UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
GRIFFIN INDUSTRIAL REALTY, INC.
(Exact name of registrant as specified in charter)
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Delaware |
06-0868496 |
(State or other jurisdiction of incorporation) |
(IRS Employer Identification No.) |
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(Commission File Number) |
1-12879 |
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641 Lexington Avenue, New York, New York |
10022 |
(Address of principal executive offices) |
(Zip Code) |
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Registrant’s Telephone Number, including Area Code |
(212) 218-7910 |
_____________________________________________________________________________
(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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2 (b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4 (c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered or to be registered pursuant to Section 12(b) of the Act:
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Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
Common Stock, $0.01 par value per share |
GRIF |
The Nasdaq Stock Market LLC |
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).
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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. ◻
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Item 1.01. |
Entry into a Material Definitive Agreement. |
Securities Purchase Agreement
On August 24, 2020, Griffin Industrial Realty, Inc. (the “Company”) entered into a Securities Purchase Agreement (the “Securities Purchase Agreement”) with CM Change Industrial LP (the “Purchaser”), an investment entity managed by Cambiar Management LLC. Pursuant to the Securities Purchase Agreement, the Company (i) sold 504,590 shares (the “Common Shares”) of the Company’s common stock, par value $0.01 per share (“Common Stock”), and (ii) issued a warrant (the “Warrant”) to acquire 504,590 additional shares of Common Stock (subject to adjustment as set forth therein) at an exercise price of $60.00 (the “Exercise Price”) (as exercised, collectively, the “Warrant Shares” and, together with the Common Shares, the “Purchased Securities”). The Purchaser paid $50.00 per Common Share for each Common Share and $4.00 per Warrant Share for the Warrant for an aggregate purchase price of $27,247,860.00. The closing of the purchase and sale occurred simultaneously with signing the Securities Purchase Agreement on August 24, 2020.
The Company expects to use the net proceeds from the sale of the Purchased Securities for working capital and general corporate purposes, including for acquisitions and developments of industrial/warehouse properties. The offer and sale of the shares of Common Stock and the issuance of the Warrant are being made in reliance on an exemption from registration under the Securities Act of 1933, as amended (the “Securities Act”) pursuant to Section 4(a)(2) thereof and Rule 506(b) of Regulation D as promulgated by the Securities and Exchange Commission under the Securities Act, as a transaction by an issuer not involving a public offering.
The Securities Purchase Agreement contains customary representations, warranties, covenants and indemnities of the Company and the Purchaser.
Purchaser Director and Nominees
Pursuant to the terms of the Securities Purchase Agreement, for so long as the Purchaser owns shares of Common Stock constituting more than 4.9% of the Common Stock issued and outstanding, the Purchaser will have the right to designate one member (the “Purchaser Nominee”) to the Board of Directors (the “Board”) of the Company (provided that such Purchaser Nominee must qualify as an independent director under the listing standards of The Nasdaq Stock Market LLC (the “Nasdaq Rules”), as determined by the Board in its business judgment) and such Purchaser Nominee shall be nominated by the Board for re-election as a director at each subsequent meeting of the Company’s stockholders.
Standstill
Subject to certain customary exceptions set forth in the Securities Purchase Agreement, the Purchaser and its affiliates are prohibited from, among other things, (i) acquiring securities or assets of the Company, (ii) effecting a tender offer, merger, acquisition, business combination, exchange offer, recapitalization, restructuring, liquidation, dissolution or similar transaction of the Company, (iii) making or participating in any proxy solicitation relating to the election of directors that has not been approved by the independent directors of the Company and (iv) seeking to control or influence the management or policies of the Company, in each case, until the later of (x) twenty-four months following the date of the Securities Purchase Agreement and (y) such time as the Purchaser is no longer entitled to nominate a Purchaser Nominee.
Restrictions on Transfer
Until the one-year anniversary of the date of the Securities Purchase Agreement, the Purchaser may not transfer any of the Common Shares without the prior written consent of the Company.
REIT-Related Covenants
Pursuant to the terms of the Securities Purchase Agreement, the Purchaser agreed to certain covenants related to the Company’s plan to convert to a real estate investment trust.
Hedging Transactions
So long as the Purchaser has the right to designate a Purchaser Nominee, the Purchaser may not enter into any Hedging Transactions (as such term is defined in the Securities Purchase Agreement) to the extent directors of the Company are prohibited from entering into such Hedging Transactions pursuant to a policy applicable to all directors of the Company.
Pre-emptive Rights
If, after the date of the Securities Purchase Agreement, the Company intends to issue new equity securities for cash to any person and the Purchaser owns shares of Common Stock constituting more than 4.9% of the Common Stock issued and outstanding, then the Purchaser has the right to participate in such equity offering, subject to certain exceptions, including, without limitation, equity securities issued in connection with an at-the-market offering program or any firm commitment underwritten offering, as set forth in the Securities Purchase Agreement.
Warrant
The Warrant is exercisable from the date of issuance and has a term of three years. The Exercise Price and the number of shares of Common Stock issuable upon exercise of each Warrant is subject to appropriate adjustments in the event of certain stock dividends, stock splits, stock combinations, reclassifications or similar events affecting the Common Stock. Upon a Fundamental Transaction (as defined in the Warrant) in which the consideration consists solely of cash, solely of marketable securities or a combination thereof, the remaining unexercised portion of the Warrant will automatically be deemed to be exercised or the Warrant will be terminated, depending on whether the purchase price per share of one share of Common Stock in such fundamental transaction is greater or less than the Exercise Price. In addition, if such Fundamental Transaction occurs prior to the one-year anniversary of the date of the Warrant, and the price per share of one share of Common Stock in such Fundamental Transaction is less than the Exercise Price, or if it is greater than the Exercise Price but less than the purchase price paid by the holder per Warrant Share, then the holder will be entitled to receive up to an amount equal to the purchase price paid by the holder per Warrant Share in respect of any unexercised portion of the Warrant.
