UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO/A
(Amendment No. 4)
Tender
Offer Statement Under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
CREXUS INVESTMENT CORP.
(Name of Subject Company (Issuer))
CXS ACQUISITION CORPORATION
ANNALY CAPITAL MANAGEMENT, INC.
(Name of Filing Persons (Offerors))
Common Stock, par value $0.01
(Title of Class of Securities)
226553105
(CUSIP Number of Class of Securities)
R. Nicholas Singh, Esq.
Chief Legal Officer
Annaly Capital Management, Inc.
1211 Avenue of the Americas, Suite 2902
New York, New York
Tel: (212) 696-0100
Fax: (212) 696-9809
(Name, Address and Telephone Number of Person Authorized To Receive Notices and Communications on Behalf of the Filing Person)
Copy to:
David W. Bernstein, Esq.
K&L Gates LLP
599 Lexington Avenue
New York, NY 10022
|
Calculation of Filing Fee | |
| Transaction Valuation | Amount of Filing Fee |
| $875,829,120* |
$119,463**
|
|
* Calculated, in accordance with Rule 0-11(b)(1) on the basis of the cash to be paid if all securities being sought are purchased and the offer expires on April 16, 2013. | |
| ** Fee Previously Paid. | |
| S | Check 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: $119,463 | Filing party: Annaly Capital Management, Inc. | |
| Form or Registration No.: Schedule TO | Date Filed: March 18, 2013 |
| £ | 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:
| S | third-party tender offer subject to Rule 14d-1. | |
| £ | issuer tender offer subject to Rule 13e-4. | |
| S | 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). |
This Amendment No. 4 amends and supplements the Tender Offer Statement and Schedule 13E-3 Transaction Statement originally filed under cover of Schedule TO on March 18, 2013 (the “Schedule TO”) by Annaly Capital Management, Inc. (“Annaly”), a Maryland corporation, and CXS Acquisition Corporation (“Acquisition”), a Maryland corporation and a wholly-owned subsidiary of Annaly, and Amendment No. 1 to the Schedule TO (“Amendment No. 1”) filed on April 2, 2013, Amendment No. 2 to the Schedule TO (“Amendment No. 2”) filed on April 9, 2013, and Amendment No. 3 to the Schedule TO (“Amendment No. 3”) filed on April 11, 2013.
The Schedule TO relates to an offer (the “Offer”) by Acquisition to purchase all of the outstanding shares of common stock (“Common Stock”), par value $0.01 per share, of CreXus Investment Corp. (“CreXus”), a Maryland corporation, that Annaly does not already own for a purchase price per share of $13.00 plus a sum approximating a prorated portion of the dividend the tendering stockholder would have received with regard to the quarter during which the Offer expires, in cash net to the seller, but subject to any required withholding taxes. The terms of the Offer, and the conditions to which it is subject, are set forth in an Offer to Purchase dated March 18, 2013 (the “Offer to Purchase”), and the related Letter of Transmittal (the “Letter of Transmittal,” which together with the Offer to Purchase, as each of them may be amended, supplemented or modified from time to time, contain the terms of the Offer). All capitalized terms used in this Amendment No. 4 without definition have the meanings ascribed to them in the Offer to Purchase.
Except as otherwise set forth below, the information set forth in the Schedule TO, as amended by Amendments No. 1, 2, and 3, remains unchanged and is incorporated into this Amendment No. 4 by reference.
The items of the Schedule TO set forth below are supplemented and amended by this Amendment No. 4 as follows:
Item 1. Summary Term Sheet
The information incorporated by reference into Item 1 of the Schedule TO, as amended by Amendments No. 1, 2, and 3, is supplemented and amended by adding the following language:
The Offer expired at 5:00 PM, New York City time, on Tuesday, April 16, 2013, and was not extended. Acquisition does not intend to offer a subsequent offering period in connection with the Offer.
Based on information provided by American Stock Transfer & Trust Company LLC, the depositary for the Offer, a total of 55,225,336 shares of Common Stock had been validly tendered and not withdrawn, including 2,318,138 shares tendered by guaranteed delivery. This increased Annaly’s direct and indirect (through Acquisition) ownership of CreXus common stock to 64,753,114 shares, which is equal to 84.5% of the outstanding CreXus common stock.
Acquisition has accepted for payment all shares of Common Stock that were validly tendered and not properly withdrawn. Payment for those shares, at the rate of $13.05206 per share (the “Offer Price”), will be made promptly.
