UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Amendment
No. 2
to
SCHEDULE
TO
Tender
Offer Statement under Section 14(d)(1) or 13(e)(1)
of
the Securities Exchange Act of 1934
REGIONAL
HEALTH PROPERTIES, INC.
(Name
of Subject Company and Filing Person (Issuer))
10.875%
Series A Cumulative Redeemable Preferred Shares
(Title
of Class of Securities)
75903M200
(CUSIP
Number of Class of Securities)
Amendment
No. 2
to
SCHEDULE
13E-3
Rule
13e-3 Transaction Statement under Section 13(e)
of
the Securities Exchange Act of 1934
REGIONAL
HEALTH PROPERTIES, INC.
(Name
of the Issuer and Person Filing Statement)
10.875%
Series A Cumulative Redeemable Preferred Shares
(Title
of Class of Securities)
75903M200
(CUSIP
Number of Class of Securities)
Brent
Morrison
Chief
Executive Officer and President
Regional
Health Properties, Inc.
454
Satellite Boulevard NW, Suite 100
Suwanee,
Georgia 30024
(678) 869-5116
(Name,
address and telephone number of person authorized to receive notices and communications on behalf of filing person)
Copies
to:
Joshua
Davidson
Clinton
W. Rancher
Baker
Botts L.L.P.
910
Louisiana Street
Houston,
Texas 77002
(713)
229-1234
☒
Check the box if the filing relates solely to preliminary communications made 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.
☒
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)
SCHEDULE
TO/13E-3
This
Tender Offer Statement and Rule 13e-3 Transaction Statement on Schedule TO (this “Schedule TO”) relates to the offer
(the “Exchange Offer”) by Regional Health Properties, Inc. (the “Company”) to exchange any and
all outstanding shares of the Company’s 10.875% Series A Cumulative Redeemable Preferred Shares (the “Series A Preferred
Stock”) tendered in the Exchange Offer for newly issued shares of the Company’s 12.5% Series B Cumulative Redeemable
Preferred Shares (the “Series B Preferred Stock”).
In
exchange for each share of Series A Preferred Stock properly tendered (and not validly withdrawn) prior to 11:59 p.m., New York City
time, on , 2023 (such time and date, as the same may be extended, the “Expiration Date”) and accepted by the Company,
participating holders of Series A Preferred Stock will receive one share of Series B Preferred Stock (the “Exchange Consideration”).
The Exchange Offer will commence on , 2023 and expire at the Expiration Date, unless extended or earlier terminated by us. The Exchange
Offer will be made upon the terms and subject to the conditions set forth in the preliminary proxy statement/prospectus (as it may be
supplemented and amended from time to time, the “Prospectus”), which is filed as exhibit (a)(1)(i) hereto, and in
the related letter of transmittal (as it may be supplemented and amended from time to time, the “Letter of Transmittal”
and, together with the Prospectus, the “Offering Documents”), which will be filed by amendment as exhibit (a)(1)(ii)
hereto.
This
Schedule TO is being filed in satisfaction of the reporting requirements of Rules 13e-3 and 13e-4 promulgated under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”). Information set forth in the Offering Documents is incorporated herein
by reference in response to Items 1 through 13 of this Schedule TO, except those items as to which information is specifically provided
herein.
The
Exchange Offer to the holders of the Series A Preferred Stock has not commenced.
Item
1. Summary Term Sheet.
The
information set forth in the Prospectus in the sections titled “Questions and Answers About the Exchange Offer and the Special
Meeting” and “Summary—Summary Terms of the Exchange Offer” is incorporated herein by reference.
Item
2. Subject Company Information.
(a)
Name and Address.
The
name of the subject company and the filing person is Regional Health Properties, Inc. The address of its principal executive offices
is 454 Satellite Boulevard NW, Suite 100, Suwanee, Georgia 30024. Its telephone number is (678) 869-5116.
(b)
Securities.
The
subject class of securities is the Company’s 10.875% Series A Cumulative Redeemable Preferred Shares. There are 2,811,535 shares
of Series A Preferred Stock issued and outstanding as of the date hereof.
(c)
Trading Market and Price.
The
information set forth in the Prospectus in the section titled “Market Price for the Series A Preferred Stock” is incorporated
herein by reference.
Item
3. Identity and Background of Filing Person.
(a)
Name and Address.
