Amended Tender Offer Statement by Issuer (sc To-i/a)
January 26 2021 - 04:47PM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
SCHEDULE
TO
(Amendment
No. 1)
TENDER
OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)
OF
THE SECURITIES EXCHANGE ACT OF 1934
WHEELER
REAL ESTATE INVESTMENT TRUST, INC.
(Name
Of Subject Company (Issuer) And Filing Person (Offeror))
Series
D Cumulative Convertible Preferred Stock, no par value per
share
(Title
of Class of Securities)
963025606
(CUSIP
Number of Series D Cumulative Convertible Preferred
Stock)
Daniel
Khoshaba
2529
Virginia Beach Blvd., Suite 200
Virginia
Beach, Virginia 23452
(757)
627-9088
(Name,
address and telephone number of person authorized to receive
notices and communications on behalf of filing
persons)
With a copy to:
Daniel
Raglan
Cadwalader
Wickersham & Taft LLP
200
Liberty Street
New
York, New York 10281
(212)
504-6790
CALCULATION
OF FILING FEE
|
Transaction
Valuation* |
|
Amount
Of Filing Fee** |
| $20,000,000.00 |
|
$2,182 |
|
* |
The
transaction value is estimated only for purposes of calculating the
filing fee. This amount is based on the offer to purchase up to
$20 million in value of shares of the Series D Cumulative
Convertible Preferred Stock, no par value per share. |
|
** |
The
amount of the filing fee, calculated in accordance with Rule 0-11
under the Securities Exchange Act of 1934, as amended, equals
$109.10 per million dollars of the value of the
transaction. |
|
☒ |
Check
the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee
was previously paid. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing. |
|
Amount
Previously Paid: $2,072.90 |
Filing
Party: Wheeler Real Estate Investment Trust, Inc. |
|
Form
or Registration No.: Schedule TO-I |
Date
Filed: December 23, 2020 |
|
☐ |
Check
the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer. |
Check
the appropriate boxes below to designate any transactions to which
the statement relates:
|
|
☐ |
third-party
tender offer subject to Rule 14d-1. |
|
|
☒ |
issuer
tender offer subject to Rule 13e-4. |
|
|
☐ |
going-private
transaction subject to Rule 13e-3. |
|
|
☐ |
amendment
to Schedule 13D under Rule 13d-2. |
Check
the following box if the filing is a final amendment reporting the
results of the tender offer: ☐
If
applicable, check the appropriate box(es) below to designate the
appropriate rule provision(s) relied upon:
|
|
☐ |
Rule
13e-4(i) (Cross-Border Issuer Tender Offer) |
|
|
☐ |
Rule
14d-1(d) (Cross-Border Third Party Tender Offer) |
AMENDMENT
NO. 1 SCHEDULE TO
This Amendment No. 1 (the “Amendment”) amends and supplements the
Tender Offer Statement on Schedule TO first filed by Wheeler Real
Estate Investment Trust, Inc., a Maryland corporation (“Wheeler” or
the “Company”), on December 23, 2020. The Schedule TO relates to
the tender offer by Wheeler to purchase shares of its Series D
Cumulative Convertible Preferred Stock, no par value per share
(“Series D Shares”), at a price not greater than $18.00 nor less
than $15.50 per Series D Share, to the seller in cash, less any
applicable withholding taxes and without interest. Wheeler’s offer
is made on the terms and subject to the conditions set forth in the
Offer to Purchase, dated December 23, 2020, and in the related
Letter of Transmittal, which, as amended or supplemented from time
to time, together constitute the offer.
This Amendment is being filed to report the following information
pursuant to Rule 13e-4(c)(3) under the Securities Exchange Act of
1934, as amended (the “Exchange Act”):
|
● |
The value of Series D Shares that
the Company is offering to purchase is being increased from $19
million to $20 million, on the same terms and conditions set forth
in the Offer to Purchase and the related Letter of Transmittal,
except that the expiration date of the Offer is being extended
until 11:59 P.M., Eastern Standard Time, on Tuesday, February 16,
2021, in accordance with Rule 13e-4(f)(1)(ii) under the Exchange
Act. |
The
press release announcing the Amendment is filed as Exhibit
(a)(5)(xviii) to the Schedule TO and is incorporated herein by
reference.