The holder will not be entitled to exercise any portion of the Warrant, which, upon giving effect to such exercise, would cause the aggregate number of shares of Common Stock beneficially owned by the holder of the Warrant (together with its affiliates) to exceed 9.90% of the number of shares of Common Stock outstanding immediately after giving effect to the exercise, as such percentage ownership is determined in accordance with the terms of the Warrant. However, the holder may increase or decrease such percentage to any other percentage not in excess of 19.90% upon at least 61 days’ prior notice from the holder to the Company, subject to the terms of the Warrant.
Registration Rights Agreement
On August 24, 2020, the Company and the Purchaser also entered into a Registration Rights Agreement (the “Registration Rights Agreement”), pursuant to which, among other things, the Company granted the Purchaser certain registration rights. Under the Registration Rights Agreement, the Company is required to use its commercially reasonable efforts to cause the registration of the Common Shares and the Warrant Shares.
Contingent Value Rights Agreement
On August 24, 2020, the Company and the Purchaser also entered into a Contingent Value Rights Agreement (the “Contingent Value Rights Agreement”), pursuant to which the Purchaser is entitled to a one-time cash payment in the event the Company’s volume weighted average share price per share of Common Stock for the thirty trading day period ending at the date of the one-year anniversary of the date of the Securities Purchase Agreement (the “30-Day VWAP”) is less than the purchase price paid by the Purchaser in respect of each Common Share (the “Common Shares Purchase Price”), subject to adjustment as described therein. If the 30-Day VWAP is less than the Common Share Purchase Price, the Purchaser is entitled to a one-time cash payment per contingent value right calculated on a linear basis relative to the difference between the 30-Day VWAP and the Common Share Purchase Price. Such payment will in no event exceed an amount equal to 10% of the Common Share Purchase Price.
Gordon DuGan, Chairman of the Board of Directors of the Company, is an investor in an investment fund that is managed or advised by affiliates of Cambiar Management LLC. No such investment fund in which Mr. DuGan is an investor participated in the transactions described herein.
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Item 3.02. |
Unregistered Sales of Equity Securities. |
The information in Item 1.01 above is incorporated by reference into this Item 3.02.
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Item 5.02. |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On August 27, 2020, in accordance with the terms of the Securities Purchase Agreement, the Company increased the size of the Board of Directors from nine to ten members and appointed Ardevan Yaghoubi, the initial Purchaser Nominee under the Securities Purchase Agreement, to serve as a director, effective immediately, with a term to expire at the Company’s 2021 annual meeting of stockholders and until his successor is duly elected and qualified. The Board has determined that Mr. Yaghoubi qualifies as an independent director, as defined under Nasdaq Rules, and Mr. Yaghoubi is not expected to serve on any Board committees.
Mr. Yaghoubi has served as a Principal at Cambiar Management LLC, a New York-based investment advisor, since February 2020. Previously, he was the founder of Heathcote Capital Partners, an opportunistic real estate investment firm and a Vice President at Trise Development, a privately-owned real estate development firm. He currently serves on the board of directors of Quinn Residences, a private single-family rental company active in the Southeast U.S. Mr. Yaghoubi holds an A.B. with Honors from the University of Chicago, a Master of Studies from Oxford University, and was a Fulbright Scholar.
Additionally, in accordance with the terms of the Securities Purchase Agreement, Mr. Yaghoubi, as the Purchaser Nominee and an employee of an affiliate of the Purchaser, will not receive any compensation, other than the customary reimbursement of expenses as applicable to all other Company directors in connection with serving on the Board.
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Item 9.01. |
Financial Statements and Exhibits. |
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Exhibit No. |
Description |
4.1 |
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10.1 |
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10.2 |
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10.3 |
Forward-Looking Statements
This Current Report on Form 8-K includes “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, as codified in Section 27A of the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended. These forward-looking statements include the Company’s beliefs and expectations regarding future events or conditions including, without limitation, statements regarding the Company’s expected use of the net proceeds from the sale of the Purchased Securities, future industrial acquisitions and
developments, and the Company’s planned conversion to a real estate investment trust. Although the Company believes that its plans, intentions and expectations reflected in such forward-looking statements are reasonable, it can give no assurance that such plans, intentions or expectations will be achieved. The projected information disclosed herein is based on assumptions and estimates that, while considered reasonable by the Company as of the date hereof, are inherently subject to significant business, economic, competitive and regulatory uncertainties and contingencies, many of which are beyond the control of the Company and which could cause actual results and events to differ materially from those expressed or implied in the forward-looking statements. Other important factors that could affect the outcome of the events set forth in these statements are described in the Company’s Securities and Exchange Commission filings, including the “Business,” “Risk Factors” and “Forward-Looking Statements” sections in the Company’s Annual Report on Form 10-K for the fiscal year ended November 30, 2019 and the “Risk Factors” section in the Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended May 31, 2020, as filed with the SEC, which are available at www.sec.gov. The Company disclaims any obligation to update any forward-looking statements as a result of developments occurring after the date of this press release except as required by law.
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SIGNATURES |
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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GRIFFIN INDUSTRIAL REALTY, INC. |
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By: |
/s/ Anthony J. Galici |
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Anthony J. Galici |
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Vice President, Chief Financial Officer |
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and Secretary |
Dated: August 28, 2020 |
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Exhibit 4.1
NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL OR OTHER EVIDENCE (IF REQUESTED BY THE COMPANY), EACH, IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT.
GRIFFIN INDUSTRIAL REALTY, INC.
