use its commercially reasonable efforts to sell, on behalf of the Company, Forward Hedge Shares with an aggregate Sales Price
of up to the Maximum Program Amount, less the aggregate Sales Price of any Issuance Shares or Forward Hedge Shares previously sold
under this Agreement, based on and in accordance with such number of Placement Notices, each specifying that it relates to a "Forward,"
as the Company shall choose to deliver during the Commitment Period until the aggregate Sales Price of the Forward Hedge Shares sold under
this Agreement plus the aggregate Sales Price of any Issuance Shares previously sold under this Agreement equals the Maximum Program
Amount or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement and the
Master Forward Confirmation, upon the delivery of a Placement Notice specifying that it relates to a "Forward" to a Forward
Purchaser and a Forward Seller and such Forward Purchaser and Forward Seller's acceptance of such Placement Notice by e-mail confirming
the terms of such Placement Notice, and unless the sale of the Forward Hedge Shares described therein has been suspended or otherwise
terminated in accordance with the terms of this Agreement or the applicable Master Forward Confirmation, such Forward Purchaser will use
its commercially reasonable efforts to borrow Forward Hedge Shares up to the amount specified and such Forward Seller will use its commercially
reasonable efforts consistent with its normal trading and sales practices to sell, on behalf of the Company, such Forward Hedge Shares
into the Principal Market, and otherwise in accordance with the terms of such Placement Notice. Such Forward Seller will provide written
confirmation to the Company and the Forward Purchaser no later than the opening of the Trading Day next following each Trading Day on
which it has made sales of Forward Hedge Shares hereunder setting forth the portion of the Actual Sold Forward Amount sold on such Trading
Day, the corresponding Sales Price and the portion of the Forward Hedge Price payable to the Forward Purchaser in respect thereof. Each
of the Company, the Forward Purchasers and the Forward Sellers acknowledges and agrees that: (i) there can be no assurance that a
Forward Purchaser will be successful in borrowing or that a Forward Seller will be successful in selling Forward Hedge Shares; (ii) a
Forward Seller will incur no liability or obligation to the Company, any Forward Purchaser or any other Person if it does not sell Forward
Hedge Shares borrowed by the applicable Forward Purchaser for any reason other than a failure by such Forward Seller to use its commercially
reasonable efforts consistent with its normal trading and sales practices to sell, on behalf of the Company, such Forward Hedge Shares
as required under this Section 2.01; and (iii) a Forward Purchaser will incur no liability or obligation to the Company, any
Forward Seller or any other Person if it does not borrow Forward Hedge Shares for any reason other than a failure by such Forward Purchaser
to use its commercially reasonable efforts to borrow such Forward Hedge Shares as required under this Section 2.01. In acting hereunder,
the Forward Sellers will be acting as agent for the applicable Forward Purchasers and not as principal. No later than the opening of the
Trading Day next following the last Trading Day of each Forward Hedge Selling Period (or, if earlier, the date on which any Forward Hedge
Selling Period is suspended or terminated pursuant to Section 5.03), the applicable Forward Purchaser shall execute and deliver to
the Company a "Supplemental Confirmation" in respect of the Forward for such Forward Hedge Selling Period, which "Supplemental
Confirmation" shall set forth the "Trade Date" for such Forward (which shall, subject to the terms of the applicable Master
Forward Confirmation, be the last Trading Day of such Forward Hedge Selling Period), the "Effective Date" for such Forward (which
shall, subject to the terms of the applicable Master Forward Confirmation, be the date one Settlement Cycle (as such term is defined in
each Master Forward Confirmation) immediately following the last Trading Day of such Forward Hedge Selling Period), the initial "Number
of Shares" for such Forward (which shall be the Actual Sold Forward Amount for such Forward Hedge Selling Period), the "Maturity
Date" for such Forward (which shall, subject to the terms of the applicable Master Forward Confirmation, be the date that follows
the last Trading Day of such Forward Hedge Selling Period by the number of days or months set forth opposite the caption "Term"
in the Placement Notice for such Forward, which number of days or months shall in no event be less than 3 months nor more than 2 years),
the "Forward Price Reduction Dates" for such Forward (which shall be each of the dates set forth below the caption "Forward
Price Reduction Dates" in the Placement Notice for such Forward) and the "Forward Price Reduction Amounts" corresponding
to such Forward Price Reduction Dates (which shall be each amount set forth opposite each "Forward Price Reduction Date" and
below the caption "Forward Price Reduction Amounts" in the Placement Notice for such Forward), the "Spread" for such
Forward (which shall be the amount set forth opposite the term "Spread" in the Placement Notice) and the "Initial Forward
Price" for such Forward (which shall be determined as provided in the applicable Master Forward Confirmation). Notwithstanding anything
herein to the contrary, a Forward Purchaser's obligation to use its commercially reasonable efforts to borrow or cause its affiliate to
borrow all or any portion of the Forward Hedge Shares (and a Forward Seller's obligation to use its commercially reasonable efforts consistent
with its normal trading and sales practices to sell such portion of the Forward Hedge Shares) for any Forward hereunder shall be subject
in all respects to Paragraph 7(a)(v) of each Master Forward Confirmation.
(b) Method
of Offer and Sale. The Common Shares may be offered and sold (1) in privately negotiated transactions (if and only if the parties
hereto have so agreed in writing), or (2) by any other method permitted by law deemed to be an "at the market" offering
as defined in Rule 415 under the Securities Act, including sales made directly on the Principal Market or sales made to or through
a market maker or through an electronic communications network. Nothing in this Agreement shall be deemed to require any party to agree
to the method of offer and sale specified in clause (1) above, and each party may withhold its consent thereto in such party's sole
discretion.
(c) Placement
Notice.
(i) Upon
the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section 2.03(b) during the Commitment
Period on which the conditions set forth in Sections 5.01 and 5.02 have been satisfied, the Company may deliver, in accordance with Section 9.03,
a Placement Notice specifying that it relates to an "Issuance," executed by (x) the Executive Chairman, or (y) the
Chief Financial Officer and Treasurer of the Company, to a Sales Agent. Such Sales Agent may accept such Placement Notice by e-mail to
one of the individuals named on Schedule 1, as such Schedule may be amended from time to time, confirming the terms of such Placement
Notice. The number of Issuance Shares that such Sales Agent shall use its commercially reasonable efforts to sell pursuant to such Issuance
shall have an aggregate Sales Price equal to the Issuance Amount set forth in the Placement Notice accepted by such Sales Agent. Each
Issuance will be settled on the applicable Issuance Settlement Date following the relevant Issuance Date.
(ii) Upon
the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section 2.03(b) during the Commitment
Period on which the conditions set forth in Sections 5.01 and 5.02 have been satisfied, the Company may deliver, in accordance with Section 9.03,
a Placement Notice specifying that it relates to a "Forward," executed by the (x) Executive Chairman or (y) the Chief
Financial Officer and Treasurer of the Company, to a Forward Purchaser and a Forward Seller. Such Forward Purchaser and Forward Seller
may accept such Placement Notice by e-mail to one of the individuals named on Schedule 1, as such Schedule may be amended from time to
time, confirming the terms of such Placement Notice. The number of Forward Hedge Shares that such Forward Purchaser shall use its commercially
reasonable efforts to borrow and that such Forward Seller shall use its commercially reasonable efforts to sell pursuant to such Forward
shall have an aggregate Sales Price equal to the Forward Hedge Amount set forth in the Placement Notice accepted by such Forward Purchaser
and Forward Seller. Each sale of Forward Hedge Shares will be settled as between the Forward Purchaser and the Forward Seller on the applicable
Forward Hedge Settlement Date following the relevant Forward Date.
Section 2.02 Effectiveness.
The effectiveness of this Agreement (the "Closing") shall be deemed to take place concurrently with the execution and
delivery of this Agreement by the parties hereto and the completion of the closing transactions set forth in the immediately following
sentence. At the Closing, the following closing transactions shall take place, each of which shall be deemed to occur simultaneously with
the Closing: (i) the Company shall deliver to the Sales Agents, the Forward Purchasers and the Forward Sellers a certificate executed
by the Secretary of the Company, signing in such capacity, dated the Closing Date, (A) certifying that attached thereto are true
and complete copies of the resolutions duly adopted by the Board of Directors of the Company authorizing the execution and delivery of
this Agreement, each Master Forward Confirmation and the consummation of the transactions contemplated hereby and thereby (including,
without limitation, the issuance or sale of the Common Shares pursuant to this Agreement and each Master Forward Confirmation), which
authorization shall be in full force and effect on and as of the date of such certificate and (B) certifying and attesting to the
office, incumbency, due authority and specimen signatures of each Person who executed this Agreement and each Master Forward Confirmation
for or on behalf of the Company; (ii) the Company shall deliver to the Sales Agents, the Forward Purchasers and the Forward Sellers
a certificate executed by (x) the Executive Chairman, and (y) the Chief Financial Officer and Treasurer of the Company, signing
in such capacity, dated the Closing Date, confirming that the representations and warranties of the Company contained in this Agreement
and each Master Forward Confirmation are true and correct and that the Company has performed all of its obligations hereunder to be performed
on or prior to the Closing Date and as to the matters set forth in Section 5.01(a); (iii) Morrison & Foerster LLP,
counsel to the Company, shall deliver to the Sales Agents, the Forward Purchasers and the Forward Sellers an opinion, dated the Closing
Date and addressed to the Sales Agents and the Forward Sellers, substantially in the form of Exhibit B(i) attached hereto; (iv) Venable
LLP, Maryland counsel to the Company, shall deliver to the Sales Agents, the Forward Purchasers and the Forward Sellers an opinion, dated
the Closing Date and addressed to the Sales Agents and the Forward Sellers, substantially in the form of Exhibit B(ii) attached
hereto; and (v) Ernst & Young LLP shall deliver to the Sales Agents and the Forward Sellers a letter, dated the Closing
Date, in form and substance satisfactory to the Sales Agents and the Forward Sellers to the effect required by Section 4.08.
Section 2.03 Mechanics
of Issuances.
(a) Placement
Notice. On any Trading Day during the Commitment Period, the Company may deliver a Placement Notice to a Sales Agent (in the case
of an Issuance) or a Forward Purchaser and a Forward Seller (in the case of a Forward), subject to the satisfaction of the conditions
set forth in Sections 5.01 and 5.02; provided, however, that the Placement Notice may not specify a number of Issuance
Shares or Forward Hedge Shares, as the case may be, with an aggregate Sales Price that, together with the aggregate Sales Price of the
Issuance Shares and Forward Hedge Shares previously sold under this Agreement, exceeds the Maximum Program Amount. The Company shall be
obligated to issue and sell through a Sales Agent (in the case of an Issuance), and such Sales Agent shall be obligated to use its commercially
reasonable efforts consistent with its normal trading and sales practices to sell, such Issuance Shares only if and when the Company delivers
a Placement Notice to such Sales Agent and such Sales Agent has accepted such Placement Notice as provided in Section 2.01(a). The
Company shall be obligated to enter into a Forward Contract (in the case of a Forward) with a Forward Purchaser, and such Forward Purchaser
shall be obligated to use its commercially reasonable efforts to borrow, and the applicable Forward Seller shall use its commercially
reasonable efforts consistent with its normal trading and sales practices to sell, the Forward Hedge Shares pursuant to such Forward only
if and when the Company delivers a Placement Notice to such Forward Purchaser and Forward Seller and such Forward Purchaser and Forward
Seller have accepted such Placement Notice as provided in Section 2.01(a). The Company shall have the right, in its sole discretion,
to amend at any time and from time to time any Placement Notice, and if accepted by the applicable Sales Agent or the applicable Forward
Purchaser and Forward Seller, as the case may be, such Sales Agent or such Forward Purchaser and Forward Seller shall, as soon as reasonably
practicable, modify its offers to sell or borrow, as applicable, consistent with any such amendment notice; provided, however,
that (i) the Company may not amend the Issuance Amount or the Forward Hedge Amount, as the case may be, if such amended Issuance
Amount or Forward Hedge Amount, as applicable, is less than the Actual Sold Issuance Amount or the Actual Sold Forward Amount, as applicable,
as of the date of such amendment and (ii) the Company shall not have the right to amend a Placement Notice specifying that it relates
to a "Forward" after the related "Supplemental Confirmation" has been delivered to the Company.
(b) Delivery
of Placement Notice. A Placement Notice or any amendment thereto shall be deemed delivered on the Trading Day that it is received
by facsimile or otherwise (and the Company confirms such delivery by e-mail notice or by telephone (including voicemail message)) by the
applicable Sales Agent (in the case of a Placement Notice specifying that it relates to an "Issuance") or by the applicable
Forward Purchaser and Forward Seller (in the case of a Placement Notice specifying that it relates to a "Forward"). No Placement
Notice or any amendment thereto may be delivered other than on a Trading Day during the Commitment Period, and no Placement Notice specifying
that it relates to a "Forward" may be delivered if an ex-dividend date or ex-date, as applicable for any dividend or distribution
payable by the Company on the Common Shares, is scheduled to occur during the period from, but excluding, the first scheduled Trading
Day of the related Forward Hedge Selling Period to, and including, the last scheduled Trading Day of such Forward Hedge Selling Period.
(c) Floor
Price. Neither the Sales Agents nor the Forward Sellers shall sell Issuance Shares or Forward Hedge Shares, as applicable, below the
Floor Price during the applicable Selling Period and such Floor Price may be adjusted by the Company at any time during the applicable
Selling Period upon notice to the applicable Sales Agent or Forward Seller, and confirmation by such Sales Agent or Forward Seller to
the Company.
(d) Trading
Guidelines. Each of the Sales Agents, the Forward Purchasers and the Forward Sellers may, to the extent permitted under the Securities
Act and the Exchange Act, purchase and sell Common Stock for its own account and for the account of its clients while this Agreement is
in effect. In addition, the Company hereby acknowledges and agrees that each Sales Agent's or Forward Seller's affiliates may make markets
in the Common Stock or other securities of the Company, in connection with which they may buy and sell, as agent or principal, for long
or short account, shares of Common Stock or other securities of the Company, at the same time such Sales Agent or Forward Seller is acting
as agent pursuant to this Agreement.
(e) Settlements.
(i) Subject
to the provisions of Article V, on or before each Issuance Settlement Date, the Company will, or will cause its transfer agent to,
electronically transfer the Issuance Shares being sold by crediting the applicable Sales Agent or its designee's account at The Depository
Trust Company through its Deposit/Withdrawal At Custodian ("DWAC") System, or by such other means of delivery as may
be mutually agreed by such Sales Agent and the Company and, upon receipt of such Issuance Shares, which in all cases shall be freely tradeable,
transferable, registered shares in good deliverable form, such Sales Agent will deliver the related Issuance Price in same day funds delivered
to an account designated by the Company prior to the relevant Issuance Settlement Date. If the Company defaults in its obligation to deliver
Issuance Shares on an Issuance Settlement Date, the Company agrees that it will (i) hold such Sales Agent harmless against any loss,
claim, damage or expense (including, without limitation, penalties, interest and reasonable legal fees and expenses), as incurred, arising
out of or in connection with such default by the Company, and (ii) pay to such Sales Agent any Issuance Selling Commission to which
it would otherwise have been entitled absent such default. The parties acknowledge and agree that, in performing its obligations under
this Agreement, the Sales Agents may borrow shares of Common Stock from stock lenders, and may use the Issuance Shares to settle or close
out such borrowings.
(ii) Subject
to the provisions of Article V, on or before each Forward Hedge Settlement Date, the applicable Forward Purchaser will, or will cause
its transfer agent to, electronically transfer the Forward Hedge Shares being sold by crediting the applicable Forward Seller or its designee's
account at The Depository Trust Company through its DWAC System, or by such other means of delivery as may be mutually agreed upon by
such Forward Purchaser and Forward Seller and, upon receipt of such Forward Hedge Shares, which in all cases shall be freely tradeable,
transferable, registered shares in good deliverable form, such Forward Seller shall deliver the related portion of the Forward Hedge Price
in same day funds delivered to an account designated by such Forward Purchaser prior to the relevant Forward Hedge Settlement Date.
Section 2.04 Use
of Free Writing Prospectus. The Company has not prepared, used, referred to or distributed, or will not prepare, use, refer to or
distribute, without the Sales Agents' and the Forward Sellers' prior written consent, any "written communication" which constitutes
a "free writing prospectus" as such terms are defined in Rule 405 under the Securities Act with respect to the offering
contemplated by this Agreement. Neither the Sales Agents nor the Forward Sellers have prepared, used, referred to or distributed, or will
prepare, use, refer to or distribute, without the Company's prior written consent, any "written communication" which constitutes
a "free writing prospectus" as such terms are defined in Rule 405 under the Securities Act with respect to the offering
contemplated by this Agreement that would be required to be filed with the Commission under the Securities Act.
Section 2.05 Material
Non-Public Information.
(a) Notwithstanding
any other provision of this Agreement, no Sales Agent or Forward Seller shall be obligated to sell any Common Shares hereunder and the
Company shall not offer, sell or deliver, or request the offer or sale, of any Common Shares pursuant to this Agreement and, by notice
to the Sales Agents, the Forward Purchasers and the Forward Sellers, as applicable, given by telephone (confirmed promptly by e-mail)
shall cancel any delivered Placement Notice (i) during any period in which the Company is, or the Sales Agents or the Forward Sellers
reasonably believe that the Company is, or could be deemed to be, in possession of material non-public information or (ii) at any
time from and including the date on which the Company shall issue a press release containing, or shall otherwise publicly announce, its
earnings, revenues or other results of operations (an "Earnings Announcement") through and including the time that is
24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a "Filing
Time") that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered
by such Earnings Announcement.
(b) Notwithstanding
clause (ii) of Section 2.05(a), if the Company wishes to offer or sell Common Shares through a Sales Agent or a Forward Seller,
as the case may be, at any time during the period from and including an Earnings Announcement through and including the corresponding
Filing Time, the Company shall first (i) prepare and deliver to such Sales Agent or Forward Seller (with a copy to counsel for the
Sales Agents or the Forward Sellers, as applicable) a Current Report on Form 8-K that includes substantially the same financial and
related information that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data
and officers' quotations) (each, an "Earnings 8-K"), in form and substance reasonably satisfactory to such Sales Agent
or Forward Seller, as applicable, and, prior to its filing, obtain the written consent of such Sales Agent or Forward Seller, as applicable,
to such filing (which consent shall not be unreasonably withheld), (ii) provide such Sales Agent or Forward Seller, as applicable,
or any Forward Purchaser, if applicable, with the opinions of counsel, comfort letters and officers' certificate specified in Sections
4.07, 4.08 and 4.09, respectively, (iii) afford such Sales Agent or Forward Seller, as applicable, the opportunity to conduct a due
diligence review in accordance with Section 4.12 prior to filing such Earnings 8-K and (iv) file such Earnings 8-K with the
Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers' certificate, opinion or letter
of counsel or accountants' letter pursuant to this Section 2.05(b) shall not relieve the Company from any of its obligations
under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including,
without limitation, the obligation to deliver opinions of counsel, comfort letters and officers' certificates specified in Sections 4.07,
4.08 and 4.09, respectively, and (B) this Section 2.05(b) shall in no way affect or limit the operation of clause (i) of
Section 2.05(a), which shall have independent application.
Section 2.06 Exemption
from Regulation M. If any party believes that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under
the Exchange Act (applicable to securities with an average daily trading volume of $1,000,000 that are issued by an issuer whose common
equity securities have a public float value of at least $150,000,000) are not satisfied with respect to the Company or the Common Shares,
it shall promptly notify the other parties and sales of Common Shares under this Agreement shall be suspended until that or other exemptive
provisions have been satisfied in the reasonable judgment of all parties.
Article III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and
warrants to, and agrees with, the Sales Agents, the Forward Purchasers and the Forward Sellers that as of the Closing Date, as of each
date a Sales Agent or a Forward Purchaser and a Forward Seller, as applicable, accepts a Placement Notice, as of each Settlement Date
and as of any time that the Registration Statement or the Prospectus shall be amended or supplemented (each of the times referenced above
is referred to herein as a "Representation Date"), except as may be disclosed in the Prospectus (including any documents
incorporated by reference therein and any supplements thereto) on or before a Representation Date:
Section 3.01 Status
as a Well-Known Seasoned Issuer. (a) At the time of filing the Registration Statement, (b) at the time of the most recent
amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (c) at
the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the Securities
Act Regulations) made any offer relating to the Common Shares in reliance on the exemption of Rule 163 of the Securities Act Regulations
and (d) at the date hereof, the Company was and is a "well-known seasoned issuer" as defined in Rule 405 of the Securities
Act Regulations ("Rule 405"), including not having been and not being an "ineligible issuer" as defined
in Rule 405. The Registration Statement is an "automatic shelf registration statement," as defined in Rule 405, and
the Common Shares, since their registration on the Registration Statement, have been and remain eligible for registration by the Company
on a Rule 405 "automatic shelf registration statement." The Company has not received from the Commission any notice pursuant
to Rule 401(g)(2) of the Securities Act Regulations objecting to the use of the automatic shelf registration statement form.
Section 3.02 Registration.
The Registration Statement on Form S-3 (Registration No. 333-276803) became effective upon filing under Rule 462(e) of
the Securities Act Regulations ("Rule 462(e)") on February 1, 2024, and any post-effective amendment thereto
also became effective upon filing under Rule 462(e). Such registration statement (and any further registration statements that may
be filed by the Company for the purpose of registering additional Common Shares to be sold pursuant to this Agreement), and the prospectus
constituting a part of such registration statement together with the Prospectus Supplement (as defined in Section 5.01(i)) and any
pricing supplement relating to a particular issuance of the Issuance Shares or sale of the Forward Hedge Shares, as the case may be (each,
a "Pricing Supplement"), including all documents incorporated or deemed to be incorporated therein by reference pursuant
to Item 12 of Form S-3 under the Securities Act, in each case, as from time to time amended or supplemented, are referred to herein
as the "Registration Statement" and the "Prospectus," respectively. Promptly after the execution and
delivery of this Agreement, the Company will prepare and file the Prospectus Supplement relating to the Common Shares pursuant to Rule 424(b) promulgated
by the Commission under the Securities Act, as contemplated by Section 5.01(i) of this Agreement. As used in this Agreement,
the terms "amendment" or "supplement" when applied to the Registration Statement or the Prospectus shall be deemed
to include the filing by the Company with the Commission of any document under the Exchange Act after the date hereof that is or is deemed
to be incorporated therein by reference. No stop order suspending the effectiveness of the Registration Statement has been issued under
the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated
by the Commission, and any request on the part of the Commission for additional information has been complied with. As used herein, with
respect to the Registration Statement, the term "Effective Date" means, as of a specified time, the later of (i) the
date that the Registration Statement or the most recent post-effective amendment thereto was or is declared effective by the Commission
under the Securities Act and (ii) the date that the Company's Annual Report on Form 10-K for its most recently completed fiscal
year is filed with the Commission under the Exchange Act.
(a) Any
offer that is a written communication relating to the Common Shares made prior to the filing of the Registration Statement by the Company
or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) of the Securities Act Regulations)
has been filed with the Commission in accordance with the exemption provided by Rule 163 of the Securities Act Regulations ("Rule 163")
and otherwise complied with the requirements of Rule 163, including without limitation the legending requirement, to qualify such
offer for the exemption from Section 5(c) of the Securities Act provided by Rule 163.
(b) At
the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect
to the Sales Agents pursuant to Rule 430B(f)(2) of the Securities Act Regulations and at the time of purchase, the Registration
Statement complied and will comply as to form in all material respects with the requirements of the Securities Act and the Securities
Act Regulations, and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with the information concerning the
Sales Agents, the Forward Purchasers or the Forward Sellers furnished in writing to the Company by or on behalf of the Sales Agents, the
Forward Purchasers or the Forward Sellers expressly for use therein (it being understood that such information consists solely of the
information specified in Section 6.02).
(c) The
Prospectus and any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued and at
the time of purchase, complied and will comply as to form in all material respects with the requirements of the Securities Act and the
Securities Act Regulations, and did not or will not include an untrue statement of a material fact or 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; provided,
however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and
in conformity with the information concerning the Sales Agents, the Forward Purchasers or the Forward Sellers furnished in writing to
the Company by or on behalf of the Sales Agents, the Forward Purchasers or the Forward Sellers expressly for use therein.
Section 3.03 Incorporated
Documents. The documents incorporated or deemed incorporated by reference into the Registration Statement and Prospectus, at the time
they were or hereafter are filed with the Commission, as the case may be, conformed and will conform in all material respects to the requirements
of the Securities Act and the Securities Act Regulations or the Exchange Act and the Exchange Act Regulations, as applicable, and when
read together with the information in the Prospectus (1) at the time the Registration Statement became effective, (2) at the
earlier of the time the Prospectus was issued and first used and the date and time of the first contract of sale of Common Shares in this
offering and (3) at the time of purchase, none of such documents contained or will contain an untrue statement of a material fact
or omitted or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information concerning the Sales Agents, the Forward Purchasers or the Forward Sellers furnished in writing
to the Company by or on behalf of the Sales Agents, the Forward Purchasers or the Forward Sellers expressly for use therein.
Section 3.04 Changes.
Neither the Company nor any of its subsidiaries has sustained since the respective dates as of which information is given in the Registration
Statement or the Prospectus, except as otherwise stated therein, any loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Registration Statement and the Prospectus, that singly or in the aggregate could be reasonably
expected to have a material adverse effect, in or affecting the general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, taken as a whole (a "Material Adverse Effect"); and, since
the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any change
in the capital stock or long-term debt of the Company or any subsidiary of the Company that constitutes a "significant subsidiary"
as defined in Rule 1-02 of Regulation S-X (each such significant subsidiary, a "Material Subsidiary"), or any Material
Adverse Effect or any development involving a Material Adverse Effect, in any such case, otherwise than as set forth or contemplated in
the Registration Statement and the Prospectus.
Section 3.05 Title
to Property. The Company and its subsidiaries have good and marketable title in fee simple to all real property (other than as specifically
described in the Registration Statement and the Prospectus) and good and marketable title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects, except for the related mortgage indebtedness described in the Registration
Statement and the Prospectus and such other liens, encumbrances and defects as are described in the Registration Statement and the Prospectus
or such as could not reasonably be expected to have a Material Adverse Effect and do not materially interfere with the use made and proposed
to be made of such property by the Company and its subsidiaries; and any real property and buildings held under lease (other than ground
leases referred to above) by the Company and its subsidiaries that are described in the Registration Statement and the Prospectus are
held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not materially interfere with
the use made and proposed to be made of such property and buildings by the Company and its subsidiaries.
Section 3.06 Organizational
Matters. The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State
of Maryland, with power and authority (corporate and other) to own its properties and other assets and conduct its business as described
in the Registration Statement and the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as
to require such qualification, or is subject to no material liability or disability by reason of the failure to be so qualified in any
such jurisdiction; each subsidiary of the Company has been duly organized and is validly existing and in good standing under the laws
of its jurisdiction of organization; each Material Subsidiary and its jurisdiction of organization is set forth on Schedule 2; each of
the Company's subsidiaries has power and authority (corporate and other) to own its properties and other assets and conduct its business
as described in the Registration Statement and the Prospectus, and has been duly qualified as a foreign corporation, partnership, limited
liability company or other entity, as the case may be, for the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to
no material liability or disability by reason of the failure to be so qualified in any such jurisdiction.
Section 3.07 Capitalization.
The Company has an authorized, issued and outstanding capitalization as set forth in the Prospectus or in the documents incorporated by
reference into the Prospectus, and all of the issued and outstanding shares of stock of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable and conform to the description of the stock contained in the Prospectus under the heading
"Description of Stock" or in the documents incorporated by reference into the Prospectus; and all of the issued shares of capital
stock, partnership interests or membership interests of each subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and (except for directors' qualifying shares) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims, except such as are described in the Registration Statement and the Prospectus
or such as do not materially interfere with the ownership thereof by the Company and its subsidiaries in each case, except as would not
have a Material Adverse Effect.
Section 3.08 Issuance
of Common Shares. The Common Shares to be issued or sold pursuant to this Agreement or a Master Forward Confirmation (and each "Supplemental
Confirmation" under such Master Forward Confirmation) have been duly and validly authorized and, when issued and delivered against
payment or consideration therefor as provided herein or therein, will be duly and validly issued and fully paid and non-assessable, will
conform to the description of the Common Stock contained in the Prospectus and will not be subject to any preemptive rights of any security
holder of the Company; no holder of Common Stock will be subject to personal liability by reason of being such a holder; except as set
forth in the Prospectus, the issuance, sale or offering of the Common Shares pursuant to this Agreement or a Master Forward Confirmation
(and each "Supplemental Confirmation" under such Master Forward Confirmation) will not give rise to any options to purchase,
or any preemptive or other rights or warrants to subscribe for, or any obligations or commitments of the Company to issue, sell, convert,
exchange or register with the Commission any shares of stock, warrants, convertible securities or obligations of the Company or any shares
of stock of or membership interests or partnership interests in any subsidiary or any such warrants, convertible securities or obligations.
Section 3.09 No
Conflicts. The issue or sale of the Common Shares pursuant to this Agreement or a Master Forward Confirmation (and each "Supplemental
Confirmation" under such Master Forward Confirmation) and the compliance by the Company with all of the provisions of this Agreement
and each Master Forward Confirmation (and each "Supplemental Confirmation" under such Master Forward Confirmation) and the consummation
of the transactions herein and therein contemplated will not (i) conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other 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 property or assets of the Company or any of its subsidiaries is subject, except for such conflicts, breaches, violations or defaults
that could not be reasonably expected to result in a Material Adverse Effect, (ii) result in any violation of the provisions of the
charter or bylaws of the Company or (iii) result in any violation of any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, except for
such violations that could not be reasonably expected to result in a Material Adverse Effect; and no consent, approval, authorization,
order, registration or qualification of or filing with any such court or governmental agency or body is required for the issuance or sale
of the Common Shares or the consummation by the Company of the transactions contemplated by this Agreement or any Master Forward Confirmation
(and each "Supplemental Confirmation" under such Master Forward Confirmation), except the registration under the Securities
Act of the Common Shares and such consents, approvals, authorizations, registrations or qualifications (a) as may be required under
state securities or blue sky laws in connection with the purchase or distribution of the Common Shares by the Sales Agents or the Forward
Sellers, (b) as may be required pursuant to the listing requirements of the New York Stock Exchange, or (c) as have already
been obtained.
Section 3.10 No
Violations or Defaults. Neither the Company nor any of its subsidiaries is (i) in violation of its charter, bylaws or similar
organizational document or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it
or any of its properties may be bound, except, in the case of this clause (ii), for such defaults that could not be reasonably expected
to result in a Material Adverse Effect immediately after any sale of Common Shares under this Agreement, the aggregate amount of Common
Stock that has been issued or sold under this Agreement will not exceed the aggregate amount of Common Stock registered under the Registration
Statement (in this regard, the Company acknowledges and agrees that neither the Sales Agents nor the Forward Purchasers or the Forward
Sellers shall have any responsibility for maintaining records with respect to the aggregate amount of Common Shares sold, or of otherwise
monitoring the availability of Common Stock for sale, under the Registration Statement).
Section 3.11 Legal
Proceedings. Other than as set forth in the Registration Statement and the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of which any property or other assets of the Company or any of its
subsidiaries is the subject which could reasonably be expected to have a Material Adverse Effect; and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
Section 3.12 Investment
Company. The Company is not and, after giving effect to the offering and sale of the Common Shares, will not be required to be registered
as, an "investment company", as such term is defined in the Investment Company Act of 1940, as amended.
Section 3.13 Independent
Public Accountants. Ernst & Young LLP, who have certified certain financial statements of the Company and its subsidiaries
and certain properties acquired by the Company and its subsidiaries, are independent registered public accountants as required by the
Securities Act.
Section 3.14 Tax
Returns. The Company and its subsidiaries have filed all federal, state, local and foreign income tax returns which have been required
to be filed (except in any case in which the failure to so file would not result in a Material Adverse Effect) and have paid all taxes
required to be paid and any other assessment, fine or penalty levied against them, to the extent that any of the foregoing would otherwise
be delinquent, except, in all cases, for any such tax, assessment, fine or penalty that is being contested in good faith and except in
any case in which the failure to so pay would not result in a Material Adverse Effect.
Section 3.15 Qualification
as a REIT. Commencing with the Company's taxable year ended December 31, 1996, the Company has been, and upon the sale of the
Common Shares will be, organized and operated in conformity with the requirements for qualification and taxation as a "real estate
investment trust" (a "REIT") under Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the
"Code"); the proposed method of operation of the Company as described in the Prospectus will enable the Company to continue
to meet the requirements for qualification and taxation as a REIT under the Code; the Company intends to continue to operate in a manner
which would permit it to qualify as a REIT under the Code; and the Company has no present intention of changing its operations or engaging
in activities which would cause it to fail to qualify, or make economically undesirable its continued qualification, as a REIT.
Section 3.16 Environmental
Laws. Except as set forth in the Registration Statement and the Prospectus, the Company has no knowledge of (i) the presence
of any hazardous substances, hazardous materials, toxic substances or hazardous or toxic wastes (collectively, "Hazardous Materials")
on any of the properties owned by the Company and its subsidiaries in violation of law or in excess of regulatory action levels that could
reasonably be expected to have a Material Adverse Effect or (ii) any unlawful spills, releases, discharges or disposal of Hazardous
Materials that have occurred or are presently occurring on or from such properties as a result of any construction on or operation and
use of such properties, which presence or occurrence could reasonably be expected to have a Material Adverse Effect; and in connection
with the construction on or operation and use of the properties owned by the Company and its subsidiaries, it has no knowledge of any
failure to comply with all applicable local, state and federal environmental laws, regulations, agency requirements, ordinances and administrative
and judicial orders that could reasonably be expected to have a Material Adverse Effect.
Section 3.17 Financial
Condition; No Adverse Change. The consolidated financial statements of the Company, together with the related schedules and notes
thereto, set forth or included or incorporated by reference in the Registration Statement and the Prospectus fairly present in all material
respects the financial condition of the Company and its consolidated subsidiaries as of the dates indicated and the results of operations,
changes in financial position, stockholders' equity and cash flows for the periods therein specified, in conformity with generally accepted
accounting principles consistently applied throughout the periods involved (except as otherwise stated therein); the summary and selected
financial and statistical data included or incorporated by reference in the Registration Statement and the Prospectus present fairly in
all material respects the information shown therein and, to the extent based upon or derived from the financial statements, have been
compiled on a basis consistent with the financial statements presented therein; in addition, to the extent applicable, the pro forma
financial statements of the Company, and the related notes thereto, included or incorporated by reference in the Registration Statement
and the Prospectus present fairly in all material respects the information shown therein, have been prepared in accordance with the Commission's
rules and guidelines with respect to pro forma financial statements and have been properly compiled on the basis described
therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to therein; furthermore, all financial statements required by Rules 3-10 and 3-14
of Regulation S-X ("Rules 3-10 and 3-14") have been included or incorporated by reference in the Registration Statement
and the Prospectus and any such financial statements are in conformity with the requirements of Rules 3-10 and 3-14; and no other
financial statements are required to be set forth or to be incorporated by reference in the Registration Statement or the Prospectus under
the Securities Act.
