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.