Warrant To Purchase Common Stock
Warrant No.: A-1
Number of Shares of Common Stock: 504,590
Date of Issuance: August 24, 2020 (“Issuance Date”)
Griffin Industrial Realty, Inc., a Delaware corporation (the “Company”), hereby certifies that, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, CM Change Industrial LP, a Delaware limited partnership or its permitted assigns (the “Holder”), is entitled, subject to the terms set forth below (including Section 3), to purchase from the Company, at the Exercise Price (as defined below) then in effect, upon exercise of this Warrant to Purchase Common Stock (including any Warrants to Purchase Common Stock issued in exchange, transfer or replacement hereof, the “Warrant”), at any time or times on or after the Issuance Date, but not after 11:59 p.m., New York time, on the Expiration Date (as defined below), 504,590 fully paid and non-assessable shares of Common Stock (as defined below) (the “Warrant Shares”). Except as otherwise defined herein, capitalized terms in this Warrant shall have the meanings set forth in Section 16. This Warrant is issued pursuant to Section 1 of that certain Securities Purchase Agreement, dated as of August 24, 2020, by and among the Company and the Holder (the “Securities Purchase Agreement”).
1. | EXERCISE OF WARRANT. |
has received the Warrant, the Exercise Notice and the Aggregate Exercise Price (the “Share Delivery Date”), the Company shall (X) provided that the Company’s transfer agent (the “Transfer Agent”) is participating in The Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program, upon the request of the Holder, credit such aggregate number of shares of Common Stock to which the Holder is entitled pursuant to such exercise to the Holder’s or its designee’s balance account with DTC through its Deposit Withdrawal Agent Commission system, or (Y) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, issue and deliver to the Holder or, at Holder’s instruction pursuant to the Exercise Notice, Holder’s agent or designee, in each case, sent by reputable overnight courier to the address as specified in the Exercise Notice, a certificate, registered in the Company’s share register in the name of the Holder or its designee (as indicated in the Exercise Notice), for the number of shares of Common Stock to which the Holder is entitled pursuant to such exercise. Upon delivery of the Exercise Notice and payment of the Aggregate Exercise Price, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date such Warrant Shares are credited to the Holder’s DTC account or the date of delivery of the certificates evidencing such Warrant Shares (as the case may be). If this Warrant is submitted in connection with any exercise pursuant to this Section 1(a) and the number of Warrant Shares represented by this Warrant submitted for exercise is greater than the number of Warrant Shares being acquired upon an exercise, then the Company shall as soon as practicable and in no event later than two (2) Business Days after any exercise and at its own expense, issue and deliver to the Holder (or its designee) a new Warrant (in accordance with Section 7(d)) representing the right to purchase the number of Warrant Shares purchasable immediately prior to such exercise under this Warrant, less the number of Warrant Shares with respect to which this Warrant is exercised. No fractional shares of Common Stock are to be issued upon the exercise of this Warrant, but rather the number of shares of Common Stock to be issued shall be rounded up to the nearest whole number. The Company shall pay any and all taxes which may be payable with respect to the issuance and delivery of Warrant Shares upon exercise of this Warrant, provided that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of Warrant Shares in a name other than the Holder or its agent on its behalf.
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X = (Y)(A-B)/A
where:
X =the number of Warrant Shares to be issued to the Holder;
Y =the number of Warrant Shares with respect to which this Warrant is being exercised (inclusive of the number of Warrant Shares surrendered to the Company in payment of the Aggregate Exercise Price);
A =the Fair Market Value of one share of Common Stock; and
B =the Exercise Price.
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of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary and reasonable form satisfactory to the Company and, in the case of mutilation, upon surrender and cancellation of this Warrant, the Company shall execute and deliver to the Holder a new Warrant (in accordance with Section 7(d)) representing the right to purchase the Warrant Shares then underlying this Warrant.
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[signature page follows]
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IN WITNESS WHEREOF, the Company has caused this Warrant to Purchase Common Stock to be duly executed as of the Issuance Date set forth above.
/s/Ant |
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GRIFFIN INDUSTRIAL REALTY, INC. |
By: |
/s/Anthony Galici |
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Name: Anthony J. Galici |
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Title: Vice President, Chief Financial Officer and Secretary |
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[Signature Page to Warrant]
EXHIBIT A
EXERCISE NOTICE
TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS
WARRANT TO PURCHASE COMMON STOCK
GRIFFIN INDUSTRIAL REALTY, INC.
The undersigned holder hereby exercises the right to purchase _________________ of the shares of Common Stock (“Warrant Shares”) of Griffin Industrial Realty, Inc., a Delaware corporation (the “Company”), evidenced by Warrant to Purchase Common Stock No. _______ (the “Warrant”). Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Warrant.
1.Exercise Price. The Holder intends that payment of the Exercise Price shall be made as a “Cash Exercise” with respect to _________________ Warrant Shares.
2.Payment of Exercise Price. In the event that the Holder has elected a Cash Exercise with respect to some or all of the Warrant Shares to be issued pursuant hereto, the Holder shall pay the Aggregate Exercise Price in the sum of $___________________ to the Company in accordance with the terms of the Warrant.
3.Delivery of Warrant Shares. The Company shall deliver to Holder, or its designee or agent as specified below, __________ Warrant Shares in accordance with the terms of the Warrant. Delivery shall be made to Holder, or for its benefit, to the following address or DTC Account number:
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_______________________
_______________________
_______________________
Date: _______________ __, 20__
Name of Registered Holder
By:
Name:
Title:
ACKNOWLEDGMENT
The Company hereby acknowledges this Exercise Notice and hereby directs ______________ to issue the above indicated number of shares of Common Stock in accordance with irrevocable instructions issued to _______________, dated _____________, 20__, from the Company and acknowledged and agreed to by _______________.
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GRIFFIN INDUSTRIAL REALTY, INC. |
By: |
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Name: |
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Title: |
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Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (the “Agreement”), dated as of August 24, 2020, is by and among Griffin Industrial Realty, Inc., a Delaware corporation (the “Company”), and CM Change Industrial LP, a Delaware limited partnership (the “Purchaser”).
