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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 5, 2024
AVALONBAY
COMMUNITIES, INC.
(Exact name of registrant as specified
in its charter)
|
Maryland
(State or other jurisdiction of incorporation
or
organization) |
1-12672
(Commission
File Number) |
77-0404318
(I.R.S. Employer
Identification No.) |
4040 Wilson Blvd., Suite 1000
Arlington, Virginia 22203
(Address of principal executive offices)(Zip
code)
(703)
329-6300
(Registrant’s telephone number,
including area code)
(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 |
|
Name of each exchange on which
registered |
| Common Stock, par value $0.01 per share |
|
AVB |
|
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. ¨
Item 8.01 Other Events.
On
September 5, 2024, AvalonBay Communities, Inc. (the “Company”) entered into an underwriting agreement (the
“Underwriting Agreement”) with Goldman Sachs & Co. LLC, BofA Securities, Inc., Deutsche Bank
Securities Inc. and Morgan Stanley & Co. LLC, in their capacities as underwriters (together, in such capacities, the “Underwriters”),
Goldman Sachs & Co. LLC, BofA Securities, Inc., Deutsche Bank Securities Inc. and Morgan Stanley & Co. LLC, in
their capacities as forward sellers (together, in such capacities, the “Forward Sellers”), and Goldman Sachs &
Co. LLC, Bank of America, N.A., Deutsche Bank AG, London Branch and Morgan Stanley & Co. LLC, in their capacities as forward
purchasers (together, in such capacities, the “Forward Purchasers”), relating to the offer and sale of an aggregate
of 3,200,000 shares of common stock, par value $0.01 per share (“Common Stock”), of the Company by the Forward Sellers
in connection with the forward sale agreements described below. The Company granted the Underwriters an option to purchase up to an additional
480,000 shares of Common Stock (the “Option”), which was exercised by the Underwriters in full on September 6,
2024. The Company will not initially receive any proceeds from the sale of shares of Common Stock by the Forward Sellers.
On September 5,
2024, in connection with the initial offering of 3,200,000 shares, the Company and the Forward Purchasers entered into separate master
confirmation letter agreements and related supplemental confirmation letter agreements (“Forward Sale Agreements”)
and on September 6, 2024, in connection with the exercise in full of the Option, the Company and the Forward Purchasers entered into
additional Forward Sale Agreements. At the Company’s request, the Forward Sellers borrowed from third parties and sold to the Underwriters
an aggregate of 3,680,000 shares of Common Stock in connection with the execution of the Forward Sale Agreements. The Company expects
to physically settle the Forward Sale Agreements and receive proceeds, subject to certain adjustments, from the sale of those shares of
Common Stock upon one or more such physical settlements no later than December 31, 2025. Although the Company expects to settle the
Forward Sale Agreements entirely by the physical delivery of shares of Common Stock for cash proceeds, the Company may also elect to cash
settle or net share settle all or a portion of its obligations under the Forward Sale Agreements, in which case, the Company may not receive
any proceeds, and the Company may owe cash or shares of Common Stock to the Forward Purchasers.
The Forward Sale Agreements
provide for an initial forward price of $219.73 per share, subject to certain adjustments pursuant to the terms of each of the Forward
Sale Agreements. The Forward Sale Agreements are subject to early termination or settlement under certain circumstances.
The Company intends to
use the net proceeds it receives from the offering for identified and prospective land acquisitions, the development and redevelopment
of apartment communities, the acquisition of communities, funding its structured investment program investments, and working capital and
general corporate purposes. General corporate purposes may include the repayment of outstanding indebtedness, including borrowings under
the Company’s commercial paper program or its $2,250,000,000 revolving variable rate unsecured credit facility, and the repayment
and refinancing of other indebtedness. Pending the application of such net proceeds, the Company may temporarily invest all or a portion
of the net proceeds from this offering in cash or cash equivalents and/or hold such proceeds in accordance with its internal liquidity
policy.
The shares were offered
and sold pursuant to the Company’s effective shelf registration statement on Form S-3 (Registration No. 333-277313), which
became effective upon filing with the Securities and Exchange Commission on February 23, 2024, and a prospectus supplement dated
September 5, 2024.
On September 9, 2024, the Company closed
the offering, which included the Underwriters’ full exercise of the Option. The foregoing description of the Underwriting Agreement
and the Forward Sale Agreements does not purport to be complete and is qualified in its entirety by reference to the exhibits filed with
this Current Report on Form 8-K. In connection with the filing of the prospectus supplement, the Company is also filing the opinion
of its counsel, Goodwin Procter LLP, as Exhibit 5.1 to this Current Report on Form 8-K.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
| 1.1 | Underwriting
Agreement, dated as of September 5, 2024, by and among AvalonBay Communities, Inc. and Goldman Sachs & Co. LLC,
BofA Securities, Inc., Deutsche Bank Securities Inc. and Morgan Stanley & Co. LLC,
in their capacity as underwriters, Goldman Sachs & Co. LLC, BofA Securities, Inc., Deutsche Bank Securities Inc.
and Morgan Stanley & Co. LLC, in their capacity as forward sellers, and Goldman
Sachs & Co. LLC, Bank of America, N.A., Deutsche Bank AG, London Branch and Morgan Stanley & Co. LLC,
in their capacity as forward purchasers. |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) (filed herewith). |
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be filed on its behalf by the undersigned hereunto duly authorized.
| |
AVALONBAY COMMUNITIES, INC. |
| |
|
|
| Dated: September 9, 2024 |
By: |
/s/ Kevin P. O’Shea |
| |
|
Kevin P. O’Shea |
| |
|
Chief Financial Officer |
EXHIBIT 1.1
AVALONBAY COMMUNITIES, INC.
3,200,000
Shares of Common Stock ($0.01 par value)
Underwriting Agreement
September 5, 2024
Goldman Sachs & Co. LLC
BofA Securities, Inc.
Deutsche Bank Securities Inc.
Morgan Stanley & Co. LLC
c/o Goldman
Sachs & Co. LLC
200 West Street
New York, New York 10282
c/o BofA
Securities, Inc.
One Bryant Park
New York, New York 10036
c/o Deutsche
Bank Securities Inc.
1 Columbus Circle
New York, New York 10019
c/o Morgan
Stanley & Co. LLC
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
AvalonBay
Communities, Inc., a corporation organized under the laws of Maryland (the “Company”), and each of Goldman
Sachs & Co. LLC, BofA Securities, Inc., Deutsche Bank Securities Inc. and Morgan Stanley & Co. LLC in their capacities
as sellers of Borrowed Securities (as defined below) (the “Forward Sellers”), at the Company’s request in connection
with the separate letter agreements, each dated the date hereof, between the Company (each such letter agreement, an “Initial
Forward Sale Agreement” and, together, the “Initial Forward Sale Agreements”) and each of Goldman Sachs &
Co. LLC, BofA Securities, Inc., Deutsche Bank AG, London Branch and Morgan Stanley & Co. LLC (in their capacities as counterparties
under their respective Forward Sale Agreements, the “Forward Purchasers”), relating to the forward sale by the Company,
subject to the Company’s right to elect Cash Settlement or Net Share Settlement (as such terms are defined in such Initial Forward
Sale Agreements), of a number of shares of common stock, par value $0.01 per share, of the Company (“Common Stock”)
equal to the number of Borrowed Securities sold by each of the Forward Sellers pursuant to this Agreement (as defined below), confirm
their respective agreements with Goldman Sachs & Co. LLC, BofA Securities, Inc., Deutsche Bank Securities Inc. and Morgan
Stanley & Co. LLC (collectively, the “Representatives” and each of the several underwriters named in Schedule
A attached hereto, together with the Representatives, collectively, the “Underwriters”) with respect to (i) the
sale by the Forward Sellers (with respect to an aggregate of 3,200,000 shares (the “Borrowed Underwritten Securities”))
of Common Stock and the Company (with respect to any Company Top-Up Underwritten Securities (as defined below)), severally and not jointly,
to the Underwriters, and the purchase by the Underwriters, severally and not jointly, of such Borrowed Underwritten Securities and (ii) the
grant by the Forward Sellers (with respect to an aggregate of up to 480,000 shares (the “Borrowed Option Securities”))
and the Company (with respect to any Company Top-Up Option Securities (as defined herein)), severally and not jointly, of an option to
purchase by the Underwriters, severally and not jointly, such shares, if and to the extent that the Representatives shall have determined
to exercise such option on their behalf. This underwriting agreement is herein referred to as the “Agreement.” The
Borrowed Underwritten Securities and the Company Top-Up Underwritten Securities are herein referred to collectively as the “Underwritten
Securities”). The Company Top-Up Underwritten Securities and the Company Top-Up Option Securities are herein referred to collectively
as the “Top-Up Securities.” The Borrowed Option Securities and the Company Top-Up Option Securities are herein referred
to collectively as the “Option Securities.” The Borrowed Underwritten Securities and the Borrowed Option Securities
are herein referred to collectively as the “Borrowed Securities.” The Underwritten Securities and the Option Securities
are herein referred to collectively as the “Securities.” If only the Representatives are listed on Schedule A
attached hereto, any references to “Underwriters” in this Agreement shall instead mean the Representatives.
As used herein, the term
“subsidiary” means any corporation, limited liability company, partnership, trust, association or other business entity of
which more than 50% of the total voting power of shares of capital stock or other equity interest entitled (without regard
to the occurrence of any contingency) to vote in the election of directors, managers, general partners, trustees or similar positions
thereof is at the time owned or controlled, directly or indirectly, by the Company or one or more of the other subsidiaries of the Company
(or a combination thereof).
The
Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) an automatic
shelf registration statement (File No. 333-277313) on Form S-3, covering the registration of certain securities, including
the Securities, under the Securities Act of 1933, as amended (the “Securities Act”), including the related preliminary
prospectus, which registration statement became effective upon filing under Rule 462(e) (“Rule 462(e)”)
of the rules and regulations of the Commission under the Securities Act. Such registration statement and the prospectus constituting
a part thereof (including in each case the information, if any, deemed pursuant to Rule 430B under the Securities Act to be part
of the registration statement at the time of effectiveness (the “Rule 430 Information”)), is referred to herein
as the “Registration Statement”; and as used herein, the term “Preliminary Prospectus” means any
prospectus relating to the Registration Statement (and any amendments thereto) filed with the Commission pursuant to Rule 424(a) under
the Securities Act and the prospectus included in the Registration Statement at the time of its effectiveness that omits the Rule 430
Information, and the term “Prospectus” means the prospectus in the form first used (or made available upon request
of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Securities. Any reference
in this Agreement to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date
of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be, and any reference to
“amend,” “amendment” or “supplement” with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”),
that are deemed to be incorporated by reference therein. Capitalized terms used but not defined herein shall have the meanings given
to such terms in the Registration Statement and the Prospectus.
At
or prior to 7:00 p.m., New York City time, on September 5, 2024, the time when sales of the Securities were first made (the “Time
of Sale”), the Company had prepared the following information (collectively, the “Time of Sale Prospectus”):
the Preliminary Prospectus dated September 5, 2024, the information agreed to in writing by the Company and the Underwriters as
set forth on Schedule B hereto as the information to be conveyed by the Underwriters to the purchasers of Securities and each
“free-writing prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed on Annex A hereto.
1. Representations
and Warranties. The Company represents and warrants to, and agrees with, each Underwriter, Forward Purchaser and Forward Seller as
set forth below in this Section 1.
(a) Effectiveness
of Registration Statement. The Registration Statement is an “automatic shelf registration statement” that has been
filed with the Commission not earlier than three years prior to the date hereof; and no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose or pursuant to Section 8A of the Securities Act are pending
before or, to the Company’s knowledge, threatened by the Commission. No notice of objection of the Commission to the use of the
Registration Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company.
(b) Compliance
with Securities Act. Each of the Registration Statement and any post-effective amendment thereto, at the time of its effectiveness
and as of each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2), complied or will comply in all
material respects with the requirements of the Securities Act. Each Preliminary Prospectus and the Prospectus and any amendment or supplement
thereto, at the time each was filed with the Commission, complied and will comply in all material respects with the requirements of the
Securities Act. The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration
Statement or any post-effective amendment or the Preliminary Prospectus or the Prospectus or any amendments or supplements thereto made
in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein.
(c) Accurate
Disclosure. Neither the Registration Statement nor any amendment thereto, at its effective time, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein
not misleading. The Time of Sale Prospectus, at the Time of Sale, did not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made,
not misleading. The Prospectus, as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date and
as of any Additional Closing Date (each as hereinafter defined), as the case may be, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The representations and warranties in this subsection shall not apply to statements in or omissions from
the Registration Statement or any amendment thereto or the Time of Sale Prospectus or the Prospectus or any amendment or supplement thereto
made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein.
(d) Issuer
Free Writing Prospectus. Other than (i) the Registration Statement, (ii) the Preliminary Prospectus, (iii) each
free writing prospectus listed on Annex A hereto, (iv) the Prospectus, (v) any electronic road show or (vi) any document
not constituting a prospectus under Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, the
Company (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, used, authorized,
approved or referred to and will not prepare, use, authorize, approve or refer to any “written communication” (as
defined in Rule 405 under the Securities Act) that would constitute an “issuer free writing prospectus” (as defined
in Rule 433 under the Securities Act and referred to herein as an “Issuer Free Writing Prospectus”), unless such
written communication is approved in writing in advance by the Representatives. Each Issuer Free Writing Prospectus complies in all material
respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the
Securities Act (to the extent required thereby) and does not conflict with the information contained in the Registration Statement, the
Time of Sale Prospectus or the Prospectus.
(e) Incorporated
Documents. The documents incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Prospectus,
and any amendment or supplement thereto, when they became or become effective under the Securities Act or were or are filed with the
Commission, as the case may be, conformed or will conform in all material respects to the requirements of the Exchange Act, and none
of such documents contained any untrue statement of a material fact or, taken together, omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents
so filed and incorporated by reference in the Registration Statement, the Prospectus or the Time of Sale Prospectus, when such documents
are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and will not contain any
untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(f) Organization,
Power and Authority of Company. The Company has been duly organized and is validly existing as a corporation in good standing under
the laws of the State of Maryland with the power and authority to conduct all the activities conducted by it, to own or lease all the
assets owned or leased by it and otherwise to conduct its business as described in the Registration Statement, the Time of Sale Prospectus
and the Prospectus. The Company is qualified to do business and in good standing in each jurisdiction in which the nature of the activities
conducted by it or the character of the assets owned or leased by it makes such licensing or qualification necessary, except where any
such failure, considering all such cases in the aggregate, would not reasonably be expected to have a material adverse effect on the
business, properties, business prospects, condition (financial or otherwise) or results of operations of the Company and its subsidiaries,
taken as a whole (a “Material Adverse Effect”).
(g) Organization,
Power and Authority and Capitalization of Subsidiaries. As of the date of this Agreement, the Company does not have any “significant
subsidiaries” (as defined in Rule 12b-2 under the Exchange Act). Each of the Company’s subsidiaries is an entity duly
organized or formed, as the case may be, and, in the case of each such subsidiary that is a corporation, limited partnership or limited
liability company, is validly existing and in good standing (to the extent the concept of good standing exists in such jurisdiction)
under the laws of its respective jurisdiction of organization or incorporation, except where any such failure, considering all such cases
in the aggregate, would not reasonably be expected to have a Material Adverse Effect. Each of the Company’s subsidiaries has full
power and authority to conduct all the activities conducted by it, to own or lease all the assets owned or leased by it and otherwise
to conduct its business as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, except where any
such failure, considering all such cases in the aggregate, would not reasonably be expected have a Material Adverse Effect. Each of the
Company’s subsidiaries is qualified to do business in good standing (to the extent the concept of good standing exists in such
jurisdiction) as a corporation, limited partnership or limited liability company, as the case may be, in all jurisdictions in which the
nature of the activities conducted by it or the character of the assets owned or leased by it makes such licensing or qualification necessary,
except where any such failure, considering all such cases in the aggregate, would not reasonably be expected to have a Material Adverse
Effect. Except for the stock or other interests in the subsidiaries or as disclosed in the Registration Statement, the Time of Sale Prospectus
and the Prospectus, the Company does not own, directly or indirectly, or have any direct or indirect ownership interest in any shares
of stock or any other equity interests of any corporation, association or other entity where such interest is individually material to
the Company. Except as otherwise described in the Registration Statement, the Time of Sale Prospectus or the Prospectus, all of the outstanding
shares of capital stock or other equity interests of each subsidiary of the Company that is a corporation have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of any lien,
charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party (collectively, “Liens”),
except for such ownership by others or Liens that are described in the Registration Statement, the Time of Sale Prospectus and the Prospectus
or except where such Liens would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(h) Capitalization.
The Company’s authorized equity capitalization is as set forth in each of the Registration Statement, the Time of Sale Prospectus
and the Prospectus. The outstanding securities of the Company, including the outstanding shares of common stock, $0.01 par value per
share (the “Common Stock”) and the outstanding shares of each series of preferred stock, have been duly authorized
and are validly issued, fully paid and nonassessable and are owned directly or indirectly by the Company, free and clear of Liens, except
for such ownership by others or Liens that are described in the Registration Statement, the Time of Sale Prospectus and the Prospectus,
or except where such Liens would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(i) Financial
Statements. Except as otherwise stated therein and except, in the case of interim periods, for the notes thereto and normal year-end
adjustment, (i) the consolidated financial statements and the related notes thereto of the Company included or incorporated by reference
in the Registration Statement, the Time of Sale Prospectus and the Prospectus comply in all material respects with the applicable requirements
of the Securities Act and the Exchange Act, as applicable, that would apply to financial statements included in a filing under the Exchange
Act or Securities Act and present fairly in all material respects the consolidated financial position of the Company as of the dates
indicated and the results of operations and the changes in cash flows for the periods specified, (ii) such financial statements
have been prepared in conformity with U.S. generally accepted accounting principles applied on a consistent basis throughout the periods
covered thereby (except as otherwise noted therein), and the supporting schedules included or incorporated by reference in the Registration
Statement, the Time of Sale Prospectus and the Prospectus present fairly in all material respects the information required to be stated
therein, and (iii) the other financial information included or incorporated by reference in the Registration Statement, the Time
of Sale Prospectus and the Prospectus has been derived from the financial statements presented therein and the accounting records of
the Company and presents fairly the information shown thereby. Any interactive data in eXtensible Business Reporting Language incorporated
by reference in the Registration Statement, the Time of Sale Prospectus or 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 in
all material respects. Ernst & Young LLP (the “Accountants”), who has delivered its audit report with respect
to the Company’s consolidated financial statements and schedules, is an independent registered public accounting firm within the
applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and
as required by the Securities Act.
(j) Accounting
Controls. The Company maintains a system of “internal control over financial reporting” (as defined in Rule 13a-15(f) of
the Exchange Act) that complies with the requirements of the Exchange Act. Since the end of the Company’s most recently completed
fiscal year, there has been no change in the Company’s internal control over financial reporting that has materially affected,
or is reasonably likely to materially affect, the Company’s internal control over financial reporting. Except as disclosed in the
Registration Statement, the Time of Sale Prospectus and the Prospectus, since the end of the Company’s most recently completed
fiscal year, the Company is not aware of any material weaknesses in the Company’s internal controls (whether remediated or not).
(k) Securities.
The Securities have been duly authorized by the Company for issuance and sale pursuant to this Agreement and the Forward Sale Agreements;
and when issued and delivered by the Company to the Forward Purchasers against payment of any consideration required to be paid by the
Forward Purchasers pursuant to the terms of the Forward Sale Agreements, the Securities will be validly issued, fully paid and nonassessable
and will not be subject to any preemptive rights or similar rights.
(l) Agreement
and Forward Sale Agreements. The Company has the corporate power and authority to enter into this Agreement and the Initial
Forward Sale Agreements. This Agreement has been duly authorized, executed and delivered by the Company. Each of the Initial Forward
Sale Agreements has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery
by the Forward Sellers, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with
the terms thereof, except to the extent that enforcement thereof may be limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws relating to or affecting creditors’ rights and remedies generally, (ii) general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or law), (iii) the discretion of the court before
which any proceeding therefor may be brought, (iv) requirements that a claim with respect to any Securities payable in a foreign
or composite currency (or a foreign or composite currency judgment in respect of such claim) be converted into U.S. dollars at a rate
of exchange prevailing on a date determined pursuant to applicable law and (v) governmental authority to limit, delay or prohibit
the making of payments outside the United States (collectively, the “Enforceability Limitations”). Prior to any sale
of Borrowed Option Securities, each Additional Forward Sale Agreement (as defined below) will be duly authorized, executed and delivered
by the Company and, assuming due authorization, execution and delivery by the Forward Sellers, will constitute a valid and binding agreement
of the Company, enforceable against the Company in accordance with the terms thereof, except to the extent that enforcement thereof may
be limited by the Enforceability Limitations.
(m) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the Forward Sale Agreements, the issuance
and sale of the Securities and the consummation of the transactions contemplated by this Agreement and the Forward Sale Agreements will
not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, result
in the termination, modification or acceleration of, or result in the creation or imposition of any lien, charge or encumbrance upon
the Current Communities or the Development Communities (each as described in the Time of Sale Prospectus) (collectively, the “Communities”)
or any of the other assets of the Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its subsidiaries is subject, (ii) result in any violation of the
provisions of the charter of the Company, as amended through the date hereof (the “Charter”), or the bylaws of the
Company, as amended through the date hereof (the “Bylaws”), the articles or certificate of incorporation or bylaws
or partnership agreement or operating agreement of any of the Company’s subsidiaries or (iii) result in the violation of any
law or statute or any judgment, order, rule or regulation of any court or other governmental agency or governmental body having
jurisdiction over the Company, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation,
default, lien, charge or encumbrance that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect or would not materially and adversely affect the ability of the Company to perform its obligations under this Agreement and the
Forward Sale Agreements.
(n) No
Material Adverse Change. Except as set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus, subsequent
to the respective dates as of which information is given in the Registration Statement, Time of Sale Prospectus and the Prospectus, (i) there
has not been any material change in the capital stock (other than (v) grants pursuant to employee or director equity compensation,
benefit, stock purchase or equity incentive plans described in the Registration Statement, the Time of Sale Prospectus and the Prospectus,
as such plans may be amended from time to time, (w) the repurchase of shares of Common Stock under the stock repurchase program
described in the Registration Statement, the Time of Sale Prospectus and the Prospectus as such program may be amended from time to time,
(x) the issuance of shares of Common Stock upon the exercise of options or vesting of rights to purchase or acquire shares of Common
Stock outstanding as of the date hereof and described in the Registration Statement, the Time of Sale Prospectus and the Prospectus or
the issuance of shares of Common Stock upon redemption or conversion of units of limited partnership interests, (y) shares of Common
Stock to be issued to certain employees in connection with the deferment of income and (z) the sale of shares or commitment to sell
shares of Common Stock under the Company’s fifth continuous equity program described in the Registration Statement, the Time of
Sale Prospectus and the Prospectus) or long-term debt of the Company or any of its subsidiaries, or any dividend or distribution declared,
set aside for payment, paid or made by the Company on any class of capital stock (other than in the ordinary course of business), or
any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties,
business prospects, condition (financial or otherwise) or results of operations of the Company and its subsidiaries taken as a whole,
(ii) neither the Company nor any of its subsidiaries has entered into any transaction or agreement that is material to the Company
and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company
and its subsidiaries taken as a whole, and (iii) neither the Company nor any of its subsidiaries has sustained any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or
dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, that is material to the Company
and its subsidiaries taken as a whole.
(o) Company
Not an Investment Company. The Company is not an “investment company” or an entity “controlled” by an “investment
company” as such terms are defined in the Investment Company Act of 1940, as amended.
(p) No
Material Actions or Proceedings. Except as set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus,
there is no pending or, to the knowledge of the Company, threatened investigation, action, suit or proceeding against or affecting the
Company or any of its subsidiaries or any of the Communities before or by any federal or state court, commission, regulatory body, administrative
agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding might reasonably be expected
to, individually or in the aggregate, have a Material Adverse Effect, or materially and adversely affect the ability of the Company to
perform its obligations under this Agreement; and there are no statutes or regulations or current, pending or, to the Company’s
knowledge, threatened, legal, governmental or regulatory claims, actions, suits or proceedings that would be required to be described
in the Registration Statement, the Time of Sale Prospectus or the Prospectus that are not so described in the Registration Statement,
the Time of Sale Prospectus and the Prospectus.
(q) Filing
of Contracts. There are no contracts or other documents of a character required to be described in the Registration Statement, the
Time of Sale Prospectus and the Prospectus or to be filed as exhibits to the Registration Statement by the Securities Act that have not
been so described or filed.
(r) Licenses
and Permits. The Company and each of its subsidiaries have all governmental licenses, permits, consents, orders, approvals and other
authorizations, and have made all declarations and filings with the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or required to carry on its business as contemplated
in the Registration Statement, the Time of Sale Prospectus and the Prospectus, except for such licenses, permits, consents, orders, approvals,
other authorizations, declarations and filings the absence of which would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect; and none of them has received any notice of proceedings relating to the revocation or modification
of any such governmental license, permit, consent, order, approval or other authorization or has any reason to believe that any such
governmental license, permit, consent, order, approval or other authorization will not be renewed in the ordinary course which, individually
or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse
Effect, except as set forth in or contemplated in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(s) No
Further Consents Required. No consent, approval, authorization or order of, or filing with, any court or governmental agency or governmental
body is required for the consummation of the transactions contemplated by this Agreement and the Forward Sale Agreements in connection
with the issuance or sale of the Securities by the Company, except (i) such as have been obtained or may be required under the Securities
Act and the Exchange Act or (ii) such consents, approvals, authorizations, orders or filings as may be required under applicable
state securities laws in connection with the sale, purchase or distribution of the Securities by the Underwriters or the absence of which
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or prohibit or prevent the consummation
of the transactions contemplated herein.
(t) Title
to Properties. Except as set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus, the Company or
its subsidiaries, as applicable, has good and marketable title to the Communities, free and clear of all liens or encumbrances, except
such as (i) are Permitted Encumbrances or (ii) would not reasonably be expected, individually or in the aggregate, to have
a Material Adverse Effect. “Permitted Encumbrances” shall mean each of the following: (1) mechanics’, carriers’,
workers’, repairers’, materialmen’s, warehousemen’s and other similar liens and encumbrances for construction
in progress or which have otherwise arisen in the ordinary course of business; (2) liens for taxes not yet delinquent or being contested
in good faith and for which there are adequate reserves on the financial statements of the owner of the applicable property; (3) easements,
zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business
that do not materially detract from the value of the affected property or materially interfere with the ordinary course business of the
Company or any of its subsidiaries; and (4) liens arising under conditional sales contracts and equipment leases with third parties
entered into in the ordinary course of business. Except as is disclosed in the Registration Statement, the Time of Sale Prospectus and
the Prospectus or except as would not, in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each of the
Company and each of its subsidiaries has valid, subsisting and enforceable leases with its tenants for the properties described in the
Registration Statement, the Time of Sale Prospectus and the Prospectus as leased by it, (ii) the Company has no knowledge of any
pending or threatened condemnation that will in any material manner affect the size of, use of, improvements of, construction on, or
access to any of the properties of the Company or its subsidiaries, and (iii) the Company has no knowledge of any pending or threatened
proceeding or action that will in any material manner affect the size of, use of, improvements on, construction on, or access to any
of the properties of the Company or its subsidiaries. To the knowledge of the Company, the use and occupancy of each of the properties
of the Company and its subsidiaries complies with all applicable codes and zoning laws and regulations, except for such failures to comply
that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(u) Mortgages.
Except as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, the mortgages and deeds of trust encumbering
the Communities are not convertible into equity securities and such mortgages and deeds of trust are not cross-defaulted or cross-collateralized
to any property not owned directly or indirectly by the Company, except as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(v) Title
Insurance. Except as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus or as would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse Effect, the Company, directly or indirectly, has obtained title
insurance in favor of the mortgagee, the Company or its subsidiaries with respect to each of the Communities, in such amounts as is prudent
and customary for companies engaged in similar businesses.
(w) No
Price Stabilization or Manipulation. The Company has not taken, directly or indirectly, any action designed to or that might reasonably
be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the
Securities.
(x) No
Labor Disputes. Except as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, no labor dispute
with the employees of the Company or its subsidiaries exists or, to the knowledge of the Company, is threatened, except, in either case,
as would not reasonably be expected to have a Material Adverse Effect.
(y) Compliance
With Environmental Laws. Except in each case as would not, individually or in the aggregate, reasonably be expected to result in
a Material Adverse Effect or as otherwise disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, the
Company and each of its subsidiaries: (i) are in compliance with all applicable foreign, federal, state and local laws and regulations
relating to the protection of the environment, natural resources or human health or safety, or to the manufacture, use, generation, treatment,
storage, disposal, release or threatened release of hazardous or toxic substances, pollutants, contaminants or wastes or the arrangement
for such activities (“Environmental Laws”); (ii) have received or will receive and are in compliance with all
permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and
(iii) have not received written notice of any actual, pending or threatened claim or potential liability under Environmental Laws
in respect of its past or present business, operations (including the disposal of hazardous substances at any off-site location) or facilities
or real property (whether owned, leased or operated) and the Company is not aware of any facts or conditions that could reasonably be
expected to give rise to any such claim or liability.
(z) Insurance.
Except as set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus, the Company and its subsidiaries are
insured (including self-insurance) with policies covering their respective properties, operations, personnel and businesses, which insurance
(other than earthquake insurance) is in such amounts that the Company reasonably deems to be commercially reasonable; and neither the
Company nor any of its subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage, to the extent that such coverage is then available at commercially reasonable
cost, from similar insurers or to provide self-insurance as may be necessary to continue its business. The Company maintains earthquake
insurance on the Communities to the extent described in the Registration Statement, the Time of Sale Prospectus and the Prospectus. The
Company and its subsidiaries are in compliance with the terms of such policies and instruments, except as would not reasonably be expected
to have a Material Adverse Effect.
(aa) REIT
Status. The Company has elected to be taxed as a “real estate investment trust” (“REIT”) under the
Internal Revenue Code of 1986, as amended (the “Code”), and will use its best efforts to continue to be organized
and will continue to operate in a manner so as to qualify as a REIT under Sections 856 through 860 of the Code, unless the Board of Directors
determines that it is no longer in the best interest of the Company to continue to be so qualified.
(bb) Compliance
with ERISA. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each
employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), that is maintained, administered or contributed to by the Company or any of its affiliates for employees
or former employees of the Company and its affiliates has been maintained in all material respects in compliance with its terms and the
requirements of any applicable statutes, orders, rules and regulations, including, but not limited to, ERISA and the Code; (ii) to
the knowledge of the Company, no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the
Code, has occurred with respect to any such plan, excluding transactions effected pursuant to a statutory or administrative exemption;
and (iii) for each such plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA,
no “accumulated funding deficiency” as defined in Section 412 of the Code has been incurred, whether or not waived,
and the fair market value of the assets of each such plan (excluding for these purposes accrued but unpaid contributions) exceeds the
present value of all benefits accrued under such plan determined using reasonable actuarial assumptions.
