As filed with the Securities and Exchange Commission on February 22, 2018
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Amendment No. 1
to
to
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
OF THE SECURITIES EXCHANGE ACT OF 1934
AMERICAN REALTY CAPITAL NEW YORK CITY REIT, INC.
(Name of Subject Company (Issuer) and Filing Person (Offeror))
Common Stock, $0.01 par value per share
(Title of Class of Securities)
(Title of Class of Securities)
02918L100
(CUSIP Number of Class of Securities)
(CUSIP Number of Class of Securities)
Edward M. Weil, Jr.
Executive Chairman, Chief Executive Officer, President, and Secretary
American Realty Capital New York City REIT, Inc.
405 Park Avenue, 4th Floor
New York, New York 10022
(212) 415-6500
(Name, address, and telephone number of person authorized to receive notices
and communications on behalf of filing persons)
Executive Chairman, Chief Executive Officer, President, and Secretary
American Realty Capital New York City REIT, Inc.
405 Park Avenue, 4th Floor
New York, New York 10022
(212) 415-6500
(Name, address, and telephone number of person authorized to receive notices
and communications on behalf of filing persons)
With copies to:
| Peter M. Fass, Esq. Proskauer Rose LLP Eleven Times Square New York, New York 10036 (212) 969-3000 | | | Michael J. Choate, Esq. Proskauer Rose LLP Three First National Plaza 70 West Madison, Suite 3800 Chicago, Illinois 60602 (312) 962-3567 | |
CALCULATION OF FILING FEE
| | | | | | | |
Transaction Valuation: | | | Amount of Filing Fee: | | |||
$27,248,000(a) | | | | $ | 3,395.00(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 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory No. 1 for Fiscal Year 2018, equals $124.50 per million dollars of the aggregate 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: | | | $3,735.00 | | | Filing Party: | | | American Realty Capital New York City REIT, Inc. | |
| Form or Registration No.: | | | 005-90261 | | | Date Filed: | | | February 6, 2018 | |
☐
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
This Amendment No. 1 (“Amendment No. 1”) amends and supplements the Tender Offer Statement on Schedule TO originally filed with the Securities and Exchange Commission (the “SEC”) on February 6, 2018 (as amended by Amendment No. 1, the “Schedule TO”). This Schedule TO relates to the offer by American Realty Capital New York City REIT, Inc., a Maryland corporation (the “Company”), to purchase up to 1,600,000 shares of the Company’s common stock, par value $0.01 per share (the “Shares”), at a purchase price equal to $17.03 per Share, net to the seller in cash, less any applicable withholding taxes and without interest and 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, 2% of the Company’s outstanding Shares (resulting in a commensurate increase in the dollar volume by up to approximately $9.7 million) without amending or extending the offer in accordance with rules promulgated by the Securities and Exchange Commission. The Company’s offer is being made upon the terms and subject to the conditions set forth in the Offer to Purchase, dated February 6, 2018 (the “Original Offer to Purchase”), as amended and supplemented by Amendment and Supplement No. 1 thereto, dated February 22, 2018 (“Supplement No. 1” and, together with the Original Offer to Purchase, as the same may be further amended or supplemented from time to time, 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.” Supplement No. 1 amends the Original Offer to Purchase such that the purchase price per Share in the Offer was increased from $15.50 to $17.03, the expiration date of the Offer was extended from March 6, 2018 to March 20, 2018 and the number of Shares the Company is offering to purchase was decreased from 1,935,484 to 1,600,000.
A copy of the Original Offer to Purchase was previously filed with this Schedule TO as Exhibit (a)(1)(A and copies of Supplement No. 1 and the Letter of Transmittal are attached to this Schedule TO as Exhibits (a)(1)(E) and (a)(1)(F), respectively. This 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 “Exchange Act”).
Items 1 through 9.
The information in the Offer to Purchase and the related Letter of Transmittal is incorporated by reference in answer to Items 1 through 9 of this Schedule TO.
Item 10. Financial Statements.
Not applicable. Pursuant to Instruction 2 to Item 10 of Schedule TO, the Company’s financial statements are not considered material because (i) the consideration consists solely of cash, (ii) the Offer is not subject to any financing condition, and (iii) the Company is a public reporting company under Section 13(a) of the Exchange Act that files reports electronically on EDGAR.
Item 11. Additional Information.
The information in the Offer to Purchase and the related Letter of Transmittal is incorporated by reference in answer to Item 11 of this Schedule TO.
Item 12. Exhibits.
The Exhibit Index appearing after the signature page hereto is incorporated herein 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 statement is true, complete and correct.
Date: February 22, 2018
American Realty Capital New York City REIT, Inc.
By:
/s/ Edward M. Weil, Jr.
Edward M. Weil, Jr.
