UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 6
to
SCHEDULE TO
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 and Filing Person (Issuer))
Series D Cumulative Convertible Preferred Stock
(Title of Class of Securities)
963025606
(CUSIP Number of Class of Securities)
Amendment No. 6
to
SCHEDULE 13E-3
Rule 13e-3 Transaction
Statement under Section 13(e)
of the Securities Exchange Act of 1934
WHEELER REAL ESTATE INVESTMENT TRUST, INC.
(Name of the Issuer and Person Filing Statement)
Series
D Cumulative Convertible Preferred Stock
(Title of Class of Securities)
963025606
(CUSIP Number of Class of Securities)
M. Andrew Franklin
Chief Executive Officer and President
2529 Virginia Beach Blvd.
Virginia Beach, Virginia 23452
(757) 627-9088
(Name, address and telephone number of person authorized to receive notices and communications on behalf of filing person)
Copies to:
Daniel P. Raglan, Esq.
Cadwalader, Wickersham & Taft LLP
200 Liberty Street
New York, NY 10281
(212) 504-6000
☐ | 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) |
SCHEDULE TO
Wheeler Real Estate Investment Trust, Inc., a
Maryland corporation (the “Company”), amends and supplements its Tender Offer Statement and Rule 13e-3 Transaction Statement
on Schedule TO, as amended (the “Schedule TO”) relating to the revised offer (the “Revised Exchange Offer”) by
the Company to exchange up to an aggregate of 2,112,103 shares of the Company’s Series D Cumulative Convertible Preferred Stock
(the “Series D Preferred Stock”), which represents 67% of the outstanding Series D Preferred Stock validly
tendered, not validly withdrawn and validly accepted in the Revised Exchange Offer for the Company’s newly issued (i) 6.00%
Subordinated Convertible Notes due 2028 (the “Notes”), and (ii) common stock, $0.01 par value per share (“Common Stock”).
In exchange for each share of Series D
Preferred Stock that is validly tendered on or prior to 11:59 p.m., New York City time, on January 20, 2023 (the “Expiration
Date and Time”) not validly withdrawn and validly accepted by the Company for exchange, tendering holders of Series D
Preferred Stock will be eligible to receive (i) $16.00 in principal amount of the Notes, and (ii) 0.5 shares of Common Stock. The
Exchange Offer commenced on November 22, 2022 and the Revised Exchange Offer will expire at the Expiration Date and Time, unless
extended or earlier terminated by the Company. The Revised Exchange Offer will be made upon the terms and subject to the conditions
set forth in the Prospectus Supplement No. 3, dated January 12, 2023 (the “Prospectus”), which is filed as exhibit
(a)(1)(iv) hereto, to the Prospectus/Consent Solicitation dated November 22, 2022 (the “Initial Prospectus”), which is
filed as exhibit (a)(1)(i) hereto, as amended by Prospectus Supplement No. 1 to the Initial Prospectus, dated December 15, 2022,
which is filed as exhibit (a)(1)(ii) hereto, and Prospectus Supplement No. 2 to the Initial Prospectus, dated December 23, 2022,
which is filed as exhibit (a)(1)(iii) hereto.
As all
shares of Series D Preferred Stock are held in book-entry form at The Depository Trust Company (“DTC”), no letter
of transmittal will be used in connection with the
Revised Exchange Offer. The valid transmission for acceptance through DTC’s Automated Tender Program (“ATOP”) will
constitute delivery of shares of Series D Preferred Stock and/or consents in connection with the Revised Exchange Offer. There are no
guaranteed delivery procedures for the Revised Exchange Offer.
This Schedule TO is being filed in satisfaction
of the reporting requirements of Rules 13e-3 and 13e-4 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”). Information set forth in the Prospectus is incorporated herein by reference in response to Items 1 through 13 of this Schedule
TO, except those items as to which information is specifically provided herein.
Item 1. Summary Term Sheet. The information
set forth in the Prospectus in the sections titled “Questions and Answers About the Revised
Exchange Offer and Consent Solicitation” and “The Revised Exchange Offer
and Consent Solicitation Summary” is incorporated herein by reference.
Item 2. Subject Company Information.
(a) Name and Address.
The name of the subject company and the filing person is Wheeler Real Estate Investment Trust, Inc. The address of its principal executive
offices is 2529 Virginia Beach Blvd., Virginia Beach, Virginia. Its telephone number is (757) 627-9088.
(b) Securities.