Section 3.18 Due
Authorization. The Company has full corporate power to enter into this Agreement, each Master Forward Confirmation and each "Supplemental
Confirmation" under each Master Forward Confirmation; this Agreement, each Master Forward Confirmation and each "Supplemental
Confirmation" under each Master Forward Confirmation have been duly authorized by the Company; and this Agreement and each Master
Forward Confirmation have been, and each "Supplemental Confirmation" under each Master Forward Confirmation will be, duly executed
and delivered by the Company.
Section 3.19 No
Reliance. The Company has not relied upon any Sales Agent, Forward Purchaser or Forward Seller, or legal counsel for the Sales Agents,
the Forward Purchasers or the Forward Sellers, for any legal, tax or accounting advice in connection with the offering and sale of the
Common Shares.
Section 3.20 Internal
Accounting Controls. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance 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 generally accepted accounting principles as applied in the
United States and to maintain asset accountability, (iii) access to material assets is permitted only in accordance with management's
general or specific authorization and (iv) the recorded accountability for material assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any material differences.
Section 3.21 Evaluation
of Internal Accounting Controls. As required by Rule 13a-15 under the Exchange Act, the Company's principal executive officer,
principal financial officers, or other persons performing similar functions, have evaluated, as of December 31, 2023, the design
and operations of the disclosure controls and procedures of the Company. Based on this evaluation, the Company's Executive Chairman, Chief
Executive Officer and Chief Financial Officer have concluded that the disclosure controls and procedures effectively ensure that information
required to be disclosed in the Company's filings and submissions with the Commission under the Exchange Act, is accumulated and communicated
to our management (including the principal executive officer and principal financial officer) and is recorded, processed, summarized and
reported within the time periods specified by the Commission. In addition, there have not been any significant changes in the Company's
internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange
Act) that could significantly affect the Company's internal control over financial reporting since December 31, 2023.
Section 3.22 Statistical
and Market-related Data. Any statistical and market-related data included in the Registration Statement and the Prospectus are based
on the Company's own research or derived from external sources that, in either case, the Company believes to be reliable and accurate,
and the Company has obtained the written consent to the use of such data from such sources to the extent required.
Section 3.23 Timely
Filing; Non-affiliated Market Capitalization. During the period of at least the last 12 calendar months prior to the date of this
Agreement, the Company has timely filed with the Commission all documents and other material required to be filed pursuant to Sections
13, 14 and 15(d) under the Exchange Act; during the period of at least the last 12 calendar months preceding the filing of the
Registration Statement, the Company has filed all reports required to be filed pursuant to Sections 13, 14 and 15(d) under the Exchange
Act; and as of the date of this Agreement, the aggregate market value of the Company's Voting Stock held by nonaffiliates of the Company
was equal to or greater than $700 million.
Section 3.24 No
Stabilizing Actions. Neither the Company nor any of its subsidiaries has taken, directly or indirectly, any action designed to or
which might reasonably be expected to cause or result in, or which has constituted or which might reasonably be expected to constitute,
the stabilization or manipulation of the price of any stock of the Company to facilitate the sale or resale of any of the Common Shares.
Section 3.25 Sarbanes-Oxley.
To the Company's knowledge after due inquiry, the Company and its directors and officers, in their respective capacities as such, are
in compliance with all presently applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated
thereunder.
Section 3.26 No
Contribution or Payments. Neither the Company nor any of its subsidiaries nor, to the best of the Company's knowledge, any employee
of the Company or any of its subsidiaries, has made any contribution or other payment to any official of, or candidate for, any federal,
state or foreign office in violation of any law or of the character necessary to be disclosed in the Prospectus in order to make the statements
therein, in the light of the circumstances under which such statements were made, not misleading.
Section 3.27 No
Proceedings. The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or
8(e) of the Securities Act, and the Company is not the subject of a pending proceeding under Section 8A of the Securities Act
in connection with the offering of the Common Shares.
Section 3.28 Actively-Traded
Security. Except under circumstances where the Company has provided the Sales Agents, the Forward Purchasers and the Forward Sellers
with the notice required pursuant to Section 2.06 of this Agreement, the Common Stock is an "actively-traded security"
exempted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Article IV
COVENANTS
The Company covenants and
agrees during the term of this Agreement with the Sales Agents, the Forward Purchasers and the Forward Sellers as follows:
Section 4.01 Registration
Statement and Prospectus. (i) At any time after the date of acceptance of a Placement Notice and prior to the related Settlement
Date, to make no amendment or supplement to the Registration Statement or the Prospectus (other than (x) an amendment or supplement
relating solely to the issuance or offering of securities other than the Common Shares and (y) an amendment or supplement by means
of a Current Report on Form 8-K that does not include financial statements of the Company or an earnings release of the Company filed
with the Commission under the Exchange Act or incorporated or deemed to be incorporated by reference into the Registration Statement or
the Prospectus; provided that the Company will give prior notice to the applicable Sales Agent or Forward Seller of the intention
to file such report and describing the subject matter to be included in such report as soon as reasonably practicable prior to the filing
of such report) at any time prior to having afforded such Sales Agent or Forward Seller a reasonable opportunity to review and comment
thereon; (ii) to prepare, with respect to any Common Shares to be sold pursuant to this Agreement, a Pricing Supplement with respect
to such Common Shares in a form previously approved by the applicable Sales Agent or Forward Seller and to file such Pricing Supplement
pursuant to Rule 424(b) promulgated by the Commission under the Securities Act within the time period required thereby and to
deliver such number of copies of each Pricing Supplement to each exchange or market on which such sales were effected, in each case unless
delivery and filing of such a Pricing Supplement is not required by applicable law or by the rules and regulations of the Commission;
(iii) at any time other than the period after the date of acceptance of a Placement Notice and prior to the related Settlement Date,
to make no amendment or supplement to the Registration Statement or the Prospectus (other than (x) an amendment or supplement relating
solely to the issuance or offering of securities other than the Common Shares and (y) by means of an Annual Report on Form 10-K,
a Quarterly Report on Form 10-Q, a Current Report on Form 8-K or a Registration Statement on Form 8-A or any amendments
thereto filed with the Commission under the Exchange Act or incorporated or deemed to be incorporated by reference into the Registration
Statement or the Prospectus) at any time prior to having afforded the Sales Agents and the Forward Sellers a reasonable opportunity to
review and comment thereon; (iv) to file within the time periods required by the Exchange Act all reports and any definitive proxy
or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act for so long as the delivery of a prospectus is required under the Securities Act or under the blue sky or securities
laws of any jurisdiction in connection with the offering or sale of the Common Shares, and during such same period to advise the Sales
Agents and the Forward Sellers, promptly after the Company receives notice thereof, of the time when an amendment to the Registration
Statement has been filed or has become effective or any supplement to the Prospectus or any amended Prospectus has been filed with the
Commission, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus relating
to the Common Shares, of the suspension of the qualification of the Common Shares for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose or pursuant to Section 8A of the Securities Act, of any request by the Commission
for the amendment or supplement of the Registration Statement or the Prospectus or for additional information, or the receipt of any comments
from the Commission with respect to Registration Statement or the Prospectus (including, without limitation, any documents incorporated
or deemed to be incorporated therein by reference); and (v) in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any such prospectus or suspending any such qualification, to use promptly its commercially reasonable
efforts to obtain its withdrawal.
Section 4.02 Blue
Sky. To use its commercially reasonable efforts to cause the Common Shares and any shares of Common Stock to be issued pursuant to
a Master Forward Confirmation to be listed on the Principal Market and promptly from time to time to take such action as the Sales Agents
or the Forward Sellers may reasonably request; to cooperate with the Sales Agents and the Forward Sellers in the qualification of the
Common Shares for offering and sale under the blue sky or securities laws of such jurisdictions within the United States of America and
its territories as the Sales Agents or the Forward Sellers may reasonably request; and to use its commercially reasonable efforts to comply
with such laws so as to permit the continuance of sales and dealings therein for as long as may be necessary to complete the sale of the
Common Shares; provided, however, that in connection therewith the Company shall not be required to qualify as a
foreign corporation, to file a general consent to service of process or to subject itself to taxation in respect of doing business in
any jurisdiction.
Section 4.03 Copies
of Amendments to the Registration Statement and Prospectus. To furnish the Sales Agents and the Forward Sellers with copies (which
may be electronic copies) of each amendment to the Registration Statement (other than an amendment by means of any document incorporated
or deemed to be incorporated therein by reference and which is available on the Commission's Electronic Data Gathering Analysis and Retrieval
("EDGAR") system), and with copies of the Prospectus and each amendment or supplement thereto (other than an amendment
by means of any document incorporated or deemed to be incorporated therein by reference and which is available on the EDGAR system) in
the form in which it is filed with the Commission pursuant to the Securities Act or Rule 424(b) promulgated by the Commission
under the Securities Act, both in such quantities as the Sales Agents and the Forward Sellers may reasonably request from time to time;
and, if the delivery of a prospectus is required under the Securities Act or under the blue sky or securities laws of any jurisdiction
at any time on or prior to the applicable Settlement Date for any Selling Period in connection with the offering or sale of the Common
Shares and if at such time any event has occurred as a result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it is necessary
during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Sales Agents and the Forward Sellers and
request the Sales Agents and the Forward Sellers to suspend offers to sell Common Shares (and, if so notified, the Sales Agents and the
Forward Sellers shall cease such offers as soon as practicable); and if the Company decides to amend or supplement the Registration Statement
or the Prospectus as then amended or supplemented (other than an amendment by means of any document incorporated or deemed to be incorporated
therein by reference and which is available on the EDGAR system), to advise the Sales Agents and the Forward Sellers promptly by telephone
(with confirmation in writing or e-mail) and to prepare and cause to be filed promptly with the Commission an amendment or supplement
to the Registration Statement or the Prospectus as then amended or supplemented that will correct such statement or omission or effect
such compliance; provided, however, that if during such same period a Sales Agent or a Forward Seller is required
to deliver a prospectus in respect of transactions in the Common Shares, the Company shall promptly prepare and file with the Commission
such an amendment or supplement.
Section 4.04 Rule 158.
To make generally available to its holders of the Common Shares as soon as practicable, but in any event not later than eighteen months
after the initial Effective Date of the Registration Statement (as defined in Rule 158(c) promulgated by the Commission under
the Securities Act), an earnings statement of the Company and its consolidated subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the rules and regulations of the Commission promulgated thereunder (including the
option of the Company to file periodic reports in order to make generally available such earnings statement, to the extent that it is
required to file such reports under Section 13 or Section 15(d) of the Exchange Act, pursuant to Rule 158 promulgated
by the Commission under the Securities Act).
Section 4.05 Information.
Except where such reports, communications, financial statements or other information are available on the EDGAR system, to furnish to
the Sales Agents and the Forward Sellers (in paper or electronic format) copies of all publicly available reports or other communications
(financial or other) furnished generally to stockholders and filed with the Commission pursuant to the Exchange Act, and furnish to the
Sales Agents and the Forward Sellers (in paper or electronic format) and, promptly after they are available, copies of any publicly available
reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities
of the Company is listed; and furnish to the Sales Agents and the Forward Sellers (in paper or electronic format) such additional publicly
available information concerning the business and financial condition of the Company as the Sales Agents or the Forward Sellers may from
time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and
its subsidiaries are consolidated in reports furnished to its stockholders generally or to the Commission).
Section 4.06 Representations
and Warranties. That each delivery of a Placement Notice, each date of acceptance of a Placement Notice and each delivery of Common
Shares on a Settlement Date shall be deemed to be (i) an affirmation to the applicable Sales Agent, Forward Purchaser and Forward
Seller, as the case may be, that the representations and warranties of the Company contained in or made pursuant to this Agreement or
the Master Forward Confirmation are true and correct as of the date of such Placement Notice, the date of acceptance of such Placement
Notice, the date of such Settlement Date, as the case may be, as though made at and as of each such date, except as may be disclosed in
the Registration Statement and the Prospectus (including any documents incorporated by reference therein and any supplements thereto),
and (ii) an undertaking that the Company will advise such Sales Agent, Forward Purchaser and Forward Seller, as the case may be,
if any of such representations and warranties will not be true and correct as of the relevant Settlement Date for the Common Shares relating
to such Placement Notice, as though made at and as of each such date (except that such representations and warranties shall be deemed
to relate to the Registration Statement and the Prospectus as amended and supplemented relating to such Common Shares).
Section 4.07 Opinions
of Counsel. That each time the Registration Statement or the Prospectus is amended or supplemented (other than by (x) an amendment
or supplement relating solely to the offering of securities other than the Common Shares, (y) a Pricing Supplement or (z) a
Current Report on Form 8-K, unless, in the case of (y) and (z), reasonably requested by the Sales Agents, the Forward Purchasers
or the Forward Sellers within five (5) business days of the filing thereof with the Commission), including by means of an Annual
Report on Form 10-K or a Quarterly Report on Form 10-Q filed with the Commission under the Exchange Act and incorporated or
deemed to be incorporated by reference into the Registration Statement and the Prospectus, the Company shall as soon as practicable thereafter
furnish or cause to be furnished forthwith to the Sales Agents, the Forward Purchasers and the Forward Sellers a written opinion of each
of Morrison & Foerster LLP, counsel for the Company, and Venable LLP, Maryland counsel for the Company, each dated the date of
such amendment, supplement or incorporation and in form reasonably satisfactory to the Sales Agents, the Forward Purchasers and the Forward
Sellers, (i) if each counsel has previously furnished an opinion to the effect set forth in Exhibit B(i) and (ii) hereto,
to the effect that the Sales Agents, the Forward Purchasers and the Forward Sellers may rely on such previously furnished opinions of
each counsel to the same extent as though they were dated the date of such letters authorizing reliance (except that the statements in
such last opinions shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such date)
or (ii) if each counsel has not previously furnished an opinion to the effect set forth in Exhibit B(i) and (ii) hereto,
of the same tenor as such an opinion of each counsel but modified to relate to the Registration Statement and the Prospectus as amended
and supplemented to such date; provided, however, that the Company shall have the right in its sole discretion to
suspend the delivery of all such opinions and negative assurance letters otherwise required by this Section 4.07 if a Selling Period
is not then in effect and the Settlement Date has occurred for all Common Shares previously sold pursuant to this Agreement.
Section 4.08 Comfort
Letters. That each time the Registration Statement or the Prospectus is amended or supplemented, including by means of an Annual Report
on Form 10-K, a Quarterly Report on Form 10-Q or a Current Report on Form 8-K (but only a Current Report on Form 8-K
that contains financial statements of the Company filed with the Commission under the Exchange Act and incorporated or deemed to be incorporated
by reference into the Registration Statement and the Prospectus, in any case to set forth financial information included in or derived
from the Company's financial statements or accounting records) other than an amendment or supplement relating solely to the offering of
securities other than the Common Shares, the Company shall as soon as practicable thereafter cause the independent registered public accounting
firm who has audited the financial statements of the Company included or incorporated by reference in the Registration Statement forthwith
to furnish to the Sales Agents and the Forward Sellers a letter, dated the date of such amendment, supplement or incorporation, as the
case may be, in form reasonably satisfactory to the Sales Agents and the Forward Sellers, of the same tenor as the letter referred to
in Section 5.01(e) but modified to relate to the Registration Statement and the Prospectus as amended or supplemented to the
date of such letter, with such changes as may be necessary to reflect changes in the financial statements and other information derived
from the accounting records of the Company, to the extent such financial statements and other information are available as of a date not
more than five business days prior to the date of such letter; provided, however, that, with respect to any financial
information or other matters, such letter may reconfirm as true and correct at such date as though made at and as of such date, rather
than repeat, statements with respect to such financial information or other matters made in the letter referred to in Section 5.01(e) that
was last furnished to the Sales Agents and the Forward Sellers; provided, however, that the Company shall have the
right in its sole discretion to suspend the delivery of all letters otherwise required by this Section 4.08 if a Selling Period is
not then in effect and the Settlement Date has occurred for all Common Shares previously sold pursuant to this Agreement.
Section 4.09 Officers'
Certificate. That each time the Registration Statement or the Prospectus is amended or supplemented (other than by (x) an amendment
or supplement relating solely to the offering of securities other than the Common Shares, (y) than by a Pricing Supplement or (z) a
Current Report on Form 8-K, unless, in the case of (y) and (z), reasonably requested by the Sales Agents, the Forward Purchaser
or the Forward Sellers within 30 days of the filing thereof with the Commission), including by means of an Annual Report on Form 10-K
or a Quarterly Report on Form 10-Q filed with the Commission under the Exchange Act and incorporated or deemed to be incorporated
by reference into the Registration Statement and the Prospectus, the Company shall as soon as practicable thereafter furnish or cause
to be furnished forthwith to the Sales Agents, the Forward Purchaser and the Forward Sellers a certificate, dated the date of such supplement,
amendment or incorporation, as the case may be, in such form and executed by such officers of the Company as is reasonably satisfactory
to the Sales Agents, the Forward Purchasers and the Forward Sellers, of the same tenor as the certificate referred to in Section 2.02(ii) but
modified to relate to the Registration Statement and the Prospectus as amended and supplemented to such date; provided, however,
that the Company shall have the right in its sole discretion to suspend the delivery of all such certificates otherwise required
by this Section 4.09 if a Selling Period is not then in effect and the Settlement Date has occurred for all Common Shares previously
sold pursuant to this Agreement.
Section 4.10 Market
Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes
or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Common Shares or (ii) sell, bid for or purchase the Common Shares, or pay anyone any compensation for soliciting
purchases of the Common Shares other than the Sales Agents, the Forward Purchasers or the Forward Sellers.
Section 4.11 Maximum
Program Amount. The Company will promptly notify the Sales Agents, the Forward Purchasers and the Forward Sellers when the Maximum
Program Amount has been sold pursuant to this Agreement.
Section 4.12 Due
Diligence Cooperation. The Company will cooperate with any due diligence review conducted by the Sales Agents and the Forward Sellers
or their respective counsel in connection with the transactions contemplated hereby, including, without limitation, providing information
and making available documents and senior corporate officers, during regular business hours and at the Company's principal offices, as
the Sales Agents or the Forward Sellers may reasonably request in accordance with guidelines mutually agreed between the parties.
Section 4.13 Use
of Proceeds. The Company will use the net proceeds received from the sale of the Common Shares in the manner specified in the Prospectus
under the caption "Use of Proceeds."
Section 4.14 Replacement
Registration Statements. To the extent any Common Shares remain unsold under this Agreement, the Company shall notify the Sales Agents,
the Forward Purchasers and the Forward Sellers in writing immediately upon becoming aware that no registration statement is in effect
with respect to the offer and sale of the Common Shares and shall not deliver a Placement Notice to any Sales Agent, Forward Purchaser
or Forward Seller (A) during any period in which there is not a registration statement in effect with respect to the offer and sale
of the Common Shares or (B) that would require any Sales Agent or Forward Seller to offer or sell Common Shares during any period
in which there is not a registration statement in effect with respect to the offer and sale of the Common Shares. At any time before or
after the third anniversary of the initial Effective Date of the Registration Statement, the Company may file a new registration statement
(a "Replacement Registration Statement") with the Commission and a prospectus supplement (the "Replacement Prospectus"),
in form and substance satisfactory to the Sales Agents and the Forward Sellers. The Company shall promptly notify the Sales Agents, the
Forward Purchasers and the Forward Sellers in writing of the effectiveness of any Replacement Registration Statement and the filing of
the Replacement Prospectus and, following delivery of such notice, references herein to the "Registration Statement" and "Prospectus"
shall refer to such Replacement Registration Statement and Replacement Prospectus, as applicable, in lieu of the Registration Statement
and Prospectus as defined herein or the predecessor Replacement Registration Statement and Replacement Prospectus, as the case may be.
Article V
CONDITIONS TO DELIVERY OF PLACEMENT NOTICES
AND TO SETTLEMENT
Section 5.01 Conditions
Precedent to the Right of the Company to Deliver a Placement Notice and the Obligation of a Sales Agent and a Forward Seller to Sell Common
Shares During the Selling Period(s). The right of the Company to deliver a Placement Notice hereunder is subject to the satisfaction,
on the date of delivery of such Placement Notice, and the obligations of a Sales Agent to sell Issuance Shares and a Forward Seller to
sell, on behalf of the Company, and a Forward Purchaser to borrow the Forward Hedge Shares during the applicable Selling Period pursuant
to a Placement Notice hereunder is subject to the satisfaction, on the date of acceptance of such Placement Notice and the Settlement
Date, of each of the following conditions:
(a) Effective
Registration Statement and Authorizations. The Registration Statement shall remain effective and sales of all of the Common Shares
(including all of the Common Shares issued with respect to all prior Issuances and Forwards and all of the Common Shares expected to be
issued in connection with the Issuance or the Forward specified by the current Placement Notice) may be made by the Sales Agents or the
Forward Sellers thereunder, and (i) no stop order suspending the effectiveness of the Registration Statement shall have been issued
and no proceeding for that purpose shall have been initiated or, to the Company's knowledge, threatened by the Commission; (ii) no
other suspension of the use or withdrawal of the effectiveness of the Registration Statement or Prospectus shall exist; (iii) all
requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the
Sales Agents and the Forward Sellers; and (iv) no event specified in Section 4.03 shall have occurred and be continuing without
the Company amending or supplementing the Registration Statement or the Prospectus as provided in Section 4.03.
(b) Accuracy
of the Company's Representations and Warranties. The representations and warranties of the Company shall be true and correct as of
the Closing Date, as of the applicable date referred to in Section 4.09 that is prior to such Placement Date or Settlement Date,
as the case may be, and as of such Placement Date and Settlement Date as though made at such time.
(c) Material
Adverse Changes. Since the date of this Agreement, no event that had or is reasonably likely to have a Material Adverse Effect shall
have occurred that has not been disclosed in the Registration Statement or the Prospectus (including the documents incorporated by reference
therein and any supplements thereto).
(d) No
Suspension of Trading In or Delisting of Common Stock; Other Events. The trading of the Common Stock (including without limitation
the Common Shares) shall not have been suspended by the Commission, the Principal Market or the Financial Industry Regulatory Authority
since the immediately preceding Settlement Date or, if there has been no Settlement Date, the Closing Date, and the Common Stock (including
without limitation the Common Shares) shall have been approved for listing or quotation on and shall not have been delisted from the Principal
Market. There shall not have occurred (and be continuing in the case of occurrences under clauses (i) and (ii) below) any of
the following: (i) if trading generally on the Principal Market or The Nasdaq Stock Market has been suspended or materially limited,
or minimum and maximum prices for trading have been fixed, or maximum ranges for prices have been required, by either of said exchanges
or by such system or by order of the Commission, the Financial Industry Regulatory Authority or any other governmental authority, or a
material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (ii) a
general moratorium on commercial banking activities in New York declared by either federal or New York state authorities; or (iii) any
material adverse change in the financial markets in the United States or in the international financial markets, any outbreak or escalation
of hostilities or other calamity or crisis involving the United States or the declaration by the United States of a national emergency
or war or any change or development involving a prospective change in national or international political, financial or economic conditions,
if the effect of any such event specified in this clause (iii) in the sole judgment of the applicable Sales Agent or Forward Seller
makes it impracticable or inadvisable to proceed with the sale of Common Shares.
(e) Comfort
Letter. On the Closing Date and on each applicable date referred to in Section 4.08 that is on or prior to such Placement Date
or Settlement Date, as the case may be, the independent registered public accounting firm who has audited the financial statements of
the Company included or incorporated by reference in the Registration Statement shall have furnished to the Sales Agents and the Forward
Sellers, as applicable, a letter, dated the Closing Date or such applicable date, in accordance with the terms of Section 4.08.
(f) No
Defaults. The execution and delivery of this Agreement, each Master Forward Confirmation and each "Supplemental Confirmation"
under each Master Forward Confirmation and the issuance or sale of the Common Shares and the compliance by the Company with all of the
provisions hereof and thereof will not result in the Company or any of the Material Subsidiaries being in default of (whether upon the
passage of time, the giving of notice or both) its organizational and other governing documents, or any provision of any security issued
by the Company or any of its Material Subsidiaries, or of any agreement, instrument or other undertaking to which the Company or any of
its Material Subsidiaries is a party or by which it or any of its property or assets is bound, or the applicable provisions of any law,
statute, rule, regulation, order, writ, injunction, judgment or decree of any court or governmental authority to or by which the Company,
any of its Material Subsidiaries or any of their property or assets is bound, in each case which default, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
(g) Trading
Cushion. The Selling Period for any previous Placement Notice delivered under this Agreement shall have expired.
(h) Maximum
Issuance Amount. In no event may the Company issue a Placement Notice to sell an Issuance Amount or a Forward Hedge Amount, as the
case may be, to the extent that the sum of (x) the Sales Price of the requested Issuance Amount or the Forward Hedge Amount, as applicable,
plus (y) the aggregate Sales Price of all Common Shares issued under all previous Issuances and Forwards effected pursuant
to this Agreement would exceed the Maximum Program Amount.
(i) Prospectus
Supplement and Pricing Supplement. (i) A supplement to the prospectus included in the Registration Statement (the "Prospectus
Supplement"), in form and substance to be agreed upon by the Sales Agents and the Forward Sellers, setting forth information
regarding this Agreement and each Master Forward Confirmation including, without limitation, the Maximum Program Amount, shall have been
filed with the Commission pursuant to Rule 424(b) promulgated by the Commission under the Securities Act within the time period
required thereby and sufficient copies thereof delivered to the Sales Agents or the Forward Sellers, as applicable, on or prior to the
date of sale of the Issuance Shares or the Forward Hedge Shares, as applicable. (ii) To the extent required by Section 4.01(ii),
a Pricing Supplement, in form and substance to be agreed upon by the Sales Agents and the Forward Sellers, shall have been filed with
the Commission pursuant to Rule 424(b) promulgated by the Commission under the Securities Act within the time period required
thereby and sufficient copies thereof delivered to the applicable Sales Agent or Forward Seller on or prior to the date of sale of the
Issuance Shares or the Forward Hedge Shares, as applicable.
(j) Counsel
Letter. (i) The counsel specified in Section 4.07, or other counsel selected by the Company and reasonably satisfactory
to the Sales Agents, the Forward Purchasers and the Forward Sellers, shall have furnished to the Sales Agents, the Forward Purchasers
and the Forward Sellers their written opinion, dated the Closing Date and each applicable date referred to in Section 4.07 that is
on or prior to such Placement Date or Settlement Date, as the case may be, to the effect required by Section 4.07; and (ii) Clifford
Chance US LLP, counsel for the Sales Agents, shall have furnished to the Sales Agents, the Forward Purchasers and the Forward Sellers
its written opinion and negative assurance letter in form and substance satisfactory to the Sales Agents, the Forward Purchasers and the
Forward Sellers dated the Closing Date and before each Placement Date or Settlement Date, as the case may be; provided that (x) if
such counsel has previously furnished opinions and (in the case of the Sales Agents and the Forward Sellers) negative assurance letters
to the effect set forth in Exhibit C, such counsel shall have furnished to the Sales Agents, the Forward Purchasers and the Forward
Sellers a letter or letters to the effect that the Sales Agents, the Forward Purchasers and the Forward Sellers may rely on such previously
furnished opinions and negative assurance letters of such counsel to the same extent as though they were dated the date of such letter
authorizing reliance (except that the statements in such last opinions and negative assurance letters shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such date).
(k) Officers'
Certificate. The Company shall have furnished or caused to be furnished to the Sales Agents, the Forward Purchasers and the Forward
Sellers an officers' certificate executed by the Chief Executive Officer and the Chief Financial Officer of the Company, dated the Closing
Date and each applicable date referred to in Section 4.09 that is on or prior to such Placement Date or Settlement Date, as the case
may be, as to the matters specified in Section 2.02(ii).
(l) Other
Documents. On the Closing Date and prior to each Placement Date and Settlement Date, the Sales Agents, the Forward Purchasers and
the Forward Sellers and their respective counsel shall have been furnished with such documents as any of them may reasonably require in
order to evidence the accuracy and completeness of any of the representations or warranties, or the fulfillment of the conditions, herein
contained; and all proceedings taken by the Company in connection with the issuance or sale of the Common Shares as herein contemplated
shall be satisfactory in form and substance to the Sales Agents, the Forward Purchasers and the Forward Sellers and their respective counsel.
Section 5.02 Documents
Required to be Delivered on each Placement Date. Obligations of a Sales Agent or a Forward Seller to sell Common Shares or of a Forward
Purchaser to borrow shares of Common Stock pursuant to an Issuance or a Forward, as applicable, hereunder shall additionally be conditioned
upon the delivery to such Sales Agent or Forward Seller and such Forward Purchaser, as applicable, on or before the Placement Date of
a certificate in form and substance reasonably satisfactory to such Sales Agent or Forward Seller and such Forward Purchaser, executed
by the Chief Executive Officer or the Chief Financial Officer of the Company, to the effect that all conditions to the delivery of such
Placement Notice shall have been satisfied as at the date of such certificate (which certificate shall not be required if the foregoing
representations shall be set forth in the Placement Notice).
Section 5.03 Suspension
of Sales. The Company or the applicable Sales Agent, Forward Purchaser and Forward Seller may, upon notice to the other parties by
telephone or by e-mail (in each case, confirmed immediately by verifiable facsimile transmission), suspend any sale of Common Shares,
and the Selling Period shall immediately terminate; provided, however, that such suspension and termination shall
not affect or impair any party's obligations with respect to any Common Shares sold hereunder prior to the receipt of such notice. The
Company agrees that no such notice shall be effective against such Sales Agent, Forward Purchaser or Forward Seller unless it is made
to one of the representatives of such Sales Agent, Forward Purchaser or Forward Seller named on Schedule 1, as such Schedule may be amended
from time to time. Each Sales Agent, Forward Purchaser and Forward Seller agrees that no such notice shall be effective against the Company
unless it is made to one of the representatives of the Company named on Schedule 1, as such Schedule may be amended from time to time.
Article VI
INDEMNIFICATION AND CONTRIBUTION
Section 6.01 Indemnification
by the Company. The Company agrees to indemnify and hold harmless each of the Sales Agents, the Forward Purchasers, the Forward Sellers,
each of their respective officers, directors and managing members, and each Person, if any, who controls a Sales Agent, a Forward Purchaser
or a Forward Seller within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (the "Controlling
Person"), from and against any and all losses, claims, damages or liabilities, and any action or proceeding in respect thereof,
to which the Sales Agents, the Forward Purchasers or the Forward Sellers, and each of their respective officers, directors and managing
members, and any such Controlling Person may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of, or are based upon, any untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement, the Prospectus or any other prospectus relating to
the Common Shares, or any amendment or supplement thereto, or arise out of, or are based upon, any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus or any
amendment or supplement thereto, in light of the circumstances in which they were made) not misleading, except insofar as the same are
made in reliance upon and in conformity with information related to the Sales Agents, the Forward Purchasers or the Forward Sellers, as
applicable, or their respective plan of distribution furnished in writing to the Company by or on behalf of the Sales Agents, the Forward
Purchasers or the Forward Sellers, as applicable, expressly for use therein (it being understood that such information consists solely
of the information specified in Section 6.02), and the Company shall reimburse the Sales Agents, the Forward Purchasers and the Forward
Sellers, their respective officers, directors and managing members, and each Controlling Person for any reasonable legal and other expenses
incurred thereby in investigating or defending or preparing to defend against any such losses, claims, damages or liabilities, or actions
or proceedings in respect thereof, as such expenses are incurred.
Section 6.02 Indemnification
by the Sales Agents, the Forward Purchasers and the Forward Sellers. Each Sales Agent, Forward Purchaser and Forward Seller severally
and not jointly, agrees to indemnify and hold harmless the Company, its officers, directors and managing members, and each Person, if
any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each
a "Company Controlling Person"), from and against any losses, claims, damages or liabilities, and any action or proceeding
in respect thereof, to which the Company, its officers, directors or managing members, any such controlling Person and any officer, director
or managing member of such controlling Person may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or action or proceeding in respect thereof) arise out of, or are based upon, any untrue statement
or alleged untrue statement of a material fact contained in the Registration Statement, the Prospectus or any other prospectus relating
to the Common Shares, or any amendment or supplement thereto, or arise out of, or are based upon, any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus
or any other prospectus relating to the Common Shares, or any amendment or supplement thereto, in light of the circumstances in which
they were made) 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 therein in reliance upon and in conformity with information concerning the Sales Agents, the
Forward Purchasers or the Forward Sellers, as applicable, furnished in writing to the Company by or on behalf of the Sales Agents, the
Forward Purchasers or the Forward Sellers, as applicable, expressly for use therein, it being understood and agreed upon that such information
as of the date hereof shall consist solely of the legal name of each of the Sales Agents, the Forward Purchasers and the Forward Sellers
under the caption "Plan of Distribution" in the Prospectus Supplement dated the date hereof. The Sales Agents, the Forward Purchasers
and the Forward Sellers shall reimburse the Company, its officers, directors, employees and agents and each Company Controlling Person
for any reasonable legal and other expenses incurred thereby in investigating or defending or preparing to defend against any such losses,
claims, damages or liabilities, or actions or proceedings in respect thereof, as such expenses are incurred.
Section 6.03 Conduct
of Indemnification Proceedings. Promptly after receipt by any Person (an "Indemnified Party") of notice of any claim
or the commencement of any action in respect of which indemnity may be sought pursuant to Section 6.01 or 6.02, the Indemnified Party
shall, if a claim in respect thereof is to be made against the Person against whom such indemnity may be sought (an "Indemnifying
Party"), notify the Indemnifying Party in writing of the claim or the commencement of such action. In the event an Indemnified
Party shall fail to give such notice as provided in this Section 6.03 and the Indemnifying Party to whom notice was not given was
unaware of the proceeding to which such notice would have related and was materially prejudiced by the failure to give such notice, the
indemnification provided for in Sections 6.01 or 6.02 shall be reduced to the extent of any actual prejudice resulting from such failure
to so notify the Indemnifying Party; provided 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 Section 6.01 or 6.02. If any such claim or action shall be brought
against an Indemnified Party, the Indemnifying Party shall be entitled to participate therein, and, to the extent that it wishes, jointly
with any other similarly notified Indemnifying Party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified
Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such claim or action,
the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified
Party in connection with the defense thereof other than reasonable costs of investigation; provided that the Indemnified Party
shall have the right to employ separate counsel to represent the Indemnified Party, but the fees and expenses of such counsel shall be
for the account of such Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party shall have mutually agreed
to the retention of such counsel, (ii) the Indemnifying Party shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense or (iii) such Indemnified Party reasonably concludes that representation
of both parties by the same counsel would be inappropriate due to actual or potential conflicts of interest with the Company, it being
understood, however, that the Indemnifying Party shall not, in connection with any one such claim or action or separate but substantially
similar or related claims or actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable
for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for all Indemnified
Parties or for fees and expenses that are not reasonable. No Indemnifying Party shall, without the prior written consent of the Indemnified
Party, effect any settlement of any claim or pending or threatened proceeding in respect of which the Indemnified Party is or could have
been a party and indemnification could have been sought hereunder by such Indemnified Party unless such settlement includes an unconditional
release of each such Indemnified Party from all losses, claims, damages or liabilities arising out of such claim or proceeding and such
settlement does not admit or constitute an admission of fault, guilt, failure to act or culpability on the part of any such Indemnified
Party. Whether or not the defense of any claim or action is assumed by an Indemnifying Party, such Indemnifying Party will not be subject
to any liability for any settlement made without its prior written consent, which consent will not be unreasonably withheld.
