0000898822-95-000094.txt : 19950818 0000898822-95-000094.hdr.sgml : 19950818 ACCESSION NUMBER: 0000898822-95-000094 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19950817 SROS: NYSE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ROCKEFELLER CENTER PROPERTIES INC CENTRAL INDEX KEY: 0000773652 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 133280472 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-37338 FILM NUMBER: 95564933 BUSINESS ADDRESS: STREET 1: 1270 AVENUE OF THE AMERICAS STREET 2: STE 2410 CITY: NEW YORK STATE: NY ZIP: 10020 BUSINESS PHONE: 2128417760 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GOTHAM PARTNERS L P CENTRAL INDEX KEY: 0000899983 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 237 PARK AVENUE 9TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 SC 13D 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 Rockefeller Center Properties, Inc. (Name of Issuer) Common Stock (Title of Class of Securities) 773102108 (CUSIP Number) Eric S. Robinson c/o Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, NY 10019 (212) 403-1000 (Name, address and telephone number of person authorized to receive notices and communications) August 16, 1995 (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: Check the following box if a fee is being paid with this statement: X -1- 1. Name of Reporting Person S.S. or I.R.S. Identification No. of Above Person Gotham Partners, L.P. 13-3700768 2. Check the Appropriate Box if a Member of a Group (a) (b) 3. SEC Use Only 4. Source of Funds WC 5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) 6. Citizenship or Place of Organization Delaware Number of 7. Sole Voting Power Shares 2,124,900* Beneficially 8. Shared Voting Power Owned by Each Reporting 9. Sole Dispositive Power Person With 2,124,900* 10. Shared Dispositive Power 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 2,124,900* *Including Options See Item 5 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares 13. Percent of Class Represented by Amount in Row (11) 5.55% See Item 5 14. Type of Reporting Person -2- PN -3- SCHEDULE 13D RELATING TO THE COMMON STOCK OF ROCKEFELLER CENTER PROPERTIES, INC. Item 1. Security and Issuer: This statement on Schedule 13D (the "Statement") re- lates to the Common Stock, $.01 par value ("Common Stock"), of Rockefeller Center Properties, Inc., a Delaware Corporation (the "Company"). The principal executive offices of the Com- pany are located at 1270 Avenue of the Americas, New York, New York 10020. Item 2. Identity and Background: This Statement is being filed by Gotham Partners, L.P., a Delaware limited partnership ("Gotham" or the "Reporting Entity"), which was formed to engage in the business of buying and selling securities. Section H Partners, a New York limited partnership ("Section H"), is the sole general partner of Gotham. Karenina Corp., a Delaware corporation ("Karenina") and DPB Corp., a Delaware corporation ("DPB") are the sole general partners of Section H. Karenina is wholly owned by Mr. William A. Ackman. DPB Corp. is wholly owned by Mr. David P. Berkowitz. Messrs. Ackman and Berkowitz are citizens of the United States of Ame- rica; their principal occupation is managing Gotham. The bus- iness address of each of Gotham, Section H, Karenina, DPB and Messrs. Ackman and Berkowitz is 237 Park Avenue, New York, New York 10017. During the last five years, none of Gotham, Section H., Karenina, DPB, Mr. William A. Ackman or Mr. David P. Berk- owitz, (i) has been convicted in a criminal proceeding (ex- cluding traffic violations or similar misdemeanors), (ii) was party to a civil proceeding of a judicial or administrative body or of competent jurisdiction and as a result of such pro- ceeding was or is subject to a judgement, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or State securities laws or finding any violation or respect to such laws. Item 3. Source and Amount of Funds or Other Consideration: The aggregate purchase price of the Common Stock and options to purchase Common Stock ("Options," and collectively with the Common Stock, the "Securities") was $8,337,033, all of which was obtained from the general funds of Gotham. See Item 5 below. Item 4. Purpose of the Transaction: The Reporting Entity had acquired the Securities for investment purposes. On August 16, 1995, the Company announced that it had entered into a letter of intent with Equity Office Holdings, LLC, a group which includes Zell/Merrill Lynch Real Estate Opportunity Partners, L.P. III and the Walt Disney Company (the "Zell Group") with respect to a $250,000,000 investment in a recapitalization and deleveraging of the Company that would result in a new company owned in approximately equal proportions by the Zell