Correspondence between Blackwells and Monmouth
Annotated Background to the Solicitation
On June 22, 2020, Blackwells Capital LLC made its initial investment in the Company.
On December 1, 2020, Blackwells delivered a letter to the Company (the “December 1 Letter”). The letter included an offer by Blackwells to purchase the Company for $16.75 per share of Common Stock. On the same date, the Company’s stock price closed at $14.80 per share.
On December 10, 2020, Eugene W. Landy, the Company’s Chairman of the Board, responded to the December 1 Letter with a conclusory statement that the Board determined that pursuing a sale of the Company would not be in the best interest of the Company at the time.
On December 14, 2020, Land & Buildings made its initial investment in the Company.
On December 18, 2020, Blackwells delivered a letter to the Company (the “December 18 Letter”). The letter included a second offer by Blackwells to purchase the Company for an increased price of $18.00 per share of Common Stock. On the same date, the Company’s stock price closed at $16.99 per share.
On December 23, 2020, Blackwells’ counsel delivered a letter (the “Nomination Notice”) to Michael D. Prashad, General Counsel and Corporate Secretary of the Company, announcing its intention to nominate the Nominees for election to the Board at the Annual Meeting, as Class III directors for a term of three years on the Board, and to submit the Blackwells Proposals for consideration by the Company’s stockholders, each on a non-binding, advisory basis, at the Annual Meeting.
On December 31, 2021, the Company issued a press release, publicly confirming that the Company had received the Nomination Notice.
On January 14, 2021, Eugene W. Landy sent a brief letter to Blackwells rejecting the offer made in the December 18 Letter and stating that the Board had unanimously decided to explore strategic alternatives to maximize stockholder value. The Company publicly announced the Board’s decision to explore strategic alternatives in a Current Report on Form 8-K the same day.
On January 20, 2021, the Company filed a complaint against Blackwells Capital and Ms. Nagelberg in the Superior Court of New Jersey, Chancery Division, Monmouth County (the “Court”), seeking injunctive relief and money damages. See Monmouth Real Estate Investment Corporation v. Allison Nagelberg and Blackwells Capital LLC, MON-C-000012-21. The complaint asserts nine contract and tort claims against Ms. Nagelberg, Blackwells Capital, or both of them, depending on the particular count. Simultaneous with filing the complaint, the Company filed a motion for temporary restraints and a preliminary injunction, which sought to: (i) prohibit Blackwells from from nominating Ms. Nagelberg for election to the Board; (ii) invalidate the indemnification agreement between Blackwells Capital and Ms. Nagelberg; and (iii) prohibit Ms. Nagelberg from violating contractual, fiduciary and ethical obligations to the Company, pursuant to certain contractual agreements entered into with the Company and her duties as a former attorney for the Company.
On January 28, 2021, the Court denied the Company’s request for temporary restraints, except that it ordered Ms. Nagelberg to continue to abide by any confidentiality obligations she owes to the Company. On March 8, 2021, the Court heard argument on the Company’s motion for a preliminary injunction. The Court denied the Company’s motion in full at the conclusion of the argument. On March 22, 2021, the Company filed a motion in the Superior Court of New Jersey, Appellate Division for leave to appeal the denial of its motion for a preliminary injunction. Blackwells Capital and Ms. Nagelberg filed an opposition to that motion on April 1, 2021. On April 15, 2021, the Appellate Division denied the Company’s motion for leave to appeal.
Ms. Nagelberg answered the Company’s complaint and counterclaimed against the Company for advancement and indemnification. She has moved for summary judgment on those claims, and the Company has moved to dismiss them. On April 5, 2021, Blackwells Capital filed its response to the Company’s complaint.
On February 8, 2021, Blackwells delivered a letter to Mr. Prashad demanding that the Company file a lawsuit against the individual members of the Board that would allege breaches of fiduciary duties as a result of (i) their failure to appoint a special committee of independent directors to evaluate Blackwells’ recent offer to purchase the Company and (ii) the Board’s waste of corporate assets caused by its approval of the Company’s frivolous lawsuit against Blackwells (the “February 8 Letter”). Blackwells requested that Mr. Prashad respond to the February 8 Letter by February 15, 2021.