Section 6.04 Contribution.
If for any reason the indemnification provided for in this Article VI is unavailable to the Indemnified Parties in respect of any
losses, claims, damages or liabilities referred to herein, then each Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities as
between the Company, on the one hand, and the Sales Agents, the Forward Purchasers and the Forward Sellers, on the other hand, in such
proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Sales Agents, the Forward
Purchasers and the Forward Sellers, on the other hand, from the offering of the Common Shares to which such losses, claims, damages or
liabilities relate. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then
each Indemnifying Party shall contribute to such amount paid or payable by such Indemnifying Party in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the Company and of the Sales Agents, the Forward Purchasers
and the Forward Sellers in connection with such statements or omissions, as well as any other relevant equitable considerations. The relative
benefits received by each of the Company, a Sales Agent, a Forward Purchaser and a Forward Seller shall be equal to the sum, for each
Issuance or Forward under this Agreement, of (a) in the case of the Company, (x) the Actual Sold Forward Amount for each Forward
under this Agreement, multiplied by the Forward Hedge Price for such Forward, and (y) the Actual Sold Issuance Amount for each Issuance
under this Agreement, multiplied by the Issuance Price for such Issuance, (b) in the case of a Sales Agent, the Actual Sold Issuance
Amount for each Issuance under this Agreement, multiplied by the Issuance Selling Commission for such Issuance, (c) in the case of
a Forward Seller, the Actual Sold Forward Amount for each Forward under this Agreement, multiplied by the Forward Hedge Selling Commission
for such Forward, and (d) in the case of a Forward Purchaser, the net Spread (as such term is defined in its Master Forward Confirmation
and net of any related stock borrow costs or other costs or expenses actually incurred) for each Forward Contracts executed in connection
with this Agreement. The relative fault of the Company, on the one hand, and of the Sales Agents, the Forward Purchasers and the Forward
Sellers, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a material fact relates to information supplied by each such party, and the
parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
Each of the Company, the Sales
Agents, the Forward Purchasers and the Forward Sellers agree that it would not be just and equitable if contribution pursuant to this
Section 6.04 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages or liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations
set forth above, any reasonable legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this Section 6.04, (i) no Sales Agent or Forward Seller
shall in any event be required to contribute any amount in excess of the aggregate Issuance Selling Commissions or the aggregate Forward
Hedge Selling Commissions, as applicable, received by it under this Agreement and (ii) a Forward Purchaser shall in no event be required
to contribute any amount in excess of the net Spread (as such term is defined in its Master Forward Confirmation and net of any related
stock borrow costs or other costs or expenses actually incurred) for all Forward Contracts executed in connection with this Agreement.
No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any Person who was not guilty of such fraudulent misrepresentation. The obligations of the Sales Agents, the Forward
Purchasers and the Forward Sellers under this Section 6.04 are several and not joint.
Article VII
TERMINATION
Section 7.01 Term.
Subject to the provisions of this Article VII, the term of this Agreement shall run until the end of the Commitment Period.
Section 7.02 Termination
by the Sales Agent, the Forward Purchaser or the Forward Seller. Each Sales Agent, Forward Purchaser or Forward Seller may terminate
the right of the Company to effect any Issuances or Forwards under this Agreement:
(a) upon
one (1) Trading Day's notice if any of the following events shall occur:
(i) the
Company or any Material Subsidiary shall make an assignment for the benefit of creditors, or apply for or consent to the appointment of
a receiver or trustee for it or for all or substantially all of its property or business; or such a receiver or trustee shall otherwise
be appointed;
(ii) bankruptcy,
insolvency, reorganization or liquidation proceedings or other proceedings for relief under any bankruptcy law or any law for the relief
of debtors shall be instituted by or against the Company or any of its Material Subsidiaries;
(iii) the
Company shall fail to maintain the listing of the Common Stock on the Principal Market; or
(iv) since
the Effective Date, there shall have occurred any event, development or state of circumstances or facts that has had or would reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect; or
(b) if
such Sales Agent, Forward Purchaser or Forward Seller, as the case may be, shall have given ten (10) days' notice of its election
to terminate this Agreement, in its sole discretion, at any time.
Any such termination shall have no effect on the
obligations of any other Sales Agent, Forward Purchaser or Forward Seller under this Agreement.
Section 7.03 Termination
by the Company. The Company shall have the right, by giving one (1) Trading Day's notice as hereinafter specified, to terminate
this Agreement in its sole discretion at any time; provided that with respect to any pending sale, the obligations of the Company,
including in respect of compensation of the applicable Sales Agent or Forward Seller for such sale and in respect of the related Forward
Contract, shall remain in full force and effect notwithstanding such termination. After delivery of such notice, the Company shall no
longer have any right to deliver any Placement Notices hereunder.
Section 7.04 Liability;
Provisions that Survive Termination. If this Agreement is terminated pursuant to this Article VII, such termination shall be
without liability of any party to any other party except as provided in Section 9.02 and for the obligations of the Company, the
Sales Agents, the Forward Purchasers and the Forward Sellers in respect of all prior Placement Notices, and provided that in any
case the provisions of Article VI, Article VIII and Article IX shall survive termination of this Agreement without limitation.
Article VIII
REPRESENTATIONS AND WARRANTIES TO SURVIVE DELIVERY
All representations and warranties
of the Company herein or in certificates delivered pursuant hereto shall remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of a Sales Agent, a Forward Purchaser or a Forward Seller and its respective officers, directors, employees
and agents and any Controlling Persons, (ii) delivery and acceptance of the Common Shares and payment therefor, (iii) the settlement
of any Forward Contract or (iv) any termination of this Agreement or a Master Forward Confirmation.
Article IX
MISCELLANEOUS
Section 9.01 Press
Releases and Disclosure. The Company may issue a press release describing the material terms of the transactions contemplated hereby
as soon as practicable following the Closing Date, and may file with the Commission a Current Report on Form 8-K describing the material
terms of the transactions contemplated hereby, and the Company shall consult with the Sales Agents, the Forward Purchaser and the Forward
Sellers prior to making such disclosures, and the parties shall use all commercially reasonable efforts, acting in good faith, to agree
upon a text for such disclosures that is reasonably satisfactory to all parties. No party hereto shall issue thereafter any press release
or like public statement (including, without limitation, any disclosure required in reports filed with the Commission pursuant to the
Exchange Act) related to this Agreement or a Master Forward Confirmation or any of the transactions contemplated hereby or thereby without
the prior written approval of the other parties hereto, except as may be necessary or appropriate in the opinion of the party seeking
to make disclosure to comply with the requirements of applicable law or stock exchange rules. If any such press release or like public
statement is so required, the party making such disclosure shall consult with the other party prior to making such disclosure, and the
parties shall use all commercially reasonable efforts, acting in good faith, to agree upon a text for such disclosure that is reasonably
satisfactory to all parties.
Section 9.02 Expenses.
(a) The
Company covenants and agrees with the Sales Agents, the Forward Purchasers and the Forward Sellers that the Company shall pay or cause
to be paid the following: (i) the fees, disbursements and expenses of the Company's counsel and accountants in connection with the
preparation, printing and filing of the Registration Statement, the Prospectus and any Pricing Supplements and all other amendments and
supplements thereto and the mailing and delivering of copies thereof to the Sales Agents, the Forward Sellers and the Principal Market;
(ii) the cost of printing, preparing or reproducing this Agreement, each Master Forward Confirmation, each "Supplemental Confirmation"
under any Master Forward Confirmation, and any other documents in connection with the offering, purchase, sale and delivery of the Common
Shares; (iii) all filing fees and expenses in connection with the qualification of the Common Shares for offering and sale under
state securities laws as provided in Section 4.02; (iv) the cost of preparing the Common Shares; (v) the fees and expenses
of any transfer agent of the Company; (vi) the cost of providing any CUSIP or other identification numbers for the Common Shares;
(vii) the fees and expenses incurred in connection with the listing or qualification of the Common Shares on the Principal Market
and any filing fees incident to any required review by the Financial Industry Regulatory Authority of the terms of the sale of the Common
Shares in connection with this Agreement, each Master Forward Confirmation and the Registration Statement; and (viii) all other costs
and expenses incident to the performance of the Company's obligations hereunder that are not otherwise specifically provided for in this
Section.
(b) If
an aggregate of $50,000,000 of Common Shares have not been offered and sold under this Agreement by December 31, 2024 (or such earlier
date on which the parties terminate this Agreement), the Company shall reimburse the Sales Agents, the Forward Purchasers and the Forward
Sellers for their reasonable out-of-pocket expenses, including the reasonable fees and disbursements of their respective counsel, incurred
by them in connection with the transactions contemplated by this Agreement; provided, however, that such expenses
for the initial documentation and due diligence will not exceed in the aggregate $150,000, without the prior written consent of the Company,
which consent shall not be unreasonably withheld.
Section 9.03 Notices.
Except as expressly set forth herein, all notices, demands, requests, consents, approvals or other communications required or permitted
to be given hereunder or that are given with respect to this Agreement shall be in writing and shall be personally served or deposited
in the mail, registered or certified, return receipt requested, postage prepaid or delivered by reputable air courier service with charges
prepaid, or transmitted by hand delivery, telegram, e-mail, telex or facsimile, addressed as set forth below, or to such other address
as such party shall have specified most recently by written notice: (i) if to the Company, shall be sufficient in all respects if
delivered by hand or sent by facsimile or certified mail to the Company at the offices of the Company as set forth on the Registration
Statement, Attention: Corporate Secretary; (ii) if to Mizuho, Mizuho Securities USA LLC, 1271 Avenue of the Americas, New York,
New York 10020, Attention: Stephen Roney, Ivana Rupcic-Hulin, Daniel Blake, Email: Stephen.Roney@mizuhogroup.com, Ivana.Rupcic-Hulin@mizuhogroup.com,
Daniel.Blake@mizuhogroup.com, with a copy to: legalnotices@mizuhogroup.com; (iii) if to Baird, Robert W. Baird &
Co. Incorporated, 777 E. Wisconsin Avenue, Milwaukee, Wisconsin 53202, Attention: Syndicate Department; Facsimile No.: 414-298-7474 (with
a copy to the Legal Department); (iv) if to Barclays, Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, Attention:
Syndicate Registration, Facsimile No.: (646) 834-8133; (v) if to BBVA, BBVA Securities Inc., 1345
Avenue of the Americas, New York, NY 10105, Attention: Global
Markets COO, Email: ny.gmcoo.group@bbva.com, With a copy to: ny.legal.services.group@bbva.com;
(vi) if to BMO, BMO Capital Markets Corp., 151 W 42nd Street 32nd Floor New York, NY 10036, Attention: Equity-Linked Capital Markets,
Facsimile: (212) 885-4165; (vii) if to BNPP, BNP Paribas Securities Corp., 787 Seventh Avenue, New York, New York 10019, Attention:
Equity Syndicate Desk, Email: nyk_elo@us.bnpparibas.com, Email: dl.nyk.ste@us.bnpparibas.com; (viii) if to BofA, BofA
Securities, Inc., One Bryant Park, New York, New York 10036, Attention: ATM Execution Team, Email: dg.atm_execution@bofa.com;
(ix) if to BTIG, BTIG, LLC, 65 East 55th Street, New York, New York 10022, Attention: Equity Capital Markets, Email:
BTIGUSATMTrading@btig.com, or BTIG, LLC, 600 Montgomery Street, San Francisco, CA 94111, Attention Equity Capital Markets, Email:
BTIGUSATMTrading@btig.com, in either case with a copy (which shall not constitute notice) to: BTIG, LLC, 600 Montgomery Street,
San Francisco, CA 94111, Attention: General Counsel and Chief Compliance Officer, Email: BTIGcompliance@btig.com, Email: IBLegal@btig.com;
(x) if to Capital One, Capital One Securities, Inc., 201 St. Charles Ave, Suite 1830, New Orleans, Louisiana 70170, Attention:
Gabrielle Halprin, Email: Gabrielle.Halprin@capitalone.com; (xi) if to CGMI, Citigroup Global Markets Inc., 388 Greenwich
Street, New York, New York 10013, Attention: General Counsel, Facsimile No.: (646) 291-1469; (xii) if
to Citizens JMP, Citizens JMP Securities, LLC at 600 Montgomery Street, Suite 1100, San Francisco, California 94111, Attn: Equity
Syndicate (email: syndicate@jmpsecurities.com); (xiii) if to Evercore ISI, Evercore Group L.L.C., 55 East 52nd Street, 35th
Floor, New York, New York 10055, Attention: Equity Capital Markets; (xiv) if to Fifth Third, Fifth Third Securities, Inc.,
424 Church Street, Suite 600, Nashville, Tennessee 37219, Attention: Equity Capital Markets; (xv) Goldman Sachs, Goldman Sachs &
Co., LLC, 200 West Street, New York, New York 10282-2198, Attention: Registration Department; (xvi) if to Jefferies, 520 Madison
Avenue, New York, New York 10022, Attention: General Counsel, with a copy to: CorpEqDeriv@jefferies.com; (xvii) if to J.P.
Morgan, J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179, Attention: Stephanie Little, Email: Stephanie.y.little@jpmorgan.com;
(xviii) if to Nomura Global Financial Products, Inc., 309 West 49th Street, New York, NY 10019, Attention: Structured Equity
Solutions; Email: cedamericas@nomura.com; with a copy to (which shall not constitute notice): Equities Legal, Email: nyequitieslegal@nomura.com;
and to: BTIG, LLC, at the Sales Agreement Notice Addresses for BTIG, LLC provided above; (xix) Nomura Securities International, Inc.
(acting through BTIG, LLC as agent), 309 West 49th Street, New York, NY 10019, Attention: Structured Equity Solutions; Email: cedamericas@nomura.com;
with a copy to (which shall not constitute notice): Equities Legal, Email: Dan.Rosenbaum@nomura.com; and to: BTIG, LLC, as agent
of the Forward Seller, at the Sales Agreement Notice Addresses for BTIG, LLC provided above, if to RBC, RBC Capital Markets, LLC, 200
Vesey Street, 8th Floor, New York, New York 10281, Attention: Equity Capital Markets, Facsimile No.: 212-428-6260; (xx) if to Regions,
Regions Securities LLC, 615 S. College St, Suite 600, Charlotte, North Carolina 28202, Email: ECMDesk@regions.com; (xxi) if
to Scotia, Scotia Capital (USA) Inc., 250 Vesey Street, 24th Floor, New York, New York 10281, Attention: Equity Capital Markets, Facsimile:
212-225-6550 and 212-225-6653, Email: us.ecm@scotiabank.com and us.legal@scotiabank.com; (xxii) if to TD Securities, TD Securities
(USA) LLC, 1 Vanderbilt Avenue, New York, New York 10017, Attention: Equity Capital Markets, Email: TDS_ATM@tdsecurities.com; (xxiii) if
to Truist Securities, 3333 Peachtree Road NE, 11th Floor, Atlanta, Georgia 30326, Attention: Equity Capital Markets, Email: dl.atm.offering@truist.com;
(xxiv) if to Wedbush, Wedbush Securities Inc., 142 W 57th Street, 12th Floor, New York, NY 10019, Attention: WS Investment Banking,
Emails: FIG@wedbush.com, ECM@wedbush.com, and LegalNotices@wedbush.com; and, in the case of (ii) through (xxiv), with a copy to
Clifford Chance US LLP, 31 West 52nd Street, New York, New York 10019, Attention: Andrew S. Epstein, Facsimile No.: 212-878-8375. Except
as set forth in Sections 1.01, 2.03 and 5.03, notice shall be deemed given on the date of service or transmission if personally served
or transmitted by telegram, telex or confirmed facsimile. Notice otherwise sent as provided herein shall be deemed given on the third
(3rd) business day following the date mailed or on the next business day following delivery of such notice to a reputable air courier
service for next day delivery.
Section 9.04 Entire
Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes
all prior and contemporaneous agreements, representations, understandings, negotiations and discussions between the parties, whether oral
or written, with respect to the subject matter hereof.
Section 9.05 Amendment
and Waiver. This Agreement may not be amended, modified, supplemented, restated or waived except by a writing executed by the party
against which such amendment, modification, supplement, restatement or waiver is sought to be enforced; provided, however,
that any Additional Forward Purchaser or any Additional Forward Seller may become a party to this Agreement pursuant to Section 9.06
without requiring such writing or waiver. Waivers may be made in advance or after the right waived has arisen or the breach or default
waived has occurred. Any waiver may be conditional. No waiver of any breach of any agreement or provision herein contained shall be deemed
a waiver of any preceding or succeeding breach thereof nor of any other agreement or provision herein contained. No waiver or extension
of time for performance of any obligations or acts shall be deemed a waiver or extension of the time for performance of any other obligations
or acts.
Section 9.06 Additional
Forward Purchaser; Additional Forward Seller. Any Sales Agent shall have the right, with a prior written consent of the Company, to
become (or cause its affiliate to become) an additional Forward Purchaser ("Additional Forward Purchaser") or an additional
Forward Seller ("Additional Forward Seller") under this Agreement, by (i) executing (or causing its affiliate to
execute) a Master Forward Confirmation between the Company and the applicable Additional Forward Purchaser, (ii) executing (or causing
its affiliate to execute) a joinder to this Agreement (the "Joinder Agreement"), substantially in the form attached as
Exhibit E, by both the applicable Additional Forward Purchaser and the Additional Forward Seller and (iii) notifying all the
parties hereto of such Additional Forward Purchaser and Additional Forward Seller, in accordance with Section 9.03; provided,
however, the Company shall not deliver a Placement Notice to such Additional Forward Purchaser or Additional Forward Seller unless
the Registration Statement and the Prospectus are amended or supplemented to reflect such Additional Forward Purchaser and Additional
Forward Seller, if then required under the Securities Act.
Section 9.07 No
Assignment; No Third Party Beneficiaries. This Agreement and the rights, duties and obligations hereunder may not be assigned or delegated
by the Company or the Sales Agents, the Forward Purchasers or the Forward Sellers; provided, however, that a Sales
Agent, a Forward Purchaser and a Forward Seller may assign their rights, duties and obligations hereunder to an affiliate that is a registered
broker-dealer or banking entity. Any purported assignment or delegation of rights, duties or obligations hereunder shall be void and of
no effect. This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and their
respective successors and, to the extent provided in Article VI, the Controlling Persons, officers, directors and managing members
referred to in Article VI. This Agreement is not intended to confer any rights or benefits on any Persons other than as set forth
in Article VI or elsewhere in this Agreement.
Section 9.08 Severability.
This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the
validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable
term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to
such invalid or unenforceable provision as may be possible and be valid and enforceable.
Section 9.09 Further
Assurances. Each party hereto, upon the request of any other party hereto, shall do all such further acts and execute, acknowledge
and deliver all such further instruments and documents as may be necessary or desirable to carry out the transactions contemplated by
this Agreement.
Section 9.10 Titles
and Headings. Titles, captions and headings of the sections of this Agreement are for convenience of reference only and shall not
affect the construction of any provision of this Agreement.
Section 9.11 Governing
Law; Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY, INTERPRETED UNDER AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES
OF CONFLICTS OF LAWS THEREOF. Any action, suit or proceeding to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby shall be brought in any federal court located in the Southern
District of the State of New York or any New York state court located in the Borough of Manhattan, and the Company agrees to the exclusive
jurisdiction of such courts (and of the appropriate appellate courts therefrom) and each party waives (to the full extent permitted by
law) any objection it may have to the laying of venue of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding has been brought in an inconvenient forum.
Section 9.12 Waiver
of Jury Trial. Each of the Company, the Sales Agents, the Forward Purchasers and the Forward Sellers hereby irrevocably waives any
right it may have to a trial by jury in respect of any claim based upon or arising out of this Agreement or a Master Forward Confirmation
or any transaction contemplated hereby or thereby.
Section 9.13 Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which taken together
shall constitute one and the same instrument. Delivery of an executed Agreement by any party to the others may be made by facsimile transmission.
Electronic signatures complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended
from time to time, or other applicable law will be deemed original signatures for purposes of this Agreement. Transmission by telecopy,
electronic mail or other transmission method of an executed counterpart of this Agreement will constitute due and sufficient delivery
of such counterpart.
Section 9.14 Adjustments
for Stock Splits, Etc. The parties acknowledge and agree that share related numbers contained in this Agreement (including the Floor
Price) shall be equitably adjusted to reflect stock splits, stock dividends, reverse stock splits, combinations and similar events.
Section 9.15 No
Fiduciary Duty. The Company acknowledges and agrees that each of the Sales Agents, the Forward Purchasers and the Forward Sellers
is acting solely in the capacity of an arm's length contractual counterparty to the Company with respect to the offering of Common Shares
contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary
to, or an agent of, the Company or any other Person and will not claim that any Sales Agent, Forward Purchaser or Forward Seller is acting
in such capacity in connection with the offering of the Common Shares contemplated hereby. Additionally, no Sales Agent, Forward Purchaser
or Forward Seller is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction with respect to the transactions contemplated by this Agreement and each Master Forward Confirmation. The Company shall consult
with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the
transactions contemplated hereby and thereby, and no Sales Agent, Forward Purchaser or Forward Seller shall have any responsibility or
liability to the Company with respect thereto. Any review by the Sales Agents, the Forward Purchasers or the Forward Sellers of the Company,
the transactions contemplated hereby and thereby or other matters relating to such transactions will be performed solely for the benefit
of the Sales Agents, the Forward Purchasers or the Forward Sellers, and shall not be on behalf of the Company.
Section 9.16 Recognition
of the U.S. Special Resolution Regimes.
(a) In
the event that any Sales Agent that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from such Sales Agent 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.
(b) In
the event that any Sales Agent that is a Covered Entity or a BHC Act Affiliate of such Sales Agent becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Sales Agent 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.
(c) For
purposes of this Section 9.16, the following definitions apply:
(i) "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).
(ii) "Covered
Entity" means any of the following:
(A) a
"covered entity" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(B) a
"covered bank" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(C) a
"covered FSI" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
(iii) "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.
(iv) "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.
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above.
|
ALEXANDRIA REAL ESTATE EQUITIES, INC. |
|
|
|
|
|
By: |
/s/ March E. Binda |
|
|
Name: |
Marc E. Binda |
|
|
Title: |
Chief Financial Officer and Treasurer |
[Signature Page to the Distribution Agreement]
|
Mizuho SECURITIES USA LLC, |
|
as Sales Agent |
|
|
|
|
|
By: | /s/ Ivana Rupcic-Hulin |
|
|
Name: |
Ivana Rupcic-Hulin |
|
|
Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
ROBERT W. BAIRD & CO. INCORPORATED, |
|
as Sales Agent |
|
|
|
|
|
By: | /s/ Christopher Walter |
|
| Name: |
Christopher Walter |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
Barclays Capital Inc., |
|
as Sales Agent |
|
|
|
|
|
By: | /s/ Warren Fixmer |
|
| Name: |
Warren Fixmer |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
BBVA SECURITIES Inc., |
|
as Sales Agent |
|
|
|
|
|
By: |
/s/ Peter Jensen |
|
| Name: |
Peter Jensen |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
BMO CAPITAL MARKETS CORP., |
|
as Sales Agent |
|
|
|
|
|
By: | /s/ Eric Benedict |
|
| Name: |
Eric Benedict |
|
| Title: |
Co-Head, Global Equity Capital Markets |
[Signature Page to the Distribution Agreement]
|
BNP Paribas Securities Corp., |
|
as Sales Agent |
|
|
|
|
|
By: | /s/ Spencer Cherniak |
|
| Name: |
Spencer Cherniak |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
BofA Securities, Inc., |
|
as Sales Agent |
|
|
|
|
|
By: | /s/ Hicham Hamdouch |
|
| Name: |
Hicham Hamdouch |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
BTIG, LLC, |
|
as Sales Agent |
|
|
|
|
|
By: | /s/ Anthony Wayne |
|
| Name: |
Anthony Wayne |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
Capital One Securities, Inc., |
|
as Sales Agent |
|
|
|
|
|
By: | /s/ Phil Winiecki |
|
| Name: |
Phil Winiecki |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
Citigroup Global Markets Inc., |
|
as Sales Agent |
|
|
|
|
|
By: | /s/ Scott Shelley |
|
| Name: |
Scott Shelley |
|
| Title: |
Vice President |
[Signature Page to the Distribution Agreement]
|
CITIZENS JMP SECURITIES, LLC, |
|
as Sales Agent |
|
|
|
|
|
By: | /s/ Eric Clark |
|
| Name: |
Eric Clark |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
Evercore Group L.L.C., |
|
as Sales Agent, and if applicable, as Forward Seller |
|
|
|
|
|
By: | /s/ Martin J. Cicco |
|
| Name: |
Martin J. Cicco |
|
| Title: |
Senior Advisor |
[Signature Page to the Distribution Agreement]
|
Fifth Third Securities, Inc., |
|
as Sales Agent |
|
|
|
|
|
By: | /s/ Clayton Greene |
|
| Name: |
Clayton Greene |
|
| Title: |
Head of Equity Capital Markets |
[Signature Page to the Distribution Agreement]
|
Goldman Sachs & Co. LLC, |
|
as Sales Agent |
|
|
|
|
|
By: | /s/ Ryan Cunn |
|
| Name: |
Ryan Cunn |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
JEFFERIES LLC, |
|
as Sales Agent |
|
|
|
|
|
By: | /s/ Donald Lynaugh |
|
| Name: |
Donald Lynaugh |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
J.P. Morgan Securities LLC, |
|
as Sales Agent |
|
|
|
|
|
By: | /s/ Sanjeet Dewal |
|
| Name: |
Sanjeet Dewal |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
RBC CAPITAL MARKETS, LLC, |
|
as Sales Agent |
|
|
|
|
|
By: | /s/ Asad Kazim |
|
| Name: |
Asad Kazim |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
REGIONS SECURITIES LLC, |
|
as Sales Agent |
|
|
|
|
|
By: | /s/ Edward L. Armstrong |
|
| Name: |
Edward L. Armstrong |
|
| Title: |
Managing Director - ECM |
[Signature Page to the Distribution Agreement]
|
SCOTIA CAPITAL (USA) INC., |
|
as Sales Agent |
|
|
|
|
|
By: | /s/ Tim Mann |
|
| Name: |
Tim Mann |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
TD SECURITIES (USA) LLC, |
|
as Sales Agent |
|
|
|
|
|
By: | /s/ Brad Limpert |
|
| Name: |
Brad Limpert |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
TRUIST SECURITIES, INC., |
|
as Sales Agent |
|
|
|
|
|
By: | /s/ Geoffrey Fennel |
|
| Name: |
Geoffrey Fennel |
|
| Title: |
Director |
[Signature Page to the Distribution Agreement]
|
WEDBUSH SECURITIES, INC., |
|
as Sales Agent |
|
|
|
|
|
By: | /s/ Burke Dempsey |
|
| Name: |
Burke Dempsey |
|
| Title: |
EVP Head of IBCM |
[Signature Page to the Distribution Agreement]
|
Mizuho Markets Americas LLC, |
|
as Forward Purchaser |
|
|
|
|
|
By: | /s/ Matthew E. Chiavaroli |
|
| Name: |
Matthew E. Chiavaroli |
|
| Title: |
Authorized Signatory |
[Signature Page to the Distribution Agreement]
|
ROBERT W. BAIRD & CO. INCORPORATED, |
|
as Forward Purchaser |
|
|
|
|
|
By: | /s/ Christopher Walter |
|
| Name: |
Christopher Walter |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
BARCLAYS BANK PLC, |
|
as Forward Purchaser |
|
|
|
|
|
By: | /s/ Warren Fixmer |
|
| Name: |
Warren Fixmer |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
Banco Bilbao
Vizcaya Argentaria, S.A., |
|
as Forward Purchaser |
|
|
|
|
|
By: | /s/ Luis Alarcon Gonzalez |
|
| Name: |
Luis Alarcon Gonzalez |
|
| Title: |
Managing Director |
|
| |
|
|
By: | /s/ Annabella Rutigliano |
|
| Name: |
Annabella Rutigliano |
|
| Title: |
Executive Director |
[Signature Page to the Distribution Agreement]
|
BANK OF MONTREAL, |
|
as Forward Purchaser |
|
|
|
|
|
By: | /s/ Brian Riley |
|
| Name: |
Brian Riley |
|
| Title: |
Managing Director, Global Markets |
[Signature Page to the Distribution Agreement]
|
BNP PARIBAS, |
|
as Forward Purchaser |
|
|
|
|
|
By: | /s/ Robert McDonald |
|
|
Name: |
Robert McDonald |
|
|
Title: |
Managing Director |
|
|
|
|
|
By: | /s/ Spencer Cherniak |
|
| Name: |
Spencer Cherniak |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
Bank of america, n.a., |
|
as Forward Purchaser |
|
|
|
|
|
By: | /s/ Rohan Handa |
|
| Name: |
Rohan Handa |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
Nomura Global Financial Products, Inc. |
|
as Forward Purchaser |
|
|
|
|
|
By: | /s/ Jeffrey Petillo |
|
| Name: |
Jeffrey Petillo |
|
| Title: |
Authorized Representative |
[Signature Page to the Distribution Agreement]
|
CANADIAN IMPERIAL BANK OF COMMERCE, |
|
as Forward Purchaser |
|
|
|
|
|
By: | /s/ Brian G. Smith |
|
| Name: |
Brian G. Smith |
|
| Title: |
Authorized Signatory |
[Signature Page to the Distribution Agreement]
|
citibank, n.a., |
|
as Forward Purchaser |
|
|
|
|
|
By: | /s/ Eric Natelson |
|
| Name: |
Eric Natelson |
|
| Title: |
Authorized Signatory |
[Signature Page to the Distribution Agreement]
|
CITIZENS JMP SECURITIES, LLC, |
|
as Forward Purchaser |
|
|
|
|
|
By: | /s/ Eric Clark |
|
| Name: |
Eric Clark |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
GOLDMAN SACHS & CO. LLC, |
|
as Forward Purchaser |
|
|
|
|
|
By: | /s/ Ryan Cunn |
|
| Name: |
Ryan Cunn |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
JEFFERIES LLC, |
|
as Forward Purchaser |
|
|
|
|
|
By: | /s/ Donald Lynaugh |
|
| Name: |
Donald Lynaugh |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
jpmorgan chase bank, national association |
|
as Forward Purchaser |
|
|
|
|
|
By: | /s/ Sanjeet Dewal |
|
| Name: |
Sanjeet Dewal |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
rbc capital markets, llc, |
|
as Agent for |
|
ROYAL BANK OF CANADA, |
|
as Forward Purchaser |
|
|
|
|
|
By: | /s/ Brian Ward |
|
| Name: |
Brian Ward |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
REGIONS SECURITIES LLC, |
|
as Forward Purchaser |
|
|
|
|
|
By: | /s/ Edward L. Armstrong |
|
| Name: |
Edward L. Armstrong |
|
| Title: |
Managing Director - ECM |
[Signature Page to the Distribution Agreement]
|
THE BANK OF NOVA SCOTIA, |
|
as Forward Purchaser |
|
|
|
|
|
By: | /s/ Kshamta Kaushik |
|
| Name: |
Kshamta Kaushik |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
the toronto-dominion bank, |
|
as Forward Purchaser |
|
|
|
|
|
By: | /s/ Vanessa Simonetti |
|
| Name: |
Vanessa Simonetti |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
TRUIST bank, |
|
as Forward Purchaser |
|
|
|
|
|
By: | /s/ J. West Riggs |
|
| Name: |
J. West Riggs |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
Mizuho Securities USA LLC, |
|
as Forward Seller |
|
|
|
|
|
By: | /s/ Ivana Rupcic-Hulin |
|
| Name: |
Ivana Rupcic-Hulin |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
ROBERT W. BAIRD & CO. INCORPORATED, |
|
as Forward Seller |
|
|
|
|
|
By: | /s/ Christopher Walter |
|
| Name: |
Christopher Walter |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
BBVA SECURITIES Inc., |
|
as Forward Seller |
|
|
|
|
|
By: | /s/ Peter Jensen |
|
| Name: |
Peter Jensen |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
Barclays Capital Inc., |
|
as Forward Seller |
|
|
|
|
|
By: | /s/ Warren Fixmer |
|
| Name: |
Warren Fixmer |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
BMO CAPITAL MARKETS Corp., |
|
as Forward Seller |
|
|
|
|
|
By: | /s/ Eric Benedict |
|
| Name: |
Eric Benedict |
|
| Title: |
Co-Head, Global Equity Capital Markets |
[Signature Page to the Distribution Agreement]
|
BNP Paribas Securities Corp., |
|
as Forward Seller |
|
|
|
|
|
By: | /s/ Spencer Cherniak |
|
| Name: |
Spencer Cherniak |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
BofA
Securities, Inc., as agent for bank of america, n.a. |
|
as Forward Seller |
|
|
|
|
|
By: | /s/ Hicham Hamdouch |
|
| Name: |
Hicham Hamdouch |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
NOMURA SECURITIES INTERNATIONAL, INC., |
|
as Forward Seller |
|
|
|
|
|
By: | /s/ Jason Eisenhauer |
|
| Name: |
Jason Eisenhauer |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
CIBC World Markets Corp., |
|
as Forward Seller |
|
|
|
|
|
By: | /s/ Henry Sham |
|
| Name: |
Henry Sham |
|
| Title: |
MD and Head, US FIG |
[Signature Page to the Distribution Agreement]
|
Citigroup Global Markets Inc., |
|
as Forward Seller |
|
|
|
|
|
By: | /s/ Scott Shelley |
|
| Name: |
Scott Shelley |
|
| Title: |
Vice President |
[Signature Page to the Distribution Agreement]
|
CITIZENS JMP SECURITIES, LLC, |
|
as Forward Seller |
|
|
|
|
|
By: | /s/ Eric Clark |
|
| Name: |
Eric Clark |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
Goldman Sachs & Co. LLC, |
|
as Forward Seller |
|
|
|
|
|
By: | /s/ Ryan Cunn |
|
| Name: |
Ryan Cunn |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
JEFFERIES LLC, |
|
as Forward Seller |
|
|
|
|
|
By: | /s/ Donald Lynaugh |
|
| Name: |
Donald Lynaugh |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
J.P. Morgan Securities LLC |
|
as Forward Seller |
|
|
|
|
|
By: | /s/ Sanjeet Dewal |
|
| Name: |
Sanjeet Dewal |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
rbc capital markets, llc, |
|
as Forward Seller |
|
|
|
|
|
By: | /s/ Asad Kazim |
|
| Name: |
Asad Kazim |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
REGIONS SECURITIES LLC, |
|
as Forward Seller |
|
|
|
|
|
By: | /s/ Edward L. Armstrong |
|
| Name: |
Edward L. Armstrong |
|
| Title: |
Managing Director - ECM |
[Signature Page to the Distribution Agreement]
|
Scotia Capital (USA) Inc., |
|
as Forward Seller |
|
|
|
|
|
By: | /s/ Tim Mann |
|
| Name: |
Tim Mann |
|
| Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
TD Securities (USA) LLC, |
|
as Forward Seller |
|
|
|
|
|
By: | /s/ Brad Limpert |
|
|
Name: |
Brad Limpert |
|
|
Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
|
TRUIST SECURITIES, INC. |
|
as Forward Seller |
|
|
|
|
|
By: | /s/ J. West Riggs |
|
|
Name: |
J. West Riggs |
|
|
Title: |
Managing Director |
[Signature Page to the Distribution Agreement]
EXHIBIT A
PLACEMENT NOTICE
[Date]
[Sales Agent]
[Address]
[Attention: [●]]1
[Forward Purchaser]
[Address]
[Attention: [●]]2
[Forward Seller]
[Address]
[Attention: [●]]3
Reference
is made to the Distribution Agreement, dated as of February 15, 2024 (the "Distribution Agreement"), among Alexandria
Real Estate Equities, Inc. (the "Company"), Mizuho Securities USA LLC ("Mizuho"), Robert W. Baird &
Co. Incorporated ("Baird"), Barclays Capital Inc. ("Barclays"), BBVA Securities Inc. ("BBVA"),
BMO Capital Markets Corp. ("BMO"), BNP Paribas Securities Corp. ("BNPP"), BofA Securities, Inc.
