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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):
September 18, 2024
Ventas, Inc.
(Exact Name of Registrant as Specified in
Its Charter)
Delaware |
|
001-10989 |
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61-1055020 |
(State or Other Jurisdiction of Incorporation) |
|
(Commission
File Number) |
|
(I.R.S. Employer
Identification No.) |
353
N. Clark Street, Suite
3300, Chicago, Illinois |
|
60654 |
(Address of Principal Executive Offices) |
|
(Zip Code) |
Registrant’s Telephone Number, Including
Area Code: (877) 483-6827
Not applicable
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 Act:
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on which registered |
Common stock, $0.25 par value |
|
VTR |
|
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 September 18, 2024, Ventas, Inc.
(the “Company”) entered into an ATM Sales Agreement (the “Sales Agreement”), with BofA Securities, Inc.,
BBVA Securities Inc., BNP Paribas Securities Corp., BNY Mellon Capital Markets, LLC, Citigroup Global Markets Inc., Credit Agricole Securities
(USA) Inc., Jefferies LLC, J.P. Morgan Securities LLC, Mizuho Securities USA LLC, Morgan Stanley & Co. LLC, MUFG Securities Americas
Inc., RBC Capital Markets, LLC, Scotia Capital (USA) Inc., TD Securities (USA) LLC, Truist Securities Inc., UBS Securities LLC and Wells
Fargo Securities, LLC, each as sales agent and/or principal and/or forward seller (in any such capacity, each an “Agent” and
collectively, the “Agents”), and Bank of America, N.A., Banco Bilbao Vizcaya Argentaria, S.A., BNP Paribas, Citibank, N.A.,
Crédit Agricole Corporate and Investment Bank, Jefferies LLC, JPMorgan Chase Bank, National Association, Mizuho Markets Americas
LLC, Morgan Stanley & Co. LLC, MUFG Securities EMEA plc, Royal Bank of Canada, The Bank of New York Mellon, The Bank of Nova
Scotia, The Toronto-Dominion Bank, Truist Bank, UBS AG London Branch and Wells Fargo Bank, National Association, each as forward purchaser
(in such capacity, each a “Forward Purchaser” and collectively, the “Forward Purchasers”).
Under the terms of the Sales Agreement, the Company
may issue and sell, from time to time to or through the Agents, shares of the Company’s common stock, par value $0.25 per share
(“Common Stock”), having an aggregate gross sales price of up to $2,000,000,000 (the “Shares”). The sales, if
any, of the Shares under the Agreement may be made in sales deemed to be “at-the-market offerings,” as defined in Rule 415
under the Securities Act of 1933, as amended (the “Securities Act”), including sales made directly on the New York Stock Exchange,
the existing trading market for the Common Stock, or sales made to or through a market maker or through an electronic communications network.
Sales may also be made in privately negotiated transactions (including block sales) or by any other methods permitted by applicable law.
The Sales Agreement contemplates that, in addition
to the Company’s issuance and sale of Shares to or through the Agents, the Company may enter into separate forward sale agreements
pursuant to forward confirmations to be entered into between the Company and the relevant Forward Purchaser, a form of which is attached
to the Sales Agreement as Annex II thereto (each, a “Forward Sale Agreement”). In connection with any Forward Sale Agreement,
the relevant Forward Purchaser will borrow shares from third parties and, through its affiliated Forward Seller, offer a number of shares
of Common Stock equal to the number of shares of Common Stock underlying the particular Forward Sale Agreement. The Company will not initially
receive any proceeds from any sale of borrowed shares of Common Stock through a Forward Seller. The Company currently expects to settle
any Forward Sale Agreement with a full physical settlement, in which case the Company would expect to receive per share cash proceeds
at settlement equal to the forward sale price under the relevant Forward Sale Agreement. However, except in limited circumstances, the
Company may elect a cash or net share settlement for all or a portion of its obligations under such Forward Sale Agreement. If the Company
elects to cash settle or net share settle a Forward Sale Agreement, the Company may not (in the case of cash settlement) or will not (in
the case of net share settlement) receive any proceeds, 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 Company intends to use the net proceeds from
the offering for working capital and other general corporate purposes, which may include funding future acquisitions and investments or
repayment of existing indebtedness.
Any shares of Common Stock the Company may offer,
issue and sell, and any shares of borrowed Common Stock that the Forward Purchasers may offer and sell, pursuant to the Sales Agreement
will be offered and sold pursuant to the Company’s automatic shelf registration statement on Form S-3 (File No. 333-277185)
(the “Registration Statement”) and a prospectus supplement of the Company, filed with the Securities and Exchange Commission
on February 20, 2024 and September 18, 2024, respectively.
A copy of the Sales Agreement is filed herewith
as Exhibit 1.1 and is incorporated by reference herein and in the Registration Statement. The foregoing description of the material
terms of the Sales Agreement and the transactions contemplated thereby does not purport to be complete and is qualified in its entirety
by reference to such exhibit. In addition, Davis Polk & Wardwell LLP, acting as counsel to the Company, is filing a legal opinion
regarding the validity of the Common Stock to be sold pursuant to the Sales Agreement, attached as Exhibit 5.1 to this Form 8-K
and incorporated by reference herein and into the Registration Statement.
On September 18, 2024, the Company provided
notice of its termination, effective upon entrance into the Sales Agreement, of the ATM Sales Agreement, dated as of November 8,
2021 and as amended on February 20, 2024 (as amended, the “Prior Sales Agreement”), by and between the Company and the
sales agents and forward purchasers party thereto. As previously reported, pursuant to the terms of the Prior Sales Agreement, the Company
could offer and sell, through the sales agents party thereto, from time to time, shares of the Company’s Common Stock, having an
aggregate gross sales price of up to $1,000,000,000. As of September 18, 2024, there was $20.4 million remaining for sale under
the Prior Sales Agreement. The Company is not subject to any termination penalties related to the termination of the Prior Sales Agreement.
| Item. 9.01. | Financial
Statements and Exhibits. |
(d) Exhibits:
* In accordance with Item 601(a)(5) of Regulation
S-K certain schedules and exhibits have not been filed. The Company hereby agrees to furnish supplementally a copy of any omitted
schedule or exhibit to the Securities and Exchange Commission upon request
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 thereunto duly authorized.
Date: September 18, 2024
|
VENTAS, INC. |
|
|
|
|
|
By: |
/s/ Carey S. Roberts |
|
|
Name: |
Carey S. Roberts |
|
|
Title: |
Executive Vice President, General Counsel, Ethics &
Compliance Officer and Corporate Secretary |
Exhibit 1.1
Ventas, Inc.
Common Stock
($0.25 par value)
ATM
SALES AGREEMENT
September 18, 2024
BofA Securities, Inc.
BBVA Securities Inc.
BNP Paribas Securities Corp.
BNY Mellon Capital Markets, LLC
Citigroup Global Markets Inc.
Credit Agricole Securities (USA) Inc.
Jefferies LLC
J.P. Morgan Securities LLC
Mizuho Securities USA LLC
Morgan Stanley & Co. LLC
MUFG Securities Americas Inc.
RBC Capital Markets, LLC
Scotia Capital (USA) Inc.
TD Securities (USA) LLC
Truist Securities, Inc.
UBS Securities LLC
Wells Fargo Securities, LLC
c/o BofA Securities, Inc.
One Bryant Park
New York, New York 10036
As Agents and Forward Sellers
Bank of America, N.A.
One Bryant Park
New York, New York 10036
Banco Bilbao Vizcaya Argentaria, S.A.
Ciudad
BBVA, Calle Sauceda nº 28
Edificio Oceania, Planta 1ª
Madrid 28050
BNP Paribas
787 Seventh Ave
New York, New York 10019
Citibank, N.A.
388 Greenwich Street
New York, New York 10013
Crédit Agricole Corporate and Investment Bank
c/o Credit Agricole Securities (USA) Inc., as agent
1301 Avenue of the Americas
New York, New York 10019
Jefferies LLC
520 Madison Avenue
New York, New York 10022
JPMorgan Chase Bank, National Association
383 Madison Avenue
New York, New York 10179
Mizuho Markets Americas LLC
c/o Mizuho Securities USA LLC, as agent
1271 Avenue of the Americas
New York, New York 10020
Morgan Stanley & Co. LLC
1585 Broadway, 4th Floor
New York, New York 10036
MUFG Securities EMEA plc
Ropemaker Place
25 Ropemaker Street
London EC2Y 9AJ, United Kingdom
Royal Bank of Canada
Brookfield Place
200 Vesey Street
New York, New York 10281
The Bank of New York Mellon
240 Greenwich Street, 3rd Floor
New York, New York 10286
The Bank of Nova Scotia
44 King Street West
Toronto, Ontario M5H 1H1 Canada
c/o Scotia Capital (USA) Inc.
250 Vesey Street
24th Floor
New York, New York 10281
The Toronto-Dominion Bank
c/o TD Securities (USA) LLC, as agent
1 Vanderbilt Avenue
New York, NY 10017
Truist Bank
3333 Peachtree Road NE, 11th Floor
Atlanta, Georgia 30326
UBS AG London Branch
5 Broadgate
London EC2M 2QS, United Kingdom
Wells Fargo Bank, National Association
500 West 33rd Street
14th Floor
New York, New York 10001
As Forward Purchasers
Ladies and Gentlemen:
Ventas, Inc., a Delaware
corporation (the “Company”), confirms its agreement with BofA Securities, Inc., BBVA Securities Inc., BNP Paribas
Securities Corp., BNY Mellon Capital Markets, LLC, Citigroup Global Markets Inc., Credit Agricole Securities (USA) Inc., Jefferies LLC,
J.P. Morgan Securities LLC, Mizuho Securities USA LLC, Morgan Stanley & Co. LLC, MUFG Securities Americas Inc., RBC Capital
Markets, LLC, Scotia Capital (USA) Inc., TD Securities (USA) LLC, Truist Securities, Inc., UBS Securities LLC and Wells Fargo Securities,
LLC, each as sales agent and/or principal and/or forward seller (in any such capacity, each an “Agent” and collectively,
the “Agents”), and Bank of America, N.A., Banco Bilbao Vizcaya Argentaria, S.A., BNP Paribas, Citibank, N.A. (or an
affiliate thereof), Crédit Agricole Corporate and Investment Bank, Jefferies LLC, JPMorgan Chase Bank, National Association, Mizuho
Markets Americas LLC, Morgan Stanley & Co. LLC, MUFG Securities EMEA plc, Royal Bank of Canada, The Bank of New York Mellon,
The Bank of Nova Scotia, The Toronto-Dominion Bank, Truist Bank, UBS AG London Branch and Wells Fargo Bank, National Association, each
as forward purchaser (in such capacity, each a “Forward Purchaser” and collectively, the “Forward Purchasers”),
as stated in this Agreement (as defined below).
For purposes of clarity,
it is understood and agreed by the parties hereto that, if Shares (as defined below) are offered or sold through any Agent acting as
forward seller for a Forward Purchaser, then such Agent, as forward seller, shall be acting solely in its capacity as sales agent for
such Forward Purchaser and not as sales agent for the Company with respect to the offering and sale of such Shares, and, except in cases
where this Agreement expressly refers to an Agent acting as sales agent for the Company or unless otherwise expressly stated or the context
otherwise requires, references in this Agreement to any Agent acting as sales agent shall also be deemed to apply to such Agent when
acting as forward seller, mutatis mutandis. Only an Agent that is, or is affiliated with, a Forward Purchaser may act as forward seller
for such Forward Purchaser.
The Company proposes, subject to the terms and
conditions stated herein, to (i) issue, offer and sell from time to time to or through any of the Agents, severally and not jointly,
shares (any such shares, “Primary Shares”) of the Company’s common stock, $0.25 par value (the “Common
Stock”), and (ii) request the applicable Agents, severally and not jointly, from time to time to offer and sell shares
of Common Stock as forward sellers on behalf of the applicable Forward Purchasers (any such shares, “Forward Hedge Shares”
and, together with the Primary Shares, the “Shares”), all on the terms and subject to the conditions set forth in
this Agreement; provided that the aggregate number of Shares of Common Stock sold pursuant to clauses (i) and (ii) above (including
shares of Common Stock issued and sold by the Company to or through the Agents pursuant to this Agreement) and shares of Common Stock
borrowed by any Forward Purchasers or their respective affiliates and sold through any Agents, acting as forward sellers, in connection
with any Confirmations (as hereinafter defined)) shall not have an aggregate gross sales price in excess of $2,000,000,000. Any Shares
of Common Stock to be delivered by the Company to any Forward Purchaser in settlement of all or a portion of the Company’s obligations
under any Confirmation are hereinafter sometimes called “Confirmation Shares.” The Company agrees that whenever it
determines to sell Shares directly to an Agent as principal it will enter into a separate written Terms Agreement (each, a “Terms
Agreement”), in substantially the form of Annex I hereto, relating to such sale in accordance with Section 2(k) hereof.
References herein to “this Agreement” or to matters contained “herein” or “hereunder,” or
words of similar import, mean this ATM Sales Agreement dated as of September 18, 2024, and any applicable Terms Agreement.
The Company may also enter
into one or more forward stock purchase transactions (each, a “Forward”) with any of the Forward Purchasers as set
forth in one or more separate letter agreements, each in substantially the form attached as Annex II hereto and with such changes
therein as the parties thereto may agree (each, a “Confirmation” and, collectively, the “Confirmations”).
In connection with any Confirmation entered into as contemplated by this Agreement, it is contemplated that the applicable Forward Purchaser
or an affiliate thereof may attempt to borrow and then offer, through the applicable Agent, acting as forward seller and sales agent
on behalf of such Forward Purchaser, the applicable Shares for sale on the terms and subject to the conditions set forth in this Agreement.
The Company has prepared
and filed with the U.S. Securities and Exchange Commission (the “Commission”) an “automatic shelf registration
statement” (as defined in Rule 405 under the Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder (collectively, the “Securities Act”)), on Form S-3 (File No. 333-277185), to be used in connection
with the public offering and sale of certain securities of the Company, including the Shares, under the Securities Act, which became
effective pursuant to Rule 462(e) under the Securities Act (“Rule 462(e)”). The “Registration
Statement” as of any time shall refer to the automatic shelf registration statement on Form S-3 filed as of February 20,
2024, including a prospectus, filed by the Company with the Commission to be used in connection with the public offering and sale of
certain securities of the Company, including the Shares, as amended by any post-effective amendments thereto at such time, including
the exhibits and any schedules thereto at such time, the documents incorporated or deemed to be incorporated by reference therein at
such time pursuant to Item 12 of Form S-3 under the Securities Act and the documents otherwise deemed to be a part thereof as of
such time pursuant to Rule 430B under the Securities Act; provided, however, that the “Registration Statement,”
without reference to a time, means such registration statement, as amended by any post-effective amendments thereto as of the time of
the first contract of sale for the Shares, which time shall be considered the “new effective date” of the Registration Statement
with respect to the Shares within the meaning of Rule 430B(f)(2) under the Securities Act, including the exhibits and any schedules
thereto at such time, the documents incorporated or deemed to be incorporated by reference therein at such time pursuant to Item 12 of
Form S-3 under the Securities Act and the documents otherwise deemed to be a part thereof as of such time pursuant to Rule 430B
under the Securities Act. The base prospectus filed as part of such automatic shelf registration statement, as amended in the form in
which it has been filed most recently with the Commission in accordance with Section 3(b) or 3(c) hereof,
including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Securities Act, is referred to herein as the “Base Prospectus.” Promptly after execution and delivery of this
Agreement, the Company will prepare and file a prospectus supplement relating to the offering and sale of the Shares in accordance with
the provisions of Rule 424(b) under the Securities Act (“Rule 424(b)”). Such prospectus supplement,
in the form furnished by the Company to the Agents and Forward Purchasers in connection with the offering of the Shares, as amended by
the prospectus supplement filed most recently with the Commission in accordance with Section 3(b), 3(c) or 3(n) hereof,
as the case may be, including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act, is referred to herein as the “Prospectus Supplement.” The Base Prospectus, as amended by
the Prospectus Supplement and any applicable pricing supplement thereto, in the form the Base Prospectus, the Prospectus Supplement and
any such pricing supplement are first furnished to the Agents and the Forward Purchasers for use in connection with the offering and
sale of the Shares, are collectively referred to herein as the “Prospectus.” For purposes of this Agreement, all references
to the Registration Statement, any preliminary prospectus or the Prospectus, or any amendment or supplement thereto, shall be deemed
to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (or any successor
system) (“EDGAR”).
As used in this Agreement:
“affiliate”
has the meaning set forth in Rule 405 under the Securities Act (“Rule 405”).
“Applicable Time”
means, with respect to a specific offering and sale of Shares, the time immediately prior to the first contract of sale for such Shares,
or such other time as agreed by the Company and the applicable Agents and Forward Purchasers.
“business day”
means any day other than a day on which banks are permitted or required to be closed in New York City.
“General Disclosure
Package” means, with respect to a specific offering and sale of Shares, each Issuer General Use Free Writing Prospectus, if
any, issued prior to the Applicable Time, the most recent Prospectus filed with the Commission in accordance with Section 3(b),
3(c) or 3(n) hereof that is distributed to investors prior to the Applicable Time and the number of Shares in
such offering and the public offering price per Share, all considered together.
“Governmental Entity”
means any domestic or foreign court with jurisdiction over the Company or any Subsidiary or any of their assets or properties or other
governmental or regulatory authority, agency or body.
“Interpretive Letter”
means the interpretive letter dated October 9, 2003 in which the staff of the Commission responded to the letter dated October 6,
2003 submitted on behalf of Goldman, Sachs & Co. to Paula Dubberly of the staff of the Commission.
“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act (“Rule 433”)),
including, without limitation, any “free writing prospectus” (as defined in Rule 405 under the Securities Act), relating
to the Shares that is (i) required to be filed by the Company with the Commission, (ii) a “road show that is a written
communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission, or (iii) exempt
from filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the Shares or of the offering
thereof that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not
required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
“Issuer General
Use Free Writing Prospectus” means any Issuer Free Writing Prospectus approved by the Agents or, in the case of a specific
offering and sale of Shares, the applicable Agents, pursuant to Section 3(1) hereof that is furnished to the Agents
or the applicable Agents, as the case may be, for general distribution to investors, as evidenced by communications between the Company
and the Agents or the applicable Agents, as the case may be.
“Issuer Limited
Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or
agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
“Significant Subsidiary”
means any subsidiary of the Company within the meaning set forth in Rule 1-02 of Regulation S-X.
“Subsidiary”
means any “subsidiary” (as defined in Rule 405) of the Company.
All references in this Agreement
to financial statements and schedules and other information which is “contained,” “included,” “made,”
“stated” or “referred to” (or other references of like import) in the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to include all such financial statements and schedules and other information incorporated
or deemed to be incorporated by reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may
be, prior to the Applicable Time relating to the particular Shares; and all references in this Agreement to amendments or supplements
to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to include the filing of any document under
the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange
Act”) incorporated or deemed to be incorporated by reference in the Registration Statement, such preliminary prospectus or
the Prospectus, as the case may be, at or after the Applicable Time relating to the particular Shares.
Section 1. Representations
and Warranties. The Company represents and warrants (a) to each Agent and each Forward Purchaser as of the date of this
Agreement, as of each Registration Statement Amendment Date (as defined in Section 3(o) hereof), as of each Company
Periodic Report Date (as defined in Section 3(n) hereof), as of each Company Earnings Report Date (as defined in Section 3(o) hereof)
and as of each Request Date (as defined in Section 3(o) hereof) and (b) with respect to a specific offering and
sale of Shares, to the applicable Agents or Forward Purchasers as of each Applicable Time, as of each Settlement Date (as defined in
Section 2(i) hereof) and as of each Trade Date (as defined in each Confirmation, if any) (each, a “Representation
Date”), and agrees with each Agent and Forward Purchaser, as follows:
(i) Compliance
with Registration Requirements.
(A) The
Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) that has become effective
upon filing with the Commission under the Securities Act. The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under
the Securities Act (“Rule 401(g)(2)”) objecting to the use of the automatic shelf registration statement form
or any post-effective amendment thereto. No stop order suspending the effectiveness of the Registration Statement is in effect, the Commission
has not issued any order or notice preventing or suspending the use of the Registration Statement, any preliminary prospectus or the
Prospectus and no proceedings for such purpose or pursuant to Section 8A under the Securities Act have been instituted or are pending
or, to the knowledge of the Company, have been threatened by the Commission.
(B) Each
of the Registration Statement and any post-effective amendment thereto, at the respective times the Registration Statement and any post-effective
amendment thereto became effective and as of each new effective date with respect to the applicable Agents and Forward Purchasers pursuant
to Rule 430B(f)(2), complied and complies in all material respects with the requirements of the Securities Act and did not and does
not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading. Each of the preliminary prospectus, if any, and the Prospectus, when filed with
the Commission, complied or will comply in all material respects with the requirements of the Securities Act, and the Prospectus, as
amended or supplemented, as of its date, at the time of any filing pursuant to Rule 424(b) and at any Settlement Date, did
not and will not contain any 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, not misleading. The representations and warranties set forth in
the first two sentences of this Section l(i)(B) do not apply to statements in or omissions from the Registration Statement
or any post-effective amendment thereto, or the Prospectus, as amended or supplemented, made in reliance upon and in conformity with
information furnished to the Company in writing by the Agents and the Forward Purchasers expressly for use therein, it being understood
and agreed that the only such information furnished by the Agents and the Forward Purchasers consists of the Agent Information described
as such in Section 6(a) hereof. There is no contract or other document required to be described in the Prospectus or
to be filed as an exhibit to the Registration Statement that has not been described or filed as required.
(C) At
each Applicable Time, the General Disclosure Package did not and will not include any 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,
not misleading. The representation and warranty set forth in the immediately preceding sentence does not apply to statements in or omissions
from the General Disclosure Package made in reliance upon and in conformity with information furnished to the Company in writing by the
Agents and the Forward Purchasers expressly for use therein, it being understood and agreed that the only such information furnished
by the Agents and the Forward Purchasers consists of the Agent Information described as such in Section 6(a) hereof.
(ii) Well-Known
Seasoned Issuer. (A) At the time of filing the Registration Statement, (B) at the time of the most recent amendment thereto,
if applicable, 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) under the
Securities Act) made any offer relating to the Shares in reliance upon the exemption from Section 5(c) of the Securities Act
set forth in Rule 163 under the Securities Act, (D) at the date of this Agreement and any Terms Agreement and (E) at each
Applicable Time, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405).
(iii) Issuer
Not Ineligible Issuer. (A) At the earliest time after the filing of the Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) with respect to the
Shares, (B) at the time of the most recent amendment to the Registration Statement, if applicable, 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 date of this Agreement and any
Terms Agreement and (D) at each Applicable Time, the Company was not and is not an Ineligible Issuer (as defined in Rule 405),
without taking into account any determination by the Commission pursuant to Rule 405 that it is not necessary under the circumstances
that the Company be considered an Ineligible Issuer.
(iv) Distribution
of Offering Material by the Company. The Company has not distributed and will not distribute, prior to any Settlement Date, any written
communication (as defined in Rule 405) that constitutes an offer to sell or a solicitation of an offer to buy the Shares, other
than (A) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134
under the Securities Act, (B) the Prospectus and the General Disclosure Package and (C) any Issuer Free Writing Prospectus
reviewed and consented to by the Agents and the Forward Purchasers.
(v) Issuer
Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion
of the specific offering and sale of the Shares contemplated hereby, or until any earlier date that the Company notifies the Agents and
the Forward Purchasers in accordance with Section 3(c) hereof, did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information contained in the Registration Statement.
(vi) Capitalization.
The Company has an authorized capitalization of 600,000,000 shares of Common Stock and 10,000,000 shares of preferred stock, $1.00 par
value (“Preferred Stock”). All of the issued and outstanding shares of Common Stock have been duly authorized and
validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or similar right. There are no shares
of Preferred Stock outstanding. All of the issued and outstanding shares of capital stock or other equity interests of each Significant
Subsidiary have been duly authorized and validly issued, are fully paid and (except in the case of general partnership interests) nonassessable,
were not issued in violation of any preemptive or similar right and, except as set forth in the Registration Statement, the General Disclosure
Package or the Prospectus, are owned by the Company, directly or indirectly through one or more Subsidiaries, free and clear of all Liens,
other than Liens (A) that will be discharged at or prior to the Applicable Time with respect to a specific offering and sale of
Shares or (B) that are not, individually or in the aggregate, reasonably likely to have a material adverse effect on the business,
condition (financial or otherwise), results of operations or assets of the Company and its Subsidiaries, considered as one enterprise
(a “Material Adverse Effect”).
(vii) Authorization
and Description of the Shares. The Shares have been duly authorized by the Company and, at any Settlement Date with respect to a
specific offering and sale of Shares, when issued and delivered by the Company against payment therefor in accordance with the terms
of this Agreement, will be validly issued, fully paid and nonassessable and conform to the description thereof contained or incorporated
by reference in the Prospectus and the General Disclosure Package; and the stockholders of the Company will have no preemptive or similar
rights with respect to the Shares or the issue and sale thereof.