RECITALS
A.The Company and the Purchaser are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by Section 4(a)(2) of the Securities Act of 1933, as amended (the “1933 Act”), and Rule 506(b) of Regulation D (“Regulation D”) as promulgated by the U.S. Securities and Exchange Commission (the “SEC”) under the 1933 Act.
B.The Purchaser wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, (i) 504,590 shares (the “Common Shares”) of the Company’s common stock, par value $0.01 per share (“Common Stock”), and (ii) a warrant to acquire up to 504,590 additional shares of Common Stock, in the form attached hereto as Exhibit A (the “Warrant”) (as exercised, collectively, the “Warrant Shares”). The Common Shares, the Warrant and the Warrant Shares are collectively referred to herein as the “Securities.”
C.As a material inducement to the Purchaser’s entering into the Agreement, the Company wishes to grant the Purchaser certain rights with respect to the Securities as set forth in (i) the registration rights agreement, in the form attached hereto as Exhibit B (the “Registration Rights Agreement”) and (ii) the contingent value rights agreement, in the form attached hereto as Exhibit C (the “Contingent Value Rights Agreement”).
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Purchaser hereby agree as follows:
The Purchaser represents and warrants to the Company that:
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that term is defined in the 1933 Act) may require compliance with some other exemption under the 1933 Act or the rules and regulations of the SEC promulgated thereunder; and (iii) neither the Company nor any other Person is under any obligation to register the Securities under the 1933 Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder. The Purchaser understands that the certificates or other instruments (or book-entry notations) representing the Common Shares, the Warrant and the Warrant Shares shall be subject to the legend requirements set forth in Section 5(d). “Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity and a government or any department or agency thereof.
The Company represents and warrants to the Purchaser (except as set forth in the SEC Documents (as defined herein) filed by the Company on or after January 1, 2020 (other than disclosures in the “Risk Factors” or “Forward-Looking Statements” sections thereof) or as set forth in the Disclosure Schedules
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hereto) that:
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collectively, this Agreement, the Warrant, the Registration Rights Agreement, the Contingent Value Rights Agreement, the Irrevocable Transfer Agent Instructions (as defined in Section 5(c)), and each of the other agreements and instruments entered into by the parties hereto in connection with the transactions contemplated hereby and thereby.
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of a recommendation from its independent accountant) that a restatement of any of its previously issued Financial Statements is required under Item 4.02 of Form 8-K.
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Documents and due diligence in connection therewith. The Company acknowledges that such legal fees and expenses may be withheld by the Purchaser from the Purchase Price at the Closing.
(ii) The Company shall be responsible for the payment of any placement agent’s fees, financial advisory fees, or broker’s commissions (other than for Persons engaged by the Purchaser or Persons claiming rights due to the acts of the Purchaser) relating to or arising out of the transactions contemplated hereby. The Company shall pay, and hold the Purchaser harmless against, any liability, loss or expense (including, without limitation, reasonable attorneys’ fees and out-of-pocket expenses) incurred by the Purchaser arising in connection with any claim relating to any such payment. Except as otherwise set forth in the Transaction Documents, each party to this Agreement shall bear its own expenses in connection with the sale of the Securities to the Purchaser.
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[NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN][THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN] REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL OR OTHER EVIDENCE (IF REQUESTED BY THE COMPANY), EACH, IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT. THE SECURITIES ARE SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THAT CERTAIN SECURITIES PURCHASE
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AGREEMENT, DATED AS OF AUGUST 24, 2020.
For purposes of this Section 5(f), “Closing Sale Price” means, for any security as of any date, the last closing trade price for such security on the Principal Market, as reported by Bloomberg Financial Markets (“Bloomberg”), or, if the Principal Market begins to operate on an extended hours basis and does not designate the closing trade price, then the last trade price of such security prior to 4:00 p.m., New York time, as reported by Bloomberg, or, if the Principal Market is not the principal securities exchange or trading market for such security, the last trade price of such security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing does not apply,
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the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no last trade price is reported for such security by Bloomberg, the average of the ask prices of any market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Company and the Purchaser. If the Company and the Purchaser are unable to agree upon the fair market value of such security, then they shall agree in good faith on a reputable investment bank to make such determination of fair market value, whose determination shall be final and binding and whose fees and expenses shall be borne by the Company. All such determinations shall appropriately adjusted for any share dividend, share split, share combination or other similar transaction during such period.
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thereto and the instruments referenced herein and therein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company, the Subsidiaries nor the Purchaser (or their affiliates) makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be amended or waived other than by an instrument in writing signed by the Company and the Purchaser. The Company has not, directly or indirectly, made any agreements with the Purchaser relating to the terms or conditions of the transactions contemplated by the Transaction Documents except as set forth in the Transaction Documents. Without limiting the foregoing, the Company confirms that, except as set forth in this Agreement and the Transaction Documents, the Purchaser has made no commitment or promise or has any other obligation to provide any financing to the Company, any Subsidiary or otherwise.