Acquisition has exercised its option (the “Percentage Increase Option”) to purchase, at the Offer Price, the number of newly-issued shares of CreXus Common Stock necessary for Acquisition to own one share more than 90% of the outstanding CreXus shares. Assuming that all the guaranteed deliveries are completed, Annaly will purchase through exercise of the Percentage Increase Option, 42,143,620 shares of CreXus Common Stock for a total purchase price of $550,061,057. Annaly will pay $421,436 of this in cash and will pay the remainder of the purchase price with a note that has the terms described in the Offer to Purchase under the caption “Special Factors—Section 4. Summary of the
| 1 |
Merger Agreement and Other Agreements.” The closing of the purchase by Acquisition of the option shares (the “Option Closing”) is expected to occur on April 22, 2013.
In order to enable Annaly to become the sole stockholder of CreXus, as promptly as practicable after the Option Closing, Acquisition will be merged with and into CreXus in a transaction in which each share of CreXus Common Stock that was not tendered, except shares owned by Annaly, Acquisition or their subsidiaries, will be converted into the right to receive $13.05206, in cash net to the seller, but subject to any required withholding taxes, and each outstanding share of Acquisition will become a share of the corporation that survives the Merger, which will result in Annaly’s becoming the sole stockholder of CreXus. Because Annaly will own, through Acquisition, more than 90% of the stock of CreXus, the merger will not have to be approved by the CreXus stockholders. If the CreXus Common Stock is still listed on the New York Stock Exchange when the Merger becomes effective, the Merger will result in the termination of that listing.
Item 4. Terms of the Transaction
The information incorporated by reference into Item 4 of the Schedule TO, as amended by Amendments No. 1, 2, and 3, is further supplemented and amended to add the information in Item 1 above.
Item 8. Interest in Securities of the Subject Company
The information incorporated by reference into Item 8 of the Schedule TO, as amended by Amendments No. 1, 2, and 3, is further amended to add the information in Item 1 above.
Item 12. Exhibits
Item 12 of the Schedule TO, as amended by Amendments No. 1, 2, and 3, is supplemented and amended by adding the following:
(a)(5)(ii) Press Release, dated April 17, 2013, issued by Annaly and CreXus
Item 13. Information Required by Schedule 13E-3
The information incorporated by reference into Item 4 of Schedule 13E-3, as amended by Amendments No. 1, 2, and 3, is further amended to add the information in Item 1 above.
The information in Item 8 of Schedule 13E-3, Fairness of the Transaction, is supplemented and amended by adding the following:
The Offer was not approved by the stockholders of CreXus or any other security holders.
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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.
April 17, 2013
| CXS ACQUISITION CORPORATION | ||||
| By: | /s/ R. Nicholas Singh | |||
| Name: | R. Nicholas Singh | |||
| Title: | Secretary | |||
| ANNALY CAPITAL MANAGEMENT, INC. | ||||
| By: | /s/ R. Nicholas Singh | |||
| Name: | R. Nicholas Singh | |||
| Title: | Chief Legal Officer | |||
| 3 |
EXHIBIT INDEX
| Exhibit No. | Description | |
| (a)(1)(i)* | Offer to Purchase, dated March 18, 2013 | |
| (a)(1)(ii)* | Letter of Transmittal (including general instructions for certification of taxpayer identification number on Form W-9) | |
| (a)(1)(iii)* | Notice of Guaranteed Delivery | |
| (a)(1)(iv)* | Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees | |
| (a)(1)(v)* | Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees | |
| (a)(1)(vi)* | Form of Summary Advertisement published in The NY Times | |
| (a)(1)(vii)* | Press Release, dated March 18, 2013, issued by Annaly | |
| (a)(5)(i)** | Notice from Information Agent to Brokers sent on April 11, 2013 | |
| (a)(5)(ii) | Press Release, dated April 17, 2013, issued by Annaly and CreXus | |
| (b) | None | |
| (c) | None | |
| (d) | None | |
| (f) | None | |
| (g) | None | |
| (h) | None |
| * | Previously filed with Schedule TO. |
| ** | Previously filed with Amendment No. 3 to Schedule TO. |
Annaly and CreXus Announce Final Results of Annaly Tender Offer
Company Release - 04/17/2013 08:47
NEW YORK — (BUSINESS WIRE) — Annaly Capital Management, Inc. (NYSE:NLY) (“Annaly”) and CreXus Investment Corp. (NYSE:CXS) (“CreXus”) today announced the final results of the tender offer (the “Offer”), which commenced on March 18, 2013 and expired at 5:00 PM ET on April 16, 2013, whereby through a newly formed subsidiary, CXS Acquisition Corporation (“Acquisition”), Annaly offered to purchase all the shares of CreXus that Annaly does not already own. Annaly has accepted for purchase 55,225,336 shares of CreXus’ common stock at a purchase price of $13.05206 per share, for an aggregate cost of approximately $720.8 million, excluding fees and expenses relating to the Offer. The 55,225,336 shares accepted for purchase in the tender offer increase Annaly’s direct and indirect ownership to approximately 84.5% of CreXus’ common stock.
