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EXHIBIT 99.1

 

JOINT PROXY STATEMENT/PROSPECTUS

 

 

 

To the Stockholders of Independence Realty Trust, Inc. and the Stockholders of Trade Street Residential, Inc.:

The board of directors of Independence Realty Trust, Inc. (“IRT”) and the board of directors of Trade Street Residential, Inc. (“TSRE”) have each approved an Agreement and Plan of Merger, dated as of May 11, 2015 (the “Merger Agreement”), by and among IRT, Independence Realty Operating Partnership, LP, IRT’s operating partnership (“IROP”), Adventure Merger Sub LLC, a direct wholly-owned subsidiary of IROP (“OP Merger Sub”), IRT Limited Partner, LLC, a direct wholly-owned subsidiary of IRT (“IRT LP LLC”), TSRE, and Trade Street Operating Partnership, LP, TSRE’s operating partnership (“TSR OP”).

The Merger Agreement provides for: (i) OP Merger Sub to merge into TSR OP (the “Partnership Merger”), with TSR OP continuing as the surviving entity, and (ii) TSRE to merge into IRT LP LLC (the “Company Merger” and, together with the Partnership Merger, the “Merger”), with IRT LP LLC continuing as the surviving entity and a wholly-owned subsidiary of IRT. The combined company (the “Combined Company”) will retain the name “Independence Realty Trust, Inc.” and will continue to trade on the NYSE MKT LLC (the “NYSE MKT”), under the symbol “IRT.” Upon completion of the Merger, the board of directors of the Combined Company will be increased to seven members, with Richard H. Ross, TSRE’s Chief Executive Officer, and Mack D. Pridgen III, the Chairman of TSRE’s board of directors, joining the five current IRT directors on the board of directors of the Combined Company. The executive officers of IRT immediately prior to the effective time of the Merger will continue to serve as the executive officers of the Combined Company.

If the Merger is completed, then, at the effective time of the Company Merger, each issued and outstanding share of TSRE common stock will convert into the right to receive (i) $3.80 in cash, without interest, subject to increase, at the election of IRT, to up to $4.56 (such cash amount, the “Per Share Cash Amount”), and (ii) a number of shares of IRT common stock equal to the quotient, or “Exchange Ratio,” determined by dividing (a) $7.60 less the Per Share Cash Amount, by (b) $9.25, and rounding the result to the nearest 1/10,000.

Neither the Per Share Cash Amount nor the Exchange Ratio will change as a result of a change in the market price of IRT common stock, although the aggregate value of the merger consideration will fluctuate with changes in the market price of IRT common stock and the Per Share Cash Amount that IRT elects, which will have the effect of changing the Exchange Ratio and the number of shares of IRT common stock to be issued upon completion of the Merger. Based on the closing price of IRT common stock on the NYSE MKT of $8.14 on July 30, 2015, the latest practicable date before the date of this joint proxy statement/prospectus, and based on a $3.80 Per Share Cash Amount and a resulting Exchange Ratio of 0.4108, the aggregate value of the per share merger consideration would equal $7.14, comprised of $3.80 of cash and 0.4108 of a share of IRT common stock with a market value of $3.34. We urge you to obtain current market quotations for IRT common stock and TSRE common stock.

Upon completion of the Merger, we estimate that continuing IRT stockholders will own approximately 66.5% of the issued and outstanding common stock of the Combined Company, and former TSRE stockholders will own approximately 33.5% of the issued and outstanding common stock of the Combined Company.

In connection with the proposed Merger, IRT and TSRE will each hold a special meeting of their respective stockholders. At the IRT special meeting, IRT stockholders will be asked to vote on (i) a proposal to approve the issuance of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of common units of limited partnership interest in IROP (“IROP Units”) issued in the Partnership Merger), and (ii) a proposal to approve one or more adjournments of the IRT special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger). At the TSRE special meeting, TSRE stockholders will be asked to vote on (i) a proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement, and (ii) a proposal to approve one or more adjournments of the TSRE special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement.

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The record date for determining the stockholders entitled to receive notice of, and to vote at, the IRT special meeting and the TSRE special meeting is July 8, 2015.

The IRT board of directors has unanimously (i) determined that the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement, are fair to and in the best interests of IRT and its stockholders, (ii) approved and adopted the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement, and (iii) authorized and approved the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger). The IRT board of directors unanimously recommends that IRT stockholders vote FOR the proposal to approve the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) and FOR the proposal to approve one or more adjournments of the IRT special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger).

The TSRE board of directors has (i) determined that the Merger Agreement, the Company Merger and the other transactions contemplated by the Merger Agreement are advisable and in the best interests of TSRE and its stockholders and (ii) approved the Merger Agreement and authorized the performance by TSRE thereunder. The TSRE board of directors recommends that TSRE stockholders vote FOR the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement and FOR the proposal to approve one or more adjournments of the TSRE special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement.

The Merger cannot be completed unless, among other matters, (i) TSRE stockholders approve the Company Merger and the other transactions contemplated by the Merger Agreement by the affirmative vote of the holders of at least a majority of the outstanding shares of TSRE common stock entitled to vote on the Company Merger, and (ii) IRT stockholders approve the issuance of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) by the affirmative vote of the holders of at least a majority of all votes cast on the proposal. The completion of the Merger is also subject to the satisfaction or waiver of other customary conditions set forth in the Merger Agreement.

Concurrently with the execution of the Merger Agreement, (i) IRT entered into voting agreements with funds managed or advised by Senator Investment Group, LP and funds managed or advised by Monarch Alternative Capital LP, who collectively owned approximately 48.3% of the outstanding shares of TSRE common stock as of July 8, 2015, and (ii) TSRE entered into a voting agreement with RAIT, which owned approximately 22.8% of the outstanding shares of IRT common stock as of July 8, 2015. Pursuant to the terms of the voting agreements, among other things, each of stockholders party thereto agreed to vote all of its shares of IRT common stock or TSRE common stock, as applicable, to approve the Company Merger at the TSRE special meeting or to approve the issuance of IRT common stock in the Merger at the IRT special meeting, as applicable.

 

 

This joint proxy statement/prospectus contains important information about IRT, TSRE, the Merger, the Merger Agreement and the special meetings. This document is also a prospectus for shares of IRT common stock that will be issued pursuant to the Merger Agreement. We encourage you to read this joint proxy statement/prospectus carefully before voting, including the section entitled “Risk Factors” beginning on page 32.

Your vote is very important, regardless of the number of shares you own. Whether or not you plan to attend the IRT special meeting or the TSRE special meeting, as applicable, please submit a proxy to vote your shares as promptly as possible to make sure that your shares of IRT common stock and/or shares of TSRE common stock, as applicable, are represented at the applicable special meeting. Please review this joint proxy statement/prospectus for more complete information regarding the Merger and the special meetings of IRT and TSRE.

Sincerely,

 

Scott F. Schaeffer Chief Executive Officer Independence Realty Trust, Inc.		Richard H. Ross Chief Executive Officer Trade Street Residential, Inc.

Neither the Securities and Exchange Commission, nor any state securities regulatory authority has approved or disapproved of the Merger or the securities to be issued under this joint proxy statement/prospectus or has passed upon the adequacy or accuracy of the disclosure in this joint proxy statement/prospectus. Any representation to the contrary is a criminal offense.

This joint proxy statement/prospectus is dated July 31, 2015, and is first being mailed to IRT and TSRE stockholders on or about August 3, 2015.

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INDEPENDENCE REALTY TRUST, INC.

Cira Centre, 2929 Arch Street, 17th Floor

Philadelphia, PA 19104

(215) 243-9000

NOTICE OF SPECIAL MEETING OF STOCKHOLDERS

TO BE HELD ON SEPTEMBER 15, 2015

To the Stockholders of Independence Realty Trust, Inc.:

A special meeting of the stockholders of Independence Realty Trust, Inc., a Maryland corporation (“IRT”), will be held at IRT’s offices at the Cira Centre, 2929 Arch Street, 17th Floor, Philadelphia, Pennsylvania 19104 on September 15, 2015, commencing at 9:00 a.m., local time, for the following purposes:

 

(i)

to consider and vote on a proposal to approve the issuance of shares of IRT common stock (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) pursuant to the Agreement and Plan of Merger, dated as of May 11, 2015, as it may be amended from time to time (the “Merger Agreement”), by and among IRT, Independence Realty Operating Partnership, LP, IRT’s operating partnership (“IROP”), Adventure Merger Sub LLC, a direct wholly-owned subsidiary of IROP (“OP Merger Sub”), IRT Limited Partner, LLC, a direct wholly-owned subsidiary of IRT (“IRT LP LLC”), Trade Street Residential, Inc., a Maryland corporation (“TSRE”), and Trade Street Operating Partnership, LP, TSRE’s operating partnership (“TSR OP”). The Merger Agreement provides for: (i) OP Merger Sub to merge into TSR OP (the “Partnership Merger”), with TSR OP continuing as the surviving entity, and (ii) TSRE to merge into IRT LP LLC (the “Company Merger” and, together with the Partnership Merger, the “Merger”), with IRT LP LLC continuing as the surviving entity and a wholly-owned subsidiary of IRT; and

 

(ii)

to consider and vote on a proposal to approve one or more adjournments of the special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger).

IRT does not expect to transact any other business at the special meeting. IRT’s board of directors has fixed the close of business on July 8, 2015 as the record date (the “IRT Record Date”) for determination of IRT stockholders entitled to receive notice of, and to vote at, the special meeting and any adjournments or postponements of the special meeting. Only holders of record of IRT common stock at the close of business on the IRT Record Date are entitled to receive notice of, and to vote at, the special meeting. As of the IRT Record Date, there were 31,933,217 shares of IRT common stock outstanding and entitled to vote at the special meeting, held by approximately 35 stockholders of record.

Approval of the proposal to approve the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) requires the affirmative vote of the holders of at least a majority of all votes cast on the proposal. Approval of the proposal to approve one or more adjournments of the special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) requires the affirmative vote of at least a majority of all votes cast on such proposal.

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IRT’s board of directors has unanimously (i) determined that the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement are advisable, fair to, and in the best interests of IRT and its stockholders, (ii) approved and adopted the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement, and (iii) authorized and approved the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger). IRT’s board of directors unanimously recommends that IRT stockholders vote FOR the proposal to approve the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) and FOR the proposal to approve one or more adjournments of the special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger).

YOUR VOTE IS IMPORTANT

Whether or not you plan to attend the special meeting, please submit a proxy to vote your shares as promptly as possible. To submit a proxy, complete, sign, date and mail your proxy card in the preaddressed postage-paid envelope provided or, if the option is available to you, call the toll-free telephone number listed on your proxy card or use the internet as described in the instructions on the enclosed proxy card to submit your proxy. Submitting a proxy will assure that your vote is counted at the special meeting if you do not attend in person. If your shares of IRT common stock are held in “street name” by your broker or other nominee, only your broker or other nominee can vote your shares of IRT common stock and the vote cannot be cast unless you provide instructions to your broker or other nominee on how to vote or obtain a legal proxy from your broker or other nominee. You should follow the directions provided by your broker or other nominee regarding how to instruct your broker or other nominee to vote your shares of IRT common stock. You may revoke your proxy at any time before it is voted. Please review the joint proxy statement/prospectus accompanying this notice for more complete information regarding the Merger and the special meeting of the stockholders of IRT.

By Order of the Board of Directors of Independence Realty Trust, Inc.

Anders F. Laren

Secretary

Philadelphia, Pennsylvania

July 31, 2015

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Trade Street Residential, Inc.

19950 West Country Club Drive

Suite 800

Aventura, Florida 33180

(786) 248-5200

NOTICE OF SPECIAL MEETING OF STOCKHOLDERS

TO BE HELD ON SEPTEMBER 15, 2015

To the Stockholders of Trade Street Residential, Inc.:

A special meeting of the stockholders of Trade Street Residential, Inc., a Maryland corporation (“TSRE”), will be held at the 8th Floor Conference Room at 19950 West Country Club Drive, Aventura, Florida 33180 on September 15, 2015, commencing at 10:00 a.m., local time, for the following purposes:

 

(i)

to consider and vote on a proposal to approve the merger of TSRE into IRT Limited Partner, LLC (“IRT LP LLC”), a direct wholly-owned subsidiary of Independence Realty Trust, Inc., a Maryland corporation, with IRT LP LLC continuing as the surviving entity and a wholly-owned subsidiary of IRT (the “Company Merger”), and other transactions contemplated by an Agreement and Plan of Merger, dated as of May 11, 2015, as it may be amended from time to time (the “Merger Agreement”), by and among IRT, Independence Realty Operating Partnership, LP, IRT’s operating partnership (“IROP”), Adventure Merger Sub LLC, a direct wholly-owned subsidiary of IROP (“OP Merger Sub”), IRT LP LLC, TSRE, and Trade Street Operating Partnership, LP, TSRE’s operating partnership (“TSR OP”). The Merger Agreement provides for: (i) the Company Merger and (ii) OP Merger Sub to merge into TSR OP, with TSR OP continuing as the surviving entity (the “Partnership Merger” and, together with the Company Merger, the “Merger”); and

 

(ii)

to consider and vote on a proposal to approve one or more adjournments of the special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement.

TSRE does not expect to transact any other business at the special meeting. TSRE’s board of directors has fixed the close of business on July 8, 2015 as the record date (the “TSRE Record Date”) for determination of TSRE stockholders entitled to receive notice of, and to vote at, the special meeting and any adjournments or postponements of the special meeting. Only holders of record of TSRE common stock at the close of business on the TSRE Record Date are entitled to receive notice of, and to vote at, the special meeting. As of the TSRE Record Date, there were 36,799,520 shares of TSRE common stock outstanding and entitled to vote at the special meeting, held by approximately 42 stockholders of record.

Approval of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement requires the affirmative vote of the holders of at least a majority of the outstanding shares of TSRE common stock entitled to vote on such proposal. Approval of the proposal to approve one or more adjournments of the special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement requires the affirmative vote of at least a majority of all votes cast on such proposal.

TSRE’s board of directors has (i) determined that the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement are advisable and in the best interests of TSRE and its stockholders and (ii) approved the Merger Agreement and authorized the performance by TSRE thereunder. TSRE’s board of directors recommends that TSRE stockholders vote FOR the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement and FOR the proposal to approve one or more adjournments of the special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement.

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YOUR VOTE IS IMPORTANT

Whether or not you plan to attend the special meeting, please submit a proxy to vote your shares as promptly as possible. To submit a proxy, complete, sign, date and mail your proxy card in the preaddressed postage-paid envelope provided or, if the option is available to you, call the toll-free telephone number listed on your proxy card or use the internet as described in the instructions on the enclosed proxy card to submit your proxy. Submitting a proxy will assure that your vote is counted at the special meeting if you do not attend in person. If your shares of TSRE common stock are held in “street name” by your broker or other nominee, only your broker or other nominee can vote your shares of TSRE common stock and the vote cannot be cast unless you provide instructions to your broker or other nominee on how to vote or obtain a legal proxy from your broker or other nominee. You should follow the directions provided by your broker or other nominee regarding how to instruct your broker or other nominee to vote your shares of TSRE common stock. You may revoke your proxy at any time before it is voted. Please review the joint proxy statement/prospectus accompanying this notice for more complete information regarding the Merger and the special meeting of the stockholders of TSRE.

By Order of the Board of Directors of Trade Street Residential, Inc.

Caren A. Cohen

Secretary

Aventura, Florida

July 31, 2015

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ABOUT THIS DOCUMENT

This joint proxy statement/prospectus, which forms part of a registration statement on Form S-4 filed by IRT (File No. 333-204578) with the Securities and Exchange Commission (the “SEC”), constitutes a prospectus of IRT for purposes of the Securities Act of 1933, as amended (the “Securities Act”), with respect to the shares of IRT common stock to be issued to TSRE stockholders in exchange for shares of TSRE common stock pursuant to the Merger Agreement and shares that may be issuable upon redemption of IROP Units issued in the Partnership Merger. This joint proxy statement/prospectus also constitutes a proxy statement for each of IRT and TSRE for purposes of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). In addition, this joint proxy statement/prospectus constitutes a notice of meeting with respect to the IRT special meeting and a notice of meeting with respect to the TSRE special meeting.

This joint proxy statement/prospectus does not constitute an offer to sell, or a solicitation of an offer to buy, any securities, or the solicitation of a proxy, in any jurisdiction in which or from any person to whom it is unlawful to make any such offer or solicitation in such jurisdiction. Information contained in this joint proxy statement/prospectus regarding IRT has been provided by IRT and information contained in this joint proxy statement/prospectus regarding TSRE has been provided by TSRE.

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TABLE OF CONTENTS

 

		Page
QUESTIONS AND ANSWERS			1
SUMMARY			13
The Companies			13
The Merger			14
Voting Agreements			16
Financing Related to the Merger			17
Recommendation of the IRT Board			18
Recommendation of the TSRE Board			18
Summary of Risk Factors Related to the Merger			18
The IRT Special Meeting			19
The TSRE Special Meeting			19
Treatment of the TSRE Amended and Restated 2013 Equity Incentive Plan			20
Directors and Management of the Combined Company After the Merger			20
Interests of IRT’s Directors, Executive Officers and Affiliates in the Merger			21
Interests of TSRE’s Directors and Executive Officers in the Company Merger			21
Listing of Shares of the IRT Common Stock; Delisting and Deregistration of TSRE Common Stock			22
Stockholder Appraisal Rights in the Merger			22
Conditions to Completion of the Merger			22
Regulatory Approvals Required for the Merger			23
No Solicitation and Change in Recommendation			23
Termination of the Merger Agreement			24
Termination Fees			25
Estimated Transaction Expenses			26
Litigation Relating to the Merger			26
Material U.S. Federal Income Tax Consequences of the Merger			27
Accounting Treatment of the Merger			27
Comparison of Rights of Stockholders of IRT and Stockholders of TSRE			28
Selected Unaudited Pro Forma Consolidated Financial Information			28
Unaudited Comparative Per Share Information			29
Comparative IRT and TSRE Market Price and Dividend Information			30
RISK FACTORS			32
Risk Factors Relating to the Merger			32
Risk Factors Relating to the Combined Company Following the Merger			36
Risks Related to the Combined Company’s Operations			36
Risks Related to an Investment in the Combined Company’s Common Stock			38
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS			42
THE COMPANIES			44
Independence Realty Trust, Inc.			44
Trade Street Residential, Inc.			44
The Combined Company			45
DESCRIPTION OF IRT CAPITAL STOCK			46
General			46
Common Stock			46
Stockholder Voting			46
Restrictions on Ownership and Transfer			47
Transfer Agent			49

 

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		Page
No Stockholder Rights Plan			49
Listing			49
THE IRT SPECIAL MEETING			50
Date, Time, Place and Purpose of IRT’s Special Meeting			50
Recommendation of the IRT Board			50
IRT Record Date; Who Can Vote at the IRT Special Meeting			50
Vote Required for Approval; Quorum			50
Abstentions and Broker Non-Votes			51
Manner of Submitting Proxy			51
Shares Held in “Street Name”			52
Revocation of Proxies or Voting Instructions			52
Attending the IRT Special Meeting Without Voting Will Not Revoke Your Proxy			52
Tabulation of Votes			52
Solicitation of Proxies			52
PROPOSALS SUBMITTED TO IRT STOCKHOLDERS			53
Stock Issuance Proposal			53
Recommendation of the IRT Board			53
IRT Adjournment Proposal			53
Recommendation of the IRT Board			53
Other Business			54
THE TSRE SPECIAL MEETING			55
Date, Time, Place and Purpose of the TSRE Special Meeting			55
Recommendation of the TSRE Board			55
TSRE Record Date; Who Can Vote at the TSRE Special Meeting			55
Vote Required for Approval; Quorum			55
Abstentions and Broker Non-Votes			56
Manner of Submitting Proxy			56
Shares Held in “Street Name”			57
Revocation of Proxies or Voting Instructions			57
Attending the TSRE Special Meeting Without Voting Will Not Revoke Your Proxy			57
Tabulation of Votes			57
Solicitation of Proxies			57
PROPOSALS SUBMITTED TO TSRE STOCKHOLDERS			58
Company Merger Proposal			58
Recommendation of the TSRE Board			58
TSRE Adjournment Proposal			58
Recommendation of the TSRE Board			58
Other Business			59
THE MERGER			60
General			60
Background of the Merger			60
Recommendation of the IRT Board and Its Reasons for the Merger			73
Recommendation of the TSRE Board and Its Reasons for the Merger			76
Interests of IRT’s Directors, Executive Officers and Affiliates in the Merger			79
Interests of TSRE’s Directors and Executive Officers in the Company Merger			81
Security Ownership of TSRE’s Directors and Executive Officers and Current Beneficial Owners			82
Regulatory Approvals Required for the Merger			83
Litigation Relating to the Merger			83

 

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		Page
Accounting Treatment			83
Exchange of Shares in the Merger			83
Dividends			84
Listing of IRT Common Stock			84
Delisting and Deregistration of TSRE Common Stock			84
THE MERGER AGREEMENT			85
Form, Effective Time and Closing of the Merger			85
Board of Directors of the Combined Company			85
Merger Consideration; Effects of the Merger			86
Representations and Warranties			88
Definition of “Material Adverse Effect”			90
Covenants and Agreements			91
Conditions to Completion of the Merger			100
Termination of the Merger Agreement			102
Financing Related to the Merger			105
Miscellaneous Provisions			107
MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES			109
Material U.S. Federal Income Tax Consequences of the Merger			109
Material U.S. Federal Income Tax Considerations Applicable to Holders of the Combined Company Common Stock			113
VOTING AGREEMENTS			129
Voting Provisions			129
Restrictions on Transfer			130
Termination of Voting Agreements			131
Lock-Up Agreements			131
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS			132
COMPARISON OF RIGHTS OF STOCKHOLDERS OF IRT AND STOCKHOLDERS OF TSRE			143
STOCKHOLDER PROPOSALS			146
TSRE 2015 Annual Stockholder Meeting and Stockholder Proposals			146
The Combined Company Annual Stockholder Meeting and Stockholder Proposals			146

 

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QUESTIONS AND ANSWERS

The following are answers to some questions that IRT stockholders and TSRE stockholders may have regarding the proposed transaction between IRT and TSRE and the other proposals being considered at the IRT special meeting and the TSRE special meeting. IRT and TSRE urge you to read carefully this entire joint proxy statement/prospectus, because the information in this section does not provide all the information that might be important to you.

Unless stated otherwise, all references in this joint proxy statement/prospectus to:

 

•

“IRT” are to Independence Realty Trust, Inc., a Maryland corporation;

 

•

“IRT Record Date” are to July 8, 2015, which is the record date for determination of IRT stockholders entitled to receive notice of, and to vote at, the IRT special meeting and any adjournments or postponements of the IRT special meeting.

 

•

“IROP” are to Independence Realty Operating Partnership, LP, a Delaware limited partnership and IRT’s operating partnership;

 

•

“OP Merger Sub” are to Adventure Merger Sub LLC, a Delaware limited liability company and direct wholly-owned subsidiary of IROP;

 

•

“IRT LP LLC” are to IRT Limited Partner, LLC, a Delaware limited liability company and direct wholly-owned subsidiary of IRT;

 

•

“TSRE” are to Trade Street Residential, Inc., a Maryland corporation;

 

•

“TSRE Record Date” are to July 8, 2015, which is the record date for determination of TSRE stockholders entitled to receive notice of, and to vote at, the TSRE special meeting and any adjournments or postponements of the TSRE special meeting.

 

•

“TSR OP” are to Trade Street Operating Partnership, LP, a Delaware limited partnership and TSRE’s operating partnership;

 

•

the “IRT Board” are to the board of directors of IRT;

 

•

the “TSRE Board” are to the board of directors of TSRE;

 

•

the “Merger Agreement” are to the Agreement and Plan of Merger, dated as of May 11, 2015, by and among IRT, IROP, OP Merger Sub, IRT LP LLC, TSRE and TSR OP, as it may be amended from time to time;

 

•

the “Partnership Merger” are to the merger of OP Merger Sub into TSR OP, with TSR OP continuing as the surviving entity;

 

•

the “Company Merger” are to the merger of TSRE into IRT LP LLC, with IRT LP LLC continuing as the surviving entity and a wholly-owned subsidiary of IRT;

 

•

the “Merger” are to, collectively, the Partnership Merger and the Company Merger;

 

•

the “Combined Company” are to IRT after the effective time of the Company Merger; and

 

•

the “NYSE MKT” are to the NYSE MKT LLC.

 

Q:	What is the proposed transaction?

 

A:	IRT and TSRE have entered into the Merger Agreement, which provides for: (i) OP Merger Sub to merge into TSR OP, with TSR OP continuing as the surviving entity, and (ii) TSRE to merge into IRT LP LLC, with IRT LP LLC continuing as the surviving entity and a wholly-owned subsidiary of IRT.

 

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Q:	What will happen in the proposed transaction?

 

A:

At the effective time of the Company Merger, each issued and outstanding share of TSRE common stock will convert into the right to receive (i) $3.80 in cash, without interest, subject to increase, at the election of IRT, to up to $4.56 (such cash amount, the “Per Share Cash Amount”), and (ii) a number of shares of IRT common stock equal to the quotient, or “Exchange Ratio,” determined by dividing (a) $7.60 less the Per Share Cash Amount, by (b) $9.25, and rounding the result to the nearest 1/10,000 (the cash and shares of IRT common stock received in exchange for the TSRE common stock, the “Company Merger Consideration”). At the effective time of the Partnership Merger, each issued and outstanding unit of limited partnership interest of TSR OP (each, a “TSR OP Unit”), other than TSR OP Units owned by TSRE or one of its subsidiaries, will convert into the right to receive (i) the Per Share Cash Amount and (ii) a number of common units of limited partnership interest in IROP (“IROP Units”) equal to the Exchange Ratio (the cash and IROP Units received in exchange for the TSR OP Units, the “Partnership Merger Consideration” and, together with the Company Merger Consideration, the “Merger Consideration”). Holders of TSRE common stock and TSR OP Units will not receive any fractional shares of IRT common stock or fractional IROP Units in the Merger and instead will be paid cash (without interest) in lieu of any fractional share or unit interest to which they would otherwise be entitled.

 

Q:	How does IRT’s right to elect to increase the Per Share Cash Amount work?

 

A:

Pursuant to the Merger Agreement, and absent any further action by IRT, the Per Share Cash Amount will be $3.80. However, upon IRT’s written notice to TSRE at least two business days prior to the TSRE special meeting, IRT may elect to increase the Per Share Cash Amount from $3.80 to an amount that, at the time of such election, would not cause the stock portion of the Merger Consideration to be less than 40% of the total Merger Consideration (calculated based on the closing price of IRT common stock on the trading day prior to the date of the election notice). However, if (i) IRT makes such an election, (ii) the stock portion of the Merger Consideration on the closing date of the Merger (calculated based on the closing price of IRT common stock on the trading day prior closing date of the Merger) would be less than 40% of the total Merger Consideration, and (iii) TSRE does not terminate the Merger Agreement, then the Per Share Cash Amount will be reduced so that the cash portion of the Merger Consideration will equal 60% of the total Merger Consideration on the closing date of the Merger (calculated based on the closing price of IRT common stock on the trading day prior closing date of the Merger).

 

Q:	How will IRT fund the cash portion of the Merger Consideration?

 

A:

IRT intends to finance the cash portion of the Merger Consideration and the fees, expenses and costs incurred in connection with the Merger and other transactions related to the Merger, and to repay or refinance certain of TSRE’s borrowings, using a combination of some or all of the following resources:

 

•

IRT’s available cash on hand;

 

•

the assumption and/or refinancing of certain of TSRE’s existing mortgage debt;

 

•

borrowings under a new senior secured credit facility (the “KeyBank Senior Facility”) for up to $325.0 million with KeyBank National Association (“KeyBank NA”);

 

•

borrowings under a new senior interim term loan facility (the “KeyBank Interim Facility” and, together with the KeyBank Senior Facility, the “KeyBank Facilities”) for up to $120.0 million with KeyBank NA; and

 

•

if market conditions allow, proceeds from the sale of IRT stock.

The closing of the KeyBank Facilities remains subject to the negotiation and entry into definitive documentation and the satisfaction or waiver of customary conditions contained therein.

To the extent IRT does not utilize the KeyBank Facilities, IRT intends to finance the cash portion of the Merger Consideration and the fees, expenses and costs incurred in connection with the Merger and other transactions related to the Merger, and repay or refinance certain of TSRE’s borrowings, using borrowings under a new senior secured term loan facility (the “DB Term Loan Facility”) for up to $500.0 million, for which IRT has received a commitment from Deutsche Bank AG New York Branch (“DBNY”).

 

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IRT has entered into a binding commitment letter (the “DB Commitment Letter”) with DBNY and Deutsche Bank Securities Inc. (“Deutsche Bank”) pursuant to which, on and subject to the terms and conditions therein, DBNY has committed to provide the DB Term Loan Facility in an aggregate principal amount of up to $500.0 million, subject to customary conditions as set forth in the DB Commitment Letter. The DB Commitment Letter permits IRT to use alternative financing, including the KeyBank Facilities, in connection with the consummation of the Merger, and IRT is under no obligation to enter into definitive documentation for the DB Term Loan Facility or to draw upon the financing commitment from DBNY.

IRT’s ability to finance the Merger is not a condition to its obligation to complete the Merger. For more information regarding the financing related to the Merger, see “The Merger Agreement—Financing Related to the Merger” beginning on page 105.

 

Q:	How will IRT stockholders be affected by the Merger and the issuance of shares of IRT common stock in the Merger?

 

A:

After the Merger, each IRT stockholder will continue to own the shares of IRT common stock that the stockholder held immediately prior to the effective time of the Company Merger. As a result, each IRT stockholder will own shares of common stock in a larger company with more assets. However, because IRT will be issuing new shares of IRT common stock in the Merger, each outstanding share of IRT common stock immediately prior to the effective time of the Merger will represent a smaller percentage of the aggregate number of shares of the Combined Company’s common stock outstanding after the Merger. Upon completion of the Merger, we estimate that continuing IRT stockholders will own approximately 66.5% of the issued and outstanding Combined Company’s common stock and former TSRE stockholders will own 33.5% of the issued and outstanding Combined Company’s common stock.

 

Q:	What happens if the market price of shares of IRT common stock or TSRE common stock changes before the closing of the Merger?

 

A:

Neither the Per Share Cash Amount nor the Exchange Ratio will change as a result of a change in the market price of IRT common stock, although the aggregate value of the Merger Consideration will fluctuate with changes in the market price of IRT common stock and the Per Share Cash Amount that IRT elects. As a result, the value of the consideration to be received by TSRE stockholders in the Merger will increase or decrease depending on the market price of shares of IRT common stock at the effective time of the Merger. See “The Merger Agreement—Merger Consideration; Effects of the Merger—Merger Consideration” beginning on page 86.

 

Q:	Why am I receiving this joint proxy statement/prospectus?

 

A:

The IRT Board and the TSRE Board are using this joint proxy statement/prospectus to solicit proxies of IRT stockholders and TSRE stockholders in connection with the Merger Agreement and the Merger. In addition, IRT is using this joint proxy statement/prospectus as a prospectus for TSRE stockholders because IRT is offering shares of its common stock to be issued in exchange for TSRE common stock in the Merger. The Merger cannot be completed unless:

 

•

the holders of IRT common stock vote to approve the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger); and

 

•

the holders of TSRE common stock vote to approve the Company Merger and the other transactions contemplated by the Merger Agreement.

Each of IRT and TSRE will hold separate special meetings of their respective stockholders to obtain these approvals and to consider other proposals as described elsewhere in this joint proxy statement/prospectus.

 

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This joint proxy statement/prospectus contains important information about IRT, TSRE, the Merger and the Merger Agreement, and the other proposals being voted on at the special meetings of stockholders and you should read it carefully. The enclosed voting materials allow you to vote your shares of IRT common stock and/or TSRE common stock, as applicable, without attending the applicable special meeting.

Your vote is important. You are encouraged to submit your proxy as promptly as possible.

 

Q:	Am I being asked to vote on any other proposals at the special meetings in addition to the Merger proposal?

 

A:	IRT. At the IRT special meeting, IRT stockholders will be asked to consider and vote upon the following additional proposal:

 

•

To approve one or more adjournments of the IRT special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger).

TSRE. At the TSRE special meeting, TSRE stockholders will be asked to consider and vote upon the following additional proposal:

 

•

To approve one or more adjournments of the TSRE special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement.

 

Q:	Why is IRT proposing the Merger?

 

A:

The IRT Board believes that the Merger will result in a number of important strategic benefits for the Combined Company, including an increased scale that will provide an enhanced platform to pursue strategic acquisitions and transformational opportunities, improved operating statistics and portfolio quality, enhanced liquidity due to increased market capitalization and meaningful revenue and cost synergy potential. The IRT Board believes that the Merger will be an accretive transaction to IRT’s asset base. To review the reasons of the IRT Board for the Merger in greater detail, see “The Merger—Recommendation of the IRT Board and Its Reasons for the Merger” beginning on page 73.

 

Q:	Why is TSRE proposing the Merger?

 

A:

After careful consideration and consultation, the TSRE Board has recommended that the TSRE stockholders approve the Company Merger and the other transactions contemplated by the Merger Agreement based upon numerous factors, including an attractive valuation with an effective Company Merger Consideration of $7.60 per share of TSRE common stock as of the date of the Merger Agreement (with mechanisms in the Merger Agreement that provide both significant downside protection in the event of a decline and the ability to benefit from any increase in the trading price of IRT common stock before the closing of the Merger), and a mix of consideration, with the TSRE stockholders receiving both liquidity as a result of the receipt of the cash portion of the Company Merger Consideration and an opportunity to continue to participate in the Combined Company as stockholders, as well as, assuming that the Company Merger qualifies as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”), the expectation that the receipt of the IRT common stock portion of the Company Merger Consideration generally will not be taxable to TSRE stockholders. To review the reasons of the TSRE Board for the Merger in greater detail, see “The Merger—Recommendation of the TSRE Board and Its Reasons for the Merger” beginning on page 76.

 

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Q:	Who will be the board of directors and management of the Combined Company?

 

A:

As of the effective time of the Company Merger, the board of directors of the Combined Company will be increased to seven members, with the five current IRT directors, Scott F. Schaeffer, William C. Dunkelberg, Robert F. McCadden, DeForest B. Soaries, Jr., and Sharon M. Tsao, continuing as directors of the Combined Company. In addition, Richard H. Ross, the Chief Executive Officer of TSRE, and Mack D. Pridgen III, the Chairman of the TSRE Board, will join the board of directors of the Combined Company as of the effective time of the Company Merger.

The executive officers of IRT immediately prior to the effective time of the Company Merger will continue to serve as the executive officers of the Combined Company, with Scott F. Schaeffer continuing to serve as the Chief Executive Officer of the Combined Company.

 

Q:	Will IRT and TSRE continue to pay distributions prior to the closing of the Merger?

 

A:

Yes. The Merger Agreement permits IRT and IROP to pay (i) monthly distributions of up to $0.06 per share of IRT common stock, including for any partial month ending on the effective time of the Company Merger, (ii) monthly distributions of up to $0.06 per IROP Unit, and (iii) any distribution that is required for IRT to maintain its REIT qualification. The Merger Agreement permits TSRE and TSR OP to pay (i) quarterly distributions of up to $0.095 per share of TSRE common stock for the quarter ending June 30, 2015 and for each quarter (or partial quarter) thereafter ending on or prior to the effective time of the Company Merger, (ii) a distribution per TSR OP Unit in the same amount as any distribution per share made with respect to TSRE common stock, and (iii) any distribution that is required for TSRE to maintain its REIT qualification.

 

Q:	When and where are the special meetings of the IRT and TSRE stockholders?

 

A:	The IRT special meeting will be held at IRT’s offices at the Cira Centre, 2929 Arch Street, 17th Floor, Philadelphia, Pennsylvania 19104 on September 15, 2015 commencing at 9:00 a.m., local time.

The TSRE special meeting will be held at the 8th Floor Conference Room at 19950 West Country Club Drive, Aventura, Florida 33180 on September 15, 2015 commencing at 10:00 a.m., local time.

 

Q:	Who can vote at the special meetings?

 

A:

IRT. All holders of IRT common stock of record as of the close of business on the IRT Record Date are entitled to notice of, and to vote at, the IRT special meeting. As of the IRT Record Date, there were 31,933,217 shares of IRT common stock outstanding and entitled to vote at the IRT special meeting, held by approximately 35 holders of record. Each share of IRT common stock is entitled to one vote on each proposal presented at the IRT special meeting.

TSRE. All holders of TSRE common stock of record as of the close of business on the TSRE Record Date are entitled to receive notice of, and to vote at, the TSRE special meeting. As of the TSRE Record Date, there were 36,799,570 shares of TSRE common stock outstanding and entitled to vote at the TSRE special meeting, held by approximately 42 holders of record. Each share of TSRE common stock is entitled to one vote on each proposal presented at the TSRE special meeting.

 

Q:	What constitutes a quorum?

 

A:	IRT. IRT’s bylaws provide that the presence in person or by proxy of stockholders entitled to cast a majority of all the votes entitled to be cast at such meeting on any matter will constitute a quorum.

TSRE. TSRE’s bylaws provide that the presence in person or by proxy of stockholders entitled to cast a majority of all the votes entitled to be cast at such meeting on any matter will constitute a quorum.

Shares that are voted, in person or by proxy, shares abstaining from voting, and broker non-votes, if any, are treated as present at each of the IRT special meeting and the TSRE special meeting, respectively, for purposes of determining whether a quorum is present.

 

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Q:	What vote is required to approve the proposals?

 

A:

IRT.

 

•

Approval of the proposal to approve the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) requires the affirmative vote of the holders of at least a majority of all votes cast on such proposal.

 

•

Approval of the proposal to approve one or more adjournments of the IRT special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) requires the affirmative vote of at least a majority of all votes cast on such proposal.

TSRE.

 

•

Approval of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement requires the affirmative vote of the holders of at least a majority of the outstanding shares of TSRE common stock entitled to vote on such proposal.

 

•

Approval of the proposal to approve one or more adjournments of the TSRE special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement requires the affirmative vote of a majority of all votes cast on such proposal.

 

Q:	How does the IRT Board recommend that IRT stockholders vote on the proposals?

 

A:

After consideration, the IRT Board has unanimously (i) determined that the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement are advisable, fair to, and in the best interests of IRT and its stockholders, (ii) approved and adopted the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement, and (iii) authorized and approved the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger). The IRT Board unanimously recommends that IRT stockholders vote FOR the proposal to approve the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) and FOR the proposal to approve one or more adjournments of the IRT special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger).

For a more complete description of the recommendation of the IRT Board, see “The Merger—Recommendation of the IRT Board and Its Reasons for the Merger” beginning on page 73.

 

Q:	How does the TSRE Board recommend that TSRE stockholders vote on the proposals?

After consideration, the TSRE Board has (i) determined that the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement are advisable and in the best interests of TSRE and its stockholders and (ii) approved the Merger Agreement. The TSRE Board recommends that TSRE stockholders vote FOR the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement and FOR the proposal to approve one or more adjournments of the TSRE special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement.

For a more complete description of the recommendation of the TSRE Board, see “The Merger—Recommendation of the TSRE Board and Its Reasons for the Merger” beginning on page 76.

 

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Q:	What if I sell my shares of IRT common stock before the IRT special meeting or my shares of TSRE common stock before the TSRE special meeting?

 

A:	IRT. If you transfer your shares of IRT common stock after the close of business on the IRT Record Date but before the IRT special meeting, you will, unless you provide the transferee of your shares with a proxy, retain your right to vote at the IRT special meeting.

TSRE. If you transfer your shares of TSRE common stock after the close of business on the TSRE Record Date but before the TSRE special meeting, you will, unless you provide the transferee of your shares with a proxy, retain your right to vote at the TSRE special meeting, but will have transferred the right to receive the Company Merger Consideration to be paid by IRT in the Merger. In order to receive the Company Merger Consideration to be paid by IRT in the Merger, you must hold your shares of TSRE common stock through the effective time of the Company Merger.

 

Q:	Do any of TSRE’s executive officers or directors have interests in the Company Merger that may differ from those of TSRE stockholders?

 

A:

TSRE’s executive officers and directors have interests in the Company Merger that are different from, or in addition to, their interests as TSRE stockholders. The members of the TSRE Board were aware of and considered these interests, among other matters, in evaluating the Merger Agreement and the Company Merger, and in recommending that TSRE stockholders vote FOR the proposal to approve the Merger and the other transactions contemplated by the Merger Agreement. For a description of these interests, see “The Merger—Interests of TSRE’s Directors and Executive Officers in the Merger” beginning on page 82.

 

Q:	Have any stockholders of IRT and TSRE already agreed to approve the Merger?

 

A:

Yes. Pursuant to a voting agreement, RAIT Financial Trust (“RAIT”), which owned approximately 22.8% of the outstanding shares of IRT common stock as of the IRT Record Date, has agreed to vote in favor of the issuance of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger), subject to the terms and conditions of contained in the voting agreement, as described under “Voting Agreements” beginning on page 129.

Pursuant to separate voting agreements, funds managed or advised by Senator Investment Group LP (collectively, “Senator”) and Monarch Alternative Capital LP (collectively, “Monarch”), which collectively owned approximately 48.3% of the outstanding shares of TSRE common stock as of the TSRE Record Date, have agreed to vote in favor of the Company Merger and the other transactions contemplated by the Merger Agreement, subject to the terms and conditions of the applicable voting agreements, as described under “Voting Agreements” beginning on page 129.

 

Q:	Are there any conditions that must be satisfied for the Merger to be completed?

 

A:

Yes. In addition to the approval of the stockholders of IRT of the issuance of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) and the approval of the stockholders of TSRE of the Company Merger and the other transactions contemplated by the Merger Agreement, there are a number of customary conditions that must be satisfied or waived for the Merger to be consummated. For a description of all of the conditions to the Merger, see “The Merger Agreement—Conditions to Completion of the Merger” beginning on page 100.

 

Q:	Are there risks associated with the Merger that I should consider in deciding how to vote?

 

A:	Yes. There are a number of risks related to the Merger that are discussed in this joint proxy statement/ prospectus described in the section entitled “Risk Factors” beginning on page 32.

 

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Q:	If my shares of IRT common stock or my shares of TSRE common stock are held in “street name” by my broker, bank or other nominee, will my broker, bank or other nominee vote my shares of IRT common stock or my shares of TSRE common stock for me?

 

A:

Unless you instruct your broker, bank or other nominee how to vote your shares of IRT common stock and/or your shares of TSRE common stock, as applicable, held in street name, your shares will NOT be voted. If you hold your shares of IRT common stock and/or your shares of TSRE common stock in a stock brokerage account or if your shares are held by a bank or other nominee (that is, in street name), in order for your shares to be present and voted at the applicable special meeting, you must provide your broker, bank or other nominee with instructions on how to vote your shares.

 

Q:	What happens if I do not vote for a proposal?

 

A:

IRT. If you are an IRT stockholder, abstentions and broker non-votes, if any, will be counted in determining the presence of a quorum. Abstentions will have no effect on either (i) the proposal to approve the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) or (ii) the proposal to approve one or more adjournments of the IRT special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger). Broker non-votes, if any, will have no effect on either proposal. A broker non-vote is a vote that is not cast on a non-routine matter because the shares entitled to cast the vote are held in street name, the broker lacks discretionary authority to vote the shares and the broker has not received voting instructions from the beneficial owner. Because there are no discretionary (or routine) matters to be voted on at the IRT special meeting, IRT does not expect to receive any broker non-votes.

TSRE. If you are a TSRE stockholder, abstentions and broker non-votes, if any, will be counted in determining the presence of a quorum. Abstentions and broker non-votes, if any, will have the same effect as a vote cast AGAINST the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement. Abstentions and broker non-votes, if any, will have no effect on the proposal to approve one or more adjournments of the TSRE special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement. A broker non-vote is a vote that is not cast on a non-routine matter because the shares entitled to cast the vote are held in street name, the broker lacks discretionary authority to vote the shares and the broker has not received voting instructions from the beneficial owner. Because there are no discretionary (or routine) matters to be voted on at the TSRE special meeting, TSRE does not expect to receive any broker non-votes.

 

Q:	Will my rights as a stockholder of IRT or TSRE change as a result of the Merger?

 

A:

The rights of IRT stockholders will be unchanged as a result of the Merger. TSRE stockholders will have different rights following the effective time of the Company Merger due to the differences between the governing documents of IRT and TSRE. At the effective time of the Company Merger, the existing charter and bylaws of IRT will thereafter be the charter and bylaws of the Combined Company. For more information regarding the differences in stockholder rights, see “Comparison of Rights of Stockholders of IRT and Stockholders of TSRE” beginning on page 143.

 

Q:	When is the Merger expected to be completed?

 

A:

IRT and TSRE expect to complete the Merger as soon as reasonably practicable following satisfaction of all of the required conditions, but in no event after October 15, 2015, provided that IRT has the right to extend the closing date of the Merger if consents from certain of TSRE’s lenders are not obtained and IRT has received an extension of the DB Commitment Letter until December 31, 2015 or has received a financing

 

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commitment from an alternate source that does not expire prior to December 31, 2015. If approval is obtained from the stockholders of both IRT and TSRE, and if the other conditions to closing the Merger are satisfied or waived, it is currently expected that the Merger will be completed in the third quarter of 2015. However, there is no guaranty that the conditions to the Merger will be satisfied or that the Merger will close on the anticipated timeline or at all.

 

Q:	If I am a TSRE stockholder do I need to do anything with my stock certificates now?

 

A:

No. You should not submit your stock certificates at this time. After the Company Merger is completed, if you held shares of TSRE common stock, the exchange agent for the Combined Company will send you a letter of transmittal and instructions for exchanging your shares of TSRE common stock for shares of the Combined Company common stock pursuant to the terms of the Merger Agreement. Upon surrender of a certificate or book-entry share for cancellation along with the executed letter of transmittal and other required documents described in the instructions, a TSRE stockholder will receive shares of common stock of the Combined Company and the cash consideration pursuant to the terms of the Merger Agreement.

 

Q:	What are the anticipated U.S. federal income tax consequences to me of the proposed Merger?

 

A:

It is intended that the Company Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code. The closing of the Company Merger is conditioned on the receipt by each of IRT and TSRE of an opinion from its respective counsel, dated as of the closing date of the Company Merger, to the effect that, on the basis of fact, representations and assumptions set forth or referred to in such opinion, the Company Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code. Assuming that the Company Merger qualifies as a reorganization, U.S. holders of shares of TSRE common stock generally will not recognize gain or loss for U.S. federal income tax purposes upon the receipt of Combined Company common stock in exchange for TSRE common stock in connection with the Company Merger, except with respect to the cash consideration and cash received in lieu of fractional shares of Combined Company common stock. Assuming that the Company Merger qualifies as a reorganization within the meaning of Section 368(a) of the Code, U.S. holders of shares of TSRE common stock generally will recognize gain for U.S. federal income tax purposes to the extent of the cash compensation received in the Company Merger and the cash received in lieu of fractional shares of Combined Company common stock. Holders of TSRE common stock should read the discussion under the heading “Material U.S. Federal Income Tax Consequences—Material U.S. Federal Income Tax Consequences of the Merger” beginning on page 109 and consult their tax advisors to determine the tax consequences to them (including the application and effect of any state, local or non-U.S. income and other tax laws) of the Company Merger.

 

Q:	Are IRT or TSRE stockholders entitled to appraisal rights?

 

A:

No. Neither IRT nor TSRE stockholders are entitled to exercise appraisal or dissenter’s rights in connection with the Company Merger or the other transactions contemplated by the Merger Agreement. See “The Merger Agreement—Merger Consideration; Effects of the Merger—Appraisal Rights” beginning on page 88.

 

Q:	What do I need to do now?

 

A:

After you have carefully read this joint proxy statement/prospectus, please respond by completing, signing and dating your proxy card or voting instruction card and returning it in the enclosed pre-addressed postage-paid envelope or, if available, by submitting your proxy by one of the other methods specified in your proxy card or voting instruction card as promptly as possible so that your shares of IRT common stock and/or your shares of TSRE common stock, as applicable, will be represented and voted at the IRT special meeting or the TSRE special meeting, as applicable.

Please refer to your proxy card or voting instruction card forwarded by your broker, bank or other nominee to see which voting options are available to you.