Regional
Health Properties, Inc. is the filing person and subject company. The business address and telephone number of the Company are set forth
under Item 2(a) of this Schedule TO and are incorporated herein by reference.
Item
4. Terms of the Transaction.
(a)
Material Terms.
The
information set forth in the Prospectus in the sections titled “Questions and Answers About the Exchange Offer and the Special
Meeting,” “Summary—Summary Terms of the Exchange Offer,” “Risk Factors,” “The Exchange Offer,”
“Description of Capital Stock” and “Material U.S. Federal Income Tax Considerations,” as well as the information
set forth in the Letter of Transmittal, is incorporated herein by reference.
(b)
Purchases.
The
information set forth in the Prospectus in the sections titled “Stock Ownership—Ownership of the Series A Preferred Stock,”
“Questions and Answers About the Exchange Offer and the Special Meeting,” “Summary—Summary Terms of the Exchange
Offer” and “The Exchange Offer” is incorporated herein by reference.
Item
5. Past Contacts, Transactions, Negotiations and Agreements.
(e)
Agreements Involving the Subject Company’s Securities.
The
terms of the Company’s common stock, no par value per share (the “Common Stock”), Series A Preferred Stock and
the Company’s Series E Redeemable Preferred Shares are governed by the Company’s Amended and Restated Articles of Incorporation
and the Articles of Amendment thereto and filed as exhibits (d)(1), (d)(2) and (d)(3) hereto.
The
information set forth in the Prospectus in the sections titled “Description of Capital Stock,” “Executive Compensation”
and “Director Compensation” is incorporated herein by reference.
Item
6. Purposes of the Transaction and Plans or Proposals.
(a)
Purposes.
The
information set forth in the Prospectus in the sections titled “Questions and Answers About the Exchange Offer and the Special
Meeting,” “Special Factors—Background of the Exchange Offer” and “The Exchange Offer—Reasons for
the Exchange Offer” is incorporated herein by reference.
(b)
Use of Securities Acquired.
Shares
of Series A Preferred Stock accepted for exchange by the Company in the Exchange Offer will be cancelled.
(c)
Plans.
| (1) | The
information set forth in the Prospectus in the sections titled “Special Factors—Background
of the Exchange Offer,” “The Exchange Offer—Reasons for the Exchange Offer”
and “The Exchange Offer—Consequences of Failure to Exchange Series A Preferred
Stock in the Exchange Offer” is incorporated herein by reference. |
| (2) | The
information set forth in the Prospectus in the sections titled “Special Factors—Background
of the Exchange Offer,” “The Exchange Offer—Reasons for the Exchange Offer”
and “The Exchange Offer—Consequences of Failure to Exchange Series A Preferred
Stock in the Exchange Offer” is incorporated herein by reference. |
| (3) | The
information set forth in the Prospectus in the sections titled “Special Factors—Background
of the Exchange Offer,” “The Exchange Offer—Reasons for the Exchange Offer,”
“The Exchange Offer—Consequences of Failure to Exchange Series A Preferred Stock
in the Exchange Offer” and “Dividend Policy and Dividends Paid on Our Common
Stock” is incorporated herein by reference. |
| (5) | The
information set forth in the Prospectus in the sections titled “Special Factors—Background
of the Exchange Offer,” “The Exchange Offer—Reasons for the Exchange Offer”
and “The Exchange Offer—Consequences of Failure to Exchange Series A Preferred
Stock in the Exchange Offer” is incorporated herein by reference. |
| (6) | The
Company believes that the Exchange Offer has a reasonable likelihood of causing the Series
A Preferred Stock to be delisted from the NYSE American LLC (the “NYSE American”). |
| (7) | The
Company believes that the Exchange Offer has a reasonable likelihood of causing the Series
A Preferred Stock to be eligible for termination of registration under Section 12(g)(4) of
the Exchange Act. |
| (9) | The
information set forth in the Prospectus in the sections titled “Special Factors—Background
of the Exchange Offer,” “The Exchange Offer—Reasons for the Exchange Offer,”
“The Exchange Offer—Conditions of the Exchange Offer” and “Capitalization”
is incorporated herein by reference. |
Item
7. Source and Amount of Funds or Other Consideration.
(a)
Source of Funds.