Group and current equity holders of the Company. The Reporting Entity intends to explore alternative transactions that may realize greater value for the current shareholders of the Company, which may include an acquisition of securities of the company, or a recapitalization, merger or other extraordinary transaction involving the Company. The Reporting Entity may participate with other investors in arranging and executing such a transaction. In connection with the foregoing, the Reporting Entity may engage in discussions with and may make proposals to the management of the Company, other shareholders of the Company, the owners of Rockefeller Center, institutional providers of debt, equity capital, and others, subject to the terms of the Letter Agreement (as defined below). The Reporting Entity may also seek to assist the Company in realizing the full value of its claims in connection with the bankruptcy proceedings of Rockefeller Center Properties and RCP Associates, the two partnerships which own the landmark buildings known as Rockefeller Center. On September 30, 1994, the Company entered into a Letter Agreement with the Reporting Entity (the "Letter Agree- ment") pursuant to which the Reporting Entity agreed to keep confidential certain Proprietary Information (as defined in the Letter Agreement) provided by the Company to the Reporting En- tity. In addition, pursuant to the Letter Agreement, the Re- porting Entity agreed, for a period of one year from the date of the Letter Agreement, without the prior written consent of the Company or its Board of Directors, to certain restrictions with respect to, among other things, (a) acquiring voting se- curities or assets of the Company or its subsidiaries (except in a transaction or transactions not involving any potential change of control of the Company), (b) participating in proxy solicitations, (c) making public announcements with respect to -2- tender offers or exchange offers or other extraordinary trans- actions involving the Company or its securities or assets or (d) participating in a "group" with respect to the foregoing. The foregoing summary of certain terms of the Letter Agreement is qualified in its entirety by reference to the Letter Agree- ment, which is filed as Exhibit 1 hereto and is incorporated herein by reference. The Reporting Entity intends to review continuously its investment in the Company and, on the basis of such review and such market and other factors as it may deem relevant, may, subject to the limitations contained in the Letter Agreement or in the Company's Restated Certificate of Incorporation, which imposes certain limits upon the percentage of the Company's voting securities which may be owned by a single shareholder or group of shareholders, acquire or sell Securities. Except as described in this Schedule 13D, including this Item 4, the Reporting Entity has no plans or proposals which relate to or which would result in any events described in subsections (a) through (j) of Item 4 of the General Instructions to Schedule 13D. Item 5. Interest in Securities of the Issuer: (a) The Reporting Entity owns 1,474,900 shares of Common Stock and Options to purchase 650,000 shares of Common Stock, representing an aggregate of approximately 5.55% of the outstanding shares of Common Stock (based on 38,260,704 shares outstanding as of August 14, 1995, as reported in the Company's Form 10-Q for the quarter ended June 30, 1995 and assuming full exercise of the Options). See Item 6. None of Section H, Karenina, DPB, Mr. Ackman or Mr. Berkowitz beneficially owns any Securities (other than the Securities beneficially owned by the Reporting Entity). (b) The Reporting Entity has sole power to vote and to dispose of all of the Securities beneficially owned by it. (c) Not applicable. (d) Not applicable. (e) Not applicable. -3- Item 6. Contracts, Arrangements, Understandings or Relation- ships with Respect to Securities of the Issuer: The option agreements pursuant to which the Options were purchased (the "Option Agreements") are attached hereto as Exhibits 2-4, respectively. The Options are "European" call options which are not exercisable prior to the exercise date specified in the relevant Option Agreement. The foregoing description of the Options as set forth in the Option Agreements is qualified in its entirety by reference to the Option Agreements, which are filed as Exhibits 2-4 hereto and are incorporated herein by reference. Except as set forth above with respect to the Options and in Item 4 of this Schedule 13D with respect to the Letter Agreement, neither the Reporting Entity nor any of Section H, Karenina, DPB, Mr. Ackman or Mr. Berkowitz has any contract, arrangement, understanding or relationship (legal or otherwise) with any person with respect to any securities of the Company. Item 7. Material to be Filed as Exhibits: Exhibit No. Exhibit 1 Letter Agreement, dated as of September 30, 1994 among the Company and Gotham. 