(cc) Status
under the Securities Act. The Company is not an “ineligible issuer” and is a “well-known seasoned issuer”
in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities Act.
(dd) Title
to Personal Property. The Company and its subsidiaries have good and marketable title to, or have valid rights to lease or otherwise
use, all items of personal property that are material to the respective businesses of the Company and its subsidiaries, in each case
free and clear of all liens, encumbrances, claims and defects and imperfections of title except those that (i) do not materially
interfere with the use made and proposed to be made of such property by the Company and its subsidiaries, (ii) would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse Effect or (iii) are set forth in the Registration Statement,
the Time of Sale Prospectus and the Prospectus.
(ee) Title
to Intellectual Property. The Company and its subsidiaries own or possess rights to use all material trademarks, service marks, trade
names, trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or procedures) (collectively, the “Intellectual Property”)
reasonably necessary for the conduct of their respective businesses as described in the Registration Statement, the Time of Sale Prospectus
and the Prospectus; to the Company’s knowledge, the conduct of the respective businesses of the Company and its subsidiaries as
described in the Registration Statement, the Time of Sale Prospectus and the Prospectus will not conflict in any material respect with
any Intellectual Property rights of others; and the Company and its subsidiaries have not received any notice of any claim of infringement
or conflict with any such rights of others, except in all cases as would not have, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(ff) No
Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company or its subsidiaries, on the one
hand, and the directors, officers or stockholders of the Company or its subsidiaries, on the other, that is required by the Securities
Act to be described in the Registration Statement, the Time of Sale Prospectus and the Prospectus and that is not so described in such
documents.
(gg) Taxes.
The Company and its subsidiaries have filed all federal, state, local and foreign tax returns which have been required to be filed through
the date hereof, or have requested extensions thereof (except in any case in which the failure to so file would not reasonably be expected
to have a Material Adverse Effect or except as set forth in or contemplated in the Registration Statement, the Time of Sale Prospectus
and the Prospectus) and have paid all taxes indicated by such returns to the extent such taxes have become due, except for any such taxes
(i) being contested in good faith or (ii) as would not reasonably be expected to have a Material Adverse Effect or as otherwise
disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(hh) No
Unlawful Contributions. The Company and its subsidiaries have conducted their businesses in material compliance with the Foreign
Corrupt Practices Act of 1977, as amended (the “FCPA”) and the Bribery Act 2010 of the United Kingdom, and neither
the Company nor its subsidiaries nor, to the Company’s knowledge, any director, officer, agent, employee or other person associated
with or acting on behalf of the Company or its subsidiaries has (i) made any payment of funds of the Company or any subsidiary or
received or retained any funds in violation of any law, rule or regulation or of a character required to be disclosed in the Registration
Statement, the Time of Sale Prospectus and the Prospectus which has not been so disclosed, (ii) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (iii) made any direct or indirect
unlawful payment to any foreign or domestic government official or employee from corporate funds, (iv) violated or is in violation
of any provision of the FCPA and the rules and regulations thereunder, including, without limitation, by making use of the mails
or any means or instrumentality of U.S. 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 (v) made any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
(ii) Compliance
with Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, and the money laundering statutes of all jurisdictions where the Company or any of its subsidiaries conducts business and the
rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by
any governmental agency having jurisdiction over the Company or any of its subsidiaries thereunder (collectively, the “Money
Laundering Laws”). The Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder,
or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for
the purpose of violating the Money Laundering Laws.
(jj) Compliance
with Sanctions. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee
or controlled affiliate of the Company or any of its subsidiaries is currently subject to any sanctions administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), the United Nations Security Council, the European
Union, or His Majesty’s Treasury (“Sanctions”); and the Company will not directly or indirectly use the proceeds
of the offering of the Securities hereunder, 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, or in any country or territory that, at
the time of such financing, is the subject of any Sanctions.
(kk) No
Restrictions on Subsidiaries. No subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or
other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution on
such subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary’s properties or assets to the Company or any other subsidiary of the Company, except in all
cases as would not reasonably be expected to have a Material Adverse Effect or except pursuant to the terms of any indebtedness (or pursuant
to the terms of any contemplated indebtedness) of the Company or its subsidiaries set forth in the Registration Statement, the Time of
Sale Prospectus and the Prospectus.
(ll) No
Broker’s Fees. Except as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, neither the
Company nor its subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement and the
Forward Sale Agreements) that would give rise to a valid claim against the Company, its subsidiaries or any Underwriter for a brokerage
commission, finder’s fee or like payment in connection with the offering and sale of the Securities.
(mm) Margin
Rules. Neither the issuance, sale and delivery of the Securities nor the application of the proceeds thereof by the Company as described
in the Registration Statement, the Time of Sale Prospectus and the Prospectus will violate Regulation T, U or X of the Board of Governors
of the Federal Reserve System or any other regulation of such Board of Governors.
(nn) Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act) contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus has been made or reaffirmed without
a reasonable basis or has been disclosed other than in good faith.
(oo) Statistical
and Market Data. Nothing has come to the attention of the Company that has caused the Company to believe that the statistical and
market-related data included in the Registration Statement, the Time of Sale Prospectus and the Prospectus is not based on or derived
from sources that are reliable and accurate in all material respects.
(pp) Sarbanes-Oxley
Act. There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their
capacities as such, to comply in all material respects with any applicable provision of the Sarbanes-Oxley Act of 2002, as amended, and
the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and
906 related to certifications.
(qq) Disclosure
Controls. The Company and its subsidiaries maintain, on a consolidated basis, an effective system of “disclosure controls
and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that complies in all material respects with the requirements
of the Exchange Act and is reasonably designed to ensure that information required to be disclosed by the Company in reports that it
files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s
rules and forms, including, but not limited to, controls and procedures designed to ensure that such information is accumulated
and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure. The Company
and its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15
of the Exchange Act.
(rr) Actively-Traded
Securities. The Common Stock is an “actively-traded security” excepted from the requirements of Rule 101 of Regulation
M under the Exchange Act by Rule 101(c)(1) thereunder.
(ss) Cybersecurity;
Data Protection. The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks,
hardware, software, websites, applications, and databases (collectively, “IT Systems”) are reasonably believed by
the Company to be 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 Company’s knowledge, free and clear of all material
bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants, other than those not reasonably expected to have a Material
Adverse Effect. To the knowledge of the Company, (i) there have been no breaches or violations of (or unauthorized access to) the
Company or its subsidiaries’ IT Systems or any personal, personally identifiable, sensitive, confidential or regulated data (“Personal
Data”) processed or stored by or on behalf of the Company or its subsidiaries, nor are there any pending internal investigations
relating to the same, (ii) the Company and its subsidiaries have implemented and maintained commercially reasonable controls, policies,
procedures and safeguards 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) and (iii) the Company and its subsidiaries are presently
in compliance in all material respects with all applicable laws, statutes and regulations and contractual obligations relating to the
privacy and security of IT Systems and Personal Data, in each case except as disclosed in the Registration Statement, the Time
of Sale Prospectus or the Prospectus or as would not reasonably be expected to have a Material Adverse Effect.
2. Representations
and Warranties by the Forward Sellers. Each of the Forward Sellers, severally and not jointly, represents and warrants to
the Company and each Underwriter that:
(a) This
Agreement has been duly authorized, executed and delivered by such Forward Seller. At the Closing Date and any Additional Closing Date,
as the case may be, such Forward Seller will have full right, power and authority to sell, transfer and deliver the applicable Borrowed
Securities.
(b) The
applicable Initial Forward Sale Agreement between the Company and the applicable Forward Purchaser has been duly authorized, executed
and delivered by such Forward Purchaser and, assuming due authorization, execution and delivery by the Company, constitutes a legal,
valid and binding obligation of the applicable Forward Purchaser, enforceable against such Forward Purchaser in accordance with its terms.
(c) Prior
to any sale of Borrowed Option Securities, the related Additional Forward Sale Agreement between the Company and the related Forward
Purchaser will be duly authorized, executed and delivered by such Forward Purchaser and, assuming due authorization, execution and delivery
by the Company, will constitute a legal, valid and binding obligation of such Forward Purchaser, enforceable against such Forward Purchaser
in accordance with its terms.
(d) Such
Forward Seller shall, at the Closing Date or Additional Closing Date, as the case may be, have the free and unqualified right to transfer
any Borrowed Securities, to the extent that it is required to transfer such Borrowed Securities hereunder, free and clear of any security
interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind; and upon delivery of such Borrowed Securities and
payment of the purchase price therefor as herein contemplated, assuming each of the Underwriters has no notice of any adverse claim,
each of the Underwriters shall have the free and unqualified right to transfer the Borrowed Securities purchased by it from such Forward
Seller, free and clear of any security interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind.
3. Purchase
and Sale.
(a) Subject
to the terms and conditions and in reliance upon the representations and warranties herein set forth, each of the Forward Sellers (with
respect to the Borrowed Underwritten Securities) and the Company (with respect to any Company Top-Up Underwritten Securities), severally
and not jointly, agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees
to purchase from the Forward Sellers (with respect to the Borrowed Underwritten Securities) and the Company (with respect to any Company
Top-Up Underwritten Securities), at a purchase price of $219.73 per share (the “Purchase Price”), the respective number
of Securities set forth opposite such Underwriter’s name in Schedule A attached hereto, plus any additional number of Securities
which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. Each Forward Seller’s
obligations pursuant to this Section 3(a) are several and not joint and extend solely to the respective number of Borrowed
Underwritten Securities specified opposite its name in Schedule A.
(b) In
addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth,
the Forward Sellers (with respect to any Borrowed Option Securities) and the Company (with respect to any Company Top-Up Option Securities),
severally and not jointly, hereby grant an option to the several Underwriters, severally and not jointly, to purchase (i) up to
the number of Borrowed Option Securities set forth in Schedule A (in the case of the Forward Sellers) and (ii) up to the
total number of Company Top-Up Option Securities (in the case of the Company), in each case at the Purchase Price; provided that,
with respect to such Option Securities, the Purchase Price shall be reduced by an amount per share equal to any dividends or distributions
declared by the Company and payable on the Underwritten Securities but not payable on such Option Securities. Each of the Forward Sellers’
obligations extend solely to the number of Borrowed Option Securities specified opposite its name on Schedule A (or such number
increased as set forth in Section 10 hereof).
(i) Within
one business day after notice is given, the Company shall execute and deliver to each of the Forward Purchasers separate additional letter
agreements between the Company and each such Forward Purchaser (each such letter agreement, an “Additional Forward Sale Agreement”
and, together, the “Additional Forward Sale Agreements”) relating to the forward sale by the Company, subject to the
Company’s right to elect Physical Settlement, Cash Settlement or Net Share Settlement (as such terms are defined in such Additional
Forward Sale Agreements), of a number of shares equal to the aggregate number of Borrowed Option Securities being purchased by the Underwriters
from the Forward Sellers pursuant to the exercise of such option, on terms substantially similar to the Initial Forward Sale Agreements
as agreed to by the parties. Upon such execution by the Company and the Forward Purchasers, based upon the warranties and representations
and subject to the terms and conditions herein contained, the Forward Sellers (or, in the case of any Company Top-Up Option Securities,
the Company) hereby agree to sell to the several Underwriters such number of Borrowed Option Securities at the Purchase Price. The Initial
Forward Sale Agreements and the Additional Forward Sale Agreements are herein referred to collectively as the “Forward Sale
Agreements.”
(ii) The
number of Option Securities to be purchased by each Underwriter shall be the number of Option Securities which bears the same ratio to
the aggregate number of Option Securities being purchased as the number of Underwritten Securities set forth opposite the name of such
Underwriter in Schedule A attached hereto (or such number increased as set forth in Section 10 hereof) bears to the aggregate
number of Underwritten Securities purchased from the Forward Sellers (or the Company) by the several Underwriters, subject, however,
to such adjustments to eliminate any fractional shares as the Underwriters in their sole discretion shall make. The option hereby granted
may be exercised through and including the 30th day after the date hereof, and may be exercised in whole or in part from time to time
upon notice by the Underwriters to the Company, the Forward Purchasers and the Forward Sellers setting forth the number of Option Securities
as to which the Underwriters 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 (the “Additional Closing Date”) shall be determined by the Underwriters, but shall
not be later than seven full business days after the exercise of said option, nor in any event prior to the Closing Date.
(c) If
(i) any of the representations and warranties of the Company contained in Section 1 or any certificate delivered by the Company
pursuant hereto is not true and correct as of the date hereof and as of Closing Date or such Additional Closing Date, as the case may
be, as if made as of the Closing Date or such Additional Closing Date, as the case may be, (ii) the Company has not performed all
of the obligations required to be performed by it under this Agreement on or prior to the Closing Date or such Additional Closing Date,
as the case may be, (iii) any of the conditions set forth in Section 7 have not been satisfied on or prior to the Closing Date
or such Additional Closing Date, as the case may be, (iv) this Agreement shall have been terminated pursuant to Section 11
on or prior to the Closing Date or Additional Closing Date, as the case may be, or the Closing Date or such Additional Closing Date,
as the case may be, shall not have occurred, (v) any of the conditions set forth in Section 3 of the Forward Sale Agreements
shall not have been satisfied on or prior to the Closing Date or such Additional Closing Date, as the case may be, or (vi) any of
the representations and warranties of the Company contained in the Forward Sale Agreements are not true and correct as of the date hereof
or as of the Closing Date or as if made as of the Closing Date or such Additional Closing Date, as the case may be (clauses (i) through
(vi), together, the “Conditions”), then the applicable Forward Seller, in its sole discretion, may elect not to borrow
and deliver for sale to the Underwriters the Borrowed Securities otherwise deliverable on such date. In addition, in the event a Forward
Seller determines that (A) it or its affiliate is unable through commercially reasonable efforts to borrow and deliver for sale
a number of Borrowed Securities to be sold and delivered by it hereunder in connection with establishing a commercially reasonable hedge
position or (B) in its commercially reasonable judgment either it is impracticable to do so or it or its affiliate would incur a
stock loan cost of more than a rate equal to 200 basis points per annum with respect to all or any portion of such shares to do so, then,
in each case, such Forward Seller shall only be required to deliver for sale to the Underwriters on the Closing Date or such Additional
Closing Date, as the case may be, the aggregate number of shares of Common Stock that such Forward Seller or its affiliate is able to
so borrow in connection with establishing its commercially reasonable hedge position at or below such cost.
(d) If
any of the Forward Sellers elects, pursuant to Section 3(c), not to borrow and deliver for sale to the Underwriters on the
Closing Date or such Additional Closing Date, as the case may be, the total number of Borrowed Securities to be sold by it hereunder,
such Forward Seller will use its commercially reasonable efforts to notify the Company no later than 8:30 A.M., New York City time, on
the Closing Date or such Additional Closing Date, as the case may be. Notwithstanding anything to the contrary herein, in no event will
the Company be required to issue or deliver the applicable Top-Up Securities prior to the business day following notice to the Company
of the relevant number of Securities so deliverable in accordance with this Section 3(c).
4. Delivery
and Payment.
(a) Delivery
of and payment for the Underwritten Securities shall be made to the Forward Sellers (with respect to the Borrowed Underwritten Securities)
or to the Company (with respect to any Company Top-Up Underwritten Securities) at 9:00 A.M., New York City time, on September 9,
2024, or at such time on such later date not more than one New York business day (two New York business days, if the pricing occurs after
4:30 P.M., New York City time, on any given day) after the foregoing date as the Underwriters shall designate, which date and time may
be postponed by agreement between the Underwriters, the Forward Sellers and the Company or as provided in Section 10 hereof (such
date and time of delivery and payment for the Securities being herein called the “Closing Date”). Delivery of the
Borrowed Underwritten Securities to the Forward Sellers and of the Company Top-Up Underwritten Securities to the Underwriters shall be
made against payment by the Underwriters of the purchase price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Forward Sellers or the Company, as applicable. Delivery of the Underwritten Securities
shall be made through the facilities of The Depository Trust Company (“DTC”) unless the Underwriters or the Forward
Sellers shall otherwise instruct.
(b) If
the option provided for in Section 3(b) hereof is exercised after the business day prior to the Closing Date, delivery
of the Option Securities shall be made to the Underwriters on the date specified by the Underwriters (in accordance with Section 3(b))
for the respective accounts of the several Underwriters. Payment for any Option Securities shall be made by the Underwriters to the Forward
Sellers (with respect to any Borrowed Option Securities) or the Company (with respect to any Company Top-Up Option Securities) by wire
transfer of immediately available funds to bank accounts designated by the Forward Sellers and the Company, as the case may be, against
delivery to the Underwriters for their respective accounts of certificates or security entitlements for the Underwritten Securities to
be purchased by them at 9:00 A.M. (New York City time), on the Additional Closing Date, or such other time not later than seven
business days after such date as shall be agreed upon by the Underwriters, the Forward Sellers or the Company, as applicable, or as otherwise
agreed to by the relevant parties.
Certificates for the Securities,
if any, shall be in such denominations and registered in such names as the Underwriters may request in writing at least one full New
York business day before the Closing Date or Additional Closing Date, as the case may be. The certificates for the Securities, if any,
will be made available for examination and packaging by the Underwriters in The City of New York not later than 9:00 A.M., New York City
time, on the New York business day prior to the Closing Date or Additional Closing Date, as the case may be.
5. Offering
by Underwriters. It is understood that the several Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus and the Time of Sale Prospectus.
6. Agreements.
The Company agrees with the several Underwriters, the Forward Purchasers and the Forward Sellers that:
(a) Required
Filings. The Company will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and
Rule 430B under the Securities Act, will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the
Securities Act; and the Company will file promptly all reports and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities;
and the Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered)
to the Underwriters in New York City prior to 10:00 A.M., New York City time, on the business day next succeeding the date of this Agreement
in such quantities as the Representatives may reasonably request. The Company will pay the registration fees for this offering within
the time period required by Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso therein) and in
any event prior to the Closing Date.
(b) Delivery
of Copies. The Company will deliver, without charge, upon request (i) to the Representatives, two signed copies of the
Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith
and documents incorporated by reference therein; and (ii) to each Underwriter (A) a conformed copy of the Registration Statement
as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and (B) during
the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and supplements thereto
and documents incorporated by reference therein) and each Issuer Free Writing Prospectus as the Representatives may reasonably request.
As used herein, the term “Prospectus Delivery Period” means such period of time after the first date of the public
offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law
to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Securities
by any Underwriter or dealer.
(c) Amendments
or Supplements; Issuer Free Writing Prospectuses. Before preparing, using, authorizing, approving, referring to or filing any
Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus, the Company
will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment
or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus
or file any such proposed amendment or supplement to which the Representatives reasonably object.
(d) Notice
to the Representatives. The Company will advise the Representatives promptly, and confirm such advice in writing, at any time
on or prior to the later of (x) the Prospectus Delivery Period and (y) the Closing Date, (i) when any amendment to the
Registration Statement has been filed or becomes effective; (ii) when any supplement to the Prospectus or any amendment to the Prospectus
or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration
Statement or any other request by the Commission for any additional information; (iv) of the issuance by the Commission of any order
suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus or the Prospectus
or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of
the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, the Time of Sale Prospectus or
any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the
Time of Sale Prospectus or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt
by the Company of any 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) under the Securities Act; and (vii) of the receipt by the Company of any notice with
respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose; and the Company will use its reasonable best efforts to prevent the issuance of any such order suspending
the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or
suspending any such qualification of the Securities and, if any such order is issued, will obtain as soon as possible the withdrawal
thereof.
(e) Time
of Sale Prospectus. If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result
of which any of the Time of Sale Prospectus as then amended or supplemented would 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 or (ii) it is necessary to amend or supplement the Time of Sale Prospectus to comply with law, the Company
will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission
(to the extent required) and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or
supplements to the Time of Sale Prospectus (or any document to be filed with the Commission and incorporated by reference therein) as
may be necessary so that the statements in the Time of Sale Prospectus as so amended or supplemented (including such documents to be
incorporated by reference therein) will not, in the light of the circumstances under which they were made, be misleading or so that any
of the Time of Sale Prospectus will comply with law.
(f) Ongoing
Compliance. If during the Prospectus Delivery Period (i) any event shall occur or condition shall exist as a result of which
the Prospectus as then amended or supplemented would 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 when the Prospectus is delivered to a purchaser,
not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company will immediately notify
the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the
Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Prospectus (or any document
to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in the Prospectus as
so amended or supplemented (including such documents to be incorporated by reference therein) will not, in the light of the circumstances
existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law.
(g) Blue
Sky Compliance. The Company will qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions
as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for distribution
of the Securities; provided that the Company shall not be required to (i) qualify as a foreign corporation or other
entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any
general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it
is not otherwise so subject.
(h) Earnings
Statement. The Company will make generally available to its security holders and the Representatives as soon as practicable
an earnings statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after
the “effective date” (as defined in Rule 158) of the Registration Statement; it being understood and agreed that such
earnings statement shall be deemed to have been made available by the Company if such earnings statement is made available on the Commission’s
Electronic Data Gathering, Analysis and Retrieval system.
(i) Clear
Market. The Company will not, and will not publicly disclose an intention to, without the prior written consent of the Representatives,
for a period of 30 days from the date hereof, (i) offer, sell, contract to sell or otherwise dispose of any shares of Common Stock
of the Company or any securities convertible into or exercisable or exchangeable for Common Stock or (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock,
whether any such 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; provided, however, that the Company may issue, sell, contract to sell or otherwise dispose
of or grant options for, shares of any Common Stock of the Company or securities convertible into, or exchangeable for, shares of any
Common Stock of the Company: (1) any shares of Common Stock that are issued by the Company pursuant to this Agreement; (2) the
issuance by the Company of shares of Common Stock upon the exercise of options or vesting of rights to purchase or acquire shares of
Common Stock outstanding as of the date hereof and described in the Registration Statement, the Time of Sale Prospectus and the Prospectus
or the issuance of shares of Common Stock upon redemption or conversion of units of limited partnership interests; (3) the issuance
of shares of Common Stock, options to acquire Common Stock, restricted stock units, restricted stock or other equity awards pursuant
to the Company’s Second Amended and Restated 2009 Equity Incentive Plan, as amended, or other employee compensation plans as such
plans are in existence on the date hereof and described in the Registration Statement, the Time of Sale Prospectus and the Prospectus;
(4) the issuance of shares of Common Stock to certain employees in connection with the deferment of income; (5) the issuance
of Common Stock pursuant to the filing of a registration statement on Form S-8 relating to any employee benefit plan or Form S-4
or amendments thereto; (6) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act, for the transfer
of shares of Common Stock; (7) the issuance of shares of Common Stock pursuant to the Company’s employee stock purchase plan,
(8) the issuance of shares of Common Stock pursuant to the Company’s dividend reinvestment plan and (9) the issuance
of shares of Common Stock as consideration for the acquisition by the Company or one of its subsidiaries from a third party of assets
or of equity interests of any other entity which entity would, after giving effect to the acquisition of such equity interests, be a
subsidiary of the Company.
(j) Use
of Proceeds. The Company will apply the net proceeds from the sale of the Securities, if any, as described in each of the Registration
Statement, the Time of Sale Prospectus and the Prospectus under the heading “Use of Proceeds.”
(k) No
Stabilization. The Company will not take, directly or indirectly, any action designed to or that could reasonably be expected
to cause or result in any stabilization or manipulation of the price of the Securities.
(l) Record
Retention. The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing
Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
7. Conditions
to the Obligations of the Underwriters and the Forward Sellers.
(a) Registration
Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding
for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before
or, to the Company’s knowledge, threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have
been timely filed with the Commission under the Securities Act (in the case of any Issuer Free Writing Prospectus, to the extent required
by Rule 433 under the Securities Act) and in accordance with Section 6(a) hereof; and all requests by the Commission for
additional information shall have been complied with to the reasonable satisfaction of the Representatives.
(b) Representations
and Warranties. The representations and warranties of the Company contained herein shall be true and correct on the date hereof
and on and as of the Closing Date and any Additional Closing Date, as the case may be; and the statements of the Company and its officers
made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date and any Additional
Closing Date, as the case may be.
(c) No
Material Adverse Change. No event or condition of a type described in Section 1(n) (No Material Adverse Change)
hereof shall have occurred or shall exist, which event or condition is not described in each of the Time of Sale Prospectus (excluding
any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto) the effect of which in the judgment
of the Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the
terms and in the manner contemplated by this Agreement, the Time of Sale Prospectus and the Prospectus.
(d) Officer’s
Certificate. The Representatives, the Forward Purchasers and the Forward Sellers shall have received on and as of the Closing
Date or the Additional Closing Date, as the case may be, a certificate of an executive officer of the Company who has specific knowledge
of the Company’s financial matters and is satisfactory to the Representatives (i) confirming that such officer has carefully
reviewed the Registration Statement, the Time of Sale Prospectus and the Prospectus and, to the knowledge of such officer, the representations
set forth in Sections 1(a) (Effectiveness of Registration Statement), 1(b) (Compliance with Securities Act) and
1(c) (Accurate Disclosure) hereof are true and correct, (ii) confirming that the other representations and warranties
of the Company in this Agreement are true and correct and that the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to the Closing Date or the Additional Closing Date, as the case may be,
and (iii) to the effect set forth in paragraphs (a), (b) and (c) above.
(e) Comfort
Letters. On the date of this Agreement and on the Closing Date or the Additional Closing Date, as the case may be, the Accountants
shall have furnished to the Representatives and the Forward Sellers, at the request of the Company, letters, dated the respective dates
of delivery thereof and addressed to the Underwriters and the Forward Sellers, in form and substance reasonably satisfactory to the Representatives
and the Forward Sellers, containing statements and information of the type customarily included in accountants’ “comfort
letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by
reference in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter
delivered on the Closing Date or the Additional Closing Date, as the case may be, shall use a “cut-off” date no more than
three business days prior to the Closing Date or such Additional Closing Date, as the case may be.
(f) Opinion
and 10b-5 Statement of Counsel for the Company. Goodwin Procter LLP, counsel for the Company, shall have furnished to the Representatives,
the Forward Purchasers and the Forward Sellers at the request of the Company, their written opinion and to the Representatives, their
10b-5 statement, each dated the Closing Date or the Additional Closing Date, as the case may be, and addressed to the Underwriters, the
Forward Purchasers and the Forward Sellers, as applicable, in form and substance reasonably satisfactory to the Representatives, the
Forward Purchasers and the Forward Sellers, as applicable.
(g) Opinion
of Tax Counsel for the Company. Goodwin Procter LLP, tax counsel for the Company, shall have furnished to the Representatives,
the Forward Purchasers and the Forward Sellers at the request of the Company, their written opinion, dated the Closing Date or the Additional
Closing Date, as the case may be, and addressed to the Underwriters, to the effect that, subject to the assumptions and qualifications
therein commencing with the taxable year ending December 31, 1994, the form of organization of the Company and its operations are
such as to enable the Company to qualify as a “real estate investment trust” under the applicable provisions of the Code.
(h) Opinion
and 10b-5 Statement of Counsel for the Underwriters. The Representatives, the Forward Purchasers and the Forward Sellers shall
have received on and as of the Closing Date or the Additional Closing Date, as the case may be, an opinion and the Representatives shall
have received a 10b-5 statement, addressed to the Underwriters, the Forward Purchasers and the Forward Sellers, as applicable, of Skadden,
Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters, the Forward Purchasers and the Forward Sellers with respect to
such matters as the Representatives, the Forward Purchasers and the Forward Sellers may reasonably request, and such counsel shall have
received such documents and information as they may reasonably request to enable them to pass upon such matters.
(i) No
Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted,
adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date or the Additional
Closing Date, as the case may be, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or
foreign court shall have been issued that would, as of the Closing Date or Additional Closing Date, as the case may be, prevent the issuance
or sale of the Securities.
(j) Good
Standing. The Representatives shall have received on and as of the Closing Date or the Additional Closing Date, as the case may be,
satisfactory evidence of the good standing of the Company in its jurisdiction of organization and in such other jurisdictions as the
Representatives may reasonably request, in writing or any standard form of telecommunication from the appropriate governmental authorities
of such jurisdictions.
(k) Additional
Documents. On or prior to the Closing Date or the Additional Closing Date, as the case may be, the Company shall have furnished
to the Representatives such further certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates
and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they
are in form and substance reasonably satisfactory to counsel for the Underwriters.
8. Payment
of Expenses.
(a) Whether
or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company agrees to pay or
cause to be paid all costs and expenses incident to the performance of its obligations hereunder, including without limitation, (i) the
costs incident to the authorization, issuance, sale, preparation and delivery of the Securities and any taxes payable in that connection;
(ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Preliminary
Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Prospectus and the Prospectus (including all exhibits, amendments and
supplements thereto) and the distribution thereof; (iii) the fees and expenses of the Company’s counsel and independent accountants;
(iv) the fees and expenses incurred in connection with the registration or qualification and determination of eligibility for investment
of the Securities under the laws of such jurisdictions as the Representatives may designate and the preparation, printing and distribution
of a Blue Sky Memorandum (including the related fees and expenses of counsel for the Underwriters relating to such registration or qualification
up to a maximum of $10,000); and (v) all expenses and application fees incurred in connection with any filing with, and clearance
of the offering by, the Financial Industry Regulatory Authority, Inc., if any, and the approval of the Securities for book-entry
transfer by DTC. For the avoidance of doubt, except as provided in this Section 8, the Underwriters will pay all of their costs
and expenses, including the fees of their counsel and their own travel and lodging expenses in connection with any “road show”
presentation to potential investors.
(b) If
(i) this Agreement is terminated pursuant to clause (ii) of Section 11, or (ii) the sale of the Securities provided
for herein is not consummated because any condition to the obligation of the Underwriters and the Forward Sellers set forth in Section 7
hereof is not satisfied because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the Underwriters, the Forward Sellers or the Forward Purchasers,
the Company agrees to reimburse the Underwriters, the Forward Sellers and the Forward Purchasers for all documented out-of-pocket costs
and expenses (including the reasonable and itemized fees and expenses of their counsel) reasonably incurred by the Underwriters, the
Forward Sellers and the Forward Purchasers in connection with this Agreement and the offering contemplated hereby; provided that
in the case of a termination pursuant to Section 10(c), the Company shall have no obligation to reimburse the defaulting Underwriter
for such costs and expenses.
9. Indemnification
and Contribution.
(a) Indemnification
of the Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, Forward Purchaser, Forward Seller, the directors,
officers, employees and agents of each Underwriter, Forward Purchaser and Forward Seller, each person who controls any Underwriter, Forward
Purchaser and Forward Seller within the meaning of either the Securities Act or the Exchange Act and each of the Underwriters’,
Forward Purchasers’ or Forward Sellers’ affiliates that participates in the distribution of securities against any and all
losses, claims, damages and liabilities (including, without limitation, reasonable legal fees and other expenses incurred in connection
with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out
of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement
or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to
make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained
in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Prospectus, or caused
by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities
arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to any Underwriter, Forward Seller or Forward Purchaser furnished to the Company in writing
by such Underwriter through the Representatives or such Forward Seller or Forward Purchaser expressly for use therein.