Also on February 8, 2021, Blackwells Capital filed an email with the SEC that Mr. Aintabi had sent to Jonathan Litt of Land & Buildings.
On March 10, 2021, Blackwells delivered a letter to the Board expressing Blackwells’ disappointment that it had not been invited to participate in the Company’s strategic alternatives review process despite numerous attempts to contact the Company’s financial advisors, legal representatives and Michael Landy, the Company’s President and Chief Executive Officer, and called on the Company to engage in good faith discussions with Blackwells (the “March 10 Letter”).
On March 12, 2021, Mr. Prashad delivered a letter to Mr. Aintabi responding to the March 10 Letter, stating that the Board was aware of its duties to the Company and its stockholders and that it only intended to provide stockholders with an update of the Company’s review of strategic alternatives once the process concluded.
On March 17, 2021, Blackwells delivered two letters to the Company, demanding to inspect certain books and records of the Company, pursuant to Section 1315 of the New York Business Corporation Law and Section 2-512 of the Maryland Corporations and Associations Code (together, the “Demand Letters”).
On March 22, 2021, Mr. Prashad delivered a letter to Mr. Aintabi responding to the Demand Letters, agreeing to provide portions of the information responsive to Blackwells pursuant to certain conditions, including Blackwells’ execution of a confidentiality agreement (the “March 22 Letter”).
On March 25, 2021, the Company’s counsel delivered a letter to Mr. Aintabi informing him that a committee of directors had been formed to investigate Blackwells’ claims and demands set forth in the February 8 Letter and inviting Mr. Aintabi to provide any additional information related to Blackwells’ claims set forth in the February 8 Letter. The letter did not identify the members of the newly formed committee, or the committee’s mandate.
On March 31, 2021, Blackwells’ counsel delivered a letter to the Company’s counsel, which stated that Blackwells would provide the special committee with significant additional information related to Blackwells’ claims in the February 8 Letter if the special committee were independent from management and entered into a confidentiality agreement with Blackwells.
Also on March 31, 2021, Blackwells delivered a letter to the Board demanding that the Board: (i) set a date for the Annual Meeting; (ii) provide a transparent update on the Company’s strategic alternatives process; (iii) drop the litigation against Blackwells; (iv) publicly disclose the establishment of the special committee; and (v) engage with Blackwells in earnest (the “March 31 Letter”).
On April 1, 2021, Blackwells delivered a letter to Mr. Prashad stating that it was entitled to all materials requested in the Demand Letters and not just portions of the materials (the “April 1 Letter”). Blackwells requested that Mr. Prashad respond to the April 1 Letter by April 2, 2021.
On April 8, 2021, the Company’s counsel sent a letter to Blackwells’ counsel responding to the April 1 Letter, stating that the Company should have an opportunity to provide requested books and records for inspection pursuant to the terms of an executed confidentiality agreement before discussing the contents of the Company’s responses to the particular items set forth in the Demand Letters.
On April 9, 2021, the Company’s counsel delivered a letter to Blackwells’ counsel alleging that the March 31 Letter was an attempt to bully the Board and claiming that it may expose Blackwells to liability (the “April 9 Letter”). The April 9 Letter did not address any of Blackwells’ demands set forth in the March 31 Letter.
On April 13, 2021, Blackwells’ counsel delivered a letter to the Company’s counsel responding to the April 9 Letter, requesting that the Company: (i) identify which of Blackwells’ claims constitute the purported “myriad untruths” referenced in the April 9 Letter; (ii) provide reasonable support for why it believes any such claims are false; and (iii) explain how the March 31 Letter could expose Blackwells to liability.
On April 19, 2021, Blackwells filed its preliminary proxy statement with the SEC.