2 Letter Agreement, dated April 18, 1995 between Gotham and Merrill Lynch International Limited. 3 Letter Agreement, dated April 21, 1995 between Gotham and Merrill Lynch International Limited. 4 Letter Agreement, dated April 24, 1995 between Gotham and Bankers Trust Company. -4- SIGNATURE After reasonable inquiry and to the best of my knowl- edge and belief, I certify that the information set forth in this statement is true, complete and correct. GOTHAM PARTNERS, L.P. By: Section H. Partners, L.P., its general partner By: Karenina Corp., a general partner By: /s/ William A. Ackman Name: William A. Ackman Title: President Dated: August 17, 1995 -5- INDEX TO EXHIBITS Exhibit No. Exhibit Page 1 Letter Agreement, dated as of September 30, 1994 among the Company and Gotham. 2 Letter Agreement, dated April 18, 1995 between Gotham and Merrill Lynch International Limited. 3 Letter Agreement, dated April 21, 1995 between Gotham and Merrill Lynch International Limited. 4 Letter Agreement, dated April 24, 1995 between Gotham and Bankers Trust Company. EX-99.1 2 EXHIBIT 1 September 30, 1994 BY MESSENGER Gotham Partners, L.P. 237 Park Avenue, 9th Fl. New York, NY 10017 Attention: Mr. William A. Ackman Gentlemen: In order to allow you to evaluate a possible trans- action (the "Proposed Transaction") involving Rockefeller Cen- ter Properties, Inc. (the "Company"), we have delivered and will deliver to you certain information about the properties and operations of the Company. All information about the Com- pany furnished by us or our Representatives (as defined below), whether furnished before or after the date hereof, whether oral or in writing, and regardless of the manner in which it is furnished, is referred to in this letter agreement as "Propri- etary Information". Proprietary Information does not include, however, information which (a) is or becomes generally avail- able to the public other than as a result of a disclosure by you or your Representatives, (b) was available to you on a nonconfidential basis prior to its disclosure by us or our Representatives or (c) becomes available to you on a nonconfi- dential basis from a person other than us or our Representa- tives who, to your knowledge, is not otherwise bound by a con- fidentiality agreement with us or any Representative of ours or is otherwise not under a legal, contractual or fiduciary obli- gation to us or any Representative of ours not to transmit the information to you. As used in this letter agreement, the term "Representative" means, as to any person, such person's af- filiates and its and their directors, officers, employees, agents, advisors (including, without limitation, financial ad- visors, counsel and accountants), partners, financing sources and controlling persons. As used in this letter agreement, the term "person" shall be broadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual. Subject to the immediately succeeding paragraph, un- less otherwise agreed to in writing by us, you agree (a) except as required by law or legal process, to keep all Proprietary Information confidential and not to disclose or reveal any Pro- prietary Information to any person other than your Representa- tives who are participating in your evaluation of the Proposed Transaction or who otherwise need to know the Proprietary In- formation for the purpose of evaluating the Proposed Transac- tion and who are requested by you to observe the terms of this letter agreement, (b) not to use Proprietary Information for any purpose other than in connection with your evaluation of the Proposed Transaction or the consummation of the Proposed Transaction and (c) except as required by law or legal process, prior to the termination of your discussions with us regarding the Proposed Transaction, not to disclose to any person (other than those of your Representatives who are participating in your evaluation of the Proposed Transaction or who otherwise need to know for the purpose of evaluating the Proposed Trans- action and, in the case of your Representatives, whom you re- quest to observe the terms of this letter agreement) any in- formation about the Proposed Transaction, or the terms or con- ditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Pro- prietary Information has been made available to you or your Representatives. You will be responsible for any breach of the terms of this letter agreement by you. In the event that you are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Proprietary Information, you agree that you will provide us