Item 5. Other Information
Item 5. Other Information
Common Stock Repurchase Program
In October 2022, the Company established a new share repurchase program (the “2022 Repurchase Program”) for up to $400.0 million of the Company’s common stock. The 2022 Repurchase Program replaces the 2020 Repurchase Program. The 2022 Repurchase Program is scheduled to expire on November 1, 2025, unless suspended or extended by the Company’s board of directors. Repurchases may be made at management’s discretion from time to time in the open market, in privately negotiated transactions or by other means (including through Rule 10b5-1 trading plans or one or more accelerated stock repurchase programs), subject to compliance with existing debt agreements. Depending on market conditions and other factors, these repurchases may be commenced or suspended without prior notice.
Equity Distribution Agreements
On November 1, 2022, the Company and the Operating Partnership established a $400.0 million at-the-market equity offering program by entering into separate Equity Distribution Agreements (each, an “Equity Distribution Agreement,” and collectively, the “Equity Distribution Agreements”) with each of BMO Capital Markets Corp., BNY Mellon Capital Markets, LLC, BofA Securities, Inc., BTIG, LLC, Citigroup Global Markets Inc., Jefferies LLC, J.P. Morgan Securities LLC, Mizuho Securities USA LLC, RBC Capital Markets, LLC, Regions Securities LLC, Samuel A. Ramirez & Company, Inc., Scotia Capital (USA) Inc., TD Securities (USA) LLC, Truist Securities, Inc. and Wells Fargo Securities, LLC as sales agents (in such capacity, each a “Sales Agent” and together, the “Sales Agents”), principals and/or (except in the case of BTIG, LLC and Samuel A. Ramirez & Company, Inc.) forward sellers (in such capacity, each, a “Forward Seller” and collectively, the “Forward Sellers”), and each of BMO Capital Markets Corp., BNY Mellon Capital Markets, LLC, BofA Securities, Inc., Citigroup Global Markets Inc., Jefferies LLC, J.P. Morgan Securities LLC, Mizuho Markets Americas LLC, RBC Capital Markets, LLC, Regions Securities LLC, Scotia Capital (USA) Inc., TD Securities (USA) LLC, Truist Bank and Wells Fargo Bank, National Association as forward purchasers (in such capacity, each a “Forward Purchaser,” and together, the “Forward Purchasers”), pursuant to which the Company may sell, from time to time, up to an aggregate gross sales price of $400.0 million of the Company’s common stock through the Sales Agents or the Forward Sellers, as applicable, or directly to the Sales Agents as principals for their own accounts. Unless otherwise expressly stated or the context otherwise requires, references herein to the “related” or “relevant” Forward Purchaser means, with respect to any
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Sales Agent, the affiliate of such Sales Agent that is acting as Forward Purchaser or, if applicable, such Sales Agent acting in its capacity as Forward Purchaser.
The shares of the Company’s common stock sold in the offering will be issued pursuant to a prospectus supplement filed with the SEC on November 1, 2022, and the accompanying base prospectus dated November 1, 2022 forming part of the Company’s shelf registration statement on Form S-3.
Subject to the terms and conditions of the Equity Distribution Agreements, the Sales Agents, whether acting as the Company’s sales agents or as Forward Sellers, will use their commercially reasonable efforts, consistent with their normal trading and sales practices and applicable law and regulations, to sell the Company’s common stock that may be designated by the Company (if acting as the Company’s sales agents) and the Company’s common stock borrowed by the relevant Forward Purchasers pursuant to the Equity Distribution Agreements (if acting as Forward Sellers), in each case on the terms and subject to the conditions of the Equity Distribution Agreements. Sales, if any, of the Company’s common stock made through the Sales Agents, as the Company’s sales agents, or as Forward Sellers pursuant to the Equity Distribution Agreements, may be made in an “at the market offering” (as defined in Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”)), by means of ordinary brokers’ transactions on the New York Stock Exchange or sales made to or through market makers at market prices prevailing at the time of sale, in privately negotiated transactions or any other method permitted by applicable law, which may include block trades, as the Company and any Sales Agent or Forward Seller may agree. The Company also may sell its common stock to any Sales Agent as principal for its own account. If the Company sells its common stock to any Sales Agent as principal, it will enter into a separate terms agreement (each, a “Terms Agreement,” and collectively, the “Terms Agreements”) setting forth the terms of such transaction.
