Amended Tender Offer Statement by Issuer (sc To-i/a)
21 Outubro 2022 - 6:10PM
Edgar (US Regulatory)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Amendment No. 2
to
SCHEDULE TO-I
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1)
OR SECTION 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
IMPAC MORTGAGE HOLDINGS, INC.
(Name of Subject Company (Issuer))
IMPAC MORTGAGE HOLDINGS, INC.
(Name of Filing Persons (Offeror))
Title
of Class of Securities |
|
CUSIP
Number of Class of Securities |
9.375% Series B Cumulative
Redeemable Preferred Stock, par value $0.01 per share |
|
45254P300 |
9.125% Series C Cumulative
Redeemable Preferred Stock, par value $0.01 per share |
|
45254P409 |
George A. Mangiaracina
Chief Executive Officer
19500 Jamboree Road
Irvine, California 92612
(949)
475-3600
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Craig D. Miller
Veronica Lah
Manatt, Phelps & Phillips, LLP
One Embarcadero Center
San Francisco, California 94111
(415) 291-7400
| ¨ | Check
the box if the filing relates solely to preliminary communications before the commencement
of a tender offer. |
Check the appropriate boxes below to designate any transactions to
which the statement relates:
| ¨ | third-party
tender offer subject to Rule 14d-1. |
| x | issuer
tender offer subject to Rule 13e-4. |
| ¨ | going-private
transaction subject to Rule 13e-3. |
| ¨ | amendment
to Schedule 13D under Rule 13d-2. |
Check the following box if the filing
is a final amendment reporting the results of the tender offer: ☐
If applicable, check the appropriate box(es) below to designate the
appropriate rule provision(s) relied upon:
| ¨ | Rule 13e-4(i) (Cross-Border
Issuer Tender Offer) |
| ¨ | Rule 14d-1(d) (Cross-Border
Third-Party Tender Offer) |
This Amendment No. 2 (this “Amendment”)
amends and supplements the Tender Offer Statement on Schedule TO (originally filed by Impac Mortgage Holdings, Inc., a Maryland corporation
(the “Company,” “us,” or “we”), with the Securities and Exchange Commission (the
“SEC”) on September 14, 2022 (as amended, the “Schedule TO”), relating to the offer by the Company
to exchange any and all of the outstanding shares of the following series of its preferred stock for the consideration defined below
(each an “Exchange Offer” and collectively the “Exchange Offers”):
Security |
|
CUSIP |
|
Symbol |
|
Shares
Outstanding |
|
Cash/
8.25% Series D Cumulative Redeemable
Preferred Stock (“New Preferred Stock”)
Per Share |
|
Common
Securities Per Share |
9.375% Series B Cumulative
Redeemable Preferred Stock, par value $0.01 per share (the “Series B Preferred Stock”) |
|
45254P300 |
|
IMPHP |
|
665,592 |
|
$3.00 in cash or, if the
Company is prohibited from paying cash, thirty (30) shares of New Preferred Stock (the “Series B Cash/New Preferred
Stock Portion”), as more fully described below. |
|
13.33 shares of newly issued
common stock, par value $0.01 per share (“Common Stock”), (the “Series B Common Stock Portion”,
and together with the Series B Cash/New Preferred Stock Portion, the “Series B Consideration”), as more
fully described below. |
9.125% Series C Cumulative
Redeemable Preferred Stock, par value $0.01 per share (the “Series C Preferred Stock” and together with the
Series B Preferred Stock, the “Preferred Stock”) |
|
45254P409 |
|
IMPHO |
|
1,405,086 |
|
$0.10 in cash or, if the
Company is prohibited from paying cash, one (1) share of New Preferred Stock (the “Series C Cash/New Preferred
Stock Portion”), as more fully described below. |
|
1.25 shares of newly issued
Common Stock and 1.5 warrants to purchase 1.5 shares of the Company’s Common Stock at an exercise price of $5.00 per share
(collectively, the “Series C Common Stock Portion” and together with the Series C Cash/New Preferred
Stock Portion, the “Series C Consideration”), as more fully described below. |
On October 12, 2022, the Company's Board of Directors determined that, based on the value of the Company's assets and liabilities and
the Company's financial condition at the time of the closing of the Exchange Offers, the payment of cash in the Exchange Offers would
cause us to violate the Cash Consideration Restrictions (as defined in the Schedule TO) and that we will issue shares of New Preferred
Stock in lieu of cash in the Exchange Offers.