(b) Indemnification
of the Company. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless (i) the Company, each
of its directors and its officers who signed the Registration Statement 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 and (ii) each Forward Seller and Forward
Purchaser and each person who controls any Forward Seller or any Forward Purchaser within the meaning of either the Securities Act or
the Exchange Act, if any, to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any
losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with any information relating to such Underwriter, Forward Seller or Forward Purchaser
furnished to the Company in writing by such Underwriter through the Representatives of such Forward Seller or Forward Purchaser expressly
for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or
any Time of Sale Prospectus, it being understood and agreed that the only such information consists of the following paragraphs in the
Preliminary Prospectus and the Prospectus: (i) the list of Underwriters and their respective participation in the sale of the Securities,
(ii) the first two sentences under the heading “Offering Price, Commissions and Discounts” and (iii) the first
and second paragraphs (including bullet points) under the heading “Price Stabilization, Short Positions and Penalty Bids.”
(c) Notice
and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall
be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or
(b) above, such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnification
may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have under paragraph (a) or (b) above except to the extent that
it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further,
that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person
otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an Indemnified
Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory
to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent
the Indemnified Person and any others entitled to indemnification pursuant to this Section 9 that the Indemnifying Person may designate
in such proceeding and shall pay the fees and expenses of such proceeding and shall pay the reasonable fees and expenses of such counsel
related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person
and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable
time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded
that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person;
or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm (in addition to any
local counsel, which shall be limited to one firm in each jurisdiction) for all Indemnified Persons, and that all such reasonable fees
and expenses shall be paid or reimbursed as they are incurred, upon receipt of a written request for payment thereof accompanied by a
written statement with reasonable supporting detail of such fees and expenses. Any such separate firm for any Underwriter, its affiliates,
directors and officers and any control persons of such Underwriter shall be designated in writing by the Representatives and any such
separate firm for the Company, its directors and officers who signed the Registration Statement and any control persons of the Company
shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person
agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. No Indemnifying
Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability or claims that are the subject matter of such proceeding and (y) does
not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If
the indemnification provided for in paragraph (a) or (b) above is unavailable to an Indemnified Person or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying
such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company
on the one hand and the Underwriters, the Forward Sellers and the Forward Purchasers on the other from the offering of the Securities
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) but also the relative fault of the Company on the one hand and
the Underwriters, the Forward Sellers and the Forward Purchasers on the other in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received
by the parties shall be deemed to be the same respective proportions as: (i) in the case of the Company, the net proceeds from the
offering of the Securities (before deducting expenses) received by the Company (such net proceeds shall include the proceeds to be received
by the Company pursuant to the Forward Sale Agreements, assuming Physical Settlement (as defined in the Forward Sale Agreements)), (ii) in
the case of the Underwriters, the total underwriting discounts and commissions received by the Underwriters and (iii) in the case
of the Forward Sellers and the Forward Purchasers, the aggregate Spread (as defined in the Forward Sale Agreements) retained by the Forward
Purchasers under the Forward Sale Agreements, net of any costs associated therewith, as reasonably determined by the Forward Sellers.
The relative fault of the Company on the one hand and the Underwriters, Forward Sellers and the Forward Purchasers on the other shall
be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information supplied by the Company on the one hand or by the Underwriters, the
Forward Sellers and the Forward Purchasers on the other and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) Limitation
on Liability. The Company, the Underwriters, the Forward Sellers and the Forward Purchasers agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by pro rata allocation or by any other
method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid
or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person
in connection with any such action or claim. Notwithstanding the provisions of this Section 9, in no event shall an Underwriter
be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such
Underwriter with respect to the offering of the Securities exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 9
are several in proportion to their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive
Remedies. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any Indemnified Person at law or in equity.
10. Default
by an Underwriter.
(a) If,
on the Closing Date or the Additional Closing Date, as the case may be, any Underwriter defaults on its obligation to purchase the Securities
that it has agreed to purchase hereunder, the non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities
by other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36 hours after any such default by
any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Securities, then the Company shall be entitled
to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such
Securities on such terms. If other persons become obligated or agree to purchase the Securities of a defaulting Underwriter, either the
non-defaulting Underwriters or the Company may postpone the Closing Date or the Additional Closing Date, as the case may be, for up to
five full business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters
may be necessary in the Registration Statement, the Time of Sale Prospectus and the Prospectus or in any other document or arrangement,
and the Company agrees to promptly prepare any amendment or supplement to the Registration Statement, the Time of Sale Prospectus and
the Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all
purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule A hereto that, pursuant to this Section 10,
purchases Securities that a defaulting Underwriter agreed but failed to purchase.
(b) If,
after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities, then the Company shall have the right
to require each non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder
plus such Underwriter’s pro rata share (based on the principal amount of Securities that such Underwriter agreed
to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made.
(c) If,
after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the Company shall not exercise the right
described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters.
Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of the Company, except that
the Company will continue to be liable for the payment of expenses as set forth in Section 8 hereof and except that the provisions
of Section 9 hereof shall not terminate and shall remain in effect.
(d) Nothing
contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company or any non-defaulting Underwriter
for damages caused by its default.
11. Termination.
This Agreement may be terminated, in the absolute discretion of the Representatives, the Forward Purchasers and the Forward Sellers,
by notice given to the other parties prior to delivery of and payment for the Securities, if at any time prior to such time (i) trading
shall have been suspended by the or materially limited on the NYSE; (ii) trading of any securities issued or guaranteed by the Company
shall have been suspended on any exchange or in any over-the-counter market, (iii) a general moratorium on commercial banking activities
shall have been declared either by Federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Underwriters, impractical or inadvisable to proceed with the offering or delivery
of the Securities as contemplated by the Prospectus (exclusive of any supplement thereto).
12. Representations
and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company
or its officers and of the Underwriters and the Forward Sellers set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by or on behalf of any Underwriter, the Forward Purchasers, the Forward Sellers or the
Company or any of the officers, directors, employees, agents or controlling persons referred to in Section 9 hereof, and will survive
delivery of and payment for the Securities. The provisions of Sections 8 and 9 hereof shall survive the termination or cancellation of
this Agreement.
13. Additional
Issuance and Sale by the Company.
(a) In
the event that (i) all the Conditions are not satisfied on or prior to the Closing Date or Additional Closing Date, as the case
may be, and (ii) any of the Forward Sellers elects, pursuant to Section 3(c), not to deliver the total number of Borrowed Securities
deliverable by such Forward Seller hereunder then the Company shall issue and sell to the Underwriters on the Closing Date or Additional
Closing Date, as the case may be, pursuant to Section 3, in whole but not in part, an aggregate number of shares of Common Stock
equal to the number of Borrowed Securities otherwise deliverable on such date that such Forward Seller does not so deliver and sell to
the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right
to postpone the Closing Date or Additional Closing Date, as the case may be, for a period not exceeding one business day in order to
effect any required changes in any documents or arrangements. The shares of Common Stock sold by the Company to the Underwriters pursuant
to this Section 13(a), (i) in lieu of Borrowed Underwritten Securities are referred to herein as the “Company Top-Up
Underwritten Securities” and (ii) in lieu of any Borrowed Option Securities are referred to herein as the “Company
Top-Up Option Securities.”
(b) No
Forward Purchaser or Forward Seller shall have any liability whatsoever for any Borrowed Securities that a Forward Seller does not deliver
and sell to the Underwriters or any other party if (i) all of the Conditions are not satisfied on or prior to the Closing Date,
or the Additional Closing Date, as the case may be, and such Forward Seller elects, pursuant to Section 3(c) not to
deliver and sell to the Underwriters the Borrowed Securities to be sold by it or (ii) such Forward Seller determines that (A) it
or its affiliate is unable through commercially reasonable efforts to borrow and deliver for sale a number of Borrowed Securities to
be sold and delivered by it hereunder in connection with establishing a commercially reasonable hedge position or (B) in its commercially
reasonable judgment either it would be impracticable to do so or it or its affiliate would incur a stock loan cost of more than a rate
equal to 200 basis points per annum with respect to all or any portion of such shares to do so.
14. Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted
and confirmed by any standard form of telecommunication. Notices to the Underwriters and Forward Sellers shall be directed to Goldman
Sachs & Co. LLC, 200 West Street, New York, New York 10282, Attention: Registration Department; BofA Securities, Inc.,
One Bryant Park, New York, NY 10036, Email: dg.ecm_execution_services@bofa.com, Attention: Syndicate Department, with a copy to Email:
dg.ecm_legal@bofa.com, Attention: ECM Legal; Deutsche Bank Securities Inc., 1 Columbus Circle, New York, New York 10019, Attention:
Equity Capital Markets – Syndicate Desk, with a copy to Deutsche Bank Securities Inc., 1 Columbus Circle, 19th Floor, New York,
New York 10019, Attention: General Counsel, dbcapmarkets.gcnotices@list.db.com; Morgan Stanley & Co. LLC at 1585 Broadway, New
York, New York 10036, Attention: Equity Syndicate Desk, with a copy to the Legal Department, and notices to the Forward Purchasers shall
be directed to Goldman Sachs & Co. LLC, 200 West Street, New York, New York 10282, Attention: Registration Department; BofA
Securities, Inc., One Bryant Park, New York, NY 10036, Email: dg.ecm_execution_services@bofa.com, Attention: Syndicate Department,
with a copy to Email: dg.ecm_legal@bofa.com, Attention: ECM Legal; Deutsche Bank AG, London Branch, 1 Columbus Circle, New York, New
York 10019, Attention: Equity Capital Markets – Syndicate Desk, with a copy to Deutsche Bank Securities Inc., 1 Columbus
Circle, 19th Floor, New York, New York 10019, Attention: General Counsel, dbcapmarkets.gcnotices@list.db.com; Morgan Stanley &
Co. LLC at 1585 Broadway, New York, New York 10036, Attention: Equity Syndicate Desk, with a copy to the Legal Department, with a copy
(which shall not constitute notice) to: Skadden, Arps, Slate, Meagher & Flom LLP, One Manhattan West, New York, NY 10001; Attention:
David J. Goldschmidt. Notices to the Company shall be given to it at AvalonBay Communities, Inc., 4040 Wilson Blvd., Suite 1000,
Arlington, Virginia 22203 (fax: (703) 329-4830); Attention: Legal Department, with a copy (which shall not constitute notice) to: Goodwin
Procter LLP, The New York Times Building, 620 Eighth Avenue, New York, New York 10018 (fax: (212) 253-4047); Attention: Audrey S. Leigh, Esq.
15. Recognition
of the U.S. Special Resolution Regimes.
(a) In
the event that any Underwriter, Forward Purchaser or Forward Seller that is a Covered Entity becomes subject to a proceeding under a
U.S. Special Resolution Regime, the transfer from such Underwriter, Forward Purchaser or Forward Seller of this Agreement, and any interest
and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special
Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state
of the United States.
(b) In
the event that any Underwriter Forward Purchaser or Forward Seller that is a Covered Entity or a BHC Act Affiliate of such Underwriter,
Forward Purchaser or Forward Seller becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this
Agreement that may be exercised against such Underwriter, Forward Purchaser or Forward Seller 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 15, 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.
16. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section 9 hereof, and no other person will have any right or
obligation hereunder. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Securities from any Underwriter
shall be deemed to be a successor merely by reason of such purchase.
17. Applicable
Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
18. Consent
to Jurisdiction. Each of the parties hereto agrees that any legal suit, action or proceeding arising out of or based upon this Agreement
or the transactions contemplated hereby (“Related Proceedings”) shall be instituted in (i) the federal courts
of the United States of America located in the City and County of New York, Borough of Manhattan or (ii) 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 exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of
any Specified Court (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of the Specified Courts
in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set
forth above shall be effective service of process for any suit, action or proceeding brought in any Specified Court. Each of the parties
hereto 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 waive and agree 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.
19. WAIVER
OF JURY TRIAL. Each of the parties hereto hereby waives any right to trial by jury in any suit or proceeding arising out of or relating
to this Agreement.
20. Counterparts.
This Agreement may be signed in counterparts, each of which shall be an original and all of which together shall constitute one and the
same instrument. 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.
21. Entire
Agreement.
(a) This
Agreement, together with any contemporaneous written agreements and any prior written agreements (to the extent not superseded by this
Agreement) that relate to the offering of the Securities, represents the entire agreement between the Company, the Underwriters, the
Forward Purchasers and the Forward Sellers with respect to the Registration Statement, the preliminary prospectus, the Issuer Free Writing
Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Securities.
(b) The
Company acknowledges that in connection with the offering of the Securities the Underwriters, the Forward Purchasers and the Forward
Sellers are acting solely in the capacity of an arm’s length contractual counterparty to the Company and not as a financial advisor
or a fiduciary to, or an agent of, the Company or any other person. Additionally, none of the Underwriters, the Forward Purchasers or
the Forward Sellers is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in
any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters, the Forward Purchasers and the
Forward Sellers shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters, the Forward
Purchasers or the Forward Sellers of the Company, the transactions contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters, the Forward Purchasers or the Forward Sellers, respectively and shall not
be on behalf of the Company.
22. USA
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 Underwriters are required to obtain, verify and record information that identifies their clients, including the Company,
which information may include the name and address of their clients, as well as other information that will allow the Underwriters to
properly identify their clients.
23. Assignment.
Notwithstanding anything herein to the contrary, without notice to or the consent of the parties hereto, no party may assign its rights
and obligations under this Agreement.
24. 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 parties hereto.
25. Headings.
The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation
of, this Agreement.
[Remainder of page intentionally left
blank]
If the foregoing is in accordance
with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the parties hereto.
| |
Very truly yours, |
| |
|
|
| |
By: |
/s/ Kevin P. O’Shea |
| |
Name: |
Kevin
P. O’Shea |
| |
Title: |
Chief
Financial Officer |
[Signature Page – Underwriting Agreement]
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
| GOLDMAN
SACHS & CO. LLC |
|
| |
|
| By: |
/s/ Ryan
Cunn |
|
| Name: |
Ryan
Cunn |
|
| Title: |
Managing
Director |
|
| BOFA
SECURITIES, INC. |
|
| |
|
| By: |
/s/ Hicham
Hamdouch |
|
| Name: |
Hicham
Hamdouch |
|
| Title: |
Managing
Director |
|
| DEUTSCHE BANK SECURITIES INC. |
|
| |
|
| By: |
/s/ Ben Selinger |
|
| Name: |
Ben Selinger |
|
| Title: |
Managing Director |
|
| |
|
|
| By: |
/s/ Reza Akhavi |
|
| Name: |
Reza Akhavi |
|
| Title: |
Managing Director |
|
| MORGAN
STANLEY & CO. LLC |
|
| |
|
| By: |
/s/ Eric
Rosenblum |
|
| Name: |
Eric
Rosenblum |
|
| Title: |
Executive
Director |
|
For themselves and as Representatives of the
several Underwriters named in Schedule A hereto.
[Signature Page – Underwriting Agreement]
Accepted as of the date first above written.
GOLDMAN SACHS & CO. LLC
Acting in its capacity as Forward Purchaser,
solely as the recipient and/or beneficiary of certain representations, warranties, covenants and indemnities as set forth in this Agreement
| By: |
/s/ Ryan
Cunn |
|
| Name: |
Ryan
Cunn |
|
| Title: |
Managing
Director |
|
GOLDMAN SACHS & CO. LLC
Acting in its capacity as Forward Seller
| By: |
/s/ Ryan
Cunn |
|
| Name: |
Ryan
Cunn |
|
| Title: |
Managing
Director |
|
[Signature Page – Underwriting Agreement]
Accepted as of the date first above written.
BOFA SECURITIES, INC.
Acting in its capacity as Forward Purchaser,
solely as the recipient and/or beneficiary of certain representations, warranties, covenants and indemnities as set forth in this Agreement
| By: |
/s/ Hicham
Hamdouch |
|
| Name: |
Hicham
Hamdouch |
|
| Title: |
Managing
Director |
|
BOFA SECURITIES, INC.
Acting in its capacity as Forward Seller
| By: |
/s/ Hicham
Hamdouch |
|
| Name: |
Hicham
Hamdouch |
|
| Title: |
Managing
Director |
|
[Signature Page – Underwriting Agreement]
Accepted as of the date first above written.
DEUTSCHE BANK AG, LONDON BRANCH
Acting in its capacity as Forward Purchaser,
solely as the recipient and/or beneficiary of certain representations, warranties, covenants and indemnities as set forth in this Agreement
| By: |
/s/ Daniel
Byun |
|
| Name: |
Daniel
Byun |
|
| Title: |
Director |
|
| By: |
/s/ Joachim
Sciard |
|
| Name: |
Joachim
Sciard |
|
| Title: |
Managing
Director |
|
DEUTSCHE BANK SECURITIES INC.
Acting in its capacity as Forward Seller
| By: |
/s/ Ben
Selinger |
|
| Name: |
Ben
Selinger |
|
| Title: |
Managing
Director |
|
| By: |
/s/ Reza Akhavi |
|
| Name: |
Reza Akhavi |
|
| Title: |
Managing Director |
|
[Signature Page – Underwriting Agreement]
Accepted as of the date first above written.
MORGAN STANLEY & CO. LLC
Acting in its capacity as Forward Purchaser,
solely as the recipient and/or beneficiary of certain representations, warranties, covenants and indemnities as set forth in this Agreement
| By: |
/s/ Eric
Rosenblum |
|
| Name: |
Eric
Rosenblum |
|
| Title: |
Executive
Director |
|
MORGAN STANLEY & CO. LLC
Acting in its capacity as Forward Seller
| By: |
/s/ Eric
Rosenblum |
|
| Name: |
Eric
Rosenblum |
|
| Title: |
Executive
Director |
|
[Signature Page – Underwriting Agreement]
SCHEDULE A
| Name of Underwriter | |
Number of
Underwritten
Securities to be
Purchased | |
| Goldman Sachs & Co. LLC | |
| 800,000 | |
| BofA Securities, Inc. | |
| 800,000 | |
| Deutsche Bank Securities Inc. | |
| 800,000 | |
| Morgan Stanley & Co. LLC | |
| 800,000 | |
| Total | |
| 3,200,000 | |
| Name of Forward Seller | |
Number of
Borrowed
Underwritten
Securities to be
Sold | | |
Number of
Borrowed
Option
Securities
to be Sold | |
| Goldman Sachs & Co. LLC | |
| 800,000 | | |
| 120,000 | |
| BofA Securities, Inc. | |
| 800,000 | | |
| 120,000 | |
| Deutsche Bank Securities Inc. | |
| 800,000 | | |
| 120,000 | |
| Morgan Stanley & Co. LLC | |
| 800,000 | | |
| 120,000 | |
| Total | |
| 3,200,000 | | |
| 480,000 | |
SCHEDULE B
| Issuer: |
AvalonBay
Communities, Inc. |
| |
|
| Number
of Securities: |
3,200,000
shares of Common Stock (3,680,000 shares of Common Stock if the underwriters’ option to purchase additional shares is exercised
in full) |
| |
|
| Price
to public (per share): |
$222.00 |
ANNEX A
List of Issuer Free Writing Prospectuses
1. None.
EXHIBIT 1.2
| To: | AvalonBay Communities, Inc. | September 5, 2024 |
| | 4040 Wilson Blvd, Suite 1000 | |
| | Arlington, Virginia 22203 | |
| | | |
| From: | [Forward Purchaser] | |
| From: | [Forward Seller] | |
Ladies and Gentlemen,
The purpose of this letter
agreement (this “Master Confirmation”) is to set forth the terms and conditions of the transactions to be entered into
from time to time between [ ] (“Dealer”) and AvalonBay Communities, Inc. (“Counterparty”) in
accordance with the terms of the Underwriting Agreement, dated as of September 5, 2024 (the “Underwriting Agreement”),
among Bank of America, N.A., Deutsche Bank AG, London Branch, Goldman Sachs & Co. LLC, and Morgan Stanley & Co. LLC
as forward purchasers, BofA Securities, Inc. Deutsche Bank Securities Inc., Goldman Sachs & Co. LLC, and Morgan Stanley &
Co. LLC, as forward sellers and Counterparty on the Trade Dates specified herein (collectively, the “Transactions”
and each, a “Transaction”). This letter agreement constitutes a “Confirmation” as referred to in the Agreement
specified below. Each Transaction will be evidenced by a supplemental confirmation (each, a “Supplemental Confirmation”,
and each such Supplemental Confirmation, together with this Master Confirmation, a “Confirmation” for purposes of the
Agreement specified below) substantially in the form of Exhibit A hereto. Each Confirmation will be a confirmation for purposes of
Rule 10b-10 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
1. Each
Confirmation is subject to, and incorporates, the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”),
as published by the International Swaps and Derivatives Association, Inc. (“ISDA”). For purposes of the Equity
Definitions, each Transaction will be deemed to be a Share Forward Transaction.
Each Confirmation shall supplement,
form a part of and be subject to an agreement (the “Agreement”) in the form of the 1992 ISDA Master Agreement (Multicurrency—Cross
Border) (the “ISDA Form”), as published by ISDA, as if Dealer and Counterparty had executed the ISDA Form on the
date hereof (but without any Schedule except for (i) the election of Loss and Second Method, 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, (ii) the
replacement of the word “third” in the last line of Section 5(a)(i) with the word “first” and (iii) the
election that the “Cross Default” provisions of Section 5(a)(vi) shall apply to Dealer and Counterparty with a “Threshold
Amount” in respect of Dealer of 3% of the stockholders’ equity of [Dealer/Dealer’s Parent] [(“Dealer Parent”)]
and a “Threshold Amount” in respect of Counterparty of USD 200 million; provided that (x) the words “, or
becoming capable at such time of being declared,” shall be deleted from clause (1) thereof, (y) “Specified Indebtedness”
had 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 Dealer’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;”).
All provisions contained in
the Agreement are incorporated into and shall govern each Confirmation except as expressly modified below. Each Confirmation evidences
a complete and binding agreement between Dealer and Counterparty as to the terms of the relevant Transaction and replaces any previous
agreement between the parties with respect to the subject matter hereof.
The Transactions hereunder
shall be the sole Transactions under the Agreement. If there exists any ISDA Master Agreement between Dealer or any of its Affiliates
and Counterparty or any confirmation or other agreement between Dealer or any of its Affiliates and Counterparty pursuant to which an
ISDA Master Agreement is deemed to exist between Dealer or any of its Affiliates and Counterparty, then notwithstanding anything to the
contrary in such ISDA Master Agreement, such confirmation or agreement or any other agreement to which Dealer or such other Affiliates
and Counterparty are parties, the Transactions shall not be considered Transactions under, or otherwise governed by, such existing or
deemed ISDA Master Agreement. In the event of any inconsistency among the Agreement, this Master Confirmation, any Supplemental Confirmation
and the Equity Definitions, the following will prevail in the order of precedence indicated: (i) such Supplemental Confirmation;
(ii) this Master Confirmation; (iii) the Equity Definitions; and (iv) the Agreement.
