Dividend Capital Diversified Property Fund Inc. SC TO-I
Exhibit (a)(i)
OFFER TO PURCHASE
DIVIDEND CAPITAL DIVERSIFIED PROPERTY FUND
INC.
518 SEVENTEENTH STREET, 17TH FLOOR
DENVER, COLORADO 80202
(303) 228-2200
OFFER TO PURCHASE UP TO 4,081,632 SHARES
OF
ITS OUTSTANDING UNCLASSIFIED COMMON STOCK,
OR APPROXIMATELY $30 MILLION OF SHARES,
AT A PURCHASE PRICE OF $7.35 PER SHARE
THE OFFER, PRORATION PERIOD AND WITHDRAWAL
RIGHTS WILL EXPIRE
AT 5:00 P.M. CENTRAL TIME, SEPTEMBER 13,
2016,
UNLESS EXTENDED OR WITHDRAWN
Dear Class E Stockholder:
Dividend Capital Diversified Property Fund Inc. (the “Company”)
is offering to purchase up to 4,081,632 shares of the Company’s unclassified common stock, par value $0.01 per share, also
referred to as “Class E” shares (“Shares” or “Class E Shares”), for cash at a purchase price
equal to $7.35 per Share (the “Purchase Price”), or approximately $30 million of Shares, on the terms and conditions
set forth in this Offer to Purchase and the related Letter of Transmittal and the related Instructions to Letter of Transmittal
(the “Instructions”). This Offer to Purchase and the Letter of Transmittal, including the Instructions, constitute
the “Offer.”
Unless extended or withdrawn, the Offer, proration period and withdrawal
rights will expire at 5:00 p.m. Central Time, on Tuesday, September 13, 2016 (the “Expiration Date” or the “Expiration
Time”). You may tender all, a portion or none of your Shares.
Stockholders desiring to tender all or any portion of their Shares
for purchase must complete and sign a Letter of Transmittal and deliver it to the Company in the manner set forth in “Procedures
for Tendering Shares” below. Stockholders not interested in tendering any of their Shares need not take any action.
Because of the “odd lot” priority and proration provisions
described in this Offer to Purchase, less than all of the Shares tendered may be purchased if more than 4,081,632 Shares are properly
tendered and not properly withdrawn. Only Shares properly tendered and not properly withdrawn will be eligible to be purchased.
Shares tendered but not purchased pursuant to the Offer will be returned promptly following the Expiration Date.
The Purchase Price is currently lower than the net asset value (“NAV”)
per Share determined in accordance with our valuation procedures and may be lower than the future NAV per Share. On each business
day, our NAV per Class E Share is (1) posted on our website, www.dividendcapitaldiversified.com, and (2) made available
on our toll-free, automated telephone line, (888) 310-9352. The NAV per Share on the last business day prior to the date of
this Offer was $7.39 per Share.
Subject to complying with applicable law, we reserve the right,
in our sole discretion, to change the Purchase Price and to increase or decrease the total dollar amount of Shares sought in the
Offer. In accordance with rules promulgated by the Securities and Exchange Commission (the “SEC”), we may increase
the number of Shares accepted for payment in the Offer by up to, but not more than, 2% of the outstanding Shares without amending
or extending the Offer. This could result in the number of Shares accepted for payment in the Offer increasing by up to approximately
2.5 million Shares.
While our board of directors has approved the Offer, neither
the Company, our board of directors, nor DST Systems, Inc. in its capacity as Depositary, Paying Agent or Information Agent for
the Offer, makes any recommendation to stockholders as to whether to tender or refrain from tendering their Shares. Each stockholder
must make his or her own decision whether to tender Shares, and if so, how many Shares to tender. Stockholders are urged to evaluate
carefully all information in the Offer, the Letter of Transmittal and the Schedule TO, including our most recent annual report
on Form 10-K, quarterly reports on Form 10-Q, and Portfolio Performance and Operational Review filed on a current report on Form
8-K, which are incorporated herein by reference and can be found in the “Investor Relations” section of our website,
www.dividendcapitaldiversified.com, and consult their own investment and tax advisors and make their own decisions whether to tender
or refrain from tendering their Shares.
No person has been authorized to make any recommendation on behalf
of the Company, our board of directors, or DST Systems, Inc., as the Depositary, Paying Agent or Information Agent, or any representations
in connection with the Offer other than those contained herein or in the Letter of Transmittal. If given or made, any recommendation
and any information and representations must not be relied upon. This Offer has been neither approved nor disapproved by the SEC,
nor has the SEC or any state securities commission passed upon the fairness or merits of the Offer or the accuracy or adequacy
of the information contained or incorporated by reference in this Offer to Purchase. Any representation to the contrary is a criminal
offense.
Questions, requests for assistance and requests for additional copies
of the Offer may be directed to DST Systems, Inc., the information agent for the Offer (the “Information Agent”), by
telephone toll free at 888-310-9352.
AUGUST 5, 2016
DIVIDEND CAPITAL DIVERSIFIED PROPERTY FUND
INC.
TABLE OF CONTENTS
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PAGE
NUMBER |
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| SUMMARY TERM SHEET |
4 |
| CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS |
13 |
| THE OFFER |
14 |
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1. |
Price; Number of Shares; Expiration Date; Proration |
14 |
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2. |
Procedures for Tendering Shares |
16 |
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3. |
Amount of Tenders |
18 |
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4. |
Withdrawal Rights |
18 |
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5. |
Purchase and Payment for Tendered Shares |
19 |
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6. |
Conditions of the Offer |
19 |
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7. |
Extension of the Offer; Termination; Amendment |
22 |
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8. |
Certain Effects of the Offer |
23 |
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9. |
Treatment of Fractional Shares |
23 |
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10. |
Use of Securities Acquired |
23 |
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11. |
Plans and Proposals |
23 |
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12. |
Source and Amount of Funds |
24 |
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13. |
Certain Information About the Company |
25 |
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14. |
Additional Information |
33 |
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15. |
Certain Legal Matters; Regulatory Approvals |
33 |
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16. |
Material U.S. Income Tax Consequences |
33 |
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17. |
Recommendation |
36 |
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18. |
Miscellaneous |
37 |
SUMMARY TERM SHEET
We are providing this summary term sheet for your convenience.
This summary term sheet highlights the material terms of the Offer but does not describe all of the details of the Offer to the
same extent described elsewhere in this Offer to Purchase. We urge you to read the entire Offer to Purchase, the related Letter
of Transmittal and the documents incorporated herein by reference because they contain the full details about the Offer and the
Company. We have included references to the sections of this Offer to Purchase where you will find a more complete discussion.
Except where the context suggests otherwise, the terms “we,” “us,” “our” and the “Company”
refer to Dividend Capital Diversified Property Fund Inc., a Maryland corporation.
Who is offering to purchase my Shares?
Dividend Capital Diversified Property Fund Inc., a Maryland corporation,
is offering to purchase your Shares. We are an externally managed real estate investment trust, or “REIT”, that invests
in a diverse portfolio of real properties and real estate-related debt and securities. See “The Offer - Section 13”
for additional information regarding the Company.
What is the purpose of the Offer?
The Offer is designed to provide limited liquidity to holders of
Shares, for which there is no current public market. Our board of directors evaluates each quarter whether to make liquidity available
to Class E stockholders through the Class E share redemption program (the “Class E SRP”) or through a tender offer
process. Although no assurances can be made, our board of directors currently intends to make liquidity available to Class E stockholders
each quarter (other than liquidity made available in the event of the death or disability of a stockholder through the Class E
SRP) in an amount that is at least equal to the greater of (A) (i) funds received from the sale of Class E Shares under our distribution
reinvestment plan during such calendar quarter, plus (ii) 50% of the difference between (a) the proceeds (net of sales commissions)
received by us from the sale of Class A, Class W and Class I shares in any public primary offering and under our distribution reinvestment
plan during the most recently completed calendar quarter, and (b) the dollar amount used to redeem Class A, Class W and Class I
shares during the most recently completed calendar quarter pursuant to the Class A, Class W and Class I share redemption program,
less (iii) funds used for redemptions of Class E Shares in the most recently completed quarter due to qualifying death or disability
requests of a stockholder during such calendar quarter and (B) the amount that would result in repurchases or redemptions, during
any consecutive twelve month period, at least equal to five percent of the number of Class E Shares outstanding at the beginning
of such twelve-month period, regardless of whether such liquidity will be made available through the Class E SRP or a tender offer,
and excluding liquidity made available in the event of the death or disability of a stockholder through the Class E SRP.
What will be the effects of the Offer?
The purchase of Shares pursuant to the Offer will have the following
effects:
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Depending on how many Shares are purchased, the Offer will decrease the amount of cash we have available for other purposes, such as making new investments, and will likely increase our leverage and our borrowing costs as we intend to finance a portion of the Offer with borrowings. |
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If the Purchase Price is lower than our NAV, the purchases of Shares pursuant to the Offer may have a slightly positive impact to our NAV for remaining stockholders. This positive impact may result in better overall total stockholder returns for remaining stockholders, which may result in a slight increase to the performance-based advisory fee that is paid to Dividend Capital Total Advisors LLC (the “Advisor”). |
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Purchases of Shares pursuant to the Offer will increase the proportionate interest of stockholders that do not tender their Shares. |
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Stockholders who tender all of their Shares will give up the opportunity to participate in any potential future benefits from owning Shares, including the right to receive any future dividends or distributions that we may pay. |
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Because there will be fewer outstanding Class E Shares, we anticipate that the base management fees paid to the Advisor will decrease. |
Our purchases of Shares pursuant to the Offer will not result in
the deregistration of our Shares under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). See “The
Offer - Section 8.”
Where can I find the most recent daily NAV per Share?
Because there is no public trading market for the Shares, we cannot
provide a market price for the Shares. In accordance with our valuation procedures, we do calculate on a daily basis the NAV of
the Shares. On each business day, our NAV per Class E Share is (1) posted on our website, www.dividendcapitaldiversified.com,
and (2) made available on our toll-free, automated telephone line, (888) 310-9352. The NAV per Share on the last business
day prior to the date of this Offer was $7.39 per Share. Tendering stockholders whose Shares are accepted for payment will lose
the opportunity to participate in any potential future upside and future growth of the Company with respect to such Shares and
will lose the right to receive any future distributions or dividends that we may declare and pay. The daily NAV of our Shares may
be higher than the Purchase Price but will not be lower, as described further below. Stockholders are urged to obtain the most
recent NAV per Share before deciding whether to tender their Shares. See “The Offer - Section 13.”
What will happen if the daily NAV drops below the Purchase
Price?
The Purchase Price is subject to adjustment as described herein.
If the daily NAV per Share declines below $7.35 during the term of this Offer (the “Term”), we will adjust the Purchase
Price for Shares purchased in the Offer to be equal to or slightly lower than the lowest NAV per Share during the Term. In the
event of an adjustment to the Purchase Price, we will file an amendment to the Schedule TO, make a public announcement and, depending
on timing, may extend the Term. If you tender any Shares at any point during the Term before or after a downward Purchase Price
adjustment, such Shares will remain validly tendered unless you withdraw your tendered Shares in accordance with the terms of this
Offer.
How many Shares will the Company purchase? What will be the
form of payment?
We are offering to purchase for cash up to 4,081,632 Shares at a
purchase price equal to $7.35 per Share, or approximately $30 million of Shares, subject to the terms and conditions of the Offer.
In accordance with rules promulgated by the SEC, we may increase the number of Shares accepted for payment in the Offer by up to,
but not more than, 2% of the outstanding Shares without amending or extending the Offer. Properly tendering Shares assures you
that at least a portion of your Shares will be purchased so long as we purchase Shares under the Offer (subject to provisions relating
to “odd lot” priority and proration described in “The Offer - Section 1”).
We will announce the preliminary results of the Offer through an
amendment to the Schedule TO, including the expected proration factor, and pay the Purchase Price in cash, less any applicable
withholding taxes and without interest, for the Shares we accept for payment promptly after the Expiration Date. If we are required
to pro rate, however, we expect it may take at least five business days after the Expiration Date to calculate the final proration
factor and begin paying for Shares accepted for payment.
We will pay for Shares that are properly tendered and not properly
withdrawn by depositing the Purchase Price in cash with DST Systems, Inc. (“DST”), the paying agent for the Offer (the
“Paying Agent”), which will act as your agent for the purpose of receiving payments from us and transmitting payments
to you. In all cases, payment for tendered Shares will be made only after timely receipt by DST in its capacity as the Depositary
for the Offer (the “Depositary”) of a properly completed and duly executed Letter of Transmittal and any required signature
guarantees and other documents required by the Letter of Transmittal.
Subject to applicable law, we reserve the right, in our sole discretion,
to change the Purchase Price and to increase or decrease the value and number of Shares sought in the Offer. The Offer is not conditioned
upon the receipt of financing or any minimum number of Shares being tendered. The Offer is, however, subject to certain conditions.
See “The Offer - Section 1” and “- Section 2.”
How was the offer size and Purchase Price determined?
We determined the offer size for the Offer based on discussions
between our management and our board of directors. One of the Company’s key objectives is to continue to grow our asset base
while providing enhanced liquidity for our stockholders. In evaluating the offer size for the Offer, our management and our board
of directors considered many factors with this objective in mind, including our current liquidity profile, acquisition opportunities,
and the number of share redemption requests recently received under the Class E SRP and our prior tender offers for Class E shares.
The Purchase Price is equal to the daily NAV per Share as of
August 4, 2016 minus $0.04 per Share. As set forth above, the Purchase Price will be adjusted if the daily NAV per Share
declines below $7.35 during the Term. We set the Purchase Price at $0.04 per Share less than the current NAV per Share solely
to reduce the risk that we would need to reduce the Purchase Price while the Offer is ongoing and, in connection with such a
reduction, potentially be required to extend the Term beyond September 13, 2016 in accordance with rules promulgated by
the SEC.
May I tender Shares in this Offer for which I plan to request
redemption under the Company’s Class E SRP?
The Class E SRP is only available in the event of the death or disability
of a stockholder. Redemption requests under the Class E SRP will not be accepted while we are conducting this Offer or any other
self-tender offer for Class E Shares. Requests for redemption under the Class E SRP may only be made during a limited window each
quarter. Class E SRP redemption requests that are submitted through the Class E SRP during this Offer will not be accepted for
consideration and will not affect your ability to participate in this Offer.
If I tender my Shares, and the Company accepts the Shares
I tender, will I receive distributions accrued before my Shares are accepted?
Yes, you will be entitled to receive any distributions that accrue
prior to the date on which Shares are accepted for payment pursuant to the Offer. Distributions declared by our board of directors
will accrue on all of your Shares on a daily basis during the Term. For Shares validly tendered, distributions will cease to accrue
on the date that such Shares are purchased through the Offer. Shares purchased in the Offer will therefore no longer be eligible
to receive distributions except for any distributions declared to stockholders of record on a date prior to the date that we accept
those Shares for payment. Distributions will continue to accrue in accordance with current practice for Shares not tendered or
not accepted for purchase.
Distributions accrued for Shares validly tendered will be paid in
October 2016 consistent with our current distribution payment practices. As described below, if you tender all of your Shares and
have all of your Shares accepted for purchase through the Offer, the accrued distributions on such Shares will be paid to you in
cash, regardless of whether you currently participate in the Company’s distribution reinvestment plan (the “DRP”).