The
Exchange Offers were made upon and subject to the terms and conditions set forth in the Prospectus/Consent Solicitation, dated October
18, 2022 (the “Prospectus”), a copy of which is attached hereto as Exhibit (a)(1)(A), and in the related Letters of Transmittal
and Consent, copies of which were filed as Exhibit (a)(1)(B) and Exhibit (a)(1)(C) to the Schedule TO.
Concurrently
with the Exchange Offers, pursuant to the Prospectus, we solicited consents (the “Consent
Solicitation”) from holders of:
| • | Series B
Preferred Stock, to an amendment (the “Series B Proposed Amendment”)
to our Articles of Incorporation (as amended and currently in effect, the “Charter”)
to permit the closing of the Exchange Offers (including the authorization and issuance of
New Preferred Stock without a separate vote of holders of Series B Preferred Stock)
and to make each share of Series B Preferred Stock and each share of Series C Preferred
Stock redeemable for the same consideration as the Series B Consideration and the Series C
Consideration, respectively, as described herein, in each case, without payment of, or allowance
for, any accrued and unpaid dividends on any shares of Series B Preferred Stock (whether
or not such dividends have accumulated and whether or not such dividends accrued before or
after completion of the Exchange Offers); and |
| • | Series C
Preferred Stock, to an amendment (the “Series C Proposed Amendment”
and, together with the Series B Proposed Amendment, the “Proposed Amendments”)
to our Charter to permit the closing of the Exchange Offers (including the authorization
and issuance of New Preferred Stock without a separate vote of the holders of Series C
Preferred Stock) and to make each share of Series B Preferred Stock and each share of
Series C Preferred Stock redeemable for the same consideration as the Series B
Consideration and the Series C Consideration, respectively, as described herein, in
each case, without payment of, or allowance for, any accrued and unpaid dividends on any
shares of Series C Preferred Stock (whether or not such dividends have accumulated and
whether or not such dividends accrued before or after completion of the Exchange Offers). |
The purpose of this Amendment is to amend and
supplement the Schedule TO to (i) update Item 11 of the Schedule TO to report the final results of the Exchange Offers and (ii) update
Item 12 of the Schedule TO to include (a) the final Prospectus, dated October 18, 2022, which forms a part of the Registration Statement
on Form S-4 (“Registration Statement”) declared effective by the SEC on October 18, 2022, and (b) a press release
issued by the Company on October 21, 2022, announcing the results of the Exchange Offers and Consent Solicitation and the effectiveness
of the Registration Statement.
Only those items amended are reported in this Amendment. Except as specifically
provided herein, the information contained in the Schedule TO, the Prospectus, and the Letters of Transmittal and Consent remain unchanged.
This Amendment should be read with the Schedule TO, the Prospectus and the Letters of Transmittal and Consent.
Item 11. Additional Information.
Item 11 of the Schedule TO is hereby amended and supplemented by adding the following:
The Exchange Offers and Consent Solicitation
expired at 11:59 p.m., Eastern Daylight time, on October 20, 2022 (the “Expiration Date”). The Company has been
advised that 460,778 shares of Series B Preferred Stock, or approximately 69.23% of the outstanding shares of Series B Preferred
Stock, and 949,671 shares of Series C Preferred Stock, or approximately 67.59% of the outstanding shares of Series C Preferred
Stock, were validly tendered and not validly withdrawn prior to the Expiration Date. The Company has accepted for
payment all shares Preferred Stock validly tendered and not validly withdrawn prior to the Expiration Date pursuant to the
settlement procedures described in the Prospectus. The Company also expects to accept for payment all shares of Series C Preferred
Stock that remain subject to guaranteed delivery procedures, and to make payment for all accepted shares on October 26, 2022. In
addition, pursuant to the Consent Solicitation, the Company received the approval of approximately 69.23% of the outstanding shares
of Series B Preferred Stock to the Series B Proposed Amendment and approximately 67.59% of the outstanding shares of Series C
Preferred Stock to the Series C Proposed Amendment. The Proposed Amendments required the consent of holders of at least 66 2/3% of
the outstanding shares of each series of Preferred Stock, with the holders of each series voting as a separate class. In addition,
the Proposed Amendments required approval by the affirmative vote of a majority of the votes entitled to be cast by holders of the
Company's Common Stock, which was obtained at the Company's Special Meeting of Common Stock holders held on October 20, 2022.
Accordingly, the Proposed Amendments will become effective upon acceptance for record by the State Department of Assessments and
Taxation of Maryland.
On October 21, 2022, the Company issued a press release announcing the final results of the Exchange Offers and
Consent Solicitation as set forth above. A copy of the press release is filed as Exhibit (a)(5)(Y) to the Schedule TO and is incorporated
herein by reference.
