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): September 11, 2015
Independence Realty Trust, Inc.
(Exact name of registrant as specified in its charter)
Maryland | 001-36041 | 26-4567130 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
||
Cira Centre, 2929 Arch Street, 17th Floor, Philadelphia, Pennsylvania | 19104 | |||
(Address of principal executive offices) | (Zip Code) |
(Registrants telephone number, including area code): (215) 243-9000
Not Applicable
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:
x | 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)) |
Item 1.01 | Entry into a Material Definitive Agreement. |
On September 11, 2015, Independence Realty Trust, Inc., a Maryland corporation ( IRT ), entered into Amendment No. 1 (the Amendment ) to the Agreement and Plan of Merger (the Merger Agreement ), dated as of May 11, 2015, by and among IRT, Independence Realty Operating Partnership, LP, a Delaware limited partnership and a subsidiary of IRT ( IRT OP ), IRT Limited Partner, LLC, a Delaware limited liability company and a wholly-owned subsidiary of IRT, Adventure Merger Sub LLC, a Delaware limited liability company and a wholly-owned subsidiary of IRT OP, Trade Street Residential, Inc. ( TSRE ), and Trade Street Operating Partnership, LP ( TSR OP ).
The Amendment provides for certain adjustments to the Merger Agreement resulting from IRTs entry into the Contribution and Exchange Agreement described below with Michael D. Baumann and Heidi Baumann (the Baumanns ), the sole third party holder of units of limited partnership interest of TSR OP ( TSR OP Units ). Concurrently with the entry into the Amendment, the Baumanns entered into an agreement with TSRE and the general partners of TSR OP whereby the Baumanns agreed to release any and all claims against TSRE, TSR OP and all of their past and present stockholders, directors, officers and employees effective as of immediately prior to the closing of the Partnership Merger (as such term is defined in the Merger Agreement).
The foregoing description of the Amendment is not complete and is subject to and qualified in its entirety by reference to the Amendment, a copy of which is attached as Exhibit 2.1 hereto and incorporated herein by reference.
Item 3.02 | Unregistered Sales of Equity Securities. |
On September 11, 2015, IRT OP entered into a Contribution and Exchange Agreement (the Contribution Agreement ) with the Baumanns. Pursuant to the Contribution Agreement, immediately prior to the consummation of the Partnership Merger, the Baumanns will contribute all of their TSR OP Units to IRT OP in exchange for 1,925,419 common units of limited partnership interests in IRT OP ( IROP Units ), plus cash in lieu of fractional TSR OP Units, in lieu of the Baumanns receiving cash and IROP Units in the Partnership Merger.
The IROP Units to be issued pursuant to the Contribution Agreement will be issued subject to an exchange rights agreement (the Exchange Agreement ) that provides for the terms and conditions under which the IROP Units could be exchanged for cash in an amount equal to the value of an equivalent number of shares of IRT common stock as of the date IRT OP receives the Baumanns notice of their desire to exchange or, at IRTs option, for the equivalent number of shares of IRT common stock. The value and number of shares exchanged by IRT OP is subject to adjustment under defined circumstances. The Exchange Agreement will provide that the exchange right is exercisable on or after the issuance of the IROP Units to the Baumanns or upon the liquidation or the sale of substantially all of IRT OPs assets, subject to the terms of the IRT OP limited partnership agreement.
The issuance of the IROP Units to the Baumanns will be exempt from registration pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (the Securities Act ). The Baumanns represented that they were an accredited investor (as defined in Rule 501 of Regulation D promulgated under the Securities Act).
Cautionary Statement Regarding Forward-Looking Statements
This Current Report on Form 8-K may include forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended. These forward-looking statements, which are based on current expectations, estimates and projections about the industry and markets in which IRT operates and beliefs of and assumptions made by IRT management, involve uncertainties that could significantly affect the financial results of IRT or the combined company. Words such as expects, anticipates, intends, plans, believes, seeks, estimates, variations of such words and similar expressions are intended to identify such forward-looking statements, which generally are not historical in nature. All statements that address events or developments that IRT expects or anticipates will occur in the future are forward-looking statements. These statements are not guarantees of future performance and involve certain risks, uncertainties and assumptions that are difficult to predict. Although IRT believes the expectations reflected in any forward-looking statements are based on reasonable assumptions, IRT can give no assurance that its expectations will be attained and, therefore, actual outcomes and results may differ materially from what is expressed or forecasted in such forward-looking statements. Some of the factors that may affect outcomes and results include, but are not limited to: (i) the occurrence of any event, change or other circumstances that could give rise to the termination of the Merger Agreement, (ii) the inability to complete the merger contemplated by the Merger Agreement (the Merger ) or failure to satisfy other conditions to completion of the Merger, (iii) changes in financial markets and interest rates, or to the business or financial condition of IRT, TSRE or either of their businesses, (iv) the availability of financing and capital, (v) maintenance of REIT Status, (vi) the performance of IRTs portfolio and TSREs portfolio, and (vii) those additional risks factors discussed in reports filed with the Securities and Exchange Commission by IRT and TSRE from time to time, including those discussed under the heading Risk Factors in their respective most recently filed reports on Forms 10-K and 10-Q. We do not undertake any duty to update any forward-looking statements contained herein.
Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits .
2.1 | Amendment No. 1, dated as of September 11, 2015, to Agreement and Plan of Merger, dated as of May 11, 2015, by and among Independence Realty Trust, Inc., Independence Realty Operating Partnership, LP, Adventure Merger Sub LLC, IRT Limited Partner, LLC, Trade Street Residential, Inc. and Trade Street Operating Partnership, LP. |
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.
Independence Realty Trust, Inc. | ||||||
September 11, 2015 | By: |
/s/ James J. Sebra |
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Name: James J. Sebra | ||||||
Title: Chief Financial Officer and Treasurer |
Exhibit Index
Exhibit No. |
Description |
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2.1 | Amendment No. 1, dated as of September 11, 2015, to Agreement and Plan of Merger, dated as of May 11, 2015, by and among Independence Realty Trust, Inc., Independence Realty Operating Partnership, LP, Adventure Merger Sub LLC, IRT Limited Partner, LLC, Trade Street Residential, Inc. and Trade Street Operating Partnership, LP. |
Exhibit 2.1
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 to Agreement and Plan of Merger (this Amendment ) is made and entered into as of September 11, 2015 by and among Independence Realty Trust, Inc., a Maryland corporation ( Parent ), Independence Realty Operating Partnership, LP, a Delaware limited partnership ( Parent OP ), Adventure Merger Sub LLC, a Delaware limited liability company and a direct wholly owned Subsidiary of Parent OP ( OP Merger Sub ), IRT Limited Partner, LLC, a Delaware limited liability company and direct wholly owned Subsidiary of Parent ( IRT LP LLC ), Trade Street Residential, Inc., a Maryland corporation (the Company ), and Trade Street Operating Partnership, LP, a Delaware limited partnership (the Company OP ), as an amendment to the Agreement and Plan of Merger (the Merger Agreement ), dated as of May 11, 2015, by and among Parent, Parent OP, OP Merger Sub, IRT LP LLC, the Company, and the Company OP.
RECITALS
WHEREAS, Parent, Parent OP, OP Merger Sub, IRT LP LLC, the Company, and the Company OP previously entered into the Merger Agreement, which provides for (i) the merger of OP Merger Sub with and into the Company OP with the Company OP being the surviving entity (the Partnership Merger ) and (ii) the merger of Company with and into IRT LP LLC with IRT LP LLC being the surviving entity (the Company Merge r and, together with the Partnership Merger, the Merger ).
WHEREAS, pursuant to Section 8.04 of the Merger Agreement, the parties hereto now wish to amend the Merger Agreement as set forth in this Amendment; and
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows:
AMENDMENT
1. Capitalized terms in this Amendment and not otherwise defined shall have the meaning given them in the Merger Agreement.
2. Section 2.02(a) of the Merger Agreement is hereby deleted and amended in its entirety to read as follows:
(a) RESERVED.
3. Section 2.02(b) of the Merger Agreement is hereby deleted and amended in its entirety to read as follows:
(b) Exchanged OP Units; Outstanding OP Units .
(i) Each Company OP Unit that is owned by the Company or any wholly-owned Subsidiary of the Company as of immediately prior to the Partnership Merger Effective Time shall be exchanged for a number of Parent OP Common Units equal to the Exchange Ratio, together with exchange rights associated with such Parent OP Common Units substantially similar to the exchange rights previously granted to other limited partners of Parent OP.
(ii) Each Company OP Unit that is owned by Parent OP as of immediately prior to the Partnership Merger Effective Time shall remain issued and outstanding and shall survive the Partnership Merger as units of limited partnership interest of the Surviving Partnership.
4. Section 2.02(d) of the Merger Agreement is hereby deleted and amended in its entirety to read as follows:
(d) Conversion of OP Merger Sub Membership Interests . The membership interests of OP Merger Sub issued and outstanding immediately prior to the Partnership Merger Effective Time shall be converted into and become one unit of limited partnership interest of the Surviving Partnership.
