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
March 2, 2021
Date of Report (Date of earliest event reported)
INDUS REALTY TRUST, INC.
(Exact name of registrant as specified in charter)
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Maryland |
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 |
INDT |
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 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
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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. ☐
On March 2, 2021, INDUS Realty Trust, Inc. (the “Company”) entered into an Underwriting Agreement with Morgan Stanley & Co. LLC (“Morgan Stanley”) and Citigroup Global Markets Inc. (“Citi”), as representatives of the underwriters listed therein (the “Underwriters”), pursuant to which the Company agreed to issue and sell to the Underwriters 1,750,000 shares of the Company’s common stock, $0.01 par value per share (the “Common Stock”), plus up to an additional 262,500 shares of Common Stock if the Underwriters exercise their option to purchase additional shares of Common Stock in full. The public offering price for the shares was $60.00 per share (the “Underwriting Agreement”).
The Underwriting Agreement contains customary representations and warranties of the Company and indemnification and contribution provisions under which the Company has agreed to indemnify the Underwriters against certain liabilities, including liabilities under the Securities Act of 1933, as amended. Pursuant to the Underwriting Agreement, the Company has agreed not to offer, sell or transfer any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock for 90 days after March 2, 2021 without first obtaining the written consent of Morgan Stanley and Citi on behalf of the Underwriters.
The foregoing description of the Underwriting Agreement is qualified in its entirety by reference to the Underwriting Agreement, a copy of which is filed herewith and is incorporated by reference herein.
The transaction closed on March 5, 2021. Total net proceeds of the offering (after deducting the underwriting discount and before deducting other estimated expenses) were approximately $99.5 million. The Company intends to use the net proceeds from the offering to finance its development pipeline and acquisitions and for other corporate purposes.
(d) Exhibits
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1.1 |
Underwriting Agreement, dated March 2, 2021, between the Underwriters and the Company. |
5.1 |
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23.1 |
Consent of Venable LLP (contained in the opinion filed as Exhibit 5.1 hereto). |
104 |
Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101). |
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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INDUS REALTY TRUST, INC. |
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By: |
/s/ Anthony J. Galici |
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Anthony J. Galici |
Date: March 5, 2021 |
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Executive Vice President, Chief Financial Officer and Secretary |
Exhibit 1.1
INDUS REALTY TRUST, INC.
Common Stock
($0.01 par value per share)
UNDERWRITING AGREEMENT
March 2, 2021
1585 Broadway
New York, New York 10036
388 Greenwich Street
New York, New York 10013
As a representative of the several underwriters listed in Schedule I hereto
Ladies and Gentlemen:
INDUS Realty Trust, Inc. (formerly known as Griffin Industrial Realty, Inc.), a Maryland corporation (the “Company”), proposes to issue and sell to the several Underwriters named in Schedule I hereto (the “Underwriters”) 1,750,000 shares of its common stock, $0.01 par value per share (the “Firm Shares”). The Company also proposes to issue and sell to the several Underwriters not more than an additional 262,500 shares of its common stock, $0.01 par value per share (the “Additional Shares”) if and to the extent that Morgan Stanley & Co. LLC (“Morgan Stanley”) and Citigroup Global Markets Inc., as representatives of the offering (the “Representatives”), shall have determined to exercise, on behalf of the Underwriters, the right to purchase such shares of common stock granted to the Underwriters in Section 2 hereof. The Firm Shares and the Additional Shares are hereinafter collectively referred to as the “Shares.” The shares of common stock, $0.01 par value per share, of the Company to be outstanding after giving effect to the sales contemplated hereby are hereinafter referred to as the “Common Stock.”
The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-252662), including a preliminary prospectus, relating to various securities, including the Shares. The registration statement as of its most recent effective date, including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act of 1933, as amended (the “Securities Act”), is hereinafter referred to as the “Registration Statement”; the related prospectus covering various securities, including the Shares, and filed as part of the Registration Statement, together with any amendments or supplements thereto as of the most recent effective date of the Registration Statement, is hereinafter referred to as the “Base Prospectus.” The Base Prospectus, as supplemented by the prospectus supplement specifically relating to the Shares in the form first used to confirm sales
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of Shares (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Prospectus”; and the term “preliminary prospectus” means any preliminary form of the Prospectus. If the Company has filed an abbreviated registration statement to register additional shares of Common Stock pursuant to Rule 462(b) under the Securities Act (a “Rule 462 Registration Statement”), then any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462 Registration Statement.
