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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE TO
(RULE 14D-100)
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 3)
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ACADIA REALTY TRUST
(Name of Subject Company (Issuer))
ACADIA REALTY TRUST (OFFEROR)
(Names of Filing Persons (Identifying Status as Offeror, Issuer or Other Person)
Common Shares of Beneficial Interest, $0.001 par value per share
(including common units of limited partnership interests in Acadia Realty
Limited Partnership convertible into Acadia Realty
Trust Common Shares of Beneficial Interest)
(Title of Class of Securities)
004239109
(CUSIP Number of Class of Securities)
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Jon Grisham
Vice President
Acadia Realty Trust
20 Soundview Marketplace
Port Washington, NY 11050
(516) 767-8830
(Name, address, and telephone numbers of person authorized to receive
notices and communications on behalf of filing persons)
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With a copy to:
Mark Schonberger, Esq.
Paul, Hastings, Janofsky & Walker LLP
399 Park Avenue
New York, NY 10022
(212) 318-6000
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Transaction valuation* Amount of Filing Fee**
$34,999,997 $6,999.99
* Estimated solely for the purpose of determining the filing fee. This amount
assumes the purchase of 5,384,615 common shares, $.001 par value per share,
at the maximum tender offer price of $6.50 per share in cash. The amount of
the filing fee, calculated in accordance with Rule 0-11 under the
Securities Exchange Act of 1934, as amended, equals 1/50 of one percent of
the aggregate of the cash offered by the Offeror.
** 6,219.99 Previously paid.
|_| 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: Form or Registration No.
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Filing Party: Date Filed:
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|_| 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:
|X| issuer tender offer subject to Rule 13e-4.
|_| third-party tender offer subject to Rule 14d-1.
|_| amendment to Schedule 13D under Rule 13d-2.
|_| going-private transaction subject to Rule 13e-3.
Check the following box if the filing is a final amendment reporting the results
of the tender offer: |_|
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Introduction
This Amendment No. 3 to the Issuer Tender Offer Statement on Schedule TO
relates to the tender offer by Acadia Realty Trust, a Maryland real estate
investment trust ("Acadia" or the "Company"), to purchase up to 4,784,615 of its
Common Shares of Beneficial Interest (including common units of limited
partnership interest convertible into our common shares), par value $.001 per
share ("Shares"). Acadia is offering to purchase these Shares at a price not
greater than $6.50 nor less than $6.05 per Share, net to the seller in cash,
upon the terms and subject to the conditions described in the Offer to Purchase,
dated December 20, 2001 ("Offer to Purchase"), and related Letter of
Transmittal, which, as amended or restated from time to time, together
constitute the "Offer."
The information in the Offer to Purchase and the related Letter of
Transmittal, copies of which were previously filed with the Schedule TO as
Exhibit 99.a(1)(i) and Exhibit 99.a(1)(ii), respectively, is incorporated in
this Amendment No. 3 to Schedule TO by reference.
Item 1. Summary Term Sheet.
1. The answer to the question "How many Shares will Acadia purchase?" in
the "Summary" section of the Offer to Purchase is hereby amended and
restated to replace the number "4,784,615" with the number "5,384,615."
2. The twelfth question and related answer in the "Summary" section of the
Offer to Purchase are hereby amended and restated to read as follows:
Has any executive officer or trustee indicated an intention to
tender Shares in the Offer?
Yes. Ross Dworman, the Chairman of our Board of Trustees and
former Chief Executive Officer, has indicated an intention to
tender 600,000 Shares at a price determined by the modified Dutch
auction. See Section 9.
Item 4. Terms of the Transaction.
1. The front cover page, the "Introduction" section, Section 1, Section 5
and Section 6 of the Offer to Purchase are hereby amended to replace,
wherever they appear, the number "4,784,615" with the number
"5,384,615."
2. The language from the second sentence of the fifth paragraph until the
end of the fifth paragraph in the "Introduction" section of the Offer to
Purchase is hereby amended and restated to read as follows:
The 5,384,615 Shares that we are offering to purchase represent
approximately 18.8% of the Shares outstanding (or 15.9% if all of
the Units were converted to Shares outstanding) as of December
20, 2001.