If you continue to own Shares following the Offer, your accrued distributions on such Shares will be paid in accordance with your
current distribution payment election of cash or participation in the DRP.
What if I participate in the Company’s DRP and want
to tender all of my Shares?
If you are a participant in the Company’s DRP, any Shares
you are entitled to receive through the DRP prior to the Expiration Date will be tendered if you indicate on the Letter of Transmittal
that you elect to tender ALL of your Shares and we accept all of your Shares for payment in the Offer.
Note that even if you tender all of your Shares, we may not accept
all of them for payment. If the Offer is oversubscribed, we will prorate the number of Shares we purchase from tendering stockholders
(other than stockholders who receive “odd lot” priority treatment).
If you are a participant in the DRP, you tender all of your Shares,
and we accept all of such Shares for payment, any distributions that are accrued on such Shares through the date we accept the
Shares for payment will be made in cash. If we do not accept all of your Shares for payment, distributions that are accrued on
any of your Shares during the Term, including tendered Shares that are accepted by us for payment, will be reinvested in Shares
pursuant to the DRP. The Company’s quarterly distribution for the third quarter of 2016 was authorized by the board of directors
in June 2016 and will be paid in October 2016, such payment occurring after the Expiration Date.
What if I participate in the Company’s DRP and do not
want to tender Shares I may receive in the DRP?
If you do not want to tender any Shares that you may receive through
the DRP prior to the Expiration Date, then you should tender less than all of your Shares on the Letter of Transmittal by writing
in a number of Shares that represents less than all whole Shares you own at the time you submit your Letter of Transmittal.
What if stockholders tender more than 4,081,632 Shares?
If more than 4,081,632 Shares are properly tendered and not properly
withdrawn, we will purchase Shares on the following basis:
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First, we will purchase all the Shares properly tendered and not properly withdrawn by any “odd lot holder” (a stockholder of less than 100 Shares) who tenders all of that holder’s Shares; and |
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Second, after the purchase of all the Shares properly tendered by odd lot holders, we will purchase all other Shares properly tendered on a pro rata basis with appropriate adjustments to avoid the purchase of fractional Shares. |
In addition, in accordance with rules promulgated by the SEC, we
may increase the number of Shares accepted for payment in the Offer by up to, but not more than, 2% of the outstanding Shares without
amending or extending the Offer. This could result in the number of Shares accepted for payment in the Offer increasing by up to
approximately 2.5 million Shares.
Because of the proration and “odd lot” priority provisions
described in this Offer to Purchase, it is possible that we will not purchase all of the Shares that you tender. If the Offer is
oversubscribed, and you are not an odd lot holder, the amount of Shares that we purchase from you will be prorated.
If we are required to pro rate, the Paying Agent will determine
the proration factor promptly following the Expiration Date. The proration factor will be based on the ratio of (i) 4,081,632 (or,
if we increase the number of Shares accepted for payment in the Offer as described above, the increased aggregate number of Shares
to be purchased pursuant to the Offer) minus the aggregate number of Shares to be purchased from odd lot holders to (ii) the total
number of Shares properly tendered and not properly withdrawn by all stockholders (other than odd lot holders), with appropriate
adjustments to avoid the purchase of fractional Shares. The number of Shares accepted for purchase for each stockholder (other
than odd lot holders) will equal the number of Shares validly tendered by each stockholder multiplied by the proration factor.
Because of the difficulty in determining the number of Shares properly tendered and not withdrawn and because of the odd lot procedure
described above, we expect that we will not be able to announce the final proration factor or commence payment for any Shares purchased
pursuant to the Offer until at least five business days after the Expiration Date. The preliminary results of any proration will
be announced through publicly filing an amendment to the Schedule TO as promptly as practicable after the Expiration Date. The
number of Shares that we will purchase from a stockholder pursuant to the Offer may affect the U.S. federal income tax consequences
to the stockholder of the purchase and, therefore, may be relevant to a stockholder’s decision whether to tender Shares.
Each stockholder should consult with their tax advisor to evaluate the tax consequences of tendering or selling Shares in the Offer.
See “The Offer - Section 1.”
If I own fewer than 100 Shares and I tender all of my Shares,
will I be subject to proration?
If you own beneficially or of record fewer than 100 Shares in the
aggregate, you will not be subject to proration if: (1) you properly tender all of these Shares, (2) you do not properly
withdraw them before the Expiration Date, and (3) you complete the Letter of Transmittal included with this Offer to Purchase
and the Odd Lot Certification Form. See “The Offer - Section 1.”
How do I tender Shares that are registered in my name?
If you would like for us to purchase all or a portion of your Shares
that are registered in your name, you must properly complete and sign the Letter of Transmittal enclosed herein according to its
instructions and deliver it, together with any required signature guarantees and any other documents required by the Letter of
Transmittal, to DST in its capacity as the Depositary at the appropriate address shown on the “Important Instructions and
Information” page accompanying the Letter of Transmittal.
Unless the Offer is extended, the completed and executed Letter
of Transmittal must be received before the Expiration Time on the Expiration Date. See “The Offer - Section 2.”
How do I tender Shares that I hold through a broker, dealer,
commercial bank, trust company, custodian or other nominee?
If your Shares are held through a broker, dealer, commercial bank,
trust company, custodian or other nominee, you are not the holder of record on our books and you must contact your broker, dealer,
commercial bank, trust company, custodian or other nominee and comply with their policies and procedures and provide them with
any necessary paperwork in order to have them tender your Shares. Stockholders holding their Shares through such broker, dealer,
commercial bank, trust company, custodian or other nominee must not deliver a Letter of Transmittal directly to the Depositary.
The broker, dealer, commercial bank, trust company, custodian or other nominee holding your Shares must submit the Letter of Transmittal
that pertains to your Shares to the Depositary on your behalf. If the Letter of Transmittal is signed by trustees, executors, administrators,
guardians, attorneys-in-fact, agents, officers of corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and proper evidence satisfactory to the Depositary of their authority so to act must be
submitted. See “The Offer - Section 2.”
Will I be notified of any defects in the documents I submit?
To the extent practicable, the Company and DST will attempt to give
notice of any defects or irregularities in tenders, provided, however, that none of the Company, DST or any other person will be
obligated to give notice of any defects or irregularities in tenders, nor will any of them incur any liability for failure to give
any such notice. Any notice given will be in the form of a letter. The Company will not be liable for failure to waive any condition
of the Offer or for any defect or irregularity in any tender of Shares. Therefore, we encourage stockholders to carefully complete
their tender materials and submit them as early as possible after they have considered the information in this Offer to Purchase,
so that they will have as much time as possible prior to the Expiration Date to correct any defects or irregularities in their
tenders. See “The Offer - Section 2.”
What will happen to my fractional Shares in connection with
the Offer?
If (i) you are tendering all of your Shares and the Offer is
not over-subscribed; or (ii) you are an odd lot holder tendering all of your Shares, we will purchase your properly tendered
Shares, including any fractional Share, pursuant to the terms and subject to the conditions of the Offer. If you tender less than
all of your Shares by writing in a number of Shares on the Letter of Transmittal that represents less than all of the whole Shares
you own at the time that you submit your Letter of Transmittal, any fractional Share that you own will not be tendered. If the
Offer is over-subscribed and your tendered Shares are subject to purchase on a pro rata basis, the proration will be adjusted to
avoid the purchase of your fractional Share. See “The Offer - Section 9.”
Will I have to pay brokerage fees and commissions if I tender
my Shares?
No, if you are the holder of record of your Shares and you tender
your Shares directly, you will not incur any brokerage fees or commissions. If you hold your Shares through a broker, dealer, commercial
bank, trust company, custodian or other nominee and that person tenders Shares on your behalf, that person may charge you a fee
for doing so. We urge you to consult your broker, dealer, commercial bank, trust company, custodian or other nominee to determine
whether any such charges will apply.
What is the accounting treatment of the Offer for the Company?
The purchase of Shares pursuant to the Offer will reduce our stockholders’
equity in an amount equal to the aggregate Purchase Price of the Shares purchased, and, either in whole or in part, and also equal
to the aggregate Purchase Price of the Shares purchased, reduce our total cash and/or increase our indebtedness in an amount equal
to the amount of monies drawn on our credit facility, if any, to fund all or a portion of the Purchase Price.
Are there any governmental or regulatory approvals, consents
or filings to be made or obtained in connection with the Offer?
We are not aware of any approval or other action by any governmental,
administrative or regulatory authority, agency or body required for us to acquire Shares pursuant to the Offer. We intend, however,
to seek any approvals or make any notice filings that may be required. We may be required to delay the acceptance for payment of,
or payment for, Shares tendered in the Offer pending receipt of any approval or other action. There can be no assurance that any
approval or other action, if needed, would be obtained or would be obtained without substantial cost or conditions or that the
failure to obtain the approval or other action might not result in adverse consequences to our business and financial condition.
Our obligations pursuant to the Offer to accept for payment and pay for Shares are subject to the satisfaction of certain conditions.
See “The Offer - Section 6” and “- Section 15.”
Must I tender all of my Shares to participate in the Offer?
No. Subject to the conditions described herein for odd lot holders,
you may tender all of your Shares, a portion of your Shares or none of your Shares. You are able to tender your Shares regardless
of how long you have owned them. See “The Offer - Section 3.”
When will the Offer expire? Can the Offer be extended? How
will I be notified if the Offer period is extended?
You may tender your Shares until the Offer expires on the Expiration
Date, which is September 13, 2016 unless extended by us. We may choose to extend the Offer period for any reason. If we extend
the Offer period, we will make a public announcement no later than 9:00 a.m. Eastern Time on the next business day after the previously
scheduled Expiration Time. We cannot assure you that the Offer will be extended or, if extended, for how long it will be extended.
See “The Offer - Section 1” and “- Section 7.”
Will there be any tax consequences to me if I tender my Shares?
Yes. If we accept your tender of Shares, you will be treated as
either having sold or exchanged those Shares in a taxable transaction or, under certain circumstances, as having received a distribution
with respect to those Shares that is treated as a dividend to the extent it is paid out of our current or accumulated earnings
and profits. You should consult your tax advisor regarding the tax consequences of tendering your Shares. See “The Offer
- Section 16.”
May I withdraw my tendered Shares?
Yes. You may withdraw any or all Shares tendered at any time prior
to the Expiration Time. To withdraw your tendered Shares, you must either (i) call 888-310-9352, or (ii) properly submit
a written notice of withdrawal (a “Withdrawal Letter”) and deliver it, together with any required signature guarantees
and any other required documents, to the Depositary at the appropriate address shown on the “Important Instructions and Information”
page accompanying the Letter of Transmittal. Please note that a Withdrawal Letter delivered via a method of delivery other than
U.S. mail or overnight courier service will not be accepted. See “The Offer - Section 4.”
How will the Company pay for the Shares?
Assuming that the Offer is fully subscribed, the value of Shares
purchased in the Offer will be approximately $30 million, subject to our ability to increase the number of Shares accepted for
payment in the Offer by up to, but not more than, 2% of the outstanding Shares (resulting in a commensurate increase in the dollar
volume by up to approximately $18.6 million) without amending or extending the Offer in accordance with rules promulgated by the
SEC. Assuming that we do not increase the number of Shares accepted for payment, we expect that the maximum aggregate cost of these
purchases, including all fees and expenses applicable to the Offer, will be approximately $30.2 million. We intend to fund the
purchase of Shares in the Offer and pay related costs by using our available cash, which may include funds received from draws
on our credit facility. See “The Offer - Section 12.”
What are the most significant conditions to the Offer?
Our obligation to accept for payment and pay for your tendered Shares
depends upon a number of conditions that must be satisfied or waived on or prior to the Expiration Date, including but not limited
to:
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no threatened or pending action, suit or proceeding by any third-party, including any government or governmental, regulatory or administrative agency, authority or tribunal or by any other person, domestic, foreign or supranational, before any court, authority, agency or other tribunal shall have been instituted or shall be pending, nor shall we have received notice of any such action, that directly or indirectly: |
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challenges or seeks to challenge, makes illegal, or delays or otherwise directly or indirectly restrains, prohibits or otherwise affects our making of the Offer, the acquisition by us of some or all of the Shares pursuant to the Offer or any other matter relating to the Offer, or seeks to obtain any material damages or otherwise relates to the transactions contemplated by the Offer; |
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in our reasonable judgment, could be expected to materially and adversely affect our business, properties, assets, liabilities, capitalization, stockholders’ equity, condition (financial or otherwise), income, operations, results of operations or prospects, taken as a whole, or otherwise materially impair in any way our ability to purchase some or all of the Shares pursuant to the Offer; |
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makes our purchase of, or payment for, some or all of the Shares pursuant to the Offer illegal, or otherwise restricts or prohibits consummation of the Offer; or |
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materially impairs the contemplated benefits to us of the Offer; |
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no change in the general political, market, economic or financial conditions, domestically or internationally, that could reasonably be expected to materially and adversely affect our business or prospects or the benefits to us of the Offer, including, but not limited to, the following: |
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any general suspension of trading in, or limitation on prices for, securities on any U.S. national securities exchange or in the over-the-counter market; |
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the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, whether or not mandatory; |
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the commencement or escalation of war, armed hostilities or other international or national calamity, including, but not limited to, an act of terrorism directly or indirectly involving the United States; |
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any limitation, whether or not mandatory, by any governmental, regulatory or administrative agency or authority on, or any event that, in our reasonable judgment, could materially affect the extension of credit by banks or other lending institutions in the United States; |
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legislation amending the Internal Revenue Code of 1986, as amended (the “Code”), the effect of which, in our reasonable judgment, would be to materially change the tax consequences of the Offer in any manner that would reasonably be expected to materially and adversely affect us; or |
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in the case of any of the foregoing existing at the time of the commencement of the Offer, a material acceleration or worsening thereof; |
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no tender or exchange offer for any or all Shares (other than the Offer), or any merger, acquisition, business combination or other similar transaction with or involving us or our subsidiaries, has been proposed, announced or commenced by any person or has been publicly disclosed and we have not entered into a definitive agreement or an agreement in principle with any person with respect to a merger, business combination or other similar transaction, other than in the ordinary course of business; |
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we have not learned that: |
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any entity, “group” (as that term is used in Section 13(d)(3) of the Exchange Act) or person has acquired or proposes to acquire beneficial ownership of more than 5% of our outstanding Shares, whether through the acquisition of stock, the formation of a group, the grant of any option or right, or otherwise (other than as and to the extent disclosed in a Schedule 13D or Schedule 13G filed with the SEC); |
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any entity, group or person who has filed a Schedule 13D or Schedule 13G with the SEC has acquired or proposes to acquire, whether through the acquisition of stock, the formation of a group, the grant of any option or right, or otherwise (other than by virtue of the Offer), beneficial ownership of an additional 2% or more of our outstanding Shares; or |
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any new group has been formed that beneficially owns more than 5% of our outstanding Shares (options for and other rights to acquire Shares that are acquired or proposed to be acquired being deemed to be immediately exercisable or convertible for purposes of this clause); |
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no person, entity or group has filed a Notification and Report Form under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, reflecting an intent to acquire us or any Shares, or has made a public announcement reflecting an intent to acquire us or any of our subsidiaries or any of our respective assets or securities; |
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no action has been taken and no statute, rule, regulation, judgment, decree, injunction or order (preliminary, permanent or otherwise) has been proposed, sought, enacted, entered, promulgated, enforced or deemed to be applicable to the Offer or us by any court, government or governmental agency or other regulatory or administrative authority, domestic or foreign, which, in our reasonable judgment: |
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indicates that any approval or other action of any such court, agency or authority may be required in connection with the Offer or the purchase of Shares thereunder; |
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could reasonably be expected to prohibit, restrict or delay consummation of the Offer; or |
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otherwise could reasonably be expected to materially adversely affect our business or prospects, or the benefits to us of the Offer; |
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no change or changes have occurred in our business, properties, assets, liabilities, capitalization, stockholders’ equity, condition (financial or otherwise), income, operations, results of operations or future business prospects that, in our reasonable judgment, has or have a material adverse effect on our business or prospects, or the benefits to us of the Offer; |
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no reduction in the daily NAV per Share during the Term below $6.62 per Share; |
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no 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; or |
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we shall not have determined that the consummation of the Offer and the purchase of the Shares may cause the Shares to be held of record by less than 300 persons. |
In addition, if completing the Offer on its current or amended terms,
or at all, may cause us to fail to qualify for taxation as a REIT under the Code, we may terminate or amend the Offer or postpone
the acceptance of Shares for payment.