2. The
terms of the particular Transactions to which this Master Confirmation relates are as follows:
| General
Terms: | |
|
| | |
|
| Trade Date: | |
September 5, 2024. |
| | |
|
| Effective Date: | |
September 9, 2024, or such
later date on which the conditions set forth in Section 3 of this Confirmation have been satisfied. |
| | |
|
| Buyer: | |
Dealer |
| | |
|
| Seller: | |
Counterparty |
| | |
|
| Maturity Date: | |
(i) December 31, 2025
(or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day) and (ii) the date on which the Number
of Shares is reduced to zero. |
| | |
|
| Shares: | |
The shares of common stock, par value $0.01 per
Share, of Counterparty (Ticker: “AVB”) |
| | |
|
| Number of Shares: | |
Initially, 800,000 Shares;
provided that, on each Relevant Settlement Date, the Number of Shares shall be reduced by the number of Settlement Shares
to be settled on such date (in the case of Physical Settlement) or the number of Settlement Shares for the applicable Settlement
(in the case of Cash Settlement or Net Share Settlement). |
| | |
|
| Settlement Currency: | |
USD |
| | |
|
| Exchange: | |
The New York Stock Exchange |
| | |
|
| Related Exchange: | |
All Exchanges |
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|
| Prepayment: | |
Not Applicable |
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|
| Variable Obligation: | |
Not Applicable |
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|
| Forward Price: | |
On the Effective 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
plus (ii) the Daily Rate for such day * (1/365); 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: | |
USD 219.73 per Share. |
| Daily Rate: | |
For any day,
the Overnight Bank Funding Rate minus the Spread. |
| | |
|
| Spread: | |
For each Transaction, as specified
in the Supplemental Confirmation for such Transaction. |
| | |
|
| Overnight Bank Funding Rate: | |
For any day, the rate set
forth for such day opposite the caption “Overnight Bank Funding Rate” as displayed on the page “OBFR01<Index>
<GO>” on the BLOOMBERG Professional Service, or any successor page; provided that if no such rate appears for
such day on such page, Overnight Bank Funding Rate for such day shall be such rate for the immediately preceding day for which such
a rate appears. |
| | |
|
| Forward Price Reduction Dates: | |
For each Transaction, as specified
in Schedule I to the Supplemental Confirmation for such Transaction, to be each date set forth under the heading “Forward Price
Reduction Date” in the Transaction Notice for such Transaction. |
| | |
|
| Forward Price Reduction Amount: | |
For each Forward Price Reduction
Date, the Forward Price Reduction Amount set forth opposite such date on Schedule I to the Supplemental Confirmation for such Transaction. |
| | |
|
| Valuation: | |
|
| | |
|
| Valuation Date: | |
For any Settlement (as defined
below) with respect to any Transaction, if Physical Settlement is applicable, as designated in the relevant Settlement Notice (as
defined below); or if Cash Settlement or Net Share Settlement is applicable, the last Unwind Date for such Settlement. Section 6.6
of the Equity Definitions shall not apply to any Valuation Date. |
| | |
|
| Unwind Dates: | |
For any Cash Settlement or Net
Share Settlement with respect to any Settlement of any Transaction, each day on which Dealer (or its agent or affiliate) purchases
Shares in the market in connection with unwinding its commercially reasonable hedge position in connection with such Settlement,
starting on the First Unwind Date for such Settlement. |
| | |
|
| First Unwind Date: | |
For any Cash Settlement or Net
Share Settlement with respect to any Settlement of any Transaction, as designated in the relevant Settlement Notice. |
| | |
|
| Unwind Period: | |
For any Cash Settlement or Net
Share Settlement with respect to any Settlement of any Transaction, the period starting on the First Unwind Date for such Settlement
and ending on the Valuation Date for such Settlement. |
| Cash Settlement Valuation Disruption: |
|
If Cash Settlement is applicable with respect to any Transaction and any Unwind Date during the related Unwind Period is a Disrupted Day, the Calculation Agent shall determine whether (i) such Disrupted Day is a Disrupted Day in full, in which case the 10b-18 VWAP for such Disrupted Day shall not be included in the calculation of the Settlement Price, or (ii) such Disrupted Day is a Disrupted Day only in part, in which case the 10b-18 VWAP for such Disrupted Day shall be determined by the Calculation Agent based on Rule 10b-18 eligible transactions (as defined below) in the Shares on such Disrupted Day, taking into account the nature and duration of the relevant Market Disruption Event, and the weightings of the 10b-18 VWAP for each Unwind Date during such Unwind Period shall be adjusted in good faith and in a commercially reasonable manner by the Calculation Agent for purposes of determining the Settlement Price to account for the occurrence of such partially Disrupted Day, with such adjustments based on, among other factors, the duration of any Market Disruption Event and the volume, historical trading patterns and price of the Shares. |
| |
|
|
| Market Disruption Event: |
|
The definition of “Market Disruption Event” in Section 6.3(a) of the Equity Definitions is hereby amended by deleting the words “at any time during the one-hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be” and inserting the words “at any time on any Exchange Business Day during the Unwind Period” after the word “material,” in the third line thereof. |
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|
|
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|
Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof. |
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|
| Settlement Terms: |
|
|
| |
|
|
| Settlement : |
|
With respect to any Transaction, any Physical Settlement, Cash Settlement or Net Share Settlement of all or any portion of such Transaction. |
| |
|
|
| Settlement Notice: |
|
For any Transaction, subject to “Early Valuation” below, Counterparty may elect to effect a Settlement of all or any portion of such Transaction by designating one or more Scheduled Trading Days following the Effective Date for such Transaction and on or prior to the Maturity Date for such Transaction to be Valuation Dates (or, with respect to Cash Settlements or Net Share Settlements of such Transaction, First Unwind Dates, each of which First Unwind Dates shall occur no later than the 60th Scheduled Trading Day immediately preceding the Maturity Date for such Transaction) in a written notice to Dealer (a “Settlement Notice”) delivered no later than the applicable Settlement Method Election Date for such Transaction, which notice shall also specify (i) the number of Shares (the “Settlement Shares”) for such Settlement (not to exceed the number of Undesignated Shares for such Transaction as of the date of such Settlement Notice) and (ii) the Settlement Method applicable to such Settlement; provided that (A) Counterparty may not designate a First Unwind Date for a Cash Settlement or a Net Share Settlement of any Transaction if, as of the date of such Settlement Notice, any Shares have been designated as Settlement Shares for a Cash Settlement or a Net Share Settlement of such Transaction for which the related Relevant Settlement Date has not occurred; and (B) if the number of Undesignated Shares as of the Maturity Date for such Transaction is not zero, then the Maturity Date for such Transaction shall be a Valuation Date for a Physical Settlement of such Transaction and the number of Settlement Shares for such Settlement shall be the number of Undesignated Shares for such Transaction as of the Maturity Date for such Transaction (provided that if such Maturity Date occurs during the period from the time any Settlement Notice is given for a Cash Settlement or Net Share Settlement of such Transaction until the related Relevant Settlement Date, inclusive, then the provisions set forth below opposite “Early Valuation” shall apply to such Transaction as if the Maturity Date for such Transaction were the Early Valuation Date for such Transaction). |
| Undesignated Shares: | |
For any Transaction,
as of any date, the Number of Shares for such Transaction minus the number of Shares designated as Settlement Shares for Settlements
of such Transaction for which the related Relevant Settlement Date has not occurred. |
| | |
|
| Settlement Method Election: | |
For any Transaction, applicable;
provided that: |
| | |
|
| | |
(i) Net Share Settlement
shall be deemed to be included as an additional settlement method under Section 7.1 of the Equity Definitions; |
| | |
|
| | |
(ii) Counterparty
may elect Cash Settlement or Net Share Settlement for any Settlement of any Transaction only if Counterparty represents and warrants
to Dealer in the Settlement Notice containing such election that, as of the date of such Settlement Notice, (A) Counterparty is not
aware of any material nonpublic information concerning itself or the Shares, (B) Counterparty is electing the settlement method and
designating the First Unwind Date specified in such Settlement Notice in good faith and not as part of a plan or scheme to evade
compliance with Rule 10b-5 under the Exchange Act (“Rule 10b-5”) or any other provision of the federal securities
laws, (C) Counterparty is not “insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code
(Title 11 of the United States Code) (the “Bankruptcy Code”)), (D) Counterparty would be able to purchase a
number of Shares equal to the greater of (x) the number of Settlement Shares designated in such Settlement Notice and (y) a
number of Shares with a value as of the date of such Settlement Notice equal to the product of (I) such number of Settlement Shares
and (II) the applicable Relevant Forward Price for such Cash Settlement or Net Share Settlement in compliance with the laws of
Counterparty's jurisdiction of organization and (E) such election, and settlement in accordance therewith, does not and will not
violate or conflict with any law or regulation applicable to Counterparty, or any order or judgment of any court or other agency of
government applicable to it or any of its assets, and any governmental consents that are required to have been obtained by
Counterparty with respect to such election or settlement have been obtained and are in full force and effect and all conditions of
any such consents have been complied with; and |
| | |
|
| | |
(iii) Notwithstanding any
election to the contrary in any Settlement Notice, Physical Settlement shall be applicable for any Settlement of any Transaction: |
| | |
|
| | |
(A)
to all of the Settlement Shares designated in such Settlement Notice if, at any time from the date such Settlement Notice is received
by Dealer until the related First Unwind Date, inclusive, (I) the trading price per Share on the Exchange (as determined by Dealer in
good faith and in a commercially reasonable manner) is below the Threshold Price or (II) Dealer determines, in its good faith and commercially
reasonable judgment, that it would, after using commercially reasonable efforts, be unable to purchase a number of Shares in the market
sufficient to unwind a commercially reasonable hedge position in respect of the portion of the Transaction represented by such Settlement
Shares and satisfy its delivery obligation hereunder, if any, by the Maturity Date (x) in a manner that (A) would, if Dealer were
Counterparty or an affiliated purchaser of Counterparty, be subject to the safe harbor provided by Rule 10b-18(b) under the Exchange Act
and (B) based on advice of counsel, would not raise material risks under applicable securities laws or (y) due to the lack of sufficient
liquidity in the Shares (each, a “Trading Condition”); or |
| | |
(B) to all or a
portion of the Settlement Shares designated in such Settlement Notice if, on any day during the relevant Unwind Period, (I) the trading
price per Share on the Exchange (as determined by Dealer in good faith and in a commercially reasonable manner) is below the Threshold
Price for two or more Exchange Business Days or (II) Dealer determines, in its good faith and commercially reasonable judgment or based
on advice of counsel, as applicable, that a Trading Condition has occurred with respect to such Transaction, in which case the provisions
set forth below in the third paragraph opposite “Early Valuation” shall apply as if such day were the Early Valuation Date
for such Transaction and (x) for purposes of clause (i) of such paragraph, such day shall be the last Unwind Date of such Unwind Period
and the “Unwound Shares” shall be calculated to, and including, such day and (y) for purposes of clause (ii) of such paragraph,
the “Remaining Shares” shall be equal to the number of Settlement Shares designated in such Settlement Notice minus
the Unwound Shares determined in accordance with clause (x) of this sentence. |
| | |
|
| Threshold Price: | |
For each Transaction, as specified
in the Supplemental Confirmation for such Transaction, to be 25% of the Initial Forward Price for such Transaction. |
| | |
|
| Electing Party: | |
Counterparty |
| | |
|
| Settlement Method Election Date: | |
With respect to any Settlement
of any Transaction, the 3rd Scheduled Trading Day immediately preceding (x) the Valuation Date for such Transaction, in the
case of Physical Settlement, or (y) the First Unwind Date for such Transaction, in the case of Cash Settlement or Net Share
Settlement. |
| | |
|
| Default Settlement Method: | |
Physical Settlement |
| | |
|
| Physical
Settlement: | |
Notwithstanding Section 9.2(a)(i) of the Equity Definitions, on the
Settlement Date for any Settlement of any Transaction, Dealer shall pay to Counterparty an amount equal to the Forward Price for such
Transaction on the relevant Valuation Date multiplied by the number of Settlement Shares for such Settlement, and Counterparty
shall deliver to Dealer such Settlement Shares. If, on any Settlement Date, the Shares to be delivered by Counterparty to Dealer hereunder
are not so delivered (the “Deferred Shares”), and a Forward Price Reduction Date occurs during the period from, and
including, such Settlement Date to, but excluding, the date such Shares are actually delivered to Dealer, then the portion of the amount
payable by Dealer to Counterparty in respect of the Deferred Shares shall be reduced by an amount equal to the Forward Price Reduction
Amount for such Forward Price Reduction Date, multiplied by the number of Deferred Shares. |
| Settlement Date: | |
For any Settlement of any Transaction,
the Valuation Date for such Settlement. |
| | |
|
| Net Share Settlement: | |
On the Net Share Settlement
Date for any Settlement of any Transaction to which Net Share Settlement is applicable, if the Net Share Settlement Amount for such
Settlement is greater than zero, Counterparty shall deliver a number of Shares equal to such Net Share Settlement Amount (rounded
down to the nearest integer) to Dealer, and if such Net Share Settlement Amount is less than zero, Dealer shall deliver a number
of Shares equal to the absolute value of such Net Share Settlement Amount (rounded down to the nearest integer) to Counterparty,
in either case, in accordance with Section 9.4 of the Equity Definitions, with such Net Share Settlement Date deemed to be a
“Settlement Date” for purposes of such Section 9.4, and, in either case, plus cash in lieu of any fractional Shares
included in such Net Share Settlement Amount but not delivered due to rounding required hereby, valued at the relevant Settlement
Price. |
| | |
|
| Net Share Settlement Date: | |
For any Settlement of any Transaction
to which Net Share Settlement is applicable, the date that follows the Valuation Date for such Settlement by one Settlement Cycle. |
| | |
|
| Net Share Settlement Amount: | |
For any Settlement of any
Transaction to which Net Share Settlement is applicable, an amount equal to the Forward Cash Settlement Amount for such Settlement
divided by the Settlement Price for such Settlement. |
| | |
|
| Forward Cash Settlement Amount: | |
Notwithstanding Section 8.5(c) of
the Equity Definitions, the Forward Cash Settlement Amount for any Cash Settlement or Net Share Settlement of any Transaction shall
be equal to (i) the number of Settlement Shares for such Settlement multiplied by (ii) an amount equal to (A) the
Settlement Price for such Settlement minus (B) the Relevant Forward Price for such Settlement. |
| | |
|
| Relevant Forward Price: | |
For any Cash Settlement of any
Transaction, the arithmetic average of the Forward Prices for such Transaction on each Unwind Date relating to such Settlement. |
| | |
|
| | |
For any Net Share Settlement
of any Transaction, the weighted average of the Forward Prices for such Transaction on each Unwind Date relating to such Settlement
(weighted based on the number of Shares purchased by Dealer or its agent or affiliate on each such Unwind Date in connection with
unwinding its commercially reasonable hedge position in connection with such Settlement, as determined by the Calculation Agent). |
| | |
|
| Settlement Price: | |
For any Cash Settlement of any Transaction, the arithmetic average
of the 10b-18 VWAP on each Unwind Date relating to such Settlement, plus a commercially reasonable amount determined by the Calculation
Agent in good faith that in no event will exceed USD 0.02 per Share. |
| | |
For any Net Share
Settlement of any Transaction, the weighted average price of the purchases of Shares made by Dealer (or its agent or affiliate) during
the Unwind Period for such Settlement in connection with unwinding its commercially reasonable hedge position relating to such Settlement
(weighted based on the number of Shares purchased by Dealer or its agent or affiliate on each Unwind Date in connection with unwinding
its commercially reasonable hedge position in connection with such Settlement, as determined by the Calculation Agent), plus a
commercially reasonable amount determined by the Calculation Agent in good faith that in no event will exceed USD 0.02 per Share. |
| | |
|
| 10b-18 VWAP: | |
For any Exchange Business Day, as reasonably determined by the Calculation
Agent based on the composite 10b-18 Volume Weighted Average Price per Share for the regular trading session (including any extensions
thereof) of the Exchange on such Exchange Business Day (without regard to pre-open or after hours trading outside of such regular trading
session for such Exchange Business Day), as published by Bloomberg at 4:15 p.m. New York time (or 15 minutes following the end of any
extension of the regular trading session) on such Exchange Business Day, on Bloomberg page “AVB <Equity> AQR_SEC” (or
any successor thereto), or if such price is not so reported on such Exchange Business Day for any reason or is, in the Calculation Agent’s
reasonable determination, erroneous, such 10b-18 VWAP shall be determined by the Calculation Agent in a good faith and commercially reasonable
manner. For purposes of calculating the 10b-18 VWAP for such Exchange Business Day, the Calculation Agent will include only those trades
that are reported during the period of time during which Counterparty could purchase its own shares under Rule 10b-18(b)(2) and are effected
pursuant to the conditions of Rule 10b-18(b)(3), each under the Exchange Act (such trades, “Rule 10b-18 eligible transactions”). |
| | |
|
| Unwind Activities: | |
The times and prices at which Dealer
(or its agent or affiliate) purchases any Shares during any Unwind Period in connection with unwinding its commercially reasonable hedge
position in respect of each Transaction shall be determined by Dealer in a commercially reasonable manner. Without limiting the generality
of the foregoing, in the event that Dealer concludes, in its good faith, reasonable discretion based on advice of counsel, that it is
appropriate with respect to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such
requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer) (a “Regulatory Disruption”),
for it to refrain from purchasing Shares in connection with unwinding its commercially reasonable hedge position in respect of such Transaction
on any Scheduled Trading Day that would have been an Unwind Date but for the occurrence of a Regulatory Disruption, Dealer shall notify
Counterparty in writing that a Regulatory Disruption has occurred on such Scheduled Trading Day with respect to such Transaction, and
Dealer shall, in its good faith, reasonable discretion based on advice of counsel and subject to applicable legal, regulatory and self-regulatory
requirements and related policies and procedures of Dealer (in the case of policies and procedures, so long as such policies and procedures
have been adopted by Dealer in good faith and are consistently applied in similar situations to transactions like the Transactions hereunder),
specify the nature of such Regulatory Disruption. For the avoidance of doubt, such Scheduled Trading Day shall not be an Unwind Date for
such Transaction and such Regulatory Disruption shall be deemed to be a Market Disruption Event; provided that Dealer
may exercise its right to suspend under this sentence only in good faith and based on advice of counsel in relation to events or circumstances
that are not the result of actions of it or any of its Affiliates that are taken with the intent to avoid its obligations under the Transactions. |
| Relevant Settlement Date: | |
For any Settlement of any Transaction,
the Settlement Date, Cash Settlement Payment Date or Net Share Settlement Date for such Settlement, as the case may be. |
| | |
|
| Other Applicable Provisions: | |
To the extent Dealer
is obligated to deliver Shares under any Transaction, the provisions of Sections 9.2 (last sentence only), 9.8, 9.9, 9.10, 9.11 and 9.12
of the Equity Definitions will be applicable as if “Physical Settlement” applied to such Transaction; provided that
the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations
therein relating to restrictions, obligations, limitations or requirements under applicable securities laws that exist as a result of
the fact that Counterparty is the issuer of the Shares. |
| | |
|
| Share
Adjustments: | |
|
| | |
|
| Potential Adjustment Events: | |
An Extraordinary Dividend shall
not constitute a Potential Adjustment Event. For the avoidance of doubt, a cash dividend on the Shares that differs from expected
dividends as of the Trade Date shall not be a Potential Adjustment Event under Section 11.2(e)(vii) of the Equity Definitions
with respect to such Transaction. |
| | |
|
| Extraordinary Dividend: | |
For any Transaction, any dividend
or distribution on the Shares with an ex-dividend date occurring on any day following the Trade Date (other than (i) any dividend
or distribution of the type described in Section 11.2(e)(i) or Section 11.2(e)(ii)(A) of the Equity Definitions
or (ii) a regular, quarterly cash dividend in an amount equal to or less than the Regular Dividend Amount for such calendar
quarter for such Transaction that has an ex-dividend date no earlier than the Forward Price Reduction Date occurring in the relevant
quarter for such Transaction). |
| | |
|
| Regular Dividend Amount: | |
For each Transaction and for
each calendar quarter, the amount set forth under the heading “Regular Dividend Amount” in the Transaction Notice for
such Transaction and for such calendar quarter, as specified in Schedule I to the Supplemental Confirmation for such Transaction. |
| | |
|
| Method of Adjustment: | |
Calculation Agent Adjustment |
| | |
|
| Extraordinary
Events: | |
|
| | |
|
| Extraordinary Events: | |
The consequences that would
otherwise apply under Article 12 of the Equity Definitions to any applicable Extraordinary Event (excluding any Failure to Deliver, Increased
Cost of Hedging, Increased Cost of Stock Borrow or any Extraordinary Event that also constitutes a Bankruptcy Termination Event,
but including, for the avoidance of doubt, any other applicable Additional Disruption Event) shall not apply. |
| Tender Offer: | |
Applicable; provided that
Section 12.1(d) of the Equity Definitions shall be amended by replacing the reference therein to “10%” with
a reference to “20%”. |
| | |
|
| Delisting: | |
In addition to the provisions
of Section 12.6(a)(iii) of the Equity Definitions, it shall 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); if the Shares are immediately re-listed, re-traded
or re-quoted on any such exchange or quotation system, such exchange or quotation system shall be deemed to be the Exchange. |
| | |
|
| Additional
Disruption Events: | |
|
| | |
|
| Change in Law: | |
Applicable; provided that (A)
any determination as to whether (i) the adoption of or any change in any applicable law or regulation (including, without limitation,
any tax law) or (ii) the promulgation of or any change in or public announcement of the formal or informal interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing
authority), in each case, constitutes a “Change in Law” shall be made without regard to Section 739 of the Dodd-Frank Wall
Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation
promulgated, on or after the Trade Date, (B) Section 12.9(a)(ii) of the Equity Definitions is hereby amended (i) by adding the
words “(including, for the avoidance of doubt and without limitation, adoption or promulgation of new regulations authorized or
mandated by existing statute)” after the word “regulation” in the second line thereof and (ii) by replacing the
words “the interpretation” with the words “or public announcement of any formal or informal interpretation” in
the third line thereof and (C) the words “, unless the illegality is due to an act or omission of the party seeking to elect
termination of the Transaction with the intent to avoid its obligations under the terms of the Transaction” are added immediately
following the word “Transaction” in the fifth line thereof; and provided further that Section 12.9(a)(ii) of the Equity
Definitions is hereby amended by adding the phrase “and/or Hedge Position” after the word “Shares” in clause (X)
thereof and adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date” immediately following the
word “Transaction” in clause (X) thereof,. |
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|
| Failure to Deliver: | |
Applicable |
| | |
|
| Hedging Disruption: | |
Applicable |
| | |
|
| Increased Cost of Hedging: | |
Not Applicable |
| Increased Cost of Stock Borrow: | |
Applicable; provided
that Section 12.9(b)(v) of the Equity Definitions shall be amended by (i) deleting clause (C) of the second
sentence thereof and (ii) deleting the third, fourth and fifth sentences thereof. For the avoidance of doubt, upon the announcement
of any event that, if consummated, would result in a Merger Event or Tender Offer, the term “rate to borrow Shares” as
used in Section 12.9(a)(viii) of the Equity Definitions shall include any commercially reasonable cost borne or amount
payable by the Hedging Party in respect of maintaining or reestablishing its commercially reasonable hedge position with respect
to the relevant Transaction, including, but not limited to, any assessment or other amount payable by the Hedging Party to a lender
of Shares in respect of any merger or tender offer premium, as applicable. |
| | |
|
| Initial Stock Loan Rate: | |
For each Transaction, as specified
in the Supplemental Confirmation for such Transaction. |
| | |
|
| Loss of Stock Borrow: | |
Applicable; provided
that Section 12.9(b)(iv) of the Equity Definitions shall be amended by (i) deleting clause (A) of the first sentence
thereof in its entirety and (ii) deleting the words “neither the Non-Hedging Party nor the Lending Party lends Shares
in the amount of the Hedging Shares or” in the second sentence thereof. |
| | |
|
| Maximum Stock Loan Rate: | |
For each Transaction, as specified
in the Supplemental Confirmation for such Transaction. |
| | |
|
| Hedging Party: | |
For all applicable Additional
Disruption Events, Dealer |
| | |
|
| Determining Party: | |
For all applicable Extraordinary
Events, Dealer |
| | |
|
| Early
Valuation: | |
|
| | |
|
| Early Valuation: | |
For any Transaction, notwithstanding
anything to the contrary herein, in the Agreement, in any Supplemental Confirmation or in the Equity Definitions, at any time (x) following
the occurrence of a Hedging Event with respect to such Transaction, the declaration by Issuer of an Extraordinary Dividend, or an
ISDA Event with respect to such Transaction or (y) if an Excess Section 13 Ownership Position, an Excess NYSE Ownership
Position or an Excess Regulatory Ownership Position exists, Dealer (or, in the case of such an ISDA Event that is an Event of Default
or Termination Event, the party entitled to designate an Early Termination Date in respect of such event pursuant to Section 6
of the Agreement) shall have the right to designate any Scheduled Trading Day to be the “Early Valuation Date” for such
Transaction, in which case the provisions set forth in this “Early Valuation” section shall apply to such Transaction,
in the case of an Event of Default or Termination Event, in lieu of Section 6 of the Agreement. For the avoidance of doubt,
any amount calculated pursuant to this “Early Valuation” section as a result of an Extraordinary Dividend shall not be
adjusted by the value associated with such Extraordinary Dividend. |
| | |
Dealer represents and warrants
to and agrees with Counterparty that (i) based upon advice of counsel, Dealer (A) does not know of the existence on the
Trade Date of an Excess Section 13 Ownership Position, an Excess NYSE Ownership Position or an Excess Regulatory Ownership Position
and (B) based on reasonable internal inquiry in the ordinary course of Dealer’s business does not know on the Trade Date
of any event or circumstance that will cause the occurrence of an Excess Section 13 Ownership Position, an Excess NYSE Ownership
Position or an Excess Regulatory Ownership Position on any day during the term of each Transaction; and (ii) Dealer will not
knowingly cause the occurrence of an Excess Section 13 Ownership Position, an Excess NYSE Ownership Position or an Excess Regulatory
Ownership Position on any day during the term of any Transaction for the purpose, in whole or in part, of causing the occurrence
of an Early Valuation Date. |
| | |
|
| | |
If an Early Valuation Date
for a Transaction occurs on a date that is not during an Unwind Period for such Transaction, then such Early Valuation Date shall
be a Valuation Date for a Physical Settlement of such Transaction, and the number of Settlement Shares for such Settlement shall
be the Number of Shares on such Early Valuation Date; provided that Dealer may in its sole discretion permit Counterparty
to elect Cash Settlement or Net Share Settlement in respect of such Transaction. |
| | |
|
| | |
If an Early Valuation Date
for a Transaction occurs during an Unwind Period for such Transaction, then (i) (A) the last Unwind Date of such Unwind
Period shall be deemed to be such Early Valuation Date, (B) a Settlement shall occur in respect of such Unwind Period, and the
Settlement Method elected by Counterparty in respect of such Settlement shall apply, and (C) the number of Settlement Shares
for such Settlement shall be the number of Unwound Shares for such Unwind Period on such Early Valuation Date, and (ii) (A) such
Early Valuation Date shall be a Valuation Date for an additional Physical Settlement of such Transaction (provided that Dealer
may in its sole discretion elect that the Settlement Method elected by Counterparty for the Settlement described in clause (i) of
this sentence shall apply) and (B) the number of Settlement Shares for such additional Settlement shall be the number of Remaining
Shares on such Early Valuation Date. |
| | |
|
| | |
Notwithstanding the foregoing,
in the case of a Nationalization or Merger Event, if at the time of the related Relevant Settlement Date the Shares have changed
into cash or any other property or the right to receive cash or any other property, the Calculation Agent shall adjust the nature
of the Shares as it determines appropriate to account for such change such that the nature of the Shares is consistent with what
shareholders receive in such event. |
| | |
|
| ISDA Event: | |
(i) Any Event of Default
or Termination Event, other than an Event of Default or Termination Event that also constitutes a Bankruptcy Termination Event, that
gives rise to the right of either party to designate an Early Termination Date pursuant to Section 6 of the Agreement or (ii) the
bona fide, public announcement of any event or transaction on or after the Trade Date that, if consummated, would result in a Merger
Event, Tender Offer, Nationalization, Delisting or Change in Law, in each case, as determined by the Calculation Agent. |
| | |
|
| Amendment to Merger Event: | |
Section 12.1(b) of
the Equity Definitions is hereby amended by deleting the remainder of such Section beginning with the words “in each case
if the Merger Date is on or before” in the fourth to last line thereof. |
| Hedging Event: | |
In respect of any Transaction,
the occurrence of any of the following events on or following the Trade Date: (i) (x) a Loss of Stock Borrow in connection
with which Counterparty does not refer the Hedging Party to a Lending Party within the required time period as provided in Section 12.9(b)(iv) of
the Equity Definitions or (y) a Hedging Disruption, (ii) an Increased Cost of Stock Borrow in connection with which Counterparty
does not elect, and so notify the Hedging Party of its election, in each case, within the required time period to either amend such
Transaction pursuant to Section 12.9(b)(v)(A) of the Equity Definitions or pay an amount determined by the Calculation
Agent that corresponds to the relevant Price Adjustment pursuant to Section 12.9(b)(v)(B) of the Equity Definitions or
(iii) the occurrence of a Market Disruption Event during an Unwind Period for such Transaction and the continuance of such Market
Disruption Event for at least eight Scheduled Trading Days. |
| | |
|
| Remaining Shares: | |
For any Transaction, on any
day, the Number of Shares for such Transaction as of such day (or, if such day occurs during an Unwind Period for such Transaction,
the Number of Shares for such Transaction as of such day minus the Unwound Shares for such Transaction for such Unwind Period
on such day). |
| | |
|
| Unwound Shares: | |
For any Transaction, for any
Unwind Period in respect of such Transaction on any day, the aggregate number of Shares with respect to which Dealer has unwound
its commercially reasonable hedge position in respect of such Transaction in connection with the related Settlement as of such day. |
| | |
|
| Acknowledgements: | |
|
| | |
|
| Non-Reliance: | |
Applicable |
| | |
|
| Agreements and Acknowledgements | |
|
| Regarding Hedging Activities: | |
Applicable |
| | |
|
| Additional Acknowledgements: | |
Applicable |
| | |
|
| Transfer: | |
Notwithstanding anything to the contrary
in the Agreement, Dealer may assign, transfer and set over all rights, title and interest, powers, privileges and remedies of Dealer under
any Transaction, in whole or in part, to (a) an affiliate of Dealer whose obligation is guaranteed by [Dealer/Dealer Parent] or (b) any
other affiliate of Dealer with a long-term issuer rating equal to or better than the credit rating of Dealer at the time of transfer without
the consent of Counterparty; provided that, at all times, Dealer or any transferee or assignee or other recipient of rights, title
and interest, powers, privileges and remedies shall be eligible to provide a U.S. Internal Revenue Service Form W-9 or W-8ECI with respect
to any payments or deliveries under the Agreement; provided further that (x) Counterparty will neither (1) be required to
pay, nor is there a material likelihood that it would be required to pay, an additional amount in respect of an Indemnifiable Tax under
Section 2(d)(i)(4) of the Agreement, nor (2) receive a payment, nor is there a material likelihood that it would receive a payment, from
which an amount has been deducted or withheld for or on account of any Indemnifiable 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 (y) no Event of Default or Potential Event
of Default shall have occurred with respect to either party solely as a result of such transfer and assignment. |
| Calculation Agent: | |
Dealer; provided
that, following the occurrence of an Event of Default pursuant to Section 5(a)(vii) of the Agreement with respect to which Dealer is the
sole Defaulting Party, Counterparty shall have the right to select a leading dealer in the market for U.S. corporate equity derivatives
to replace Dealer as Calculation Agent, and the parties shall work in good faith to execute any appropriate documentation required by
such replacement Calculation Agent. |
| | |
|
| | |
All calculations and
determinations made by the Calculation Agent shall be made in good faith and in a commercially reasonable manner; provided that
following any determination or calculation by the Calculation Agent hereunder, upon a written request by Counterparty, the Calculation
Agent will, within a commercially reasonable period of time following such request, provide to Counterparty by e-mail to the e-mail address
provided by Counterparty in such written request a report (in a commonly used file format for the storage and manipulation of financial
data) displaying in reasonable detail the basis for such determination or calculation, as the case may be; provided further, that
Dealer shall not be required to disclose any proprietary or confidential models of Dealer or any information that is proprietary or subject
to contractual, legal or regulatory obligations to not disclose such information. |
| | |
|
| Counterparty Payment | |
|
| Instructions: | |
To be provided by Counterparty |
| | |
|
| Dealer Payment Instructions: | |
[ ] |
| | |
|
| Counterparty’s Contact
Details | |
|
| for Purpose of Giving Notice: | |
To be provided by Counterparty |
| | |
|
| Dealer’s Contact Details | |
|
| for Purpose of Giving Notice: | |
[ ] |
| | |
[ ] |
| | |
[ ] |
| | |
|
| |
|
Attention:
[ ] |
| |
|
Phone:
[ ] |
| |
|
Mobile: [ ] |
| |
|
Email:
[ ] |
3. Effectiveness.
The effectiveness of each
Supplemental Confirmation and the related Transaction on the Effective Date for such Supplemental Confirmation shall be subject to the
following conditions:
(a) the
representations and warranties of Counterparty contained in the Underwriting Agreement, and any certificate delivered pursuant thereto
by Counterparty shall be true and correct on such Effective Date as if made as of such Effective Date;
(b) Counterparty
shall have performed all of the obligations required to be performed by it under the Underwriting Agreement on or prior to such Effective
Date;
(c) all
of the conditions set forth in Section 7 of the Underwriting Agreement shall have been satisfied;
(d) the
Forward Date (as defined in the Underwriting Agreement) shall have occurred as provided in the Underwriting Agreement;
(e) all
of the representations and warranties of Counterparty hereunder and under the Agreement shall be true and correct on such Effective Date
as if made as of such Effective Date;
(f) Counterparty
shall have performed all of the obligations required to be performed by it hereunder and under the Agreement on or prior to such Effective
Date, including without limitation its obligations under Section 6 hereof; and
(g) Counterparty
shall have delivered to Dealer on or prior to the Trade Date an opinion of counsel in form and substance reasonably satisfactory to Dealer,
with respect to the matters set forth in Section 3(a) of the Agreement and that the maximum number of Shares initially issuable
under such Transaction have been duly authorized and, upon issuance pursuant to the terms of such Transaction, will be validly issued,
fully paid and nonassessable.
Notwithstanding the foregoing or any other provision
of this Master Confirmation or any Supplemental Confirmation, if in respect of any Transaction (x) on or prior to 9:30 a.m., New
York City time, on any Settlement Date (as defined in the Underwriting Agreement), in connection with establishing its commercially reasonable
hedge position in respect of such Transaction, Dealer, in its sole commercially reasonable judgment, is unable, after using commercially
reasonable efforts, to borrow and deliver for sale the full number of Shares to be borrowed and sold pursuant to the Underwriting Agreement
on such Settlement Date or (y) in Dealer’s commercially reasonable judgment, it would incur a stock loan cost of more than
a rate equal to the Maximum Stock Loan Rate for such Transaction with respect to all or any portion of such full number of Shares, the
effectiveness of the related Supplemental Confirmation and such Transaction shall be limited to the number of Shares Dealer is so able
to borrow in connection with establishing its commercially reasonable hedge position of such Transaction at a cost of not more than a
rate equal to the Maximum Stock Loan Rate for such Transaction, which, for the avoidance of doubt, may be zero.
4. Additional
Mutual Representations and Warranties. In addition to the representations and warranties in the Agreement, each party represents and
warrants to the other party that it is an “eligible contract participant”, as defined in the U.S. Commodity Exchange Act (as
amended), and an “accredited investor” as defined in Section 2(a)(15)(ii) of the Securities Act of 1933 (as amended)
(the “Securities Act”), and is entering into each Transaction hereunder as principal and not for the benefit of any
third party.
5. Additional
Representations and Warranties of Counterparty. The representations and warranties of Counterparty set forth in Section 1 of
the Underwriting Agreement are true and correct as of the date hereof, each Closing Date (as defined in the Underwriting Agreement) and
each Trade Date for any Transaction and are hereby deemed to be repeated to Dealer as if set forth herein. In addition to the representations
and warranties in Section 1 of the Underwriting Agreement, the Agreement and those contained elsewhere herein, Counterparty
represents and warrants to Dealer, and agrees with Dealer, that:
(a) without
limiting the generality of Section 13.1 of the Equity Definitions, it acknowledges that Dealer is not making any representations
or warranties with respect to the treatment of any Transaction, including without limitation ASC Topic 260, Earnings Per Share,
ASC Topic 815, Derivatives and Hedging, ASC Topic 480, Distinguishing Liabilities from Equity, 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;
(b) it
shall not take any action to reduce or decrease the number of authorized and unissued Shares below the sum of (i) the aggregate Number
of Shares across all Transactions hereunder plus (ii) the total number of Shares issuable upon settlement (whether by net
share settlement or otherwise) of any other transaction or agreement to which it is a party;
(c) it
will not repurchase any Shares if, immediately following such repurchase, the aggregate Number of Shares across all Transactions hereunder
would be equal to or greater than 4.5% of the number of then-outstanding Shares and it will notify Dealer promptly upon the announcement
or consummation of any repurchase of Shares in an amount that, taken together with the amount of all repurchases since the date of the
last such notice (or, if no such notice has been given, since the Trade Date), exceeds 0.5% of the number of then-outstanding Shares;
(d) it
is not entering into this Master Confirmation or any Supplemental Confirmation 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) for the purpose of inducing the purchase or sale of the Shares (or any security
convertible into or exchangeable for Shares) by others;
(e) it
is not aware of any material non-public information regarding itself or the Shares; it is entering into this Master Confirmation and each
Supplemental Confirmation and will provide any Settlement Notice in good faith and not as part of a plan or scheme to evade compliance
with Rule 10b-5 or any other provision of the federal securities laws; it has not entered into or altered any hedging transaction
relating to the Shares corresponding to or offsetting any Transaction; and it has consulted with its own advisors as to the legal aspects
of its adoption and implementation of this Master Confirmation and each Supplemental Confirmation under Rule 10b5-1 under the Exchange
Act (“Rule 10b5-1”);
(f) as
of the date hereof and the Trade Date for each Transaction no state or local (including, to the best of Counterparty’s knowledge,
non-U.S. jurisdictions) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent,
registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as
a result of Dealer or its affiliates owning or holding (however defined) Shares; provided that Counterparty makes no such representation
or warranty regarding any such requirement that is applicable generally to the ownership of equity securities by Dealer;
(g) as
of the date hereof, the Trade Date for each Transaction and the date of any payment or delivery by Counterparty or Dealer under
any Transaction, it is not and will not be “insolvent” (as such term is defined under Section 101(32) of the Bankruptcy
Code);
(h) it
is not as of the date hereof, and on the Trade Date for each Transaction and after giving effect to the transactions contemplated
hereby and by each Supplemental Confirmation will not be, required to register as an “investment company” as such term
is defined in the Investment Company Act of 1940, as amended;
(i) as
of the date hereof and the Trade Date for each Transaction it: (i) is an “institutional account” as defined in FINRA
Rule 4512(c); and (ii) is capable of evaluating investment risks independently, both in general and with regard to all transactions
and investment strategies involving a security or securities, and will exercise independent judgment in evaluating any recommendations
of Dealer or its associated persons; and
(j) IT
UNDERSTANDS AS OF THE DATE HEREOF AND AS OF THE TRADE DATE FOR EACH TRANSACTION THAT EACH TRANSACTION IS SUBJECT TO COMPLEX RISKS WHICH
MAY ARISE WITHOUT WARNING AND MAY AT TIMES BE VOLATILE AND THAT LOSSES MAY OCCUR QUICKLY AND IN UNANTICIPATED MAGNITUDE
AND IS WILLING TO ACCEPT SUCH TERMS AND CONDITIONS AND ASSUME (FINANCIALLY AND OTHERWISE) SUCH RISKS.