(viii) Organization
and Good Standing; Power and Authority. Each of the Company and each Significant Subsidiary (A) is a corporation, partnership,
limited liability company or real estate investment trust duly organized and validly existing under the laws of the jurisdiction of its
organization, (B) has all requisite corporate, partnership, limited liability company or trust power and authority necessary to
own its property and carry on its business as described in the General Disclosure Package and the Prospectus and (C) is qualified
to do business and is in good standing in all jurisdictions in which the nature of the business conducted by it makes such qualification
necessary, except for any failures to be so qualified and in good standing that are not, individually or in the aggregate, reasonably
likely to have a Material Adverse Effect.
(ix) Authorization
of Agreements. This Agreement has been, and any Terms Agreement will have been, duly authorized, executed and delivered by the Company.
(x) Absence
of Violations and Defaults. Neither the Company nor any Significant Subsidiary is (A) in violation of its charter, bylaws or
other constitutive documents, (B) in default in the performance or observance of any obligation, agreement, covenant or condition
contained in any note, indenture, mortgage, deed of trust, loan or credit agreement, lease, license or other agreement or instrument
to which it is a party, by which it is bound or to which its assets or properties is subject (collectively, “Agreements and
Instruments”) or (C) in violation of any law, statute, rule, regulation, judgment, order or decree of any Governmental
Entity, except, in the case of clauses (B) and (C), for any such defaults or violations that are set forth in the Registration
Statement, the General Disclosure Package or the Prospectus or that are not, individually or in the aggregate, reasonably likely to have
a Material Adverse Effect.
(xi) No
Conflicts. Neither the execution, delivery and performance of this Agreement or any Confirmation or Terms Agreement by the Company
nor the issuance, offer and sale of the Shares and any Confirmation Shares (as defined below) by the Company contemplated hereby does
or will (A) violate the charter, bylaws or other constitutive documents of the Company or any Subsidiary, (B) conflict with,
result in a breach or violation of, or constitute a default under any Agreements and Instruments or (C) violate any law, statute,
rule, regulation, judgment, order or decree of any Governmental Entity, except, in the case of clauses (B) and (C), for any
such conflicts, breaches, defaults or violations that are not, individually or in the aggregate, reasonably likely to have a Material
Adverse Effect or materially adversely affect the consummation of any transactions contemplated hereby. No consent, approval, authorization
or order of, or filing with, any Governmental Entity is required to be obtained or made by the Company or any Subsidiary for the execution,
delivery and performance by the Company of this Agreement or any Confirmation or Terms Agreement, including the consummation of any of
the transactions contemplated hereby, except such as have been or will be obtained or made at or prior to the Settlement Date relating
to a specific offering of Shares or Confirmation Shares or as may be required by state securities laws, blue sky laws or the Financial
Industry Regulatory Authority, Inc. (“FINRA”).
(xii) Absence
of Proceedings. Except as set forth in the Registration Statement, the General Disclosure Package or the Prospectus, there is no
action, suit or proceeding before or by any domestic or foreign court, arbitrator or other Governmental Entity pending or, to the knowledge
of the Company, threatened, to which the Company or any Subsidiary is a party or to which the assets or properties of the Company or
any Subsidiary are subject, that is, individually or in the aggregate, reasonably likely (A) to have a Material Adverse Effect or
(B) to materially and adversely affect the offering and sale of the Shares or Confirmation Shares contemplated hereby. Except as
set forth in the Registration Statement, the General Disclosure Package or the Prospectus, there is no injunction, restraining order
or order of any nature by a federal or state court or foreign court of competent jurisdiction to which the Company or any Subsidiary
is subject that is, individually or in the aggregate, reasonably likely to materially and adversely affect the offering and sale of the
Shares or Confirmation Shares contemplated hereby.
(xiii) Exchange
Act Compliance. The Company is subject to and in compliance in all material respects with the reporting requirements of Section 13
or 15(d) of the Exchange Act.
(xiv) Possession
of Licenses and Permits. Each of the Company and each Subsidiary possesses all licenses, certificates, permits, authorizations and
approvals issued by the appropriate federal, state, local or foreign Governmental Entities (collectively, “Authorizations”)
necessary to carry on its business as described in the General Disclosure Package and the Prospectus, except for any failures to hold
such Authorizations that are not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect. All such Authorizations
are valid and in full force and effect, except for any failures to be valid or in full force and effect that are not, individually or
in the aggregate, reasonably likely to have a Material Adverse Effect, and neither the Company nor any Subsidiary has received any written
notice of proceedings relating to the limitation, suspension or revocation of any such Authorization, except for any such limitations,
suspensions or revocations that are not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect.
(xv) Owned
and Leased Real Property. The Company and its Subsidiaries have good and marketable title in fee simple to, or a ground leasehold
interest in, all real property (other than properties capitalized under capital leases) described as owned by them in the General Disclosure
Package and the Prospectus, in each case free and clear of all Liens, except (A) for Liens described in the General Disclosure Package
and the Prospectus and (B) for any failures to have such title or any Liens that are not, individually or in the aggregate, reasonably
likely to have a Material Adverse Effect. Any real property held under lease by the Company and its Subsidiaries is held under a valid
and enforceable lease, except for any failures to so hold such real property that are not, individually or in the aggregate, reasonably
likely to have a Material Adverse Effect. To the knowledge of the Company, no lessee or sublessee of any portion of any of the properties
owned or leased by the Company and/or any Subsidiary is in default under its respective lease and there is no event that, but for the
passage of time or the giving of notice or both, would constitute a default under any such lease, except as described in each of the
General Disclosure Package and the Prospectus and except for any such defaults that are not, individually or in the aggregate, reasonably
likely to have a Material Adverse Effect.
(xvi) Qualification
as a REIT. Commencing with the Company’s taxable year ended December 31, 1999, the Company has been organized and has
operated in conformity with the requirements for qualification and taxation as a real estate investment trust (a “REIT”)
under the Internal Revenue Code of 1986, as amended (the “Code”), and the Company’s current and proposed method
of operation will enable the Company to continue to meet the current requirements for qualification and taxation as a REIT under the
Code.
(xvii) Tax
Returns and Payment of Taxes. (A) All tax returns required to be filed by the Company and each Subsidiary have been timely filed
in all jurisdictions where such returns are required to be filed; (B) the Company and each Subsidiary have paid all taxes, including,
but not limited to, income, value added, property and franchise taxes, penalties and interest, assessments, fees and other charges due
or claimed to be due from such entities or that are due and payable, other than those being contested in good faith and for which reserves
have been provided in accordance with generally accepted accounting principles (“GAAP”) or those currently payable
without penalty or interest; and (C) the Company and each Subsidiary have complied with all withholding tax obligations, except,
in the case of any of clause (A), (B) or (C), where the failure to make such required filings, payments or withholdings is
not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect.
(xviii)
Investment Company Act. The Company is not and, upon the issuance and sale of the Shares and Confirmation Shares as contemplated
by this Agreement or any Confirmation, as applicable, and the application of the net proceeds therefrom as described in the General Disclosure
Package and the Prospectus, will not be required to register as an “investment company” under the Investment Company Act
of 1940, as amended.
(xix) Disclosure
Controls and Procedures. The Company maintains “disclosure controls and procedures” (as such term is defined in Rules 13a-15(e) and
15d-15(e) under the Exchange Act) that (A) are designed to ensure that material information is accumulated and communicated
to the Company’s Chief Executive Officer and Chief Financial Officer on a timely basis, (B) were evaluated for effectiveness
as of the end of the Company’s most recent fiscal quarter and (C) are effective at a reasonable assurance level to perform
the functions for which they were established.
(xx) Internal
Control over Financial Reporting. The Company maintains “internal control over financial reporting” (as such term is
defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) that is designed to provide reasonable assurance regarding
the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. Such
internal control over financial reporting was evaluated for effectiveness as of the end of the Company’s most recent fiscal year
and, as of that date, was effective. Except as set forth in the Registration Statement, the General Disclosure Package or the Prospectus,
since the end of the Company’s most recent audited fiscal year, there have been no changes in the Company’s internal control
over financial reporting that have materially affected, or are reasonably likely to materially affect, the Company’s internal control
over financial reporting.
(xxi) IT
Systems. The Company and the Subsidiaries’ material information technology assets and equipment, computers, systems, networks,
hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate
and perform in all material respects as required in connection with the operation of the business of the Company and its Subsidiaries
as currently conducted, and to the knowledge of the Company, free and clear of all material bugs, errors, defects, Trojan horses, time
bombs, malware and other corruptants. The Company and its Subsidiaries have implemented commercially reasonable physical, technical and
administrative controls, policies, procedures, and safeguards designed to maintain and protect their material confidential information
and the integrity, continuous operation, redundancy and security of all IT Systems and data, including Personal Data, used in connection
with their businesses. “Personal Data” means a natural person’s name, street address, telephone number, email
address, photograph, social security number or tax identification number, driver’s license number, passport number, credit card
number, bank information, or any other piece of information that reasonably allows for the identification of such natural person or his
or her family. To the Company’s knowledge, there have been no breaches, violations, outages or unauthorized uses of or accesses
to same, except for those that have been remedied without material cost or liability or the duty to notify any other person, nor any
incidents under internal review or investigations relating to the same, except for those that may be remedied without any material cost
to the Company. The Company and its Subsidiaries are presently in material compliance with all applicable laws or statutes and all judgments,
orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual
obligations relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal
Data from unauthorized use, access, misappropriation or modification.
(xxii) No
Material Adverse Change in Business. Since the respective dates as of which information is given in each of the Registration Statement,
the General Disclosure Package and the Prospectus (in each case as supplemented or amended), except as otherwise set forth therein, (A) neither
the Company nor any Subsidiary has (1) incurred any liability or obligation, direct or contingent, that is, individually or in the
aggregate, reasonably likely to have a Material Adverse Effect or (2) entered into any material transaction not in the ordinary
course of business, (B) there has been no event or development in respect of the business or financial condition of the Company
and its Subsidiaries that is, individually or in the aggregate, reasonably likely to have a Material Adverse Effect and (C) there
has been no material change in the long-term debt of the Company and its Subsidiaries or in the authorized capitalization of the Company.
(xxiii) Independent
Accountants and Financial Statements. KPMG LLP is an independent registered public accounting firm with respect to the Company as
required by the Securities Act and the Exchange Act. The historical consolidated financial statements of the Company and its Subsidiaries,
together with the related financial statement schedules and notes thereto, if any, included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus present fairly in all material respects the consolidated financial position
and results of operations of the Company and its Subsidiaries at the respective dates and for the respective periods presented therein.
Such historical consolidated financial statements and the related financial statement schedules and notes thereto, if any, have been
prepared in accordance with GAAP applied on a consistent basis throughout the periods presented, except as otherwise set forth in the
Registration Statement, the General Disclosure Package or the Prospectus. The pro forma condensed, consolidated financial statements
of the Company and its Subsidiaries and the related notes thereto, if any, included or incorporated by reference in the Registration
Statement, the General Disclosure Package or the Prospectus have been prepared in accordance with the Commission’s rules and
guidelines with respect to pro forma financial statements, 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. The interactive data
in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the General Disclosure
Package and the Prospectus fairly presents in all material respects the information called for and has been prepared in accordance with
the Commission’s rules and guidelines applicable thereto.
(xxiv) Incorporated
Documents. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the General Disclosure
Package and the Prospectus (the “Incorporated Documents”), when filed with the Commission, complied or will comply
in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable.
(xxv)
No Stabilization or Manipulation. Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company,
any director, officer or affiliate of the Company has taken, directly or indirectly, any action designed, or that would reasonably be
expected, to cause or result in the stabilization or manipulation of the price of the Shares to facilitate the sale or resale of the
Shares.
(xxvi) Sarbanes-Oxley
Compliance. The Company is in compliance in all material respects with the applicable provisions of the Sarbanes-Oxley Act of 2002.
(xxvii)
No Unlawful Payments. None of the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any of its
or their respective directors, officers, agents or employees is aware of or has taken any action, directly or indirectly, that would
result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder
(collectively, the “FCPA”), or any other applicable anti-bribery or anti-corruption laws including, without limitation,
making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise
to pay or authorization of the payment of any money or other property, gift, promise to give or authorization of the giving of anything
of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof
or any candidate for foreign political office, in contravention of the FCPA or any other applicable anti-bribery or anti-corruption laws.
The Company, its Subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance in all
material respects with the FCPA and applicable anti-bribery and anti-corruption laws.
(xxviii) No
Conflict with Money Laundering Laws. The operations of the Company and its Subsidiaries are conducted in compliance in all material
respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of
1970, as amended, the applicable money laundering statutes of all jurisdictions in which the Company and its Subsidiaries conduct business
and the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced
by any governmental agency (collectively, the “Money Laundering Laws”), and no action, suit or proceeding by or before
any court or Governmental Entity or any arbitrator involving the Company and its Subsidiaries with respect to the Money Laundering Laws
is pending or, to the knowledge of the Company, threatened.
(xxix)
No Conflict with OFAC Laws. None of the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any of
its or their respective directors, officers, agents, employees or affiliates is currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”). The Company will not, directly
or indirectly, use the proceeds of the sale of any Shares or Confirmation Shares under this Agreement or any Confirmation, or lend, contribute
or otherwise make available such proceeds to any Subsidiary, joint venture partner or other person or entity, for the purpose of financing
the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(xxx)
Confirmations. On the date of each Confirmation, if any, such Confirmation will have been duly authorized, executed and
delivered by the Company and will constitute a valid and binding agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency or other similar laws now or hereafter in
effect relating to or affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability
and except that rights to indemnity thereunder may be limited by applicable law and public policy; and each Confirmation, if any, will
conform in all material respects to the statements relating thereto contained in the General Disclosure Package, the Prospectus and any
Issuer Free Writing Prospectus.
(xxxi)
Confirmation Shares. Any Confirmation Shares have been duly authorized by the Company for issuance and sale to the applicable
Forward Purchasers or any of their respective affiliates pursuant to the Confirmations (if any) and, when issued and delivered by the
Company in accordance with such Confirmations upon payment of any consideration required by such Confirmations, will be validly issued,
fully paid and non-assessable; the Confirmation Shares conform and will conform to the statements relating thereto contained in the General
Disclosure Package and the Prospectus and such statements conform and will conform to the rights set forth in the instruments defining
the same; and the issuance, sale and delivery of the Confirmation Shares is not subject to preemptive or other similar rights to arising
by operation of law, under the charter or bylaws of the Company, under any agreements or instrument to which the Company or any of its
subsidiaries is a party or otherwise. Assuming (i) no change in law or change in the policy of the Commission or its staff with
respect to the Interpretive Letter and (ii) that the Forward Purchaser party to the relevant Confirmation has complied with the
Interpretive Letter and with the covenants set forth in such Confirmation, the issuance, sale and delivery by the Company of Confirmation
Shares to such Forward Purchaser pursuant to such Confirmation in accordance with the terms thereof and the delivery by such Forward
Purchaser or any of its affiliates of such Confirmation Shares, during the term of and at any settlement of such Confirmation, to close
out open borrowings of Common Stock created in the course of the hedging activities by such Forward Purchaser or any of its affiliates
relating to such Forward Purchaser’s exposure under such Confirmation, do not and will not require registration under the Securities
Act.
(xxxii)
Listing. Prior to the earlier of (a) the first time that any Shares are offered for sale pursuant to this Agreement
and (b) the first date on which the Company shall enter into a Terms Agreement with any Agent or Agents or a Confirmation with any
Forward Purchaser, the Shares and Confirmation Shares will have been approved for listing on the New York Stock Exchange (the “NYSE”),
subject only to official notice of issuance.
(xxxiii)
Reservation of Shares and Confirmation Shares. The Company has reserved and has available, and will reserve and keep available
at all times, free of preemptive rights, the maximum number of authorized and unissued shares of Common Stock necessary to satisfy the
Company’s obligations to issue Shares and Confirmation Shares pursuant to this Agreement, any Confirmations and any Terms Agreements.
(xxxiv) Actively-Traded
Security. The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of
Regulation M under the Exchange Act by subsection (c)(1) of such rule.
Any certificate signed by
any officer of the Company addressed and delivered to the Agents or the Forward Purchasers or to counsel for the Agents or the Forward
Purchasers shall be deemed a representation and warranty by the Company to the Agents and the Forward Purchasers as to the matters covered
thereby. The Company acknowledges that the Agents and the Forward Purchasers and, for purposes of the opinions to be delivered to the
Agents and the Forward Purchasers pursuant to Section 5 hereof, counsel for the Company and counsel for the Agents and the
Forward Purchasers will rely upon the accuracy of the foregoing representations and warranties, and the Company hereby consents to such
reliance.
Section 2. Sale
and Delivery of Shares.
(a) Upon
the terms and subject to the conditions set forth herein, the Company may, in its sole discretion, and subject to the applicable Agent’s
or Forward Purchaser’s right, in its sole discretion, to decline such request, (i) in connection with any offer or sale of
Shares by the Company to any Agent, acting as sales agent for the Company, or directly to any Agent or Agents, acting as principal, offer
and sell such Shares on the terms and subject to the conditions set forth in this Agreement and, in the case of a sale of Shares to any
Agent or Agents as principal, the applicable Terms Agreement and (ii) subject to the terms and conditions set forth herein, if the
Company enters into a Confirmation with any Forward Purchaser, then, in consultation with such Forward Purchaser and the applicable Agent
(which shall be either the same entity as such Forward Purchaser or an affiliate of such Forward Purchaser), request such Agent, acting
as forward seller on behalf of such Forward Purchaser, to offer and sell the Shares borrowed by such Forward Purchaser or an affiliate
thereof from third parties as contemplated by the relevant Forward Instruction Notice (as defined in Section 2(b) below).
Sales of the Shares, if any, as contemplated by this Agreement, made through an Agent acting as sales agent of the Company or as forward
seller on behalf of the related Forward Purchaser, or directly to an Agent acting as principal will be made by means of ordinary brokers’
transactions on the NYSE, through market markers or otherwise at market prices prevailing at the time of such sales, at prices related
to prevailing market prices or at negotiated prices, by privately negotiated transactions (including block sales) or by any other methods
permitted by applicable law.
(b) The
Shares may be sold through any Agent, acting as sales agent on behalf of the Company or as forward seller on behalf of the related Forward
Purchaser, on any NYSE trading day, other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time
(each, a “Trading Day”), on which (i) the Company has requested such Agent to make such sales, on behalf of the
Company or on behalf of the applicable Forward Purchaser as forward seller, and (ii) the Company has performed its covenants and
satisfied its conditions specified in Sections 4 and 5 hereof. Such instructions shall specify whether (i) such
Shares will be sold through an Agent, as sales agent, or (ii) the applicable Shares may be borrowed by a Forward Purchaser or an
affiliate thereof and sold through the applicable Agent, as forward seller, in connection with hedging a Forward pursuant to a Confirmation
as contemplated by clause (ii) of Section 2(a) above. On any Trading Day, the Company may request only one Agent,
as sales agent for the Company or as forward seller on behalf of a Forward Purchaser, to offer or sell Shares. If the Company requests
to sell Shares through an Agent, it shall (i) in the case of sales on behalf of the Company, request the applicable Agent by email
or telephone (confirmed promptly by email, which confirmation will be promptly acknowledged by such Agent) as to the maximum number and
the maximum aggregate gross sales price of Shares to be sold on such Trading Day and the minimum price per Share at which such Shares
may be sold, or (ii) in the case of a Forward, propose to the applicable Agent and the applicable Forward Purchaser, by email, to
enter into a Forward consistent with the request substantially in the form set forth in Annex III (or such other form as the Company,
such Forward Purchaser and such Agent shall agree) (the “Forward Instruction Notice”). Such Forward Instruction Notice
shall specify the Forward Hedge Selling Period (as defined below), the number of Forward Hedge Shares that may be sold by the relevant
Agent over the Forward Hedge Selling Period (the “Designated Forward Hedge Shares”), the maximum aggregate gross sales
price of the Forward Hedge Shares to be sold by the relevant Agent over the Forward Hedge Selling Period (the “Aggregate Maximum
Forward Hedge Amount”), the minimum price per share at which Forward Hedge Shares may be sold, the commission the Agent is
to receive for selling such Forward Hedge Shares (the “Forward Seller Commission”), the price per share below which
Physical Settlement (as defined in the relevant Confirmation) shall apply under the relevant Confirmation (the “Termination
Threshold”), the Spread, the initial Stock Loan Fee, the maximum Stock Loan Fee, the Maturity Date, the Forward Price Reduction
Dates, the corresponding Forward Price Reduction Amounts (as each such term is defined in the relevant Confirmation), and any other desired
terms for the relevant Confirmation; provided that the Designated Forward Hedge Shares, the Aggregate Maximum Forward Hedge Amount and
the minimum price per share at which the Forward Hedge Shares may be sold shall, in each case, be subject to adjustment upon the relevant
Forward Purchaser’s receipt of prior written notice from the Company, and such Forward Purchaser shall make such adjustment during
the Forward Hedge Selling Period by notice to the Agent acting as forward seller on behalf of the relevant Forward Purchaser by email
or by telephone confirmed promptly by email; provided further that the Forward Purchaser shall have the right to reject any increase
to the Designated Forward Hedge Shares or the Aggregate Maximum Forward Hedge Amount so requested by the Company during the Forward Hedge
Selling Period; provided, however, that the Company may not adjust the Aggregate Maximum Forward Hedge Amount if such adjusted Aggregate
Maximum Forward Hedge Amount is less than the aggregate gross sales price of the Forward Hedge Shares actually sold as of the date of
such adjustment, nor may the Company adjust the Designated Forward Hedge Shares if such adjusted Designated Forward Hedge Shares is less
than the number of Forward Hedge Shares actually sold as of the date of such adjustment. Such Agent and/or such Forward Purchaser shall
promptly, and in any event prior to the opening of trading on the Trading Day following the Trading Day on which such Forward Instruction
Notice was delivered, choose to (A) accept the terms proposed in such Forward Instruction Notice, (B) decline to participate
in the proposed Forward or (C) propose amended terms upon which to participate in the proposed Forward; provided, however, that
in the case of clause (C), the Company may accept or reject such amended terms in its sole discretion no later than on the Trading Day
following the Trading Day on which such Agent and/or such Forward Purchaser proposed amended terms. Promptly upon the acceptance of a
Forward Instruction Notice (or its amended terms) and in any event prior to the opening of trading on the Trading Day immediately following
such acceptance, the Company and the Forward Purchaser shall enter into a Confirmation substantially in the form of Annex II hereto and
consistent with such Forward Instruction Notice. “Forward Hedge Selling Period” means the period of such number of
consecutive Trading Days (as determined by the Company in its sole discretion and specified in the applicable Forward Instruction Notice,
subject to adjustment (as described below)), beginning on the date specified in such Forward Instruction Notice or, if such date is not
a Trading Day, the next Trading Day following such date and ending on the earliest of (x) the last such Trading Day specified in
such Forward Instruction Notice, (y) any such Trading Day specified by the Company as the last Trading Day of the Forward Hedge
Selling Period in a subsequent notice (which, for the avoidance of doubt, may be a notice described in Section 2(d) hereof)
to the Agent, acting as a forward seller on behalf of the relevant Forward Purchaser, and to such Forward Purchaser by email or by telephone
confirmed promptly by email and (z) the date on which the Agent, as forward seller, shall have completed the sale of Forward Hedge
Shares in a commercially reasonable manner in connection with the relevant Confirmation to establish a commercially reasonable hedge
position; provided, however, that if, prior to the end of any Forward Hedge Selling Period 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 relevant Confirmation) under, and pursuant to the provisions of Section 3 of the relevant Confirmation, then the Forward
Hedge Selling Period shall, upon the relevant Agent, as forward seller, becoming aware of such occurrence, immediately terminate as of
the first such occurrence; and provided, further, that any Forward Hedge Selling Period then in effect shall immediately terminate upon
the termination of this Agreement.