 

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The method by which you submit a proxy will in no way limit your right to vote at the IRT special meeting or the TSRE special meeting, as applicable, if you later decide to attend the special meeting in person.

However, if your shares of IRT common stock or your shares of TSRE common stock are held in the name of a broker, bank or other nominee, you must obtain a legal proxy, executed in your favor, from your broker, bank or other nominee, to be able to vote in person at the IRT special meeting or the TSRE special meeting, as applicable.

 

Q:	How will my proxy be voted?

 

A:

IRT. All shares of IRT common stock entitled to vote and represented by properly completed proxies received prior to the IRT special meeting, and not revoked, will be voted at the IRT special meeting as instructed on the proxies. If you properly sign, date and return a proxy card, but do not indicate how your shares of IRT common stock should be voted on a matter, the shares of IRT common stock represented by your proxy will be voted as the IRT Board recommends and, therefore, FOR the proposal to approve the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) and FOR the proposal to approve one or more adjournments of the IRT special meeting to another date, time or place, if necessary or appropriate in the view of the IRT Board, to solicit additional proxies in favor of the proposal to approve the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) if there are not sufficient votes at the time of such adjournment to approve such proposal. If you hold your shares of IRT common stock in “street name” and do not provide voting instructions to your broker, bank or other nominee, your shares of IRT common stock will have no effect on either proposal at the IRT special meeting.

TSRE. All shares of TSRE common stock entitled to vote and represented by properly completed proxies received prior to the TSRE special meeting, and not revoked, will be voted at the TSRE special meeting as instructed on the proxies. If you properly sign, date and return a proxy card, but do not indicate how your shares of TSRE common stock should be voted on a matter, the shares of TSRE common stock represented by your proxy will be voted as the TSRE Board recommends and, therefore, FOR the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement and FOR the proposal to approve one or more adjournments of the TSRE special meeting to another date, time or place, if necessary or appropriate, including adjournments to permit further solicitation of proxies in favor of approval of the Company Merger and the other transactions contemplated by the Merger Agreement. If you hold your shares of TSRE common stock in “street name” and do not provide voting instructions to your broker, bank or other nominee, it will have the same effect as a vote cast AGAINST the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement and will have no effect on the proposal to approve one or more adjournments of the TSRE special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement.

 

Q:	Can I revoke my proxy or change my vote after I have delivered my proxy?

 

A:	Yes. You may revoke your proxy or change your vote at any time before your proxy is voted at the IRT special meeting or the TSRE special meeting, as applicable. If you are a holder of record, you can do this in any of the three following ways:

 

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by sending a written notice to the corporate secretary of IRT or the corporate secretary of TSRE, as applicable, in time to be received before the IRT special meeting or the TSRE special meeting, as applicable, stating that you would like to revoke your proxy;

 

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by completing, signing and dating another proxy card and returning it by mail in time to be received before the IRT special meeting or the TSRE special meeting, as applicable, or by submitting a later dated proxy by the internet or telephone in which case your later-submitted proxy will be recorded and your earlier proxy revoked; or

 

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by attending the IRT special meeting or the TSRE special meeting, as applicable, and voting in person. Simply attending the IRT special meeting or the TSRE special meeting, as applicable, without voting will not revoke your proxy or change your vote.

If your shares of IRT common stock or your shares of TSRE common stock are held in “street name” in an account at a broker, bank or other nominee and you desire to change your vote or vote in person, you should contact your broker, bank or other nominee for instructions on how to do so. If you hold your shares of IRT common stock or TSRE common stock, as applicable, in “street name,” you may not vote your shares in person at the IRT special meeting or at the TSRE special meeting, as applicable, unless you bring a legal proxy from the broker, bank or other nominee that holds your shares.

 

Q:	What does it mean if I receive more than one set of voting materials for the IRT special meeting or the TSRE special meeting?

 

A:

You may receive more than one set of voting materials for the IRT special meeting and/or the TSRE special meeting, as applicable, including multiple copies of this joint proxy statement/prospectus and multiple proxy cards or voting instruction cards. For example, if you hold your shares of IRT common stock or your shares of TSRE common stock in more than one brokerage account, you will receive a separate voting instruction card for each brokerage account in which you hold shares of IRT common stock or shares of TSRE common stock. If you are a holder of record and your shares of IRT common stock or your shares of TSRE common stock are registered in more than one name, you may receive more than one proxy card. Please complete, sign, date and return each proxy card and voting instruction card that you receive or, if available, please submit your proxy by telephone or over the internet.

 

Q:	What happens if I am a stockholder of both IRT and TSRE?

 

A:

You will receive separate proxy cards for each entity and must complete, sign and date each proxy card and return each proxy card in the appropriate pre-addressed postage-paid envelope or, if available, by submitting a proxy by one of the other methods specified in your proxy card or voting instruction card for each entity.

 

Q:	Do I need identification to attend the IRT or TSRE special meeting in person?

 

A:

Yes. Please bring proper identification, together with proof that you are a record owner of shares of IRT common stock or shares of TSRE common stock, as the case may be, reflecting your share ownership as of the close of business on the IRT Record Date or the close of business on the TSRE Record Date, as applicable. If your shares are held in street name, please bring acceptable proof of ownership, such as a letter from your broker or an account statement showing that you beneficially owned shares of IRT common stock or shares of TSRE common stock, as applicable, on the applicable record date, as well as a legal proxy from your broker giving you the right to vote your shares at the applicable special meeting.

 

Q:	Will a proxy solicitor be used?

 

A:

IRT has engaged D.F. King & Co., Inc. (“D.F. King”) to assist in the solicitation of proxies for the IRT special meeting, and IRT estimates it will pay D.F. King a fee of approximately $8,500. IRT has also agreed to reimburse D.F. King for reasonable and documented out-of-pocket expenses incurred in connection with the proxy solicitation and to indemnify D.F. King against certain claims, costs, damages, liabilities, judgments and expenses.

TSRE will not be engaging a proxy solicitor to assist in the solicitation of proxies for the TSRE special meeting.

 

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Q:	Who can answer my questions?

 

A:	If you have any questions about the Merger or the other matters to be voted on at the special meetings or how to submit your proxy, or if you need additional copies of this joint proxy statement/prospectus, the enclosed proxy card or voting instructions, you should contact:

 

If you are an IRT stockholder:   Independence Realty Trust, Inc. Attention: Secretary Cira Centre 2929 Arch Street, 17th Floor Philadelphia, PA 19104 (215) 243-9000   or   D.F. King & Co., Inc. 48 Wall Street New York, NY 10005 Telephone: Banks and brokers: (212) 493-3910 Stockholders: (866) 406-2284		If you are a TSRE stockholder:   Trade Street Residential, Inc. Attention: Secretary 19950 West Country Club Drive Suite 800 Aventura, FL 33180 (786) 248-5200

 

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RISK FACTORS

In addition to the other information included in this joint proxy statement/prospectus, including the matters addressed in the section entitled “Cautionary Statement Concerning Forward-Looking Statements,” whether you are an IRT stockholder or a TSRE stockholder, you should carefully consider the following risks before deciding how to vote your shares of common stock of IRT and/or TSRE.

Risk Factors Relating to the Merger

IRT and TSRE stockholders will be diluted by the Merger.

The Merger will dilute the ownership position of IRT stockholders and result in TSRE stockholders having an ownership stake in the Combined Company that is smaller than their current stake in TSRE. Upon completion of the Merger, we estimate that continuing IRT stockholders will own approximately 66.5% of the issued and outstanding common stock of the Combined Company, and former TSRE stockholders will own approximately 33.5% of the issued and outstanding common stock of the Combined Company. Consequently, IRT stockholders and TSRE stockholders, as a general matter, will have less influence over the management and policies of the Combined Company after the effective time of the Company Merger than each currently exercise over the management and policies of IRT and TSRE, as applicable.

The Merger Agreement contains provisions that could discourage a potential competing acquirer of TSRE or could result in a competing acquisition proposal being at a lower price than a potential acquiror might otherwise propose to pay.

The Merger Agreement contains provisions that restrict the ability of TSRE to solicit, initiate, encourage or knowingly facilitate any third-party proposals to acquire beneficial ownership of at least 20% of the assets of, equity interest in, or businesses of TSRE or any subsidiary of TSRE. Prior to receiving TSRE stockholder approval of the Company Merger, TSRE may negotiate with a third party after receiving an unsolicited written proposal if the TSRE Board determines in good faith that the unsolicited proposal could reasonably be likely to result in a transaction that is more favorable to TSRE stockholders than the Merger, and the TSRE Board determines that failure to negotiate would be inconsistent with its duties under applicable law. Once a third party proposal is received, TSRE must notify IRT within 24 hours following receipt of the proposal and keep IRT informed of the status and terms of the proposal and associated negotiations. In response to such a proposal, the TSRE Board may, under certain circumstances, withdraw or modify its recommendation to TSRE stockholders with respect to the Merger. TSRE may also terminate the Merger Agreement to enter into an agreement to consummate a competing transaction with a third party, if the TSRE Board determines in good faith that the competing proposal is more favorable to TSRE stockholders and pays a $12.0 million termination fee to IRT. See “The Merger Agreement—Covenants and Agreements—No Solicitation of Transactions” beginning on page 94 and “The Merger Agreement—Termination of the Merger Agreement—Termination Fee and Expenses Payable by TSRE to IRT” beginning on page 104.

These provisions could discourage a potential acquirer that may have an interest in acquiring all or a significant part of TSRE from considering or proposing such an acquisition, even if the potential competing acquirer was prepared to pay consideration with a higher per share value than the value proposed to be received or realized in the Merger, or might result in a potential competing acquirer proposing to pay a lower per share value than it might otherwise have proposed to pay because of the added expense that the termination fee would impose on the transaction.

There can be no assurance that IRT will be able to secure the financing necessary to pay the cash portion of the Merger Consideration on acceptable terms, in a timely manner, or at all.

In order to finance the cash portion of the Merger Consideration, IRT expects to use the KeyBank Senior Facility, which will be in the aggregate principal amount of up to $325.0 million, and the KeyBank Interim

 

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Facility, which will be in the aggregate principal amount of up to $120.0 million, each with KeyBank NA. In addition, IRT has obtained a commitment from DBNY for the DB Term Loan Facility in an aggregate principal amount of up to $500.0 million, as set forth in the DB Commitment Letter. However, IRT has not entered into a definitive agreement for the debt financing, nor any alternative form of financing. There can be no assurance that IRT will be able to secure financing to pay the cash portion of the Merger Consideration on acceptable terms, in a timely manner, or at all. IRT’s ability to secure such financing is not a condition to the consummation of the Merger, and, in certain circumstances, IRT may be required to pay a $25.0 million reverse termination fee if it is unable to obtain the financing necessary to pay the cash portion of the Merger Consideration. See “The Merger Agreement—Financing Related to the Merger” beginning on page 105.

The Merger is subject to a number of conditions which, if not satisfied or waived, would adversely impact the parties’ ability to complete the Merger.

The Merger, which is expected to close during the third quarter of 2015, is subject to certain closing conditions, including, among others (i) the approval of the issuance of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) by a majority of the votes cast by IRT stockholders at the IRT special meeting and the approval for listing on the NYSE MKT of such shares, (ii) the approval of the Company Merger by the holders of a majority of the issued and outstanding shares of TSRE common stock entitled to vote at the TSRE special meeting, (iii) the absence of any law, judgment, order or injunction prohibiting the consummation of the Merger or the other transactions contemplated by the Merger Agreement, (iv) the SEC having declared effective the Registration Statement on Form S-4 of which this joint proxy statement/prospectus forms a part, pursuant to which the shares of IRT common stock to be issued as the stock portion of the Merger Consideration will be registered under the Securities Act, (v) the accuracy of the other parties’ representations and warranties and compliance with covenants, subject in each case to customary materiality standards, (vi) the absence of any material adverse effect with respect to either party, (vii) delivery of certain tax opinions related to each of TSRE’s and IRT’s qualification and taxation as a REIT and the qualification of the Company Merger as a reorganization within the meaning of Section 368(a) of the Code, and (viii) the receipt of certain consents from TSRE’s lenders.

There can be no assurance these conditions will be satisfied or waived, if permitted. Therefore, there can be no assurance with respect to the timing of the closing of the Merger or that the Merger will be completed at all.

The Merger Consideration will not be adjusted in the event of any change in the stock prices of either IRT or TSRE.

As provided in the Merger Agreement, holders of TSRE common stock are entitled to receive the Merger Consideration, which consists of a cash portion and a stock portion. Neither the Per Share Cash Amount nor the Exchange Ratio will change as a result of a change in the market price of IRT common stock, although the aggregate value of the Merger Consideration will fluctuate with changes in the market price of IRT common stock and the Per Share Cash Amount that IRT elects. The market price of IRT common stock may change as a result of a variety of factors (many of which are beyond IRT’s control), including the following:

 

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market reaction to the announcement of the Merger, the issuance of shares of IRT common stock in connection with the Merger and the prospects of the Combined Company;

 

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changes in the respective businesses, operations, assets, liabilities, financial position and prospects of IRT, TSRE or the Combined Company or in the market assessments thereof;

 

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changes in the operating performance of IRT, TSRE or similar companies;

 

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changes in market valuations of similar companies;

 

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market assessments of the likelihood that the Merger will be completed;

 

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changes in prevailing interest rates or other equity or debt financing terms, including changes that make IRT’s financing of the cash portion of the Merger Consideration more expensive than originally expected or render the TSRE acquisition dilutive to current IRT stockholders;

 

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interest rates on debt investments available to investors, general market and economic conditions and other factors generally affecting the value of an investment in IRT common stock;

 

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federal, state and local legislation, governmental regulation and legal developments in the businesses in which IRT and TSRE operate;

 

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dissident stockholder activity;

 

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changes that affect the commercial real estate market generally;

 

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changes in the U.S. or global economy or capital, financial or securities markets generally; and

 

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other factors beyond the control of IRT and TSRE, including those described or referred to elsewhere in this “Risk Factors” section.

Changes in the market price of shares of IRT common stock prior to the completion of the Merger will affect the market value of the stock portion of the Merger Consideration. The market price of a share of IRT common stock at the completion of the Merger may vary from its price on the date the Merger Agreement was executed, on the date of this joint proxy statement/prospectus or on the date of IRT’s special meeting and TSRE’s special meeting. For example, based on the range of closing market prices of IRT common stock during the period from May 8, 2015, the last trading day before public announcement of the Merger, through July 30, 2015, the latest practicable trading day before the date of this joint proxy statement/prospectus, the Exchange Ratio of 0.4108 (which assumes that IRT does not elect to increase the cash portion of the Merger Consideration) represented a market value for the share portion of the Merger Consideration ranging from a low of $3.04 to a high of $3.70. Because the Merger will be completed after the date of the special meetings, at the time of your special meeting, you will not know the exact market price of the shares of IRT common stock that TSRE stockholders will receive upon completion of the Merger. You should therefore consider that:

 

•

If the market price of shares of IRT common stock increases between the date of the Merger Agreement or the date of the IRT and TSRE special meetings and the closing of the Merger, TSRE stockholders will receive shares of IRT common stock that have a market value upon completion of the Merger that is greater than the market value of such shares on the date of the Merger Agreement or the date of the special meetings, respectively.

 

•

If the market price of shares of IRT common stock declines between the date of the Merger Agreement or the date of the IRT and TSRE special meetings and the closing of the Merger, TSRE stockholders will receive shares of IRT common stock that have a market value upon completion of the Merger that is less than the market value of such shares on the date of the Merger Agreement or the date of the special meetings, respectively.

Therefore, while the number of shares of IRT common stock to be issued per share of TSRE common stock will not change based on the market price of IRT common stock, (i) IRT stockholders cannot be sure of the market value of the Merger Consideration that will be paid to TSRE stockholders upon completion of the Merger and (ii) TSRE stockholders cannot be sure of the market value of the Merger Consideration they will receive upon completion of the Merger.

Failure to complete the Merger could negatively impact the stock prices and the future business and financial results of both IRT and TSRE.

If the Merger is not completed, the ongoing businesses of IRT and TSRE could be adversely affected and each of IRT and TSRE may be subject to a variety of risks associated with the failure to complete the Merger, including the following:

 

•

TSRE being required, under certain circumstances, to pay to IRT a termination fee of $12.0 million or up to $5.0 million in expense reimbursement;

 

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IRT being required, under certain circumstances, to pay to TSRE a reverse termination fee of $25.0 million or up to $5.0 million in expense reimbursement;

 

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IRT and/or TSRE having to pay certain costs relating to the proposed Merger, such as legal, accounting, financial advisor, filing, printing and mailing fees; and

 

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diversion of IRT and TSRE management focus and resources from operational matters and other strategic opportunities while working to implement the Merger.

If the Merger is not completed, these risks could materially affect the business, financial results and stock prices of both IRT and TSRE. See “The Merger Agreement—Termination of the Merger Agreement” beginning on page 102 for more information regarding the specific circumstances under which terminations fees and expense reimbursements are payable.

The pendency of the Merger could adversely affect the business and operations of IRT and TSRE.

Prior to the effective time of the Company Merger, some tenants or vendors of each of IRT and TSRE may delay or defer decisions regarding whether to continue to do business with IRT or TSRE, as applicable, which could negatively affect the revenues, earnings, cash flows and expenses of IRT and TSRE, regardless of whether the Merger is completed. Similarly, current and prospective employees of IRT and TSRE may experience uncertainty about their future roles with the Combined Company following the Merger, which may materially adversely affect the ability of each of IRT and TSRE to attract and retain key personnel during the pendency of the Merger. In addition, due to operating restrictions in the Merger Agreement, each of IRT and TSRE may be unable, during the pendency of the Merger, to pursue strategic transactions, undertake significant capital projects, undertake certain significant financing transactions and otherwise pursue other actions, even if such actions would prove beneficial.

Some of the directors and executive officers of TSRE have interests in the Merger that are different from, or in addition to, those of the other TSRE stockholders.

Some of the directors and executive officers of TSRE have arrangements that provide them with interests in the Merger that are different from, or in addition to, those of the stockholders of TSRE generally. These interests include, among other things, a sizeable separation payment to certain executive officers if terminated upon, or following, consummation of the Merger and (ii) the entry into voting agreements and lock-up agreements by Senator and Monarch, which are each significant stockholders of TSRE and the employer of certain members of the TSRE Board. These interests, among other things, may influence or may have influenced the directors and executive officers of TSRE to support or approve the Merger. See “The Merger—Interests of TSRE’s Directors and Executive Officers in the Merger” beginning on page 81.

A pending purported class action lawsuit or other lawsuits could prevent or delay the consummation of the Merger and result in substantial costs.

Since the announcement of the Merger on May 11, 2015 through the date of this joint proxy statement/prospectus, a purported class action lawsuit has been filed by three stockholders of TSRE in Maryland state court seeking, among other things, compensatory damages. The plaintiffs assert claims of breach of fiduciary duty against the members of the TSRE Board and unjust enrichment against three members of the TSRE Board. It is possible that additional lawsuits may be filed against TSRE or IRT asserting similar or different claims, including seeking to enjoin the Merger. If the purported class action is further amended or other potential future lawsuits are filed, they could prevent or delay completion of the Merger and result in substantial costs to TSRE and/or IRT, including costs associated with the indemnification of directors. There can be no assurance that any of the defendants will prevail in the pending litigation or in any future litigation. The defense or settlement of any lawsuit or claim may adversely affect the Combined Company’s business, financial condition, or results of operations. See “Litigation Relating to the Merger” beginning on page 83 of this joint proxy statement/prospectus.

 

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The Combined Company’s operating results after the Merger may materially differ from the pro forma information presented in this joint proxy statement/prospectus.

The Combined Company’s operating results after the Merger may be materially different from those shown in the pro forma information presented in this joint proxy statement/prospectus, which represents only a combination of IRT’s historical results with those of TSRE. The Merger, financing and transaction costs related to the Merger could be higher or lower than currently estimated, depending on how difficult it will be to integrate IRT’s business with that of TSRE. For more information, see “Unaudited Pro Forma Condensed Consolidated Financial Statements” beginning on page 132.

Risk Factors Relating to the Combined Company Following the Merger

Risks Related to the Combined Company’s Operations

The Combined Company expects to incur substantial expenses related to the Merger.

The Combined Company expects to incur substantial expenses in connection with completing the Merger and integrating the business, operations, networks, systems, technologies, policies and procedures of TSRE with those of IRT. There are several systems that must be integrated, including accounting and finance and asset management. While IRT has assumed that a certain level of transaction and integration expenses would be incurred, there are a number of factors beyond its control that could affect the total amount or the timing of the Combined Company’s integration expenses. Many of the expenses that will be incurred, by their nature, are difficult to estimate accurately at the present time. As a result, the transaction and integration expenses associated with the Merger could, particularly in the near term, exceed the savings that the Combined Company expects to achieve from the elimination of duplicative expenses and the realization of economies of scale and cost savings related to the integration of the businesses following the completion of the Merger.

Following the Merger, the Combined Company may be unable to integrate the businesses of IRT and TSRE successfully and realize the anticipated synergies and other benefits of the Merger or do so within the anticipated timeframe.

The Merger involves the combination of two companies that currently operate as independent public companies. The Combined Company is expected to benefit from the elimination of duplicative costs associated with supporting a public company platform and the leveraging of state of the art technology and systems. These savings are expected to be realized upon full integration, which is expected to occur over the 12-month period following the closing of the Merger. However, the Combined Company will be required to devote significant management attention and resources to integrating the business practices and operations of IRT and TSRE. Potential difficulties the Combined Company may encounter in the integration process include the following:

 

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the inability to successfully combine the businesses of IRT and TSRE in a manner that permits the Combined Company to achieve the cost savings anticipated to result from the Merger, which would result in the anticipated benefits of the Merger not being realized in the timeframe currently anticipated or at all;

 

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the complexities associated with managing the combined businesses out of several different locations and integrating personnel from the two companies;

 

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the additional complexities of combining two companies with different histories, cultures, markets and tenant bases;

 

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potential unknown liabilities and unforeseen increased expenses, delays or regulatory conditions associated with the Merger; and

 

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performance shortfalls as a result of the diversion of management’s attention caused by completing the Merger and integrating the companies’ operations.

 

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For all these reasons, it is possible that the integration process could result in the distraction of the Combined Company’s management, the disruption of the Combined Company’s ongoing business or inconsistencies in the Combined Company’s operations, services, standards, controls, procedures and policies, any of which could adversely affect the ability of the Combined Company to maintain relationships with tenants, vendors and employees or to achieve the anticipated benefits of the Merger, or could otherwise adversely affect the business and financial results of the Combined Company.

The Combined Company’s anticipated level of indebtedness will increase upon completion of the Merger, which will increase the related risks IRT now faces.

In connection with the Merger, the Combined Company may assume certain indebtedness of TSRE and will be subject to increased risks associated with debt financing, including an increased risk that the Combined Company’s cash flow could be insufficient to meet required payments on its debt. At March 31, 2015, IRT had indebtedness of $422.6 million, which consisted entirely of outstanding mortgage debt. Taking into account IRT’s existing indebtedness, additional indebtedness IRT will incur in connection with obtaining the financing necessary to consummate the Merger, and the assumption of certain of TSRE’s indebtedness in the Merger, the Combined Company’s pro forma consolidated indebtedness as of March 31, 2015, after giving effect to the Merger, would be approximately $1,000.6 million, all of which would be secured, consisting of $276.6 million of borrowings under the KeyBank Senior Facility, $120.0 million of borrowings under the KeyBank Interim Facility, and $604.0 million of mortgage debt.

The Combined Company’s increased indebtedness could have important consequences to holders of its common stock, including TSRE stockholders who receive IRT common stock in the Merger, including:

 

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increasing the Combined Company’s vulnerability to general adverse economic and industry conditions;

 

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limiting the Combined Company’s ability to obtain additional financing to fund future working capital, capital expenditures and other general corporate requirements;

 

•

requiring the use of a substantial portion of the Combined Company’s cash flow from operations for the payment of principal and interest on its indebtedness, thereby reducing its ability to use its cash flow to fund working capital, acquisitions, capital expenditures and general corporate requirements;

 

•

limiting the Combined Company’s flexibility in planning for, or reacting to, changes in its business and its industry; and

 

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putting the Combined Company at a disadvantage compared to its competitors with less indebtedness.

In addition, if the Combined Company defaults under any of its outstanding loans, it will automatically be in default under any other loan that has cross-default provisions, and it may lose the properties securing these loans.

The future results of the Combined Company will suffer if the Combined Company is unable to effectively manage its expanded operations following the Merger.

Following the Merger, the Combined Company will have an expanded portfolio and operations and may continue to expand its operations through additional acquisitions and other strategic transactions. As a result, the Combined Company will face competition for tenants in additional markets, may face new challenges in attracting and retaining such tenants and will likely compete with more investors for acquisition opportunities. The future success of the Combined Company will depend, in part, upon its ability to attract and retain tenants in these new markets, manage its expansion opportunities, integrate new operations into its existing business in an efficient and timely manner, successfully monitor its operations and costs, and maintain necessary internal controls. The Combined Company cannot assure you that it will be able to maintain current rents and occupancy at the properties it acquires, that expansion or acquisition opportunities will be successful, or that the Combined Company will realize any expected revenue enhancements or other benefits from such transactions.

 

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Counterparties to certain significant agreements with IRT or TSRE may exercise contractual rights under such agreements in connection with the Merger.

IRT and TSRE are each party to certain agreements that give the counterparty certain rights following a “change in control,” including in some cases the right to terminate the applicable agreement. Under some such agreements, the Merger will constitute a change in control and, therefore, the counterparty may exercise certain rights under the applicable agreement upon the closing of the Merger. Certain TSRE leases, management and service contracts, and debt obligations contain such provisions, and certain agreements between IRT and its lenders also contain such provisions. Any such counterparty may request modifications of their respective agreements as a condition to granting a waiver or consent under their agreement. There can be no assurances that such counterparties will not exercise their rights under these agreements, including termination rights where available, or that the exercise of any such rights under, or modification of, these agreements will not adversely affect the business or operations of the Combined Company.

Risks Related to an Investment in the Combined Company’s Common Stock

The market price of the Combined Company’s common stock may decline as a result of the Merger.

The market price of the Combined Company’s common stock may decline as a result of the Merger if the Combined Company does not achieve the perceived benefits of the Merger as rapidly or to the extent anticipated by financial or industry analysts, or the effect of the Merger on the Combined Company’s financial results is not consistent with the expectations of financial or industry analysts.

In addition, upon consummation of the Merger, IRT stockholders and TSRE stockholders will own interests in a Combined Company operating an expanded business with a different mix of properties, risks and liabilities. Current stockholders of IRT and TSRE may not wish to continue to invest in the Combined Company, or for other reasons may wish to dispose of some or all of their shares of the Combined Company’s common stock. If, following the effective time of the Company Merger, large amounts of the Combined Company’s common stock are sold, the price of the Combined Company’s common stock could decline.

The Combined Company cannot assure you that it will be able to continue paying dividends at or above the rate currently paid by IRT and TSRE.

The stockholders of the Combined Company may not receive dividends at the same rate they received dividends as stockholders of IRT or TSRE following the Merger for various reasons, including the following:

 

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the Combined Company may not have enough cash to pay such dividends due to changes in the Combined Company’s cash requirements, capital spending plans, cash flow or financial position;

 

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decisions on whether, when and in which amounts to make any future distributions will remain at all times entirely at the discretion of the Combined Company’s board of directors, which reserves the right to change IRT’s current dividend practices at any time and for any reason;

 

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IRT historically has paid monthly dividends on shares of its common stock while TSRE historically has paid quarterly dividends on shares of its common stock;

 

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the Combined Company may desire to retain cash to maintain or improve its credit ratings; and

 

•

the amount of dividends that the Combined Company’s subsidiaries may distribute to the Combined Company may be subject to restrictions imposed by state law, restrictions that may be imposed by state regulators, and restrictions imposed by the terms of any current or future indebtedness that these subsidiaries may incur.

Stockholders of the Combined Company will have no contractual or other legal right to dividends that have not previously been declared by the Combined Company’s board of directors.

 

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The Combined Company may need to incur additional indebtedness in the future.

In connection with executing the Combined Company’s business strategy following the Merger, the Combined Company expects to evaluate the possibility of acquiring additional properties and making strategic investments, and the Combined Company may elect to finance these endeavors by incurring additional indebtedness. The amount of such indebtedness could have material adverse consequences for the Combined Company, including hindering the Combined Company’s ability to adjust to changing market, industry or economic conditions; limiting the Combined Company’s ability to access the capital markets to refinance maturing debt or to fund acquisitions; limiting the amount of free cash flow available for future operations, acquisitions, dividends, stock repurchases or other uses; making the Combined Company more vulnerable to economic or industry downturns, including interest rate increases; and placing the Combined Company at a competitive disadvantage compared to less leveraged competitors.

The market price of shares of the common stock of the Combined Company may be affected by factors different from those affecting the price of shares of IRT common stock or TSRE common stock before the Merger.

Following the Merger, the results of operations of the Combined Company, as well as the market price of the common stock of the Combined Company, may be affected by other factors in addition to those currently affecting IRT’s or TSRE’s results of operations and the market prices of IRT common stock and TSRE common stock. These factors include:

 

•

a greater number of shares of the Combined Company common stock outstanding as compared to the number of currently outstanding shares of IRT common stock;

 

•

different stockholders; and

 

•

different assets and capitalizations.

Accordingly, the historical market prices and financial results of IRT and TSRE may not be indicative of these matters for the Combined Company after the Merger.

After the Merger is completed, TSRE stockholders who receive shares of the Combined Company’s common stock in the Merger will have different rights that may be less favorable than their current rights as TSRE stockholders.

After the closing of the Merger, TSRE stockholders who receive shares of the Combined Company’s common stock in the Merger will have different rights than they currently have as TSRE stockholders. For a detailed discussion of the significant differences between the current rights as a stockholder of TSRE and the rights as a stockholder of the Combined Company following the Merger, see “Comparison of Rights of Stockholders of IRT and Stockholders of TSRE” beginning on page 143.

The Combined Company may incur adverse tax consequences if IRT or TSRE has failed, or if the Combined Company fails, to continue to qualify as a REIT for U.S. federal income tax purposes.

Each of IRT and TSRE has operated in a manner that it believes has allowed it to qualify as a REIT for U.S. federal income tax purposes under the Code, and each intends to continue to do so through the time of the Merger, and the Combined Company intends to continue operating in such a manner following the Merger. None of IRT, TSRE or the Combined Company has requested or plans to request a ruling from the Internal Revenue Service (“IRS”) that it qualifies as a REIT. Qualification as a REIT involves the application of highly technical and complex Code provisions for which there are only limited judicial and administrative interpretations. The determination of various factual matters and circumstances not entirely within the control of IRT, TSRE or the Combined Company, as the case may be, may affect any such company’s ability to qualify as a REIT. In order to qualify as a REIT, each of IRT, TSRE and the Combined Company must satisfy a number of requirements,

 

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including requirements regarding the ownership of its stock and the composition of its gross income and assets. In addition, a REIT must make distributions to stockholders aggregating annually at least 90% of its net taxable income, excluding any net capital gains.

If any of IRT, TSRE or the Combined Company loses its REIT status, or is determined to have lost its REIT status in a prior year, it will face serious tax consequences that would substantially reduce its cash available for distribution, including cash available to pay dividends to its stockholders, because:

 

•

such company would be subject to U.S. federal income tax on its net income at regular corporate rates for the years it did not qualify for taxation as a REIT (and, for such years, would not be allowed a deduction for dividends paid to stockholders in computing its taxable income);

 

•

such company could be subject to the federal alternative minimum tax and possibly increased state and local taxes for such periods;

 

•

unless such company is entitled to relief under applicable statutory provisions, neither it nor any “successor” company could elect to be taxed as a REIT until the fifth taxable year following the year during which it was disqualified; and

 

•

for up to ten years following re-election of REIT status, upon a taxable disposition of an asset owned as of such re-election, such company could be subject to corporate level tax with respect to any built-in gain inherent in such asset at the time of re-election.

The Combined Company will inherit any liability with respect to unpaid taxes of IRT or TSRE for any periods prior to the Company Merger. In addition, under the “investment company” rules under Section 368 of the Code, if both IRT and TSRE are “investment companies” under such rules (without regard to their REIT status), the failure of either IRT or TSRE to qualify as a REIT could cause the Company Merger to be taxable to IRT or TSRE, respectively, and its stockholders. As a result of all these factors, IRT’s, TSRE’s or the Combined Company’s failure to qualify as a REIT could impair the Combined Company’s ability to expand its business and raise capital, and would materially adversely affect the value of its stock. In addition, for years in which the Combined Company does not qualify as a REIT, it will not otherwise be required to make distributions to stockholders.

In certain circumstances, even if the Combined Company qualifies as a REIT, it and its subsidiaries may be subject to certain U.S. federal, state, and other taxes, which would reduce the Combined Company’s cash available for distribution to its stockholders.

Even if each of IRT, TSRE and the Combined Company has, as the case may be, qualified and continues to qualify as a REIT, the Combined Company may be subject to U.S. federal, state, or other taxes. For example, net income from the sale of properties that are “dealer” properties sold by a REIT (a “prohibited transaction” under the Code) will be subject to a 100% tax. In addition, the Combined Company may not be able to make sufficient distributions to avoid income and excise taxes applicable to REITs. Alternatively, the Combined Company may decide to retain income it earns from the sale or other disposition of its property and pay income tax directly on such income. In that event, the Combined Company’s stockholders would be treated as if they earned that income and paid the tax on it directly. However, stockholders that are tax-exempt, such as charities or qualified pension plans, might not have any benefit from their deemed payment of such tax liability. The Combined Company and its subsidiaries may also be subject to U.S. federal taxes other than U.S. federal income taxes, as well as state and local taxes (such as state and local income and property taxes), either directly or at the level of its operating partnership, or at the level of the other companies through which the Combined Company indirectly owns its assets. Any U.S. federal or state taxes the Combined Company (or any of its subsidiaries) pays will reduce cash available for distribution by the Combined Company to stockholders. See “Material U.S. Federal Income Tax Consequences” beginning on page 109.

 

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The Merger may not be consummated if it would fail to qualify as a reorganization.

If the closing price of IRT common stock as of the trading day immediately prior to the closing date of the Company Merger would cause the Per Share Cash Amount to be greater than 60% of the value of the total Merger Consideration to be received by the TSRE stockholders in the Merger, the Company Merger would not qualify as a reorganization within the meaning of Section 368(a) of the Code. Were this to occur, certain conditions to the closing of the Merger would not be satisfied and the Company Merger would not occur unless the parties submitted to their respective stockholders a request for the waiver of such conditions. The Merger Agreement does not require any party to request such a waiver.

 

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CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS

This joint proxy statement/prospectus contains forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. These forward-looking statements are based on current expectations, estimates and projections about the industry and markets in which IRT and TSRE operate and beliefs of, and assumptions made by, IRT management and TSRE management and involve uncertainties that could significantly affect the financial results of IRT, TSRE 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. Such forward-looking statements include, but are not limited to, statements about the anticipated benefits of the business combination transaction involving IRT and TSRE, including future financial and operating results, and the Combined Company’s plans, objectives, expectations and intentions. All statements that address operating performance, events or developments that IRT and TSRE expect or anticipate 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 and TSRE believe the expectations reflected in any forward-looking statements are based on reasonable assumptions, IRT and TSRE can give no assurance that their 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:

 

•

the occurrence of any event, change or other circumstances that could give rise to the termination of the Merger Agreement;

 

•

the inability to complete the Merger or failure to satisfy other conditions to completion of the Merger;

 

•

the inability to complete the Merger within the expected time period or at all, including due to the failure to obtain the IRT stockholder approval, the TSRE stockholder approval or the failure to satisfy other conditions to completion of the Merger;

 

•

risks related to disruption of management’s attention from the ongoing business operations due to the proposed Merger;

 

•

the effect of the announcement of the proposed Merger on IRT’s or TSRE’s relationships with their respective customers, tenants, lenders, operating results and businesses generally;

 

•

the ability of IRT to obtain funding to finance the cash portion of the Merger Consideration;

 

•

each of IRT’s and TSRE’s success, or the success of the Combined Company, in implementing its business strategy and its ability to identify, underwrite, finance, consummate and integrate acquisitions or investments;

 

•

changes in national, regional and local economic climates;

 

•

changes in financial markets and interest rates, or to the business or financial condition of IRT, TSRE or the Combined Company or their respective businesses;

 

•

the nature and extent of future competition;

 

•

each of IRT’s and TSRE’s ability, or the ability of the Combined Company, to pay down, refinance, restructure and/or extend its indebtedness as it becomes due;

 

•

the ability and willingness of IRT, TSRE and the Combined Company to maintain its qualification as a REIT;

 

•

availability to IRT, TSRE and the Combined Company of financing and capital;

 

•

the performance of TSRE’s, IRT’s and the Combined Company’s portfolio;

 

•

the impact of any financial, accounting, legal or regulatory issues or litigation that may affect IRT, TSRE or the Combined Company;

 

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•

risks associated with acquisitions, including the integration of the combined companies’ businesses; and

 

•

those additional risks and factors discussed in reports filed with the SEC 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.

Should one or more of the risks or uncertainties described above or elsewhere in this joint proxy statement/prospectus occur, or should underlying assumptions prove incorrect, actual results and plans could differ materially from those expressed in any forward-looking statements. You are cautioned not to place undue reliance on these statements, which speak only as of the date of this joint proxy statement/prospectus.

All forward-looking statements, expressed or implied, included in this joint proxy statement/prospectus are expressly qualified in their entirety by this cautionary statement. This cautionary statement should also be considered in connection with any subsequent written or oral forward-looking statements that IRT, TSRE or persons acting on their behalf may issue.

Neither IRT nor TSRE undertakes any duty to update any forward-looking statements appearing in this joint proxy statement/prospectus except as may be required by applicable law.

 

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THE COMPANIES

Independence Realty Trust, Inc.

IRT is a Maryland corporation that has elected to be taxed as a REIT under the Code. IRT conducts its business through a traditional UPREIT structure in which IRT’s properties are owned by IROP directly or through subsidiaries. IRT is the sole general partner of IROP. Substantially all of IRT’s assets are held by, and substantially all of IRT’s operations are conducted through, IROP. IRT owns apartment properties in geographic submarkets that it believes support strong occupancy and have the potential for growth in rental rates.

IRT is externally advised by the Advisor, a wholly-owned subsidiary of RAIT, pursuant to an advisory agreement and subject to the oversight of the IRT Board. The Advisor is responsible for managing IRT’s day-to-day business operations and identifying properties for IRT to acquire.

RAIT Residential, the property manager, for IRT’s properties, is a full-service apartment property management company that, as of March 31, 2015, employed approximately 420 staff and professionals and manages approximately 16,000 apartment units. RAIT Residential provides services to IRT in connection with the rental, leasing, operation and management of IRT’s properties.

IRT common stock is listed on the NYSE MKT, trading under the symbol “IRT.”

IRT was incorporated in the state of Maryland in 2009. IRT’s principal executive offices are located at Cira Centre, 2929 Arch Street, 17th Floor, Philadelphia, Pennsylvania 19104, and its telephone number is (215) 243-9000.

OP Merger Sub, a direct wholly-owned subsidiary of IROP, is a Delaware limited liability company formed on May 8, 2015 for the purpose of entering into the Merger Agreement. OP Merger Sub has not conducted any activities other than those incidental to its formation and the matters contemplated by the Merger Agreement.

IRT LP LLC, a direct wholly-owned subsidiary of IRT, is a Delaware limited liability company. IRT LP LLC is a holding company that holds 100 IROP Units.

Trade Street Residential, Inc.

TSRE is a Maryland corporation that has elected to be taxed as a REIT under the Code. TSRE conducts its business through an UPREIT structure in which TSRE’s properties are owned by TSR OP directly or through subsidiaries. TSRE is a full service, vertically integrated, self-administered and self-managed corporation incorporated in the state of Maryland in 2012, to acquire, own, operate and manage conveniently located, garden-style and mid-rise apartment communities in mid-sized cities and suburban submarkets of larger cities primarily in the southeastern United States and Texas. As of March 31, 2015, TSRE owned and operated 19 apartment communities containing 4,989 apartment units in Alabama, Florida, Georgia, North Carolina, South Carolina, Tennessee and Texas. TSRE’s apartment communities are characterized by attractive features including substantial landscaping, well-maintained exteriors and high quality interior finishes, and amenities such as swimming pools, clubhouses and fitness facilities and controlled-access gated entrances.

TSRE common stock is listed on the NASDAQ Global Market, trading under the symbol “TSRE.”

TSRE’s principal executive offices are located at 19950 West Country Club Drive, Suite 800, Aventura, Florida 33180, and its telephone number is (786) 248-5200.

 

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The Combined Company

References to the Combined Company are to IRT after the effective time of the Company Merger. The Combined Company will be named “Independence Realty Trust, Inc.” and will be a Maryland corporation. The Combined Company will be a leading regional market multifamily platform. The Combined Company is expected to have a pro forma equity market capitalization of approximately $422.1 million and a pro forma total market capitalization of $1.4 billion, each as of March 31, 2015 and based on the closing price of IRT common stock of $8.57 per share on May 8, 2015. The Combined Company’s asset base will consist primarily of approximately 14,044 multifamily units in 50 properties in 24 geographic markets.

The business of the Combined Company will be operated through IROP and its subsidiaries, which, after completion of the Merger, will include TSR OP.

The common stock of the Combined Company will continue to be listed on the NYSE MKT, trading under the symbol “IRT.”

The Combined Company’s principal executive offices will be located at Cira Centre, 2929 Arch Street, 17th Floor, Philadelphia, Pennsylvania, and its telephone number will be (215) 243-9000.

 

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DESCRIPTION OF IRT CAPITAL STOCK

The following discussion is a summary of the terms of the capital stock of IRT and should be read in conjunction with “Comparison of Rights of Stockholders of IRT and Stockholders of TSRE” beginning on page 143. The summary set forth below does not purport to be complete and is subject to and qualified in its entirety by reference to relevant provisions of Maryland law, the IRT charter and the IRT bylaws. You are urged to read those documents carefully.

General

IRT is authorized to issue 350,000,000 shares of stock, consisting of 300,000,000 shares of common stock, $0.01 par value per share, and 50,000,000 shares of preferred stock, $0.01 par value per share. The IRT charter authorizes the IRT Board, with the approval of a majority of the entire IRT Board and without any action on the part of IRT’s stockholders, subject to any preferential rights of any class or series of preferential stock, to amend the IRT charter from time to time to increase or decrease the aggregate number of authorized shares of stock or the number of authorized shares of stock of any class or series. As of the IRT Record Date, IRT had 31,933,217 outstanding shares of common stock and no outstanding shares of preferred stock. Under Maryland law, stockholders generally are not liable for a corporation’s debts or obligations.

Common Stock

All shares of IRT common stock that may be issued in connection with the Merger will be duly authorized, validly issued, fully paid and non-assessable. Holders of IRT common stock:

 

•

are entitled to receive distributions as authorized by the IRT Board and declared by IRT out of legally available funds;

 

•

in the event of any voluntary or involuntary liquidation or dissolution of IRT, are entitled to share ratably in the distributable assets of IRT remaining after satisfaction of the prior preferential rights of any outstanding preferred stock and the satisfaction of all of IRT’s debts and liabilities; and

 

•

do not have preference, conversion, exchange, sinking fund, redemption rights or preemptive rights to subscribe for any of IRT’s securities and generally have no appraisal rights unless the IRT Board determines that appraisal rights apply, with respect to all or any classes or series of shares, to one or more transactions occurring after the date of such determination in connection with which holders of such shares would otherwise be entitled to exercise appraisal rights.

Shares of IRT common stock will be held in uncertificated form, which will eliminate the physical handling and safekeeping responsibilities inherent in owning transferable stock certificates and eliminate the need to return a duly executed stock certificate to effect a transfer.

Stockholder Voting

Except as otherwise provided, all shares of common stock will have equal voting rights. Because stockholders do not have cumulative voting rights, holders of a majority of the outstanding shares of IRT common stock can elect the entire IRT Board. The voting rights per share of IRT equity securities issued in the future will be established by the IRT Board.

Under Maryland law and the IRT charter, IRT generally may not, without the affirmative vote of stockholders entitled to cast at least a majority of all the votes entitled to be cast on the matter:

 

•

amend the IRT charter, except to increase or decrease the number of authorized shares of stock of any class or series or the aggregate number of authorized shares of stock, change its name, change the name or other designation or the par value of any class or series of stock, change the aggregate par value of IRT stock or effect certain reverse stock splits;

 

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•

sell all or substantially all of its assets other than in the ordinary course of its business;

 

•

cause a merger, conversion or consolidation of the company;

 

•

effect a statutory share exchange; or

 

•

dissolve the company.

Each stockholder entitled to vote on a matter may do so at a meeting in person or by proxy directing the manner in which he or she desires that his or her vote be cast or without a meeting by a consent in writing or by electronic transmission. Any proxy must be filed with IRT’s secretary before or at the meeting at which the vote is taken. Pursuant to Maryland law, the IRT charter and the IRT bylaws, any action required or permitted to be taken at any meeting of stockholders may be taken without a meeting (a) by the unanimous consent in writing or by electronic transmission of each stockholder entitled to vote on the matter or (b) if the action is advised and submitted for stockholder approval by the IRT Board, by a consent in writing or by electronic transmission of stockholders entitled to cast not less than the minimum number of votes that would be necessary to authorize or take the action at a meeting. The IRT bylaws and Maryland law require IRT to provide notice of any action taken by less than unanimous written consent to each stockholder not later than ten days after the effective time of such action.

Restrictions on Ownership and Transfer

In order to maintain its qualification as a REIT, IRT must meet several requirements concerning the ownership of outstanding IRT capital stock. Specifically, no more than 50% in value of outstanding IRT capital stock may be owned, directly or indirectly, by five or fewer individuals (determined with attribution to the owners of any entity owning the Combined Company’s stock), as defined in the Code to include specified private foundations, employee benefit plans and trusts, and charitable trusts, at all times during the last half of a taxable year. Moreover, 100 or more persons must own the outstanding shares of IRT capital stock during at least 335 days of a taxable year of 12 months or during a proportionate part of a shorter taxable year.

Because the IRT Board believes it is essential for IRT to continue to qualify as a REIT and for other corporate purposes, the IRT charter, subject to the exceptions described below, provides that no person may beneficially or constructively own more than 9.8% in value of the aggregate of the outstanding shares of IRT stock and 9.8%, in value or in number of shares, whichever is more restrictive, of any class or series of the outstanding shares of IRT capital stock, including IRT common stock.

The IRT charter provides for certain circumstances where the IRT Board, in its sole discretion, may except a holder of IRT capital stock (prospectively or retroactively) from the 9.8% ownership limitation and impose other limitations and restrictions on ownership. The IRT Board has granted such an exception for RAIT. Additionally, the IRT charter prohibits, subject to the exceptions described below, any transfer of capital stock that would:

 

•

result in IRT capital stock being beneficially owned by fewer than 100 persons, determined without reference to any rules of attribution;

 

•

result in IRT being “closely held” under U.S. federal income tax laws (regardless of whether the ownership interest is held during the last half of a taxable year);

 

•

cause IRT to own, actually or constructively, 9.8% or more of the ownership interests in a tenant of IRT’s real property; or

 

•

cause IRT to fail to qualify, under U.S. federal income tax laws or otherwise, as a REIT.

Any attempted transfer of IRT capital stock which, if effective, would result in IRT capital stock being beneficially owned by fewer than 100 persons, will be null and void, with the intended transferee acquiring no rights in such shares of capital stock, and any other prohibited transfer of shares of IRT capital stock described above will result in the number of shares that would cause such person to violate the above restrictions (rounded

 

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up to the nearest whole share) to be designated as shares-in-trust and transferred automatically to a trust effective at the close of business on the business day before the purported transfer of such shares. IRT will designate the trustee, but the trustee will not be affiliated with IRT and any prohibited owner. The beneficiary of the trust will be one or more nonprofit organizations that are named by IRT and whose beneficial ownership does not violate any of the ownership restrictions set forth above. If the transfer to the trust would not be effective for any reason to prevent a violation of the limitations on ownership and transfer, then the shares will be transferred to that number of trusts, each having a distinct trustee and a charitable beneficiary or beneficiaries that are distinct from those of the other trust, such that there will not be a violation of the above ownership restrictions.