If any of the conditions referred to above is not satisfied, we
may:
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terminate the Offer and return all tendered Shares to the tendering stockholders; |
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extend the Offer and, subject to withdrawal rights as set forth in “The Offer - Section 4”, retain all of the tendered Shares until the expiration of the Offer as so extended; |
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waive the condition and, subject to any requirement to extend the period of time during which the Offer is open, purchase all of the Shares validly tendered and not withdrawn prior to the Expiration Date; or |
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delay acceptance for payment or payment for Shares, subject to applicable law, until satisfaction or waiver of the conditions to the Offer. |
Each of these conditions is for our sole benefit and may be asserted
or waived by us, in whole or in part, at any time and from time to time in our discretion prior to the Expiration Date. The Offer
is not conditioned upon on any minimum number of Shares being tendered.
May you amend or terminate the Offer?
Yes, we may amend or terminate the Offer in our sole discretion.
The Offer is not conditioned upon the tender of any minimum number of Shares. We are not required to accept or pay for any Shares
tendered unless the conditions to the Offer have been met. See “The Offer - Section 6” and “- Section 7.”
CAUTIONARY NOTE REGARDING FORWARD-LOOKING
STATEMENTS
The Offer contains certain forward-looking statements and information
relating to us that are based on current expectations, estimates, forecasts and projections and our management’s beliefs
and assumptions about us, our future performance and our business, including statements about the Offer. These statements include,
but are not limited to, statements about our strategies, plans, objectives, expectations, intentions, expenditures, and assumptions
and other statements contained in the Offer that are not statements of historical fact. In addition, we, or others on our behalf,
may make forward-looking statements in press releases or written statements, or in our communications and discussions with broker
dealers or due diligence firms in the normal course of business through meetings, webcasts, phone calls and conference calls. Words
such as “believe,” “estimate,” “expect,” “anticipate,” “intend,” “outlook,”
“could,” “target,” “seek,” “should,” “may,” “assume,” “continue,”
“plan” and “project” and as well as variations of such words and similar expressions, as they relate to
us, are intended to identify forward-looking statements. These statements are not guarantees and involve certain risks, uncertainties
and assumptions, including the fulfillment of the conditions to this Offer, that make the future difficult to predict. Actual results
may not conform to, and may differ materially from, our expectations, intentions and predictions. We describe risks, uncertainties
and assumptions that could affect our ability to execute our strategy, our future financial condition and the outcome or results
of operations in the “Risk Factors” section of our Annual Report on Form 10-K for the fiscal year ended December 31,
2015, as filed with the SEC, which may be added to, or revised by, subsequent filings with the SEC.
Except as required by applicable law, we neither intend to nor assume
any obligation to update these forward-looking statements, which speak only as of the respective dates on which they were made.
We have based our forward-looking statements on our management’s beliefs and assumptions based on information available to
our management at the time the statements are made. We caution you that actual outcomes and results may differ materially from
what is expressed, implied or forecasted by our forward-looking statements.
THE OFFER
| 1. |
Price; Number of Shares; Expiration Date; Proration |
The Offer is designed to provide limited liquidity to holders of
Shares, for which there is no current public market. Our board of directors evaluates each quarter whether to make liquidity available
to Class E stockholders through the Class E SRP or through a tender offer process. Although no assurances can be made, our board
of directors currently intends to make liquidity available to Class E stockholders each quarter (other than liquidity made available
in the event of the death or disability of a stockholder through the Class E SRP) in an amount that is at least equal to the greater
of (A) (i) funds received from the sale of Class E Shares under our DRP during such calendar quarter, plus (ii) 50% of the difference
between (a) the proceeds (net of sales commissions) received by us from the sale of Class A, Class W and Class I shares in any
public primary offering and under our DRP during the most recently completed calendar quarter, and (b) the dollar amount used to
redeem Class A, Class W and Class I shares during the most recently completed calendar quarter pursuant to the Class A, Class W
and Class I share redemption program, less (iii) funds used for redemptions of Class E Shares in the most recently completed quarter
due to qualifying death or disability requests of a stockholder during such calendar quarter and (B) the amount that would result
in repurchases or redemptions, during any consecutive twelve month period, at least equal to five percent of the number of Class
E Shares outstanding at the beginning of such twelve-month period, regardless of whether such liquidity will be made available
through the Class E SRP or a tender offer, and excluding liquidity made available in the event of the death or disability of a
stockholder through the Class E SRP.
Subject to the terms and conditions of the Offer, we will purchase
for cash up to 4,081,632 Shares which are properly tendered and not properly withdrawn prior to the Expiration Date at a purchase
price equal to $7.35 per Share, or approximately $30 million of Shares. We reserve the right to extend the Offer (see Section 7).
In addition, in accordance with rules promulgated by the SEC, we may increase the number of Shares accepted for payment in the
Offer by up to, but not more than, 2% of the outstanding Shares without amending or extending the Offer. This could result in the
number of Shares accepted for payment in the Offer increasing by up to approximately 2.5 million Shares. The Purchase Price is
currently lower than the NAV per Share and may be lower than the future NAV per Share. On each business day, our NAV per Class
E Share is (1) posted on our website, www.dividendcapitaldiversified.com, and (2) made available on our toll-free,
automated telephone line, (888) 310-9352. The NAV per Share on the last business day prior to the date of this Offer was $7.39
per Share.
If the daily NAV per Share declines below $7.35 during the Term,
we will adjust the Purchase Price for Shares purchased in the Offer to be equal to or slightly lower than the lowest NAV per Share
during the Term. In the event of an adjustment to the Purchase Price, we will file an amendment to the Schedule TO, make a public
announcement and, depending on timing, may extend the Term.
If you tender any Shares at any point during the Term before
or after a downward Purchase Price adjustment, such Shares will remain validly tendered unless you withdraw your tendered Shares
in accordance with the terms of this Offer.
Because of the “odd lot” priority and proration provisions
described herein, all Shares properly tendered and not properly withdrawn may not be purchased if more than 4,081,632 Shares are
properly tendered and not properly withdrawn. As of August 1, 2016, there were 126,513,784 Class E Shares issued and outstanding.
The Shares are not listed on a national securities exchange.
If a Letter of Transmittal is signed by trustees, executors, administrators,
guardians, attorneys-in-fact, agents, officers of corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and proper evidence satisfactory to the Depositary of their authority so to act must be
submitted.
While our board of directors has approved the Offer, neither
the Company, our board of directors, nor DST Systems, Inc. in its capacity as Depositary, Paying Agent or Information Agent for
the Offer, makes any recommendation to stockholders as to whether to tender or refrain from tendering their Shares. Each stockholder
must make his or her own decision whether to tender Shares, and if so, how many Shares to tender. Stockholders are urged to evaluate
carefully all information in the Offer, the Letter of Transmittal and the Schedule TO, including our most recent annual report
on Form 10-K, quarterly reports on Form 10-Q, and Portfolio Performance and Operational Review filed on a current report on Form
8-K, which are incorporated herein by reference and can be found in the “Investor Relations” section of our website,
www.dividendcapitaldiversified.com, and consult their own investment and tax advisors and make their own decisions whether to tender
or refrain from tendering their Shares.
The Offer is not conditioned upon the receipt of financing or
any minimum number of Shares being tendered. The Offer is, however, subject to certain conditions. See Section 6.
Subject to the applicable rules and regulations of the SEC, we expressly
reserve the right, in our sole discretion, at any time and from time to time, (a) to extend the period of time during which
the Offer is open and thereby delay acceptance for payment of, and the payment for, any Shares, (b) to increase or decrease
the total dollar amount of Shares sought in the Offer, (c) to amend the Offer prior to the Expiration Date, and (d) upon
the occurrence of any of the conditions specified in Section 6 prior to the Expiration Date, to terminate the Offer and not
accept any Shares for payment. Notice of any extension, amendment or termination will be distributed promptly to stockholders in
a manner reasonably calculated to inform them of the change in compliance with Rule 13e-4(e)(3) under the Exchange Act. In the
case of an extension of the Offer, we will make a public announcement no later than 9:00 a.m. Eastern Time, on the next business
day after the scheduled Expiration Date, in accordance with Rule 14e-1(d) under the Exchange Act.
If we (i) increase or decrease the highest or lowest price
that may be paid for the Shares, (ii) increase the maximum number of Shares that we may purchase in the Offer by more than
2% of our outstanding Shares or (iii) decrease the number of Shares that we may purchase in the Offer, then the Offer must remain
open for at least ten (10) business days following the date that notice of the adjustment, increase or decrease is first published,
sent or given.
Stockholders properly tendering Shares can expect to have at least
a portion of their Shares purchased if any Shares are purchased pursuant to the Offer (subject to provisions relating to “odd
lot” priority and proration described herein).
The Company will not accept or pay for any Shares that are subject
to, and all Shares tendered in the Offer must be free and clear of, any liens, charges, encumbrances, security interests, claims,
restrictions and equities whatsoever. The Company will acquire all rights and benefits arising from any Shares that it accepts
and pays for in the Offer, provided that any dividends or distributions which may be declared, paid, issued, distributed, made
or transferred on or in respect of the tendered Shares to stockholders of record on or prior to the date on which the Shares are
accepted for payment pursuant to the Offer will be for the account of the tendering stockholder(s).
Priority of Purchases.
Upon the terms and subject to the conditions of the Offer, if more
than 4,081,632 Shares are properly tendered and not properly withdrawn prior to the Expiration Date, we will:
First, purchase all Shares tendered
by any Odd Lot Holder (as defined below) who: (1) properly completes and submits the Letter of Transmittal and the Odd Lot Certification
Form included with this Offer to Purchase, and (2) properly tenders all Shares owned beneficially or of record by the Odd Lot Holder
and does not properly withdraw this tender (note: tenders of less than all of the Shares owned by an Odd Lot Holder will not qualify
for this preference).
Second, purchase all other Shares
properly tendered and not properly withdrawn on a pro rata basis, with appropriate adjustments to avoid purchases of fractional
Shares, as described below, until we have purchased up to 4,081,632 Shares; provided that we may increase the number of Shares
purchased by up to, but not more than, 2% of the outstanding Shares without amending or extending the Offer which, if we do so,
could result in the number of Shares accepted for payment in the Offer increasing by up to approximately 2.5 million Shares.
Odd Lots. The terms “odd lot” and “Odd
Lot Holder” refer to persons who are record or beneficial owners of a total of fewer than 100 Shares. All Shares properly
tendered prior to the Expiration Date by an Odd Lot Holder who is tendering all Shares owned by that Odd Lot Holder will be purchased
by us in the Offer if they are not properly withdrawn. This will be the case even if the Offer is oversubscribed and other tendering
stockholders have the amount of their tendered Shares prorated. Odd Lot Holders should certify their status in the appropriate
place on the Odd Lot Certification Form included with this Offer to Purchase. To qualify for this preference, an Odd Lot Holder
must tender all Shares owned by the Odd Lot Holder in accordance with the procedures described in Section 2. This preference
is not available to partial tenders or to beneficial or record holders of 100 or more Shares in the aggregate, even if these holders
have separate accounts holding fewer than 100 Shares. Any Odd Lot Holder wishing to tender all of his, her or its Shares pursuant
to the Offer should complete the Letter of Transmittal and the Odd Lot Certification Form included with this Offer to Purchase.
Proration. The Paying Agent will determine
the proration factor following the Expiration Date, if required. Subject to adjustments to avoid the purchase of fractional Shares,
the proration factor will be based on the ratio of (i) 4,081,632 (or, if we increase the number of Shares accepted for payment
in the Offer as described above, the increased aggregate number of Shares to be purchased pursuant to the Offer) minus the aggregate
number of Shares to be purchased from Odd Lot Holders to (ii) the total number of Shares properly tendered and not properly withdrawn
by all stockholders (other than Odd Lot Holders). The number of Shares accepted for purchase for each stockholder (other than Odd
Lot Holders) will equal the number of Shares validly tendered by each stockholder multiplied by the proration factor. Because of
the difficulty in determining the number of Shares properly tendered and not properly withdrawn at or below the Purchase Price,
we do not expect that we will be able to announce the final proration factor or commence payment for any Shares purchased pursuant
to the Offer until at least five business days after the Expiration Date. The preliminary results of any proration will be announced
through publicly filing an amendment to the Schedule TO as promptly as practicable after the Expiration Date.
| 2. |
Procedures for Tendering Shares |
If your Shares are registered in your name (for example, you are
an individual who is the record and beneficial owner of the Shares) and you would like to tender all or a portion of your Shares,
you must properly complete and sign the enclosed Letter of Transmittal and deliver it, together with any other documents required
by the Letter of Transmittal, to the Depositary at the appropriate address provided on the “Important Instructions and Information”
page accompanying the Letter of Transmittal.
Odd Lot Holders must tender all of their Shares and also complete
the Letter of Transmittal included with this Offer to Purchase to qualify for the preferential treatment available to Odd Lot Holders
as described in Section 1. Odd Lot Holders should also complete the Odd Lot Certification Form included with this Offer to
Purchase.
If your Shares are held through a broker, dealer, commercial
bank, trust company, custodian or other nominee, you are not the holder of record on our books and you must contact your broker,
dealer, commercial bank, trust company, custodian or other nominee and comply with their policies and procedures and provide them
with any necessary paperwork in order to have them tender your Shares. Stockholders holding their Shares through such broker, dealer,
commercial bank, trust company, custodian or other nominee must not deliver a Letter of Transmittal directly to the Depositary
(DST). The broker, dealer, commercial bank, trust company, custodian or other nominee holding your Shares must submit the Letter
of Transmittal that pertains to your Shares to the Depositary (DST) on your behalf. If the Letter of Transmittal is signed by trustees,
executors, administrators, guardians, attorneys-in-fact, agents, officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing, and proper evidence satisfactory to the Depositary of their authority so
to act must be submitted.
If you are a broker, dealer, commercial bank, trust company, custodian
or other nominee tendering Shares on behalf of your client, you must properly complete and sign the enclosed Letter of Transmittal
and deliver it, together with any required signature guarantees and any other documents required by the Letter of Transmittal,
to the Depositary at the appropriate address provided on the “Important Instructions and Information” page accompanying
the Letter of Transmittal.