For purposes of this Underwriting Agreement (this “Agreement”), “free writing prospectus” has the meaning set forth in Rule 405 under the Securities Act. “Time of Sale Prospectus” means the preliminary prospectus together with the documents and pricing information set forth in Schedule II hereto, and “broadly available road show” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act that has been made available without restriction to any person. As used herein, the terms “Registration Statement,” “Base Prospectus,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents, if any, incorporated by reference therein as of the date hereof. The terms “supplement,” “amendment” and “amend” as used herein with respect to the Registration Statement, the Base Prospectus, the preliminary prospectus, the Time of Sale Prospectus or the Prospectus shall include all documents subsequently filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are deemed to be incorporated by reference therein.
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(A) the subject of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control , the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(ii) The Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any of its subsidiaries, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Company and each of its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
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On the basis of the representations and warranties contained in this Agreement, and subject to its terms and conditions, the Company agrees to sell to the Underwriters the Additional Shares, and the Underwriters shall have the right to purchase, severally and not jointly, up to 262,500 Additional Shares at the Purchase Price, provided, however, that the amount paid by the Underwriters for any Additional Shares shall be reduced by an amount per share equal to any dividends declared by the Company and payable on the Firm Shares but not payable on such Additional Shares. The Representatives may exercise this right on behalf of the Underwriters in whole or from time to time in part by giving written notice not later than 30 days after the date of this Agreement. Any exercise notice shall specify the number of Additional Shares to be purchased by the Underwriters and the date on which such shares are to be purchased. Each purchase date must be at least one business day after the written notice is given and may not be earlier than the closing date for the Firm Shares or later than ten business days after the date of such notice. Additional Shares may be purchased as provided in Section 4 hereof solely for the purpose of covering sales of shares in excess of the number of the Firm Shares. On each day, if any, that Additional Shares are to be purchased (an “Option Closing Date”), each Underwriter agrees, severally and not jointly, to purchase the number of Additional Shares (subject to such adjustments to eliminate fractional shares as the Representatives may determine) that bears the same proportion to the total number of Additional Shares to be purchased on such Option Closing Date as the number of Firm Shares set forth in Schedule I hereto opposite the name of such Underwriter bears to the total number of Firm Shares.
Payment for any Additional Shares shall be made to the Company in Federal or other funds immediately available in New York City against delivery of such Additional Shares for the respective accounts of the several Underwriters at 10:00 a.m., New York City time, on the date specified in the corresponding notice described in Section 2 hereof or at such other time on the
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same or on such other date, in any event not later than April 15, 2021, as shall be designated in writing by the Representatives.
The Firm Shares and Additional Shares shall be registered in such names and in such denominations as the Representatives shall request not later than one full business day prior to the Closing Date or the applicable Option Closing Date, as the case may be. The Firm Shares and Additional Shares shall be delivered to the Representatives on the Closing Date or an Option Closing Date, as the case may be, for the respective accounts of the several Underwriters, with any transfer taxes payable in connection with the transfer of the Shares to the Underwriters duly paid, against payment of the Purchase Price therefor.
The several obligations of the Underwriters are subject to the following further conditions:
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The opinions of Latham & Watkins LLP described in Sections 5(c) and 5(d) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
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If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate number of the Shares to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the number of Firm Shares set forth opposite their respective names in Schedule I bears to the aggregate number of Firm Shares set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as the Representatives may specify, to purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the number of Shares that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 10 by an amount in excess of one-ninth of such number of Shares without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and the aggregate number of Firm Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Firm Shares to be purchased on such date, and arrangements satisfactory to the Representatives and the Company for the purchase of such Firm Shares are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case either the Representatives or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be effected. If, on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional Shares and the aggregate number of Additional Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Additional Shares to be purchased on such Option Closing Date, the non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to purchase the Additional Shares to be sold on such Option Closing Date or (ii) purchase not less than the number of Additional Shares that such
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non-defaulting Underwriters would have been obligated to purchase in the absence of such default. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder.