("BofA"), BTIG, LLC ("BTIG"), Capital One Securities, Inc. ("Capital One"), Citigroup
Global Markets Inc. ("CGMI"), Citizens JMP Securities, LLC ("Citizens JMP"), Evercore Group L.L.C.
("Evercore ISI"), Fifth Third Securities, Inc. ("Fifth Third"), Goldman Sachs & Co. LLC
("Goldman Sachs"), Jefferies LLC ("Jefferies"), J.P. Morgan Securities LLC ("J.P. Morgan"),
RBC Capital Markets, LLC ("RBC"), Regions Securities LLC ("Regions"), Scotia Capital (USA) Inc. ("Scotia"),
TD Securities (USA) LLC ("TD Securities"), Truist Securities, Inc. ("Truist Securities") and Wedbush
Securities Inc. ("Wedbush" and together with Mizuho, Baird, Barclays, BBVA, BMO, BNPP, BofA, BTcIG, Capital One, CGMI,
Citizens JMP, Evercore ISI, Fifth Third, Goldman Sachs, Jefferies, J.P. Morgan, RBC, Regions, Scotia, TD Securities and Truist Securities
in their capacities as agents for the Company in connection with the offer and sale of any Issuance Shares), Mizuho Markets Americas
LLC, Baird, Barclays Bank PLC, Bank of Montreal, BNP Paribas, Bank of America, N.A., Nomura Global Financial Products, Inc., Canadian
Imperial Bank of Commerce, Citibank, N.A., Citizens JMP, Goldman Sachs & Co. LLC, Jefferies, JPMorgan Chase Bank, National Association,
Royal Bank of Canada, Regions, The Bank of Nova Scotia, The Toronto-Dominion Bank and Truist Bank (in their capacities as counterparties
under any Forward Contract, together with any Additional Forward Purchasers), and Mizuho, Baird, Barclays, BMO, BNPP, BofA, Nomura Securities
International, Inc. (acting through BTIG, LLC as agent), CIBC World Markets Corp., CGMI, Citizens JMP, Evercore ISI, Goldman Sachs,
Jefferies, J.P. Morgan, RBC, Regions, Scotia, TD Securities and Truist Securities (in their capacities as agents for the Forward Purchasers
in connection with the offer and sale of any Forward Hedge Shares, together with any Additional Forward Sellers). Capitalized terms used
herein without definition shall have the respective meanings assigned thereto in the Distribution Agreement. This Placement Notice relates
to [an "Issuance"]/[a "Forward"]. The Company confirms that all conditions to the delivery of this Placement Notice
are satisfied as of the date hereof.
1 Insert for a Placement
Notice that relates to an "Issuance."
2 Insert for a Placement
Notice that relates to a "Forward."
3 Insert for a Placement
Notice that relates to a "Forward."
[The Company confirms that
it has not declared and will not declare any dividend, or caused or cause there to be any distribution, on the Common Shares if the ex-dividend
date or ex-date, as applicable, for such dividend or distribution will occur during the period from, but excluding, the first Trading
Day of the Forward Hedge Selling Period to, and including, the last Trading Day of the Forward Hedge Selling Period.]4
Effective Date of Delivery of Placement Notice (determined pursuant
to Section 2.03(b)):
_______________________
Number of Days in [Issuance]/[Forward Hedge] Selling Period: ______________________
First Date of [Issuance]/[Forward Hedge] Selling Period: ______________________
Last Date of [Issuance]/[Forward Hedge] Selling Period: ______________________
[Settlement
Date(s): ______________________]
[Issuance]/[Forward Hedge] Amount: $______________________
[Issuance
Selling Commission]/[Forward Hedge Selling Commission Rate]: %
[Forward
Price Reduction Dates |
Forward
Price Reduction Amounts |
[Trade
Date:] |
$
__________________ |
[ ] |
$
__________________ |
[ ] |
$
__________________ |
[ ] |
$
__________________ |
[Thereafter:] |
$
__________________ |
Term: [Days]/[Months]]5
[Spread: _______ basis points]6
Floor Price Limitation (Adjustable by Company
during the [Issuance]/[Forward Hedge] Selling Period, and in no event less than $1.00 without your prior written consent, which consent
may be withheld in your sole discretion): $ ____ per share
4 Insert for a Placement Notice that relates to a "Forward."
5 Insert for a Placement Notice that relates to a "Forward."
6 Insert for a Placement Notice that relates to a "Forward."
|
ALEXANDRIA REAL ESTATE EQUITIES, INC. |
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
[Executive
Chairman, or Chief Financial Officer and Treasurer] |
EXHIBIT D
Form of the Master Forward Confirmation
[Dealer Letterhead]
Date: [●]
To: Alexandria
Real Estate Equities, Inc.
26 North Euclid Avenue
Pasadena, CA 91101
From: [Dealer]
[Address]
Attn: [●]
Telephone:
[●]
Facsimile:
[●]
E-mail:
[●]
Re: Master
Confirmation for Registered Forward Transactions
Ladies and Gentlemen:
The purpose of this letter agreement (this "Master
Confirmation") is to confirm the terms and conditions of the transactions to be entered into from time to time between [Dealer]
("Dealer") and Alexandria Real Estate Equities, Inc. ("Counterparty") (collectively, the "Transactions"
and each, a "Transaction"). This letter agreement constitutes a "Confirmation" as referred to in the Agreement
specified below. Each Transaction will be evidenced by a supplemental confirmation (each, a "Supplemental Confirmation",
and each such Supplemental Confirmation, together with this Master Confirmation, a "Confirmation" for purposes of the
Agreement specified below) substantially in the form of Annex A hereto.
The definitions and provisions
contained in the 2002 ISDA Equity Derivatives Definitions (the "Equity Definitions"), as published by the International
Swaps and Derivatives Association, Inc., are incorporated into each Confirmation. In the event of any inconsistency among the Agreement,
this Master Confirmation, any Supplemental Confirmation and the Equity Definitions, the following will prevail in the order of precedence
indicated: (i) such Supplemental Confirmation; (ii) this Master Confirmation; (iii) the Equity Definitions; and (iv) the
Agreement.
Each party is hereby advised,
and each such party acknowledges, that the other party has engaged in, or refrained from engaging in, substantial financial transactions
and has taken other material actions in reliance upon the parties' entry into each Transaction to which this Master Confirmation relates
on the terms and conditions set forth below.
1. Each
Confirmation evidences a complete and binding agreement between Dealer and Counterparty as to the terms of the applicable Transaction.
Each Confirmation shall supplement, form a part of, and be subject to an agreement in the form of the ISDA 2002 Master Agreement (the
"Agreement") as if Dealer and Counterparty had executed an agreement in such form (without any Schedule but with the
elections set forth in this Confirmation). The parties hereby agree that, other than the Transactions to which this Master Confirmation
relates, no Transaction shall be governed by the Agreement. For purposes of the Equity Definitions, each Transaction to which this Master
Confirmation relates is a Share Forward Transaction.
2. The
terms of the particular Transactions to which this Confirmation relates are as follows:
General Terms: |
|
|
|
|
|
Trade
Date: |
|
For each Transaction, as
specified in the Supplemental Confirmation for such Transaction, to be the last Trading Day (as defined in the Distribution Agreement
(as defined below)) of the Forward Hedge Selling Period (as defined below) for such Transaction. |
|
|
|
Effective
Date: |
|
For each Transaction, as
specified in the Supplemental Confirmation for such Transaction, to be the date that is one Settlement Cycle following the Trade
Date for such Transaction, or such later date on which the conditions set forth in Paragraph 7(a) of this Master Confirmation
shall have been satisfied or waived by Dealer. |
|
|
|
Seller: |
|
Counterparty |
|
|
|
Buyer: |
|
Dealer |
|
|
|
Shares: |
|
The common stock of Counterparty,
USD 0.01 par value per share (Ticker Symbol: "ARE") |
|
|
|
Number
of Shares: |
|
For each Transaction, initially, as specified
in the Supplemental Confirmation for such Transaction, to be the number of Shares equal to the Actual Sold Forward Amount (as
defined in the Distribution Agreement (defined below)) for the Forward Hedge Selling Period for such Transaction (as defined
in the Distribution Agreement); provided that the Number of Shares is subject to reduction as provided in Paragraph 7(a) below
(the "Initial Number of Shares").
On each Settlement Date, the Number of Shares
shall be reduced by the number of Settlement Shares settled on such date. |
|
|
|
Maturity
Date: |
|
For each Transaction, as
specified in the Supplemental Confirmation for such Transaction, to be the date that follows the Trade Date for such Transaction
by the number of days or months set forth in the accepted Placement Notice (as defined in the Distribution Agreement) for such Transaction
(or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day). |
|
|
|
Initial
Forward Price: |
|
For each Transaction, as
specified in the Supplemental Confirmation for such Transaction, to be the product of (i) an amount equal to 1 (one) minus
the Forward Hedge Selling Commission Rate (as defined in the Distribution Agreement) applicable to such Transaction; and (ii) the
Volume-Weighted Hedge Price for such Transaction (such product adjusted as the Calculation Agent determines appropriate to (x) reflect
on each day during the Forward Hedge Selling Period and through the Effective Date the sum of 1 (one) and the Daily Rate for such
day multiplied by the then-Initial Forward Price as of such day and (y) reduce the then-Initial Forward Price by the relevant
Forward Price Reduction Amount on each Forward Price Reduction Date, if any, occurring on or before the Effective Date). |
|
|
|
Volume-Weighted
Hedge Price: |
|
For each Transaction, as
specified in the Supplemental Confirmation for such Transaction, to be the volume-weighted average of the Sales Prices (as defined
in the Distribution Agreement) per share of Forward Hedge Shares (as defined in the Distribution Agreement) sold on each Trading
Day of the Forward Hedge Selling Period for such Transaction. |
Forward
Price: |
|
For
each Transaction,
(a) On
the Effective Date, the Initial Forward Price; and |
|
|
|
|
|
(b) on
each calendar day thereafter, (i) the Forward Price as of the immediately preceding calendar day multiplied by (ii) the
sum of 1 (one) and the Daily Rate for such day; provided that, on each Forward Price Reduction Date, the Forward Price in
effect on such date shall be the Forward Price otherwise in effect on such date, minus the Forward Price Reduction Amount
for such Forward Price Reduction Date. |
|
|
|
Daily
Rate: |
|
For any day, a rate (which
may be positive or negative) equal to (i) (a) Overnight Bank Rate (or if the Overnight Bank Rate is no longer available,
a successor rate selected by the Calculation Agent in its commercially reasonable discretion) for such day minus (b) the
Spread divided by (ii) 360. |
|
|
|
Overnight
Bank Rate: |
|
For any day, the
rate set forth for such day opposite the caption "Overnight bank funding rate", as such rate is displayed on Bloomberg
Screen "OBFR01 <Index> <GO>", or any successor page (rounded to the nearest one hundredth of a percentage
point (0.01%)); provided that, if no rate appears for a particular day on such page, the rate for the immediately preceding
day for which a rate does so appear shall be used for such day; and provided further that, notwithstanding anything to the
contrary in this Confirmation or otherwise, the Overnight Bank Rate for any Settlement Date shall be the Overnight Bank Rate determined
for the day immediately preceding such Settlement Date. |
|
|
|
Spread: |
|
For each Transaction, as
specified in the Supplemental Confirmation for such Transaction. |
|
|
|
Prepayment: |
|
Not Applicable |
|
|
|
Variable
Obligation: |
|
Not Applicable |
|
|
|
Forward
Price Reduction Dates: |
|
For each Transaction, as
specified in Schedule I to the Supplemental Confirmation for such Transaction, to be each date after the last Scheduled Trading Day
of the relevant Forward Hedge Selling Period set forth under the heading "Forward Price Reduction Dates" in the accepted
Placement Notice for such Transaction. |
|
|
|
Forward
Price Reduction Amounts: |
|
For each Forward Price
Reduction Date for a Transaction, as specified in Schedule I to the Supplemental Confirmation for such Transaction, to be the Forward
Price Reduction Amount set forth opposite such date in the accepted Placement Notice for such Transaction. |
|
|
|
Exchange: |
|
New York Stock Exchange |
Related
Exchange(s): |
|
All Exchanges |
|
|
|
Clearance
System: |
|
The Depository Trust Company |
|
|
|
Market
Disruption Event: |
|
Section 6.3(a) of
the Equity Definitions is hereby amended by replacing the first sentence in its entirety with the following: "'Market
Disruption Event' means in respect of a Share or an Index, the occurrence or existence of (i) a Trading Disruption, (ii) an
Exchange Disruption, (iii) an Early Closure or (iv) a Regulatory Disruption, in each case that the Calculation Agent determines
is material". |
|
|
|
Early
Closure: |
|
Section 6.3(d) of
the Equity Definitions is hereby amended by deleting the remainder of the provision following the term "Scheduled Closing Time"
in the fourth line thereof. |
|
|
|
Regulatory
Disruption: |
|
For each Transaction, any
event that Dealer, based on the advice of counsel, determines makes it reasonably necessary or appropriate with regard to any legal,
regulatory or self-regulatory requirements or related policies and procedures that generally apply to transactions of a nature and
kind similar to the Transaction for Dealer to refrain from or decrease any market activity in connection with the Transaction. |
|
|
|
Settlement: |
|
|
|
|
|
Settlement
Currency: |
|
USD (all amounts shall
be converted to the Settlement Currency in good faith and in a commercially reasonable manner by the Calculation Agent) |
|
|
|
Settlement
Date: |
|
For each Transaction, any Scheduled Trading
Day following the Effective Date for such Transaction and up to and including the Maturity Date for such Transaction that is
either:
(a) designated
by Counterparty as a "Settlement Date" by a written notice (a "Settlement Notice") that satisfies the
Settlement Notice Requirements and is delivered to Dealer no less than (i) two Scheduled Trading Days prior to such Settlement
Date, which may be the Maturity Date, if Physical Settlement applies, and (ii) 60 Scheduled Trading Days prior to such Settlement
Date, which may be the Maturity Date, if Cash Settlement or Net Share Settlement applies; provided that, if Dealer shall fully
unwind its hedge with respect to the portion of the Number of Shares to be settled during an Unwind Period by a date that is more
than two Scheduled Trading Days prior to a Settlement Date specified above, Dealer may, by written notice to Counterparty, specify
any Scheduled Trading Day prior to such original Settlement Date as the Settlement Date (with prior notice to Counterparty at least
two Scheduled Trading Days prior to such specified Settlement Date); or
(b) designated
by Dealer as a "Settlement Date" pursuant to the "Termination Settlement" provisions of Paragraph 7(f) below;
provided
that the Maturity Date will be a Settlement Date if on such date the Number of Shares for which a Settlement Date has
not already been designated is greater than zero, and provided further that, following the occurrence of at least three consecutive
Disrupted Days during an Unwind Period and while such Disrupted Days are continuing, Dealer may designate any subsequent Scheduled
Trading Day as the Settlement Date with respect to the portion of the Settlement Shares, if any, for which Dealer has determined
an Unwind Purchase Price during such Unwind Period, it being understood that the Unwind Period with respect to the remainder of such
Settlement Shares shall, subject to clause (ii) in "Settlement Method Election" below, recommence on the next succeeding
Exchange Business Day that is not a Disrupted Day in whole. |
Settlement
Shares: |
|
(a) With
respect to any Settlement Date other than the Maturity Date, the number of Shares designated as such by Counterparty in the relevant
Settlement Notice or designated by Dealer pursuant to the "Termination Settlement" provisions of Paragraph 7(f) below,
as applicable; provided that the Settlement Shares so designated shall (i) not exceed the Number of Shares at that time
and (ii) in the case of a designation by Counterparty, be at least equal to the lesser of 100,000 and the Number of Shares at
that time; and |
|
|
|
|
|
(b) with
respect to the Settlement Date on the Maturity Date, a number of Shares equal to the Number of Shares at that time; |
|
|
|
|
|
in each case with the Number
of Shares determined taking into account pending Settlement Shares. |
|
|
|
Settlement
Method Election: |
|
Physical Settlement, Cash
Settlement, or Net Share Settlement, at the election of Counterparty as set forth in a Settlement Notice that satisfies the Settlement
Notice Requirements; provided that Physical Settlement shall apply (i) if no Settlement Method is validly selected, (ii) with
respect to any Settlement Shares in respect of which Dealer is unable, in good faith and in its commercially reasonable discretion,
to unwind its hedge by the end of the Unwind Period (taking into account any restrictions on Dealer resulting from any Overlap Unwind
Period (as defined below) and any Unwind Period (or equivalent concept) under any outstanding forward transactions with Counterparty
to which Dealer or its affiliate is a party ("Other Dealer Forward Transactions")) (A) in a manner that, in
the reasonable discretion of Dealer, based on advice of counsel, is consistent with the requirements for qualifying for the safe
harbor provided by Rule 10b-18 ("Rule 10b-18") under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") or (B) due to the occurrence of Disrupted Days or to the lack of sufficient liquidity in the
Shares on any Exchange Business Day during the Unwind Period, (iii) to any Termination Settlement Date (as defined under "Termination
Settlement" in Paragraph 7(f) below) and (iv) if the Maturity Date is a Settlement Date other than as the result of
a valid Settlement Notice, in respect of such Settlement Date; provided further that, if Physical Settlement applies under
clause (ii) immediately above, Dealer shall provide written notice to Counterparty at least two Scheduled Trading Days prior
to the applicable Settlement Date. |
|
|
|
Settlement
Notice Requirements: |
|
Notwithstanding any other
provision hereof, a Settlement Notice delivered by Counterparty that specifies Cash Settlement or Net Share Settlement will not be
effective to establish a Settlement Date or require Cash Settlement or Net Share Settlement unless Counterparty delivers to Dealer
with such Settlement Notice a representation, dated as of the date of such Settlement Notice and signed by Counterparty, in the form
set forth in clause (i) under the heading "Additional Representations and Agreements of Counterparty" in Paragraph
7(d) below. |
Physical
Settlement: |
|
If Physical
Settlement is applicable, then Counterparty shall deliver to Dealer through the Clearance System a number of Shares equal to the
Settlement Shares for such Settlement Date, and Dealer shall pay to Counterparty, by wire transfer of immediately available funds
to an account designated by Counterparty, an amount equal to the Physical Settlement Amount for such Settlement Date. If,
on any Settlement Date, the Shares to be delivered by Counterparty to Dealer hereunder are not so delivered (the "Deferred
Shares"), and a Forward Price Reduction Date occurs during the period from, and including, such Settlement Date to, but
excluding, the date such Shares are actually delivered to Dealer, then the portion of the Physical Settlement Amount payable by Dealer
to Counterparty in respect of the Deferred Shares shall be reduced by an amount equal to the Forward Price Reduction Amount for such
Forward Price Reduction Date, multiplied by the number of Deferred Shares. |
|
|
|
Physical
Settlement Amount: |
|
For any Settlement Date
for which Physical Settlement is applicable, an amount in cash equal to the product of (a) the Forward Price in effect on the
relevant Settlement Date multiplied by (b) the Settlement Shares for such Settlement Date. |
|
|
|
Cash
Settlement: |
|
On any Settlement Date
in respect of which Cash Settlement applies, if the Cash Settlement Amount is a positive number, Dealer will pay the Cash Settlement
Amount to Counterparty. If the Cash Settlement Amount is a negative number, Counterparty will pay the absolute value of
the Cash Settlement Amount to Dealer. Such amounts shall be paid on such Settlement Date by wire transfer of immediately
available funds. |
|
|
|
Cash
Settlement Amount: |
|
An amount determined by the Calculation
Agent equal to:
(a) (i)(A) the
weighted average (weighted on the same basis as clause (B)) of the Forward Prices on each day during the applicable Unwind Period
(calculated assuming no reduction to the Forward Price for any Forward Price Reduction Date that occurs during such Unwind Period,
which is accounted for in clause (b) below), minus USD 0.02, minus (B) the weighted average price (the "Unwind
Purchase Price") at which Dealer purchases Shares during the Unwind Period to unwind its hedge with respect to the portion
of the Number of Shares to be settled during the Unwind Period (including, for the avoidance of doubt, purchases on any Disrupted
Day in part), taking into account Shares anticipated to be delivered or received if Net Share Settlement applies, and the restrictions
of Rule 10b-18 under the Exchange Act agreed to hereunder, multiplied by (ii) the Settlement Shares for the relevant
Settlement Date; minus
(b) the
product of (i) the Forward Price Reduction Amount for any Forward Price Reduction Date that occurs during such Unwind Period,
and (ii) the number of Settlement Shares for such Settlement Date with respect to which Dealer has not unwound its hedge,
including the settlement of such unwinds, as of such Forward Price Reduction Date. |
Net
Share Settlement: |
|
On any Settlement
Date in respect of which Net Share Settlement applies, if the Cash Settlement Amount is a (i) positive number, Dealer shall
deliver a number of Shares to Counterparty equal to the Net Share Settlement Shares, or (ii) negative number, Counterparty shall
deliver a number of Shares to Dealer equal to the Net Share Settlement Shares; provided that, if Dealer determines in its
commercially reasonable judgment that it would be required to deliver Net Share Settlement Shares to Counterparty, Dealer may elect
to deliver a portion of such Net Share Settlement Shares on one or more dates prior to the applicable Settlement Date. |
|
|
|
Net
Share Settlement Shares: |
|
With respect to a Settlement
Date, the absolute value of the Cash Settlement Amount divided by the Unwind Purchase Price, with the number of Shares rounded
up in the event such calculation results in a fractional number. |
|
|
|
Unwind
Period: |
|
The period from and including
the first Exchange Business Day following the date Counterparty validly elects Cash Settlement or Net Share Settlement in respect
of a Settlement Date through the second Scheduled Trading Day preceding such Settlement Date, subject to "Termination Settlement"
as described in Paragraph 7(f) below. |
|
|
|
Failure
to Deliver: |
|
Applicable if Dealer is
required to deliver Shares hereunder; otherwise, Not Applicable. |
|
|
|
Share
Cap: |
|
Notwithstanding any other
provision of this Confirmation, in no event will Counterparty be required to deliver to Dealer on any Settlement Date in respect
of a Transaction, whether pursuant to Physical Settlement, Net Share Settlement or any Private Placement Settlement, a number of
Shares in excess of (i) 1.25 times the Initial Number of Shares for such Transaction, subject to adjustment from time to time
in accordance with the provisions of this Master Confirmation, the relevant Supplemental Confirmation or the Equity Definitions minus
(ii) the aggregate number of Shares delivered by Counterparty to Dealer hereunder in respect of such Transaction prior to
such Settlement Date. |
|
|
|
Adjustments: |
|
|
|
|
|
Method
of Adjustment: |
|
Calculation Agent Adjustment. Section 11.2(e) of
the Equity Definitions is hereby amended by deleting clause (iii) thereof, and Section 11.2(e)(vii) of
the Equity Definitions is hereby amended by adding the words "that is within the Issuer's control" immediately after the
word "event". For the avoidance of doubt, the declaration or payment of a cash dividend will not constitute
a Potential Adjustment Event. |
Additional
Adjustment: |
|
If, in Dealer's
commercially reasonable judgment, the actual cost to Dealer (or an affiliate of Dealer), over any 20 consecutive Scheduled Trading
Days, of borrowing a number of Shares equal to the Number of Shares to hedge in a commercially reasonable manner its exposure to
any Transaction exceeds a weighted average rate equal to 50 basis points per annum, the Calculation Agent shall reduce the Forward
Price in order to compensate Dealer for the amount by which such cost exceeded a weighted average rate equal to 50 basis points per
annum during such period. |
|
|
|
Extraordinary Events: |
|
|
|
|
|
Extraordinary
Events: |
|
In lieu of the applicable
provisions contained in Article 12 of the Equity Definitions, the consequences of any Extraordinary Event (including, for the
avoidance of doubt, any Merger Event, Tender Offer, Nationalization, Insolvency, Delisting, or Change In Law) shall be as specified
below under the headings "Acceleration Events" and "Termination Settlement" in Paragraphs 7(e) and
7(f), respectively. Notwithstanding anything to the contrary herein or in the Equity Definitions, no Additional Disruption Event
will be applicable except to the extent expressly referenced in Paragraph 7(e)(iv) below. The definition of "Tender
Offer" in Section 12.1(d) of the Equity Definitions is hereby amended by replacing "10%" with "15%." |
|
|
|
Non-Reliance: |
|
Applicable |
|
|
|
Agreements and Acknowledgments
Regarding Hedging Activities: |
|
Applicable |
|
|
|
Additional Acknowledgments: |
|
Applicable |
|
|
|
Transfer: |
|
Notwithstanding anything
to the contrary herein or in the Agreement, Dealer may assign, transfer and set over all rights, title and interest, powers, privileges
and remedies of Dealer under any Transaction, in whole or in part, to any affiliate of Dealer, whose obligations hereunder are fully
and unconditionally guaranteed by Dealer or Dealer's ultimate parent entity, without the consent of Counterparty. |
|
|
|
3. Calculation
Agent: |
|
Dealer, whose judgments,
determinations and calculations shall be made in good faith and in a commercially reasonable manner; provided that, following
the occurrence and during the continuance of an Event of Default of the type described in Section 5(a)(vii) of the Agreement
with respect to which Dealer is the sole Defaulting Party, if the Calculation Agent fails to timely make any calculation, adjustment
or determination required to be made by the Calculation Agent hereunder or to perform any obligation of the Calculation
Agent hereunder and such failure continues for five (5) Exchange Business Days following
notice to the Calculation Agent by Counterparty of such failure, Counterparty shall have the right to designate a nationally recognized
third-party dealer in over-the-counter corporate equity derivatives to act, during the period commencing on
the date such Event of Default occurred and ending on the Early Termination Date with respect to such Event of Default, as the Calculation
Agent. Following any determination or calculation by the Calculation Agent hereunder, upon a written request by Counterparty,
the Calculation Agent shall promptly (but in any event within three Scheduled Trading Days) provide to Counterparty by e-mail to
the e-mail address provided by Counterparty in such request a report (in a commonly used file format for the storage and manipulation
of financial data) displaying in reasonable detail the basis for such determination or calculation (including any assumptions used
in making such determination or calculation), it being understood that the Calculation Agent shall not be obligated to disclose any
proprietary or confidential models or other proprietary or confidential information used by it for such determination or calculation. |
4. Account
Details: |
|
|
|
|
|
(a) Account
for delivery of Shares to Dealer: |
|
[To be furnished] |
|
|
|
(b) Account
for delivery of Shares to Counterparty: |
|
To be furnished |
|
|
|
(c) Account
for payments to Counterparty: |
|
To be advised under separate
cover or telephone confirmed prior to each Settlement Date |
|
|
|
(d) Account
for payments to Dealer: |
|
To be advised under separate
cover or telephone confirmed prior to each Settlement Date |
|
5. Offices: |
|
The Office
of Counterparty for the Transaction is: Inapplicable, Counterparty is not a Multibranch Party |
|
The Office
of Dealer for the Transaction is: [●] |
|
6. Notices: For
purposes of this Confirmation: |
|
(a) Address
for notices or communications to Counterparty:
Alexandria Real Estate
Equities, Inc.
Attn: Secretary
26 North Euclid Avenue
Pasadena, California
91101
Telephone: (626) 578-0777
Facsimile: (626) 578-0896
with a copy to:
Kenneth Kohler
Morrison & Foerster
LLP
707 Wilshire Boulevard
Los Angeles, California
90017
E-mail: KKohler@mofo.com
|
(b) Address
for notices or communications to Dealer:
[Dealer]
[Address]
Attn: [●]
Telephone:
[●]
Facsimile:
[●]
E-mail:
[●] |
7. Other
Provisions:
(a) Conditions
to Effectiveness. The effectiveness of each Supplemental Confirmation and the related Transaction on the Effective Date for such
Transaction shall be subject to the satisfaction or waiver by Dealer of the following conditions:
| (i) | the
condition that the representations and warranties of Counterparty contained in the Distribution
Agreement, dated the date hereof, among Counterparty, Mizuho Securities USA LLC, Robert W.
Baird & Co. Incorporated, Barclays Capital Inc., BBVA Securities Inc., BMO Capital
Markets Corp., BNP Paribas Securities Corp., BofA Securities, Inc., BTIG, LLC, Capital
One Securities, Inc., Citigroup Global Markets Inc., Citizens JMP Securities, LLC, Evercore
Group L.L.C., Fifth Third Securities, Inc., Goldman Sachs & Co. LLC, Jefferies
LLC, J.P. Morgan Securities LLC, RBC Capital Markets, LLC, Regions Securities LLC, Scotia
Capital (USA) Inc., TD Securities (USA) LLC, Truist Securities, Inc. and Wedbush Securities
Inc., as the sales agents, Mizuho Markets Americas LLC, Robert W. Baird &
Co. Incorporated, Barclays Bank PLC, Banco Bilbao Vizcaya Argentaria, S.A., Bank of Montreal,
BNP Paribas, Bank of America, N.A., Nomura Global Financial Products, Inc., Canadian
Imperial Bank of Commerce, Citibank, N.A., Citizens JMP Securities, LLC, Goldman Sachs &
Co. LLC, Jefferies LLC, JPMorgan Chase Bank, National Association, Royal Bank of Canada,
Regions Securities LLC, The Bank of Nova Scotia, The Toronto-Dominion Bank and Truist Bank,
as the forward purchasers, and Mizuho Securities USA LLC, Robert W. Baird & Co.
Incorporated, Barclays Capital Inc., BBVA Securities Inc., BMO Capital Markets Corp., BNP
Paribas Securities Corp., BofA Securities, Inc., Nomura Securities International, Inc.
(acting through BTIG, LLC as agent), CIBC World Markets Corp., Citigroup Global Markets Inc.,
Citizens JMP Securities, LLC, Evercore Group L.L.C., Goldman Sachs & Co. LLC, Jefferies
LLC, J.P. Morgan Securities LLC, RBC Capital Markets, LLC, Regions Securities LLC, Scotia
Capital (USA) Inc., TD Securities (USA) LLC and Truist Securities, Inc., as the forward
sellers (the "Distribution Agreement"), and any certificate delivered pursuant
thereto by Counterparty are true and correct on the Effective Date as if made as of the Effective
Date; |
| (ii) | the condition that Counterparty has performed
all of the obligations required to be performed by it under the Distribution Agreement on
or prior to the Effective Date; |
| (iii) | all of the conditions set forth or referenced
in Article V of the Distribution Agreement have been satisfied; |
| (iv) | the Distribution Agreement remains in
effect and has not terminated pursuant to Article VII of the Distribution Agreement;
and |
| (v) | the condition that, as determined by Dealer
in good faith and a commercially reasonable manner, neither of the following has occurred
(A) Dealer is unable to borrow and deliver for sale a number of Shares equal to the
Initial Number of Shares in respect of the relevant Transaction, or (B) in Dealer's
commercially reasonable judgment either it is impracticable to do so or Dealer would incur
a stock loan cost of more than a rate equal to 200 basis points per annum to do so (in which
event the Supplemental Confirmation shall be effective but the Initial Number of Shares for
the relevant Transaction shall be the number of Shares Dealer is required to deliver in accordance
with the Distribution Agreement). |
(b) Interpretive
Letter. Counterparty agrees and acknowledges that each Transaction is being entered into in accordance with the October 9, 2003
interpretive letter from the staff of the Securities and Exchange Commission (the "SEC") to Goldman, Sachs &
Co. (the "Interpretive Letter") and agrees to take all actions, and to omit to take any actions, reasonably requested
by Dealer for each Transaction to comply with the Interpretive Letter. Without limiting the foregoing, Counterparty agrees that neither
it nor any "affiliated purchaser" (as defined in Regulation M ("Regulation M") promulgated under the Exchange
Act) will, directly or indirectly, bid for, purchase or attempt to induce any person to bid for or purchase, the Shares or securities
that are convertible into, or exchangeable or exercisable for, Shares during any "restricted period" as such term is defined
in Regulation M. In addition, Counterparty represents that it is eligible to conduct a primary offering of Shares on Form S-3, the
offering contemplated by the Distribution Agreement complies with Rule 415 under the Securities Act of 1933, as amended (the "Securities
Act"), and the Shares are "actively traded" as defined in Rule 101(c)(1) of Regulation M.
(c) Agreements
and Acknowledgments Regarding Shares.
(i) Counterparty
agrees and acknowledges that, in respect of any Shares delivered to Dealer hereunder, such Shares shall be newly issued (unless mutually
agreed otherwise by the parties) and, upon such delivery, duly and validly authorized, issued and outstanding, fully paid and nonassessable,
free of any lien, charge, claim or other encumbrance and not subject to any preemptive or similar rights and shall, upon such issuance,
be accepted for listing or quotation on the Exchange.
(ii) Counterparty
agrees and acknowledges that Dealer (or an affiliate of Dealer) will hedge its exposure to each Transaction by selling Shares borrowed
from third party securities lenders or other Shares pursuant to a registration statement, and that, pursuant to the terms of the Interpretive
Letter, the Shares (up to the Initial Number of Shares) delivered, pledged or loaned by Counterparty to Dealer (or an affiliate of Dealer)
in connection with each Transaction may be used by Dealer (or an affiliate of Dealer) to return to securities lenders without further
registration or other restrictions under the Securities Act, in the hands of those securities lenders, irrespective of whether such securities
loan is effected by Dealer or an affiliate of Dealer. Accordingly, subject to Paragraph 7(g) below, Counterparty agrees that the
Shares that it delivers, pledges or loans to Dealer (or an affiliate of Dealer) on or prior to the final Settlement Date will not bear
a restrictive legend and that such Shares will be deposited in, and the delivery thereof shall be effected through the facilities of,
the Clearance System.
(iii) Counterparty
agrees and acknowledges that it has reserved and will keep available at all times, free from preemptive or similar rights and free from
any lien, charge, claim or other encumbrance, authorized but unissued Shares at least equal to the aggregate Share Cap for all outstanding
Transactions, solely for the purpose of settlement under such Transactions.
(iv) Unless
the provisions set forth below under "Private Placement Procedures" are applicable, Dealer agrees to use any Shares delivered
by Counterparty hereunder on any Settlement Date to return to securities lenders to close out open securities loans created by Dealer
or an affiliate of Dealer in the course of Dealer's or such affiliate's hedging activities related to Dealer's exposure under a Transaction.