Shares will be deemed delivered only when all required documentation,
properly completed and executed, is received by the Depositary. Please note that a Letter of Transmittal delivered via a method
of delivery not specified in the Letter of Transmittal will not be accepted. The only acceptable methods of delivery of the Letter
of Transmittal are those set forth in the Letter of Transmittal. Hand delivery is not among the acceptable methods set forth in
the Letter of Transmittal. The method of delivery of any documents is at the election and complete risk of the stockholder tendering
Shares. A completed and executed Letter of Transmittal must be received by the Depositary before 5:00 p.m. Central Time on the
Expiration Date. You should allow sufficient time to ensure timely delivery. If you choose to use the U.S. Postal Service, you
may want to consider using registered or certified priority mail with return receipt requested.
Signature Guarantees and Method of Delivery. No
signature guarantee is required if:
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the Letter of Transmittal is signed by the registered holder of the Shares tendered; or |
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Shares are tendered for the account of a bank, broker, dealer, credit union, savings association or other entity which is a member in good standing of the Securities Transfer Agents Medallion Program, the New York Stock Exchange, Inc. Medallion Signature Program, the Stock Exchange Medallion Program, or an “eligible guarantor institution,” as the term is defined in Rule 17-Ad-15 promulgated under the Exchange Act (each of the foregoing constituting an “Eligible Institution”). |
In all cases, payment for Shares tendered and accepted for payment
pursuant to the Offer will be made only after receipt of a properly completed and duly executed Letter of Transmittal, including
any required signature guarantees, and any other documents required by the Letter of Transmittal.
U.S. Federal Backup Withholding Tax. Under the U.S.
federal backup withholding tax rules, unless an exemption applies under the applicable law and regulations, a portion of the gross
proceeds payable to a tendering stockholder or other payee who is a U.S. stockholder (as defined in Section 16) pursuant to
the Offer must be withheld and remitted to the Internal Revenue Service (the “IRS”), unless the tendering stockholder
or other payee provides its taxpayer identification number (i.e., its employer identification number or social security number)
to the Paying Agent (as payor) and certifies under penalties of perjury, among other things, that the number is correct. Any tendering
stockholder that is a U.S. stockholder who has not previously provided an IRS Form W-9 to DST should complete and sign an IRS Form
W-9 so as to provide the information and certification necessary to avoid U.S. federal backup withholding tax, unless the stockholder
otherwise establishes to the satisfaction of the Paying Agent that the stockholder is not subject to such backup withholding tax.
If a U.S. stockholder does not provide the Paying Agent with the correct taxpayer identification number, the U.S. stockholder may
be subject to penalties imposed by the IRS. If U.S. federal backup withholding tax results in an overpayment of taxes, a refund
may be obtained from the IRS in accordance with its refund procedures.
Certain “exempt recipients” (including, among others,
all corporations and certain non-U.S. persons) are not subject to U.S. federal backup withholding tax. In order for a non-U.S.
person to qualify as an exempt recipient, that stockholder must submit an IRS Form W-8BEN, W-8IMY (with any required attachments),
W-8ECI, or W- 8EXP, as applicable (which may be obtained on the IRS website (www.irs.gov)), signed under penalties of perjury,
attesting to that stockholder’s exempt status.
Stockholders are urged to consult with their tax advisor regarding
information reporting and possible qualifications for exemption from U.S. federal backup withholding tax and the procedure for
obtaining any applicable exemption.
For a more complete discussion of certain U.S. federal income tax
consequences related to the Offer, see Section 16.
Determination of Validity; Rejection of Shares; Waiver of
Defects; No Obligation to Give Notice of Defects. All questions as to the number of Shares to be accepted and the validity,
form eligibility, including time of receipt, and acceptance for payment of any tender of Shares will be determined by the Company,
in its sole discretion. Any such determination will be final and binding on all parties except as may be finally determined in
a subsequent judicial proceeding challenging the Company’s determination. The Company reserves the absolute right to reject
any or all tenders of Shares that it determines are not in proper form or the acceptance for payment of or payment for Shares which
may, in the opinion the Company’s counsel, be unlawful. The Company also reserves the absolute right to waive any of the
conditions of the Offer prior to the Expiration Date and to waive any defect or irregularity in any tender with respect to any
particular Share, whether or not the Company waives similar defects or irregularities in the case of any other stockholder. No
tender of Shares will be deemed to have been properly made until all defects or irregularities have been cured by the tendering
stockholder or waived by the Company. The Company will not be liable for failure to waive any condition of the Offer, or any defect
or irregularity in any tender of Shares. To the extent practicable, the Company and DST will give notice of any defects or irregularities
in tenders, provided, however, that none of the Company, DST or any other person will be obligated to give notice of any defects
or irregularities in tenders, nor will any of them incur any liability for failure to give any such notice. Any notice given will
be in the form of a letter. We strongly encourage stockholders to submit completed tender materials as early as possible after
they have properly considered the information in this Offer to Purchase, so that they will have as much time as possible prior
the Expiration Date to correct any defects or irregularities in the materials they provide to us.
Tendering Stockholder’s Representation and Warranty;
Our Acceptance Constitutes an Agreement. Under Rule 14e-4 promulgated under the Exchange Act, no person acting alone or
in concert with others may directly or indirectly tender Shares for the person’s own account unless, at the time of tender
and at the end of the proration period or period during which Shares are accepted by lot, the person has a “net long position”
(i.e., more Shares held in long positions than in short positions) in a number of Shares that is equal to or greater than
the amount tendered and will deliver or cause to be delivered the Shares for the purpose of tendering to us within the period specified
in the Offer. Rule 14e-4 also provides a similar restriction applicable to the tender or guarantee of a tender on behalf of another
person. A tender of Shares made pursuant to any method of delivery set forth herein will constitute the tendering stockholder’s
acceptance of the terms and conditions of the Offer, as well as the tendering stockholder’s representation and warranty to
us that (i) the stockholder has a “net long position” in a number of Shares or “equivalent securities”
at least equal to the Shares being tendered within the meaning of Rule 14e-4 and (ii) the tender of Shares complies with Rule
14e-4. Our acceptance for payment of Shares tendered in the Offer will constitute a binding agreement between the tendering stockholder
and us upon the terms and subject to the conditions of the Offer.
Stockholders may tender all of their Shares or a portion of their
Shares specified as a number of Shares that is less than all of their Shares. A stockholder will be able to tender his or her Shares
to us for purchase regardless of when the stockholder first purchased the Shares.
Stockholders may withdraw Shares tendered at any time prior to 5:00
p.m. Central Time on the Expiration Date. We will not accept any Shares for payment prior to that time. Stockholders may also withdraw
Shares tendered at any time on or after September 30, 2016, if their Shares have not been accepted for payment prior to that time.
For withdrawal to be effective, stockholders must either (i) call
888-310-9352, or (ii) send a Withdrawal Letter by mail or overnight courier service and timely received by the Depositary
at the appropriate address shown on the “Important Instructions and Information” page accompanying the Letter of Transmittal.
Any such Withdrawal Letter must specify the name of the person who tendered the Shares to be withdrawn, must specify the identity
and quantity of Shares to be withdrawn, and must be signed by the person(s) who signed the Letter of Transmittal in the same manner
as the Letter of Transmittal was signed. You should allow sufficient time to ensure timely delivery of your Withdrawal Letter.
If you choose to use the U.S. Postal Service, you may want to consider using registered or certified priority mail with return
receipt requested.
Withdrawals may not be rescinded, and Shares properly withdrawn
will thereafter be deemed not validly tendered. However, withdrawn Shares may be retendered again by following one of the procedures
described in Section 2 at any time before the Expiration Date.
The Company will determine, in its sole discretion, all questions
as to the form and validity (including time of receipt) of any Withdrawal Letter, and our determination shall be final and binding,
subject to each tendering stockholder’s right to bring any dispute with respect thereto before a court of competent jurisdiction.
None of the Company, its affiliates, the Depositary or any other person will be under any duty to give notification of any defect
or irregularity in any Withdrawal Letter or waiver of any such defect or irregularity or incur any liability for failure to give
any such notification.
| 5. |
Purchase and Payment for Tendered Shares |
Upon the terms and subject to the conditions of the Offer, following
the Expiration Date, we will accept for payment up to 4,081,632 Shares, or approximately $30 million of Shares, that are properly
tendered and not properly withdrawn prior to the Expiration Date. For purposes of the Offer, we will be deemed to have accepted
for payment, subject to the “odd lot” priority and proration provisions of the Offer, Shares that are properly tendered
and not properly withdrawn only when, as and if we give oral or written notice to the Depositary and the Paying Agent of our acceptance
of tendered Shares for payment.
We will pay for Shares purchased pursuant to the Offer by depositing
the aggregate Purchase Price for the Shares with the Paying Agent, which will act as agent for tendering stockholders for the purpose
of receiving payment from us and transmitting payment to the tendering stockholders.
If we are required to pro rate, the Paying Agent will determine
the proration factor and pay for those tendered Shares accepted for payment promptly after the Expiration Date. We do not expect
to be able to announce the final results of any proration or commence payment for any Shares purchased pursuant to the Offer until
at least five business days after the Expiration Date. Payment for Shares purchased pursuant to the Offer will not occur on any
date on which a dividend distribution is paid by the Company. All Shares tendered and not purchased due to proration will be returned
to the tendering stockholders.
Under no circumstances will we pay interest on the Purchase Price
even if there is a delay in making payment. In addition, if certain events occur prior to the Expiration Date, we may not be obligated
to purchase Shares pursuant to the Offer. For example, the Offer is subject to certain conditions. See Section 6.
We will purchase 4,081,632 Shares if the Offer is fully subscribed,
which would represent approximately 3% of the issued and outstanding Shares as of August 1, 2016. We may increase the value
of Shares purchased in the Offer and thereby increase the number of Shares accepted for payment in the Offer by no more than 2%
of the outstanding Shares without amending or extending the Offer. If we do so, the number of Shares accepted for payment in the
Offer will increase by up to approximately 2.5 million Shares.
If more than 4,081,632 Shares are duly tendered prior to 5:00 p.m.
Central Time on the Expiration Date and proration is required as described in Section 1, we will not pay for any Shares tendered
until after the final proration has been completed. We will deduct all transfer taxes, if any, payable on the transfer to us of
the Shares purchased pursuant to the Offer.
The Class E SRP is only available in the event of the death or disability
of a stockholder. Redemption requests under the Class E SRP will not be accepted while we are conducting this Offer or any other
self-tender offer for Class E Shares. Requests for redemption under the Class E SRP may only be made during a limited window each
quarter. Class E SRP redemption requests that are submitted through the Class E SRP during this Offer will not be accepted for
consideration and will not affect your ability to participate in this Offer.
| 6. |
Conditions of the Offer |
The Offer is not conditioned upon the receipt of financing or any
minimum number of Shares being tendered. 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, regardless of the circumstances
giving rise to the event or events, makes it inadvisable to proceed with the Offer or with the acceptance for payment for the Shares
tendered in the Offer:
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any threatened or pending action, suit or proceeding by any third-party, including any government or governmental, regulatory or administrative agency, authority or tribunal or by any other person, domestic, foreign or supranational, before any court, authority, agency or other tribunal shall have been instituted or shall be pending, or we have received notice of any such action, that directly or indirectly: |
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challenges or seeks to challenge, makes illegal, or delays or otherwise directly or indirectly restrains, prohibits or otherwise affects our making of the Offer, the acquisition by us of some or all of the Shares pursuant to the Offer or any other matter relating to the Offer, or seeks to obtain any material damages or otherwise relates to the transactions contemplated by the Offer; |
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in our reasonable judgment, could be expected to materially and adversely affect our business, properties, assets, liabilities, capitalization, stockholders’ equity, condition (financial or otherwise), income, operations, results of operations or prospects, taken as a whole, or otherwise materially impair in any way our ability to purchase some or all of the Shares pursuant to the Offer; |
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makes our purchase of, or payment for, some or all of the Shares pursuant to the Offer illegal, or otherwise restricts or prohibits consummation of the Offer; or |
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materially impairs the contemplated benefits to us of the Offer; |
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any change in the general political, market, economic or financial conditions, domestically or internationally, that could reasonably be expected to materially and adversely affect our business or prospects or the benefits to us of the Offer, including, but not limited to, the following: |
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any general suspension of trading in, or limitation on prices for, securities on any U.S. national securities exchange or in the over-the-counter market; |
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the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, whether or not mandatory; |
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the commencement or escalation of war, armed hostilities or other international or national calamity, including, but not limited to, an act of terrorism directly or indirectly involving the United States; |
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any limitation, whether or not mandatory, by any governmental, regulatory or administrative agency or authority on, or any event that, in our reasonable judgment, could materially affect the extension of credit by banks or other lending institutions in the United States; |
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legislation amending the Internal Revenue Code of 1986, as amended (the “Code”), the effect of which, in our reasonable judgment, would be to materially change the tax consequences of the Offer in any manner that would reasonably be expected to materially and adversely affect us; or |
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in the case of any of the foregoing existing at the time of the commencement of the Offer, a material acceleration or worsening thereof; |
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a tender or exchange offer for any or all Shares (other than the Offer), or any merger, acquisition, business combination or other similar transaction with or involving us or our subsidiaries, has been proposed, announced or commenced by any person or has been publicly disclosed and we have not entered into a definitive agreement or an agreement in principle with any person with respect to a merger, business combination or other similar transaction, other than in the ordinary course of business; |
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any entity, “group” (as that term is used in Section 13(d)(3) of the Exchange Act) or person has acquired or proposes to acquire beneficial ownership of more than 5% of our outstanding Shares, whether through the acquisition of stock, the formation of a group, the grant of any option or right, or otherwise (other than as and to the extent disclosed in a Schedule 13D or Schedule 13G filed with the SEC); |
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any entity, group or person who has filed a Schedule 13D or Schedule 13G with the SEC has acquired or proposes to acquire, whether through the acquisition of stock, the formation of a group, the grant of any option or right, or otherwise (other than by virtue of the Offer), beneficial ownership of an additional 2% or more of our outstanding Shares; or |
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any new group has been formed that beneficially owns more than 5% of our outstanding Shares (options for and other rights to acquire Shares that are acquired or proposed to be acquired being deemed to be immediately exercisable or convertible for purposes of this clause); |
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any person, entity or group has filed a Notification and Report Form under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, reflecting an intent to acquire us or any Shares, or has made a public announcement reflecting an intent to acquire us or any of our subsidiaries or any of our respective assets or securities; |
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any action has been taken and no statute, rule, regulation, judgment, decree, injunction or order (preliminary, permanent or otherwise) has been proposed, sought, enacted, entered, promulgated, enforced or deemed to be applicable to the Offer or us by any court, government or governmental agency or other regulatory or administrative authority, domestic or foreign, which, in our reasonable judgment: |
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indicates that any approval or other action of any such court, agency or authority may be required in connection with the Offer or the purchase of Shares thereunder; |
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could reasonably be expected to prohibit, restrict or delay consummation of the Offer; or |
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otherwise could reasonably be expected to materially adversely affect our business or prospects, or the benefits to us of the Offer; |
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any change or changes have occurred in our business, properties, assets, liabilities, capitalization, stockholders’ equity, condition (financial or otherwise), income, operations, results of operations or future business prospects that, in our reasonable judgment, has or have a material adverse effect on our business or prospects, or the benefits to us of the Offer; |
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a reduction in the daily NAV per Share during the Term below $6.62 per Share; |
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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; or |
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we shall have determined that the consummation of the Offer and the purchase of the Shares may cause the Shares to be held of record by less than 300 persons. |
In addition, if completing the Offer on its current or amended terms,
or at all, may cause us to fail to qualify for taxation as a REIT under the Code, we may terminate or amend the Offer or postpone
the acceptance of Shares for payment.