Shares-in-trust will remain shares of issued and outstanding capital stock and will be entitled to the same rights and privileges as all other stock of the same class or series. The trust will receive all dividends and other distributions on the shares-in-trust and will hold such dividends or other distributions in trust for the benefit of the beneficiary. The trustee will vote all shares-in-trust and, subject to Maryland law, will have the authority to rescind as void any vote cast by the prohibited owner prior to IRT’s discovery that the shares have been transferred to the trust and to recast the vote in accordance with the desires of the trustee acting for the benefit of the beneficiary. However, if IRT has already taken irreversible corporate action, then the trustee will not have the authority to rescind and recast the vote.

Within 20 days of receiving notice from IRT that shares of IRT capital stock have been transferred to the trust, the trustee will sell the shares held by the trust to a person, designated by the trustee, whose ownership of the shares will not violate the above ownership limitations. Upon the sale, the interest of the beneficiary in the shares sold will terminate and the trustee will distribute the net proceeds of the sale to the prohibited owner and to the beneficiary as follows:

The prohibited owner will receive from the trust the lesser of:

 

•

the price per share such prohibited owner paid for the shares of capital stock that were designated as shares-in-trust or, if the prohibited owner did not give value for the shares (such as in the case of a devise or gift), the market price per share on the date of the event causing the shares to be held as shares-in-trust; or

 

•

the price per share received by the trust from the sale of such shares-in-trust.

The trustee may reduce the amount payable to the prohibited owner by the amount of dividends and other distributions which have been paid to the prohibited owner and are owed by the prohibited owner to the trustee. The trust will immediately distribute to the beneficiary any amounts received by the trust in excess of the amounts to be paid to the prohibited owner. If, prior to IRT’s discovery that shares of IRT capital stock have been transferred to the trust, the shares are sold by the prohibited owner, then such shares shall be deemed to have been sold on behalf of the trust and, to the extent that the prohibited owner received an amount for the shares that exceeds the amount such prohibited owner was entitled to receive, the excess shall be paid to the trustee upon demand.

In addition, the shares-in-trust will be deemed to have been offered for sale to IRT, or IRT’s designee, at a price per share equal to the lesser of:

 

•

the price per share in the transaction that resulted in the transfer to the trust or, in the case of a gift or devise, the market price per share on the date of the gift or devise; or

 

•

the market price per share on the date that IRT, or IRT’s designee, accepts such offer.

IRT may reduce the amount payable to the prohibited owner by the amount of dividends and other distributions which have been paid to the prohibited owner and are owed by the prohibited owner to the trustee. IRT may pay the amount of such reduction to the trustee for the benefit of the beneficiary. IRT will have the right to accept such offer until the trustee has sold such shares-in-trust. Upon a sale to IRT, the interest of the beneficiary in the shares sold will terminate and the trustee shall distribute the net proceeds to the prohibited owner.

 

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Any person who owns, directly or indirectly, more than 5%, or such lower percentages as required under the Code, of the outstanding shares of IRT capital stock must, within 30 days of the end of each taxable year, provide to IRT a written statement or affidavit stating such person’s name and address, the number of shares of capital stock owned directly or indirectly, and a description of how such shares are held. In addition, each direct or indirect stockholder must provide IRT such additional information as it may request in order to determine the effect, if any, of such ownership on IRT’s status as a REIT and to ensure compliance with the ownership limit.

The IRT Board may exempt a person (prospectively or retroactively) from the ownership limit or establish or increase an excepted holder limit for such person and may also increase the ownership limit for one or more persons and decrease the ownership limit for all other persons.

The restrictions on ownership and transfer described above will continue to apply until the IRT Board determines that it is no longer in the best interests of IRT to attempt to qualify, or to continue to qualify, as a REIT or that compliance is no longer required for REIT qualification.

The ownership limit in the IRT charter may have the effect of delaying, deferring or preventing a takeover or other transaction or change in control of IRT that might involve a premium price for your shares or otherwise be in your interest as a stockholder.

Transfer Agent

The transfer agent for the IRT common stock is American Stock Transfer & Trust Company, LLC.

No Stockholder Rights Plan

IRT currently does not have a stockholder rights plan.

Listing

IRT common stock is listed and traded on the NYSE MKT under the symbol “IRT.” It is a condition to the consummation of the Merger that the shares of IRT common stock to be issued in connection with the Merger be approved for listing on the NYSE MKT, subject to official notice of issuance.

 

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THE IRT SPECIAL MEETING

Date, Time, Place and Purpose of IRT’s Special Meeting

The special meeting of the stockholders of IRT will be held at IRT’s offices at the Cira Centre, 2929 Arch Street, 17th Floor, Philadelphia, PA 19104 on September 15, 2015, commencing at 9:00 a.m., local time. The purpose of the IRT special meeting is:

 

(i)	to consider and vote on a proposal to approve the issuance of shares of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger); and

 

(ii)

to consider and vote on a proposal to approve one or more adjournments of the IRT special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the issuance of shares of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger).

Recommendation of the IRT Board

The IRT Board has unanimously (i) determined that the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement are advisable, fair to, and in the best interests of IRT and its stockholders, (ii) approved and adopted the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement, and (iii) authorized and approved the issuance of shares of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger). The IRT Board unanimously recommends that IRT stockholders vote FOR the proposal to approve the issuance of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger), and FOR the proposal to approve one or more adjournments of the IRT special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the issuance of shares of IRT common stock in the Company Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger). For the reasons for this recommendation, see “The Merger—Recommendation of IRT Board and Its Reasons for the Merger” beginning on page 73.

IRT Record Date; Who Can Vote at the IRT Special Meeting

Only holders of record of IRT common stock at the close of business on July 8, 2015, the IRT Record Date, are entitled to notice of, and to vote at, the IRT special meeting and any adjournment or postponement of the IRT special meeting. As of the IRT Record Date, there were 31,933,217 shares of IRT common stock outstanding and entitled to vote at the IRT special meeting, held by approximately 35 stockholders of record.

Each share of IRT common stock owned on the IRT Record Date is entitled to one vote on each proposal at the IRT special meeting.

Vote Required for Approval; Quorum

Approval of the proposal to approve the issuance of shares of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) requires the affirmative vote of at least a majority of all votes cast on such proposal. Approval of the proposal to approve one or more adjournments of the IRT special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the issuance of shares of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) requires the affirmative vote of at least a majority of all votes cast on such proposal.

IRT’s bylaws provide that the presence in person or by proxy of stockholders entitled to cast a majority of all the votes entitled to be cast at such meeting on any matter will constitute a quorum at a meeting of its stockholders. Shares that are voted and shares abstaining from voting are treated as being present at the IRT special meeting for purposes of determining whether a quorum is present.

 

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Abstentions and Broker Non-Votes

Abstentions and broker non-votes, if any, will be counted in determining the presence of a quorum. Abstentions will have no effect on either (i) the proposal to approve the issuance of shares of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) or (ii) the proposal to approve one or more adjournments of the IRT special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the issuance of shares of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger). Broker non-votes, if any, will have no effect on either the proposal to approve the issuance of shares of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) or the proposal to approve one or more adjournments of the IRT special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the issuance of shares of IRT common stock to TSRE stockholders in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger). Because there are no discretionary (or routine) matters to be voted on at the IRT special meeting, IRT does not expect to receive any broker non-votes.

Manner of Submitting Proxy

IRT stockholders may submit their votes for or against the proposals submitted at the IRT special meeting in person or by proxy. IRT stockholders may be able to submit a proxy in the following ways:

 

•

Internet. IRT stockholders may submit a proxy over the Internet by going to the website listed on their proxy card or voting instruction card. Once at the website, they should follow the instructions to submit a proxy.

 

•

Telephone. IRT stockholders may submit a proxy using the toll-free number listed on their proxy card or voting instruction card.

 

•

Mail. IRT stockholders may submit a proxy by completing, signing, dating and returning their proxy card or voting instruction card in the preaddressed postage-paid envelope provided.

IRT stockholders should refer to their proxy cards or the information forwarded by their broker or other nominee to see which options are available to them.

The internet and telephone proxy submission procedures are designed to authenticate stockholders and to allow them to confirm that their instructions have been properly recorded. If you submit a proxy over the internet or by telephone, then you need not return a written proxy card or voting instruction card by mail. The internet and telephone facilities available to record holders will close at 11:59 p.m. Eastern Time on September 14, 2015.

The method by which IRT stockholders submit a proxy will in no way limit their right to vote at the IRT special meeting if they later decide to attend the IRT special meeting and vote in person. If shares of IRT common stock are held in the name of a broker or other nominee, IRT stockholders must obtain a legal proxy, executed in their favor, from the broker or other nominee, to be able to vote in person at the IRT special meeting.

All shares of IRT common stock entitled to vote and represented by properly completed proxies received prior to the IRT special meeting, and not revoked, will be voted at the IRT special meeting as instructed on the proxies. If IRT stockholders of record return properly executed proxies but do not indicate how their shares of IRT common stock should be voted on a proposal, the shares of IRT common stock represented by their properly executed proxy will be voted as the IRT Board recommends and, therefore, FOR the proposal to approve the issuance of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger), and FOR the proposal to approve one or more adjournments of the IRT special meeting to another date, time or place, if necessary or appropriate,

 

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to solicit additional proxies in favor of the proposal to approve the issuance of shares of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger).

Shares Held in “Street Name”

If IRT stockholders hold shares of IRT common stock in an account of a broker or other nominee and they wish to vote such shares, they must return their voting instructions to the broker or other nominee.

If IRT stockholders hold shares of IRT common stock in an account of a broker or other nominee and attend the IRT special meeting, they should bring a legal proxy from their broker or other nominee authorizing them to vote.

Shares of IRT common stock held by brokers and other nominees will be present for purposes of determining a quorum but will NOT be voted unless such IRT stockholders instruct such brokers or other nominees how to vote.

Revocation of Proxies or Voting Instructions

IRT stockholders of record may change their vote or revoke their proxy at any time before it is exercised at the IRT special meeting by:

 

•

submitting notice in writing to IRT’s Corporate Secretary at Independence Realty Trust, Inc., Cira Centre, 2929 Arch Street, 17th Floor, Philadelphia, PA 19104, Attn: Secretary that you are revoking your proxy;

 

•

executing and delivering a later-dated proxy card or submitting a later-dated proxy by telephone or on the internet; or

 

•

voting in person at the IRT special meeting.

Attending the IRT Special Meeting Without Voting Will Not Revoke Your Proxy

IRT stockholders who hold shares of IRT common stock in an account of a broker or other nominee may revoke their voting instructions by following the instructions provided by their broker or other nominee.

Tabulation of Votes

IRT will appoint an Inspector of Election for the IRT special meeting to tabulate votes and abstentions.

Solicitation of Proxies

The solicitation of proxies from IRT stockholders is made on behalf of the IRT Board. IRT will pay the cost of soliciting proxies from IRT stockholders. IRT’s directors, officers and employees, as well as the Advisor and RAIT, may solicit proxies in person, by telephone or by any other electronic means of communication deemed appropriate. No additional compensation will be paid to IRT’s directors, officers or employees, the Advisor or RAIT for such services. IRT also has engaged D.F. King to assist it in the solicitation of proxies for the IRT special meeting, and IRT estimates it will pay D.F. King a fee of approximately $8,500. IRT has also agreed to reimburse D.F. King for reasonable and documented out-of-pocket expenses incurred in connection with the proxy solicitation and to indemnify D.F. King against certain claims, costs, damages, liabilities, judgments and expenses.

In accordance with the regulations of the SEC and NYSE MKT, IRT also will reimburse brokerage firms and other custodians, nominees and fiduciaries for their expenses incurred in sending proxies and proxy materials to beneficial owners of shares of IRT common stock.

 

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PROPOSALS SUBMITTED TO IRT STOCKHOLDERS

Stock Issuance Proposal

(Proposal 1 on the IRT Proxy Card)

IRT stockholders are asked to approve the issuance of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger).

Pursuant to the Merger Agreement, approval of this proposal is a condition to the closing of the Merger. If the proposal is not approved, the Merger will not be completed.

IRT is requesting that IRT stockholders approve the issuance of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger). Approval of the proposal to approve the issuance of IRT common stock in the Merger requires the affirmative vote of a majority of all votes cast at the IRT special meeting.

Recommendation of the IRT Board

The IRT Board unanimously recommends that IRT stockholders vote FOR the proposal to approve the issuance of shares of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger).

IRT Adjournment Proposal

(Proposal 2 on the IRT Proxy Card)

The IRT special meeting may be adjourned one or more times to another date, time or place, if necessary or appropriate, to permit, among other things, further solicitation of proxies, if necessary or appropriate, to obtain additional votes in favor of the proposal to approve the issuance of shares of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger). If, at the IRT special meeting, the number of shares of IRT common stock present in person or represented by proxy and voting in favor of the proposal to approve the issuance of shares of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) is insufficient to approve the proposal, IRT intends to move to adjourn the IRT special meeting in order to enable the IRT Board to solicit additional proxies for approval of the proposal.

IRT is asking IRT stockholders to approve one or more adjournments of the IRT special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the issuance of shares of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger). Approval of this proposal requires the affirmative vote of a majority of all votes cast at the IRT special meeting.

Recommendation of the IRT Board

The IRT Board unanimously recommends that IRT stockholders vote FOR the proposal to approve one or more adjournments of the IRT special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the issuance of shares of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger).

 

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Other Business

At this time, IRT does not intend to bring any other matters before the IRT special meeting, and IRT does not know of any matters to be brought before the IRT special meeting by others. If, however, any other matters properly come before the IRT special meeting, the persons named in the enclosed proxy, or their duly constituted substitutes, acting at the IRT special meeting or any adjournment or postponement thereof will be deemed authorized to vote the shares represented thereby in accordance with the discretion of such persons or such substitutes on any such matter.

 

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THE TSRE SPECIAL MEETING

Date, Time, Place and Purpose of the TSRE Special Meeting

The special meeting of the stockholders of TSRE will be held at the 8th Floor Conference Room at 19950 West Country Club Drive, Aventura, Florida 33180 on September 15, 2015, commencing at 10:00 a.m., local time. The purpose of the TSRE special meeting is:

 

1.

to consider and vote on a proposal to approve the Company Merger and other transactions contemplated by the Merger Agreement; and

 

2.

to consider and vote on a proposal to approve one or more adjournments of the TSRE special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the Company Merger and other transactions contemplated by the Merger Agreement.

Recommendation of the TSRE Board

The TSRE Board has (i) determined that the Merger, the Merger Agreement, and the other transactions contemplated by the Merger Agreement, are advisable and in the best interests of TSRE and its stockholders and (ii) approved the Merger Agreement and authorized the performance by TSRE thereunder. The TSRE Board recommends that TSRE stockholders vote FOR the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement and FOR the proposal to approve one or more adjournments of the TSRE special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement. For the reasons for this recommendation, see “The Merger—Recommendation of TSRE Board and Its Reasons for the Merger” beginning on page 76.

TSRE Record Date; Who Can Vote at the TSRE Special Meeting

Only holders of record of TSRE common stock at the close of business on July 8, 2015, the TSRE Record Date, are entitled to notice of, and to vote at, the TSRE special meeting and any adjournment or postponement of the TSRE special meeting. As of the TSRE Record Date, there were 36,799,570 shares of TSRE common stock outstanding and entitled to vote at the TSRE special meeting, held by approximately 42 stockholders of record.

Each share of TSRE common stock owned on TSRE’s record date is entitled to one vote on each proposal at the TSRE special meeting.

Vote Required for Approval; Quorum

Approval of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement requires the affirmative vote of the holders of at least a majority of the outstanding shares of TSRE common stock entitled to vote on such proposal. Approval of the proposal to approve one or more adjournments of the TSRE special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement each requires the affirmative vote of a majority of the votes cast on such proposal.

TSRE’s bylaws provide that the presence in person or by proxy of stockholders entitled to cast a majority of all the votes entitled to be cast constitutes a quorum at a meeting of its stockholders. Shares that are voted and shares abstaining from voting are treated as being present at the TSRE special meeting for purposes of determining whether a quorum is present.

 

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Abstentions and Broker Non-Votes

Abstentions and broker non-votes, if any, will be counted in determining the presence of a quorum, but will have the same effect as votes cast AGAINST the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement. However, abstentions and broker non-votes, if any, will have no effect on the proposal to approve one or more adjournments of the TSRE special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement. Because there are no discretionary (or routine) matters to be voted on at the TSRE special meeting, TSRE does not expect to receive any broker non-votes.

Manner of Submitting Proxy

TSRE stockholders may submit their votes for or against the proposals submitted at the TSRE special meeting either in person or by proxy. TSRE stockholders may submit a proxy in the following ways:

 

•

Internet. TSRE stockholders may submit a proxy over the internet by going to the website listed on their proxy card or voting instruction card. Once at the website, they should follow the instructions to submit a proxy.

 

•

Telephone. TSRE stockholders may submit a proxy using the toll-free number listed on their proxy card or voting instruction card.

 

•

Mail. TSRE stockholders may submit a proxy by completing, signing, dating and returning their proxy card or voting instruction card in the preaddressed postage-paid envelope provided.

TSRE stockholders should refer to their proxy cards or the information forwarded by their broker or other nominee to see which options are available to them.

The internet and telephone proxy submission procedures are designed to authenticate stockholders and to allow them to confirm that their instructions have been properly recorded. If you submit a proxy over the internet or by telephone, then you need not return a written proxy card or voting instruction card by mail. The internet and telephone facilities available to record holders will close at 11:59 p.m. Eastern Time on September 14, 2015.

The method by which TSRE stockholders submit a proxy will in no way limit their right to vote at the TSRE special meeting if they later decide to attend the TSRE special meeting and vote in person. If shares of TSRE common stock are held in the name of a broker or other nominee, TSRE stockholders must obtain a proxy, executed in their favor, from the broker or other nominee, to be able to vote in person at the TSRE special meeting.

All shares of TSRE common stock entitled to vote and represented by properly completed proxies received prior to the TSRE special meeting, and not revoked, will be voted at the TSRE special meeting as instructed on the proxies. If TSRE stockholders of record return properly executed proxies but do not indicate how their shares of TSRE common stock should be voted on a proposal, the shares of TSRE common stock represented by their properly executed proxy will be voted as the TSRE Board recommends and therefore, FOR the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement and FOR the proposal to approve one or more adjournments of the TSRE special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement. If a TSRE stockholder does not provide voting instructions to their broker or other nominee, it will have the same effect as a vote cast AGAINST the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement and will have no effect on the proposal to approve one or more adjournments of the TSRE special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement.

 

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Shares Held in “Street Name”

If TSRE stockholders hold shares of TSRE common stock in an account of a broker or other nominee and they wish to vote such shares, they must return their voting instructions to the broker or other nominee.

If TSRE stockholders hold shares of TSRE common stock in an account of a broker or other nominee and attend the TSRE special meeting, they should bring a legal proxy from their broker or other nominee authorizing them to vote.

If a TSRE stockholder does not provide voting instructions to their broker or other nominee, it will have the same effect as a vote cast AGAINST the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement and will have no effect on the proposal to approve one or more adjournments of the TSRE special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement.

Revocation of Proxies or Voting Instructions

TSRE stockholders of record may change their vote or revoke their proxy at any time before it is exercised at the TSRE special meeting by:

 

•

submitting notice in writing to TSRE’s Corporate Secretary at Trade Street Residential, Inc., 19950 West Country Club Drive, Aventura, Florida 33180, Attn: Secretary that you are revoking your proxy;

 

•

executing and delivering a later-dated proxy card or submitting a later-dated proxy by telephone or on the internet; or

 

•

voting in person at the TSRE special meeting.

Attending the TSRE Special Meeting Without Voting Will Not Revoke Your Proxy.

TSRE stockholders who hold shares of TSRE common stock in an account of a broker or other nominee may revoke their voting instructions by following the instructions provided by their broker or other nominee.

Tabulation of Votes

TSRE will appoint an Inspector of Election for the TSRE special meeting to tabulate affirmative and negative votes and abstentions.

Solicitation of Proxies

The solicitation of proxies from TSRE stockholders is made on behalf of the TSRE Board. TSRE will pay the cost of soliciting proxies from TSRE stockholders. Directors, officers and employees of TSRE may solicit proxies on behalf of TSRE in person or by telephone, facsimile or other means, but will not receive any additional compensation for doing so. TSRE has not engaged a third-party proxy solicitor to assist in the solicitation of proxies for the TSRE special meeting.

In accordance with the regulations of the SEC and NASDAQ, TSRE also will reimburse brokerage firms and other custodians, nominees and fiduciaries for their expenses incurred in sending proxies and proxy materials to beneficial owners of shares of TSRE common stock.

 

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PROPOSALS SUBMITTED TO TSRE STOCKHOLDERS

Company Merger Proposal

(Proposal 1 on the TSRE Proxy Card)

TSRE stockholders are asked to approve the Company Merger and the other transactions contemplated by the Merger Agreement. For a summary and detailed information regarding this proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement, see the information about the Merger Agreement and the Merger throughout this joint proxy statement/prospectus, including the information set forth in sections entitled “The Merger” beginning on page 60 and “The Merger Agreement” beginning on page 85.

Pursuant to the Merger Agreement, approval of this proposal is a condition to the closing of the Merger. If the proposal is not approved, the Merger will not be completed even if the other proposals related to the Merger are approved.

TSRE is requesting that TSRE stockholders approve the Company Merger and the other transactions contemplated by the Merger Agreement. Approval of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement requires the affirmative vote of the holders of at least a majority of the outstanding shares of TSRE common stock entitled to vote on such proposal.

Recommendation of the TSRE Board

The TSRE Board has (i) determined that the Merger, the Merger Agreement, and the other transactions contemplated thereby, are advisable and in the best interests of TSRE and its stockholders, and (ii) approved the Merger Agreement and authorized the performance by TSRE thereunder. The TSRE Board recommends that TSRE stockholders vote FOR the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement.

TSRE Adjournment Proposal

(Proposal 2 on the TSRE Proxy Card)

The TSRE special meeting may be adjourned one or more times to another date, time or place, if necessary or appropriate, to permit, among other things, further solicitation of proxies, if necessary or appropriate, to obtain additional votes in favor of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement.

If, at the TSRE special meeting, the number of shares of TSRE common stock present or represented by proxy and voting in favor of the Company Merger proposal is insufficient to approve the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement, TSRE intends to move to adjourn the TSRE special meeting in order to enable the TSRE Board to solicit additional proxies for approval of the proposal.

TSRE is requesting that TSRE stockholders approve one or more adjournments of the TSRE special meeting, to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement. Approval of this proposal requires the affirmative vote of a majority of the votes cast at the TSRE special meeting.

Recommendation of the TSRE Board

The TSRE Board recommends that TSRE stockholders vote FOR the proposal to approve one or more adjournments of the TSRE special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the Company Merger and the other transactions contemplated by the Merger Agreement.

 

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Other Business

At this time, TSRE does not intend to bring any other matters before the TSRE special meeting, and TSRE does not know of any matters to be brought before the TSRE special meeting by others. If, however, any other matters properly come before the TSRE special meeting, the persons named in the enclosed proxy, or their duly constituted substitutes, acting at the TSRE special meeting or any adjournment or postponement thereof will be deemed authorized to vote the shares represented thereby in accordance with the discretion of such persons or such substitutes on any such matter.

 

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THE MERGER

The following is a description of the material aspects of the Merger. While IRT and TSRE believe that the following description covers the material terms of the Merger, the description may not contain all of the information that is important to IRT stockholders and TSRE stockholders and is qualified in its entirety by reference to the Merger Agreement attached to this joint proxy statement/prospectus.

General

The IRT Board has unanimously declared advisable, and unanimously approved, the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement. The TSRE Board has declared advisable and approved the Merger Agreement and authorized the performance by TSRE thereunder. Pursuant to the Merger Agreement, (i) OP Merger Sub will be merged into TSR OP at the effective time of the Partnership Merger, with TSR OP continuing as the surviving entity, and (ii) TSRE will be merged into IRT LP LLC at the effective time of the Company Merger, with IRT LP LLC continuing as the surviving entity and a wholly-owned subsidiary of IRT As a result of the Merger, TSRE stockholders and holders of TSR OP Units will receive the Merger Consideration described below under “The Merger Agreement—Merger Consideration; Effects of the Merger.” Upon the closing of the Merger, IROP will own all of the limited partnership interests in TSR OP and IRT LP LLC will own the general partnership interest in TSR OP. Immediately following the consummation of the Merger, IRT will cause TSR OP to become a wholly-owned subsidiary of IROP.

Background of the Merger

TSRE was created out of Feldman Mall Properties, Inc. (“Feldman”), a regional mall REIT formed through an initial public offering and related formation transaction in 2004 that lost substantially all of its properties to foreclosure or distressed sale during the financial crisis. In June 2012, two separate funds contributed to Feldman thirteen apartment communities and four parcels of land capable of development in exchange for common stock representing approximately 97.0% of the outstanding common stock of Feldman. At that time, Feldman was re-named Trade Street Residential, Inc.

TSRE consummated its initial public offering in May 2013 and utilized the net proceeds from the offering to fund the acquisition of additional apartment communities. In January 2014, TSRE consummated a public rights offering and sale of $150.0 million of shares of its common stock, the net proceeds from which were used to pay the purchase price for additional acquired apartment communities. The rights offering was backstopped by Senator, and Senator acquired approximately 9.3 million shares of TSRE common stock, or approximately 25.6% of TSRE common stock outstanding after the rights offering. In addition, in the rights offering Monarch, acquired approximately 8.5 million shares of TSRE common stock, representing approximately 23.2% of TSRE common stock outstanding immediately after the rights offering. In exchange for its agreement to backstop the rights offering, Senator was granted the right to designate two members of the TSRE Board. Following the rights offering in January 2014, Senator designated two individuals to serve on the TSRE Board, and in February 2014 a representative of Monarch was appointed to the TSRE Board to fill a vacancy created by a director resignation.

In May 2014, at the regular quarterly meeting of the TSRE Board, TSRE’s then Chief Investment Officer informed the TSRE Board that in his opinion TSRE would be unlikely to find apartment communities to acquire that meet TSRE’s investment criteria and are also accretive to stockholders. The TSRE Board discussed the fact that as a micro-capitalization REIT with a fixed cost structure designed for a substantially larger company, TSRE’s blended cost of capital would likely remain above the 5.5% to 6.0% capitalization rates represented by the newer apartment communities that TSRE sought to acquire. In June 2014, the TSRE Board decided to retain an investment banking firm to assist the TSRE Board in evaluating TSRE’s strategic alternatives for maximizing stockholder value.

On June 19, 2014, following interviews with multiple investment banking firms that have experience in the REIT industry, TSRE executed an engagement letter with J.P. Morgan to act as a financial advisor to the TSRE Board

 

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in its evaluation of strategic alternatives to maximize stockholder value, and J.P. Morgan was authorized to approach, on a confidential basis, a limited number of multifamily companies who were most likely to be interested in some form of strategic transaction with TSRE.

Between July 1, 2014 and July 18, 2014, TSRE entered into confidentiality agreements with IRT, one other publicly-traded interested party (the “Second Interested Party”), and two other private multifamily companies. The TSRE Board, after consultation with J.P. Morgan, believed the foregoing companies would be the parties most interested in a business combination with TSRE. TSRE provided certain non-public information to each of those parties after July 18, 2014. Between July 18, 2014 and July 25, 2014, each of the foregoing companies provided verbal non-binding indications of interest in pursuing a business combination transaction with TSRE. During that period, IRT indicated that it would be interested in pursuing an all-cash business combination transaction with TSRE at a price per share of TSRE’s outstanding common stock of $8.25, subject to additional due diligence. The Second Interested Party indicated that it would be interested in pursuing an all-stock business combination transaction with TSRE at a price per share of TSRE’s outstanding common stock in the range of $8.00 and $8.25. The two private multifamily companies indicated an interest in pursuing an all-cash business combination transaction with TSRE at a price per share of TSRE’s outstanding common stock in the range of $7.25 to $7.50 per share. The TSRE Board determined that the prices indicated by the two private multifamily companies were, at that time, below a level acceptable to justify additional discussions.

The IRT Board held a telephonic meeting on July 31, 2014, at which IRT’s management described the status of IRT’s proposal to acquire TSRE to the IRT Board.

Between August 1, 2014 and August 8, 2014, TSRE and its advisors held discussions with each of IRT and the Second Interested Party regarding the price and structure of a potential business combination transaction. On August 8, 2014, both IRT and the Second Interested Party provided TSRE with non-binding verbal indications of interest in pursuing a business combination with TSRE. The revised non-binding price per share of TSRE’s outstanding common stock at which both IRT and the Second Interested Party indicated they would be willing to effect a business combination was $8.25; however, the proposed transaction structures were different. The Second Interested Party indicated its desire to pursue an all-stock merger transaction with TSRE at a fixed exchange ratio with a pricing collar, while IRT indicated its desire to pursue an all-cash transaction with TSRE contingent on raising additional equity capital and obtaining debt refinancing commitments. Both IRT and the Second Interested Party indicated the prices they were respectively willing to pay were conditioned on TSRE’s completion of a pipeline portfolio acquisition of newly-developed apartment communities for which TSRE had obtained acquisition letters of intent.

On August 12, 2014, the TSRE Board held its regular quarterly meeting with management, J.P. Morgan and Morrison & Foerster LLP, TSRE’s legal advisor (“Morrison & Foerster”). Representatives of J.P. Morgan presented preliminary financial analysis and described the non-binding verbal indications of interests received to date and the various communications that had occurred with each of IRT and the Second Interested Party. J.P. Morgan also presented the various strategic alternatives available to TSRE, as well as the potential execution risk associated with each alternative. After deliberations, the TSRE Board instructed J.P. Morgan to communicate with both IRT and the Second Interested Party that their indicated prices per share were less than the price that the TSRE Board believed would be acceptable to TSRE stockholders under current market conditions. In addition, J.P. Morgan was also instructed to communicate with IRT that IRT’s lack of committed financing placed it at a competitive disadvantage to the Second Interested Party with respect to a prospective business combination transaction with TSRE and encouraged IRT to secure a committed financing package in the near term.

On August 13, 2014, J.P. Morgan, on behalf of TSRE, had a telephone conversation with the management team of the Second Interested Party during which J.P. Morgan communicated the view of the TSRE Board that the proposed price per share from the Second Interested Party was inadequate. Subsequent to that telephone conversation, representatives of the Second Interested Party informed TSRE and its advisors that, based on its

 

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further due diligence review of TSRE’s assets, the costs of repaying certain TSRE debt, and market conditions generally, it may be interested in pursuing a business combination transaction with TSRE at a price per share of TSRE’s outstanding common stock of $7.62.

On August 18, 2014, J.P. Morgan, on behalf of TSRE, had a telephone conversation with certain members of the senior management team of IRT. On August 21, 2014, IRT, through its financial advisor, Deutsche Bank, communicated that its non-binding indication of interest was withdrawn and it was no longer interested in pursuing a business combination transaction with TSRE.

On October 6, 2014, the Second Interested Party informed TSRE and its advisors that it was no longer interested in a business combination with TSRE at any price.

On October 13, 2014, the TSRE Board held a telephonic special meeting during which the TSRE Board discussed the results of the strategic alternative review process. After a discussion of the results of the process, the TSRE Board agreed to reconvene in a few weeks to consider launching a formal, public and expanded process of evaluating all strategic alternatives.

On October 30, 2014, the TSRE Board held a special meeting in New York City to review TSRE’s current capital, operating and strategic position and to consider the continuation of exploration of strategic alternatives to maximize stockholder value. At the beginning of the meeting, a representative of Morrison & Foerster advised the members of the TSRE Board of their individual duties as directors of a Maryland corporation under Maryland law. J.P. Morgan made a preliminary presentation to the TSRE Board regarding (i) current multifamily REIT market fundamentals, (ii) a preliminary valuation of TSRE, (iii) the range of strategic alternatives to maximize stockholder value that might be available to TSRE, and (iv) an extensive list of parties that might have an interest in pursuing a transaction with TSRE designed to enhance stockholder value. The TSRE Board held a discussion about the following strategic alternatives (a) remaining an independent public company, (b) the potential sale of all or a significant portion of common stock in the company currently owned by Senator and Monarch and thereafter remaining an independent public company, (c) the potential merger or sale of 100% of the outstanding common stock of TSRE, (d) the reverse merger of TSRE with a larger and better capitalized REIT, and (e) the sale of all of TSRE’s assets pursuant to a plan of liquidation. Following J.P. Morgan’s presentation and the discussion, the TSRE Board unanimously agreed to continue its engagement of J.P. Morgan as TSRE’s financial advisor, to authorize J.P. Morgan to approach a broad range of potentially interested parties to a strategic transaction and to publicly announce that the TSRE Board had unanimously decided to engage in a process to evaluate strategic alternatives to maximize stockholder value.

On November 3, 2014, TSRE publicly announced that the TSRE Board had begun a review of strategic alternatives to enhance stockholder value, which could include (among other alternatives) a sale, merger, acquisition or other form of business combination, a sale or acquisition of assets and a debt or equity recapitalization. TSRE also publicly announced that it had engaged J.P. Morgan as its financial advisor and Morrison & Foerster as its legal advisor in connection with such review.

Between November 3, 2014 and December 10, 2014, J.P. Morgan, working with Morrison & Foerster and Richard H. Ross, TSRE’s chief executive officer, contacted 107 parties who J.P. Morgan believed might be interested in pursuing a strategic transaction with TSRE. Of those parties contacted, 47 parties executed a Non-Disclosure and Standstill Agreement (each, an “NDA”) with TSRE to facilitate confidential discussions regarding a potential transaction and to provide access to certain confidential information.

On December 10, 2014, the TSRE Board held a special telephonic meeting to receive an update regarding the initial phase of the TSRE Board process of reviewing strategic alternatives. Representatives from J.P. Morgan and Morrison & Foerster described the initial phase of the process, including (i) the negotiation and execution of NDAs with 47 parties, (ii) the process of providing certain confidential information to interested parties by

 

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means of a virtual data room and the volume of activity by interested parties in the virtual data room, (iii) feedback received from potential interested parties who had not submitted an indication of interest in pursuing a transaction, and (iv) the contents of the written indications of interest received from 11 separate interested parties.

As part of its presentation, J.P. Morgan reported the details of the 11 preliminary written non-binding indications of interest in pursuing a strategic transaction with TSRE. The proposed transaction structures included the merger or acquisition of 100% of TSRE’s outstanding common stock, acquisition of 100% of the assets of TSRE, acquisition of 75% of TSRE’s outstanding common stock, and reverse merger of an existing multifamily company into TSRE. Neither IRT nor the Second Interested Party submitted an indication of interest despite being invited to do so. The indicated prices per share of TSRE’s outstanding common stock (or implied prices per share with respect to Companies 8 through 11, all of whom proposed asset purchases) contained in the written non-binding indications of interest were:

 

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Company 1—$8.66 to $9.41

 

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Company 2—$8.14

 

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Company 3—$7.75

 

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Company 4—$7.50 to $7.75

 

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Company 5—$7.61

 

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Company 6—$7.25

 

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Company 7—$7.00

 

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Company 8—$7.96

 

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Company 9—$6.69

 

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Company 10—$4.78

 

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Company 11—$4.50

Members of the TSRE Board asked the J.P. Morgan representatives a number of questions regarding the reasons why certain parties did not submit indications of interest and regarding certain specific matters set forth in the indications of interest from those interested parties who submitted written indications of interest. It was noted that both Company 1 and Company 2 had proposed a transaction that would result in TSRE remaining in existence as a public company with less than 100% of TSRE’s outstanding common stock being acquired by the interested party in the proposed transaction. Members of the TSRE Board asked the J.P. Morgan and Morrison & Foerster representatives several questions regarding the relative benefits to TSRE’s stockholders and to Company 1 or Company 2 if less than 100% of TSRE’s outstanding common stock was acquired in a transaction and existing TSRE stockholders retained a significant minority of TSRE’s outstanding common stock that continued to be listed on the NASDAQ Global Market.

Following a discussion, the TSRE Board (i) instructed J.P. Morgan to make inquiries of Company 1 and Company 2 regarding their intentions for TSRE as a public company following a transaction and (ii) asked J.P. Morgan to develop a preliminary view regarding (a) the ongoing valuation of TSRE as a standalone controlled public company following such transaction and (b) the anticipated trading volume or other liquidity with respect to TSRE’s common stock following such transaction.

On December 12, 2014, the TSRE Board held a special telephonic meeting to receive an update regarding conversations with Company 1 and Company 2 about the questions posed by the TSRE Board at the December 10, 2014 special meeting and to define the process for the next phase of the TSRE Board’s review of strategic alternatives for maximizing stockholder value. J.P. Morgan reported that Company 1 had indicated it was willing to acquire 100% of TSRE’s outstanding common stock, but that the offer price per share of TSRE’s

 

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outstanding common stock previously indicated by Company 1 would be lower in such event. J.P. Morgan reported that Company 2 was unwilling to consider anything other than a transaction pursuant to which 25% of TSRE’s outstanding common stock remained outstanding and listed on the NASDAQ Global Market. The TSRE Board then held a discussion regarding the relative merits of the indications of interest received by TSRE and the potential risks posed by any transaction in which less than 100% of TSRE’s outstanding common stock was acquired and TSRE remained in existence as a public company.

Following the discussion, the TSRE Board agreed to move forward with Phase 2 of its evaluation of strategic alternatives to maximize stockholder value. The TSRE Board instructed J.P. Morgan to inform Company 1 and Company 2 that each of them was invited to participate in Phase 2 of the process of evaluating strategic alternatives and to instruct Company 3, Company 4, Company 5, Company 6, Company 7 and Company 8 that they could participate if they were able to increase their indicated price per share for TSRE’s outstanding common stock. Furthermore, in the case of Company 4, they were asked to consider an all-cash, fully financed offer and, in the case of Company 8, they were asked to structure their offer as a purchase of 100% of TSRE’s outstanding common stock, rather than their contemplated acquisition of TSRE’s assets.

Between December 12, 2014 and December 15, 2014, representatives of J.P. Morgan held numerous telephone conversations with each of the parties that had submitted an indication of interest following which Company 1, Company 2 and Company 3 were invited to review a broader range of confidential materials about TSRE, conduct site visits and schedule interviews with Mr. Ross and other members of TSRE management.

On December 16, 2014, TSRE received an indication of interest from a private REIT that owned a large number of apartment communities (the “Private REIT”). The Private REIT proposed a reverse merger transaction that provided no cash or other liquidity to TSRE’s stockholders. In addition, the Private REIT’s proposed transaction structure was complex, difficult to evaluate, appeared on its face to provide a lower price per share for TSRE’s outstanding common stock than the other alternatives and was inconsistent with the alternatives that the TSRE Board considered in evaluating potential alternatives. Accordingly, no further dialogue occurred with the Private REIT at that time.

On December 16, 2014, Company 8 informed TSRE that it was willing to pursue an acquisition of 100% of TSRE’s outstanding common stock at a price per share in excess of that indicated in its initial indication of interest. After informing the TSRE Board and receiving permission from the chairman of the TSRE Board and Mr. Ross, Company 8 was formally invited to participate in Phase 2 of the process.

On December 23, 2014, Company 1, who had presented the highest indicated price per share for TSRE’s outstanding common stock of all of the interested parties, contacted TSRE to inform it that Company 1 was no longer interested in a transaction to acquire all of TSRE’s outstanding common stock but would be interested in acquiring certain of TSRE’s assets. In response, TSRE requested that Company 1 send a revised proposal at their earliest convenience. On or about January 6, 2015, Company 1 revised their indicated price per share for TSRE’s outstanding common stock to $6.97 per share, but indicated that its financing situation was uncertain. Following this exchange, TSRE terminated discussions with Company 1.

On January 13, 2015, the TSRE Board held an informal call with J.P. Morgan, Morrison & Foerster, and management to receive an update on a report from J.P. Morgan regarding the status of the due diligence process being conducted by interested parties and the timing for obtaining best and final offers. J.P. Morgan reported that Company 1 had been removed from the process and Company 2, Company 3 and Company 8 continued to actively conduct due diligence. The TSRE Board gave instructions to send to Company 2, Company 3 and Company 8 a formal invitation to submit a best and final non-binding offer to acquire TSRE, which final non-binding offers would be due in February 2015.

On January 15 and 16, 2015, representatives of Company 2 and Company 3 met with Mr. Ross and other members of TSRE’s management team to discuss TSRE’s apartment communities and its financial condition and results of operations. Although invited to meet with TSRE’s management team, Company 8 declined to do so.

 

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On January 21, 2015, Company 8 informed TSRE that Company 8 was not prepared to submit a final offer in excess of $7.25 per share of TSRE’s outstanding common stock. TSRE advised Company 8 to continue its due diligence review and encouraged Company 8 to submit a written offer at the appointed time based on its additional due diligence.

On or about January 27, 2015, Company 2, Company 3 and Company 8 were provided a bid draft of a merger agreement prepared by Morrison & Foerster. Morrison & Foerster informed each interested party that it should submit a markup of the bid draft as well as a best and final non-binding bid for 100% of TSRE’s outstanding common stock by February 10, 2015.

On February 10, 2015, the Company reported to the TSRE Board that J.P. Morgan had received no written bids and no markups of the bid draft of the merger agreement. During this time, Company 3 verbally indicated that its current view on value was approximately $6.50 per share.

On February 23, 2015, at the quarterly meeting of the TSRE Board, after being advised by Morrison & Foerster of their duties as directors of a Maryland corporation under Maryland law, the TSRE Board received an update from J.P. Morgan about the latest phase of the TSRE Board’s strategic alternative review process, during which J.P. Morgan reported that no formal bids to acquire TSRE or markups of the bid draft of the merger agreement had been received and that Company 2 and Company 8 had formally withdrawn from the process. Company 3 continued to conduct due diligence, and two new parties had signed NDAs and had conducted some due diligence in the virtual data room, but had not made a formal proposal to acquire TSRE. The TSRE Board asked the J.P. Morgan representatives a number of questions regarding the reasons why certain parties did not submit indications of interest and feedback about TSRE that J.P. Morgan had received from the interested parties.

The TSRE Board instructed Mr. Ross and J.P. Morgan to begin evaluating certain alternatives to an all-cash transaction for 100% of TSRE’s outstanding common stock, including the possibility of a debt recapitalization with a special dividend to TSRE’s stockholders, the potential to recycle capital by selling non-strategic assets in non-core markets, and the possibility of a merger with Company 12, a publicly registered non-listed multifamily REIT who had not participated in the strategic alternative review process but had recently contacted members of the TSRE Board to express interest in a possible transaction. The TSRE Board held a discussion regarding remaining alternatives, including (i) a debt recapitalization with a special dividend to TSRE’s stockholders, (ii) the sale of non-strategic assets in non-core markets and utilizing net proceeds to acquire new strategic assets, (iii) a merger with Company 12, and (iv) discussing with parties who had previously indicated an interest in a strategic transaction with TSRE, including IRT, possible alternative transaction structures to an all-cash purchase of 100% of TSRE’s outstanding common stock. To streamline the review process, the TSRE Board appointed an ad hoc committee consisting of Mr. Ross, Mack D. Pridgen III, the chairman of the TSRE Board, and Michael Simanovsky, a member of the TSRE Board who was designated by Senator, to begin the process of contacting parties who might have an interest in different transaction structures and to report progress back to the TSRE Board.

Shortly after the February 23, 2015 meeting of the TSRE Board, representatives of J.P. Morgan and the ad hoc committee contacted Company 4, the Private REIT and another publicly registered non-listed multifamily company that had previously executed an NDA but had not submitted an indication of interest (“Company 13”), about their interest in a strategic transaction.

On March 4, 2015, the ad hoc committee members had a telephone conference with the chief executive officer of Company 13. On March 26, 2015, Mr. Ross provided Company 13 with additional due diligence materials regarding TSRE. On or about March 26, 2015, Company 13 communicated to Mr. Ross a verbal expression of interest in merging with TSRE at a valuation that reflected a premium to the likely fair market values of Company 13’s assets, taken as a whole, and/or a discount to TSRE’s net asset value. After consulting with the other members of the ad hoc committee and representatives of J.P. Morgan, Mr. Ross communicated to the chief executive officer of Company 13 that the TSRE Board was not interested in pursuing a merger transaction with Company 13 at the relative valuations proposed by Company 13.

 

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During the week of March 16, 2015, Company 4 contacted Mr. Ross and J.P. Morgan regarding a potential transaction. On March 24, 2015, Company 4 submitted a revised bid of $7.50 per share of TSRE’s outstanding common stock, however the ad hoc committee expressed concerned regarding Company 4’s proposed method of financing the cash portion of the proposed transaction with TSRE and their ability to enter into a transaction without financing contingencies.

On March 24, 2015, the ad hoc committee members had a telephone conference with representatives of Company 12 regarding potential transaction structures, and Company 12 stated its intention to submit a proposal to TSRE. Company 12 never submitted a formal proposal.

On March 27 and 28, 2015, Mr. Ross, as authorized by the ad hoc committee, had discussions with a key executive of Company 7 regarding a potential transaction. Company 7 stated at the time that it was finalizing its evaluation and expected to submit a proposal to the TSRE Board. These discussions did not subsequently result in any submission of a proposal by Company 7.

On March 27 and 28, 2015, Mr. Ross, as authorized by the ad hoc committee, had several discussions with Mr. Sebra, the chief financial officer of IRT, providing him with additional due diligence information about TSRE.

On April 1, 2015, TSRE received a written non-binding proposal from IRT to acquire 100% of TSRE’s outstanding common stock at a price of $7.60 per share payable 50% in cash and 50% in IRT common stock. IRT proposed a floating exchange ratio with a collar, with the number of shares of IRT common stock deliverable in the transaction to be determined based on a 20-day volume weighted average closing price (“VWAP”) of IRT common stock determined immediately prior to signing. The proposal did not mention financing and stated that it was submitted with the full support of IRT’s senior management team and the chairman of the IRT Board.

On April 2, 2015, Mr. Ross and representatives of J.P. Morgan had a telephone conference with Mr. Sebra and representatives of Deutsche Bank during which Mr. Ross communicated the ad hoc committee’s desire to gain a better understanding of IRT’s proposed method of financing the cash portion of the proposed transaction with TSRE and enter into a transaction without financing contingencies. Mr. Ross also discussed with Mr. Sebra IRT’s externally-managed structure, any internalization plans and other due diligence questions posed by both principals.

On April 3, 2015, Mr. Ross and representatives of J.P. Morgan had a telephone conference with Company 4 during which Mr. Ross communicated the ad hoc committee’s desire to gain a better understanding of Company 4’s proposed method of financing the cash portion of the proposed transaction with TSRE and enter into a transaction without financing contingencies. Company 4 subsequently informed TSRE that it was unable to meet the ad hoc committee’s request for entering into a transaction without financing contingencies, and TSRE terminated discussions with Company 4.

On April 7, 2015, Mr. Ross and representatives of J.P. Morgan had a telephone conference with Mr. Sebra and Farrell Ender, IRT’s President. During the telephone conference, J.P. Morgan advocated the ad hoc committee’s position that TSRE’s stockholders would hold a meaningful percentage of the outstanding common stock of IRT after consummation of a transaction and that it would be appropriate for IRT to increase the size of the IRT Board by two persons and add two directors designated by the TSRE Board. J.P. Morgan also expressed to the IRT executives that the TSRE Board would require a definitive financing commitment sufficient to fund the cash portion of the consideration payable to TSRE’s stockholders in any transaction.

The audit committee of the IRT Board held a telephonic meeting on April 9, 2015, at which IRT’s management reviewed the discussions it was having with TSRE’s management with respect to the proposed transaction.

The IRT Board held a telephonic meeting on April 13, 2015 to discuss the proposed merger with TSRE. At the meeting, Scott F. Schaeffer, IRT’s Chairman of the Board and Chief Executive Officer, described the contemplated terms, conditions and timing of the proposed merger. Mr. Schaeffer also discussed the background

 

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of, alternatives to, and anticipated strategic benefits of the proposed the merger, including key assumptions underlying IRT’s realization of these benefits, as well as the risks of the proposed merger. Following discussion regarding the proposed merger, Messrs. Schaeffer and Sebra addressed key financial metrics applicable to the proposed merger and various backstop financing alternatives and plans. After additional discussion, Mr. Schaeffer reviewed anticipated next steps and requested, on behalf of IRT’s management, to provide TSRE with a confidential, non-binding proposal. The IRT Board unanimously approved the submission by IRT of a proposal to TSRE containing the terms described during the meeting and authorized IRT’s management to continue its financial, legal and property due diligence and to proceed to negotiate terms of the proposed merger with TSRE and its representatives.