with prompt notice of such request or require- ment in order to enable us to seek an appropriate protective order or other remedy, to consult with you with respect to our taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part, with the terms of this letter agreement. If in the absence of a protective order or waiver you are required by applicable law or regulation or legal process to disclose Proprietary Infor- mation you may do so without liability hereunder provided you use your reasonable efforts to ensure that all Proprietary In- formation that is so disclosed will be accorded confidential treatment. All out-of-pocket costs incurred by you and your Representatives pursuant to this paragraph shall be borne by the Company. You also agree that for a period of one year from the date of this letter agreement, you will not, without the prior written consent of the Company or its Board of Directors: 1 acquire or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting se- curities of the Company or any subsidiary thereof, or any assets of the Company or any subsidiary or divi- sion thereof (except in a transaction or transactions -2- not involving any potential change of control of the Company); 2 make, or in any way participate, directly or indi- rectly, in any "solicitation" of "proxies" to vote (as such terms are used in the rules of the Securi- ties and Exchange Commission), or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company; 3 make any public announcements with respect to, or announce a tender offer or exchange offer for, any securities of the Company, or make any public an- nouncements with respect to any offer of (with or without conditions) any extraordinary transaction involving the Company or any of its securities or assets; 4 form, join or in any way participate in a "group" as defined in Section 13(d)(3) of the Securities Ex- change Act of 1934, as amended, in connection with any of the foregoing. If you determine that you do not wish to proceed with the Proposed Transaction, you will promptly advise us of that decision. In that case, or in the event that we, in our sole discretion, so request or the Proposed Transaction is not con- summated by you, you will, upon our request, at your election either destroy or promptly deliver to us all Proprietary In- formation, including all copies, reproductions, summaries, fi- nancial analyses or extracts thereof or based thereon in your possession or in the possession of any Representative of yours. You acknowledge that none of the Company or any of its Representatives and none of the respective officers, di- rectors, employees, agents or controlling persons of any of the Company's Representatives makes any express or implied repre- sentation or warranty as to the accuracy or completeness of any Proprietary Information, and you agree that none of such per- sons shall have any liability to you or any of your Represen- tatives relating to or arising from your or their use of any Proprietary Information or for any errors therein or omissions therefrom. You also agree that you are not entitled to rely on the accuracy or completeness of any Proprietary Information and that you shall be entitled to rely solely on such representa- tions and warranties regarding Proprietary Information as may be made to you in any final agreement, placement memoranda and/ or prospectus relating to the Proposed Transaction, subject in the case of such an agreement, to the terms and conditions of such agreement. -3- You agree that until a final agreement regarding the Proposed Transaction has been executed by you and us, neither party nor any of their respective Representatives are under any legal obligation or shall have any liability to the other party of any nature whatsoever with respect to the Proposed Transac- tion by virtue of this letter agreement or otherwise. You also acknowledge and agree that (i) we and our Representatives may conduct the process that may or may not result in the Proposed Transaction in such manner as we, in our sole discretion, may determine (including, without limitation, negotiating and en- tering into a final agreement with respect to the Proposed Transaction with any third party without notice to you) and (ii) we reserve the right to change (in our sole discretion at any time and without notice to you) the procedures relating to our and your consideration of the Proposed Transaction (in- cluding, without limitation, terminating all further discus- sions with you and requesting that you return or destroy all Proprietary Information to us). Without prejudice to the rights and remedies other- wise available to us, we shall be entitled to equitable relief by way of injunction or otherwise if you or any of your