The Company or any Sales Agent may at any time suspend an offering of the Company’s common stock pursuant to the terms of the Equity Distribution Agreements. The offering of the Company’s common stock pursuant to the Equity Distribution Agreements will terminate upon the earliest of (i) the sale of shares of the Company’s common stock subject to the Sales Agreements (including shares sold by us to or through the Sales Agents and borrowed shares sold by the Forward Sellers) and any terms agreement having an aggregate gross sales price of $400,000,000, (ii) with respect to the Sales Agreements or terms agreement, the termination of the Sales Agreements by the Company, the Sales Agents, the Forward Sellers or the Forward Purchasers as permitted therein and (iii) November 1, 2025, the third anniversary of the Equity Distribution Agreements unless extended by the Company and the Sales Agent, the Forward Seller, and the Forward Purchaser.
The Company and the Operating Partnership made certain customary representations, warranties and covenants concerning the Company, the Operating Partnership and the registration statement in the Equity Distribution Agreements and also agreed to indemnify the Sales Agents, Forward Sellers and Forward Purchasers against certain liabilities, including liabilities under the Securities Act.
The Equity Distribution Agreements provide that, in addition to issuance and sale of the Company’s common stock through the Sales Agents, the Company also may enter into one or more letter agreements (each, a “Forward Contract”) with each of the Forward Purchasers in a form attached as an exhibit to the Equity Distribution Agreements. Under the terms of any Forward Contract, the relevant Forward Purchaser will, at the Company’s request from time to time pursuant to mutually agreed instructions and a supplemental confirmation (together with the applicable Forward Contract, a “Forward Sale Agreement”), borrow from third parties and, through the relevant Sales Agent, sell a number of shares of the Company’s common stock equal to the number of shares underlying the particular Forward Sale Agreement. The Company will not initially receive any proceeds from any sale of its common stock borrowed by a Forward Purchaser and sold through a Forward Seller. The Company expects to fully physically settle each Forward Sale Agreement with the relevant Forward Purchaser on one or more dates specified by the Company on or prior to the maturity date of such Forward Sale Agreement, in which case the Company expects to receive aggregate cash proceeds at settlement equal to the number of shares of the Company’s common stock underlying such Forward Sale Agreement multiplied by the then-applicable forward sale price per share. Although the Company expects to settle any Forward Sale Agreements by the physical delivery of shares of its common stock in exchange for cash proceeds, the Forward Sale Agreements will allow the Company to cash or net-share settle all or a portion of its obligations. If the Company elects to cash settle any Forward Sale Agreement, the Company may not receive any proceeds and the Company may owe cash to the relevant Forward Purchaser. If the Company elects to net-share settle any Forward Sale Agreement, the Company will not receive any cash proceeds, and the Company may owe shares of its common stock to the relevant Forward Purchaser.
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The Company intends to use the net proceeds from this offering for general corporate purposes. Pending application of cash proceeds, the Company will invest the net proceeds from this offering in interest-bearing accounts and short-term, interest-bearing securities in a manner that is consistent with its intention to qualify for taxation as a REIT.
The Company will pay each Sales Agent a Commission of up to 2.0% of the gross sales price of the Common Stock sold through it pursuant to the Equity Distribution Agreements. The compensation to each Sales Agent acting as a Forward Seller will be a reduction to the initial forward price under the related Forward Contract of up to 2.0% of the actual sale prices of all borrowed shares of the Company’s common stock sold through such Sales Agent, acting as Forward Seller.
The preceding summary of the Equity Distribution Agreements is qualified in its entirety by reference to the form of Equity Distribution Agreement (including the form of Forward Contract) attached to this Quarterly Report on Form 10-Q as Exhibit 1.1.