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For purposes of this Section 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.
[Remainder of Page Intentionally Blank]
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Very truly yours, |
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INDUS REALTY TRUST, INC. |
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By: |
/s/ Anthony Galici |
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Name:Anthony Galici |
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Title: Executive Vice President, Chief Financial Officer and Secretary |
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Accepted as of the date hereof Morgan Stanley & Co. LLC Citigroup Global Markets Inc. Acting on behalf of itself and the several Underwriters named in Schedule I hereto. |
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Morgan Stanley & Co. LLC |
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By: |
/s/ Olivier Jacque |
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Name:Olivier Jacque |
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Title:Executive Director |
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Citigroup Global Markets Inc. |
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By: |
/s/ Joao Sousa |
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Name:Joao Sousa |
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Title:Vice President |
[Signature Page to Underwriting Agreement]
Underwriter |
Number of Firm Shares To Be Purchased |
Morgan Stanley & Co. LLC |
698,507 |
Citigroup Global Markets Inc. |
501,493 |
Robert W. Baird & Co. Incorporated |
250,000 |
BTIG, LLC |
125,000 |
J.P. Morgan Securities LLC |
125,000 |
JMP Securities LLC |
50,000 |
Total: |
1,750,000 |
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Schedule I - 1 |
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Schedule II
Preliminary Prospectus issued March 1, 2021
Free Writing Prospectus, dated March 2, 2021, filed by the Company under Rule 433(d) of the Securities Act
The following information:
(a)Price to the public: $60.00 per share.
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Pre-stabilization Transactions: Morgan Stanley & Co. LLC purchased 288 shares of the issuer’s common stock on behalf of the Underwriters at a price of $60.00 per share on March 2, 2021 in pre-stabilization activities. |
Free Writing Prospectuses
Free Writing Prospectus, dated March 2, 2021, filed by the Company under Rule 433(d) of the Securities Act
INDUS Realty Trust Investor Presentation, dated February 2021
Testing-the-Waters Communications
INDUS Realty Trust Investor Presentation, dated February 2021
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Schedule II - 1 |
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Schedule III
Subsidiaries of the Company
INDT LLC
INDT TRS LLC
INDUS Realty, LLC
INDUS Development I, LLC
INDUS Development II, LLC
INDUS Development III, LLC
INDUS Development IV, LLC
INDUS Development V, LLC
Tradeport Development I, LLC
Tradeport Development II, LLC
Tradeport Development III, LLC
Tradeport Development IV, LLC
Tradeport Development V, LLC
Tradeport Development VI, LLC
825 Prospect Hill Road, LLC
WA II, LLC
Stratton Farms I, LLC
River Bend Holdings, LLC
River Bend Development CT, LLC
GLNCM, LLC
RB Hoskins, LLC
Riverbend Lehigh Valley Holdings I, LLC
Riverbend Lehigh Valley Holdings II, LLC
Riverbend Lehigh Valley Holdings III, LLC
Riverbend Lehigh Valley Holdings IV, LLC
Riverbend Lehigh Valley Holdings V, LLC
INDUS Land Development MA, LLC
Riverbend Concord Properties I, LLC
Riverbend Concord Properties II, LLC
Riverbend Old Statesville, LLC
Riverbend Hanover Properties I, LLC
Riverbend Hanover Properties II, LLC
Riverbend Crossings III Holdings, LLC
Riverbend Bethlehem Holdings I, LLC
Riverbend Bethlehem Holdings II, LLC
Riverbend East Allen Properties I, LLC
Riverbend East Allen Properties II, LLC
Riverbend Upper Macungie Properties I, LLC
Riverbend South Whitehall Properties I, LLC
Riverbend Orlando Holdings I, LLC
Riverbend Orlando Holdings III, LLC
Riverbend Orlando Holdings IV, LLC
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Schedule III - 1 |
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EXHIBIT A
FORM OF LOCK-UP AGREEMENT
_____________, 2021
Morgan Stanley & Co. LLC
Citigroup Global Markets Inc.