If any of the conditions referred to above is not satisfied, we
may:
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terminate the Offer and return all tendered Shares to the tendering stockholders; |
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extend the Offer and, subject to withdrawal rights as set forth in Section 4, retain all of the Shares until the expiration of the Offer as so extended; |
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waive the condition and, subject to any requirement to extend the period of time during which the Offer is open, purchase all of the Shares validly tendered and not withdrawn prior to the Expiration Date; or |
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delay acceptance for payment or payment for Shares, subject to applicable law, until satisfaction or waiver of the conditions to the Offer. |
The conditions referred to above are for our
sole benefit and may be asserted by us regardless of the circumstances giving rise to any such condition (other than any action
or omission to act by us), and may be 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 at any time to exercise any of the foregoing rights will not
be deemed a waiver of any right, and each such right will be deemed an ongoing right that may be asserted at any time and from
time to time until the Offer shall have expired or been terminated. However, once the Offer has expired, then all of the conditions
to the Offer must have been satisfied or waived. In certain circumstances, if we waive any of the conditions described above, we
may be required to extend the Expiration Date. Any determination by us concerning the events described above will be final and
binding on all parties, subject to each tendering stockholder’s right to bring any dispute with respect thereto before a
court of competent jurisdiction.
| 7. |
Extension of the Offer; Termination; Amendment |
Subject to any applicable rule and regulation of the SEC, we expressly
reserve the right to extend the period of time the Offer is open and delay acceptance for payment of, and payment for, any Shares
by giving oral or written notice of such extension to the Paying Agent and the Depositary and making a public announcement of the
extension. During any extension, all Shares previously tendered and not properly withdrawn will remain subject to the Offer and
to the rights of a tendering stockholder to withdraw his or her Shares.
We also expressly reserve the right, in our sole discretion, not
to accept for payment and not pay for any Shares not previously accepted for payment or paid for, subject to applicable law, to
postpone payment for Shares or to terminate the Offer upon the occurrence of any of the conditions specified in Section 6
by giving oral or written notice of the termination or postponement to the Paying Agent and the Depositary and making a public
announcement of the termination or postponement. Our reservation of the right to delay payment for Shares that we have accepted
for payment is limited by Exchange Act Rule 13e-4(f)(5), which requires that we must pay the consideration offered or return the
Shares tendered promptly after termination or withdrawal of the Offer.
Subject to compliance with applicable law, we further reserve the
right, in our reasonable discretion, and regardless of whether any of the events set forth in Section 6 have occurred or are
deemed by us to have occurred, to amend the Offer in any respect, including, without limitation, by adjusting the Purchase Price
for Shares purchased in the Offer or increasing or decreasing the value of Shares sought in the Offer. Amendments to the Offer
may be made at any time and from time to time by public announcement of the amendment. In the case of an extension, the public
announcement must be issued no later than 9:00 a.m. Eastern Time, on the next business day after the last previously scheduled
or announced Expiration Date. Any public announcement made pursuant to the Offer will be disseminated promptly to stockholders
in a manner reasonably designed to inform stockholders of the change. Without limiting the manner in which we may choose to make
a public announcement, except as required by applicable law, we will have no obligation to publish, advertise or otherwise communicate
any public announcement other than by issuing a press release to the Dow Jones News Service or a comparable service or by filing
a Current Report on Form 8-K. We will not be required to amend or extend the Offer if the increase in the value of Shares purchased
in the Offer does not cause the number of Shares purchased to exceed 2% of the outstanding Shares.
If we materially change the terms of the Offer or the information
concerning the Offer, or if we waive a material condition of the Offer, we will extend the Offer to the extent required by applicable
law.
SEC rules and related releases and interpretations provide that
the minimum period during which an Offer must remain open following material changes in the terms of the Offer or information concerning
the Offer (other than a change in price or a change in percentage of securities sought) will depend on the facts and circumstances,
including the relative materiality of the terms or information. The Offer will be extended until the expiration of the period of
at least ten business days if:
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we adjust the Purchase Price for Shares purchased in the Offer or increase or decrease the value and number of Shares sought in the Offer (and thereby increase or decrease the number of Shares that may be purchased in the Offer), and, in the event of an increase in the value of Shares purchased in the Offer, the number of Shares accepted for payment in the Offer increases by more than 2% of the outstanding Shares, and |
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the Offer is scheduled to expire at any time earlier than the expiration of a period ending on the tenth business day from, and including, the date that notice of such an increase or decrease is first published, sent or given to the stockholders in the manner specified in this Section 7. |
| 8. |
Certain Effects of the Offer |
The purchase of Shares pursuant to the Offer will have the following
effects:
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Depending on how many Shares are purchased, the Offer will decrease the amount of cash we have available for other purposes, such as making new investments, and will likely increase our leverage and our borrowing costs as we intend to finance a portion of the Offer with borrowings. |
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If the Purchase Price is lower than our NAV, the purchases of Shares pursuant to the Offer may have a slightly positive impact to our NAV for remaining stockholders. This positive impact may result in better overall total stockholder returns for remaining stockholders, which may result in a slight increase to the performance-based advisory fee that is paid to the Advisor. |
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Purchases of Shares pursuant to the Offer will increase the proportionate interest of stockholders that do not tender their Shares. |
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Stockholders who tender all of their Shares will give up the opportunity to participate in any potential future benefits from owning Shares, including the right to receive any future dividends or distributions that we may pay. |
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Because there will be fewer outstanding Class E Shares, we anticipate that the base management fees paid to the Advisor will decrease. |
Our purchases pursuant to the Offer will not result in the deregistration
of our Shares under the Exchange Act.
| 9. |
Treatment of Fractional Shares |
If (i) you are tendering all of your Shares and the Offer is
not over-subscribed; or (ii) you are an Odd Lot Holder tendering all of your Shares, we will purchase your properly tendered
Shares, including any fractional Share, pursuant to the terms and subject to the conditions of the Offer. If you tender a total
number of whole Shares such that if this number was to be accepted by the Company you would be left with only a fractional Share
on the Company’s stock ledger, we will consider you to be tendering all of your Shares, including the fractional Share. If
you tender less than all of your Shares by writing in a number of Shares on the Letter of Transmittal that represents less than
all of the whole Shares you own at the time that you submit your Letter of Transmittal, any fractional Share that you own will
not be tendered. If the Offer is over-subscribed and your tendered Shares are subject to purchase on a pro rata basis, the proration
will be adjusted to avoid the purchase of your fractional Share.
| 10. |
Use of Securities Acquired |
We currently intend to cancel and retire Shares purchased in the
Offer. These Shares will return to the status of authorized and unissued common stock and will be available for us to issue without
further stockholder action for all purposes except as required by applicable law.
Except as described or incorporated by reference herein, or as may
occur in the ordinary course of business, we have no plan to take any action that relates to or would result in any of the following:
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an extraordinary transaction, such as a merger, reorganization or liquidation, involving us or any of our subsidiaries; |
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a purchase, sale or transfer of a material amount of our assets or any of our subsidiaries, other than the acquisition and disposition of properties in the ordinary course of business; |
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any material change in our present dividend rate or policy, or in the indebtedness or capitalization of the Company; |
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any change in our present board of directors or management; |
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any other material change in our corporate structure or business; |
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any class of our common stock becoming eligible for termination of registration under Section 12(g)(4) of the Exchange Act; |
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the acquisition by any person of additional securities of the Company, or the disposition of securities of the Company; or |
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any changes in our charter, bylaws or other governing instruments or other actions that could impede the acquisition of control of the Company. |
| 12. |
Source and Amount of Funds |
Assuming that the Offer is fully subscribed, the value of Shares
purchased in the Offer will be approximately $30 million, subject to our ability to increase the number of Shares accepted for
payment in the Offer by up to, but not more than, 2% of the outstanding Shares without amending or extending the Offer in accordance
with rules promulgated by the SEC. If we increase the number of Shares accepted by up to 2%, the dollar value of the Offer would
increase by up to approximately $18.6 million. Assuming that we do not increase the number of Shares accepted for payment, we expect
that the maximum aggregate cost of these purchases, including all fees and expenses applicable to the Offer, will be approximately
$30.2 million. We intend to fund the purchase of Shares in the Offer and pay related costs by using our available cash, which may
include funds received from draws on our credit facility as defined and described below. Our ability to draw on the credit facility
is not a condition of this Offer. We contemplate repaying any borrowed funds out of cash from operations, proceeds from the disposition
of assets, capital raised through our ongoing public offering of Class A, Class I and Class W shares, and/or proceeds from
new loans secured by one or more of our properties.
Credit Facility
On January 13, 2015, we amended and restated our existing $620
million senior unsecured term loan and revolving line of credit to provide for a $550 million senior unsecured term loan and revolving
line of credit (the “Credit Facility”) with a syndicate of 14 lenders led by Bank of America, N.A., as Administrative
Agent. The Credit Facility provides us with the ability from time to time to increase the size of the Credit Facility up to a total
of $900 million less the amount of any prepayments under the term loan component of the Credit Facility, subject to receipt of
lender commitments and other conditions.
The $550 million Credit Facility consists of a $400 million revolving
credit facility (the “Revolving Credit Facility”) and a $150 million term loan (the “Term Loan”). The Revolving
Credit Facility contains a sublimit of $50 million for letters of credit and a sublimit of $50 million for swing line loans. The
primary interest rate for the Revolving Credit Facility is based on LIBOR, plus a margin ranging from 1.40% to 2.30%, depending
on our consolidated leverage ratio. The maturity date of the Revolving Credit Facility is January 31, 2019 and contains one
12-month extension option that we may exercise upon (i) payment of an extension fee equal to 0.15% of the sum of the amount
outstanding under the Revolving Credit Facility and the unused portion of the Revolving Credit Facility at the time of the extension,
and (ii) compliance with the other conditions set forth in the credit agreement. The primary interest rate within the Term
Loan is based on LIBOR, plus a margin ranging from 1.35% to 2.20%, depending on our consolidated leverage ratio. The maturity date
of the Term Loan is January 31, 2018 and contains two 12-month extension options that we may exercise upon (i) payment
of an extension fee equal to 0.125% of the sum of the amount outstanding under the Term Loan at the time of each extension, and
(ii) compliance with the other conditions set forth in the credit agreement.
Borrowings under the Credit Facility are available for general business
purposes including, but not limited to, refinancing of existing indebtedness and financing the acquisition of permitted investments,
including commercial properties.
| 13. |
Certain Information About the Company |
Our Business
The Company is a Maryland corporation formed on April 11, 2005
that invests in a diverse portfolio of real properties and real estate-related debt and securities. The principal offices of the
Company are located at 518 Seventeenth Street, 17th Floor, Denver, Colorado 80202, and its telephone number is (303) 228-2200.
The Company operates in a manner intended to qualify as a REIT for
federal income tax purposes, commencing with the taxable year ended December 31, 2006, when the Company first elected REIT
status. We utilize an Umbrella Partnership Real Estate Investment Trust organizational structure to hold all or substantially all
of our assets through our operating partnership, Dividend Capital Total Realty Operating Partnership, L.P. (our “Operating
Partnership”). Furthermore, our Operating Partnership wholly owns a taxable REIT subsidiary, DCTRT Leasing Corp., through
which we execute certain business transactions that might otherwise have an adverse impact on our status as a REIT if such business
transactions were to occur directly or indirectly through our Operating Partnership. We are managed by the Advisor. We are not
a mutual fund and have not registered, and do not intend to register, as an investment company under the Investment Company Act
of 1940, as amended.
As of March 31, 2016, we had total gross investments with an
estimated fair value of approximately $2.2 billion (calculated in accordance with our valuation procedures), comprised of approximately
$2.2 billion in gross investments in real property and approximately $15.6 million in net debt-related investments. As of March 31,
2016, we had invested in a total of 57 operating properties located in 20 geographic markets in the United States, aggregating
approximately 9.3 million net rentable square feet.
As of August 1, 2016, we had 126,513,784 Class E Shares outstanding,
held by approximately 27,000 stockholders. The majority of these Class E Shares were sold in primary public offerings that terminated
in 2009. We have sold and continue to sell Class E Shares pursuant to our DRP.
On July 12, 2012, we commenced an ongoing public offering (through
multiple registered offerings) of three new classes of our common stock, Class A shares (“Class A Shares”), Class
W shares (“Class W Shares”), and Class I shares (“Class I Shares”). As of August 1, 2016, we had a
total of 33,032,395 Class A Shares, Class W Shares and Class I Shares outstanding, collectively, held by approximately 3,400
stockholders.
On July 12, 2012, we also began calculating and publishing
the daily NAV per share of each of our four classes of common stock. Our board of directors, including a majority of our independent
directors, has adopted valuation procedures, as amended from time to time, that contain a comprehensive set of methodologies to
be used in connection with the calculation of our NAV. Since July 12, 2012, all four of our classes of common stock have been
sold in the DRP at the daily NAV per share, as determined in accordance with our valuation procedures, and our offering of Class A
Shares, Class W Shares and Class I Shares has been conducted with daily NAV-based pricing.
There is no public market for any of our four classes of common
stock and we currently have no obligation or plans to apply for listing on any public securities market. Therefore, redemption
of shares by us is generally the only way for stockholders to dispose of their shares. We currently operate two separate share
redemption programs, the Class E SRP for holders of Class E Shares, and one for holders of Class A Shares, Class W Shares
and Class I Shares (the “Class AWI SRP”). As recently amended, the Class E SRP is only available in the event of the
death or disability of a stockholder and redemption requests under the Class E SRP will not be accepted while we are conducting
this Offer or any other tender offer for Class E Shares.
We do not intend to pursue a “Liquidity Event” with
respect to our Class A Shares, Class W Shares and Class I Shares within any period of time. A “Liquidity Event”
includes, but is not limited to, (a) a listing of our common stock on a national securities exchange (or the receipt by our
stockholders of securities that are listed on a national securities exchange in exchange for our common stock); (b) our sale,
merger or other transaction in which our stockholders either receive, or have the option to receive, cash, securities redeemable
for cash, and/or securities of a publicly traded company; or (c) the sale of all or substantially all of our assets where
our stockholders either receive, or have the option to receive, cash or other consideration. Although we will not be precluded
from pursuing a Liquidity Event (or series thereof) if our board of directors determines that is in the best interest of our stockholders,
we intend to operate as a perpetual-life REIT.
