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): November 3, 2020
CIM Real Estate Finance Trust, Inc.
(Exact Name of Registrant as Specified in its Charter)
| Maryland | 000-54939 | 27-3148022 | ||
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(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:
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Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
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| 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, CIM Real Estate Finance Trust, Inc. (the “Company” or “CMFT”), Cole Office & Industrial REIT (CCIT III), Inc. (“CCIT III”), and Thor III Merger Sub, LLC, a wholly owned subsidiary of the Company (“CCIT III Merger Sub”), entered into an Agreement and Plan of Merger (the “CCIT III Merger Agreement”) with respect to the proposed merger (the “CCIT III Merger”) of CCIT III with and into CCIT III Merger Sub, with CCIT III Merger Sub surviving the CCIT III Merger.
On November 3, 2020, the parties to the CCIT III Merger Agreement entered into Amendment No. 1 to Agreement and Plan of Merger (the “Amendment”), pursuant to which (i) the CCIT III Merger Agreement was amended to increase the Exchange Ratio from 1.093 to 1.098 shares of CMFT Common Stock for each share of CCIT III Common Stock (as each term is defined in the CCIT III Merger Agreement) (with such ratio subject to adjustments in accordance with the terms and conditions of the CCIT III Merger Agreement) and (ii) CCIT III irrevocably waived its right to terminate the CCIT III Merger Agreement set forth in Section 9.1(c)(iii) in relation to the amendment on October 29, 2020, of the CCPT V Merger Agreement (as defined in the CCIT III Merger Agreement) to increase the exchange ratio set forth therein.
The foregoing description does not purport to be complete and is qualified in its entirety by reference to the Amendment, which is attached hereto as Exhibit 2.1 and is incorporated herein by reference.
ADDITIONAL INFORMATION ABOUT THE CCIT III MERGER
In connection with the proposed CCIT III Merger, CMFT intends to file a definitive registration statement on Form S-4 with the SEC that will include a proxy statement of CCIT III and will also constitute a prospectus of CMFT. This communication is not a substitute for such registration statement, the proxy statement/prospectus or any other documents that will be made available to the stockholders of CCIT III. In connection with the proposed CCIT III Merger, CCIT III 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 CCIT III 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 CCIT III MERGER. Stockholders of CCIT III 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 CCIT III MERGER
CMFT and CCIT III 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 CCIT III’s stockholders in respect of the proposed Merger between CMFT and CCIT III. Information regarding the directors, executive officers and external advisors of each of CMFT and CCIT III 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 CCIT III 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 CCIT III 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 CMFT and CCIT III 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 CCIT III Merger 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 CCIT III Merger Agreement; the failure to satisfy the conditions to the consummation of the CCIT III Merger, including the approval of the stockholders of CCIT III; and other factors, including those set forth in the section entitled “Risk Factors” in CMFT’s and CCIT III’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 CMFT and CCIT III 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 CMFT or CCIT III 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.
| CIM REAL ESTATE FINANCE TRUST, INC. | ||||
| Date: November 4, 2020 | By: |
/S/ Nathan D. DeBacker |
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| Nathan D. DeBacker | ||||
| Chief Financial Officer and Treasurer | ||||
Exhibit 2.1
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 to Agreement and Plan of Merger (this “Amendment No. 1”), dated as of November 3, 2020, is entered into by and among CIM Real Estate Finance Trust, Inc., a Maryland corporation (“CMFT”), Thor III Merger Sub, LLC, a Maryland limited liability company and a wholly owned subsidiary of CMFT (“Merger Sub”), and Cole Office & Industrial REIT (CCIT III), Inc., a Maryland corporation (“CCIT III”). Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Merger Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, CMFT, CCIT III and Merger Sub are parties to the Agreement and Plan of Merger, dated as of August 30, 2020 (the “Merger Agreement”).