On April 13, 2015, IRT submitted a second written proposal that was identical in all material respects to its April 1, 2015 proposal except that it contained (i) a proposal that IRT expand the size of the IRT Board to seven and offer board seats to Mr. Pridgen and a highly qualified independent director mutually agreed upon by IRT and TSRE, (ii) IRT’s disclosure of its expected financing sources and sources and uses of funds, and (iii) IRT’s commitment to execute a definitive agreement and announce a transaction by May 6, 2015.

On April 14, 2015, the ad hoc committee and representatives of Morrison & Foerster and J.P. Morgan discussed the proposed terms in the April 13, 2015 IRT proposal. The ad hoc committee focused on the potential downside of a floating exchange ratio with a collar as proposed by IRT, the lack of a financing commitment for the cash portion of the acquisition consideration and IRT’s lack of willingness to permit TSRE to designate both new directors on an expanded IRT Board. The ad hoc committee instructed representatives of J.P. Morgan to inform IRT (i) that any agreement providing for 50% stock consideration to TSRE’s stockholders must include a termination right exercisable by the TSRE Board in the event of a substantial decrease in the price of IRT common stock between the signing of a definitive agreement and closing of the transaction and (ii) of TSRE’s desire (a) to enter into a transaction without a financing contingency for the cash portion of the consideration and (b) for TSRE to have the ability to designate two new IRT board members.

On April 15, 2015, Mr. Ross and J.P. Morgan had a telephone conference with Messrs. Sebra and Ender and representatives of Deutsche Bank during which J.P. Morgan proposed that any agreement be terminable by TSRE in the event the 20-day VWAP of IRT common stock on the day before closing had declined by more than 15% from the 20-day VWAP of IRT common stock on the day before execution of the definitive agreement. J.P. Morgan also informed Messrs. Sebra and Ender that TSRE continued to desire a transaction without a financing contingency for the cash portion of the consideration, and for TSRE to have the ability to designate both new IRT board members.

On April 16, 2015, IRT submitted a new written proposal to TSRE proposing a price per share of TSRE’s outstanding common stock of $7.60, payable 50% in cash and 50% in stock at a fixed exchange ratio per share determined by dividing $3.80 by the 20-day VWAP of IRT common stock on the day before execution of the definitive agreement. IRT proposed that any definitive agreement would be terminable by TSRE if any decline in the 20-day VWAP of IRT common stock, determined five days prior to closing the transaction, from the 20-day VWAP as of the time of execution of the definitive agreement was at least 15% greater than any decline over the same period in the MSCI US REIT Index (“RMZ”). IRT also proposed that if TSRE executed such termination right, TSRE would reimburse IRT for 100% of its transaction expenses up to $2.5 million and 50% of all transaction expenses in excess of $2.5 million, up to a cap of $5.0 million. IRT also proposed that it would execute a definitive agreement only if TSRE’s largest stockholders, Senator and Monarch, executed definitive agreements to vote for the proposed transaction, and would open its data room for TSRE due diligence of IRT only after those stockholders signed a standstill agreement. The modified proposal eliminated the increase in the size of the IRT Board and TSRE’s right to appoint new directors.

The TSRE Board held a special telephonic meeting on the afternoon of April 16, 2015 for the purpose of receiving an update from the ad hoc committee and representatives of J.P. Morgan regarding the status of the TSRE Board review of strategic alternatives for maximizing stockholder value. Mr. Ross informed the TSRE

 

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Board about the conversations and events occurring since the TSRE Board’s last meeting and provided a detailed review of the proposals and counter-proposals shared with IRT. Mr. Ross discussed the written proposal received earlier that morning, which had been provided to members of the TSRE Board in advance of the telephonic meeting. The J.P. Morgan representatives informed the TSRE Board that shortly before the meeting, IRT, through Deutsche Bank, had requested a modification to the written proposal providing IRT with the option to increase the amount of cash consideration in the proposed transaction to as much as 60% of total consideration. The J.P. Morgan representatives then discussed with the TSRE Board the conformity of the IRT proposal with the terms of comparable transactions, noting that the termination right provided to TSRE upon a material decline in the price of IRT’s common stock relative to the RMZ was beneficial to TSRE and its stockholders. The J.P. Morgan representatives also updated the TSRE Board on IRT’s financing alternatives and plans with respect to funding the cash portion of the acquisition consideration and that Deutsche Bank had informed J.P. Morgan that IRT expected to have a commitment for a term loan and commitments to refinance certain of TSRE’s first mortgage debt prior to executing a definitive agreement.

The TSRE Board then held a discussion regarding the IRT proposal, during which members of the TSRE Board asked numerous questions of Mr. Ross, the J.P. Morgan representatives and the Morrison & Foerster representative. The TSRE Board requested that J.P. Morgan request a further modification of the IRT proposal to reduce from 15% to 12.5% the percentage decline in the price of IRT common stock relative to the RMZ as a trigger for TSRE’s termination right, to request a voting agreement from RAIT and to further discuss with IRT the potential nominees for the two new seats on the IRT Board.

Prior to taking any action, the TSRE Board discussed the fact that Nirmal Roy, one of the TSRE directors, was employed by a fund manager who had sizable positions in the common stock of both TSRE and IRT. The TSRE Board, in consultation with Morrison & Foerster and with the unqualified consent of Mr. Roy, determined that Mr. Roy would be recused from all votes by the TSRE Board and would generally not participate in deliberations regarding a potential transaction with IRT.

The TSRE Board, with Mr. Roy abstaining, authorized the ad hoc committee to continue negotiating terms with IRT, using the earlier proposal from IRT as a basis, and directed Morrison & Foerster to begin drafting a definitive merger agreement.

Immediately after the telephonic meeting of the TSRE Board, Mr. Ross and representatives of J.P. Morgan had a telephone conference with Mr. Sebra and Deutsche Bank to communicate the TSRE Board’s proposed modifications to IRT’s earlier proposal. A few hours later, IRT sent to TSRE a new written proposal identical to the one sent earlier in the day but proposing that IRT have the right to increase the amount of cash consideration to 60% of the total transaction consideration, with the election of the amount of cash occurring five days prior to closing. IRT rejected the request to lower from 15% to 12.5% the relative IRT stock price decline necessary to trigger TSRE’s termination right. The ability of TSRE to designate two new members of the IRT Board was not addressed at that time.

On April 17, 2015, Mr. Ross met with Messrs. Sebra and Ender in IRT’s office in Philadelphia, Pennsylvania to discuss diligence-related items in connection with the proposed merger.

Between April 17, 2015 and April 30, 2015, members of TSRE’s management team and representatives of Morrison & Foerster conducted a due diligence review of IRT, and IRT’s management team and representatives of Pepper Hamilton LLP (“Pepper Hamilton”), IRT’s legal adviser, completed their due diligence review of TSRE, including a review of TSRE’s debt obligations and the ability to prepay or refinance certain of those obligations.

On April 20, 2015, representatives of Morrison & Foerster provided to all parties an initial draft of an Agreement and Plan of Merger (the “Proposed Merger Agreement”). Under the Proposed Merger Agreement, IRT would acquire 100% of TSRE’s outstanding common stock and 100% of the outstanding TSR OP Units for a price of

 

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$7.60 per share, payable 50% to 60% in cash and 40% to 50% in either shares of IRT common stock (payable to holders of TSRE common stock) or IROP Units (payable to holders of TSR OP Units, other than TSRE and its subsidiaries). The Proposed Merger Agreement stated that the proposed Company Merger was intended to qualify as a reorganization under Section 368(a) of the Code for U.S. federal income tax purposes. In addition to the terms specified in the final IRT written proposal, including TSRE’s termination right in the event of a disproportionate decline in the price of IRT’s common stock between the execution of the merger agreement and closing, the Proposed Merger Agreement contained two terms that had not been discussed by the parties or covered in IRT’s final written proposal: (i) a proposed termination fee of $12.0 million payable by TSRE if it terminated the merger agreement to pursue a superior transaction or the TSRE Board withdrew its recommendation and TSRE ultimately consummated a superior transaction; and (ii) a proposed reverse termination fee of $40.0 million if IRT failed to consummate the merger after all of the conditions to IRT’s obligation to effect the merger had been satisfied. The Proposed Merger Agreement did not provide IRT with a financing contingency and permitted TSRE to seek specific performance as well as the reverse termination fee in the event IRT failed to close the transaction. The Proposed Merger Agreement also required the appointment of two new members of the IRT Board at the time of closing, whose names were not specified in the Proposed Merger Agreement. Finally, the Proposed Merger Agreement permitted TSRE to continue paying its regular quarterly dividend to stockholders.

The IRT Board held a telephonic meeting on April 24, 2015. At this meeting, a representative of Deutsche Bank provided the IRT Board with an update on the status of the proposed merger, including a discussion of the key terms of a non-binding term sheet for the proposed merger, and reviewed certain preliminary financial information relating to TSRE with the IRT Board. In addition, IRT’s management provided the IRT Board with an overview of its duties under Maryland law, as well as an update on various backstop financing alternatives for the proposed merger.

On April 27, 2015, Pepper Hamilton, on behalf of IRT, distributed to TSRE, J.P. Morgan and Morrison & Foerster a markup of the Proposed Merger Agreement. In addition to proposed language changes involving the structure of the proposed Company Merger as a reorganization under Section 368(a) of the Code for U.S. federal income tax purposes, the IRT markup of the Proposed Merger Agreement proposed certain financing conditions to closing, sought IRT’s ability to terminate the merger agreement if such financing conditions were not met without the payment of a reverse termination fee and proposed a reduction of both TSRE’s termination fee and IRT’s reverse termination fee to $9.0 million. IRT also requested that Senator and Monarch execute lockup agreements precluding their selling of shares of IRT common stock above certain volume limitations for 180 days after consummation of the merger.

On April 30, 2015, the TSRE Board held its quarterly meeting. During the meeting, representatives of J.P. Morgan provided the TSRE Board with a summary of the strategic alternative review process from June 2, 2014 through the receipt of the final IRT written proposal on April 16, 2015, including a summary of declines in indicated prices (or withdrawals from the process, in the case of Company 2) as interested parties continued to evaluate TSRE and its assets during the due diligence phase of the process, as well as information regarding reasons why certain parties declined to make definitive proposals to acquire TSRE. The J.P. Morgan representatives then summarized the IRT proposal, which had been assimilated into the Proposed Merger Agreement circulated by Morrison & Foerster, and presented an updated preliminary financial analysis that addressed financial ramifications of the proposed merger to TSRE’s stockholders. The TSRE Board asked representatives of J.P. Morgan and Morrison & Foerster a number of questions regarding their analysis and IRT’s ability to finance the cash portion of the merger consideration. The TSRE Board directed J.P. Morgan and the ad hoc committee to continue to request the ability to designate two new members of the IRT Board at the time of closing of the Merger.

On April 30, 2015, representatives of Morrison & Foerster delivered to Pepper Hamilton, IRT and Deutsche Bank an issues list with respect to the Proposed Merger Agreement (the “Issues List”). On the morning of May 1, 2015, representatives of Morrison & Foerster, Pepper Hamilton, J.P. Morgan and Deutsche Bank held a

 

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conference call to discuss the Issues List, during which call the parties discussed changes to certain representations, warranties, covenants and conditions, and all parties discussed certain remaining business issues.

On May 4, 2015, the TSRE Board held a special meeting in New York City during which Messrs. Schaeffer, Ender and Sebra, comprising the entire senior management team of IRT, made a presentation to the TSRE Board about IRT, its apartment communities, its growth plans and strategy, its management structure, which included a discussion of a proposed change in the external management fee paid by IRT from an asset based fee to an equity based fee, its capital plans and its rationale behind pursuing a business combination with TSRE. Members of the TSRE Board asked the IRT management team a number of questions about the condition of their apartment communities, their financing plans and their capital expenditure needs. Following the departure of the IRT management team, the TSRE Board held a general discussion about the IRT management team and the information they had gathered during the meeting and agreed, with Mr. Roy abstaining, to continue pursuit of a merger transaction with IRT.

The IRT Board held a telephonic meeting on May 4, 2015. At this meeting, IRT’s management provided the IRT Board with an update on the status of the proposed merger. A representative of Deutsche Bank then provided an update on the status of the negotiations of the terms of the proposed merger and a report on activity and pricing developments with respect to IRT common stock. After discussions with management and Deutsche Bank regarding the effect such pricing developments may have on the proposed merger, the IRT Board determined that IRT needed to renegotiate with TSRE the reference price per share for the purpose of calculating the exchange ratio for the stock portion of the consideration to be paid by IRT in the merger.

Early in the afternoon on May 5, 2015, after two trading days of significant declines in the price of IRT common stock on heavy trading volume, Mr. Schaeffer informed Mr. Ross that IRT would have difficulty proceeding with a merger transaction under the proposed structure given the material decline in IRT’s common stock trading price. Mr. Schaeffer suggested that a reference price for fixing the exchange ratio for the IRT stock portion of the merger consideration be $9.40 per share, which was IRT’s trading price at the time discussions commenced with TSRE in April. TSRE’s ad hoc committee, joined by representatives of J.P. Morgan and Morrison & Foerster, held a telephone conference later that afternoon and authorized J.P. Morgan and Mr. Ross to propose to IRT that the exchange ratio on the portion of the merger consideration payable in stock be based on a fixed price of $9.00 per share of IRT common stock, rather than the 20-day VWAP upon which the parties had tentatively agreed to base the exchange ratio, provided that IRT would agree to (i) remove all financing conditions, (ii) pay a $25.0 million reverse termination fee in the event IRT terminated the merger agreement or failed to consummate the merger after all of the conditions to IRT’s obligation to effect the merger had been satisfied, (iii) permit TSRE to terminate the merger agreement if the Company Merger failed to qualify as a reorganization under Section 368(a) of the Code for U.S. federal income tax purposes, (iv) add Messrs. Pridgen and Ross to the IRT Board at the time of closing of the merger, (v) reduce the lockup periods for Senator and Monarch to 90 days and facilitate block trades for Senator and Monarch during the period of their lockup agreements, (vi) change IRT’s external management fee structure based on IRT’s proposal to an equity based fee from an asset based fee, and (vii) request that RAIT participate at its current ownership level in any equity offering by IRT to raise funding for the merger. In addition, IRT was informed that TSRE would not execute a definitive merger agreement until IRT had procured commitments that, in the judgment of the TSRE Board and representatives of, J.P. Morgan and Morrison & Foerster, provided cash financing sufficient to consummate the merger. Mr. Ross and J.P. Morgan conveyed that proposal to Mr. Schaeffer and Deutsche Bank during the evening of May 5, 2015.

Between May 6, 2015 and the evening of May 7, 2015, Messrs. Ross and Schaeffer had several telephone conferences regarding the reference price per share of IRT common stock upon which the exchange ratio would be fixed. Mr. Ross continued to insist on a $9.00 per share reference price, while Mr. Schaeffer continued to advocate a $9.40 per share reference price. Representatives of Deutsche Bank informed representatives of J.P. Morgan that IRT agreed to remove all financing conditions, pay a $25.0 million reverse termination fee in the event IRT terminated the merger agreement or failed to consummate the merger after all of the conditions to IRT’s obligation to effect the merger had been satisfied, permit TSRE to terminate the merger agreement if the

 

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Company Merger failed to qualify as a reorganization under Section 368(a) of the Code for U.S. federal income tax purposes, add Messrs. Pridgen and Ross to the IRT Board, facilitate block trades by Senator and Monarch during any lockup period, use its best efforts to induce RAIT to participate in any equity offering by IRT to raise capital to fund the cash portion of the merger consideration and approach the Advisor to amend the advisory fees payable by IRT pursuant to the advisory agreement to 1.5% of IRT equity as opposed to 0.75% of total IRT assets.

The IRT Board held a telephonic meeting on May 7, 2015, at which IRT’s management and representatives of Deutsche Bank provided the IRT Board with an update on the status of the proposed merger and various backstop financing alternatives for the merger. This status update included a review of the terms of the proposed merger that were being negotiated, including (i) the exchange ratio, (ii) TSRE’s ability to make distributions to its stockholders prior to the closing of the Merger, (iii) board seats for TSRE designees, (iv) any reverse termination fee payable by IRT, (v) the consequences if the Company Merger failed to qualify as a reorganization under Section 368(a) of the Code and as a result the consideration to be received by TSRE’s stockholders in the proposed merger were to be fully taxable, (vi) the terms of the lock-up agreements with Senator and Monarch, and (vii) whether RAIT would participate in any equity raise by IRT used to finance the proposed merger. Following the status update, the IRT Board authorized IRT’s management to conduct negotiations to set the reference price per share for the purpose of calculating the exchange ratio.

On the morning of May 8, 2015, representatives of J.P. Morgan and Deutsche Bank held another call to discuss the reference price per share of IRT common stock to be used to fix the exchange ratio for the IRT stock portion of the merger consideration and discussed a compromise of $9.25 per share of IRT common stock. In the early afternoon on May 8, representatives of Deutsche Bank informed representatives of J.P. Morgan that IRT would agree to a reference price per share of $9.25 for the purpose of calculating the exchange ratio.

During the afternoon of May 8, 2015, the TSRE Board held a special telephonic meeting to hear a report from the ad hoc committee and representatives of J.P. Morgan and Morrison & Foerster regarding the discussions between the parties since May 4, 2015. Mr. Ross and the J.P. Morgan representatives described the decline in IRT’s stock price on heavy trading volume on May 4, 2015 and May 5, 2015 and the subsequent communication by IRT to TSRE that it would not pursue a transaction where the exchange ratio for the stock consideration deliverable in the merger was based on a 20-day VWAP. Mr. Ross and J.P. Morgan described the negotiations that had occurred since IRT had delivered that message and the current IRT proposal. After a detailed discussion, the TSRE Board, with Mr. Roy abstaining, authorized Mr. Ross and Morrison & Foerster to finalize the merger agreement for consideration by the TSRE Board at a special meeting to be held the evening of May 10, 2015.

Late in the afternoon on May 8, 2015, representatives of Morrison & Foerster, on behalf of TSRE, delivered to IRT, Pepper Hamilton and Deutsche Bank a new draft of the Proposed Merger Agreement. Between the time such draft was distributed and late afternoon on May 10, 2015, representatives of Morrison & Foerster and Pepper Hamilton negotiated the language in the new draft of the Proposed Merger Agreement. In addition, Mr. Ross and representatives of J.P. Morgan and Morrison & Foerster had several discussions with IRT, Pepper Hamilton and Deutsche Bank regarding IRT’s financing commitment, the status of certain TSRE indebtedness and the ability of IRT to consummate the merger under the existing financing commitment and in light of certain restrictive provisions in certain debt agreements with respect to certain of TSRE’s apartment communities. In the afternoon of May 10, 2015, the ad hoc committee had a telephone conference, attended by representatives of Morrison & Foerster and representatives of J.P. Morgan, including representatives with substantial expertise in the commercial mortgage-backed securities market, during which the ad hoc committee discussed the likelihood that the IRT financing commitment would provide adequate funding to consummate the merger and that two of TSRE’s mortgage loan providers would permit the assumption by IRT of certain indebtedness secured by certain of TSRE’s apartment communities. The ad hoc committee was satisfied that the IRT financing commitment was sufficient to provide the funding required by IRT to consummate the merger and that TSRE’s lenders were likely to accommodate IRT’s acquisition of TSRE.

A telephonic special meeting of the IRT Board was held on May 10, 2015 beginning at approximately 8:00 p.m. EDT. All members of IRT’s Board were present at the meeting. Members of IRT’s management were present,

 

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along with representatives of Deutsche Bank, Pepper Hamilton and Duane Morris LLP (“Duane Morris”), IRT’s Maryland counsel. Prior to the meeting, the members of the IRT Board were provided with the latest draft of the Proposed Merger Agreement, a summary of the principal terms of the latest draft of the Proposed Merger Agreement, and a presentation prepared by representatives of Deutsche Bank regarding its financial analyses of the proposed merger. At the beginning of the meeting, Messrs. Ender and Sebra provided an overview of the business rationale for the proposed merger, the benefits and risks of the proposed merger and the financial model being used to evaluate the proposed merger. Next, representatives of Duane Morris advised members of the IRT Board of their duties under Maryland law. Then, representatives of Pepper Hamilton provided the IRT Board with a summary of the principal terms of the Proposed Merger Agreement and voting agreements and lock up agreements with Senator and Monarch that would be entered into in connection with the Proposed Merger Agreement and reviewed anticipated filings that would have to be made with the SEC in connection with the proposed merger. Members of the IRT Board asked certain questions regarding the terms of the Proposed Merger Agreement.

Representatives of Deutsche Bank then reviewed with the IRT Board the analyses Deutsche Bank had prepared relating to the proposed merger. IRT’s management and representatives of Deutsche Bank also described to the IRT Board the terms of the proposed financing with DBNY and the terms of the commitment letters. The IRT Board proceeded to discuss the terms of the commitment letters with Deutsche Bank, Pepper Hamilton and IRT’s management.

Following further discussion regarding the proposed merger, the IRT Board determined that that the Proposed Merger Agreement and the transactions provided for therein or contemplated thereby, including the Merger, were on terms and conditions that are advisable and fair to, and in the best interests of, IRT and its stockholders, and approved the Proposed Merger Agreement and the transactions provided for therein or contemplated thereby, including the Merger. The IRT Board further resolved that the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) be submitted to the holders of IRT common stock for their approval at a special meeting of the stockholders, the date, place and time of, and record date for which, would be determined at a later date by a special acquisition committee of the IRT Board. The IRT Board further resolved that it recommends that the holders of IRT common stock vote to approve the issuance of shares of IRT common stock in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger). Additionally, the IRT Board passed resolutions approving, among other things, (i) an increase in the size of the IRT Board from five members to seven members and the election of Messrs. Ross and Pridgen to fill the vacancies resulting from such increase upon the closing of the Merger, (ii) IRT’s entry into debt financing commitments and related agreements and the assumption of, amendment to, and refinancing of any and all of the indebtedness of TSRE and its subsidiaries, each in connection with financing the Merger, and (iii) an underwritten registered public offering of up to 15 million shares of IRT common stock.

A telephonic special meeting of the TSRE Board was held on May 10, 2015 beginning at approximately 9:00 p.m. EDT. Mr. Ross and representatives of J.P. Morgan and Morrison & Foerster attended the meeting. Prior to the meeting, the members of the TSRE Board were provided with the latest draft of the Proposed Merger Agreement, a summary of the principal terms of the latest draft of the Proposed Merger Agreement, a presentation by representatives of J.P. Morgan regarding its analysis of IRT’s debt financing commitment and a presentation by representatives of J.P. Morgan regarding its financial analysis of the proposed merger consideration. At the beginning of the meeting, representatives of Morrison & Foerster advised members of the TSRE Board of their duties under Maryland law. Then, representatives of Morrison & Foerster provided the TSRE Board with a summary of the Proposed Merger Agreement and a legal analysis regarding IRT’s debt financing commitment. Members of the TSRE Board asked certain questions regarding the terms of the Proposed Merger Agreement and were provided answers by the Morrison & Foerster representatives.

Representatives of J.P. Morgan reviewed with the TSRE Board its presentation regarding IRT’s debt financing commitment and the valuation of TSRE.

 

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The TSRE Board discussed the process followed by the TSRE Board since June 2, 2014 in reviewing TSRE’s strategic alternatives to maximize stockholder value, noting that most interested parties had either elected not to make offers to engage in a strategic transaction with TSRE or had indicated a price that was below the value of the consideration to be delivered by IRT in the merger. Following the foregoing discussions, the TSRE Board, with Mr. Roy abstaining, determined that the merger of TSRE with a wholly-owned subsidiary of IRT and the Merger of TSR OP with a wholly-owned subsidiary of IROP as provided in the Proposed Merger Agreement was advisable and in the best interest of TSRE and its stockholders, and approved the Partnership Merger and the Merger Agreement. The TSRE Board further resolved that the Company Merger be submitted to the holders of TSRE common stock for their approval at a special meeting of the stockholders, the date, place and time of, and record date for which, would be determined at a later date by the TSRE Board. The TSRE Board resolved that it recommends that the holders of TSRE common stock vote to approve the Company Merger and, to the extent required, any other transaction contemplated by the Merger Agreement, and directed TSRE to include this recommendation in the proxy statement to be disseminated in connection with the special meeting of the holders of TSRE common stock to approve the Company Merger.

Early in the morning of May 11, 2015, TSRE and IRT executed the Merger Agreement, and the parties issued a joint press release announcing the execution of the Merger Agreement.

Recommendation of the IRT Board and Its Reasons for the Merger

In evaluating the Merger, the IRT Board consulted with its legal and financial advisors and IRT’s management and, after consideration, the IRT Board has unanimously determined that the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement, including the issuance of shares of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger), are fair to and in the best interests of IRT and its stockholders. The IRT Board has unanimously approved and adopted the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement, including the issuance of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger).

THE IRT BOARD UNANIMOUSLY RECOMMENDS THAT IRT STOCKHOLDERS VOTE FOR THE ISSUANCE OF SHARES OF IRT COMMON STOCK IN THE MERGER (INCLUDING IRT COMMON STOCK ISSUABLE UPON REDEMPTION OF IROP UNITS ISSUED IN THE PARTNERSHIP MERGER).

In deciding to declare advisable and approve and adopt the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement, including the issuance of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger), and to recommend that IRT stockholders vote to approve the issuance of shares of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger), the IRT Board considered various factors that it viewed as supporting its decision, including the following material factors described below:

 

•

Strategic Benefits. The IRT Board expects that the Merger will provide a number of significant potential strategic opportunities and benefits including the following:

 

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the combined scale of IRT and TSRE, with 50 properties and 14,044 units, is expected to provide an enhanced platform to pursue accretive acquisitions and transformational opportunities;

 

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the combination of IRT and TSRE is expected to result in improved operating statistics and portfolio quality, including increased portfolio occupancy, average base rents and operating margins; a reduced average property age from 25 years to 20 years; and enhanced geographic diversification;

 

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as the market capitalization of the Combined Company will be almost double that of IRT, the stockholders of the Combined Company are expected to benefit from enhanced liquidity;

 

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•

the addition of TSRE’s highly-complementary portfolio will expand IRT’s geographic diversity into targeted regions in eight new markets, and also enhance IRT’s presence in three existing markets;

 

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the Combined Company is expected to have meaningful revenue and cost synergy potential, including expected net operating income accretion and significant savings in general and administrative expenses;

 

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the transaction is expected to be accretive to 2016 core funds from operations per share, with meaningful identified run-rate cost savings and net operating income upside;

 

•

as a result of its larger size, stronger balance sheet and greater access to multiple forms of capital, the Combined Company is expected to result in a lower cost of capital over the long term than IRT on a stand-alone basis;

 

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the benefits of greater operating efficiencies and lower cost of capital, if realized, will allow the Combined Company to compete more effectively for acquisition and development opportunities, while improving the financial impact of those transactions; and

 

•

the expectation that the Combined Company will have enhanced dividend safety and growth potential.

 

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Efficiency of a Portfolio Acquisition. The opportunity to acquire through a single transaction a portfolio of high-quality properties could not be easily replicated through acquisitions of individual assets.

 

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Exchange Ratio Not Dependent on Market Conditions. The IRT Board also considered that the Exchange Ratio, which will not fluctuate as a result of changes in the market prices of shares of IRT common stock or TSRE common stock, and, in fact, can change only at IRT’s discretion and cannot increase, provides certainty, and even some control on the part of IRT, as to the respective pro forma percentage ownership of the Combined Company.

 

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Familiarity with Businesses. The IRT Board considered its knowledge of the business, operations, financial condition, earnings and prospects of IRT and TSRE, taking into account the results of IRT’s due diligence review of TSRE, as well as its knowledge of the current and prospective environment in which IRT and TSRE operate, including economic and market conditions.

 

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High Likelihood of Consummation. The IRT Board considered the commitment on the part of both parties to complete the Merger as reflected in their respective obligations under the terms of the Merger Agreement, and the likelihood that the stockholder approvals needed to complete the Merger would be obtained in a timely manner.

The IRT Board also considered a variety of risks and other potentially negative factors concerning the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement. These factors included:

 

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although IRT has entered into the DB Commitment Letter for the DB Term Loan Facility, the closing of the Merger is not conditioned on IRT’s ability to obtain financing for the transaction and IRT is required to use its reasonable best efforts to obtain alternate funding if necessary to complete the Merger;

 

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risks related to the additional indebtedness that IRT will be required to incur to complete the Merger, including the risk of increasing IRT’s vulnerability to general adverse economic and industry conditions, limiting IRT’s ability to obtain additional financing as needed in the future, requiring the use of a substantial portion of IRT’s cash flow from operations for the payment of principal and interest on such indebtedness (thereby reducing IRT’s ability to use cash flow to fund normal expenses and other operating requirements), limiting IRT’s flexibility in planning for (or reacting to) changes in IRT’s business and industry and putting IRT at a disadvantage compared to competitors with less indebtedness;

 

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•

the risk of diverting management focus and resources from operational matters and other strategic opportunities while working to implement the Merger;

 

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the risk that, notwithstanding the likelihood of the Merger being completed, the Merger may not be completed, or that completion may be unduly delayed, including the effect of the pendency of the Merger and the effect such failure to be completed may have on the trading price of IRT common stock and IRT’s operating results, particularly in light of the costs incurred in connection with the transaction;

 

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the risk that the anticipated strategic and financial benefits of the Merger may not be fully realized or not realized at all;

 

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the risk of other potential difficulties in integrating the two companies and their respective operations;

 

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the substantial costs to be incurred in connection with the transaction, including the transaction expenses arising from the Merger and the costs of integrating the businesses of IRT and TSRE;

 

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consummation of the Merger could trigger a mandatory prepayment of certain TSRE debt unless such debt can be assumed or appropriate lender consents or waivers are received. Moreover, certain TSRE debt cannot be prepaid and can only be assumed if conditions are met, thus requiring meeting such conditions for any assumption of such debt or receiving lender consents or waivers in order to avoid a default on this debt upon the consummation of the Merger. If those conditions cannot be met or such consents and waivers cannot be obtained prior to consummation of the Merger, the existing debt of TSRE might need to be repaid and/or refinanced. This may result in higher than-anticipated transaction expenses to IRT;

 

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the fact that the ownership percentage of holders of IRT common stock in the Combined Company will be diluted by the Merger;

 

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the restrictions on the conduct of IRT’s business prior to the completion of the Merger, which could delay or prevent IRT from undertaking business opportunities that may arise or certain other specified actions it would otherwise take with respect to the operations of IRT absent the pending completion of the Merger

 

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IRT may be required to pay a reverse termination fee of $25.0 million or reimburse up to $5.0 million of TSRE’s expenses if the Merger Agreement is terminated under certain circumstances; and

 

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other matters described under the section “Risk Factors” and “Cautionary Statement Concerning Forward-Looking Statements.”

This discussion of the foregoing information and material factors considered by the IRT Board in reaching its conclusion and recommendations is not intended to be exhaustive and is not provided in any specific order or ranking. In view of the wide variety of factors considered by the IRT Board in evaluating the Merger Agreement and the transactions contemplated by it, including the issuance of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger), and the complexity of these matters, the IRT Board did not find it practicable to, and did not attempt to, quantify, rank or otherwise assign relative weight to those factors. In addition, different members of the IRT Board may have given different weight to different factors. The IRT Board did not reach any specific conclusion with respect to any of the factors considered and instead conducted an overall review of such factors and determined that, in the aggregate, the potential benefits considered outweighed the potential risks or possible negative consequences of approving the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement, including the issuance of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger).

This explanation of the reasoning of the IRT Board and all other information presented in this section is forward-looking in nature and, therefore, should be read in light of the factors discussed in the section entitled “Cautionary Statement Concerning Forward-Looking Statements.”

 

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Recommendation of the TSRE Board and Its Reasons for the Merger

The TSRE Board has approved the Merger Agreement and determined that the Merger and the other transactions contemplated by the Merger Agreement are advisable and in the best interests of TSRE and its stockholders. The decision of the TSRE Board to enter into the Merger Agreement was the result of careful consideration by the TSRE Board.

In reaching its decision to approve, and to recommend that TSRE’s stockholders approve, the Merger and the other transactions contemplated by the Merger Agreement, the TSRE Board consulted with TSRE’s executive management team as well as TSRE’s outside legal and financial advisers. The TSRE Board considered a number of factors, including the following material factors that the TSRE Board viewed as supporting its decision to approve the Merger and the other transactions contemplated by the Merger Agreement and to recommend that TSRE stockholders approve the Company Merger and the other transactions contemplated by the Merger Agreement based upon numerous factors, including the following material factors:

 

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Attractive Valuation: The effective Company Merger Consideration of $7.60 per share of TSRE common stock as of the date of the Merger Agreement represented an approximate 6.1% to 6.9% premium (the range depending on the Per Share Cash Amount determined by IRT) over the closing price of TSRE common stock on October 31, 2015, the date the TSRE Board announced that it was undertaking an exploration of strategic alternatives, and an approximate 3.4% to 4.2% premium (the range depending on the Per Share Cash Amount determined by IRT) over the closing price of TSRE common stock on May 8, 2015, the last trading day prior the announcement of the Merger Agreement.

 

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Mix of Consideration: TSRE stockholders will receive between 40% and 50% of the Company Merger Consideration in IRT common stock and 50% to 60% of the Company Merger Consideration in cash. As a result, TSRE stockholders will receive both immediate cash value and an opportunity to continue to participate in the Combined Company as stockholders.

 

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Strategic Benefits: Because TSRE stockholders will receive a portion of the Company Merger Consideration in the form of IRT common stock, TSRE stockholders will be able to participate in potential strategic opportunities and benefits including the following:

 

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the scale of the Combined Company, with 50 properties and 14,044 units, is expected to provide a stronger platform to pursue accretive acquisitions and transformational opportunities;

 

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the Combined Company is expected to have meaningful revenue and cost synergy potential, including expected net operating income accretion and significant savings in general and administrative expenses;

 

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as a result of its larger size, greater public float, stronger balance sheet and greater access to multiple forms of capital, the Combined Company has the potential to improve its cost of capital over the long term compared to TSRE on a stand-alone basis;

 

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the benefits of greater operating efficiencies and improved cost of capital, if realized, will allow the Combined Company to compete more effectively for acquisition and development opportunities, while improving the financial impact of those transactions;

 

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Messrs. Ross and Pridgen will become members of the IRT Board upon closing of the Merger, allowing for stewardship over the Combined Company by board members familiar with TSRE’s portfolio and the multi-family business more generally; and

 

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the expectation that the Combined Company will have enhanced dividend safety and growth potential.

 

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Fixed Exchange Ratio: Because the IRT common stock portion of the Company Merger Consideration is based on a fixed exchange ratio, TSRE stockholders will benefit from any increase in the trading price of IRT’s common stock before the closing of the Merger.

 

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•

Significant Downside Protection: Because between 50% and 60% of the Company Merger Consideration is payable to TSRE stockholders in cash, and because the TSRE Board negotiated the ability to terminate the Merger Agreement if a decline in the price of IRT’s common stock exceeds a decline in the MSCI US REIT Index by 15% or more, TSRE stockholders are protected from the full effect of any decrease in the trading price of IRT common stock between the date of the Merger Agreement and the closing of the Merger.

 

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Robust Process: Based upon a thorough review by the TSRE Board of strategic alternatives and other alternative transactions available to TSRE, the TSRE Board believed that the Merger was more favorable to TSRE stockholders than the other potential strategic alternatives that were available to TSRE.

 

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Stock Consideration Not Currently Taxable: The Merger is currently intended to qualify as a “reorganization” within the meaning of Section 368(a) of the Code and is, therefore, not expected to be taxable to TSRE stockholders with respect to the IRT common stock portion of their Company Merger Consideration.

 

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High Likelihood of Consummation. The TSRE Board considered the commitment on the part of both parties to complete the Merger as reflected in their respective obligations under the terms of the Merger Agreement, and the likelihood that the stockholder approvals needed to complete the Merger would be obtained in a timely manner in part as a result of the voting agreements.

 

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Terms and Conditions of the Merger Agreement: The TSRE Board considered the terms of the Merger Agreement, including that:

 

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TSRE has the right under certain circumstances to consider and respond to an unsolicited written acquisition proposal, and, if after consultation with legal and financial advisers, the TSRE Board determines in good faith that such acquisition proposal is a superior proposal and determines, after consultation with legal counsel, that failure to take such action would be inconsistent with the duties of members of the TSRE Board under applicable law, and IRT chooses not to negotiate improvements to the Merger Agreement to make it superior, TSRE may enter into an agreement with respect to such superior proposal and terminate the Merger Agreement upon the payment of a termination fee of $12.0 million;

 

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in the event that the TSRE Board undertakes an adverse recommendation change, TSRE may terminate the Merger Agreement upon the payment of up to $5.0 million of IRT’s expenses or, under certain circumstances, a termination fee of $12.0 million;

 

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IRT does not have any financing condition with respect to its obligation to consummate the Merger; and

 

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IRT is required to pay TSRE a $25.0 million reverse termination fee if the Merger Agreement is terminated (i) by either IRT or TSRE because (A) the Merger has not been consummated on or before October 15, 2015 (subject to extension by IRT in certain limited circumstances) or (B) if all conditions of IRT to consummate the Merger are satisfied (other than those conditions that by their nature are to be satisfied at the closing, provided that such conditions are reasonably capable of being satisfied) and IRT is unable to satisfy its obligation to effect the closing at such time because it is unable to obtain the financing that is necessary to pay the cash portion of the Merger Consideration, or (ii) the closing of the Merger has not occurred within two business days after TSRE has delivered written notice to IRT that all conditions of IRT to consummate the Merger are satisfied (other than those conditions that by their terms are to be satisfied at the closing of the Merger, but subject to the satisfaction of such conditions at such time) and TSRE is ready, willing and able to effect the closing of the Merger.

 

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The TSRE Board also considered a variety of risks and other potentially negative factors concerning the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement. These factors included:

 

•

the risk that, because the IRT common stock portion of the Company Merger Consideration is based upon a fixed exchange ratio, TSRE stockholders will be adversely affected by any decrease in the trading price of IRT common stock between the announcement of the Merger Agreement and the closing of the Merger, including as a result of the potential dilutive effect of any offering of common stock conducted by IRT in order to help finance the cash portion of the Merger Consideration;

 

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the risk that the market perception of IRT’s external management structure could have a negative effect on the trading of IRT common stock following the Merger;

 

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the risk that the Merger may not be completed or may be unduly delayed because conditions to closing may not be satisfied, including:

 

•

the approval by TSRE stockholders of the Merger and the other transactions contemplated by the Merger Agreement;

 

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the approval by IRT stockholders of the issuance of the IRT common stock issuable in the Merger (including shares of IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger);

 

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the condition that certain lender consents and loan amendments be obtained; and

 

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other conditions outside of TSRE’s control;

 

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the risk that the Combined Company may not realize all of the potential strategic benefits and/or revenue and cost synergies of the Merger described above or otherwise;

 

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the risks posed by the additional indebtedness to be incurred by IRT in connection with its financing of cash portion of the Merger Consideration;

 

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the risks posed by IRT’s potential inability to obtain all financing necessary to consummate the Merger;

 

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the significant costs involved in connection with entering into and completing the Merger and the substantial time and effort of TSRE’s executive management team required to consummate the Merger and the related disruptions in the operation of the TSRE business;

 

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the restrictions on the conduct of TSRE’s business contained in the Merger Agreement, which could delay or prevent TSRE from undertaking certain activities and capitalizing on certain business opportunities that may arise prior to consummation of the Merger;

 

•

the pending Merger or failure to complete the Merger may cause substantial and irreparable harm to relationships with TSRE’s employees, tenants, service providers and other business associates and could divert the attention of TSRE’s executive management team and employees away from the day-to-day operation of the TSRE business;

 

•

the inability to solicit competing acquisition proposals and the possibility that a $12.0 million termination fee payable by TSRE upon termination of the Merger Agreement in certain circumstances could discourage potential bidders from making a competing offer to acquire TSRE; and

 

•

some of TSRE’s directors and executive officers may have interests in the Merger that are different from, or in addition to, the interests of TSRE stockholders.

Although the foregoing discussion sets forth the material factors considered by the TSRE Board in reaching its recommendation, it may not include all of the factors considered by the TSRE Board, and each director may have considered different factors or given different weights to different factors. In view of the variety of factors and the amount of information considered, the TSRE Board did not find it practicable to, and did not, make specific assessments of, quantify or otherwise assign relative weights to the specific factors considered in reaching its recommendation. The TSRE Board realized that there can be no assurance about future results, including results

 

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expected or considered in the factors above. However, the TSRE Board concluded that the potential positive factors described above significantly outweighed the neutral and negative factors described above. The recommendation was made after consideration of all of the factors as a whole.

THE TSRE BOARD HAS APPROVED THE MERGER AGREEMENT AND DETERMINED THAT THE MERGER AND THE OTHER TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT ARE ADVISABLE AND IN THE BEST INTERESTS OF TSRE AND ITS STOCKHOLDERS. ACCORDINGLY, THE TSRE BOARD RECOMMENDS THAT TSRE STOCKHOLDERS VOTE “FOR” APPROVAL OF THE COMPANY MERGER AND THE OTHER TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.

In considering the recommendation of the TSRE Board to approve the Company Merger and the other transactions contemplated by the Merger Agreement, you should be aware that certain of TSRE’s directors and officers have arrangements that cause them to have interests in the transaction that are different from, or are in addition to, the interests of TSRE stockholders generally. See “—Interests of TSRE’s Directors and Executive Officers in the Merger” beginning on page 81.

The explanation of the reasoning of the TSRE Board and all other information presented in this section are forward-looking in nature and, therefore, should be read in light of the factors discussed in the section entitled “Cautionary Statement Concerning Forward-Looking Statements.”

Interests of IRT’s Directors, Executive Officers and Affiliates in the Merger

Holders of IRT common stock should be aware that certain of IRT’s affiliates have interests in the Merger and the other transactions contemplated by the Merger Agreement that are different from, or in addition to, the interests of holders of IRT common stock generally, which may create potential conflicts of interest or the appearance thereof. The IRT Board was aware of these interests, among other matters, in approving the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement, and in recommending that holders of IRT common stock vote for the proposal to approve the issuance of shares of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger). These interests include those discussed below.

Concurrently with the execution and delivery of the Merger Agreement, TSRE entered into a voting agreement with RAIT, which owned approximately 22.8% of the outstanding shares of IRT common stock as of May 8, 2015. Pursuant to the voting agreement, RAIT has agreed to vote in favor of the issuance of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger), subject to the terms and conditions of contained in the voting agreement. For more information about this voting agreement, see “Voting Agreements” beginning on page 129.

The Advisor is a wholly-owned subsidiary of RAIT, and RAIT owns a 75% controlling equity interest in IRT’s property manager, RAIT Residential. The Advisor is responsible for managing IRT’s day-to-day business operations and identifying properties for IRT to acquire, while RAIT Residential provides services to IRT in connection with the rental, leasing, operation and management of its properties. All of the executive officers of IRT are also employees of RAIT. Each of Scott F. Schaeffer, IRT’s Chairman of the Board and Chief Executive Officer, and James J. Sebra, IRT’s Chief Financial Officer and Treasurer, also hold the same positions at RAIT. IRT’s executive officers have been granted restricted stock awards and stock appreciation rights under IRT’s Long Term Incentive Plan. IRT has an advisory agreement with the Advisor described below and expects to amend the terms of this advisory agreement to extend the term and modify the method to calculate the Advisor’s advisory fee as described below. While the changes to such methods would not necessarily increase the amount of advisory fees paid to the Advisor, due to the increased size of the Combined Company, the Advisor expects to receive increased advisory fees if the Merger is completed. IRT expects to have RAIT Residential serve as the property manager for each of the properties acquired from TSRE as a result of the Merger. While the terms of each property management agreement are expected to be substantially similar to those IRT has used for its

 

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properties currently in IRT’s portfolio, due to the increased size of the Combined Company, RAIT Residential expects to receive increased property management fees if the Merger is completed.

IRT has the following management agreements with affiliates of RAIT for the provision of management and advisory services to IRT: (i) an advisory agreement with the Advisor and (ii) property management agreements with RAIT Residential with respect to each of IRT’s properties. Pursuant to the terms of the advisory agreement, the Advisor is compensated as follows:

 

•

A quarterly base management fee of 0.1875% of average gross real estate assets as of the last day of such quarter. Average gross real estate assets means the average of the aggregate book value of IRT’s real estate assets before reserves for depreciation or other similar noncash reserves and excluding the book values attributable to the eight properties that were acquired prior to August 16, 2013. IRT computes average gross real estate assets by taking the average of these book values at the end of each month during the quarter for which it is calculating the fee.

 

•

An incentive fee based on IRT’s pre-incentive fee core funds from operations (“Core FFO”), a non-GAAP measure, as defined in the advisory agreement. The incentive fee is computed at the end of each fiscal quarter as follows:

 

•

no incentive fee in any fiscal quarter in which IRT’s pre-incentive fee Core FFO does not exceed the hurdle rate of 1.75% (7% annualized) of the cumulative gross amount of equity capital IRT has obtained; and

 

•

20% of the amount of IRT’s pre-incentive fee Core FFO that exceeds 1.75% (7% annualized) of the cumulative gross proceeds from the issuance of equity securities we have obtained.

By October 1, 2015, IRT intends to amend the advisory agreement such that the Advisor will receive (i) a quarterly base management fee of 0.375% of IRT’s cumulative equity raised and (ii) a quarterly incentive fee equal to 20% of Core FFO in excess of $0.20 per share. The amendment to the advisory agreement would also extend the term of the advisory agreement until 2020.

The completion of the Merger by IRT will increase IRT’s average gross real estate assets because of the addition of new properties, and is expected to increase its Core FFO. Under the proposed amended terms of the advisory agreement, if IRT sells IRT common stock as a means of financing the cash portion of the Merger Consideration, the amount of equity raised may be included in the equity used to calculate the base management fee thereunder and result in increased base management fees paid to the Advisor. Therefore, the completion of the Merger is expected to increase the fees to be paid by IRT to the Advisor under the advisory agreement, either as it currently exists or as it is proposed to be amended.

Pursuant to the property management agreements, IRT pays RAIT Residential property management and leasing fees on a monthly basis of an amount up to 4.0% of the gross revenues from the property for each month. In addition to these base management fees, RAIT Residential may be entitled to receive customary due diligence fees, construction management fees, lease-up fees and other similar fees for additional services to be provided by RAIT Residential at the request of IRT. Each property management agreement has an initial one year term, subject to automatic one-year renewals unless either party gives prior notice of its desire to terminate the management agreement. Following the completion of the Merger, IRT anticipates entering into new property management agreements for each of the new properties being acquired in the Merger, which will increase the fees paid by IRT to RAIT Residential.

Interests of TSRE’s Directors and Executive Officers in the Company Merger

In considering the recommendation of the TSRE Board to approve the Company Merger and the other transactions contemplated by the Merger Agreement, TSRE stockholders should be aware that the directors and executive officers of TSRE have certain interests in the Company Merger that may be different from, or in

 

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addition to, the interests of TSRE stockholders generally. These interests may create potential conflicts of interest. The TSRE Board was aware of those interests and considered them, among other matters, in reaching its decision to approve the Merger Agreement.

Pursuant to the terms of their employment agreements with TSRE, Richard H. Ross, TSRE’s Chief Executive Officer, and Randall C. Eberline, TSRE’s Chief Accounting Officer, will be entitled to: (i) all accrued but unpaid wages through the termination date; (ii) all accrued but unused and unpaid vacation; (iii) any earned but unpaid bonuses relating to the prior year; (iv) all approved, but unreimbursed, business expenses; (v) if the executive is participating in TSRE’s group medical, vision and dental plan immediately prior to the date of termination, a lump sum payment equal to 18 times (or such lesser period that the executive (and his eligible dependents) are entitled to under COBRA) the amount of monthly employer contribution that TSRE made to an issuer to provide medical, vision and dental insurance to the executive (and his eligible dependents) in the month immediately preceding the date of termination; and (vi) a separation payment equal to the sum of three times the executive’s (a) then current base salary and (b) average annual bonus for the two annual bonus periods completed prior to the termination (if the change in control occurs prior to the date the executive was eligible to earn two bonuses, the average bonus for the two-year period will be deemed to be the executive’s target bonus in the year of termination), with such separation payment being payable in a lump sum within 60 days from the date of termination, subject to the executive executing a release that becomes effective and certain other conditions. Additionally all of the executive’s outstanding unvested equity-based awards (including restricted stock and restricted stock units) granted pursuant to TSRE’s Amended and Restated 2013 Equity Incentive Plan will vest and become immediately exercisable and unrestricted, without any action by the TSRE Board or any committee thereof.