The subject class of securities is the Company’s Series D Cumulative Convertible Preferred Stock. There are 3,152,392 shares of
Series D Cumulative Convertible Preferred Stock issued and outstanding as of January 3, 2023.
(c) Trading Market and
Price. The information set forth in the Prospectus in the section titled “Market Price for Common Stock and Series D Preferred
Stock” is incorporated herein by reference.
The following table describes the per share high
and low sales prices, as reported by The Nasdaq Capital Market (“Nasdaq”), for shares of the Series D Preferred Stock for
the quarterly periods indicated.
| |
High | | |
Low | |
2020 | |
| | |
| |
First Quarter | |
$ | 15.57 | | |
$ | 4.50 | |
Second Quarter | |
$ | 12.21 | | |
$ | 6.75 | |
Third Quarter | |
$ | 15.75 | | |
$ | 11.46 | |
Fourth Quarter | |
$ | 18.20 | | |
$ | 14.32 | |
2021 | |
| | | |
| | |
First Quarter | |
$ | 18.72 | | |
$ | 16.94 | |
Second Quarter | |
$ | 18.75 | | |
$ | 17.80 | |
Third Quarter | |
$ | 18.10 | | |
$ | 15.02 | |
Fourth Quarter | |
$ | 17.00 | | |
$ | 12.56 | |
2022 | |
| | | |
| | |
First Quarter | |
$ | 15.55 | | |
$ | 12.81 | |
Second Quarter | |
$ | 14.95 | | |
$ | 13.18 | |
Third Quarter | |
$ | 13.98 | | |
$ | 11.01 | |
Fourth Quarter | |
$ | 13.37 | | |
$ | 10.01 | |
2023 | |
| | | |
| | |
First Quarter (through January 3, 2023) | |
$ | 13.51 | | |
$ | 12.96 | |
Item 3. Identity and Background of Filing Person.
(a) Name and Address.
Wheeler Real Estate Investment Trust, Inc. is the filing person and subject company. The business address and telephone number of the
Company are set forth under Item 2(a) of this Schedule TO and are incorporated herein by reference.
The address of each of the
following directors and executive officers is c/o Wheeler Real Estate Investment Trust, Inc., 529 Virginia Beach Blvd., Virginia Beach,
VA., and each such person’s telephone number is (757) 627-9088: Michelle D. Bergman (Director), E.J. Borrack (Director), Kerry G.
Campbell (Director), Stefani D. Carter (Director), Saverio M. Flemma (Director), Megan Parisi (Director), Joseph D. Stilwell (Director),
M. Andrew Franklin (Chief Executive Officer and President), and Crystal Plum (Chief Financial Officer).
Item 4. Terms of the Transaction.
(a) Material Terms.
The information set forth in the Prospectus in the sections titled “Questions and Answers About the Revised
Exchange Offer and Consent Solicitation”, “Certain Information About the Revised
Exchange Offer and Consent Solicitation”, “Risk Factors”, “The Revised
Exchange Offer and Consent Solicitation Summary”, “Description of Securities”, “Description of the Exchange
Notes”, and “Material U.S. Federal Income Tax Considerations” is incorporated herein by reference.
(b) Purchases.
To the Company’s knowledge, certain of the directors and executive officers of the Company, directly or indirectly, beneficially
own shares of the Series D Preferred Stock and will participate in the Revised Exchange
Offer. The information set forth in the Prospectus in the sections titled “Interests of Directors, Executive Officers and Others”
and “Security Ownership of Certain Beneficial Owners and Management” is incorporated herein by reference.
Item 5. Past Contacts, Transactions, Negotiations and Agreements.
(e) Agreements Involving
the Subject Company’s Securities. The terms of the Common Stock, Series A Preferred Stock, Series B Convertible
Preferred Stock and Series D Preferred Stock are governed by the Company’s charter, filed as Exhibits (d)(1), (d)(2) (d)(3),
(d)(4), (d)(5), (d)(6), (d)(7), (d)(8), (d)(9) and (d)(10) hereto. The terms of the Company’s 7.00% Subordinated Convertible Notes
Due 2031 are governed by the Indenture, dated as of August 13, 2021, between the Company and Wilmington Savings Fund Society, FSB, as
trustee, filed as Exhibit (d)(11) hereto. The Company’s Registration Rights Agreements are filed as Exhibits (d)(12) and (d)(13)
hereto.