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If to the Company: |
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Griffin Industrial Realty, Inc. |
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641 Lexington Avenue |
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New York, NY 10022 |
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Telephone: (212) 218-7910 |
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Email: mgamzon@griffinindustrial.com |
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Attention: Michael Gamzon, President & Chief Executive Officer |
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with a copy (which shall not constitute notice) to: |
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Latham & Watkins LLP |
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885 Third Avenue |
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New York, NY 10022 |
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Telephone: (212) 906-1200 |
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Facsimile: (212) 751-4864 |
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Email: John.Giouroukakis@lw.com |
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Attention: John Giouroukakis |
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If to the Purchaser (solely for purposes of delivering notice of an Offering |
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pursuant to Section 4(m)): |
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CM Change Industrial LP |
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90 Park Avenue, 32nd Floor |
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New York, NY 10016 |
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Telephone: 212-274-1074 |
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Email: ko@cambiarlp.com |
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Attention: Keith O’Connor |
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with a copy (which shall not constitute notice) to: |
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Kleinberg, Kaplan, Wolff & Cohen, P.C. |
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500 Fifth Avenue |
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New York, New York 10110 |
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Telephone: (212) 986-6000 |
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Facsimile: (212) 986-8866 |
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Email: jain@kkwc.com |
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Attention: Jonathan Ain, Esq. |
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If to the Purchaser (for all other purposes): |
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CM Change Industrial LP |
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90 Park Avenue, 32nd Floor |
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New York, NY 10016 |
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Telephone: 212-274-1074 |
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Email: ko@cambiarlp.com |
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Attention: Keith O’Connor |
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with a copy (which shall not constitute notice) to: |
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Kleinberg, Kaplan, Wolff & Cohen, P.C. |
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500 Fifth Avenue |
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New York, New York 10110 |
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Telephone: (212) 986-6000 |
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Facsimile: (212) 986-8866 |
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Email: jain@kkwc.com |
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Attention: Jonathan Ain, Esq. |
or to such other address and/or facsimile number and/or electronic mail and/or to the attention of such other Person as the recipient party has specified by written notice given to each other party five (5) days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s facsimile machine containing the time, date, recipient facsimile number and an image of the first page of such transmission or (C) provided by an overnight courier service shall be rebuttable evidence of personal service, receipt by facsimile, receipt by electronic mail or receipt from an overnight courier service in accordance with clause (i), (ii), (iii) or (iv) above, respectively.
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[signature pages follow]
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IN WITNESS WHEREOF, the Company and the Purchaser have caused their respective signature pages to this Agreement to be duly executed as of the date first written above.
COMPANY: |
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GRIFFIN INDUSTRIAL REALTY, INC. |
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By: /s/Anthony J. Galici |
Name: Anthony J. Galici |
Title:Vice President, Chief Financial Officer and Secretary |
[Signature Page to Securities Purchase Agreement]
PURCHASER: |
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CM CHANGE INDUSTRIAL LP |
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By: Cambiar GP Holdings LLC, its General Partner |
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By: /s/Michael Simanovsky |
Name: Michael Simanovsky |
Title: Authorized Person |
[Signature Page to Securities Purchase Agreement]
EXHIBITS
Exhibit AForm of Warrant
Exhibit BForm of Registration Rights Agreement
Exhibit CForm of Contingent Value Rights Agreement
Exhibit DPurchaser’s Representations and Warranties Relating to the Company’s REIT Waiver
Exhibit EForm of Irrevocable Transfer Agent Instructions
Exhibit FForm of Secretary’s Certificate
Exhibit D
REPRESENTATIONS RELATING TO A WAIVER OF OWNERSHIP LIMITS
For purposes of this Exhibit D, the following terms shall have the following meanings:
“Aggregate Stock Ownership Limit” shall mean 5.5% in value of the aggregate of the outstanding shares of Capital Stock, excluding any such outstanding Capital Stock that is not treated as outstanding for U.S. federal income tax purposes.
“Applicable Percentage” shall mean four and one-half percent (4.5%).
“Beneficial Ownership” shall mean ownership of Capital Stock by a Person, whether the interest in the shares of Capital Stock is held directly or indirectly (including by a nominee), and shall include interests that are actually owned or would be treated as owned through the application of Section 544 of the Code, as modified by Sections 856(h)(1)(B) and 856(h)(3) of the Code. The terms “Beneficial Owner,” “Beneficially Owns” and “Beneficially Owned” shall have the correlative meanings.
“Capital Stock” shall mean all classes or series of stock of the Company, including, without limitation, Common Stock and preferred stock of the Company.
“Common Stock Ownership Limit” shall mean 5.5% (in value or in number of shares, whichever is more restrictive) of the aggregate of the outstanding shares of Common Stock of the Company, excluding any such outstanding Common Stock that is not treated as outstanding for U.S. federal income tax purposes.
“Constructive Ownership” shall mean ownership of Capital Stock by a Person, whether the interest in the shares of Capital Stock is held directly or indirectly (including by a nominee), and shall include interests that are actually owned or would be treated as owned through the application of Section 318(a) of the Code, as modified by Section 856(d)(5) of the Code. The terms “Constructive Owner,” “Constructively Owns” and “Constructively Owned” shall have the correlative meanings.
“Individual” means an individual, a trust qualified under Section 401(a) or 501(c)(17) of the Code, a portion of a trust permanently set aside for or to be used exclusively for the purposes described in Section 642(c) of the Code, or a private foundation within the meaning of Section 509(a) of the Code, provided that, except as set forth in Section 856(h)(3)(A)(ii) of the Code, a trust described in Section 401(a) of the Code and exempt from tax under Section 501(a) of the Code shall be excluded from this definition.
“Person” shall mean an Individual, corporation, partnership, limited liability company, estate, trust, association, joint stock company or other entity and also includes a group as that term is used for purposes of Section 13(d)(3) of the Securities Exchange Act of 1934.
“Purchaser Group” means, (i) the Purchaser, and (ii) any entity that Beneficially Owns or Constructively Owns Common Stock in the Company solely as a result of any Purchaser’s direct or indirect ownership of the Purchaser Common Stock, provided that, in the case of this clause (ii), such entity (x) controls, is controlled by, or is under common control with, such Purchaser and (y) is not an Individual.
“Purchaser Common Stock” shall mean the shares of Common Stock acquired by the Purchaser from the Company pursuant to this Agreement and any shares of Common Stock issued upon the exercise by the Purchaser of the Warrant(s) acquired by the Purchaser from the Company pursuant to this Agreement.