All
information in the offer, including all schedules and annexes
thereto, which were previously filed with the Schedule TO, is
hereby expressly incorporated by reference into this Amendment No.
1, except that such information is hereby amended and supplemented
to the extent specifically provided for herein.
Items 1 through 11.
The Offer to Purchase, the Letter of Transmittal and Items 1
through 11 of the Schedule TO, to the extent such Items incorporate
by reference the information contained in the Offer to Purchase,
are hereby supplemented and amended by the following:
|
● |
The value of Series D Shares that
the Company is offering to purchase is being increased from $19
million to $20 million and the expiration date of the Offer is
being extended until 11:59 P.M., Eastern Standard Time, on Tuesday,
February 16, 2021. In accordance with rules promulgated by the SEC,
the Company may increase the number of Series D Shares accepted for
payment in the Offer by up to, but not more than, 2% of the
outstanding Series D Shares without further amending or extending
the Offer. |
ITEM
12. EXHIBITS.
Item
12 of the Schedule TO is hereby amended and supplemented by adding
the following Exhibit:
(a)(5)(xviii)
Press Release, dated January 26, 2021.
SIGNATURE
After
due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Amendment No. 1 to Schedule
TO is true, complete and correct.
| |
WHEELER REAL ESTATE INVESTMENT TRUST, INC. |
| |
|
|
|
By: |
/s/ Daniel Khoshaba |
| |
|
Name: Daniel Khoshaba |
| |
|
Title: President and CEO |
Date:
January 26, 2021
EXHIBIT
INDEX
|
(a)(1)(i) |
|
Offer to Purchase, dated December 23,
2020. * |
| |
|
| (a)(1)(ii) |
|
Form of Letter of Transmittal
(including IRS Form W-9 ). * |
| |
|
| (a)(1)(iii) |
|
Notice of Guaranteed Delivery.
* |
| |
|
| (a)(1)(iv) |
|
Letter to Brokers, Dealers, Banks,
Trust Companies and Other Nominees. * |
| |
|
| (a)(1)(v) |
|
Letter to Clients for Use by Brokers,
Dealers, Banks, Trust Companies and Other Nominees. * |
| |
|
|
| (a)(1)(vi) |
|
Summary Advertisement, dated December
23, 2020. * |
| |
|
| (a)(2) |
|
Not
applicable. |
| |
|
| (a)(3) |
|
Not
applicable. |
| |
|
| (a)(4) |
|
Not
applicable. |
| |
|
| (a)(5)(i) |
|
Annual Report on Form 10-K of Wheeler Real Estate Investment Trust,
Inc. for the fiscal year ended December 31, 2019 filed on
February 26, 2020 (incorporated by reference to such
filing). |
| |
|
| (a)(5)(ii) |
|
Quarterly Report on Form 10-Q of Wheeler Real Estate Investment
Trust, Inc. for the fiscal quarter ended March 31, 2020 filed
on May 12, 2020 (incorporated by reference to such
filing). |
| |
|
| (a)(5)(iii) |
|
Quarterly Report on Form 10-Q of Wheeler Real Estate Investment
Trust, Inc. for the fiscal quarter ended June 30, 2020 filed
on August 4, 2020 (incorporated by reference to such
filing). |
| |
|
| (a)(5)(iv) |
|
Quarterly Report on Form 10-Q of Wheeler Real Estate Investment
Trust, Inc. for the fiscal quarter ended September 30, 2020
filed on November 10, 2020 (incorporated by reference to such
filing). |
| |
|
| (a)(5)(v) |
|
Current Report on Form 8-K of Wheeler Real Estate Investment Trust,
Inc. filed on January 28, 2020 (incorporated by reference to such
filing). |
| |
|
| (a)(5)(vi) |
|
Current Report on Form 8-K of Wheeler Real Estate Investment Trust,
Inc. filed on January 29, 2020 (incorporated by reference to such
filing). |
| |
|
| (a)(5)(vii) |
|
Current Report on Form 8-K of Wheeler Real Estate Investment Trust,
Inc. filed on February 20, 2020 (incorporated by reference to such
filing). |
| |
|
| (a)(5)(viii) |
|
Current Report on Form 8-K of Wheeler Real Estate Investment Trust,
Inc. filed on February 26, 2020 (incorporated by reference to such
filing). |
| |
|
| (a)(5)(ix) |
|
Current Report on Form 8-K of Wheeler Real Estate Investment Trust,
Inc. filed on March 16, 2020 (incorporated by reference to such
filing). |
| |
|
|
| (a)(5)(x) |
|
Current Report on Form 8-K of Wheeler Real Estate Investment Trust,
Inc. filed on April 14, 2020 (incorporated by reference to such
filing). |
| |
|
|
| (a)(5)(xi) |
|
Current Report on Form 8-K of Wheeler Real Estate Investment Trust,
Inc. filed on May 29, 2020 (incorporated by reference to such
filing). |
|
(a)(5)(xii) |
|
Current
Report on Form 8-K of Wheeler Real Estate Investment Trust, Inc.
