14:53:53 EDT Fri 26 Apr 2024
Enter Symbol
or Name
USA
CA



Agellan Commercial Real Estate Investment Tru
Symbol ACR
Shares Issued 32,830,461
Close 2017-09-19 C$ 11.80
Market Cap C$ 387,399,440
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Agellan dissident requisitions meeting for new board

2017-09-19 16:10 ET - News Release

Mr. Renzo Barazzuol of Sandpiper reports

SWEETHEART $15,000,000 PAYOUT TO MANAGER BY AGELLAN TRUSTEES VALIDATES THE NEED FOR URGENT CHANGE

Sandpiper Group, owners of over 10 per cent of the outstanding units of Agellan Commercial Real Estate Investment Trust, will ensure all unitholders have the ability to choose the direction of Agellan by requisitioning a special meeting of unitholders. The special meeting is being called to replace five incumbent trustees with Sandpiper's independent nominees and to hold a vote on the shocking $15-million payout to the REIT's manager. Sandpiper wants to give all unitholders a chance to voice their opinion on the future of their investment. Sandpiper has called for the unitholder meeting to occur by no later than Nov. 7, 2017.

Sandpiper believes it is unfortunate that it has been forced to take this costly and distracting step after Agellan's management rebuffed attempts at a constructive dialogue. The incumbent board of trustees' unwillingness to engage with a significant unitholder to come to an agreeable resolution, coupled with the expedited announcement of the $15-million payout of the management contract, is a clear demonstration, in Sandpiper's view, of the entrenchment and enrichment motives of the current board.

Internalization suggests board allegiance is with the manager, not unitholders

Sandpiper believes that the current board has put the interests of the external manager, Agellan Capital Partners Inc. (ACPI), ahead of unitholders by hastily announcing a shocking deal to internalize the current management agreement. The deal is being financed by taking $15-million out of unitholders' pockets and diluting unitholders by being settled primarily in the form of units (approximately 3 per cent of the REIT) at a substantial discount to the net asset value, as readily stated by the chief executive officer. The CEO of the manager has told Sandpiper Group that he believes the NAV is $14. If you believed the NAV is more than $14, would it not be nice to receive 3 per cent of the company at nearly a 20-per-cent discount?

Unitholders should be aware that consensus analyst AFFO (adjusted funds from operations) per unit estimates for 2017 suggest that the external manager is unlikely to meet the low-bar performance hurdle and is at risk of termination. If terminated, the payout is approximately $10-million less than the $15-million valuation it has been awarded by the current board. Under the provisions of the external asset management agreement, there is an option at the discretion of the board to terminate the asset manager at a cost of approximately $5-million ($10-million less than the $15-million announced internalization payout) if the AFFO per unit of Agellan fails to exceed 99 cents in 2017.

While Sandpiper supports internalization in general as a good corporate governance practice, the company takes issue with the terms and timing. Sandpiper believes the current board is rewarding ACPI for failure to deliver meaningful unit price performance or AFFO per unit growth while opportunistically issuing equity at a substantial discount to the NAV -- a double whammy.

The REIT is on pace to pay out more than $4-million of total fees to the external manager in 2017 (almost double the total amount of fees paid in 2013) while there has never been distribution growth for unitholders. With all entities and individuals related to the external manager owning less than 3 per cent of the issued and outstanding units, Sandpiper believes it is clear that their agenda to drive asset growth without regard for unitholders has almost exclusively benefited their own misaligned interests.

Unitholders already support Sandpiper and are outraged by the internalization value

Sandpiper is a long-term investor that has invested nearly $40-million into Agellan and believes the REIT has significant potential to evolve into a pure play, U.S. industrial leader and provide unitholders with sustained, superior performance.

Already a number of unitholders holding well over 30 per cent of the outstanding units, including Agellan's largest unitholder, Elad Canada Inc. owning 19 per cent, have expressed support for Sandpiper's approach, their outrage of the internalization transaction and the need for a newly constituted board. Rather than respect the voices of its unitholders, the current board has made it clear the only way to explore a new path and increase accountability to unitholders is by requisitioning a meeting.

The time for change is now: new trustees on the same side as unitholders

Unitholders have a right to have their say on a decision that will take $15-million out of their pockets and hand 3 per cent of the REIT over to ACPI months before ACPI could be terminated for underperformance. If their elected trustee representatives are unwilling to listen to their concerns, unitholders have a right to select ones who will. The current board requires substantial change to ensure the stewardship of your capital is in the right hands.

Pursuant to the requisition, Sandpiper has put forward five new independent nominees to the board with high performance records and proven ability to deliver results.

Renzo Barazzuol:

  • Will bring significant experience in real estate, finance, transactions and operations;
  • Sandpiper's president and chief operating officer;
  • Formerly chief financial officer for the Aquilini Investment Group (2008 to 2016, initially as CFO of real estate development group);
  • Held senior roles with Amica Mature Lifestyles Inc. (1999 to 2008).

Colin Catherwood:

  • Adds over 18 years of expertise in real estate, capital markets and finance;
  • Vice-president of investments at Welltower Inc.;
  • Partner at Brookfield Financial (2007 to 2015).