WHEREAS, (a) the Parties desire to increase the Exchange Ratio from 1.093 to 1.098 shares of CMFT Common Stock for each share of CCIT III Common Stock, as such ratio may be adjusted in accordance with Section 3.1(b) of the Merger Agreement, and (b) CCIT III desires to irrevocably waive its right to terminate the Merger Agreement set forth in Section 9.1(c)(iii) thereof if CMFT amends the CCPT V Merger Agreement to increase the exchange ratio set forth therein (the “CCPT V Exchange Ratio”) to 2.733 shares (or more) of CMFT Common Stock for each share of Cole Credit Property Trust V, Inc. to the extent such right exists by reason of the increase of the CCPT V Exchange Ratio to 2.892 shares of CMFT Common Stock for each share of Cole Credit Property Trust V, Inc. pursuant to an amendment to the CCPT V Merger Agreement, dated as of October 29, 2020;
WHEREAS, on the recommendation of the CCIT III Special Committee, the CCIT III Board has (a) determined that the Merger Agreement, as amended by this Amendment No. 1 and the transactions contemplated thereby, are advisable and in the best interest of, and are fair and reasonable to, CCIT III and on terms and conditions no less favorable to CCIT III than those available from unaffiliated third parties, (b) authorized and approved the execution and delivery of this Amendment No. 1 and the performance by CCIT III of its obligations under the Merger Agreement, as amended by this Amendment No. 1, (c) directed that the Merger contemplated by the Merger Agreement, as amended by this Amendment No. 1, and the other transactions contemplated thereby, be submitted for consideration at the Stockholders Meeting, and (d) recommended the approval of the Merger contemplated by the Merger Agreement, as amended by this Amendment No. 1, by the CCIT III stockholders;
WHEREAS, on the recommendation of the CMFT Special Committee, the CMFT Board has (a) determined that the Merger Agreement, as amended by this Amendment No. 1, and the transactions contemplated thereby, are advisable and in the best interest of CMFT, and (b) authorized and approved the execution and delivery of this Amendment No. 1 and the performance by CMFT of its obligations under the Merger Agreement, as amended by this Amendment No. 1;
WHEREAS, CMFT, in its capacity as the sole member of Merger Sub, has taken all actions required for the execution of this Amendment No. 1 by Merger Sub and to approve this Amendment No. 1 and the consummation by Merger Sub of the Merger contemplated by the Merger Agreement, as amended by this Amendment No. 1, and the other transactions contemplated thereby; and
WHEREAS, the Parties hereto desire to amend the Merger Agreement and CCIT III desires to waive Section 9.1(c)(iii) of the Merger Agreement in accordance with Section 10.6 thereof and in the manner set forth herein.
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:
1. Definition of Exchange Ratio. The definition of “Exchange Ratio” set forth in Section 1.1 of the Merger Agreement is hereby amended by replacing the reference to “1.093” therein with a reference to “1.098”
2. Waiver of Section 9.1(c)(iii). CCIT III hereby irrevocably waives the right to terminate the Merger Agreement pursuant to Section 9.1(c)(iii) to the extent such right exists by reason of the increase of the CCPT V Exchange Ratio to 2.892 shares of CMFT Common Stock for each share of Cole Credit Property Trust V, Inc. pursuant to an amendment to the CCPT V Merger Agreement, dated as of October 29, 2020.
3. Counterparts. This Amendment No. 1 may be executed in counterparts, each of which shall be deemed an original and all of which together shall be deemed one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (electronically by email or facsimile) to the other Parties. Signatures to this Amendment No. 1 transmitted by facsimile transmission, by electronic mail in portable document form (pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.
4. Entire Agreement. This Amendment No. 1, the Merger Agreement (including the Exhibit, Schedules, the CMFT Disclosure Letter and the CCIT III Disclosure Letter) and the Confidentiality Agreement (a) constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter of this Amendment No. 1 and (b) except for the provisions of Section 7.7 (Indemnification; Directors’ and Officers’ Insurance) of the Merger Agreement (which, from and after the Merger Effective Time, shall be for the benefit of the Indemnified Parties), are not intended to confer upon any Person other than the Parties hereto any rights or remedies.
5. Miscellaneous. Except as specifically amended and waived hereby, the Merger Agreement, as amended by this Amendment No. 1, shall remain in full force and effect. The terms and provisions of Section 10.2 (Notices), Section 10.3 (Severability), 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 No. 1.
(Remainder of page intentionally left blank.)
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IN WITNESS WHEREOF, the Parties have caused this Amendment No. 1 to be signed by their respective duly authorized officer, all as of the date first written above.
| CIM REAL ESTATE FINANCE TRUST, INC. | ||
| By: |
/s/ Nathan D. DeBacker |
|
| Name: | Nathan D. DeBacker | |
| Title: | Chief Financial Officer and Treasurer | |
| THOR V MERGER SUB, LLC | ||
| By: |
/s/ Nathan D. DeBacker |
|
| Name: | Nathan D. DeBacker | |
| Title: | Vice President, Chief Financial Officer and Treasurer | |
(Signature Page to Amendment No. 1 to the Agreement and Plan of Merger)
| COLE OFFICE & INDUSTRIAL REIT (CCIT III), INC. | ||
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By: |
/s/ Nathan D. DeBacker |
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|
Name: |
Nathan D. DeBacker |
|
|
Title: |
Chief Financial Officer and Treasurer |
|
(Signature Page to Amendment No. 1 to the Agreement and Plan of Merger)