Item 12. Exhibits.
(a) Exhibits
Exhibit No. |
Description |
(a)(1)(A) |
Prospectus/Consent Solicitation,
dated October 18, 2022 (the “Prospectus”) (incorporated by reference to the Company's filing on October 18, 2022 pursuant to Rule 424(b)(3) (Reg. No. 333-266167), under the Securities Act of 1933. |
(a)(1)(B) |
Form of Letter to
Preferred Stockholders (incorporated by reference to Exhibit 99.1 to Amendment No. 3 to the Registration Statement on Form S-4
filed by the Company with the SEC on September 14, 2022. |
(a)(1)(C) |
Form of Letter of
Transmittal and Consent (Series B Preferred Stock) (incorporated by reference to Exhibit 99.2 to Amendment No. 3 to
the Registration Statement on Form S-4 filed by the Company with the SEC on September 14, 2022). |
(a)(1)(D) |
Form of Letter of
Transmittal and Consent (Series C Preferred Stock) (incorporated by reference to Exhibit 99.3 to Amendment No. 3 to
the Registration Statement on Form S-4 filed by the Company with the SEC on September 14, 2022). |
(a)(1)(E) |
Form of Letter to
Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (incorporated by reference to Exhibit 99.4 to Amendment
No. 3 to the Registration Statement on Form S-4 filed by the Company with the SEC on September 14, 2022). |
(a)(1)(F) |
Form of Notice of
Guaranteed Delivery (incorporated by reference to Exhibit 99.5 to Amendment No. 1 to the Registration Statement on Form S-4
filed by the Company with the SEC on August 1, 2022). |
(a)(4) |
The Prospectus (see Exhibit (a)(1)(A)). |
(a)(5)(A) |
Articles of Amendment and
Restatement (“Charter”) of the Company (incorporated by reference to Exhibit 3.1 the Registration Statement
on Form S-4 filed by the Company with the SEC on July 15, 2022). |
(a)(5)(B) |
Certificate of Correction
to the Company’s Charter (incorporated by reference to Exhibit 3.1(a) of the Company’s 10-K filed with the
Securities and Exchange Commission on March 16, 1999). |
(a)(5)(C) |
Articles of Amendment to
the Company’s Charter to correct certain sections of Article VII (Restriction Transfer and Redemption of Shares) (incorporated
by reference to Exhibit 3.1(b) of the Company’s 10-K filed with the Securities and Exchange Commission
on March 16, 1999). |
(a)(5)(D) |
Articles of Amendment to
the Company’s Charter for change of name of the Company (incorporated by reference to Exhibit 3.1(a) of the Company’s
Current Report on Form 8-K/A Amendment No. 1, filed with the Securities and Exchange Commission on February 12, 1998). |
(a)(5)(E) |
Articles of Amendment to
the Company’s Charter, increasing authorized shares of Common Stock of the Company (incorporated by reference to Exhibit
10 of the Company’s Form 8-A/A, Amendment No. 2, filed with the Securities and Exchange Commission on July 30,
2002). |
(a)(5)(F) |
Articles of Amendment to
the Company’s Charter, amending and restating Article VII [Restriction or Transfer, Acquisition and Redemption of Shares]
(incorporated by reference to Exhibit 7 of the Company’s Form 8-A/A, Amendment No. 1, filed with the Securities
and Exchange Commission on June 30, 2004). |
(a)(5)(G) |
Articles Supplementary
to Company’s Charter designating 9.375 percent Series B Cumulative Redeemable Preferred Stock, liquidation preference
$25.00 per share, par value $0.01 per share, (incorporated by reference to Exhibit 3.8 of the Company’s Form 8-A/A,
Amendment No. 1, filed with the Securities and Exchange Commission on June 30, 2004). |
(a)(5)(H) |
Articles Supplementary
to Company’s Charter designating 9.125 percent Series C Cumulative Redeemable Preferred Stock, liquidation preference
$25.00 per share, par value $0.01 per share, (incorporated by reference to Exhibit 3.10 of the Company’s Form 8-A
filed with the Securities and Exchange Commission on November 19, 2004). |
(a)(5)(I) |
Articles of Amendment to
the Company’s Charter, effecting 1-for-10 reverse stock split (incorporated by reference to Exhibit 3.1 of the Company’s
Current Report on Form 8-K filed with the Securities and Exchange Commission on December 30, 2008). |
(a)(5)(J) |
Articles of Amendment to
the Company’s Charter, to decrease Common Stock par value (incorporated by reference to Exhibit 3.2 of the Company’s
Current Report on Form 8-K filed with the Securities and Exchange Commission on December 30, 2008). |
(a)(5)(K) |
Articles of Amendment to