Galia Feiler:

  • Seasoned professional with over 15 years of accounting, operational, investment, financial and public company expertise;
  • Principal and founder of Feiler Investments and Services;
  • Former chief executive officer of Fishman Holdings North America (2005 to 2011);
  • Held senior positions with BDO Dunwoody Canada (2001 to 2005) and KPMG, Israel.

Ron Schwarz, CFA:

  • Will provide 25 years of capital markets, corporate governance and industry experience;
  • Chair audit committee of CHC Student Housing and member of compensation and governance committees;
  • Executive director of UBS Global Asset Management Canada (2009 to 2011);
  • Managing director and head of Canadian cash equities at CIBC Wholesale Bank (2006 to 2008).

Aida Tammer, CFA, ICDD:

  • Adds 25 years of corporate governance, capital markets and real estate investment experience, having advised on numerous REIT initial public offerings and merger-and-acquisition transactions, debt and equity offerings, and property trades totalling over $30-billion;
  • Former trustee at Healthlease Properties REIT and director at Tricon Capital Group;
  • Held senior positions with CIBC World Markets (1998 to 2009).

Advisers

Sandpiper has retained Kingsdale Advisors as its strategic shareholder services adviser and strategic communications adviser. The special situations group at Norton Rose Fulbright Canada LLP is acting as legal counsel.

Information concerning the concerned unitholder nominees

As set out in the requisition, Sandpiper has nominated Mr. Barazzuol, Mr. Catherwood, Ms. Feiler, Mr. Schwarz and Ms. Tammer (the concerned unitholder nominees) to serve as new independent trustees to the board until the next annual meeting of unitholders, or until their successors are elected or appointed in accordance with applicable law. The attached table sets out, in respect of each concerned unitholder nominee, his or her name, province or state and country of residence, his or her principal occupation, business or employment within the five preceding years, and the number of units of Agellan beneficially owned, or controlled or directed, directly or indirectly, by such concerned unitholder nominee.

                   UNITHOLDINGS OF CONCERNED UNITHOLDER NOMINEES

Name, province               Present principal occupation, business or            Number of units
or state, and                      employment and principal occupation,     beneficially owned or 
country of                 business or employment during the preceding     controlled or directed 
residence                                                   five years    (directly or indirectly)
                            
Renzo Barazzuol,    President and chief operating officer of Sandpiper               3,283,620 (1)
British Columbia,       Asset Management Inc. from September, 2016, to 
Canada                  present; chief financial officer for (and held   
                     other positions within) Aquilini Investment Group
                       from July, 2008 (starting as CFO of real estate 
                                development group), to September, 2016
                                                               
Colin Catherwood,      VP Investments, Canada, for Welltower Inc. from 
Ontario, Canada       2015 to present; partner of Brookfield Financial 
                                                     from 2007 to 2015                        Nil

Galia Feiler,             Founding principal of Feiler Investments and                        Nil
Ontario, Canada                          Services from 2011 to present
                                                                                          

Ron Schwarz,        Independent investor and corporate consultant from 
Ontario, Canada       January, 2012, to present; executive director of 
                     UBS Global Asset Management Canada from September,
                                               2009, to December, 2011                     15,000

Aida Tammer,              Corporate director, real estate investor and 
Ontario, Canada                        consultant from 2010 to present                        Nil

(1) Of these, 2,504,700 units are held by Sandpiper Real Estate Fund Limited Partnership, 
whose general partner is Sandpiper GP Inc., of which Mr. Barazzuol is an executive 
officer; 778,920 units are held by Sandpiper Opportunity Fund 3 Limited Partnership, whose 
general partner is Sandpiper GP, of which Mr. Barazzuol is an executive officer. 

Other boards of reporting issuers

As at the date hereof, Mr. Schwarz is a director of CHC Student Housing. No other concerned unitholder nominee is currently a director or trustee of any other reporting issuer.

Other information concerning the concerned unitholder nominees

Except as provided below, to the knowledge of Sandpiper, no concerned unitholder nominee is, at the date hereof, or has been, within 10 years before the date hereof: (a) a director, chief executive officer or chief financial officer of any company that: (i) was subject to a cease trade order, an order similar to a cease trade order or an order that denied the relevant company access to any exemption under securities legislation that was in effect for a period of more than 30 consecutive days, in each case that was issued while the concerned unitholder nominee was acting in the capacity as director, chief executive officer or chief financial officer; or (ii) was subject to an order that was issued after the concerned unitholder nominee ceased to be a director, chief executive officer or chief financial officer and which resulted from an event that occurred while that person was acting in the capacity as director, chief executive officer or chief financial officer; (b) a director or executive officer of any company that, while such concerned unitholder nominee was acting in that capacity, or within one year of such concerned unitholder nominee ceasing to act in that capacity, became bankrupt, made a proposal under any legislation relating to bankruptcy or insolvency, was subject to or instituted any proceedings, arrangement or compromise with creditors, or had a receiver, receiver manager or trustee appointed to hold its assets; or (c) someone who became bankrupt, made a proposal under any legislation relating to bankruptcy or insolvency, became subject to or instituted any proceedings, arrangement or compromise with creditors, or had a receiver, receiver manager or trustee appointed to hold the assets of such concerned unitholder nominee.