(v) In
connection with bids and purchases of Shares in connection with any Cash Settlement or Net Share Settlement of any Transaction, Dealer
shall use its reasonable efforts, based on the advice of counsel and taking into account any Unwind Period (or equivalent concept)
under any outstanding Other Dealer Forward Transactions, to conduct its activities, or cause its affiliates to conduct their activities,
in a manner consistent with the requirements of the safe harbor provided by Rule 10b-18 under the Exchange Act, as if such provisions
were applicable to such purchases.
(d) Additional
Representations and Agreements of Counterparty. Counterparty represents, warrants and agrees as of each Placement Date, Trade Date
and Forward Hedge Settlement Date (as defined in the Distribution Agreement) as follows:
(i) Counterparty
represents to Dealer on the date of this representation and on any date that Counterparty notifies Dealer that Cash Settlement or Net
Share Settlement applies to a Transaction, that (A) Counterparty is not aware of any material nonpublic information regarding Counterparty
or the Shares, (B) each of its filings under the Securities Act, the Exchange Act or other applicable securities laws that are required
to be filed have been filed and that, as of the date of this representation, when considered as a whole (with the more recent such filings
deemed to amend inconsistent statements contained in any earlier such filings), there is no misstatement of material fact contained therein
or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances
under which they were made, not misleading and (C) Counterparty is not entering into the relevant Supplemental Confirmation nor
making any election hereunder or thereunder to create actual or apparent trading activity in the Shares (or any security convertible
into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible
into or exchangeable for Shares) or otherwise in violation of the Exchange Act.
(ii) It
is the intent of Dealer and Counterparty that following any election of Cash Settlement or Net Share Settlement by Counterparty, the
purchase of Shares by Dealer during any Unwind Period comply with the requirements of Rule 10b5-l(c)(l)(i)(B) of the Exchange
Act and that this Master Confirmation and the relevant Supplemental Confirmation shall be interpreted to comply with the requirements
of Rule 10b5-l(c). Counterparty acknowledges that (i) during any Unwind Period Counterparty shall not have, and shall not attempt
to exercise, any influence over how, when or whether to effect purchases of Shares by Dealer (or its agent or affiliate) in connection
with this Master Confirmation and the relevant Supplemental Confirmation and (ii) Counterparty is entering into the Agreement, this
Master Confirmation and each Supplemental Confirmation in good faith and not as part of a plan or scheme to evade compliance with federal
securities laws including, without limitation, Rule 10b-5 promulgated under the Exchange Act.
(iii) Counterparty
shall, at least one day prior to the first day of any Unwind Period, notify Dealer of the total number of Shares purchased in Rule 10b-18
purchases of blocks pursuant to the once-a-week block exception contained in Rule 10b-18(b)(4) by or for Counterparty or any
of its affiliated purchasers during each of the four calendar weeks preceding the first day of the Unwind Period and during the calendar
week in which the first day of the Unwind Period occurs ("Rule 10b-18 purchase", "blocks" and "affiliated
purchaser" each being used as defined in Rule 10b-18).
(iv) During
any Unwind Period, Counterparty shall (i) notify Dealer prior to the opening of trading in the Shares on any day on which Counterparty
makes, or Counterparty reasonably expects in advance of the opening to be made, any public announcement (as defined in Rule 165(f) under
the Securities Act) of any merger, acquisition, or similar transaction involving a recapitalization relating to Counterparty (other than
any such transaction in which the consideration consists solely of cash and there is no valuation period), (ii) promptly notify
Dealer following any such announcement that such announcement has been made, and (iii) promptly deliver to Dealer following the
making of any such announcement information indicating (A) Counterparty's average daily Rule 10b-18 purchases (as defined in
Rule 10b-18) during the three full calendar months preceding the date of the announcement of such transaction and (B) Counterparty's
block purchases (as defined in Rule 10b-18) effected pursuant to paragraph (b)(4) of Rule 10b-18 during the three full
calendar months preceding the date of the announcement of such transaction. In addition, Counterparty shall promptly notify Dealer of
the earlier to occur of the completion of such transaction and the completion of the vote by target shareholders.
(v) Neither
Counterparty nor any of its affiliated purchasers (within the meaning of Rule 10b-18 under the Exchange Act) shall take or refrain
from taking any action (including, without limitation, any direct purchases by Counterparty or any of its affiliates, or any purchases
by a party to a derivative transaction with Counterparty or any of its affiliates), either under this Master Confirmation or any Supplemental
Confirmation, under another agreement with Dealer or another party or otherwise, that might reasonably be expected to cause any purchases
of Shares by Dealer or any of its affiliates in connection with any Cash Settlement or Net Share Settlement (or equivalent concept) of
a Transaction or any outstanding Other Dealer Forward Transactions not to meet the requirements of the safe harbor provided by Rule 10b-18
determined as if all such foregoing purchases were made by Counterparty.
(vi) Counterparty
will not engage in any "distribution" (as defined in Regulation M), other than a distribution meeting the requirements of the
exception set forth in Rules 101(b)(10) or 102(b)(7) of Regulation M, that would cause a "restricted period"
(as defined in Regulation M) to occur during any Unwind Period.
(vii) Counterparty
is not, and after giving effect to the transactions contemplated hereby will not be, required to register as an "investment company"
as such term is defined in the Investment Company Act of 1940, as amended.
(viii) Counterparty
is not insolvent, nor will Counterparty be rendered insolvent as a result of any Transaction or its performance of the terms hereof.
(ix) Without
limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that Dealer is not making any representations
or warranties or taking any position or expressing any view with respect to the treatment of any Transaction under any accounting standards
including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and Hedging, or ASC Topic 480, Distinguishing Liabilities from
Equity and ASC 815-40, Derivatives and Hedging – Contracts in Entity's Own Equity (or any successor issue statements) or under
FASB's Liabilities & Equity Project.
(x) Counterparty
understands no obligations of Dealer to it hereunder will be entitled to the benefit of deposit insurance and that such obligations will
not be guaranteed by any affiliate of Dealer or any governmental agency.
(xi) To
Counterparty's actual knowledge, no federal, state or local (including non-U.S. jurisdictions) law, rule, regulation or regulatory order
applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a
requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined)
Shares, other than Sections 13 and 16 under the Exchange Act and Section 7.2.1 of Counterparty's Articles of Amendment and Restatement.
(xii) No
filing with, or approval, authorization, consent, license, registration, qualification, order or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the execution, delivery and performance by Counterparty of this
Master Confirmation or any Supplemental Confirmation and the consummation of any Transaction (including, without limitation, the issuance
and delivery of Shares on any Settlement Date) except (i) such as have been obtained under the Securities Act and (ii) as may
be required to be obtained under state securities laws.
(xiii) Counterparty
(i) has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of entering
into each Transaction; (ii) has consulted with its own legal, financial, accounting and tax advisors in connection with each Transaction;
and (iii) is entering into each Transaction for a bona fide business purpose.
(xiv) Counterparty
will, by the next succeeding Scheduled Trading Day notify Dealer upon obtaining knowledge of the occurrence of any event that would constitute
an Event of Default, a Potential Event of Default or a Potential Adjustment Event.
(xv) Counterparty
(i) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment
strategies involving a security or securities; (ii) will exercise independent judgment in evaluating the recommendations of any
broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (iii) has total assets
of at least $50 million as of the date of this representation.
(e) Acceleration
Events. Each of the following events shall constitute an "Acceleration Event":
(i) Stock
Borrow Event. In the commercially reasonable judgment of Dealer (A) Dealer (or an affiliate of Dealer) is not able to hedge
in a commercially reasonable manner its exposure under any Transaction because insufficient Shares are made available for borrowing by
securities lenders or (B) Dealer (or an affiliate of Dealer) would incur a cost to borrow (or to maintain a borrow of) Shares to
hedge in a commercially reasonable manner its exposure under any Transaction that is greater than a rate equal to 200 basis points per
annum (each, a "Stock Borrow Event");
(ii) Dividends
and Other Distributions. On any day occurring after the Trade Date of any Transaction, Counterparty declares a distribution, issue
or dividend to existing holders of the Shares of (A) any cash dividend (other than an Extraordinary Dividend) to the extent all
cash dividends having an ex-dividend date during the period from, and including, any Forward Price Reduction Date (with the Trade Date
being a Forward Price Reduction Date for purposes of this paragraph (ii) only) to, but excluding, the next subsequent Forward Price
Reduction Date exceeds, on a per Share basis, the Forward Price Reduction Amount set forth opposite the first date of any such period
on Schedule I to the relevant Supplemental Confirmation, (B) any Extraordinary Dividend, (C) any share capital or other securities
of another issuer acquired or owned (directly or indirectly) by Counterparty as a result of a spin-off or other similar transaction or
(D) any other type of securities (other than Shares), rights or warrants or other assets, in any case for payment (cash or other
consideration) at less than the prevailing market price, as determined in a commercially reasonable manner by Dealer; "Extraordinary
Dividend" means any dividend or distribution (that is not an ordinary cash dividend) declared by the Issuer with respect to
the Shares that, in the commercially reasonable determination of Dealer, is (1) a dividend or distribution declared on the Shares
at a time at which the Issuer has not previously declared or paid dividends or distributions on such Shares for the prior four quarterly
periods, (2) a payment or distribution by the Issuer to holders of Shares that the Issuer announces will be an "extraordinary"
or "special" dividend or distribution, (3) a payment by the Issuer to holders of Shares out of the Issuer's capital and
surplus or (4) any other "special" dividend or distribution on the Shares that is, by its terms or declared intent, outside
the normal course of operations or normal dividend policies or practices of the Issuer;
(iii) ISDA
Termination. Either Dealer or Counterparty has the right to designate an Early Termination Date pursuant to Section 6 of the
Agreement;
(iv) Other
ISDA Events. The announcement of any event that, if consummated, would result in a Merger Event, Tender Offer, Nationalization, Insolvency
or Delisting or the occurrence of any Hedging Disruption (with Dealer as the Hedging Party) or Change in Law; provided that, in
case of a Delisting, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute
a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any
of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); provided
further that (i) the definition of "Change in Law" provided in Section 12.9(a)(ii) of the Equity Definitions
is hereby amended by (A) replacing the phrase "the interpretation" in the third line thereof with the phrase "or
announcement or statement of the formal or informal interpretation" and (B) immediately following the word "Transaction"
in clause (X) thereof, adding the phrase "in the manner contemplated by Dealer on the Trade Date" and (ii) any determination
as to whether (A) the adoption of or any change in any applicable law or regulation (including, without limitation, any tax law)
or (B) the promulgation of or any change in or announcement or statement of the formal or informal interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing
authority), in each case, constitutes a "Change in Law" shall be made without regard to Section 739 of the Wall Street
Transparency and Accountability Act of 2010 (the "WSTAA") or any similar provision in any legislation enacted on or
after the Trade Date; or
(v) Ownership
Event. In the good faith judgment of Dealer, on any day, the Share Amount for such day exceeds the Post-Effective Limit for such
day (if any applies) (each, an "Ownership Event"). For purposes of this clause (v), the "Share Amount"
as of any day is the number of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer
or any such person, a "Dealer Person") under any law, rule, regulation or regulatory order (other than any obligations
under Section 13 of the Exchange Act and the rules and regulations promulgated thereunder) or Counterparty constituent document
that for any reason is, or after the Trade Date becomes, applicable to ownership of Shares ("Applicable Provisions"),
owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership
of under the Applicable Provisions, as determined by Dealer in its reasonable discretion. The "Post-Effective Limit"
means (x) the minimum number of Shares that would give rise to reporting or registration obligations or other requirements (including
obtaining prior approval from any person or entity) of a Dealer Person, or would result in an adverse effect on a Dealer Person, under
the Applicable Provisions, as determined by Dealer in its reasonable discretion, minus (y) 1.0% of the number of Shares outstanding.
(f) Termination
Settlement. Upon the occurrence of any Acceleration Event, Dealer shall have the right to designate, upon at least one Scheduled
Trading Day's notice, any Scheduled Trading Day following such occurrence to be a Settlement Date hereunder (a "Termination Settlement
Date") to which Physical Settlement shall apply, and to select the number of Settlement Shares relating to such Termination
Settlement Date; provided that (i) in the case of an Acceleration Event arising out of an Ownership Event, the number of
Settlement Shares so designated by Dealer shall not exceed the number of Shares necessary to reduce the Share Amount to reasonably below
the Post-Effective Limit and (ii) in the case of an Acceleration Event arising out of a Stock Borrow Event, the number of Settlement
Shares so designated by Dealer shall not exceed the number of Shares as to which such Stock Borrow Event exists. If, upon designation
of a Termination Settlement Date by Dealer pursuant to the preceding sentence, Counterparty fails to deliver the Settlement Shares relating
to such Termination Settlement Date when due or otherwise fails to perform obligations within its control in respect of any Transaction,
it shall be an Event of Default with respect to Counterparty and Section 6 of the Agreement shall apply. If an Acceleration Event
occurs during an Unwind Period relating to a number of Settlement Shares to which Cash Settlement or Net Share Settlement applies, then
on the Termination Settlement Date relating to such Acceleration Event, notwithstanding any election to the contrary by Counterparty,
Cash Settlement or Net Share Settlement shall apply to the portion of the Settlement Shares relating to such Unwind Period as to which
Dealer has unwound its hedge and Physical Settlement shall apply in respect of (x) the remainder (if any) of such Settlement Shares
and (y) the Settlement Shares designated by Dealer in respect of such Termination Settlement Date. If an Acceleration Event occurs
after Counterparty has designated a Settlement Date to which Physical Settlement applies but before the relevant Settlement Shares have
been delivered to Dealer, then Dealer shall have the right to cancel such Settlement Date and designate a Termination Settlement Date
in respect of such Shares pursuant to the first sentence hereof.
(g) Private
Placement Procedures. If Counterparty is unable to comply with the provisions of sub-paragraph (ii) of "Agreements and
Acknowledgments Regarding Shares" above because of a change in law or a change in the policy of the SEC or its staff, or Dealer
otherwise determines that in its reasonable opinion any Shares to be delivered to Dealer by Counterparty may not be freely returned by
Dealer or its affiliates to securities lenders as described under such sub-paragraph (ii) or otherwise constitute "restricted
securities" as defined in Rule 144 under the Securities Act, then delivery of any such Shares (the "Restricted Shares")
shall be effected as provided below, unless waived by Dealer.
(i) If
Counterparty delivers the Restricted Shares pursuant to this clause (i) (a "Private Placement Settlement"), then
delivery of Restricted Shares by Counterparty shall be effected in accordance with private placement procedures customary for private
placements of equity securities of substantially similar size with respect to such Restricted Shares reasonably acceptable to Dealer;
provided that Counterparty may not elect a Private Placement Settlement if, on the date of its election, it has taken, or caused
to be taken, any action that would make unavailable either the exemption pursuant to Section 4(a)(2) of the Securities Act
for the sale by Counterparty to Dealer (or any affiliate designated by Dealer) of the Restricted Shares or the exemption pursuant to
Section 4(a)(1) or Section 4(a)(3) of the Securities Act for resales of the Restricted Shares by Dealer (or any such
affiliate of Dealer), and if Counterparty fails to deliver the Restricted Shares when due or otherwise fails to perform obligations within
its control in respect of a Private Placement Settlement, it shall be an Event of Default with respect to Counterparty and Section 6
of the Agreement shall apply. The Private Placement Settlement of such Restricted Shares shall include customary representations, covenants,
blue sky and other governmental filings and/or registrations, indemnities to Dealer, due diligence rights (for Dealer or any designated
buyer of the Restricted Shares by Dealer), opinions and certificates, and such other documentation as is customary for private placement
agreements of equity securities of a substantially similar size, all reasonably acceptable to Dealer. In the case of a Private Placement
Settlement, Dealer shall, in its good faith discretion, adjust the amount of Restricted Shares to be delivered to Dealer hereunder in
a commercially reasonable manner to reflect the fact that such Restricted Shares may not be freely returned to securities lenders by
Dealer and may only be saleable by Dealer at a discount to reflect the lack of liquidity in Restricted Shares. Notwithstanding the Agreement
or any Confirmation, the date of delivery of such Restricted Shares shall be the Clearance System Business Day following notice by Dealer
to Counterparty of the number of Restricted Shares to be delivered pursuant to this clause (i). For the avoidance of doubt, delivery
of Restricted Shares shall be due as set forth in the previous sentence and not be due on the date that would otherwise be applicable.
(ii) If
Counterparty delivers any Restricted Shares in respect of any Transaction, Counterparty agrees that (A) such Shares may be transferred
by and among Dealer and its affiliates and (B) after the minimum "holding period" within the meaning of Rule 144(d) under
the Securities Act has elapsed, Counterparty shall promptly remove, or cause the transfer agent for the Shares to remove, any legends
referring to any transfer restrictions from such Shares upon delivery by Dealer (or such affiliate of Dealer) to Counterparty or such
transfer agent of any seller's and broker's representation letters customarily delivered by Dealer or its affiliates in connection with
resales of restricted securities pursuant to Rule 144 under the Securities Act, each without any further requirement for the delivery
of any certificate, consent, agreement, opinion of counsel, notice or any other document, any transfer tax stamps or payment of any other
amount or any other action by Dealer (or such affiliate of Dealer).
(h) Indemnity.
Counterparty agrees to indemnify Dealer and its affiliates and their respective directors, officers, employees, agents and controlling
persons (Dealer and each such affiliate or person being an "Indemnified Party") from and against any and all losses,
claims, damages and liabilities, joint and several, incurred by or asserted against such Indemnified Party arising out of, in connection
with, or relating to, any breach of any covenant or representation made by Counterparty in this Master Confirmation, any Supplemental
Confirmation or the Agreement and will reimburse any Indemnified Party for all reasonable expenses (including reasonable legal fees and
reasonable expenses) as they are incurred in connection with the investigation of, preparation for, or defense of any pending or threatened
claim or any action or proceeding arising therefrom (whether or not such Indemnified Party is a party thereto), except to the extent
determined in a final and nonappealable judgment by a court of competent jurisdiction to have resulted from Dealer's gross negligence,
fraud, bad faith and/or willful misconduct or from a breach of any representation or covenant of Dealer contained in this Master Confirmation,
any Supplemental Confirmation or the Agreement. The foregoing provisions shall survive any termination or completion of the Transaction.
(i) Waiver
of Trial by Jury. Each of Counterparty and Dealer hereby irrevocably waives (on its own behalf
and, to the extent permitted by applicable law, on behalf of its stockholders) all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or relating to the Transaction or the actions of DEALER or
its affiliates in the negotiation, performance or enforcement hereof.
(j) Governing
Law/Jurisdiction. Each Confirmation and any claim, controversy or dispute arising under or related to each Confirmation shall be
governed by the laws of the State of New York without reference to the conflict of laws provisions thereof. The parties hereto irrevocably
submit to the exclusive jurisdiction of the courts of the State of New York and the United States Court for the Southern District of
New York in connection with all matters relating hereto and waive any objection to the laying of venue in, and any claim of inconvenient
forum with respect to, these courts.
(k) Designation
by Dealer. Notwithstanding any other provision in any Confirmation to the contrary requiring or allowing Dealer to purchase, sell,
receive or deliver any Shares or other securities to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell,
receive or deliver such Shares or other securities and otherwise to perform Dealer obligations in respect of any Transaction and any
such designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty only to the extent of any such
performance.
(l) Insolvency
Filing. Notwithstanding anything to the contrary herein, in any Supplemental Confirmation, in the Agreement or in the Equity Definitions,
upon any Insolvency Filing or other proceeding under the Bankruptcy Code in respect of the Issuer (a "Bankruptcy Termination Event"),
each Transaction shall automatically terminate on the date thereof without further liability of either party to this Confirmation to
the other party (except for any liability in respect of any breach of representation or covenant by a party under this Master Confirmation
or any Supplemental Confirmation prior to the date of such Insolvency Filing or other proceeding), it being understood that each Transaction
is a contract for the issuance of Shares by the Issuer.
(m) Disclosure.
Effective from the date of commencement of discussions concerning any Transaction, each of Dealer and Counterparty and each of their
employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and
tax structure of such Transaction and all materials of any kind (including opinions or other tax analyses) relating to such tax treatment
and tax structure.
(n) Right
to Extend. Dealer may postpone any Settlement Date or any other date of valuation or delivery, with respect to some or all of the
relevant Settlement Shares, if Dealer determines, based on the advice of counsel, that such extension is reasonably necessary or appropriate
to enable Dealer to effect purchases of Shares in connection with its hedging activity hereunder in a manner that would, if Dealer were
Counterparty or an affiliated purchaser of Counterparty, be in compliance with applicable legal and regulatory requirements.
(o) Counterparty
Share Repurchases. Counterparty agrees not to repurchase, directly or indirectly, any Shares if, immediately following such purchase,
the Outstanding Share Percentage would be equal to or greater than 4.5%. The "Outstanding Share Percentage" as of any
day is the fraction (1) the numerator of which is the aggregate of the "Number of Shares" (or equivalent concept) for
each outstanding Transaction and all outstanding Other Dealer Forward Transactions and (2) the denominator of which is the number
of Shares outstanding on such day.
(p) Limit
on Beneficial Ownership. Notwithstanding any other provisions hereof, Dealer shall not have the right to acquire Shares hereunder
and Dealer shall not be entitled to take delivery of any Shares hereunder (in each case, whether in connection with the purchase of Shares
on any Settlement Date or any Termination Settlement Date, any Private Placement Settlement or otherwise) to the extent (but only to
the extent) that, after such receipt of any Shares hereunder, (i) the Share Amount would exceed the Post-Effective Limit, (ii) Dealer
and each person subject to aggregation of Shares with Dealer under Section 13 or Section 16 of the Exchange Act and rules promulgated
thereunder, including any "group" of which Dealer or its affiliates is a part, (the "Dealer Group") would
directly or indirectly beneficially own (as such term is defined for purposes of Section 13 or Section 16 of the Exchange Act
and rules promulgated thereunder) in excess of 8.0% of the then outstanding Shares (the "Threshold Number of Shares")
or (iii) such acquisition would result in a violation of any restriction on ownership and transfers set forth in Section 7.2.1
of Counterparty's Articles of Amendment and Restatement (the "Counterparty Stock Ownership Restriction"). Any purported
delivery hereunder shall be void and have no effect to the extent (but only to the extent) that, after such delivery, (i) the Share
Amount would exceed the Post-Effective Limit, (ii) the Dealer Group would directly or indirectly so beneficially own in excess of
the Threshold Number of Shares or (iii) such delivery would result in a violation of the Counterparty Stock Ownership Restriction.
If any delivery owed to Dealer hereunder is not made, in whole or in part, as a result of this provision, Counterparty's obligation to
make such delivery shall not be extinguished and Counterparty shall make such delivery as promptly as practicable after, but in no event
later than one Scheduled Trading Day after, Dealer gives notice to Counterparty that, after such delivery, (i) the Share Amount
would not exceed the Post-Effective Limit, (ii) the Dealer Group would not directly or indirectly so beneficially own in excess
of the Threshold Number of Shares or (iii) such delivery would not result in a violation of the Counterparty Stock Ownership Restriction,
as applicable.
In addition, notwithstanding anything herein
to the contrary, if any delivery owed to Dealer hereunder is not made, in whole or in part, as a result of the immediately preceding
paragraph, Dealer shall be permitted to make any payment due in respect of such Shares to Counterparty in two or more tranches that correspond
in amount to the number of Shares delivered by Counterparty to Dealer pursuant to the immediately preceding paragraph.
(q) Commodity
Exchange Act. Each of Dealer and Counterparty agrees and represents that it is an "eligible contract participant" as defined
in Section 1a(18) of the U.S. Commodity Exchange Act, as amended (the "CEA"), and the Agreement and each Transaction
are subject to individual negotiation by the parties and have not been executed or traded on a "trading facility" as defined
in Section 1a(51) of the CEA.
(r) Bankruptcy
Status. Subject to Paragraph 7(l) above, Dealer acknowledges and agrees that no Confirmation is intended to convey to Dealer
rights with respect to the transactions contemplated hereby that are senior to the claims of Counterparty's common stockholders in any
U.S. bankruptcy proceedings of Counterparty; provided, however, that nothing herein shall be deemed to limit Dealer's right
to pursue remedies in the event of a breach by Counterparty of its obligations and agreements with respect to any Confirmation or the
Agreement; and provided, further, that nothing herein shall limit or shall be deemed to limit Dealer's rights in respect
of any transaction other than any Transaction governed by this Master Confirmation.
(s) No
Collateral or Setoff. Notwithstanding Section 6(f) or any other provision of the Agreement or any other agreement between
the parties to the contrary, the obligations of Counterparty hereunder are not secured by any collateral. Obligations in respect of any
Transaction shall not be set off against any other obligations of the parties, other than obligations in respect of this Transaction
or any other Transaction governed by this Master Confirmation, whether arising under the Agreement, under any other agreement between
the parties hereto, by operation of law or otherwise, and no obligations of the parties, other than in respect of any Transaction between
the parties governed by this Master Confirmation, shall be set off against obligations in respect of any Transaction, whether arising
under the Agreement, under any other agreement between the parties hereto, by operation of law or otherwise, and each party hereby waives
any such right of setoff.
(t) Tax
Matters.
| (i) | For the purpose of Section 3(f) of
the Agreement: |
(A) Dealer
makes the following representations:
[Insert dealer-specific tax representations.]
(B) Counterparty
makes the following representations:
(1) It
is a "U.S. person" (as that term is used in section 1.1441-4(a)(3)(ii) of United States Treasury Regulations) for U.S.
federal income tax purposes.
(2) It
is a corporation for U.S. federal income tax purposes and is organized under the laws of the State of Maryland, and is an exempt recipient
under Treasury Regulation Section 1.6049-4(c)(1)(ii)(J).
| (ii) | Withholding Tax imposed on payments
to non-US counterparties under the United States Foreign Account Tax Compliance Act.
"Indemnifiable Tax", as defined in Section 14 of the Agreement, shall not
include any U.S. federal withholding tax imposed or collected pursuant to Sections 1471 through
1474 of the U.S. Internal Revenue Code of 1986, as amended (the "Code"),
any current or future regulations or official interpretations thereof, any agreement entered
into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation,
rules or practices adopted pursuant to any intergovernmental agreement entered into
in connection with the implementation of such Sections of the Code (a "FATCA Withholding
Tax"). For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction
or withholding of which is required by applicable law for the purposes of Section 2(d) of
the Agreement. |
| (iii) | HIRE Act. "Indemnifiable
Tax", as defined in Section 14 of the Agreement, shall not include any tax imposed
on payments treated as dividends from sources within the United States under Section 871(m) of
the Code or any regulations issued thereunder (an "871(m) Tax"). For
the avoidance of doubt, an 871(m) Tax is a Tax the deduction or withholding of which
is required by applicable law for the purposes of Section 2(d) of the Agreement. |
| (iv) | Tax documentation. For the purposes
of Sections 4(a)(i) and 4(a)(ii) of the Agreement, Counterparty shall provide to
Dealer, and Dealer shall deliver to Counterparty, a valid and duly executed U.S. Internal
Revenue Service Form [●], or any successor thereto, (i) on or before the
date of execution of this Master Confirmation; (ii) promptly upon reasonable demand
by the other party; and (iii) promptly upon learning that any such tax form previously
provided has become invalid, obsolete, or incorrect. Additionally, Counterparty or Dealer
shall, promptly upon reasonable request by the other party, provide such other tax forms
and documents reasonably requested by the other party. |
| (v) | Change of Account. Section 2(b) of
the Agreement is hereby amended by the addition of the following after the word "delivery"
in the first line thereof: "to another account in the same legal and tax jurisdiction". |
(u) Wall
Street Transparency and Accountability Act of 2010. The parties hereby agree that none of (i) Section 739 of the
WSTAA, (ii) any similar legal certainty provision included in any legislation enacted, or rule or regulation promulgated, on
or after the Trade Date, (iii) the enactment of the WSTAA or any regulation under the WSTAA, (iv) any requirement under the
WSTAA or (v) any amendment made by the WSTAA shall limit or otherwise impair either party's right to terminate, renegotiate, modify,
amend or supplement any Confirmation or the Agreement, as applicable, arising from a termination event, force majeure, illegality, increased
cost, regulatory change or similar event under any Confirmation, the Equity Definitions or the Agreement (including, but not limited
to, any right arising from any Acceleration Event).
(v) Other
Forward(s). Counterparty agrees that (x) it shall not cause to occur, or permit to exist, any Forward Hedge Selling Period at
any time there is (1) a "Forward Hedge Selling Period" (or equivalent concept) relating to any other issuer forward sale
or similar transaction (including, without limitation, any "Transaction" under (and as defined under) any substantially identical
master forward confirmation) with any financial institution other than Dealer (an "Other Forward Transaction"), (2) any
"Unwind Period" (or equivalent concept) hereunder or under any Other Forward Transaction or (3) any other period in which
Counterparty directly or indirectly issues and sells Shares pursuant to an underwriting agreement (or similar agreement including, without
limitation, any equity distribution agreement) (such period, a "Selling Period") that Counterparty enters into with
any financial institution other than Dealer, and (y) Counterparty shall not cause to occur, or permit to exist, an Unwind Period
at any time there is an "Unwind Period" (or equivalent concept) under any Other Forward Transaction that is not an Other ATM
Forward Transaction (as defined below), a "Forward Hedge Selling Period" (or equivalent concept) relating to any Transaction
or any Other Forward Transaction or any Selling Period. Dealer acknowledges, however, that, pursuant to the Distribution Agreement,
Counterparty may enter into one or more forward transactions (each, as amended from time to time, an "Other ATM Forward Transaction"
and collectively, the "Other ATM Forward Transactions") with another Forward Purchaser (as defined in the Distribution
Agreement) (an "Other ATM Dealer"). Dealer and Counterparty agree that if Counterparty designates a "Settlement
Date" (or equivalent concept) with respect to one or more Other ATM Forward Transactions for which "Cash Settlement" (or
equivalent concept) or "Net Share Settlement" (or equivalent concept) is applicable, and the resulting "Unwind Period"
(or equivalent concept) for such Other ATM Forward Transaction coincides for any period of time with an Unwind Period for a Transaction
(the "Overlap Unwind Period"), Counterparty shall notify Dealer at least one Scheduled Trading Day prior to the commencement
of such Overlap Unwind Period of the first Scheduled Trading Day and the length of such Overlap Unwind Period, and Dealer shall be permitted
to purchase Shares to unwind its hedge in respect of this Transaction only on alternating Scheduled Trading Days during such Overlap
Unwind Period, commencing on the first, second, third or later Scheduled Trading Day of such Overlap Unwind Period, as notified to Dealer
by Counterparty at least one Scheduled Trading Day prior to such Overlap Unwind Period (which alternating Scheduled Trading Days, for
the avoidance of doubt, would be every other Scheduled Trading Day if there is only one Other ATM Dealer in such Overlap Unwind Period,
every third Scheduled Trading Day if there are two Other ATM Dealers, etc.).
(w) Counterparty
and Dealer agree and acknowledge that: (A) the Transactions contemplated by this Master Confirmation will be entered into in reliance
on the fact that this Master Confirmation and each Supplemental Confirmation hereto form a single agreement between Counterparty and
Dealer, and Dealer would not otherwise enter into such Transactions; (B) this Master Confirmation, together with each Supplemental
Confirmation hereto, is a "qualified financial contract", as such term is defined in Section 5-701(b)(2) of the New
York General Obligations Law; (C) each Supplemental Confirmation hereto, regardless of whether transmitted electronically or otherwise,
constitutes a "confirmation in writing sufficient to indicate that a contract has been made between the parties" hereto, as
set forth in Section 5-701(b)(3)(b) of the New York General Obligations Law; and (D) this Master Confirmation and each
Supplemental Confirmation hereto constitute a prior "written contract", as set forth in Section 5-701(b)(1)(b) of
the New York General Obligations Law, and each party hereto intends and agrees to be bound by this Master Confirmation and such Supplemental
Confirmation.
(x) Counterparty
and Dealer agree that, upon the effectiveness of any accepted Placement Notice relating to a Forward (as such term is defined in the
Distribution Agreement), in respect of the Transaction to which such accepted Placement Notice relates, each of the representations,
warranties, covenants, agreements and other provisions of this Master Confirmation and the Supplemental Confirmation for such Transaction
(including, without limitation, Dealer's right to designate a Termination Settlement Date in respect of such Transaction pursuant to
Paragraph 7(f) and the termination of such Transaction following a Bankruptcy Termination Event as described in Paragraph 7(l))
shall govern, and be applicable to, such Transaction as of the first Trading Day of the Forward Hedge Selling Period for such Transaction
as if the Trade Date for such Transaction were such first Trading Day. Notwithstanding anything to the contrary in this Master Confirmation,
any Supplemental Confirmation, the Agreement or the Equity Definitions, if Dealer designates a Termination Settlement Date with respect
to a Transaction (1) following the occurrence of an Event of Default or Termination Event, other than a Bankruptcy Termination Event,
or an event described in Paragraph 7(e)(iv) and such Termination Settlement Date is to occur before the date that is one Settlement
Cycle after the last day of the Forward Hedge Selling Period for such Transaction or (2) prior to the Counterparty's execution of
the Supplemental Confirmation relating to such Transaction, then, for purposes of such Termination Settlement Date, (i) a Supplemental
Confirmation relating to such Transaction reasonably completed by Dealer shall, notwithstanding the provisions under Paragraph 7(a),
be deemed to be effective; and (ii) in the case of (1), the Forward Price shall be deemed to be the Initial Forward Price (calculated
assuming that the last Trading Day of such Forward Hedge Selling Period were the day immediately following the date Dealer so notifies
Counterparty of such designation of a Termination Settlement Date for purposes of such Termination Settlement Date). For the avoidance
of doubt, in the event that this Paragraph 7(x) is triggered, the terms of such deemed Supplemental Confirmation shall be reviewed,
confirmed or determined by the Calculation Agent to the same extent such terms would have been reviewed, confirmed or determined by the
Calculation Agent if the parties had entered into a Supplemental Confirmation.
(y) ISDA
2018 U.S. Resolution Stay Protocol. The parties agree that the definitions and provisions contained in the ISDA 2018 U.S. Resolution
Stay Protocol and Attachment thereto as published by the International Swaps and Derivatives Association, Inc. on July 31,
2018 are hereby incorporated into and apply to the Agreement as if set forth in full herein. For these purposes, the following terms
as used in the U.S. Stay Protocol shall have the following meanings: “Regulated Entity” shall mean Dealer and "Protocol
Covered Agreement" or "Covered Agreement", as applicable, shall mean the Agreement.
(z) Insert
dealer-specific provisions.
[Signature Page Follows]
Please confirm your agreement to be bound by
the terms stated herein by executing the copy of this Master Confirmation enclosed for that purpose and returning it to us.
|
Yours sincerely, |
|
|
|
|
[DEALER] |
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
[Signature Page to Registered Forward
Transaction Master Confirmation]
Confirmed as of the date first above written:
ALEXANDRIA
REAL ESTATE EQUITIES, INC.
