0001193805-05-000535.txt : 20120614
0001193805-05-000535.hdr.sgml : 20120614
20050316193428
ACCESSION NUMBER: 0001193805-05-000535
CONFORMED SUBMISSION TYPE: DEFC14A
PUBLIC DOCUMENT COUNT: 3
FILED AS OF DATE: 20050317
DATE AS OF CHANGE: 20050316
EFFECTIVENESS DATE: 20050317
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: SIZELER PROPERTY INVESTORS INC
CENTRAL INDEX KEY: 0000805419
STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798]
IRS NUMBER: 721082589
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: DEFC14A
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-09349
FILM NUMBER: 05687066
BUSINESS ADDRESS:
STREET 1: 2542 WILLIAMS BLVD
CITY: KENNER
STATE: LA
ZIP: 70062
BUSINESS PHONE: 5044716200
MAIL ADDRESS:
STREET 1: 2542 WILLIAMS BLVD
CITY: KENNER
STATE: LA
ZIP: 70062
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: FIRST UNION REAL ESTATE EQUITY & MORTGAGE INVESTMENTS
CENTRAL INDEX KEY: 0000037008
STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798]
IRS NUMBER: 346513657
STATE OF INCORPORATION: OH
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: DEFC14A
BUSINESS ADDRESS:
STREET 1: 7 BULFINCH PLACE
STREET 2: SUITE 500 PO BOX 9507
CITY: BOSTON
STATE: MA
ZIP: 02114
BUSINESS PHONE: 6175704614
MAIL ADDRESS:
STREET 1: 7 BULFINCH PLACE
STREET 2: SUITE 500 PO BOX 9507
CITY: BOSTON
STATE: MA
ZIP: 02114
FORMER COMPANY:
FORMER CONFORMED NAME: FIRST UNION REALTY
DATE OF NAME CHANGE: 19691012
DEFC14A
1
e500250_defc14a-sizeler.txt
DEFINITIVE PROXY STATEMENT
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
(Rule 14A-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934
Filed by the Registrant |_|
Filed by a Party other than the Registrant |X|
Check the appropriate box:
|_| Preliminary Proxy Statement
|_| Confidential, for Use of the Commission Only
(as permitted by Rule 14a-6(e)(2))
|_| Definitive Proxy Statement
|_| Definitive Additional Materials
|X| Soliciting Material Pursuant to Rule ss.240.14a-12
SIZELER PROPERTY INVESTORS, INC.
--------------------------------
(Name of Registrant as Specified In Its Charter)
FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS
-------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if Other Than the Registrant)
Payment of Filing Fee (Check the appropriate box):
|X| No fee required.
|_| Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction
applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (Set forth the
amount on which the filing fee is calculated and state how it
was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
|_| Fee paid previously with preliminary materials: N/A
|_| Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
Attached hereto is Amendment No. 13 to First Union Real Estate Equity and
Mortgage Investment's Schedule 13D with respect to common stock of Sizeler
Property Investors, Inc. ("Sizeler"), filed today with the Securities and
Exchange Commission (the "SEC"). The amendment attaches a letter from First
Union to Sizeler, dated March 16, 2005, responding to certain statements made by
Sizeler in a press release issued on March 15, 2005 and addressing certain
allegations made against First Union in an action commenced by Sizeler and eight
of its directors on March 15, 2005. The amendment also attaches a March 16, 2005
press release issued by First Union responding to a press release issued by
Sizeler on March 16, 2005.
First Union previously notified Sizeler of its intention to file a proxy
statement and other relevant documents with the SEC in support of the election
as directors of Sizeler of Michael L. Ashner, Peter Braverman and Steven Zalkind
at Sizeler's 2005 Annual Meeting of Stockholders. INVESTORS ARE URGED TO READ
THE DEFINITIVE PROXY STATEMENT WHEN IT BECOMES AVAILABLE AND ANY OTHER RELEVANT
DOCUMENTS FILED WITH THE SEC BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION.
You will be able to obtain the documents free of charge at the SEC's website,
www.sec.gov. First Union and Messrs. Ashner, Braverman and Zalkind may be deemed
to be participants in the solicitation of proxies from the shareholders of
Sizeler in connection with the annual meeting. Information about these
participants is set forth in the preliminary proxy statement filed by First
Union with the SEC. Investors may obtain additional information regarding the
interests of such participants by reading the definitive proxy statement when it
becomes available.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
SCHEDULE 13D
under the Securities Exchange Act of 1934
(Amendment No. 13)
-----------------------
SIZELER PROPERTY INVESTORS, INC.