6. Additional
Covenants of Counterparty.
(a) Counterparty
acknowledges and agrees that any Shares delivered by Counterparty to Dealer on any Settlement Date or Net Share Settlement Date for any
Transaction will be (i) newly issued, (ii) approved for listing or quotation on the Exchange, subject to official notice of
issuance, and (iii) registered under the Exchange Act, and, when delivered by Dealer (or an affiliate of Dealer) to securities lenders
from whom Dealer (or an affiliate of Dealer) borrowed Shares in connection with hedging its exposure to such 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 any such stock loan is effected by Dealer or an affiliate of Dealer. Accordingly, Counterparty agrees that any Shares so delivered
will not bear a restrictive legend and will be deposited in, and the delivery thereof shall be effected through the facilities of, the
Clearance System. In addition, Counterparty represents and agrees that any such Shares shall be, upon such delivery, duly and validly
authorized, issued and outstanding, fully paid and nonassessable, free of any lien, charge, claim or other encumbrance.
(b) Counterparty
agrees that Counterparty shall not enter into or alter any hedging transaction relating to the Shares corresponding to or offsetting any
Transaction. Without limiting the generality of the provisions set forth opposite the caption “Unwind Activities” in Section 2
of this Master Confirmation, Counterparty acknowledges that it has no right to, and agrees that it will not seek to, control or influence
Dealer’s decision to make any “purchases or sales” (within the meaning of Rule 10b5-1(c)(1)(i)(B)(3)) under or
in connection with any Transaction, including, without limitation, Dealer’s decision to enter into any hedging transactions.
(c) Counterparty
acknowledges and agrees that any amendment, modification, waiver or termination of this Master Confirmation or any Supplemental Confirmation
must be effected in accordance with the requirements for the amendment or termination of a “plan” as defined in Rule 10b5-1(c).
Without limiting the generality of the foregoing, any such amendment, modification, waiver or termination shall be made in good faith
and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5, and no such amendment, modification or waiver shall
be made at any time at which Counterparty or any officer, director, manager or similar person of Counterparty is aware of any material
non-public information regarding Counterparty or the Shares.
(d) Counterparty
shall promptly provide notice thereof to Dealer (i) upon the occurrence of any event that would constitute an Event of Default or
a Termination Event in respect of which Counterparty is a Defaulting Party or an Affected Party, as the case may be, and (ii) upon
announcement of any event that, if consummated, would constitute an Extraordinary Event or Potential Adjustment Event.
(e) Neither
Counterparty nor any of its “affiliated purchasers” (as defined by Rule 10b-18 under the Exchange Act (“Rule 10b-18”))
shall take any action that would cause any purchases of Shares by Dealer or any of its Affiliates in connection with any Cash Settlement
or Net Share Settlement of any Transaction not to meet the requirements of the safe harbor provided by Rule 10b-18 if such purchases
were made by Counterparty. Without limiting the generality of the foregoing, during any Unwind Period for any Transaction, except
with the prior written consent of Dealer, Counterparty will not, and will cause its affiliated purchasers (as defined in Rule 10b-18)
not to, directly or indirectly (including, without limitation, by means of a derivative instrument) purchase, offer to purchase, place
any bid or limit order that would effect a purchase of, or announce or commence any tender offer relating to, any Shares (or equivalent
interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible
into or exchangeable for the Shares.
(f) Counterparty
will not be subject to any “restricted period” (as such term is defined in Regulation M promulgated under the Exchange
Act (“Regulation M”)) in respect of Shares or any security with respect to which the Shares are a “reference
security” (as such term is defined in Regulation M) during any Unwind Period for any Transaction.
(g) Counterparty
shall: (i) prior to the opening of trading in the Shares on any day on which Counterparty makes, or expects to be made, any public
announcement (as defined in Rule 165(f) under the Securities Act) of any Merger Transaction, notify Dealer of such public announcement;
(ii) promptly notify Dealer following any such announcement that such announcement has been made; (iii) promptly (but in any
event prior to the next opening of the regular trading session on the Exchange) provide Dealer with written notice specifying (A) Counterparty’s
average daily Rule 10b-18 Purchases (as defined in Rule 10b-18) during the three full calendar months immediately preceding
the announcement date for the Merger Transaction that were not effected through Dealer or its affiliates and (B) the number of Shares
purchased pursuant to the proviso in Rule 10b-18(b)(4) under the Exchange Act for the three full calendar months preceding such
announcement date. Such written notice shall be deemed to be a certification by Counterparty to Dealer that such information is true and
correct. In addition, Counterparty shall promptly notify Dealer of the earlier to occur of the completion of such transaction and the
completion of the vote by target shareholders. Counterparty acknowledges that any such notice may result in a Regulatory Disruption, a
Trading Condition or, if such notice relates to an event that is also an ISDA Event, an Early Valuation, or may affect the length of any
ongoing Unwind Period; accordingly, Counterparty acknowledges that its delivery of such notice must comply with the standards set forth
in Section 6(c) above. “Merger Transaction” means any merger, acquisition or similar transaction involving
a recapitalization as contemplated by Rule 10b-18(a)(13)(iv) under the Exchange Act. For the avoidance of doubt, a Merger Transaction
or the announcement thereof shall not give either party the right to designate an Early Valuation Date for any Transaction and/or to accelerate
or preclude an election by Counterparty of Physical Settlement for any Settlement of any Transaction, unless such Merger Transaction or
the announcement thereof is also an ISDA Event.
(h) Counterparty
agrees it will not treat ownership positions held by Dealer or any of its affiliates solely in its (or their) capacity as a nominee or
fiduciary for unrelated persons as constituting Beneficial Ownership or Constructive Ownership (as such terms are defined in the Articles
of Amendment and Restatement of the Articles of Incorporation of Counterparty, as amended from time to time) by Dealer.
7. Termination
on Bankruptcy. The parties hereto agree that, notwithstanding anything to the contrary in the Agreement or the Equity Definitions,
each Transaction constitutes a contract to issue a security of Counterparty as contemplated by Section 365(c)(2) of the Bankruptcy
Code and that a Transaction and the obligations and rights of Counterparty and Dealer (except for any liability as a result of breach
of any of the representations or warranties provided by Counterparty in Section 4 or Section 5 above) shall immediately terminate,
without the necessity of any notice, payment (whether directly, by netting or otherwise) or other action by Counterparty or Dealer, if,
on or prior to the final Settlement Date, Cash Settlement Payment Date or Net Share Settlement Date, as the case may be, for such Transaction
an Insolvency Filing occurs or any other proceeding commences with respect to Counterparty under the Bankruptcy Code (a “Bankruptcy
Termination Event”).
8. Additional
Provisions.
(a) Dealer acknowledges
and agrees that Counterparty’s obligations under the Transactions are not secured by any collateral and that neither this Master
Confirmation nor any Supplemental Confirmation is intended to convey to Dealer rights with respect to the transactions contemplated hereby
and by any Supplemental Confirmation that are senior to the claims of common stockholders in any U.S. bankruptcy proceedings of Counterparty;
provided that nothing herein shall limit or shall be deemed to limit Dealer’s right to pursue remedies in the event of a
breach by Counterparty of its obligations and agreements with respect to this Master Confirmation, any Supplemental Confirmation or the
Agreement; provided further that nothing herein shall limit or shall be deemed to limit Dealer’s rights in respect of any
transaction other than the Transactions.
(b) [Reserved].
(c) The
parties hereto intend for:
(i) each
Transaction to be a “securities contract” as defined in Section 741(7) of the Bankruptcy Code, and the parties hereto
to be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(27), 362(o), 546(e), 546(j), 555 and 561
of the Bankruptcy Code;
(ii) the
rights given to Dealer pursuant to “Early Valuation” in Section 2 above to constitute “contractual rights”
to cause the liquidation of a “securities contract” and to set off mutual debts and claims in connection with a “securities
contract”, as such terms are used in Sections 555 and 362(b)(6) of the Bankruptcy Code;
(iii) any
cash, securities or other property provided as performance assurance, credit support or collateral with respect to the Transactions to
constitute “margin payments” and “transfers” under a “securities contract” as defined in the Bankruptcy
Code;
(iv) all
payments for, under or in connection with the Transactions, all payments for Shares and the transfer of Shares to constitute “settlement
payments” and “transfers” under a “securities contract” as defined in the Bankruptcy Code; and
(v) any
or all obligations that either party has with respect to this Master Confirmation, any Supplemental Confirmation or the Agreement to constitute
property held by or due from such party to margin, guaranty or settle obligations of the other party with respect to the transactions
under the Agreement (including the Transactions) or any other agreement between such parties.
(d)
Notwithstanding any other provision of the Agreement, this Master Confirmation or any Supplemental Confirmation, in no event will
Counterparty be required to deliver in the aggregate in respect of all Settlement Dates, Net Share Settlement Dates or other dates
on which Shares are delivered in respect of any amount owed under any Transaction a number of Shares greater than two times the
Number of Shares for such Transaction as of the Trade Date for such Transaction (the “Capped Number”). The Capped
Number shall be subject to adjustment only on account of (x) Potential Adjustment Events of the type specified in
(1) Sections 11.2(e)(i) through (vi) of the Equity Definitions or (2) Section 11.2(e)(vii) of the
Equity Definitions so long as, in the case of this sub-clause (2), such event is within Issuer’s control and (y) Merger
Events requiring corporate action of Issuer (or any surviving entity of the Issuer hereunder in connection with any such Merger
Event). Counterparty represents and warrants to Dealer (which representation and warranty shall be deemed to be repeated for all
Transactions on each day that any Transaction is outstanding) that the aggregate Capped Number across all Transactions hereunder is
equal to or less than the number of authorized but unissued Shares that are not reserved for future issuance in connection with
transactions in the Shares (other than the Transactions) on the date of the determination of such aggregated Capped Number. In the
event Counterparty shall not have delivered the full number of Shares otherwise deliverable under any Transaction as a result of
this Section 8(c) (the resulting deficit for such Transaction, the “Deficit Shares”), Counterparty
shall be continually obligated to deliver Shares, from time to time until the full number of Deficit Shares have been delivered
pursuant to this paragraph, on a pro rata basis across all Transactions hereunder, when, and to the extent that, (A) Shares are
repurchased, acquired or otherwise received by Counterparty or any of its subsidiaries after the date hereof (whether or not in
exchange for cash, fair value or any other consideration), (B) authorized and unissued Shares reserved for issuance in respect
of other transactions prior to such date which prior to the relevant date become no longer so reserved and (C) Counterparty
additionally authorizes any unissued Shares that are not reserved for transactions other than the Transactions (such events as set
forth in clauses (A), (B) and (C) above, collectively, the “Share Issuance Events”). Counterparty shall
promptly notify Dealer of the occurrence of any of the Share Issuance Events (including the number of Shares subject to clause (A),
(B) or (C) and the corresponding number of Shares to be delivered for each Transaction) and, as promptly as reasonably
practicable, deliver such Shares thereafter. Counterparty shall not, until Counterparty’s obligations under the Transactions
have been satisfied in full, use any Shares that become available for potential delivery to Dealer as a result of any Share Issuance
Event for the settlement or satisfaction of any transaction or obligation other than the Transactions or reserve any such Shares for
future issuance for any purpose other than to satisfy Counterparty’s obligations to Dealer under the Transactions.
(e) The
parties intend for this Master Confirmation and each Supplemental Confirmation 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.
(f) The
parties intend for each Transaction (taking into account purchases of Shares in connection with any Cash Settlement or Net Share Settlement
of any Transaction) to comply with the requirements of Rule 10b5-1(c)(1)(i)(A) under the Exchange Act and for this Master Confirmation
and each Supplemental Confirmation to constitute a binding contract or instruction satisfying the requirements of 10b5-1(c) and to
be interpreted to comply with the requirements of Rule 10b5-1(c).
(g) Notwithstanding
any provisions of the Agreement, all communications relating to the Transactions or the Agreement shall be transmitted exclusively through
Dealer at [ ].
(h) Counterparty
acknowledges that:
(i) during
the term of the Transactions, Dealer 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 Transactions;
(ii) Dealer
and its affiliates may also be active in the market for the Shares and derivatives linked to the Shares other than in connection with
hedging activities in relation to the Transactions, including acting as agent or as principal and for its own account or on behalf of
customers;
(iii) Dealer
shall make its own determination as to whether, when or in what manner any hedging or market activities in Counterparty’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 and the Settlement Price for each Transaction;
(iv) any
market activities of Dealer and its affiliates with respect to the Shares may affect the market price and volatility of the Shares, as
well as the Forward Price and the Settlement Price for each Transaction, each in a manner that may be adverse to Counterparty; and
(v) each
Transaction is a derivatives transaction; Dealer may purchase or sell shares for its own account at an average price that may be greater
than, or less than, the price received by Counterparty under the terms of the relevant Transaction.
(i) Counterparty
and Dealer agree and acknowledge that (A) the Transactions contemplated by this Master Confirmation will be entered into in reliance
on the fact that this Master Confirmation and each Supplemental Confirmation hereto form a single agreement between Counterparty and Dealer,
and Dealer would not otherwise enter into such Transactions; (B) this Master Confirmation, together with each Supplemental Confirmation
hereto, is a “qualified financial contract,” as such term is defined in Section 5-701(b)(2) of the General Obligations
Law; (C) each Supplemental Confirmation hereto, regardless of whether transmitted electronically or otherwise, constitutes a “confirmation
in writing sufficient to indicate that a contract has been made between the parties” hereto, as set forth in Section 5-701(b)(3)(b) of
the General Obligations Law; and (D) this Master Confirmation and each Supplemental Confirmation hereto constitute a prior “written
contract,” as set forth in Section 5-701(b)(1)(b) of the General Obligations Law, and each party hereto intends and agrees
to be bound by this Master Confirmation and such Supplemental Confirmation.
9. Indemnification.
Counterparty agrees to indemnify and hold harmless Dealer, its affiliates and its assignees and their respective directors, officers
and controlling persons (Dealer and each such person being an “Indemnified Party”) from and against any and all losses
(excluding, for the avoidance of doubt, financial losses resulting from the economic terms of the Transactions), claims, damages and
liabilities (or actions in respect thereof), joint or several, incurred by or asserted against such Indemnified Party arising out
of, in connection with, or relating to, any breach of any covenant or representation made by Counterparty in this Master
Confirmation, any Supplemental Confirmation or the Agreement. Counterparty will not be liable under the foregoing indemnification
provision to the extent that any loss, claim, damage, liability or expense is found in a nonappealable judgment by a court of
competent jurisdiction to have resulted from Dealer’s willful misconduct, gross negligence or bad faith in performing the
services that are subject of the Transactions. If for any reason the foregoing indemnification is unavailable to any Indemnified
Party or insufficient to hold harmless any Indemnified Party, then Counterparty shall contribute, to the maximum extent permitted by
law, to the amount paid or payable by the Indemnified Party as a result of such loss, claim, damage or liability. In addition,
Counterparty will reimburse any Indemnified Party for all reasonable expenses (including reasonable counsel fees and expenses) as
they are incurred in connection with the investigation of, preparation for or defense or settlement of any pending or threatened
claim or any action, suit or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto and whether or
not such claim, action, suit or proceeding is initiated or brought by or on behalf of Counterparty. Counterparty also agrees that no
Indemnified Party shall have any liability to Counterparty or any person asserting claims on behalf of or in right of Counterparty
in connection with or as a result of any matter referred to in this Master Confirmation and any Supplemental Confirmation except to
the extent that any losses, claims, damages, liabilities or expenses incurred by Counterparty result from the gross negligence,
willful misconduct or bad faith of the Indemnified Party. The provisions of this Section 9 shall survive the completion of the
Transactions contemplated by this Master Confirmation and any Supplemental Confirmation and any assignment and/or delegation of the
Transactions made pursuant to the Agreement, this Master Confirmation or any Supplemental Confirmation shall inure to the benefit of
any permitted assignee of Dealer. For the avoidance of doubt, any payments due as a result of this provision may not be used to set
off any obligation of Dealer upon settlement of the Transactions.
10. Beneficial
Ownership. Notwithstanding anything to the contrary in the Agreement, this Master Confirmation or
any Supplemental Confirmation, in no event shall Dealer be entitled to receive, or be deemed to receive, or have an “interest”
in (within the meaning of NYSE Rule 312.04(e)) Shares to the extent that, upon such receipt of such Shares, (i) the “beneficial
ownership” (within the meaning of Section 13 of the Exchange Act and the rules promulgated thereunder) of Shares by Dealer,
any of its affiliates’ business units subject to aggregation with Dealer for purposes of the “beneficial ownership”
test under Section 13 of the Exchange Act and any “group” (within the meaning of Rule 13d-5(b)(1) under the
Exchange Act) of which Dealer is or may be deemed to be a part (collectively, “Dealer Group”) would be equal to or
greater than the lesser of (x) 4.5% of the outstanding Shares (such condition, an “Excess Section 13 Ownership Position”),
and (y) 4.9% of the outstanding Shares as of the Trade Date for any Transaction (such number of Shares, the “Threshold Number
of Shares” and such condition, the “Excess NYSE Ownership Position”) or (ii) Dealer, Dealer Group or
any person whose ownership position would be aggregated with that of Dealer or Dealer Group (Dealer, Dealer Group or any such person,
a “Dealer Person”) under Sections 3-601 through 3-603 of the Maryland Code (Corporations and Associations) or any state
or federal bank holding company or banking laws, or any federal, state or local laws, regulations or regulatory orders applicable
to ownership of Shares (“Applicable Laws”), would own, beneficially own, constructively own, control, hold the power
to vote or otherwise meet a relevant definition of ownership in excess of a number of Shares equal to (x) the lesser of (A) the
maximum number of Shares that would be permitted under Applicable Laws and (B) the number of Shares that would give rise to reporting
or registration obligations or other requirements (including obtaining prior approval by a state or federal regulator) of a Dealer Person
under Applicable Laws and with respect to which such requirements have not been met or the relevant approval has not been received or
that would give rise to any consequences under the constitutive documents of Counterparty (including, without limitation, Section 9.2(a) of
the Articles of Amendment and Restatement of the Articles of Incorporation of Counterparty (as amended from time to time)) or any contract
or agreement to which Counterparty is a party, in each case minus (y) 1% of the number of Shares outstanding on the date of
determination (such condition described in clause (ii), an “Excess Regulatory Ownership Position”). If any delivery
owed to Dealer under any Transaction is not made, in whole or in part, as a result of this provision, (i) Counterparty’s obligation
to make such delivery shall not be extinguished and Counterparty shall make such delivery as promptly as practicable after, but in no
event later than one Exchange Business Day after, Dealer gives notice to Counterparty that such delivery would not result in (x) Dealer
Group directly or indirectly so beneficially owning in excess of the lesser of (A) 4.5% of the outstanding Shares and (B) the
Threshold Number of Shares or (y) the occurrence of an Excess Regulatory Ownership Position and (ii) if such delivery relates
to a Physical Settlement of any Transaction, notwithstanding anything to the contrary herein, Dealer shall not be obligated to satisfy
the portion of its payment obligation with respect to such Transaction corresponding to any Shares required to be so delivered until the
date Counterparty makes such delivery.
11. Non-Confidentiality.
The parties hereby agree that (i) effective from the date of commencement of discussions concerning the Transactions,
Counterparty and each of its 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 Transactions and all materials of any kind, including opinions or other tax
analyses, provided by Dealer and its affiliates to Counterparty relating to such tax treatment and tax structure; provided
that the foregoing does not constitute an authorization to disclose the identity of Dealer or its affiliates, agents or advisers,
or, except to the extent relating to such tax structure or tax treatment, any specific pricing terms or commercial or financial
information, and (ii) Dealer does not assert any claim of proprietary ownership in respect of any description contained herein
or therein relating to the use of any entities, plans or arrangements to give rise to a particular United States federal income tax
treatment for Counterparty.
12. Restricted
Shares. If Counterparty is unable to comply with the covenant of Counterparty contained in Section 6 above or Dealer otherwise
determines in its reasonable opinion that any Shares to be delivered to Dealer by Counterparty under any Transaction may not be freely
returned by Dealer to securities lenders as described in the covenant of Counterparty contained in Section 6 above, then delivery
of any such Settlement Shares (the “Unregistered Settlement Shares”) shall be effected pursuant to Annex A hereto,
unless waived by Dealer.
13. Use of
Shares. Dealer acknowledges and agrees that, except in the case of a Private Placement Settlement,
Dealer shall use any Shares delivered by Counterparty to Dealer on any Settlement Date to return to securities lenders to close out borrowings
created by Dealer in connection with its hedging activities related to exposure under the Transactions or otherwise in compliance with
applicable law.
14. Rule 10b-18.
In connection with bids and purchases of Shares in connection with any Net Share Settlement or Cash Settlement of any Transaction, Dealer
shall use commercially reasonable 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 and taking into account any applicable Securities and Exchange Commission no-action letters as appropriate, and
subject to any delays between the execution and reporting of a trade of the Shares on the Exchange and other circumstances beyond Dealer’s
control.
15. Governing
Law. Notwithstanding anything to the contrary in the Agreement, the Agreement, this Master Confirmation,
any Supplemental Confirmation and all matters arising in connection with the Agreement this Master Confirmation and any Supplemental Confirmation
shall be governed by, and construed and enforced in accordance with, the laws of the State of New York (without reference to its choice
of laws doctrine other than Title 14 of Article 5 of the New York General Obligations Law).
16. Set-Off.
(a) The
parties agree that upon the occurrence of an Event of Default or Termination Event with respect to a party who is the Defaulting Party
or the Affected Party (“X”), the other party (“Y”) will have the right (but not be obliged) without
prior notice to X or any other person to set-off or apply any obligation of X owed to Y (whether or not matured or contingent and whether
or not arising under the Agreement, and regardless of the currency, place of payment or booking office of the obligation) against any
obligation of Y owed to X (whether or not matured or contingent and whether or not arising under the Agreement, and regardless of the
currency, place of payment or booking office of the obligation). Y will give notice to the other party of any set-off effected under this
Section 16.
Amounts (or the relevant portion
of such amounts) subject to set-off may be converted by Y into the Termination Currency at the rate of exchange at which such party would
be able, acting in a reasonable manner and in good faith, to purchase the relevant amount of such currency. If any obligation is unascertained,
Y may in good faith estimate that obligation and set-off in respect of the estimate, subject to the relevant party accounting to the other
when the obligation is ascertained. Nothing in this Section 16 shall be effective to create a charge or other security interest.
This Section 16 shall be without prejudice and in addition to any right of set-off, combination of accounts, lien or other right
to which any party is at any time otherwise entitled (whether by operation of law, contract or otherwise).
(b) Notwithstanding
anything to the contrary in the foregoing, Dealer agrees not to set off or net amounts due from Counterparty with respect to any Transaction
against amounts due from Dealer to Counterparty with respect to contracts or instruments that are not Equity Contracts. “Equity
Contract” means any transaction or instrument that does not convey to Dealer rights, or the ability to assert claims, that are
senior to the rights and claims of common stockholders in the event of Counterparty’s bankruptcy and would be classified as equity
according to generally accepted accounting principles in the United States.
17. Staggered
Settlement. Notwithstanding anything to the contrary herein, Dealer may, by prior notice to Counterparty, satisfy its obligation to
deliver any Shares or other securities on any date due (an “Original Delivery Date”) by making separate deliveries
of Shares or such securities, as the case may be, at more than one time on or prior to such Original Delivery Date, so long as the aggregate
number of Shares and other securities so delivered on or prior to such Original Delivery Date is equal to the number required to be delivered
on such Original Delivery Date.
18. Arbitration.
(a) All
parties to this Confirmation are giving up the right to sue each other in court, including the right to a trial by jury, except as provided
by the rules of the arbitration forum in which a claim is filed.
(b) Arbitration
awards are generally final and binding; a party’s ability to have a court reverse or modify an arbitration award is very limited.
(c) The
ability of the parties to obtain documents, witness statements and other discovery is generally more limited in arbitration than in court
proceedings.
(d) The
arbitrators do not have to explain the reason(s) for their award.
(e) The
panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry, unless
Counterparty is a member of the organization sponsoring the arbitration facility, in which case all arbitrators may be affiliated with
the securities industry.
(f) The
rules of some arbitration forums may impose time limits for bringing a claim in arbitration. In some cases, a claim that is ineligible
for arbitration may be brought in court.
(g) The
rules of the arbitration forum in which the claim is filed, and any amendments thereto, shall be incorporated into this Master Confirmation.
(h) Counterparty
agrees that any and all controversies that may arise between Counterparty and Dealer arising out of or relating to the Agreement or any
Transaction hereunder shall be determined by arbitration conducted before the FINRA Dispute Resolution (“FINRA-DR”), or, if
the FINRA-DR declines to hear the matter, before the American Arbitration Association, in accordance with their arbitration rules then
in force. The award of the arbitrator shall be final, and judgment upon the award rendered may be entered in any court, state or federal,
having jurisdiction.
(i) No
person shall bring a putative or certified class action to arbitration, nor seek to enforce any pre-dispute arbitration agreement against
any person who has initiated in court a putative class action or who is a member of a putative class who has not opted out of the class
with respect to any claims encompassed by the putative class action until: (i) the class certification is denied; (ii) the class
is decertified; or (iii) Counterparty is excluded from the class by the court.
(j) Such
forbearance to enforce an agreement to arbitrate shall not constitute a waiver of any rights under this Master Confirmation except to
the extent stated herein.
19. Counterparts.
This Master Confirmation may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and
any party hereto may execute this Master Confirmation by signing and delivering one or more counterparts.
20. Delivery
of Cash. For the avoidance of doubt, nothing in this Master Confirmation or any Supplemental Confirmation shall be interpreted as
requiring Counterparty to deliver cash or other assets in respect of the settlement of the Transactions, except in circumstances where
the required cash or other asset settlement thereof is permitted for classification of the contract as equity by ASC 815-40, Derivatives
and Hedging – Contracts in Entity’s Own Equity, as in effect on the date hereof.
21. Adjustments.
For the avoidance of doubt, whenever the Calculation Agent, the Hedging Party or the Determining Party is called upon to make an adjustment
pursuant to the terms of this Master Confirmation, any Supplemental Confirmation or the Equity Definitions to take into account the effect
of an event, the Calculation Agent, the Hedging Party or the Determining Party, as applicable, shall make such adjustment by reference
to the effect of such event on the Hedging Party, assuming that the Hedging Party maintains a commercially reasonable hedge position at
the time of the event.
22. [QFC
Stay Rules. The parties acknowledge and agree that (i) to the extent that prior to the date hereof both parties have adhered
to the 2018 ISDA U.S. Resolution Stay Protocol (the “Protocol”), the terms of the Protocol are incorporated into and
form a part of this Agreement, and for such purposes this Agreement shall be deemed a Protocol Covered Agreement, Dealer shall be deemed
a Regulated Entity and Counterparty shall be deemed an Adhering Party; (ii) to the extent that prior to the date hereof the parties
have executed a separate agreement the effect of which is to amend the qualified financial contracts between them to conform with the
requirements of the QFC Stay Rules (the “Bilateral Agreement”), the terms of the Bilateral Agreement are incorporated
into and form a part of this Agreement, and for such purposes this Agreement shall be deemed a Covered Agreement, Dealer shall be deemed
a “Covered Entity” and Counterparty shall be deemed a “Counterparty Entity”; or (iii) if clause (i) and
clause (ii) do not apply, 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 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 Agreement, and for
such purposes this Agreement shall be deemed a “Covered Agreement,” Dealer shall be deemed a “Covered Entity”
and Counterparty shall be deemed a “Counterparty Entity.” In the event that, after the date of this Agreement, both parties
hereto become adhering parties to the Protocol, the terms of the Protocol will replace the terms of this Section 22. In the event
of any inconsistencies between this Agreement and the terms of the Protocol, the Bilateral Agreement 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 Agreement”
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
[Dealer Parent] 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 FDIC 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.]
23. Other
Forward(s). Dealer acknowledges that Counterparty has entered into or may enter in the future into one or more other forward transactions
on the Shares (each, an “Other Forward” and, collectively, the “Other Forwards”) with one or more
other forward purchasers. Dealer and Counterparty agree that if Counterparty designates a “Settlement Date” or “First
Unwind 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 Forward(s) coincides for any period of time with an Unwind
Period for this Transaction (the “Overlap Unwind Period”), Counterparty shall notify Dealer at least one Scheduled
Trading Day prior to the commencement of such Overlap Unwind Period of the first Scheduled Trading Day and the length of such Overlap
Unwind Period, and Dealer shall be permitted to purchase Shares to unwind its hedge in respect of this Transaction only on alternating
Scheduled Trading Days during such Overlap Unwind Period, as notified to Dealer by Counterparty at least one Exchange Business 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 Forward, every third Scheduled Trading Day if there are two Other Forwards, etc.).
24. Right
to Designate. Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell,
receive or deliver any Shares or other securities to or from Counterparty, Dealer may designate any of its affiliates (each, a “Designee”)
to purchase, sell, receive or deliver such Shares or other securities and otherwise to perform Dealer’s obligations in respect of
the Transaction and any such Designee may assume such obligations.
25. Tax
Matters. [Insert applicable Dealer tax language]
26. [Reserved].