Concurrently with the execution and delivery of the Merger Agreement, IRT entered into separate voting agreements with funds affiliated with Senator and Monarch, which collectively owned approximately 48.3% of the outstanding shares of TSRE common stock as of the TSRE Record Date. Pursuant to the voting agreements, Senator and Monarch have each agreed to vote in favor of the Company Merger and the other transactions contemplated by the Merger Agreement, subject to the terms and conditions of the applicable voting agreements, as described under “Voting Agreements” beginning on page 129. In addition, Senator and Monarch each also entered into a lock-up agreement in favor of IRT. Pursuant to the terms of the lock-up agreements, and subject to certain exceptions, each of Senator and Monarch are subject to restrictions on the sale of its shares of IRT common stock for a period of 180 days following the closing of the Merger. Michael Simanovsky and Adam Sklar, each a member of the TSRE Board, are employees of Senator and Monarch, respectively.

 

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Security Ownership of TSRE’s Directors and Executive Officers and Current Beneficial Owners

The following table sets forth information regarding the beneficial ownership of TSRE common stock as of the TSRE Record Date by:

 

•

each person known by TSRE to be the beneficial owner of more than 5% of the outstanding shares of TSRE based solely upon the amounts and percentages contained in the public filings of such persons;

 

•

each of TSRE’s officers and directors; and

 

•

all of TSRE’s officers and directors as a group.

 

Name of Beneficial Owner		Common Stock Beneficially Owned				Percent of Common Stock(1)
5% Stockholders
Senator Investment Group LP			9,316,055				25.31	%
Senator Global Opportunity Fund LP			8,299,002				22.55	%
Senator Global Opportunity Intermediate Fund LP			1,017,053				2.76	%
Monarch Alternative Capital LP			8,452,678				22.97	%
Trade Street Property Fund I, LP Liquidating Trust			3,466,534				9.42	%
Forward Management, LLC			2,777,693				7.55	%
Michael Baumann			2,640,432				6.75	%
Private Management Group, Inc.			1,964,777				5.34	%
Westport Capital Partners, LLC			1,926,309				5.23	%
BHR Capital, LLC			1,857,624				5.05	%
NEOs:
Richard H. Ross			99,091				*
Randall C. Eberline			19,102				*
Directors:
Randolph C. Coley			24,281				*
Mack D. Pridgen III			86,994				*
Nirmal Roy			—				—
Michael Simanovsky			—				—
Adam Sklar			—				—
All NEOs and directors as a group (seven persons)			229,468				*	%

 

*	Less than 1%

(1)

Based on 36,799,570 shares of TSRE’s common stock outstanding as of the TSRE Record Date. Beneficial ownership is determined in accordance with the rules of the SEC and includes voting or investment power with respect to shares of common stock. Shares of TSRE common stock that may be issued upon the redemption of TSR OP Units are deemed outstanding for computing the percentage ownership of the person, entity or group holding the securities but are not deemed outstanding for computing the percentage ownership of any other person.

Regulatory Approvals Required for the Merger

IRT and TSRE are not aware of any material federal or state regulatory requirements that must be complied with, or regulatory approvals that must be obtained, in connection with the Merger or the other transactions contemplated by the Merger Agreement.

Litigation Relating to the Merger

On June 11, 2015, three purported stockholders filed a complaint against TSRE and the members of the TSRE Board in the Circuit Court of Maryland for Baltimore City. On July 15, 2015, the plaintiffs amended their

 

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complaint and added Senator, Monarch and BHR as defendants. The amended complaint purports to assert class action claims alleging that the members of the TSRE Board breached their fiduciary duties to TSRE and TSRE’s minority stockholders by approving the Merger for inadequate consideration, that the process leading up to the Merger was flawed, and that three directors of TSRE, by virtue of their affiliations with certain stockholders of TSRE, engaged in an alleged self-interested scheme to force the sale of TSRE. The amended complaint alleges that the stockholder defendants aided and abetted these alleged violations and were unjustly enriched by the Merger. Among other relief, the complaint seeks compensatory damages, together with pre- and post-judgment interest; a finding that the individual director defendants are liable for breaching their fiduciary duties; an order requiring that the directors affiliated with the stockholder defendants disgorge all profits, compensation and other benefits obtained by them as a result of their conduct in connection with the Merger; and an award of the plaintiffs’ costs and disbursements of this action, including attorney’s fees. The amended complaint does not seek an injunction against the stockholder vote or the closing of the Merger. The deadline for an answer or other responsive pleading by the defendants has not yet passed. TSRE and the director defendants intend to vigorously defend against the claim.

Accounting Treatment

IRT prepares its financial statements in accordance with GAAP. The Merger will be accounted for by applying the acquisition method, which requires the identification of the acquirer, the determination of the acquisition date, the recognition and measurement, at fair value, of the identifiable assets acquired, liabilities assumed and any noncontrolling interest in the consolidated subsidiaries of the acquiree and recognition and measurement of goodwill or a gain from a bargain purchase. IRT will be considered the accounting acquirer and will therefore, recognize and measure, at fair value, the identifiable assets acquired, liabilities assumed and any noncontrolling interests in the consolidated subsidiaries of TSRE, and IRT will recognize and measure any goodwill and any gain from a bargain purchase, in each case, upon completion of the Merger.

Exchange of Shares in the Merger

IRT has appointed American Stock Transfer & Trust Company (the “Exchange Agent”) to act as the exchange agent and payment agent for the exchange of shares of TSRE common stock for shares of IRT common stock and the payment of the cash consideration and cash in lieu of any fractional shares of IRT common stock. As promptly as practicable after the effective time of the Company Merger, the Exchange Agent will send to each holder of record of shares of TSRE common stock at the effective time of the Company Merger who holds shares of TSRE common stock in certificated or book-entry form a letter of transmittal and instructions for effecting the exchange of TSRE common stock certificates or book-entry shares for the Merger Consideration the holder is entitled to receive under the Merger Agreement. Upon surrender of stock certificates or book-entry shares for cancellation along with the executed letter of transmittal and other documents described in the instructions, a TSRE stockholder will receive any whole shares of IRT common stock such holder is entitled to receive and the cash consideration and cash in lieu of any fractional shares of IRT common stock such holder is entitled to receive. After the effective time of the Company Merger, TSRE will not register any transfers of shares of TSRE common stock.

IRT stockholders need not take any action with respect to their stock certificates or book-entry shares.

Dividends

The Merger Agreement permits IRT to pay (i) monthly distributions of up to $0.06 per share of IRT common stock, including for any partial month ending on the Effective Date, (ii) monthly distributions of up to $0.06 per IROP Unit, and (iii) any distribution that is required to maintain its REIT qualification. The Merger Agreement permits TSRE to pay (i) quarterly distributions of up to $0.095 per share of TSRE common stock for the quarter ending June 30, 2015 and for each quarter or partial quarter thereafter ending on or prior to the effective time of the Company Merger, (ii) a distribution per TSR OP Unit in the same amount as any distribution per share made

 

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with respect to TSRE common stock, and (iii) any distribution that is required to maintain its REIT qualification. Following the closing of the Merger, IRT expects to continue its current dividend policy for common stockholders of the Combined Company, subject to the discretion of the Combined Company’s board of directors, which reserves the right to change the Combined Company’s dividend policy at any time and for any reason. See “Risk Factors—Risks Related to an Investment in the Combined Company’s Common Stock—The Combined Company cannot assure you that it will be able to continue paying dividends at or above the rate currently paid by IRT and TSRE” on page 38.

Listing of IRT Common Stock

It is a condition to each party’s obligation to complete the Merger that the shares of IRT common stock issuable in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) be approved for listing on the NYSE MKT, subject to official notice of issuance. IRT has agreed to use its reasonable best efforts to cause the shares of IRT common stock to be issued in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) to be approved for listing on the NYSE MKT, subject to official notice of issuance.

Delisting and Deregistration of TSRE Common Stock

After the Merger is completed, the shares of TSRE common stock currently listed on the NASDAQ Global Market will cease to be listed on the NASDAQ Global Market and will be deregistered under the Exchange Act.

 

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THE MERGER AGREEMENT

This section of this joint proxy statement/prospectus summarizes the material provisions of the Merger Agreement. As a stockholder, you are not a third party beneficiary of the Merger Agreement and therefore you may not directly enforce any of its terms and conditions.

This summary may not contain all of the information about the Merger Agreement that is important to you. IRT and TSRE urge you to carefully read the full text of the Merger Agreement because it is the legal document that governs the Merger. The Merger Agreement is not intended to provide you with any factual information about IRT or TSRE. In particular, the assertions embodied in the representations and warranties contained in the Merger Agreement (and summarized below) are qualified by information each of IRT and TSRE filed with the SEC prior to the effective date of the Merger Agreement, as well as by certain disclosure letters each of the parties delivered to the other in connection with the signing of the Merger Agreement, which modify, qualify and create exceptions to the representations and warranties set forth in the Merger Agreement. Moreover, some of those representations and warranties may not be accurate or complete as of any specified date, may apply contractual standards of materiality in a way that is different from what may be viewed as material by investors or that is different from standards of materiality generally applicable under the U.S. federal securities laws or may not be intended as statements of fact, but rather as a way of allocating risk among the parties to the Merger Agreement. The representations and warranties and other provisions of the Merger Agreement and the description of such provisions in this joint proxy statement/prospectus should not be read alone but instead should be read in conjunction with the other information contained in the reports, statements and filings that each of IRT and TSRE file with the SEC and the other information in this joint proxy statement/prospectus.

IRT and TSRE acknowledge that, notwithstanding the inclusion of the foregoing cautionary statements, each of them is responsible for considering whether additional specific disclosures of material information regarding material contractual provisions are required to make the statements in this joint proxy statement/prospectus not misleading.

Form, Effective Time and Closing of the Merger

The Merger Agreement provides for: (i) the merger of OP Merger Sub into TSR OP at the effective time of the Partnership Merger, with TSR OP continuing as the surviving entity (the “Partnership Merger”), and (ii) the merger of TSRE into IRT LP LLC at the effective time of the Company Merger, with IRT LP LLC continuing as the surviving entity and a wholly-owned subsidiary of IRT (the “Company Merger” and, together with the Partnership Merger, the “Merger”). The Partnership Merger will become effective upon the certificate of merger with respect to the Partnership Merger being duly filed with the Secretary of State of the State of Delaware. The Company Merger will become effective upon the filing of the articles of merger with respect to the Company Merger being duly filed with the State Department of Assessments and Taxation of the State of Maryland and the certificate of merger with respect to the Company Merger being duly filed with the Secretary of State of the State of Delaware. Upon the closing of the Partnership Merger, IROP will own all of the limited partnership interests in TSR OP and IRT LP LLC will own the general partnership interest in TSR OP. Immediately following the consummation of the Merger, IRT will cause TSR OP to become a wholly-owned subsidiary of IROP.

The Merger Agreement provides that the closing of the Company Merger will take place at 9:29 a.m. Eastern Time at the offices of Morrison & Foerster LLP in Washington, D.C. on the second business day after the satisfaction or waiver of the conditions to closing (described below under “—Conditions to Completion of the Merger”) set forth in the Merger Agreement (other than those conditions that by their nature are to be satisfied at the closing), or at such other place, date and time as IRT and TSRE may agree in writing.

Board of Directors of the Combined Company

As of the effective time of the Company Merger, the board of directors of the Combined Company will be increased to seven members, with the five current IRT directors, Scott F. Schaeffer, William C. Dunkelberg,

 

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Robert F. McCadden, DeForest B. Soaries, Jr., and Sharon M. Tsao, continuing as directors of the Combined Company. Scott F. Schaeffer, Chairman of the IRT Board, will serve as Chairman of the Board for the Combined Company. The IRT Board will fill the two newly created vacancies by appointing to the IRT Board, as of the effective time of the Company Merger, Richard H. Ross and Mack D. Pridgen III, to serve until the next annual meeting of the Combined Company’s stockholders (and until their successors have been duly elected and qualified).

Merger Consideration; Effects of the Merger

Merger Consideration

At the effective time of the Company Merger, by virtue of the Company Merger and without any action on the part of any party to the Merger Agreement, the holders of TSRE common stock, or any other person, each issued and outstanding share of TSRE common stock (other than shares held by IRT, any subsidiary of IRT, or any subsidiary of TSRE as of immediately prior to the effective time of the Company Merger) will be automatically converted into the right to receive the following consideration (the “Company Merger Consideration”):

 

(i)

an amount in cash equal to the “Per Share Cash Amount.” The “Per Share Cash Amount” shall initially equal $3.80. IRT may, by delivering written notice to TSRE at least two business days prior to the date of the TSRE special meeting, elect to increase the Per Share Cash Amount from $3.80 to an amount that, at the time of such election, would not cause the stock portion of the Merger Consideration (with the value of the stock portion of the Merger Consideration calculated using the closing price of IRT common stock on the NYSE MKT on the trading day immediately prior to the date the election notice is given) to be less than 40% of the value of the total Merger Consideration; provided, however, that if (a) IRT makes such an election to increase the Per Share Cash Amount, (b) the stock portion of the Merger Consideration on the closing date of the Merger (with the value of the stock portion of the Merger Consideration calculated using the closing price of IRT common stock on the NYSE MKT on the trading day immediately prior to the closing date of the Merger) would be less than 40% of the value of the total Merger Consideration, and (c) TSRE does not exercise its right to terminate the Merger Agreement, then the Per Share Cash Amount will be reduced so that the cash portion of the Merger Consideration will equal 60% of the value of the total Merger Consideration on the closing date of the Merger (with the value of the stock portion of the Merger Consideration calculated using the closing price of IRT common stock on the NYSE MKT on the trading day immediately prior to the closing date of the Merger), rounded down to the nearest cent; and

 

(ii)

a number of shares of IRT common stock equal to the quotient determined by dividing (a) $7.60 less the Per Share Cash Amount, by (b) $9.25, and rounding the result to the nearest 1/10,000 (the “Exchange Ratio”).

At the effective time of the Partnership Merger, by virtue of the Partnership Merger and without any action on the part of any party to the Merger Agreement, the holders of TSR OP Units, or any other person, each issued and outstanding TSR OP Unit (other than TSR OP Units held by TSRE or any wholly-owned subsidiary of TSRE as of immediately prior to the effective time of the Partnership Merger) will be automatically converted into the right to receive the following consideration (the “Partnership Merger Consideration” and, together with the Company Merger Consideration, the “Merger Consideration”):

 

(i)

an amount in cash equal to the Per Share Cash Amount; and

 

(ii)

a number of IROP Units equal to Exchange Ratio, together with exchange rights associated with such IROP Units substantially similar to the exchange rights previously granted to other limited partners of IROP.

No fractional shares of IRT common stock or fractional IROP Units will be issued, but instead holders of TSRE common stock or TSR OP Units will receive cash, without interest, in an amount equal to the product of (i) such

 

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fractional part of a share of IRT common stock or fractional part of an IROP Unit multiplied by (ii) the per share closing price of IRT common stock on the NYSE MKT on the last trading day prior to the closing date of the Merger.

The following table depicts the total value of the Merger Consideration a holder of TSRE common stock will receive based on various elections that IRT can make regarding the Per Share Cash Amount at a number of assumed per share prices of IRT common stock at the time the Merger is consummated. The table that follows sets forth the Per Share Cash Amount, the resulting Exchange Ratio (rounded for illustration purposes), and the value of the total Merger Consideration holders of TSRE common stock will receive if the price per share of IRT common stock on the closing date of the Merger is $7.00, $7.50, $8.00, $8.50, $9.00, $9.50 and $10.00. The amounts depicted in the following table are intended to be illustrative only and do not purport to include the exact value of the Merger Consideration holders of TSRE common stock will receive in the Merger, which will depend on the exact Per Share Cash Amount that IRT elects and the exact price of IRT common stock on the closing date of the Merger.

 

Per Share Cash Amount		Exchange Ratio(1)		Value of Merger Consideration if IRT Stock Price is $7.00		Value of Merger Consideration if IRT Stock Price is $7.50		Value of Merger Consideration if IRT Stock Price is $8.00		Value of Merger Consideration if IRT Stock Price is $8.50		Value of Merger Consideration if IRT Stock Price is $9.00		Value of Merger Consideration if IRT Stock Price is $9.50		Value of Merger Consideration if IRT Stock Price is $10.00
$3.80		0.4108		$6.68		$6.88		$7.09		$7.29		$7.50		$7.70		$7.91
$3.95		0.3946		$6.71		$6.91		$7.11		$7.30		$7.50		$7.70		$7.90
$4.10		0.3784		$6.75		$6.94		$7.13		$7.32		$7.51		$7.69		$7.88
$4.25		0.3622		$6.79		$6.97		$7.15		$7.33		$7.51		$7.69		$7.87
$4.40		0.3459		$6.82		$6.99		$7.17		$7.34		$7.51		$7.69		$7.86
$4.56		0.3286		$6.86		$7.02		$7.19		$7.35		$7.52		$7.68		$7.85

 

(1)

The Exchange Ratio represents the number of shares of IRT common stock that a holder of TSRE common stock will receive in exchange for each share of TSRE common stock they own and equals the quotient determined by dividing (a) $7.60 less the Per Share Cash Amount, by (b) $9.25, and rounding the result to the nearest 1/10,000. The Exchange Ratio is dependent solely on the Per Share Cash Amount elected by IRT and will not fluctuate as a result of changes in the market price of IRT common stock.

Procedures for Surrendering Certificates for TSRE Common Stock

The conversion of shares of TSRE common stock into the right to receive the Company Merger Consideration will occur automatically at the effective time of the Company Merger. In accordance with the Merger Agreement, IRT has appointed an exchange agent to handle the payment and delivery of the Company Merger Consideration (including cash in lieu of any fractional shares). Prior to the effective time of the Company Merger, IRT will deliver to the exchange agent evidence of the IRT common stock in book-entry form sufficient to pay the stock portion of the Company Merger Consideration and cash in an amount sufficient to pay for the cash portion of the Company Merger Consideration and any cash to be delivered in lieu of fractional shares. As soon as reasonably practicable after the effective time of the Company Merger, but in no event later than three business days thereafter, IRT will cause the exchange agent to mail to each record holder of shares of TSRE common stock, a letter of transmittal and instructions explaining how to surrender certificates for TSRE common stock to the exchange agent.

Each holder of shares of TSRE common stock that surrenders its stock certificate to the exchange agent together with a duly completed letter of transmittal and any other required documentation, and each person that holds shares of TSRE common stock in book-entry form, will receive the Company Merger Consideration due to such holder (including cash in lieu of any fractional shares). After the effective time of the Company Merger, each certificate that previously represented shares of TSRE common stock will only represent the right to receive the Company Merger Consideration into which those shares of TSRE common stock have been converted.

 

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Withholding

All payments under the Merger Agreement are subject to applicable withholding requirements.

Appraisal Rights

No dissenters’ or appraisal rights, or rights of objecting stockholders under Title 3 Subtitle 2 of the MGCL, will be available to holders of TSRE common stock with respect to the Company Merger or the other transactions contemplated by the Merger Agreement.

Representations and Warranties

The Merger Agreement contains a number of representations and warranties made by TSRE and TSR OP, on the one hand, and IRT, IROP, OP Merger Sub and IRT LP LLC, on the other hand. The representations and warranties were made by the parties as of the date of the Merger Agreement and do not survive the effective time of the Company Merger. Certain of these representations and warranties are subject to specified exceptions and qualifications contained in the Merger Agreement and qualified by information with respect to each of TSRE and IRT filed with the SEC prior to the date of the Merger Agreement and in the disclosure letters delivered in connection with the Merger Agreement.

Representations and Warranties of TSRE and TSR OP

The Merger Agreement includes representations and warranties by TSRE and TSR OP relating to, among other things:

 

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organization, valid existence, organizational documents, good standing, qualification to conduct business and subsidiaries;

 

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capital structure;

 

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due authorization, execution, delivery and validity of the Merger Agreement and board approvals;

 

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absence of any conflict with or violation of organizational documents or applicable laws, absence of any filings with or consent by a governmental entity, and the absence of any violation or breach of, or default or consent requirements under, certain agreements;

 

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SEC filings, financial statements, absence of undisclosed liabilities, and internal controls;

 

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accuracy of information supplied for inclusion in this joint proxy statement/prospectus and registration statement;

 

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absence of certain changes since January 1, 2015;

 

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tax matters, including qualification as a REIT;

 

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labor and employment matters;

 

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employee benefit plans and ERISA;

 

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litigation;

 

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compliance with laws and permits;

 

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environmental matters;

 

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real property and leases;

 

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intellectual property;

 

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material contracts;

 

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insurance;

 

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interested party transactions;

 

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required stockholder vote;

 

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broker’s, investment banker’s, finder’s and other fees;

 

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opinion of financial advisor;

 

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inapplicability of takeover statutes;

 

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inapplicability of the Investment Company Act of 1940, as amended;

 

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absence of dissenters’, appraisal or similar rights in connection with the Merger;

 

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inapplicability of the Hart-Scott-Rodino Antitrust Improvements Act; and

 

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disclaimer of other representations and warranties.

Representations and Warranties of IRT, IROP, OP Merger Sub and IRT LP LLC

The Merger agreement includes representations and warranties by IRT, IROP, OP Merger Sub and IRT LP LLC relating to, among other things:

 

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organization, valid existence, organizational documents, good standing, qualification to conduct business and subsidiaries;

 

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capital structure;

 

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due authorization, execution, delivery and validity of the Merger Agreement and board approvals;

 

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absence of any conflict with or violation of organizational documents or applicable laws, absence of any filings with or consent by a governmental entity, and the absence of any violation or breach of, or default or consent requirements under, certain agreements;

 

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SEC filings, financial statements, absence of undisclosed liabilities, and internal controls;

 

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accuracy of information supplied for inclusion in this joint proxy statement/prospectus and registration statement;

 

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absence of certain changes since January 1, 2015;

 

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tax matters, including qualification as a REIT;

 

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labor and employment matters;

 

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employee benefit plans and ERISA;

 

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litigation;

 

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compliance with laws and permits;

 

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environmental matters;

 

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real property and leases;

 

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intellectual property;

 

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material contracts;

 

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insurance;

 

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interested party transactions;

 

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required stockholder vote;

 

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broker’s, investment banker’s, finder’s and other fees;

 

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opinion of financial advisor;

 

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inapplicability of takeover statutes;

 

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financing;

 

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inapplicability of the Investment Company Act of 1940, as amended;

 

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inapplicability of the Hart-Scott-Rodino Antitrust Improvements Act; and

 

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disclaimer of other representations and warranties.

Definition of “Material Adverse Effect”

Many of the representations of TSRE and TSR OP, on the one hand, and IRT, IROP, OP Merger Sub and IRT LP LLC, on the other hand, are qualified by a “material adverse effect” standard (that is, they will not be deemed to be untrue or incorrect unless their failure to be true or correct, individually or in the aggregate, would reasonably be expected to have a material adverse effect). For the purposes of the Merger Agreement, “material adverse effect” means any change, development, event, effect or occurrence that (i) has a material adverse effect on the business, assets, properties, financial condition or results of operations of IRT and its subsidiaries, taken as a whole, or TSRE and its subsidiaries, taken as a whole, as the case may be, or (ii) will or would reasonably be expected to prevent or materially impair or delay the ability of IRT, IROP, OP Merger Sub or IRT LP LLC, or TSRE or TSR OP, as the case may be, to consummate the Merger. However, any change, development, event, effect or occurrence will not be considered a material adverse effect to the extent arising out of or resulting from the following:

 

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any event generally affecting the geographic regions or industry in which the respective parties operate;

 

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any event generally affecting the economy, or financial, credit, foreign exchange, securities or capital markets (including changes in interest rates or exchange rates);

 

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changes in applicable law or applicable accounting regulations or principles or interpretations thereof;

 

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any event directly or indirectly attributable to the announcement or pendency of the Merger Agreement or the anticipated consummation of the Merger and the other transactions contemplated by the Merger Agreement (including compliance with the covenants set forth in the Merger Agreement and the identity of IRT as the acquirer of TSRE, or any action taken, delayed or omitted to be taken by one party at the request or with the prior consent of the other party or otherwise pursuant to the terms of the Merger Agreement), including the impact thereof on relationships, contractual or otherwise, with employees, customers, suppliers, tenants, or lenders;

 

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national or international political conditions, any outbreak or escalation of hostilities, insurrection or war, whether or not pursuant to declaration of a national emergency or war, acts of terrorism, sabotage, strikes, freight embargoes or similar calamity or crisis;

 

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fires, epidemics, quarantine restrictions, earthquakes, hurricanes, tornados or other natural disasters;

 

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any decline in the market price, or change in trading volume, of the capital stock of IRT or TSRE or any failure to meet publicly announced revenue or earnings projections or predictions (whether such projections or predictions were made by IRT, TSRE or independent third parties) or internal projections;

 

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any damage or destruction of any property of IRT or TSRE, as applicable, that is substantially covered by insurance;

which, in the case of first, second, third and fifth bullet points above, such changes do not disproportionately affect IRT or TSRE, as applicable, relative to other similarly situated participants in the industries in which they operate, and, in the case of the sixth bullet point above, such changes do not disproportionately affect IRT or TSRE, as applicable, relative to other participants in the industries in which they operate in the geographic regions in which they operate or own or lease properties.

 

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Covenants and Agreements

Conduct of Business of TSRE Pending the Merger

TSRE has agreed to certain restrictions on it and its subsidiaries until the earlier of the effective time of the Company Merger and the valid termination of the Merger Agreement. In general, except as contemplated by the Merger Agreement or required by law, TSRE has agreed that it will, and will cause each of its subsidiaries to, conduct its business in the ordinary course consistent with past practice, and use its commercially reasonable efforts to (i) maintain its material assets and properties in their current condition (normal wear and tear excepted), (ii) preserve intact its current business organization, keep available the services of its current officers and employees, keep and preserve its present relationship with tenants, joint venture partners or co-venturers, suppliers, licensors, licensees, distributors and other having material business dealings with it, and (iii) preserve the status of TSRE as a REIT. Without limiting the foregoing, TSRE has also agreed that it will not, and it will not cause or permit any of its subsidiaries to (subject to certain exceptions), without the prior written consent of IRT, which shall not be unreasonably withheld, conditioned or delayed, among other things:

 

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except for quarterly distributions of up to $0.095 per share of TSRE common stock to the holders thereof for the quarter ending June 30, 2015 and for each quarter thereafter ending prior to the effective time of the Merger and for each partial quarter ending on such effective time and comparable distributions on TSRE OP units, declare, set aside or pay any dividends on, or make any other distributions in respect of, shares of capital stock or other equity securities or ownership interests in TSRE or its subsidiaries;

 

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split, combine or reclassify any shares of capital stock or other equity securities or ownership interests in TSRE or its subsidiaries or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any shares of capital stock or other equity securities or ownership interests in TSRE or its subsidiaries;

 

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purchase, redeem or otherwise acquire any shares of capital stock or other equity securities or ownership interests of TSRE or its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;

 

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issue, sell, pledge or grant (or enter into an agreement to issue, sell, pledge or grant): (i) any shares of capital stock or other equity securities or ownership interests of TSRE or its subsidiaries, (ii) any voting securities of TSRE, including voting debt securities, (iii) any securities convertible into or exchangeable for, or any options, warrants, calls or rights to acquire, any shares of capital stock or other equity securities or ownership interests of TSRE or its subsidiaries, voting securities, including voting debt securities, or convertible or exchangeable securities or (iv) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units;

 

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amend the charter, bylaws or other organizational documents of TSRE or its subsidiaries;

 

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acquire or agree to acquire (including by merging or consolidating with, or by purchasing an equity interest in or portion of the assets of, or by any other manner), any business or any corporation, partnership, joint venture, association or other business organization or division thereof, real property, personal property or assets;

 

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(i) grant to any executive officer, director or employee of TSRE or its subsidiaries an increase in compensation, (ii) grant to any current or former executive officer or director of TSRE or its subsidiaries any increase in severance or termination pay, (iii) enter into any severance or termination agreement with any executive officer or director or (iv) take any action to accelerate any rights or benefits under any employee benefit plan;

 

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make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of TSRE or its subsidiaries;

 

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sell, lease (as lessor), license, sell and lease back, mortgage or otherwise dispose of or subject to any lien any properties or assets;

 

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(i) incur or modify any indebtedness for borrowed money or guarantee any such indebtedness of another person, (ii) issue or sell any debt securities or warrants or other rights to acquire any debt securities of TSRE or its subsidiaries, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (iii) make any loans, advances or capital contributions to, or investments in, any other person;

 

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pay, discharge, settle or satisfy any material action, litigation, claim or arbitration where the amount paid out-of-pocket net of insurance proceeds in settlement or compromise exceeds $500,000 individually or $1,000,000 in the aggregate;

 

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enter into any consent decree, injunction or similar restraint or form of equitable relief that would materially restrict the operation of the business of TSRE and its subsidiaries taken as a whole;

 

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cancel any material indebtedness or waive any claims or rights with a value in excess of $500,000;

 

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enter into or amend, extend or terminate, or waive, release, compromise or assign any rights or claims under any material contract;

 

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establish, adopt or enter into any collective bargaining agreement or other labor union contract applicable to the employees of TSRE or its subsidiaries;

 

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authorize, or enter into any commitment for, any new material capital expenditure relating to the properties of TSRE or its subsidiaries;

 

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make, change or revoke any material tax election or settle or compromise any material U.S. federal, state, local or foreign income tax liability;

 

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enter into any contract that would limit or otherwise restrict TSRE or its subsidiaries from engaging or competing in any line of business or owning property in any geographic area;

 

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adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of TSRE or its subsidiaries;

 

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enter into any joint venture or partnership or other similar contract with any third party;

 

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enter into any new line of business;

 

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permit existing insurance policies of TSRE or its subsidiaries to be cancelled or terminated without replacing such insurance policies with comparable insurance policies, to the extent available on commercially reasonable terms; or

 

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authorize any of, or commit, resolve or agree to take any of, the foregoing actions.

Conduct of Business of IRT Pending the Merger

IRT has agreed to certain restrictions on it and its subsidiaries until the earlier of the effective time of the Company Merger and the valid termination of the Merger Agreement. In general, except as contemplated by the Merger Agreement or required by law, IRT has agreed that it will, and will cause each of its subsidiaries to, conduct its business in the ordinary course consistent with past practice, and use its commercially reasonable efforts to (i) maintain its material assets and properties in their current condition (normal wear and tear excepted), (ii) preserve intact its current business organization, keep available the services of its current officers and external manager, keep and preserve its present relationship with tenants, joint venture partners or co-venturers, suppliers, licensors, licensees, distributors and other having material business dealings with it, and (iii) preserve the status of IRT as a REIT. Without limiting the foregoing, IRT has also agreed that it will not, and it will not cause or permit any of its subsidiaries to (subject to certain exceptions), without the prior written consent of TSRE, which shall not be unreasonably withheld, conditioned or delayed (provided that if IRT submits to TSRE a written request for TSRE’s consent to take certain actions that are otherwise prohibited under

 

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the terms of the Merger Agreement and TSRE fails to respond to such request within such ten days following the receipt of such request, then TSRE shall be deemed to have given prior written consent with respect to the actions in such request), among other things:

 

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except for monthly distributions of up to $0.06 per share of IRT common stock to the holders thereof and comparable distributions on IRT OP units, declare, set aside or pay any dividends on, or make any other distributions in respect of, shares of capital stock or other equity securities or ownership interests in IRT or its subsidiaries;

 

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split, combine or reclassify any shares of capital stock or other equity securities or ownership interests in IRT or its subsidiaries or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any shares of capital stock or other equity securities or ownership interests in IRT or its subsidiaries;

 

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purchase, redeem or otherwise acquire any shares of capital stock or other equity securities or ownership interests of IRT or its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;

 

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amend the charter, bylaws or other organizational documents of IRT or its subsidiaries;

 

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acquire or agree to acquire (including by merging or consolidating with, or by purchasing an equity interest in or portion of the assets of, or by any other manner), any business or any corporation, partnership, joint venture, association or other business organization or division thereof, real property, personal property or assets;

 

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(i) grant to the Advisor any increase in advisory fees or incentive fees, (ii) take any action that could result in a termination of IRT’s advisory agreement with the Advisor, (iii) enter into any severance or termination agreement with any executive officer or director, (iv) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or employee benefit plan or (v) take any action to accelerate any rights or benefits under any employee benefit plan;

 

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sell, lease (as lessor), license, sell and lease back, mortgage or otherwise dispose of or subject to any lien any properties or assets;

 

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(i) incur or modify any indebtedness for borrowed money or guarantee any such indebtedness of another person, (ii) issue or sell any debt securities or warrants or other rights to acquire any debt securities of IRT or its subsidiaries, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (iii) make any loans, advances or capital contributions to, or investments in, any other person;

 

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make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of IRT or its subsidiaries;

 

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pay, discharge, settle or satisfy any material action, litigation, claim or arbitration where the amount paid out-of-pocket net of insurance proceeds in settlement or compromise exceeds $500,000 individually or $1,000,000 in the aggregate;

 

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enter into any consent decree, injunction or similar restraint or form of equitable relief that would materially restrict the operation of the business of IRT and its subsidiaries taken as a whole;

 

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make, change or revoke any material tax election or settle or compromise any material U.S. federal, state, local or foreign income tax liability;

 

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enter into or amend, extend or terminate, or waive, release, compromise or assign any rights or claims under any material contract;

 

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authorize, or enter into any commitment for, any new material capital expenditure relating to the properties of IRT or its subsidiaries;

 

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enter into any contract that would limit or otherwise restrict IRT or its subsidiaries from engaging or competing in any line of business or owning property in any geographic area;

 

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adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of IRT or its subsidiaries;

 

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enter into any joint venture or partnership or other similar contract with any third party;

 

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enter into any new line of business;

 

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permit existing insurance policies of IRT or its subsidiaries to be cancelled or terminated without replacing such insurance policies with comparable insurance policies, to the extent available on commercially reasonable terms; or

 

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authorize any of, or commit, resolve or agree to take any of, the foregoing actions.

No Solicitation of Transactions

TSRE has agreed not to, and to cause its subsidiaries not to (and not authorize any of its officers, directors, managers and other representatives to), directly or indirectly, (i) solicit, initiate, knowingly encourage or take any other action to knowingly facilitate any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, a Company Takeover Proposal, (ii) enter into any agreement, letter of intent, memorandum of understanding or other similar instrument with respect to any Company Takeover Proposal (other than certain confidentiality agreements), or (iii) enter into, continue, conduct, engage or otherwise participate in any discussions or negotiations regarding, or furnish to any third party any non-public information with respect to, or for the purpose of encouraging or facilitating, any Company Takeover Proposal.

For purposes of the Merger Agreement, “Company Takeover Proposal” means any inquiry, proposal or offer from any person (other than IRT or its subsidiaries) or “group,” within the meaning of Section 13(d) of the Exchange Act, relating to, in a single transaction or series of related transactions, any (A) acquisition of assets of TSRE and its subsidiaries equal to 20% or more of TSRE’s consolidated assets (as determined on a book-value basis) or to which 20% or more of TSRE’s revenues or earnings on a consolidated basis are attributable, (B) acquisition of 20% or more of the outstanding shares of TSRE’s common stock, (C) tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of the outstanding shares of TSRE’s common stock, (D) merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving TSRE or (E) combination of the foregoing types of transactions if the sum of the percentage of consolidated assets, consolidated revenues or earnings and shares of TSRE common stock involved is 20% or more.

Notwithstanding the restrictions set forth above, prior to the approval of the Company Merger and the other transactions contemplated by the Merger Agreement by TSRE stockholders, TSRE may, in response to any Company Takeover Proposal that does not result from a material breach by TSRE of the non-solicitation provisions in the Merger Agreement, (i) contact the person making such Company Takeover Proposal solely to clarify the terms and conditions thereof, and (ii) if the TSRE Board determines in good faith, after consultation with independent financial advisors and outside legal counsel, that such Company Takeover Proposal constitutes or is reasonably expected to lead to a Superior Company Proposal, (a) provide access to or furnish information with respect to TSRE and its subsidiaries to the person making such Company Takeover Proposal and its representatives pursuant to an acceptable confidentiality agreement (provided that TSRE will prior to or concurrently with the time such information is provided to such person provide IRT with all non-public information regarding TSRE that has not previously been provided to IRT that is provided to any person making such Company Takeover Proposal), and (2) conduct, engage or participate in discussions or negotiations with the person making such Company Takeover Proposal and its representatives.

For purposes of this Agreement, “Superior Company Proposal” means any bona fide written Company Takeover Proposal (except that, for purposes of this definition, the references in the definition of “Company Takeover

 

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Proposal” to “20%” are replaced by “50%”) that was not the result of a material breach by TSRE of the non-solicitation provisions in the Merger Agreement and that the TSRE Board has determined in good faith, after consulting with outside legal counsel and independent financial advisors, is reasonably likely to be consummated in accordance with its terms and that, if consummated, would result in a transaction more favorable to TSRE’s stockholders (solely in their capacity as such) than the Merger and the other transactions contemplated by the Merger Agreement (including any revisions to the terms of the Merger Agreement proposed by IRT in response to such proposal or otherwise) taking into account all reasonably available legal, financial, regulatory and other aspects of such Company Takeover Proposal (including the likelihood of consummation of such Company Takeover Proposal) that the TSRE Board deems relevant.

Except as described below, neither the TSRE Board nor any committee thereof shall (i) (A) fail to recommend to its stockholders that they approve the Merger and the other transactions contemplated by the Merger Agreement or fail to include the TSRE Board’s recommendation of the Merger Agreement, the Company Merger and the other transactions contemplated by the Merger Agreement in this joint proxy statement, (B) change, modify, withhold, or withdraw, or publicly propose to change, qualify, withhold, withdraw of modify, in a manner adverse to IRT or IROP, the approval of the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, (C) take any formal action or make any recommendation or public statement or other disclosure in connection with a tender offer or exchange offer other than a recommendation against such offer or a temporary “stop, look and listen” communication by the TSRE Board pursuant to Rule 14d-9(f) under the Exchange Act, (D) adopt, approve or recommend, or publicly propose to approve or recommend to the stockholders of TSRE any Company Takeover Proposal or agree to take any such action, or (E) fail to publicly recommend against any Company Takeover Proposal within five business days of the request of IRT and/or fail to reaffirm the TSRE Board’s recommendation of the Merger Agreement, the Company Merger and the other transactions contemplated by the Merger Agreement within five business days of the request of IRT, or such fewer number of days as remains prior to the TSRE special meeting (any action described in this clause (i) being referred to herein as an “Adverse Recommendation Change”) or (ii) cause or permit TSRE or its subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, joint venture agreement, partnership agreement or other similar agreement relating to a Company Takeover Proposal (other than certain confidentiality agreements) (an “Alternative Acquisition Agreement”), or resolve or agree to take any such action.

Notwithstanding the foregoing, prior to the approval of the Company Merger and the other transactions contemplated by the Merger Agreement by TSRE stockholders, but not after, the TSRE Board may (I) effect an Adverse Recommendation Change if (a)(1) a material development or change in circumstances occurs or arises after the date of the Merger Agreement that was not known by the TSRE Board as of the date of the Merger Agreement (such material development or change in circumstances being referred to herein as an “Intervening Event”), and (2) the TSRE Board shall have determined, after consultation with independent financial advisors and outside legal counsel, that, in light of such Intervening Event, failure to take such action would be inconsistent with the directors’ duties under applicable law, or (b) TSRE receives a Company Takeover Proposal that was not the result of a breach by TSRE of the non-solicitation provisions in the Merger Agreement in any material respect and that the TSRE Board determines, after consultation with independent financial advisors and outside legal counsel, constitutes a Superior Company Proposal, and (II) enter into an Alternative Acquisition Agreement with respect to a Company Takeover Proposal and terminate the Merger Agreement, if and only if, TSRE receives a Company Takeover Proposal that was not the result of a breach by TSRE of the non-solicitation provisions in the Merger Agreement in any material respect and that the TSRE Board determines, after consultation with independent financial advisors and outside legal counsel, constitutes a Superior Company Proposal.

The TSRE Board shall not be entitled to (i) effect and Adverse Recommendation Change or (ii) terminate the Merger Agreement to enter into an Alternative Acquisition Agreement with respect to a Superior Company Proposal unless: (A) the TSRE Board shall have determined, after consultation with independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties

 

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under applicable law; (B) the TSRE Board shall have provided at least four business days’ prior written notice to IRT that it is prepared to effect an Adverse Recommendation Change or terminate this Agreement, which notice shall contain a reasonably detailed description of the basis for the Adverse Recommendation Change or termination, the identity of the person making the Superior Company Proposal, if applicable, and the material terms and conditions of such Superior Company Proposal, if applicable; (C) TSRE shall have negotiated, and shall have caused its representatives to negotiate, in good faith with IRT during such notice period, to the extent IRT wishes to negotiate; and (D) following the end of such notice period, the TSRE Board shall have considered any proposed revisions to the Merger Agreement proposed by IRT in writing, and shall have determined, after consultation with its independent financial advisors and outside legal counsel, that such Superior Company Proposal would continue to constitute a Superior Company Proposal if such revisions were to be given effect (provided that in the event of any material change to the material terms of such Superior Company Proposal, TSRE shall, in each case, have delivered to IRT an additional notice consistent with that described in subclause (B) above and the notice period shall have recommenced, except that the notice period shall be at least two business days).

Under the Merger Agreement, TSRE is required to notify IRT promptly, and within 24 hours, if it receives any Company Takeover Proposal or any request for information or inquiry that expressly contemplates or that could reasonably be expected to lead to a Company Acquisition Proposal. Such notice to IRT will indicate the identity of the person making such Company Takeover Proposal, request or inquiry and include the material terms and conditions of such Company Takeover Proposal, request or inquiry. TSRE will keep IRT promptly advised of all material developments (including all changes to the material terms of any Company Takeover Proposal), discussions or negotiations regarding any Company Takeover Proposal and the status of such Company Takeover Proposal. TSRE agrees that it and its subsidiaries will not enter into any confidentiality agreement with any person subsequent to the date of the Merger Agreement which prohibits TSRE or its subsidiaries from providing any information to IRT.

The Merger Agreement does not prohibit TSRE from taking and disclosing to its stockholders a position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 102(a) of Regulation M-A promulgated under the Exchange Act or making any disclosure to its stockholders if the TSRE Board has determined, after consultation with outside legal counsel, that the failure to do so would be inconsistent with the duties of its members under applicable law (provided that any disclosure other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) promulgated under the Exchange Act, an accurate disclosure of factual information to TSRE’s stockholders under applicable law or in satisfaction of the TSRE Board’s duties of applicable law, an express rejection of any applicable Company Takeover Proposal or an express reaffirmation of the TSRE Board’s recommendation to TSRE stockholders to vote in favor of the approval of the Company Merger and the other transactions contemplated by the Merger Agreement will be deemed to be an Adverse Recommendation Change).

The Merger Agreement required TSRE to immediately cease any existing discussions and negotiations conducted with any person before the execution of the Merger Agreement with respect to any Company Takeover Proposal and request that any such person promptly return and/or destroy all confidential information concerning TSRE and its subsidiaries.

Form S-4, Joint Proxy Statement/Prospectus; Stockholder Meetings

The Merger Agreement provides that IRT and TSRE will prepare and cause to be filed with the SEC the joint proxy statement included in this joint proxy statement/prospectus and IRT agreed to prepare and file a registration statement on Form S-4 with respect to the Merger, which includes this joint proxy statement/prospectus, in each case as promptly as reasonably practicable following the date of the Merger Agreement. IRT and TSRE also will use their reasonable best efforts to (i) have the Form S-4 declared effective under the Securities Act as promptly as practicable after filing, (ii) ensure that the Form S-4 complies in all material respects with the applicable provisions of the Exchange Act and the Securities Act, and (iii) to keep the Form S-4 effective for so long as necessary to complete the Merger.

 

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Each of IRT and TSRE will use its reasonable best efforts to cause this joint proxy statement/prospectus to be mailed to their stockholders entitled to notice of, and to vote at, their respective stockholder meetings and to hold their respective stockholder meetings as soon as practicable after the Form S-4 is declared effective. TSRE also will include in the joint proxy statement/prospectus its recommendation to its stockholders that they approve the Merger and the other transactions contemplated by the Merger Agreement, and IRT will include in the joint proxy statement/prospectus its recommendation to its stockholders that they approve the issuance of shares of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger), and each of IRT and TSRE will use its reasonable best efforts to obtain its stockholder approval.

Access to Information; Confidentiality

The Merger Agreement requires both IRT and TSRE to provide to the other, subject to applicable law and upon reasonable prior written notice, reasonable access during normal business hours to its properties, offices, personnel and books and records, and each of IRT and TSRE are required to furnish promptly to the other all financial, operating and other data and information concerning its business, properties and personnel as the other party may reasonably request (provided that any such access shall not interfere unreasonably with the business or operations of the party granting access or otherwise result in any unreasonable interference with the prompt and timely discharge by such party’s employees of their normal duties).

Each of IRT and TSRE will hold, and cause its representatives and affiliates to hold, any non-public information in confidence to the extent required by the terms of its existing confidentiality agreements.

Efforts to Complete Transactions; Notification

Both IRT and TSRE will use their reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary to fulfill all conditions applicable to such party pursuant to the Merger Agreement and to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by the Merger Agreement, including obtaining all necessary actions or non-actions, waivers, consents and qualifications from governmental entities or non-governmental third parties and making all necessary registrations, filings and notifications and taking all reasonable steps as may be necessary to obtain an approval, clearance, non-action letter, waiver or exemption from any governmental entity or non-governmental third party, defending any lawsuits or other legal proceedings challenging the Merger Agreement or the Merger or other transactions contemplated by the Merger Agreement, and executing and delivering all additional documents or instruments necessary to consummate the Merger and the other transactions contemplated by the Merger Agreement and to carry out the purposes of the Merger Agreement.

Each of IRT and TSRE will respond to and seek to resolve as promptly as reasonably practicable any objection asserted by any governmental entity with respect to the Merger and the other transactions contemplated by the Merger Agreement, and will use its reasonable best efforts to defend any action, suit, dispute, litigation, proceeding, hearing, arbitration or claim by or before any governmental entity challenging the Merger Agreement or the consummation of the Merger and the other transactions contemplated by the Merger Agreement.

Each of IRT and TSRE will take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to the Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement and, if any such statute or regulation becomes applicable, to take all action necessary to ensure that the Merger and the other transactions contemplated by the Merger Agreement may be consummated as promptly as practicable and otherwise minimize the effect of such statute or regulation on the Merger and the other transactions contemplated by the Merger Agreement.

 

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Each of IRT and TSRE will promptly, and within two business days, notify the other party in writing of:

 

•

any notice or other communication from any person alleging that the consent of such person is or may be required in connection with the Merger or the other transactions contemplated by the Merger Agreement;

 

•

any action, suit, claim, investigation or proceeding commenced or threatened against, relating to, involving or otherwise affecting any party to the Merger Agreement, that relates to the consummation of the Merger and the other transactions contemplated by the Merger Agreement;

 

•

any inaccuracy of any representation or warranty contained in the Merger Agreement that would reasonably be likely to cause the closing conditions set forth in the Merger Agreement not to be satisfied;

 

•

any notice or other communication from any governmental entity in connection with the Merger;

 

•

any event which, either individually or in the aggregate, has had or would reasonably be likely to have a material adverse effect or would reasonably be likely to materially impair or delay the ability of any party to consummate the Merger; and

 

•

any failure of such party to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder.

