As filed with the Securities and Exchange Commission on June 26, 2020
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
LIGHTSTONE VALUE PLUS REAL ESTATE INVESTMENT TRUST, INC.
(Name of Subject Company (Issuer) and Filing Person (Offeror))
Common Stock, $0.01 par value per share
(Title of Class of Securities)
53227A103
(CUSIP Number of Class of Securities)
Joseph E. Teichman, Esq.
c/o The Lightstone Group
Lightstone Value Plus Real Estate Investment Trust, Inc.
1985 Cedar Bridge Avenue, Suite 1
Lakewood, New Jersey 08701
(732) 367-0129
(Name, address, and telephone number of person authorized to receive notices and communications on behalf of filing persons)
CALCULATION OF FILING FEE
Transaction Valuation: $1,125,000 (a) | Amount of Filing Fee: $146.03 (b) |
(a) | Calculated as the maximum aggregate purchase price to be paid for shares of common stock. |
| | |
(b) | The amount of the filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, equals $129.80 per million of the aggregate amount of cash offered by the Company. |
| ☒ | 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: $ 146.03
| Filing Party: Lightstone Value Plus Real Estate Investment Trust, Inc.
|
Form or Registration No.: 005-86416
| Date Filed: June 15, 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: ☐ |
| | ☐ | Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
| | | |
| | ☐ | Rule 14d-1(d) (Cross-Border Third-Party Tender Offer). |
SCHEDULE TO
This Amendment No. 1 amends and supplements the Tender Offer Statement on Schedule TO of Lightstone Value Plus Real Estate Investment Trust, Inc., a Maryland corporation (the “Company”), filed with the Securities and Exchange Commission(the “SEC”) on June 15, 2020 (the “Schedule TO”) relating to the Company’s offer to purchase for cash up to 225,000 shares of the Company’s common stock, par value $0.01 per share (the “Shares”), subject to the Company’s ability to increase the number of Shares accepted for payment in the offer by up to, but not more than, 1% of the Company’s outstanding Shares (resulting in a commensurate increase in the number of Shares by up to approximately 223,000 Shares) without amending or extending the offer in accordance with rules promulgated by the SEC, at a purchase price of $5.00 per Share, net to the seller in cash, less any applicable withholding taxes and without interest. The Company’s offer is being made upon the terms and subject to the conditions set forth in the Offer to Purchase, dated June 15, 2020 (the “Offer to Purchase”), and in the related Letter of Transmittal (the “Letter of Transmittal”), which, together with any amendments or supplements thereto, constitute the “Offer,” copies of which are attached to this Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively.. This Tender Offer Statement on Schedule TO is intended to satisfy the reporting requirements of Rule 13e-4(c)(2) of the Securities Exchange Act of 1934, as amended.
The information contained in the Offer to Purchase and the related Letter of Transmittal, copies of which are attached to this Schedule TO as Exhibits (a)(i) and (a)(ii), respectively, is incorporated into this Amendment No. 1 by reference in response to all the items of the Schedule TO, except that such information is hereby amended and supplemented to the extent specifically provided in the Amendment No. 1.
Items 1 through 11.
| A. | Amendment to Clarify Conditions of the Offer. |
The last sentence in the first paragraph of Section 6 of the Offer to Purchase is hereby replaced with following:
“Notwithstanding any other provision of the Offer, we will not be required to accept for payment, purchase or pay for any Shares tendered, and we may terminate or amend the Offer or postpone the acceptance for payment of, or the purchase of and the payment for, Shares tendered (subject to Rule 13e-4(f)(5) under the Exchange Act, which requires that we must pay the consideration offered or return the Shares tendered promptly after termination or withdrawal of the Offer), if at any time on or after the commencement of the Offer and before the Expiration Date any of the following events has occurred (or are determined by us, in our reasonable judgment, to have occurred) that, in our reasonable judgment makes it inadvisable to proceed with the Offer or with the acceptance for payment for the Shares tendered in the Offer:”
The last bullet point on page 16 of the Offer to Purchase, is hereby amended by adding the word “or” after the semi colon.
The first bullet point at the top of page 17 of the Offer to Purchase is hereby amended by deleting the word “or” after the semi colon.
The second bullet point on page 17 of the Offer to Purchase is hereby deleted.
The fourth bullet point on page 17 of the Offer to Purchase is hereby replaced with following:
| “● | any general suspension of trading in securities on any U.S. national securities exchange or in the over-the-counter market;” |
The third bullet point from the bottom of page 17 of the Offer to Purchase is hereby amended by deleting the phrase “in our reasonable judgment” before the colon.