3. The second sentence of the first paragraph in Section 9 of the Offer to
Purchase is hereby amended and restated to read as follows:
With the exception of Ross Dworman, who has indicated an
intention to tender 600,000 Shares at a price determined by the
modified Dutch auction, no executive officers or trustees have
indicated an intention to tender Shares in the Offer and no
Shares are to be purchased from any executive officer or trustee
in the Offer.
4. Item 4 of the Schedule TO is hereby amended by inserting the following
language:
The Expiration Date of the Offer has been extended from 11:59
P.M., New York City time, on Tuesday, January 22, 2002, until
11:59 P.M., New York City time, on Friday, February 1, 2002.
Accordingly, the Offer will expire at 11:59 P.M., New York City
time, on Friday, February 1, 2002, unless Acadia extends the
Offer further.
Item 8. Interest in Securities of the Subject Company.
1. Section 9 of the Offer to Purchase is hereby amended by inserting the
following language immediately after the second sentence of the first
paragraph:
Neither we nor, to the best of our knowledge, any of our
affiliates, trustees or executive officers, or any of the
executive officers or trustees of our affiliates, is a party to
any contract, arrangement, understanding or relationship with any
other person relating, directly or indirectly, to the Offer with
respect to the Shares (including, but not limited to, any
contract, arrangement, understanding or relationship concerning
the transfer or the voting of any such securities, joint
ventures, loan or option arrangements, puts or calls, guaranties
of loans, guaranties against loss or the giving or withholding of
proxies, consents or authorizations).
2. Section 9 of the Offer to Purchase is hereby amended by deleting the
subsection captioned "Arrangement with Mr. Dworman with Respect to the
Shares" in its entirety.
Item 10. Financial Statements.
1. The first sentence of the subsection captioned "Summary Unaudited Pro
Forma Financial Information" in Section 12 of the Offer to Purchase is
hereby amended by deleting the words "and the agreement with Mr.
Dworman."
Item 11. Additional Information.
1. The fourth sentence of the second paragraph in Section 10 of the Offer
to Purchase is hereby amended and restated in its entirety to read as
follows:
Since announcing our disposition plan, we have sold six non-core
assets: a major mixed office/retail property in Florida, two
large residential complexes in Maryland, one retail property in
South Carolina and two retail properties in Pennsylvania.
2. The third paragraph in Section 10 of the Offer to Purchase is hereby
amended and restated in its entirety to read as follows:
We are in various stages of the disposition process with respect
to the remaining 22 non-core assets, including a 17 property
portfolio currently under contract for sale which secures a
cross-collateralized loan.
3. The first sentence of the fourth paragraph in Section 10 of the Offer to
Purchase is hereby deleted in its entirety.
4. The second and third sentences of the fourth paragraph in Section 10 of
the Offer to Purchase are hereby amended and restated in their entirety
to read as follows:
The sale of one of the residential complexes has generated
considerable taxable gain, which will be partially offset by a
taxable loss on the sale of one of the retail properties in
Pennsylvania. We currently believe that we will be required under
the tax laws to make a distribution in excess of our historical
distribution of between $0.20 to $0.35 per Share.
2
5. The first and second sentences of the fifth paragraph in Section 10 of
the Offer to Purchase are hereby amended and restated in their entirety
to read as follows:
The executed contract to sell our 17 property portfolio is
conditioned upon the buyer obtaining our lender's consent to the
assumption of the existing loan secured by the properties.
6. Section 10 of the Offer to Purchase is hereby amended by deleting the
last bullet-point of the subsection captioned "Benefits of the Offer,"
and by deleting the words "and our agreement to purchase Shares from Mr.
Dworman" in the first sentence and replacing the words "and the Dworman
share purchase" with the word "is"in the last sentence of the first
bullet-point of the subsection captioned "Risks of the Offer."