With respect to our Class E stockholders, our long-term goal is
to raise sufficient proceeds in our ongoing primary offering to be able to accommodate those holders of Class E Shares who would
like us to redeem their Shares. Our board of directors currently intends to make liquidity available to Class E stockholders each
quarter (other than liquidity made available in the event of the death or disability of a stockholder through the Class E SRP)
in an amount that is at least equal to the greater of (A) (i) funds received from the sale of Class E Shares under our DRP during
such calendar quarter, plus (ii) 50% of the difference between (a) the proceeds (net of sales commissions) received by us from
the sale of Class A, Class W and Class I shares in any public primary offering and under our DRP during the most recently completed
calendar quarter, and (b) the dollar amount used to redeem Class A, Class W and Class I shares during the most recently completed
calendar quarter pursuant to the Class A, Class W and Class I share redemption program, less (iii) funds used for redemptions of
Class E Shares in the most recently completed quarter due to qualifying death or disability requests of a stockholder during such
calendar quarter and (B) the amount that would result in repurchases or redemptions, during any consecutive twelve month period,
at least equal to five percent of the number of Class E Shares outstanding at the beginning of such twelve-month period, regardless
of whether such liquidity will be made available through the Class E SRP or a tender offer, and excluding liquidity made available
in the event of the death or disability of a stockholder through the Class E SRP. There can be no assurances that we will seek
or be successful in achieving liquidity strategies for our Class E stockholders within any certain time frame or at all. In any
event, our board of directors will seek to act in the best interest of the Company as a whole, taking into consideration all classes
of stockholders.
Share Redemption Programs and Self-Tender Offers
We have adopted the Class E SRP under which, pursuant to an amendment
effective on December 12, 2015, redemptions are only available with respect to Class E Shares in the event of the death or disability
of a stockholder and subject to the following limitation: unless approved by the board of directors, we will not make, during any
consecutive twelve-month period, redemptions in the event of the death or disability of a stockholder that exceed five percent
of the number of Class E Shares outstanding at the beginning of such twelve-month period. Prior to December 12, 2015, Class E Share
redemptions were not limited to requests made in the event of the death or disability of a stockholder. With respect to Class E
stockholders desiring liquidity other than in connection with an event of death or disability, our board of directors evaluates
each quarter whether to make liquidity available through the Class E SRP or through a tender offer process. In order to make such
liquidity available through the Class E SRP, our board of directors would need to amend the Class E SRP. Under the Class E SRP,
we redeem Class E Shares on a quarterly basis. If a redemption request with respect to Class E Shares is made and accepted, the
redemption price per share will be equal to the NAV per Class E Share on the date of redemption. We also have a separate Class
AWI SRP for holders of our Class A Shares, Class W Shares or Class I Shares. The terms of the Class E SRP and Class AWI SRP
are summarized in our Annual Report on Form 10-K for the year ended December 31, 2015, which is incorporated by reference
into this Offer to Purchase. Both the Class E SRP and the Class AWI SRP are included as exhibits to the Schedule TO for this Offer.
Our board of directors may modify, suspend or terminate our share redemption programs if it deems such action to be in the best
interest of our stockholders.
On August 12, 2015, we completed a self-tender offer, pursuant
to which we accepted for purchase approximately 17.2 million Class E Shares at a purchase price of $7.25 per share for an
aggregate cost of approximately $124.4 million. We funded the purchase with a $115.0 million draw on our Revolving Credit Facility
and existing cash. On December 23, 2015, we completed a self-tender offer, pursuant to which we accepted for purchase approximately
2.7 million Class E Shares at a purchase price of $7.39 per share for an aggregate cost of approximately $20.1 million. We
funded the purchase with cash on hand and availability under our Revolving Credit Facility. On March 14, 2016, we completed a self-tender
offer, pursuant to which we accepted for purchase approximately 4.1 million Class E Shares at a purchase price of $7.39 per
share for an aggregate cost of approximately $30 million. We funded the purchase with cash on hand and availability under our Revolving
Credit Facility. On June 14, 2016, we completed a self-tender offer, pursuant to which we accepted for purchase approximately 6.8 million
Class E Shares at a purchase price of $7.31 per share for an aggregate cost of approximately $49.5 million. We funded the purchase
with cash on hand and availability under our Revolving Credit Facility.
Below is a summary of Class E Share redemptions pursuant to the
Class E SRP and purchases pursuant to self-tender offers for each quarter since the beginning of 2015 (number of shares in thousands).
| For the Quarter
Ended: |
|
Number of Class E
Shares Requested for Redemption or Purchase |
|
Number of Class E
Shares Redeemed or Purchased |
|
|
Percentage of Class E
Shares Requested for Redemption Redeemed or for Purchase Purchased |
|
|
|
Price
Paid per Share |
|
| March
31, 2015 |
|
|
|
|
|
|
|
|
| Class
E SRP – Ordinary Redemptions |
|
|
18,570 |
|
|
|
1,104 |
|
|
|
5.9 |
% |
|
$ |
7.30 |
|
| Class
E SRP – Death or Disability Redemptions |
|
|
426 |
|
|
|
426 |
|
|
|
100.0 |
% |
|
|
7.30 |
|
| Total
/ Average |
|
|
18,996 |
|
|
|
1,530 |
|
|
|
8.1 |
% |
|
|
7.30 |
|
| June
30, 2015 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Class
E SRP – Ordinary Redemptions |
|
|
20,031 |
|
|
|
4,379 |
|
|
|
21.9 |
% |
|
|
7.38 |
|
| Class
E SRP – Death or Disability Redemptions |
|
|
626 |
|
|
|
626 |
|
|
|
100.0 |
% |
|
|
7.38 |
|
| Total
/ Average |
|
|
20,657 |
|
|
|
5,005 |
|
|
|
24.2 |
% |
|
|
7.38 |
|
| September
30, 2015 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Class
E SRP – Ordinary Redemptions |
|
|
12,456 |
|
|
|
1,393 |
|
|
|
11.2 |
% |
|
|
7.42 |
|
| Class
E SRP – Death or Disability Redemptions |
|
|
452 |
|
|
|
452 |
|
|
|
100.0 |
% |
|
|
7.42 |
|
| Self-Tender
Offer Purchases (1) |
|
|
17,153 |
|
|
|
17,153 |
|
|
|
100.0 |
% |
|
|
7.25 |
|
| Total
/ Average |
|
|
30,061 |
|
|
|
18,998 |
|
|
|
63.2 |
% |
|
|
7.27 |
|
| December
31, 2015 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Self-Tender
Offer Purchases (2) |
|
|
20,758 |
|
|
|
2,707 |
|
|
|
13.0 |
% |
|
|
7.39 |
|
| Total
/ Average |
|
|
20,758 |
|
|
|
2,707 |
|
|
|
13.0 |
% |
|
|
7.39 |
|
| Average
2015 |
|
|
22,618 |
|
|
|
7,060 |
|
|
|
31.2 |
% |
|
$ |
7.30 |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| March
31, 2016 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Class
E SRP – Death or Disability Redemptions |
|
|
460 |
|
|
|
460 |
|
|
|
100.0 |
% |
|
$ |
7.43 |
|
| Self-Tender
Offer Purchases (2) |
|
|
13,660 |
|
|
|
4,058 |
|
|
|
29.7 |
% |
|
|
7.39 |
|
| Total
/ Average |
|
|
14,120 |
|
|
|
4,518 |
|
|
|
32.0 |
% |
|
|
7.39 |
|
| June
30, 2016 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Class
E SRP – Death or Disability Redemptions |
|
|
537 |
|
|
|
537 |
|
|
|
100.0 |
% |
|
|
7.37 |
|
| Self-Tender
Offer Purchases (2) |
|
|
13,896 |
|
|
|
6,770 |
|
|
|
48.7 |
% |
|
|
7.31 |
|
| Total
/ Average |
|
|
14,433 |
|
|
|
7,307 |
|
|
|
50.6 |
% |
|
|
7.31 |
|
| Average
2016 |
|
|
14,277 |
|
|
|
5,913 |
|
|
|
41.4 |
% |
|
$ |
7.34 |
|
| (1) |
Amounts represent Class E shares properly tendered and not properly withdrawn at or below the final purchase price of $7.25 per share of a modified “Dutch auction” tender offer, which we completed on August 12, 2015. An additional 6,863 Class E shares were submitted for redemption at prices higher than the final purchase price, and were therefore not properly tendered. |
| (2) |
Amounts represent Class E shares purchased pursuant to self-tender offers, which we completed on December 23, 2015, March 14, 2016, and June 14, 2016. |
During 2015, we satisfied 100% of the redemption requests received
pursuant to our Class AWI SRP; we redeemed approximately 23,000 Class A Shares for an average price of approximately $7.29
per share, approximately 20,000 Class W Shares for an average price of approximately $7.32 per share and approximately 873,000
Class I Shares for an average price of approximately $7.37 per share. Through June 30, 2016, we satisfied 100% of the redemption
requests received pursuant to our Class AWI SRP; we redeemed approximately 280,000 Class I shares for an average price of approximately
$7.39 per share, approximately 332,000 Class W shares for a weighted average price of approximately $7.35 per share, and approximately
140,000 Class A shares for a weighted average price of approximately $7.35 per share.
Share redemptions in 2015 and the first and second quarters of 2016
for both our Class E SRP and our Class AWI SRP were funded through a combination of offering proceeds from our ongoing primary
offering of Class A Shares, Class W Shares and Class I Shares, sales of Class E Shares, Class A Shares, Class W Shares
and Class I Shares pursuant to our DRP, and asset sales.
Net Asset Value
There is no public market for shares of our common stock and we
currently have no obligation or plans to apply for listing on any public trading market. The prices at which our shares of common
stock are sold pursuant to our public offerings, or redeemed pursuant to our share redemption programs, are based on the daily
NAV per share determined in accordance with our valuation procedures. Our valuation procedures are filed as Exhibit 99.1 to our
Annual Report on Form 10-K for the year ended December 31, 2014, which is incorporated by reference into this Offer to Purchase.
In addition, important information regarding the components of our NAV and the process, methodology, assumptions and limitations
of our NAV is contained in our Annual Report on Form 10-K for the year ended December 31, 2015 and our Quarterly Report on
Form 10-Q for the three months ended March 31, 2016, each of which is incorporated by reference into this Offer to Purchase.
Because there is no public trading market for the Shares, we cannot
provide a market price for the Shares. In accordance with our valuation procedures, we do calculate on a daily basis the NAV of
the Shares. The following table presents the high and low NAV per share of each class of common stock for each quarter within the
three most recent fiscal years (to date, our classes have had the same NAV on each day):
| Quarter | |
Low | |
High |
| First Quarter 2014 | |
$ | 6.93 | | |
$ | 6.96 | |
| Second Quarter 2014 | |
$ | 6.96 | | |
$ | 7.00 | |
| Third Quarter 2014 | |
$ | 7.00 | | |
$ | 7.09 | |
| Fourth Quarter 2014 | |
$ | 7.08 | | |
$ | 7.19 | |
| First Quarter 2015 | |
$ | 7.13 | | |
$ | 7.31 | |
| Second Quarter 2015 | |
$ | 7.28 | | |
$ | 7.38 | |
| Third Quarter 2015 | |
$ | 7.36 | | |
$ | 7.44 | |
| Fourth Quarter 2015 | |
$ | 7.40 | | |
$ | 7.47 | |
| First Quarter 2016 | |
$ | 7.36 | | |
$ | 7.47 | |
| Second Quarter 2016 | |
$ | 7.34 | | |
$ | 7.40 | |
On each business day, our NAV per Class E Share is (1) posted
on our website, www.dividendcapitaldiversified.com, and (2) made available on our toll-free, automated telephone line, (888)
310-9352. The NAV per Share on the last business day prior to the date of this Offer was $7.39 per Share. Tendering stockholders
whose Shares are accepted for payment will lose the opportunity to participate in any potential future upside and future growth
of the Company with respect to such Shares and will lose the right to receive any future distributions or dividends that we may
pay. The daily NAV of our Shares may be higher than the Purchase Price but will not be lower. Stockholders are urged to obtain
the most recent NAV per Share before deciding whether to tender their Shares.
Distribution Information
On June 23, 2016, the Company’s board of directors authorized
a quarterly distribution of $0.09 per Class E Share for the third quarter of 2016. The distribution will be payable to Class E
stockholders of record as of the close of business on each day during the period from July 1, 2016 through and including September
30, 2016, prorated for the period of ownership. Distributions on our shares accrue daily.
Our board of directors authorized quarterly distributions for our
Class E stockholders equal to $0.09 per share for each quarter of 2015 and the first and second quarters of 2016. We paid these
distributions within 19 days after the end of each respective quarter.
Beneficial Ownership of Shares by Directors and Officers
The following table shows, as of August 5, 2016, the amount
of each class of our common stock beneficially owned (unless otherwise indicated) by (i) any person who is known by us to
be the beneficial owner of more than 5 percent of the outstanding shares of such class, (ii) our directors, (iii) our
executive officers and (iv) all of our directors and executive officers as a group.
Unless otherwise indicated below, each person or entity has an address
in care of our principal executive offices at 518 Seventeenth Street, 17th Floor, Denver, Colorado 80202.
| Name and Address of Beneficial Owner (1) | |
Amount and Nature of
Beneficial Ownership | |
|
Percent of Common Stock of Applicable Class |
|
| Dividend Capital Total Advisors LLC (2) | |
| 20,000 | | |
| Class E Shares | | |
| * | |
| | |
| 87,862 | | |
| Class I Shares | | |
| * | |
| John A. Blumberg (Director) (2) | |
| 36,822 | | |
| Class I Shares | | |
| * | |
| Charles B. Duke (Independent Director) | |
| 3,640 | | |
| Class I Shares | | |
| * | |
| Richard D. Kincaid (Chairman and Director) | |
| 53,173 | | |
| Class I Shares | | |
| * | |
| Daniel J. Sullivan (Independent Director) | |
| 3,777 | | |
| Class I Shares | | |
| * | |
| John P. Woodberry (Independent Director) | |
| 8,640 | | |
| Class I Shares | | |
| * | |
| Jeffrey L. Johnson (Chief Executive Officer) | |
| 192,560 | | |
| Class I Shares | | |
| * | |
| J. Michael Lynch (President and Chief Operating Officer) | |
| 63,934 | | |
| Class I Shares | | |
| * | |
| M. Kirk Scott (Chief Financial Officer and Treasurer) | |
| 30,174 | | |
| Class I Shares | | |
| * | |
| Joshua J. Widoff (Executive Vice President, General Counsel and Secretary) | |
| 14,900 | | |
| Class I Shares | | |
| * | |
| Gregory M. Moran (Executive Vice President) | |
| 3,707 | | |
| Class I Shares | | |
| * | |
| Beneficial ownership of Common Stock by all directors and executive officers as a group (10 persons) (2) | |
| 20,000 | | |
| Class E Shares | | |
| * | |
| | |
| 499,189 | | |
| Class I Shares | | |
| 1.7 | % |
*Less than 1%.
| (1) |
Except as otherwise
indicated below, each beneficial owner has the sole power to vote and dispose of all common stock held by that beneficial owner.