[Insert any Dealer boilerplate]
Counterparty hereby agrees (a) to check this
Master Confirmation carefully and immediately upon receipt so that errors or discrepancies can be promptly identified and rectified and
(b) to confirm that the foregoing (in the exact form provided by Dealer) correctly sets forth the terms of the agreement between
Dealer and Counterparty hereunder, by manually signing this Master Confirmation or this page hereof as evidence of agreement to such
terms and providing the other information requested herein and immediately returning an executed copy to us.
| Yours faithfully, |
| | | |
| | | |
| | [DEALER] |
| | | |
| | By: | |
| | | Name: |
| | | Title: |
| Agreed and accepted by: | |
| | | |
| AVALONBAY COMMUNITIES, INC. | |
| | | |
| By: | | |
| | Name: Joanne M. Lockridge | |
| | Title: Executive Vice President – Capital Markets | |
[Signature Page to Base Forward Confirmation]
ANNEX A
PRIVATE PLACEMENT PROCEDURES
If Counterparty delivers Unregistered
Settlement Shares pursuant to Section 12 above (a “Private Placement Settlement”), then:
(a) all
Unregistered Settlement Shares shall be delivered to Dealer (or any affiliate of Dealer designated by Dealer) pursuant to the exemption
from the registration requirements of the Securities Act provided by Section 4(a)(2) thereof;
(b) as
of or prior to the date of delivery, Dealer and any potential purchaser of any such shares from Dealer (or any affiliate of Dealer designated
by Dealer) identified by Dealer shall be afforded a commercially reasonable opportunity to conduct a due diligence investigation with
respect to Counterparty customary in scope for private placements of equity securities of similar size (including, without limitation,
the right to have made available to them for inspection all financial and other records, pertinent corporate documents and other information
reasonably requested by them);
(c) as
of the date of delivery, Counterparty shall enter into an agreement (a “Private Placement Agreement”) with Dealer (or
any affiliate of Dealer designated by Dealer) in connection with the private placement of such shares by Counterparty to Dealer (or any
such affiliate) and the private resale of such shares by Dealer (or any such affiliate), substantially similar to private placement purchase
agreements customary for private placements of equity securities of similar size, in form and substance commercially reasonably satisfactory
to Dealer, which Private Placement Agreement shall include, without limitation, provisions substantially similar to those contained in
such private placement purchase agreements relating, without limitation, to the indemnification of, and contribution in connection with
the liability of, Dealer and its affiliates and obligations to use best efforts to obtain customary opinions, accountants’ comfort
letters and lawyers’ negative assurance letters, and shall provide for the payment by Counterparty of all commercially reasonable
fees and expenses in connection with such resale, including all commercially reasonable fees and expenses of counsel for Dealer, and shall
contain representations, warranties, covenants and agreements of Counterparty reasonably necessary or advisable to establish and maintain
the availability of an exemption from the registration requirements of the Securities Act for such resales; and
(d) in
connection with the private placement of such shares by Counterparty to Dealer (or any such affiliate) and the private resale of such
shares by Dealer (or any such affiliate), Counterparty shall, if so requested by Dealer, prepare, in cooperation with Dealer, a private
placement memorandum in form and substance reasonably satisfactory to Dealer.
In the case of a Private Placement
Settlement, Dealer shall, in its good faith discretion, adjust the amount of Unregistered Settlement Shares to be delivered to Dealer
hereunder in a commercially reasonable manner to reflect the fact that such Unregistered Settlement Shares may not be freely returned
to securities lenders by Dealer and may only be saleable by Dealer at a discount to reflect the lack of liquidity in Unregistered Settlement
Shares.
If Counterparty delivers any
Unregistered Settlement Shares in respect of a Transaction, Counterparty agrees that (i) such Shares may be transferred by and among
Dealer 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, Counterparty shall promptly remove, or cause the transfer agent for
the Shares to remove, any legends referring to any transfer restrictions from such Shares upon delivery by Dealer (or such affiliate of
Dealer) to Counterparty or such transfer agent of seller’s and broker’s representation letters customarily delivered by Dealer
or its affiliates in connection with resales of restricted securities pursuant to Rule 144 under the Securities Act, each without
any further requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document, any
transfer tax stamps or payment of any other amount or any other action by Dealer (or such affiliate of Dealer).
SCHEDULE A
SUPPLEMENTAL CONFIRMATION
| To: |
|
AvalonBay Communities, Inc. |
| A/C: |
|
[___] |
| From: |
|
[Dealer] |
| Re: |
|
Issuer Share Forward Sale Transaction |
| Ref. No: |
|
[ ] |
| Date: |
|
September 5, 2024 |
Dear Sir(s):
The
purpose of this Supplemental Confirmation is to confirm the terms and conditions of the Transaction entered into between [Dealer]
(“Dealer”) and AvalonBay Communities, Inc. (“Counterparty”) (together, the “Contracting
Parties”) on the Trade Date specified below. This Supplemental Confirmation is a binding contract between Dealer and Counterparty
as of the relevant Trade Date for the Transaction referenced below.
1. This
Supplemental Confirmation supplements, forms part of, and is subject to the Master Confirmation dated as of September 5, 2024 (the
“Master Confirmation”) between the Contracting Parties, as amended and supplemented from time to time. All provisions
contained in the Master Confirmation govern this Supplemental Confirmation except as expressly modified below.
2. The
terms of the Transaction to which this Supplemental Confirmation relates are as follows:
| Trade Date: |
September 5, 2024 |
| Effective Date: |
September 9, 2024 |
| Maturity Date: |
December 31, 2025 |
| Number of Shares: |
800,000 |
| Spread: |
0.75% |
| Threshold Price: |
USD [ ] |
| Initial Stock Loan Rate: |
[ ] basis points per annum |
| Maximum Stock Loan Rate: |
200 basis points per annum |
Please confirm that the foregoing correctly sets
forth the terms of our agreement by signing and returning this Supplemental Confirmation.
| Yours faithfully, |
| | | |
| | | |
| | [DEALER] |
| | | |
| | By: | |
| | | Name: |
| | | Title: |
| Agreed and accepted by: | |
| | | |
| AVALONBAY COMMUNITIES, INC. | |
| | | |
| By: | | |
| | Name: Joanne M. Lockridge | |
| | Title: Executive Vice President – Capital Markets | |
[Signature Page to Base Supplemental Confirmation]
Schedule I
Forward
Price Reduction Amounts
| Forward Price Reduction Date: |
Forward Price Reduction Amount: |
| [___________], 20[__] |
USD [__] |
| [___________], 20[__] |
USD [__] |
| [___________], 20[__] |
USD [__] |
| [___________], 20[__] |
USD [__] |
| [___________], 20[__] |
USD [__] |
| [___________], 20[__] |
USD [__] |
REGULAR
DIVIDEND Amounts
| For any calendar quarter ending on or prior to [December 31, 20[__]]: |
USD [___] |
| For any calendar quarter ending after [December 31, 20[__]]: |
USD [___] |
EXHIBIT 1.4
| To: | AvalonBay Communities, Inc. | September 6, 2024 |
| | 4040 Wilson Blvd, Suite 1000 | |
| | Arlington, Virginia 22203 | |
| | | |
| From: | [Forward Purchaser] | |
| From: | [Forward Seller] | |
Ladies and Gentlemen,
The purpose of this letter
agreement (this “Master Confirmation”) is to set forth the terms and conditions of the transactions to be entered into
from time to time between [ ] (“Dealer”) and AvalonBay Communities, Inc. (“Counterparty”) in
accordance with the terms of the Underwriting Agreement, dated as of September 5, 2024 (the “Underwriting Agreement”),
among Bank of America, N.A., Deutsche Bank AG, London Branch, Goldman Sachs & Co. LLC, and Morgan Stanley & Co. LLC
as forward purchasers, BofA Securities, Inc. Deutsche Bank Securities Inc., Goldman Sachs & Co. LLC, and Morgan Stanley &
Co. LLC, as forward sellers and Counterparty on the Trade Dates specified herein (collectively, the “Transactions”
and each, a “Transaction”). This letter agreement constitutes a “Confirmation” as referred to in the Agreement
specified below. Each Transaction will be evidenced by a supplemental confirmation (each, a “Supplemental Confirmation”,
and each such Supplemental Confirmation, together with this Master Confirmation, a “Confirmation” for purposes of the
Agreement specified below) substantially in the form of Exhibit A hereto. Each Confirmation will be a confirmation for purposes of
Rule 10b-10 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
1. Each
Confirmation is subject to, and incorporates, the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”),
as published by the International Swaps and Derivatives Association, Inc. (“ISDA”). For purposes of the Equity
Definitions, each Transaction will be deemed to be a Share Forward Transaction.
Each Confirmation shall supplement,
form a part of and be subject to an agreement (the “Agreement”) in the form of the 1992 ISDA Master Agreement (Multicurrency—Cross
Border) (the “ISDA Form”), as published by ISDA, as if Dealer and Counterparty had executed the ISDA Form on the
date hereof (but without any Schedule except for (i) the election of Loss and Second Method, 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, (ii) the
replacement of the word “third” in the last line of Section 5(a)(i) with the word “first” and (iii) the
election that the “Cross Default” provisions of Section 5(a)(vi) shall apply to Dealer and Counterparty with a “Threshold
Amount” in respect of Dealer of 3% of the stockholders’ equity of [Dealer/Dealer’s Parent] [(“Dealer Parent”)]
and a “Threshold Amount” in respect of Counterparty of USD 200 million; provided that (x) the words “, or
becoming capable at such time of being declared,” shall be deleted from clause (1) thereof, (y) “Specified Indebtedness”
had 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 Dealer’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;”).
All provisions contained in
the Agreement are incorporated into and shall govern each Confirmation except as expressly modified below. Each Confirmation evidences
a complete and binding agreement between Dealer and Counterparty as to the terms of the relevant Transaction and replaces any previous
agreement between the parties with respect to the subject matter hereof.
The Transactions hereunder
shall be the sole Transactions under the Agreement. If there exists any ISDA Master Agreement between Dealer or any of its Affiliates
and Counterparty or any confirmation or other agreement between Dealer or any of its Affiliates and Counterparty pursuant to which an
ISDA Master Agreement is deemed to exist between Dealer or any of its Affiliates and Counterparty, then notwithstanding anything to the
contrary in such ISDA Master Agreement, such confirmation or agreement or any other agreement to which Dealer or such other Affiliates
and Counterparty are parties, the Transactions shall not be considered Transactions under, or otherwise governed by, such existing or
deemed ISDA Master Agreement. In the event of any inconsistency among the Agreement, this Master Confirmation, any Supplemental Confirmation
and the Equity Definitions, the following will prevail in the order of precedence indicated: (i) such Supplemental Confirmation;
(ii) this Master Confirmation; (iii) the Equity Definitions; and (iv) the Agreement.
2. The
terms of the particular Transactions to which this Master Confirmation relates are as follows:
| General
Terms: | |
|
| | |
|
| Trade Date: | |
September 6, 2024. |
| | |
|
| Effective Date: | |
September 9, 2024, or such
later date on which the conditions set forth in Section 3 of this Confirmation have been satisfied. |
| | |
|
| Buyer: | |
Dealer |
| | |
|
| Seller: | |
Counterparty |
| | |
|
| Maturity Date: | |
(i) December 31, 2025
(or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day) and (ii) the date on which the Number
of Shares is reduced to zero. |
| | |
|
| Shares: | |
The shares of common stock, par value $0.01 per
Share, of Counterparty (Ticker: “AVB”) |
| | |
|
| Number of Shares: | |
Initially, 120,000 Shares;
provided that, on each Relevant Settlement Date, the Number of Shares shall be reduced by the number of Settlement Shares
to be settled on such date (in the case of Physical Settlement) or the number of Settlement Shares for the applicable Settlement
(in the case of Cash Settlement or Net Share Settlement). |
| | |
|
| Settlement Currency: | |
USD |
| | |
|
| Exchange: | |
The New York Stock Exchange |
| | |
|
| Related Exchange: | |
All Exchanges |
| | |
|
| Prepayment: | |
Not Applicable |
| | |
|
| Variable Obligation: | |
Not Applicable |
| | |
|
| Forward Price: | |
On the Effective 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
plus (ii) the Daily Rate for such day * (1/365); 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: | |
USD 219.73 per Share. |
| Daily Rate: | |
For any day,
the Overnight Bank Funding Rate minus the Spread. |
| | |
|
| Spread: | |
For each Transaction, as specified
in the Supplemental Confirmation for such Transaction. |
| | |
|
| Overnight Bank Funding Rate: | |
For any day, the rate set
forth for such day opposite the caption “Overnight Bank Funding Rate” as displayed on the page “OBFR01<Index>
<GO>” on the BLOOMBERG Professional Service, or any successor page; provided that if no such rate appears for
such day on such page, Overnight Bank Funding Rate for such day shall be such rate for the immediately preceding day for which such
a rate appears. |
| | |
|
| Forward Price Reduction Dates: | |
For each Transaction, as specified
in Schedule I to the Supplemental Confirmation for such Transaction, to be each date set forth under the heading “Forward Price
Reduction Date” in the Transaction Notice for such Transaction. |
| | |
|
| Forward Price Reduction Amount: | |
For each Forward Price Reduction
Date, the Forward Price Reduction Amount set forth opposite such date on Schedule I to the Supplemental Confirmation for such Transaction. |
| | |
|
| Valuation: | |
|
| | |
|
| Valuation Date: | |
For any Settlement (as defined
below) with respect to any Transaction, if Physical Settlement is applicable, as designated in the relevant Settlement Notice (as
defined below); or if Cash Settlement or Net Share Settlement is applicable, the last Unwind Date for such Settlement. Section 6.6
of the Equity Definitions shall not apply to any Valuation Date. |
| | |
|
| Unwind Dates: | |
For any Cash Settlement or Net
Share Settlement with respect to any Settlement of any Transaction, each day on which Dealer (or its agent or affiliate) purchases
Shares in the market in connection with unwinding its commercially reasonable hedge position in connection with such Settlement,
starting on the First Unwind Date for such Settlement. |
| | |
|
| First Unwind Date: | |
For any Cash Settlement or Net
Share Settlement with respect to any Settlement of any Transaction, as designated in the relevant Settlement Notice. |
| | |
|
| Unwind Period: | |
For any Cash Settlement or Net
Share Settlement with respect to any Settlement of any Transaction, the period starting on the First Unwind Date for such Settlement
and ending on the Valuation Date for such Settlement. |
| Cash Settlement Valuation Disruption: |
|
If Cash Settlement is applicable with respect to any Transaction and any Unwind Date during the related Unwind Period is a Disrupted Day, the Calculation Agent shall determine whether (i) such Disrupted Day is a Disrupted Day in full, in which case the 10b-18 VWAP for such Disrupted Day shall not be included in the calculation of the Settlement Price, or (ii) such Disrupted Day is a Disrupted Day only in part, in which case the 10b-18 VWAP for such Disrupted Day shall be determined by the Calculation Agent based on Rule 10b-18 eligible transactions (as defined below) in the Shares on such Disrupted Day, taking into account the nature and duration of the relevant Market Disruption Event, and the weightings of the 10b-18 VWAP for each Unwind Date during such Unwind Period shall be adjusted in good faith and in a commercially reasonable manner by the Calculation Agent for purposes of determining the Settlement Price to account for the occurrence of such partially Disrupted Day, with such adjustments based on, among other factors, the duration of any Market Disruption Event and the volume, historical trading patterns and price of the Shares. |
| |
|
|
| Market Disruption Event: |
|
The definition of “Market Disruption Event” in Section 6.3(a) of the Equity Definitions is hereby amended by deleting the words “at any time during the one-hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be” and inserting the words “at any time on any Exchange Business Day during the Unwind Period” after the word “material,” in the third line thereof. |
| |
|
|
| |
|
Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof. |
| |
|
|
| Settlement Terms: |
|
|
| |
|
|
| Settlement : |
|
With respect to any Transaction, any Physical Settlement, Cash Settlement or Net Share Settlement of all or any portion of such Transaction. |
| |
|
|
| Settlement Notice: |
|
For any Transaction, subject to “Early Valuation” below, Counterparty may elect to effect a Settlement of all or any portion of such Transaction by designating one or more Scheduled Trading Days following the Effective Date for such Transaction and on or prior to the Maturity Date for such Transaction to be Valuation Dates (or, with respect to Cash Settlements or Net Share Settlements of such Transaction, First Unwind Dates, each of which First Unwind Dates shall occur no later than the 60th Scheduled Trading Day immediately preceding the Maturity Date for such Transaction) in a written notice to Dealer (a “Settlement Notice”) delivered no later than the applicable Settlement Method Election Date for such Transaction, which notice shall also specify (i) the number of Shares (the “Settlement Shares”) for such Settlement (not to exceed the number of Undesignated Shares for such Transaction as of the date of such Settlement Notice) and (ii) the Settlement Method applicable to such Settlement; provided that (A) Counterparty may not designate a First Unwind Date for a Cash Settlement or a Net Share Settlement of any Transaction if, as of the date of such Settlement Notice, any Shares have been designated as Settlement Shares for a Cash Settlement or a Net Share Settlement of such Transaction for which the related Relevant Settlement Date has not occurred; and (B) if the number of Undesignated Shares as of the Maturity Date for such Transaction is not zero, then the Maturity Date for such Transaction shall be a Valuation Date for a Physical Settlement of such Transaction and the number of Settlement Shares for such Settlement shall be the number of Undesignated Shares for such Transaction as of the Maturity Date for such Transaction (provided that if such Maturity Date occurs during the period from the time any Settlement Notice is given for a Cash Settlement or Net Share Settlement of such Transaction until the related Relevant Settlement Date, inclusive, then the provisions set forth below opposite “Early Valuation” shall apply to such Transaction as if the Maturity Date for such Transaction were the Early Valuation Date for such Transaction). |
| Undesignated Shares: | |
For any Transaction,
as of any date, the Number of Shares for such Transaction minus the number of Shares designated as Settlement Shares for Settlements
of such Transaction for which the related Relevant Settlement Date has not occurred. |
| | |
|
| Settlement Method Election: | |
For any Transaction, applicable;
provided that: |
| | |
|
| | |
(i) Net Share Settlement
shall be deemed to be included as an additional settlement method under Section 7.1 of the Equity Definitions; |
| | |
|
| | |
(ii) Counterparty
may elect Cash Settlement or Net Share Settlement for any Settlement of any Transaction only if Counterparty represents and warrants
to Dealer in the Settlement Notice containing such election that, as of the date of such Settlement Notice, (A) Counterparty is not
aware of any material nonpublic information concerning itself or the Shares, (B) Counterparty is electing the settlement method and
designating the First Unwind Date specified in such Settlement Notice in good faith and not as part of a plan or scheme to evade
compliance with Rule 10b-5 under the Exchange Act (“Rule 10b-5”) or any other provision of the federal securities
laws, (C) Counterparty is not “insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code
(Title 11 of the United States Code) (the “Bankruptcy Code”)), (D) Counterparty would be able to purchase a
number of Shares equal to the greater of (x) the number of Settlement Shares designated in such Settlement Notice and (y) a
number of Shares with a value as of the date of such Settlement Notice equal to the product of (I) such number of Settlement Shares
and (II) the applicable Relevant Forward Price for such Cash Settlement or Net Share Settlement in compliance with the laws of
Counterparty's jurisdiction of organization and (E) such election, and settlement in accordance therewith, does not and will not
violate or conflict with any law or regulation applicable to Counterparty, or any order or judgment of any court or other agency of
government applicable to it or any of its assets, and any governmental consents that are required to have been obtained by
Counterparty with respect to such election or settlement have been obtained and are in full force and effect and all conditions of
any such consents have been complied with; and |
| | |
|
| | |
(iii) Notwithstanding any
election to the contrary in any Settlement Notice, Physical Settlement shall be applicable for any Settlement of any Transaction: |
| | |
|
| | |
(A)
to all of the Settlement Shares designated in such Settlement Notice if, at any time from the date such Settlement Notice is received
by Dealer until the related First Unwind Date, inclusive, (I) the trading price per Share on the Exchange (as determined by Dealer in
good faith and in a commercially reasonable manner) is below the Threshold Price or (II) Dealer determines, in its good faith and commercially
reasonable judgment, that it would, after using commercially reasonable efforts, be unable to purchase a number of Shares in the market
sufficient to unwind a commercially reasonable hedge position in respect of the portion of the Transaction represented by such Settlement
Shares and satisfy its delivery obligation hereunder, if any, by the Maturity Date (x) in a manner that (A) would, if Dealer were
Counterparty or an affiliated purchaser of Counterparty, be subject to the safe harbor provided by Rule 10b-18(b) under the Exchange Act
and (B) based on advice of counsel, would not raise material risks under applicable securities laws or (y) due to the lack of sufficient
liquidity in the Shares (each, a “Trading Condition”); or |
| | |
(B) to all or a
portion of the Settlement Shares designated in such Settlement Notice if, on any day during the relevant Unwind Period, (I) the trading
price per Share on the Exchange (as determined by Dealer in good faith and in a commercially reasonable manner) is below the Threshold
Price for two or more Exchange Business Days or (II) Dealer determines, in its good faith and commercially reasonable judgment or based
on advice of counsel, as applicable, that a Trading Condition has occurred with respect to such Transaction, in which case the provisions
set forth below in the third paragraph opposite “Early Valuation” shall apply as if such day were the Early Valuation Date
for such Transaction and (x) for purposes of clause (i) of such paragraph, such day shall be the last Unwind Date of such Unwind Period
and the “Unwound Shares” shall be calculated to, and including, such day and (y) for purposes of clause (ii) of such paragraph,
the “Remaining Shares” shall be equal to the number of Settlement Shares designated in such Settlement Notice minus
the Unwound Shares determined in accordance with clause (x) of this sentence. |
| | |
|
| Threshold Price: | |
For each Transaction, as specified
in the Supplemental Confirmation for such Transaction, to be 25% of the Initial Forward Price for such Transaction. |
| | |
|
| Electing Party: | |
Counterparty |
| | |
|
| Settlement Method Election Date: | |
With respect to any Settlement
of any Transaction, the 3rd Scheduled Trading Day immediately preceding (x) the Valuation Date for such Transaction, in the
case of Physical Settlement, or (y) the First Unwind Date for such Transaction, in the case of Cash Settlement or Net Share
Settlement. |
| | |
|
| Default Settlement Method: | |
Physical Settlement |
| | |
|
| Physical
Settlement: | |
Notwithstanding Section 9.2(a)(i) of the Equity Definitions, on the
Settlement Date for any Settlement of any Transaction, Dealer shall pay to Counterparty an amount equal to the Forward Price for such
Transaction on the relevant Valuation Date multiplied by the number of Settlement Shares for such Settlement, and Counterparty
shall deliver to Dealer such Settlement Shares. If, on any Settlement Date, the Shares to be delivered by Counterparty to Dealer hereunder
are not so delivered (the “Deferred Shares”), and a Forward Price Reduction Date occurs during the period from, and
including, such Settlement Date to, but excluding, the date such Shares are actually delivered to Dealer, then the portion of the amount
payable by Dealer to Counterparty in respect of the Deferred Shares shall be reduced by an amount equal to the Forward Price Reduction
Amount for such Forward Price Reduction Date, multiplied by the number of Deferred Shares. |
| Settlement Date: | |
For any Settlement of any Transaction,
the Valuation Date for such Settlement. |
| | |
|
| Net Share Settlement: | |
On the Net Share Settlement
Date for any Settlement of any Transaction to which Net Share Settlement is applicable, if the Net Share Settlement Amount for such
Settlement is greater than zero, Counterparty shall deliver a number of Shares equal to such Net Share Settlement Amount (rounded
down to the nearest integer) to Dealer, and if such Net Share Settlement Amount is less than zero, Dealer shall deliver a number
of Shares equal to the absolute value of such Net Share Settlement Amount (rounded down to the nearest integer) to Counterparty,
in either case, in accordance with Section 9.4 of the Equity Definitions, with such Net Share Settlement Date deemed to be a
“Settlement Date” for purposes of such Section 9.4, and, in either case, plus cash in lieu of any fractional Shares
included in such Net Share Settlement Amount but not delivered due to rounding required hereby, valued at the relevant Settlement
Price. |
| | |
|
| Net Share Settlement Date: | |
For any Settlement of any Transaction
to which Net Share Settlement is applicable, the date that follows the Valuation Date for such Settlement by one Settlement Cycle. |
| | |
|
| Net Share Settlement Amount: | |
For any Settlement of any
Transaction to which Net Share Settlement is applicable, an amount equal to the Forward Cash Settlement Amount for such Settlement
divided by the Settlement Price for such Settlement. |
| | |
|
| Forward Cash Settlement Amount: | |
Notwithstanding Section 8.5(c) of
the Equity Definitions, the Forward Cash Settlement Amount for any Cash Settlement or Net Share Settlement of any Transaction shall
be equal to (i) the number of Settlement Shares for such Settlement multiplied by (ii) an amount equal to (A) the
Settlement Price for such Settlement minus (B) the Relevant Forward Price for such Settlement. |
| | |
|
| Relevant Forward Price: | |
For any Cash Settlement of any
Transaction, the arithmetic average of the Forward Prices for such Transaction on each Unwind Date relating to such Settlement. |
| | |
|
| | |
For any Net Share Settlement
of any Transaction, the weighted average of the Forward Prices for such Transaction on each Unwind Date relating to such Settlement
(weighted based on the number of Shares purchased by Dealer or its agent or affiliate on each such Unwind Date in connection with
unwinding its commercially reasonable hedge position in connection with such Settlement, as determined by the Calculation Agent). |
| | |
|
| Settlement Price: | |
For any Cash Settlement of any Transaction, the arithmetic average
of the 10b-18 VWAP on each Unwind Date relating to such Settlement, plus a commercially reasonable amount determined by the Calculation
Agent in good faith that in no event will exceed USD 0.02 per Share. |
| | |
For any Net Share
Settlement of any Transaction, the weighted average price of the purchases of Shares made by Dealer (or its agent or affiliate) during
the Unwind Period for such Settlement in connection with unwinding its commercially reasonable hedge position relating to such Settlement
(weighted based on the number of Shares purchased by Dealer or its agent or affiliate on each Unwind Date in connection with unwinding
its commercially reasonable hedge position in connection with such Settlement, as determined by the Calculation Agent), plus a
commercially reasonable amount determined by the Calculation Agent in good faith that in no event will exceed USD 0.02 per Share. |
| | |
|
| 10b-18 VWAP: | |
For any Exchange Business Day, as reasonably determined by the Calculation
Agent based on the composite 10b-18 Volume Weighted Average Price per Share for the regular trading session (including any extensions
thereof) of the Exchange on such Exchange Business Day (without regard to pre-open or after hours trading outside of such regular trading
session for such Exchange Business Day), as published by Bloomberg at 4:15 p.m. New York time (or 15 minutes following the end of any
extension of the regular trading session) on such Exchange Business Day, on Bloomberg page “AVB <Equity> AQR_SEC” (or
any successor thereto), or if such price is not so reported on such Exchange Business Day for any reason or is, in the Calculation Agent’s
reasonable determination, erroneous, such 10b-18 VWAP shall be determined by the Calculation Agent in a good faith and commercially reasonable
manner. For purposes of calculating the 10b-18 VWAP for such Exchange Business Day, the Calculation Agent will include only those trades
that are reported during the period of time during which Counterparty could purchase its own shares under Rule 10b-18(b)(2) and are effected
pursuant to the conditions of Rule 10b-18(b)(3), each under the Exchange Act (such trades, “Rule 10b-18 eligible transactions”). |
| | |
|
| Unwind Activities: | |
The times and prices at which Dealer
(or its agent or affiliate) purchases any Shares during any Unwind Period in connection with unwinding its commercially reasonable hedge
position in respect of each Transaction shall be determined by Dealer in a commercially reasonable manner. Without limiting the generality
of the foregoing, in the event that Dealer concludes, in its good faith, reasonable discretion based on advice of counsel, that it is
appropriate with respect to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such
requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer) (a “Regulatory Disruption”),
for it to refrain from purchasing Shares in connection with unwinding its commercially reasonable hedge position in respect of such Transaction
on any Scheduled Trading Day that would have been an Unwind Date but for the occurrence of a Regulatory Disruption, Dealer shall notify
Counterparty in writing that a Regulatory Disruption has occurred on such Scheduled Trading Day with respect to such Transaction, and
Dealer shall, in its good faith, reasonable discretion based on advice of counsel and subject to applicable legal, regulatory and self-regulatory
requirements and related policies and procedures of Dealer (in the case of policies and procedures, so long as such policies and procedures
have been adopted by Dealer in good faith and are consistently applied in similar situations to transactions like the Transactions hereunder),
specify the nature of such Regulatory Disruption. For the avoidance of doubt, such Scheduled Trading Day shall not be an Unwind Date for
such Transaction and such Regulatory Disruption shall be deemed to be a Market Disruption Event; provided that Dealer
may exercise its right to suspend under this sentence only in good faith and based on advice of counsel in relation to events or circumstances
that are not the result of actions of it or any of its Affiliates that are taken with the intent to avoid its obligations under the Transactions. |
| Relevant Settlement Date: | |
For any Settlement of any Transaction,
the Settlement Date, Cash Settlement Payment Date or Net Share Settlement Date for such Settlement, as the case may be. |
| | |
|
| Other Applicable Provisions: | |
To the extent Dealer
is obligated to deliver Shares under any Transaction, the provisions of Sections 9.2 (last sentence only), 9.8, 9.9, 9.10, 9.11 and 9.12
of the Equity Definitions will be applicable as if “Physical Settlement” applied to such Transaction; provided that
the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations
therein relating to restrictions, obligations, limitations or requirements under applicable securities laws that exist as a result of
the fact that Counterparty is the issuer of the Shares. |
| | |
|
| Share
Adjustments: | |
|
| | |
|
| Potential Adjustment Events: | |
An Extraordinary Dividend shall
not constitute a Potential Adjustment Event. For the avoidance of doubt, a cash dividend on the Shares that differs from expected
dividends as of the Trade Date shall not be a Potential Adjustment Event under Section 11.2(e)(vii) of the Equity Definitions
with respect to such Transaction. |
| | |
|
| Extraordinary Dividend: | |
For any Transaction, any dividend
or distribution on the Shares with an ex-dividend date occurring on any day following the Trade Date (other than (i) any dividend
or distribution of the type described in Section 11.2(e)(i) or Section 11.2(e)(ii)(A) of the Equity Definitions
or (ii) a regular, quarterly cash dividend in an amount equal to or less than the Regular Dividend Amount for such calendar
quarter for such Transaction that has an ex-dividend date no earlier than the Forward Price Reduction Date occurring in the relevant
quarter for such Transaction). |
| | |
|
| Regular Dividend Amount: | |
For each Transaction and for
each calendar quarter, the amount set forth under the heading “Regular Dividend Amount” in the Transaction Notice for
such Transaction and for such calendar quarter, as specified in Schedule I to the Supplemental Confirmation for such Transaction. |
| | |
|
| Method of Adjustment: | |
Calculation Agent Adjustment |
| | |
|
| Extraordinary
Events: | |
|
| | |
|
| Extraordinary Events: | |
The consequences that would
otherwise apply under Article 12 of the Equity Definitions to any applicable Extraordinary Event (excluding any Failure to Deliver, Increased
Cost of Hedging, Increased Cost of Stock Borrow or any Extraordinary Event that also constitutes a Bankruptcy Termination Event,
but including, for the avoidance of doubt, any other applicable Additional Disruption Event) shall not apply. |
| Tender Offer: | |
Applicable; provided that
Section 12.1(d) of the Equity Definitions shall be amended by replacing the reference therein to “10%” with
a reference to “20%”. |
| | |
|
| Delisting: | |
In addition to the provisions
of Section 12.6(a)(iii) of the Equity Definitions, it shall 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); if the Shares are immediately re-listed, re-traded
or re-quoted on any such exchange or quotation system, such exchange or quotation system shall be deemed to be the Exchange. |
| | |
|
| Additional
Disruption Events: | |
|
| | |
|
| Change in Law: | |
Applicable; provided that (A)
any determination as to whether (i) the adoption of or any change in any applicable law or regulation (including, without limitation,
any tax law) or (ii) the promulgation of or any change in or public announcement of the formal or informal interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing
authority), in each case, constitutes a “Change in Law” shall be made without regard to Section 739 of the Dodd-Frank Wall
Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation
promulgated, on or after the Trade Date, (B) Section 12.9(a)(ii) of the Equity Definitions is hereby amended (i) by adding the
words “(including, for the avoidance of doubt and without limitation, adoption or promulgation of new regulations authorized or
mandated by existing statute)” after the word “regulation” in the second line thereof and (ii) by replacing the
words “the interpretation” with the words “or public announcement of any formal or informal interpretation” in