[Signature Page to Registered Forward
Transaction Master Confirmation]
Annex A
SUPPLEMENTAL CONFIRMATION
To: |
Alexandria
Real Estate Equities, Inc. |
From: |
[DEALER] |
Re: |
Registered
Forward Transaction |
Date: |
[_________],
20[__] |
|
|
Ladies and Gentlemen:
The purpose of this Supplemental
Confirmation is to confirm the terms and conditions of the Transaction entered into between [Dealer] ("Dealer") and
Alexandria Real Estate Equities, Inc. ("Counterparty") (together, the "Contracting Parties") on
the Trade Date specified below. This Supplemental Confirmation is a binding contract between Dealer and Counterparty as of the relevant
Trade Date for the Transaction referenced below.
1. This
Supplemental Confirmation supplements, forms part of, and is subject to the Master Confirmation dated as of [●] (the "Master
Confirmation") between the Contracting Parties, as amended and supplemented from time to time. All provisions contained in the
Master Confirmation govern this Supplemental Confirmation except as expressly modified below.
2. The
terms of the Transaction to which this Supplemental Confirmation relates are as follows:
Trade
Date: |
[_______],
20[__] |
|
|
Effective
Date: |
[_______],
20[__] |
|
|
Number
of Shares: |
[________] |
|
|
Maturity
Date: |
[_______],
20[__] |
|
|
Initial
Forward Price: |
USD
[____] |
|
|
Volume-Weighted
Hedge Price: |
[______] |
|
|
Spread: |
[_.__]%
per annum |
Counterparty hereby agrees
(a) to check this Supplemental Confirmation carefully and promptly upon receipt so that errors or discrepancies can be promptly
identified and rectified and (b) to confirm that the foregoing (in the exact form provided by Dealer) correctly sets forth the terms
of the agreement between Dealer and Counterparty hereunder, by manually signing this Supplemental Confirmation or this page hereof
as evidence of agreement to such terms and providing the other information requested herein and promptly returning an executed copy to
us.
|
Yours faithfully, |
|
|
|
[DEALER] |
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
[Signature Page to Registered Forward
Transaction Supplemental Confirmation]
Agreed and accepted by: |
|
|
|
ALEXANDRIA REAL ESTATE EQUITIES, INC.
|
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
|
[Signature Page to Registered Forward
Transaction Supplemental Confirmation]
Schedule I
Forward
Price Reduction Amounts
Forward
Price Reduction Date: |
Forward
Price Reduction Amount: |
Trade
Date |
USD
0.00 |
[______],
20[__] |
USD[___] |
[______],
20[__] |
USD[___] |
…….. |
…….. |
[______],
20[__] |
USD[___] |
Maturity
Date |
USD
0.00 |
EXHIBIT E
Form of Joinder Agreement
This JOINDER AGREEMENT (this "Joinder"),
dated as of [●], is by each Person identified on the signature page to this Joinder as Additional Forward Purchaser
or Additional Forward Seller (each a "Joining Party"). Capitalized terms used but not defined in this Joinder have the
meanings given to them in the Distribution Agreement (as defined below).
RECITALS:
WHEREAS,
Alexandria Real Estate Equities, Inc., a Maryland Corporation (the "Company"), Mizuho Securities USA LLC, Robert
W. Baird & Co. Incorporated, Barclays Capital Inc., BBVA Securities Inc., BMO Capital Markets Corp., BNP Paribas Securities
Corp., BofA Securities, Inc., BTIG, LLC, Capital One Securities, Inc., Citigroup Global Markets Inc., Citizens JMP Securities,
LLC, Evercore Group L.L.C., Fifth Third Securities, Inc., Goldman Sachs & Co. LLC, Jefferies LLC, J.P. Morgan Securities
LLC, RBC Capital Markets, LLC, Regions Securities LLC, Scotia Capital (USA) Inc., TD Securities (USA) LLC, Truist Securities, Inc.
and Wedbush Securities Inc. (as agents for the Company in connection with the offer and sale of any Issuance Shares), Mizuho Markets
Americas LLC, Robert W. Baird & Co. Incorporated, Barclays Bank PLC, Banco Bilbao Vizcaya Argentaria, S.A., Bank of Montreal,
BNP Paribas, Bank of America, N.A., Nomura Global Financial Products, Inc., Canadian Imperial Bank of Commerce, Citibank, N.A.,
Citizens JMP Securities, LLC, Goldman Sachs & Co. LLC, Jefferies LLC, JPMorgan Chase Bank, National Association, Royal Bank
of Canada, Regions Securities LLC, The Bank of Nova Scotia, The Toronto-Dominion Bank and Truist Bank (as counterparties under any Forward
Contract), and Mizuho Securities USA LLC, Robert W. Baird & Co. Incorporated, Barclays Capital Inc., BBVA Securities Inc., BMO
Capital Markets Corp., BNP Paribas Securities Corp., BofA Securities, Inc., Nomura Securities International, Inc. (acting through
BTIG, LLC as agent), CIBC World Markets Corp., Citigroup Global Markets Inc., Citizens JMP Securities, LLC, Evercore Group L.L.C., Goldman
Sachs & Co. LLC, Jefferies LLC, J.P. Morgan Securities LLC, RBC Capital Markets, LLC, Regions Securities LLC, Scotia Capital
(USA) Inc., TD Securities (USA) LLC and Truist Securities, Inc. (as agents for the Forward Purchasers in connection with the offering
and sale of any Forward Hedge Shares) entered into a distribution agreement dated as of February 15, 2024 (the "Distribution
Agreement").
WHEREAS, in accordance with Section 9.06
of the Distribution Agreement, each Joining Party is entering into this Joinder.
NOW, THEREFORE, for the consideration described
in the Distribution Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, and
intending to be legally bound, each Joining Party hereby agrees as follows:
| 1. | Incorporation by Reference. The
Distribution Agreement is hereby incorporated by reference as if restated in this Joinder
in full. |
| 2. | Joinder. Each Joining Party hereby:
(i) represents that it has obtained the prior written consent of the Company to become
an Additional Forward Purchaser or an Additional Forward Seller, as applicable; (ii) acknowledges
that it has received and reviewed the Distribution Agreement; (iii) joins the Distribution
Agreement effective as of [●] (the "Joinder Effective Date") in the capacity
identified on the signature page hereto; (iv) agrees to comply with and perform
its obligations under the Distribution Agreement and to be fully bound thereby in such capacity
as if it had been an original party thereto; and (v) agrees to execute and deliver a
Master Forward Confirmation dated as of the Joinder Effective Date promptly after execution
and delivery of this Joinder. |
| 3. | Ratification of Distribution Agreement.
All of the terms and conditions of the Distribution Agreement are hereby ratified and
shall remain unchanged and continue in full force and effect. |
|
[JOINING PARTY], |
|
as Additional Forward Purchaser |
|
|
|
By: |
|
|
|
Name: |
|
|
|
Title: |
|
|
|
|
[JOINING PARTY], |
|
as Additional Forward Seller |
|
|
|
By: |
|
|
|
Name: |
|
|
|
Title: |
|
SCHEDULE 1
ALEXANDRIA REAL ESTATE EQUITIES, INC.
|
Joel S. Marcus, Executive Chairman |
|
|
Telephone: |
626-578-0777 |
Facsimile: |
626-578-0770 |
Address: |
26 North Euclid Avenue |
|
Pasadena, California 91101 |
E-mail Address: |
jmarcus@are.com |
|
Marc E. Binda, Chief Financial Officer and Treasurer |
|
|
Telephone: |
626-578-0777 |
Facsimile: |
626-578-0770 |
Address: |
26 North Euclid Avenue |
|
Pasadena, California 91101 |
E-mail Address: |
mbinda@are.com |
MIZUHO SECURITIES USA LLC
Stephen Roney
| Telephone: | (212) 205-7527 |
| Address: | 1271
Avenue of the Americas |
| | New York, NY 10020 |
| E-mail Address: | Stephen.Roney@mizuhogroup.com |
Ivana Rupcic-Hulin
| Telephone: | (212) 205-7734 |
| Address: | 1271 Avenue of the Americas |
| | New York, NY 10020 |
| E-mail Address: | Ivana.Rupcic-Hulin@mizuhogroup.com |
Daniel Blake
| Telephone: | (212) 205-7755 |
| Address: | 1271
Avenue of the Americas |
| | New York, NY 10020 |
| E-mail Address: | Daniel.Blake@mizuhogroup.com |
ROBERT W. BAIRD & CO. INCORPORATED
Barbara Nelson
| Address: | 777
E. Wisconsin Avenue |
| | Milwaukee, Wisconsin 53202 |
| E-mail Address: | banelson@rwbaird.com |
Sandy Walter
| Address: | 777
E. Wisconsin Avenue |
| | Milwaukee, Wisconsin 53202 |
| E-mail Address: | swalter@rwbaird.com |
Matt Gailey
| Address: | 777
E. Wisconsin Avenue |
| | Milwaukee, Wisconsin 53202 |
| E-mail Address: | mgailey@rwbaird.com |
BARCLAYS CAPITAL INC.
Brian Ulmer
| Address: | 745
Seventh Avenue |
| | New York, New York 10019 |
| E-mail Address: | brian.ulmer@barclays.com |
Kevin Condon
| Address: | 745
Seventh Avenue |
| | New York, New York 10019 |
| E-mail Address: | kevin.condon@barclays.com |
BBVA SECURITIES INC.
| Address: | 1345
Avenue of the Americas |
| | New York, NY 10105 |
| Attention: | Global Markets COO |
| E-mail Address: | ny.gmcoo.group@bbva.com |
| With a copy to: | ny.legal.services.group@bbva.com |
| | |
BMO CAPITAL MARKETS CORP.
Brian Riley
| Telephone: | (212) 605-1414 |
| Address: | 151
W 42nd Street 32nd Floor |
| | New York, NY 10036 |
| Facsimile: | (212) 885-4165 |
BNP PARIBAS SECURITIES CORP.
Spencer Cherniak
| Mobile: | 917-286-8410 |
| Address: | 787 Seventh Avenue, 8th Floor |
| | New York, New York 10019 |
| E-mail Address: | spencer.cherniak@us.bnpparibas.com |
| | dl.nyk.ste@us.bnpparibas.com |
BOFA SECURITIES, INC.
Rohan Handa
| Telephone: | 646-855-8654 |
| Address: | One Bryant Park |
| | New York, New York 10036 |
| E-mail Address: | Rohan.Handa@bofa.com |
BTIG, LLC
Carrie Taylor
| Address: | 600
Montgomery Street |
| | San Francisco, CA 94111 |
| E-mail Address: | ctaylor@btig.com |
| | BTIGUSATMTrading@btig.com |
| | BTIGcompliance@btig.com |
Anthony Wayne
| Address: | 600
Montgomery Street |
| | San Francisco, CA 94111 |
| E-mail Address: | awayne@btig.com |
| With a copy to: | BTIGUSATMTrading@btig.com |
| | BTIGcompliance@btig.com |
Doug Hansen
| Address: | 600
Montgomery Street |
| | San Francisco, CA 94111 |
| E-mail Address: | dhansen@btig.com |
| With a copy to: | BTIGUSATMTrading@btig.com |
| | BTIGcompliance@btig.com |
Mike Passaro
| Telephone: | 212-882-2311 |
| Address: | 600
Montgomery Street |
| E-mail Address: | San Francisco, CA 94111 |
| | mpassaro@btig.com |
| With a copy to: | BTIGUSATMTrading@btig.com |
| | BTIGcompliance@btig.com |
CAPITAL ONE SECURITIES, INC.
Phil Winiecki
| Telephone: | (646) 592-3866 |
| Address: | 299 Park Avenue, Floor 31 |
| | New York, NY 10171 |
| Email Address: | phil.winiecki@capitalone.com |
Jennifer Blevins
| Telephone: | (504) 521-4184 |
| Address: | 201 St. Charles Avenue, Suite 1830 |
| | New Orleans, LA 70170 |
| Email Address: | jennifer.blevins@capitalone.com |
CITIGROUP GLOBAL MARKETS INC.
Matthew Morris
| Telephone: | (212) 723-7833 |
| Address: | 388 Greenwich Street |
| | New York, NY 10013 |
| E-mail Address: | matthew.t.morris@citi.com |
Derek Gross
| Telephone: | (212) 723-1240 |
| Address: | 388 Greenwich Street |
| | New York, NY 10013 |
| E-mail Address: | derek.william.gross@citi.com |
Walter Westhoff
| Telephone: | (212) 723-1776 |
| Address: | 388 Greenwich Street |
| | New York, NY 10013 |
| E-mail Address: | walter.westhoff@citi.com |
CITIZENS JMP SECURITIES, LLC
Aidan Whitehead
| Telephone: | (415) 263-1676 |
| Address: | 600 Montgomery Street, Suite 1100 |
| | San Francisco, California 94111 |
| E-mail Address: | awhitehead@jmpsecurities.com |
Eric Clark
| Telephone: | (415) 835-3941 |
| Address: | 600 Montgomery Street, Suite 1100 |
| | San Francisco, California 94111 |
| E-mail Address: | eclark@jmpsecurities.com |
Gianpaolo Arpaia
| Telephone: | (212) 906-3533 |
| Address: | 450 Park Avenue, 5th Floor |
| | New York, NY 10022 |
| E-mail Address: | garpaia@jmpsecurities.com |
EVERCORE GROUP L.L.C.
Adriana Diez
| Telephone: | (212) 767-4169 |
| Address: | 55 East 52nd Street, 35th Floor |
| | New York, New York 10055 |
| E-mail Address: | Adriana.diez@evercore.com |
FIFTH THIRD SECURITIES, INC.
Gabe Mathews
| Address: | 424 Church Street, Suite 600 |
| | Nashville, Tennessee 37219 |
| E-mail Address: | gabe.mathews@53.com |
Steve Materazzi
| Address: | 424 Church Street, Suite 600 |
| | Nashville, Tennessee 37219 |
| E-mail Address: | Stephen.materazzi@53.com |
GOLDMAN SACHS & CO. LLC
Todd Eagle
| Telephone: | 212-902-8332 |
| Address: | 200 West Street |
| | New York, New York 10282-2198 |
| E-mail Address: | todd.eagle@gs.com |
Ryan Cunn
| Telephone: | 212-357-2149 |
| Address: | 200 West Street |
| | New York, New York 10282-2198 |
| E-mail Address: | ryan.cunn@gs.com |
JEFFERIES LLC
Donald Lynaugh
| Address: | 520
Madison Avenue |
| | New York, New York 10022 |
| E-mail Address: | dlynaugh@jefferies.com |
Michael Magarro
| Address: | 520
Madison Avenue |
| | New York, New York 10022 |
| E-mail Address: | mmagarro@jefferies.com |
J.P. MORGAN SECURITIES LLC
Sanjeet Dewal
| Telephone: | (212) 622-8783 |
| Address: | 383 Madison Avenue, 6th Floor |
| | New York, New York 10179 |
| E-mail Address: | sanjeet.s.dewal@jpmorgan.com |
Nomura
Global Financial Products, Inc.
| Address: | 309 West 49th Street |
| | New York, NY 10019 |
| Attention: | Structured Equity Solutions |
| E-mail Address: | cedamericas@nomura.com |
| With a copy to: | nyequitieslegal@nomura.com |
| | BTIG, LLC, at the addresses for BTIG, LLC included in this Schedule 1. |
Nomura
Securities International, Inc.
(acting through BTIG, LLC as agent)
| Address: | 309 West 49th Street |
| | New York, NY 10019 |
| Attention: | Structured Equity Solutions |
| E-mail Address: | cedamericas@nomura.com |
| With a copy to: | Dan.Rosenbaum@nomura.com |
| | BTIG, LLC as agent of the Forward Seller, at the addresses for BTIG, LLC included in this Schedule 1. |
| | |
RBC
Capital Markets, LLC
JT Deignan
| Telephone: | (646) 618-6607 |
| Address: | 200 Vesey Street, 8th Floor |
| | New York, New York 10281 |
| E-mail Address: | jt.deignan@rbccm.com |
TJ Opladen
| Telephone: | (212) 905-5846 |
| Address: | 200 Vesey Street, 8th Floor |
| | New York, New York 10281 |
| E-mail Address: | tj.opladen@rbccm.com |
REGIONS SECURITIES LLC
Brit Stephens
| Telephone: | (980) 287-2734 |
| Address: | 615 South College Street, Suite 600 |
| | Charlotte, NC, 28202 |
| E-mail Address: | brit.stephens@regions.com |
Ed Armstrong
| Telephone: | (704) 362-7371 |
| Address: | 615 South College Street, Suite 600 |
| | Charlotte, NC, 28202 |
| E-mail Address: | ed.armstrong@regions.com |
Matthew Stewart
| Telephone: | (704) 362-3570 |
| Address: | 615 South College Street, Suite 600 |
| | Charlotte, NC, 28202 |
| E-mail Address: | matthew.stewart@regions.com |
Scott Williams
| Telephone: | (980) 287-2734 |
| Address: | 615 South College Street, Suite 600 |
| | Charlotte, NC, 28202 |
| E-mail Address: | scott.williams2@regions.com |
SCOTIA CAPITAL (USA) INC.
William See
| Telephone: | 212-225-6853 |
| Address: | 250 Vesey Street, 24th Floor |
| | New York, New York 10281 |
| E-mail Address: | William.see@scotiabank.com |
TD SECURITIES (USA) LLC
Mike Murphy
| Telephone: | 332-259-5223 |
| Address: | 1 Vanderbilt Avenue, |
| | New York, New York 10017 |
| E-mail Address: | Michael.murphy3@tdsecurities.com |
| With a copy to: | TDS_ATM@tdsecurities.com |
Adriano Pierroz
| Telephone: | 475-332-0088 |
| Address: | 1 Vanderbilt Avenue, |
| | New York, New York 10017 |
| E-mail Address: | adriano.pierroz@tdsecurities.com |
| With a copy to: | TDS_ATM@tdsecurities.com |
TRUIST SECURITIES, INC.
Keith Carpenter
| Telephone: | 404-926-5037 |
| Address: | 3333 Peachtree Road NE, 11th Floor |
| | Atlanta, Georgia 30326 |
| E-mail Address: | keith.carpenter@truist.com |
Geoff Fennel
| Telephone: | 404-926-5832 |
| Address: | 3333 Peachtree Road NE, 11th Floor |
| | Atlanta, Georgia 30326 |
| Email Address: | geoff.fennel@truist.com |
WEDBUSH SECURITIES INC.
Eric Dobi
| Telephone: | 212-931-7089 |
| Address: | 142 West 57th Street, 12th Floor |
| | New York, NY 10019 |
| E-mail Address: | eric.dobi@wedbush.com |
Ben Davey
| Telephone: | 415-263-6624 |
| Address: | 600 Montgomery Street, 29th Floor |
| | San Francisco, CA 94111 |
| E-mail Address: | ECM@wedbush.com |
Stacy Tam
| Telephone: | 415-274-6828 |
| Address: | 600 Montgomery Street, 29th Floor |
| | San Francisco, CA 94111 |
| E-mail Address: | stacy.tam@wedbush.com |
Francis Paulino
| Telephone: | 213-688-8000 |
| Address: | 142 West 57th Street, 12th Floor |
| | New York, NY 10019 |
| E-mail Address: | Francis.paulino@wedbsuh.com |
SCHEDULE 2
MATERIAL SUBSIDIARIES OF THE COMPANY
Material
Subsidiary |
Jurisdiction
of Organization |
Alexandria
Real Estate Equities, L.P. |
Delaware |
ARE-QRS
Corp. |
Maryland |
Alexandria
Venture Investments, LLC |
Delaware |
Exhibit 1.2
Form of
the Master Forward Confirmation
[Dealer Letterhead]
Date: [●]
To: Alexandria
Real Estate Equities, Inc.
26 North
Euclid Avenue
Pasadena,
CA 91101
From: [Dealer]
[Address]
Attn:
[●]
Telephone:
[●]
Facsimile:
[●]
E-mail:
[●]
Re: Master
Confirmation for Registered Forward Transactions
Ladies and Gentlemen:
The purpose of
this letter agreement (this "Master Confirmation") is to confirm the terms and conditions of the transactions to be
entered into from time to time between [Dealer] ("Dealer") and Alexandria Real Estate Equities, Inc. ("Counterparty")
(collectively, the "Transactions" and each, a "Transaction"). This letter agreement constitutes a "Confirmation"
as referred to in the Agreement specified below. Each Transaction will be evidenced by a supplemental confirmation (each, a "Supplemental
Confirmation", and each such Supplemental Confirmation, together with this Master Confirmation, a "Confirmation"
for purposes of the Agreement specified below) substantially in the form of Annex A hereto.
The
definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the "Equity Definitions"), as
published by the International Swaps and Derivatives Association, Inc., are incorporated into each Confirmation. In the event of
any inconsistency among the Agreement, this Master Confirmation, any Supplemental Confirmation and the Equity Definitions, the following
will prevail in the order of precedence indicated: (i) such Supplemental Confirmation; (ii) this Master Confirmation; (iii) the
Equity Definitions; and (iv) the Agreement.
Each
party is hereby advised, and each such party acknowledges, that the other party has engaged in, or refrained from engaging in, substantial
financial transactions and has taken other material actions in reliance upon the parties' entry into each Transaction to which this Master
Confirmation relates on the terms and conditions set forth below.
1. Each
Confirmation evidences a complete and binding agreement between Dealer and Counterparty as to the terms of the applicable Transaction.
Each Confirmation shall supplement, form a part of, and be subject to an agreement in the form of the ISDA 2002 Master Agreement (the
"Agreement") as if Dealer and Counterparty had executed an agreement in such form (without any Schedule but with the
elections set forth in this Confirmation). The parties hereby agree that, other than the Transactions to which this Master Confirmation
relates, no Transaction shall be governed by the Agreement. For purposes of the Equity Definitions, each Transaction to which this Master
Confirmation relates is a Share Forward Transaction.
2. The
terms of the particular Transactions to which this Confirmation relates are as follows: |
|
General Terms: |
|
|
|
Trade Date: |
For each Transaction, as specified in the Supplemental Confirmation
for such Transaction, to be the last Trading Day (as defined in the Distribution Agreement (as defined below)) of the Forward Hedge
Selling Period (as defined below) for such Transaction. |
|
|
Effective Date: |
For each Transaction, as specified in the Supplemental Confirmation
for such Transaction, to be the date that is one Settlement Cycle following the Trade Date for such Transaction, or such later date
on which the conditions set forth in Paragraph 7(a) of this Master Confirmation shall have been satisfied or waived by Dealer. |
|
|
Seller: |
Counterparty |
|
|
Buyer: |
Dealer |
|
|
Shares: |
The common stock of Counterparty, USD 0.01 par value per share (Ticker
Symbol: "ARE") |
|
|
Number of Shares: |
For each
Transaction, initially, as specified in the Supplemental Confirmation for such Transaction, to be the number of Shares equal
to the Actual Sold Forward Amount (as defined in the Distribution Agreement (defined below)) for the Forward Hedge Selling Period
for such Transaction (as defined in the Distribution Agreement); provided that the Number of Shares is subject to reduction
as provided in Paragraph 7(a) below (the "Initial Number of Shares").
On each Settlement
Date, the Number of Shares shall be reduced by the number of Settlement Shares settled on such date. |
|
|
Maturity Date: |
For each Transaction, as specified in the Supplemental Confirmation
for such Transaction, to be the date that follows the Trade Date for such Transaction by the number of days or months set forth in
the accepted Placement Notice (as defined in the Distribution Agreement) for such Transaction (or, if such date is not a Scheduled
Trading Day, the next following Scheduled Trading Day). |
|
|
Initial Forward Price: |
For each Transaction, as specified in the Supplemental Confirmation
for such Transaction, to be the product of (i) an amount equal to 1 (one) minus the Forward Hedge Selling Commission
Rate (as defined in the Distribution Agreement) applicable to such Transaction; and (ii) the Volume-Weighted Hedge Price for
such Transaction (such product adjusted as the Calculation Agent determines appropriate to (x) reflect on each day during the
Forward Hedge Selling Period and through the Effective Date the sum of 1 (one) and the Daily Rate for such day multiplied by the
then-Initial Forward Price as of such day and (y) reduce the then-Initial Forward Price by the relevant Forward Price Reduction
Amount on each Forward Price Reduction Date, if any, occurring on or before the Effective Date). |
|
|
Volume-Weighted Hedge Price: |
For each Transaction, as specified in the Supplemental Confirmation
for such Transaction, to be the volume-weighted average of the Sales Prices (as defined in the Distribution Agreement) per share
of Forward Hedge Shares (as defined in the Distribution Agreement) sold on each Trading Day of the Forward Hedge Selling Period for
such Transaction. |
Forward Price: |
For
each Transaction,
(a) On
the Effective Date, the Initial Forward Price; and |
|
|
|
(b) on
each calendar day thereafter, (i) the Forward Price as of the immediately preceding calendar day multiplied by (ii) the
sum of 1 (one) and the Daily Rate for such day; provided that, on each Forward Price Reduction Date, the Forward Price in
effect on such date shall be the Forward Price otherwise in effect on such date, minus the Forward Price Reduction Amount
for such Forward Price Reduction Date. |
|
|
Daily Rate: |
For any day, a rate (which may be positive or negative) equal to (i) (a) Overnight
Bank Rate (or if the Overnight Bank Rate is no longer available, a successor rate selected by the Calculation Agent in its commercially
reasonable discretion) for such day minus (b) the Spread divided by (ii) 360. |
|
|
Overnight Bank Rate: |
For any day, the rate set forth for such day opposite the caption "Overnight
bank funding rate", as such rate is displayed on Bloomberg Screen "OBFR01 <Index> <GO>", or any successor
page (rounded to the nearest one hundredth of a percentage point (0.01%)); provided that, if no rate appears for a particular
day on such page, the rate for the immediately preceding day for which a rate does so appear shall be used for such day; and provided
further that, notwithstanding anything to the contrary in this Confirmation or otherwise, the Overnight Bank Rate for any Settlement
Date shall be the Overnight Bank Rate determined for the day immediately preceding such Settlement Date. |
|
|
Spread: |
For each Transaction, as specified in the Supplemental Confirmation
for such Transaction. |
|
|
Prepayment: |
Not Applicable |
|
|
Variable Obligation: |
Not Applicable |
|
|
Forward Price Reduction
Dates: |
For each Transaction, as specified in Schedule I to the Supplemental
Confirmation for such Transaction, to be each date after the last Scheduled Trading Day of the relevant Forward Hedge Selling Period
set forth under the heading "Forward Price Reduction Dates" in the accepted Placement Notice for such Transaction. |
|
|
Forward Price Reduction
Amounts: |
For each Forward Price Reduction Date for a Transaction, as specified
in Schedule I to the Supplemental Confirmation for such Transaction, to be the Forward Price Reduction Amount set forth opposite
such date in the accepted Placement Notice for such Transaction. |
|
|
Exchange: |
New York Stock Exchange |
|
|
Related Exchange(s): |
All Exchanges |
|
|
Clearance System: |
The Depository Trust Company |
Market Disruption
Event: |
Section 6.3(a) of the Equity Definitions is hereby
amended by replacing the first sentence in its entirety with the following: "'Market Disruption Event' means in respect
of a Share or an Index, the occurrence or existence of (i) a Trading Disruption, (ii) an Exchange Disruption, (iii) an
Early Closure or (iv) a Regulatory Disruption, in each case that the Calculation Agent determines is material". |
|
|
Early Closure: |
Section 6.3(d) of the Equity Definitions is hereby amended
by deleting the remainder of the provision following the term "Scheduled Closing Time" in the fourth line thereof. |
|
|
Regulatory Disruption: |
For each Transaction, any event that Dealer, based on the advice of
counsel, determines makes it reasonably necessary or appropriate with regard to any legal, regulatory or self-regulatory requirements
or related policies and procedures that generally apply to transactions of a nature and kind similar to the Transaction for Dealer
to refrain from or decrease any market activity in connection with the Transaction. |
|
|
Settlement: |
|
|
|
Settlement Currency: |
USD (all amounts shall be converted to the Settlement Currency in good
faith and in a commercially reasonable manner by the Calculation Agent) |
|
|
Settlement Date: |
For each
Transaction, any Scheduled Trading Day following the Effective Date for such Transaction and up to and including the Maturity
Date for such Transaction that is either:
(a) designated
by Counterparty as a "Settlement Date" by a written notice (a "Settlement Notice") that satisfies the
Settlement Notice Requirements and is delivered to Dealer no less than (i) two Scheduled Trading Days prior to such Settlement
Date, which may be the Maturity Date, if Physical Settlement applies, and (ii) 60 Scheduled Trading Days prior to such Settlement
Date, which may be the Maturity Date, if Cash Settlement or Net Share Settlement applies; provided that, if Dealer shall fully
unwind its hedge with respect to the portion of the Number of Shares to be settled during an Unwind Period by a date that is more
than two Scheduled Trading Days prior to a Settlement Date specified above, Dealer may, by written notice to Counterparty, specify
any Scheduled Trading Day prior to such original Settlement Date as the Settlement Date (with prior notice to Counterparty at least
two Scheduled Trading Days prior to such specified Settlement Date); or
(b) designated
by Dealer as a "Settlement Date" pursuant to the "Termination Settlement" provisions of Paragraph 7(f) below;
provided
that the Maturity Date will be a Settlement Date if on such date the Number of Shares for which a Settlement Date has not already
been designated is greater than zero, and provided further that, following the occurrence of at least three consecutive Disrupted
Days during an Unwind Period and while such Disrupted Days are continuing, Dealer may designate any subsequent Scheduled Trading
Day as the Settlement Date with respect to the portion of the Settlement Shares, if any, for which Dealer has determined an Unwind
Purchase Price during such Unwind Period, it being understood that the Unwind Period with respect to the remainder of such Settlement
Shares shall, subject to clause (ii) in "Settlement Method Election" below, recommence on the next succeeding Exchange
Business Day that is not a Disrupted Day in whole. |
Settlement
Shares: |
(a) With
respect to any Settlement Date other than the Maturity Date, the number of Shares designated as such by Counterparty in the relevant
Settlement Notice or designated by Dealer pursuant to the "Termination Settlement" provisions of Paragraph 7(f) below,
as applicable; provided that the Settlement Shares so designated shall (i) not exceed the Number of Shares at that time
and (ii) in the case of a designation by Counterparty, be at least equal to the lesser of 100,000 and the Number of Shares at
that time; and |
|
|
|
(b) with respect to
the Settlement Date on the Maturity Date, a number of Shares equal to the Number of Shares at that time; |
|
|
|
in each case with the Number of Shares determined taking into account
pending Settlement Shares. |
|
|
Settlement
Method Election: |
Physical Settlement, Cash
Settlement, or Net Share Settlement, at the election of Counterparty as set forth in a Settlement
Notice that satisfies the Settlement Notice Requirements; provided that Physical Settlement
shall apply (i) if no Settlement Method is validly selected, (ii) with respect to any Settlement
Shares in respect of which Dealer is unable, in good faith and in its commercially reasonable discretion,
to unwind its hedge by the end of the Unwind Period (taking into account any restrictions on Dealer
resulting from any Overlap Unwind Period (as defined below) and any Unwind Period (or equivalent
concept) under any outstanding forward transactions with Counterparty to which Dealer or its affiliate
is a party ("Other Dealer Forward Transactions")) (A) in a manner that, in
the reasonable discretion of Dealer, based on advice of counsel, is consistent with the requirements
for qualifying for the safe harbor provided by Rule 10b-18 ("Rule 10b-18")
under the Securities Exchange Act of 1934, as amended (the "Exchange Act") or (B) due
to the occurrence of Disrupted Days or to the lack of sufficient liquidity in the Shares on any Exchange
Business Day during the Unwind Period, (iii) to any Termination Settlement Date (as defined
under "Termination Settlement" in Paragraph 7(f) below) and (iv) if the Maturity
Date is a Settlement Date other than as the result of a valid Settlement Notice, in respect of such
Settlement Date; provided further that, if Physical Settlement applies under clause (ii) immediately
above, Dealer shall provide written notice to Counterparty at least two Scheduled Trading Days prior
to the applicable Settlement Date. |
|
|
Settlement
Notice Requirements: |
Notwithstanding any other provision hereof, a Settlement Notice delivered
by Counterparty that specifies Cash Settlement or Net Share Settlement will not be effective to establish a Settlement Date or require
Cash Settlement or Net Share Settlement unless Counterparty delivers to Dealer with such Settlement Notice a representation, dated
as of the date of such Settlement Notice and signed by Counterparty, in the form set forth in clause (i) under the heading "Additional
Representations and Agreements of Counterparty" in Paragraph 7(d) below. |
Physical
Settlement: |
If Physical Settlement is applicable, then Counterparty
shall deliver to Dealer through the Clearance System a number of Shares equal to the Settlement Shares for such Settlement Date,
and Dealer shall pay to Counterparty, by wire transfer of immediately available funds to an account designated by Counterparty, an
amount equal to the Physical Settlement Amount for such Settlement Date. If, on any Settlement Date, the Shares to be
delivered by Counterparty to Dealer hereunder are not so delivered (the "Deferred Shares"), and a Forward Price
Reduction Date occurs during the period from, and including, such Settlement Date to, but excluding, the date such Shares are actually
delivered to Dealer, then the portion of the Physical Settlement Amount payable by Dealer to Counterparty in respect of the Deferred
Shares shall be reduced by an amount equal to the Forward Price Reduction Amount for such Forward Price Reduction Date, multiplied
by the number of Deferred Shares. |
|
|
Physical
Settlement Amount: |
For any Settlement Date for which Physical Settlement is applicable,
an amount in cash equal to the product of (a) the Forward Price in effect on the relevant Settlement Date multiplied by
(b) the Settlement Shares for such Settlement Date. |
|
|
Cash
Settlement: |
On any Settlement Date in respect of which Cash Settlement applies,
if the Cash Settlement Amount is a positive number, Dealer will pay the Cash Settlement Amount to Counterparty. If the
Cash Settlement Amount is a negative number, Counterparty will pay the absolute value of the Cash Settlement Amount to Dealer. Such
amounts shall be paid on such Settlement Date by wire transfer of immediately available funds. |
|
|
Cash
Settlement Amount: |
An amount
determined by the Calculation Agent equal to:
(a) (i)(A) the
weighted average (weighted on the same basis as clause (B)) of the Forward Prices on each day during the applicable Unwind Period
(calculated assuming no reduction to the Forward Price for any Forward Price Reduction Date that occurs during such Unwind Period,
which is accounted for in clause (b) below), minus USD 0.02, minus (B) the weighted average price (the "Unwind
Purchase Price") at which Dealer purchases Shares during the Unwind Period to unwind its hedge with respect to the portion
of the Number of Shares to be settled during the Unwind Period (including, for the avoidance of doubt, purchases on any Disrupted
Day in part), taking into account Shares anticipated to be delivered or received if Net Share Settlement applies, and the restrictions
of Rule 10b-18 under the Exchange Act agreed to hereunder, multiplied by (ii) the Settlement Shares for the relevant
Settlement Date; minus
(b) the
product of (i) the Forward Price Reduction Amount for any Forward Price Reduction Date that occurs during such Unwind Period,
and (ii) the number of Settlement Shares for such Settlement Date with respect to which Dealer has not unwound its hedge,
including the settlement of such unwinds, as of such Forward Price Reduction Date. |
Net
Share Settlement: |
On any Settlement Date in respect of which Net Share Settlement
applies, if the Cash Settlement Amount is a (i) positive number, Dealer shall deliver a number of Shares to Counterparty equal
to the Net Share Settlement Shares, or (ii) negative number, Counterparty shall deliver a number of Shares to Dealer equal to
the Net Share Settlement Shares; provided that, if Dealer determines in its commercially reasonable judgment that it would
be required to deliver Net Share Settlement Shares to Counterparty, Dealer may elect to deliver a portion of such Net Share Settlement
Shares on one or more dates prior to the applicable Settlement Date. |
|
|
Net
Share Settlement Shares: |
With respect to a Settlement Date, the absolute value of the Cash Settlement
Amount divided by the Unwind Purchase Price, with the number of Shares rounded up in the event such calculation results in
a fractional number. |
|
|
Unwind
Period: |
The period from and including the first Exchange Business Day following
the date Counterparty validly elects Cash Settlement or Net Share Settlement in respect of a Settlement Date through the second Scheduled
Trading Day preceding such Settlement Date, subject to "Termination Settlement" as described in Paragraph 7(f) below. |
|
|
Failure
to Deliver: |
Applicable if Dealer is required to deliver Shares hereunder; otherwise,
Not Applicable. |
|
|
Share
Cap: |
Notwithstanding any other provision of this Confirmation, in no event
will Counterparty be required to deliver to Dealer on any Settlement Date in respect of a Transaction, whether pursuant to Physical
Settlement, Net Share Settlement or any Private Placement Settlement, a number of Shares in excess of (i) 1.25 times the Initial
Number of Shares for such Transaction, subject to adjustment from time to time in accordance with the provisions of this Master Confirmation,
the relevant Supplemental Confirmation or the Equity Definitions minus (ii) the aggregate number of Shares delivered
by Counterparty to Dealer hereunder in respect of such Transaction prior to such Settlement Date. |
|
|
Adjustments: |
|
|
|
Method of Adjustment: |
Calculation Agent Adjustment. Section 11.2(e) of
the Equity Definitions is hereby amended by deleting clause (iii) thereof, and Section 11.2(e)(vii) of
the Equity Definitions is hereby amended by adding the words "that is within the Issuer's control" immediately after the
word "event". For the avoidance of doubt, the declaration or payment of a cash dividend will not constitute
a Potential Adjustment Event. |
|
|
Additional Adjustment: |
If, in Dealer's commercially reasonable judgment, the actual cost to
Dealer (or an affiliate of Dealer), over any 20 consecutive Scheduled Trading Days, of borrowing a number of Shares equal to the
Number of Shares to hedge in a commercially reasonable manner its exposure to any Transaction exceeds a weighted average rate equal
to 50 basis points per annum, the Calculation Agent shall reduce the Forward Price in order to compensate Dealer for the amount by
which such cost exceeded a weighted average rate equal to 50 basis points per annum during such period. |
Extraordinary
Events: |
|
|
|
Extraordinary Events: |
In lieu of the applicable provisions contained in Article 12 of
the Equity Definitions, the consequences of any Extraordinary Event (including, for the avoidance of doubt, any Merger Event, Tender
Offer, Nationalization, Insolvency, Delisting, or Change In Law) shall be as specified below under the headings "Acceleration Events"
and "Termination Settlement" in Paragraphs 7(e) and 7(f), respectively. Notwithstanding anything to the contrary herein
or in the Equity Definitions, no Additional Disruption Event will be applicable except to the extent expressly referenced in Paragraph
7(e)(iv) below. The definition of "Tender Offer" in Section 12.1(d) of the Equity Definitions
is hereby amended by replacing "10%" with "15%." |
|
|
Non-Reliance: |
Applicable |
|
|
Agreements and Acknowledgments
Regarding Hedging Activities: |
Applicable |
|
|
Additional Acknowledgments: |
Applicable |
|
|
Transfer: |
Notwithstanding anything to the contrary herein or in the Agreement,
Dealer may assign, transfer and set over all rights, title and interest, powers, privileges and remedies of Dealer under any Transaction,
in whole or in part, to any affiliate of Dealer, whose obligations hereunder are fully and unconditionally guaranteed by Dealer or
Dealer's ultimate parent entity, without the consent of Counterparty. |
|
|
3. Calculation
Agent: |
Dealer, whose judgments, determinations and calculations shall be made
in good faith and in a commercially reasonable manner; provided that, following the occurrence and during the continuance
of an Event of Default of the type described in Section 5(a)(vii) of the Agreement with respect to which Dealer is the
sole Defaulting Party, if the Calculation Agent fails to timely make any
calculation, adjustment or determination required to be made by the Calculation Agent hereunder or to perform any obligation of the Calculation Agent
hereunder and such failure continues for five (5) Exchange Business Days following notice to
the Calculation Agent by Counterparty of such failure, Counterparty shall have the right to designate a nationally recognized third-party
dealer in over-the-counter corporate equity derivatives to act, during the period commencing on the date such
Event of Default occurred and ending on the Early Termination Date with respect to such Event of Default, as the Calculation Agent. Following
any determination or calculation by the Calculation Agent hereunder, upon a written request by Counterparty, the Calculation Agent
shall promptly (but in any event within three Scheduled Trading Days) provide to Counterparty by e-mail to the e-mail address provided
by Counterparty in such request a report (in a commonly used file format for the storage and manipulation of financial data) displaying
in reasonable detail the basis for such determination or calculation (including any assumptions used in making such determination
or calculation), it being understood that the Calculation Agent shall not be obligated to disclose any proprietary or confidential
models or other proprietary or confidential information used by it for such determination or calculation. |
4. Account
Details: |
|
|
|
(a) Account for delivery
of Shares to Dealer: |
[To be furnished] |
|
|
(b) Account for delivery
of Shares to Counterparty: |
To be furnished |
|
|
(c) Account for payments
to Counterparty: |
To be advised under separate cover or telephone confirmed prior to
each Settlement Date |
|
|
(d) Account for payments
to Dealer: |
To be advised under separate cover or telephone confirmed prior to
each Settlement Date |
|
|
5. Offices: |
|
The Office of
Counterparty for the Transaction is: Inapplicable, Counterparty is not a Multibranch Party |
|
The Office of
Dealer for the Transaction is: [●] |
|
6. Notices: For
purposes of this Confirmation: |
|
(a) Address
for notices or communications to Counterparty:
Alexandria
Real Estate Equities, Inc.