Beneficial ownership is determined in accordance with Rule 13d-3 under the Exchange Act. Common stock issuable pursuant to options,
to the extent such options are exercisable within 60 days, is treated as beneficially owned and outstanding for the purpose of
computing the percentage ownership of the person holding the option, but is not treated as outstanding for the purpose of computing
the percentage ownership of any other person. |
| (2) |
The Advisor and the parent of the Advisor are presently each directly or indirectly controlled by one or more of the following and/or their affiliates: John A. Blumberg, James R. Mulvihill, and Evan H. Zucker. |
Recent Securities Transactions
During the 60 days prior to August 5, 2016, pursuant
to the Company’s share redemption programs, the Company redeemed approximately 463,000 Class E Shares at $7.40 per
share, for an aggregate price of approximately $3.4 million, approximately 16,000 Class A Shares at an average price of $7.39
per share, for an aggregate price of approximately $116,000, and approximately 118,000 Class I Shares at an average price of
$7.39 per share, for an aggregate price of approximately $871,000.
During the 60 days prior to August 5, 2016, pursuant to a self-tender
offer, the Company accepted for purchase approximately 6.8 million Class E Shares at a purchase price of $7.31 per share for an
aggregate cost of approximately $49.5 million.
During the 60 days prior to August 5, 2016, pursuant to the
Company’s DRP, the Company sold 498,000 Class E Shares at $7.39 per share, for an aggregate price of approximately $3.7 million,
11,000 Class A Shares at $7.39 per share, for an aggregate price of approximately $84,000, 13,000 Class W Shares at $7.39 per share,
for an aggregate price of approximately $96,000, and 170,000 Class I Shares at $7.39 per share, for an aggregate price of approximately
$1.3 million.
During the 60 days prior to August 5, 2016, pursuant to the
ongoing public offering, the Company sold 40,000 Class A Shares at $7.36 per share, for an aggregate price of approximately $296,000,
33,000 Class W Shares at $7.39 per share, for an aggregate price of approximately $245,000, and 4.8 million Class I Shares at $7.39
per share, for an aggregate price of approximately $35.6 million.
During the 60 days prior to August 5, 2016, pursuant to the
restricted stock units granted to our independent directors, the Company settled 4,000 Class I Shares at a weighted average exercise
price of $7.40 per share, for an aggregate price of approximately $32,000.
During the 60 days prior to August 5, 2016, no other transactions
with respect to any of the four classes of common stock have been effected by the Company or by any of its executive officers,
directors, affiliates or subsidiaries.
Except as set forth above: (i) the Company does not, and to
its knowledge, none of the persons listed above nor any of their affiliates, beneficially own or has a right to acquire any Shares
or any other equity securities of the Company; (ii) the Company has not, and to its knowledge the persons or entities referred
to in clause (i) above have not, effected any transaction in the Shares or any other equity securities of the Company during
the 60 days prior to August 5, 2016.
Restricted Stock Unit Agreements
We have entered into Restricted Stock Unit Agreements (the “Advisor
RSU Agreements”) with the Advisor. Pursuant to the terms of the Advisor RSU Agreements, we have granted 412,800 restricted
stock units to the Advisor (“Company RSUs”) that remain unvested and unsettled as of August 5, 2016. Each Company
RSU will, upon vesting, be settled in one Class I Share. The Company RSUs are subject to specified vesting and settlement provisions
and, upon settlement in Class I Shares of Company common stock, require offsets of advisory fees and expenses otherwise payable
from the Company to the Advisor based on a value of the NAV per Class I Share on the grant date of the applicable Company RSU (the
weighted average grant-date NAV per Class I Share with respect to the unsettled Company RSUs is $7.18 as of August 5, 2016).
As of August 5, 2016, 101,993 Class I Shares that were issued upon settlement of Company RSUs remain subject to fee offset.
Vesting and Payment Offset
The chart below shows the grant dates, remaining vesting dates and
Class I NAV on the grant dates of the unvested Company RSUs as of August 5, 2016.
| Award | |
Grant
Date | |
Vesting
Dates | |
Number of
Unvested | |
|
Applicable
Grant Date NAV |
|
| Company
RSU | |
April 7, 2014 | |
April 14,
2017 | |
| 123,394 | | |
$ | 6.96 | |
| Company
RSU | |
February 25, 2015 | |
April
14, 2017 | |
| 29,596 | | |
| 7.18 | |
| Company
RSU | |
February
25, 2015 | |
April
13, 2018 | |
| 135,359 | | |
| 7.18 | |
| Company
RSU | |
February
4, 2016 | |
April
15, 2019 | |
| 124,451 | | |
| 7.41 | |
| | |
| |
| |
| | | |
| | |
| Total/Weighted
Average | |
| |
| |
| 412,800 | | |
$ | 7.18 | |
Following specified vesting provisions, an equal percentage of the
Company RSUs vest on each of the applicable vesting dates. On each vesting date, an offset amount will be calculated and deducted
on a pro rata basis over the next 12 months from the cash payments otherwise due and payable to the Advisor under our then-current
Advisory Agreement for any fees or expense reimbursements. Each offset amount will equal the number of Company RSUs vesting on
such date multiplied by the NAV per Class I share publicly disclosed by us. For each Company RSU, the offset amount will always
be calculated based on the grant-date NAV per Class I Share, even beyond the initial grant and vesting dates. At the end of each
12-month period following each vesting date, if the offset amount has not been fully realized by offsets from the cash payments
otherwise due and payable to the Advisor under the Advisory Agreement, the Advisor will promptly pay any shortfall to us.
Granting of RSUs to Executives
The purposes of the Advisor
RSU Agreements are to promote an alignment of interests among our stockholders, the Advisor and the personnel of the Advisor and
its affiliates, and to promote retention of the personnel of the Advisor and its affiliates. The Advisor has entered into agreements
to redistribute substantially all of the Class I Shares acquired through Company RSUs to senior level employees of the Advisor
and its affiliates that provide services to us, although the terms of such redistributions (including the timing, amount and recipients)
remain solely in the discretion of the Advisor. The Advisor has granted 467,756 restricted stock units (“Advisor RSUs”)
to certain employees of the Advisor and its affiliates that remain unsettled as of August 5, 2016. Each Advisor RSU will,
upon vesting, be settled in one Class I Share. The Advisor RSUs are subject to specified vesting and settlement provisions and,
upon settlement in Class I Shares, require offsets of compensation otherwise payable from the Advisor or its affiliates to the
applicable employee based on a value of the NAV per Class I Share on the grant date of the applicable Advisor RSU (the weighted
average grant-date NAV per Class I Share with respect to the unsettled Advisor RSUs is $7.16 as of August 5, 2016). As of
August 5, 2016, 87,862 Advisor RSUs have vested but have not been settled. Both Company RSUs and Advisor RSUs are entitled
to dividend equivalents that mirror the dividends paid by us with respect to Class I Shares.
| Name
of Executive Officer | |
Outstanding
Advisor RSUs | |
|
Weighted-Average
Grant-Date NAV per Class I Share |
|
| Richard
D. Kincaid (Chairman and Director) | |
| 42,215 | | |
$ | 7.11 | |
| Jeffrey
L. Johnson (Chief Executive Officer) | |
| 243,531 | | |
| 7.19 | |
| J.
Michael Lynch (President and Chief Operating Officer) | |
| 67,327 | | |
| 7.15 | |
| M.
Kirk Scott (Chief Financial Officer and Treasurer) | |
| 48,965 | | |
| 7.15 | |
| Joshua
J. Widoff (Executive Vice President, General Counsel, and Secretary) | |
| 11,083 | | |
| 7.05 | |
| Gregory
M. Moran (Executive Vice President) | |
| 6,750 | | |
| 7.41 | |
| | |
| | | |
| | |
| Total | |
| 419,872 | | |
$ | 7.17 | |
Termination
The Advisor RSU Agreements will automatically terminate upon termination
or non-renewal of the Advisory Agreement by any party for any reason. In addition, upon a change in control of us, then either
the Advisor or we may immediately terminate the Advisor RSU Agreements. Further, the Advisor may immediately terminate the Advisor
RSU Agreements if we exercise certain rights under the Advisor RSU Agreements to replace the Company RSUs with another form of
compensation.
Upon termination of the Advisor RSU Agreements, the Advisor will
promptly pay any unused offset amounts to us or, at the Advisor’s election, return Class I Shares in equal value based on
the Class I NAV as of the date of termination of the Advisor RSU Agreements. In addition, upon termination of the Advisor RSU Agreements,
all unvested Company RSUs will be forfeited except that, unless the Advisor RSU Agreements were terminated at the election of the
Advisor following a change in control of us or as a result of a premature termination of the Advisory Agreement at our election
for cause (as defined in the Advisory Agreement) or upon the bankruptcy of the Advisor, then following such forfeiture of Company
RSUs, the Advisor will have the right to acquire from us the number of Class I Shares equal to the number of Company RSUs forfeited,
in return for a purchase price equal to such number of Class I Shares multiplied by the grant-date NAV per Class I Share. The Advisor
must notify us of its election to exercise the foregoing acquisition right within 30 days following the termination of the Advisor
RSU Agreements, and the parties will close the transaction within 60 days following the termination of the Advisor RSU Agreements.
Dividend Equivalent Payments
If our board of directors declares and we pay a cash dividend on
Class I Shares for any period in which the Company RSUs are outstanding (regardless of whether such Company RSUs are then vested),
the Advisor will be entitled to dividend equivalents with respect to that cash dividend equal to the cash dividends that would
have been payable on the same number of Class I Shares as the number of Company RSUs subject to the Advisor RSU Agreements had
such Class I Shares been outstanding during the same portion of such period as the Company RSUs were outstanding. Any such dividend
equivalents may be paid in cash or Class I Shares, at the Advisor’s election.
Restricted Stock Award Agreements
From time to time, the Company
grants restricted stock awards to employees of the Advisor and its affiliates. Such shares of restricted stock are eligible to
vote with the stockholders and receive dividends, but the shares remain subject to forfeiture until vested. As of August 5,
2016, 58,877 Class I Shares had been awarded by the Company to employees of the Advisor and its affiliates that remained subject
to future vesting.
Other Interests
Except as otherwise described or incorporated by reference in this
Offer to Purchase or the Schedule TO, neither we nor, to the best of our knowledge, any of our affiliates, directors or executive
officers, is a party to any agreement, arrangement, understanding or relationship, whether or not legally enforceable, with any
other person, relating, directly or indirectly, to the Offer or with respect to any of our securities, including, but not limited
to, any agreement, arrangement, understanding or relationship concerning the transfer or the voting of our securities, joint ventures,
loan or option arrangements, puts or calls, guarantees of loans, guarantees against loss or the giving or withholding of proxies,
consents or authorizations.
Incorporation by Reference
The rules of the SEC allow us to “incorporate by reference”
information into this Offer to Purchase, which means that we can disclose important information about us to you by referring you
to other documents that we file with the SEC. The information incorporated by reference is an important part of this Offer to Purchase,
and is deemed to be part hereof except to the extent any such information is modified or superseded by information in this Offer
to Purchase or in any other document expressly incorporated herein (whether specified below or in any amendment to the Schedule
TO) that has a later date. We incorporate by reference the documents listed below (except to the extent that the information contained
therein is deemed “furnished” and not “filed” in accordance with SEC rules):
| |
● |
our Annual Report on Form 10-K for the year ended December 31, 2015, filed on March 3, 2016; |
| |
|
|
| |
● |
our Quarterly Report on Form 10-Q for the three months ended March 31, 2016, filed on May 13, 2016; |
| |
|
|
| |
● |
our Definitive Proxy Statement on Schedule 14A, filed on April 21, 2016; |
| |
|
|
| |
● |
our Current Report on Form 8-K, filed on January 5, 2016; |
| |
|
|
| |
● |
our Current Report on Form 8-K, filed on February 1, 2016; |
| |
|
|
| |
● |
our Current Report on Form 8-K, filed on February 5, 2016; |
| |
|
|
| |
● |
our Current Report on Form 8-K, filed on March 1, 2016; |
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our Current Report on Form 8-K/A, filed on March 3, 2016; |
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our Current Report on Form 8-K, filed on April 1, 2016; |
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our Current Report on Form 8-K, filed on May 2, 2016; |
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our Current Report on Form 8-K, filed on May 11, 2016; |
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our Current Report on Form 8-K, filed on June 1, 2016; |
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our Current Report on Form 8-K, filed on June 27, 2016; |
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our Current Report on Form 8-K, filed on July 1, 2016; and |
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our Current Report on Form 8-K, filed on August 1, 2016. |
The information relating to us contained in this Offer to Purchase
should be read together with the information in the documents incorporated by reference. Any statement contained in any document
incorporated by reference in this Offer to Purchase shall be deemed to be modified or superseded to the extent that an inconsistent
statement is made in the Offer. Any statement so modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of the Offer.
| 14. |
Additional Information |
We have filed an issuer Tender Offer Statement on Schedule TO with
the SEC that includes certain additional information relating to the Offer. We intend to supplement and amend the Schedule TO to
the extent required to reflect information we subsequently file with the SEC. This material may be inspected and copied at prescribed
rates at the SEC’s public reference facilities at 100 F Street, N.E., Washington, D.C. 20549. The SEC also maintains a website
(http://www.sec.gov) that contains our Schedule TO, reports and other information about us, including our annual, quarterly and
current reports, proxy statements and other SEC filings. You may also obtain a copy of our Schedule TO or a copy of any or all
of the documents incorporated herein by reference, other than the exhibits to any documents that are not specifically incorporated
by reference herein, free of charge by contacting us at the address or telephone number set forth on the first page of this Offer
to Purchase.
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Certain Legal Matters; Regulatory Approvals |
We are neither aware of any license or regulatory permit that is
material to our business that might be adversely affected by our acquisition of the Shares pursuant to the Offer, nor are we aware
of any approval or other action by any government or governmental, administrative or regulatory authority, agency or body that
would be required for us to acquire Shares as contemplated by the Offer. We contemplate that we will seek any approvals or make
any filings that may become necessary. We cannot predict whether we will be required to delay the acceptance for payment of or
payment for Shares tendered in the Offer pending the outcome of a required approval or other action. There can be no assurance
that any approval or other action, if needed, would be obtained or would obtained without substantial cost or conditions or that
the failure to obtain the approval or other action might not result in adverse consequences to our business and financial condition.
Our obligations pursuant to the Offer to accept for payment and pay for the tendered Shares are subject to the satisfaction of
certain conditions. See Section 6.
| 16. |
Material U.S. Income Tax Consequences |
The following discussion is a general summary of the material U.S.
federal income tax consequences related to the tender of Shares pursuant to the Offer. It does not contain any discussion of state,
local or non-U.S. tax consequences. You should consult your tax advisor for a complete description of the federal, state, local
and non-U.S. tax consequences to you of tendering Shares pursuant to the Offer.
This summary is based upon the Code, the Treasury Regulations, current
administrative interpretations and practices of the IRS (including administrative interpretations and practices expressed in private
letter rulings which are binding on the IRS only with respect to the particular taxpayers who received those rulings) and judicial
decisions, all as currently in effect, and all of which are subject to differing interpretations or to change, possibly with retroactive
effect. No assurance can be given that the IRS would not assert, or that a court would not sustain a position contrary to any of
the tax consequences described below.
This summary of the material U.S. federal income tax consequences
applies to you only if you hold Shares as a “capital asset” (generally, property held for investment). Special rules
not discussed here may apply to you if you are (i) a broker-dealer or a dealer in securities or currencies, (ii) an
S corporation, (iii) a partnership or other pass-through entity, (iv) a bank, thrift or other financial institution,
(v) a regulated investment company or a REIT, (vi) an insurance company, a tax-exempt organization, (vii) a person
that is not a U.S. stockholder, as defined below, (viii) subject to the alternative minimum tax provisions of the Code, (ix) holding
Shares as part of a hedge, straddle, conversion, integrated or other risk reduction or constructive sale transaction, (x) holding
Shares through a partnership or other pass-through entity, or (xi) a U.S. person whose “functional currency”
is not the U.S. dollar.