The information set forth in the Prospectus in
the sections titled “Description of Securities”, “Executive Compensation” and “Director Compensation”
is incorporated herein by reference.
Item 6. Purposes of the Transaction and Plans or Proposals.
(a) Purposes.
The information set forth in the Prospectus in the sections titled “Questions and Answers About the Revised
Exchange Offer and Consent Solicitation”, “The Revised Exchange Offer
and Consent Solicitation – Purpose of the Revised Exchange Offer and Consent Solicitation”,
“Description of Business”, and “Special Factors – Determination of Fairness of the Revised
Exchange Offer and Consent Solicitation by the Company” is incorporated herein by reference.
(b) Use of Securities
Acquired. Shares of Series D Preferred Stock accepted for exchange by the Company in the Revised
Exchange Offer will be cancelled.
(c) Plans.
|
(1) |
The information set forth in the Prospectus in the sections titled “Description of Business”,
“Special Factors – Determination of Fairness of the Revised Exchange Offer
and Consent Solicitation by the Company”, “The Revised Exchange Offer and
Consent Solicitation – Purpose of the Revised Exchange Offer and Consent Solicitation”
and “The Revised Exchange Offer and Consent Solicitation – Consequences
of Failure to Participate” is incorporated herein by reference. |
|
(2) |
The information set forth in the Prospectus in the sections titled “Description of Business”,
“Special Factors – Determination of Fairness of the Revised Exchange Offer
and Consent Solicitation by the Company”, “The Revised Exchange Offer and
Consent Solicitation – Purpose of the Revised Exchange Offer and Consent Solicitation”,
and “The Revised Exchange Offer and Consent Solicitation – Consequences
of Failure to Participate” is incorporated herein by reference. |
|
(3) |
The information set forth in the Prospectus in the sections titled “Special Factors –
Determination of Fairness of the Revised Exchange Offer and Consent Solicitation by the
Company”, “The Revised Exchange Offer and Consent Solicitation –
Purpose of the Revised Exchange Offer and Consent Solicitation”, “The Revised Exchange
Offer and Consent Solicitation – Consequences of Failure to Participate” and “Description of Business –
Dividend Policy” is incorporated herein by reference. |
|
(5) |
The information set forth in the Prospectus in the sections titled “Special Factors –
Determination of Fairness of the Revised Exchange Offer and Consent Solicitation by the
Company”, “The Revised Exchange Offer and Consent Solicitation –
Purpose of the Revised Exchange Offer and Consent Solicitation”, and “The Revised Exchange
Offer and Consent Solicitation – Consequences of Failure to Participate” is incorporated herein by reference. |
|
(6) |
The Company believes that the Revised
Exchange Offer has a reasonable likelihood of causing the Series D Preferred Stock to be delisted from Nasdaq. |
|
(7) |
The Company believes that the Revised
Exchange Offer has a reasonable likelihood of causing the Series D Preferred Stock to be eligible for termination of registration
under Section 12(g)(4) of the Exchange Act. |
|
(9) |
The information set forth in the Prospectus in
the sections titled “Special Factors – Determination of Fairness of the Revised
Exchange Offer and Consent Solicitation by the Company”, “The Revised Exchange
Offer and Consent Solicitation – Purpose of the Revised Exchange Offer and Consent Solicitation”,
“The Revised Exchange Offer and Consent Solicitation – Conditions of the
Revised Exchange Offer”, and “Capitalization” is incorporated herein
by reference. |
Item 7. Source and Amount of Funds or Other Consideration.
(a) Source of Funds. The
information set forth in the Prospectus in the sections titled “Questions and Answers About the Revised Exchange
Offer and Consent Solicitation” and “The Revised Exchange Offer and Consent
Solicitation – Terms of the Revised Exchange Offer and Consent
Solicitation” is incorporated herein by reference. The total consideration being offered to all of the holders of Series D
Preferred Stock (assuming 67% of the shares of Series D Preferred Stock are tendered in the Revised Exchange Offer) is (i)
$33,793,648 in aggregate principal amount of newly issued Exchange Notes, and (ii) 1,056,052 shares of newly issued Common
Stock.
(b) Conditions.
The information set forth in the Prospectus in the sections titled “Questions and Answers About the Revised
Exchange Offer and Consent Solicitation”, “The Revised Exchange Offer
and Consent Solicitation – Terms of the Revised Exchange Offer and Consent Solicitation”
and “The Revised Exchange Offer and Consent Solicitation – Conditions of the
Revised Exchange Offer” is incorporated herein by reference.