Repre- sentatives breach or threaten to breach any of the provisions of this letter agreement. It is further understood and agreed that no failure or delay by us in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or fur- ther exercise thereof or the exercise of any right, power or privilege hereunder. This Letter Agreement shall be governed by and con- strued in accordance with the laws of the State of New York applicable to contracts executed in and to be performed in that state. Any assignment of this letter agreement by you with- out our prior written consent shall be void. This letter agreement contains the entire agreement between you and us concerning confidentiality of the Propri- etary Information, and no modification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon you or us, unless approved in writing by each of you and us. -4- Please confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed herewith. Rockefeller Center Properties, Inc. By: /s/ Senior Vice President Finance & Administration Accepted and Agreed as of the data first written above: GOTHAM PARTNERS, L.P. Section H Partners, L.P., a New York limited partner- ship, as general partner By: Karenina Corp., a general partner By: /s/ William A. Ackman Name: William A. Ackman Title: President -5- EX-99.2 3 EXHIBIT 2 Merrill Lynch, Pierce, Fenner & Smith, Inc. World Financial Center New York, New York 10281-1305 Telephone: 212-449-8637 Fax: 212-449-6576 MERRILL LYNCH Confirmation of OTC Single Share Option Transaction Cash Settlement Transaction Date: April 18, 1995 ML Reference No. 958260 To: Gotham Partners, L.P. Attention: Bill Ackman 237 Park Avenue, Ninth Floor New York, New York 10017 Telephone: 212-808-2497 Fax: 212-808-2455 From: Merrill Lynch International Limited Telephone: 212-449-8637 Fax: 212-449-6576 Dear Sirs: The purpose of this letter agreement (this "Confir- mation") is to confirm the terms and conditions of the Trans- action entered into between Gotham Partners, L.P. ("Gotham") and MERRILL LYNCH INTERNATIONAL LIMITED ("MLIL"), through its agent Merrill Lynch, Pierce, Fenner & Smith, Inc., with the guarantee of Merrill Lynch & Co., Inc., on the Trade Date specified below (the "Transaction"). THE FACSIMILE TRANSMISSION WILL BE THE ONLY WRITTEN COMMUNICATION REGARDING THIS TRANSACTION EXCHANGED BETWEEN US, UNLESS YOU REQUEST THAT WE SIGN HARD COPY VERSIONS OF THIS CONFIRMATION. PLEASE CONTACT THE INDIVIDUAL INDICATED IN THE LAST PARAGRAPH OF THIS LETTER TO RECEIVE SUCH COPIES. PLEASE SIGN AND RETURN THIS CONFIRMATION AT YOUR EARLIEST CONVENIENCE. GIVEN THE IMPORTANCE OF PROMPT AND AC- CURATE TRADE CONFIRMATION, WE RESERVE THE RIGHT TO WITHHOLD ANY PAYMENT DUE TO YOU IF YOU FAIL TO RETURN A SIGNED COPY OF THIS LETTER BY THE FIRST PAYMENT DATE HEREUNDER. AMOUNTS SO WITH- HELD WILL ACCRUE INTEREST BASED ON A DAILY USD-FED FUNDS-H.15 RATE, AND WILL BE PAID TO YOU UPON RECEIPT OF SUCH SIGNED COPY. 1. The terms of the Transaction to which this Confirmation relates are as follows: General Terms: Trade Date: April 18, 1995 Effective Date: April 18, 1995 Option Style: European Option Type: Call Seller: MLIL Buyer: Gotham Shares: Rockefeller Center Proper- ties (RCP) Exchange: NYSE Number of Options: 2,000 Share Entitlement: 100 Share(s) per Option Options Must be Exercised in Integral Multiples of: Inapplicable Strike Price per Share: USD 5.00 Premium per Option: USD 1.66 Total Premium: USD 332,000.00 Premium Payment Date: April 25, 1995, or, if not a Currency Business Day, the next succeeding Currency Business Day. Calculation Agent: MLIL, whose determinations and calculations shall be binding in the absence of manifest error. Exchange Rate: Inapplicable -2- Procedure for Exercise: Exercise Period: Expiration Date Expiration Date: April 19, 1996 or, if not a Seller Business Day, the next succeeding Seller Business Day. Exercise Date for an Option: The Seller Business Day during the Exercise Period on which that Option is or is deemed to be exercised. Valuation: Valuation Time: At the close of trading on the Exchange. Valuation Date: The Exercise Date unless there is a Market Disruption Event (as defined in, and with the consequences de- scribed in, the Master Agreement or Annex ED here- to) on that day. Reference Price: The Exchange Close price of the Shares on the Exchange at the Valuation Time on the Valuation Date. Settlement Terms: Settlement shall be either cash or physical as deter- mined by Gotham in writing to MLIL on or before April 4, 1996. In the event MLIL is not notified, the Set- tlement method shall be cash. Physical Settlement Terms: Physical Settlement: Call Applicable; on the Settle- ment Date, Buyer shall pay to Seller the Settlement Price and Seller shall de- liver to Buyer the Number