ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
Underwriting Agreement
On December 1, 2016, Wheeler Real Estate Investment Trust, Inc. a Marylandcorporation (the “Company”), and its operating partnership, Wheeler REIT, L.P.,a Virginia limited partnership (the “Operating Partnership”), entered into anUnderwriting Agreement (the “Underwriting Agreement”) with Compass PointResearch & Trading, LLC (“Compass Point”), as representative of the severalunderwriters named in Schedule A attached to the Underwriting Agreement (the”Underwriters”), in connection with the public offering (the “Offering”) by theCompany of 637,000 shares (the “Firm Shares”) of Series D Cumulative ConvertiblePreferred Stock, without par value per share, of the Company (the “Series DPreferred Stock”).
Under the terms of the Underwriting Agreement, the Company also granted to theUnderwriters an overallotment option (the “Overallotment Option”), exercisablefor 30 days from the date of the Company’s final prospectus supplement datedDecember 1, 2016, to purchase up to 95,550 additional shares of the Series DPreferred Stock (the “Additional Shares” and, together with the Firm Shares, the”Shares”) at the Offering Price (as defined below), less underwriting discountsand commissions.
The Underwriters offered the Shares to the public at $24.00 per Share (the”Offering Price”).
Under the terms of the Underwriting Agreement, the Company and the OperatingPartnership have agreed to jointly and severally indemnify the Underwritersagainst certain liabilities, including liabilities under the Securities Act of1933, as amended, the Securities Exchange Act of 1934, as amended, and otherfederal or state statutory laws or regulations. The Underwriting Agreementcontains customary representations, warranties, covenants, obligations of theparties and termination provisions.
The foregoing description of the Underwriting Agreement is a summary and isqualified in its entirety by the terms of the Underwriting Agreement, a copy ofwhich is filed as Exhibit No. 1.1 to this Current Report on Form 8-K andincorporated by reference into this Item 1.01. A copy of the opinion of HanebergHurlbert PLC relating to the legality of the issuance and sale of the FirmShares and the Additional Shares is attached as Exhibit 5.1 hereto, and a copyof the opinion of
Williams Mullen with respect to tax matters concerning theFirm Shares and the Additional Shares is attached as Exhibit 8.1 hereto.
Amendment to the Amended and Restated Agreement of Limited Partnership of theOperating Partnership
On December 1, 2016, in connection with the Offering, the Company entered intoan Amendment to the Amended and Restated Agreement of Limited Partnership (the”LP Amendment”) of the Operating Partnership. The LP Amendment provides for thedesignation of 1,500,000 additional units of Series D Cumulative ConvertiblePreferred Units of the Operating Partnership (the “Series D Preferred Units”).As of December 1, 2016, the Operating Partnership has issued 1,600,000 Series DPreferred Units to the Company in exchange for offering proceeds from an equalnumber of shares of the Company’s Series D Preferred Stock. The outstanding butunissued Series D Preferred Units will be held for future issuance to theCompany. The Series D Preferred Units have substantially similar rights andpreferences as the Series D Preferred Stock.
The foregoing description of the LP Amendment is a summary and is qualified inits entirety by the terms of the LP Amendment, a copy of which is filed asExhibit No. 10.1 to this Current Report on Form 8-K and incorporated byreference into this Item 1.01.
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ITEM 5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCALYEAR.
On December 1, 2016, the Company filed Articles Supplementary (the “ArticlesSupplementary”) with the Maryland State Department of Assessments and Taxationto designate an additional 1,500,000 shares of the Company’s authorized butunissued preferred stock, without par value, as shares of the Series D PreferredStock. The Articles Supplementary became effective upon filing on December 1,2016.
The foregoing description of the Articles Supplementary is a summary and isqualified in its entirety by the terms of the Articles Supplementary, a copy ofwhich is filed as Exhibit No. 3.1 to this Current Report on Form 8-K andincorporated by reference into this Item 5.03.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial statement of businesses acquired.
Not Applicable.
(b) Pro forma financial information.
Not applicable.
(c) Shell company transactions.
Not Applicable.(d) Exhibits. 1.1 Underwriting Agreement 3.1 Wheeler Real Estate Investment Trust, Inc. Articles Supplementary 5.1 Opinion of Haneberg Hurlbert PLC 8.1 Opinion of
Williams Mullen with respect to tax matters10.1 Amendment to the Amended and Restated Agreement of Limited Partnership of Wheeler REIT, LP. Designating Additional Series D Cumulative Convertible Preferred Units
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