(d) Borrowed Funds.
Not applicable.
Item 8. Interest in the Securities of the Subject Company.
(a) Securities Ownership.
The information set forth in the section of the Prospectus entitled “Security Ownership of Certain Beneficial Owners and Management”
is incorporated herein by reference.
(b) Securities Transactions.
On January 3, 2023, interest
on the Company’s 7.00% Subordinated Convertible Notes due 2031 was paid in the form of the Company’s Series B Convertible
Preferred Stock (the “Series B Preferred Stock”). M. Andrew Franklin, Chief Executive Officer and President of the
Company, was issued 873 shares of the Series B Preferred Stock (convertible into 545
shares of Common Stock) as such interest payment. Kerry G. Campbell, director of the Company, was issued 3,268
shares of the Series B Preferred Stock (convertible into 2,042 shares of Common Stock) as
such interest payment. Joseph D. Stilwell, director of the Company, was issued 817,085 shares of the Series B Preferred Stock (convertible
into 510,677 shares of Common Stock) as such interest payment.
Except as set forth
above, neither the Company, nor any of its directors, executive officers or controlling persons, or any executive officers, directors,
managers or partners of any of its controlling persons, has engaged in any transactions in the Series D Preferred Stock or Common Stock
in the last 60 days.
Item 9. Persons/Assets, Retained, Employed, Compensated or Used.
(a)
Solicitations or Recommendations. The information set forth in the sections of the Prospectus titled “The Revised
Exchange Offer and Consent Solicitation – Information Agent” and “The Revised
Exchange Offer and Consent Solicitation – Dealer Manager and Solicitation Agent” is incorporated herein by reference.
None of the Company, its Board of Directors, its officers or employees, the paying agent,
security registrar and exchange agent, information agent, the Notes trustee, or the dealer manager
and solicitation agent, nor any other person, is
making a recommendation as to whether any holder of Series D Preferred Stock should tender shares of Series D Preferred Stock
and consent to the Proposed Amendments.
Item 10. Financial Statements.
(a) Financial Information.
The financial information of the Company included in the Prospectus is incorporated by reference herein. The full text of such financial
statements and other financial information, as well as the other documents the Company has filed with the Securities and Exchange Commission
(the “SEC”) prior to, or will file with the SEC subsequent to, the filing of this Schedule TO relating to the Revised
Exchange Offer are available for inspection and copying from the SEC’s website at www.sec.gov.
The book value per share of
the Series D Preferred Stock as of September 30, 2022 was $31.49.
(b) Pro Forma Information.
The pro forma financial information set forth in the section of the Prospectus titled “Unaudited Pro Forma Financial Information”
is incorporated herein by reference.
Item 11. Additional Information.
(a) Agreements, Regulatory
Requirements and Legal Proceedings. The information set forth in the Prospectus in the section titled “The Revised
Exchange Offer and Consent Solicitation – Conditions of the Revised Exchange
Offer” is incorporated herein by reference.
(c) Other Material Information.
The information set forth in the Prospectus is incorporated herein by reference.
Item 12. Exhibits.
Exhibit |
|
Description |
(a)(1)(i) |
|
Prospectus/Consent
Solicitation dated November 22, 2022 (the “Initial Prospectus”) (incorporated by reference to the Company’s filing
on November 22, 2022 pursuant to Rule 424(b)(3) (Reg. No. 333-268080) under the Securities Act of 1933). |
(a)(1)(ii) |
|
Prospectus
Supplement No. 1 to the Initial Prospectus (incorporated by reference to the Company’s filing
on December 15, 2022 pursuant to Rule 424(b)(3) (Reg. No. 333-268080) under the Securities
Act of 1933). |
(a)(1)(iii) |
|
Prospectus
Supplement No. 2 to the Initial Prospectus (incorporated by reference to the Company’s filing on December 23, 2022 pursuant
to Rule 424(b)(3) (Reg. No. 333-268080) under the Securities Act of 1933). |
(a)(1)(iv) |
|
Prospectus Supplement No. 3 to the Initial Prospectus (incorporated by reference to the Company’s filing on January 12, 2023 pursuant to Rule 424(b)(3) (Reg. No. 333-268080) under the Securities Act of 1933). |
(a)(4) |
|
The Prospectus (see Exhibit (a)(1)(iv)). |
(a)(5) |
|
