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ITEM 1.01
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ENTRY INTO A MATERIAL
DEFINITIVE AGREEMENT.
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Dealer Manager
Agreement
On
February 24, 2016, Bluerock Residential Growth REIT, Inc., a Maryland corporation, or the Company, and its operating partnership,
Bluerock Residential Holdings, L.P., a Delaware limited partnership, or the Operating Partnership, entered into a Dealer Manager
Agreement, or the Original Dealer Manager Agreement, with Bluerock Capital Markets, LLC, a Delaware limited liability company,
an affiliate of the Company, or the Dealer Manager, whereby the Dealer Manager serves as the Company’s exclusive dealer manager
in connection with the Company’s offering, or the Original Series B Offering, of up to 150,000 shares of Series B redeemable
preferred stock of the Company, or the Series B Preferred Stock, and warrants, or the Warrants, to purchase a maximum of 3,000,000
shares of our Class A common stock, or the Class A Common Stock, on a “best efforts” basis. The Series B Preferred
Stock is registered with the Securities and Exchange Commission, or the SEC, pursuant to a registration statement on Form S-3 (File
No. 333-200359), as the same may be amended and/or supplemented, or the Original Registration Statement, under the Securities Act
of 1933, or the Securities Act. The Series B Preferred Stock had previously been offered and sold pursuant to a prospectus supplement
dated February 24, 2016, and a base prospectus dated December 19, 2014 relating to the Original Registration Statement, or the
Original Base Prospectus, and effective as of July 21, 2017, the Series B Preferred Stock was offered and sold pursuant to a prospectus
supplement dated July 21, 2017, and the Original Base Prospectus relating to the Original Registration Statement. On July 21, 2017,
the Company and the Operating Partnership entered into an Amendment to the Original Dealer Manager Agreement, or the Original DMA
Amendment, with the Dealer Manager to reflect an increase in the size of the Original Series B Offering to a maximum of 225,000
shares of Series B Preferred Stock, and Warrants to purchase a maximum of 4,500,000 shares of our Class A Common Stock. The Original
Registration Statement will expire on December 19, 2017.
On
January 29, 2016, the SEC declared effective the Company’s registration statement on Form S-3 (Registration Statement No.
333-208956), or the Second Registration Statement. On November 15, 2017, the Company filed a prospectus supplement, or the Follow-On
Series B Prospectus Supplement, with the SEC for a follow-on offering to the Original Series B Offering, or the Follow-On Series
B Offering, of up to 435,000 shares of Series B Preferred Stock, and Warrants to purchase a maximum of 8,700,000 shares of Class
A Common Stock, The Series B Preferred Stock to be offered and sold in the Follow-On Series B Offering is registered with the SEC
pursuant to the Second Registration Statement under the Securities Act, and will be offered and sold pursuant to the Follow-On
Series B Prospectus Supplement, and a base prospectus dated January 29, 2016 relating to the Second Registration Statement, or
the Second Base Prospectus. Except as described in the Follow-On Series B Prospectus Supplement, the terms of the Follow-On Series
B Prospectus Supplement are substantially similar to the terms of the Original Series B Offering.
On
November 15, 2017, in connection with the Follow-On Series B Offering, the Company and the Operating Partnership entered into a
new Dealer Manager Agreement, or the Dealer Manager Agreement, with the Dealer Manager, whereby the Dealer Manager will continue
to serve as the Company’s exclusive dealer manager in connection with the Follow-On Series B Offering, on a “best efforts”
basis. The Series B Preferred Stock and the Warrants will continue to be sold in units, or Units, with each Unit consisting of
(i) one share of Series B Preferred Stock, and (ii) one Warrant to purchase 20 shares of our Class A common stock. The Follow-On
Series B Offering is hereinafter referred to as the Offering, and the Second Registration Statement is hereinafter referred to
as the Registration Statement.
