UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): October 22, 2020
Cole Office & Industrial REIT (CCIT II), Inc.
(Exact Name of Registrant as Specified in its Charter)
| Maryland | 000-55436 | 46-2218486 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
2398 East Camelback Road, 4th Floor, Phoenix, Arizona 85016
(Address of Principal Executive Offices) (Zip Code)
(602) 778-8700
(Registrant’s telephone number, including area code)
None
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☒ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered | ||
| None | None | None |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
As previously disclosed, on August 30, 2020, Cole Office & Industrial REIT (CCIT II), Inc. (the “Company”), CIM Real Estate Finance Trust, Inc. (“CMFT”) and Thor II Merger Sub, LLC, a wholly owned subsidiary of CMFT (“Merger Sub”), entered into an Agreement and Plan of Merger (the “Merger Agreement”).
On October 22, 2020, the parties entered into an Amendment to Agreement and Plan of Merger (the “First Amendment”), pursuant to which the Company was granted an extension to timely deliver a CCIT II Change Notice (as defined in the Merger Agreement) in order for the Go Shop Termination Payment (as defined in the Merger Agreement) to be applicable.
On October 24, 2020, the parties entered into an Amendment to Agreement and Plan of Merger (the “Second Amendment”), pursuant to which the Company was granted another extension to timely deliver a CCIT II Change Notice in order for the Go Shop Termination Payment to be applicable.
The foregoing description does not purport to be complete and is qualified in its entirety by reference to the First Amendment and Second Amendment, which are attached hereto as Exhibit 2.1 and 2.2 and are incorporated herein by reference.
ADDITIONAL INFORMATION ABOUT THE MERGER
In connection with the proposed Merger, CMFT intends to file a definitive registration statement on Form S-4 with the SEC that will include a proxy statement of the Company and will also constitute a prospectus of CMFT. This communication is not a substitute for the registration statement, the proxy statement/prospectus or any other documents that will be made available to the stockholders of the Company. In connection with the proposed Merger, the Company intends to file relevant materials with the SEC, including a proxy statement on Schedule 14A relating to a special meeting of its stockholders. STOCKHOLDERS OF THE COMPANY ARE URGED TO READ ALL RELEVANT DOCUMENTS FILED WITH THE SEC, INCLUDING THE RELEVANT PROXY STATEMENT, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED MERGER. Stockholders of the Company will be able to obtain such documents free of charge at the SEC’s website, www.sec.gov, or through CIM’s website, at https://www.cimgroup.com/investment-strategies/individual/for-shareholders, as they become available. Such documents are not currently available.
PARTICIPANTS IN SOLICITATION RELATING TO THE MERGER
The Company and CMFT and their respective directors and executive officers, as well as certain affiliates of CIM Group, LLC serving as their external advisors, may be deemed to be participants in the solicitation of proxies from the Company’s stockholders in respect of the proposed Merger between the Company and CMFT. Information regarding the directors, executive officers and external advisors of each of the Company and CMFT is contained in the Annual Report on Form 10-K for the year ended December 31, 2019 filed with the SEC by each entity on March 30, 2020, as amended on April 27, 2020. Investors may obtain additional information regarding the interest of such participants by reading the proxy statement of the Company regarding its proposed Merger with CMFT when it becomes available.
NO OFFER OR SOLICITATION
This communication does not constitute an offer to sell or the solicitation of an offer to buy or sell any securities or a solicitation of a proxy or of any vote or approval. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the U.S. Securities Act of 1933, as amended. This communication may be deemed to be solicitation material in respect of the proposed Merger.