Indemnification of Directors and Officers; Insurance

IRT will assume in the Merger all rights to indemnification, exculpation and advancement of expenses from liabilities for acts or omissions occurring at or prior to the effective time of the Company Merger (including any matters arising in connection with the Merger and the other transactions contemplated by the Merger Agreement) in favor of the current or former directors or officers of TSRE and its subsidiaries as provided in their respective charters, bylaws or other organizational documents, and any indemnification or other agreements of TSRE (in each case, as in effect on the date of the Merger Agreement), and the provisions of such charters, bylaws and other organizational documents of TSRE and its subsidiaries will continue in full force and effect in accordance with their terms until the expiration of the applicable statute of limitations with respect to any claims against such directors or officers arising out of such acts or omissions.

IRT will cause to be maintained for a period of not less than six years from the effective time of the Company Merger the directors’ and officers’ insurance and indemnification policies of TSRE and TSR OP in effect on the date of the Merger Agreement (provided that IRT may substitute therefor policies with reputable and financially sound carriers of at least the same coverage and amounts containing terms and conditions that are no less favorable than the coverage provided under TSRE’s existing policies) with respect to events occurring at or prior to the effective time of the Company Merger for all persons who are currently covered by such policies, so long as the annual premium therefor would not be in excess of 250% of the last annual premium paid prior to the date of this Agreement. If IRT in its sole discretion elects then, in lieu of the foregoing insurance, IRT is permitted to cause TSRE and TSR OP, as applicable, to obtain, on or prior to the closing date of the Merger, a prepaid (or “tail”) directors’ and officers’ liability insurance policy at IRT’s expense, the material terms of which, including coverage and amount, are no less favorable than the coverage provided under TSRE’s existing policies.

From and after the effective time of the Company Merger, to the fullest extent permitted by law, IRT will indemnify, defend and hold harmless, and provide advancement of expenses to, the present and former officers and directors of TSRE and its subsidiaries against all losses, claims, damages, liabilities, fees and expenses (including reasonable attorneys’ fees and disbursements), judgments, fines and amounts paid in settlement (in the case of settlements, with the approval of the indemnifying party (which approval shall not be unreasonably withheld)), as incurred to the extent arising from, relating to, or otherwise in respect of, any actual or threatened action, suit, proceeding or investigation, in respect of actions or omissions occurring at or prior to the effective time of the Company Merger in connection with such indemnified party’s duties as an officer or director of TSRE or its subsidiaries, including in respect of the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement.

 

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Public Announcements

Each of IRT and TSRE will, subject to certain exceptions, consult with each other before issuing, and provide each other the opportunity to review and comment upon, any press release or other public statements with respect to the Merger and the other transactions contemplated by the Merger Agreement, and shall not issue any such press release or make any such public statement prior to such consultation.

Stockholder Litigation

Each of IRT and TSRE will give prompt notice to the other party of and keep the other party reasonably informed on a current basis with respect to, any claim, action, suit, charge, demand, inquiry, subpoena, proceeding, arbitration, mediation or other investigation commenced or threatened against, relating to or involving such party which relate to the Merger Agreement, the Merger or the other transactions contemplated by the Merger Agreement. Each of IRT and TSRE will give the other party the opportunity to reasonably participate in (but not control), subject to a customary joint defense agreement, the defense and settlement of any stockholder litigation (including arbitration proceedings) against such party, any of its respective subsidiaries and/or any of their respective directors relating to the Merger Agreement, the Merger and the transactions contemplated by the Merger Agreement, and no such settlement shall be agreed to without the other party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed).

Financing

IRT will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to (i) maintain in effect, until the earlier of the closing of the Merger and the termination of the Merger Agreement, the availability to IRT of the financing contemplated by, and the effectiveness of, the DB Commitment Letter, pursuant to which DBNY has committed to provide the DB Term Loan Facility in an aggregate principal amount of up to $500.0 million, (ii) obtain and consummate the financing necessary to pay for the cash portion of the Merger Consideration on terms and conditions substantially similar to the DB Commitment Letter, and (iii) obtain and consummate any alternative financing as may be necessary in order to pay the cash portion of the Merger Consideration.

Financing Cooperation

Prior to the closing of the Merger, TSRE will provide, and will cause its subsidiaries and its and their officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives to provide, all cooperation in connection with the arrangement of the financing contemplated by the DB Commitment Letter or any alternative financing as may be reasonably requested by IRT (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of TSRE or its subsidiaries), which shall include, among other things:

 

•

timely furnishing IRT and its financing sources with all required business and financial information;

 

•

participating in, and assisting with, the marketing efforts related to the financing;

 

•

facilitating the pledging of collateral in connection with the financing;

 

•

obtaining from its lenders amendments to such lenders’ loan documents that will, among other things, allow IRT to assume these loans;

 

•

requesting customary payoff letters, lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the closing date of the Merger of certain of its indebtedness;

 

•

using commercially reasonable efforts to cause its auditors to cooperate in connection with obtaining the financing; and

 

•

taking such actions as are reasonably requested by IRT or its financing sources to facilitate the satisfaction on a timely basis of all conditions precedent to obtaining the financing.

 

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Other Covenants and Agreements

The Merger Agreement contains certain other covenants and agreements, including covenants and agreements related to:

 

•

each of IRT and TSRE using its respective reasonable best efforts to cause the Company Merger to qualify as a reorganization within the meaning of Section 368(a) of the Code;

 

•

each of IRT and TSRE using its respective reasonable best efforts to cause the Partnership Merger to be treated as an “asset-over” form of merger governed by Treasury Regulations Section 1.708-1(c)(3)(i);

 

•

TSRE terminating all of its employees immediately prior to the closing of the Merger, which will cause certain employees of TSRE to become entitled to severance payments in accordance with the terms of their applicable employment agreements;

 

•

except for regular quarterly dividends payable by TSRE and regular monthly dividends payable by IRT (including for each partial quarter or month ending on the effective time of the Company Merger), neither TSRE nor IRT declaring or setting aside any dividend or other distribution to their respective stockholders from the date of the Merger Agreement to the earlier of the effective time of the Company Merger or the termination of the Merger Agreement, subject to certain exceptions; and

 

•

TSRE taking any and all actions necessary to terminate TSRE’s 401(k) plan effective immediately before the closing of the Merger.

Conditions to Completion of the Merger

Mutual Closing Conditions

The obligation of each party to the Merger Agreement to effect the Merger and consummate the other transactions contemplated by the Merger Agreement is subject to the satisfaction or waiver on or prior to the closing date, of the following conditions:

 

•

approval of the Company Merger and the other transactions contemplated by the Merger Agreement by TSRE stockholders;

 

•

approval of the of the issuance of IRT common stock in the Company Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) by IRT stockholders;

 

•

the absence of any judgment, order or injunction issued by any governmental entity or other legal restraint or prohibition preventing the consummation of the Merger or the other transactions contemplated by the Merger Agreement;

 

•

the Form S-4 registration statement, of which this joint proxy statement/prospectus is a part, having been declared effective by the SEC and no stop order suspending the effectiveness of such Form S-4 having been issued by the SEC and no proceeding for that purpose having been initiated by the SEC and not withdrawn; and

 

•

the shares of IRT common stock to be issued in the Merger having been approved for listing on the NYSE MKT, subject to official notice of issuance.

Additional Closing Conditions for the Benefit of IRT and IROP

The obligations of IRT and IROP to effect the Merger and to consummate the other transactions contemplated by the Merger Agreement are subject to the satisfaction or waiver on or prior to the closing date of the Merger of the following additional conditions:

 

•

the accuracy in all but de minimis respects as of the date of the Merger Agreement and as of the closing date of the Merger (or, in the case of representations and warranties that expressly relate to a specific date, as of that date) of certain representations and warranties made in the Merger Agreement by TSRE and TSR OP regarding certain aspects of TSRE’s capital structure;

 

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•

the accuracy in all respects as of the date of the Merger Agreement and as of the closing date of the Merger of certain representations and warranties made in the Merger Agreement by TSRE and TSR OP regarding the absence of a material adverse effect and the applicability of takeover statutes;

 

•

the accuracy in all material respects (disregarding all exceptions and qualifications with regard to materiality or material adverse effect contained therein) as of the date of the Merger Agreement and as of the closing date of the Merger of certain representations and warranties made in the Merger Agreement by TSRE and TSR OP regarding TSRE’s organization and subsidiaries, authority relative to the Merger Agreement, the required stockholder vote to approve the Company Merger, broker’s fees and similar expenses, and the applicability of the Investment Company Act of 1940;

 

•

the accuracy of all other representations and warranties made in the Merger Agreement by TSRE and TSR OP as of the date of the Merger Agreement and as of the closing date of the Merger (or, in the case of representations and warranties that expressly relate to a specific date, as of that date), except where the failure of such representations or warranties to be true and correct in all respects (disregarding all exceptions and qualifications with regard to materiality or material adverse effect contained therein) does not have, and would not reasonably be expected to have, a material adverse effect on TSRE;

 

•

TSRE and TSR OP having performed or complied with in all material respects all obligations required to be performed or complied with by it under the Merger Agreement at or prior to the closing date of the Merger (except for those obligation that by their nature may not be performed until the closing of the Merger), and receipt by IRT of a certificate executed by an officer of TSRE to the effect that this condition and the conditions described in the preceding four bullet points have been satisfied;

 

•

receipt by IRT of an opinion from Morrison & Foerster LLP, counsel to TSRE, dated as of the closing date of the Merger, that TSRE, commencing with its taxable year ended December 31, 2012, was organized and has operated in conformity with the requirements for qualification and taxation as a REIT under Sections 856 through 860 of the Code;

 

•

receipt by IRT of an opinion from Pepper Hamilton LLP, counsel to IRT, dated as of the closing date of the Merger, to the effect that the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code;

 

•

there has not been any event that, individually or together with any other event, has had or would reasonably be expected to have a material adverse effect with respect to TSRE;

 

•

certain of TSRE’s lenders have entered into amendments to their loan documents that permit (i) IRT and its affiliates to assume such loan, (ii) unrestricted offers, sales, issuances, transfers, conversions, redemptions and repurchases of common equity or preferred equity of IRT and IROP, and (iii) mergers, consolidations, reorganizations, liquidations and dissolutions of subsidiaries of IRT and/or IROP into, or with, one or more of their subsidiaries and (iv) prepayment of such loan at any time on or before the End Date (as defined below in “The Merger Agreement—Termination of the Merger Agreement—Termination by Either IRT or TSRE) with no increase in the prepayment fee or penalty;

 

•

receipt by IRT of an instrument evidencing the termination of the Stockholders Agreement, dated as of January 16, 2014, by and among TSR and Senator;

 

•

receipt by IRT of a lock-up agreement signed by each of Senator and Monarch; and

 

•

receipt by IRT of evidence that TSRE has adopted resolutions terminating TSRE’s 401(k) plan.

 

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Additional Closing Conditions for the Benefit of TSRE and TSR OP

The obligations of TSRE and TSR OP to effect the Merger and consummate the other transactions that are contemplated by the Merger Agreement are subject to the satisfaction or waiver on or prior to the closing date of the Merger of the following additional conditions:

 

•

the accuracy in all but de minimis respects as of the date of the Merger Agreement and as of the closing date of the Merger (or, in the case of representations and warranties that expressly relate to a specific date, as of that date) of certain representations and warranties made in the Merger Agreement by IRT, IROP, OP Merger Sub and IRT LP LLC regarding certain aspects of IRT’s capital structure;

 

•

the accuracy in all respects as of the date of the Merger Agreement and as of the closing date of the Merger of certain representations and warranties made in the Merger Agreement by IRT, IROP, OP Merger Sub and IRT LP LLC regarding the absence of a material adverse effect and the applicability of takeover statutes;

 

•

the accuracy in all material respects (disregarding all exceptions and qualifications with regard to materiality or material adverse effect contained therein) as of the date of the Merger Agreement and as of the closing date of the Merger of certain representations and warranties made in the Merger Agreement by IRT, IROP, OP Merger Sub and IRT LP LLC regarding IRT’s organization and subsidiaries, authority relative to the Merger Agreement, the required stockholder vote to approve the issuance of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger), broker’s fees and similar expenses, and the applicability of the Investment Company Act of 1940;

 

•

the accuracy of all other representations and warranties made in the Merger Agreement by IRT, IROP, OP Merger Sub and IRT LP LLC as of the date of the Merger Agreement and as of the closing date of the Merger (or, in the case of representations and warranties that expressly relate to a specific date, as of that date), except where the failure of such representations or warranties to be true and correct in all respects (disregarding all exceptions and qualifications with regard to materiality or material adverse effect contained therein) does not have, and would not reasonably be expected to have, a material adverse effect on IRT;

 

•

IRT and IROP having performed or complied with in all material respects all obligations required to be performed or complied with by it under the Merger Agreement at or prior to the closing date of the Merger (except for those obligation that by their nature may not be performed until the closing of the Merger), and receipt by TSRE of a certificate executed by an officer of IRT to the effect that this condition and the conditions described in the preceding four bullet points have been satisfied;

 

•

receipt by TSRE of an opinion from Pepper Hamilton LLP, counsel to IRT, dated as of the closing date of the Merger, that IRT, commencing with its taxable year ended December 31, 2011, was organized and has operated in conformity with the requirements for qualification and taxation as a REIT under Sections 856 through 860 of the Code and its current and proposed method of operation will enable it to continue to qualify for taxation as a REIT for its taxable year ending on or before December 31, 2015;

 

•

receipt by TSRE of an opinion from Morrison & Foerster LLP, counsel to TSRE, dated as of the closing date of the Merger, to the effect that the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code; and

 

•

there has not been any event that, individually or together with any other event, has had or would reasonably be expected to have a material adverse effect with respect to IRT.

Termination of the Merger Agreement

Termination by Mutual Agreement

The Merger Agreement may be terminated at any time prior to the effective time of the Partnership Merger by the mutual written consent of IRT and TSRE, even after approval of TSRE stockholders or approval of IRT stockholders.

 

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Termination by Either IRT or TSRE

The Merger Agreement may also be terminated prior to the effective time of the Partnership Merger by either IRT or TSRE if:

 

•

the Merger shall not have been consummated on or before 5:00 p.m. (Eastern time) New York City time on October 15, 2015 (the “End Date”); provided, that this termination right will not be available to any party whose failure to comply with any provision of this Agreement has been the cause of, or resulted in, the failure of the Merger to occur on or before such date; provided, further, that (A) if ten business days prior to the End Date, all conditions of IRT to consummate the Merger are satisfied, other than the condition whereby certain of TSRE’s lenders must enter into amendments to their loan documents that will, among other things, allow IRT to assume these loans, and (B) IRT provides TSRE with evidence that the effectiveness of the DB Commitment Letter has been extended until at least December 31, 2015 or that IRT has otherwise entered into a commitment letter with respect to alternative financing that is effective until at least December 31, 2015, then, upon the election of IRT, in its reasonable discretion, the End Date may be extended to December 31, 2015;

 

•

if all conditions of IRT to consummate the Merger are satisfied (other than those conditions that by their nature are to be satisfied at the closing, provided that such conditions are reasonably capable of being satisfied) and IRT is unable to satisfy its obligation to effect the closing at such time because it is unable to obtain the financing that is necessary to pay the cash portion of the Merger Consideration (provided that this termination right will not be available to IRT if it has materially and willfully, intentionally or knowingly breached its obligations under the financing covenant);

 

•

any governmental entity of competent jurisdiction has issued or enacted any law or taken any other action, which has become final and non-appealable, that has the effect of restraining, enjoining or otherwise prohibiting consummation of the Merger (provided that this termination right will not be available to any party whose failure to comply with any provision of this Agreement has been the cause of, or resulted in, such action);

 

•

the stockholders of TSRE failed to approve the Merger and the other transactions contemplated by the Merger Agreement at the TSRE special meeting (provided that this termination right will not be available to TSRE if the failure to obtain the approval of TSRE’s stockholders was primarily due to TSRE’s failure to perform any of its obligations under the Merger Agreement);

 

•

the stockholders of IRT failed to approve the issuance of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) at the IRT special meeting (provided that this termination right will not be available to IRT if the failure to obtain the approval of IRT’s stockholders was primarily due to IRT’s failure to perform any of its obligations under the Merger Agreement);

 

•

TSRE effects an Adverse Recommendation Change; or

 

•

the other party has breached any representation or warranty or failed to perform any covenant or agreement set forth in the Merger Agreement such that any of the conditions to the terminating party’s obligation to consummate the Merger would not be satisfied, which breach or failure to perform cannot be cured or, if capable of cure, has not been cured by the earlier of 20 days following written notice thereof from the terminating party to the breaching party and two business days before the End Date (provided that this termination right will not be available if either IRT or TSRE is then in breach of the Merger Agreement so as to cause any of the conditions to the breaching party’s obligation to consummate the Merger not to be satisfied).

 

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Termination by TSRE

The Merger Agreement may also be terminated prior to the effective time of the Partnership Merger by TSRE if:

 

•

prior to the approval of the Company Merger and the other transactions contemplated by the Merger Agreement by TSRE’s stockholders, TSRE enters into an Alternative Acquisition Agreement; provided that TSRE must concurrently pay the termination fee described below under “—Termination Fee and Expenses Payable by TSRE to IRT”;

 

•

the closing of the Merger has not occurred within two business days after TSRE has delivered written notice to IRT that all conditions of IRT to consummate the Merger are satisfied (other than those conditions that by their terms are to be satisfied at the closing of the Merger, but subject to the satisfaction of such conditions at such time) and TSRE is ready, willing and able to effect the closing of the Merger;

 

•

the aggregate amount of cash consideration to be paid in the Merger would exceed 60% of the value of the total Merger Consideration; or

 

•

the percentage decline, if any, from the 20-day volume weighted average price per share of IRT common stock as of the trading day prior to the date of the Merger Agreement to the 20-day volume weighted average price per share of IRT common stock as of the date five days prior to closing date of the Merger exceeds by 15% or more the percentage decline, if any, from the average closing value of the MSCI US REIT Index for the period of 20 consecutive trading days ending on the trading day prior to the date of the Merger Agreement to the average closing value of the MSCI US REIT Index for the period of 20 consecutive trading days ending on the date five days prior to the closing date of the Merger.

Termination by IRT

The Merger Agreement may also be terminated by IRT if TSRE enters into an Alternative Acquisition Agreement.

Termination Fee and Expenses Payable by TSRE to IRT

TSRE has agreed to pay IRT a termination fee of $12.0 million (the “TSRE Termination Fee”) if:

 

•

TSRE terminates the Merger Agreement to enter into an Alternative Acquisition Agreement, in which case TSRE must pay the TSRE Termination Fee concurrently with such termination;

 

•

IRT terminates the Merger Agreement because TSRE has entered into an Alternative Acquisition Agreement, in which case TSRE must pay the TSRE Termination Fee within three business days of such termination; or

 

•

All of the following occur (in which case, the TSRE Termination Fee will be less, if applicable, any reimbursable expenses previously paid by TSRE to IRT):

 

•

either IRT or TSRE terminates the Merger Agreement because (i) the Merger has not been consummated on or before the End Date (and the approval of TSRE stockholders of the Merger and the other transactions contemplated by the Merger Agreement has not been obtained prior to such termination), (ii) the stockholders of TSRE failed to approve the Company Merger and the other transactions contemplated by the Merger Agreement at the TSRE special meeting, or (iii) TSRE has effected an Adverse Recommendation Change;

 

•

a Company Takeover Proposal has been publicly announced after the date hereof and not publicly withdrawn without qualification before such termination; and

 

•

within twelve months after termination of the Merger Agreement, TSRE consummates a transaction regarding, or executes a definitive agreement with respect to, a Company Takeover Proposal; provided that, for purposes of this provision, references to “20%” in the definition of “Company Takeover Proposal” shall be deemed to be references to “50%”.

 

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TSRE has agreed to pay any reasonable out-of-pocket documented expenses (including all fees and expenses of counsel, accountants, investment bankers, financing sources, hedging counterparties, experts and consultants to a party hereto and its Affiliates) incurred by IRT up to a maximum of $5.0 million if the Merger Agreement is terminated (i) by either IRT or TSRE because the stockholders of TSRE failed to approve the Company Merger and the other transactions contemplated by the Merger Agreement at the TSRE special meeting, (ii) by IRT or TSRE because TSRE has effected an Adverse Recommendation Change, or (iii) by TSRE because the percentage decline, if any, from the 20-day volume weighted average price per share of IRT common stock as of the trading day prior to the date of the Merger Agreement to the 20-day volume weighted average price per share of IRT common stock as of the date five days prior to closing date of the Merger exceeds by 15% or more the percentage decline, if any, from the average closing value of the MSCI US REIT Index for the period of 20 consecutive trading days ending on the trading day prior to the date of the Merger Agreement to the average closing value of the MSCI US REIT Index for the period of 20 consecutive trading days ending on the date five days prior to the closing date of the Merger.

Termination Fee and Expenses Payable by IRT to TSRE

IRT has agreed to pay TSRE a reverse termination fee of $25.0 million (the “IRT Termination Fee”) if the Merger Agreement is terminated (i) by either IRT or TSRE because (A) the Merger has not been consummated on or before the End Date or (B) if all conditions of IRT to consummate the Merger are satisfied (other than those conditions that by their nature are to be satisfied at the closing, provided that such conditions are reasonably capable of being satisfied) and IRT is unable to satisfy its obligation to effect the closing at such time because it is unable to obtain the financing that is necessary to pay the cash portion of the Merger Consideration, or (ii) by TSRE because the closing of the Merger has not occurred within two business days after TSRE has delivered written notice to IRT that all conditions of IRT to consummate the Merger are satisfied (other than those conditions that by their terms are to be satisfied at the closing of the Merger, but subject to the satisfaction of such conditions at such time) and TSRE is ready, willing and able to effect the closing of the Merger, and at the time of any such termination conditions of IRT to consummate the Merger are satisfied (other than those conditions that by their nature are to be satisfied at the Closing, provided that such conditions are reasonably capable of being satisfied, and the condition whereby certain of TSRE’s lenders must enter into amendments to their loan documents that will, among other things, allow IRT to assume these loans).

IRT has agreed to pay any reasonable out-of-pocket documented expenses (including all fees and expenses of counsel, accountants, investment bankers, financing sources, hedging counterparties, experts and consultants to a party hereto and its affiliates) incurred by IRT up to a maximum of $5.0 million if the Merger Agreement is terminated by either IRT or TSRE because the stockholders of IRT failed to approve the issuance of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) at the IRT special meeting.

Financing Related to the Merger

IRT intends to finance the cash portion of the Merger Consideration and the fees, expenses and costs incurred in connection with the Merger and other transactions related to the Merger, and to repay or refinance certain of TSRE’s borrowings, using a combination of some or all of the following resources:

 

•

IRT’s available cash on hand;

 

•

the assumption and/or refinancing of certain of TSRE’s existing mortgage debt;

 

•

borrowings under the KeyBank Senior Facility for up to $325.0 million with KeyBank NA;

 

•

borrowings under the KeyBank Interim Facility for up to $120.0 million with KeyBank NA; and

 

•

if market conditions allow, proceeds from the sale of IRT stock.

 

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The closing of the KeyBank Facilities remains subject to the negotiation and entry into definitive documentation and the satisfaction or waiver of customary conditions contained therein.

To the extent IRT does not utilize the KeyBank Facilities, IRT intends to finance the cash portion of the Merger Consideration and the fees, expenses and costs incurred in connection with the Merger and other transactions related to the Merger, and repay or refinance certain of TSRE’s borrowings, using borrowings under the DB Term Loan Facility for up to $500.0 million, for which IRT has received a commitment from DBNY.

The KeyBank Senior Facility will consist of a revolving line of credit in an amount of up to $125.0 million (the “Revolver”) and a term loan in an amount of no less than $200.0 million. Up to 10% of the Revolver will be available for swingline loans, and up to 10% of the Revolver will be available for the issuance of letters of credit. Additionally, IRT will have the right to increase the aggregate amount of the KeyBank Senior Facility to up to $450.0 million. The KeyBank Senior Facility will mature three years from its closing date, subject to the option of IRT to extend the KeyBank Senior Facility for two additional 12-month periods under certain circumstances. IRT may prepay the KeyBank Senior Facility, in whole or in part, at any time without fee or penalty, except for breakage costs associated with LIBOR borrowings. The KeyBank Senior Facility will be secured by certain of the properties of the Combined Company.

At IRT’s option, borrowings under the KeyBank Senior Facility will bear interest at a rate equal to either (i) the LIBOR rate plus a margin of 165 to 245 basis points, or (ii) a base rate plus a margin of 65 to 145 basis points. The applicable margin will be determined based upon IRT’s total leverage ratio. In addition, IRT will pay a fee of either 20 basis points (if greater than or equal to 50% of the Revolver is used) or 25 basis points (if less than 50% of the Revolver is used) on the unused portion of the Revolver. The KeyBank Senior Facility requires monthly payments of interest only and does not require any mandatory prepayments.

The terms offered by KeyBank NA with respect to the KeyBank Senior Facility are valid until October 15, 2015.

The KeyBank Interim Facility is structured as a 364-day secured term loan facility (with a maturity extension option for an additional six months under certain circumstances) available in a single draw on the closing date of the Merger. IRT may prepay the KeyBank Interim Facility, in whole or in part, at any time without fee or penalty (other than as provided in a separate fee letter among IRT, KeyBank NA and KeyBanc Capital Markets), except for breakage costs associated with LIBOR borrowings. The KeyBank Interim Facility will be secured by pledges of certain of the equity interests of IROP’s current and future subsidiaries and joint ventures (on a best-available basis to the extent such equity interests can be pledged pursuant to IRT’s existing debt agreements) and a pledge of the proceeds of all equity issuances by IRT.

At IRT’s option, borrowings under the KeyBank Interim Facility will bear interest at a rate equal to either (i) the LIBOR rate plus a margin of 500 basis points, or (ii) a base rate plus a margin of 400 basis points. If IRT elects to extend its maturity, at IRT’s option, the KeyBank Interim Facility will bear interest at a rate equal to either (i) the LIBOR rate plus a margin of 650 basis points, or (ii) a base rate plus a margin of 550 basis points. The KeyBank Interim Facility requires monthly payments of interest only. IRT is required to reduce the principal amount outstanding under the KeyBank Interim Facility to no greater than $100.0 million within six months of closing and must apply 100% of all net proceeds from equity issuances, sales of assets, or refinancings of assets towards repaying the KeyBank Interim Facility.

The terms offered by KeyBank NA with respect to the KeyBank Interim Facility are valid until October 15, 2015.

IRT expects to pay certain customary fees to KeyBank NA in connection with the KeyBank Senior Facility and the KeyBank Interim Facility.

IRT has entered into the DB Commitment Letter pursuant to which, on and subject to the terms and conditions therein, DBNY has committed to provide the DB Term Loan Facility in an aggregate principal amount of up to $500.0 million, subject to customary conditions as set forth in the DB Commitment Letter. The DB Term Loan Facility will be secured by certain of the properties of TSRE and pledges of the equity of the subsidiaries which

 

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own these properties. The proceeds of the DB Term Loan Facility may be used to (i) repay certain indebtedness of IRT and TSRE, (ii) pay a portion of the Merger Consideration, and/or (iii) pay various fees and expenses incurred in connection with the Merger. The DB Term Loan Facility is structured as a nine-month secured term loan facility (with a maturity extension option for an additional three months under certain circumstances) available in a single draw on the closing date of the Merger.

The obligation of DBNY to provide the financing under the DB Commitment Letter is subject to a number of conditions, including (i) the consummation of the Merger substantially contemporaneously with the funding of the DB Term Loan Facility, (ii) that since December 31, 2014, there has not been any “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (iii) delivery of certain customary financial information with respect to IRT and TSRE, (iv) payment of all fees, expenses and other costs contemplated by the DB Commitment Letter, (v) delivery of certain customary closing documents, (vi) the accuracy of certain customary representations and warranties, and (vii) the delivery of customary mortgage and related documentation in respect of the properties securing the DB Term Loan Facility.

The DB Commitment Letter expires on the earliest of (i) October 15, 2015 (or such later date as may be agreed by the parties to the DB Commitment Letter if the outside termination date of the Merger Agreement is extended), (ii) the date on which the Merger Agreement is terminated or expires in accordance with its terms, and (iii) the date of the closing of the Merger without the use of the DB Term Loan Facility.

The borrowing under the DB Term Loan Facility may be made at interest rates equal to the LIBOR rate plus a margin of 250 to 900 basis points, or a base rate plus a margin of 150 to 800 basis points. The applicable margin will be determined based on the mortgaged property advance rate, the debt yield and amount of time the DB Term Loan Facility remains outstanding. Where the mortgaged property advance rate is less than or equal to 70% and the debt yield after giving effect to the borrowing under the DB Term Loan Facility and the consummation of the Merger is greater than or equal to 8.0%, the applicable margin for LIBOR loans will be 250 basis points and the applicable margin for base rate loans will be 150 basis points. In all other instances, the applicable margin for LIBOR loans will be 450 basis points and the applicable margin for base rate loans will be 350 basis points at closing, with interest rates increasing (i) by 150 basis points from and after the six-month anniversary of the closing date and (ii) by an additional 300 basis points from and after the nine-month anniversary of the closing date through and including the day that is the one-year anniversary of the closing date (for an aggregate increase of 450 basis points), in the event a maturity extension option is exercised.

Pursuant to such financing commitment and in accordance with the terms of the fee letter entered into among DBNY, Deutsche Bank and IRT, DBNY and Deutsche Bank expect to receive certain customary fees from IRT, including certain fees payable depending on various circumstances and contingencies. In addition, the fee letter includes certain customary “market-flex” provisions.

The DB Commitment Letter permits IRT to use alternative financing, including the KeyBank Facilities, in connection with the consummation of the Merger, and IRT is under no obligation to enter into definitive documentation for the DB Term Loan Facility or to draw upon the financing commitment from DBNY.

IRT currently intends to utilize a portion of the financing it obtains in connection with the Merger to pay off its existing revolving credit facility.

IRT’s ability to finance the Merger is not a condition to its obligation to complete the Merger.

Miscellaneous Provisions

Specific Performance

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breaches of the Merger Agreement and to enforce specifically the terms and provisions of the Merger Agreement, including any party’s obligations to consummate the Merger and the other transactions contemplated by the Merger Agreement, in addition to any and all other remedies at law or in equity. In the event that the Merger Agreement is terminated under circumstances in which IRT pays TSRE the IRT Termination Fee, TSRE will not be entitled to seek or obtain a decree or order of specific performance to enforce the observance or performance of, and will not be entitled to seek or obtain an injunction restraining the breach of, or to seek or obtain damages or any other remedy at law or in equity relating to any breach of, any covenant or obligation of IRT, IROP, OP Merger Sub or IRT LP LLC other than with respect to the payment of the IRT Termination Fee. Nothing in the Merger Agreement obligates IRT or any of its affiliates to enforce specifically the terms and provisions of the DB Commitment Letter.

Amendment

The parties to the Merger Agreement may amend the Merger Agreement by an instrument in writing signed by each of the parties, provided that, after either (i) approval of the Company Merger and the other transactions contemplated by the Merger Agreement by TSRE’s stockholders or (ii) approval of the issuance of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger) by IRT’s stockholders, no amendment may be made which by law requires further approval by such stockholders without such further approval. Certain provisions of the Merger Agreement relating to the financing related to the Merger may not be amended or modified in any way that adversely affects the rights of any of IRT’s potential financing sources without the prior written consent of such financing sources.

Waiver

Prior to the effective time of the Partnership Merger, any of the parties to the Merger Agreement may extend the time for performance of any obligations of the other parties to the Merger Agreement or waive any inaccuracies in the representations and warranties contained in the Merger Agreement or the other parties’ compliance with any agreements or conditions contained in the Merger Agreement.

Governing Law

The Merger Agreement is governed by the laws of the State of Maryland, without giving effect to any choice or conflicts of laws principles; provided that (i) the Partnership Merger and the Company Merger are governed by the laws of the State of Delaware and (ii) all disputes relating to the DB Commitment Letter or any of IRT’s potential financing sources are governed by the laws of the State of New York.

Jurisdiction; Venue

All proceedings arising out of or relating to the Merger Agreement shall be heard and determined exclusively in the Circuit Court for Baltimore City (Maryland), or, if under applicable law exclusive jurisdiction over the matter is vested in the federal courts, any federal court located in the State of Maryland. Each of the parties to the Merger Agreement has irrevocably and unconditionally agreed to request and/or consent to the assignment of any such proceeding to the Maryland Business and Technology Case Management Program.

 

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MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES

Material U.S. Federal Income Tax Consequences of the Merger

The following is a discussion of the material U.S. federal income tax consequences of the Company Merger to U.S. holders and non-U.S. holders (each as defined below) of shares of TSRE common stock and of the ownership and disposition of Combined Company common stock received in the Company Merger.

This discussion assumes that holders of TSRE common stock and holders of Combined Company common stock hold such common stock as a capital asset within the meaning of Section 1221 of the Code. This discussion is based upon the Code, Treasury regulations promulgated under the Code, referred to herein as the Treasury Regulations, judicial decisions and published administrative rulings, all as currently in effect and all of which are subject to change, possibly with retroactive effect. This discussion does not address (i) U.S. federal taxes other than income taxes, (ii) state, local or non-U.S. taxes or (iii) tax reporting requirements, in each case, as applicable to the Company Merger. In addition, this discussion does not address U.S. federal income tax considerations applicable to holders of shares of TSRE common stock that are subject to special treatment under U.S. federal income tax law, including, for example:

 

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financial institutions;

 

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pass-through entities (such as entities treated as partnerships for U.S. federal income tax purposes);

 

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insurance companies;

 

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broker-dealers;

 

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tax-exempt organizations;

 

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dealers in securities or currencies;

 

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traders in securities that elect to use a mark to market method of accounting;

 

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persons that hold shares of TSRE common stock (or, following the effective time of the Company Merger, Combined Company common stock) as part of a straddle, hedge, constructive sale, conversion transaction, or other integrated transaction for U.S. federal income tax purposes;

 

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regulated investment companies;

 

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real estate investment trusts;

 

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certain U.S. expatriates;

 

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U.S. holders whose “functional currency” is not the U.S. dollar; and

 

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persons who acquired their shares of TSRE common stock (or, following the effective time of the Company Merger, Combined Company common stock) through the exercise of an employee stock option or otherwise as compensation.

For purposes of this discussion, a “holder” means a beneficial owner of shares of TSRE common stock (or, following the effective time of the Company Merger, of the Combined Company common stock), and a “U.S. holder” means a holder that is:

 

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an individual who is a citizen or resident of the United States for U.S. federal income tax purposes;

 

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a corporation (or other entity taxable as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States or any political subdivision thereof;

 

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an estate the income of which is subject to U.S. federal income taxation regardless of its source; or

 

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a trust that (A) is subject to the supervision of a court within the United States and the control of one or more U.S. persons or (B) has a valid election in place under the Treasury Regulations to be treated as a U.S. person.

 

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For purposes of this discussion, a “non-U.S. holder” means a beneficial owner of shares of TSRE common stock (or, following the effective time of the Company Merger, Combined Company common stock) other than a U.S. holder or partnership.

If a partnership (or other entity or arrangement treated as a partnership for U.S. federal income tax purposes) holds shares of TSRE common stock (or, following the Company Merger, Combined Company common stock), the tax treatment of a partner in the partnership generally will depend on the status of the partner and the activities of the partnership. Any partnership or other entity or arrangement treated as a partnership for U.S. federal income tax purposes that holds shares of TSRE common stock (or, following the Company Merger, the Combined Company common stock), and the partners in such partnership (as determined for U.S. federal income tax purposes), should consult their tax advisors.

This discussion of material U.S. federal income tax consequences of the Company Merger is not binding on the IRS. No assurance can be given that the IRS would not assert, or that a court would not sustain, a position contrary to any described herein.

THE U.S. FEDERAL INCOME TAX RULES APPLICABLE TO THE MERGER AND TO REITS GENERALLY ARE HIGHLY TECHNICAL AND COMPLEX. HOLDERS OF SHARES OF TSRE COMMON STOCK ARE URGED TO CONSULT THEIR TAX ADVISORS REGARDING THE SPECIFIC TAX CONSEQUENCES TO THEM OF THE MERGER, THE OWNERSHIP OF COMMON STOCK OF THE COMBINED COMPANY, AND THE COMBINED COMPANY’S QUALIFICATION AS A REIT, INCLUDING THE APPLICABILITY AND EFFECT OF U.S. FEDERAL, STATE, LOCAL AND NON-U.S. INCOME AND OTHER TAX LAWS, AND POTENTIAL CHANGES IN APPLICABLE TAX LAWS, IN LIGHT OF THEIR PARTICULAR CIRCUMSTANCES.

Tax Opinions from Counsel Regarding the Merger

It is a condition to the completion of the Merger that Morrison & Foerster LLP and Pepper Hamilton LLP each renders a tax opinion to its client, dated as of the closing date of the Company Merger, to the effect that the Company Merger will constitute a reorganization within the meaning of Section 368(a) of the Code. Morrison & Foerster LLP and Pepper Hamilton LLP counsel are providing opinions to TSRE and IRT, respectively, to similar effect in connection with the filing of this Registration Statement. Such opinions will be subject to customary exceptions, assumptions and qualifications, and will be based on representations made by TSRE and IRT regarding factual matters (including those contained in tax representation letters provided by TSRE and IRT), and covenants undertaken by TSRE and IRT, each as of the closing date of the Company Merger, and they assume that the Per Share Cash Amount will not be more than 60% of the total Merger Consideration to be received by a holder of TSRE common stock in the Company Merger. If any assumption or representation is inaccurate in any way, or any covenant is not complied with, the tax consequences of the Company Merger could differ from those described in the tax opinions and in this discussion. These tax opinions represent the legal judgment of counsel rendering the opinion and are not binding on the IRS or the courts. No ruling from the IRS has been or will be requested in connection with the Company Merger, and there can be no assurance that the IRS would not assert, or that a court would not sustain, a position contrary to the conclusions set forth in the tax opinions. If the condition relating to either tax opinion to be delivered at closing is waived, this joint proxy statement/prospectus will be amended and recirculated.

As noted and subject to the qualifications above, in the opinion of Morrison & Foerster LLP and Pepper Hamilton LLP, the Company Merger of TSRE into IRT LP LLC will qualify as a reorganization within the meaning of Section 368(a) of the Code. As a reorganization within the meaning of Section 368(a) of the Code, the material U.S. federal income tax consequences of the Company Merger will be as follows:

 

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TSRE will not recognize any gain or loss as a result of the Company Merger.

 

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A holder of TSRE common stock will recognize gain, to the extent of the lesser of (1) the total amount of cash received by such holder in the Company Merger (other than cash received in lieu of a fractional

 

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share of Combined Company common stock); and (2) the difference between (a) the sum of the fair market value of the Combined Company common stock received in the Company Merger plus the amount of cash received in the Company Merger (other than cash received in lieu of a fractional share of Combined Company common stock), and (b) the stockholder’s tax basis in the shares of TSRE common stock surrendered in exchange therefor.

 

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No loss will be recognized, except for loss resulting from the receipt of cash in lieu of a fractional share of Combined Company common stock.

 

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If a holder acquired different blocks of shares of TSRE common stock at different times or different prices, Treasury Regulations provide guidance on how such holder may allocate its tax basis to shares of the Combined Company common stock received in the Company Merger. Holders that hold multiple blocks of shares of TSRE common stock should consult their tax advisors regarding the proper allocation of their basis among shares of Combined Company common stock received in the Company Merger under these Treasury Regulations.

 

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Any gain recognized generally will be capital gain, provided that the cash consideration received does not have the effect of the distribution of a dividend within the meaning of Section 356(a)(2) of the Code (including through the application of Section 302 of the Code). Such capital gain will be long-term capital gain if the shares of TSRE common stock exchanged were held for more than one year. Whether or not the cash consideration received by any stockholder could be considered essentially equivalent to, or having the effect of, a dividend will depend on the holder’s particular situation. Each holder of shares of TSRE common stock should consult its own tax advisor as to the applicability of these rules to them.

 

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The aggregate tax basis of the Combined Company common stock received (including any fractional share interests deemed received and redeemed for cash as described below) by a holder will be the same as the aggregate tax basis of the shares of TSRE common stock surrendered in exchange therefor, reduced by the amount of cash received in the Company Merger (excluding cash received in lieu of a fractional share of Combined Company common stock) and increased by the amount of any gain or dividend income recognized in the Company Merger (excluding any gain recognized as a result of any cash received in lieu of a fractional share of Combined Company common stock). Holders of shares of TSRE common stock who hold multiple blocks of shares of TSRE common stock should consult their tax advisors regarding the proper allocation of their basis among Combined Company common stock received.

 

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The holding period of the Combined Company common stock received by a holder in connection with the Company Merger will include the holding period of the shares of TSRE common stock surrendered in the Company Merger.

 

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Cash received by a holder of TSRE common stock in lieu of a fractional share of Combined Company common stock in the Company Merger will be treated as if such fractional share had been issued in the Company Merger and then redeemed by the Combined Company, and such holder generally will recognize capital gain or loss with respect to such cash payment, measured by the difference, if any, between the amount of cash received and the holder’s tax basis in such fractional share. Such capital gain or loss will be long-term capital gain or loss if the holder’s holding period in respect of such fractional share is greater than one year. Certain non-corporate holders generally are subject to tax on long-term capital gains at reduced rates under current law. The deductibility of capital losses is subject to certain limitations.

 

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Non-U.S. holders of shares of TSRE common stock generally will not be subject to U.S. federal income tax on amounts described above (other than dividends) if (1) such non-U.S. holder has owned, actually or constructively, 5% or less of TSRE’s outstanding common stock during the five-year period ending on the date of the Company Merger the stock) or (2) TSRE is a “domestically controlled” REIT. A domestically controlled qualified investment entity includes a REIT in which, at all times during a specified testing period, less than 50% in value of its outstanding shares are held directly or indirectly

 

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by non-U.S. holders. Because TSRE is publicly traded, it cannot be certain that it is domestically controlled. If TSRE is not domestically controlled, a non-U.S. holder that owns more than 5% in value of TSRE’s common stock will be subject to U.S. federal income tax on that holder’s gain in their TSRE common stock unless (A) the Combined Company is not domestically-controlled, (B) either the Combined Company common stock is not regularly traded on an established securities market or the non-U.S. holder receives more than 5% in value of the Combined Company common stock if such common stock is regularly traded on an established securities market, and (C) the non-U.S. holder complies with certain U.S. return filing requirements, in which case only the gain attributable to fractional shares exchanged for cash shall be subject to U.S. federal income tax. If a non-U.S. holder is subject to tax on its exchange of TSRE common stock in the Company Merger, its gain will be measured by the excess of (i) the sum of the fair market value of the Combined Company stock received in the exchange plus any cash received over (ii) the non-U.S. holder’s adjusted tax basis in its TSRE common stock.

 

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If the cash consideration received by a non-U.S. holder could be considered to be essentially equivalent to, or having the effect of, a dividend, as discussed above, such dividend generally will be treated as ordinary income and will be subject to withholding tax at the rate of 30%, unless reduced or eliminated by an applicable income tax treaty.

Backup Withholding

Certain holders of shares of TSRE common stock may be subject to backup withholding with respect to any cash received in the Company Merger. Backup withholding generally will not apply, however, to a holder of shares of TSRE common stock that furnishes a correct taxpayer identification number and certifies that it is not subject to backup withholding on IRS Form W-9, provides a properly completed IRS Form W-8BEN or W-8BEN-E (as applicable), or is otherwise exempt from backup withholding and provides appropriate proof of the applicable exemption. Backup withholding is not an additional tax and any amounts withheld will be allowed as a refund or credit against the holder’s U.S. federal income tax liability, if any, provided that the holder timely furnishes the required information to the IRS.

Tax Opinions from Counsel Regarding REIT Qualification of TSRE and IRT

It is a condition to the obligation of IRT to complete the Company Merger that IRT receive an opinion from Morrison & Foerster LLP, dated as of the closing date of the Company Merger, to the effect that, TSRE, commencing with its taxable year ended December 31, 2012 through its taxable year ending with the Company Merger, was organized and operated in conformity with the requirements for qualification and taxation as a REIT under Sections 856 through 860 of the Code. The opinion of Morrison & Foerster LLP will be subject to customary exceptions, assumptions and qualifications, and be based on representations made by TSRE regarding factual matters (including those contained in tax representation letters provided by TSRE and IRT) relating to the organization and operation of TSRE and its subsidiaries as of the closing date of the Company Merger.

It is a condition to the obligation of TSRE to complete the Company Merger that TSRE receive an opinion from Pepper Hamilton LLP, dated as of the closing date of the Company Merger, to the effect that, for all taxable years commencing with IRT’s taxable year ended December 31, 2011, IRT was organized and operated in conformity with the requirements for qualification and taxation as a REIT under Sections 856 through 860 of the Code, and its past, current, and intended future organization and operations will permit IRT (as the Combined Company) to continue to qualify for taxation as a REIT under Sections 856 through 860 of the Code for its taxable year ending on or before December 31, 2015 that includes the Company Merger. The opinion of Pepper Hamilton LLP will be subject to customary exceptions, assumptions and qualifications, and be based on representations made by TSRE and IRT regarding factual matters (including those contained in tax representation letters provided by TSRE and IRT), and covenants undertaken by IRT, relating to the organization and operation of the Combined Company and its subsidiaries.

 

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Neither of the opinions described above will be binding on the IRS or the courts. The Combined Company intends to continue to operate in a manner to qualify as a REIT following the Company Merger, but there is no guarantee that it will qualify or remain qualified as a REIT. Qualification and taxation as a REIT depends upon the ability of the Combined Company to meet, through actual annual (or, in some cases, quarterly) operating results, requirements relating to income, asset ownership, distribution levels and diversity of share ownership, and the various REIT qualification requirements imposed under the Code. Given the complex nature of the REIT qualification requirements, the ongoing importance of factual determinations and the possibility of future changes in the circumstances of the Combined Company, there can be no assurance that the actual operating results of the Combined Company will satisfy the requirements for taxation as a REIT under the Code for any particular tax year.

Tax Liabilities and Attributes Inherited from TSRE

If TSRE failed to qualify as a REIT for any of its taxable years for which the applicable period for assessment had not expired, TSRE would be liable for (and the Combined Company would be obligated to pay) U.S. federal income tax on its taxable income for such years at regular corporate rates, and, assuming the Company Merger qualified as a reorganization within the meaning of Section 368(a) of the Code, the Combined Company would be subject to tax on the built-in gain on each TSRE asset existing at the time of the Company Merger if the Combined Company were to dispose of the TSRE asset within a statutory period, which could extend for up to ten years following the Company Merger. Such tax would be imposed at the highest regular corporate rate in effect at the date of the sale. Furthermore, after the Company Merger, the asset and income tests will apply to all of the assets of the Combined Company, including the assets the Combined Company acquires from TSRE, and to all of the income of the Combined Company, including the income derived from the assets the Combined Company acquires from TSRE. As a result, the nature of the assets that the Combined Company acquires from TSRE and the income the Combined Company derives from those assets may have an effect on the tax status of the Combined Company as a REIT.

Qualification as a REIT requires TSRE to satisfy numerous requirements, some on an annual and others on a quarterly basis, as described below with respect to TSRE. There are only limited judicial and administrative interpretations of these requirements, and qualification as a REIT involves the determination of various factual matters and circumstances which were not entirely within the control of TSRE.

Tax Liabilities and Attributes of IRT

If IRT failed to qualify as a REIT for any of its taxable years for which the applicable period for assessment had not expired, IRT would be liable for (and the Combined Company would be obligated to pay) U.S. federal income tax on its taxable income at regular corporate rates. Furthermore, IRT (and the Combined Company) would not be able to re-elect REIT status until the fifth taxable year after the first taxable year in which such failure occurred.

Material U.S. Federal Income Tax Considerations Applicable to Holders of the Combined Company Common Stock

This section summarizes the material U.S. federal income tax consequences generally resulting from the election of IRT to be taxed as a REIT and the ownership of common stock of the Combined Company. The sections of the Code and the corresponding Treasury Regulations that relate to qualification and operation as a REIT are highly technical and complex. The following sets forth the material aspects of the sections of the Code that govern the U.S. federal income tax treatment of a REIT and the holders of certain of its common stock under current law. This summary is qualified in its entirety by the applicable Code provisions, relevant rules and regulations promulgated under the Code, and administrative and judicial interpretations of the Code and these rules and regulations.

 

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Taxation of REITs

TSRE and IRT have each elected to be taxed as a REIT. IRT elected to be taxed as a REIT under Sections 856 through 860 of the Code commencing with its taxable year ended December 31, 2011.

