Item 1.01 Entry into a Material Definitive Agreement.
Underwriting Agreement
On
Units
On
Each Unit issued is comprised of (i) a prepaid stock purchase contract issued by
the Company (each, a "Purchase Contract") pursuant to which the Company will
deliver to the holder, on
Purchase Contracts
For each Purchase Contract the Company will deliver to holders on the Mandatory Settlement Date, or, in the case of an early settlement at a holder's election, on the second business day following the relevant early settlement date, a number of shares of Common Stock. Other than for any early settlement in connection with a Fundamental Change (as defined in the Purchase Contract Agreement), the number of shares of Common Stock issuable upon settlement of each Purchase Contract (the "Settlement Rate") will be determined as follows:
• if the Applicable Market Value (as defined below) of the Common Stock is greater than or equal to the threshold appreciation price, which is initially approximately equal to$3.87 , then the holder will receive 12.9341 shares of Common Stock for each Purchase Contract; • if the Applicable Market Value of the Common Stock is greater than the Reference Price (as defined below) but less than the threshold appreciation price, then the holder will receive a number of shares of Common Stock for each Purchase Contract equal to the Unit stated amount of$50.00 , divided by the Applicable Market Value; and • if the Applicable Market Value of the Common Stock is less than or equal to the Reference Price, then the holder will receive 15.1976 shares of Common Stock for each Purchase Contract (the "Maximum Settlement Rate").
The "Applicable Market Value" means the arithmetic average of the daily VWAPs (as defined in the Purchase Contract Agreement) of the Common Stock on each of the trading days during the applicable Market Value Averaging Period (as defined below).
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The "Market Value Averaging Period" is (i) in the case of the settlement on
Mandatory Settlement Date, the 20 consecutive trading days beginning on, and
including, the 21st scheduled trading day immediately preceding
The "Reference Price" is equal to
Until
• on or afterFebruary 15, 2023 , on the second trading day immediately following the last trading day of any 20 consecutive trading day period during which the closing price of the Common Stock has been greater than or equal to 110% of the threshold appreciation price then in effect on each trading day in such 20 consecutive trading day period. • on or afterFebruary 15, 2023 , during the five business day period after any ten consecutive trading day period (the "Measurement Period") in which (x) the Trading Price (as defined in the Purchase Contract Agreement) per Unit for each trading day of the Measurement Period was less than 97% of the product of the closing price of the Common Stock and the Maximum Settlement Rate on each such trading day and (y) the closing price of the Common Stock on each trading day of the Measurement Period was less than 70% of the Reference Price on each such trading day. For purposes of determining the Trading Price, the Company will act as the initial Bid Solicitation Agent under, and as defined in, the Purchase Contract Agreement. • upon the occurrence of certain distributions and certain corporate events described in the Purchase Contract Agreement.
In addition, if a Fundamental Change occurs at any time prior to
Upon early settlement at a holder's election of a Purchase Contract that is a component of a Unit (whether or not in connection with a Fundamental Change), the Amortizing Note underlying such Unit will remain outstanding and be beneficially owned by or registered in the name of, as the case may be, the holder who elected to settle the related Purchase Contract early.
On or after
Amortizing Notes
Each Amortizing Note will have an initial principal amount of
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installments of
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
The information set forth under Item 1.01 is incorporated by reference herein.
Cautionary Note Regarding Forward Looking Statements
This Current Report on Form 8-K contains forward-looking statements that may constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements are subject to various risks and uncertainties and include all statements that are not historical statements of fact and those regarding the Company's intent, belief or expectations. Forward-looking statements are generally identifiable by use of forward-looking terminology such as "may," "will," "could," "potential," "intend," "expect," "estimate," "believe," "plan," or other similar words or expressions, and include statements regarding the tangible equity units offering, the anticipated use of proceeds and other future events. These forward-looking statements are based on certain assumptions and expectations, and the Company's ability to predict results or the actual effect of
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future plans or strategies is inherently uncertain. Although the Company
believes that expectations reflected in any forward-looking statements are based
on reasonable assumptions, it can give no assurance that its assumptions or
expectations will be attained and actual results and performance could differ
materially from those projected. Factors which could have a material adverse
effect on the Company's operations and future prospects or which could cause
events or circumstances to differ from the forward-looking statements include,
but are not limited to, the risks detailed from time to time in the Company's
filings with the
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
1.1 Underwriting Agreement, dated as ofNovember 16, 2022 , betweenBrookdale Senior Living Inc. andBofA Securities, Inc. andBarclays Capital Inc. , as representatives of the several underwriters named in Schedule A thereto. 4.1 Purchase Contract Agreement, dated as ofNovember 21, 2022 , betweenBrookdale Senior Living Inc. andAmerican Stock Transfer & Trust Company, LLC , as purchase contract agent, as attorney-in-fact for holders of the purchase contracts referred to therein and as trustee under the indenture referred to therein. 4.2 Form of Unit (included in Exhibit 4.1). 4.3 Form of Purchase Contract (included in Exhibit 4.1). 4.4 Indenture, dated as ofNovember 21, 2022 , betweenBrookdale Senior Living Inc. andAmerican Stock Transfer & Trust Company, LLC , as trustee. 4.5 First Supplemental Indenture, dated as ofNovember 21, 2022 , betweenBrookdale Senior Living Inc. andAmerican Stock Transfer & Trust Company, LLC , as trustee. 4.6 Form of Note (included in Exhibit 4.5). 5.1 Opinion ofSkadden, Arps, Slate, Meagher & Flom LLP . 23.1 Consent ofSkadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1). 104.1 Cover Page Interactive Data File (embedded within the Inline XBRL document).
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