Forward-Looking Statements
This Current Report on Form 8-K includes certain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Statements can generally be identified as forward-looking because they include words such as “believes,” “anticipates,” “expects,” “would,” “could,” or words of similar meaning. Statements that describe future plans and objectives are also forward-looking statements. These statements are based on the current expectations of management for the Company and CMFT and on currently available industry, financial and economic data. Actual
results may vary materially from those expressed or implied by the forward-looking statements, which are subject to a number of risks and uncertainties, many of which are out of the control of such companies, including, but not limited to, those associated with the risk that the Merger or any of the Other Mergers will not be consummated within the expected time period or at all; the occurrence of any event, change or other circumstance that could give rise to the termination of the Merger Agreement; the failure to satisfy the conditions to the consummation of the proposed Merger, including the approval of the stockholders of the Company; the ability of CMFT to achieve the expected cost synergies or to engage in any liquidity event or public offering; the disruption of management’s attention from ongoing business operations due to the proposed Merger; the availability of suitable investment or disposition opportunities; the impact of the COVID-19 pandemic on the operations and financial condition of each of the Company and CMFT and the real estate industries in which they operate, including with respect to occupancy rates, rent deferrals and the financial condition of their respective tenants; general financial and economic conditions, which may be affected by government responses to the COVID-19 pandemic; legislative and regulatory changes; and other factors, including those set forth in the section entitled “Risk Factors” in the Company’s and CMFT’s most recent Annual Reports on Form 10-K, as amended, and Quarterly Reports on Form 10-Q filed with the SEC, and other reports filed by the Company and CMFT with the SEC, copies of which are available on the SEC’s website, www.sec.gov. Forward-looking statements are not guarantees of performance or results and speak only as of the date such statements are made. Except as required by law, none of the Company or CMFT undertakes any obligation to update or revise any forward-looking statement in this communication, whether to reflect new information, future events, changes in assumptions or circumstances or otherwise.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| COLE OFFICE & INDUSTRIAL REIT (CCIT II), INC. | ||||||
| Date: October 28, 2020 | By: | /s/ Nathan D. DeBacker | ||||
| Nathan D. DeBacker Chief Financial Officer and Treasurer | ||||||
Exhibit 2.1
EXECUTION VERSION
AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This Amendment to Agreement and Plan of Merger (this “Amendment”), dated as of October 22, 2020, is entered into by and among CIM Real Estate Finance Trust, Inc., a Maryland corporation (“CMFT”), Thor II Merger Sub, LLC, a Maryland limited liability company and wholly owned subsidiary of CMFT (“Merger Sub”), and Cole Office & Industrial REIT (CCIT II), Inc., a Maryland corporation (“CCIT II”). Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, CMFT, CCIT II and Merger Sub are parties to the Agreement and Plan of Merger, dated as of August 30, 2020 (the “Agreement”); and
WHEREAS, the Parties desire to amend the Agreement as set forth herein to memorialize certain agreements reached by the Parties.
NOW THEREFORE, in consideration of the premises and agreements herein contained, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. References. Each reference in the Agreement to “hereof”, “herein”, “hereunder”, “hereby” and “this Agreement” shall, from and after the date of this Amendment, refer to the Agreement as amended by this Amendment. Each reference to a “Section” shall refer to a “Section” of the Agreement unless otherwise stated.
2. Amendment. The Parties agree that, for purposes of Sections 9.3(b)(ii)(A)(1) 9.3(b)(iii)(A)(1), notwithstanding anything to the contrary in such Sections, CCIT II shall have until 12:00 p.m., Pacific Time, on October 25, 2020 to timely deliver a CCIT II Change Notice in respect of a Superior Proposal with the Go Shop Bidder previously identified to CMFT in accordance with Section 7.3(a).