IRT currently intends to continue to be organized and operate in this manner as the “Combined Company.” However, qualification and taxation as a REIT depend upon the ability of the Combined Company to meet the various qualification tests imposed under the Code, including through actual annual operating results, asset composition, distribution levels and diversity of stock ownership. Accordingly, no assurance can be given that IRT has been organized and has operated, or that the Combined Company will continue to be organized and operate, in a manner so as to qualify or remain qualified as a REIT.

In brief, a corporation that invests primarily in real estate can, if it complies with the provisions in Sections 856 through 860 of the Code, qualify as a REIT and claim U.S. federal income tax deductions for the dividends it pays to its stockholders. Such a corporation generally is not taxed on its REIT taxable income to the extent such income is currently distributed to stockholders, thereby completely or substantially eliminating the “double taxation” that a corporation and its stockholders generally bear together. However, as discussed in greater detail below, a corporation could be subject to U.S. federal income tax in some circumstances even if it qualifies as a REIT and would likely suffer adverse consequences, including reduced cash available for distribution to its stockholders, if it failed to qualify as a REIT.

General

In any year in which the Combined Company qualifies as a REIT and has a valid REIT election in place, it will claim deductions for the dividends that it pays to the stockholders, and therefore will not be subject to U.S. federal income tax on that portion of its REIT taxable income or capital gain which is currently distributed to its stockholders. The Combined Company will, however, be subject to U.S. federal income tax at normal corporate rates on any REIT taxable income or capital gain not distributed.

Even though the Combined Company qualifies as a REIT, it nonetheless is subject to U.S. federal tax in the following circumstances:

 

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The Combined Company is taxed at regular corporate rates on any REIT taxable income, including undistributed net capital gains that it do not distribute to stockholders during, or within a specified period after, the calendar year in which it recognized such income. The Combined Company may elect to retain and pay income tax on its net long-term capital gain. In that case, a stockholder would include its proportionate share of the Combined Company’s undistributed long-term capital gain (to the extent the Combined Company makes a timely designation of such gain to the stockholder) in its income, would be deemed to have paid the tax that the Combined Company has paid on such gain, and would be allowed a credit for its proportionate share of the tax deemed to have been paid, and an adjustment would be made to increase the stockholder’s basis in the Combined Company’s common stock.

 

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The Combined Company may be subject to the alternative minimum tax.

 

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If the Combined Company has net income from prohibited transactions, such income will be subject to a 100% tax. “Prohibited transactions” are, in general, sales or other dispositions of property held primarily for sale to customers in the ordinary course of business, rather than for investment, other than foreclosure property.

 

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If the Combined Company has net income from the sale or disposition of “foreclosure property,” as described below, that is held primarily for sale in the ordinary course of business or other non-qualifying income from foreclosure property, the Combined Company will be subject to corporate tax on such income at the highest applicable rate (currently 35%).

 

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If the Combined Company fails to satisfy the 75% Gross Income Test or the 95% Gross Income Test, as discussed below, but nonetheless maintain its qualification as a REIT because other requirements are

 

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met, the Combined Company will be subject to a 100% tax on an amount equal to (1) the greater of (a) the amount by which it fails the 75% Gross Income Test or (b) the amount by which it fails the 95% Gross Income Test, as the case may be, multiplied by (2) a fraction intended to reflect the Combined Company’s profitability.

 

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If the Combined Company fails to satisfy any of the REIT Asset Tests, as described below, other than certain de minimis failures, but its failure is due to reasonable cause and not due to willful neglect and it nonetheless maintains its REIT qualification because of specified cure provisions, the Combined Company will be required to pay a tax equal to the greater of $50,000 or 35% of the net income generated by the nonqualifying assets during the period in which it failed to satisfy the Asset Tests.

 

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If the Combined Company fails to satisfy any other REIT qualification requirements (other than a Gross Income or Asset Tests) and that violation is due to reasonable cause and not due to willful neglect, it may retain its REIT qualification, but it will be required to pay a penalty of $50,000 for each such failure.

 

•

If the Combined Company fails to distribute during each calendar year at least the sum of (1) 85% of its REIT ordinary income for such year, (2) 95% of its REIT capital gain net income for such year and (3) any undistributed taxable income from prior periods, the Combined Company will be subject to a 4% excise tax on the excess of such required distribution over the sum of (a) the amounts actually distributed (taking into account excess distributions from prior years), plus (b) retained amounts on which federal income tax is paid at the corporate level.

 

•

The Combined Company may be required to pay monetary penalties to the IRS in certain circumstances, including if it fails to meet record-keeping requirements intended to monitor its compliance with rules relating to the composition of its stockholders.

 

•

A 100% tax may be imposed on some items of income and expense that are directly or constructively paid between the Combined Company, its lessor or a TRS (as described below) if and to the extent that the IRS successfully adjusts the reported amounts of these items.

 

•

If the Combined Company acquires appreciated assets from a C corporation (i.e., a corporation generally subject to corporate income tax) in a transaction in which the adjusted tax basis of the assets in the Combined Company’s hands is determined by reference to the adjusted tax basis of the assets in the hands of the C corporation, the Combined Company may be subject to tax on such appreciation at the highest corporate income tax rate then applicable if it subsequently recognizes gain on a disposition of such assets during a specified period following their acquisition from the C corporation. The results described in this paragraph would not apply if the non-REIT corporation elects, in lieu of this treatment, to be subject to an immediate tax when the asset is acquired by the Combined Company.

 

•

The Combined Company may have subsidiaries or own interests in other lower-tier entities that are C corporations, such as TRSs, the earnings of which would be subject to federal corporate income tax.

In addition, the Combined Company and its subsidiaries may be subject to a variety of taxes other than U.S. federal income tax, including payroll taxes and state, local, and non-U.S. income, franchise property and other taxes on assets and operation. The Combined Company could also be subject to tax in situations and on transactions not presently contemplated.

REIT Qualification Tests

The Code defines a REIT as a corporation, trust or association:

 

•

that elects to be taxed as a REIT;

 

•

that is managed by one or more trustees or directors;

 

•

the beneficial ownership of which is evidenced by transferable shares or by transferable certificates of beneficial interest;

 

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•

that would be taxable as a domestic corporation but for its status as a REIT;

 

•

that is neither a financial institution nor an insurance company;

 

•

that meets the gross income, asset and annual distribution requirements;

 

•

the beneficial ownership of which is held by 100 or more persons on at least 335 days in each full taxable year, proportionately adjusted for a partial taxable year; and

 

•

generally in which, at any time during the last half of each taxable year, no more than 50% in value of the outstanding stock is owned, directly or indirectly, by five or fewer individuals or entities treated as individuals for this purpose.

The first six conditions must be met during each taxable year for which REIT status is sought, while the last two conditions do not have to be met until after the first taxable year for which a REIT election is made.

Share Ownership Tests. The Combined Company’s common stock and any other stock it issues must be held by a minimum of 100 persons (determined without attribution to the owners of any entity owning the Combined Company’s stock) for at least 335 days in each full taxable year, proportionately adjusted for partial taxable years. In addition, at all times during the second half of each taxable year, no more than 50% in value of the Combined Company’s stock may be owned, directly or indirectly, by five or fewer individuals (determined with attribution to the owners of any entity owning the Combined Company’s stock). These two requirements do not apply until after the first taxable year for which the Combined Company elected REIT status.

The Combined Company’s charter contains certain provisions intended to enable it to meet these requirements. First, it contains provisions restricting the transfer of the Combined Company’s stock that would result in any person beneficially owning or constructively owning more than 9.8% in value or in number of shares, whichever is more restrictive, of any class or series of the Combined Company’s outstanding capital stock, including its common stock, subject to certain exceptions. The Combined Company’s board of directors has granted such an exception for RAIT and its subsidiaries to own, in the aggregate, up to 100% of the Combined Company’s outstanding common stock. Additionally, the terms of the options that may be granted to the independent directors will contain provisions that prevent them from causing a violation of these tests. The Combined Company’s charter also contains provisions requiring each holder of the Combined Company’s shares to disclose, upon demand, constructive or beneficial ownership of shares as deemed necessary to comply with the requirements of the Code. Furthermore, stockholders failing or refusing to comply with the Combined Company’s disclosure request will be required, under regulations of the Code, to submit a statement of such information to the IRS at the time of filing their annual income tax return for the year in which the request was made.

Subsidiary Entities. A qualified REIT subsidiary is a corporation that is wholly owned by a REIT and is not a TRS. For purposes of the Asset and Gross Income Tests described below, all assets, liabilities and tax attributes of a qualified REIT subsidiary are treated as belonging to the REIT. A qualified REIT subsidiary is not subject to U.S. federal income tax, but may be subject to state or local tax. Although the Combined Company expects to hold all of its investments through IROP, it may hold investments through qualified REIT subsidiaries. A TRS is described under “Asset Tests” below. A partnership is not subject to U.S. federal income tax and instead allocates its tax attributes to its partners. The partners are subject to U.S. federal income tax on their allocable share of the income and gain, without regard to whether they receive distributions from the partnership. Each partner’s share of a partnership’s tax attributes is determined in accordance with the partnership agreement. For purposes of the Asset and Gross Income Tests, the Combined Company will be deemed to own a proportionate share of the assets of IROP, and the Combined Company will be allocated a proportionate share of each item of gross income of IROP.

Asset Tests. At the close of each calendar quarter of each taxable year, the Combined Company must satisfy a series of tests based on the composition of its assets. After initially meeting the Asset Tests at the close of any quarter, the Combined Company will not lose its status as a REIT for failure to satisfy the Asset Tests at the end

 

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of a later quarter solely due to changes in value of its assets. In addition, if the failure to satisfy the Asset Tests results from an acquisition during a quarter, the failure can be cured by disposing of non-qualifying assets within 30 days after the close of that quarter. The Combined Company intends to maintain adequate records of the value of its assets to ensure compliance with these tests and will act within 30 days after the close of any quarter as may be required to cure any noncompliance.

At least 75% of the value of the Combined Company’s assets must be represented by “real estate assets,” cash, cash items (including receivables) and government securities. Real estate assets include (i) real property (including interests in real property and interests in mortgages on real property), (ii) shares in other qualifying REITs and (iii) any stock or debt instrument (not otherwise a real estate asset) attributable to the temporary investment of “new capital,” but only for the one-year period beginning on the date the Combined Company received the new capital. Property will qualify as being attributable to the temporary investment of new capital if the money used to purchase the stock or debt instrument is received by the Combined Company in exchange for its stock or in a public offering of debt obligations that have a maturity of at least five years.

If the Combined Company invests in any securities that do not qualify under the 75% test, such securities may not exceed either: (i) 5% of the value of the Combined Company’s assets as to any one issuer; or (ii) 10% of the outstanding securities by vote or value of any one issuer. A partnership interest held by a REIT is not considered a “security” for purposes of these tests; instead, the REIT is treated as owning directly its proportionate share of the partnership’s assets. For purposes of the 10% value test, a REIT’s proportionate share is based on its proportionate interest in the equity interests and certain debt securities issued by a partnership. For all of the other Asset Tests, a REIT’s proportionate share is based on its proportionate interest in the capital of the partnership. In addition, as discussed above, the stock of a qualified REIT subsidiary is not counted for purposes of the Asset Tests.

Certain securities will not cause a violation of the 10% value test described above. Such securities include instruments that constitute “straight debt.” A security does not qualify as “straight debt” where a REIT (or a controlled TRS of the REIT) owns other securities of the issuer of that security which do not qualify as straight debt, unless the value of those other securities constitute, in the aggregate, 1% or less of the total value of that issuer’s outstanding securities. In addition to straight debt, the following securities will not violate the 10% value test:

 

(i)

any loan made to an individual or an estate;

 

(ii)

certain rental agreements in which one or more payments are to be made in subsequent years (other than agreements between a REIT and certain persons related to the REIT);

 

(iii)

any obligation to pay rents from real property;

 

(iv)

securities issued by governmental entities that are not dependent in whole or in part on the profits of (or payments made by) a non-governmental entity;

 

(v)

any security issued by another REIT; and

 

(vi)

any debt instrument issued by a partnership if the partnership’s income is such that the partnership would satisfy the 75% Gross Income Test described below. In applying the 10% value test, a debt security issued by a partnership is not taken into account to the extent, if any, of the REIT’s proportionate interest in that partnership. Any debt instrument issued by a partnership (other than straight debt or another excluded security) will not be considered a security issued by the partnership if at least 75% of the partnership’s gross income is derived from sources that would qualify for the 75% Gross Income Test, and any debt instrument issued by a partnership (other than straight debt or another excluded security) will not be considered a security issued by the partnership to the extent of the REIT’s interest as a partner in the partnership.

A REIT may own the stock of a TRS. A TRS is a corporation (other than another REIT) that is owned in whole or in part by a REIT, and joins in an election with the REIT to be classified as a TRS. A corporation that is 35%

 

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owned by a TRS will also be treated as a TRS. Securities of a TRS are excepted from the 5% and 10% vote and value limitations on a REIT’s ownership of securities of a single issuer. However, no more than 25% of the value of a REIT’s assets may be represented by securities of one or more TRSs.

A REIT is able to cure certain asset test violations. As noted above, a REIT cannot own securities of any one issuer representing more than 5% of the total value of the REIT’s assets or more than 10% of the outstanding securities, by vote or value, of any one issuer. However, a REIT would not lose its REIT status for failing to satisfy these 5% or 10% Asset Tests in a quarter if the failure is due to the ownership of assets the total value of which does not exceed the lesser of (i) 1% of the total value of the REIT’s assets at the end of the quarter for which the measurement is done, or (ii) $10.0 million; provided in either case that the REIT either disposes of the assets within six months after the last day of the quarter in which the REIT identifies the failure (or such other time period prescribed by the Treasury), or otherwise meets the requirements of those rules by the end of that period.

If a REIT fails to meet any of the Asset Tests for a quarter and the failure exceeds the de minimis threshold described above, then the REIT still would be deemed to have satisfied the requirements if (i) following the REIT’s identification of the failure, the REIT files a schedule with a description of each asset that caused the failure, in accordance with regulations prescribed by the Treasury; (ii) the failure was due to reasonable cause and not to willful neglect; (iii) the REIT disposes of the assets within six months after the last day of the quarter in which the identification occurred or such other time period as is prescribed by the Treasury (or the requirements of the rules are otherwise met within that period); and (iv) the REIT pays a tax on the failure equal to the greater of (1) $50,000 or (2) an amount determined (under regulations) by multiplying (x) the highest rate of tax for corporations under Section 11 of the Code, by (y) the net income generated by the assets for the period beginning on the first date of the failure and ending on the date the REIT has disposed of the assets (or otherwise satisfies the requirements).

The Combined Company believes that its holdings of securities and other assets comply with the foregoing Asset Tests, and it intends to monitor compliance with such tests on an ongoing basis. The values of some of the Combined Company’s assets, however, may not be precisely valued, and values are subject to change in the future. Furthermore, the proper classification of an instrument as debt or equity for U.S. federal income tax purposes may be uncertain in some circumstances, which could affect the application of the REIT Asset Tests. Accordingly, there can be no assurance that the IRS will not contend that the Combined Company’s assets do not meet the requirements of the Asset Tests.

Gross Income Tests. For each calendar year, the Combined Company must satisfy two separate tests based on the composition of its gross income, as defined under its method of accounting.

The 75% Gross Income Test. At least 75% of the Combined Company’s gross income for the taxable year (excluding gross income from prohibited transactions and certain hedging transactions as discussed below under “—Hedging Transactions” and cancellation of indebtedness income) must result from (i) rents from real property, (ii) interest on obligations secured by mortgages on real property or on interests in real property, (iii) gains from the sale or other disposition of real property (including interests in real property and interests in mortgages on real property) other than property held primarily for sale to customers in the ordinary course of the Combined Company’s trade or business, (iv) dividends from other qualifying REITs and gain (other than gain from prohibited transactions) from the sale of shares of other qualifying REITs, (v) other specified investments relating to real property or mortgages thereon, and (vi) income attributable to stock or a debt investment that is attributable to a temporary investment of new capital (as described under the 75% Asset Test above) received or earned during the one-year period beginning on the date the Combined Company received such new capital. The Combined Company intends to invest funds not otherwise invested in real properties in cash sources or other liquid investments which will allow it to qualify under the 75% Gross Income Test.

 

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Income attributable to a lease of real property will generally qualify as “rents from real property” under the 75% Gross Income Test (and the 95% Gross Income Test described below), subject to the rules discussed below:

Rent from a particular tenant will not qualify if the Combined Company, or an owner of 10% or more of its stock, directly or indirectly, owns 10% or more of the voting stock or the total number of shares of all classes of stock in, or 10% or more of the assets or net profits of, the tenant (subject to certain exceptions). The portion of rent attributable to personal property rented in connection with real property will not qualify, unless the portion attributable to personal property is 15% or less of the total rent received under, or in connection with, the lease.

Generally, rent will not qualify if it is based in whole, or in part, on the income or profits of any person from the underlying property. However, rent will not fail to qualify if it is based on a fixed percentage (or designated varying percentages) of receipts or sales, including amounts above a base amount so long as the base amount is fixed at the time the lease is entered into, the provisions are in accordance with normal business practice and the arrangement is not an indirect method for basing rent on income or profits.

Rental income will not qualify if the Combined Company furnishes or renders services to tenants or manages or operates the underlying property, other than through a permissible “independent contractor” from whom it derives no revenue, or through a TRS. This requirement, however, does not apply to the extent that the services, management or operations the Combined Company provides are “usually or customarily rendered” in connection with the rental of space, and are not otherwise considered “rendered to the occupant.” With respect to this rule, tenants will receive some services in connection with their leases of the real properties. The Combined Company’s intention is that the services to be provided are those usually or customarily rendered in connection with the rental of space, and therefore, providing these services will not cause the rents received with respect to the properties to fail to qualify as rents from real property for purposes of the 75% Gross Income Test (and the 95% Gross Income Test described below). The Combined Company’s board of directors intends to hire qualifying independent contractors or to utilize TRSs to render services which it believes, after consultation with the Combined Company’s tax advisor, are not usually or customarily rendered in connection with the rental of space.

In addition, the Combined Company has represented that, with respect to its leasing activities, it will not (i) charge rent for any property that is based in whole or in part on the income or profits of any person (except by reason of being based on a percentage of receipts or sales, as described above) (ii) charge rent that will be attributable to personal property in an amount greater than 15% of the total rent received under the applicable lease, or (iii) enter into any lease with a related party tenant.

Amounts received as rent from a TRS are not excluded from rents from real property by reason of the related party rules described above, if the activities of the TRS and the nature of the properties it leases meet certain requirements. In addition, the TRS rules limit the deductibility of interest paid or accrued by a TRS to its parent REIT to assure that the TRS is subject to an appropriate level of corporate taxation. Further, a 100% excise tax is imposed on transactions between a TRS and its parent REIT or the REIT’s tenants whose terms are not on an arms’ length basis.

It is possible that the Combined Company will be paid interest on loans secured by real property. All interest income qualifies under the 95% Gross Income Test, and interest on loans secured by real property qualifies under the 75% Gross Income Test, provided in both cases, that the interest does not depend, in whole or in part, on the income or profits of any person (other than amounts based on a fixed percentage of receipts or sales). If a loan is secured by both real property and other property, all the interest on it will nevertheless qualify under the 75% Gross Income Test if the amount of the loan does not exceed the fair market value of the real property at the time the Combined Company commits to make or acquire the loan. The Combined Company expects that all of its loans secured by real property will be structured this way. Therefore, income generated through any investments in loans secured by real property should be treated as qualifying income under the 75% Gross Income Test.

The 95% Gross Income Test. In addition to deriving 75% of its gross income from the sources listed above, at least 95% of the Combined Company’s gross income (excluding gross income from prohibited transactions and

 

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certain hedging transactions as discussed below under “—Hedging Transactions” and cancellation of indebtedness income) for the taxable year must be derived from (i) sources which satisfy the 75% Gross Income Test, (ii) dividends, (iii) interest, or (iv) gain from the sale or disposition of stock or other securities that are not assets held primarily for sale to customers in the ordinary course of the Combined Company’s trade or business. The Combined Company intends to invest funds not otherwise invested in properties in cash sources or other liquid investments which will allow it to satisfy the 95% Gross Income Test.

The Combined Company’s share of income from the properties will primarily give rise to rental income and gains on sales of the properties, substantially The Combined Company’s anticipated operations indicate that it is likely that it will have little or no non-qualifying income.

As described above, the Combined Company may establish one or more TRSs. The gross income generated by these TRSs would not be included in the Combined Company’s gross income. Any dividends from TRSs to the Combined Company would be included in its gross income and qualify for the 95% Gross Income Test.

If the Combined Company fails to satisfy either the 75% Gross Income or 95% Gross Income Tests for any taxable year, it may retain its status as a REIT for such year if: (i) the failure was due to reasonable cause and not due to willful neglect, (ii) it attaches to its return a schedule describing the nature and amount of each item of its gross income, and (iii) any incorrect information on such schedule was not due to fraud with intent to evade U.S. federal income tax. If this relief provision is available, the Combined Company would remain subject to tax equal to the greater of the amount by which it failed the 75% Gross Income Test or the 95% Gross Income Test, as applicable, multiplied by a fraction meant to reflect the Combined Company’s profitability.

Annual Distribution Requirements. The Combined Company is required to distribute dividends (other than capital gain dividends) to its stockholders each year in an amount at least equal to the excess of: (i) the sum of: (a) 90% of its REIT taxable income (determined without regard to the deduction for dividends paid and by excluding any net capital gain); and (b) 90% of the net income (after tax) from foreclosure property; less (ii) the sum of some types of items of non-cash income. Whether sufficient amounts have been distributed is based on amounts paid in the taxable year to which they relate, or in the following taxable year if the Combined Company: (1) declared a dividend before the due date of its tax return (including extensions); (2) distributed the dividend within the 12-month period following the close of the taxable year (and not later than the date of the first regular dividend payment made after such declaration); and (3) filed an election with its tax return. Additionally, dividends that the Combined Company declares in October, November or December in a given year payable to stockholders of record in any such month will be treated as having been paid on December 31 of that year so long as the dividends are actually paid during January of the following year. In order for distributions to be counted as satisfying the annual distribution requirements for REITs, and to provide the Combined Company with a REIT-level tax deduction, the distributions must not be “preferential dividends.” A dividend is not a preferential dividend if the distribution is (A) pro rata among all outstanding shares of stock within a particular class and (B) in accordance with the preferences among different classes of stock as set forth in the Combined Company’s organizational documents. If the Combined Company fails to meet the annual distribution requirements as a result of an adjustment to its U.S. federal income tax return by the IRS, or under certain other circumstances, the Combined Company may cure the failure by paying a “deficiency dividend” (plus penalties and interest to the IRS) within a specified period.

The Combined Company intends to pay sufficient dividends each year to satisfy the annual distribution requirements and avoid U.S. federal income and excise taxes on its earnings; however, it may not always be possible to do so. It is possible that the Combined Company may not have sufficient cash or other liquid assets to meet the annual distribution requirements due to tax accounting rules and other timing differences. The Combined Company will closely monitor the relationship between its REIT taxable income and cash flow and, if necessary to comply with the annual distribution requirements, will borrow funds to provide fully the necessary cash flow.

 

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Failure to Qualify. If the Combined Company fails to qualify, for U.S. federal income tax purposes, as a REIT in any taxable year, it may be eligible for relief provisions if the failures are due to reasonable cause and not willful neglect and if a penalty tax is paid with respect to each failure to satisfy the applicable requirements. If the applicable relief provisions are not available or cannot be met, the Combined Company will not be able to deduct its dividends and will be subject to U.S. federal income tax (including any applicable alternative minimum tax) on its taxable income at regular corporate rates, thereby reducing cash available for distributions. In such event, all distributions to stockholders (to the extent of the Combined Company’s current and accumulated earnings and profits) will be taxable as dividends. This “double taxation” results from the Combined Company’s failure to qualify as a REIT. Unless entitled to relief under specific statutory provisions, the Combined Company will not be eligible to elect REIT status for the four taxable years following the year during which qualification was lost.

Prohibited Transactions. As discussed above, the Combined Company will be subject to a 100% U.S. federal income tax on any net income derived from “prohibited transactions.” Net income derived from prohibited transactions arises from the sale or exchange of property held for sale to customers in the ordinary course of the Combined Company’s business which is not foreclosure property. There is an exception to this rule for the sale of real property that:

 

•

has been held for at least two years;

 

•

has aggregate expenditures which are includable in the basis of the property not in excess of 30% of the net selling price;

 

•

in some cases, was held for production of rental income for at least two years;

 

•

in some cases, substantially all of the marketing and development expenditures were made through an independent contractor; and

 

•

when combined with other sales in the year, either does not cause the REIT to have made more than seven sales of property during the taxable year, or occurs in a year when the REIT disposes of less than 10% of its assets (measured by U.S. federal income tax basis or fair market value, and ignoring involuntary dispositions and sales of foreclosure property).

The Combined Company’s intention in acquiring and operating the properties is the production of rental income and it does not expect to hold any property for sale to customers in the ordinary course of its business.

Foreclosure Property. Foreclosure property is real property (including interests in real property) and any personal property incident to such real property (1) that is acquired by a REIT as a result of the REIT having bid in the property at foreclosure, or having otherwise reduced the property to ownership or possession by agreement or process of law, after there was a default (or default was imminent) on a lease of the property or a mortgage loan held by the REIT and secured by the property; (2) for which the related loan or lease was made, entered into or acquired by the REIT at a time when default was not imminent or anticipated; and (3) for which such REIT makes an election to treat the property as foreclosure property. REITs generally are subject to tax at the maximum corporate rate (currently 35%) on any net income from foreclosure property, including any gain from the disposition of the foreclosure property, other than income that would otherwise be qualifying income for purposes of the 75% Gross Income Test. Any gain from the sale of property for which a foreclosure property election has been made will not be subject to the 100% tax on gains from prohibited transactions, even if the property is held primarily for sale to customers in the ordinary course of a trade or business.

Hedging Transactions. The Combined Company may enter into hedging transactions with respect to one or more of its assets or liabilities. Hedging transactions could take a variety of forms, including interest rate swaps or cap agreements, options, futures, contracts, forward rate agreements or similar financial instruments. Any income from a hedging transaction, including gain from a disposition of such a transaction, to manage risk of interest rate or price changes or currency fluctuations with respect to borrowings made or to be made, or ordinary obligations incurred or to be incurred, by the Combined Company to acquire or own real estate assets which is clearly identified as such before the close of the day on which it was acquired, originated or entered into and with

 

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respect to which the Combined Company satisfies other identification requirements, will be disregarded for purposes of the 75% and 95% Gross Income Tests. There are also rules for disregarding income for purposes of the 75% and 95% Gross Income Tests with respect to hedges of certain foreign currency risks. To the extent the Combined Company enters into other types of hedging transactions, the income from those transactions is likely to be treated as non-qualifying income for purposes of both the 75% and 95% Gross Income Tests. The Combined Company intends to structure any hedging transactions in a manner that does not jeopardize its ability to qualify as a REIT.

Characterization of Property Leases. The Combined Company may purchase either new or existing properties and lease them to tenants. The Combined Company’s ability to claim certain tax benefits associated with ownership of these properties, such as depreciation, would depend on a determination that the lease transactions are true leases, under which the Combined Company would be the owner of the leased property for U.S. federal income tax purposes, rather than a conditional sale of the property or a financing transaction. A determination by the IRS that the Combined Company is not the owner of any properties for U.S. federal income tax purposes may have adverse consequences to the Combined Company, such as the denial of depreciation deductions (which could affect the determination of its REIT taxable income subject to the distribution requirements) or its satisfaction of the Asset Tests or the Gross Income Tests.

Tax Aspects of Investments in Partnerships

General. The Combined Company operate as an UPREIT, which is a structure whereby it owns a direct interest in its operating partnership, IROP, both directly and through IRT LP LLC, and the operating partnership, in turn, owns interests in other non-corporate entities that own properties. Such non-corporate entities generally are organized as limited liability companies, partnerships or trusts and are either disregarded for U.S. federal income tax purposes (if IROP was the sole owner) or treated as partnerships for U.S. federal income tax purposes. The following is a summary of the U.S. federal income tax consequences of the Combined Company’s investment in IROP. This discussion should also generally apply to any investment by the Combined Company in a property partnership or other non-corporate entity.

A partnership (that is not a publicly traded partnership taxed as a corporation) is not subject to tax as an entity for U.S. federal income tax purposes. Rather, partners are allocated their proportionate share of the items of income, gain, loss, deduction and credit of the partnership, and are potentially subject to tax thereon, without regard to whether the partners receive any distributions from the partnership. The Combined Company will be required to take into account its allocable share of the foregoing items for purposes of the various Gross Income and Asset Tests, and in the computation of its REIT taxable income and U.S. federal income tax liability. Further, there can be no assurance that distributions from IROP will be sufficient to pay the tax liabilities resulting from the Combined Company’s investment in IROP.

The Combined Company intend that interests in IROP (and any partnership invested in by IROP with one or more partners) will fall within one of the “safe harbors” for the partnership to avoid being classified as a publicly traded partnership. However, the Combined Company’s ability to satisfy the requirements of some of these safe harbors depends on the results of its actual operations and accordingly no assurance can be given that any such partnership would not be treated as a publicly traded partnership. Even if a partnership qualifies as a publicly traded partnership, it generally will not be treated as a corporation if at least 90% of its gross income each taxable year is from certain passive sources.

If for any reason IROP (or any partnership invested in by IROP) is taxable as a corporation for U.S. federal income tax purposes, the character of the Combined Company’s assets and items of gross income would change, and as a result, the Combined Company would most likely be unable to satisfy the Asset Tests and Gross Income Tests described above. In addition, any change in the status of any partnership may be treated as a taxable event, in which case the Combined Company could incur a tax liability without a related cash distribution. Further, if any partnership was treated as a corporation, items of income, gain, loss, deduction and credit of such partnership

 

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would be subject to corporate income tax, and the partners of any such partnership would be treated as stockholders, with distributions to such partners being treated as dividends.

Anti-abuse Treasury regulations have been issued under the partnership provisions of the Code that authorize the IRS, in some abusive transactions involving partnerships, to disregard the form of a transaction and recast it as it deems appropriate. The anti-abuse regulations apply where a partnership is utilized in connection with a transaction (or series of related transactions) with a principal purpose of substantially reducing the present value of the partners’ aggregate U.S. federal tax liability in a manner inconsistent with the intent of the partnership provisions. The anti-abuse regulations contain an example in which a REIT contributes the proceeds of a public offering to a partnership in exchange for a general partnership interest. The limited partners contribute real property assets to the partnership, subject to liabilities that exceed their respective aggregate bases in such property. The example concludes that the use of the partnership is not inconsistent with the intent of the partnership provisions, and thus, cannot be recast by the IRS. However, the anti-abuse regulations are extraordinarily broad in scope and are applied based on an analysis of all the facts and circumstances. As a result, the Combined Company cannot assure holders of its shares of common stock that the IRS will not attempt to apply the anti-abuse regulations to us. Any such action could potentially jeopardize the Combined Company’s REIT status and materially affect the tax consequences and economic return resulting from an investment in the Combined Company.

Income Taxation of the Partnerships and their Partners. Although a partnership agreement will generally determine the allocation of a partnership’s income and losses among the partners, such allocations may be disregarded for U.S. federal income tax purposes under Section 704(b) of the Code and the Treasury regulations. If any allocation is not recognized for U.S. federal income tax purposes as having “substantial economic effect,” the item subject to the allocation will be reallocated in accordance with the partners’ economic interests in the partnership. The Combined Company believes that the allocations of taxable income and loss in IROP’s partnership agreement comply with the requirements of Section 704(b) of the Code and the Treasury regulations.

Pursuant to Section 704(c) of the Code, income, gain, loss and deduction attributable to property contributed to IROP in exchange for units must be allocated in a manner so that the contributing partner is charged with, or benefits from, the unrealized gain or loss attributable to the property at the time of contribution. The amount of such unrealized gain or loss is generally equal to the difference between the fair market value and the adjusted basis of the property at the time of contribution. These allocations are designed to eliminate book-tax differences by allocating to contributing partners lower amounts of depreciation deductions and increased taxable income and gain attributable to the contributed property than would ordinarily be the case for economic or book purposes. With respect to any property purchased by IROP, such property will generally have an initial tax basis equal to its fair market value, and accordingly, Section 704(c) will not apply, except as described further below in this paragraph. The application of the principles of Section 704(c) in tiered partnership arrangements is not entirely clear. Accordingly, the IRS may assert a different allocation method than the one selected by IROP to cure any book-tax differences. In certain circumstances, the Combined Company may create book-tax differences by adjusting the values of properties for economic or book purposes and generally the rules of Section 704(c) of the Code would apply to such differences as well.

Some expenses incurred in the conduct of IROP’s activities may not be deducted in the year they were paid. To the extent this occurs, the taxable income of IROP may exceed its cash receipts for the year in which the expense is paid. As discussed above, the costs of acquiring properties must generally be recovered through depreciation deductions over a number of years. Prepaid interest and loan fees, and prepaid management fees are other examples of expenses that may not be deducted in the year they were paid.

 

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U.S. Federal Income Taxation for Holders of Combined Company’s Stock

Taxation of Taxable Domestic Stockholders

General. This section summarizes the taxation of domestic stockholders that are not tax-exempt organizations. For these purposes, a domestic stockholder is a beneficial owner of the Combined Company’s common stock that for U.S. federal income tax purposes is:

 

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a citizen or resident of the United States;

 

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a corporation (including an entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States or of a political subdivision thereof (including the District of Columbia);

 

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an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or

 

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any trust if (1) a U.S. court is able to exercise primary supervision over the administration of such trust and one or more U.S. persons have the authority to control all substantial decisions of the trust or (2) it has a valid election in place to be treated as a U.S. person.

If an entity or arrangement treated as a partnership for U.S. federal income tax purposes holds the Combined Company’s shares, the U.S. federal income tax treatment of a partner generally will depend upon the status of the partner and the activities of the partnership. A partner of a partnership holding the Combined Company’s common stock should consult its tax advisor regarding the U.S. federal income tax consequences to the partner of the purchase, ownership and disposition of the Combined Company’s shares by the partnership.

Certain high-income U.S. individuals, estates, and trusts are subject to an additional 3.8% tax on net investment income. For these purposes, net investment income includes dividends and gains from sales of stock. In the case of an individual, the tax is 3.8% of the lesser of the individual’s net investment income, or the excess of the individual’s modified adjusted gross income over an amount equal to (1) $250,000 in the case of a married individual filing a joint return or a surviving spouse, (2) $125,000 in the case of a married individual filing a separate return, or (3) $200,000 in the case of a single individual. As long as the Combined Company qualifies as a REIT, distributions paid to its domestic stockholders out of current or accumulated earnings and profits (and not designated as capital gain dividends) will generally be ordinary income and generally will not be “qualified dividends” in the case of non-corporate domestic stockholders and will not be eligible for the dividends received deduction in the case of corporate domestic stockholders. For non-corporate domestic stockholders, qualified dividends are taxed at a maximum rate of 20%, whereas ordinary income may be taxed at rates as high as 39.6%. Distributions in excess of current and accumulated earnings and profits are treated first as a tax-deferred return of capital to the stockholder, reducing the stockholder’s tax basis in his or her common stock by the amount of such distribution, and then as capital gain. Because the Combined Company’s earnings and profits are reduced for depreciation and other non-cash items, it is possible that a portion of each distribution will constitute a tax-deferred return of capital. Additionally, because distributions in excess of earnings and profits reduce the stockholder’s basis in the Combined Company’s stock, this will increase the stockholder’s gain on any subsequent sale of the stock.

Distributions that are designated as capital gain dividends will be taxed as long-term capital gains (generally taxable at a maximum rate of 20% in the case of non-corporate domestic stockholders, subject to a maximum rate of 25% for certain recapture of real estate depreciation) to the extent they do not exceed the Combined Company’s actual net capital gain for the taxable year, without regard to the period for which the stockholder that receives such distribution has held its stock. However, corporate stockholders may be required to treat up to 20% of some types of capital gain dividends as ordinary income. The Combined Company may also decide to retain, rather than distribute, its net long-term capital gains and pay any tax thereon. In such instances, stockholders would include their proportionate shares of such gains in income, receive a credit on their returns for their proportionate share of the Combined Company’s tax payments, and increase the tax basis of their shares of stock by the after-tax amount of such gain.

 

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Dividend income is characterized as “portfolio” income under the passive loss rules and cannot be offset by a stockholder’s current or suspended passive losses. Although stockholders generally recognize taxable income in the year that a distribution is received, any distribution the Combined Company declares in October, November or December of any year that is payable to a stockholder of record on a specific date in any such month will be treated as both paid by the Combined Company and received by the stockholder on December 31 of the year it was declared if paid by the Combined Company during January of the following calendar year. Because the Combined Company is not a pass-through entity for U.S. federal income tax purposes, stockholders may not use any of its operating or capital losses to reduce their tax liabilities.

In certain circumstances, the Combined Company may have the ability to declare a large portion of a dividend in shares of its stock. In such a case, a stockholder would be taxed on 100% of the dividend in the same manner as a cash dividend, even though most of the dividend was paid in shares of the Combined Company’s stock.

In general, the sale of the Combined Company’s common stock held for more than 12 months will produce long-term capital gain or loss. All other sales will produce short-term gain or loss. In each case, the gain or loss is equal to the difference between the amount of cash and fair market value of any property received from the sale and the stockholder’s basis in the common stock sold. However, any loss from a sale or exchange of common stock by a stockholder who has held such stock for six months or less generally will be treated as a long-term capital loss, to the extent that the stockholder treated the Combined Company’s distributions as long-term capital gains.

The Combined Company will report to its domestic stockholders and to the IRS the amount of dividends it pays during each calendar year, and the amount (if any) of U.S. federal income tax it withholds. A stockholder may be subject to backup withholding with respect to dividends paid unless such stockholder: (i) is a corporation or comes within other exempt categories or (ii) provides the Combined Company with a taxpayer identification number, certifies as to no loss of exemption, and otherwise complies with applicable requirements. A stockholder that does not provide the Combined Company with its correct taxpayer identification number may also be subject to penalties imposed by the IRS. Any amount paid as backup withholding can be credited against the stockholder’s U.S. federal income tax liability. In addition, the Combined Company may be required to withhold a portion of distributions made to any stockholders who fail to certify their non-foreign status to us. See the “Taxation of Non-U.S. Stockholders” portion of this section.

Domestic stockholders that hold the Combined Company’s common stock through certain foreign financial institutions (including investment funds) may be subject to withholding on dividends in respect of, and the gain from the sale of, such common stock, as discussed in “Taxation of Non-U.S. Stockholders—U.S. Federal Income Tax Withholding—FATCA” below.

Taxation of Tax-Exempt Stockholders. The Combined Company’s distributions to a stockholder that is a domestic tax-exempt entity should not constitute UBTI unless the stockholder borrows funds (or otherwise incurs acquisition indebtedness within the meaning of the Code) to acquire its common stock, or the common stock is otherwise used in an unrelated trade or business of the tax-exempt entity. Furthermore, part or all of the income or gain recognized with respect to the Combined Company’s stock held by certain domestic tax-exempt entities including social clubs, voluntary employee benefit associations, supplemental unemployment benefit trusts and qualified group legal service plans (all of which are exempt from U.S. federal income taxation under Sections 501(c)(7), (9), (17) or (20) of the Code), may be treated as UBTI.

Special rules apply to the ownership of REIT shares by Section 401(a) tax-exempt pension trusts. If the Combined Company would fail to satisfy the “five or fewer” share ownership test (discussed above with respect to the share ownership tests), and if Section 401(a) tax-exempt pension trusts were treated as individuals, tax-exempt pension trusts owning more than 10% by value of the Combined Company’s stock may be required to treat a percentage of the Combined Company’s dividends as UBTI. This rule applies if: (i) at least one tax-exempt pension trust owns more than 25% by value of the Combined Company’s shares, or (ii) one or more tax-

 

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exempt pension trusts (each owning more than 10% by value of the Combined Company’s shares) hold in the aggregate more than 50% by value of the Combined Company’s shares. The percentage treated as UBTI is the Combined Company’s gross income (less direct expenses) derived from an unrelated trade or business (determined as if the Combined Company were a tax-exempt pension trust) divided by the Combined Company’s gross income from all sources (less direct expenses). If this percentage is less than 5%, however, none of the dividends will be treated as UBTI. Prospective tax-exempt purchasers should consult their own tax advisors as to the applicability of these rules and consequences to their particular circumstances.

Taxation of Non-U.S. Stockholders

General. The rules governing the U.S. federal income taxation of beneficial owners of the Combined Company’s common stock that are nonresident alien individuals, foreign corporations and other foreign investors (collectively, “Non-U.S. Stockholders”) are complex, and as such, only a summary of such rules is provided in this exhibit. Non-U.S. investors should consult with their own tax advisors to determine the impact that U.S. federal, state and local income tax or similar laws will have on such investors as a result of an investment in the Combined Company’s common stock.

U.S. Federal Income Tax Withholding—FATCA. Pursuant to legislation commonly referred to as “FATCA,” withholding at a rate of 30% generally will be required on dividends in respect of, and after December 31, 2016, withholding at a rate of 30% will be required on gross proceeds from the sale of, shares of the Combined Company’s common stock held by or through certain foreign financial institutions (including investment funds), unless such institution enters into an agreement with the Secretary of the Treasury (unless alternative procedures apply pursuant to an applicable intergovernmental agreement between the United States and the relevant foreign government) to report, on an annual basis, information with respect to shares in, and accounts maintained by, the institution to the extent such shares or accounts are held by certain U.S. persons or by certain Non-U.S. entities that are wholly or partially owned by U.S. persons. Accordingly, the entity through which the Combined Company’s shares are held will affect the determination of whether such withholding is required. Similarly, currently dividends in respect of, and after December 31, 2016, gross proceeds from the sale of, the Combined Company’s shares held by an investor that is a non-financial non-U.S. entity will be subject to withholding at a rate of 30%, unless such entity either (i) certifies to the Combined Company that such entity does not have any “substantial U.S. owners” or (ii) provides certain information regarding the entity’s “substantial U.S. owners,” which the Combined Company will in turn provide to the Secretary of the Treasury. Non-U.S. stockholders are encouraged to consult with their tax advisors regarding the possible implications of these rules on their investment in the Combined Company’s common stock.

Distributions-In General. Distributions paid by the Combined Company that are not attributable to gain from its sales or exchanges of U.S. real property interests and not designated by it as capital gain dividends will be treated as dividends of ordinary income to the extent that they are made out of its current or accumulated earnings and profits. Such dividends to Non-U.S. Stockholders ordinarily will be subject to a withholding tax equal to 30% of the gross amount of the dividend unless an applicable tax treaty reduces or eliminates that tax. However, if income from the investment in the Combined Company’s shares of common stock is treated as effectively connected with the Non-U.S. Stockholder’s conduct of a U.S. trade or business, the Non-U.S. Stockholder generally will be subject to a tax at the graduated rates applicable to ordinary income, in the same manner as domestic stockholders are taxed with respect to such dividends (and may also be subject to the 30% branch profits tax in the case of a non-U.S. stockholder that is a foreign corporation that is not entitled to any treaty exemption). Dividends in excess of the Combined Company’s current and accumulated earnings and profits will not be taxable to a stockholder to the extent they do not exceed the adjusted basis of the stockholder’s shares. Instead, they will reduce the adjusted basis of such shares. To the extent that such dividends exceed the adjusted basis of a Non-U.S. Stockholder’s shares, they will give rise to tax liability if the Non-U.S. Stockholder would otherwise be subject to tax on any gain from the sale or disposition of his shares, as described in the “Sale of Shares” portion of this Section below.

 

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Distributions Attributable to Sale or Exchange of Real Property. Distributions that are attributable to gain from the Combined Company’s sales or exchanges of U.S. real property interests will be taxed to a Non-U.S. Stockholder as if such gain were effectively connected with a U.S. trade or business. Non-U.S. Stockholders would thus be required to file U.S. federal income tax returns and would be taxed at the normal capital gain rates applicable to domestic stockholders, and would be subject to applicable alternative minimum tax and a special alternative minimum tax in the case of nonresident alien individuals. Also, such dividends may be subject to a 30% branch profits tax in the hands of a corporate Non-U.S. Stockholder not entitled to any treaty exemption. However, generally a capital gain dividend from a REIT is not treated as effectively connected income for a foreign investor if (i) the distribution is received with regard to a class of stock that is regularly traded on an established securities market located in the United States and (ii) the foreign investor does not own more than 5% of the class of stock at any time during the tax year within which the distribution is received. The Combined Company expects that its common stock will continue to be regularly traded on an established securities market in the United States.

U.S. Federal Income Tax Withholding on Distributions. For U.S. federal income tax withholding purposes and subject to the discussion above under “U.S. Federal Income Tax Withholding—FATCA”, the Combined Company will generally withhold tax at the rate of 30% on the amount of any distribution (other than distributions designated as capital gain dividends) made to a Non-U.S. Stockholder, unless the Non-U.S. Stockholder provides the Combined Company with a properly completed IRS (i) Form W-8BEN or Form W-8BEN-E (as applicable) evidencing that such Non-U.S. Stockholder is eligible for an exemption or reduced rate under an applicable income tax treaty (in which case the Combined Company will withhold at the lower treaty rate) or (ii) Form W-8ECI claiming that the dividend is effectively connected with the Non-U.S. Stockholder’s conduct of a trade or business within the U.S. (in which case the Combined Company will not withhold tax). The Combined Company is also generally required to withhold tax at the rate of 35% on the portion of any dividend to a Non-U.S. Stockholder that is or could be designated by the Combined Company as a capital gain dividend, to the extent attributable to gain on a sale or exchange of an interest in U.S. real property. Such withheld amounts of tax do not represent actual tax liabilities, but rather, represent payments in respect of those tax liabilities described in the preceding two paragraphs. Therefore, such withheld amounts are creditable by the Non-U.S. Stockholder against its actual U.S. federal income tax liabilities, including those described in the preceding two paragraphs. The Non-U.S. Stockholder would be entitled to a refund of any amounts withheld in excess of such Non-U.S. Stockholder’s actual U.S. federal income tax liabilities, provided that the Non-U.S. Stockholder files applicable returns or refund claims with the IRS. Sales of Shares. Gain recognized by a Non-U.S. Stockholder upon a sale of shares of the Combined Company’s common stock generally will not be subject to U.S. federal income taxation, provided that: (i) such gain is not effectively connected with the conduct by such Non-U.S. Stockholder of a trade or business within the United States; (ii) the Non-U.S. Stockholder is not present in the United States for 183 days or more during the taxable year and certain other conditions apply; and (iii) the Combined Company is “domestically controlled,” which generally means that less than 50% in value of its shares was held directly or indirectly by foreign persons during the five year period ending on the date of disposition or, if shorter, during the entire period of the Combined Company’s existence.

The Combined Company cannot assure holders of its shares of common stock that it will qualify as “domestically controlled.” If the Combined Company is not domestically controlled, a Non-U.S. Stockholder’s sale of common shares would be subject to tax, unless the Combined Company’s common shares were regularly traded on an established securities market and the selling Non-U.S. Stockholder has not directly, or indirectly, owned during a specified testing period more than 5% in value of the Combined Company’s shares of common stock. The Combined Company believes that its common stock will continue to be regularly traded on an established securities market in the United States. If the gain on the sale of shares is subject to taxation, the Non-U.S. Stockholder would be subject to the same treatment as domestic stockholders with respect to such gain, and the purchaser of such common stock may be required to withhold 10% of the gross purchase price.

If the proceeds of a disposition of the Combined Company’s common stock are paid by or through a U.S. office of a broker-dealer, the payment is generally subject to information reporting and to backup withholding unless

 

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the disposing Non-U.S. Stockholder certifies as to its name, address and non-U.S. status or otherwise establishes an exemption. Generally, U.S. information reporting and backup withholding will not apply to a payment of disposition proceeds if the payment is made outside the United States through a foreign office of a foreign broker-dealer. Under Treasury regulations, if the proceeds from a disposition of common stock paid to or through a foreign office of a U.S. broker-dealer or a non-U.S. office of a foreign broker-dealer that is (i) a “controlled foreign corporation” for U.S. federal income tax purposes, (ii) a person 50% or more of whose gross income from all sources for a three-year period was effectively connected with a U.S. trade or business, (iii) a foreign partnership with one or more partners who are U.S. persons and who, in the aggregate, hold more than 50% of the income or capital interest in the partnership, or (iv) a foreign partnership engaged in the conduct of a trade or business in the United States, then (A) backup withholding will not apply unless the broker-dealer has actual knowledge that the owner is not a Non-U.S. Stockholder, and (B) information reporting will not apply if the Non-U.S. Stockholder certifies its non-U.S. status and further certifies that it has not been, and at the time the certificate is furnished reasonably expects not to be, present in the U.S. for a period aggregating 183 days or more during each calendar year to which the certification pertains. Prospective foreign purchasers should consult their tax advisors concerning these rules.