--------------------------------
(Name of Issuer)
Common Stock, Par Value $.0001 per share
----------------------------------------
(Title of Class of Securities)
830137-10-5
-----------------------
(CUSIP Number of Class
of Securities)
Carolyn Tiffany David J. Heymann
First Union Real Estate Equity and Post Heymann & Koffler LLP
Mortgage Investments Two Jericho Plaza, Wing A
7 Bulfinch Place Suite 111
Suite 500 Jericho, New York 11753
Boston, Massachusetts 02114 (516) 681-3636
(617) 570-4614
----------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 16, 2005
--------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|.
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7 for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover shall not be deemed to
be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934
("Act") or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the Notes).
(continued on next page(s)) Page 1 of 5
CUSIP No. 830137-10-5 13D/A Page 2 of 5
--------------------------------------------------------------------------------
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
First Union Real Estate Equity and Mortgage Investments
I.R.S. I.D. No. 34-6513657
--------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group * (a) |_|
(b) |_|
--------------------------------------------------------------------------------
3. SEC Use Only
--------------------------------------------------------------------------------
4. Sources of Funds *
WC
--------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is
Required Pursuant to Items 2(e) of 2(f) |_|
--------------------------------------------------------------------------------
6. Citizenship or Place of Organization
Ohio
--------------------------------------------------------------------------------
7. Sole Voting Power
1,310,300
-----------------------------------------------------------------
Number of 8. Shared Voting Power
Shares
Beneficially - 0 -
Owned by -----------------------------------------------------------------
Each 9. Sole Dispositive Power
Reporting
Person 1,310,300
With -----------------------------------------------------------------
10. Shared Dispositive Power
- 0 -
--------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,310,300 Shares
--------------------------------------------------------------------------------
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares* |_|
--------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
8.2%
--------------------------------------------------------------------------------
14. Type of Reporting Person*
OO
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 830137-10-5 13D/A Page 3 of 5
This Amendment No. 13 amends certain information contained in the Schedule
13Dfiled by First Union Real Estate Equity and Mortgage Investments, an Ohio
business trust ("First Union"), with respect to its ownership interest in
Sizeler Property Investors, Inc., as amended by Amendment No. 1 to Schedule 13D
dated November 11, 2004, as further amended by Amendment No. 2 to Schedule 13D
dated November 16, 2004, as further amended by Amendment No. 3 to Schedule 13D
dated December 6, 2004, as further amended by Amendment No. 4 to Schedule 13D
dated December 21, 2004, as further amended by Amendment No. 5 to Schedule 13D
dated January 7, 2005, as further amended by Amendment No. 6 to Schedule 13D
dated January 14, 2005, as further amended by Amendment No. 7 to Schedule 13D
dated January 19, 2005, as further amended by Amendment No. 8 to Schedule 13D
dated January 26, 2005, as further amended by Amendment No. 9 to Schedule 13D
dated January 31, 2005, as further amended by Amendment No. 10 to Schedule 13D
dated February 23, 2005, as further amended by Amendment No. 11 to Schedule 13D
dated March 8, 2005 and as further amended by Amendment No. 12 to Schedule 13D
dated March 15, 2005 (the "13D"). Capitalized terms used but not defined herein
have the meanings ascribed to them in the 13D.
Item 4. Purpose of Transaction.
Item 4 is hereby amended as follows:
On March 16, 2005, First Union sent to Sidney Lassen, the Chief Executive
Officer of the Issuer, a letter responding to certain statements made by the
Issuer in a press release issued on March 15, 2005. In addition, the Issuer and
eight of its directors have commenced an action against First Union (i) alleging
that First Union has failed to make certain required disclosures in prior
filings on Schedule 13D and (ii) seeking a declaratory judgment that the
directors of the Issuer did not breach their fiduciary duty or otherwise act
fraudulently, in bad faith, recklessly, negligently or with corporate waste by
authorizing the sale of 2,649,000 newly issued shares on March 15th at a price
of $10.75 per share. First Union denies all allegations made against it, intends
to vigorously contest the request for a declaratory judgment and is considering
what, if any, claims to assert in the lawsuit. First Union's March 16th letter
also addresses the allegations against it and is incorporated herein by
reference.