As Representative of the several Underwriters to
be named in the within-mentioned Underwriting
Agreement
c/o |
Morgan Stanley & Co. LLC |
1585 Broadway
New York, NY 10036
c/o |
Citigroup Global Markets Inc. |
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
The undersigned understands that Morgan Stanley & Co. LLC (“Morgan Stanley”) and Citigroup Global Markets Inc. (“Citi”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with INDUS Realty Trust, Inc., a Maryland real estate investment trust (the “Company”) providing for the public offering (the “Public Offering”) by the several Underwriters, including Morgan Stanley and Citi (the “Underwriters”), of [●] shares (the “Shares”) of the common stock, $0.01 par value of the Company (the “Common Stock”).
To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of Morgan Stanley and Citi on behalf of the Underwriters, it will not, and will not publicly disclose an intention to, during the period commencing on the date hereof and ending 90 days after the date of the final prospectus (the “Restricted Period”) relating to the Public Offering (the “Prospectus”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock beneficially owned (as such term is used in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), by the undersigned or any other securities so owned
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Exhibit A - 1 |
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convertible into or exercisable or exchangeable for Common Stock or (2) 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 (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise.
The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transaction designed or intended, or which could reasonably be expected to lead to or result in, a sale or disposition of any shares of Common Stock, or any securities convertible into or exercisable or exchangeable for Common Stock, even if any such sale or disposition transaction or transactions would be made or executed by or on behalf of someone other than the undersigned. The foregoing restrictions shall not apply to:
(a) transactions relating to shares of Common Stock or other securities acquired in open market transactions after the completion of the Public Offering; provided that no filing under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made in connection with subsequent sales of Common Stock or securities convertible into Common Stock acquired in such open market transactions,
(b) transfers of shares of Common Stock or any security convertible into Common Stock to any trust for the direct or indirect benefit of the undersigned or an immediate family member of the undersigned;
(c) transfers of shares of Common Stock or any security convertible into Common Stock to an immediate family member, a partnership or limited liability company solely for the direct or indirect benefit of the undersigned or the immediate family member for the undersigned;
(d) transfers of shares of Common Stock or any security convertible into Common Stock to the undersigned’s affiliates or to any investment fund or other entity controlled or managed by the undersigned;
(e) transfers of shares of Common Stock or any security convertible into Common Stock as a bona fide gift or other dispositions by will or intestacy;
(f) distributions of shares of Common Stock or any security convertible into Common Stock to partners, stockholders or members of the undersigned;
(g) transfers of the shares of Common Stock to a spouse, former spouse, child or other dependent pursuant to a domestic relations order or an order of competent jurisdiction, provided that the undersigned does not voluntarily effect any public filing or report regarding such transfers;
(h) any transfers of the shares of Common Stock to the Company, as required by participants in the Company’s 2020 Incentive Award Plan or 2009 Stock Option Plan in order to reimburse or pay federal income tax and withholding obligations in connection with vesting of restricted stock grants, restricted stock units or other equity awards,
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Exhibit A - 2 |
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provided that the undersigned does not voluntarily effect any public filing or report regarding such transfers and provided further that no other public announcement shall be required or shall be made voluntarily in connection with such transfer;
(i) facilitating the establishment of a trading plan on behalf of a stockholder, officer or director of the Company pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Common Stock, provided that (1) such plan does not provide for the transfer of shares of Common Stock during the Restricted Period and (2) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by or on behalf of the undersigned or the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of shares of Common Stock may be made under such plan during the Restricted Period; or
(j) transfers of shares of Common Stock or any security convertible into Common Stock to a nominee or custodian of a person or entity to whom a disposition or transfer would otherwise be permissible under the exceptions set forth in any of clauses (b), (c), (d), (e) or (f);
provided that (1) in the case of any transfer or distribution pursuant to any of clauses (b), (c), (d), (e), (f), (g) or (j), each donee, transferee, trustee or distributee shall sign and deliver a lock-up agreement substantially in the form of this agreement, (2) in the case of any transfer or distribution pursuant to any of clauses (b), (c), (d), (e), (f) or (j) (provided that, in the case of (j), such shall not apply to any transfer or distribution pursuant to any of clauses (g), (h) or (i)), no filing under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of shares of Common Stock, shall be required or shall be voluntarily made during the Restricted Period, and (3) it shall be a condition to any transfer pursuant to either of clauses (g) or (h) that any filing under Section 16(a) of the Exchange Act of such transfer shall clearly indicate in the footnotes thereto the nature and conditions of such transfer.