Other Tax Considerations

State and Local Taxes. The Combined Company and holders of its common stock may be subject to state or local taxation in various jurisdictions, including those in which the Combined Company transacts business or resides. The Combined Company’s and it stockholder’s state and local tax treatment may not conform to the U.S. federal income tax consequences discussed above. Consequently, holders of the Combined Company’s common stock should consult their own tax advisors regarding the effect of state and local tax laws on an investment in the Combined Company’s shares of common stock.

Legislative Proposals. Holders of the Combined Company’s common stock recognize that the Combined Company’s and their present U.S. federal income tax treatment may be modified by legislative, judicial or administrative actions at any time, which may be retroactive in effect.

The rules dealing with U.S. federal income taxation are constantly under review by Congress, the IRS and the Treasury Department, and statutory changes as well as promulgation of new regulations, revisions to existing statutes, and revised interpretations of established concepts occur frequently. The Combined Company is not currently aware of any pending legislation that would materially affect its taxation of the taxation of holders of its common stock as described in this exhibit. Holders of the Combined Company’s common stock should, however, consult their own tax advisors concerning the status of legislative proposals that may pertain to the purchase, ownership and disposition of the Combined Company’s shares of common stock.

 

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VOTING AGREEMENTS

The following is a summary of selected material provisions of the voting agreements entered into in connection with the Merger and is qualified in its entirety by reference to the full text of the voting agreements. This summary does not purport to be complete and may not contain all of the information about the voting agreements that may be important to you. You are encouraged to read each of the voting agreement carefully and their entirety.

Concurrently with the execution of the Merger Agreement, (i) IRT entered into voting agreements with Senator and Monarch, and (ii) TSRE entered into a voting agreement with RAIT. As of the TSRE Record Date, Senator and Monarch owned approximately 25.3% and 23.0%, respectively, of the outstanding shares of TSRE common stock. As of the IRT Record Date, RAIT owned approximately 22.8% of the outstanding shares of IRT common stock.

Voting Provisions

TSRE

Pursuant to the terms of the voting agreements entered into by Senator and Monarch, subject to the terms and conditions contained in each voting agreement, each of Senator and Monarch has separately agreed to vote all of its shares of TSRE common stock, whether currently owned or acquired at any time prior to the termination of the applicable voting agreement, in the following manner:

 

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in favor of the adoption and approval of the Merger Agreement, the Company Merger, and the other transactions contemplated by the Merger Agreement (including any amendments or modifications of the terms thereof adopted in accordance with the terms thereof);

 

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in favor of any other matter that is reasonably required to facilitate the consummation of the Merger and the other transactions contemplated by the Merger Agreement;

 

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in favor of any proposal to adjourn the TSRE special meeting to solicit additional proxies in favor of the approval of the Merger Agreement, the Company Merger and the other transactions contemplated by the Merger Agreement;

 

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against any action or agreement that would reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of TSRE contained in the Merger Agreement or of the applicable stockholder contained in the voting agreement;

 

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against any action or agreement that would reasonably be expected to result in any condition to the consummation of the Merger set forth in the Merger Agreement not being fulfilled; and

 

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against any Company Takeover Proposal or any other action, agreement or transaction that is intended or would reasonably be expected to, materially impede, interfere with, be inconsistent with, delay, postpone, discourage or adversely affect the consummation of the Merger and the other transactions contemplated by the Merger Agreement.

The voting agreements further provide that Senator and Monarch are not required to vote as set forth above in the event that (i) in accordance with the terms of the Merger Agreement, the TSRE Board makes an Adverse Recommendation Change or recommends that TSRE enter into an Alternative Acquisition Agreement prior to obtaining the approval of the stockholders of TSRE of the Company Merger and the other transactions contemplated by the Merger Agreement or (ii) the Merger Agreement or any of the transactions contemplated thereby has been amended or is proposed to be amended in a manner that is materially adverse to the stockholders.

In addition, each of Senator and Monarch has appointed IRT (and certain designated representatives of IRT), with full power of substitution and resubsititution, as its true and lawful attorneys-in-fact and irrevocable proxies,

 

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to vote its shares of TSRE common stock in accordance with the terms of the applicable voting agreement, which proxy is effective only if the applicable stockholder fails to be counted as present, or to vote its shares of TSRE common stock in accordance with the terms of the applicable voting agreement.

IRT

Pursuant to the terms of the voting agreement entered into by RAIT, subject to the terms and conditions contained in the voting agreement, RAIT agreed to vote all of its shares of IRT common stock, whether currently owned or acquired at any time prior to the termination of the voting agreement, in the following manner:

 

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in favor of the issuance of shares of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger);

 

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in favor of any other matter that is reasonably required to facilitate the consummation of the Merger and the other transactions contemplated by the Merger Agreement;

 

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in favor of any proposal to adjourn the IRT special meeting of the stockholders of IRT to solicit additional proxies in favor of the approval of the issuance of shares of IRT common stock in the Merger (including IRT common stock issuable upon redemption of IROP Units issued in the Partnership Merger);

 

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against any action or agreement that would reasonably be expected to result in any condition to the consummation of the Merger set forth in the Merger Agreement not being fulfilled; and

 

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against any action which would reasonably be expected to materially impede, interfere with, materially delay, materially postpone or adversely affect consummation of the Merger and the other transactions contemplated by the Merger Agreement.

In addition, RAIT has appointed TSRE (and certain designated representatives of TSRE), with full power of substitution and resubsititution, as its true and lawful attorneys-in-fact and irrevocable proxies, to vote its shares of IRT common stock in accordance with the terms of the applicable voting agreement, which proxy is effective only if RAIT fails to be counted as present, or to vote its shares of IRT common stock in accordance with the terms of the applicable voting agreement.

Except as described above, nothing in the voting agreements limits the rights of the parties thereto to vote in favor of or against, or abstain with respect to, any matter presented to the stockholders of TSRE or IRT, as applicable. The separate voting agreements are entered into only in each stockholder’s capacity as a stockholder and nothing in the voting agreements limits, prohibits, prevents or affects any actions taken by any director of TSRE or IRT appointed by such stockholder in his or her capacity as a director.

Restrictions on Transfer

Under the terms of the voting agreements, each of the parties thereto has agreed that prior to the termination of the applicable voting agreement, the stockholder shall not, subject to certain limited exceptions:

 

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directly or indirectly transfer (by operation of law or otherwise), either voluntarily or involuntarily, any (or any interests convertible or exchangeable into) shares of TSRE common stock or IRT common stock, as applicable;

 

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enter into any contract, option or other arrangement or understanding with respect to any transfer (by operation of law or otherwise) of any (or any interests convertible or exchangeable into) shares of TSRE common stock or IRT common stock, as applicable;

 

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enter into any swap or other agreement, transaction or series of transactions that hedges or transfers, in whole or in part, directly or indirectly, the economic consequences of ownership of TSRE common stock or IRT common stock, as applicable; and

 

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deposit any shares of TSRE common stock or IRT common stock, as applicable, into a voting trust of enter into a voting agreement or arrangement with respect to any such shares, or grant any proxy or power of attorney with respect to such shares.

Termination of Voting Agreements

Each of the voting agreements will terminate upon the earlier to occur of:

 

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the effective time of the Company Merger;

 

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the termination of the Merger Agreement pursuant to its terms;

 

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any modification, waiver, change or amendment to the Merger Agreement that is materially adverse to the stockholder or that results in a material decrease in the amount or change in the form of the Merger Consideration; and

 

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the end date, as defined in the Merger Agreement.

Lock-Up Agreements

On May 11, 2015, Senator and Monarch each entered into a lock-up agreement in favor of IRT. Pursuant to the terms of the lock-up agreements, and subject to certain exceptions, each of Senator and Monarch has agreed, for a period of 180 days following the closing of the Merger, not to offer, sell or otherwise transfer or dispose of any shares of IRT common stock, or any securities convertible into or exercisable or exchangeable for shares of IRT common stock, in excess of a daily limit of 25% of the average daily trading volume of IRT common stock for the four preceding weeks. The lock-up agreements further provide that if IRT closes an underwritten public offering of IRT common stock at any time on or prior to the 90th day following the closing date of the Merger, the restrictions on Senator and Monarch under the lock-up agreements will end on the date that is 90 days after the closing date of such public offering.

 

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UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

Introduction

The following unaudited pro forma condensed consolidated financial statements are based on IRT’s historical consolidated financial statements and TSRE’s historical consolidated financial statements, and have been adjusted in the statements below to give effect to the Merger. The unaudited pro forma condensed consolidated statements of income for the three months ended March 31, 2015 and the year ended December 31, 2014 give effect to the Merger as if it had occurred on January 1, 2014, the beginning of the earliest period presented. The unaudited pro forma condensed consolidated balance sheet as of March 31, 2015 gives effect to the Merger as if it had occurred on March 31, 2015. The historical consolidated financial statements of TSRE have been adjusted to reflect certain reclassifications in order to conform to IRT’s financial statement presentation.

The unaudited pro forma condensed consolidated financial statements were prepared using the acquisition method of accounting with IRT considered the accounting acquirer of TSRE. Under the acquisition method of accounting, the purchase price is allocated to the underlying TSRE tangible and intangible assets acquired and liabilities assumed based on their respective fair values, with the excess purchase price, if any, allocated to goodwill.

The pro forma adjustments and the purchase price allocation as presented are based on estimates and information that is currently available. The total consideration for the Merger and the assignment of fair values to TSRE’s assets acquired and liabilities assumed has not been finalized, is subject to change, could vary materially from the actual amounts at the time the Merger is completed, and may not reflect all adjustments necessary to conform TSRE’s accounting policies to IRT’s accounting policies. A final determination of the fair value of TSRE’s assets and liabilities, including intangible assets, will be based on the actual net tangible and intangible assets and liabilities of TSRE that exist as of the closing date of the Merger and, therefore, cannot be determined prior to the completion of the Merger. In addition, the value of the Merger Consideration to be paid by IRT upon the consummation of the Merger will be determined based on the closing price of IRT’s common stock on the day immediately preceding the closing date of the Merger. As a result of the foregoing, the pro forma adjustments are preliminary and are subject to change as additional information becomes available and additional analyses are performed. The preliminary pro forma adjustments have been made solely for the purpose of providing the unaudited pro forma condensed consolidated financial statements presented below. IRT estimated the fair value of TSRE’s assets and liabilities based on discussions with TSRE’s management, preliminary valuation models, due diligence and information presented in TSRE’s public filings. Upon completion of the Merger, final valuations will be performed. Any increases or decreases in the fair value of relevant balance sheet amounts upon completion of the final valuations will result in adjustments to the pro forma balance sheet and/or statements of income. The final purchase price allocation may be different than that reflected in the pro forma purchase price allocation presented herein, and this difference may be material.

The aggregate purchase price for financial statement purposes will be based on the actual closing price per share of IRT common stock on the day immediately preceding the closing date of the Merger, which could differ materially from the assumed value of IRT common stock disclosed in the notes to the unaudited pro forma condensed consolidated financial statements, and $3.80 in cash for each share of TSRE common stock. If the actual closing price per share of IRT common stock on the day immediately preceding the closing date is higher than the assumed amount, the final purchase price will be higher; conversely, if the actual closing price of IRT common stock is lower, the final purchase price will be lower.

Assumptions and estimates underlying the unaudited adjustments to the unaudited pro forma condensed consolidated financial statements are described in the accompanying notes. The historical consolidated financial statements have been adjusted in the unaudited pro forma condensed consolidated financial statements to give effect to pro forma events that: (i) reflect acquisitions and financing transactions completed by IRT before the Merger, (ii) are directly attributable to the Merger, (iii) are factually supportable, and (iv) are expected to have a

 

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continuing impact on the results of operations of the Combined Company following the Merger. This information is presented for illustrative purposes only and is not indicative of the consolidated operating results or financial position of the Combined Company that would have occurred if such transactions had occurred on the dates described above and in accordance with the assumptions described below, nor is it necessarily indicative of IRT’s future operating results or financial position.

The unaudited pro forma condensed consolidated financial statements, although helpful in illustrating the financial characteristics of the Combined Company following the Merger under one set of assumptions, do not reflect opportunities to earn additional revenue, or other factors that may result as a consequence of the Merger, and do not attempt to predict or suggest future results. Specifically, the unaudited pro forma condensed consolidated statements of income exclude projected operating efficiencies and synergies expected by IRT’s management to be achieved as a result of the Merger. Further, the unaudited pro forma condensed consolidated financial statements do not reflect the effect of any regulatory actions that may impact the results of the Combined Company following the Merger.

The unaudited pro forma condensed consolidated financial statements have been developed from and should be read in conjunction with:

 

•

the accompanying notes to the unaudited pro forma condensed consolidated financial statements;

 

•

the historical audited consolidated financial statements of IRT as of and for the year ended December 31, 2014 from the IRT Annual Report on Form 10-K for the fiscal year ended December 31, 2014, and the historical unaudited condensed consolidated financial statements as of and for the three months ended March 31, 2015 from the IRT Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2015;

 

•

the historical audited consolidated financial statements of TSRE as of and for the year ended December 31, 2014 from the TSRE Annual Report on Form 10-K for the fiscal year ended December 31, 2014, and the historical unaudited condensed consolidated financial statements as of and for the three months ended March 31, 2015 from the TSRE Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2015; and

 

•

the historical audited statements of revenues and certain expenses of IRT’s 2014 significant acquisitions, as filed in Current Reports on Form 8-K or Form 8-K/A filed on June 12, 2014 (Carrington Park Apartments and Arbors at the Reservoir) and December 22, 2014 (Walnut Hill, Lenoxplace, Stonebridge Crossing, Bennington Pond and The Southeast Portfolio).

 

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INDEPENDENCE REALTY TRUST, INC.

UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET

MARCH 31, 2015

(Dollars in thousands)

 

		IRT Historical				Bayview Acquisition				Adjustments				IRT Historical, As Adjusted				TSRE Historical				Pro Forma Adjustments						Consolidated Pro Forma
		(A)				(B)				(C)								(D)
ASSETS:
Investment in real estate at cost		$	689,867			$	25,031			$	—			$	714,898			$	587,509			$	62,181			(E)		$	1,364,588
Accumulated depreciation			(27,261	)			—				—				(27,261	)			(31,197	)			31,197			(F)			(27,261	)
Investments in real estate, net			662,606				25,031				—				687,637				556,312				93,378						1,337,327
Cash and cash equivalents			19,084				(25,311	)			35,211				28,984				10,468				(11,279	)		(G)			28,173
Restricted cash			6,228				—				—				6,228				2,763				—						8,991
Accounts receivable and other assets			1,818				—				—				1,818				1,664				—						3,482
Intangible assets, net of accumulated amortization			1,342				219				—				1,561				514				6,422			(H)			8,497
Deferred costs, net of accumulated amortization			2,954				—				164				3,118				4,369				(4,369	)		(I)			3,118
Total Assets		$	694,032			$	(61	)		$	35,375			$	729,346			$	576,090			$	84,152					$	1,389,588
LIABILITIES AND EQUITY:
Indebtedness		$	422,613			$	—			$	35,375			$	457,988			$	359,589			$	182,978			(J)		$	1,000,555
Accounts payable and accrued expenses			10,691				—				—				10,691				4,255				—						14,946
Accrued interest payable			31				—				—				31				876				—						907
Dividends payable			1,982				—				—				1,982				3,709				—						5,691
Other liabilities			1,860				—				—				1,860				1,829				—						3,689
Total Liabilities			437,177				—				35,375				472,552				370,258				182,978						1,025,788
Equity:
Stockholders’ Equity:
Preferred stock, $0.01 par value			—				—				—				—				—				—						—
Common stock, $0.01 par value			318				—				—				318				367				(205	)		(K)			480
Additional paid-in capital			267,695				—				—				267,695				271,261				(132,754	)		(K)			406,202
Retained earnings (accumulated deficit)			(22,680	)			(61	)			—				(22,741	)			(80,863	)			49,200			(K)			(54,404	)
Total stockholders’ equity			245,333				(61	)			—				245,272				190,765				(83,759	)					352,278
Non-controlling interests			11,522				—				—				11,522				15,067				(15,067	)		(K)			11,522
Total Equity			256,855				(61	)			—				256,794				205,832				(98,826	)					363,800
Total Liabilities and equity		$	694,032				(61	)		$	35,375			$	729,346			$	576,090			$	84,152					$	1,389,588

 

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INDEPENDENCE REALTY TRUST, INC.

UNAUDITED PRO FORMA CONDENSED CONSOLIDATED INCOME STATEMENT

FOR THE THREE MONTHS ENDED MARCH 31, 2015

(Dollars in thousands, except per share data)

 

		IRT Historical				Bayview Acquisition				Adjustments				IRT Historical, As Adjusted				TSRE Historical				Pro Forma Adjustments						Consolidated Pro Forma
		(L)				(M)				(N)								(O)
REVENUE:
Rental Income		$	19,443			$	564			$	—			$	20,007			$	14,113			$	—					$	34,120
Tenant reimbursement & other income			2,257				98				—				2,355				1,516				—						3,871
Total revenue			21,700				662				—				22,362				15,629				—						37,991
EXPENSES:
Property operating expenses			10,138				284				—				10,422				6,353				—						16,775
General & administrative expenses			499				—				—				499				2,088				(2,088	)		(P)			499
Asset management fees			1,212				—				47				1,259				—				1,231			(Q)			2,490
Acquisition expenses			33				—				(33	)			—				156				(156	)		(R)			—
Depreciation and amortization			6,038				—				(1,784	)		$	4,254				3,884				(396	)		(S)			7,742
Total expenses			17,920				284				(1,770	)			16,434				12,481				(1,409	)					27,506
Operating Income			3,780				378				1,770				5,928				3,148				1,409						10,485
Interest expense			(4,022	)			—				(247	)			(4,269	)			(3,623	)			(1,298	)		(T)			(9,190	)
Interest income			1				—				—				1				—				—						1
Net income (loss)			(241	)			378				1,523				1,660				(475	)			111						1,296
(Income) loss allocated to non-controlling interests			8				—				(54	)			(46	)			29				(19	)		(V)			(36	)
Net Income (loss) allocable to common shares		$	(233	)		$	378			$	1,469			$	1,614			$	(446	)		$	92					$	1,260
Earnings Per Share:
Basic		$	(0.01	)										$	0.05													$	0.03
Diluted		$	(0.01	)										$	0.05													$	0.03
Weighted-Average Shares:
Basic			31,768,468												31,768,468											(W)			47,949,251
Diluted			31,768,468												33,181,815											(W)			49,362,598

 

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INDEPENDENCE REALTY TRUST, INC.

UNAUDITED PRO FORMA CONDENSED CONSOLIDATED INCOME STATEMENT

FOR THE YEAR ENDED DECEMBER 31, 2014

(Dollars in thousands, except per share data)

 

		IRT Historical				2014 Acquisitions				Bayview Acquisition				Adjustments				IRT Historical, As Adjusted				TSRE Historical				Pro Forma Adjustments						Consolidated Pro Forma
		(L)				(X)				(M)				(N)								(O)
REVENUE:
Rental Income		$	44,834			$	32,546			$	2,267			$	—			$	79,647			$	51,372			$	1,918			(Y)		$	132,937
Tenant reimbursement income			4,369				3,979				334				—				8,682				5,495				169			(Y)			14,346
Total revenue			49,203				36,525				2,601				—				88,329				56,867				2,087						147,283
EXPENSES:
Property operating expenses			23,427				16,962				1,209				—				41,598				24,781				895			(Y)			67,274
General & administrative expenses			1,137				—				—				—				1,137				18,124				(18,124	)		(P)			1,137
Asset management fees			1,736				—				—				2,612				4,348				—				4,925			(Q)			9,273
Acquisition expenses			1,842				—				—				(1,842	)			—				3,044				42,055			(R)			45,099
Depreciation and amortization			12,520				—				—				11,277				23,797				19,250				1,639			(S)			44,686
Total expenses			40,662				16,962				1,209				12,047				70,880				65,199				31,390						167,469
Operating Income			8,541				19,563				1,392				(12,047	)			17,449				(8,332	)			(29,303	)					(20,186	)
Interest expense			(8,496	)			—				—				(7,654	)			(16,150	)			(13,964	)			(5,721	)		(T)			(35,835	)
Interest and other income			17				—				—				—				17				151				—						168
Asset impairments			—				—				—				—				—				(7,962	)			—						(7,962	)
Loss on debt extinguishment			—				—				—				—				—				(1,629	)			—						(1,629	)
Gain on acquisitions			—				—				—				—				—				—				13,436			(U)			13,436
Gain (loss) on assets			2,882				—				—				—				2,882				1,419				—						4,301
Net income (loss)			2,944				19,563				1,392				(19,701	)			4,198				(30,317	)			(21,588	)					(47,707	)
Income (loss) allocated to preferred shares			—				—				—				—				—				(693	)			—						(693	)
Extinguishment of equity securities			—				—				—				—				—				1,216				—						1,216
Adjustments for participating securities			—				—				—				—				—				44				—						44
(Income) loss allocated to non-controlling interests			(4	)			—				—				(115	)			(119	)			1,953				(615	)		(V)			1,219
Net Income (loss) allocable to common shares		$	2,940			$	19,563			$	1,392			$	(19,816	)		$	4,079			$	(27,797	)		$	(22,203	)				$	(45,921	)
Earnings Per Share:
Basic		$	0.14															$	0.19													$	(1.22	)
Diluted		$	0.14															$	0.19													$	(1.22	)
Weighted-Average Shares:
Basic			21,315,928																21,315,928											(W)			37,496,711
Diluted			21,532,671																21,532,671											(W)			37,496,711

 

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INDEPENDENCE REALTY TRUST, INC.

NOTES TO UNAUDITED PRO FORMA

CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

Overview

For purposes of the unaudited pro forma condensed consolidated financial statements, which IRT refers to as the pro forma financial statements, IRT has assumed a total preliminary purchase price for the Merger of approximately $671.5 million, which consists of shares of IRT common stock issued, cash paid in exchange for shares of TSRE common stock and TSR OP Units, and assumption of indebtedness.

The pro forma financial statements have been prepared assuming the Merger is accounted for using the acquisition method of accounting under U.S. GAAP, which IRT refers to as acquisition accounting, with IRT as the acquiring entity. Accordingly, under acquisition accounting, the acquired net tangible and identifiable intangible assets and liabilities assumed of TSRE are recorded based on their respective fair values, as further described below.

To the extent identified, certain reclassifications have been reflected in the pro forma adjustments to conform TSRE’s financial statement presentation to that of IRT. However, the unaudited pro forma financial statements may not reflect all adjustments necessary to conform TSRE’s accounting policies to those of IRT due to limitations on the availability of information as of the date of this joint proxy statement/prospectus.

The pro forma adjustments represent IRT management’s estimates based on information available as of the date of this joint proxy statement/prospectus and are subject to change as additional information becomes available and additional analyses are performed. The pro forma financial statements do not reflect the impact of possible revenue or earnings enhancements, cost savings from operating efficiencies or synergies, or asset dispositions. Also, the pro forma financial statements do not reflect possible adjustments related to restructuring or integration activities that have yet to be determined, including transaction or other costs following the Merger that are not expected to have a continuing impact on the Combined Company’s results of operations. Further, one-time transaction-related expenses anticipated to be incurred prior to, or concurrent with, closing the Merger are excluded from the pro forma statements of income.

The pro forma condensed consolidated statements of income for the year ended December 31, 2014 and for the three months ended March 31, 2015 consolidate the historical consolidated statements of income of IRT and TSRE, giving effect to the Merger as if it had been consummated on January 1, 2014, the beginning of the earliest period presented. The pro forma balance sheet combines the historical consolidated balance sheet of IRT and the historical consolidated balance sheet of TSRE as of March 31, 2015, giving effect to the Merger as if it had been consummated on March 31, 2015.

Completion of the Merger is subject to, among other things, approval by the stockholders of both IRT and TSRE. The Merger is expected to be completed during the third quarter of 2015. However, IRT can provide no assurance that the Merger will be completed on the anticipated timeline, or at all.

Unless otherwise noted, all dollar amounts are in thousands, except per share amounts.

Preliminary Estimated Purchase Price

The total preliminary estimated purchase price of approximately $671,525 was determined based on the number of shares of TSRE common stock outstanding as of May 8, 2015. For purposes of the pro forma financial statements, such shares of TSRE common stock are assumed to remain outstanding as of the closing date of the Merger. Further, no effect has been given to any new shares of TSRE common stock that may be issued or granted subsequent to the date of this joint proxy statement/prospectus and before the closing date of the Merger. In all cases in which IRT’s closing stock price is a determining factor in arriving at the final purchase price for

 

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INDEPENDENCE REALTY TRUST, INC.

NOTES TO UNAUDITED PRO FORMA

CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)

 

the Merger, the stock price assumed for the total preliminary purchase price is the closing price of IRT’s common stock on May 8, 2015 ($8.57 per share), the last trading day before the public announcement of the Merger.

The purchase price will be computed using the closing price of IRT common stock on the trading day immediately preceding the closing date of the Merger; therefore, the actual purchase price will fluctuate with the market price of IRT common stock until the Merger is consummated. As a result, the final purchase price could differ significantly from the current preliminary estimated purchase price, which could materially impact the pro forma financial statements. Currently, based on the May 8, 2015 stock price of $8.57, IRT expects to record a gain upon the closing of the acquisition of approximately $13,436 as a result of the appraised values of the real estate being acquired exceeding the aggregate consideration being paid. This gain is subject to change to the extent the closing stock price of IRT common stock changes between May 8, 2015 and the closing date of the Merger.

For purposes of these pro forma financial statements, TSRE’s tangible and intangible assets acquired and liabilities assumed have been recorded based on their estimated fair values assuming the Merger was completed on the pro forma balance sheet date presented. The final fair values will be based upon valuations and other analyses for which there is currently insufficient information to make a definitive valuation. Accordingly, the purchase price adjustments are preliminary and have been made solely for the purpose of providing the pro forma financial statements. The final purchase price adjustments will be determined after the Merger is consummated and after completion of a thorough analysis to determine the fair value of TSRE’s tangible assets and liabilities, including tangible assets and identifiable intangible assets and liabilities. As a result, the final acquisition accounting adjustments, including those resulting from conforming TSRE’s accounting policies to those of IRT, could differ materially from the pro forma adjustments presented herein.

Balance Sheet Adjustments

 

(A)

Represents the historical balance sheet of IRT at March 31, 2015, included in IRT’s Quarterly Report on Form 10-Q filed on May 8, 2015.

 

(B)

On May 1, 2015, IRT acquired a 236-unit property in Indianapolis, Indiana called Bayview. The acquisition price was $25,250, of which $219 was associated with in-place lease intangibles and acquisition expense of $61. At acquisition, the acquisition price was paid with cash.

 

(C)

On April 13, 2015, IRT financed the Stonebridge at the Ranch real estate asset with a $20,527 first mortgage loan at a 3.23% interest rate and a stated maturity date of May 1, 2025. IRT incurred $164 of financing costs that will be amortized to interest expense over the term of the debt agreement.

On May 11, 2015, IRT borrowed $14,848 of proceeds from its line of credit using the Bayview property as collateral.

 

(D)

Represents the historical balance sheet of TSRE at March 31, 2015, included in TSRE’s Quarterly Report on Form 10-Q filed on May 11, 2015.

 

(E)

Represents the adjustment to reflect TSRE’s real estate assets at their estimated fair values as of March 31, 2015. The estimated fair value was derived by applying a capitalization rate to TSRE’s estimated net operating income, using available market data. The estimated fair value of TSRE’s real estate assets was $656,630 as of March 31, 2015, of which $6,936 was allocated to an intangible asset for in-place leases. See note (H).

 

(F)

Accumulated depreciation was adjusted to eliminate TSRE’s historical accumulated depreciation at March 31, 2015.

 

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INDEPENDENCE REALTY TRUST, INC.

NOTES TO UNAUDITED PRO FORMA

CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)

 

(G)

Adjustment represents the cash needed to close the Merger and was computed as follows as of March 31, 2015:

 

Fair value of real estate assets		$	656,630
Net working capital acquired			4,226
Paydown of line of credit borrowings			14,848
Merger expenses, including $18,800 of prepayment costs			45,099
Proceeds from KeyBank Facilities and new mortgages—see note (J)			(557,415	)
Fair value of stock issued—see note (L)			(138,673	)
Gain on acquisition			(13,436	)
Net cash used in closing the Merger		$	11,279

 

(H)

The intangible asset adjustment represents $6,936 for acquisition of acquired in-place leases. The estimated fair value of in-place leases was calculated based on the estimated cost to replace such leases, including foregone rents during an assumed lease-up period. These costs were offset by the elimination of TSRE’s historical in-place lease intangible assets of $514.

 

(I)

Deferred financing costs was adjusted by $4,369 to eliminate TSRE’s historical financing costs.

 

(J)

Adjustment represents the removal of historical TSRE first mortgages, line of credit borrowings and accrued interest as required in the Merger Agreement.

IRT expects to enter into the $325,000 KeyBank Senior Facility and the $120,000 KeyBank Interim Facility to finance the acquisition of TSRE. The KeyBank Senior Facility will bear interest at 245 basis points over LIBOR, subject to reduction as IRT’s corporate leverage is reduced. The KeyBank Senior Facility will have a three-year term, subject to the option of IRT to extend the term of the facility for two additional 12-month periods under certain circumstances. The KeyBank Interim Facility will bear interest at 500 basis points over LIBOR and have a term of 364 days, subject to the option of IRT to extend the term of the facility for an additional six months under certain circumstances. At closing, IRT expects to draw $276,570 on the KeyBank Senior Facility and the full amount of the KeyBank Interim Facility.

IRT will be acquiring mortgage financing in the aggregate principal amount of $160,845 to finance the remaining properties acquired from TSRE. The mortgages will bear interest at various fixed rates ranging from 3.2% to 4.3% with maturities ranging from September 2020 to February 2024.

 

(K)

Adjustment represents the issuance of 16,180,783 shares of IRT common stock with a fair value of $8.57 per share as of May 8, 2015 and the elimination of all historical TSRE equity balances, non-controlling interests and transaction costs. The following table provides detail of adjustments impacting additional paid in capital (APIC), IRT common stock and distributions in excess of accumulated earnings:

 

		APIC				Common stock				Retained earnings (accumulated deficit)
Transaction costs of IRT/TSRE		$	—			$	—			$	(45,099	)
Gain on acquisition of TSRE			—				—				13,436
Issuance of IRT common stock			138,507				162				—
Removal of TSRE’s historical balances			(271,261	)			(367	)			80,863
Total adjustment		$	(132,754	)		$	(205	)		$	49,200

 

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INDEPENDENCE REALTY TRUST, INC.

NOTES TO UNAUDITED PRO FORMA

CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)

 

Income Statement Adjustments for the Three Months Ended March 31, 2015 and Year Ended December 31, 2014

 

(L)

Represents the historical income statement for IRT for the three months ended March 31, 2015, included in IRT’s Quarterly Report on Form 10-Q filed on May 8, 2015.

Represents the historical income statement for IRT for the year ended December 31, 2014, included in IRT’s Annual Report on Form 10-K filed on March 16, 2015.

 

(M)

Represents the revenue and operating expenses of Bayview for the three months ended March 31, 2015 and year ended December 31, 2014. IRT acquired Bayview on May 1, 2015. See note (B).

 

(N)

For the three months ended March 31, 2015, these adjustments represent (1) the additional asset management fees associated with IRT’s Bayview acquisition pursuant to the current asset management agreement, (2) the removal of historical IRT acquisition expenses, as IRT is depicting the Bayview acquisition as being consummated on January 1, 2014 for pro forma purposes, (3) recognition of additional depreciation expense for Bayview and the removal of IRT’s historical amortization expense of in-place leases associated with 2014 acquisitions, (4) interest expense associated with the additional financing for the Stonebridge Ranch permanent financing and the borrowings under IRT’s line of credit for the Bayview acquisition, which assumes the financings were outstanding as of the beginning of the respective period, and (5) an adjustment to the income allocation to non-controlling interests as a result of the aforementioned adjustments.

For the year ended December 31, 2014, these adjustments represent (1) the additional asset management fees associated with IRT’s acquisition of Bayview, as well as other properties IRT acquired in 2014, (2) the removal of historical IRT acquisition expenses as IRT is depicting those acquisitions as being consummated on January 1, 2014 for pro forma purposes, (3) recognition of additional depreciation expense on the properties that IRT acquired in 2014 along with IRT’s acquisition of Bayview in 2015 and amortization expense of in-place leases for the properties acquired in 2014 (depreciation and amortization expense is computed on a straight-line basis over a 40 year useful life for buildings and estimated useful life of six months for acquired in-place leases), (4) interest expense associated with the permanent financing of The Crossings property, which IRT acquired on November 22, 2013, permanent financing for the properties IRT acquired in 2014, and the borrowings under IRT’s line of credit for the Bayview acquisition, which assumes the financings were outstanding as of the beginning of the respective period, and (5) an adjustment to the income allocation to non-controlling interests as a result of the aforementioned adjustments.

 

(O)

Represents the historical income statement for TSRE for the three months ended March 31, 2015, included in TSRE’s Quarterly Report on Form 10-Q filed on May 11, 2015.

Represents the historical income statement for TSRE for the year ended December 31, 2014, included in TSRE’s Annual Report on Form 10-K filed on March 13, 2015.

 

(P)

As a result of the Merger, the TSRE assets will become externally managed and all of TSRE’s employees and corporate contracts will be terminated. This adjustment to general and administrative expenses represents the removal of these historical costs.

 

(Q)

Adjustment represents the additional asset management fee due pursuant to the existing asset management agreement. The terms of the existing asset management agreement require a management fee based on 75 basis points of real estate assets annually. At the closing date of the Merger, IRT intends to amend its asset management agreement to change from an asset based fee structure to an equity based fee structure. The pro forma financial statements do not reflect the new equity based fee structure since it will not be in place until after the closing of the Merger.

 

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INDEPENDENCE REALTY TRUST, INC.

NOTES TO UNAUDITED PRO FORMA

CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)

 

(R)

Adjustment represents the removal of TSRE’s historical acquisition expenses of $156 for the three months ended March 31, 2015 and $3,044 for the year ended December 31, 2014, as the acquisitions made by TSRE were depicted as occurring on January 1, 2014 for pro forma purposes. Also includes $45,099 in acquisition expenses expected to be incurred as part of the Merger.

 

(S)

For the three months ended March 31, 2015, depreciation and amortization was adjusted to eliminate $3,884 of TSRE’s historical depreciation and amortization expense and to recognize $3,488 of depreciation based on the fair value of TSRE’s real estate assets.

For the year ended December 31, 2014, depreciation and amortization was adjusted to eliminate $19,250 of TSRE’s historical depreciation and amortization expense, to recognize $13,953 of depreciation expense based on the fair value of TSRE’s real estate assets, and to recognize $6,936 for the amortization of in-place leases associated with TSRE’s assets.

Pro forma depreciation and amortization expense on the TSRE assets is computed on a straight-line basis over the estimated useful lives of the related assets, which range from 40 years for land improvements and buildings to six months for acquired in-place leases, all of which are preliminary determinations.

 

(T)

For the three months ended March 31, 2015, interest expense is reduced by $3,623 to remove TSRE’s historical interest cost and increased by $4,921 to recognize interest expense associated with the $276,570 of borrowings on the KeyBank Senior Facility, the $120,000 of borrowings on the KeyBank Interim Facility and the $160,845 of mortgages used to finance the cash portion of the Merger Consideration.

For the year ended December 31, 2014, interest expense is reduced by $13,964 to remove TSRE’s historical interest cost and increased by $19,685 to recognize interest expense associated with the $276,570 of borrowings on the KeyBank Senior Facility, the $120,000 of borrowings on the KeyBank Interim Facility and the $160,845 of mortgages used to finance the cash portion of the Merger Consideration.

 

(U)

Represents the expected gain upon completion of the Merger, as the fair value of the net assets acquired exceeds the consideration surrendered.

 

(V)

Non-controlling interest was adjusted to eliminate TSRE’s historical income allocated to non-controlling interest expense, as TSRE’s historical outstanding operating partnership units will be redeemed for shares of IRT common stock and cash, and to also adjust the income allocated to non-controlling interests pursuant to the aforementioned adjustments.

 

(W)

Pro forma weighted average shares increased as a result of the issuance of 16,180,783 shares of IRT common stock to TSRE stockholders in connection with the Merger.

 

(X)

Represents the adjustment to reflect the pro forma revenues and property operating expenses for the properties that IRT acquired in 2014. This adjustment represents the revenues and property operating expenses associated with the period that IRT did not own the property, effectively January 1, 2014 through the acquisition date of each property. IRT acquired Reserve at Eagle Ridge on January 31, 2014, The Oklahoma Portfolio on February 28, 2014, King’s Landing on March 31, 2014, Carrington Park Apartments on May 7, 2014, Arbors at the Reservoir on June 4, 2014, Walnut Hill on August 28, 2014, Lenoxplace on September 5, 2014, Stonebridge Crossing on September 15, 2014, Bennington Pond on November 24, 2014, The Southeast Portfolio on December 8, 2014, Stonebridge at the Ranch on December 16, 2014, and Iron Rock Ranch on December 30, 2014. Rental income, tenant reimbursement and other income and property operating expenses from these properties from

 

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INDEPENDENCE REALTY TRUST, INC.

NOTES TO UNAUDITED PRO FORMA

CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)

 

January 1, 2014 through the acquisition date were $32,546, $3,979 and $16,962, respectively. The operations of each property subsequent to the date of acquisition are included in the historical consolidated income statement of IRT for the year ended December 31, 2014.

 

(Y)

Represents the adjustment to reflect the pro forma revenues and property operating expenses for the properties that TSRE acquired in 2014. This adjustment represents the revenues and property operating expenses associated with the period that TSRE did not own the property, effectively January 1, 2014 through the acquisition date of each property. TSRE acquired Miller Creek and Wake Forest on January 21, 2014, Aventine on February 4, 2014, Brier Creek on March 10, 2014, Craig Ranch on March 18, 2014, and Big Creek on April 7, 2014. Rental income, tenant reimbursement and other income and property operating expenses from these properties from January 1, 2014 through the acquisition date were $1,918, $169 and $895, respectively. The operations of each property subsequent to the date of acquisition are included in the historical consolidated income statement of TSRE for the year ended December 31, 2014.

 

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COMPARISON OF RIGHTS OF STOCKHOLDERS OF IRT AND STOCKHOLDERS OF TSRE

If the Merger is consummated, stockholders of TSRE will become stockholders of the Combined Company. The rights of TSRE stockholders are currently governed by and subject to the provisions of Maryland law, and the charter and bylaws of TSRE. Upon consummation of the Merger, the rights of the former TSRE stockholders, as holders of shares of IRT common stock received in the Merger, will continue to be governed by Maryland law but will be governed by the IRT charter and bylaws, rather than the charter and bylaws of TSRE.

The following is a summary of the material differences between the rights of IRT stockholders (which will be the rights of stockholders of the Combined Company following the Merger) and TSRE stockholders, but does not purport to be a complete description of those differences or a complete description of the terms of the IRT common stock subject to issuance in the Merger. The following summary is qualified in its entirety by reference to the relevant provisions of Maryland law, the IRT charter, the TSRE charter, the IRT bylaws, and the TSRE bylaws.

We urge you to read carefully the relevant provisions of Maryland law, as well as the governing corporate instruments of each of IRT and TSRE, copies of which are available, without charge, to any person, including any beneficial owner of IRT common stock or TSRE common stock to whom this joint proxy statement/prospectus is delivered.”

 

		Rights of IRT Stockholders (which will be the rights of stockholders of the  Combined Company following the Merger)		Rights of TSRE Stockholders
Corporate Governance		IRT is a Maryland corporation that has elected to be taxed as a REIT for U.S. federal income tax purposes. The rights of IRT stockholders are governed by Maryland law, the IRT charter and the IRT bylaws.		TSRE is a Maryland corporation that has elected to be taxed as a REIT for U.S. federal income tax purposes. The rights of TSRE stockholders are governed by Maryland law, the TSRE charter and the TSRE bylaws.
Authorized Capital Stock		IRT is authorized to issue an aggregate of 350.0 million shares of stock, consisting of: (1) 300.0 million shares of common stock, $0.01 par value per share; and (2) 50.0 million shares of preferred stock, $0.01 par value per share.   As of the IRT Record Date, 31,933,217 shares of IRT common stock were issued and outstanding. As of the IRT Record Date, there were no issued and outstanding shares of IRT preferred stock.		TSRE is authorized to issue an aggregate of 1.05 billion shares of stock, consisting of: (1) 1.0 billion shares of common stock, $0.01 par value per share; and (2) 50.0 million shares of preferred stock, $0.01 par value per share.   As of the TSRE Record Date, 36,799,570 shares of TSRE common stock were issued and outstanding. As of the TSRE Record Date, there were no issued and outstanding shares of TSRE preferred stock.
Size of the Board of Directors		Currently, there are five members of the IRT Board.   Immediately following the effective time of the Merger, by resolution unanimously adopted by the IRT Board, the board of directors of the Combined Company will be increased to seven directors.		Currently, there are five members of the TSRE Board.

 

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		Rights of IRT Stockholders (which will be the rights of stockholders of the  Combined Company following the Merger)		Rights of TSRE Stockholders
Amendment of Charter		Except for those amendments permitted to be made without stockholder approval under Maryland law or by specific provision in the charter, any amendment to the IRT charter will be valid only if declared advisable by the IRT Board and approved by the affirmative vote of holders of shares entitled to cast a majority of all the votes entitled to be cast on the matter.		Except for amendments to the charter provisions relating to restrictions on stock ownership and transfers (Article VI of the TSRE charter) and the vote required to amend these provisions (which must be declared advisable by the TSRE Board and approved by the affirmative vote of the stockholders entitled to cast not less than two-thirds of all the votes entitled to be cast on the matter), and except for those amendments permitted to be made without stockholder approval under Maryland law or by specific provision in the charter, any amendment to the TSRE charter will be valid only if declared advisable by the TSRE Board and approved by the affirmative vote of holders of shares entitled to cast a majority of all the votes entitled to be cast on the matter.
Ownership Limitations		With certain limited exceptions, no person may beneficially own, or be deemed to own by virtue of the attribution provisions of the Internal Revenue Code, (a) more than 9.8% in value of the aggregate of the outstanding shares of IRT stock and 9.8% (in value or in number of shares, whichever is more restrictive) of any class or series of shares of IRT stock, or (b) IRT capital stock to the extent that such ownership would result in IRT being “closely held” within the meaning of Section 856(h) of the Internal Revenue Code (without regard to whether the ownership interest is held during the last half of a taxable year) or otherwise cause IRT to fail to qualify as a REIT.		With certain limited exceptions, no person may beneficially own, or be deemed to own by virtue of the attribution provisions of the Internal Revenue Code, (a) more than 9.8% (by value or by number of shares, whichever is more restrictive) of the outstanding TSRE common stock or 9.8% (by value or by number of shares, whichever is more restrictive) of the outstanding TSRE stock, excluding any such outstanding capital stock which is not treated as outstanding for federal income tax purposes, or (b) TSRE stock to the extent that such ownership would result in TSRE being “closely held” within the meaning of Section 856(h) of the Internal Revenue Code or otherwise cause TSRE to fail to qualify as a REIT.
Information Requirement		Every owner of more than 5% of outstanding IRT capital stock must, within 30 days after the end of each taxable year, give written notice to IRT that includes certain information, including stock ownership information, and, upon demand, all stockholders are required to provide written information relating to maintenance of IRT’s REIT status.		Every owner of outstanding TSRE capital stock must, within 30 days after the end of each taxable year, give written notice to TSRE that includes certain information, including stock ownership information, and, upon demand, all stockholders are required to provide written information relating to maintenance of TSRE’s REIT status.

 

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		Rights of IRT Stockholders (which will be the rights of stockholders of the  Combined Company following the Merger)		Rights of TSRE Stockholders
State Anti-Takeover Statutes		Under Maryland law, certain “business combinations” (which include a merger, consolidation, share exchange and certain transfers, issuances or reclassifications of equity securities) between a Maryland corporation and any person who beneficially owns 10 percent or more of the voting power of the corporation’s outstanding voting stock, or an affiliate or associate of the corporation who beneficially owned 10 percent or more of the voting power at any time within the preceding two years, in each case referred to as an “interested stockholder,” or an affiliate thereof, are prohibited for five years after the most recent date on which the interested stockholder becomes an interested stockholder. Thereafter, any such business combination must be recommended by the corporation’s board of directors and approved by the affirmative vote of at least (i) 80% of the votes entitled to be cast by holders of outstanding shares of voting stock of the corporation, voting together as a single group, and (ii) two-thirds of the votes entitled to be cast by holders of voting stock of the corporation other than shares held by the interested stockholder or its affiliates or associates, voting together as a single group unless, among other conditions, the corporation’s common stockholders receive a minimum price (as defined in the MGCL) for their shares and the consideration is received in cash or in the same form as previously paid by the interested stockholder for its shares. A person is not an interested stockholder under the statute if the board of directors approved in advance the transaction by which the person otherwise would have become an interested stockholder. The board of directors may provide that its approval is subject to compliance, at or after the time of approval, with any terms and conditions determined by it. As permitted under Maryland law, IRT has elected not to be governed by the provisions of the business combination statute, by resolution of the IRT Board, provided that the business combination is first approved by the IRT Board.		Under Maryland law, certain “business combinations” (which include a merger, consolidation, share exchange and certain transfers, issuances or reclassifications of equity securities) between a Maryland corporation and any person who beneficially owns 10 percent or more of the voting power of the corporation’s outstanding voting stock, or an affiliate or associate of the corporation who beneficially owned 10 percent or more of the voting power at any time within the preceding two years, in each case referred to as an “interested stockholder,” or an affiliate thereof, are prohibited for five years after the most recent date on which the interested stockholder becomes an interested stockholder. Thereafter, any such business combination must be recommended by the corporation’s board of directors and approved by the affirmative vote of at least (i) 80% of the votes entitled to be cast by holders of outstanding shares of voting stock of the corporation, voting together as a single group, and (ii) two-thirds of the votes entitled to be cast by holders of voting stock of the corporation other than shares held by the interested stockholder or its affiliates or associates, voting together as a single group unless, among other conditions, the corporation’s common stockholders receive a minimum price (as defined in the MGCL) for their shares and the consideration is received in cash or in the same form as previously paid by the interested stockholder for its shares. A person is not an interested stockholder under the statute if the board of directors approved in advance the transaction by which the person otherwise would have become an interested stockholder. The board of directors may provide that its approval is subject to compliance, at or after the time of approval, with any terms and conditions determined by it. As permitted under Maryland law, TSRE has elected not to be governed by the provisions of the business combination statute, by resolution of the TSRE Board, provided that the business combination is first approved by the TSRE Board.

 

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STOCKHOLDER PROPOSALS

TSRE 2015 Annual Stockholder Meeting and Stockholder Proposals

The 2015 annual meeting of TSRE’s stockholders will be held only if the Merger is not completed. In order for stockholder proposals otherwise satisfying the eligibility requirements of SEC Rule 14a-8 to be considered for inclusion in TSRE’s proxy statement for its 2015 annual meeting of stockholders, they must be received by TSRE at its principal office of 19950 West Country Club Drive, Suite 800, Aventura Florida 33180 no later than the tenth day following the day on which the public announcement of the date of such meeting is first made.

The Combined Company Annual Stockholder Meeting and Stockholder Proposals

If the Merger is completed, the Combined Company will hold an annual meeting for its stockholders in accordance with its charter and bylaws, which will be identical to the existing charter and bylaws of IRT. Notice will be provided to stockholders of the Combined Company of the date of such meeting, the date by which stockholder proposals must be received and the address to which stockholder proposals must be mailed for inclusion in the Combined Company’s proxy statement.

 

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