5. Section 2.03(b) of the Merger Agreement is hereby deleted and amended in its entirety to read as follows:
(b) Prior to the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent in trust for the benefit of the holders of Shares and holders of shares of Company Restricted Stock, for exchange in accordance with this Article II , (i) evidence of Parent Common Stock in book-entry form issuable pursuant to Section 2.01 equal to the aggregate Share Stock Consideration and (ii) immediately available funds equal to the aggregate Share Cash Consideration (together with, to the extent then determinable, any cash payable in lieu of fractional shares pursuant to Section 2.08 collectively, the Exchange Fund ), and Parent shall instruct the Paying Agent to timely pay the Share Cash Consideration, and cash in lieu of fractional shares of Parent Common Stock, in accordance with this Agreement.
6. Section 2.03(c)(i) and (ii) of the Merger Agreement is hereby deleted and amended in its entirety to read as follows:
(i) As soon as reasonably practicable (and in any event within three (3) Business Days) after the Effective Time, to the extent not previously delivered, the Surviving Company shall cause the Paying Agent to mail to each holder of record of Shares whose Shares were converted into the Merger Consideration pursuant to Section 2.01, a letter of transmittal (the Letter of Transmittal ) in customary form as agreed to between the Company and Parent prior to the date of this Agreement. The Letter of Transmittal shall be accompanied by instructions for use in effecting the surrender of certificates that immediately prior to the Effective Time represented Shares (Certificates) (or effective affidavits of loss in lieu thereof) or non-certificated Shares represented by book-entry of the Company (Book-Entry Shares) pursuant to this Article II, representing the shares of Company Common Stock to which such Letter of Transmittal relates, duly endorsed in blank or otherwise in form acceptable for transfer on the books of the Company, or by an appropriate customary guarantee of delivery of such Certificates, as set forth in such Letter of Transmittal, from a firm that is an eligible guarantor institution (as defined in Rule 17Ad-15 under the Exchange Act); provided, that such Certificates are in fact delivered to the Paying Agent by the time required in such guarantee of delivery, and, in the case of Book-Entry Shares, any additional documents specified in the procedures set forth in the Letter of Transmittal. The Letter of Transmittal shall specify that delivery shall be effected, and risk of loss and title to Certificates shall pass, only upon delivery of such Certificates (or effective affidavits of loss in lieu thereof as provided in this Section 2.03(c)(i)) or Book-Entry Shares to the Paying Agent and shall be in such form and have such other provisions as Parent and the Company may agree.
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(ii) As soon as reasonably practicable after the date of delivery (or, if later, after the Effective Time) to the Paying Agent of a Certificate (or effective affidavit of loss in lieu thereof as provided in Section 2.03(c)(i)) or Book-Entry Shares (or, in the case of Book-Entry Shares, receipt of an agents message by the Paying Agent, or such other evidence, if any, of transfer as the Paying Agent may reasonably request), together with a properly completed and duly executed Letter of Transmittal and any other documentation required hereby, the holder of record of such Certificate (or effective affidavit of loss in lieu thereof as provided in Section 2.03(c)(i)) or Book-Entry Shares shall be entitled to receive from the Exchange Fund in exchange therefor the Share Merger Consideration in respect of the shares of Company Common Stock or Company Restricted Stock formerly represented by such holders properly surrendered Certificate (or effective affidavit of loss in lieu thereof as provided in Section 2.03(c)(i)) or Book-Entry Shares. Any Share Cash Consideration payments shall be made via check or wire or other electronic transfer of immediately available funds, at each such holders election as specified in the Letter of Transmittal. No interest will be paid or accrued on any amount payable upon due surrender of Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, payment upon due surrender of the Certificate may be paid to such a transferee if the Certificate formerly representing such Shares is presented to the Paying Agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer Taxes have been paid or are not applicable. The Merger Consideration, paid in full with respect to any Share in accordance with the terms hereof, shall be deemed to have been paid in full satisfaction of all rights pertaining to such Share.
7. Section 2.03(d) of the Merger Agreement is hereby deleted and amended in its entirety to read as follows:
Subject to the terms of the Paying Agent Agreement, Parent and the Company, in the exercise of their reasonable discretion, shall have the joint right to make all determinations, not inconsistent with the terms of this Agreement, governing (i) the issuance and delivery of certificates representing the number of shares of Parent Common Stock into which shares of Company Common Stock or Company Restricted Stock are converted into the right to receive Share Stock Consideration in the Merger and (ii) the method of payment of cash for shares of Company Common Stock or Company Restricted Stock converted into the right to receive the Share Cash Consideration and cash in lieu of fractional shares of Parent Common Stock.