Under
the Dealer Manager Agreement, the Dealer Manager will provide certain sales, promotional and marketing services to the Company in
connection with the Offering, and the Company will pay the Dealer Manager (i) selling commissions of 7.0% of the gross proceeds
from sales of Series B Preferred Stock in the Offering, or Selling Commissions; provided,
that
if the Dealer Manager enters into an agreement with a participating broker-dealer providing for a maximum selling commission of
less than 7.0%, then the offering price per share of Series B Preferred Stock sold through such participating broker-dealer shall
be reduced by an amount equal to the reduction in selling commission paid to such participating broker-dealer
; and (ii)
a dealer manager fee of 3.0% of the gross proceeds from sales of Series B Preferred Stock in the Offering, or the Dealer
Manager Fee. It is anticipated that substantially all of the Selling Commissions and the Dealer Manager Fee will be reallowed
by the Dealer Manager to participating broker-dealers and/or applied by the Dealer Manager in support of the Offering.
The terms of the Dealer Manager Agreement were
approved by the Company’s board of directors, including all of its independent directors.
Pursuant to the Dealer
Manager Agreement, the Company has agreed to indemnify the Dealer Manager and participating broker-dealers, and the Dealer
Manager has agreed to indemnify the Company, against certain losses, claims, damages and liabilities, including but not limited
to those arising out of (i) untrue statements of a material fact contained in the Registration Statement, prospectus or
any supplement thereto, or blue sky applications relating to the Offering, or (ii) the omission or alleged omission to
state a material fact required to be stated in the Registration Statement, prospectus or any supplement thereto, or blue sky
applications relating to the Offering.
The
foregoing description of the Dealer Manager Agreement is a summary and is qualified in its entirety by the terms
of the Dealer Manager Agreement, a copy of which is filed as Exhibit No. 10.1 to this Current Report on Form 8-K
and incorporated by reference into this Item 1.01. A copy of the opinion of Venable LLP relating to the legality of the
issuance and sale of the Series B Preferred Stock is attached as Exhibit 5.1 hereto, and a copy of the opinion of Vinson
& Elkins LLP with respect to tax matters concerning the Series B Preferred Stock is attached as Exhibit 8.1 hereto.
Warrant Agreement
On
November 3, 2016, the Company terminated American Stock Transfer & Trust Company, LLC as agent for the Company in respect
of the Warrants under that certain Warrant Agreement dated February 24, 2016 (the “Initial Warrant Agreement”) in
accordance with the terms thereof. On November 3, 2016, the Company entered into an amended and restated warrant agreement on
substantially the same terms as the Initial Warrant Agreement, or the Second Warrant Agreement, with Computershare Inc., a Delaware
corporation, or Computershare, and its wholly-owned subsidiary, Computershare Trust Company N.A., a federally chartered trust
company, or the Warrant Agent, as agent for the Company in respect of the Warrants, which governs the Warrants issued in the Original
Offering. On July 21, 2017, the Company entered into an Amendment to the Second Warrant Agreement, or the Second Warrant Agreement
Amendment, with the Warrant Agent to reflect the increase in the size of the Original Offering to a maximum of 225,000 shares
of Series B Preferred Stock, and Warrants to purchase a maximum of 4,500,000 shares of Class A Common Stock
On November 15, 2017, in connection with the
Offering, the Company entered into a new warrant agreement, or the Warrant Agreement, with the Warrant Agent, as agent for the
Company in respect of the Warrants, which governs the Warrants to be issued in the Offering. The Warrants will be issued either
in certificated form or by “book-entry” form, in either case to The Depository Trust Company, or DTC, and delivered
by one or more global warrant certificates, the form of which is attached as an exhibit to the Warrant Agreement. Those investors
who will own beneficial interests in a global warrant certificate will do so through participants in DTC’s system, and the
rights of these indirect owners will be governed by the applicable procedures of DTC and its participants, and the Warrant Agreement.
The Warrant Agent does not have a material relationship with the Company.