3. Acknowledgement. For the avoidance of doubt, so long as a CCIT II Change Notice is delivered by 12:00 P.M., Pacific Time, on October 25, 2020 with respect to the Go Shop Bidder previously identified to CMFT in accordance with Section 7.3(a) and (a) CCIT II subsequently terminates the Agreement pursuant to Section 9.1(c)(ii) within the time period stated in Section 9.3(b)(ii)(A)(1) (giving effect to paragraph 2 above) to enter into an Alternative Acquisition Agreement with such Go Shop Bidder or (b) CMFT subsequently terminates the Agreement pursuant to Section 9.1(d)(ii) after CCIT II makes an Adverse Recommendation Change within the time period stated in Section 9.3(b)(iii)(A)(1) (giving effect to paragraph 2 above) with respect to such Go Shop Bidder, then the Go Shop Termination Payment shall be payable to CMFT pursuant to (x) in the case of the foregoing clause (a), Section 9.3(b)(ii)(A)(1), and Section 9.3(b)(ii)(A)(2) shall not apply to such termination and (y) in the case of the foregoing clause (b), Section 9.3(b)(iii)(A)(1), and Section 9.3(b)(iii)(A)(2) shall not apply to such termination.
4. Miscellaneous.
(a) Except as amended hereby, the Agreement shall remain in full force and effect. Nothing herein shall affect, modify or limit any waiver or consent granted by any Party pursuant to the Agreement.
(b) This Amendment may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when each Party hereto shall have received counterparts hereof signed by each of the other Parties. If any signature is delivered by PDF, such signature shall create a valid and binding obligation of the Party executing (or on whose behalf the signature is executed) with the same force and effect as if such PDF signature were an original thereof.
(c) The terms and provisions of Section 10.2 (Notices), Section 10.3 (Severability), Section 10.5 (Entire Agreement; No Third-Party Beneficiaries), Section 10.6 (Amendment; Extension; Waiver), Section 10.7 (Governing Law; Venue), Section 10.8 (Assignment), Section 10.9 (Specific Performance), Section 10.10 (Waiver of Jury Trial) and Section 10.11 (Authorship) of the Merger Agreement are incorporated herein by reference as if set forth herein in their entirety and shall apply mutatis mutandis to this Amendment.
[Signature pages follow.]
2
IN WITNESS WHEREOF, the Parties have hereunto caused this Amendment to be duly executed as of the date hereof.
| COLE OFFICE & INDUSTRIAL REIT (CCIT II), INC. | ||
| By: | /s/ Richard Dozer | |
| Name: | Richard Dozer | |
| Title: | Chairman of CCIT II Special Committee |
[Signature Page to Amendment to Agreement and Plan of Merger]
| CIM REAL ESTATE FINANCE TRUST, INC. | ||
| By: | /s/ T. Patrick Duncan | |
| Name: | T. Patrick Duncan | |
| Title: | Authorized Signatory |
[Signature Page to Amendment to Agreement and Plan of Merger]
| THOR II MERGER SUB, LLC | ||
| By | /s/ Nathan D. DeBacker | |
| Name: Nathan D. DeBacker | ||
| Title: Vice President, Chief Financial Officer and Treasurer | ||
[Signature Page to Amendment to Agreement and Plan of Merger]
Exhibit 2.2
EXECUTION VERSION
AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This Amendment to Agreement and Plan of Merger (this “Amendment”), dated as of October 24, 2020, is entered into by and among CIM Real Estate Finance Trust, Inc., a Maryland corporation (“CMFT”), Thor II Merger Sub, LLC, a Maryland limited liability company and wholly owned subsidiary of CMFT (“Merger Sub”), and Cole Office & Industrial REIT (CCIT II), Inc., a Maryland corporation (“CCIT II”). Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, CMFT, CCIT II and Merger Sub are parties to the Agreement and Plan of Merger, dated as of August 30, 2020, as amended by the Amendment to Agreement and Plan of Merger, dated as of October 22, 2020 (the “Agreement”); and
WHEREAS, the Parties desire to amend the Agreement as set forth herein to memorialize certain agreements reached by the Parties.
NOW THEREFORE, in consideration of the premises and agreements herein contained, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. References. Each reference in the Agreement to “hereof”, “herein”, “hereunder”, “hereby” and “this Agreement” shall, from and after the date of this Amendment, refer to the Agreement as amended by this Amendment. Each reference to a “Section” shall refer to a “Section” of the Agreement unless otherwise stated.
