SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(AMENDMENT NO. 3)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
Five Star Quality Care, Inc.
(Name of Subject Company (Issuer))
ABP Acquisition LLC
(Names of Filing Persons (Offerors))
ABP Trust
Adam D. Portnoy
Barry M. Portnoy
(Names of Filing Persons (other persons))
| Common Stock, par value $.01 per share (Titles of classes of securities) |
33832D106 (CUSIP number of class of securities) |
Adam D. Portnoy
ABP Acquisition LLC
Two Newton Place, 255 Washington Street, Suite 300
Newton, Massachusetts 02458-1634
(617) 928-1300
(Name, address and telephone number of person authorized
to receive notices and communications on behalf of the filing person)
Copies to:
Margaret R. Cohen, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
500 Boylston Street
Boston, Massachusetts 02116
(617) 573-4800
CALCULATION OF FILING FEE
| Transaction Valuation* |
Amount of Filing Fee** |
|
|---|---|---|
| $54,000,000.00 | $6,258.60 | |
| Amount Previously Paid: | $6,258.60 | Filing Party: | ABP Acquisition LLC | |||
| Form or Registration No. | Schedule TO-T | Date Filed: | October 6, 2016 | |||
| Schedule TO-T/A | October 27, 2016 |
Check the appropriate boxes below to designate any transactions to which the statement relates:
Check the following box if the filing is a final amendment reporting the results of the tender offer: o
This Amendment No. 3 to the Tender Offer Statement on Schedule TO (this "Amendment No. 3") amends and supplements the Tender Offer Statement on Schedule TO filed with the U.S. Securities and Exchange Commission (the "Commission") on October 6, 2016, as previously amended and supplemented (the "Schedule TO") by ABP Acquisition LLC, a Maryland limited liability company ("Purchaser"), and the other bidders thereto. The Schedule TO relates to the offer by Purchaser to purchase up to 18,000,000 of the issued and outstanding shares of common stock, par value $.01 per share ("Shares"), of Five Star Quality Care, Inc., a Maryland corporation ("FVE"), at the current offering price of $3.00 per Share, net to the seller in cash, without interest and less any required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase dated October 6, 2016, as amended and supplemented by the Amendment and Supplement to the Offer to Purchase dated October 27, 2016 (as each may be further amended or supplemented from time to time, the "Offer to Purchase") and the related Letter of Transmittal for Shares.
Except as specifically provided herein, the information contained in the Schedule TO and the Offer to Purchase remains unchanged and this Amendment No. 3 does not modify any of the information previously reported on the Schedule TO. This Amendment No. 3 should be read in conjunction with the Schedule TO, the Offer to Purchase and the Letter of Transmittal.
Item 7. Source and Amount of Funds or Other Consideration
Item 7(a) of the Schedule TO and the information set forth in the Offer to Purchase under Section 14, entitled "Source and Amount of Funds" at the end of the third full paragraph, are each amended and supplemented by adding the following new sentence:
At September 30, 2016, ABP Trust had cash and cash equivalents of $239 million.
Item 11. Additional Information
Item 11(c) of the Schedule TO and the information set forth in the Offer to Purchase under Section 12, entitled "Relationships, Agreements and Transactions With FVE or its Affiliates; Plans for FVE" at the end of the fifth full paragraph, are each amended and supplemented by adding the following new sentences:
On October 28, 2016, an affiliate of William and Robert Thomas sent a letter to an affiliate of Purchaser requesting a waiver of certain provisions under the lease agreement pursuant to which FVE leases its headquarters in connection with the stated intention of William and Robert Thomas to seek the election of a director candidate to FVE's board of directors. The affiliate's response letter dated November 1, 2016 states that it will take no action regarding such request at this time.
The foregoing description of such letters is not complete and is subject to and qualified in its entirety by reference to the full text of such letters, which are attached as Exhibit (a)(1)(N) to this Amendment No. 3, and which are incorporated herein by reference.