The Purchaser hereby represents and covenants that, at all times during which it or any other member of its Purchaser Group Beneficially Owns or Constructively Owns Purchaser Common Stock in excess of the Common Stock Ownership Limit or the Aggregate Stock Ownership Limit:
2. | The Purchaser is not an Individual. |
3. | As a result of the Purchaser’s Beneficial Ownership and, to the knowledge of the Purchaser (after due inquiry), Constructive Ownership of the Purchaser Common Stock, (i) no Person, other than members of the Purchaser Group, will Beneficially Own or, to the knowledge of the Purchaser (after due inquiry), Constructively Own Capital Stock in excess of the Aggregate Stock Ownership Limit or Common Stock in excess of the Common Stock Ownership Limit, and (ii) no Individual will Beneficially Own or, to the knowledge of the Purchaser (after due inquiry) Constructively Own Capital Stock in excess of the Aggregate Stock Ownership Limit or Common Stock in excess of the Common Stock Ownership Limit. |
4. | Neither the Purchaser nor, to the knowledge of the Purchaser (after due inquiry) any other member of the Purchaser Group will Constructively Own more than the Applicable Percentage of the equity interests in any tenant of the Company or its subsidiaries. For purposes of this exhibit, references to a percentage of the equity interests of an entity shall mean, in the case of a corporation, the percentage of the voting power or value of shares of such corporation, and, in the case of any other entity, the percentage interest in the assets or net profits of such entity, in each case, determined in accordance with Section 856(d)(2)(B) of the Code. |
5. | The Company will provide to the Purchaser, from time to time, a then current list of all tenants of the Company and its subsidiaries (the “Tenant List”). The Purchaser shall provide advance written notice to the Company before any member of the Purchaser Group intentionally becomes a Constructive Owner of the Applicable Percentage of any tenant of the Company or its subsidiaries listed on the Tenant List (a “Listed Tenant”). The Purchaser shall promptly provide written notice to the Company if it has knowledge that any member of the Purchaser Group Constructively Owns equity interests in a Listed Tenant in excess of the Applicable Percentage and has not provided advance written notice to the Company. Upon receipt of written notice from the Company of the name of a prospective tenant, the Purchaser shall inform the Company within ten (10) days whether members of the Purchaser Group, to the knowledge of the Purchaser (after due inquiry), Constructively Own more than the Applicable Percentage of the equity interests in such prospective tenant. If, after exercising due care, the Purchaser nevertheless violates the representations in this paragraph 5 (without regard to knowledge) and as a result of such violation the maximum rent expected to be produced |
by any Listed Tenant in any taxable year does not exceed and is not expected to exceed such amount that, together with all other non-qualifying income of the Company, would reasonably be expected (as determined by the Company) to cause the Company to violate the gross income requirements in Section 856(c)(2) or Section 856(c)(3) of the Code for any taxable year (the “Rent Threshold”), then Purchaser shall be deemed to be in compliance with this Exhibit D for so long as both (i) the Purchaser and the Company are working together in good faith to promptly resolve such violation, and (ii) such violation is not likely to cause the Company to fail to satisfy any of the requirements for qualification and taxation as a REIT (taking into account any relevant facts relating to the Company’s satisfaction of such requirements such as the amount of non-qualifying income otherwise derived by the Company). |
6. | In the event the Purchaser determines that any of the representations or covenants herein are or may become untrue or be violated, the Purchaser will promptly inform the Company. |
8. | Subject to legal and contractual restrictions, the Purchaser will use commercially reasonable efforts to promptly provide such information reasonably requested by the Company to enable the Company to confirm the accuracy of the representations and covenants of the Purchaser, to determine the number of shares of Common Stock and amount of equity interests in any tenant Beneficially Owned or Constructively Owned by any member of the Purchaser Group, any Affiliate of a member of the Purchaser Group and any direct and indirect owner of a member of the Purchaser Group, or otherwise to enable the Company to determine its compliance with the requirements for qualification and taxation as a REIT. |
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of August 24, 2020, is by and among Griffin Industrial Realty, Inc., a Delaware corporation (the “Company”), and CM Change Industrial LP, a Delaware limited partnership (the “Purchaser”).
RECITALS
A.In connection with the Securities Purchase Agreement by and among the parties hereto, dated as of August 24, 2020 (the “Securities Purchase Agreement”), the Company has agreed, upon the terms and subject to the conditions of the Securities Purchase Agreement, to issue and sell to the Purchaser (i) the Common Shares and (ii) the Warrant, which will be exercisable to purchase the Warrant Shares in accordance with the terms of the Warrant.
B.To induce the Purchaser to execute and deliver the Securities Purchase Agreement, the Company has agreed to provide certain registration rights under the Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similar successor statute (collectively, the “1933 Act”), and applicable state securities laws.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Purchaser hereby agree as follows:
Capitalized terms used herein and not otherwise defined herein shall have the respective meanings set forth in the Securities Purchase Agreement. As used in this Agreement, the following terms shall have the following meanings:
2. | Registration. |
3. | Related Obligations. |
The Company shall use commercially reasonable efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, pursuant thereto, the Company shall have the following obligations:
4. | Obligations of any Investor. |
5. | Expenses of Registration. |
All reasonable expenses, other than underwriting discounts and commissions,
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incurred in connection with registrations, filings or qualifications pursuant to Sections 2 and 3, including, without limitation, all registration, listing and qualifications fees, printers and accounting fees, and fees and disbursements of counsel for the Company shall be paid by the Company. The Company shall also reimburse the Purchaser for the fees and disbursements of Legal Counsel in connection with registration, filing or qualification pursuant to Sections 2 and 3 of this Agreement which amount shall be limited to $15,000. The Company shall not be obligated to pay expenses for any legal counsel of any Investor except the Purchaser as described in the prior sentence.