(c) Subject
to the terms and conditions specified herein (including, without limitation, the accuracy of the representations and warranties of the
Company, the performance by the Company of its covenants and other obligations contained herein and the satisfaction of the conditions
specified in Section 5 hereof), such Agent shall use its commercially reasonable efforts, consistent with its normal trading
and sales practices and applicable law and regulations, to sell, as sales agent for the Company or as forward seller for the applicable
Forward Purchaser, as the case may be, all of the Shares so designated by the Company in accordance with such instructions. The Company
may change the Agent through whom sales of the Shares as sales agents for the Company or forward seller on behalf of any Forward Purchaser
will be made on any Trading Day (i) without notice to any other Agent or Forward Purchaser if, the Company has not otherwise provided
any instructions to any Agent or Forward Purchaser to offer or sell Shares on such Trading Day; or (ii) to the extent the Company provided
instructions to any Agent or Forward Purchaser to offer or sell Shares on such Trading Day, with notice from the Company to such Agent
or Forward Purchaser, as applicable, in writing by email at least one Trading Day prior to changing such Agent; provided that, in the
case of the sale of Shares on behalf of a Forward Purchaser, only the Agent affiliated with such Forward Purchaser may sell such Shares
as forward seller on behalf of such Forward Purchaser. For the avoidance of doubt, the foregoing limitation shall not apply to
sales solely to employees or security holders of the Company or its Subsidiaries or to a trustee or other person acquiring shares of
Common Stock for the accounts of such persons in which any of the Agents is acting for the Company in a capacity other than as Agent
under this Agreement. The parties hereto, severally and not jointly, each acknowledge and agree that (A) there can be no assurance
that any Agent (whether acting as sales agent on behalf of the Company or as forward seller for any Forward Purchasers) will be successful
in selling any Shares in accordance with the Company’s instructions or that any Forward Purchaser or any of its affiliates will
be successful in borrowing any Shares or selling any Shares through the applicable Agent, as forward seller, (B) no Agent or Forward
Purchaser or any of their respective affiliates will incur any liability or obligation to the Company if any Agent fails to sell Shares
as required by this Agreement (whether acting as sales agent on behalf of the Company or as forward seller on behalf of any Forward Purchaser)
other than any liability that an Agent may incur as a result of the failure by such Agent to use its commercially reasonable efforts,
consistent with its normal trading and sales practices and applicable law and regulations and (C) no Agent, Forward Purchaser or
any of their respective affiliates shall incur any liability or obligation for any failure by any Forward Purchaser or any of its affiliates
to borrow, offer or sell any Shares as a result of any of the circumstances specified in clauses (i) or (ii) of Section 2(m).
(d) The
Company or the Agent, whether acting as sales agent on behalf of the Company or forward seller on behalf of a Forward Purchaser, through
whom the sale of Shares is to be made on any Trading Day may, upon notice to the other party and, if such Agent is acting as forward
seller on behalf of a Forward Purchaser, such Forward Purchaser by telephone (confirmed promptly by email, which confirmation will be
promptly acknowledged by the receiving party), suspend the offering of Shares through such Agent, whether as sales agent on behalf of
the Company or forward seller on behalf of a Forward Purchaser, for any reason and at any time; provided, however, that such suspension
shall not affect or impair the respective obligations of the Company, such Agent or, in the case of Shares being sold on behalf of a
Forward Purchaser, such Forward Purchaser with respect to the Shares sold, or with respect to Shares that an investor has agreed to purchase,
hereunder prior to the giving of such notice.
(e) The
gross sales price of any Shares sold pursuant to this Agreement by any Agent acting as sales agent of the Company or as forward seller
on behalf of a Forward Purchaser shall be equal to, in the discretion of such Agent but subject to the specific instructions of the Company
and, if such Agent is acting as forward seller on behalf of a Forward Purchaser, such Forward Purchaser, the market price prevailing
at the time of sale for the Shares sold by such Agent (on the NYSE or otherwise), at prices related to prevailing market prices or a
negotiated price. The compensation payable to an Agent for sales of Shares with respect to which such Agent acts as sales agent for the
Company or as forward seller on behalf of a Forward Purchaser shall be equal to the amount of commission charged by such Agent in accordance
with its normal trading and sales practices, not to exceed 1.5% of the gross sales price for such Shares sold pursuant to this Agreement.
In connection with sales pursuant to Section 2(a)(ii) hereof, the compensation payable to the Agent for sales of Forward
Hedge Shares with respect to which the Agent acts as forward seller shall be reflected in a reduction not to exceed 1.5% from the Initial
Forward Price (as defined in the relevant Confirmation). The Company may sell Shares to an Agent or Agents as principal at a price agreed
upon at the relevant Applicable Time and pursuant to a separate Terms Agreement. The remaining proceeds, after deducting the applicable
Agent’s compensation and after further deduction for any transaction fees, transfer taxes or similar taxes or fees imposed by any
Governmental Entity or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company or the
applicable Forward Purchaser, as the case may be, for such sales (the “Net Proceeds”). The applicable Agent shall
notify the Company as promptly as practicable following such sales if any deduction referenced in the preceding sentence will be made
(other than the deduction of compensation payable to such Agent). Notwithstanding the foregoing, in the event the Company instructs the
applicable Agent, acting as sales agent on behalf of the Company or as forward seller on behalf of a Forward Purchaser, to sell Shares
other than on the NYSE, the Company, such Agent and, in the case of Shares being sold on behalf of a Forward Purchaser, such Forward
Purchaser, will agree to compensation for such Agent that is customary for such sales.
(f) Promptly
following the close of trading on the NYSE on each Trading Day on which Shares are sold under this Agreement, the applicable Agent, whether
acting as sales agent for the Company or as forward seller on behalf of a Forward Purchaser, shall provide written confirmation to the
Company setting forth: (i) the number of Primary Shares and Forward Hedge Shares sold on such day, (ii) the aggregate gross
sales proceeds of such Shares, (iii) the aggregate Net Proceeds to the Company or the applicable Forward Purchaser, as the case
may be, (iv) the Initial Forward Price as of such day under any Confirmation pursuant to which the Forward Hedge Shares were sold
on such day, and (v) the aggregate compensation payable by the Company to such Agent with respect to such sales.
(g) Under
no circumstances shall the aggregate gross sales price or number, as the case may be, of Shares offered or sold pursuant to this Agreement
or any Terms Agreement, or which are the subject of requests to an Agent, as sales agent for the Company or as forward seller on behalf
of a Forward Purchaser, pursuant to Section 2(b) hereof (including offers and sales of Forward Hedge Shares on behalf of any
relevant Forward Purchaser, but excluding Confirmation Shares), exceed the aggregate gross sales price or number, as the case may be,
of Shares (i) referred to in the second paragraph of this Agreement, as reduced by prior sales of Shares under this Agreement, (ii) available
for sale under the Registration Statement, (iii) duly authorized from time to time to be issued and sold under this Agreement or
any Terms Agreement by the Company’s board of directors or a duly authorized committee thereof or (iv) listed or approved
for listing on the NYSE, and, in each case referred to in clauses (i), (ii) and (iii), notified by the Company to the Agents
and the Forward Purchasers in writing. In addition, under no circumstances shall any Shares with respect to which an Agent acts as sales
agent for the Company or as forward seller on behalf of any Forward Purchaser be offered or sold, or be the subject of request pursuant
to Section 2(b) hereof, at a price lower than the minimum price therefor duly authorized from time to time by the Company
and notified to such Agent and any affiliated Forward Purchaser in writing, and the Company shall not enter into any Confirmation with
respect to a number of Confirmation Shares in excess of the number of Confirmation Shares duly authorized, reserved and available from
time to time for issuance and sale under such Confirmation or listed or approved for listing on the NYSE. Notwithstanding the foregoing,
the Agents, the Forward Purchasers or any of their respective affiliates shall have no responsibility for maintaining records with respect
to, or determining the number of Shares available for issuance or sale under the Registration Statement, the number of Confirmation Shares
available for issuance or sale under any Confirmations, the number of Shares or Confirmation Shares listed or approved for listing on
the NYSE, or for determining the aggregate gross sales price, number or minimum price of Shares duly authorized by the Company.
(h) If
the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect
to the Company or the Shares, the Company shall promptly notify the other parties hereto, and offers and sales of Shares through the
Agents, whether acting as sales agents for the Company or as forward sellers on behalf of any Forward Purchasers, under this Agreement
shall be suspended until such provisions or other exemptive provisions have been satisfied in the reasonable judgment of each party.
(i) Each
Settlement Date (as defined below) will occur on the business day that is also a Trading Day next succeeding the trade date on which
such sales are made, unless another date shall be agreed to in writing by the Company and the applicable Agent. On each Settlement Date
for the sale of Primary Shares through an Agent as sales agent pursuant to Section 2(a)(i) hereof (each such day, a “Direct
Settlement Date”), such Shares shall be delivered by the Company to such Agent in book-entry form to such Agent’s account
at The Depository Trust Company against payment by such Agent of the Net Proceeds from the sale of such Shares in same day funds delivered
to an account designated by the Company. On each settlement date for the sale of Forward Hedge Shares through an Agent as forward seller
pursuant to Section 2(a)(ii) hereof (each such day, a “Forward Settlement Date,” and together with the Direct
Settlement Date, a “Settlement Date”), such Forward Hedge Shares shall be delivered by the applicable Forward Purchaser
to the Agent in book entry form to the Agent’s account at The Depository Trust Company against payment by such Agent of the Net
Proceeds from the sale of such Forward Hedge Shares in same day funds delivered to an account designated by the applicable Forward Purchaser,
or as otherwise agreed to between the applicable Agent and the applicable Forward Purchaser. If the Company shall default on its obligation
to deliver Shares to the relevant Agent acting as sales agent on behalf of the Company on any Direct Settlement Date (and not including,
for the avoidance of doubt, any Forward Hedge Shares intended to be borrowed and delivered by the relevant Forward Purchaser or its affiliate
on a Forward Settlement Date), the Company shall (i) indemnify and hold such Agent harmless against any loss, claim or damage arising
from or as a result of such default by the Company and (ii) pay such Agent any commission to which it would otherwise be entitled
absent such default. The applicable Net Proceeds on any Settlement Date shall always be delivered substantially simultaneously with the
Shares delivered by the Company or the Forward Purchaser, as applicable.
(j) Notwithstanding
any other provision of this Agreement, the Company shall not offer or sell, or request an Agent, whether acting as sales agent for the
Company or as forward seller on behalf of a Forward Purchaser, to offer or sell, any Shares (and, by notice to the Agents and the Forward
Purchasers given by email or telephone (confirmed promptly by email), shall cancel any instructions for any such offer or sale prior
to the commencement of the periods referenced below), and no Agent shall be obligated to make any such offer or sale of Shares, and the
Company shall not enter into any Terms Agreement, Forward Instruction Notice or Confirmation, (i) during any period in which the
Company is, or could be deemed to be, in possession of material non-public information or (ii) except as provided in Section 2(k) hereof,
at any time during the period commencing on the tenth business day prior to the time the Company issues a press release containing, or
otherwise publicly announces, its earnings, revenues or other operating results for a fiscal period or periods (each, 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 fiscal period or periods, as the case may be, covered by such Earnings Announcement.
(k) Notwithstanding
clause (ii) of Section 2(j) hereof, if the Company wishes to offer or sell Shares to any of the Agents or to have
Shares sold by any Forward Purchaser through the related Agent, acting as forward seller on behalf of such Forward Purchaser or enter
into a Confirmation, 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 Agent and, in the case of any proposed offer or sale through
such Agent acting as forward seller, the applicable Forward Purchaser (with a copy to counsel for the Agents and the Forward Purchasers)
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 Agent and, if applicable, Forward Purchaser, (ii) provide such Agent and,
if applicable, Forward Purchaser with the officers’ certificate, opinions and letters of counsel and accountants’ letter
specified in Sections 3(o), 3(p) and 3(q), respectively, hereof, (iii) afford such Agent and, if
applicable, Forward Purchaser the opportunity to conduct a due diligence review in accordance with Section 3(t) hereof
prior to filing such Earnings 8-K with the Commission 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(k) 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 officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in
Sections 3(o), 3(p) and 3(q), respectively, hereof, and (B) this Section 2(k) shall
in no way affect or limit the operation of clause (i) of Section 2(j) hereof, which shall have independent
application.
(l) No
Agent shall have any obligation to purchase Shares as principal, whether from the Company or otherwise, unless the Company and such Agent
agree as set forth below. Shares purchased from the Company by one or more Agents, individually or in a syndicate, as principal shall
be made in accordance with terms agreed upon between such Agents and the Company as evidenced by a Terms Agreement or a Forward Instruction
Notice. The applicable Agents’ commitment to purchase Shares from the Company as principal shall be deemed to have been made on
the basis of the accuracy of the representations and warranties of the Company, and performance by the Company of its covenants and other
obligations, herein contained and shall be upon the terms and subject to the conditions set forth herein. At the time of each Terms Agreement,
the applicable Agent shall specify the requirements, if any, for the officers’ certificate, opinions and letters of counsel and
accountants’ letter pursuant to Sections 3(o), 3(p) and 3(q), respectively, hereof. In the event
of a conflict between the terms of this Agreement and a Terms Agreement, the terms of such Terms Agreement shall control.
(m) Notwithstanding
anything herein to the contrary, in the event that in the good faith, commercially reasonable judgment of the applicable Forward Purchaser
either (i) it or its affiliate is unable to borrow or deliver a number of Forward Hedge Shares equal to the Designated Forward Hedge
Shares for sale under this Agreement, as set forth in the relevant Forward Instruction Notice and, if applicable, adjusted by the Forward
Purchaser or its affiliate upon notice from the Company, in each case, pursuant to Section 2(b) hereof, or (ii) a Stock
Borrow Event (as defined in the relevant Confirmation) would occur, then the Agent, as forward seller, shall be required to offer and
sell on behalf of the Forward Purchaser only the aggregate number of Forward Hedge Shares that the Forward Purchaser or its affiliate
is able to so borrow below such cost.
(n) The
Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Shares by or on behalf of the Company or
any Forward Purchaser pursuant to this Agreement or any Terms Agreement shall be effected by or through only one of the Agents on any
given day (whether acting as sales agent, forward seller or principal) and the Company shall in no event request that more than one Agent
offer or sell Shares (whether acting as sales agent, forward seller or principal) on the same day; provided that the foregoing shall
not prohibit the Company from entering into a Terms Agreement with two or more Agents providing for such Agents, each acting severally
as principal, to offer and sell the Shares set forth in such Terms Agreement or prohibit or limit in any respect the offer or sale of
Shares purchased by any Agent, as principal, from the Company pursuant to a Terms Agreement.
Section 3. Covenants.
The Company agrees with each Agent and each Forward Purchaser that, during the term of this Agreement:
(a) Compliance
with Securities Regulations and Commission Requests. During the period in which a prospectus relating to the Shares is required to
be delivered under the Securities Act (whether physically or through compliance with Rule 153 or 172 under the Securities Act or,
in lieu thereof, a notice referred to in Rule 173(a) under the Securities Act), the Company, subject to Sections 3(b) and
3(c) hereof, will comply with the requirements of Rule 430B, and will notify the Agents and the Forward Purchasers promptly
(and confirm such notice in writing) (i) when any post-effective amendment to the Registration Statement or any new registration
statement relating to the Shares shall have become effective or any amendment or supplement to the Prospectus shall have been filed (other
than an amendment or supplement providing solely for the determination of the terms of an offering of securities unless related to an
offering of Shares, as to which the Company will only be obligated to notify the applicable Agents and, if applicable, Forward Purchasers),
(ii) of the receipt of any comments from the Commission that relate to the Registration Statement or the Prospectus, (iii) of
any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus, including
any document incorporated by reference therein, or for additional information that relates to the Registration Statement or the Prospectus,
(iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto or any notice of objection to the use of the Registration Statement or any post-effective amendment thereto pursuant
to Rule 401(g)(2) or the issuance of any order preventing or suspending the use of any preliminary prospectus or the Prospectus
or any amendment or supplement thereto, or of the suspension of the qualification of any Shares for offering or sale in any jurisdiction,
or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or
8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding
under Section 8A of the Securities Act in connection with any offering of Shares. In connection with a Terms Agreement, the Company
will prepare and file with the Commission, subject to Section 3(c) hereof, a pricing supplement with respect to the
offer and sale of Shares covered by such Terms Agreement. The Company will make all filings required by Rule 424(b) in the
manner and within the time period required by Rule 424(b) (without reliance upon Rule 424(b)(8)), and will take such steps
as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received
for filing by the Commission and, in the event that it was not, will promptly file such prospectus. The Company will use its commercially
reasonable efforts to prevent the issuance of any stop order or order of notice of prevention or suspension of the Registration Statement,
any preliminary prospectus or the Prospectus and, if any such order is issued, to obtain the lifting thereof at the earliest practicable
moment. In the event of any issuance of a notice of objection by the Commission, the Company shall use its commercially reasonable efforts
to permit offers and sales of Shares by or through the Agents, including, without limitation, amending the Registration Statement or
filing a new shelf registration statement relating thereto. The Company shall pay the required Commission filing fees relating to the
Shares prior to the time the initial Prospectus Supplement is filed with the Commission and at or prior to the time any subsequent Prospectus
Supplement that increases the gross offering price or number of Shares that may be offered and sold under this Agreement from that referenced
in the immediately preceding Prospectus Supplement filed with the Commission.
(b) Continued
Compliance with Securities Laws. The Company will comply with the Securities Act and the Exchange Act so as to permit the completion
of sales of Shares and Confirmation Shares as contemplated in this Agreement, the Confirmations, the Registration Statement, the General
Disclosure Package and the Prospectus. During the period in which a prospectus relating to the Shares is required to be delivered under
the Securities Act (whether physically or through compliance with Rule 153 or 172 under the Securities Act or, in lieu thereof,
a notice referred to in Rule 173(a) under the Securities Act), if any event shall occur or condition shall exist as a result
of which it is necessary, in the reasonable judgment of the Company or counsel for the Company, to (i) amend the Registration Statement
in order that the Registration Statement will not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not misleading, (ii) amend or supplement the General Disclosure
Package or the Prospectus in order that the General Disclosure Package or the Prospectus, as the case may be, will not include any 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 existing at the time it is delivered to a purchaser, not misleading or (iii) amend the Registration Statement or amend
or supplement the General Disclosure Package or the Prospectus, as the case may be, including, without limitation, through the filing
of any document incorporated or deemed to be incorporated by reference therein, in order to comply with the requirements of the Securities
Act or the Exchange Act, the Company will promptly (A) notify the Agents and the Forward Purchasers or, in the case of an offer
and sale of Shares to one or more Agents as principal, the applicable Agents of such event or condition, (B) prepare such amendment
or supplement as may be necessary to correct such statement or omission or to comply with such requirements and, a reasonable amount
of time prior to any proposed filing or use, furnish the Agents and the Forward Purchasers or the applicable Agents, as the case may
be, with copies of any such amendment or supplement and (C) file with the Commission such amendment or supplement and use its commercially
reasonable efforts to have any amendment to the Registration Statement declared effective by the Commission as promptly as practicable
if the Company is no longer eligible to file an automatic shelf registration statement; provided, however, that the Company shall
not file or use any such amendment or supplement to which the Agents or Forward Purchasers or the applicable Agents, as the case may
be, or counsel for the Agents or Forward Purchasers shall reasonably object within a reasonable time following receipt thereof.
(c) Filing
or Use of Amendments and Supplements. During the period in which a prospectus relating to the Shares is required to be delivered
under the Securities Act (whether physically or through compliance with Rule 153 or 172 under the Securities Act or, in lieu thereof,
a notice referred to in Rule 173(a) under the Securities Act), the Company will notify the Agents and the Forward Purchasers
or, in the case of an offer and sale of Shares to one or more Agents as principal, the applicable Agents of its intention to file or
use (i) any amendment to the Registration Statement or any amendment or supplement to the General Disclosure Package or the Prospectus
(other than an amendment or supplement thereto relating solely to the offering of securities unless related to an offering of Shares),
whether pursuant to the Securities Act, the Exchange Act or otherwise, (ii) any new Prospectus Supplement that includes information
in addition to the information referred to in Section 3(n) hereof or (iii) a pricing supplement disclosing the
offer and sale of Shares covered by a Terms Agreement, and, a reasonable amount of time prior to such proposed filing or use, will furnish
to the Agents and the Forward Purchasers or the applicable Agents, as the case may be, copies of any such document; provided, that
the Company shall not file or use any such document to which the Agents or the Forward Purchasers or the applicable Agents, as the case
may be, or counsel for the Agents or the Forward Purchasers shall reasonably object within a reasonable time following receipt thereof.
(d) Delivery
of Registration Statements. Upon the request of any Agent, the Company will deliver to the Agents and the Forward Purchasers and
counsel for the Agents and the Forward Purchasers, without charge, signed copies of the Registration Statement as originally filed and
each amendment thereto (including exhibits thereto). The signed copies of the Registration Statement and each amendment thereto furnished
to the Agents and the Forward Purchasers and counsel for the Agents and the Forward Purchasers will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e) Delivery
of Prospectuses. The Company will furnish to the Agents and the Forward Purchasers or, in the case of an offer and sale of Shares
to one or more Agents as principal, the applicable Agents, without charge, upon the execution of this Agreement and thereafter during
the period in which a prospectus is (or, but for the exception afforded by Rule 172 under the Securities Act, would be) required
by the Securities Act to be delivered in connection with any offer or sale of Shares, such number of copies of the Prospectus (as amended
or supplemented) as the Agents or the Forward Purchasers or the applicable Agents, as the case may be, may reasonably request. The Company
will also furnish to each exchange or market on which sales of Shares were made, upon the reasonable request of the Agents or the Forward
Purchasers or the applicable Agents, as the case may be, such number of copies of the Prospectus (as amended or supplemented) as may
be required by the rules and regulations of such exchange or market. The Prospectus and any amendments or supplements thereto furnished
in accordance with this Section 3(e) will be identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(f) Reporting
Requirements. During the period in which a prospectus is (or, but for the exception afforded by Rule 172 under the Securities
Act, would be) required by the Securities Act to be delivered in connection with any offer or sale of Shares, the Company will file all
documents required to be filed with the Commission pursuant to the Exchange Act in the manner and within the time periods prescribed
by the Exchange Act. Additionally, the Company shall disclose in such documents the use of the Net Proceeds from the sale of any Shares
and any Confirmation Shares as may be required under the Securities Act, including, if applicable, Rule 463 under the Securities
Act.
(g) Blue
Sky Qualifications. If required by applicable law, the Company will use its commercially reasonable efforts, in cooperation with
the Agents and the Forward Purchasers or, in the case of an offer and sale of Shares to one or more Agents as principal, the applicable
Agents to qualify the Shares and Confirmation Shares for offering and sale under the applicable securities laws of such states and U.S.
jurisdictions as the Agents or the Forward Purchasers or the applicable Agents, as the case may be, may, from time to time, designate
and to maintain such qualifications in effect for so long as required to complete the sale of the Shares contemplated by this Agreement
or the sale and delivery of any Confirmation Shares pursuant to any Confirmation; provided, however, that the Company shall not
be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
(h) Earnings
Statement. The Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available
to its security holders as soon as practicable an earnings statement for the purposes of, and to provide to the Agents and the Forward
Purchasers the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act; provided, that the
Company will be deemed to have furnished such statement to its security holders to the extent it is filed with the Commission pursuant
to EDGAR.
(i) Use
of Proceeds. The Company will use the Net Proceeds received by it from the sale of the Shares pursuant to this Agreement and the
issuance and sale of any Confirmation Shares pursuant to any Confirmations in the manner specified in the Registration Statement, the
General Disclosure Package and the Prospectus under “Use of Proceeds.”
(j) Listing.
The Company will use its reasonable best efforts to effect, subject to official notice of issuance, and maintain the listing of the Shares
and Confirmation Shares on the NYSE.
(k) Notice
of Certain Actions. At any time that sales of Shares have been made but not settled, or at any time the Company has outstanding with
any Agent any instructions to sell Shares but such instructions have not been fulfilled or cancelled, the Company will not, without the
prior written consent of the applicable Agent or Forward Purchaser, (i) directly or indirectly offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase
or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or file any registration statement under the Securities Act with respect to any of the foregoing or (ii) enter into
any swap or any other agreement or transaction that transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Stock, whether any such swap, agreement or transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to
(A) the Shares to be offered and sold hereunder or any Confirmation Shares sold or delivered pursuant to any Confirmation, (B) any
shares of Common Stock issued by the Company upon the exercise of an option or warrant or the conversion or exchange of a security outstanding
on the first Trading Day prior to the delivery by the Company to the applicable Agent of such instructions to sell Shares hereunder and
referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (C) any shares of Common Stock, options
to purchase Common Stock, stock units or any other securities convertible into or exchangeable for Common Stock issued or granted to
employees or directors of the Company pursuant to, or the filing of a registration statement with respect to, any existing or future
benefit plan of the Company referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (D) any
rights to purchase shares of Common Stock or any shares of Common Stock issued pursuant to, or the filing of a registration statement
with respect to, any existing or future employee stock purchase plan or dividend reinvestment plan referred to in the Registration Statement,
the General Disclosure Package and the Prospectus, (E) any shares of Common Stock issued upon redemption of the Class A units
of limited partnership in NHP/PMB L.P. and (F) any shares of Common Stock or securities convertible into or exchangeable for Common
Stock issued in full or partial consideration in connection with future acquisitions or strategic investments.
(l) Issuer
Free Writing Prospectuses. The Company agrees that, without the prior written consent of the applicable Agents and, if applicable,
the applicable Forward Purchasers, it will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus
or that would otherwise constitute a “free writing prospectus,” or a portion thereof, required to be filed by the Company
with the Commission or retained by the Company under Rule 433; provided, that such consent will be deemed to have been given
in respect of any electronic road show. The Company represents that it has treated, or agrees that it will treat, each such free writing
prospectus consented to by the applicable Agents and, if applicable, the applicable Forward Purchasers as an Issuer Free Writing Prospectus
and that it will comply with the applicable requirements of Rule 164 under the Securities Act and Rule 433 with respect thereto,
including timely filing with the Commission where required, legending and record keeping. If at any time following the issuance of an
Issuer Free Writing Prospectus any event shall occur or condition shall exist as a result of which such Issuer Free Writing Prospectus
conflicts or would conflict with the information contained in the Registration Statement, any preliminary prospectus or the Prospectus
that has not been superseded or modified, or included or would include an untrue statement of a material fact or omitted or would omit
to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent
time, not misleading, the Company will promptly notify the applicable Agents and, if applicable, the applicable Forward Purchasers and
will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue
statement or omission.