Amended Terms of Series D Preferred Stock (proposed amendments to the substantive terms of the Series D Preferred Stock as set forth in the Articles Supplementary filed with SDAT on September 16, 2016) (included as Annex A to the Prospectus (see Exhibit a(1)(iv)). |
(b) |
|
Not applicable. |
(d)(1) |
|
Articles
of Amendment and Restatement of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on August 5, 2016 (Filed as exhibit 3.1
to Form 8-K, filed on August 8, 2016). |
(d)(2) |
|
Articles Supplementary of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on September 16, 2016 (Filed as exhibit 3.1
to Form 8-K, filed on September 20, 2016). |
(d)(3) |
|
Articles Supplementary of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on December 1, 2016 (Filed as exhibit 3.1
to Form 8-K, filed on December 5, 2016). |
(d)(4) |
|
Articles of Amendment of Wheeler Real Estate Investment Trust, Inc., filed with SDAT on March 28, 2017 (Filed as exhibit 3.1 to Form 8-K, filed on April 3, 2017). |
(d)(5) |
|
Articles of Amendment of Wheeler Real Estate Investment Trust, Inc., filed with SDAT on March 28, 2017 (Filed as exhibit 3.2 to Form 8-K, filed on April 3, 2017). |
(d)(6) |
|
Articles of Amendment of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on May 29, 2016 (Filed as exhibit 3.1
to Form 8-K, filed on May 29, 2020). |
(d)(7) |
|
Certificate of Correction of Articles Supplementary of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on May 3, 2018 (Filed as exhibit 3.1
to Form 8-K, filed on May 4, 2018). |
(d)(8) |
|
Articles Supplementary of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on July 8, 2021 (Filed as exhibit 3.1
to Form 8-K, filed on July 8, 2021). |
(d)(9) |
|
Articles of Amendment of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on November 5, 2021 (Filed as exhibit 3.1
to Form 8-K, filed on November 5, 2021). |
(d)(10) |
|
Articles of Amendment of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on November 29, 2021 (Filed as exhibit 3.1
to Form 8-K, filed on November 29, 2021). |
(d)(11) |
|
Indenture, dated as of August 13, 2021 between Wheeler Real Estate Investment Trust Inc. and Wilmington Savings Fund Society, FSB., as trustee (including form of Note). (Filed as exhibit 4.1
to Form 8-K, filed on August 16, 2021). |
(d)(12) |
|
Registration Rights Agreement, dated December 22, 2020 (Filed as exhibit 10.3 to Form 8-K, filed on December 23, 2020). |
(d)(13) |
|
Registration Rights Agreement dated March 12, 2021 (Filed as exhibit 10.3 to Form 8-K, filed on March 12, 2021). |
(g) |
|
Not applicable. |
(h) |
|
Opinion of Williams Mullen P.C. regarding certain tax matters (including consent) (incorporated by reference to Exhibit 8.1 of the Company’s Post-Effective Amendment No. 1 to Registration Statement on Form S-4 filed with the SEC on January 5, 2023). |
107 |
|
Filing Fee Table.* |
Item 13. Information Required by Schedule 13E-3. The following sets forth the information required by Schedule 13E-3 that has not already been set forth in Items 1-12 above. The information set forth in the Prospectus is incorporated herein by reference to the items required by Schedule 13E-3.
Item 2 of Schedule 13E-3.
Subject Company Information.
(d) Dividends.
The information set forth in the Prospectus in the sections titled “Questions and Answers About the Revised
Exchange Offer and Consent Solicitation”, “Special Factors – Determination of Fairness of the Revised
Exchange Offer and Consent Solicitation by the Company”, and “Description of Business – Dividend Policy”
is incorporated herein by reference.
(e) Prior
Public Offerings. Not applicable.
(f) Prior
Stock Purchases. The Company through “modified Dutch auction” tender offers on the Series D Preferred accepted for purchase
387,097 shares at a purchase price of $15.50 per share, for an aggregate cost of $6.00 million on March 12, 2021 and 103,513 shares of
Series D Preferred at a purchase price of $18.00 per share, for an aggregate cost of $1.86
million on May 15, 2021, both excluding fees and expenses.
Wheeler REIT, L.P., the Company’s
operating partnership, purchased 71,343 shares of the Series D Preferred Stock on September 22, 2020 from an unaffiliated investor in
a privately negotiated transaction.
The information set forth in the Prospectus
in the section titled “The Revised Exchange Offer and Consent Solicitation –
Purpose of the Revised Exchange Offer and Consent Solicitation” is incorporated herein
by reference.