6. | Indemnification. |
In the event any Registrable Securities are included in a Registration Statement under this Agreement:
7. | Contribution. |
To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 6 to the fullest extent permitted by law; provided, however, that: (i) no contribution shall be made under circumstances where the maker would not have been liable for indemnification under the fault standards set forth in Section 6 of this Agreement, (ii) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (iii) contribution
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by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Registration Statement. Notwithstanding the provisions of this Section 7, no Investor shall be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds actually received by such Investor from the sale of the Registrable Securities subject to the Claim exceeds the amount of any damages that such Investor has otherwise been required to pay, or would otherwise be required to pay under Section 6(b), by reason of such untrue or alleged untrue statement or omission or alleged omission.
With a view to making available to any Investor the benefits of Rule 144, the Company agrees to use commercially reasonable efforts to:
The rights under this Agreement shall be automatically assignable by any Investor to any transferee of all or any portion of such Investor’s Registrable Securities if: (i) the Investor agrees in writing with the transferee or assignee to assign such rights, and a copy of such agreement is furnished to the Company within a reasonable time after such assignment; (ii) the Company is, within a reasonable time after such transfer or assignment, furnished with written notice of (a) the name and address of such transferee or assignee, and (b) the securities with respect to which such registration rights are being transferred or assigned; (iii) immediately following such transfer or assignment the further disposition of such securities by the transferee or assignee is restricted under the 1933 Act or applicable state securities laws if so required; (iv) at or before the time the Company receives the written notice contemplated by clause (ii) of this sentence the transferee or assignee agrees in writing with the Company to be bound by all of the provisions contained herein; (v) such transfer shall have been made in accordance with the applicable requirements of the Securities Purchase Agreement; and (vi) such transfer shall have been conducted in accordance with all applicable federal and state securities laws.
Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled to assign, by operation of law or otherwise, its rights and obligations hereunder in connection with any transaction associated with the effective reincorporation of the Company.
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10. | Amendment of Registration Rights. |
Provisions of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and the Purchaser; provided that any Investor may give a waiver in writing as to itself. Any amendment or waiver effected in accordance with this Section 10 shall be binding upon each Investor and the Company. No such amendment or waiver (unless given pursuant to the foregoing proviso) shall be effective to the extent that it applies to less than all of the holders of the Registrable Securities. No consideration shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of this Agreement unless the same consideration also is offered to all of the parties to this Agreement.
11. | Miscellaneous. |
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If to the Company: |
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Griffin Industrial Realty, Inc. |
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641 Lexington Avenue |
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New York, NY 10022 |
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Telephone: (212) 218-7910 |
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Email: mgamzon@griffinindustrial.com |
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Attention: Michael Gamzon, President & Chief Executive Officer |
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With a copy (for informational purposes only) to: |
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Latham & Watkins LLP |
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885 Third Avenue |
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New York, NY 10022 |
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Telephone: (212) 906-1200 |
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Facsimile: (212) 751-4864 |
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Email: John.Giouroukakis@lw.com |
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Attention: John Giouroukakis |
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If to the Purchaser: |
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CM Change Industrial LP |
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90 Park Avenue, 32nd Floor |
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New York, NY 10016 |
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Telephone: 212-274-1074 |
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Email: ko@cambiarlp.com |
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Attention: Keith O’Connor |
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With a copy (for informational purposes only) to: |
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Kleinberg, Kaplan, Wolff & Cohen, P.C. |
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500 Fifth Avenue |
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New York, New York 10110 |
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Telephone: (212) 986-6000 |
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Facsimile: (212) 986-8866 |
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Email: jain@kkwc.com |
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Attention: Jonathan Ain, Esq. |
or such other address and/or facsimile number and/or electronic mail and/or to the attention of such other Person as the recipient party has specified by written notice given to each other party five (5) days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s facsimile machine containing the time, date, recipient facsimile number and an image of the first page of such transmission or (C) provided by an overnight courier service shall be rebuttable evidence of personal service, receipt by facsimile, receipt by electronic mail or receipt from an overnight courier service in accordance with clause (i), (ii), (iii) or (iv) above, respectively.
[signature pages follow]
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IN WITNESS WHEREOF, the parties have caused their respective signature page to this Registration Rights Agreement to be duly executed as of the date first written above.
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COMPANY: |
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GRIFFIN INDUSTRIAL REALTY, INC. |
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By: /s/Anthony Galici |
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Name: Anthony J. Galici |
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Title: Vice President, Chief Financial Officer |
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and Secretary |
[Signature Page to Registration Rights Agreement]
IN WITNESS WHEREOF, the parties have caused their respective signature page to this Registration Rights Agreement to be duly executed as of the date first written above.
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PURCHASER: |
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CM CHANGE INDUSTRIAL LLP |
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By: Cambiar GP Holdings LLC |
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Its: General Partner |
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By: /s/Michael Simanovsky |
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Name: Michael Simanovsky |
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Title: Authorized Person |
[Signature Page to Registration Rights Agreement]
EXHIBIT A
SELLING SHAREHOLDERS
The shares of common stock being offered by the selling stockholders are those issuable to the selling stockholders upon conversion of the notes and exercise of the warrants. For additional information regarding the issuance of the notes and the warrants, see “Private Placement of Notes and Warrants” above. We are registering the shares of common stock in order to permit the selling stockholders to offer the shares for resale from time to time. Except for the ownership of the notes and the warrants issued pursuant to the Securities Purchase Agreement, the selling stockholders have not had any material relationship with us within the past three years.
The table below lists the selling stockholders and other information regarding the beneficial ownership of the shares of common stock by each of the selling stockholders. The second column lists the number of shares of common stock beneficially owned by each selling stockholder, based on its ownership of shares of common stock and the warrants, as of ________, 20__, assuming exercise of the warrants held by the selling stockholders on that date, taking account of any limitations on exercise.
The third column lists the shares of common stock being offered by this prospectus by the selling stockholders.