(m) No
Stabilization or Manipulation. The Company agrees that neither it nor any affiliate of the Company will take, directly or indirectly,
any action which is designed, or would be expected, to cause or result in, or which constitutes, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of any Shares or to result in a violation of Regulation M under
the Exchange Act.
(n) Update
of Activity under this Agreement. For each fiscal quarter in which sales of Shares were made by or through an Agent or Agents hereunder,
or any sales or deliveries of Confirmation Shares were made pursuant to a Confirmation, the Company shall disclose the number of Shares
sold by or through such Agent or Agents, whether acting as sales agents for the Company or as principal, under this Agreement, the number
of Shares sold through the Agents, acting as forward sellers, under this Agreement, the number of Confirmation Shares sold or delivered,
if any, pursuant to any Confirmations, the Net Proceeds received by the Company and the aggregate compensation paid by the Company to
the Agents with respect to such sales and deliveries, in each case during such fiscal quarterly period, and the total number of remaining
Confirmation Shares issuable by the Company under any outstanding Confirmations as of the last day of such fiscal quarterly period (i) in
the Company’s Quarterly Report on Form 10-Q with respect to such fiscal quarter or, in the case of the last quarter of the
fiscal year, in the Company’s Annual Report on Form 10-K (each date on which any such report or amendment thereto is filed,
a “Company Periodic Report Date”) and (ii) to the extent required by applicable law and/or interpretations of
the Commission, in a Prospectus Supplement for each such fiscal quarter.
(o) Delivery
of Future Officers’ Certificates. Upon commencement of the offering of Shares under this Agreement, (i) promptly after
each date on which the Registration Statement shall be amended, a new registration statement relating to the Shares shall become effective
or the Prospectus shall be amended or supplemented (other than (A) by an amendment or supplement providing solely for the determination
of the terms of securities, including the Shares, (B) in connection with the filing of a Prospectus Supplement that contains solely
the information referred to in Section 3(n) hereof or (C) in connection with the filing of any Current Report on
Form 8-K (other than an Earnings 8-K and any other Current Report on Form 8-K which contains financial statements, supporting
schedules or other financial data, including under Item 2.02 of such form, that is considered “filed” under the Exchange
Act)) (each such date, a “Registration Statement Amendment Date”), (ii) promptly after each date on which an
Earnings 8-K shall be filed with the Commission as contemplated by Section 2(j) hereof (each such date, a “Company
Earnings Report Date”), (iii) promptly after each Company Periodic Report Date and (iv) promptly after each reasonable
request by the Agents (each date of any such request, a “Request Date”), the Company will furnish or cause to be furnished
to the Agents and the Forward Purchasers, as applicable, an officers’ certificate, dated such Registration Statement Amendment
Date, such Company Earnings Report Date, such Company Periodic Report Date or such Request Date, as the case may be, in form and substance
reasonably satisfactory to the Agents and Forward Purchasers, to the effect that the statements contained in the officers’ certificate
referred to in Section 5(f) hereof that was last furnished to the Agents and Forward Purchasers are true and correct
as of the date of such certificate as though made at and as of the date of such certificate (except that such statements shall be deemed
to relate to the Registration Statement, the General Disclosure Package and the Prospectus as amended and supplemented at the date of
such certificate) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(f) hereof,
but modified as necessary to relate to the Registration Statement, the General Disclosure Package and the Prospectus as amended and supplemented
at the date of such certificate; provided, that the Company shall not be required to furnish such certificate during a Suspension
Period pursuant to Section 3(w) hereof. The Company shall further furnish on each of the dates identified in the prior
sentence such additional certificates and documents as the Agents and Forward Purchasers may reasonably request, including for the purpose
of evidencing the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements contained
herein. All such additional certificates and documents shall be deemed to be in compliance with the provisions hereof only if they are
in form and substance reasonably satisfactory to the Agents and Forward Purchasers. As used in this Section 3(o), to the
extent there shall be a sale of Shares on or following any Registration Statement Amendment Date, any Company Earnings Report Date or
any Company Periodic Report Date, “promptly” shall be deemed to be at or prior to the Applicable Time for such sale.
(p) Delivery
of Future Opinions and Letters of Counsel. Upon commencement of the offering of Shares under this Agreement, promptly after each
Registration Statement Amendment Date, each Company Earnings Report Date, each Company Periodic Report Date and each Request Date, the
Company will furnish or cause to be furnished to the Agents and the Forward Purchasers, as applicable, the written opinions and letters
of each of counsel for the Company (who shall be reasonably acceptable to the Agents and the Forward Purchasers and counsel for the Agents
and the Forward Purchasers, dated such Registration Statement Amendment Date, such Company Earnings Report Date, such Company Periodic
Report Date or such Request Date, as the case may be, in form and substance reasonably satisfactory to the Agents and the Forward Purchasers,
of the same tenor as the respective opinions and letters referred to in Sections 5(b) and 5(c) hereof, as
applicable, but modified as necessary to relate to the Registration Statement, the General Disclosure Package and the Prospectus as amended
and supplemented to the date of such opinions and letters or, in lieu of any such opinion and letter, counsel last furnishing such opinion
and letter to the Agents and the Forward Purchasers shall furnish the Agents and the Forward Purchasers with a letter substantially to
the effect that the Agents and the Forward Purchasers may rely upon such counsel’s last opinion and letter to the same extent as
though each were dated the date of such letter authorizing reliance (except that statements in such last opinion and letter shall be
deemed to relate to the Registration Statement, the General Disclosure Package and the Prospectus as amended and supplemented to the
date of such letter authorizing reliance); provided, that the Company shall not be required to furnish or cause to be furnished
such opinions and letters during a Suspension Period pursuant to Section 3(w) hereof. As used in this Section 3(p),
to the extent there shall be a sale of Shares on or following any Registration Statement Amendment Date, any Company Earnings Report
Date or any Company Periodic Report Date, “promptly” shall be deemed to be at or prior to the Applicable Time for such sale.
(q) Delivery
of Future Accountants’ Letters. Upon commencement of the offering of Shares under this Agreement, promptly after each Registration
Statement Amendment Date, each Company Earnings Report Date and each Company Periodic Report Date, the Company will cause its independent
accountants to furnish to the Agents and the Forward Purchasers, as applicable, a letter, dated such Registration Statement Amendment
Date, such Company Earnings Report Date or such Company Periodic Report Date, as the case may be, in form and substance reasonably satisfactory
to the Agents and the Forward Purchasers of the same tenor as the letter referred to in Section 5(d) hereof but modified
as necessary to relate to the Registration Statement, the General Disclosure Package and the Prospectus as amended and supplemented to
the date of such letter; provided, that the Company shall not be required to furnish or cause to be furnished such letter during
a Suspension Period pursuant to Section 3(w) hereof. As used in this Section 3(q), to the extent there shall
be a sale of Shares on or following any Registration Statement Amendment Date, any Company Earnings Report Date or any Company Periodic
Report Date, “promptly” shall be deemed to be at or prior to the Applicable Time for such sale.
(r) Trading
in the Common Stock. The Company consents to the Agents, the Forward Purchasers and their respective affiliates trading in the Common
Stock for their own account and for the account of their clients at the same time as sales and deliveries of Shares occur pursuant to
this Agreement and any Confirmations.
(s) Non-Consummation
Offer. If, to the knowledge of the Company, any filing required by Rule 424 under the Securities Act in connection with an offering
of Shares shall not have been made or the representations and warranties of the Company contained in this Agreement shall not be true
and correct on the applicable Settlement Date, the Company will offer to any person who has agreed to purchase Shares from or through
an Agent the right to refuse to purchase and pay for such Shares.
(t) Due
Diligence Review. The Company will cooperate, fully and in a timely manner upon reasonable notice, with any due diligence review
reasonably requested by the Agents or Forward Purchasers or counsel for the Agents and the Forward Purchasers in connection with offers
and sales of Shares from time to time, including, without limitation, providing information and making available documents and appropriate
corporate officers, during regular business hours and at the Company’s principal offices, and using its commercially reasonable
efforts to provide access to the Company’s auditors. For the avoidance of doubt, any such request by an Agent or a Forward Purchaser
at the time such Agent or Forward Purchaser is requested to commence sales hereunder shall be deemed a reasonable request.
(u) Renewal
Deadline. If, immediately prior to the third anniversary of the initial effective date of the Registration Statement (the “Renewal
Deadline”), this Agreement is still in effect or any Shares purchased by an Agent as principal remain unsold, the Company will,
prior to the Renewal Deadline, (i) promptly notify the Agents and the Forward Purchasers of the Renewal Deadline and (ii) promptly
file, if eligible to do so, a new automatic shelf registration statement relating to the Shares, in a form and substance reasonably satisfactory
to the Agents and the Forward Purchasers. If, at the time the Company intends to file such a new automatic shelf registration statement,
it is not eligible to do so, the Company will, prior to the Renewal Deadline, (A) promptly notify the Agents and the Forward Purchasers
of such ineligibility, (B) promptly file a new shelf registration statement on the proper form relating to the Shares, in a form
and substance reasonably satisfactory to the Agents and the Forward Purchasers, (C) use its commercially reasonable efforts to cause
such new shelf registration statement to be declared effective within 60 days after the Renewal Deadline and (D) promptly notify
the Agents and the Forward Purchasers of such effectiveness. The Company will use its commercially reasonable efforts to take all other
actions necessary or appropriate to permit the offering and sale of the Shares to continue as contemplated in the expired Registration
Statement. References herein to the “Registration Statement” shall include such new automatic shelf registration statement
or such new shelf registration statement, as the case may be.
(v) Ceasing
Eligibility For Use of Automatic Shelf Registration Statement Form. If, at any time during the term of this Agreement or otherwise
when Shares purchased by an Agent as principal remain unsold, the Company receives a notice from the Commission pursuant to Rule 401(g)(2) or
otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the
Agents and the Forward Purchasers of such ineligibility, (ii) promptly file a new shelf registration statement or post-effective
amendment on the proper form relating to such Shares, in form and substance reasonably satisfactory to the Agents and the Forward Purchasers,
(iii) use its commercially reasonable efforts to cause such new shelf registration statement or post-effective amendment to be declared
effective as soon as practicable and (iv) promptly notify the Agents and the Forward Purchasers of such effectiveness. The Company
will use its commercially reasonable efforts to take all other actions necessary or appropriate to permit the offering and sale of the
Shares to continue as contemplated in the Registration Statement that was the subject of such notice pursuant to Rule 401(g)(2) under
the Securities Act or for which the Company has otherwise become ineligible. References herein to the “Registration Statement”
shall include such new shelf registration statement or such post-effective amendment, as the case may be.
(w) Suspension
Period. The Company may notify the Agents and the Forward Purchasers by telephone (confirmed promptly by email), or by such other
method as the Company and the Agents and the Forward Purchasers shall mutually agree in writing, at any time until 5:00 p.m., New York
City time, on the second business day preceding any Registration Statement Amendment Date, Company Earnings Report Date, Company Periodic
Report Date or Request Date that it does not intend to sell Shares under this Agreement for the period commencing on such date and continuing
until the first Trading Day after the earlier of (i) the date the Company instructs an Agent to sell Shares, or Forward Purchaser
through the applicable Agent to sell Shares, under this Agreement and (ii) the date the Company notifies the Agents and the Forward
Purchasers that it is revoking its prior notice to the Agents and the Forward Purchasers that it does not intend to sell Shares under
this Agreement (a “Suspension Period”). During any such Suspension Period, the Company’s obligations to provide
officers’ certificates pursuant to Section 3(o) hereof, opinions and letters of counsel pursuant to Section 3(p) hereof
and accountants’ letters pursuant to Section 3(q) hereof shall be suspended and waived. Upon termination of a
Suspension Period, no Agent or Forward Purchaser through the applicable Agent shall have any obligation to sell Shares hereunder pursuant
to a Company request until such time as the Company performs its obligations hereunder and satisfies the conditions contained herein,
including delivery of all such deliverables required pursuant to Sections 3(o), 3(p) and 3(q) hereof or
otherwise reasonably requested by the Agents and the Forward Purchasers, and subject to completion by the Agents and the Forward Purchasers
of their customary due diligence review.
Section 4. Payment
of Expenses.
(a) Expenses.
The Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, any Terms
Agreement and any Confirmation, including (i) the preparation, printing and filing of the Registration Statement and each amendment
thereto (including financial statements and exhibits thereto), (ii) the preparation, printing and delivery to the Agents and the
Forward Purchasers of such number of copies of any preliminary prospectus, any Issuer Free Writing Prospectus and the Prospectus, and
any amendments or supplements thereto, as reasonably requested by the Agents and the Forward Purchasers, (iii) the preparation,
issuance and delivery to the Agents and the Forward Purchasers of the Shares and Confirmation Shares, including any stock or other transfer
taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Shares to the Agents and Confirmation Shares to
the Forward Purchasers, (iv) the fees and disbursements of the Company’s counsel, accountants and other advisors, (v) the
qualification of the Shares and Confirmation Shares under securities laws in accordance with the provisions of Section 3(g) hereof,
including filing fees and the reasonably incurred and documented fees and disbursements of counsel for the Agents and the Forward Purchasers
in connection therewith and in connection with the preparation of the Blue Sky Survey and any supplement thereto (such fees and disbursements
of counsel for the Agents and the Forward Purchasers not to exceed $10,000), (vi) the fees and expenses of any transfer agent or
registrar for the Shares and Confirmation Shares, (vii) the costs and expenses of the Company relating to investor presentations
on any “road show” undertaken in connection with the marketing of the Shares, (viii) the filing fees incident to, and
the reasonable fees and disbursements of counsel for the Agents and the Forward Purchasers in connection with, the review by FINRA of
the terms of sales of Shares, if applicable, (ix) the fees and expenses incurred in connection with the listing of the Shares and
Confirmation Shares on the NYSE and (x) the costs and expenses (including, without limitation, any damages or other amounts payable
in connection with legal or contractual liability) associated with the reforming of any contracts for the sale of Shares caused by a
breach by the Company of the representation contained in Section l(i)(C) hereof.
(b) If
either (i) an aggregate of 150,000 Shares or (ii) an aggregate gross offering price of Shares of at least $10,000,000 has not
been offered and sold under this Agreement prior to the second anniversary of the date hereof (or such earlier date on which the Company
terminates this Agreement), the Company shall reimburse the Agents and the Forward Purchasers for all of their reasonable out-of-pocket
expenses, including the reasonable and documented fees and disbursements of counsel for the Agents and the Forward Purchasers incurred
in connection with this Agreement.
Section 5. Conditions
of Agents’ and Forward Purchasers’ Obligations. The obligations of the Agents and the Forward Purchasers hereunder are
subject to the accuracy of the representations and warranties of the Company contained herein and in certificates of any officer of the
Company delivered pursuant hereto at each Representation Date, to the performance by the Company of its covenants and other obligations
hereunder and if applicable, under any Confirmations entered into by the Company, and to the following further conditions:
(a) Effectiveness
of Registration Statement and Filing of Prospectus. The Company shall have filed the Registration Statement with the Commission not
earlier than three years prior to the date hereof, and the Registration Statement shall have become effective upon filing in accordance
with Rule 462(e). The Company shall have filed with the Commission the initial Prospectus Supplement promptly following the execution
and delivery of this Agreement and any subsequent Base Prospectus or Prospectus Supplement prior to any Applicable Time and related Settlement
Date, as applicable, in each case in the manner and within the time period required by Rule 424(b), and each Issuer Free Writing
Prospectus, if any, in the manner and within the time period required by Rule 433. No stop order suspending the effectiveness of
the Registration Statement or any post-effective amendment thereto shall have been issued under the Securities Act, no notice of objection
of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) shall
have been received by the Company, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment
or supplement thereto shall have been issued and no proceedings for any of those purposes or pursuant to Section 8A under the Securities
Act shall have been instituted or be pending or, to the knowledge of the Company, contemplated. The Company shall have complied with
any and all requests for additional information on the part of the Commission to the reasonable satisfaction of the Agents and the Forward
Purchasers. The Company shall have paid to the Commission the required filing fees relating to the Shares as specified in Section 3(a) hereof.
(b) Opinions
and Negative Assurance Letters of Counsel for the Agents and the Forward Purchasers. On the date of this Agreement, the Agents and
the Forward Purchasers shall have received the favorable written opinions and negative assurance letters of Goodwin Procter LLP, counsel
for the Agents and the Forward Purchasers, dated such date, with respect to such matters as the Agents and the Forward Purchasers may
reasonably request. In giving such opinions and negative assurance letters, such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the laws of the State of New York, the General Corporation Law of the State of Delaware and the
federal securities laws of the United States, upon the opinions of counsel satisfactory to the Agents and the Forward Purchasers. Such
counsel may also state that, insofar as such opinions and negative assurance letters involve factual matters, they have relied, to the
extent they deem proper, upon certificates of officers and other representatives of the Company and certificates of public officials.
(c) Opinions
and Letters of Counsel to the Company. On the date of this Agreement, the Agents and the Forward Purchasers shall have received the
favorable written opinions and letters of:
(i)
Davis Polk & Wardwell, LLP, counsel for the Company, dated such date, substantially in the form set forth in Exhibit A-1
hereto and to such further effect as the Agents and the Forward Purchasers may reasonably request; and
(ii)
Hogan Lovells US LLP, tax counsel for the Company, dated such date, substantially in the form set forth in Exhibit A-2
hereto and to such further effect as the Agents and the Forward Purchasers may reasonably request; and
(iii)
Carey S. Roberts, general counsel for the Company, dated such date, substantially in the form set forth in Exhibit B
hereto and to such further effect as the Agents and the Forward Purchasers may reasonably request.
(d) Accountants’
Letter. On the date of this Agreement, the Agents and the Forward Purchasers shall have received a letter from KPMG LLP, dated such
date, in form and substance reasonably satisfactory to the Agents and the Forward Purchasers, containing statements and information of
the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements
of the Company and its Subsidiaries and other financial information included in the Registration Statement, the General Disclosure Package
and the Prospectus or any amendment or supplement thereto.
(e) Officer’s
Certificate on Size of ATM Program. On the date of this Agreement, the Company shall have furnished to the Agents and the Forward
Purchasers a certificate of an executive officer of the Company, dated such date, in a form reasonably satisfactory to the Agents and
the Forward Purchasers, stating the minimum gross sales price per share for sales of Shares pursuant to this Agreement and the maximum
number of Shares that may be issued and sold pursuant to this Agreement or, alternatively, the maximum aggregate gross sales price of
Shares, as duly authorized by the Company’s board of directors or a duly authorized committee thereof, and specifying the number
of Shares and Confirmation Shares that have been approved for listing, subject to official notice of issuance, on the NYSE.
(f) Officers’
Certificate for the Company. On the date of this Agreement, there shall not have been, since the date of the latest audited financial
statements included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus or
since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus,
any event or development in respect of the business or financial condition of the Company and its Subsidiaries that is, individually
or in the aggregate, reasonably likely to have a Material Adverse Effect, and the Agents and the Forward Purchasers shall have received
a certificate of the Chief Executive Officer of the Company and of the Chief Financial Officer or Chief Accounting Officer of the Company,
dated such date, to the effect that (i) there has been no such event or development, (ii) the representations and warranties
of the Company contained in this Agreement are true and correct with the same force and effect as though expressly made on and as of
such date, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to such date and (iv) no stop order suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto has been issued under the Securities Act, no notice of objection of the Commission to the use of the Registration Statement
or any post-effective amendment thereto pursuant to Rule 401(g)(2) has been received by the Company, no order preventing or
suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings
for any of those purposes or pursuant to Section 8A under the Securities Act have been instituted or are pending or, to the knowledge
of the Company, contemplated.
(g) Listing.
The Shares and Confirmation Shares shall have been approved for listing, subject to official notice of issuance, on the NYSE.
(h) Additional
Documents. Counsel for the Agents and the Forward Purchasers shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to render the opinions or make the statements reasonably requested by the Agents
or the Forward Purchasers, or in order to reasonably evidence the accuracy of any of the representations or warranties, or the fulfillment
of any of the covenants, obligations or conditions contained herein; and all proceedings taken by the Company in connection with the
authorization, issuance and sale of the Shares, the authorization, execution and delivery of any Confirmations, and the authorization,
issuance, sale and delivery of any Confirmation Shares as contemplated herein and in any Confirmations shall be reasonably satisfactory
in form and substance to the Agents and the Forward Purchasers and counsel for the Agents and the Forward Purchasers.
(i) Termination
of this Agreement. If any condition specified in this Section 5 shall not have been fulfilled when and as required to
be fulfilled, this Agreement may be terminated by the applicable Agents or Forward Purchasers by notice to the Company at any time, and
any such termination shall be without liability of any party to any other party, except that Sections 1, 3(h), 4,
6, 7, 8, 12, 13, 14, 15 and 22 hereof shall remain in full force and effect notwithstanding
such termination.
Section 6. Indemnification.
(a) Indemnification
of the Agents and the Forward Purchasers. The Company agrees to indemnify and hold harmless each Agent and each Forward Purchaser,
their respective selling agents, officers and directors and each person, if any, who controls such Agent or Forward Purchaser within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, as well as each affiliate of the Agents
and the Forward Purchasers within the meaning of Rule 405 under the Securities Act, as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any amendment thereto), including any information deemed to
be a part thereof pursuant to Rule 430B, or the omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement
of a material fact included in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the
Prospectus (or any amendment or supplement thereto) or the omission or alleged omission from any preliminary prospectus, any Issuer Free
Writing Prospectus, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) of a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement
of any litigation, or any investigation or proceeding by any Governmental Entity, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided, that (subject to
Section 6(d) hereof) any such settlement is effected with the prior written consent of the Company; and
(iii) against
any and all expense whatsoever, as incurred (including, subject to Section 6(c) hereof, the fees and disbursements of
counsel chosen by the applicable Agents and any applicable Forward Purchasers, as the case may be), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any Governmental Entity, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under Section 6(a)(i) or 6(a)(ii) above;
provided,
however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement or omission made in the Registration Statement (or any amendment
thereto), including any information deemed to be a part thereof pursuant to Rule 430B, or in any preliminary prospectus, any Issuer
Free Writing Prospectus, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with information furnished to the Company by an Agent or a Forward Purchaser in writing expressly for use therein (the
“Agent Information”).
(b) Indemnification
of the Company, Officers and Directors. Each Agent and each Forward Purchaser, severally and not jointly, agrees to indemnify and
hold harmless the Company, its officers and directors 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 against any and all loss, liability, claim, damage and expense described
in the indemnity contained in Section 6(a) hereof, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), including any information deemed
to be a part thereof pursuant to Rule 430B, or in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure
Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Agent Information furnished
to the Company by such Agent or Forward Purchaser, as the case may be, in writing expressly for use therein.
(c) Actions
against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder, except to the extent it is materially prejudiced as a result
thereof, and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement.
In the case of parties indemnified pursuant to Section 6(a) hereof, counsel for the indemnified parties shall be selected
by the Agents and if, applicable, Forward Purchasers, subject to the reasonable approval of the indemnifying party, and, in the case
of parties indemnified pursuant to Section 6(b) hereof, counsel for the indemnified parties shall be selected by the
Company, subject to the reasonable approval of the indemnifying party. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel for the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel for the indemnified party; provided further, if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that a conflict may arise
between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there
may be legal defenses available to it or other indemnified parties that are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying
party to the indemnified party of the indemnifying party’s election to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 6 for any fees and
expenses of counsel subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified
party shall have employed separate counsel in accordance with the proviso to the preceding sentence or (ii) the indemnifying party
shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable
time after notice of the action, in which case the fees and expenses of such indemnified party’s counsel shall be at the expense
of the indemnifying party. Notwithstanding the foregoing, in no event shall the indemnifying party be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from its own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the indemnified party or parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation or proceeding by any Governmental Entity, commenced or
threatened, or any claim whatsoever in respect of which indemnification or contribution could reasonably be sought under this Section 6
or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) Settlement
without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of
the nature contemplated by Section 6(a)(ii) hereof effected without its prior written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party
shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement;
provided, that an indemnifying party shall not be liable for any such settlement effected without its prior written consent if
such indemnifying party (A) reimburses such indemnified party in accordance with such request to the extent it considers such request
to be reasonable and (B) provides written notice to the indemnified party substantiating the unpaid balance as unreasonable, in
each case prior to the date of such settlement.