Holders of Warrants
may exercise the Warrants at any time beginning one year from the date of issuance and ending at 5:00 p.m., New York City time,
on the fourth anniversary of the date of issuance. The Warrants are exercisable, at the option of each holder, in whole, but not
in part, by delivering to the Warrant Agent a duly executed exercise notice accompanied by payment in full for the number of shares
of Class A Common Stock purchased upon such exercise (except in the case of a cashless exercise in the circumstances discussed
below). Each Warrant is exercisable for 20 shares of Class A Common Stock (subject to adjustment, as discussed below). The holder
of Warrants does not have the right to exercise any portion of a Warrant if the holder would beneficially own in excess of 9.8%
of the number of shares of Class A Common Stock outstanding immediately after giving effect to such exercise.
The holder may satisfy
its obligation to pay the exercise price upon the exercise of its Warrant on a cashless basis in accordance with the terms of the
Warrant Agreement. When exercised on a cashless basis, a portion of the Warrant is cancelled in payment of the purchase price payable
in respect of the number of shares of Class A Common Stock purchasable upon such exercise. Any Warrant that is outstanding on the
termination date of the Warrant shall be automatically terminated.
The exercise price
of the Class A Common Stock purchasable upon exercise of the Warrants equals
a 20% premium
to the current market price per share of Class A Common Stock on the date of issuance of such Warrant, subject to a minimum exercise
price of $10.00 per share. The current market price will be determined using the volume weighted average price per share of our
Class A Common Stock for the 20 trading days immediately prior to the date of the issuance of the Warrant.
The exercise
price and the number of shares of Class A Common Stock issuable upon exercise of the Warrants is subject to appropriate adjustment
in relation to certain events, such as stock dividends, stock splits, stock combinations, reclassifications, recapitalizations
or similar events affecting the Class A Common Stock.
Subject to applicable
law, the Warrants may be transferred at the option of the holder upon surrender of the Warrants with the appropriate instruments
of transfer. The registration of the transfer of Warrants or beneficial interests shall be effected through DTC in accordance with
the Warrant Agreement and the procedures and requirements of DTC.
The Class A Common
Stock is listed on the NYSE American (formerly the NYSE MKT). The Warrants are not listed on the NYSE American, nor does the Company
plan on making an application to list the Warrants on the NYSE American, any national securities exchange or other nationally recognized
trading system.
Except as otherwise
provided by the Warrants or by virtue of such holder’s ownership of shares of Class A Common Stock, the holders of the Warrants
will not have the rights or privileges of holders of Class A Common Stock, including any voting rights, until they exercise their
Warrants.
No fractional shares
of Class A Common Stock will be issued upon the exercise of the Warrants. Rather, the Company shall, at its election, either pay
a cash adjustment in respect of such fraction in an amount equal to such fraction multiplied by the exercise price or round the
number of shares of Class A Common Stock to be issued or distributed to the nearest whole share (up or down).
The Warrant Agreement
contains customary representations, warranties, and agreements by the Company, customary conditions, other obligations of the parties
and indemnification obligations of the Company.
The
terms of the
Warrant Agreement
were approved by the Company’s
board of directors, including all of its independent directors.
The
foregoing description of the
Warrant
Agreement is a summary and
is qualified in its entirety by the terms of
Warrant Agreement,
a
copy of which is filed as Exhibit No. 10.2 to this Current Report on Form 8-K and incorporated by reference into this Item 1.01.
Ninth Amendment to the Second Amended
and Restated Agreement of Limited Partnership of the Operating Partnership
On November 15, 2017, in
connection with the Offering, the Company entered into a Ninth Amendment to the Second Amended and Restated Agreement of Limited
Partnership, or the Ninth Amendment, of its Operating Partnership. The Ninth Amendment provides for the designation of a total
of 725,000 authorized Series B Redeemable Preferred Units
of the Operating Partnership, or
the Series B Preferred Units, while all other terms and conditions of the
Second Amended and Restated Agreement of Limited
Partnership remain in full force and effect. The Series B Preferred Units will have substantially similar rights and preferences
as the Series B Preferred Stock, as described below in Item 3.03.
The foregoing description
of the Ninth Amendment is a summary and is qualified in its entirety by the terms of the Ninth Amendment, a copy of which is filed
as Exhibit No. 10.3 to this Current Report on Form 8-K and incorporated by reference into this Item 1.01.