Securities Act of 1934
Response of the Office of Mergers and Acquisitions
Division of Corporation Finance
June 26, 2007
Dennis O. Garris, Esq.
Alston & Bird LLP
950 F Street, N.W.
Washington, D.C. 20004-1404
Re: Wells REIT II, Inc. Redemption Program
Dear Mr. Garris:
We are responding to your letter dated May 11, 2007 addressed to Pamela Carmody, as supplemented by telephone conversations with the staff, with regard to your request for no-action relief. To avoid having to recite or summarize the facts set forth in your letter, our response is attached to the enclosed photocopy of your letter. Unless otherwise noted, capitalized terms in this letter have the same meaning as in your May 11, 2007 correspondence.
Based upon your opinion that the Revised Program does not constitute an issuer tender offer subject to Rule 13e-4, as well as the facts and representations made in correspondence and conversations with the staff, the Division of Corporation Finance, without necessarily concurring with the analysis or conclusions set forth in your letter, will not recommend that the Commission take enforcement action under Rule 13e-4 with respect to redemptions, including Death Redemptions, under the Revised Program. In issuing this no-action position, the Division of Corporation Finance considered the following facts, among others:
- The Company does not "solicit" redemptions under the program. Shareholders desiring to present all or a portion of their shares for redemption will do so of their own volition and not at the behest, invitation or encouragement of the Company. The role of the Company in effectuating redemptions is ministerial.
- The Company will provide notice to all shareholders at least 30 days prior to any termination or suspension of, or amendment to, the program.
- During the Offering, the shares of common stock are redeemed at a price related to, and at a fixed discount from, the public offering price of the common stock at the time of redemption. After the termination of the Offering, at all times during which the Company is conducting a follow-on public offering, the redemption price will not exceed the offering price used in such offering.
- The program will be terminated in the event the Company's shares are listed on a national securities exchange or included for quotation in a national securities market, or in the event a secondary market for the Company's common shares develops.
- Purchases will be made on a quarterly basis and will be paid in cash and at the same per share price. The Company will purchase shares promptly, within three business days after the Company delivers a commitment to acquire shares subject to a redemption request. Shareholders will receive written notice of any change in the redemption price at least 30 days prior to the change and in the event the Company is conducting a public offering, the prospectus relating to such offering will be supplemented at such time to disclose the new price.
- The program will remain indefinitely.
- Shareholders may submit a redemption request at any time during the month.
- Shareholders may withdraw a redemption request at any time before the date for redemption.
- During any year, with the exception of Death Redemptions, the number of shares redeemed under the program will never exceed 5% of the weighted-average number of shares outstanding in the prior calendar year or 100% of the net proceeds from its dividend reinvestment plan during the calendar year.
- The Company generally will purchase shares on a pro rata basis at the end of each month in the event certain limits are reached during such month or if the amount of available capital resources is insufficient to satisfy all of the current redemption requests.
- There is no established regular trading market for the Company's common stock.
- The program is open to all shareholders who have held shares for one year prior to being redeemed; and
- To date, all of the Company's redemptions have been conducted pursuant to the terms of the Current Redemption Program as set forth in your letter.
The foregoing no-action position is based solely on the representations and the facts presented in your letter dated May 11, 2007, as supplemented by telephone conversations with the staff of the Division of Corporation Finance. The relief is strictly limited to the application of the rules listed above to this transaction. You should discontinue this transaction pending further consultations with the staff if any of the facts or representations set forth in your letter change.
We also direct your attention to the anti-fraud and anti-manipulation provisions of the federal securities laws, including Section 10(b) of the Exchange Act, and Rule 10b-5 thereunder. The participants in this transaction must comply with these and any other applicable provisions of the federal securities laws. The Division of Corporation expresses no view on any other questions that may be raised by the proposed transaction, including by not limited to, the adequacy of disclosure concerning, and the applicability of any other federal or state laws to, the proposed transaction.
For the Division of Corporation Finance
Office of Mergers & Acquisitions
Division of Corporation Finance
The Incoming Letter is in Acrobat format.