Section 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless
an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party
shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party,
as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand,
and the applicable Agents and any applicable Forward Purchasers, on the other hand, from the specific offering and sale of Shares or
(ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the
one hand, and the applicable Agents and any applicable Forward Purchasers, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received
by the Company, on the one hand, and the applicable Agents and any applicable Forward Purchasers, on the other hand, in connection with
a specific offering and sale of Shares shall be deemed to be in the same proportion as the total Net Proceeds from such offering (such
total Net Proceeds to be calculated by deducting commissions and underwriting discounts payable to the applicable Agents in respect of
the Shares sold in such offering but without any further deductions) received by the Company, on the one hand (and, for purposes of the
foregoing, the Company shall be deemed to have received Net Proceeds from the sale of Shares sold through any of the applicable Agents,
acting as forward seller on behalf of a Forward Purchaser in connection with a Confirmation entered into by such Forward Purchaser, in
an amount equal to the proceeds that would have been received by the Company upon full physical settlement of the Confirmation Shares
under such Confirmation, assuming that the aggregate amount payable by such Forward Purchaser to the Company for such Confirmation Shares
is equal to the aggregate amount of Net Proceeds received by such Forward Purchaser from the sale of such Shares through such Agent),
bear to the total commissions or underwriting discounts received by the applicable Agents from such offering and the aggregate net spread
(net of any related hedging and other costs) received by the applicable Forward Purchasers (if any) in connection therewith, on the other
hand. For the avoidance of doubt, for purposes of this Section 7 the Net Proceeds received by a Forward Purchaser from the
sale of Shares through an Agent shall be calculated as the gross proceeds from such sale minus the commission owed to such Agent (but
without any further deductions from such aggregate gross proceeds), which commission, on a per Share basis, shall be deemed to be percentage
discount applied to the Initial Forward Price (as defined in the related Confirmation) and such commission amount shall also be deemed
to be the commission received by such Agent for such sale.
The relative fault of the
Company, on the one hand, and the applicable Agents and any applicable Forward Purchasers, on the other hand, shall be determined by
reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by the Company, on the one hand, or by the applicable Agents and any applicable
Forward Purchasers, on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The Company, the Agents and
the Forward Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the applicable Agents and any applicable Forward Purchasers were treated as one entity for such purpose)
or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7.
The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this
Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any Governmental Entity, commenced or threatened,
or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions
of this Section 7, neither any Agent nor the Forward Purchaser, if any, affiliated with such Agent shall be required to contribute
any amount in excess of, in the case of such Agent, the total commissions or underwriting discounts received by such Agent in connection
with Shares offered and sold through it or purchased by it for sale to the public or, in the case of such Forward Purchaser (if any),
the aggregate net spread (net of any related hedging and other costs) received by such Forward Purchaser in connection therewith.
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.
For purposes of this Section 7,
each person, if any, who controls an Agent or a Forward Purchaser within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act and an Agent’s or a Forward Purchaser’s selling agents, officers and directors shall have the same rights
to contribution as such Agent or Forward Purchaser, as applicable, and each officer or director of the Company 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 shall have
the same rights to contribution as the Company. The respective obligations of the applicable Agents and any applicable Forward Purchasers
to contribute pursuant to this Section 7 in connection with any applicable offering of Shares pursuant to this Agreement
are several and not joint and shall be in proportion to, in the case of such Agents, the respective amounts of commissions and underwriting
discounts received by such Agents from the sale of such Shares sold to or through such Agents in such offering or, in the case of any
such Forward Purchasers, the respective net spreads (net of any hedging and other costs) received by such Forward Purchasers in connection
therewith, such that respective obligations of each such Agent and each such Forward Purchaser (if any) to contribute pursuant to this
Section 7 in connection with such offering shall be in the same proportion that, in the case of any such Agent, the aggregate amount
of commissions and underwriting discounts received by such Agent from the sale of Shares sold to or through such Agent in such offering
or, in the case of any such Forward Purchaser, the aggregate amount of net spread (net of any hedging and other costs) received by such
Forward Purchaser in connection therewith, as applicable, bears to the sum of the aggregate amount of commissions and underwriting discounts
received by all of the applicable Agents from the sale of Shares sold to or through such Agents in such offering and the aggregate amount
of net spreads (net of any hedging and other costs) received by all such Forward Purchasers (if any) in connection therewith .
Section 8. Representations,
Warranties and Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in the certificates
of any officer of the Company delivered pursuant hereto shall remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of an Agent or any Forward Purchaser or their selling agents, officers or directors or any person
who controls such Agent or Forward Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, or the Company or its officers or directors or any person who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and (ii) delivery of and payment for the Shares or Confirmation Shares.
Section 9. Termination.
(a) This
Agreement may be terminated for any reason, at any time, by the Company, by any Agent (as to itself) or by any Forward Purchaser (as
to itself), in each case upon the giving of one day’s prior written notice to the other parties hereto. If such termination shall
occur prior to the Settlement Date for any sale of the Shares, such sale shall settle in accordance with the provisions of this Agreement.
This Agreement will automatically terminate following the sale of Shares having an aggregate gross sales price of $2,000,000,000.
(b) The
applicable Agents may terminate a Terms Agreement to which they are a party, at any time at or prior to the Settlement Date, if (i) there
has been, since the time of execution of such Terms Agreement or since the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package or the Prospectus, any event or development in respect of the business or financial condition
of the Company and its Subsidiaries that is, individually or in the aggregate, reasonably likely to have a Material Adverse Effect, (ii) there
has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak
of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment
of such Agents, impracticable or inadvisable to proceed with the completion of the offering of Shares contemplated by such Terms Agreement
or to enforce contracts for the sale of such Shares, (iii) trading in any securities of the Company has been suspended or materially
limited by the Commission or the NYSE, (iv) trading generally on the NYSE or the NASDAQ Stock Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges
or by order of the Commission, FINRA or any other Governmental Entity, (v) a material disruption has occurred in commercial banking
or securities settlement or clearance services in the United States or (vi) a banking moratorium has been declared by either U.S.
federal or New York authorities.
(c) If
the Company and two or more Agents enter into a Terms Agreement pursuant to which such Agents agree to purchase Shares from the Company
as principal and one or more of such Agents shall fail at the Settlement Date to purchase the Shares which it or they are obligated to
purchase (the “Defaulted Shares”), then the non-defaulting Agent or Agents shall have the right, within 24 hours thereafter,
to make arrangements for one of them or one or more other Agents or underwriters to purchase all, but not less than all, of the Defaulted
Shares in such amounts as may be agreed upon and upon the terms herein set forth; provided, however, that if such arrangements
shall not have been completed within such 24-hour period, then:
(i) if
the number of Defaulted Shares does not exceed 10% of the number of Shares to be so purchased by all of such Agents on the Settlement
Date, the non-defaulting Agent or Agents shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions
that their respective initial purchase obligation bears to the purchase obligations of such non-defaulting Agent or Agents; or
(ii) if
the number of Defaulted Shares exceeds 10% of the number of Shares to be so purchased by all of such Agents on the Settlement Date, such
Terms Agreement shall terminate without liability on the part of any non-defaulting Agent.
No action taken pursuant to this Section 9(c) shall
relieve any defaulting Agent from liability in respect of its default. In the event of any such default which does not result in a termination
of such Terms Agreement, either the non-defaulting Agent or Agents or the Company shall have the right to postpone the Settlement Date
for a period not exceeding seven days in order to effect any required changes in the Registration Statement, the General Disclosure Package,
the Prospectus or any other documents or arrangements.
(d) In
the event of any termination under this Section 9, no party hereto will have any liability to any other party hereto, except
that (i) the Agents shall be entitled to any commissions earned in accordance with Section 2(b) hereof, (ii) if
at the time of termination (A) an Agent shall own any Shares purchased by it as principal or (B) an offer to purchase any Shares
has been accepted by the Company but the Settlement Date has not occurred, the covenants set forth in Section 3 hereof shall
remain in effect until such Shares are resold or so delivered, as the case may be, and (iii) Sections 3(h), 4,
6, 7, 8, 12, 13, 14, 15 and 22 hereof shall remain in effect.
Section 10. Notices.
Except as otherwise provided herein, all notices and other communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Agents and
the Forward Purchasers shall be directed at:
Agent and Forward Seller
BofA Securities Inc.
One Bryant Park
New York, New York 10036
Attention:
ATM Execution, Email: dg.atm_execution@bofa.com
Forward Purchaser
Bank of America, N.A.
c/o BofA Securities, Inc.
One Bryant Park
New York, New York 10036
Attention: Rohan Handa
Email:
Rohan.handa@bofa.com
Agent and Forward Seller
BBVA Securities Inc.
1345 Avenue of Americas, 44th Floor
New York, New York 10105
Forward Purchaser
Banco Bilbao Vizcaya Argentaria, S.A.
Ciudad
BBVA, Calle Sauceda nº 28
Edificio Oceania, Planta 1ª
Madrid 28050
Agent and Forward Seller
BNP Paribas Securities Corp.
787 Seventh Ave
New York, New York 10019
Attention: Robert McDonald
Phone: + 1 (646) 342-0756
Email:
DL NYK STE dl.nyk.ste@us.bnpparibas.com
Forward Purchaser
BNP Paribas
787 Seventh Avenue
New York, New York 10019
Attention: Robert McDonald
Phone: + 1 (646) 342-0756
Email: DL NYK STE dl.nyk.ste@us.bnpparibas.com
Agent and Forward Seller
BNY Mellon Capital Markets, LLC
240 Greenwich Street, 3rd Floor
New York, New York 10286
Forward Purchaser
The Bank of New York Mellon
240 Greenwich Street, 3rd Floor
New York, New York 10286
Agent and Forward Seller
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Attention: Robert G. Leonard, Matthew T. Morris, Eric Natelson,
Theodore Finkelstein
Email:
robert.g.leonard@citi.com, matthew.t.morris@citi.com, eric.natelson@citi.com, theodore.finkelstein@citi.com
Forward Purchaser
Citibank, N.A.
388 Greenwich Street
New York, New York 10013
Attention: Robert G. Leonard, Matthew T. Morris, Eric Natelson,
Theodore Finkelstein
Email:
robert.g.leonard@citi.com, matthew.t.morris@citi.com, eric.natelson@citi.com, theodore.finkelstein@citi.com
Agent and Forward Seller
Credit Agricole Securities (USA) Inc.
1301 Avenue of the Americas
New York, New York 10019
Attention: Equity Capital Markets
Email:
equitycapitalmarkets@ca-cib.com
Forward Purchaser
Crédit
Agricole Corporate and Investment Bank12, place des États-Unis CS 70052
92547 Montrouge Cedex, France
Attention: Mimoun Nadir
Facsimile: 33.1.41.89.93.12
Email: eqd-corporates-emea@ca-cib.com
With a copy to:
Crédit
Agricole Corporate and Investment Bank
c/o Credit Agricole Securities (USA) Inc., as agent
1301 Avenue of the Americas
New York, New York 10019
Attention: Jonathan Fecowicz
Email: jonathan.fecowicz@ca-cib.com; jean.bel@ca-cib.com
With a copy to:
Crédit Agricole Corporate and Investment Bank
12,
place des États-Unis CS 70052
92547 Montrouge Cedex, France
Attention: Legal Department
Facsimile: 33.1.41.89.64.79; 33.1.41.89.29.86
Agent and Forward Seller
Jefferies LLC
520 Madison Avenue
New York, New York 10022
Attention: General Counsel
Forward Purchaser
Jefferies LLC
520 Madison Avenue
New York, New York 10022
Attention: Colyer Curtis
Telephone: (212) 708-2734
Email: CCurtis@jefferies.com and CorpEqDeriv@jefferies.com
Agent and Forward Seller
J.P. Morgan Securities LLC
383 Madison Avenue
6th floor
New York, New York 10179
Attention: Sanjeet Dewal
Facsimile: (212) 622-8783
Email:
sanjeet.s.dewal@jpmorgan.com
Forward Purchaser
JPMorgan Chase Bank, National Association, EDG Marketing Support
383 Madison Avenue
New York, New York 10179
Email:
edg_notices@jpmorgan.com, edg_ny_corporate_sales_support@jpmorgan.com
Copy to: Sanjeet Dewal
Email:
sanjeet.s.dewal@jpmorgan.com
Agent and Forward Seller
Mizuho Securities USA LLC
1271 Avenue of the Americas
New York, New York 10020
Attention: Stephen Roney; Ivana Rupcic-Hulin; Daniel Blake
Telephone: (212) 205-7527; (212) 205-7734; (212) 205-7755
Email:
Stephen.Roney@mizuhogroup.com; Ivana.Rupcic-Hulin@mizuhogroup.com; Daniel.Blake@mizuhogroup.com
With
a copy to: legalnotices@mizuhogroup.com
Forward Purchaser
Mizuho Markets Americas LLC
c/o Mizuho Securities USA LLC, as agent
1271 Avenue of the Americas
New York, New York 10020
Attention: US Equity Derivatives Notices
Telephone: (646) 949-9531
Email:
Derivs-EQNoticesUS@mizuhogroup.com
Agent and Forward Seller
Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
Attention: Equity Syndicate Desk
Copy to: Legal Department
Forward Purchaser
Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
Attention: Equity Syndicate Desk
Copy to: Legal Department
Agent and Forward Seller
MUFG Securities Americas Inc.
1221 Avenue of the Americas, 6th Floor
New York, New York 10020
Attention: Capital Markets
Fax: (646) 434-3455
Email: FLOEStransactions@us.sc.mufg.jp and ECM@us.sc.mufg.jp
Forward Purchaser
MUFG Securities EMEA plc
Ropemaker Place
25 Ropemaker Street
London EC27 9AJ, United Kingdom
Attention: Derivative Confirmations (fax: +44 (0) 20 7577
2898/2875
Email: docsconfirms@int.sc.mufg.jp, with a copy to: ECM@us.sc.mufg.jp
Agent and Forward Seller
RBC Capital Markets, LLC
Three World Financial Center
200 Vesey Street
8th Floor
New York, New York 10281
Attention: Equity Syndicate
Forward Purchaser
RBC Capital Markets, LLC
Brookfield Place
200 Vesey Street
New York, New York 10281
Attention: Structured Derivatives Documentation
Email: seddoc@rbccm.com
Agent and Forward Seller
Scotia Capital (USA) Inc.
250 Vesey Street
24th Floor
New York, New York 10281
Attention: Equity Capital Markets, with a copy to Chief Legal
Officer, U.S.
Facsimile: (212) 225-6653
E-mail: us.ecm@scotiabank.com, us.legal@scotiabank.com
Forward Purchaser
The Bank of Nova Scotia
44 King Street West
Toronto, Ontario M5H 1H1 Canada
c/o Scotia Capital (USA) Inc.
250 Vesey Street
24th Floor,
New York, New York 10281
Attention: U.S. Equity Derivatives
Telephone: (212) 225-5230, (212) 225-5582
Email: bahar.lorenzo@scotiabank.com, gary.nathanson@scotiabank.com
Copy to: BNSEquityConfirmations@scotiabank.com
Agent and Forward Seller
TD Securities (USA) LLC
1 Vanderbilt Avenue
New York, NY 10017
Attention: Equity Capital Markets
Email: USTMG@tdsecurities.com
Forward Purchaser
The Toronto-Dominion Bank
c/o TD Securities (USA) LLC
1 Vanderbilt Avenue
New York, NY 10017
Attention: Global Equity Derivatives
Telephone: (212) 827-7306
Email: tdusa-gedusinvestorsolutionssales@tdsecurities.com
and bradford.limpert@tdsecurities.com
Agent and Forward Seller
Truist Securities, Inc.
333 Peachtree Road NE, 11th Floor
Atlanta, Georgia 30326
Forward Purchaser
Truist Bank
333 Peachtree Road NE, 11th Floor
Atlanta, Georgia 30326
Agent and Forward Seller
UBS
Securities LLC
1285 Avenue of the Americas
New York, New York 10019
Attention: Equity Syndicate Desk
Forward Purchaser
UBS AG London Branch
5 Broadgate
London EC2M 2QS, United Kingdom
Agent and Forward Seller
Wells Fargo Securities, LLC
500 West 33rd Street, 14th Floor, New York, New York 10001
Attention: Equity Syndicate Department and Special Equities
Desk
Facsimile: (212) 214-5918
Forward Purchaser
Wells Fargo Bank, National
Association
500 West 33rd Street
14th Floor
New York, New York 10001
Email: corporatederivativenotifications@wellsfargo.com
Attention: Structuring Services
Group
Facsimile: (212)
214-5918
with a copy to:
Goodwin Procter LLP
620 Eighth Avenue
New York, New York 10018
Attention: Audrey S. Leigh
Notices to the Company shall be directed
at:
Ventas, Inc.
353 N. Clark Street
Suite 3300
Chicago, Illinois 60654
Attention: General Counsel
with a copy to:
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
Attention: Richard D. Truesdell Jr.
Section 11. No
Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (i) each purchase and sale of Shares pursuant to
this Agreement and the issuance and sale of Confirmation Shares pursuant to any Confirmation, including the determination of the public
offering prices of Shares, if any, and any related discounts and commissions, and the price to be paid for any Confirmation Shares, are
arm’s-length commercial transactions between the Company, on the one hand, and the applicable Agents and/or Forward Purchasers,
as applicable, on the other hand, (ii) the Agents and the Forward Purchasers have not assumed and will not assume any advisory or
fiduciary responsibility in favor of the Company or any of its Subsidiaries or other affiliates with respect to any offering of Shares,
sale of Confirmation Shares or the process leading thereto (irrespective of whether the applicable Agents or Forward Purchasers, as applicable,
have advised or are currently advising the Company or any of its Subsidiaries or other affiliates on other matters) or any other obligation
to the Company except the obligations expressly set forth in this Agreement or any Confirmation, as applicable, (iii) the Agents,
the Forward Purchasers and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ
from those of the Company, and (iv) the Agents and the Forward Purchasers have not provided any legal, accounting, financial, regulatory
or tax advice to the Company or any other person or entity with respect to any offering of Shares or sale of Confirmation Shares and
the Company has consulted its own legal, accounting, financial, regulatory and tax advisors to the extent it deemed appropriate.
Section 12. Parties.
This Agreement shall inure to the benefit of and be binding upon the Agents, the Forward Purchasers and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation,
other than the Agents, the Forward Purchasers, their respective selling agents, the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 hereof and their heirs and legal representatives,
any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Agents, the Forward Purchasers,
their respective selling agents, the Company and their respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Shares shall
be deemed to be a successor by reason merely of such purchase.
Section 13. Trial
by Jury. Each of the Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates),
each Agent and each Forward Purchaser hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right
to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
Section 14. GOVERNING
LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING HEREUNDER OR RELATED HERETO SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
Section 15. Consent
to Jurisdiction; Waiver of Immunity. Each of the Company, each Agent and each Forward Purchaser agrees that any legal suit, action
or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby shall be instituted in (a) the
federal courts of the United States of America located in the City and County of New York, Borough of Manhattan or (b) the
courts of the State of New York located in the City and County of New York, Borough of Manhattan (collectively, the “Specified
Courts”), and irrevocably submits to the jurisdiction of the Specified Courts in any such suit, action or proceeding. Service
of any process, summons, notice or document by mail to a party’s address set forth in Section 10 hereof shall be effective
service of process upon such party for any suit, action or proceeding brought in any Specified Court. Each of the Company, each Agent
and each Forward Purchaser irrevocably and unconditionally waives any objection to the laying of venue of any suit, action or proceeding
in the Specified Courts and irrevocably and unconditionally waives and agrees not to plead or claim in any Specified Court that any such
suit, action or proceeding brought in any Specified Court has been brought in an inconvenient forum.
Section 16. TIME.
TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
Section 17. Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts
shall together constitute one and the same Agreement. Counterparts may be delivered via facsimile, electronic mail (including any electronic
signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act
or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have
been duly and validly delivered and be valid and effective for all purposes.
Section 18. Effect
of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
Section 19. Amendments
or Waivers. No amendment or waiver of any provision of this Agreement nor any consent or approval to any departure therefrom shall
in any event be effective unless the same shall be in writing and signed by the Company, the Agents and the Forward Purchasers or, in
the case of an offer and sale of Shares to one or more Agents as principal, the applicable Agents.
Section 20. Patriot
Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)),
the Agents and the Forward Purchasers are required to obtain, verify and record information that identifies their respective clients,
including the Company’s entities, which information may include the name and address of their respective clients, as well as other
information that will allow the Agents and the Forward Purchasers to properly identify their respective clients.
Section 21. Entire
Agreement. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company, the Agents
and the Forward Purchasers with respect to the subject matter hereof.
Section 22. Recognition
of the U.S. Special Resolution Regime. In the event that any Agent or Forward Purchaser that is a Covered Entity becomes subject
to a proceeding under a U.S. Special Resolution Regime, the transfer from such Agent or Forward Purchaser, as the case may be, of this
Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be
effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws
of the United States or a state of the United States. In the event that any Agent or Forward Purchaser that is a Covered Entity or a
BHC Act Affiliate of such party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement
that may be exercised against such party are permitted to be exercised to no greater extent than such Default Rights could be exercised
under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section 22, a “BHC Act Affiliate” has the meaning assigned to the term “affiliate”
in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a
“covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a
“covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a
“covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right”
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1,
as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations
promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated
thereunder.
[Signature Pages Follow]
If the foregoing is in accordance
with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement by and among the Agents, the Forward Purchasers and the Company in accordance
with its terms.
| Very truly yours, |
| |
| VENTAS, INC. |
| |
| By: | /s/ Robert F. Probst |
| | Name: |
Robert F. Probst |
| | Title: |
Executive Vice President and Chief Financial Officer |
[Signature Page to
ATM Sales Agreement]
Accepted as of the date hereof:
BofA Securities, Inc.
As Agent And Forward Seller
By: |
/s/ Gray Hampton |
|
|
Name: Gray Hampton |
|
|
Title: Vice Chairman |
|
BBVA SECURITIES INC.
As Agent And Forward Seller
By: |
/s/ Peter Jensen |
|
|
Name: Peter Jensen |
|
|
Title: Managing Director |
|
BNP PARIBAS SECURITIES CORP.
As Agent And Forward Seller
By: |
/s/ Robert McDonald |
|
|
Name: Robert McDonald |
|
|
Title: Managing Director |
|
BNY MELLON CAPITAL MARKETS, LLC
As Agent And Forward Seller
By: |
/s/ Dan Klinger |
|
|
Name: Dan Klinger |
|
|
Title: Managing Director |
|
Citigroup
Global Markets Inc.
As Agent And Forward Seller
By: |
/s/ Scott Shelley |
|
|
Name: Scott Shelley |
|
|
Title: Vice President |
|
[Signature Page to
ATM Sales Agreement]
Credit
Agricole Securities (USA) Inc.
As Agent And Forward Seller
By: |
/s/ Jean-Marc Nguyen |
|
|
Name: Jean-Marc Nguyen |
|
|
Title: Managing Director Head of Investment Banking |
|
By: |
/s/ Douglas Cheng |
|
|
Name: Douglas Cheng |
|
|
Title: Managing Director |
|
JEFFERIES
LLC
As Agent And Forward Seller
By: |
/s/ Michael Magarro |
|
|
Name: Michael Magarro |
|
|
Title: Managing Director |
|
J.P.
Morgan Securities LLC
As Agent And Forward Seller
By: |
/s/ Sanjeet Dewal |
|
|
Name: Sanjeet Dewal |
|
|
Title: Managing Director |
|
mizuho
securities usa llc
As Agent And Forward Seller
By: |
/s/ Ivana Rupcic-Hulin |
|
|
Name: Ivana Rupcic-Hulin |
|
|
Title: Managing Director |
|
Morgan
Stanley & Co. LLC
As Agent And Forward Seller
By: |
/s/ Jon Sierant |
|
|
Name: Jon Sierant |
|
|
Title: Managing Director |
|
MUFG
Securities Americas Inc.
As Agent And Forward Seller
By: |
/s/ Geoffrey Paul |
|
|
Name: Geoffrey Paul |
|
|
Title: Managing Director |
|
[Signature Page to
ATM Sales Agreement]
RBC
Capital Markets, LLC
As Agent And Forward Seller
By: |
/s/ Asad Kazim |
|
|
Name: Asad Kazim |
|
|
Title: Managing Director and Head of U.S. Real Estate |
|
Scotia
capital (usa) inc.
As Agent And Forward Seller
By: |
/s/ John Cronin |
|
|
Name: John Cronin |
|
|
Title: Managing Director |
|
td
securities (usa) llc
As Agent And Forward Seller
By: |
/s/ Bradford Limpert |
|
|
Name: Bradford Limpert |
|
|
Title: Managing Director |
|
TRUIST SECURITIES, INC.
As Agent And Forward Seller
By: |
/s/ Michael Collins |
|
|
Name: Michael Collins |
|
|
Title: Managing Director |
|
UBS
Securities LLC
As Agent And Forward Seller
By: |
/s/ Steve Studnicky |
|
|
Name: Steve Studnicky |
|
|
Title: Managing Director |
|
By: |
/s/ Matthew Dejana |
|
|
Name: Matthew Dejana |
|
|
Title: Executive Director |
|
Wells
Fargo Securities, LLC
As Agent And Forward Seller
By: |
/s/ Rohit Mehta |
|
|
Name: Rohit Mehta |
|
|
Title: Executive Director |
|
[Signature Page to
ATM Sales Agreement]
BANK OF AMERICA, N.A.