8. Section 2.03(i) of the Merger Agreement is hereby deleted and amended in its entirety to read as follows:
Termination of Exchange Fund . Any portion of the Exchange Fund (including the proceeds of any investments thereof) that remains undistributed to the former holders of Shares for one year after the Effective Time shall be delivered to the Surviving Company upon demand, and any former holders of Shares who have not surrendered their Shares in accordance with this Section 2.03 shall thereafter look only to the Surviving Company for payment of their claim for the Merger Consideration (including any cash in lieu of fractional shares and any applicable dividends or other distributions with respect to Parent Common Stock), without any interest thereon, upon due surrender of their Shares.
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9. Section 2.03(l) of the Merger Agreement is hereby deleted and amended in its entirety to read as follows:
Lost Certificates . If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such document to be lost, stolen or destroyed and, if determined by Parent in its sole discretion, the posting by such Person of a bond in customary amount as indemnity against any claim that may be made against it or the Surviving Company with respect to the Certificate, the Paying Agent will pay in exchange for such lost, stolen or destroyed document the amount equal to the number of Shares represented by such lost, stolen or destroyed Certificate multiplied by the Share Merger Consideration without any interest thereon.
10. The reference to and Unit Cash Consideration set forth in Section 4.23(a) is hereby deleted.
11. Section 2.03(e)(ii) of the Merger Agreement is hereby amended to delete the second sentence.
12. Section 9.03(a) of the Merger Agreement is hereby amended to add the following definition:
Company OP Unit means each unit of limited partnership interest of Company OP.
13. The definition of Merger Consideration contained in Section 9.03(a) of the Merger Agreement is hereby deleted and amended in its entirety to read as follows:
Merger Consideration means the Share Merger Consideration.
14. Section 9.03(b) of the Merger Agreement is hereby amended to delete the cross references to Company OP Unit , Exchanged OP Units , Unit Cash Consideration, Unit Merger Consideration and Unit Ownership Consideration .
15. Except as otherwise provided in this Amendment, the Merger Agreement shall remain in full force and effect. On or after the date of this Amendment, each reference in the Merger Agreement to this Agreement, hereunder, hereof, herein or words of like import referring to the Merger Agreement shall mean and be a reference to the Merger Agreement as amended by this Amendment, and this Amendment shall be deemed to be a part of the Merger Agreement.
16. This Amendment may be executed (including by facsimile or email of a .pdf attachment) in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, it being understood that all parties need not sign the same counterpart. The parties hereto may deliver this Amendment by facsimile or email of a .pdf attachment, and each party shall be permitted to rely upon the signatures so transmitted to the same extent and effect as if they were original signatures.
[ Signature Pages Follow ]
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IN WITNESS WHEREOF, Parent, Parent OP, OP Merger Sub, IRT LP LLC, the Company and Company OP have duly executed this Amendment as of the date first written above.
INDEPENDENCE REALTY TRUST, INC. | ||
by: |
/s/ Farrell Ender |
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Name: Farrell Ender | ||
Title: President |
INDEPENDENCE REALTY OPERATING PARTNERSHIP, LP | ||
By: INDEPENDENCE REALTY TRUST, INC., its General Partner |
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by: |
/s/ Farrell Ender |
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Name: Farrell Ender | ||
Title: President |
ADVENTURE MERGER SUB LLC | ||
By: INDEPENDENCE REALTY OPERATING PARTNERSHIP, LP, its Sole Member |
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By: INDEPENDENCE REALTY TRUST, INC., its General Partner |
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by: |
/s/ Farrell Ender |
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Name: Farrell Ender | ||
Title: President |
IRT LIMITED PARTNER, LLC | ||
By: INDEPENDENCE REALTY TRUST, INC., its Sole Member |
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by: |
/s/ Farrell Ender |
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Name: Farrell Ender | ||
Title: President |
TRADE STREET RESIDENTIAL, INC. | ||
by: |
/s/ Richard Ross |
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Name: Richard Ross | ||
Title: Chief Executive Officer |
TRADE STREET OPERATING PARTNERSHIP, LP. | ||
By: TRADE STREET OP GP, LLC, its General Partner |
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By: TRADE STREET RESIDENTIAL, INC., its Sole Member |
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by: |
/s/ Richard Ross |
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Name: Richard Ross | ||
Title: Chief Executive Officer |