the third line thereof and (C) the words “, unless the illegality is due to an act or omission of the party seeking to elect
termination of the Transaction with the intent to avoid its obligations under the terms of the Transaction” are added immediately
following the word “Transaction” in the fifth line thereof; and provided further that Section 12.9(a)(ii) of the Equity
Definitions is hereby amended by adding the phrase “and/or Hedge Position” after the word “Shares” in clause (X)
thereof and adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date” immediately following the
word “Transaction” in clause (X) thereof,. |
| | |
|
| Failure to Deliver: | |
Applicable |
| | |
|
| Hedging Disruption: | |
Applicable |
| | |
|
| Increased Cost of Hedging: | |
Not Applicable |
| Increased Cost of Stock Borrow: | |
Applicable; provided
that Section 12.9(b)(v) of the Equity Definitions shall be amended by (i) deleting clause (C) of the second
sentence thereof and (ii) deleting the third, fourth and fifth sentences thereof. For the avoidance of doubt, upon the announcement
of any event that, if consummated, would result in a Merger Event or Tender Offer, the term “rate to borrow Shares” as
used in Section 12.9(a)(viii) of the Equity Definitions shall include any commercially reasonable cost borne or amount
payable by the Hedging Party in respect of maintaining or reestablishing its commercially reasonable hedge position with respect
to the relevant Transaction, including, but not limited to, any assessment or other amount payable by the Hedging Party to a lender
of Shares in respect of any merger or tender offer premium, as applicable. |
| | |
|
| Initial Stock Loan Rate: | |
For each Transaction, as specified
in the Supplemental Confirmation for such Transaction. |
| | |
|
| Loss of Stock Borrow: | |
Applicable; provided
that Section 12.9(b)(iv) of the Equity Definitions shall be amended by (i) deleting clause (A) of the first sentence
thereof in its entirety and (ii) deleting the words “neither the Non-Hedging Party nor the Lending Party lends Shares
in the amount of the Hedging Shares or” in the second sentence thereof. |
| | |
|
| | |
|
| Maximum Stock Loan Rate: | |
For each Transaction, as specified
in the Supplemental Confirmation for such Transaction. |
| | |
|
| Hedging Party: | |
For all applicable Additional
Disruption Events, Dealer |
| | |
|
| Determining Party: | |
For all applicable Extraordinary
Events, Dealer |
| | |
|
| Early
Valuation: | |
|
| | |
|
| Early Valuation: | |
For any Transaction, notwithstanding
anything to the contrary herein, in the Agreement, in any Supplemental Confirmation or in the Equity Definitions, at any time (x) following
the occurrence of a Hedging Event with respect to such Transaction, the declaration by Issuer of an Extraordinary Dividend, or an
ISDA Event with respect to such Transaction or (y) if an Excess Section 13 Ownership Position, an Excess NYSE Ownership
Position or an Excess Regulatory Ownership Position exists, Dealer (or, in the case of such an ISDA Event that is an Event of Default
or Termination Event, the party entitled to designate an Early Termination Date in respect of such event pursuant to Section 6
of the Agreement) shall have the right to designate any Scheduled Trading Day to be the “Early Valuation Date” for such
Transaction, in which case the provisions set forth in this “Early Valuation” section shall apply to such Transaction,
in the case of an Event of Default or Termination Event, in lieu of Section 6 of the Agreement. For the avoidance of doubt,
any amount calculated pursuant to this “Early Valuation” section as a result of an Extraordinary Dividend shall not be
adjusted by the value associated with such Extraordinary Dividend. |
| | |
Dealer represents and warrants
to and agrees with Counterparty that (i) based upon advice of counsel, Dealer (A) does not know of the existence on the
Trade Date of an Excess Section 13 Ownership Position, an Excess NYSE Ownership Position or an Excess Regulatory Ownership Position
and (B) based on reasonable internal inquiry in the ordinary course of Dealer’s business does not know on the Trade Date
of any event or circumstance that will cause the occurrence of an Excess Section 13 Ownership Position, an Excess NYSE Ownership
Position or an Excess Regulatory Ownership Position on any day during the term of each Transaction; and (ii) Dealer will not
knowingly cause the occurrence of an Excess Section 13 Ownership Position, an Excess NYSE Ownership Position or an Excess Regulatory
Ownership Position on any day during the term of any Transaction for the purpose, in whole or in part, of causing the occurrence
of an Early Valuation Date. |
| | |
|
| | |
If an Early Valuation Date
for a Transaction occurs on a date that is not during an Unwind Period for such Transaction, then such Early Valuation Date shall
be a Valuation Date for a Physical Settlement of such Transaction, and the number of Settlement Shares for such Settlement shall
be the Number of Shares on such Early Valuation Date; provided that Dealer may in its sole discretion permit Counterparty
to elect Cash Settlement or Net Share Settlement in respect of such Transaction. |
| | |
|
| | |
If an Early Valuation Date
for a Transaction occurs during an Unwind Period for such Transaction, then (i) (A) the last Unwind Date of such Unwind
Period shall be deemed to be such Early Valuation Date, (B) a Settlement shall occur in respect of such Unwind Period, and the
Settlement Method elected by Counterparty in respect of such Settlement shall apply, and (C) the number of Settlement Shares
for such Settlement shall be the number of Unwound Shares for such Unwind Period on such Early Valuation Date, and (ii) (A) such
Early Valuation Date shall be a Valuation Date for an additional Physical Settlement of such Transaction (provided that Dealer
may in its sole discretion elect that the Settlement Method elected by Counterparty for the Settlement described in clause (i) of
this sentence shall apply) and (B) the number of Settlement Shares for such additional Settlement shall be the number of Remaining
Shares on such Early Valuation Date. |
| | |
|
| | |
Notwithstanding the foregoing,
in the case of a Nationalization or Merger Event, if at the time of the related Relevant Settlement Date the Shares have changed
into cash or any other property or the right to receive cash or any other property, the Calculation Agent shall adjust the nature
of the Shares as it determines appropriate to account for such change such that the nature of the Shares is consistent with what
shareholders receive in such event. |
| | |
|
| ISDA Event: | |
(i) Any Event of Default
or Termination Event, other than an Event of Default or Termination Event that also constitutes a Bankruptcy Termination Event, that
gives rise to the right of either party to designate an Early Termination Date pursuant to Section 6 of the Agreement or (ii) the
bona fide, public announcement of any event or transaction on or after the Trade Date that, if consummated, would result in a Merger
Event, Tender Offer, Nationalization, Delisting or Change in Law, in each case, as determined by the Calculation Agent. |
| | |
|
| Amendment to Merger Event: | |
Section 12.1(b) of
the Equity Definitions is hereby amended by deleting the remainder of such Section beginning with the words “in each case
if the Merger Date is on or before” in the fourth to last line thereof. |
| Hedging Event: | |
In respect of any Transaction,
the occurrence of any of the following events on or following the Trade Date: (i) (x) a Loss of Stock Borrow in connection
with which Counterparty does not refer the Hedging Party to a Lending Party within the required time period as provided in Section 12.9(b)(iv) of
the Equity Definitions or (y) a Hedging Disruption, (ii) an Increased Cost of Stock Borrow in connection with which Counterparty
does not elect, and so notify the Hedging Party of its election, in each case, within the required time period to either amend such
Transaction pursuant to Section 12.9(b)(v)(A) of the Equity Definitions or pay an amount determined by the Calculation
Agent that corresponds to the relevant Price Adjustment pursuant to Section 12.9(b)(v)(B) of the Equity Definitions or
(iii) the occurrence of a Market Disruption Event during an Unwind Period for such Transaction and the continuance of such Market
Disruption Event for at least eight Scheduled Trading Days. |
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|
| Remaining Shares: | |
For any Transaction, on any
day, the Number of Shares for such Transaction as of such day (or, if such day occurs during an Unwind Period for such Transaction,
the Number of Shares for such Transaction as of such day minus the Unwound Shares for such Transaction for such Unwind Period
on such day). |
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|
| Unwound Shares: | |
For any Transaction, for any
Unwind Period in respect of such Transaction on any day, the aggregate number of Shares with respect to which Dealer has unwound
its commercially reasonable hedge position in respect of such Transaction in connection with the related Settlement as of such day. |
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| Acknowledgements: | |
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| Non-Reliance: | |
Applicable |
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|
| Agreements and Acknowledgements | |
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| Regarding Hedging Activities: | |
Applicable |
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| Additional Acknowledgements: | |
Applicable |
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|
| Transfer: | |
Notwithstanding anything to the contrary
in the Agreement, Dealer may assign, transfer and set over all rights, title and interest, powers, privileges and remedies of Dealer under
any Transaction, in whole or in part, to (a) an affiliate of Dealer whose obligation is guaranteed by [Dealer/Dealer Parent] or (b) any
other affiliate of Dealer with a long-term issuer rating equal to or better than the credit rating of Dealer at the time of transfer without
the consent of Counterparty; provided that, at all times, Dealer or any transferee or assignee or other recipient of rights, title
and interest, powers, privileges and remedies shall be eligible to provide a U.S. Internal Revenue Service Form W-9 or W-8ECI with respect
to any payments or deliveries under the Agreement; provided further that (x) Counterparty will neither (1) be required to
pay, nor is there a material likelihood that it would be required to pay, an additional amount in respect of an Indemnifiable Tax under
Section 2(d)(i)(4) of the Agreement, nor (2) receive a payment, nor is there a material likelihood that it would receive a payment, from
which an amount has been deducted or withheld for or on account of any Indemnifiable 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 (y) no Event of Default or Potential Event
of Default shall have occurred with respect to either party solely as a result of such transfer and assignment. |
| Calculation Agent: | |
Dealer; provided
that, following the occurrence of an Event of Default pursuant to Section 5(a)(vii) of the Agreement with respect to which Dealer is the
sole Defaulting Party, Counterparty shall have the right to select a leading dealer in the market for U.S. corporate equity derivatives
to replace Dealer as Calculation Agent, and the parties shall work in good faith to execute any appropriate documentation required by
such replacement Calculation Agent. |
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|
| | |
All calculations and
determinations made by the Calculation Agent shall be made in good faith and in a commercially reasonable manner; provided that
following any determination or calculation by the Calculation Agent hereunder, upon a written request by Counterparty, the Calculation
Agent will, within a commercially reasonable period of time following such request, provide to Counterparty by e-mail to the e-mail address
provided by Counterparty in such written request a report (in a commonly used file format for the storage and manipulation of financial
data) displaying in reasonable detail the basis for such determination or calculation, as the case may be; provided further, that
Dealer shall not be required to disclose any proprietary or confidential models of Dealer or any information that is proprietary or subject
to contractual, legal or regulatory obligations to not disclose such information. |
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| Counterparty Payment | |
|
| Instructions: | |
To be provided by Counterparty |
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| Dealer Payment Instructions: | |
[ ] |
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| Counterparty’s Contact
Details | |
|
| for Purpose of Giving Notice: | |
To be provided by Counterparty |
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|
| Dealer’s Contact Details | |
|
| for Purpose of Giving Notice: | |
[ ] |
| | |
[ ] |
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[ ] |
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|
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|
Attention:
[ ] |
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|
Phone:
[ ] |
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Mobile: [ ] |
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Email:
[ ] |
3. Effectiveness.
The effectiveness of each
Supplemental Confirmation and the related Transaction on the Effective Date for such Supplemental Confirmation shall be subject to the
following conditions:
(a) the
representations and warranties of Counterparty contained in the Underwriting Agreement, and any certificate delivered pursuant thereto
by Counterparty shall be true and correct on such Effective Date as if made as of such Effective Date;
(b) Counterparty
shall have performed all of the obligations required to be performed by it under the Underwriting Agreement on or prior to such Effective
Date;
(c) all
of the conditions set forth in Section 7 of the Underwriting Agreement shall have been satisfied;
(d) the
Forward Date (as defined in the Underwriting Agreement) shall have occurred as provided in the Underwriting Agreement;
(e) all
of the representations and warranties of Counterparty hereunder and under the Agreement shall be true and correct on such Effective Date
as if made as of such Effective Date;
(f) Counterparty
shall have performed all of the obligations required to be performed by it hereunder and under the Agreement on or prior to such Effective
Date, including without limitation its obligations under Section 6 hereof; and
(g) Counterparty
shall have delivered to Dealer on or prior to the Trade Date an opinion of counsel in form and substance reasonably satisfactory to Dealer,
with respect to the matters set forth in Section 3(a) of the Agreement and that the maximum number of Shares initially issuable
under such Transaction have been duly authorized and, upon issuance pursuant to the terms of such Transaction, will be validly issued,
fully paid and nonassessable.
Notwithstanding the foregoing or any other provision
of this Master Confirmation or any Supplemental Confirmation, if in respect of any Transaction (x) on or prior to 9:30 a.m., New
York City time, on any Settlement Date (as defined in the Underwriting Agreement), in connection with establishing its commercially reasonable
hedge position in respect of such Transaction, Dealer, in its sole commercially reasonable judgment, is unable, after using commercially
reasonable efforts, to borrow and deliver for sale the full number of Shares to be borrowed and sold pursuant to the Underwriting Agreement
on such Settlement Date or (y) in Dealer’s commercially reasonable judgment, it would incur a stock loan cost of more than
a rate equal to the Maximum Stock Loan Rate for such Transaction with respect to all or any portion of such full number of Shares, the
effectiveness of the related Supplemental Confirmation and such Transaction shall be limited to the number of Shares Dealer is so able
to borrow in connection with establishing its commercially reasonable hedge position of such Transaction at a cost of not more than a
rate equal to the Maximum Stock Loan Rate for such Transaction, which, for the avoidance of doubt, may be zero.
4. Additional
Mutual Representations and Warranties. In addition to the representations and warranties in the Agreement, each party represents and
warrants to the other party that it is an “eligible contract participant”, as defined in the U.S. Commodity Exchange Act (as
amended), and an “accredited investor” as defined in Section 2(a)(15)(ii) of the Securities Act of 1933 (as amended)
(the “Securities Act”), and is entering into each Transaction hereunder as principal and not for the benefit of any
third party.
5. Additional
Representations and Warranties of Counterparty. The representations and warranties of Counterparty set forth in Section 1 of
the Underwriting Agreement are true and correct as of the date hereof, each Closing Date (as defined in the Underwriting Agreement) and
each Trade Date for any Transaction and are hereby deemed to be repeated to Dealer as if set forth herein. In addition to the representations
and warranties in Section 1 of the Underwriting Agreement, the Agreement and those contained elsewhere herein, Counterparty
represents and warrants to Dealer, and agrees with Dealer, that:
(a) without
limiting the generality of Section 13.1 of the Equity Definitions, it acknowledges that Dealer is not making any representations
or warranties with respect to the treatment of any Transaction, including without limitation ASC Topic 260, Earnings Per Share,
ASC Topic 815, Derivatives and Hedging, ASC Topic 480, Distinguishing Liabilities from Equity, 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;
(b) it
shall not take any action to reduce or decrease the number of authorized and unissued Shares below the sum of (i) the aggregate Number
of Shares across all Transactions hereunder plus (ii) the total number of Shares issuable upon settlement (whether by net
share settlement or otherwise) of any other transaction or agreement to which it is a party;
(c) it
will not repurchase any Shares if, immediately following such repurchase, the aggregate Number of Shares across all Transactions hereunder
would be equal to or greater than 4.5% of the number of then-outstanding Shares and it will notify Dealer promptly upon the announcement
or consummation of any repurchase of Shares in an amount that, taken together with the amount of all repurchases since the date of the
last such notice (or, if no such notice has been given, since the Trade Date), exceeds 0.5% of the number of then-outstanding Shares;
(d) it
is not entering into this Master Confirmation or any Supplemental Confirmation 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) for the purpose of inducing the purchase or sale of the Shares (or any security
convertible into or exchangeable for Shares) by others;
(e) it
is not aware of any material non-public information regarding itself or the Shares; it is entering into this Master Confirmation and each
Supplemental Confirmation and will provide any Settlement Notice in good faith and not as part of a plan or scheme to evade compliance
with Rule 10b-5 or any other provision of the federal securities laws; it has not entered into or altered any hedging transaction
relating to the Shares corresponding to or offsetting any Transaction; and it has consulted with its own advisors as to the legal aspects
of its adoption and implementation of this Master Confirmation and each Supplemental Confirmation under Rule 10b5-1 under the Exchange
Act (“Rule 10b5-1”);
(f) as
of the date hereof and the Trade Date for each Transaction no state or local (including, to the best of Counterparty’s knowledge,
non-U.S. jurisdictions) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent,
registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as
a result of Dealer or its affiliates owning or holding (however defined) Shares; provided that Counterparty makes no such representation
or warranty regarding any such requirement that is applicable generally to the ownership of equity securities by Dealer;
(g) as
of the date hereof, the Trade Date for each Transaction and the date of any payment or delivery by Counterparty or Dealer under
any Transaction, it is not and will not be “insolvent” (as such term is defined under Section 101(32) of the Bankruptcy
Code);
(h) it
is not as of the date hereof, and on the Trade Date for each Transaction and after giving effect to the transactions contemplated
hereby and by each Supplemental Confirmation will not be, required to register as an “investment company” as such term
is defined in the Investment Company Act of 1940, as amended;
(i) as
of the date hereof and the Trade Date for each Transaction it: (i) is an “institutional account” as defined in FINRA
Rule 4512(c); and (ii) is capable of evaluating investment risks independently, both in general and with regard to all transactions
and investment strategies involving a security or securities, and will exercise independent judgment in evaluating any recommendations
of Dealer or its associated persons; and
(j) IT
UNDERSTANDS AS OF THE DATE HEREOF AND AS OF THE TRADE DATE FOR EACH TRANSACTION THAT EACH TRANSACTION IS SUBJECT TO COMPLEX RISKS WHICH
MAY ARISE WITHOUT WARNING AND MAY AT TIMES BE VOLATILE AND THAT LOSSES MAY OCCUR QUICKLY AND IN UNANTICIPATED MAGNITUDE
AND IS WILLING TO ACCEPT SUCH TERMS AND CONDITIONS AND ASSUME (FINANCIALLY AND OTHERWISE) SUCH RISKS.
6. Additional
Covenants of Counterparty.
(a) Counterparty
acknowledges and agrees that any Shares delivered by Counterparty to Dealer on any Settlement Date or Net Share Settlement Date for any
Transaction will be (i) newly issued, (ii) approved for listing or quotation on the Exchange, subject to official notice of
issuance, and (iii) registered under the Exchange Act, and, when delivered by Dealer (or an affiliate of Dealer) to securities lenders
from whom Dealer (or an affiliate of Dealer) borrowed Shares in connection with hedging its exposure to such 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 any such stock loan is effected by Dealer or an affiliate of Dealer. Accordingly, Counterparty agrees that any Shares so delivered
will not bear a restrictive legend and will be deposited in, and the delivery thereof shall be effected through the facilities of, the
Clearance System. In addition, Counterparty represents and agrees that any such Shares shall be, upon such delivery, duly and validly
authorized, issued and outstanding, fully paid and nonassessable, free of any lien, charge, claim or other encumbrance.
(b) Counterparty
agrees that Counterparty shall not enter into or alter any hedging transaction relating to the Shares corresponding to or offsetting any
Transaction. Without limiting the generality of the provisions set forth opposite the caption “Unwind Activities” in Section 2
of this Master Confirmation, Counterparty acknowledges that it has no right to, and agrees that it will not seek to, control or influence
Dealer’s decision to make any “purchases or sales” (within the meaning of Rule 10b5-1(c)(1)(i)(B)(3)) under or
in connection with any Transaction, including, without limitation, Dealer’s decision to enter into any hedging transactions.
(c) Counterparty
acknowledges and agrees that any amendment, modification, waiver or termination of this Master Confirmation or any Supplemental Confirmation
must be effected in accordance with the requirements for the amendment or termination of a “plan” as defined in Rule 10b5-1(c).
Without limiting the generality of the foregoing, any such amendment, modification, waiver or termination shall be made in good faith
and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5, and no such amendment, modification or waiver shall
be made at any time at which Counterparty or any officer, director, manager or similar person of Counterparty is aware of any material
non-public information regarding Counterparty or the Shares.
(d) Counterparty
shall promptly provide notice thereof to Dealer (i) upon the occurrence of any event that would constitute an Event of Default or
a Termination Event in respect of which Counterparty is a Defaulting Party or an Affected Party, as the case may be, and (ii) upon
announcement of any event that, if consummated, would constitute an Extraordinary Event or Potential Adjustment Event.
(e) Neither
Counterparty nor any of its “affiliated purchasers” (as defined by Rule 10b-18 under the Exchange Act (“Rule 10b-18”))
shall take any action that would cause any purchases of Shares by Dealer or any of its Affiliates in connection with any Cash Settlement
or Net Share Settlement of any Transaction not to meet the requirements of the safe harbor provided by Rule 10b-18 if such purchases
were made by Counterparty. Without limiting the generality of the foregoing, during any Unwind Period for any Transaction, except
with the prior written consent of Dealer, Counterparty will not, and will cause its affiliated purchasers (as defined in Rule 10b-18)
not to, directly or indirectly (including, without limitation, by means of a derivative instrument) purchase, offer to purchase, place
any bid or limit order that would effect a purchase of, or announce or commence any tender offer relating to, any Shares (or equivalent
interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible
into or exchangeable for the Shares.
(f) Counterparty
will not be subject to any “restricted period” (as such term is defined in Regulation M promulgated under the Exchange
Act (“Regulation M”)) in respect of Shares or any security with respect to which the Shares are a “reference
security” (as such term is defined in Regulation M) during any Unwind Period for any Transaction.
(g) Counterparty
shall: (i) prior to the opening of trading in the Shares on any day on which Counterparty makes, or expects to be made, any public
announcement (as defined in Rule 165(f) under the Securities Act) of any Merger Transaction, notify Dealer of such public announcement;
(ii) promptly notify Dealer following any such announcement that such announcement has been made; (iii) promptly (but in any
event prior to the next opening of the regular trading session on the Exchange) provide Dealer with written notice specifying (A) Counterparty’s
average daily Rule 10b-18 Purchases (as defined in Rule 10b-18) during the three full calendar months immediately preceding
the announcement date for the Merger Transaction that were not effected through Dealer or its affiliates and (B) the number of Shares
purchased pursuant to the proviso in Rule 10b-18(b)(4) under the Exchange Act for the three full calendar months preceding such
announcement date. Such written notice shall be deemed to be a certification by Counterparty to Dealer that such information is true and
correct. In addition, Counterparty shall promptly notify Dealer of the earlier to occur of the completion of such transaction and the
completion of the vote by target shareholders. Counterparty acknowledges that any such notice may result in a Regulatory Disruption, a
Trading Condition or, if such notice relates to an event that is also an ISDA Event, an Early Valuation, or may affect the length of any
ongoing Unwind Period; accordingly, Counterparty acknowledges that its delivery of such notice must comply with the standards set forth
in Section 6(c) above. “Merger Transaction” means any merger, acquisition or similar transaction involving
a recapitalization as contemplated by Rule 10b-18(a)(13)(iv) under the Exchange Act. For the avoidance of doubt, a Merger Transaction
or the announcement thereof shall not give either party the right to designate an Early Valuation Date for any Transaction and/or to accelerate
or preclude an election by Counterparty of Physical Settlement for any Settlement of any Transaction, unless such Merger Transaction or
the announcement thereof is also an ISDA Event.
(h) Counterparty
agrees it will not treat ownership positions held by Dealer or any of its affiliates solely in its (or their) capacity as a nominee or
fiduciary for unrelated persons as constituting Beneficial Ownership or Constructive Ownership (as such terms are defined in the Articles
of Amendment and Restatement of the Articles of Incorporation of Counterparty, as amended from time to time) by Dealer.
7. Termination
on Bankruptcy. The parties hereto agree that, notwithstanding anything to the contrary in the Agreement or the Equity Definitions,
each Transaction constitutes a contract to issue a security of Counterparty as contemplated by Section 365(c)(2) of the Bankruptcy
Code and that a Transaction and the obligations and rights of Counterparty and Dealer (except for any liability as a result of breach
of any of the representations or warranties provided by Counterparty in Section 4 or Section 5 above) shall immediately terminate,
without the necessity of any notice, payment (whether directly, by netting or otherwise) or other action by Counterparty or Dealer, if,
on or prior to the final Settlement Date, Cash Settlement Payment Date or Net Share Settlement Date, as the case may be, for such Transaction
an Insolvency Filing occurs or any other proceeding commences with respect to Counterparty under the Bankruptcy Code (a “Bankruptcy
Termination Event”).
8. Additional
Provisions.
(a) Dealer acknowledges
and agrees that Counterparty’s obligations under the Transactions are not secured by any collateral and that neither this Master
Confirmation nor any Supplemental Confirmation is intended to convey to Dealer rights with respect to the transactions contemplated hereby
and by any Supplemental Confirmation that are senior to the claims of common stockholders in any U.S. bankruptcy proceedings of Counterparty;
provided that nothing herein shall limit or shall be deemed to limit Dealer’s right to pursue remedies in the event of a
breach by Counterparty of its obligations and agreements with respect to this Master Confirmation, any Supplemental Confirmation or the
Agreement; provided further that nothing herein shall limit or shall be deemed to limit Dealer’s rights in respect of any
transaction other than the Transactions.
(b) [Reserved].
(c) The
parties hereto intend for:
(i) each
Transaction to be a “securities contract” as defined in Section 741(7) of the Bankruptcy Code, and the parties hereto
to be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(27), 362(o), 546(e), 546(j), 555 and 561
of the Bankruptcy Code;
(ii) the
rights given to Dealer pursuant to “Early Valuation” in Section 2 above to constitute “contractual rights”
to cause the liquidation of a “securities contract” and to set off mutual debts and claims in connection with a “securities
contract”, as such terms are used in Sections 555 and 362(b)(6) of the Bankruptcy Code;
(iii) any
cash, securities or other property provided as performance assurance, credit support or collateral with respect to the Transactions to
constitute “margin payments” and “transfers” under a “securities contract” as defined in the Bankruptcy
Code;
(iv) all
payments for, under or in connection with the Transactions, all payments for Shares and the transfer of Shares to constitute “settlement
payments” and “transfers” under a “securities contract” as defined in the Bankruptcy Code; and
(v) any
or all obligations that either party has with respect to this Master Confirmation, any Supplemental Confirmation or the Agreement to constitute
property held by or due from such party to margin, guaranty or settle obligations of the other party with respect to the transactions
under the Agreement (including the Transactions) or any other agreement between such parties.
(d)
Notwithstanding any other provision of the Agreement, this Master Confirmation or any Supplemental Confirmation, in no event will
Counterparty be required to deliver in the aggregate in respect of all Settlement Dates, Net Share Settlement Dates or other dates
on which Shares are delivered in respect of any amount owed under any Transaction a number of Shares greater than two times the
Number of Shares for such Transaction as of the Trade Date for such Transaction (the “Capped Number”). The Capped
Number shall be subject to adjustment only on account of (x) Potential Adjustment Events of the type specified in
(1) Sections 11.2(e)(i) through (vi) of the Equity Definitions or (2) Section 11.2(e)(vii) of the
Equity Definitions so long as, in the case of this sub-clause (2), such event is within Issuer’s control and (y) Merger
Events requiring corporate action of Issuer (or any surviving entity of the Issuer hereunder in connection with any such Merger
Event). Counterparty represents and warrants to Dealer (which representation and warranty shall be deemed to be repeated for all
Transactions on each day that any Transaction is outstanding) that the aggregate Capped Number across all Transactions hereunder is
equal to or less than the number of authorized but unissued Shares that are not reserved for future issuance in connection with
transactions in the Shares (other than the Transactions) on the date of the determination of such aggregated Capped Number. In the
event Counterparty shall not have delivered the full number of Shares otherwise deliverable under any Transaction as a result of
this Section 8(c) (the resulting deficit for such Transaction, the “Deficit Shares”), Counterparty
shall be continually obligated to deliver Shares, from time to time until the full number of Deficit Shares have been delivered
pursuant to this paragraph, on a pro rata basis across all Transactions hereunder, when, and to the extent that, (A) Shares are
repurchased, acquired or otherwise received by Counterparty or any of its subsidiaries after the date hereof (whether or not in
exchange for cash, fair value or any other consideration), (B) authorized and unissued Shares reserved for issuance in respect
of other transactions prior to such date which prior to the relevant date become no longer so reserved and (C) Counterparty
additionally authorizes any unissued Shares that are not reserved for transactions other than the Transactions (such events as set
forth in clauses (A), (B) and (C) above, collectively, the “Share Issuance Events”). Counterparty shall
promptly notify Dealer of the occurrence of any of the Share Issuance Events (including the number of Shares subject to clause (A),
(B) or (C) and the corresponding number of Shares to be delivered for each Transaction) and, as promptly as reasonably
practicable, deliver such Shares thereafter. Counterparty shall not, until Counterparty’s obligations under the Transactions
have been satisfied in full, use any Shares that become available for potential delivery to Dealer as a result of any Share Issuance
Event for the settlement or satisfaction of any transaction or obligation other than the Transactions or reserve any such Shares for
future issuance for any purpose other than to satisfy Counterparty’s obligations to Dealer under the Transactions.
(e) The
parties intend for this Master Confirmation and each Supplemental Confirmation 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.
(f) The
parties intend for each Transaction (taking into account purchases of Shares in connection with any Cash Settlement or Net Share Settlement
of any Transaction) to comply with the requirements of Rule 10b5-1(c)(1)(i)(A) under the Exchange Act and for this Master Confirmation
and each Supplemental Confirmation to constitute a binding contract or instruction satisfying the requirements of 10b5-1(c) and to
be interpreted to comply with the requirements of Rule 10b5-1(c).
(g) Notwithstanding
any provisions of the Agreement, all communications relating to the Transactions or the Agreement shall be transmitted exclusively through
Dealer at [ ].
(h) Counterparty
acknowledges that:
(i) during
the term of the Transactions, Dealer 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 Transactions;
(ii) Dealer
and its affiliates may also be active in the market for the Shares and derivatives linked to the Shares other than in connection with
hedging activities in relation to the Transactions, including acting as agent or as principal and for its own account or on behalf of
customers;
(iii) Dealer
shall make its own determination as to whether, when or in what manner any hedging or market activities in Counterparty’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 and the Settlement Price for each Transaction;
(iv) any
market activities of Dealer and its affiliates with respect to the Shares may affect the market price and volatility of the Shares, as
well as the Forward Price and the Settlement Price for each Transaction, each in a manner that may be adverse to Counterparty; and
(v) each
Transaction is a derivatives transaction; Dealer may purchase or sell shares for its own account at an average price that may be greater
than, or less than, the price received by Counterparty under the terms of the relevant Transaction.