7. Item 11 of the Schedule TO is hereby amended by inserting the following
language:
On January 18, 2002, Acadia issued a press release announcing the
extension of the tender offer, the increase by 600,000 in the
number of Shares it is offering to purchase in the tender offer,
the termination of the Stock Purchase Agreement with Ross Dworman
and Ross Dworman's intention to tender 600,000 Shares in the
Offer at the price determined by the modified Dutch auction. The
press release is filed as Exhibit 99.a(5)(ii) to this Amendment
No. 3 to Schedule TO and is incorporated herein by reference.
Item 12. Exhibits.
The Stock Purchase Agreement, dated December 14, 2001 between Acadia and
Ross Dworman, filed as Exhibit 99.d, has been terminated.
Item 12 of the Schedule TO is hereby amended by adding Exhibits
99.a(5)(ii) and 99.d(2) filed herewith.
Exhibit
Number Description
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99.a(5)(ii) Press Release issued by the Company on January 18, 2002.
99.d(2) Stock Purchase Agreement Termination, dated January 18,
2002, by the Company and Ross Dworman.
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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.
/s/ Kenneth F. Bernstein
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Kenneth F. Bernstein
Chief Executive Officer and
President
Date: January 18, 2002
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EXHIBIT INDEX
Exhibit
Number Description
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99.a(1)(i) Offer to Purchase, dated December 20, 2001.*
99.a(1)(ii) Letter of Transmittal.*
99.a(1)(iii) Notice of Guaranteed Delivery.*
99.a(1)(iv) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.*
99.a(1)(v) Letter to Clients for use by Brokers, Dealers,
Commercial Banks, Trust Companies and Other
Nominees.*
99.a(1)(vi) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.*
99.a(1)(vii) Letter to Acadia Shareholders from Kenneth F. Bernstein,
President and Chief Executive Officer, dated December
20, 2001.*
99.a(1)(viii) Conditional Letter of Conversion.*
99.a(5)(i) Press Release issued by the Company on December 20,
2001.*
99.a(5)(ii) Press Release issued by the Company on January 18,
2002.**
99.b(i) Term Loan Agreement dated as of December 28, 2001, among
Fleet National Bank and RD Branch Associates, L.P.,
et al.*
99.b(ii) Term Loan Agreement dated as of December 21, 2001, among
RD Woonsocket Associates Limited Partnership, et al.
and The Dime Savings Bank of New York, FSB.*
99.d(2) Stock Purchase Agreement Termination, dated January 18,
2002, by the Company and Ross Dworman.**
(g) Not applicable.
(h) Not applicable.
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* Previously filed.
** Filed herewith.
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Exhibit 99.a(5)(ii)
For Immediate Release
Contact:
Jon Grisham, Investor Relations
(516) 767-8830
Acadia Realty Trust Announces it is Increasing its "Dutch Auction" Tender Offer
to 5,384,615 Shares and Extending the Tender Offer Period to 11:59 P.M.,
Eastern Time on February 1, 2002
New York, NY (January 18, 2002) - Acadia Realty Trust (NYSE: AKR), a
fully integrated shopping center and real estate investment trust, today
announced that it is extending the tender offer period for its modified Dutch
auction tender offer from 11:59 P.M. Eastern time, on January 22, 2002, until
11:59 P.M. Eastern time, on February 1, 2002.
Acadia also announced that in lieu of a separate agreement to sell his
common shares and operating partnership units which are convertible into common
shares (in combination "Shares"), Ross Dworman, Chairman of Acadia's Board of
Directors, will tender 600,000 Shares pursuant to the terms of the tender offer
at the price determined by the modified Dutch auction. Accordingly, Acadia has
terminated the agreement for the separate purchase of up to 600,000 of Ross
Dworman's Shares and has amended the tender offer to increase by 600,000 the
number of Shares it is offering to purchase (from 4,784,615 to 5,384,615).
Kenneth M. Bernstein, Acadia's President and Chief Executive Officer,
said "There appeared to be concern about Mr. Dworman selling his shares to the
company outside the formal tender offer. To address those concerns we have made
these changes."