As Forward Purchaser
By: |
/s/ Rohan Handa |
|
|
Name: Rohan Handa |
|
|
Title: Managing Director |
|
BANCO BILBAO VIZCAYA ARGENTARIA,
S.A.
As Forward Purchaser
By: |
/s/ Annabella Rutigliano |
|
|
Name: Annabella Rutigliano |
|
|
Title: Executive Director |
|
By: |
/s/ Luis Alarcon Gonzalez |
|
|
Name: Luis Alarcon Gonzalez |
|
|
Title: Managing Director |
|
BNP PARIBAS
As Forward Purchaser
By: |
/s/ Robert McDonald |
|
|
Name: Robert McDonald |
|
|
Title: Managing Director |
|
By: |
/s/ John Nunziata |
|
|
Name: John Nunziata |
|
|
Title: Managing Director |
|
CITIBANK,
N.A.
As Forward Purchaser
By: |
/s/ Eric Natelson |
|
|
Name: Eric Natelson |
|
|
Title: Authorized Signatory |
|
Credit
Agricole CORPORATE AND INVESTMENT BANK
As Forward Purchaser
By: |
/s/ Jean-Marc Nguyen |
|
|
Name: Jean-Marc Nguyen |
|
|
Title: Managing Director Head of Investment Banking |
|
By: |
/s/ Douglas Cheng |
|
|
Name: Douglas Cheng |
|
|
Title: Managing Director |
|
JEFFERIES
LLC
As Forward Purchaser
By: |
/s/ Michael Magarro |
|
|
Name: Michael Magarro |
|
|
Title: Managing Director |
|
[Signature Page to
ATM Sales Agreement]
JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION
As Forward Purchaser
By: |
/s/ Sanjeet Dewal |
|
|
Name: Sanjeet Dewal |
|
|
Title: Managing Director |
|
MIZUHO
MARKETS AMERICAS LLC
As Forward Purchaser
By: |
/s/ Matthew E. Chiavaroli |
|
|
Name: Matthew E. Chiavaroli |
|
|
Title: Authorized Signatory |
|
MORGAN
STANLEY & CO. LLC
As Forward Purchaser
By: |
/s/ Mark Asteris |
|
|
Name: Mark Asteris |
|
|
Title: Managing Director |
|
MUFG
SECURITIES EMEA PLC
As Forward Purchaser
By: |
/s/ Catherine Lucas |
|
|
Name: Catherine Lucas |
|
|
Title: Authorised Signatory |
|
ROYAL
BANK OF CANADA
As Forward Purchaser
By: |
/s/ Brian Ward |
|
|
Name: Brian Ward |
|
|
Title: Managing Director |
|
[Signature Page to
ATM Sales Agreement]
THE BANK OF NEW YORK MELLON
As Forward Purchaser
By: |
/s/ Robert Lynch |
|
|
Name: Robert Lynch |
|
|
Title: Managing Director |
|
THE BANK OF NOVA SCOTIA
As Forward Purchaser
By: |
/s/ Kshamta Kaushik |
|
|
Name: Kshamta Kaushik |
|
|
Title: Managing Director |
|
THE
TORONTO-DOMINION BANK
As Forward Purchaser
By: |
/s/ Vanessa Simonetti |
|
|
Name: Vanessa Simonetti |
|
|
Title: Managing Director |
|
TRUIST BANK
As Forward Purchaser
By: |
/s/ Michael Collins |
|
|
Name: Michael Collins |
|
|
Title: Managing Director |
|
UBS
AG LONDON BRANCH
As Forward Purchaser
By: |
/s/ Steve Studnicky |
|
|
Name: Steve Studnicky |
|
|
Title: Managing Director |
|
By: |
/s/ Matthew Dejana |
|
|
Name: Matthew Dejana |
|
|
Title: Executive Director |
|
WELLS
FARGO BANK, NATIONAL ASSOCIATION
As Forward Purchaser
By: |
/s/ Elizabeth Alvarez |
|
|
Name: Elizabeth Alvarez |
|
|
Title: Managing Director |
|
[Signature Page to ATM Sales Agreement]
Exhibit A-1
FORM OF
CORPORATE OPINION OF COMPANY’S COUNSEL
TO BE DELIVERED PURSUANT TO Section 5(C)(I)
Exhibit A-2
FORM OF
TAX OPINION OF COMPANY’S COUNSEL
TO BE DELIVERED PURSUANT TO Section 5(C)(II)
Exhibit B
FORM OF
OPINION OF COMPANY’S GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO Section 5(C)(iIi)
Annex I
Ventas, Inc.
Common Stock
($0.25 par value)
TERMS AGREEMENT
[Address of Agent[s]]
Ladies and Gentlemen:
Ventas, Inc., a Delaware
corporation (the “Company”), proposes, on the basis of the representations and warranties, and upon the terms and
subject to the conditions, stated herein and in the ATM Sales Agreement, dated September 18, 2024 (the “Sales Agreement”),
between the Company, [[ ] (the “Agent”)][the
agents party thereto], and the Forward Purchasers, to issue and sell to [the Agent][ [ ]
and [ ]] as principal for resale ([collectively,] the “Underwriter[s]”),
and the Underwriter[s] [severally] agree[s] to purchase from the Company the shares of Common Stock specified in Schedule A
hereto (the “[Initial]* Securities”), on the terms specified in Schedule A hereto. Capitalized terms used
but not defined herein have the respective meanings ascribed thereto in the Sales Agreement.
[The Company grants an option
to the Underwriter[s], severally and not jointly,] to purchase up to an additional [ ]
shares of Common Stock specified in Schedule A hereto (the “Option Securities,” and together with the
Initial Securities, the “Securities”)] at the price per share set forth in Schedule A hereto, less an
amount per share equal to any dividends or distributions declared by the Company and payable on the Initial Securities but not payable
on the Option Securities. The option hereby granted may be exercised for 30 days after the date hereof and may be exercised in whole
or in part at any time from time to time upon notice by the Underwriter[s] to the Company setting forth the number of Option Securities
as to which the [several] Underwriter[s] [is/are] then exercising the option and the time and date of payment and delivery for such Option
Securities. Any such time and date of delivery (each, a “Date of Delivery”) shall be determined by the Underwriter[s],
but shall not be later than seven full business days after the exercise of said option, nor in any event prior to the Settlement Date
(as defined below). [If the option hereby granted is exercised as to all or any portion of the Option Securities, each of the Underwriters,
acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the
number of Initial Securities set forth in Schedule A hereto opposite the name of such Underwriter bears to the total number
of Initial Securities, subject, in each case, to such adjustments as [ · ] in its sole
discretion shall make to eliminate any sales or purchases of fractional shares. ]*
For purposes of clarity,
the parties hereto agree that the officers’ certificate, opinions and letter of counsel and accountants’ letter referred
to in Sections 3(o), 3(p) and 3(q), respectively, of the Sales Agreement are required to be delivered by or on behalf of the
Company on the Settlement Date (as defined below) [and any Date of Delivery].
* Include only if the Underwriter[s][has/have] an option to purchase
additional shares of Common Stock from the Company.
Payment of the purchase price
for, and delivery of certificates for, the [Initial] Securities shall be made at the offices of [insert name and address of counsel to
the Underwriter[s]], or at such other place as shall be agreed upon by the Underwriter[s] and the Company, at 9:00 a.m. (New York
City time) on the third (or fourth, if the pricing occurs after 4:30 p.m. (New York City time) on any given day) business
day after the date hereof (unless postponed in accordance with Section 9(c) of the Sales Agreement), or such other time not
later than ten business days after such date as shall be agreed upon by the Underwriter[s] and the Company (such time and date of payment
and delivery, the “Settlement Date”).
[In addition, in the event
that any or all of the Option Securities are purchased by the Underwriter[s], payment of the purchase price for, and delivery of certificates
for, such Option Securities shall be made at the above-mentioned offices, or at such other place as shall be agreed upon by the Underwriter[s]
and the Company, on each Date of Delivery as specified in the notice from the Underwriter[s] to the Company.]
Payment shall be made to
the Company by wire transfer of immediately available funds to a bank account designated by the Company against delivery to the Underwriter[s]
[for their respective accounts] of the Securities to be purchased by such Underwriter[s]. [It is understood that each Underwriter has
authorized [ · ], as representative of the Underwriters, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for, the Initial Securities and the Option Securities, if any,
which it has agreed to purchase. [ · ], individually and not as representative
of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Initial Securities or the Option
Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Settlement Date or the relevant Date
of Delivery, as the case may be, but such payment shall not relieve such Underwriter from its obligations hereunder.]
Each of the provisions of
the Sales Agreement not related solely to the Agent, as agent of the Company, and not related solely to the Forward Purchasers, forward
sellers or any Confirmations or Confirmation Shares, is incorporated herein by reference in its entirety, and shall be deemed to be part
of this Terms Agreement to the same extent as if each such provision had been set forth in full herein. Each of the representations and
warranties set forth in the Sales Agreement shall be deemed to have been made at and as of the date hereof [and/,] the Applicable Time
[and any Date of Delivery].
If the foregoing is in accordance
with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement between the Underwriter[s] and the Company in accordance with its terms.
THIS TERMS AGREEMENT AND
ANY CLAIM, CONTROVERSY OR DISPUTE ARISING HEREUNDER OR RELATED HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
| Very truly yours, |
| |
| VENTAS, INC. |
| | |
| By: | |
| | Name: |
| | Title: |
Accepted as of the date hereof: |
|
|
|
[UNDERWRITER[S]] |
|
| |
|
By: | |
|
| Name: |
|
| Title |
|
Annex II
Form of Confirmation
Form of Forward Confirmation
FORM OF REGISTERED FORWARD CONFIRMATION
Date: [•], 20[•]
| To: | Ventas, Inc.
353 N. Clark Street, Suite 3300
Chicago, Illinois 60654
Attn: Son Nguyen, SVP, Capital Markets & Treasury
Telephone: 312.268.4185
Email: son.nguyen@ventasreit.com |
From: [DEALER NAME AND NOTICE INFORMATION]
| Re: | Registered
Forward Transaction |
Ladies and Gentlemen:
The purpose of this letter agreement (this “Confirmation”)
is to confirm the terms and conditions of the transaction entered into between us on the Trade Date specified below (the “Transaction”).
This Confirmation constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below.
| 1. | The
definitions and provisions contained in the 2006 ISDA Definitions (the “2006 Definitions”)
and the 2002 ISDA Equity Derivatives Definitions (the “2002 Definitions”
and, together with the 2006 Definitions, the “Definitions”), each as published
by the International Swaps and Derivatives Association, Inc., are incorporated into
this Confirmation. |
Each party further agrees that this
Confirmation, the Pricing Supplement (as defined below) delivered hereunder and the Agreement (as defined below) together evidence a
complete binding agreement between Party A and Party B as to the subject matter and terms of the Transaction to which this Confirmation
relates, and shall supersede all prior or contemporaneous written or oral communications with respect thereto. This Confirmation, together
with any other Confirmations for registered forward transactions entered into between Party A and Party B in connection with the Sales
Agreement (as defined below) (each, an “Additional Confirmation”) shall supplement, form a part of, and be subject
to an agreement in the form of the 2002 ISDA Master Agreement (the “Agreement”) as if Party A and Party B had executed
an agreement in such form on the Trade Date (but without any Schedule except for (i) the election of New York law (without regard
to New York’s choice of laws doctrine other than Title 14 of Article 5 of the New York General Obligations Law (the “General
Obligations Law”)) as the governing law and US Dollars (“USD”) as the Termination Currency and (ii) the
election that the “Cross Default” provisions of Section 5(a)(vi) shall apply to Party A with a “Threshold
Amount” of 3% of the stockholders’ equity of Party A; provided that (x) the words “, or becoming capable
at such time of being declared,” shall be deleted from clause (1) thereof, (y) “Specified Indebtedness” has
the meaning specified in Section 14 of the Agreement, except that such term shall not include obligations in respect of deposits
received in the ordinary course of Party A’s banking business, and (z) the following language shall be added to the end of
such Section 5(a)(vi): “Notwithstanding the foregoing, a default under subsection (2) hereof shall not constitute an
Event of Default if (X) the default was caused solely by error or omission of an administrative or operational nature; (Y) funds
were available to enable the party to make the payment when due; and (Z) the payment is made within two Local Business Days of such
party’s receipt of written notice of its failure to pay;”). In the event of any inconsistency between the Agreement, this
Confirmation, the Pricing Supplement, the 2006 Definitions and the 2002 Definitions, the following will prevail for purposes of the Transaction
in the order of precedence indicated: (i) the Pricing Supplement, (ii) this Confirmation; (iii) the 2002 Definitions;
(iv) the 2006 Definitions and (v) the Agreement. The parties hereby agree that no Transaction other than the Transaction to
which this Confirmation relates and the Transactions to which the Additional Confirmations, if any, relate (each, an “Additional
Transaction”) shall be governed by the Agreement. For purposes of the 2002 Definitions, the Transaction is a Share Forward
Transaction. For the avoidance of doubt, if there exists any ISDA Master Agreement between Party A and Party B or any confirmation or
other agreement between Party A and Party B pursuant to which an ISDA Master Agreement is deemed to exist between Party A and Party B,
then notwithstanding anything to the contrary in such ISDA Master Agreement, such confirmation or agreement or any other agreement to
which Party A and Party B are parties, the Transaction shall not be considered a Transaction under, or otherwise governed by, such existing
or deemed ISDA Master Agreement, and the occurrence of any Event of Default or Termination Event under the Agreement with respect to
either party or the Transaction shall not, by itself, give rise to any right or obligation under any such other agreement or deemed agreement.
Party A and Party B each represent
to the other that it has entered into the Transaction in reliance upon such tax, accounting, regulatory, legal, and financial advice
as it deems necessary and not upon any view expressed by the other.
| 2. | The
terms of the particular Transaction to which this Confirmation relates are as follows: |
General
Terms:
|
Party
A: |
[DEALER
NAME] |
|
Party
B: |
Ventas,
Inc. |
|
Trade
Date: |
[·],
20[·] |
|
Effective
Date: |
The
first day occurring on or after the Trade Date on which Shares that are sold through [AGENT NAME], acting as forward seller for Party
A (in such capacity, the “Agent”) pursuant to the ATM Sales Agreement, dated September 18, 2024 between Party
A, Party B, the Agent and the other parties thereto (the “Sales Agreement”), settle. |
|
Base
Amount: |
The
specified aggregate number of Shares to be sold through the Agent during the period from and including the Trade Date through and
including the Hedge Completion Date, as set forth in the Forward Instruction Notice (as defined in the Sales Agreement) and as modified
by any subsequent notice delivered by Party B to Party A pursuant to Section 2(b) of the Sales Agreement on or prior to the Hedge
Completion Date; provided, however, that the Base Amount shall be reduced to reflect any reduction in the aggregate
number of Shares actually borrowed by Party A (or an affiliate thereof) and sold by the Agent, using commercially reasonable efforts,
consistent with its normal trading and sales practices and applicable law and regulations, pursuant to Section 2(m) and Section 2(c),
respectively, of the Sales Agreement; provided further that on each Settlement Date, the Base Amount shall be
reduced by the number of Settlement Shares for such Settlement Date. |
|
Maturity
Date: |
The earlier of: (i) [DATE]1
(or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day) and (ii) the date on which the
Base Amount is reduced to zero. |
| 1 | Insert
Maturity Date specified by Party B in the Forward Instruction Notice (as defined in the Sales
Agreement). |
|
Hedge
Completion Date: |
The
earliest of: (i) the date specified in writing as the Hedge Completion Date by Party A, (ii) any Settlement Date, (iii) [DATE]2
and (iv) the date specified in writing as the Hedge Completion Date by Party B pursuant to Section 2(b) of the Sales Agreement.
Promptly after the Hedge Completion Date, Party A will furnish Party B with a pricing supplement (the “Pricing Supplement”)
in substantially the form of Annex B hereto specifying the Hedge Completion Date, the Base Amount as of the Hedge Completion
Date (the “Initial Base Amount”), the Initial Forward Price and the Maturity Date, all determined in accordance
with the terms hereof. |
|
Forward
Price: |
On
the Hedge Completion Date, the Initial Forward Price, and on any other day, the Forward Price as of the immediately preceding calendar
day multiplied by the sum of (i) 1 and (ii) 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. |
|
Initial
Forward Price: |
[·]%3
of the volume weighted average price at which the Shares are sold through the Agent in a commercially reasonable manner
that reflects prevailing market prices or as otherwise directed pursuant to the Sales Agreement during the period from and including
the Trade Date through and including the Hedge Completion Date, adjusted by the Calculation Agent in a commercially reasonable manner
to (i) reflect on each day during such period the sum of 1 and the Daily Rate for such day multiplied by the then-Initial
Forward Price as of such day (based on sales of Shares that have settled) and (ii) reduce the then-Initial Forward
Price by the relevant Forward Price Reduction Amount on each Forward Price Reduction Date occurring on or before the Hedge Completion
Date. |
|
Daily
Rate: |
For
any day, a rate (which rate may be negative) equal to (i)(A) the Overnight Bank Rate for such day, minus (B) the Spread, divided
by (ii) 365. |
|
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; 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. |
|
Spread: |
[·]4
basis points per annum. |
|
Prepayment: |
Not Applicable. |
2 |
Insert
final date of Forward Hedging Period specified by Party B in the Forward Instruction Notice. |
3 |
Insert
percentage equal to 100 minus the agreed upon Forward Seller Commission (which shall not exceed 1.5%, unless otherwise agreed in
the case of a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act), as specified by
Party B in the Forward Instruction Notice. In the event the hedge is executed via a block sale, the Hedge Completion Date would be
the Trade Date, and the Initial Forward Price will be a number equal to the sale price to the Forward Seller less the Forward Seller
Commission. |
4 |
Insert
Spread specified by Party B in the Forward Instruction Notice. |
|
Variable
Obligation: |
Not
Applicable. |
|
Forward
Price Reduction Date: |
Each
date (other than the Trade Date) set forth on Schedule I under the heading “Forward Price Reduction Date.” |
|
Forward
Price Reduction Amount: |
For
each Forward Price Reduction Date, the Forward Price Reduction Amount set forth opposite such date on Schedule I. |
|
Shares: |
Common
shares, USD 0.25 par value per share, of Party B (also referred to herein as the “Issuer”) (Exchange identifier:
“VTR”). |
|
Exchange: |
New
York Stock Exchange. |
|
Related
Exchange(s): |
All
Exchanges. |
|
Clearance
System: |
DTC. |
|
Calculation
Agent: |
Party
A. Whenever the Calculation Agent is required to act or to exercise judgment in any way with respect to any Transaction hereunder,
it will do so in a good faith and a commercially reasonable manner. |
|
|
Following
any determination, adjustment or calculation hereunder by the Calculation Agent, the Calculation Agent will upon written request
by Party B promptly following (and, in any event, within three (3) Exchange Business Days of) such request, provide to Party B a
report (in a commonly used file format for the storage and manipulation of financial data but without disclosing Party A’s
confidential or proprietary models or other information that may be confidential, proprietary or subject to contractual, legal or
regulatory obligations to not disclose such information) displaying in reasonable detail the basis for such determination, adjustment
or calculation, as the case may be. |
|
|
Following the occurrence
and during the continuation of an Event of Default pursuant to Section 5(a)(vii) of the Agreement with respect to which Party A is
the sole Defaulting Party, Party B shall have the right to designate an independent, nationally recognized corporate equity derivatives
dealer to replace Party A as Calculation Agent, and the parties hereto shall work in good faith to execute any appropriate documentation
required by such replacement Calculation Agent. |
Settlement Terms:
|
Settlement
Date: |
Any Scheduled Trading Day
following the Effective Date and up to and including the Maturity Date, as designated by (a) Party A pursuant to “Termination
Settlement” below or (b) Party B in a written notice (a “Settlement Notice”) that satisfies the Settlement
Notice Requirements and is delivered to Party A no later than (i) 12:00 p.m. (New York time) on the Scheduled Trading Day prior to
such Settlement Date, which may be the Maturity Date, if Physical Settlement applies, and (ii) 30 Scheduled Trading Days prior to
such Settlement Date, which may be the Maturity Date, if Cash Settlement or Net Share Settlement applies; provided that (i)
the Maturity Date shall be a Settlement Date if on such date the Base Amount is greater than zero and (ii) if Cash Settlement or
Net Share Settlement applies and Party A shall have fully unwound its commercially reasonable hedge in a commercially reasonable
manner during an Unwind Period by a date that is more than one Scheduled Trading Day prior to a Settlement Date specified above,
Party A may, by written notice to Party B, specify any Scheduled Trading Day prior to such originally specified Settlement Date as
the Settlement Date. |
|
Settlement
Shares: |
With
respect to any Settlement Date, a number of Shares, not to exceed the Base Amount, designated as such by Party B in the related Settlement
Notice or by Party A pursuant to “Termination Settlement” below; provided that the Settlement Shares so designated
shall, in the case of a designation by Party B, be at least equal to the lesser of 100,000 and the Base Amount at that time; provided further
that on the Maturity Date the number of Settlement Shares shall be equal to the Base Amount on such date. |
|
Settlement: |
Physical
Settlement, Cash Settlement or Net Share Settlement, at the election of Party B as set forth in a Settlement Notice delivered on
or after the Effective Date 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 Party A is unable
to unwind its hedge by the end of the Unwind Period (a) in a manner that, in the good faith, reasonable judgment of Party A based
on the advice of counsel, is consistent with the requirements for qualifying for the safe harbor provided by Rule 10b-18 under the
Exchange Act (as if such requirements were applicable to purchases by Party A in connection with its unwind activity hereunder and
under any Additional Transaction) 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 below under “Termination
Settlement”) or (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 or (v) if on any Exchange Business Day the price per Share on the Exchange is below [·]%5
of the Initial Forward Price. |
|
Settlement
Notice Requirements: |
Notwithstanding any other
provision hereof, a Settlement Notice delivered by Party B 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 Party B delivers to Party A with such Settlement
Notice representations signed by Party B substantially in the form set forth in clause (a) under the heading “Representations,
Warranties and Agreements of Party B” in Section 3 of this Confirmation. |
5 |
Insert
Termination Threshold specified by Party B in the Forward Instruction Notice. |
|
Unwind
Period: |
Each
Exchange Business Day during the period from and including the first Exchange Business Day following the date Party B validly elects
Cash Settlement or Net Share Settlement in respect of a Settlement Date through the Scheduled Trading Day immediately preceding such
Settlement Date (or the immediately preceding Exchange Business Day if such Scheduled Trading Day is not an Exchange Business Day);
subject to “Termination Settlement” below. If any Exchange Business Day during an Unwind Period is a Disrupted Day, the
Calculation Agent shall make commercially reasonable adjustments to the terms of the Transaction (including, without limitation,
the Cash Settlement Amount and the number of Net Share Settlement Shares) to account for the effect of the occurrence of such Disrupted
Day on Party A’s commercially reasonable hedge position, assuming Party A has acted in a commercially reasonable manner. |
|
Market
Disruption Event: |
Section
6.3(a) of the 2002 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 or (iii) an Early Closure, in each case, that the Calculation Agent determines is material.” |
|
Early
Closure: |
Section
6.3(d) of the 2002 Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing
Time” in the fourth line thereof. |
|
Exchange
Act: |
The
Securities Exchange Act of 1934, as amended from time to time. |
|
Securities
Act: |
The
Securities Act of 1933, as amended from time to time. |
|
Physical
Settlement: |
On any Settlement Date
in respect of which Physical Settlement applies, Party B shall deliver to Party A through the Clearance System the Settlement Shares
for such Settlement Date, and Party A shall deliver to Party B, by wire transfer of immediately available funds to an account designated
by Party B, an amount in cash equal to the Physical Settlement Amount for such Settlement Date, on a delivery versus payment basis.