Attn:
Secretary
26
North Euclid Avenue
Pasadena,
California 91101
Telephone:
(626) 578-0777
Facsimile:
(626) 578-0896
with
a copy to:
Kenneth
Kohler
Morrison &
Foerster LLP
707
Wilshire Boulevard
Los
Angeles, California 90017
E-mail:
KKohler@mofo.com
|
(b) Address
for notices or communications to Dealer:
[Dealer]
[Address]
Attn:
[●]
Telephone:
[●]
Facsimile:
[●]
E-mail:
[●] |
7. Other
Provisions:
(a) Conditions
to Effectiveness. The effectiveness of each Supplemental Confirmation and the related Transaction on the Effective Date for such
Transaction shall be subject to the satisfaction or waiver by Dealer of the following conditions:
| (i) | the
condition that the representations and warranties of Counterparty contained in the Distribution
Agreement, dated the date hereof, among Counterparty, Mizuho Securities USA LLC, Robert W.
Baird & Co. Incorporated, Barclays Capital Inc., BBVA Securities Inc., BMO Capital
Markets Corp., BNP Paribas Securities Corp., BofA Securities, Inc., BTIG, LLC, Capital
One Securities, Inc., Citigroup Global Markets Inc., Citizens JMP Securities, LLC, Evercore
Group L.L.C., Fifth Third Securities, Inc., Goldman Sachs & Co. LLC, Jefferies
LLC, J.P. Morgan Securities LLC, RBC Capital Markets, LLC, Regions Securities LLC, Scotia
Capital (USA) Inc., TD Securities (USA) LLC, Truist Securities, Inc. and Wedbush Securities
Inc., as the sales agents, Mizuho Markets Americas LLC, Robert W. Baird & Co. Incorporated,
Barclays Bank PLC, Banco Bilbao Vizcaya Argentaria, S.A., Bank of Montreal, BNP Paribas,
Bank of America, N.A., Nomura Global Financial Products, Inc., Canadian Imperial Bank
of Commerce, Citibank, N.A., Citizens JMP Securities, LLC, Goldman Sachs & Co. LLC,
Jefferies LLC, JPMorgan Chase Bank, National Association, Royal Bank of Canada, Regions Securities
LLC, The Bank of Nova Scotia, The Toronto-Dominion Bank and Truist Bank, as the forward purchasers,
and Mizuho Securities USA LLC, Robert W. Baird & Co. Incorporated, Barclays Capital
Inc., BBVA Securities Inc., BMO Capital Markets Corp., BNP Paribas Securities Corp., BofA
Securities, Inc., Nomura Securities International, Inc. (acting through BTIG, LLC
as agent), CIBC World Markets Corp., Citigroup Global Markets Inc., Citizens JMP Securities,
LLC, Evercore Group L.L.C., Goldman Sachs & Co. LLC, Jefferies LLC, J.P. Morgan
Securities LLC, RBC Capital Markets, LLC, Regions Securities LLC, Scotia Capital (USA) Inc.,
TD Securities (USA) LLC and Truist Securities, Inc., as the forward sellers (the "Distribution
Agreement"), and any certificate delivered pursuant thereto by Counterparty are
true and correct on the Effective Date as if made as of the Effective Date; |
| (ii) | the
condition that Counterparty has performed all of the obligations required to be performed
by it under the Distribution Agreement on or prior to the Effective Date; |
| (iii) | all
of the conditions set forth or referenced in Article V of the Distribution Agreement
have been satisfied; |
| (iv) | the
Distribution Agreement remains in effect and has not terminated pursuant to Article VII
of the Distribution Agreement; and |
| (v) | the
condition that, as determined by Dealer in good faith and a commercially reasonable manner,
neither of the following has occurred (A) Dealer is unable to borrow and deliver for
sale a number of Shares equal to the Initial Number of Shares in respect of the relevant
Transaction, or (B) in Dealer's commercially reasonable judgment either it is impracticable
to do so or Dealer would incur a stock loan cost of more than a rate equal to 200 basis points
per annum to do so (in which event the Supplemental Confirmation shall be effective but the
Initial Number of Shares for the relevant Transaction shall be the number of Shares Dealer
is required to deliver in accordance with the Distribution Agreement). |
(b) Interpretive
Letter. Counterparty agrees and acknowledges that each Transaction is being entered into in accordance with the October 9, 2003
interpretive letter from the staff of the Securities and Exchange Commission (the "SEC") to Goldman, Sachs &
Co. (the "Interpretive Letter") and agrees to take all actions, and to omit to take any actions, reasonably requested
by Dealer for each Transaction to comply with the Interpretive Letter. Without limiting the foregoing, Counterparty agrees that neither
it nor any "affiliated purchaser" (as defined in Regulation M ("Regulation M") promulgated under the Exchange
Act) will, directly or indirectly, bid for, purchase or attempt to induce any person to bid for or purchase, the Shares or securities
that are convertible into, or exchangeable or exercisable for, Shares during any "restricted period" as such term is defined
in Regulation M. In addition, Counterparty represents that it is eligible to conduct a primary offering of Shares on Form S-3, the
offering contemplated by the Distribution Agreement complies with Rule 415 under the Securities Act of 1933, as amended (the "Securities
Act"), and the Shares are "actively traded" as defined in Rule 101(c)(1) of Regulation M.
(c) Agreements
and Acknowledgments Regarding Shares.
(i) Counterparty
agrees and acknowledges that, in respect of any Shares delivered to Dealer hereunder, such Shares shall be newly issued (unless mutually
agreed otherwise by the parties) and, upon such delivery, duly and validly authorized, issued and outstanding, fully paid and nonassessable,
free of any lien, charge, claim or other encumbrance and not subject to any preemptive or similar rights and shall, upon such issuance,
be accepted for listing or quotation on the Exchange.
(ii) Counterparty
agrees and acknowledges that Dealer (or an affiliate of Dealer) will hedge its exposure to each Transaction by selling Shares borrowed
from third party securities lenders or other Shares pursuant to a registration statement, and that, pursuant to the terms of the Interpretive
Letter, the Shares (up to the Initial Number of Shares) delivered, pledged or loaned by Counterparty to Dealer (or an affiliate of Dealer)
in connection with each Transaction may be used by Dealer (or an affiliate of Dealer) to return to securities lenders without further
registration or other restrictions under the Securities Act, in the hands of those securities lenders, irrespective of whether such securities
loan is effected by Dealer or an affiliate of Dealer. Accordingly, subject to Paragraph 7(g) below, Counterparty agrees that the
Shares that it delivers, pledges or loans to Dealer (or an affiliate of Dealer) on or prior to the final Settlement Date will not bear
a restrictive legend and that such Shares will be deposited in, and the delivery thereof shall be effected through the facilities of,
the Clearance System.
(iii) Counterparty
agrees and acknowledges that it has reserved and will keep available at all times, free from preemptive or similar rights and free from
any lien, charge, claim or other encumbrance, authorized but unissued Shares at least equal to the aggregate Share Cap for all outstanding
Transactions, solely for the purpose of settlement under such Transactions.
(iv) Unless
the provisions set forth below under "Private Placement Procedures" are applicable, Dealer agrees to use any Shares delivered
by Counterparty hereunder on any Settlement Date to return to securities lenders to close out open securities loans created by Dealer
or an affiliate of Dealer in the course of Dealer's or such affiliate's hedging activities related to Dealer's exposure under a Transaction.
(v) In
connection with bids and purchases of Shares in connection with any Cash Settlement or Net Share Settlement of any Transaction, Dealer
shall use its reasonable efforts, based on the advice of counsel and taking into account any Unwind Period (or equivalent concept) under
any outstanding Other Dealer Forward Transactions, to conduct its activities, or cause its affiliates to conduct their activities, in
a manner consistent with the requirements of the safe harbor provided by Rule 10b-18 under the Exchange Act, as if such provisions
were applicable to such purchases.
(d) Additional
Representations and Agreements of Counterparty. Counterparty represents, warrants and agrees as of each Placement Date, Trade Date
and Forward Hedge Settlement Date (as defined in the Distribution Agreement) as follows:
(i) Counterparty
represents to Dealer on the date of this representation and on any date that Counterparty notifies Dealer that Cash Settlement or Net
Share Settlement applies to a Transaction, that (A) Counterparty is not aware of any material nonpublic information regarding Counterparty
or the Shares, (B) each of its filings under the Securities Act, the Exchange Act or other applicable securities laws that are required
to be filed have been filed and that, as of the date of this representation, when considered as a whole (with the more recent such filings
deemed to amend inconsistent statements contained in any earlier such filings), there is no misstatement of material fact contained therein
or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances
under which they were made, not misleading and (C) Counterparty is not entering into the relevant Supplemental Confirmation nor
making any election hereunder or thereunder to create actual or apparent trading activity in the Shares (or any security convertible
into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible
into or exchangeable for Shares) or otherwise in violation of the Exchange Act.
(ii) It
is the intent of Dealer and Counterparty that following any election of Cash Settlement or Net Share Settlement by Counterparty, the
purchase of Shares by Dealer during any Unwind Period comply with the requirements of Rule 10b5-l(c)(l)(i)(B) of the Exchange
Act and that this Master Confirmation and the relevant Supplemental Confirmation shall be interpreted to comply with the requirements
of Rule 10b5-l(c). Counterparty acknowledges that (i) during any Unwind Period Counterparty shall not have, and shall not attempt
to exercise, any influence over how, when or whether to effect purchases of Shares by Dealer (or its agent or affiliate) in connection
with this Master Confirmation and the relevant Supplemental Confirmation and (ii) Counterparty is entering into the Agreement, this
Master Confirmation and each Supplemental Confirmation in good faith and not as part of a plan or scheme to evade compliance with federal
securities laws including, without limitation, Rule 10b-5 promulgated under the Exchange Act.
(iii) Counterparty
shall, at least one day prior to the first day of any Unwind Period, notify Dealer of the total number of Shares purchased in Rule 10b-18
purchases of blocks pursuant to the once-a-week block exception contained in Rule 10b-18(b)(4) by or for Counterparty or any
of its affiliated purchasers during each of the four calendar weeks preceding the first day of the Unwind Period and during the calendar
week in which the first day of the Unwind Period occurs ("Rule 10b-18 purchase", "blocks" and "affiliated
purchaser" each being used as defined in Rule 10b-18).
(iv) During
any Unwind Period, Counterparty shall (i) notify Dealer prior to the opening of trading in the Shares on any day on which Counterparty
makes, or Counterparty reasonably expects in advance of the opening to be made, any public announcement (as defined in Rule 165(f) under
the Securities Act) of any merger, acquisition, or similar transaction involving a recapitalization relating to Counterparty (other than
any such transaction in which the consideration consists solely of cash and there is no valuation period), (ii) promptly notify
Dealer following any such announcement that such announcement has been made, and (iii) promptly deliver to Dealer following the
making of any such announcement information indicating (A) Counterparty's average daily Rule 10b-18 purchases (as defined in
Rule 10b-18) during the three full calendar months preceding the date of the announcement of such transaction and (B) Counterparty's
block purchases (as defined in Rule 10b-18) effected pursuant to paragraph (b)(4) of Rule 10b-18 during the three full
calendar months preceding the date of the announcement of such transaction. In addition, Counterparty shall promptly notify Dealer of
the earlier to occur of the completion of such transaction and the completion of the vote by target shareholders.
(v) Neither
Counterparty nor any of its affiliated purchasers (within the meaning of Rule 10b-18 under the Exchange Act) shall take or refrain
from taking any action (including, without limitation, any direct purchases by Counterparty or any of its affiliates, or any purchases
by a party to a derivative transaction with Counterparty or any of its affiliates), either under this Master Confirmation or any Supplemental
Confirmation, under another agreement with Dealer or another party or otherwise, that might reasonably be expected to cause any purchases
of Shares by Dealer or any of its affiliates in connection with any Cash Settlement or Net Share Settlement (or equivalent concept) of
a Transaction or any outstanding Other Dealer Forward Transactions not to meet the requirements of the safe harbor provided by Rule 10b-18
determined as if all such foregoing purchases were made by Counterparty.
(vi) Counterparty
will not engage in any "distribution" (as defined in Regulation M), other than a distribution meeting the requirements of the
exception set forth in Rules 101(b)(10) or 102(b)(7) of Regulation M, that would cause a "restricted period"
(as defined in Regulation M) to occur during any Unwind Period.
(vii) Counterparty
is not, and after giving effect to the transactions contemplated hereby will not be, required to register as an "investment company"
as such term is defined in the Investment Company Act of 1940, as amended.
(viii) Counterparty
is not insolvent, nor will Counterparty be rendered insolvent as a result of any Transaction or its performance of the terms hereof.
(ix) Without
limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that Dealer is not making any representations
or warranties or taking any position or expressing any view with respect to the treatment of any Transaction under any accounting standards
including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and Hedging, or ASC Topic 480, Distinguishing Liabilities from
Equity and ASC 815-40, Derivatives and Hedging – Contracts in Entity's Own Equity (or any successor issue statements) or under
FASB's Liabilities & Equity Project.
(x) Counterparty
understands no obligations of Dealer to it hereunder will be entitled to the benefit of deposit insurance and that such obligations will
not be guaranteed by any affiliate of Dealer or any governmental agency.
(xi) To
Counterparty's actual knowledge, no federal, state or local (including non-U.S. jurisdictions) law, rule, regulation or regulatory order
applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a
requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined)
Shares, other than Sections 13 and 16 under the Exchange Act and Section 7.2.1 of Counterparty's Articles of Amendment and Restatement.
(xii) No
filing with, or approval, authorization, consent, license, registration, qualification, order or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the execution, delivery and performance by Counterparty of this
Master Confirmation or any Supplemental Confirmation and the consummation of any Transaction (including, without limitation, the issuance
and delivery of Shares on any Settlement Date) except (i) such as have been obtained under the Securities Act and (ii) as may
be required to be obtained under state securities laws.
(xiii) Counterparty
(i) has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of entering
into each Transaction; (ii) has consulted with its own legal, financial, accounting and tax advisors in connection with each Transaction;
and (iii) is entering into each Transaction for a bona fide business purpose.
(xiv) Counterparty
will, by the next succeeding Scheduled Trading Day notify Dealer upon obtaining knowledge of the occurrence of any event that would constitute
an Event of Default, a Potential Event of Default or a Potential Adjustment Event.
(xv) Counterparty
(i) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment
strategies involving a security or securities; (ii) will exercise independent judgment in evaluating the recommendations of any
broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (iii) has total assets
of at least $50 million as of the date of this representation.
(e) Acceleration
Events. Each of the following events shall constitute an "Acceleration Event":
(i) Stock
Borrow Event. In the commercially reasonable judgment of Dealer (A) Dealer (or an affiliate of Dealer) is not able to hedge
in a commercially reasonable manner its exposure under any Transaction because insufficient Shares are made available for borrowing by
securities lenders or (B) Dealer (or an affiliate of Dealer) would incur a cost to borrow (or to maintain a borrow of) Shares to
hedge in a commercially reasonable manner its exposure under any Transaction that is greater than a rate equal to 200 basis points per
annum (each, a "Stock Borrow Event");
(ii) Dividends
and Other Distributions. On any day occurring after the Trade Date of any Transaction, Counterparty declares a distribution, issue
or dividend to existing holders of the Shares of (A) any cash dividend (other than an Extraordinary Dividend) to the extent all
cash dividends having an ex-dividend date during the period from, and including, any Forward Price Reduction Date (with the Trade Date
being a Forward Price Reduction Date for purposes of this paragraph (ii) only) to, but excluding, the next subsequent Forward Price
Reduction Date exceeds, on a per Share basis, the Forward Price Reduction Amount set forth opposite the first date of any such period
on Schedule I to the relevant Supplemental Confirmation, (B) any Extraordinary Dividend, (C) any share capital or other securities
of another issuer acquired or owned (directly or indirectly) by Counterparty as a result of a spin-off or other similar transaction or
(D) any other type of securities (other than Shares), rights or warrants or other assets, in any case for payment (cash or other
consideration) at less than the prevailing market price, as determined in a commercially reasonable manner by Dealer; "Extraordinary
Dividend" means any dividend or distribution (that is not an ordinary cash dividend) declared by the Issuer with respect to
the Shares that, in the commercially reasonable determination of Dealer, is (1) a dividend or distribution declared on the Shares
at a time at which the Issuer has not previously declared or paid dividends or distributions on such Shares for the prior four quarterly
periods, (2) a payment or distribution by the Issuer to holders of Shares that the Issuer announces will be an "extraordinary"
or "special" dividend or distribution, (3) a payment by the Issuer to holders of Shares out of the Issuer's capital and
surplus or (4) any other "special" dividend or distribution on the Shares that is, by its terms or declared intent, outside
the normal course of operations or normal dividend policies or practices of the Issuer;
(iii) ISDA
Termination. Either Dealer or Counterparty has the right to designate an Early Termination Date pursuant to Section 6 of the
Agreement;
(iv) Other
ISDA Events. The announcement of any event that, if consummated, would result in a Merger Event, Tender Offer, Nationalization, Insolvency
or Delisting or the occurrence of any Hedging Disruption (with Dealer as the Hedging Party) or Change in Law; provided that, in
case of a Delisting, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute
a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any
of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); provided
further that (i) the definition of "Change in Law" provided in Section 12.9(a)(ii) of the Equity Definitions
is hereby amended by (A) replacing the phrase "the interpretation" in the third line thereof with the phrase "or
announcement or statement of the formal or informal interpretation" and (B) immediately following the word "Transaction"
in clause (X) thereof, adding the phrase "in the manner contemplated by Dealer on the Trade Date" and (ii) any determination
as to whether (A) the adoption of or any change in any applicable law or regulation (including, without limitation, any tax law)
or (B) the promulgation of or any change in or announcement or statement of the formal or informal interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing
authority), in each case, constitutes a "Change in Law" shall be made without regard to Section 739 of the Wall Street
Transparency and Accountability Act of 2010 (the "WSTAA") or any similar provision in any legislation enacted on or
after the Trade Date; or
(v) Ownership
Event. In the good faith judgment of Dealer, on any day, the Share Amount for such day exceeds the Post-Effective Limit for such
day (if any applies) (each, an "Ownership Event"). For purposes of this clause (v), the "Share Amount"
as of any day is the number of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer
or any such person, a "Dealer Person") under any law, rule, regulation or regulatory order (other than any obligations
under Section 13 of the Exchange Act and the rules and regulations promulgated thereunder) or Counterparty constituent document
that for any reason is, or after the Trade Date becomes, applicable to ownership of Shares ("Applicable Provisions"),
owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership
of under the Applicable Provisions, as determined by Dealer in its reasonable discretion. The "Post-Effective Limit"
means (x) the minimum number of Shares that would give rise to reporting or registration obligations or other requirements (including
obtaining prior approval from any person or entity) of a Dealer Person, or would result in an adverse effect on a Dealer Person, under
the Applicable Provisions, as determined by Dealer in its reasonable discretion, minus (y) 1.0% of the number of Shares outstanding.
(f) Termination
Settlement. Upon the occurrence of any Acceleration Event, Dealer shall have the right to designate, upon at least one Scheduled
Trading Day's notice, any Scheduled Trading Day following such occurrence to be a Settlement Date hereunder (a "Termination Settlement
Date") to which Physical Settlement shall apply, and to select the number of Settlement Shares relating to such Termination
Settlement Date; provided that (i) in the case of an Acceleration Event arising out of an Ownership Event, the number of
Settlement Shares so designated by Dealer shall not exceed the number of Shares necessary to reduce the Share Amount to reasonably below
the Post-Effective Limit and (ii) in the case of an Acceleration Event arising out of a Stock Borrow Event, the number of Settlement
Shares so designated by Dealer shall not exceed the number of Shares as to which such Stock Borrow Event exists. If, upon designation
of a Termination Settlement Date by Dealer pursuant to the preceding sentence, Counterparty fails to deliver the Settlement Shares relating
to such Termination Settlement Date when due or otherwise fails to perform obligations within its control in respect of any Transaction,
it shall be an Event of Default with respect to Counterparty and Section 6 of the Agreement shall apply. If an Acceleration Event
occurs during an Unwind Period relating to a number of Settlement Shares to which Cash Settlement or Net Share Settlement applies, then
on the Termination Settlement Date relating to such Acceleration Event, notwithstanding any election to the contrary by Counterparty,
Cash Settlement or Net Share Settlement shall apply to the portion of the Settlement Shares relating to such Unwind Period as to which
Dealer has unwound its hedge and Physical Settlement shall apply in respect of (x) the remainder (if any) of such Settlement Shares
and (y) the Settlement Shares designated by Dealer in respect of such Termination Settlement Date. If an Acceleration Event occurs
after Counterparty has designated a Settlement Date to which Physical Settlement applies but before the relevant Settlement Shares have
been delivered to Dealer, then Dealer shall have the right to cancel such Settlement Date and designate a Termination Settlement Date
in respect of such Shares pursuant to the first sentence hereof.
(g) Private
Placement Procedures. If Counterparty is unable to comply with the provisions of sub-paragraph (ii) of "Agreements and
Acknowledgments Regarding Shares" above because of a change in law or a change in the policy of the SEC or its staff, or Dealer
otherwise determines that in its reasonable opinion any Shares to be delivered to Dealer by Counterparty may not be freely returned by
Dealer or its affiliates to securities lenders as described under such sub-paragraph (ii) or otherwise constitute "restricted
securities" as defined in Rule 144 under the Securities Act, then delivery of any such Shares (the "Restricted Shares")
shall be effected as provided below, unless waived by Dealer.
(i) If
Counterparty delivers the Restricted Shares pursuant to this clause (i) (a "Private Placement Settlement"), then
delivery of Restricted Shares by Counterparty shall be effected in accordance with private placement procedures customary for private
placements of equity securities of substantially similar size with respect to such Restricted Shares reasonably acceptable to Dealer;
provided that Counterparty may not elect a Private Placement Settlement if, on the date of its election, it has taken, or caused
to be taken, any action that would make unavailable either the exemption pursuant to Section 4(a)(2) of the Securities Act
for the sale by Counterparty to Dealer (or any affiliate designated by Dealer) of the Restricted Shares or the exemption pursuant to
Section 4(a)(1) or Section 4(a)(3) of the Securities Act for resales of the Restricted Shares by Dealer (or any such
affiliate of Dealer), and if Counterparty fails to deliver the Restricted Shares when due or otherwise fails to perform obligations within
its control in respect of a Private Placement Settlement, it shall be an Event of Default with respect to Counterparty and Section 6
of the Agreement shall apply. The Private Placement Settlement of such Restricted Shares shall include customary representations, covenants,
blue sky and other governmental filings and/or registrations, indemnities to Dealer, due diligence rights (for Dealer or any designated
buyer of the Restricted Shares by Dealer), opinions and certificates, and such other documentation as is customary for private placement
agreements of equity securities of a substantially similar size, all reasonably acceptable to Dealer. In the case of a Private Placement
Settlement, Dealer shall, in its good faith discretion, adjust the amount of Restricted Shares to be delivered to Dealer hereunder in
a commercially reasonable manner to reflect the fact that such Restricted Shares may not be freely returned to securities lenders by
Dealer and may only be saleable by Dealer at a discount to reflect the lack of liquidity in Restricted Shares. Notwithstanding the Agreement
or any Confirmation, the date of delivery of such Restricted Shares shall be the Clearance System Business Day following notice by Dealer
to Counterparty of the number of Restricted Shares to be delivered pursuant to this clause (i). For the avoidance of doubt, delivery
of Restricted Shares shall be due as set forth in the previous sentence and not be due on the date that would otherwise be applicable.
(ii) If
Counterparty delivers any Restricted Shares in respect of any Transaction, Counterparty agrees that (A) such Shares may be transferred
by and among Dealer and its affiliates and (B) after the minimum "holding period" within the meaning of Rule 144(d) under
the Securities Act has elapsed, Counterparty shall promptly remove, or cause the transfer agent for the Shares to remove, any legends
referring to any transfer restrictions from such Shares upon delivery by Dealer (or such affiliate of Dealer) to Counterparty or such
transfer agent of any seller's and broker's representation letters customarily delivered by Dealer or its affiliates in connection with
resales of restricted securities pursuant to Rule 144 under the Securities Act, each without any further requirement for the delivery
of any certificate, consent, agreement, opinion of counsel, notice or any other document, any transfer tax stamps or payment of any other
amount or any other action by Dealer (or such affiliate of Dealer).
(h) Indemnity.
Counterparty agrees to indemnify Dealer and its affiliates and their respective directors, officers, employees, agents and controlling
persons (Dealer and each such affiliate or person being an "Indemnified Party") from and against any and all losses,
claims, damages and liabilities, joint and several, incurred by or asserted against such Indemnified Party arising out of, in connection
with, or relating to, any breach of any covenant or representation made by Counterparty in this Master Confirmation, any Supplemental
Confirmation or the Agreement and will reimburse any Indemnified Party for all reasonable expenses (including reasonable legal fees and
reasonable expenses) as they are incurred in connection with the investigation of, preparation for, or defense of any pending or threatened
claim or any action or proceeding arising therefrom (whether or not such Indemnified Party is a party thereto), except to the extent
determined in a final and nonappealable judgment by a court of competent jurisdiction to have resulted from Dealer's gross negligence,
fraud, bad faith and/or willful misconduct or from a breach of any representation or covenant of Dealer contained in this Master Confirmation,
any Supplemental Confirmation or the Agreement. The foregoing provisions shall survive any termination or completion of the Transaction.
(i) Waiver
of Trial by Jury. Each of Counterparty and Dealer hereby irrevocably waives (on its own behalf
and, to the extent permitted by applicable law, on behalf of its stockholders) all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or relating to the Transaction or the actions of DEALER or
its affiliates in the negotiation, performance or enforcement hereof.
(j) Governing
Law/Jurisdiction. Each Confirmation and any claim, controversy or dispute arising under or related to each Confirmation shall be
governed by the laws of the State of New York without reference to the conflict of laws provisions thereof. The parties hereto irrevocably
submit to the exclusive jurisdiction of the courts of the State of New York and the United States Court for the Southern District of
New York in connection with all matters relating hereto and waive any objection to the laying of venue in, and any claim of inconvenient
forum with respect to, these courts.
(k) Designation
by Dealer. Notwithstanding any other provision in any Confirmation to the contrary requiring or allowing Dealer to purchase, sell,
receive or deliver any Shares or other securities to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell,
receive or deliver such Shares or other securities and otherwise to perform Dealer obligations in respect of any Transaction and any
such designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty only to the extent of any such
performance.
(l) Insolvency
Filing. Notwithstanding anything to the contrary herein, in any Supplemental Confirmation, in the Agreement or in the Equity Definitions,
upon any Insolvency Filing or other proceeding under the Bankruptcy Code in respect of the Issuer (a "Bankruptcy Termination Event"),
each Transaction shall automatically terminate on the date thereof without further liability of either party to this Confirmation to
the other party (except for any liability in respect of any breach of representation or covenant by a party under this Master Confirmation
or any Supplemental Confirmation prior to the date of such Insolvency Filing or other proceeding), it being understood that each Transaction
is a contract for the issuance of Shares by the Issuer.
(m) Disclosure.
Effective from the date of commencement of discussions concerning any Transaction, each of Dealer and Counterparty and each of their
employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and
tax structure of such Transaction and all materials of any kind (including opinions or other tax analyses) relating to such tax treatment
and tax structure.
(n) Right
to Extend. Dealer may postpone any Settlement Date or any other date of valuation or delivery, with respect to some or all of the
relevant Settlement Shares, if Dealer determines, based on the advice of counsel, that such extension is reasonably necessary or appropriate
to enable Dealer to effect purchases of Shares in connection with its hedging activity hereunder in a manner that would, if Dealer were
Counterparty or an affiliated purchaser of Counterparty, be in compliance with applicable legal and regulatory requirements.
(o) Counterparty
Share Repurchases. Counterparty agrees not to repurchase, directly or indirectly, any Shares if, immediately following such purchase,
the Outstanding Share Percentage would be equal to or greater than 4.5%. The "Outstanding Share Percentage" as of any
day is the fraction (1) the numerator of which is the aggregate of the "Number of Shares" (or equivalent concept) for
each outstanding Transaction and all outstanding Other Dealer Forward Transactions and (2) the denominator of which is the number
of Shares outstanding on such day.
(p) Limit
on Beneficial Ownership. Notwithstanding any other provisions hereof, Dealer shall not have the right to acquire Shares hereunder
and Dealer shall not be entitled to take delivery of any Shares hereunder (in each case, whether in connection with the purchase of Shares
on any Settlement Date or any Termination Settlement Date, any Private Placement Settlement or otherwise) to the extent (but only to
the extent) that, after such receipt of any Shares hereunder, (i) the Share Amount would exceed the Post-Effective Limit, (ii) Dealer
and each person subject to aggregation of Shares with Dealer under Section 13 or Section 16 of the Exchange Act and rules promulgated
thereunder, including any "group" of which Dealer or its affiliates is a part, (the "Dealer Group") would
directly or indirectly beneficially own (as such term is defined for purposes of Section 13 or Section 16 of the Exchange Act
and rules promulgated thereunder) in excess of 8.0% of the then outstanding Shares (the "Threshold Number of Shares")
or (iii) such acquisition would result in a violation of any restriction on ownership and transfers set forth in Section 7.2.1
of Counterparty's Articles of Amendment and Restatement (the "Counterparty Stock Ownership Restriction"). Any purported
delivery hereunder shall be void and have no effect to the extent (but only to the extent) that, after such delivery, (i) the Share
Amount would exceed the Post-Effective Limit, (ii) the Dealer Group would directly or indirectly so beneficially own in excess of
the Threshold Number of Shares or (iii) such delivery would result in a violation of the Counterparty Stock Ownership Restriction.