For purposes of this agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin.
In addition, the undersigned agrees that, without the prior written consent of Morgan Stanley and Citi on behalf of the Underwriters, it will not, during the Restricted Period, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s shares of Common Stock except in compliance with the foregoing restrictions.
The undersigned understands that the Company and the Underwriters are relying upon this agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns.
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Exhibit A - 3 |
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The undersigned acknowledges and agrees that the Underwriters have not provided any recommendation or investment advice nor have the Underwriters solicited any action from the undersigned with respect to the Public Offering of the Shares, and the undersigned has consulted their own legal, accounting, financial, regulatory and tax advisors to the extent deemed appropriate. The undersigned further acknowledges and agrees that, although the Underwriters may provide certain Regulation Best Interest and Form CRS disclosures or other related documentation to you in connection with the Public Offering, the Underwriters are not making a recommendation to you to participate in the Public Offering or sell any Shares at the price determined in the Public Offering, and nothing set forth in such disclosures or documentation is intended to suggest that any Underwriter is making such a recommendation.
Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Underwriters. In the event that the Company delivers written notice to Morgan Stanley and Citi prior to the execution of the Underwriting Agreement that it has determined not to pursue the Public Offering, this agreement will automatically terminate.
This agreement shall be governed by and construed in accordance with the laws of the State of New York. Electronic signatures complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law will be deemed original signatures for purposes of this Agreement. Transmission by telecopy, electronic mail or other transmission method of an executed counterpart of this agreement will constitute due and sufficient delivery of such counterpart.
Very truly yours, |
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(Name) |
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(Address) |
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Exhibit A - 4 |
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Exhibit 5.1
March 5, 2021
INDUS Realty Trust, Inc.
641 Lexington Avenue
New York, New York 10022
Re:Registration Statement on Form S-3 (File No. 333-252662)
Ladies and Gentlemen:
We have served as Maryland counsel to INDUS Realty Trust, Inc., a Maryland corporation (the “Company”), in connection with certain matters of Maryland law arising out of the registration, sale and issuance by the Company of up to 2,012,500 shares (the “Shares”) of common stock, $0.01 par value per share, including up to 262,500 Shares to be issued upon the exercise of an option to purchase additional Shares, of the Company, in an underwritten public offering covered by the above-referenced Registration Statement on Form S-3, and all amendments thereto (the “Registration Statement”), filed by the Company with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”).
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the “Documents”):
1.The Registration Statement and the related form of prospectus included therein and the supplement thereto, each substantially in the form in which it was filed with the Commission under the 1933 Act;
2.The charter of the Company (the “Charter”), certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
3.The Amended and Restated Bylaws of the Company, certified as of the date hereof by an officer of the Company;
4.A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
5.Resolutions adopted by the Board of Directors of the Company or a duly authorized committee thereof, relating to, among other matters, the registration of the Shares (the “Resolutions”), certified as of the date hereof by an officer of the Company;
INDUS Realty Trust, Inc.
March 5, 2021
Page 2
6.A certificate executed by an officer of the Company, dated as of the date hereof; and
7.Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1.Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so.
2.Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.
3.Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.
5.The Shares will not be issued or transferred in violation of any restriction contained in Article VII of the Charter.
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
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2.The issuance and sale of the Shares have been duly authorized and, when and if issued and delivered in accordance with the Registration Statement and the Resolutions, the Shares will be validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning federal law or any other state law. We express no opinion as to the applicability or effect of any federal or state securities laws, including the securities laws of the State of Maryland, federal or state laws regarding fraudulent transfers or the laws, codes or regulations of any municipality or other local jurisdiction. To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. The opinion expressed herein is subject to the effect of judicial decisions which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.
The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the Commission as an exhibit to the Company’s Current Report on Form 8-K relating to the Shares (the “Current Report”), which is incorporated by reference in the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Current Report and the said incorporation by reference and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.
Very truly yours,
/s/ Venable LLP