If, on any Settlement Date, the Shares to be delivered by Party B to Party A 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 Party A, then the portion of the Physical Settlement Amount payable by
Party A to Party B 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 in respect of which Physical Settlement applies, an amount in cash equal to the product of (i) the Forward Price
on such Settlement Date and (ii) the number of Settlement Shares for such Settlement Date. |
|
Cash
Settlement: |
On
any Settlement Date in respect of which Cash Settlement applies, if the Cash Settlement Amount for such Settlement Date is a positive
number, Party A will pay such Cash Settlement Amount to Party B. If the Cash Settlement Amount is a negative number, Party B will
pay the absolute value of such Cash Settlement Amount to Party A. Such amounts shall be paid on the Settlement Date by wire transfer
of immediately available funds. |
|
Cash
Settlement Amount: |
For
any Settlement Date in respect of which Cash Settlement applies, an amount determined by the Calculation Agent equal to the difference
between (1) the product of (i) (A) the weighted average (weighted on the same basis as below) of the Forward Prices on each day over
the period beginning on, and including, the date that is one Settlement Cycle following the first day of the applicable Unwind Period
and ending on, and including, such Settlement Date (calculated assuming no reduction to the Forward Price for any Forward Price Reduction
Date that occurs during the Unwind Period, except as set forth in clause (2) below), minus a commission equal to USD 0.03
per Share in respect of each Share purchased during the Unwind Period, minus (B) the weighted average price of the Shares
Party A actually purchases during the Unwind Period (with such purchases to be made in a commercially reasonable manner at prevailing
market prices) in connection with unwinding its commercially reasonable hedge position with respect to the Settlement Shares for
such Settlement Date, and (ii) the number of Settlement Shares for such Settlement Date, and (2) 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
with respect to which Party A has not unwound its commercially reasonable hedge for the Transaction in a commercially reasonable
manner, as of such Forward Price Reduction Date. |
|
Net
Share Settlement: |
On any Settlement Date
in respect of which Net Share Settlement applies, if the number of Net Share Settlement Shares is a (i) negative number, Party A
shall deliver a number of Shares to Party B equal to the absolute value of the Net Share Settlement Shares, or (ii) positive number,
Party B shall deliver to Party A the Net Share Settlement Shares; provided that if Party A determines in its good faith judgment
that it would be required to deliver Net Share Settlement Shares to Party B, Party A 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: |
For
any Settlement Date in respect of which Net Share Settlement applies, a number of Shares equal to (a) the number of Settlement Shares
for such Settlement Date, minus (b) the number of Shares Party A actually purchases during the Unwind Period (with such purchases
to be made in a commercially reasonable manner at prevailing market prices) for a total purchase price equal to the difference between
(1) the product of (i) the average Forward Price over the period beginning on, and including, the date that is one Settlement
Cycle following the first day of the applicable Unwind Period and ending on, and including, such Settlement Date (calculated assuming
no reduction to the Forward Price for any Forward Price Reduction Date that occurs during the Unwind Period, except as set forth
in clause (2) below), minus a commission equal to USD 0.02 per Share in respect of each Share purchased during the Unwind
Period, and (ii) the number of Settlement Shares for such Settlement Date, and (2) 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 Shares with respect to which
Party A has not unwound its commercially reasonable hedge for the Transaction in a commercially reasonable manner, as of such Forward
Price Reduction Date. |
|
Settlement
Currency: |
USD. |
|
Failure
to Deliver: |
Applicable if Party A is
required to deliver Shares hereunder; otherwise, Inapplicable. |
Adjustments:
|
Method
of Adjustment: |
Calculation
Agent Adjustment; notwithstanding anything in the 2002 Definitions to the contrary, the Calculation Agent may make an adjustment
pursuant to Calculation Agent Adjustment to any one or more of the Base Amount, the Forward Price and any other variable relevant
to the settlement or payment terms of the Transaction (provided that no adjustments will be made to account solely for changes in
volatility, expected dividends, stock loan rate or liquidity relative to the relevant Share). |
|
Additional
Adjustment: |
If, in the commercially
reasonable judgment of Party A, the stock loan fee to Party A (or an affiliate thereof) in a commercially reasonable hedge position,
excluding the federal funds or other interest rate component payable by the relevant stock lender to Party A or such affiliate (the
“Stock Loan Fee”), over any one-month period, of borrowing a number of Shares equal to the Base Amount to hedge
its exposure to the Transaction exceeds a weighted average rate equal to [·]6
basis points per annum, the Calculation Agent shall reduce the Forward Price to the extent necessary to compensate Party
A for the amount by which the Stock Loan Fee exceeded a weighted average rate equal to [·]7
basis points per annum during such period. The Calculation Agent shall notify Party B prior to making any such adjustment
to the Forward Price and, upon the request of Party B, Party A shall provide a report of the Stock Loan Fees for the applicable one-month
period. |
6 Insert initial Stock Loan Fee specified by Party B in the Forward Instruction Notice.
7 Insert initial Stock Loan Fee specified by Party B in the Forward Instruction Notice.
|
Extraordinary
Events: |
In
lieu of the applicable provisions contained in Article 12 of the 2002 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 in the “Acceleration Events” and the “Termination Settlement” provisions of Section 3 of this Confirmation.
Notwithstanding anything to the contrary herein or in the 2002 Definitions, no Additional Disruption Event will be applicable, except
Failure to Deliver or except to the extent expressly referenced in “Acceleration Events” in Section 3 of this Confirmation.
The definition of “Tender Offer” in Section 12.1(d) of the 2002 Definitions is hereby amended by replacing “10%”
with “20%.” |
|
Non-Reliance: |
Applicable |
|
Agreement
and Acknowledgements Regarding Hedging Activities: |
Applicable |
|
|
|
|
Additional
Acknowledgements: |
Applicable |
Account Details:
|
Payments
to Party A: |
To
be advised under separate cover or telephone confirmed prior to each Settlement Date. |
|
Payments
to Party B: |
To
be advised under separate cover or telephone confirmed prior to each Settlement Date. |
|
Delivery
of Shares to Party A: |
To
be advised. |
|
Delivery
of Shares to Party B: |
To
be advised. |
Conditions
to Effectiveness:
This Transaction shall be effective
only if and to the extent that the following conditions are satisfied (or waived by Party A): (a) Shares are sold by the Agent on
or after the Trade Date and on or before the Hedge Completion Date pursuant to the Sales Agreement; (b) the representations and
warranties of Party B contained in the Sales Agreement and any certificate delivered pursuant thereto by Party B or any subsidiary of
Party B are true and correct as of the Trade Date; (c) Party B has performed all of the obligations required to be performed by
it under the Sales Agreement on or prior to the Trade Date; (d) all of the conditions set forth in Section 5 of the Sales Agreement
have been satisfied on or prior to the Trade Date; (e) except as set forth in the second following sentence, the condition that
the Sales Agreement has not been terminated prior to the Hedge Completion Date; and (f) the condition, as determined by Party A
in good faith and in a commercially reasonable manner, that neither of the following has occurred (A) Party A (or its affiliate)
is unable to borrow and deliver for sale the Base Amount on or prior to the Hedge Completion Date, or (B) either it would be impractical
for Party A to borrow and deliver the Base Amount on or prior to the Hedge Completion Date or Party A (or its affiliate) would incur
a Stock Loan Fee greater than [•]8 basis points per annum to do so. If the Sales Agreement is terminated prior to any
sale of Shares in connection with the Transaction thereunder, the parties shall have no further obligations in connection with this Transaction,
other than in respect of breaches of representations or covenants on or prior to such date. For the avoidance of doubt, if the Sales
Agreement is terminated prior to the Hedge Completion Date, this Confirmation shall remain in effect with respect to any Shares that
had been sold by the Agent on or after the Trade Date and prior to such termination.
8 |
Insert
maximum Stock Loan Fee specified by Party B in the Forward Instruction Notice. |
Interpretive
Letter:
The parties intend for this Confirmation
and each Pricing Supplement to constitute a “Contract” as described in the letter dated October 6, 2003 submitted on
behalf of Goldman, Sachs & Co. to Paula Dubberly of the staff of the Securities and Exchange Commission (the “Staff”)
to which the Staff responded in an interpretive letter dated October 9, 2003 (the “Interpretive Letter”).
Representations,
Warranties and Agreements of Party B: The representations and warranties of Party B set forth in Section 1 of the Sales
Agreement are true and correct as of the Trade Date and each date that sales of “Forward Hedge Shares” (as defined in the
Sales Agreement) in respect of the Transaction hereunder are made under the Sales Agreement. In addition to the representations and warranties
in Section 1 of the Sales Agreement, the Agreement and those contained elsewhere herein, Party B hereby represents and warrants
to, and agrees with, Party A as of the date hereof that:
| (a) | Party
B represents to Party A on the Trade Date and on any date that Party B notifies Party A that
Cash Settlement or Net Share Settlement applies to this Transaction, that (A) Party
B is not aware of any material nonpublic information regarding Party B 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) Party B is neither entering into this Confirmation nor
making any election hereunder 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. |
| (b) | Any
Shares, when issued and delivered in accordance with the terms of the Transaction, will be
duly authorized and validly issued, fully paid and nonassessable, and the issuance thereof
will not be subject to any preemptive or similar rights. |
| (c) | Party
B has reserved and will keep available at all times, free from preemptive rights, out of
its authorized but unissued Shares, solely for the purpose of issuance upon settlement of
the Transaction as herein provided, the maximum number of Shares as shall be issuable at
such time upon settlement of the Transaction as set forth below under the heading “Maximum
Share Delivery”. All Shares so issuable shall, upon such issuance, be accepted for
listing or quotation on the Exchange. |
| (d) | Party
B agrees to provide Party A with written notice (an “Issuer Repurchase Notice”)
prior to executing any repurchase of Shares by Party B or any of its subsidiaries (or entering
into any contract that would require, or give the option to, Party B or any of its subsidiaries,
to purchase or repurchase Shares), whether out of profits or capital or whether the consideration
for such repurchase is cash, securities or otherwise (an “Issuer Repurchase”),
that alone or in the aggregate would result in the Base Amount Percentage (as defined below)
being greater by 0.5% or more than the Base Amount Percentage at the time of the immediately
preceding Issuer Repurchase Notice (or in the case of the first such Issuer Repurchase Notice,
greater than the Base Amount Percentage as of the later of the date hereof or the immediately
preceding Settlement Date for any outstanding Additional Transaction, if any). The “Base
Amount Percentage” as of any day is the fraction (1) the numerator of which
is the aggregate of the Base Amount and each “Base Amount” (as defined in the
applicable Additional Confirmation and any additional Share Forward Transaction or other
equity derivative transaction under any outstanding Additional Transactions and (2) the
denominator of which is the number of Shares outstanding on such day. |
| (e) | 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 Party B of this Confirmation and
the consummation of the 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. |
| (f) | Party
B agrees not to make any Issuer Repurchase if, immediately following such Issuer Repurchase,
the Base Amount Percentage would be equal to or greater than 4.5%. |
| (g) | Party
B is not insolvent, nor will Party B be rendered insolvent as a result of the Transaction. |
| (h) | Neither
Party B nor any of its affiliated purchasers (within the meaning of Rule 10b-18 under
the Exchange Act) shall take any action (including, without limitation, any direct purchases
by Party B or any of its affiliated purchasers or any purchases by a party to a derivative
transaction with Party B or any of its affiliated purchasers), either under this Confirmation,
under an agreement with another party or otherwise, that could reasonably be expected to
cause any purchases of Shares by Party A or any of its affiliates in connection with any
Cash Settlement or Net Share Settlement of the Transaction not to meet the requirements of
the safe harbor provided by Rule 10b-18 under the Exchange Act if such purchases were
made by Party B. |
| (i) | Party
B will not engage in any “distribution” (as defined in Regulation M under the
Exchange Act (“Regulation M”)) that would cause a “restricted period”
(as defined in Regulation M) to occur during any Unwind Period. |
| (j) | Party
B (i) is capable of evaluating investment risks independently, both in general and with
regard to the Transaction; (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 USD 50 million
as of the date hereof. |
| (k) | Party
B acknowledges and agrees that, in each case subject to clause (c) under the caption
“Covenants of Party A” in this Section 3: |
| (i) | during
the term of the Transaction, Party A and its Affiliates may buy or sell Shares or other securities
or buy or sell options or futures contracts or enter into swaps or other derivative securities
in order to establish, adjust or unwind its hedge position with respect to the Transaction; |
| (ii) | Party
A and its Affiliates may also be active in the market for the Shares and Share-linked transactions
other than in connection with hedging activities in relation to the Transaction; |
| (iii) | Party
A shall make its own determination as to whether, when or in what manner any hedging or market
activities in Party B’s securities shall be conducted and shall do so in a manner that
it deems appropriate to hedge its price and market risk with respect to the Forward Price; |
| (iv) | any
market activities of Party A and its Affiliates with respect to the Shares may affect the
market price and volatility of the Shares, as well as the Forward Price, each in a manner
that may be adverse to Party B; and |
| (v) | the
Transaction is a derivatives transaction in which it has granted Party A the right, under
certain circumstances, to receive cash or Shares, as the case may be; Party A may purchase
Shares for its own account at an average price that may be greater than, or less than, the
effective price paid by Party B under the terms of the Transaction. |
| (l) | The
assets of Party B do not constitute “plan assets” under the Employee Retirement
Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated
thereunder or similar law. |
| (m) | Party
B shall, at least one day prior to the first day of any Unwind Period, notify Party A 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 Party
B 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). |
| (n) | During
any Unwind Period, Party B shall (i) notify Party A prior to the opening of trading
in the Shares on any day on which Party B makes, or expects 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 Party B (other than any such
transaction in which the consideration consists solely of cash and there is no valuation
period), (ii) promptly notify Party A following any such announcement that such announcement
has been made, and (iii) promptly deliver to Party A following the making of any such
announcement information indicating (A) Party B’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) Party B’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, Party B shall promptly notify Party A of the earlier to occur of the completion
of such transaction and the completion of the vote by target shareholders. |
| (o) | Party
B 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. |
| (p) | Without
limiting the generality of Section 13.1 of the 2002 Definitions, Party B acknowledges
that Party A is not making any representations or warranties or taking any position or expressing
any view with respect to the treatment of the 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
the Financial Accounting Standards Board’s Liabilities & Equity Project. |
| (q) | Party
B understands that no obligations of Party A to it hereunder will be entitled to the benefit
of deposit insurance and that such obligations will not be guaranteed by any affiliate of
Party A or any governmental agency. |
| (r) | Party
B is not aware of any federal, state or local (including non-U.S. jurisdictions) law, rule,
regulation or regulatory order applicable to the Shares that 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 Party A or its affiliates
owning or holding (however defined) Shares as part of its hedging activities in connection
with the Transaction, other than Sections 13 and 16 under the Exchange Act. |
| (s) | Party
B (i) has such knowledge and experience in financial and business affairs as to be capable
of evaluating the merits and risks of entering into the Transaction, (ii) has consulted
with its own legal, financial, accounting and tax advisors in connection with the Transaction,
and (iii) is entering into the Transaction for a bona fide business purpose. |
| (t) | Ownership
positions held by Party A or any of its affiliates solely in its capacity as a nominee or
fiduciary do not constitute “beneficial ownership”, and neither Party A nor any
of its affiliates shall be deemed or treated as a “person” for purposes of the
Amended and Restated Certification of Incorporation of Party B, as amended (the “Articles”). |
Covenants
of Party B:
Subject to the provisions of “Private
Placement Procedures” below, the parties acknowledge and agree that any Shares delivered by Party B to Party A on any Settlement
Date will be newly issued Shares and when delivered by Party A (or an affiliate of Party A) to securities lenders from whom Party A (or
an affiliate of Party A) borrowed Shares in connection with hedging its exposure to the Transaction will be freely saleable without further
registration or other restrictions under the Securities Act, in the hands of those securities lenders, irrespective of whether such stock
loan is effected by Party A or an affiliate of Party A. Accordingly, subject to the provisions of “Private Placement Procedures”
below, Party B agrees that the Shares that it delivers to Party A on each 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.
Covenants
of Party A:
| (a) | Unless
the provisions set forth below under “Private Placement Procedures” shall be
applicable, Party A shall use any Shares delivered by Party B to Party A on any Settlement
Date to return to securities lenders to close out open Share loans created by Party A or
an affiliate of Party A in the course of Party A’s or such affiliate’s hedging
activities related to Party A’s exposure under this Confirmation. |
| (b) | In
connection with bids and purchases of Shares in connection with any Cash Settlement or Net
Share Settlement of the Transaction, Party A shall use good faith efforts 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 as well as any analogous purchases
occurring on the same day under any Additional Transaction. |
| (c) | Party
A hereby represents and covenants to Party B that it has implemented policies and procedures,
taking into consideration the nature of its business, reasonably designed to ensure that
individuals conducting hedging activity related to any Transaction do not have access to
material non-public information regarding Issuer or the Shares. |
| (d) | Within
one Exchange Business Day of purchasing any Shares in connection with any Cash Settlement
or Net Share Settlement of the Transaction pursuant to the once-a-week block exception set
forth in paragraph (b)(4) of Rule 10b-18, Party A shall notify Party B of the total
number of Shares so purchased. |
Insolvency
Filing:
Notwithstanding anything to the contrary
herein, in the Agreement or in the 2002 Definitions, upon any Insolvency Filing in respect of the Issuer, the 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 Confirmation prior to the date of such Insolvency Filing).
Extraordinary
Dividends:
If an ex-dividend date for an Extraordinary
Dividend occurs on or after the Trade Date and on or prior to the Maturity Date (or, if later, the last date on which Shares are delivered
by Party B to Party A in settlement of the Transaction), Party B shall pay an amount, as determined by the Calculation Agent, in cash
equal to the product of such Extraordinary Dividend and the Base Amount to Party A on the earlier of (i) the date on which such
Extraordinary Dividend is paid by the Issuer to holders of record of the Shares or (ii) the Maturity Date. “Extraordinary
Dividend” means the per Share amount of any cash dividend or distribution declared by Party B with respect to the Shares that
is specified by the board of trustees of the Issuer as an “extraordinary” dividend.
Acceleration
Events:
The
following events shall each constitute an “Acceleration Event”:
| (a) | Stock
Borrow Events. In the good faith, commercially reasonable judgment of Party A (i) Party
A (or its affiliate) is unable to hedge Party A’s exposure to the Transaction because
of the lack of sufficient Shares being made available for Share borrowing by lenders, or
(ii) Party A (or its affiliate) would incur a Stock Loan Fee to borrow a number of Shares
equal to the Base Amount of more than a rate of [•]9
basis points per annum (each, a “Stock Borrow Event”); |
| (b) | Dividends
and Other Distributions. On any day occurring after the Trade Date Party B declares a
distribution, issue or dividend to existing holders of the Shares of (i) 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 clause (b) only) to but
excluding the next subsequent Forward Price Reduction Date exceed, on a per Share basis,
the Forward Price Reduction Amount set forth opposite the first date of any such period on
Schedule I (such cash dividend, an “Excess Dividend”), (ii) share
capital or securities of another issuer acquired or owned (directly or indirectly) by Party
B as a result of a spin-off or other similar transaction or any other type of securities
(other than Shares), rights or warrants or other assets, for payment (cash or other consideration)
at less than the prevailing market price as determined by Party A; for the avoidance of doubt,
any amount calculated pursuant to this “Acceleration Events” Section as
a result of an Excess Dividend shall not be adjusted by the value associated with such Excess
Dividend; |
| (c) | ISDA
Early Termination Date. Party A has the right to designate an Early Termination Date
pursuant to Section 6 of the Agreement, in which case, except as otherwise specified
herein and except as a result of an Event of Default under Section 5(a)(i) of the
Agreement, the provisions of “Termination Settlement” below shall apply in lieu
of the consequences specified in Section 6 of the Agreement; |
9 |
Insert
maximum Stock Loan Fee specified by Party B in the Forward Instruction Notice. |
| (d) | Other
ISDA Events. The announcement of any event (other than a Delisting) that if consummated,
would result in an Extraordinary Event or the occurrence of any Change in Law or a Delisting
(with Party A as Hedging Party); provided that in case of a Delisting, in addition
to the provisions of Section 12.6(a)(iii) of the 2002 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);
and provided further that the definition of “Change in Law”
provided in Section 12.9(a)(ii) of the 2002 Definitions is hereby amended by (i) replacing
the phrase “the interpretation” in the third line thereof with the phrase “,
or public announcement of, the formal or informal interpretation”, (ii) replacing
the parenthetical beginning after the word “regulation” in the second line thereof
the words “(including, for the avoidance of doubt and without limitation, (x) any
tax law or (y) adoption, effectiveness or promulgation of new regulations authorized
or mandated by existing statute)” and (iii) immediately following the word “Transaction”
in clause (X) thereof, adding the phrase “in the manner contemplated by Party
A on the Trade Date”; or |
| (e) | Ownership
Event. In the good faith, commercially reasonable judgment of Party A, on any day, the
Share Amount for such day exceeds the Applicable Share Limit for such day (if any applies). |
For purposes of clause (e) above,
the “Share Amount” as of any day is the number of Shares that Party A and any person whose ownership position would
be aggregated with that of Party A, including any “group” (within the meaning of Section 13 of the Exchange Act) of
which Party A is or may be deemed to be a part (Party A or any such person or group, a “Party A Person”) under any law, rule,
regulation, regulatory order or organizational documents or contracts of Party B (including without limitation Article IX and X
of the Articles) that are, in each case, applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially
owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable
Restriction, as determined by Party A in its reasonable discretion. The “Applicable Share Limit” means a number of
Shares equal to (A) the minimum number of Shares that could reasonably be expected to give rise to reporting or registration obligations
(other than any filing under Section 13 of the Exchange Act and the rules and regulations thereunder, in each case, as in effect
on the Trade Date) or other requirements (including obtaining prior approval from any person or entity) of a Party A Person, or could
result in an adverse effect on a Party A Person, under any Applicable Restriction, as determined by Party A in its good faith, reasonable
discretion (it being understood that reporting obligations under Section 13 or Section 16 of the Exchange Act and the rules and
regulations thereunder, in each case, as in effect on the Trade Date, will not be deemed to have such an adverse effect), minus (B) 1%
of the number of Shares outstanding.
Termination
Settlement:
Upon the occurrence of any Acceleration
Event, Party A 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 Party A shall not exceed
the number of Shares necessary to reduce the Share Amount to the Applicable Share 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 Party A shall not exceed the number of Shares
as to which such Stock Borrow Event exists. If, upon designation of a Termination Settlement Date by Party A pursuant to the preceding
sentence, Party B 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 the Transaction, it shall be an Event of Default with respect to Party B 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 Party B, Cash Settlement or Net Share Settlement shall apply to the portion of the Settlement Shares
relating to such Unwind Period as to which Party A has unwound its commercially reasonable 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 Party A in respect
of such Termination Settlement Date. If an Acceleration Event occurs after Party B has designated a Settlement Date to which Physical
Settlement applies but before the relevant Settlement Shares have been delivered to Party A, then Party A 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. If
Party A designates a Termination Settlement Date as a result of an Acceleration Event caused by an Excess Dividend of the type described
in paragraph “(b) Dividends and Other Distributions” under the heading “Acceleration Events,” no adjustment(s) shall
be made to account for the amount of such Excess Dividend.
Private
Placement Procedures:
If Party B is unable to comply with
the provisions of “Covenants of Party B” above because of a change in law or a change in the policy of the Securities and
Exchange Commission or its staff, a failure by Party A to comply with the provisions of the Interpretive Letter or a breach by Party
A of a covenant set forth under “Covenants of Party A” above, or if Party A otherwise reasonably determines, based upon advice
of counsel, that any Settlement Shares to be delivered to Party A by Party B may not be freely returned by Party A or its affiliates
to securities lenders as described under “Covenants of Party B” above, then delivery of any such Settlement Shares (the “Restricted
Shares”) shall be effected pursuant to Annex A hereto, unless waived by Party A.
Rule 10b5-1:
It is the intent of Party A and Party
B that following any election of Cash Settlement or Net Share Settlement by Party B, the purchase of Shares by Party A during any Unwind
Period comply with the requirements of Rule 10b5-1(c)(1)(i)(B) of the Exchange Act and that this Confirmation shall be interpreted
to comply with the requirements of Rule 10b5-1(c).
Party B acknowledges that (i) during
any Unwind Period Party B does not have, and shall not attempt to exercise, any influence over how, when or whether to effect purchases
of Shares by Party A (or its agent or affiliate) in connection with this Confirmation and (ii) Party B is entering into the Agreement
and this 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.
Party B hereby agrees with Party A
that during any Unwind Period, Party B shall not communicate, directly or indirectly, any Material Non-Public Information (as defined
herein) to any Derivatives Personnel (as defined below). For purposes of the Transaction, “Material Non-Public Information”
means information relating to Party B or the Shares that (a) has not been widely disseminated by wire service, in one or more newspapers
of general circulation, by communication from Party B to its shareholders or in a press release, or contained in a public filing made
by Party B with the Securities and Exchange Commission or otherwise disseminated in a manner constituting “public disclosure”
within the meaning of Regulation FD under the Exchange Act and (b) a reasonable investor might consider to be of importance in making
an investment decision to buy, sell or hold Shares. For the avoidance of doubt and solely by way of illustration, information should
be presumed “material” if it relates to such matters as dividend increases or decreases, earnings estimates, changes in previously
released earnings estimates, significant expansion or curtailment of operations, a significant increase or decline of orders, significant
merger or acquisition proposals or agreements, significant new products or discoveries, extraordinary borrowing, major litigation, liquidity
problems, extraordinary management developments, purchase or sale of substantial assets, or other similar information. For purposes of
the Transaction, “Derivatives Personnel” means any employee on the trading side of the Equity Derivatives Group of Party
A and does not include [•] or [•] (or any other person or persons designated from time to time by the Compliance Group of Party
A).