(i) Counterparty
and Dealer agree and acknowledge that (A) the Transactions contemplated by this Master Confirmation will be entered into in reliance
on the fact that this Master Confirmation and each Supplemental Confirmation hereto form a single agreement between Counterparty and Dealer,
and Dealer would not otherwise enter into such Transactions; (B) this Master Confirmation, together with each Supplemental Confirmation
hereto, is a “qualified financial contract,” as such term is defined in Section 5-701(b)(2) of the General Obligations
Law; (C) each Supplemental Confirmation hereto, regardless of whether transmitted electronically or otherwise, constitutes a “confirmation
in writing sufficient to indicate that a contract has been made between the parties” hereto, as set forth in Section 5-701(b)(3)(b) of
the General Obligations Law; and (D) this Master Confirmation and each Supplemental Confirmation hereto constitute a prior “written
contract,” as set forth in Section 5-701(b)(1)(b) of the General Obligations Law, and each party hereto intends and agrees
to be bound by this Master Confirmation and such Supplemental Confirmation.
9. Indemnification.
Counterparty agrees to indemnify and hold harmless Dealer, its affiliates and its assignees and their respective directors, officers
and controlling persons (Dealer and each such person being an “Indemnified Party”) from and against any and all losses
(excluding, for the avoidance of doubt, financial losses resulting from the economic terms of the Transactions), claims, damages and
liabilities (or actions in respect thereof), joint or several, incurred by or asserted against such Indemnified Party arising out
of, in connection with, or relating to, any breach of any covenant or representation made by Counterparty in this Master
Confirmation, any Supplemental Confirmation or the Agreement. Counterparty will not be liable under the foregoing indemnification
provision to the extent that any loss, claim, damage, liability or expense is found in a nonappealable judgment by a court of
competent jurisdiction to have resulted from Dealer’s willful misconduct, gross negligence or bad faith in performing the
services that are subject of the Transactions. If for any reason the foregoing indemnification is unavailable to any Indemnified
Party or insufficient to hold harmless any Indemnified Party, then Counterparty shall contribute, to the maximum extent permitted by
law, to the amount paid or payable by the Indemnified Party as a result of such loss, claim, damage or liability. In addition,
Counterparty will reimburse any Indemnified Party for all reasonable expenses (including reasonable counsel fees and expenses) as
they are incurred in connection with the investigation of, preparation for or defense or settlement of any pending or threatened
claim or any action, suit or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto and whether or
not such claim, action, suit or proceeding is initiated or brought by or on behalf of Counterparty. Counterparty also agrees that no
Indemnified Party shall have any liability to Counterparty or any person asserting claims on behalf of or in right of Counterparty
in connection with or as a result of any matter referred to in this Master Confirmation and any Supplemental Confirmation except to
the extent that any losses, claims, damages, liabilities or expenses incurred by Counterparty result from the gross negligence,
willful misconduct or bad faith of the Indemnified Party. The provisions of this Section 9 shall survive the completion of the
Transactions contemplated by this Master Confirmation and any Supplemental Confirmation and any assignment and/or delegation of the
Transactions made pursuant to the Agreement, this Master Confirmation or any Supplemental Confirmation shall inure to the benefit of
any permitted assignee of Dealer. For the avoidance of doubt, any payments due as a result of this provision may not be used to set
off any obligation of Dealer upon settlement of the Transactions.
10. Beneficial
Ownership. Notwithstanding anything to the contrary in the Agreement, this Master Confirmation or
any Supplemental Confirmation, in no event shall Dealer be entitled to receive, or be deemed to receive, or have an “interest”
in (within the meaning of NYSE Rule 312.04(e)) Shares to the extent that, upon such receipt of such Shares, (i) the “beneficial
ownership” (within the meaning of Section 13 of the Exchange Act and the rules promulgated thereunder) of Shares by Dealer,
any of its affiliates’ business units subject to aggregation with Dealer for purposes of the “beneficial ownership”
test under Section 13 of the Exchange Act and any “group” (within the meaning of Rule 13d-5(b)(1) under the
Exchange Act) of which Dealer is or may be deemed to be a part (collectively, “Dealer Group”) would be equal to or
greater than the lesser of (x) 4.5% of the outstanding Shares (such condition, an “Excess Section 13 Ownership Position”),
and (y) 4.9% of the outstanding Shares as of the Trade Date for any Transaction (such number of Shares, the “Threshold Number
of Shares” and such condition, the “Excess NYSE Ownership Position”) or (ii) Dealer, Dealer Group or
any person whose ownership position would be aggregated with that of Dealer or Dealer Group (Dealer, Dealer Group or any such person,
a “Dealer Person”) under Sections 3-601 through 3-603 of the Maryland Code (Corporations and Associations) or any state
or federal bank holding company or banking laws, or any federal, state or local laws, regulations or regulatory orders applicable
to ownership of Shares (“Applicable Laws”), would own, beneficially own, constructively own, control, hold the power
to vote or otherwise meet a relevant definition of ownership in excess of a number of Shares equal to (x) the lesser of (A) the
maximum number of Shares that would be permitted under Applicable Laws and (B) the number of Shares that would give rise to reporting
or registration obligations or other requirements (including obtaining prior approval by a state or federal regulator) of a Dealer Person
under Applicable Laws and with respect to which such requirements have not been met or the relevant approval has not been received or
that would give rise to any consequences under the constitutive documents of Counterparty (including, without limitation, Section 9.2(a) of
the Articles of Amendment and Restatement of the Articles of Incorporation of Counterparty (as amended from time to time)) or any contract
or agreement to which Counterparty is a party, in each case minus (y) 1% of the number of Shares outstanding on the date of
determination (such condition described in clause (ii), an “Excess Regulatory Ownership Position”). If any delivery
owed to Dealer under any Transaction is not made, in whole or in part, as a result of this provision, (i) Counterparty’s obligation
to make such delivery shall not be extinguished and Counterparty shall make such delivery as promptly as practicable after, but in no
event later than one Exchange Business Day after, Dealer gives notice to Counterparty that such delivery would not result in (x) Dealer
Group directly or indirectly so beneficially owning in excess of the lesser of (A) 4.5% of the outstanding Shares and (B) the
Threshold Number of Shares or (y) the occurrence of an Excess Regulatory Ownership Position and (ii) if such delivery relates
to a Physical Settlement of any Transaction, notwithstanding anything to the contrary herein, Dealer shall not be obligated to satisfy
the portion of its payment obligation with respect to such Transaction corresponding to any Shares required to be so delivered until the
date Counterparty makes such delivery.
11. Non-Confidentiality.
The parties hereby agree that (i) effective from the date of commencement of discussions concerning the Transactions,
Counterparty and each of its 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 Transactions and all materials of any kind, including opinions or other tax
analyses, provided by Dealer and its affiliates to Counterparty relating to such tax treatment and tax structure; provided
that the foregoing does not constitute an authorization to disclose the identity of Dealer or its affiliates, agents or advisers,
or, except to the extent relating to such tax structure or tax treatment, any specific pricing terms or commercial or financial
information, and (ii) Dealer does not assert any claim of proprietary ownership in respect of any description contained herein
or therein relating to the use of any entities, plans or arrangements to give rise to a particular United States federal income tax
treatment for Counterparty.
12. Restricted
Shares. If Counterparty is unable to comply with the covenant of Counterparty contained in Section 6 above or Dealer otherwise
determines in its reasonable opinion that any Shares to be delivered to Dealer by Counterparty under any Transaction may not be freely
returned by Dealer to securities lenders as described in the covenant of Counterparty contained in Section 6 above, then delivery
of any such Settlement Shares (the “Unregistered Settlement Shares”) shall be effected pursuant to Annex A hereto,
unless waived by Dealer.
13. Use of
Shares. Dealer acknowledges and agrees that, except in the case of a Private Placement Settlement,
Dealer shall use any Shares delivered by Counterparty to Dealer on any Settlement Date to return to securities lenders to close out borrowings
created by Dealer in connection with its hedging activities related to exposure under the Transactions or otherwise in compliance with
applicable law.
14. Rule 10b-18.
In connection with bids and purchases of Shares in connection with any Net Share Settlement or Cash Settlement of any Transaction, Dealer
shall use commercially reasonable 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 and taking into account any applicable Securities and Exchange Commission no-action letters as appropriate, and
subject to any delays between the execution and reporting of a trade of the Shares on the Exchange and other circumstances beyond Dealer’s
control.
15. Governing
Law. Notwithstanding anything to the contrary in the Agreement, the Agreement, this Master Confirmation,
any Supplemental Confirmation and all matters arising in connection with the Agreement this Master Confirmation and any Supplemental Confirmation
shall be governed by, and construed and enforced in accordance with, the laws of the State of New York (without reference to its choice
of laws doctrine other than Title 14 of Article 5 of the New York General Obligations Law).
16. Set-Off.
(a) The
parties agree that upon the occurrence of an Event of Default or Termination Event with respect to a party who is the Defaulting Party
or the Affected Party (“X”), the other party (“Y”) will have the right (but not be obliged) without
prior notice to X or any other person to set-off or apply any obligation of X owed to Y (whether or not matured or contingent and whether
or not arising under the Agreement, and regardless of the currency, place of payment or booking office of the obligation) against any
obligation of Y owed to X (whether or not matured or contingent and whether or not arising under the Agreement, and regardless of the
currency, place of payment or booking office of the obligation). Y will give notice to the other party of any set-off effected under this
Section 16.
Amounts (or the relevant portion
of such amounts) subject to set-off may be converted by Y into the Termination Currency at the rate of exchange at which such party would
be able, acting in a reasonable manner and in good faith, to purchase the relevant amount of such currency. If any obligation is unascertained,
Y may in good faith estimate that obligation and set-off in respect of the estimate, subject to the relevant party accounting to the other
when the obligation is ascertained. Nothing in this Section 16 shall be effective to create a charge or other security interest.
This Section 16 shall be without prejudice and in addition to any right of set-off, combination of accounts, lien or other right
to which any party is at any time otherwise entitled (whether by operation of law, contract or otherwise).
(b) Notwithstanding
anything to the contrary in the foregoing, Dealer agrees not to set off or net amounts due from Counterparty with respect to any Transaction
against amounts due from Dealer to Counterparty with respect to contracts or instruments that are not Equity Contracts. “Equity
Contract” means any transaction or instrument that does not convey to Dealer rights, or the ability to assert claims, that are
senior to the rights and claims of common stockholders in the event of Counterparty’s bankruptcy and would be classified as equity
according to generally accepted accounting principles in the United States.
17. Staggered
Settlement. Notwithstanding anything to the contrary herein, Dealer may, by prior notice to Counterparty, satisfy its obligation to
deliver any Shares or other securities on any date due (an “Original Delivery Date”) by making separate deliveries
of Shares or such securities, as the case may be, at more than one time on or prior to such Original Delivery Date, so long as the aggregate
number of Shares and other securities so delivered on or prior to such Original Delivery Date is equal to the number required to be delivered
on such Original Delivery Date.
18. Arbitration.
(a) All
parties to this Confirmation are giving up the right to sue each other in court, including the right to a trial by jury, except as provided
by the rules of the arbitration forum in which a claim is filed.
(b) Arbitration
awards are generally final and binding; a party’s ability to have a court reverse or modify an arbitration award is very limited.
(c) The
ability of the parties to obtain documents, witness statements and other discovery is generally more limited in arbitration than in court
proceedings.
(d) The
arbitrators do not have to explain the reason(s) for their award.
(e) The
panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry, unless
Counterparty is a member of the organization sponsoring the arbitration facility, in which case all arbitrators may be affiliated with
the securities industry.
(f) The
rules of some arbitration forums may impose time limits for bringing a claim in arbitration. In some cases, a claim that is ineligible
for arbitration may be brought in court.
(g) The
rules of the arbitration forum in which the claim is filed, and any amendments thereto, shall be incorporated into this Master Confirmation.
(h) Counterparty
agrees that any and all controversies that may arise between Counterparty and Dealer arising out of or relating to the Agreement or any
Transaction hereunder shall be determined by arbitration conducted before the FINRA Dispute Resolution (“FINRA-DR”), or, if
the FINRA-DR declines to hear the matter, before the American Arbitration Association, in accordance with their arbitration rules then
in force. The award of the arbitrator shall be final, and judgment upon the award rendered may be entered in any court, state or federal,
having jurisdiction.
(i) No
person shall bring a putative or certified class action to arbitration, nor seek to enforce any pre-dispute arbitration agreement against
any person who has initiated in court a putative class action or who is a member of a putative class who has not opted out of the class
with respect to any claims encompassed by the putative class action until: (i) the class certification is denied; (ii) the class
is decertified; or (iii) Counterparty is excluded from the class by the court.
(j) Such
forbearance to enforce an agreement to arbitrate shall not constitute a waiver of any rights under this Master Confirmation except to
the extent stated herein.
19. Counterparts.
This Master Confirmation may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and
any party hereto may execute this Master Confirmation by signing and delivering one or more counterparts.
20. Delivery
of Cash. For the avoidance of doubt, nothing in this Master Confirmation or any Supplemental Confirmation shall be interpreted as
requiring Counterparty to deliver cash or other assets in respect of the settlement of the Transactions, except in circumstances where
the required cash or other asset settlement thereof is permitted for classification of the contract as equity by ASC 815-40, Derivatives
and Hedging – Contracts in Entity’s Own Equity, as in effect on the date hereof.
21. Adjustments.
For the avoidance of doubt, whenever the Calculation Agent, the Hedging Party or the Determining Party is called upon to make an adjustment
pursuant to the terms of this Master Confirmation, any Supplemental Confirmation or the Equity Definitions to take into account the effect
of an event, the Calculation Agent, the Hedging Party or the Determining Party, as applicable, shall make such adjustment by reference
to the effect of such event on the Hedging Party, assuming that the Hedging Party maintains a commercially reasonable hedge position at
the time of the event.
22. [QFC
Stay Rules. The parties acknowledge and agree that (i) to the extent that prior to the date hereof both parties have adhered
to the 2018 ISDA U.S. Resolution Stay Protocol (the “Protocol”), the terms of the Protocol are incorporated into and
form a part of this Agreement, and for such purposes this Agreement shall be deemed a Protocol Covered Agreement, Dealer shall be deemed
a Regulated Entity and Counterparty shall be deemed an Adhering Party; (ii) to the extent that prior to the date hereof the parties
have executed a separate agreement the effect of which is to amend the qualified financial contracts between them to conform with the
requirements of the QFC Stay Rules (the “Bilateral Agreement”), the terms of the Bilateral Agreement are incorporated
into and form a part of this Agreement, and for such purposes this Agreement shall be deemed a Covered Agreement, Dealer shall be deemed
a “Covered Entity” and Counterparty shall be deemed a “Counterparty Entity”; or (iii) if clause (i) and
clause (ii) do not apply, 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 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 Agreement, and for
such purposes this Agreement shall be deemed a “Covered Agreement,” Dealer shall be deemed a “Covered Entity”
and Counterparty shall be deemed a “Counterparty Entity.” In the event that, after the date of this Agreement, both parties
hereto become adhering parties to the Protocol, the terms of the Protocol will replace the terms of this Section 22. In the event
of any inconsistencies between this Agreement and the terms of the Protocol, the Bilateral Agreement 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 Agreement”
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
[Dealer Parent] 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 FDIC 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.]
23. Other
Forward(s). Dealer acknowledges that Counterparty has entered into or may enter in the future into one or more other forward transactions
on the Shares (each, an “Other Forward” and, collectively, the “Other Forwards”) with one or more
other forward purchasers. Dealer and Counterparty agree that if Counterparty designates a “Settlement Date” or “First
Unwind 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 Forward(s) coincides for any period of time with an Unwind
Period for this Transaction (the “Overlap Unwind Period”), Counterparty shall notify Dealer at least one Scheduled
Trading Day prior to the commencement of such Overlap Unwind Period of the first Scheduled Trading Day and the length of such Overlap
Unwind Period, and Dealer shall be permitted to purchase Shares to unwind its hedge in respect of this Transaction only on alternating
Scheduled Trading Days during such Overlap Unwind Period, as notified to Dealer by Counterparty at least one Exchange Business 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 Forward, every third Scheduled Trading Day if there are two Other Forwards, etc.).
24. Right
to Designate. Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell,
receive or deliver any Shares or other securities to or from Counterparty, Dealer may designate any of its affiliates (each, a “Designee”)
to purchase, sell, receive or deliver such Shares or other securities and otherwise to perform Dealer’s obligations in respect of
the Transaction and any such Designee may assume such obligations.
25. Tax
Matters. [Insert applicable Dealer tax language]
26. [Reserved].
[Insert any Dealer boilerplate]
Counterparty hereby agrees (a) to check this
Master Confirmation carefully and immediately upon receipt so that errors or discrepancies can be promptly identified and rectified and
(b) to confirm that the foregoing (in the exact form provided by Dealer) correctly sets forth the terms of the agreement between
Dealer and Counterparty hereunder, by manually signing this Master Confirmation or this page hereof as evidence of agreement to such
terms and providing the other information requested herein and immediately returning an executed copy to us.
| Yours faithfully, |
| | | |
| | | |
| | [DEALER] |
| | | |
| | By: | |
| | | Name: |
| | | Title: |
| Agreed and accepted by: | |
| | | |
| AVALONBAY COMMUNITIES, INC. | |
| | | |
| By: | | |
| | Name: Joanne M. Lockridge | |
| | Title: Executive Vice President – Capital Markets | |
[Signature Page to Additional Forward Confirmation]
ANNEX A
PRIVATE PLACEMENT PROCEDURES
If Counterparty delivers Unregistered
Settlement Shares pursuant to Section 12 above (a “Private Placement Settlement”), then:
(a) all
Unregistered Settlement Shares shall be delivered to Dealer (or any affiliate of Dealer designated by Dealer) pursuant to the exemption
from the registration requirements of the Securities Act provided by Section 4(a)(2) thereof;
(b) as
of or prior to the date of delivery, Dealer and any potential purchaser of any such shares from Dealer (or any affiliate of Dealer designated
by Dealer) identified by Dealer shall be afforded a commercially reasonable opportunity to conduct a due diligence investigation with
respect to Counterparty customary in scope for private placements of equity securities of similar size (including, without limitation,
the right to have made available to them for inspection all financial and other records, pertinent corporate documents and other information
reasonably requested by them);
(c) as
of the date of delivery, Counterparty shall enter into an agreement (a “Private Placement Agreement”) with Dealer (or
any affiliate of Dealer designated by Dealer) in connection with the private placement of such shares by Counterparty to Dealer (or any
such affiliate) and the private resale of such shares by Dealer (or any such affiliate), substantially similar to private placement purchase
agreements customary for private placements of equity securities of similar size, in form and substance commercially reasonably satisfactory
to Dealer, which Private Placement Agreement shall include, without limitation, provisions substantially similar to those contained in
such private placement purchase agreements relating, without limitation, to the indemnification of, and contribution in connection with
the liability of, Dealer and its affiliates and obligations to use best efforts to obtain customary opinions, accountants’ comfort
letters and lawyers’ negative assurance letters, and shall provide for the payment by Counterparty of all commercially reasonable
fees and expenses in connection with such resale, including all commercially reasonable fees and expenses of counsel for Dealer, and shall
contain representations, warranties, covenants and agreements of Counterparty reasonably necessary or advisable to establish and maintain
the availability of an exemption from the registration requirements of the Securities Act for such resales; and
(d) in
connection with the private placement of such shares by Counterparty to Dealer (or any such affiliate) and the private resale of such
shares by Dealer (or any such affiliate), Counterparty shall, if so requested by Dealer, prepare, in cooperation with Dealer, a private
placement memorandum in form and substance reasonably satisfactory to Dealer.
In the case of a Private Placement
Settlement, Dealer shall, in its good faith discretion, adjust the amount of Unregistered Settlement Shares to be delivered to Dealer
hereunder in a commercially reasonable manner to reflect the fact that such Unregistered Settlement Shares may not be freely returned
to securities lenders by Dealer and may only be saleable by Dealer at a discount to reflect the lack of liquidity in Unregistered Settlement
Shares.
If Counterparty delivers any
Unregistered Settlement Shares in respect of a Transaction, Counterparty agrees that (i) such Shares may be transferred by and among
Dealer 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, Counterparty shall promptly remove, or cause the transfer agent for
the Shares to remove, any legends referring to any transfer restrictions from such Shares upon delivery by Dealer (or such affiliate of
Dealer) to Counterparty or such transfer agent of seller’s and broker’s representation letters customarily delivered by Dealer
or its affiliates in connection with resales of restricted securities pursuant to Rule 144 under the Securities Act, each without
any further requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document, any
transfer tax stamps or payment of any other amount or any other action by Dealer (or such affiliate of Dealer).
SCHEDULE A
SUPPLEMENTAL CONFIRMATION
| To: |
|
AvalonBay Communities, Inc. |
| A/C: |
|
[___] |
| From: |
|
[Dealer] |
| Re: |
|
Issuer Share Forward Sale Transaction |
| Ref. No: |
|
[ ] |
| Date: |
|
September 6, 2024 |
Dear Sir(s):
The
purpose of this Supplemental Confirmation is to confirm the terms and conditions of the Transaction entered into between [Dealer]
(“Dealer”) and AvalonBay Communities, Inc. (“Counterparty”) (together, the “Contracting
Parties”) on the Trade Date specified below. This Supplemental Confirmation is a binding contract between Dealer and Counterparty
as of the relevant Trade Date for the Transaction referenced below.
1. This
Supplemental Confirmation supplements, forms part of, and is subject to the Master Confirmation dated as of September 6, 2024 (the
“Master Confirmation”) between the Contracting Parties, as amended and supplemented from time to time. All provisions
contained in the Master Confirmation govern this Supplemental Confirmation except as expressly modified below.
2. The
terms of the Transaction to which this Supplemental Confirmation relates are as follows:
| Trade Date: |
September 6, 2024 |
| Effective Date: |
September 9, 2024 |
| Maturity Date: |
December 31, 2025 |
| Number of Shares: |
120,000 |
| Spread: |
0.75% |
| Threshold Price: |
USD [ ] |
| Initial Stock Loan Rate: |
[ ] basis points per annum |
| Maximum Stock Loan Rate: |
200 basis points per annum |
Please confirm that the foregoing correctly sets
forth the terms of our agreement by signing and returning this Supplemental Confirmation.
| Yours faithfully, |
| | | |
| | | |
| | [DEALER] |
| | | |
| | By: | |
| | | Name: |
| | | Title: |
| Agreed and accepted by: | |
| | | |
| AVALONBAY COMMUNITIES, INC. | |
| | | |
| By: | | |
| | Name: Joanne M. Lockridge | |
| | Title: Executive Vice President – Capital Markets | |
[Signature Page to Additional Supplemental Confirmation]
Schedule I
Forward
Price Reduction Amounts
| Forward Price Reduction Date: |
Forward Price Reduction Amount: |
| [___________], 20[__] |
USD [__] |
| [___________], 20[__] |
USD [__] |
| [___________], 20[__] |
USD [__] |
| [___________], 20[__] |
USD [__] |
| [___________], 20[__] |
USD [__] |
| [___________], 20[__] |
USD [__] |
REGULAR
DIVIDEND Amounts
| For any calendar quarter ending on or prior to [December 31, 20[__]]: |
USD [___] |
| For any calendar quarter ending after [December 31, 20[__]]: |
USD [___] |
EXHIBIT 5.1
 | Goodwin Procter LLP
The New York Times Building
620 Eighth Avenue
New York, NY 10018
goodwinlaw.com
+1 617 570 1000 |
September 9, 2024
AvalonBay Communities, Inc.
4040 Wilson Blvd., Suite 1000
Arlington, Virginia 22203
Re: Securities
Registered under Registration Statement on Form S-3
We have acted as counsel to you in connection with
your filing of a Registration Statement on Form S-3 (File No. 333-277313) (as amended or supplemented, the “Registration Statement”)
filed on February 23, 2024 with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities
Act of 1933, as amended (the “Securities Act”), relating to the registration of the offering by AvalonBay Communities,
Inc., a Maryland corporation (the “Company”), of any combination of securities of the types specified therein. The
Registration Statement became effective upon filing with the Commission on February 23, 2024.
Reference is made to our opinion letter dated February
23, 2024 and included as Exhibit 5.1 to the Registration Statement. We are delivering this supplemental opinion letter in connection with
the prospectus supplement (the “Prospectus Supplement”) filed on September 6, 2024 by the Company with the Commission
pursuant to Rule 424 under the Securities Act. The Prospectus Supplement relates to the offering by the Company of 3,680,000 shares (the
“Total Shares”) of the Company’s common stock, par value $0.01 per share (“Common Stock”),
covered by the Registration Statement, which amount includes an option granted to the underwriters to purchase up to an additional 480,000
shares of Common Stock. The Total Shares are being offered and sold pursuant to (i) the underwriting agreement, dated as of September
5, 2024 (the “Underwriting Agreement”), by and among the Company, Goldman Sachs & Co. LLC, BofA Securities, Inc.,
Deutsche Bank Securities Inc. and Morgan Stanley & Co. LLC, in their capacities as underwriters, Goldman Sachs & Co. LLC, BofA
Securities, Inc., Deutsche Bank Securities Inc. and Morgan Stanley & Co. LLC, in their capacities as forward sellers (together, the
“Forward Sellers”), and Goldman Sachs & Co. LLC, Bank of America, N.A., Deutsche Bank AG, London Branch and Morgan
Stanley & Co. LLC, in their capacities as forward purchasers (together, the “Forward Purchasers”), (ii) the master
forward confirmations and related supplemental forward confirmations, each dated September 5, 2024, by and between the Company and each
of the Forward Purchasers (each master forward confirmation and related supplemental confirmation, an “Initial Forward Sale Agreement”)
and (iii) the additional master forward confirmations and related supplemental forward confirmations, each dated September 6, 2024, by
and between the Company and each of the Forward Purchasers (each additional master forward and related supplemental confirmation, an “Option
Forward Sale Agreement” and such Option Forward Sale Agreements, collectively with the Initial Forward Sale Agreements, the
“Forward Sale Agreements”). Pursuant to the Underwriting Agreement, the Total Shares will consist of shares of Common
Stock borrowed by the Forward Purchasers (or their affiliates) from third parties (the “Borrowed Shares”) and sold
by the Forward Sellers pursuant to one or more forward transactions (the “Forwards”). The Forwards are to be governed
by the terms of the relevant Forward Sale Agreement pursuant to which the Forward Purchasers have agreed to purchase from the Company
(subject to the Company’s right to elect cash settlement or net share settlement), a number of shares of Common Stock equal to the
number of Borrowed Shares sold by the relevant Forward Seller pursuant to the Underwriting Agreement (the “Forward Settlement
Shares”), subject to adjustment as set forth therein, for a purchase price equal to the price set forth in the Underwriting
Agreement.
AvalonBay Communities, Inc.
September 9, 2024
Page 2
We have reviewed such documents and made such examination
of law as we have deemed appropriate to give the opinion set forth below. We have relied, without independent verification, on certificates
of public officials and, as to matters of fact material to the opinion set forth below, on certificates of officers of the Company.
For purposes of the opinion set forth below, we
have assumed that no event occurs that causes the number of authorized shares of Common Stock available for issuance by the Company to
be less than the number of Forward Settlement Shares subject to the Forwards that have not then settled.
The opinion set forth below is limited to the Maryland
General Corporation Law.
Based on the foregoing, we are of the opinion that
the Forward Settlement Shares have been duly authorized and, when issued, delivered and paid for in accordance with the Underwriting Agreement
and the relevant Forward Sale Agreement (including in net share settlement of a Forward Sale Agreement), will be validly issued, fully
paid and nonassessable.
This opinion letter and the opinion it contains
shall be interpreted in accordance with the Core Opinion Principles as published in 74 Business Lawyer 815 (Summer 2019).
We hereby consent to the inclusion of this opinion
as Exhibit 5.1 to the Company’s Current Report on Form 8-K dated September 9, 2024, which is incorporated by reference into the
Registration Statement and to the references to our firm under the caption “Legal Matters” in the Registration Statement and
the Prospectus Supplement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under
Section 7 of the Securities Act or the rules and regulations thereunder.
| |
Very truly yours, |
| |
|
| |
/s/ Goodwin Procter LLP |
| |
|
| |
GOODWIN PROCTER LLP |
v3.24.2.u1
Cover
|
Sep. 05, 2024 |
| Cover [Abstract] |
|
| Document Type |
8-K
|
| Amendment Flag |
false
|
| Document Period End Date |
Sep. 05, 2024
|
| Entity File Number |
1-12672
|
| Entity Registrant Name |
AVALONBAY
COMMUNITIES, INC.
|
| Entity Central Index Key |
0000915912
|
| Entity Tax Identification Number |
77-0404318
|
| Entity Incorporation, State or Country Code |
MD
|
| Entity Address, Address Line One |
4040 Wilson Blvd., Suite 1000
|
| Entity Address, City or Town |
Arlington
|
| Entity Address, State or Province |
VA
|
| Entity Address, Postal Zip Code |
22203
|
| City Area Code |
703
|
| Local Phone Number |
329-6300
|
| Written Communications |
false
|
| Soliciting Material |
false
|
| Pre-commencement Tender Offer |
false
|
| Pre-commencement Issuer Tender Offer |
false
|
| Title of 12(b) Security |
Common Stock, par value $0.01 per share
|
| Trading Symbol |
AVB
|
| Security Exchange Name |
NYSE
|
| Entity Emerging Growth Company |
false
|
| X |
- DefinitionBoolean flag that is true when the XBRL content amends previously-filed or accepted submission.
| Name: |
dei_AmendmentFlag |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionFor the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
| Name: |
dei_DocumentPeriodEndDate |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:dateItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
| Name: |
dei_DocumentType |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:submissionTypeItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionAddress Line 1 such as Attn, Building Name, Street Name
| Name: |
dei_EntityAddressAddressLine1 |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- Definition
+ References
+ Details
| Name: |
dei_EntityAddressCityOrTown |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionCode for the postal or zip code
| Name: |
dei_EntityAddressPostalZipCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionName of the state or province.
| Name: |
dei_EntityAddressStateOrProvince |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:stateOrProvinceItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityCentralIndexKey |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:centralIndexKeyItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionIndicate if registrant meets the emerging growth company criteria. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityEmergingGrowthCompany |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
| Name: |
dei_EntityFileNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:fileNumberItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
| Name: |
dei_EntityIncorporationStateCountryCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarStateCountryItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityRegistrantName |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityTaxIdentificationNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:employerIdItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionLocal phone number for entity.
| Name: |
dei_LocalPhoneNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
| Name: |
dei_PreCommencementIssuerTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
| Name: |
dei_PreCommencementTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTitle of a 12(b) registered security. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
| Name: |
dei_Security12bTitle |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:securityTitleItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionName of the Exchange on which a security is registered. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
| Name: |
dei_SecurityExchangeName |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarExchangeCodeItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Section 14a
-Number 240
-Subsection 12
| Name: |
dei_SolicitingMaterial |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
| Name: |
dei_TradingSymbol |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:tradingSymbolItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
| Name: |
dei_WrittenCommunications |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
Avalonbay Communities (NYSE:AVB)
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From Oct 2024 to Nov 2024
Avalonbay Communities (NYSE:AVB)
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From Nov 2023 to Nov 2024