Item 3 of Schedule 13E-3.
Identity and Background of the Filing Person.
(b) Business
and Background of Entities. None.
(c) Business
and Background of Natural Persons. None.
Item 4 of Schedule 13E-3.
Terms of the Transaction.
(c) Different
Terms. None.
(d) Appraisal
Rights. The information set forth in the Prospectus in the sections titled “Questions and Answers About the Revised Exchange
Offer and Consent Solicitation – Terms of the Revised Exchange Offer and Consent
Solicitation”, and “The Revised Exchange Offer and Consent Solicitation –
No Appraisal Rights” is incorporated herein by reference.
(e) Provisions
for Unaffiliated Security Holders. None.
(f) Eligibility for Listing
or Trading. The Notes offered in exchange for the Series D Preferred Stock have no established trading market. The Company intends
to apply for the listing of the Notes on Nasdaq under the ticker symbol “WHLRZ”. The Common Stock issuable pursuant to the
Revised Exchange Offer will be freely tradable on Nasdaq, except to the extent held by affiliates
of the Company. The Company intends to file a supplemental listing application with respect to the shares of Common Stock newly issued
in connection with the Revised Exchange Offer.
Item 5 of Schedule 13E-3.
Past Contracts, Transactions, Negotiations and Agreements.
Transactions.
(a)(1) None.
(a)(2) On October 29,
2019, Stilwell Value Partners VII, L.P., Stilwell Activist Fund, L.P., Stilwell Activist Investments, L.P., Stilwell Value LLC, and
Joseph Stilwell, director of the Company (collectively, the “Stilwell Group”), a beneficial owner of our common stock, filed
a proxy statement with the SEC in connection with the Company’s 2019 annual meeting (the “Stilwell Solicitation”). Current
director Joseph Stilwell is the owner and managing member of Stilwell Value LLC, which is the general partner of Stilwell Value Partners VII,
L.P., Stilwell Activist Fund, L.P., and Stilwell Activist Investments, L.P. At the 2019 annual meeting, stockholders elected three
nominees designated by the Stilwell Group to the Board of Directors. The Stilwell Group disclosed in the Stilwell Solicitation that it
intended to seek reimbursement of the expenses it incurred in connection with such solicitation. The Company agreed to reimburse the Stilwell
Group for the approximate $440,000 of expenses it incurred in connection with the Stilwell Solicitation. Approximately $70,000 of such
expenses were paid in 2020, and the balance was paid in 2021.
The information
set forth in the Prospectus in the sections titled “Description of Securities”, “Executive Compensation” and “Director
Compensation” is incorporated herein by reference.
Significant Corporate
Events.
(b)(1) None.
(b)(2) None.
(b)(3) None.
(b)(4) The information
set forth in the Prospectus in the sections titled “The Revised Exchange Offer and
Consent Solicitation – Purpose of the Revised Exchange Offer and Consent Solicitation”
and “Special Factors – Determination of Fairness of the Revised Exchange Offer
and Consent Solicitation by the Company” is incorporated herein by reference.
(b)(5) The information
set forth in the Prospectus in the section titled “Special Factors – Determination of Fairness of the Revised
Exchange Offer and Consent Solicitation by the Company” is incorporated herein by reference.
(b)(6) The
information set forth in the Prospectus in the sections titled “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” and “Description of Business” is incorporated herein by reference.
(c) Negotiations or
Contacts. The information set forth in the Prospectus in the sections titled “Special Factors – Determination of Fairness
of the Revised Exchange Offer and Consent Solicitation by the Company”, “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” and “Description of Business” is incorporated
herein by reference.
Item 7 of Schedule 13E-3.
Purposes, Alternatives, Reasons and Effects.
(a) Purposes. The
information set forth in the Prospectus in the sections titled “The Revised Exchange
Offer and Consent Solicitation – Purpose of the Revised Exchange Offer and Consent Solicitation”
and “The Revised Exchange Offer and Consent Solicitation Summary” is incorporated
herein by reference.
(b) Alternatives.
The information set forth in the Prospectus in the sections titled “Questions and Answers About the Revised
Exchange Offer and Consent Solicitation”, “Special Factors – Determination of Fairness of the Revised
Exchange Offer and Consent Solicitation by the Company”, and “The Revised Exchange
Offer and Consent Solicitation – Purpose of the Revised Exchange Offer and Consent Solicitation”
is incorporated herein by reference.