The total amount of funds required to purchase 5,384,615 Shares, the new
maximum number of Shares sought in the offer, at $6.50 per share, is $35
million. The maximum number of Shares sought is approximately 16% of the Shares
outstanding.
Acadia commenced the tender offer on December 20, 2001, when it offered
to purchase for cash up to 4,784,615 of its Shares, subject to the terms and
conditions set forth in the Offer to Purchase dated December 20, 2001 and the
related Letter of Transmittal. The terms of the tender offer include a purchase
price for each tendered Share of not more than $6.50 nor less than $6.05 net to
the seller in cash, without interest.
As of January 17, 2002, 2,790,000 Shares have been tendered to Acadia in
the offer (not including 600,000 Shares that Mr. Dworman will tender). On
December 19, 2001, the last trading day prior to the announcement of the tender
offer, the New York Stock Exchange closing price for Acadia common shares was
$6.26. On January 18, 2002 the closing price was $6.32 per share.
While Acadia's Board of Trustees has approved this tender offer, neither
Acadia nor its Board of Trustees is making any recommendation to shareholders as
to whether to tender or refrain from tendering their Shares or as to the price
or prices at which they may choose to tender
their Shares. Shareholders must make their own decision as to whether to tender,
how many Shares to tender and the price or prices at which such Shares should be
tendered.
Acadia Realty Trust, headquartered on Long Island, NY, is a
self-administered equity real estate investment trust structured as an UPREIT,
which specializes in the operation, management, leasing, renovation and
acquisition of shopping centers properties. The Company currently owns and
operates 53 properties totaling approximately 10 million square feet, primarily
in the eastern half of the United States. Acadia's principal executive offices
are located in Port Washington, New York, with a corporate office located in
Manhattan.
This press release is for informational purposes only and is not an
offer to buy or the solicitation of an offer to sell any Shares. The offer is
being made solely by the Offer to Purchase and related Letter of Transmittal.
Investors are urged to read Acadia's tender offer statement on Schedule TO filed
with the SEC in connection with Acadia's Dutch auction tender offer, which
includes as an exhibit the Offer to Purchase and Letter of Transmittal, as well
as any amendments or supplements to the statement when they become available,
because they contain important information. Each of these documents has been or
will be filed with the SEC and investors may obtain them for free from the SEC
at the SEC's website (www.sec.gov) or from MacKenzie Partners, Inc., the
information agent for the tender offer, by directing such request to MacKenzie
Partners, Inc., 156 Fifth Avenue, New York, NY 10010, telephone (800) 322-2885.
Certain matters in this press release may constitute forward-looking
statements and as such may involve known and unknown risk, uncertainties and
other factors which may cause the actual results, performances or achievements
of Acadia to be materially different from any future results, performances or
achievements expressed or implied by such forward-looking statements. Such
forward-looking statements speak only as of the date of this document. Acadia
does not undertake to update publicly any forward looking statements, whether as
a result of new information, future events or otherwise.
For more information on Acadia Realty Trust visit Acadia Realty Trust's
Web site at www.acadiarealty.com
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Exhibit 99.d(2)
STOCK PURCHASE AGREEMENT TERMINATION
STOCK PURCHASE AGREEMENT TERMINATION, dated January 18, 2002, by
and between Acadia Realty Trust, a Maryland real estate investment trust, and
Ross Dworman.
Acadia Realty Trust, a Maryland real estate investment trust, and
Ross Dworman hereby terminate the Stock Purchase Agreement, dated December 14,
2001, between Acadia Realty Trust and Ross Dworman and all obligations of the
parties thereunder shall terminate without any liability of either party to the
other.
IN WITNESS WHEREOF, the parties have executed this Stock Purchase
Agreement Termination and caused the same to be duly delivered on their behalf
as of the date first written above.
Acadia Realty Trust
By: /s/ Kenneth F. Bernstein
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Name: Kenneth F. Bernstein
Title: President and Chief Executive
Officer
/s/ Ross Dworman
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Ross Dworman