2. Amendment. The Parties agree that, for purposes of Sections 9.3(b)(ii)(A)(1) 9.3(b)(iii)(A)(1), notwithstanding anything to the contrary in such Sections, CCIT II shall have until 12:00 p.m., Pacific Time, on October 26, 2020 to timely deliver a CCIT II Change Notice in respect of a Superior Proposal with the Go Shop Bidder previously identified to CMFT in accordance with Section 7.3(a).
3. Acknowledgement. For the avoidance of doubt, so long as a CCIT II Change Notice is delivered by 12:00 P.M., Pacific Time, on October 26, 2020 with respect to the Go Shop Bidder previously identified to CMFT in accordance with Section 7.3(a) and (a) CCIT II subsequently terminates the Agreement pursuant to Section 9.1(c)(ii) within the time period stated in Section 9.3(b)(ii)(A)(1) (giving effect to paragraph 2 above) to enter into an Alternative Acquisition Agreement with such Go Shop Bidder or (b) CMFT subsequently terminates the Agreement pursuant to Section 9.1(d)(ii) after CCIT II makes an Adverse Recommendation Change within the time period stated in Section 9.3(b)(iii)(A)(1) (giving effect to paragraph 2 above) with respect to such Go Shop Bidder, then the Go Shop Termination Payment shall be payable to CMFT pursuant to (x) in the case of the foregoing clause (a), Section 9.3(b)(ii)(A)(1), and Section 9.3(b)(ii)(A)(2) shall not apply to such termination and (y) in the case of the foregoing clause (b), Section 9.3(b)(iii)(A)(1), and Section 9.3(b)(iii)(A)(2) shall not apply to such termination.
4. Miscellaneous.
(a) Except as amended hereby, the Agreement shall remain in full force and effect. Nothing herein shall affect, modify or limit any waiver or consent granted by any Party pursuant to the Agreement.
(b) This Amendment may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when each Party hereto shall have received counterparts hereof signed by each of the other Parties. If any signature is delivered by PDF, such signature shall create a valid and binding obligation of the Party executing (or on whose behalf the signature is executed) with the same force and effect as if such PDF signature were an original thereof.
(c) The terms and provisions of Section 10.2 (Notices), Section 10.3 (Severability), Section 10.5 (Entire Agreement; No Third-Party Beneficiaries), Section 10.6 (Amendment; Extension; Waiver), Section 10.7 (Governing Law; Venue), Section 10.8 (Assignment), Section 10.9 (Specific Performance), Section 10.10 (Waiver of Jury Trial) and Section 10.11 (Authorship) of the Merger Agreement are incorporated herein by reference as if set forth herein in their entirety and shall apply mutatis mutandis to this Amendment.
[Signature pages follow.]
2
IN WITNESS WHEREOF, the Parties have hereunto caused this Amendment to be duly executed as of the date hereof.
| COLE OFFICE & INDUSTRIAL REIT (CCIT II), INC. | ||
| By: | /s/ Richard Dozer | |
| Name: Richard Dozer | ||
| Title: Chairman of CCIT II Special Committee | ||
[Signature Page to Amendment to Agreement and Plan of Merger]
| CIM REAL ESTATE FINANCE TRUST, INC. | ||
| By: | /s/ T. Patrick Duncan | |
| Name: T. Patrick Duncan | ||
| Title: Authorized Signatory | ||
[Signature Page to Amendment to Agreement and Plan of Merger]
| THOR II MERGER SUB, LLC | ||
| By: | /s/ Nathan D. DeBacker | |
| Name: Nathan D. DeBacker | ||
| Title: Vice President, Chief Financial Officer and Treasurer | ||
[Signature Page to Amendment to Agreement and Plan of Merger]