The second bullet point from the top of page 18 of the Offer to Purchase is hereby amended by deleting the phrase “or benefits to us of the Offer” before the semi colon.
The third bullet point form the top of page 18 of the Offer to Purchase is hereby replaced with following:
| “● | any approval, permit, authorization, favorable review or consent of any governmental entity required to be obtained in connection with the Offer shall not have been obtained on terms satisfactory to us in our reasonable discretion (we are not aware of any approval, permit authorization, favorable review or consent of any governmental entity required to be obtained); or” |
The fifth bullet point from the top of page 18 of the Offer to Purchase is hereby a replaced with following:
| “● | the MacKenzie Offer has been terminated or withdrawn before the expiration of the Offer.” |
The first two sentences of the last paragraph of Section 6 on page 18 of the Offer to Purchase is hereby replaced with following:
“The conditions referred to above are for our sole benefit and, unless we caused the circumstances giving rise to the condition to occur, may be asserted or waived by us, in whole or in part, at any time and from time to time in our reasonable discretion until the Offer shall have expired or been terminated. Our failure to timely to exercise any of the foregoing rights may be deemed a waiver of that right.”
| B. | Amendment to Clarify Miscellaneous. |
The first paragraph on Section 18 Miscellaneous is hereby replaced with following:
“The Offer is not being made to, and tenders will not be accepted from, stockholders in any state in which the Offer or its acceptance would not comply with the securities laws of the applicable state. We are not aware of any state in which the Offer or tenders pursuant thereto would not be in compliance with the laws of the applicable state. However, we reserve the right to exclude stockholders from the Offer in any state in which it is asserted that the Offer cannot lawfully be made. We believe this exclusion is permissible under applicable laws and regulations, provided we make a good faith effort to comply with any law deemed applicable to the Offer.”
Item 12. Exhibits.
The Exhibit Index appearing after the signature page to this Schedule TO is incorporated by reference.
Item 13. Information Required by Schedule 13E-3.
Not applicable.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule TO is true, complete and correct.
Date: June 25, 2020 | LIGHTSTONE VALUE REAL ESTATE INVESTMENT TRUST, INC. |
| | | |
| | BY: | /s/ David Lichtenstein
|
| | | David Lichtenstein |
| | | Chief Executive Officer and Chairman of the Board |
EXHIBIT INDEX
| | | | Offer to Purchase dated June 15, 2020 | |
| | | | Letter of Transmittal | |
| | | | Odd Lot Certification Form | |
| | | | Letter of Custodians | |
| | | | Letter to Stockholders dated June 15, 2020 | |
| | | | Email to Financial Advisors | |
| | | | Amended and Restated Agreement of Limited Partnership of Lightstone Value Plus REIT LP (incorporated by reference to Exhibit 4.1 to Lightstone Value Plus Real Estate Investment Trust, Inc.’s Post-Effective Amendment No. 1 to its Registration Statement on Form S-11 (File No. 333-117367), filed with the Securities and Exchange Commission on May 23, 2005) | |
| | | | Advisory Agreement by and among Lightstone Value Plus Real Estate Investment Trust, Inc., Lightstone Value Plus REIT LP and Lightstone Value Plus REIT LLC (incorporated by reference to Exhibit 10.1 to Lightstone Value Plus Real Estate Investment Trust, Inc.’s Registration Statement on Form S-11 (File No. 333-166930), filed with the Securities and Exchange Commission on May 18, 2010) | |
| | | | Management Agreement, by and among Lightstone Value Plus Real Estate Investment Trust, Inc., Lightstone Value Plus REIT LP and Lightstone Value Plus REIT Management LLC (incorporated by reference to Exhibit 10.2 to Lightstone Value Plus Real Estate Investment Trust, Inc.’s Registration Statement on Form S-11 (File No. 333-166930), filed with the Securities and Exchange Commission on May 18, 2010) | |
| | | | Form of the Company’s Stock Option Plan (incorporated by reference to Exhibit 10.3 to Lightstone Value Plus Real Estate Investment Trust, Inc.’s Registration Statement on Form S-11 (File No. 333-166930), filed with the Securities and Exchange Commission on May 18, 2010) | |
| | | | Form of Indemnification Agreement by and between The Lightstone Group and the directors and executive officers of Lightstone Value Plus Real Estate Investment Trust, Inc. (incorporated by reference to Exhibit 10.4 to Lightstone Value Plus Real Estate Investment Trust, Inc.’s Registration Statement on Form S-11 (File No. 333-166930), filed with the Securities and Exchange Commission on May 18, 2010) | |
_________________
* Previously filed.