the Company’s Charter, to amend and restate Series B Preferred Stock (incorporated by reference to Exhibit 3.1 of
the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 30, 2009). |
(a)(5)(L) |
Articles of Amendment to
the Company’s Charter, to amend and restate Series C Preferred Stock (incorporated by reference to Exhibit 3.2 of
the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 30, 2009). |
(a)(5)(M) |
Articles Supplementary
to the Company’s Charter to reclassify and designate Series A-1 Junior Participating Preferred Stock (incorporated
by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission
on September 4, 2013). |
(a)(5)(N) |
Certificate of Correction
to the Company’s Charter (incorporated by reference to Exhibit 3.1(a) of the Company’s Current Report on Form 8-K
filed with the Securities and Exchange Commission on July 15, 2022). |
(a)(5)(O) |
Form of Stock Certificate
of the Company (incorporated by reference to the corresponding exhibit number to the Company’s Registration Statement on Form S-11,
as amended (File No. 33-96670), filed with the Securities and Exchange Commission on September 7, 1995). |
(a)(5)(P) |
Tax Benefits Preservation
Rights Agreement dated as of October 23, 2019 by and between Impac Mortgage Holdings, Inc. and American Stock Transfer &
Trust Company, LLC, as Rights Agent (incorporated by referenced to Exhibit 4.1 to the Company’s Current Report on Form 8-K
filed with the Securities and Exchange Commission on October 23, 2019). |
(a)(5)(Q) |
Articles of Amendment (Series B
Preferred Stock) (included as Annex A-1 to the Prospectus; see Exhibit (a)(1)(A)). |
(a)(5)(R) |
Articles of Amendment (Series C
Preferred Stock) (included as Annex A-2 to the Prospectus; see Exhibit (a)(1)(A)). |
(a)(5)(S) |
Form of Articles Supplementary
(Series D Preferred Stock) (included as Annex A-3 to the Prospectus; see Exhibit (a)(1)(A)). |
(a)(5)(T) |
Form of Warrant issued
in Exchange Offer for Company’s Series C Preferred Stock (incorporated by reference to Exhibit 4.7 to Amendment No. 3
to the Registration Statement on Form S-4 filed by the Company with the SEC on September 14, 2022). |
(a)(5)(U) |
Warrant Agreement issued
in Exchange Offer for Company’s Series C Preferred Stock (incorporated by reference to Exhibit 4.8 to Amendment No. 3
to the Registration Statement on Form S-4 filed by the Company with the SEC on September 14, 2022). |
(a)(5)(V) |
First
Amendment to Tax Benefits Preservation Rights Agreement dated August 26, 2022, by and between Impac Mortgage
Holdings, Inc. and American Stock Transfer & Trust Company, LLC, as rights agent (incorporated by reference to
Exhibit 4.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on
August 29, 2022). |
(a)(5)(W) |
Press Release, dated October 13, 2022 (incorporated by reference to Exhibit 99.1 of the Company’s Form 8-K filed with the Securities
and Exchange Commission on October 13, 2022). |
(a)(5)(X) |
Form of Letter to Holders of Preferred Stock to be sent by the Company commencing on October 14, 2022. |
(a)(5)(Y) |
Press Release, dated October 21, 2022 (incorporated by reference to Exhibit 99.1 of the Company's Form 8-K filed with the Securities
and Exchange Commission on October 21, 2022). |
(d)(1) |
Form of Voting Agreement
in connection with Exchange Offers (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K
filed on April 29, 2022) |
(d)(2) |
Form of Amendment
No. 1 to Voting Agreement in connection with Exchange Offers. (incorporated by reference to Exhibit 10.2 of the Company’s
Current Report on Form 8-K filed on June 23, 2022) |
(d)(3) |
Form of Additional
Voting Agreement in connection with Exchange Offers. (incorporated by reference to Exhibit 10.3 of the Company’s Current
Report on Form 8-K filed on June 23, 2022) |
(h) |
Tax Opinion of Venable
LLP (incorporated by reference to Exhibit 8.1 to Amendment No. 1 to the Registration Statement on Form S-4 filed by
the Company with the SEC on August 1, 2022). |
(b) Filing Fee Exhibit.
Filing Fee Table.*
Item 13. Information Required By Schedule 13E-3.
Not applicable.
*Previously filed.
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and correct.
Impac Mortgage Holdings, Inc. |
|
|
By: |
/s/
Joseph O. Joffrion |
|
|
Joseph O. Joffrion |
|
General Counsel |
Date: October 21, 2022
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