This summary is for general information purposes only and is not
tax advice.
The balance of this summary applies only to U.S. stockholders that
are not tax-exempt organizations. For these purposes, a “U.S. stockholder” is a beneficial owner of Shares that for
federal income tax purposes is:
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a citizen or resident of the United States; |
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a corporation or partnership (including an entity treated as a corporation or partnership for federal tax purposes) created or organized in or under the laws of the United States, any of its states or the District of Columbia; |
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an estate, the income of which is subject to federal income taxation regardless of its source; or |
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a trust if either a U.S. court is able to exercise primary supervision over the administration of such trust and one or more U.S. persons have the authority to control all substantial decisions of the trust or it has a valid election in place to be treated as a U.S. person. |
If a partnership, including any entity that is treated as a partnership
for federal tax purposes, holds Shares, the federal income tax treatment of the partner in the partnership will generally depend
on the status of the partner and the activities of the partnership. If you are a partner in a partnership that holds Shares, you
should consult your tax advisor regarding the tax consequences of tendering Shares held by the partnership.
STOCKHOLDERS WHO ARE NOT U.S. STOCKHOLDERS SHOULD CONSULT THEIR
TAX ADVISORS REGARDING THE FEDERAL INCOME TAX CONSEQUENCES AND ANY APPLICABLE STATE, LOCAL OR FOREIGN TAX CONSEQUENCES OF THE OFFER.
Generally. A sale of Shares pursuant to the Offer
will constitute a “redemption” under the Code and will be a taxable transaction for federal income tax purposes. If
the redemption qualifies as a sale of Shares by a U.S. stockholder under Section 302 of the Code, the U.S. stockholder will
recognize gain or loss equal to the difference between (i) the cash received pursuant to the Offer and (ii) the U.S.
stockholder’s adjusted tax basis in the Shares surrendered pursuant to the Offer. If the redemption does not qualify as a
sale of Shares under Section 302 of the Code, the U.S. stockholder will not be treated as having sold Shares but will be treated
as having received a distribution from us in an amount up to the amount of the cash received pursuant to the Offer. If a U.S. stockholder
is treated as receiving a distribution from us, the U.S. stockholder will generally be taken into account as ordinary income dividend
to the extent of our current or accumulated earnings and profits, unless we designate the dividend as a capital gain dividend.
As described below, whether a redemption qualifies for sale treatment
will depend largely on the total number of the U.S. stockholder’s Shares (including any Shares constructively owned by the
U.S. stockholder) that are purchased in the Offer and any Shares acquired or disposed of in a transaction that, for federal income
tax purposes, is integrated with the Offer.
Sale Treatment. Under Section 302 of the Code,
a redemption of Shares pursuant to the Offer will be treated as a sale of such Shares for federal income tax purposes if such redemption
(i) results in a “complete redemption” of all of the U.S. stockholder’s stock in us, (ii) is “substantially
disproportionate” with respect to the U.S. stockholder, or (iii) is “not essentially equivalent to a dividend”
with respect to the stockholder. For purposes of these tests, Shares shall be deemed to include all common stock of the Company.
In determining whether any of these three tests under Section 302 of the Code is satisfied, a U.S. stockholder must take into
account not only stock that the U.S. stockholder actually owns, but also any stock that the U.S. stockholder is treated as owning
pursuant to the constructive ownership rules of Section 318 of the Code. Under those rules, a U.S. stockholder generally is
treated as owning (i) Shares owned by the U.S. stockholder’s spouse, children, grandchildren and parents; (ii) Shares
owned by certain trusts of which the U.S. stockholder is a beneficiary, in proportion to the U.S. stockholder’s interest;
(iii) Shares owned by any estate of which the U.S. stockholder is a beneficiary, in proportion to the U.S. stockholder’s
interest; (iv) Shares owned by any partnership or S corporation in which the U.S. stockholder is a partner or stockholder,
in proportion to the U.S. stockholder’s interest; (v) Shares owned by any non-S corporation of which the stockholder
owns at least 50% in value of the stock; and (vi) Shares that the U.S. stockholder has an option or similar right to acquire.
A U.S. stockholder that is a partnership or S corporation, estate, trust or non-S corporation is treated as owning stock owned
(as the case may be) by partners or S corporation stockholders, by estate beneficiaries, by certain trust beneficiaries, and by
50% stockholders of a non-S corporation. Shares constructively owned by a person generally are treated as being owned by that person
for the purpose of attributing ownership to another person.
A redemption of Shares from a U.S. stockholder pursuant to the Offer
will result in a “complete redemption” of all the U.S. stockholder’s Shares in us if either (i) we purchase
all of the Shares actually and constructively owned by the U.S. stockholder, or (ii) the U.S. stockholder actually owns no
Shares after all transfers of Shares pursuant to the Offer, constructively owns only Shares owned by certain family members, and
the U.S. stockholder is eligible for a waiver from, and does waive (pursuant to Section 302(c)(2) of the Code), constructive
ownership of Shares owned by family members. Any U.S. stockholder desiring to waive such constructive ownership of Shares should
consult a tax advisor about the applicability of Section 302(c)(2) of the Code.
A redemption of Shares from a U.S. stockholder pursuant to the Offer
will be “substantially disproportionate” with respect to the U.S. stockholder if (i) the percentage of Shares
actually and constructively owned by the U.S. stockholder compared to all Shares outstanding immediately after all redemptions
of Shares pursuant to the Offer is less than (ii) 80% of the percentage of Shares actually and constructively owned by the
U.S. stockholder compared to all Shares outstanding immediately before such redemptions. The fact that the redemption fails to
qualify as a sale pursuant to the other two tests is not taken into account in determining whether the redemption is “not
essentially equivalent to a dividend.”
A redemption of Shares from a U.S. stockholder pursuant to the Offer
will be “not essentially equivalent to a dividend” if, pursuant to the Offer, the U.S. stockholder experiences a “meaningful
reduction” in his or her proportionate interest in us, including voting rights, participation in earnings and liquidation
rights, arising from the actual and constructive ownership of Shares. The IRS has indicated in Revenue Ruling 76-385 that a very
small reduction in the proportionate interest of a small minority stockholder who does not exercise any control over corporate
affairs generally constitutes a “meaningful reduction” in the stockholder’s interest in the company where the
company’s stock is widely held and publicly traded. Although our Shares are widely held, our Shares are not publicly traded.
U.S. stockholders are urged to consult their tax advisers about the applicability of that ruling to the Offer.
U.S. stockholders should be aware that an acquisition or disposition
of Shares as part of a plan that includes the U.S. stockholder’s tender of Shares pursuant to the Offer should be taken into
account in determining whether any of the foregoing tests is satisfied. U.S. stockholders are urged to consult their own advisors
with regard to whether acquisitions from or sales to third parties and a tender may be so integrated. U.S. stockholders should
also be aware that their ability to satisfy any of the foregoing tests may be affected by proration pursuant to the Offer. Therefore,
a U.S. stockholder (other than an Odd Lot Holder who tenders all of his or her Shares) can be given no assurance, even if the U.S.
stockholder tenders all of his or her Shares, that we will purchase a sufficient number of such Shares to permit the U.S. stockholder
to satisfy any of the foregoing tests.
If any of the foregoing three tests is satisfied, the U.S. stockholder
will recognize gain or loss equal to the difference between the amount of cash received pursuant to the Offer and the U.S. stockholder’s
adjusted tax basis in the Shares sold. Such gain or loss must be determined separately for each block of Shares sold (i.e., Shares
that were acquired in a single transaction). Capital gain or loss generally will be long-term capital gain or loss if, at the time
we accept the Shares for payment, the U.S. stockholder held the Shares for more than one year. Long-term capital gains of individuals,
estates and trusts generally are subject to a maximum U.S. federal income tax rate of 20%. Short-term capital gains of individuals,
estates, and trusts generally are subject to a maximum federal income tax rate of 39.6%. Capital gains of corporations generally
are taxed at the federal income tax rates applicable to corporate ordinary income.
Dividend Treatment. If none of the foregoing three
tests under Section 302 of the Code is satisfied, the U.S. stockholder generally will be treated as having received a distribution
in an amount equal to the amount of cash received by the U.S. stockholder pursuant to the Offer. That distribution will be treated
as ordinary dividend income to the extent our current or accumulated earnings and profits are allocated to the distribution, unless
we designate the dividend as a capital gains dividend. Dividends paid to corporate U.S. stockholders will not qualify for the dividends
received deduction generally available to corporations. In addition, our ordinary dividends generally will not qualify for the
20% tax rate on “qualified dividend income” received by taxpayers taxed as individuals. Our ordinary dividends, with
limited exceptions, paid to taxpayers taxed as individuals are taxed at the higher federal income tax rate applicable to ordinary
income, which is a maximum rate of 39.6%.
Constructive Distributions. Provided that no tendering
U.S. stockholder is treated as receiving a dividend as a result of the Offer, stockholders whose percentage ownership of the Company
increases as a result of the Offer will not be treated as realizing taxable constructive distributions by virtue of that increase.
In the event that any tendering U.S. stockholder is deemed to receive a dividend, it is possible that stockholders whose percentage
ownership of the Company increases as a result of the Offer, including stockholders who do not tender any Shares pursuant to the
Offer, may be deemed to receive a constructive distribution in the amount of the increase in their percentage ownership of the
Company as a result of the Offer. A constructive distribution will be treated as a dividend to the extent of our current or accumulated
earnings and profits allocable to it. This dividend treatment will not apply if the purchase of Shares pursuant to the Offer is
treated as an “isolated redemption” within the meaning of the Treasury Regulations.
Information Reporting. Information returns will generally
be filed with the IRS in connection with the gross proceeds payable to a U.S. stockholder pursuant to the Offer. We will rely on
information previously provided by you in order to determine whether backup withholding is required. If we have not received this
information from you, then unless an exemption exists and is proven in a manner satisfactory to the Depositary, a U.S. stockholder
will be subject to backup withholding on these payments. If you have not previously provided this information or wish to change
previously provided information, you must submit to the Depositary a completed Form W-9, which can be obtained from the Depositary
or from www.irs.gov. Certain stockholders (including, among others, all corporations and certain non-U.S. foreign individuals who
provide an IRS Form W-8BEN) are not subject to these backup withholding and reporting requirements. The amount of any backup withholding
from a payment to a U.S. stockholder will be allowed as a credit against the U.S. stockholder’s U.S. federal income tax liability
and may entitle the U.S. stockholder to a refund.
Federal income tax information reporting rules require “cost
basis” for Shares involved in certain transactions to be reported to stockholders and the IRS. More specifically, upon the
transfer or redemption of any Shares subject to those reporting requirements, a broker must report both the cost basis of the Shares
and the gain or loss recognized on the transfer or redemption of those Shares to the stockholder and to the IRS on Form 1099-B.
In connection with the purchase of Shares pursuant to this Offer,
U.S. stockholders may identify by lot the Shares that are purchased, but U.S. stockholders who do not identify specific lots in
a timely manner will be transferred on a “first in/first out” basis. U.S. stockholders should consult their tax advisors
regarding the consequences of the “cost basis” information reporting rules.
While our board of directors has approved the Offer, neither
the Company, our board of directors, nor DST Systems, Inc. in its capacity as Depositary, Paying Agent or Information Agent for
the Offer, makes any recommendation to stockholders as to whether to tender or refrain from tendering their Shares. Each stockholder
must make his or her own decision whether to tender Shares, and if so, how many Shares to tender. Stockholders are urged to evaluate
carefully all information in the Offer, the Letter of Transmittal and the Schedule TO, including our most recent annual report
on Form 10-K, quarterly reports on Form 10-Q, and Portfolio Performance and Operational Review filed on a current report on Form
8-K, which are incorporated herein by reference and can be found in the “Investor Relations” section of our website,
www.dividendcapitaldiversified.com, and consult their own investment and tax advisors and make their own decisions whether to tender
or refrain from tendering their Shares.
Because each stockholder’s investment decision is a personal
one, based on their own financial circumstances, no person has been authorized to make any recommendation on our behalf as to whether
stockholders should tender their Shares pursuant to the Offer. No person has been authorized to give any information or to make
any representations in connection with the Offer other than those contained or incorporated by reference herein or in a Letter
of Transmittal. If given or made, the recommendation and information and representations must not be relied on as having been authorized
by us.
The Offer is not being made to, and tenders will not be accepted
from, stockholders in any jurisdiction in which the Offer or its acceptance would not comply with the securities laws of the applicable
jurisdiction. We are not aware of any jurisdiction in which the Offer or tenders pursuant thereto would not be in compliance with
the laws of the applicable jurisdiction. However, we reserve the right to exclude stockholders from the Offer in any jurisdiction
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.
We have retained DST to act as the Depositary, the Paying Agent
and the Information Agent in connection with the Offer. In its role as Depositary, DST will receive Letters of Transmittal and
Withdrawal Letters and provide information regarding the Offer to those persons, including stockholders that contact it. As Paying
Agent, DST will be responsible for determining the Purchase Price and proration factor, if any, and matching payment for all Shares
purchased by us in the Offer. As the Information Agent, DST may contact stockholders by mail, telephone, e-mail and personal interviews
and may request brokers, dealers and other nominee stockholders to forward materials relating to the Offer to beneficial owners.
DST will receive reasonable and customary compensation for their
respective services, will be reimbursed by us for reasonable out-of-pocket expenses incurred in connection with the Offer and will
be indemnified against certain liabilities in connection with the Offer, including certain liabilities under the federal securities
laws.
We will not pay any fees or commissions to brokers, dealers or other
persons (other than fees to DST as described above) for soliciting tenders of Shares pursuant to the Offer. We will, however, upon
request, reimburse brokers, dealers and commercial banks for customary mailing and handling expenses incurred by them in forwarding
the Offer and related materials to the beneficial owners of Shares held by them as a nominee or custodian or in a fiduciary capacity.
No broker, dealer, commercial bank or trust company has been authorized to act as our agent, or the agent of DST for purposes of
the Offer.
Stockholders holding their Shares of record will not be required
to pay any fees or commissions in connection with the tender directly to the Depositary and purchase of their Shares. Beneficial
owners who do not own their Shares as record holders are urged to consult the broker, dealer or other nominee or custodian who
is the record holder of their Shares to determine whether transaction costs may apply if stockholders tender Shares through the
brokers, dealers or other nominee or custodian stockholders and not directly to the Depositary. Stockholders holding their Shares
through such broker, dealer, commercial bank, trust company, custodian or other nominee must not deliver a Letter of Transmittal
directly to the Depositary (DST). The broker, dealer, commercial bank, trust company, custodian or other nominee holding your Shares
must submit the Letter of Transmittal that pertains to your Shares to the Depositary (DST) on your behalf. If the Letter of Transmittal
is signed by trustees, executors, administrators, guardians, attorneys-in-fact, agents, officers of corporations or others acting
in a fiduciary or representative capacity, such persons should so indicate when signing, and proper evidence satisfactory to the
Depositary of their authority so to act must be submitted.
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