On March 16, 2005, First Union also issued a press release responding to a
press release issued by the Issuer on March 16, 2005. A copy of First Union's
March 16, 2005 press release is attached hereto and is incorporated herein by
reference.
In order to protect the interests of all stockholders with respect to the
aforementioned March 15, 2005 stock sale, on March 15, 2005, First Union filed
suit against the Issuer asserting the impropriety of that stock sale and sought
a temporary restraining order requiring the Issuer to halt all steps being taken
to close and consummate the transaction. Relying explicitly on the
representations of the Issuer's counsel that the stock sale and all relevant
steps to effectuate that sale had been already been completed at or about 10
a.m. that day, i.e. very shortly after the sale had been announced by the
Issuer, the Court determined that it was too late to issue the requested relief.
The Court made explicit that it was not denying First Union's requested
temporary restraining order due to any failure to demonstrate a likelihood of
success on the merits. Rather, the Court did not rule on that issue but noted
that First Union had raised "serious" questions about the transaction.
CUSIP No. 830137-10-5 13D/A Page 4 of 5
Item 5. Interest in Securities of the Issuer
Item 5 is hereby amended and restated to read as follows:
(a) First Union directly owns 1,310,300 Shares representing 8.29% of the
total outstanding Shares. The foregoing is based upon 16,045,000 Shares
outstanding which represents the number of shares reported outstanding in the
Issuer's most recently filed report on Form 10-K together with the 2,649,000
additional Shares issued on March 15, 2005.
(b) First Union has the sole power to vote and dispose of 1,310,300 Shares
owned by First Union.
(c) Set forth below is a description of all transactions in Shares that
were effected during the past sixty days by First Union. All such transactions
were purchases effected by First Union on the open market.
Date Number of Shares Price Per Share
January 25, 2005 117,000 $11.60
February 4, 2004 3,600 $11.56
February 14, 2005 10,000 $12.05
February 16, 2005 6,000 $11.98
February 17, 2005 10,000 $12.03
February 18, 2005 5,000 $11.88
February 22, 2005 10,000 $11.80
February 23, 2005 8,900 $11.70
(d) Not applicable
(e) Not applicable
Item 7. Materials to be Filed as Exhibits.
Item 7 is hereby amended as follows:
Exhibit 10. Letter from First Union to Sidney Lassen dated March 16, 2005.
Exhibit 11. Press Release by First Union dated March 16, 2005.
CUSIP No. 830137-10-5 13D/A Page 5 of 5
Signatures
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: March 16, 2005 FIRST UNION REAL ESTATE EQUITY AND
MORTGAGE INVESTMENTS
By: /s/ Peter Braverman
-----------------------
Peter Braverman
President
EX-10
2
e500250_ex10.txt
LETTER FROM FIRST UNION TO SIDNEY LASSEN
FIRST UNION LETTERHEAD
March 16, 2005
BY FACSIMILE AND FEDERAL EXPRESS
Mr. Sidney Lassen
Chief Executive Officer
Sizeler Property Investors, Inc.
2542 Williams Boulevard
Kenner, Louisiana 70062
Dear Mr. Lassen:
We note with somewhat disheartened bemusement the implications of your
most recent press release lauding Monday's off market sale of 2,649,000 publicly
registered shares of Sizeler's common stock while simultaneously dismissing our
proposals to provide capital, each of which would have been non-dilutive or less
dilutive to shareholder equity. In so doing, your self-aggrandizing press
release stated that the sale was part of "your long term strategic plan to build
shareholder value". Furthermore, you indicated non-responsively that your
rejection of consideration of our proposals was due to our lack of knowledge
about the complexity of Sizeler's balance sheet.
On reflection, it occurs to us that a dilutive below market sale of 19.6%
of Sizeler's then-outstanding shares may well be consistent with a strategic
plan that to date has yielded shareholders a 60% dividend reduction, diminishing
FFO and a moribund stock price in a raging REIT securities market. One is
compelled to wonder whether management's view of a fully successful
implementation and culmination of its plan would provide shareholders with
continuously declining dividends and a falling stock price through the
circumspect application of poor management technique and entrenching below
market stock sales.
As to our purported naivete relating to Sizeler's capital structure, we
are unable to respond due to the lack of any described specifics from
management. We do note, however, that at least one of our proposed alternatives
involved the very same capital structure and a sale of the same number of shares
of stock, simply at a higher price than that at which Sizeler chose to sell.