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Item 6. Exhibits
The following documents are filed as exhibits to this report:
Incorporated by Reference
Exhibit
Number Exhibit Description Form File No. Date of
Filing Exhibit
Number Filed
Herewith
1.1
Form of Equity Distribution Agreement, dated November 1, 2022, by and among Brixmor Property Group Inc., Brixmor Operating Partnership L.P. and each sales agent and its respective forward seller and forward purchaser — — — — x
5.1
Opinion of Hogan Lovells US LLP regarding the legality of the Company's common stock — — — — x
5.2
Opinion of Hogan Lovells US LLP regarding the legality of the Company's common stock — — — — x
23.1
Consent of Hogan Lovells US LLP (included in Exhibit 5.1) — — — — x
23.2
Consent of Hogan Lovells US LLP (included in Exhibit 5.2) — — — — x
31.1
Brixmor Property Group Inc. Certification of Chief Executive Officer pursuant to Rule 13a-14(a)/15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 — — — — x
31.2
Brixmor Property Group Inc. Certification of Chief Financial Officer pursuant to Rule 13a-14(a)/15d-14(a) of the Securities Exchange Act of 1934 as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 — — — — x
31.3
Brixmor Operating Partnership LP Certification of Chief Executive Officer pursuant to Rule 13a-14(a)/15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 — — — — x
31.4
Brixmor Operating Partnership LP Certification of Chief Financial Officer pursuant to Rule 13a-14(a)/15d-14(a) of the Securities Exchange Act of 1934 as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 — — — — x
32.1
Brixmor Property Group Inc. Certification of Chief Executive Officer and Chief Financial Officer Pursuant to 18 U.S.C. Section 1350 as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 — — — — x
32.2
Brixmor Operating Partnership LP Certification of Chief Executive Officer and Chief Financial Officer Pursuant to 18 U.S.C. Section 1350 as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 — — — — x
101.INS XBRL Instance Document — — — — x
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Incorporated by Reference
Exhibit
Number Exhibit Description Form File No. Date of
Filing Exhibit
Number Filed
Herewith
101.SCH XBRL Taxonomy Extension Schema Document — — — — x
101.CAL XBRL Taxonomy Extension Calculation Linkbase Document — — — — x
101.DEF XBRL Taxonomy Extension Definition Linkbase Document — — — — x
101.LAB XBRL Taxonomy Extension Label Linkbase Document — — — — x
101.PRE XBRL Taxonomy Extension Presentation Linkbase Document — — — — x
104 Cover Page Interactive Data File (formatted as Inline XBRL and included in Exhibit 101) x
The agreements and other documents filed as exhibits to this report are not intended to provide factual information or other disclosure other than with respect to the terms of the agreements or other documents themselves, and you should not rely on them for that purpose. In particular, any representations and warranties made by us in these agreements or other documents were made solely within the specific context of the relevant agreement or document and may not describe the actual state of affairs as of the date they were made or at any other time.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrants have duly caused this report to be signed on their behalf by the undersigned thereunto duly authorized.
BRIXMOR PROPERTY GROUP INC.
Date: November 1, 2022 By: /s/ James M. Taylor
James M. Taylor
Chief Executive Officer and President
(Principal Executive Officer)
Date: November 1, 2022 By: /s/ Angela Aman
Angela Aman
Chief Financial Officer
(Principal Financial Officer)
Date: November 1, 2022 By: /s/ Steven Gallagher
Steven Gallagher
Chief Accounting Officer
(Principal Accounting Officer)
BRIXMOR OPERATING PARTNERSHIP LP
By: Brixmor OP GP LLC, its general partner
By: BPG Subsidiary LLC, its sole member
Date: November 1, 2022 By: /s/ James M. Taylor
James M. Taylor
Chief Executive Officer and President
(Principal Executive Officer)
Date: November 1, 2022 By: /s/ Angela Aman
Angela Aman
Chief Financial Officer
(Principal Financial Officer)
Date: November 1, 2022 By: /s/ Steven Gallagher
Steven Gallagher
Chief Accounting Officer
(Principal Accounting Officer)
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Text extracted from the filing as submitted to EDGAR. Formatting, tables and exhibits are simplified for reading; the original document is authoritative for anything you rely on.