filed on June 19, 2020 (incorporated by reference to such
filing). |
|
|
|
|
|
(a)(5)(xiii) |
|
Current
Report on Form 8-K of Wheeler Real Estate Investment Trust, Inc.
filed on July 24, 2020 (incorporated by reference to such
filing). |
|
|
|
|
|
(a)(5)(xiv) |
|
Current
Report on Form 8-K of Wheeler Real Estate Investment Trust, Inc.
filed on August 5, 2020 (incorporated by reference to such
filing). |
|
|
|
|
|
(a)(5)(xv) |
|
Current
Report on Form 8-K of Wheeler Real Estate Investment Trust, Inc.
filed on December 23, 2020 (incorporated by reference to such
filing). |
|
|
|
|
|
(a)(5)(xvi) |
|
Current
Report on Form 8-K of Wheeler Real Estate Investment Trust, Inc.
filed on December 23, 2020 (incorporated by reference to such
filing). |
|
|
|
|
(a)(5)(xvii) |
|
Press
Release, dated December 23, 2020 (incorporated by reference to
Exhibit 99.1 to the Current Report on Form 8-K filed on December
23, 2020). |
|
|
|
|
|
(a)(5)(xviii) |
|
Press
Release announcing the Extension of the Tender Offer, dated January
26, 2021** |
|
|
|
| (d)(i) |
|
Wheeler Real Estate Investment Trust, Inc. 2015 Long-Term Incentive
Plan (incorporated by reference to Exhibit 10.1 to the Current
Report on Form 8-K filed on June 8, 2015). |
| |
|
| (d)(ii) |
|
Wheeler Real Estate Investment Trust, Inc. 2016 Long-Term Incentive
Plan (incorporated by reference to Exhibit 10.1 to the Current
Report on Form 8-K filed on June 16, 2016). |
| |
|
| (d)(iii) |
|
Stock Appreciation Rights Agreement, dated August 4, 2020, between
Wheeler Real Estate Investment Trust, Inc. and Daniel Khoshaba
(incorporated by reference to Exhibit 10.1 to the Current Report on
Form 8-K filed on August 5, 2020). |
|
|
|
|
|
(d)(iv) |
|
Financing
Agreement dated December 22, 2020, by and among the Company,
certain subsidiaries of the Company from time to time party
thereto, as guarantors, the lenders from time to time party
thereto, and Powerscourt Investments XXII, LP, as administrative
agent and collateral agent (incorporated by reference to Exhibit
10.1 to the Current Report on Form 8-K filed on December 23,
2020). |
|
|
|
|
|
(d)(v) |
|
Warrant
for the Purchase of Common Stock dated December 22, 2020
(incorporated by reference to Exhibit 10.2 to the Current Report on
Form 8-K filed on December 23, 2020). |
|
|
|
|
|
(d)(vi) |
|
Registration
Rights Agreement dated December 22, 2020, by and among the Company,
the investors identified on a schedule attached thereto and certain
other security holders party thereto (incorporated by reference to
Exhibit 10.3 to the Current Report on Form 8-K filed on December
23, 2020). |
|
|
|
|
|
(g) |
|
Not
applicable. |
|
|
|
|
(h) |
|
Not
applicable. |
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