Moreover, we do not believe that our position as an existing shareholder of
Sizeler was a barrier to discussions in view of the fact that management
believed it could afford this below market opportunity to at least one existing
shareholder whose support management has historically enjoyed.
In response to your allegations that our securities filings contain "vague
and incomplete" descriptions of our intentions, we reiterate that as a concerned
shareholder we intend to closely scrutinize and monitor developments at Sizeler
and, in response thereto, to consider various appropriate methods of maximizing
the value of our shares and shareholder value in general. We currently have no
plans or proposals with respect to Sizeler other than as disclosed in our
securities filings. On the contrary, we have been and will continue to give
consideration to the question of how Sizeler can best be managed to build
shareholder value. As events unfold and we learn more about Sizeler, its
management and its intentions, we anticipate arriving at and proposing various
appropriate measures. These measures could include, without limitation,
externalizing management, strategic sales of non-core assets and/or a
liquidation of the company. Any such plans or proposals, once formulated, will
be promptly disclosed as required under applicable securities laws including,
without limitation, in our definitive proxy material to be filed in connection
with the annual shareholders' meeting and consistent with our desire to keep
shareholders informed about Sizeler and about our intentions. We note by
comparison that yesterday's below market equity sale, effectuated with virtually
no prior notice to shareholders, shed significant light on management's
intentions and methods and will likely affect our intentions.
Very truly yours,
FIRST UNION REAL ESTATE EQUITY
AND MORTGAGE INVESTMENTS
Michael L. Ashner
Chief Executive Officer
2
EX-11
3
e500250_ex11.txt
PRESS RELEASE BY FIRST UNION
FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS
AT THE COMPANY
Carolyn Tiffany
Chief Operating Officer
(617) 570-4614
FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS
RESPONDS TO SIZELER'S ALLEGATIONS
Boston, Massachusetts- March 16, 2005- First Union Real Estate Equity and
Mortgage Investments (NYSE:FUR) notes that Sizeler Property Investors, Inc. has
publicly announced certain claims against First Union that it has brought in
Federal District Court in Maryland. First Union denies all of the allegations in
Sizeler's lawsuit and press release.
In particular, Sizeler's press release discusses the denial by a Maryland
state court of a request by First Union that the court issue a temporary
restraining order barring Sizeler from taking any further steps to consummate
the sale of 2,649,000 shares of stock in a transaction first announced
yesterday. Sizeler's press release fails to disclose that in denying the
temporary restraining order the court explicitly relied on the representations
of Sizeler's counsel that the stock sale and all relevant steps to effectuate
that sale had already been completed at or about 10 a.m. that day, i.e. very
shortly after the sale had been announced by Sizeler. Sizeler's press release
also fails to disclose that the court made it explicit that it was not denying
the requested temporary restraining order due to any failure to demonstrate a
likelihood of success on the merits. Rather, the court did not rule on that
issue but noted that First Union had raised "serious" questions about the
transaction.
It should also be noted that the federal court action filed by Sizeler
also seeks a declaratory judgment that the directors of Sizeler did not breach
their fiduciary duty or otherwise act fraudulently, in bad faith, recklessly,
negligently or with corporate waste by authorizing the sale of 2,649,000 newly
issued shares on March 15 at a price of $10.75 per share. First Union intends to
vigorously contest the request for a declaratory judgment.
-------------------
First Union Real Estate Equity and Mortgage Investments is a NYSE-listed
real estate investment trust (REIT) headquartered in Boston, Massachusetts.
First Union Real Estate Equity and Mortgage Investments has filed with the
SEC a preliminary proxy statement with respect to its solicitation of proxies to
elect Michael L. Ashner, Peter Braverman and Steven Zalkind as directors at
Sizeler's 2005 Annual Meeting of Stockholders. INVESTORS ARE URGED TO READ THE
DEFINITIVE PROXY STATEMENT WHEN IT BECOMES AVAILABLE AND ANY OTHER RELEVANT
DOCUMENTS FILED WITH THE SEC BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION.
You will be able to obtain the documents free of charge at the SEC's website,
www.sec.gov. First Union and Messrs. Ashner, Braverman and Zalkind may be deemed
to be participants in the solicitation of proxies from the shareholders of
Sizeler in connection with the annual meeting. Information about these
participants is set forth in the preliminary proxy statement filed by First
Union with the SEC. Investors may obtain additional information regarding the
interests of such participants by reading the definitive proxy statement when it
becomes available.