The
information set forth in the Prospectus in the sections titled “Questions and Answers About the Exchange Offer and the Special
Meeting” and “The Exchange Offer—Terms of the Exchange Offer” is incorporated herein by reference. Assuming full
participation in the Exchange Offer, the Company will issue approximately 2,811,535 shares of Series B Preferred Stock as consideration
for the Exchange Offer.
(b)
Conditions.
The
information set forth in the Prospectus in the sections titled “Questions and Answers About the Exchange Offer and the Special
Meeting,” “The Exchange Offer—Terms of the Exchange Offer” and “The Exchange Offer—Conditions of
the Exchange Offer” is incorporated herein by reference.
(d)
Borrowed Funds.
Not
applicable.
Item
8. Interest in the Securities of the Subject Company.
(a)
Securities Ownership.
The
information set forth in the Prospectus in the section titled “Stock Ownership—Ownership of the Series A Preferred Stock”
is incorporated herein by reference.
(b)
Securities Transactions.
None.
Item
9. Persons/Assets, Retained, Employed, Compensated or Used.
(a)
Solicitations or Recommendations.
The
information set forth in the Prospectus in the sections titled “The Exchange Offer” and “The Special Meeting—Proxy
Solicitor and Information Agent” is incorporated herein by reference. None of the Company, its Board of Directors, officers or
employees, the information agent, the exchange agent, the proxy solicitor, any of the Company’s financial advisors nor any other
person is making any recommendation to any holder of Series A Preferred Stock as to whether or not such holder should tender their shares
of Series A Preferred Stock in the Exchange Offer.
Item
10. Financial Statements.
(a)
Financial Information.
| |
(1) | The financial statements
set forth in the Prospectus in “Annex C” under “Part II, Item 8” are incorporated herein by reference. |
| |
| |
| |
(2) | The financial statements set forth in the Prospectus in “Annex
D” under “Part I, Item 1” are incorporated herein by reference. |
| |
| |
| |
(3) | The
book value per share of the Common Stock as of March 31, 2023 was -$32.35. |
(b)
Pro Forma Information.
Not
applicable.
Item
11. Additional Information.
(a)
Agreements, Regulatory Requirements and Legal Proceedings.
The
information set forth in the Prospectus in the section titled “The Exchange Offer—Conditions of the Exchange Offer”
is incorporated herein by reference.
(c)
Other Material Information.
The
information set forth in the Prospectus and the Letter of Transmittal is incorporated herein by reference.
Item
12. Exhibits.
| Exhibit |
| Description |
| |
| |
| (a)(1)(i) |
| Preliminary Proxy Statement/Prospectus, dated May 18, 2023 (the “Prospectus”) (incorporated by reference to the Company’s Amendment No. 2 to Registration Statement on Form S-4 (Reg. No. 333-269750) filed on May 18, 2023). |
| |
| |
| (a)(1)(ii)* |
| Letter
of Transmittal. |
| |
| |
| (a)(1)(iii)* |
| Notice
of Guaranteed Delivery. |
| |
| |
| (a)(4) |
| The Prospectus (see Exhibit (a)(1)(i)). |
| |
| |
| (a)(5)(i) |
| Form of Amended and Restated Article III of the Amended and Restated Articles of Incorporation of Regional Health Properties, Inc. (included as Annex A to the Prospectus, see Exhibit (a)(1)(i)). |
| |
| |
| (a)(5)(ii) |
| Form of Amended and Restated Section 2.1 of the Amended and Restated Articles of Incorporation of Regional Health Properties, Inc. (included as Annex B-1 to the Prospectus, see Exhibit (a)(1)(i)). |
| |
| |
| (a)(5)(iii) |
| Form of Article X of the Amended and Restated Articles of Incorporation of Regional Health Properties, Inc. (included as Annex B-2 to the Prospectus, see Exhibit (a)(1)(i)). |
| |
| |
| (a)(5)(iv) |
| The Company’s Annual Report on Form 10-K for the year ended December 31, 2022 (incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended December 31, 2022 filed on April 14, 2023). |
| |
| |
| (a)(5)(v) |
| Press Release, dated February 17, 2023 (incorporated by reference to Exhibit 99.1 of the Company’s Current Report on Form 8-K filed on February 17, 2023). |
| |
| |
| (b) |
| Not
applicable. |
| |
| |
| (d)(1) |
| Amended and Restated Articles of Incorporation of Regional Health Properties, Inc. (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K12B filed on October 2, 2017). |
| |
| |
| (d)(2) |
| Articles of Amendment to Amended and Restated Articles of Incorporation of Regional Health Properties, Inc., effective December 31, 2018 (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed on December 28, 2018). |
| |
| |
| (d)(3) |
| Articles of Amendment Establishing Series E Redeemable Preferred Shares of Regional Health Properties, Inc., effective February 14, 2023 (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed on February 17, 2023). |
| |
| |
| (d)(4) |
| Regional Health Properties, Inc. 2020 Equity Incentive Plan (incorporated by reference to Exhibit 99.1 of the Company’s Current Report on Form 8-K filed on December 17, 2020). |
| |
| |
| (g) |
| Not
applicable. |
| |
| |
| (h) |
| Tax Opinion of Baker Botts L.L.P. (incorporated by reference to Exhibit 8.1 of the Company’s Amendment No. 1 to Registration Statement on Form S-4 (Reg. No. 333-269750) filed on April 28, 2023). |
| |
| |
| 107** |
| Filing Fee Table. |
*
To be filed by amendment.