In accordance with the terms of a registration rights agreement with the holders of the warrants, this prospectus generally covers the resale of 120% of the sum of (i) the shares of common stock held by the selling stockholders and (ii) the maximum number of shares of common stock issuable upon exercise of the related warrants, determined as if the outstanding warrants were exercised in full (without regard to any limitations on exercise contained therein), in each case, as of the trading day immediately preceding the date this registration statement was initially filed with the SEC. Because the exercise price of the warrants may be adjusted, the number of shares that will actually be issued may be more or less than the number of shares being offered by this prospectus. The fourth column assumes the sale of all of the shares offered by the selling stockholders pursuant to this prospectus.
Under the terms of the warrants, a selling stockholder may not exercise the warrants, to the extent such conversion or exercise would cause such selling stockholder, together with its affiliates, to beneficially own a number of shares of common stock which would exceed 9.90% (as applicable) of our then outstanding shares of common stock following such exercise, excluding for purposes of such determination shares of common stock issuable upon exercise of the warrants which have not been converted or exercised. The number of shares in the second column reflects these limitations. The selling stockholders may sell all, some or none of their shares in this offering. See “Plan of Distribution.”
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Number of Shares of Common Stock Owned Prior to Offering |
Maximum Number of Shares of Common Stock to be Sold Pursuant to this Prospectus |
Number of Shares of Common Stock of Owned After Offering |
[CM Change Industrial LP] |
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[To include appropriate footnotes addressing the warrants]
PLAN OF DISTRIBUTION
We are registering the shares of common stock issued and issuable upon exercise of the warrants to permit the resale of these shares of common stock and warrants from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale by the selling stockholders of the shares of common stock. We will bear all fees and expenses incident to our obligation to register the shares of common stock.
The selling stockholders may sell all or a portion of the shares of common stock beneficially owned by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the shares of common stock are sold through underwriters or broker-dealers, the selling stockholders will be responsible for underwriting discounts or commissions or agent’s commissions. The shares of common stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected in transactions, which may involve crosses or block transactions,
If the selling stockholders effect such transactions by selling shares of common stock to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling stockholders or commissions from purchasers of the shares of common stock for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be in excess of those customary in the types of transactions involved). In connection with sales of the shares of common stock or otherwise, the selling stockholders may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the shares of common stock in the course of hedging in positions they assume. The selling stockholders may also sell shares of common stock short and deliver shares of common stock covered by this prospectus to close out short positions and to return borrowed shares in connection with such short sales. The selling stockholders may also loan or pledge shares of common stock to broker-dealers that in turn may sell such shares.
The selling stockholders may pledge or grant a security interest in some or all of the notes, warrants or shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act of 1933, as amended (the “Securities Act”), amending, if necessary, the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer and donate the shares of common stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
The selling stockholders and any broker-dealer participating in the distribution of the shares of common stock may be deemed to be “underwriters” within the meaning of the Securities Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the shares of common stock is made, a prospectus supplement, if required, will be distributed which will set forth the aggregate amount of shares of common stock being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the selling stockholders and any discounts, commissions or concessions allowed or reallowed or paid to broker-dealers.
Under the securities laws of some states, the shares of common stock may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the shares of common stock may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.
There can be no assurance that any selling stockholder will sell any or all of the shares of common stock registered pursuant to the shelf registration statement, of which this prospectus
forms a part.
The selling stockholders and any other person participating in such distribution will be subject to applicable provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the shares of common stock by the selling stockholders and any other participating person. To the extent applicable, Regulation M may also restrict the ability of any person engaged in the distribution of the shares of common stock to engage in market-making activities with respect to the shares of common stock. All of the foregoing may affect the marketability of the shares of common stock and the ability of any person or entity to engage in market-making activities with respect to the shares of common stock.
We will pay all expenses of the registration of the shares of common stock pursuant to the registration rights agreement, estimated to be $[ ] in total, including, without limitation, Securities and Exchange Commission filing fees and expenses of compliance with state securities or “blue sky” laws; provided, however, that a selling stockholder will pay all underwriting discounts and selling commissions, if any. We will indemnify the selling stockholders against liabilities, including some liabilities under the Securities Act, in accordance with the registration rights agreements, or the selling stockholders will be entitled to contribution. We may be indemnified by the selling stockholders against civil liabilities, including liabilities under the Securities Act, that may arise from any written information furnished to us by the selling stockholder specifically for use in this prospectus, in accordance with the related registration rights agreements, or we may be entitled to contribution.
Once sold under the shelf registration statement, of which this prospectus forms a part, the shares of common stock will be freely tradable in the hands of persons other than our affiliates.
Exhibit 10.3
FORM OF CONTINGENT VALUE RIGHTS AGREEMENT
This CONTINGENT VALUE RIGHTS AGREEMENT (this “Agreement”), dated as of August 24, 2020, is by and among Griffin Industrial Realty, Inc., a Delaware corporation (the “Company”), and CM Change Industrial LP, a Delaware limited partnership (the “Investor”).
WHEREAS, in connection with the issuance by the Company of 504,590 shares of the Company’s Common Stock, par value $0.01 per share (the “Common Stock”) on the date hereof to the Investor pursuant to that certain Securities Purchase Agreement, dated as of August 24, 2020 (the “Securities Purchase Agreement”), by and among the Company and the Investor, the Company is obligated to issue to the Investor the Contingent Value Rights (as defined below) for each Common Share.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings contained herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
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[Signature pages follow.]
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IN WITNESS WHEREOF, each party hereto has duly executed this Agreement or has caused this Agreement to be duly executed by an authorized officer as of the day and year first above written.
COMPANY: |
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GRIFFIN INDUSTRIAL REALTY, INC. |
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By: /s/Anthony Galici |
Name: Anthony J. Galici |
Title: Vice President, Chief Financial Officer and Secretary |
INVESTOR: |
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CM CHANGE INDUSTRIAL LP |
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By: Cambiar GP Holdings LLC, its General Partner |
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By: /s/Michael Simanovsky |
Name: Michael Simanovsky |
Title: Authorized Person |