(c) Reasons. The
information set forth in the Prospectus in the sections titled “Questions and Answers About the Revised
Exchange Offer and Consent Solicitation”, “Special Factors – Determination of Fairness of the Revised
Exchange Offer by the Company” and “The Revised Exchange Offer –
Reasons for the Revised Exchange Offer” is incorporated herein by reference.
(d) Effects. The
information set forth in the Prospectus in the sections titled “Questions and Answers About the Revised
Exchange Offer and Consent Solicitation”, “The Revised Exchange Offer
and Consent Solicitation Summary”, “Special Factors – Determination of Fairness of the Revised
Exchange Offer and Consent Solicitation by the Company”, and “Material U.S. Federal Income Tax Considerations”
is incorporated herein by reference.
Item 8 of Schedule 13E-3.
Fairness of the Transaction.
(a) Fairness.
The information set forth in the Prospectus in the section titled “Special Factors – Determination of Fairness of the Revised
Exchange Offer by the Company” is incorporated herein by reference.
(b) Factors Considered
in Determining Fairness. The information set forth in the Prospectus in the section titled “Special Factors – Determination
of Fairness of the Revised Exchange Offer and Consent Solicitation by the Company”
is incorporated herein by reference.
(c) Approval of Security
Holders. The Revised Exchange Offer is not structured so that approval of at least a
majority of unaffiliated Company shareholders is required. The information set forth in the Prospectus in the sections titled “The
Revised Exchange Offer and Consent Solicitation Summary”, “The Revised
Exchange Offer and Consent Solicitation – Conditions of the Revised Exchange
Offer”, “The Revised Exchange Offer and Consent Solicitation – Consent
Solicitation Provisions”, and “Special Factors – Determination of Fairness of the Revised
Exchange Offer and Consent Solicitation by the Company” is incorporated herein by reference.
(d) Unaffiliated Representative.
An unaffiliated representative was not engaged by the Company’s Board of Directors to act solely on behalf of the unaffiliated
shareholders of the Company for purposes of negotiating the terms of the Revised Exchange
Offer. The information set forth in the Prospectus in the sections titled “Risk Factors – Risks Related to the Revised
Exchange Offer and Consent Solicitation”, and “Special Factors – Determination of Fairness of the Revised
Exchange Offer and Consent Solicitation by the Company” is incorporated herein by reference.
(e) Approval of Directors.
The information set forth in the Prospectus in the section titled “Special Factors – Determination of Fairness of the
Revised Exchange Offer and Consent Solicitation by the Company” is incorporated herein
by reference.
(f) Other
Offers. Not applicable.
Item 9 of Schedule 13E-3.
Reports, Opinions, Appraisals and Negotiations.
(a) Report, Opinion
or Appraisal. The Company has not received any report, opinion or appraisal from an outside party with respect to the Revised
Exchange Offer. The information set forth in the Prospectus in the section titled “Special Factors – Determination
of Fairness of the Revised Exchange Offer and Consent Solicitation by the Company”
is incorporated herein by reference.
(b) Preparer
and Summary of the Report, Opinion or Appraisal. None.
(c) Availability
of Documents. None.
Item 10 of Schedule 13E-3.
Source and Amounts of Funds or Other Consideration.
(c) Expenses. The
information set forth in the Prospectus in the section titled “The Revised Exchange
Offer – Costs of the Revised Exchange Offer and Consent Solicitation” is incorporated
herein by reference.
Item 12 of Schedule 13E-3.
The Solicitation or Recommendation.
(d) Intent
to Tender or Vote in a Going-Private Transaction. The information set forth in the Prospectus in the section titled “Interests
of Directors, Executive Officers and Others” is incorporated herein by reference.
(e) Recommendations
of Others. The information set forth in the Prospectus in the sections titled “Interests of Directors, Executive Officers and
Others” and “The Revised Exchange Offer and Consent Solicitation – No
Recommendation” is incorporated herein by reference.
Item 14 of Schedule 13E-3.
Persons/Assets, Retained, Employed, Compensated or Used.
(b) Employees
and Corporate Assets. None.
Item 16 of Schedule 13E-3.
Exhibits.
(c) None.
(f) None.
SIGNATURE
After due inquiry and to the best of my knowledge
and belief, I certify that the information set forth in this statement is true, complete and correct.