**
Previously filed.
Item
13. Information Required by Schedule 13E-3.
The
following sets forth the information required by Schedule 13E-3 that has not already been set forth in Items 1-12 above. The information
set forth in the Prospectus is incorporated herein by reference to the items required by Schedule 13E-3.
Item
2 of Schedule 13E-3. Subject Company Information.
| (d) | The
information set forth in the Prospectus in the sections titled “Questions and Answers
About the Exchange Offer and the Special Meeting,” “Special Factors—Background
of the Exchange Offer” and “Dividend Policy and Dividends Paid on Our Common
Stock” is incorporated herein by reference. |
| | | |
| (e) | None. |
| | | |
| (f) | None. |
Item
3 of Schedule 13E-3. Identity and Background of the Filing Person.
Item
4 of Schedule 13E-3. Terms of the Transaction.
| (c) | None. |
| | | |
| (d) | The
information set forth in the Prospectus in the sections titled “Questions and Answers
About the Exchange Offer and the Special Meeting,” “Summary—Summary Terms
of the Exchange Offer,” “The Exchange Offer—Terms of the Exchange Offer”
and “The Exchange Offer—No Appraisal Rights” is incorporated herein by
reference. |
| | | |
| (e) | None. |
| | | |
| (f) | The
Series B Preferred Stock offered as part of the Exchange Consideration has no established
trading market. The Company intends to apply for the listing of shares of the Series B Preferred
Stock on the NYSE American, and, if listed, the Company expects that the shares of Series
B Preferred Stock will trade under the ticker symbol “RHE PRB.” |
Item
5 of Schedule 13E-3. Past Contracts, Transactions, Negotiations and Agreements.
| (a)(1) | None. |
| | | |
| (a)(2) | The
information set forth in the Prospectus in the sections titled “Description of Capital
Stock,” “Executive Compensation” and “Director Compensation”
is incorporated herein by reference. |
| | | |
| (b)(1) | None. |
| | | |
| (b)(2) | None. |
| | | |
| (b)(3) | None. |
| | | |
| (b)(4) | The
information set forth in the Prospectus in the section titled “Special Factors—Background
of the Exchange Offer” is incorporated herein by reference. |
| | | |
| (b)(5) | The
information set forth in the Prospectus in the section titled “Special Factors—Background
of the Exchange Offer” is incorporated herein by reference. |
| | | |
| (b)(6) | The
information set forth in the Prospectus in the sections titled “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” and “Description
of Business” is incorporated herein by reference. |
| | | |
| (c) | The
information set forth in the Prospectus in the sections titled “Special Factors—Background
of the Exchange Offer,” “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” and “Description of Business” is incorporated
herein by reference. |
Item
7 of Schedule 13E-3. Purposes, Alternatives, Reasons and Effects.