Maximum
Share Delivery:
Notwithstanding any other provision
of this Confirmation, in no event will Party B be required to deliver on any Settlement Date, whether pursuant to Physical Settlement,
Net Share Settlement, Termination Settlement or any Private Placement Settlement, more than a number of Shares equal to twice the Initial
Base Amount to Party A, subject to reduction by the amount of any Shares delivered by Party B on any prior Settlement Date and subject
to adjustment from time to time in accordance with the provisions of this Confirmation and the 2002 Definitions but solely with respect
to adjustments arising from events caused by Party B or under the control of Party B.
Transfer
and Assignment:
Notwithstanding anything to the contrary
herein or in the Agreement, Party A may assign or transfer any of its rights or delegate any of its duties hereunder to (i) any
affiliate of Party A, whose obligations hereunder and under the Agreement are fully and unconditionally guaranteed by [•] or (ii) any
affiliate of Party A with a long-term issuer rating equal to or better than the credit rating of Party A at the time of such assignment
or transfer; provided that (A) Party B will neither (x) be required to pay an additional amount in respect of an Indemnifiable
Tax under Section 2(d)(i)(4) of the Agreement under the law as of the date of the transfer or assignment, nor (y) receive
a payment from which an amount has been deducted or withheld for or on account of any Tax in respect of which the other party is not
required to pay an additional amount, in either case, as a result of such transfer or assignment and (B) no Event of Default or
Potential Event of Default shall (x) have occurred with respect to Party A or (y) occur with respect to either party solely
as a result of such transfer and assignment.
Designation
by Party A
Notwithstanding any other provision
in this Confirmation or Agreement to the contrary requiring or allowing Party A to purchase, sell, receive or deliver any Shares or other
securities to or from Party B, Party A (the “Designator”) may designate any of its Affiliates (the “Designee”)
to deliver or take delivery, as the case may be, and otherwise perform its obligations to deliver, if any, or take delivery of, as the
case may be, any such Shares or other securities in respect of the Transaction, and the Designee may assume such obligations, if any.
Such designation shall not relieve the Designator of any of its obligations, if any, hereunder. Notwithstanding the previous sentence,
if the Designee shall have performed the obligations, if any, of the Designator hereunder, then the Designator shall be discharged of
its obligations, if any, to Party B to the extent of such performance.
Party B agrees to indemnify Party
A and its affiliates and their respective directors, officers, agents and controlling parties (Party A 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 Party B in this Confirmation or the Agreement and will reimburse any Indemnified Party for all reasonable expenses
(including reasonable legal fees and 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,
but only to the extent that the relevant loss, claim, damage, liability or expense is found in a final and nonappealable judgment by
a court of competent jurisdiction to have resulted from such breach. Party B will not be liable under this Indemnity paragraph to the
extent that any loss, claim, damage, liability or expense is found in a final and nonappealable judgment by a court to have resulted
from Party A’s material breach of any covenant or representation made by Party A in this Confirmation or the Agreement or any willful
misconduct, fraud, gross negligence or bad faith of any Indemnified Party. For the avoidance of doubt, any payments due as a result of
this provision may not be used to set off any obligation of Party A upon settlement of the Transaction.
| 4. | The
Agreement is further supplemented by the following provisions: |
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 Party B hereunder
are not secured by any collateral. Obligations under the Transaction shall not be set off against any other obligations of the parties,
whether arising under the Agreement, this Confirmation, under any other agreement between the parties hereto, by operation of law or
otherwise, and no other obligations of the parties shall be set off against obligations under the Transaction, whether arising under
the Agreement, this Confirmation, under any other agreement between the parties hereto, by operation of law or otherwise, and each party
hereby waives any such right of setoff. In calculating any amounts under Section 6(e) of the Agreement, notwithstanding anything
to the contrary in the Agreement, (a) separate amounts shall be calculated as set forth in such Section 6(e) with respect
to (i) the Transaction and (ii) all other Transactions, and (b) such separate amounts shall be payable pursuant to Section 6(d)(ii) of
the Agreement.
Status
of Claims in Bankruptcy:
Party A acknowledges and agrees that
this confirmation is not intended to convey to Party A rights with respect to the transactions contemplated hereby that are senior to
the claims of common shareholders in any U.S. bankruptcy proceedings of Party B; provided, however, that nothing herein
shall limit or shall be deemed to limit Party A’s right to pursue remedies in the event of a breach by Party B of its obligations
and agreements with respect to this Confirmation and the Agreement; and provided further that nothing herein shall limit or shall
be deemed to limit Party A’s rights in respect of any transaction other than the Transaction.
Limit
on Beneficial Ownership:
Notwithstanding any other provisions
hereof, Party A shall not have an “interest” in (within the meaning of NYSE Rule 312.04(e)) Shares hereunder and Party
A shall not be entitled to take delivery of any Shares deliverable 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 Applicable Share Limit, (ii) the
Section 16 Percentage would exceed 4.9%, (iii) Party A and each person subject to aggregation of Shares with Party A under
Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder (the “Party A 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 [•]10 Shares (the “Threshold Number of Shares”)
or (iv) such acquisition would result in a violation of any restriction on ownership or transfer set forth in the Article IX
or X of the Articles, as amended and supplemented (the “Counterparty Stock Ownership Restrictions”). 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 Applicable Share Limit, (ii) the Section 16 Percentage would exceed 4.9%, (iii) Party A Group
would directly or indirectly so beneficially own in excess of the Threshold Number of Shares or (iv) such delivery would result
in a violation of the Counterparty Stock Ownership Restrictions. If any delivery owed to Party A hereunder is not made, in whole or in
part, as a result of this provision, Party B’s obligation to make such delivery shall not be extinguished and Party B shall make
such delivery as promptly as practicable after, but in no event later than one Exchange Business Day after, Party A gives notice to Party
B that, after such delivery, (i) the Share Amount would not exceed the Applicable Share Limit, (ii) the Section 16 Percentage
would not exceed 4.9%, (iii) Party A Group would not directly or indirectly so beneficially own in excess of the Threshold Number
of Shares and (iv) such delivery would not result in a violation of the Counterparty Stock Ownership Restriction. The “Section 16
Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares
that Party A and any of its affiliates or any other person subject to aggregation with Party A for purposes of the “beneficial
ownership” test under Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13 of
the Exchange Act) of which Party A is or may be deemed to be a part beneficially owns (within the meaning of Section 13 of the Exchange
Act), without duplication, on such day (or, to the extent that for any reason the equivalent calculation under Section 16 of the
Exchange Act and the rules and regulations thereunder results in a higher number, such higher number) and (B) the denominator
of which is the number of Shares outstanding on such day.
10 |
Insert
number equal to 4.9% of the outstanding Shares as of the relevant Trade Date. |
In addition, notwithstanding anything
herein to the contrary, if any delivery owed to Party A hereunder is not made, in whole or in part, as a result of the immediately preceding
paragraph, Party A shall be permitted to make any payment due in respect of such Shares to Party B in two or more tranches that correspond
in amount to the number of Shares delivered by Party B to Party A pursuant to the immediately preceding paragraph.
Wall
Street Transparency and Accountability Act:
In connection with Section 739
of the Wall Street Transparency and Accountability Act of 2010 (the “WSTAA”), the parties hereby agree that neither
the enactment of the WSTAA or any regulation under the WSTAA, nor any requirement under the WSTAA or an amendment made by the WSTAA,
shall limit or otherwise impair either party’s otherwise applicable rights to terminate, renegotiate, modify, amend or supplement
this Confirmation or the Agreement, as applicable, arising from a termination event, force majeure, illegality, increased costs, regulatory
change or similar event under this Confirmation, the 2002 Definitions incorporated herein, or the Agreement (including, but not limited
to, rights arising from any Acceleration Event or Illegality (as defined in the Agreement)).
Miscellaneous:
| (a) | Addresses
for Notices. For the purpose of Section 12(a) of the Agreement: |
Address for notices or communications
to Party A:
[INSERT DEALER NAME AND NOTICE INFORMATION]
Address for notices or communications
to Party B:
Ventas, Inc.
353 N. Clark Street, Suite 3300
Chicago, Illinois 60654
Attn: Son Nguyen, SVP, Capital Markets & Treasury
Telephone: 312.268.4185
Email: son.nguyen@ventasreit.com
| (b) | Waiver
of Right to Trial by Jury. Each party waives, to the fullest extent permitted by applicable
law, any right it may have to a trial by jury in respect of any suit, action or proceeding
relating to this Confirmation. Each party (i) certifies that no representative,
agent or attorney of the other party has represented, expressly or otherwise, that such other
party would not, in the event of such a suit action or proceeding, seek to enforce the foregoing
waiver and (ii) acknowledges that it and the other party have been induced to enter
into this Confirmation by, among other things, the mutual waivers and certifications herein. |
The Office of Party A for the Transaction
is: [•]
The Office of Party B for the Transaction
is: Inapplicable, Party B is not a Multibranch Party
Acknowledgements:
The parties hereto intend for:
| (a) | the
Transaction to be a “securities contract” as defined in Section 741(7) of
Title 11 of the United States Code (the “Bankruptcy Code”), qualifying
for the protections under Section 555 of the Bankruptcy Code; |
| (b) | a
party’s right to liquidate the Transaction and to exercise any other remedies upon
the occurrence of any Event of Default under the Agreement with respect to the other party
to constitute a “contractual right” as defined in the Bankruptcy Code; |
| (c) | Party
A to be a “financial institution” within the meaning of Section 101(22)
of the Bankruptcy Code; and |
| (d) | all
payments for, under or in connection with the Transaction, all payments for the Shares and
the transfer of such Shares to constitute “settlement payments” as defined in
the Bankruptcy Code. |
Severability:
If any term, provision, covenant or
condition of this Confirmation, or the application thereof to any party or circumstance, shall be held to be invalid or unenforceable
in whole or in part for any reason, the remaining terms, provisions, covenants, and conditions hereof shall continue in full force and
effect as if this Confirmation had been executed with the invalid or unenforceable provision eliminated, so long as this Confirmation
as so modified continues to express, without material change, the original intentions of the parties as to the subject matter of this
Confirmation and the deletion of such portion of this Confirmation will not substantially impair the respective benefits or expectations
of parties to the Agreement; provided, however, that this severability provision shall not be applicable if any provision
of Section 2, 5, 6 or 13 of the Agreement (or any definition or provision in Section 14 of the Agreement to the extent that
it relates to, or is used in or in connection with any such Section) shall be so held to be invalid or unenforceable.
Governing
Law/Jurisdiction:
This Confirmation and any claim, controversy
or dispute arising under or related to this Confirmation shall be governed by the laws of the State of New York without reference to
the conflict of laws provisions thereof (other than Title 14 of Article 5 of the General Obligations Law). 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.
Disclosure:
Effective from the date of commencement
of discussions concerning the Transaction, each of Party A and Party B 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 the Transaction and all materials
of any kind (including opinions or other tax analyses) relating to such tax treatment and tax structure.
Commodity
Exchange Act:
Each of Party A and Party B 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”), the Agreement and the 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.
Tax
Matters:
| (a) | For
the purpose of Section 3(f) of the Agreement: |
| (i) | Party
A makes the following representations: |
| (A) | [EACH
DEALER TO PROVIDE.] |
| (ii) | Party
B makes the following representations: |
| (A) | It
is a “U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii) of
the United States Treasury Regulations) for U.S. federal income tax purposes. |
| (B) | It
is a real estate investment trust for U.S. federal income tax purposes and is organized under
the laws of the Delaware, and is an exempt recipient under section 1.6049-4(c)(1)(ii)(J) of
the United States Treasury Regulations. |
| (b) | Withholding
Tax imposed on payments to non-US counterparties under the United States Foreign Account
Tax Compliance Act. “Tax” and “Indemnifiable Tax”, each 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. |
| (c) | HIRE
Act. To the extent that either party to the Agreement with respect to this Transaction
is not an adhering party to the ISDA 2015 Section 871(m) Protocol published by
the International Swaps and Derivatives Association, Inc. on November 2, 2015 and
available at www.isda.org, as may be amended, supplemented, replaced or superseded from time
to time (the “871(m) Protocol”), the parties agree that the provisions
and amendments contained in the Attachment to the 871(m) Protocol are incorporated into
and apply to the Agreement with respect to this Transaction as if set forth in full herein.
The parties further agree that, solely for purposes of applying such provisions and amendments
to the Agreement with respect to this Transaction, references to “each Covered Master
Agreement” in the 871(m) Protocol will be deemed to be references to the Agreement
with respect to this Transaction, and references to the “Implementation Date”
in the 871(m) Protocol will be deemed to be references to the Trade Date of this Transaction.
For greater certainty, if there is any inconsistency between this provision and the provisions
in any other agreement between the parties with respect to this Transaction, this provision
shall prevail unless such other agreement expressly overrides the provision of the Attachment
to the 871(m) Protocol. |
| (d) | Tax
documentation. For the purposes of Sections 4(a)(i) and 4(a)(ii) of the Agreement,
Party A and Party B each agrees to deliver a valid and duly executed U.S. Internal Revenue
Service Form [W-9], or any successor thereto, completely accurately and in a manner
reasonably acceptable to such other party and, in particular, with the “corporation”
or “partnership” box checked on line 3 thereof, (i) on or before the date
of execution of this Confirmation; (ii) promptly upon reasonable demand by such other
party; and (iii) promptly upon learning that any such tax form it previously provided
to such other party has become invalid, inaccurate, obsolete or incorrect. Additionally,
each party shall, promptly upon request by the other party, provide such other tax forms
and documents reasonably requested by such other party. |
U.S.
Stay Regulations:
[The parties agree that the terms
of Section 1 and Section 2 and the related defined terms (together, the “Bilateral Terms”) of the form of
bilateral template entitled “Full-Length Omnibus (for use between U.S. G-SIBs and Corporate Groups)” published by ISDA on
November 2, 2018 (currently available on the 2018 ISDA U.S. Resolution Stay Protocol (the “Protocol”) page at
www.isda.org and, a copy of which is available upon request), the effect of which is to amend the qualified financial contracts between
the parties thereto to conform with the requirements of the QFC Stay Rules, are hereby incorporated into and form a part of this Confirmation,
and for such purposes this Confirmation shall be deemed a “Covered Agreement,” Party A shall be deemed a “Covered Entity”
and Party B shall be deemed a “Counterparty Entity.” In the event that, after the date of this Confirmation, both parties
hereto become adhering parties to the Protocol, the terms of the Protocol will replace the terms of this paragraph. In the event of any
inconsistencies between this Confirmation and the terms of the Protocol or the Bilateral Terms (each, the “QFC Stay Terms”),
as applicable, the QFC Stay Terms will govern. Terms used in this paragraph without definition shall have the meanings assigned to them
under the QFC Stay Rules. For purposes of this paragraph, references to “this Confirmation” include any related credit enhancements
entered into between the parties or provided by one to the other. In addition, the parties agree that the terms of this paragraph shall
be incorporated into any related covered affiliate credit enhancements, with all references to Party A replaced by references to the
covered affiliate support provider.
“QFC Stay Rules”
means the regulations codified at 12 C.F.R. 252.2, 252.81–8, 12 C.F.R. 382.1-7 and 12 C.F.R. 47.1-8, which, subject to limited
exceptions, require an express recognition of the stay-and-transfer powers of the Federal Deposit Insurance Corporation under the Federal
Deposit Insurance Act and the Orderly Liquidation Authority under Title II of the Dodd Frank Wall Street Reform and Consumer Protection
Act and the override of default rights related directly or indirectly to the entry of an affiliate into certain insolvency proceedings
and any restrictions on the transfer of any covered affiliate credit enhancements.]11
Other
Forwards / Dealers:
Party A acknowledges that Party B
has entered or may enter in the future into one or more similar forward transactions for the Shares (each, an “Other Forward”
and collectively, the “Other Forwards”) with one or more dealers, and/or affiliates thereof (each, an “Other
Dealer” and collectively, the “Other Dealers”). Party A and Party B agree that if Party B designates a “Settlement
Date” with respect to one or more Other Forwards for which “Cash Settlement” or “Net Share Settlement”
is applicable, and the resulting “Unwind Period” for such Other Forwards coincides for any period of time with an Unwind
Period for this Transaction (the “Overlap Unwind Period”), Party B shall notify Party A at least one Scheduled Trading
Day prior to the commencement of such Overlap Unwind Period of the first Scheduled Trading Day and length of such Overlap Unwind Period,
and Party A 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 Party A by Party B at least one Scheduled Trading Day prior to such Overlap Unwind Period (which alternating Scheduled
Trading Days, for the avoidance of doubt, may be every other Scheduled Trading Day if there is only one Other Dealer, every third Scheduled
Trading Day if there are two Other Dealers, etc.).
11 |
Include
preferred version of U.S. Stay Regulations for Party A |
[Role of Agent]
[Insert Party A agency or
communications with employees provisions, if any.]
[Party A Boilerplate]
[Insert Party A regulatory
boilerplate provisions, if any.]
[Remainder of page intentionally
left blank]
Please confirm that the foregoing correctly sets
forth the terms of our agreement by signing and returning this Confirmation.
|
Yours faithfully, [DEALER NAME] |
|
|
|
By: |
|
|
Name: |
|
Title: |
Confirmed as of the date first written above:
VENTAS, INC. |
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
|
SCHEDULE I
FORWARD PRICE REDUCTION DATES AND AMOUNTS
Forward
Price Reduction Date12 | |
Forward
Price Reduction Amount13 | |
Trade Date | |
USD | 0.000 | |
[•] | |
USD | [•] | |
[•] | |
USD | [•] | |
[•] | |
USD | [•] | |
[•] | |
USD | [•] | |
[•] | |
USD | [•] | |
12 |
Insert
Forward Price Reduction Dates specified by Party B in the Forward Instruction Notice. |
13 |
Insert
Forward Price Reduction Amounts specified by Party B in the Forward Instruction Notice. |
ANNEX A
PRIVATE PLACEMENT PROCEDURES
| (i) | If Party B delivers the Restricted Shares
pursuant to this clause (i) (a “Private Placement Settlement”), then
delivery of Restricted Shares by Party B shall be effected in customary private placement
procedures with respect to such Restricted Shares reasonably acceptable to Party A; provided that
if, on or before the date that a Private Placement Settlement would occur, Party B 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 Party B to Party A (or
any affiliate designated by Party A) 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 Party A (or any such affiliate of Party A) or Party B 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 Party B 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 Party A, due
diligence rights (for Party A or any designated buyer of the Restricted Shares by Party A),
opinions and certificates, and such other documentation as is customary for private placements
of similar size, all commercially reasonably acceptable to Party A. In the case of a Private
Placement Settlement, Party A shall, in its good faith discretion, adjust the number of Restricted
Shares to be delivered to Party A hereunder and/or the Forward Price in a commercially reasonable
manner to reflect the fact that such Restricted Shares may not be freely returned to securities
lenders by Party A and may only be saleable by Party A at a discount to reflect the lack
of liquidity in Restricted Shares. Notwithstanding the Agreement or this Confirmation, the
date of delivery of such Restricted Shares shall be the Clearance System Business Day following
notice by Party A to Party B 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 Settlement Date or Termination
Settlement Date that would otherwise be applicable. |
| (ii) | If Party B delivers any Restricted Shares
in respect of the Transaction, unless it is advised in writing by outside counsel that any
of the following actions would violate applicable securities laws because of a change in
law or a change in the policy of the Securities and Exchange Commission or its staff occurring
after the Trade Date, Party B agrees that (i) such Shares may be transferred by and
among Party A and its affiliates and (ii) after the minimum “holding period”
within the meaning of Rule 144(d) under the Securities Act has elapsed after the
applicable Settlement Date, Party B 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 Party A (or such affiliate of Party A) to Party B or such transfer agent
of seller’s and broker’s representation letters customarily delivered by Party
A 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 Party A (or such affiliate of Party
A). |
ANNEX B
FORM OF PRICING SUPPLEMENT
[DEALER NAME AND ADDRESS]
Date: [•]
Ventas, Inc.
353 N. Clark Street, Suite 3300
Chicago, Illinois 60654
Attn: Son Nguyen, SVP, Capital Markets & Treasury
Telephone: 312.268.4185
Email: son.nguyen@ventasreit.com
Ladies and Gentlemen:
This Pricing Supplement is
the Pricing Supplement contemplated by the Registered Forward Transaction dated as of [•], 20[•] (the “Confirmation”)
between Ventas, Inc. (“Party B”) and [DEALER NAME] (“Party A”).
For all purposes under the
Confirmation,
| (a) | the Hedge Completion Date is [•]; |
| (b) | the Base Amount shall be [•], subject
to further adjustment in accordance with the terms of the Confirmation; |
| (c) | the Maturity Date shall be [•];
and |
| (d) | the Initial Forward Price shall be USD
[•]. |
|
Very truly yours, [DEALER NAME] |
|
|
|
By: |
|
|
Name: |
|
Title: |
Confirmed as of the date first above written:
VENTAS, INC. |
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
|
Annex III
FORM OF FORWARD
INSTRUCTION NOTICE
From: Ventas, Inc.
To: [Forward Purchaser; Forward Seller]
Subject: Forward Instruction Notice
Ladies and Gentlemen:
Reference is made to the ATM Sales Agreement,
dated September 18, 2024 (the “Sales Agreement”), by and among the Company, the Agents and the Forward Purchasers.
Capitalized terms used but not otherwise defined herein have the meanings set forth in the Sales Agreement or the Form of Registered
Forward Confirmation set forth in Annex II (the “Form Confirmation”) to the Sales Agreement.
The Company desires to enter into a Forward,
including a related Confirmation substantially consistent with the Form Confirmation, in each case on the following terms:
Forward Hedge
Selling Period*: |
|
[·]-[·] |
|
|
Designated Forward Hedge
Shares*: |
|
[·] |
|
|
Aggregate Maximum Forward
Hedge Amount*: |
|
$[·] |
|
|
Minimum Price per Share*: |
|
$[·] |
|
|
Forward Seller Commission: |
|
[·]% |
|
|
Spread: |
|
[·]% |
|
|
Initial Stock Loan Fee: |
|
[·]% |
|
|
Maximum Stock Loan Fee: |
|
[·]% |
|
|
Maturity Date: |
|
[·],
20[·] |
|
|
Forward Price Reduction
Dates / Amounts ($): |
|
[·],
20[·] / $[·]
[·], 20[·]
/ $[·]
[·], 20[·]
/ $[·]
[·], 20[·]
/ $[·] |
|
|
Termination Threshold: |
|
[·]% |
|
|
|
Other Deviations from Form Confirmation: |
|
[·] |
|
|
|
* |
Adjustable by the Company during the Forward Hedge
Selling Period. |
|
Very truly yours, |
|
|
|
VENTAS, INC. |
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
Exhibit 5.1
and 23.1
|
|
Davis Polk &
Wardwell llp
450 Lexington Avenue
New York, NY 10017
davispolk.com |
|
September 18,
2024
Ventas, Inc.
353 N. Clark Street, Suite 3300
Chicago, Illinois 60654
Ladies and Gentlemen:
Ventas, Inc.,
a Delaware corporation (the “Company”), has filed with the Securities and Exchange Commission a Registration Statement
on Form S-3 (File No. 333-277185) (the “Registration
Statement”) for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”),
certain securities, including up to $2,000,000,000 aggregate gross sales price of the Company’s common stock, par value $0.25 per
share (the “Securities”) to be sold from time to time pursuant to the ATM Sales Agreement dated September 18,
2024 (the “Sales Agreement”), among the Company and the several sales agents, forward sellers and forward purchasers
named therein.
We, as your counsel, have examined originals or copies of such documents,
corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of
rendering this opinion.
In rendering the opinion expressed herein, we have, without independent
inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents
submitted to us as copies conform to authentic, complete originals, (iii) all signatures on all documents that we reviewed are genuine,
(iv) all natural persons executing documents had and have the legal capacity to do so, (v) all statements in certificates of
public officials and officers of the Company that we reviewed were and are accurate and (vi) all representations made by the Company
as to matters of fact in the documents that we reviewed were and are accurate.
Based upon the foregoing, and assuming the Company’s board of
directors approves the terms of any sale of Securities pursuant to the Sales Agreement (or properly delegates such approval to officers
and such terms are approved by such officers), we advise you that, in our opinion, when the Securities have been issued and delivered
against payment therefor in accordance with the terms of the Sales Agreement, the Securities will be validly issued, fully paid and non-assessable.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to a
report on Form 8-K to be filed by the Company on the date hereof and its incorporation by reference into the Registration Statement
and further consent to the reference to our name under the caption “Legal Matters” in the prospectus supplement, which is
a part of the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act.
Very truly yours,
/s/ Davis Polk & Wardwell
LLP
v3.24.3
Cover
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Sep. 18, 2024 |
Cover [Abstract] |
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Entity File Number |
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Entity Registrant Name |
Ventas, Inc.
|
Entity Central Index Key |
0000740260
|
Entity Tax Identification Number |
61-1055020
|
Entity Incorporation, State or Country Code |
DE
|
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353
N. Clark Street
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Suite
3300
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Chicago
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Ventas (NYSE:VTR)
과거 데이터 주식 차트
부터 9월(9) 2024 으로 10월(10) 2024
Ventas (NYSE:VTR)
과거 데이터 주식 차트
부터 10월(10) 2023 으로 10월(10) 2024