The Ontario Securities Commission granted a management cease trade order (MCTO) to CHC Student Housing, of which Mr. Schwarz is a director, on May 5, 2017, due to the late filing of CHC's audited annual financial statements and management's discussion and analysis and related certificates for the fiscal year ended Dec. 31, 2016, on or before May 1, 2017. CHC was subsequently unable to file its interim financial statements and related management's discussion and analysis in respect of the three months ended March 31, 2017, on or before May 30, 2017. The MCTO expired on July 4, 2017.

To the knowledge of Sandpiper, as at the date hereof, no concerned unitholder nominee has been subject to: (a) any penalties or sanctions imposed by a court relating to securities legislation or by a securities regulatory authority, or has entered into a settlement agreement with a securities regulatory authority; or (b) any other penalties or sanctions imposed by a court or regulatory body that would likely be considered important to a reasonable securityholder in deciding whether to vote for a concerned unitholder nominee.

To the knowledge of Sandpiper, none of the directors or officers of the concerned unitholder, any associates or affiliates of the foregoing, or any of the concerned unitholder nominees or their respective associates or affiliates, have: (a) any material interest, direct or indirect, in any transaction since the commencement of the trust's most recently completed financial year or in any proposed transaction, which has materially affected or will materially affect the trust or any of its subsidiaries; or (b) any material interest, direct or indirect, by way of beneficial ownership of securities or otherwise, in any matter proposed to be acted on at the meeting, other than the reconstitution of the board.

Additional information

The information contained in this presentation does not and is not meant to constitute a solicitation of a proxy within the meaning of applicable securities laws. Although Sandpiper has requisitioned a meeting of unitholders, there is currently no record or meeting date, and unitholders are not being asked at this time to execute a proxy in favour of the concerned unitholder nominees or any other resolutions set forth in the requisition. In connection with the meeting, Sandpiper may file a dissident information circular (the information circular) in due course in compliance with applicable securities laws.

Notwithstanding the foregoing, Sandpiper is voluntarily providing the disclosure required under Section 9.2 (4) of National Instrument 51-102 (Continuous Disclosure Obligations) in accordance with securities laws applicable to public broadcast solicitations.

This news release and any solicitation made by Sandpiper in advance of the meeting are, or will be, as applicable, made by Sandpiper, and not by or on behalf of the management of Agellan. All costs incurred for any solicitation will be borne by Sandpiper, provided that, subject to applicable law, Sandpiper may seek reimbursement from Agellan of Sandpiper's out-of-pocket expenses, including proxy solicitation expenses and legal fees, incurred in connection with a successful reconstitution of the board.

Sandpiper is not soliciting proxies in connection with the meeting at this time, and unitholders are not being asked at this time to execute proxies in favour of the concerned unitholder nominees (in respect of the meeting) or any other resolution set forth in the requisition. Proxies may be solicited by Sandpiper pursuant to an information circular sent to unitholders, after which solicitations may be made by or on behalf of Sandpiper, by mail, telephone, fax, e-mail or other electronic means, as well as by newspaper or other media advertising, and in person by directors, officers and employees of Sandpiper, who will not be specifically remunerated therefor. Sandpiper may also solicit proxies in reliance upon the public broadcast exemption to the solicitation requirements under applicable Canadian corporate and securities laws, conveyed by way of public broadcast, including through press releases, speeches or publications, and by any other manner permitted under applicable Canadian laws. Sandpiper may engage the services of one or more agents and authorize other persons to assist in soliciting proxies on behalf of Sandpiper.

Sandpiper has retained Kingsdale Advisors to assist Sandpiper in soliciting unitholders should Sandpiper commence a formal solicitation of proxies. Kingsdale's responsibilities will principally include advising Sandpiper on governance best practices, where applicable, liaising with proxy advisory firms, developing and implementing unitholder communication and engagement strategies, and advising with respect to meeting and proxy protocol. The anticipated cost of Sandpiper's solicitation is estimated to be $25,000 plus disbursements.

Sandpiper is not requesting that Agellan unitholders submit a proxy at this time. Once Sandpiper has commenced a formal solicitation of proxies in connection with the meeting, proxies may be revoked by instrument in writing by the unitholder giving the proxy or by its duly authorized officer or attorney, or in any other manner permitted by law, the declaration of trust of Agellan. None of Sandpiper or, to its knowledge, any of its associates or affiliates, have any material interest, direct or indirect: (i) in any transaction since the beginning of Agellan's most recently completed financial year or in any proposed transaction that has materially affected or would materially affect Agellan or any of its subsidiaries; or (ii) by way of beneficial ownership of securities or otherwise, in any matter proposed to be acted on at the meeting, other than the election of trustees to the board.

A copy of this news release may be obtained on Agellan's SEDAR profile.

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