| (b) | The
information set forth in the Prospectus in the sections titled “Questions and Answers
About the Exchange Offer and the Special Meeting,” “Special Factors—Background
of the Exchange Offer,” “Special Factors—Business Considerations by the
Board of Directors” and “The Exchange Offer—Reasons for the Exchange Offer”
is incorporated herein by reference. |
| | | |
| (c) | The
information set forth in the Prospectus in the sections titled “Questions and Answers
About the Exchange Offer and the Special Meeting,” “Special Factors—Background
of the Exchange Offer,” “Special Factors—Business Considerations by the
Board of Directors” and “The Exchange Offer—Reasons for the Exchange Offer”
is incorporated herein by reference. |
| | | |
| (d) | The
information set forth in the Prospectus in the sections titled “Questions and Answers
About the Exchange Offer and the Special Meeting,” “Summary—Summary Terms
of the Exchange Offer,” “Special Factors—Business Considerations by the
Board of Directors,” “The Exchange Offer” and “Material U.S. Federal
Income Tax Considerations” is incorporated herein by reference. |
Item
8 of Schedule 13E-3. Fairness of the Transaction.
| (a) | The
information set forth in the Prospectus in the section titled “Special Factors—Determination
of Fairness of the Exchange Offer by the Company” is incorporated herein by reference. |
| | | |
| (b) | The
information set forth in the Prospectus in the section titled “Special Factors—Determination
of Fairness of the Exchange Offer by the Company” is incorporated herein by reference. |
| (c) | The
Exchange Offer is not structured so that approval of at least a majority of unaffiliated
Company shareholders is required. The information set forth in the Prospectus in the sections
titled “Summary—Summary Terms of the Exchange Offer,” “The Exchange
Offer—Conditions of the Exchange Offer,” “The Special Meeting—Record
Date and Voting Rights,” “The Special Meeting—Quorum and Counting of Votes,”
“Preferred Series A Charter Amendment Proposal—Vote Required,” “Series
B Preferred Stock Proposal—Vote Required,” “Common Charter Amendment Proposal—Vote
Required” and “Adjournment Proposal—Vote Required” is incorporated
herein by reference. |
| | | |
| (d) | An
unaffiliated representative was not engaged by the Company to act solely on behalf of the
unaffiliated holders of Series A Preferred Stock for purposes of negotiating the terms of
the Exchange Offer. The information set forth in the Prospectus in the sections titled “Risk
Factors—Risks Related to the Exchange Offer” and “Special Factors—Determination
of Fairness of the Exchange Offer by the Company” is incorporated herein by reference. |
| | | |
| (e) | The
information set forth in the Prospectus in the sections titled “Special Factors—Background
of the Exchange Offer” and “Special Factors—Determination of Fairness of
the Exchange Offer by the Company” is incorporated herein by reference. |
| | | |
| (f) | Not
applicable. |
Item
9 of Schedule 13E-3. Reports, Opinions, Appraisals and Negotiations.
| (a) | The
Company has not received any report, opinion or appraisal from an outside party with respect
to the Exchange Offer. The information set forth in the Prospectus in the sections titled
“Special Factors—Background of the Exchange Offer” and “Special Factors—Determination
of Fairness of the Exchange Offer by the Company” is incorporated herein by reference. |
| | | |
| (b) | None. |
| | | |
| (c) | None. |
Item
10 of Schedule 13E-3. Source and Amounts of Funds or Other Consideration.
| (c) | The
information set forth in the Prospectus in the section titled “The Exchange Offer—Fees
and Expenses” is incorporated herein by reference. |
Item
12 of Schedule 13E-3. The Solicitation or Recommendation.
| (d) | The
information set forth in the Prospectus in the sections titled “Stock Ownership—Ownership
of the Series A Preferred Stock,” “Questions and Answers About the Exchange Offer
and the Special Meeting,” “Summary—Summary Terms of the Exchange Offer,”
“The Exchange Offer” and “The Special Meeting—Voting of Proxies”
is incorporated herein by reference. |
| | | |
| (e) | None. |
Item
14 of Schedule 13E-3. Persons/Assets, Retained, Employed, Compensated or Used.
| (b) | The
information set forth in the Prospectus in the section titled “The Exchange Offer—Fees
and Expenses” is incorporated herein by reference. |
Item
16 of Schedule 13E-3. Exhibits.
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.
| Date: May 18, 2023 |
|
| |
|
| |
REGIONAL HEALTH PROPERTIES, INC. |
| |
|
| |
By: |
/s/ Brent Morrison |
| |
|
Brent Morrison |
| |
|
Chief Executive Officer and President |
Regional Health Properties (AMEX:RHE-A)
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