of Shares to be Delivered. Such payment and such deliv- ery will be made through the -3- Clearance System on a de- livery versus payment basis. Settlement Price: The Strike Price per share multiplied by the Number of Shares to be Delivered. Clearance System: DTC Number of Shares to be Delivered: The number of Shares equal to the number of Options exercised on the relevant Exercise Date multiplied by the Shares Entitlement, rounded down to the nearest whole share. Settlement Disruption Event: An event beyond the control of the parties as a result of which transfers of Shares generally cannot take place across the Clearance System. Failure to Deliver: As provided in Master Agreement or Annex ED. Cash Settlement Terms: Cash Settlement: Applicable; Seller shall pay to Buyer the Cash Settlement Amount, if any, on the Cash Settlement Payment Date, for all Options exercised or deemed exercised. Currency for Payment: USD Cash Settlement Amount: An amount, as calculated by the Calculation Agent in the Currency for Payment, equal to the number of Options exercised on the relevant Exercise Date multiplied by (i) the Strike Price Dif- ferential, and (ii) any Multiplier or Share En- titlement specified above. Strike Price Differential: An amount equal to the greater of (i) the excess, as of the Valuation Time on the Valuation Date, of the -4- Reference Price over the Strike Price and (ii) zero. Cash Settlement Payment Date: Five Currency Business Days (each of which is a Seller Business Day) after the Valuation Date. Adjustment and Extraordinary Events: As provided in Master Agreement or Annex ED. Miscellaneous: Transfer: Neither party may transfer any Option, in whole or in part, without the prior written consent of the non- transferring party; provided that MLIL may assign its rights and obligations hereunder to any subsidiary of Merrill Lynch & Co., Inc., effective upon deliv- ery of a Guarantee of the obligations of such subsid- iary in the form of its Guarantee hereunder. Instructions: Bankers Trust Company New York, New York ABA #021001033 FAO: ML Equity Derivatives A/C: 008-13589 Collateral: Not Applicable This Confirmation supplements, forms a part of, and is subject to, any existing ISDA Master Agreement or ISDA In- terest Rate and Currency Exchange Agreement or Merrill Lynch Equity Derivatives Master Agreement (the "Master Agreement"), between you and us. If we have not yet executed such a Master Agreement (a) certain terms used herein are defined in Annex ED hereto and certain provisions governing this Transaction are also contained in Annex ED, and (b) we agree to execute the MLIL form of ISDA Master Agreement promptly hereafter (provid- ed, that this Confirmation contains the essential terms of this Transaction). THIS CONFIRMATION WILL BE GOVERNED BY AND CON- STRUED IN ACCORDANCE WITH THE LAW OF NEW YORK (WITHOUT REFER- ENCE TO CHOICE OF LAW DOCTRINE). -5- The interests represented hereby have not been reg- istered under the Securities Act of 1933, have been sold in a transaction exempt from registration thereunder, and may not be transferred without the written consent of the Option Seller in a transaction exempt from registration. Unless otherwise stated, Merrill Lynch, Pierce, Fenner & Smith Incorporated acted as agent in this transaction. Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Confirmation enclosed for that purpose and returning it to us by facsimile transmission to Merrill Lynch, Pierce, Fenner & Smith Inc., Attention: Kathryn McAdams (Telecopier No.: 212- 449-6576) (Telephone No.: 212-449-8637). Very truly yours, MERRILL LYNCH INTERNATIONAL LIMITED By: /s/ Peter Cotterin Name: Peter Cotterin Title: Vice President Confirmed as of the date first above written GOTHAM PARTNERS, L.P. By: /s/David P. Berkowitz Name: David P. Berkowitz Title: Pres. of DPB Corp., a General Partner of Section H Partners, L.P., the General Partner of Gotham Partners, L.P. ML Ref. No. 958260 [SSCASH.FRM/053193] -6- EX-99.3 4 EXHIBIT 3 Merrill Lynch, Pierce, Fenner & Smith Inc. World Financial Center New York, New York 10281- 1305 Telephone: 212-449-8637 Fax: 212-449-6576 MERRILL LYNCH Confirmation of OTC Single Share Option Transaction Cash Settlement Transaction Date: April 21, 1995 To: Gotham Partners, L.P. ML Reference No. 958277 Attention: Bill Ackman and David Berkowitz 237 Park Avenue, Ninth Floor New York, New York 10017 Telephone: 212-808-2497 Fax: 212-808-2455 From: Merrill Lynch International Limited Telephone: 212-449-8637 Fax: 212-449-6576 Dear Sirs: The purpose of this letter agreement (this "Confir- mation") is to confirm the terms and conditions of the Trans- action entered into between Gotham Partners, L.P. ("Gotham") and MERRILL LYNCH INTERNATIONAL LIMITED ("MLIL"), through its