The final Offer price of $13.05206 per share consists of a price per share of $13.00 plus a payment in lieu of a prorated CreXus dividend of $0.05206 for the period from March 29, 2013 through April 16, 2013 (the date the Offer expired). The payment in lieu of a prorated dividend is based on the dividend of $0.25 per share that CreXus paid to holders of record on March 28, 2013, the calendar quarter immediately before the date the Offer expired.
“The expiration of this tender offer and anticipated subsequent closing of a merger between Annaly and CreXus is a meaningful next step in the evolution of Annaly’s capital allocation strategy,” said Wellington J. Denahan, Annaly’s Chairman and Chief Executive Officer. “We estimate that this acquisition will be accretive to the 2013 dividend, and the true benefits to the Annaly shareholder will be further realized as we continue to build upon our existing commercial real estate platform.”
Annaly has exercised its option, per the merger agreement, to purchase, for the same per share price that Annaly is paying for shares that were tendered in response to the Offer, additional shares directly from CreXus that will increase the number of shares Annaly directly or indirectly owns to 90% of the outstanding shares of CreXus’ common stock.
Annaly intends to complete the acquisition of CreXus through what is known as a “short-form merger”, that is, without a vote or meeting of CreXus’ remaining shareholders. In the merger, each of the remaining shares of CreXus common stock will be converted into the right to receive $13.05206 per share, less any withholding taxes, in cash and without interest, which is the same amount per share that was paid in the tender offer. The merger is expected to close on May 23 following a 30 day notice period.
The Information Agent with regard to the offer is Innisfree M&A Incorporated, American Stock Transfer & Trust Company LLC is the Depositary, and BofA Merrill Lynch is the Dealer Manager.
Forward-Looking Statements
This news release and our public documents to which we refer contain or incorporate by reference certain forward-looking statements which are based on various assumptions (some of which are beyond our control) may be identified by reference to a future period or periods or by the use of forward-looking terminology, such as “may,” “will,” “believe,” “expect,” “anticipate,” “continue,” or similar terms or variations on those terms or the negative of those terms. Actual results could differ materially from those set forth in forward-looking statements due to a variety of factors, including, but not limited to, changes in interest rates; changes in the yield curve; changes in prepayment rates; the availability of mortgage-backed securities for purchase; the availability of financing and, if available, the terms of any financings; changes in the market value of our assets; changes in business conditions and the general economy; our ability to consummate the transaction and integrate the commercial mortgage business; our ability to consummate any contemplated investment opportunities; risks associated with the businesses of our subsidiaries, including the investment advisory business of our wholly-owned subsidiaries, including: the removal by clients of assets managed, their regulatory requirements, and competition in the investment advisory business; risks associated with the broker-dealer business of our wholly-owned subsidiary; changes in government regulations affecting our business; our ability to maintain our qualification as a REIT for federal income tax purposes; and our ability to maintain our exemption from registration under the Investment Company Act of 1940, as amended. For a discussion of the risks and uncertainties which could cause actual results to differ from those contained in the forward-looking statements, see “Risk Factors” in our most recent Annual
Report on Form 10-K and any subsequent Quarterly Reports on Form 10-Q. We do not undertake, and specifically disclaim any obligation, to publicly release the result of any revisions which may be made to any forward-looking statements to reflect the occurrence of anticipated or unanticipated events or circumstances after the date of such statements.
Annaly Capital Management, Inc.
Investor Relations
1-888-8Annaly
www.annaly.com
Source: Annaly Capital Management, Inc.