If any delivery owed to Dealer hereunder is not made, in whole or in part, as a result of this provision, Counterparty's obligation to
make such delivery shall not be extinguished and Counterparty shall make such delivery as promptly as practicable after, but in no event
later than one Scheduled Trading Day after, Dealer gives notice to Counterparty that, after such delivery, (i) the Share Amount
would not exceed the Post-Effective Limit, (ii) the Dealer Group would not directly or indirectly so beneficially own in excess
of the Threshold Number of Shares or (iii) such delivery would not result in a violation of the Counterparty Stock Ownership Restriction,
as applicable.
In addition, notwithstanding
anything herein to the contrary, if any delivery owed to Dealer hereunder is not made, in whole or in part, as a result of the immediately
preceding paragraph, Dealer shall be permitted to make any payment due in respect of such Shares to Counterparty in two or more tranches
that correspond in amount to the number of Shares delivered by Counterparty to Dealer pursuant to the immediately preceding paragraph.
(q) Commodity
Exchange Act. Each of Dealer and Counterparty agrees and represents that it is an "eligible contract participant" as defined
in Section 1a(18) of the U.S. Commodity Exchange Act, as amended (the "CEA"), and the Agreement and each Transaction
are subject to individual negotiation by the parties and have not been executed or traded on a "trading facility" as defined
in Section 1a(51) of the CEA.
(r) Bankruptcy
Status. Subject to Paragraph 7(l) above, Dealer acknowledges and agrees that no Confirmation is intended to convey to Dealer
rights with respect to the transactions contemplated hereby that are senior to the claims of Counterparty's common stockholders in any
U.S. bankruptcy proceedings of Counterparty; provided, however, that nothing herein shall be deemed to limit Dealer's right
to pursue remedies in the event of a breach by Counterparty of its obligations and agreements with respect to any Confirmation or the
Agreement; and provided, further, that nothing herein shall limit or shall be deemed to limit Dealer's rights in respect
of any transaction other than any Transaction governed by this Master Confirmation.
(s) No
Collateral or Setoff. Notwithstanding Section 6(f) or any other provision of the Agreement or any other agreement between
the parties to the contrary, the obligations of Counterparty hereunder are not secured by any collateral. Obligations in respect of any
Transaction shall not be set off against any other obligations of the parties, other than obligations in respect of this Transaction
or any other Transaction governed by this Master Confirmation, whether arising under the Agreement, under any other agreement between
the parties hereto, by operation of law or otherwise, and no obligations of the parties, other than in respect of any Transaction between
the parties governed by this Master Confirmation, shall be set off against obligations in respect of any Transaction, whether arising
under the Agreement, under any other agreement between the parties hereto, by operation of law or otherwise, and each party hereby waives
any such right of setoff.
(t) Tax
Matters.
| (i) | For
the purpose of Section 3(f) of the Agreement: |
(A) Dealer
makes the following representations:
[Insert
dealer-specific tax representations.]
(B) Counterparty
makes the following representations:
(1) It
is a "U.S. person" (as that term is used in section 1.1441-4(a)(3)(ii) of United States Treasury Regulations) for U.S.
federal income tax purposes.
(2) It
is a corporation for U.S. federal income tax purposes and is organized under the laws of the State of Maryland, and is an exempt recipient
under Treasury Regulation Section 1.6049-4(c)(1)(ii)(J).
| (ii) | Withholding
Tax imposed on payments to non-US counterparties under the United States Foreign Account
Tax Compliance Act. "Indemnifiable Tax", as defined in Section 14 of the
Agreement, shall not include any U.S. federal withholding tax imposed or collected pursuant
to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the
"Code"), any current or future regulations or official interpretations thereof,
any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal
or regulatory legislation, rules or practices adopted pursuant to any intergovernmental
agreement entered into in connection with the implementation of such Sections of the Code
(a "FATCA Withholding Tax"). For the avoidance of doubt, a FATCA Withholding
Tax is a Tax the deduction or withholding of which is required by applicable law for the
purposes of Section 2(d) of the Agreement. |
| (iii) | HIRE
Act. "Indemnifiable Tax", as defined in Section 14 of the Agreement,
shall not include any tax imposed on payments treated as dividends from sources within the
United States under Section 871(m) of the Code or any regulations issued thereunder
(an "871(m) Tax"). For the avoidance of doubt, an 871(m) Tax is
a Tax the deduction or withholding of which is required by applicable law for the purposes
of Section 2(d) of the Agreement. |
| (iv) | Tax
documentation. For the purposes of Sections 4(a)(i) and 4(a)(ii) of the Agreement,
Counterparty shall provide to Dealer, and Dealer shall deliver to Counterparty, a valid and
duly executed U.S. Internal Revenue Service Form [●], or any successor thereto,
(i) on or before the date of execution of this Master Confirmation; (ii) promptly
upon reasonable demand by the other party; and (iii) promptly upon learning that any
such tax form previously provided has become invalid, obsolete, or incorrect. Additionally,
Counterparty or Dealer shall, promptly upon reasonable request by the other party, provide
such other tax forms and documents reasonably requested by the other party. |
| (v) | Change
of Account. Section 2(b) of the Agreement is hereby amended by the addition
of the following after the word "delivery" in the first line thereof: "to
another account in the same legal and tax jurisdiction". |
(u) Wall
Street Transparency and Accountability Act of 2010. The parties hereby agree that none of (i) Section 739 of the
WSTAA, (ii) any similar legal certainty provision included in any legislation enacted, or rule or regulation promulgated, on
or after the Trade Date, (iii) the enactment of the WSTAA or any regulation under the WSTAA, (iv) any requirement under the
WSTAA or (v) any amendment made by the WSTAA shall limit or otherwise impair either party's right to terminate, renegotiate, modify,
amend or supplement any Confirmation or the Agreement, as applicable, arising from a termination event, force majeure, illegality, increased
cost, regulatory change or similar event under any Confirmation, the Equity Definitions or the Agreement (including, but not limited
to, any right arising from any Acceleration Event).
(v) Other
Forward(s). Counterparty agrees that (x) it shall not cause to occur, or permit to exist, any Forward Hedge Selling Period at
any time there is (1) a "Forward Hedge Selling Period" (or equivalent concept) relating to any other issuer forward sale
or similar transaction (including, without limitation, any "Transaction" under (and as defined under) any substantially identical
master forward confirmation) with any financial institution other than Dealer (an "Other Forward Transaction"), (2) any
"Unwind Period" (or equivalent concept) hereunder or under any Other Forward Transaction or (3) any other period in which
Counterparty directly or indirectly issues and sells Shares pursuant to an underwriting agreement (or similar agreement including, without
limitation, any equity distribution agreement) (such period, a "Selling Period") that Counterparty enters into with
any financial institution other than Dealer, and (y) Counterparty shall not cause to occur, or permit to exist, an Unwind Period
at any time there is an "Unwind Period" (or equivalent concept) under any Other Forward Transaction that is not an Other ATM
Forward Transaction (as defined below), a "Forward Hedge Selling Period" (or equivalent concept) relating to any Transaction
or any Other Forward Transaction or any Selling Period. Dealer acknowledges, however, that, pursuant to the Distribution Agreement,
Counterparty may enter into one or more forward transactions (each, as amended from time to time, an "Other ATM Forward Transaction"
and collectively, the "Other ATM Forward Transactions") with another Forward Purchaser (as defined in the Distribution
Agreement) (an "Other ATM Dealer"). Dealer and Counterparty agree that if Counterparty designates a "Settlement
Date" (or equivalent concept) with respect to one or more Other ATM Forward Transactions for which "Cash Settlement" (or
equivalent concept) or "Net Share Settlement" (or equivalent concept) is applicable, and the resulting "Unwind Period"
(or equivalent concept) for such Other ATM Forward Transaction coincides for any period of time with an Unwind Period for a Transaction
(the "Overlap Unwind Period"), Counterparty shall notify Dealer at least one Scheduled Trading Day prior to the commencement
of such Overlap Unwind Period of the first Scheduled Trading Day and the length of such Overlap Unwind Period, and Dealer shall be permitted
to purchase Shares to unwind its hedge in respect of this Transaction only on alternating Scheduled Trading Days during such Overlap
Unwind Period, commencing on the first, second, third or later Scheduled Trading Day of such Overlap Unwind Period, as notified to Dealer
by Counterparty at least one Scheduled Trading Day prior to such Overlap Unwind Period (which alternating Scheduled Trading Days, for
the avoidance of doubt, would be every other Scheduled Trading Day if there is only one Other ATM Dealer in such Overlap Unwind Period,
every third Scheduled Trading Day if there are two Other ATM Dealers, etc.).
(w) Counterparty
and Dealer agree and acknowledge that: (A) the Transactions contemplated by this Master Confirmation will be entered into in reliance
on the fact that this Master Confirmation and each Supplemental Confirmation hereto form a single agreement between Counterparty and
Dealer, and Dealer would not otherwise enter into such Transactions; (B) this Master Confirmation, together with each Supplemental
Confirmation hereto, is a "qualified financial contract", as such term is defined in Section 5-701(b)(2) of the New
York General Obligations Law; (C) each Supplemental Confirmation hereto, regardless of whether transmitted electronically or otherwise,
constitutes a "confirmation in writing sufficient to indicate that a contract has been made between the parties" hereto, as
set forth in Section 5-701(b)(3)(b) of the New York General Obligations Law; and (D) this Master Confirmation and each
Supplemental Confirmation hereto constitute a prior "written contract", as set forth in Section 5-701(b)(1)(b) of
the New York General Obligations Law, and each party hereto intends and agrees to be bound by this Master Confirmation and such Supplemental
Confirmation.
(x) Counterparty
and Dealer agree that, upon the effectiveness of any accepted Placement Notice relating to a Forward (as such term is defined in the
Distribution Agreement), in respect of the Transaction to which such accepted Placement Notice relates, each of the representations,
warranties, covenants, agreements and other provisions of this Master Confirmation and the Supplemental Confirmation for such Transaction
(including, without limitation, Dealer's right to designate a Termination Settlement Date in respect of such Transaction pursuant to
Paragraph 7(f) and the termination of such Transaction following a Bankruptcy Termination Event as described in Paragraph 7(l))
shall govern, and be applicable to, such Transaction as of the first Trading Day of the Forward Hedge Selling Period for such Transaction
as if the Trade Date for such Transaction were such first Trading Day. Notwithstanding anything to the contrary in this Master Confirmation,
any Supplemental Confirmation, the Agreement or the Equity Definitions, if Dealer designates a Termination Settlement Date with respect
to a Transaction (1) following the occurrence of an Event of Default or Termination Event, other than a Bankruptcy Termination Event,
or an event described in Paragraph 7(e)(iv) and such Termination Settlement Date is to occur before the date that is one Settlement
Cycle after the last day of the Forward Hedge Selling Period for such Transaction or (2) prior to the Counterparty's execution of
the Supplemental Confirmation relating to such Transaction, then, for purposes of such Termination Settlement Date, (i) a Supplemental
Confirmation relating to such Transaction reasonably completed by Dealer shall, notwithstanding the provisions under Paragraph 7(a),
be deemed to be effective; and (ii) in the case of (1), the Forward Price shall be deemed to be the Initial Forward Price (calculated
assuming that the last Trading Day of such Forward Hedge Selling Period were the day immediately following the date Dealer so notifies
Counterparty of such designation of a Termination Settlement Date for purposes of such Termination Settlement Date). For the avoidance
of doubt, in the event that this Paragraph 7(x) is triggered, the terms of such deemed Supplemental Confirmation shall be reviewed,
confirmed or determined by the Calculation Agent to the same extent such terms would have been reviewed, confirmed or determined by the
Calculation Agent if the parties had entered into a Supplemental Confirmation.
(y) ISDA
2018 U.S. Resolution Stay Protocol. The parties agree that the definitions and provisions contained in the ISDA 2018 U.S. Resolution
Stay Protocol and Attachment thereto as published by the International Swaps and Derivatives Association, Inc. on July 31,
2018 are hereby incorporated into and apply to the Agreement as if set forth in full herein. For these purposes, the following terms
as used in the U.S. Stay Protocol shall have the following meanings: “Regulated Entity” shall mean Dealer and "Protocol
Covered Agreement" or "Covered Agreement", as applicable, shall mean the Agreement.
(z) Insert
dealer-specific provisions.
[Signature Page Follows]
Please confirm
your agreement to be bound by the terms stated herein by executing the copy of this Master Confirmation enclosed for that purpose and
returning it to us.
|
Yours sincerely, |
|
|
|
[DEALER] |
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
[Signature Page to
Registered Forward
Transaction Master Confirmation]
Confirmed as of the date first above
written: |
|
|
|
ALEXANDRIA
REAL ESTATE EQUITIES, INC. |
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
[Signature Page to
Registered Forward
Transaction Master Confirmation]
Annex A
SUPPLEMENTAL CONFIRMATION
To: |
Alexandria
Real Estate Equities, Inc. |
From: |
[DEALER] |
Re: |
Registered
Forward Transaction |
Date: |
[_________],
20[__] |
Ladies and Gentlemen:
The
purpose of this Supplemental Confirmation is to confirm the terms and conditions of the Transaction entered into between [Dealer] ("Dealer")
and Alexandria Real Estate Equities, Inc. ("Counterparty") (together, the "Contracting Parties")
on the Trade Date specified below. This Supplemental Confirmation is a binding contract between Dealer and Counterparty as of the relevant
Trade Date for the Transaction referenced below.
1. This
Supplemental Confirmation supplements, forms part of, and is subject to the Master Confirmation dated as of [●] (the "Master
Confirmation") between the Contracting Parties, as amended and supplemented from time to time. All provisions contained in the
Master Confirmation govern this Supplemental Confirmation except as expressly modified below.
2. The
terms of the Transaction to which this Supplemental Confirmation relates are as follows:
Trade Date: |
[_______], 20[__] |
|
|
Effective Date: |
[_______], 20[__] |
|
|
Number of Shares: |
[________] |
|
|
Maturity Date: |
[_______], 20[__] |
|
|
Initial Forward Price: |
USD [____] |
|
|
Volume-Weighted Hedge Price: |
[______] |
|
|
Spread: |
[_.__]% per annum |
Counterparty
hereby agrees (a) to check this Supplemental Confirmation carefully and promptly upon receipt so that errors or discrepancies can
be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by Dealer) correctly sets
forth the terms of the agreement between Dealer and Counterparty hereunder, by manually signing this Supplemental Confirmation or this
page hereof as evidence of agreement to such terms and providing the other information requested herein and promptly returning an
executed copy to us.
|
Yours faithfully, |
|
|
|
|
[DEALER] |
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
[Signature Page to
Registered Forward
Transaction Supplemental Confirmation]
Agreed and accepted by: |
|
|
|
ALEXANDRIA
REAL ESTATE EQUITIES, INC. |
|
|
|
By: |
|
|
|
Name: |
|
Title: |
|
[Signature Page to
Registered Forward
Transaction Supplemental Confirmation]
Schedule
I
Forward
Price Reduction Amounts
Forward
Price Reduction Date: |
Forward
Price Reduction Amount: |
Trade
Date |
USD
0.00 |
[______],
20[__] |
USD[___] |
[______],
20[__] |
USD[___] |
…….. |
…….. |
[______],
20[__] |
USD[___] |
Maturity
Date |
USD
0.00 |
Exhibit 5.1
February 15, 2024
Alexandria Real Estate Equities, Inc.
26 North Euclid Avenue
Pasadena,
California 91101
Re: Registration
Statement on Form S-3
Ladies and Gentlemen:
We have served as Maryland counsel to Alexandria
Real Estate Equities, Inc., a Maryland corporation (the “Company”), in connection with certain matters of Maryland law
arising out of the registration of shares (the “Shares”) of the Company’s common stock, $0.01 par value per share (the
“Common Stock”), having an aggregate offering price of up to $1,500,000,000, in an at-the-market offering (the “Offering”),
covered by the above-referenced Registration Statement, and all amendments thereto (the “Registration Statement”), filed by
the Company with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933,
as amended (the “1933 Act”).
In connection with our representation of the Company,
and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction,
of the following documents (hereinafter collectively referred to as the “Documents”):
1. The
Registration Statement;
2. The
Prospectus, dated February 1, 2024, as supplemented by a Prospectus Supplement, dated February 15, 2024 (the “Prospectus
Supplement”), filed with the Commission pursuant to Rule 424(b)(2) of the General Rules and Regulations promulgated
under the 1933 Act;
3. The
charter of the Company (the “Charter”), certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
4. The
Bylaws of the Company, certified as of the date hereof by an officer of the Company;
Alexandria Real Estate Equities, Inc.
February 15, 2024
Page 2
5. A
certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
6. The
Distribution Agreement, dated February 15, 2024 (the “Distribution Agreement”), by and among the Company and Mizuho Securities
USA LLC (“Mizuho”), Robert W. Baird & Co. Incorporated (“Baird”), Barclays Capital Inc. (“Barclays”),
BBVA Securities Inc. (“BBVA”), BMO Capital Markets Corp. (“BMO”), BNP Paribas Securities Corp. (“BNPP”),
BofA Securities, Inc. (“BofA”), BTIG, LLC, Capital One Securities, Inc., Citigroup Global Markets Inc. (“CGMI”),
Citizens JMP Securities, LLC (“Citizens JMP”), Evercore Group L.L.C. (“Evercore ISI”), Fifth Third Securities, Inc.,
Goldman Sachs & Co. LLC (“Goldman Sachs”), Jefferies LLC (“Jeffries”), J.P. Morgan Securities LLC (“J.P.
Morgan”), RBC Capital Markets, LLC (“RBC”), Regions Securities LLC (“Regions”), Scotia Capital (USA) Inc.
(“Scotia”), TD Securities (USA) LLC (“TD Securities”), Truist Securities, Inc. (“Truist Securities”)
and Wedbush Securities Inc., in the capacity as sales agents (in such capacity, the “Agents”), and Mizuho Markets Americas
LLC, Baird, Barclays Bank PLC, Banco Bilbao Vizcaya Argentaria, S.A., Bank of Montreal, BNP Paribas, Bank of America, N.A., Nomura Global
Financial Products, Inc., Canadian Imperial Bank of Commerce, Citibank, N.A., Citizens JMP, Goldman Sachs & Co. LLC, Jefferies,
JPMorgan Chase Bank, National Association, Royal Bank of Canada, Regions, The Bank of Nova Scotia, The Toronto-Dominion Bank and Truist
Bank, in the capacity as forward purchasers (in such capacity, together with any additional forward purchasers, the “Forward Purchasers”),
and Mizuho, Baird, Barclays, BBVA, BMO, BNPP, BofA, Nomura Securities International Inc. (acting through BTIG, LLC as agent), CIBC World
Markets Corp., CGMI, Citizens JMP, Evercore ISI, Goldman Sachs, Jefferies, J.P. Morgan, RBC, Regions, Scotia, TD Securities and Truist
Securities, in the capacity as forward sellers (in such capacity, together with any additional forward sellers, the “Forward Sellers”).
7. The
Master Confirmations for Registered Forward Transactions listed on Schedule I hereto, each dated February 15, 2024 (the “Master
Forward Confirmations” and, together with the Distribution Agreement, the “Agreements”), each by and between the Company
and a Forward Purchaser;
8. The
form of supplemental confirmation, included as an exhibit to each Master Forward Confirmation (each such agreement entered into in such
form, the “Supplemental Confirmation”), to be executed in connection with the issuance of any Shares pursuant to a Master
Forward Confirmation;
9. Resolutions
adopted by the Board of Directors of the Company (the “Board”), and a duly authorized committee thereof, relating to, among
other matters, (a) the authorization of the sale, issuance and registration of the Shares, (b) the authorization of the the
execution and delivery of the Agreements and (c) the delegation to certain officers of the Company (the “Authorized Officers”)
of the power to determine, subject to certain parameters, the number of Shares and the offering price of each Share to be sold in the
Offering (the “Resolutions”), certified as of the date hereof by an officer of the Company;
Alexandria Real Estate Equities, Inc.
February 15, 2024
Page 3
10. A
certificate executed by an officer of the Company, dated as of the date hereof; and
11. Such
other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions,
limitations and qualifications stated herein.
In expressing the opinion set forth below, we have
assumed the following:
1. Each
individual executing any of the Documents, whether on behalf of such individual or any other person, is legally competent to do so.
2. Each
individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.
3. Each
of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents
to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding and are enforceable
in accordance with all stated terms.
4. All
Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not
differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted
to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public records
reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained
in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there
has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.
5. The
Shares will not be issued in violation of any restriction or limitation contained in Article VII of the Charter.
Alexandria Real Estate Equities, Inc.
February 15, 2024
Page 4
6. Upon
issuance of any of the Shares, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares
of Common Stock that the Company is then authorized to issue under the Charter.
7. The
number of Shares, and the offering price of each Share, to be issued by the Company from time to time pursuant to the Distribution Agreement
or Forward Master Confirmation (and related Supplemental Confirmation), as applicable, will be determined by the Board, a duly authorized
committee thereof or the Authorized Officers in accordance with the Resolutions (with such determinations referred to hereinafter as the
“Officer Instructions”) prior to the issuance thereof.
Based upon the foregoing, and subject to the assumptions,
limitations and qualifications stated herein, it is our opinion that:
1. The
Company is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing
with the SDAT.
2. The
issuance of the Shares has been duly authorized and, when and to the extent issued against payment therefor in accordance with the Distribution
Agreement or Forward Master Confirmation (and related Supplemental Confirmation), as applicable, the Registration Statement, the Prospectus
Supplement, the Resolutions and the Officer Instructions, the Shares will be validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the laws of the
State of Maryland and we do not express any opinion herein concerning United States federal law or the law of any other jurisdiction.
We express no opinion as to compliance with any federal or state securities laws, including the securities laws of the State of Maryland,
or as to federal or state laws regarding fraudulent transfers. To the extent that any matter as to which our opinion is expressed herein
would be governed by any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. The opinion expressed
herein is subject to the effect of judicial decisions which may permit the introduction of parol evidence to modify the terms or the interpretation
of agreements.
The opinion expressed herein is limited to the matters
specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement
this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed
herein after the date hereof.
Alexandria Real Estate Equities, Inc.
February 15, 2024
Page 5
This opinion is being furnished to you for submission
to the Commission as an exhibit to the Company’s Current Report on Form 8-K relating to the Offering (the “Current Report”),
which is incorporated by reference in the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the
Current Report and the said incorporation by reference and to the use of the name of our firm therein. In giving this consent, we do not
admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.
|
Very truly yours, |
|
|
|
/s/ Venable LLP |
Schedule I
1. The
Master Confirmation for Registered Forward Transactions, by and between the Company and Mizuho Markets Americas LLC;
2. The
Master Confirmation for Registered Forward Transaction, by and between the Company and Robert W. Baird & Co. Incorporated;
3. The
Master Confirmation for Registered Forward Transactions, by and between the Company and Barclays Bank PLC;
4. The
Master Confirmation for Registered Forward Transactions, by and between the Company and Banco Bilbao Vizcaya Argentaria, S.A.;
5. The
Master Confirmation for Registered Forward Transactions, by and between the Company and Bank of Montreal;
6. The
Master Confirmation for Registered Forward Transactions, by and between the Company and BNP Paribas;
7. The
Master Confirmation for Registered Forward Transactions, by and between the Company and Bank of America, N.A.;
8. The
Master Confirmation for Registered Forward Transactions, by and between the Company and Nomura Global Financial Products, Inc.;
9. The
Master Confirmation for Registered Forward Transactions, by and between the Company and Canadian Imperial Bank of Commerce;
10. The
Master Confirmation for Registered Forward Transactions, by and between the Company and Citibank, N.A.;
11. The
Master Confirmation for Registered Forward Transactions, by and between the Company and Citizens JMP Securities, LLC;
12. The
Master Confirmation for Registered Forward Transactions, by and between the Company and Goldman Sachs & Co. LLC;
13. The
Master Confirmation for Registered Forward Transaction, by and between the Company and Jefferies LLC;
14. The
Master Confirmation for Registered Forward Transactions, by and between the Company and JPMorgan Chase Bank, National Association;
Alexandria Real Estate Equities, Inc.
February 15, 2024
Page 7
15. The
Master Confirmation for Registered Forward Transactions, by and between the Company and Royal Bank of Canada;
16. The
Master Confirmation for Registered Forward Transactions, by and between the Company and Regions Securities LLC;
17. The
Master Confirmation for Registered Forward Transactions, by and between the Company and The Bank of Nova Scotia;
18. The
Master Confirmation for Registered Forward Transactions, by and between the Company and The Toronto-Dominion Bank; and
19. The
Master Confirmation for Registered Forward Transactions, by and between the Company and Truist Bank.
Exhibit 8.1
|
12531 High Bluff Drive
Suite 100
San Diego
California 92130-2040
TELEPHONE:
858.720.5100
FACSIMILE:
858.720.5125
www.mofo.com
|
morrison & foerster llp
austin, beijing, berlin, boston,
brussels, denver, hong
kong,
london, los angeles, miami,
new york, palo alto, san diego,
san francisco, shanghai, singapore,
tokyo, washington, d.c.
|
February 15, 2024
Alexandria Real Estate Equities, Inc.
26 North Euclid Avenue
Pasadena, California 91101
| Re: | Alexandria Real Estate Equities, Inc.—
Status as a Real Estate Investment Trust;
Information in Prospectus under Heading |
Federal Income Tax Considerations
Ladies and Gentlemen:
We
have acted as counsel to Alexandria Real Estate Equities, Inc., a Maryland corporation (the “Company”),
in connection with: (i) the sale and issuance by the Company from time to time of shares of its common stock, $0.01 par value
per share, having an aggregate offering price of up to $1,500,000,000 (collectively, the “Shares”). The
Shares are the subject of (i) a registration statement filed on Form S-3 (as amended, the “Registration Statement”)
by the Company with the U.S. Securities and Exchange Commission (“SEC”) under the Securities Act of 1933 (the
“Securities Act”) on February 1, 2024, (ii) a prospectus dated February 1, 2024, (the “Base
Prospectus”), and (iii) a prospectus supplement to the Base Prospectus dated February 15, 2024, (such prospectus
supplement together with the Base Prospectus, the “Prospectus”).
You have requested our opinion as to certain federal
income tax matters regarding the Company. Although you may disclose to any and all persons, without limitation of any kind, the federal
tax treatment and federal tax structure of the Company and all materials of any kind that were provided to you by us relating to such
tax treatment and tax structure, this opinion is intended solely for your benefit in connection with the offering of the Shares. You may
not authorize any other person or entity to rely on this opinion, or otherwise make this opinion available for the benefit of any other
person or entity, without our prior written consent.
In our capacity as counsel to the Company and for
purposes of rendering this opinion, we have examined and relied upon the following, with your consent: (i) the Registration Statement,
(ii) the Prospectus, (iii) a certificate executed by duly appointed officers of the Company (the “Officer’s
Certificate”) setting forth certain factual representations, dated February 15, 2024, and (iv) such other documents
as we have considered relevant to our analysis. We have also examined the opinions, including officer’s certificates and exhibits
related thereto (the “Supporting Documents”), of Mayer, Brown, Rowe & Mawe LLP, dated February 28,
2002, June 29, 2004, March 31, 2005, September 23, 2005, June 20, 2006, June 23, 2006, September 29, 2006,
January 17, 2007 and January 23, 2007 (the “Mayer Opinions”), with respect to the qualification of
the Company as a real estate investment trust (“REIT”) for its taxable year ended December 31, 1996, and
all subsequent taxable years ending on or before December 31, 2006. In our examination of such documents, we have assumed the authenticity
of original documents, the accuracy of copies, the genuineness of signatures, and the legal capacity of signatories. We have also assumed
that all parties to such documents have acted, and will act, in accordance with the terms of such documents.
Alexandria Real Estate Equities, Inc.
February 15, 2024
Page Two
Our opinion is based on (a) our understanding
of the facts as represented to us in the Officer’s Certificate and (b) the assumption that (i) the Company and its subsidiaries
have valid legal existences under the laws of the states in which they were formed and have operated in accordance with the laws of such
states, (ii) the Company is operated, and will continue to be operated, in the manner described in the Officer’s Certificate,
(iii) the facts contained in the Supporting Documents, the Registration Statement and the Prospectus are true and complete in all
material respects, (iv) all representations of fact contained in the Officer’s Certificate are true and complete in all material
respects and (v) any representation of fact in the Officer’s Certificate that is made “to the knowledge of” or
similarly qualified is correct without such qualification. We have not undertaken any independent inquiry into or verification of these
facts either in the course of our representation of the Company or for the purpose of rendering this opinion, including, without limitation,
any investigation as to (i) the proper allocation of lease payments between real property and personal property, or (ii) whether
the Company owns, directly or indirectly, 10% or more of any tenant of the Company, applying the principles of sections 856(d)(2)(B) and
(d)(5) of the Internal Revenue Code of 1986, as amended (the “Code”). While we have reviewed all representations
made to us to determine their reasonableness, and nothing has come to our attention that would cause us to question the accuracy of such
representations, we have no assurance that they are or will ultimately prove to be accurate.
We note that the tax consequences addressed herein
depend upon the actual occurrence of events in the future, which events may or may not be consistent with any representations made to
us for purposes of this opinion. In particular, the qualification and taxation of the Company as a REIT for federal income tax purposes
depends upon the Company’s ability to meet on a continuing basis certain distribution levels, diversity of stock ownership, and
the various qualification tests imposed by the Code. To the extent that the facts differ from those represented to or assumed by us herein,
our opinion should not be relied upon.
Alexandria Real Estate Equities, Inc.
February 15, 2024
Page Three
Our opinion herein is based on existing law as
contained in the Code, final and temporary Treasury Regulations promulgated thereunder, administrative pronouncements of the Internal
Revenue Service (the “IRS”) and court decisions as of the date hereof. The provisions of the Code and the Treasury
Regulations, IRS administrative pronouncements and case law upon which this opinion is based could be changed at any time, perhaps
with retroactive effect. In addition, some of the issues under existing law that could significantly affect our opinion have not yet been
authoritatively addressed by the IRS or the courts, and our opinion is not binding on the IRS or the courts. Hence, there can be no assurance
that the IRS will not challenge, or that the courts will agree with, our conclusions.
Based upon, and subject to, the foregoing and the
next paragraphs below, we are of the opinion that, as of the date hereof:
| 1. | The Company has been organized and has operated in conformity with the requirements for qualification and taxation as a REIT under
the Code for each of its taxable years beginning with the taxable year ended December 31, 2004 through its taxable year ended December 31,
2023, and its current organization and current and proposed method of operation will enable it to continue to meet the requirements for
qualification and taxation as a REIT for the taxable year ending December 31, 2024 and thereafter. |
| 2. | We have reviewed the statements included or incorporated by reference in the Prospectus under the heading “Federal Income Tax
Considerations” and, insofar as such statements pertain to matters of law or legal conclusions, they are correct in all material
respects. |
We undertake no obligation to update this opinion,
or to ascertain after the date hereof whether circumstances occurring after such date may affect the conclusions set forth herein. We
express no opinion as to matters governed by any laws other than the Code, the Treasury Regulations, published administrative announcements
and rulings of the IRS, and court decisions.
Alexandria Real Estate Equities, Inc.
February 15, 2024
Page Four
This opinion is furnished to you solely for use
in connection with the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to a Current Report on Form 8-K
of the Company and to such Registration Statement. We also consent to the reference to our firm name wherever appearing in the Registration
Statement and the Prospectus. In giving this consent, we do not admit that we come within the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the SEC thereunder, nor do we thereby admit that we are
experts with respect to any part of the Registration Statement within the meaning of the term “experts” as used in the Securities
Act or the rules and regulations of the SEC promulgated thereunder.
Sincerely, |
|
|
|
/S/ MORRISON & FOERSTER LLP |
|
v3.24.0.1
X |
- DefinitionBoolean flag that is true when the XBRL content amends previously-filed or accepted submission.
+ References
+ Details
Name: |
dei_AmendmentFlag |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionFor the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
+ References
+ Details
Name: |
dei_DocumentPeriodEndDate |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:dateItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
+ References
+ Details
Name: |
dei_DocumentType |
Namespace Prefix: |
dei_ |
Data Type: |
dei:submissionTypeItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionAddress Line 1 such as Attn, Building Name, Street Name
+ References
+ Details
Name: |
dei_EntityAddressAddressLine1 |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- Definition
+ References
+ Details
Name: |
dei_EntityAddressCityOrTown |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionCode for the postal or zip code
+ References
+ Details
Name: |
dei_EntityAddressPostalZipCode |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionName of the state or province.
+ References
+ Details
Name: |
dei_EntityAddressStateOrProvince |
Namespace Prefix: |
dei_ |
Data Type: |
dei:stateOrProvinceItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityCentralIndexKey |
Namespace Prefix: |
dei_ |
Data Type: |
dei:centralIndexKeyItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionIndicate if registrant meets the emerging growth company criteria.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityEmergingGrowthCompany |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
+ References
+ Details
Name: |
dei_EntityFileNumber |
Namespace Prefix: |
dei_ |
Data Type: |
dei:fileNumberItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
+ References
+ Details
Name: |
dei_EntityIncorporationStateCountryCode |
Namespace Prefix: |
dei_ |
Data Type: |
dei:edgarStateCountryItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityRegistrantName |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityTaxIdentificationNumber |
Namespace Prefix: |
dei_ |
Data Type: |
dei:employerIdItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionLocal phone number for entity.
+ References
+ Details
Name: |
dei_LocalPhoneNumber |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 13e -Subsection 4c
+ Details
Name: |
dei_PreCommencementIssuerTenderOffer |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 14d -Subsection 2b
+ Details
Name: |
dei_PreCommencementTenderOffer |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTitle of a 12(b) registered security.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b
+ Details
Name: |
dei_Security12bTitle |
Namespace Prefix: |
dei_ |
Data Type: |
dei:securityTitleItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionName of the Exchange on which a security is registered.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection d1-1
+ Details
Name: |
dei_SecurityExchangeName |
Namespace Prefix: |
dei_ |
Data Type: |
dei:edgarExchangeCodeItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Section 14a -Number 240 -Subsection 12
+ Details
Name: |
dei_SolicitingMaterial |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
+ References
+ Details
Name: |
dei_TradingSymbol |
Namespace Prefix: |
dei_ |
Data Type: |
dei:tradingSymbolItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Securities Act -Number 230 -Section 425
+ Details
Name: |
dei_WrittenCommunications |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
Alexandria Real Estate E... (NYSE:ARE)
過去 株価チャート
から 5 2024 まで 6 2024
Alexandria Real Estate E... (NYSE:ARE)
過去 株価チャート
から 6 2023 まで 6 2024