Item 12 of the Schedule TO is hereby amended and supplemented to add the following exhibit:
| (a)(1)(N) | Letter dated November 1, 2016 from 400 Centre Street LLC to Gemini Properties, including the attachment thereto. |
2
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: November 3, 2016
ABP Acquisition LLC |
||||||
By: |
/s/ ADAM D. PORTNOY |
|||||
| Name: | Adam D. Portnoy | |||||
| Title: | President | |||||
ABP Trust |
||||||
By: |
/s/ ADAM D. PORTNOY |
|||||
| Name: | Adam D. Portnoy | |||||
| Title: | President | |||||
Adam D. Portnoy |
||||||
/s/ ADAM D. PORTNOY |
||||||
Barry M. Portnoy |
||||||
/s/ BARRY M. PORTNOY |
||||||
3
| (a)(1)(A) | Offer to Purchase, dated as of October 6, 2016.* | |
(a)(1)(B) |
Letter of Transmittal for Shares.* |
|
(a)(1)(C) |
Letter to Brokers, Dealers, Banks, Trust Companies and other Nominees.* |
|
(a)(1)(D) |
Letter to Clients for use by Brokers, Dealers, Banks, Trust Companies and other Nominees.* |
|
(a)(1)(E) |
Press Release issued by ABP Acquisition LLC on October 3, 2016 (incorporated by reference to the Schedule TO-C filed by ABP Acquisition LLC on October 3, 2016). |
|
(a)(1)(F) |
Consent, Standstill, Registration Rights and Lock-Up Agreement, dated as of October 2, 2016, by and among Five Star Quality Care, Inc., ABP Trust, ABP Acquisition LLC, Barry M. Portnoy and Adam D. Portnoy.* |
|
(a)(1)(G) |
Consent Agreement, dated as of October 2, 2016, by and among Senior Housing Properties Trust, ABP Trust, ABP Acquisition LLC, Barry M. Portnoy and Adam D. Portnoy.* |
|
(a)(1)(H) |
Amendment and Supplement to the Offer to Purchase, dated as of October 27, 2016.** |
|
(a)(1)(I) |
Revised Letter of Transmittal for Shares.** |
|
(a)(1)(J) |
Revised Letter to Brokers, Dealers, Banks, Trust Companies and other Nominees.** |
|
(a)(1)(K) |
Revised Letter to Clients for use by Brokers, Dealers, Banks, Trust Companies and other Nominees.** |
|
(a)(1)(L) |
Press Release issued by ABP Acquisition LLC on October 28, 2016.*** |
|
(a)(1)(M) |
Letter Agreement regarding execution and expense reimbursement of Credit Facility Letter Waiver and Consent, dated October 21, 2016 , by and among Five Star Quality Care, Inc., ABP Trust, ABP Acquisition LLC, Barry M. Portnoy and Adam D. Portnoy.** |
|
(a)(1)(N) |
Letter dated November 1, 2016 from 400 Centre Street LLC to Gemini Properties, including the attachment thereto. |
4
400
Centre Street LLC
255 Washington Street, Suite 300
Newton, MA 02458
November 1, 2016
Gemini
Properties
1516 South Boston Avenue, Suite 301
Tulsa, OK 74119
Attn: Mr. Robert D. Thomas
Dear Mr. Thomas:
400 Centre Street LLC has your letter, dated October 28, 2016 (a copy of which is attached), requesting that we waive a default under a lease agreement with Five Star Quality Care, Inc. ("Five Star") that may result from the election of any individual to the Board of Directors of Five Star not nominated or appointed by the Five Star Board.
Your letter states that you "intend" to seek the election of a director. However, your letter provides no information about the identity of the intended nominee, his or her qualifications, the nominating shareholder, the plans of the intended nominee and nominating shareholder for Five Star, or anything else for that matter. As a result, 400 Centre Street LLC will take no action regarding your request at this time.
400 Centre Street LLC reserves its right to take appropriate action when and if you provide relevant information.
| Very truly yours, | ||
/s/ Jacqueline S. Anderson |
||
Jacqueline S. Anderson Assistant Secretary |
JSA:ccb
Enclosure
GEMINI PROPERTIES
1516 South Boston Avenue, Suite 301
Tulsa, Oklahoma 74119
October 28, 2016
400
Centre Street LLC Two Newton Place
255 Washington Street, Suite 300
Newton, Massachusetts 02458
Attn: Jennifer B. Clark
Dear Ms. Clark,
Reference is made to that certain Lease Agreement, dated May 12, 2011 (the "Lease Agreement"), by and between 400 Centre Street LLC, as landlord (the "Landlord"), and Five Star Quality Care, Inc. ("Five Star" or the "Company"), as tenant (the "Tenant").
Gemini Properties, together with William F. Thomas and Robert D. Thomas (collectively, the "Thomas Group" or "we"), who collectively beneficially own an aggregate of 3,364,737 shares of Common Stock of Five Star, intend to seek the election of a director candidate to the Board of Directors of the Company (the "Five Star Board") at its 2017 Annual Meeting of Stockholders (the "Annual Meeting"). Pursuant to Section 2.14.2 of the Company's Amended and Restated Bylaws (the "Bylaws"), if the submission of a stockholder nomination would cause the Company or any of its subsidiaries to be in breach of any covenant or otherwise cause a default in any existing agreement of the Company or any of its subsidiaries, including certain lease agreements, the nominating stockholder must submit certain evidence satisfactory to the Board of the contracting party's willingness to waive any such breach of covenant or default.
Pursuant to the Lease Agreement, the election to the Five Star Board of any individual not nominated or appointed by vote of a majority of the directors of Five Star in office immediately prior to the nomination or appointment of such individual purportedly triggers a Change in Control (as defined therein) under the Lease Agreement, which allows for the Landlord to terminate the term of the Lease Agreement ("Default") under such Lease Agreement. If the Thomas Group's nominee is elected to the Board at the Annual Meeting, such election may cause a Default under the Lease Agreement. Accordingly, pursuant to the Bylaws, we are hereby requesting that the Landlord take any and all actions necessary to either (i) waive any Default under the Lease Agreement that may occur upon the election of the Thomas Group's nominee to the Five Star Board at the Annual Meeting or (ii) deem the Thomas Group's nominee as having been nominated or appointed by vote of a majority of the directors of Five Star for purposes of a Change in Control such that his or her election would not trigger a Change in Control and cause a Default under the Lease Agreement.
Nothing in this letter shall be interpreted to preclude the Thomas Group from making further requests for exemptions under the Lease Agreement, as it may be amended, or any related agreements thereto. Notwithstanding the submission of this letter, the Thomas Group reserves all rights to challenge the validity of any such purported requirement to obtain a waiver from
400 Centre Street LLC under the Lease Agreement with the Company as purportedly required under the Bylaws.
As time is of the essence in this matter, we request that you respond to us promptly, and, in any event, no later than 12pm EST on November 1, 2016. We reserve all rights under applicable law.
| Sincerely, GEMINI PROPERTIES |
||
By: /s/ Robert D. Thomas |
||
Name: Robert D. Thomas Title: Partner |