Date: January 12, 2023
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Wheeler Real Estate Investment Trust, Inc. |
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By: |
/s/ M. Andrew Franklin |
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Name: M. Andrew Franklin |
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Title: Chief Executive Officer and President |
EXHIBIT
INDEX
Exhibit |
|
Description |
(a)(1)(i) |
|
Prospectus/Consent
Solicitation dated November 22, 2022 (the “Initial Prospectus”) (incorporated by reference to the Company’s filing
on November 22, 2022 pursuant to Rule 424(b)(3) (Reg. No. 333-268080) under the Securities Act of 1933). |
(a)(1)(ii) |
|
Prospectus
Supplement No. 1 to the Initial Prospectus (incorporated by reference to the Company’s filing
on December 15, 2022 pursuant to Rule 424(b)(3) (Reg. No. 333-268080) under the Securities
Act of 1933). |
(a)(1)(iii) |
|
Prospectus
Supplement No. 2 to the Initial Prospectus (incorporated by reference to the Company’s filing on December 23, 2022 pursuant
to Rule 424(b)(3) (Reg. No. 333-268080) under the Securities Act of 1933). |
(a)(1)(iv) |
|
Prospectus Supplement No. 3 to the Initial Prospectus (incorporated by reference to the Company’s filing on January 12, 2023 pursuant to Rule 424(b)(3) (Reg. No. 333-268080) under the Securities Act of 1933). |
(a)(4) |
|
The Prospectus (see Exhibit (a)(1)(iv)). |
(a)(5) |
|
Amended Terms of Series D Preferred Stock (proposed amendments to the substantive terms of the Series D Preferred Stock as set forth in the Articles Supplementary filed with SDAT on September 16, 2016) (included as Annex A to the Prospectus (see Exhibit a(1)(iv)). |
(b) |
|
Not applicable. |
(d)(1) |
|
Articles
of Amendment and Restatement of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on August 5, 2016 (Filed as exhibit 3.1
to Form 8-K, filed on August 8, 2016). |
(d)(2) |
|
Articles Supplementary of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on September 16, 2016 (Filed as exhibit 3.1
to Form 8-K, filed on September 20, 2016). |
(d)(3) |
|
Articles Supplementary of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on December 1, 2016 (Filed as exhibit 3.1
to Form 8-K, filed on December 5, 2016). |
(d)(4) |
|
Articles of Amendment of Wheeler Real Estate Investment Trust, Inc., filed with SDAT on March 28, 2017 (Filed as exhibit 3.1 to Form 8-K, filed on April 3, 2017). |
(d)(5) |
|
Articles of Amendment of Wheeler Real Estate Investment Trust, Inc., filed with SDAT on March 28, 2017 (Filed as exhibit 3.2 to Form 8-K, filed on April 3, 2017). |
(d)(6) |
|
Articles of Amendment of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on May 29, 2016 (Filed as exhibit 3.1
to Form 8-K, filed on May 29, 2020). |
(d)(7) |
|
Certificate of Correction of Articles Supplementary of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on May 3, 2018 (Filed as exhibit 3.1
to Form 8-K, filed on May 4, 2018). |
(d)(8) |
|
Articles Supplementary of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on July 8, 2021 (Filed as exhibit 3.1
to Form 8-K, filed on July 8, 2021). |
(d)(9) |
|
Articles of Amendment of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on November 5, 2021 (Filed as exhibit 3.1
to Form 8-K, filed on November 5, 2021). |
(d)(10) |
|
Articles of Amendment of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on November 29, 2021 (Filed as exhibit 3.1
to Form 8-K, filed on November 29, 2021). |
(d)(11) |
|
Indenture, dated as of August 13, 2021 between Wheeler Real Estate Investment Trust Inc. and Wilmington Savings Fund Society, FSB., as trustee (including form of Note). (Filed as exhibit 4.1
to Form 8-K, filed on August 16, 2021). |
(d)(12) |
|
Registration Rights Agreement, dated December 22, 2020 (Filed as exhibit 10.3 to Form 8-K, filed on December 23, 2020). |
(d)(13) |
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Registration Rights Agreement dated March 12, 2021 (Filed as exhibit 10.3 to Form 8-K, filed on March 12, 2021). |
(g) |
|
Not applicable. |
(h) |
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Opinion of Williams Mullen P.C. regarding certain tax matters (including consent) (incorporated by reference to Exhibit 8.1 of the Company’s Post-Effective Amendment No. 1 to Registration Statement on Form S-4 filed with the SEC on January 5, 2023). |
107 |
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Filing Fee Table.* |
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