Executive Chairman, Chief Executive Officer,
President, and Secretary
Executive Chairman, Chief Executive Officer,
President, and Secretary
EXHIBIT INDEX
| | | | ||
| (a)(1)(A)* | | | Offer to Purchase, dated February 6, 2018 | |
| (a)(1)(B)* | | | Original Letter of Transmittal | |
| (a)(1)(C)* | | | Notice of Withdrawal | |
| (a)(1)(D) | | | Current Report on Form 8-K filed with the SEC on February 6, 2018, incorporated herein by reference | |
| (a)(1)(E)** | | | Amendment and Supplement No. 1 to Offer to Purchase, dated February 22, 2018 | |
| (a)(1)(F)** | | | Amended Letter of Transmittal | |
| (a)(2)(A) | | | Letter to Stockholders dated February 6, 2018 (incorporated by reference to Exhibit (a)(2) to the Company’s Schedule 14D-9, as filed by the Company with the SEC on February 6, 2018) | |
| (a)(2)(B) | | | Schedule 14D-9 filed by the Company with the SEC on February 6, 2018, incorporated herein by reference | |
| (a)(2)(C) | | | Letter to Stockholders dated February 22, 2018 (incorporated by reference to Exhibit (a)(5) to the Company’s Schedule 14D-9/A, as filed by the Company with the SEC on February 22, 2018) | |
| (a)(2)(D) | | | Press Release, dated February 22, 2018 (incorporated by reference to Exhibit (a)(6) to the Company’s Schedule 14D-9/A, as filed by the Company with the SEC on February 22, 2018) | |
| (a)(2)(E) | | | Schedule 14D-9/A filed by the Company with the SEC on February 22, 2018, incorporated herein by reference | |
| (d)(A) | | | Agreement of Limited Partnership of New York City Operating Partnership, L.P., dated as of April 24, 2014 (incorporated by reference to Exhibit 4.1 to the Company’s Quarterly Report on Form 10-Q, as filed by the Company with the SEC on August 14, 2014) | |
| (d)(B) | | | First Amendment to Agreement of Limited Partnership of New York City Operating Partnership, L.P., dated as of November 5, 2015 (incorporated by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q, as filed by the Company with the SEC on November 16, 2015) | |
| (d)(C) | | | Amended and Restated Advisory Agreement, dated as of June 26, 2015, by and among American Realty Capital New York City REIT, Inc., New York City Operating Partnership, L.P. and New York City Advisors, LLC (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, as filed by the Company with the SEC on June 26, 2015) | |
| (d)(D) | | | First Amendment to Amended and Restated Advisory Agreement, dated as of November 5, 2015, among American Realty Capital New York City REIT, Inc., New York City Operating Partnership, L.P. and New York City Advisors, LLC (incorporated by reference to Exhibit 10.2 to the Company’s Annual Report on Form 10-K, as filed by the Company with the SEC on March 15, 2016) | |
| (d)(E) | | | Property Management and Leasing Agreement, dated as of April 24, 2014, by and among American Realty Capital New York City REIT, Inc., New York City Operating Partnership, L.P. and New York City Properties, LLC (incorporated by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q, as filed by the Company with the SEC on August 14, 2014) | |
| (d)(F) | | | Amended and Restated Employee and Director Incentive Restricted Share Plan of American Realty Capital New York City REIT, Inc. (incorporated by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q, as filed by the Company with the SEC on November 13, 2017) | |
| (d)(G) | | | Indemnification Agreement, dated as of December 31, 2014, between the Company and certain directors, officers and service providers (incorporated by reference to Exhibit 10.8 to the Company’s Pre-Effective Amendment No. 1 to Post-Effective Amendment No. 4 to Form S-11, as filed by the Company with the SEC on January 6, 2015) | |
| (d)(H) | | | Indemnification Agreement, dated as of February 17, 2016, between the Company and Lee M. Elman (incorporated by reference to Exhibit 10.14 to the Company’s Annual Report on Form 10-K, as filed by the Company with the SEC on March 15, 2016) | |
| (d)(I) | | | Indemnification Agreement between the Company and Katie P. Kurtz, dated as of November 13, 2017 (incorporated by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q, as filed by the Company with the SEC on November 13, 2017) | |
| (d)(J) | | | Form of Restricted Stock Award Agreement (incorporated by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q, as filed by the Company with the SEC on August 12, 2016) | |
| (d)(K) | | | Second Amended and Restated Share Repurchase Program (incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K, as filed by the Company with the SEC on June 14, 2017) | |
| (d)(L) | | | Amended and Restated Distribution Reinvestment Plan (incorporated by reference to Appendix A to the Company’s Registration Statement on Form S-3D, as filed by the Company with the SEC on May 22, 2015) | |
*
Previously filed with this Schedule TO
**
Filed herewith.