agent Merrill Lynch, Pierce, Fenner & Smith Inc. with the guarantee of Merrill Lynch & Co., Inc., on the Trade Date specified below (the "Transaction"). THE FACSIMILE TRANSMISSION WILL BE THE ONLY WRITTEN COMMUNICATION REGARDING THIS TRANSACTION EXCHANGED BETWEEN US, UNLESS YOU REQUEST THAT WE SIGN HARD COPY VERSIONS OF THIS CONFIRMATION. PLEASE CONTACT THE INDIVIDUAL INDICATED IN THE LAST PARAGRAPH OF THIS LETTER TO RECEIVE SUCH COPIES. PLEASE SIGN AND RETURN THIS CONFIRMATION AT YOUR EARLIEST CONVENIENCE. GIVEN THE IMPORTANCE OF PROMPT AND AC- CURATE TRADE CONFIRMATION, WE RESERVE THE RIGHT TO WITHHOLD ANY PAYMENT DUE TO YOU IF YOU FAIL TO RETURN A SIGNED COPY OF THIS LETTER BY THE FIRST PAYMENT DATE HEREUNDER. AMOUNTS SO WITH- HELD WILL ACCRUE INTEREST BASED ON A DAILY USD-FED FUNDS-H.15 RATE, AND WILL BE PAID TO YOU UPON RECEIPT OF SUCH SIGNED COPY. 1. The terms of the Transaction to which this Confirmation relates are as follows: General Terms: Trade Date: April 21, 1995 Effective Date: April 21, 1995 Option Style: European Option Type: Call Seller: MLIL Buyer: Gotham Shares: Rockefeller Center Proper- ties (RCP) Exchange: NYSE Number of Options 2,000 Share Entitlement 100.00 Share(s) per Option Options Must be Exercised in Integral Multiples of: Inapplicable Strike Price per Share: USD 5.00 Premium per Option: USD 1.875 Total Premium: USD 375,000.00 Premium Payment Date: April 28, 1995, or, if not a Currency Business Day, the next succeeding Currency Business Day. Calculation Agent: MLIL, whose determinations and calculations shall be binding in the absence of manifest error. Exchange Rate: Inapplicable Procedure for Exercise: -2- Exercise Period: Expiration Date Expiration Date: April 22, 1996 or, if not a Seller Business Day, the next succeeding Seller Business Day. Exercise Date for an Option: The Seller Business Day during the Exercise Period on which that Option is or is deemed to be exercised. Valuation: Valuation Time: At the close of trading on the Exchange. Valuation Date: The Exercise Date unless there is a Market Disruption Event (as defined in, and with the consequences de- scribed in, the Master Agreement or Annex ED here- to) on that day. Reference Price: The Exchange Close price of the Shares on the Exchange at the Valuation Time on the Valuation Date. Settlement Terms: Settlement shall be either cash or physical as deter- mined by Gotham in writing to MLIL on or before April 8, 1996. In the event MLIL is not notified, the Set- tlement method shall be cash. Physical Settlement Terms: Physical Settlement: Call Applicable; on the Settle- ment Date, Buyer shall pay to Seller the Settlement Price and Seller shall de- liver to Buyer the Number of Shares to be Delivered. Such payment and such delivery will be made through the Clearance System on a de- livery versus payment basis. -3- Settlement Price: The Strike Price per share multiplied by the Number of Shares to be Delivered. Clearance System: DTC Number of Shares to be Delivered: The number of Shares equal to the number of Options exercised on the relevant Exercise Date multiplied by the Shares Entitlement, rounded down to the nearest whole share. Settlement Disruption Event: An event beyond the control of the parties as a result of which transfers of Shares generally cannot take place across the Clearance System. Failure to Deliver: As provided in Master Agreement or Annex ED. Cash Settlement Terms: Cash Settlement: Applicable; Seller shall pay to Buyer the Cash Settlement Amount, if any, on the Cash Settlement Payment Date, for all Options exercised or deemed exercised. Currency for Payment: USD Cash Settlement Amount: An amount, as calculated by the Calculation Agent in the Currency for Payment, equal to the number of Options exercised on the relevant Exercise Date multiplied by (i) the Strike Price Dif- ferential, and (ii) any Multiplier or Share En- titlement specified above. Strike Price Differential: An amount equal to the greater of (i) the excess, as of the Valuation Time on the Valuation Date, of the Reference Price over the Strike Price and (ii) zero. -4- Cash Settlement Payment Date: Five Currency Business Days (each of which is a Seller Business Day) after the Valuation Date. Adjustment and Extraordinary Events: As provided in Master Agreement or Annex ED. Miscellaneous: Transfer: Neither party may transfer any Option, in whole or in part, without the prior written consent of the non- transferring party; provided that MLIL may assign its rights and obligations hereunder to any subsidiary of Merrill Lynch & Co., Inc., effective upon deliv- ery of a Guarantee of the obligations of such subsid- iary in the form of its Guarantee hereunder. Instructions: Bankers Trust Company New York, New York ABA #021001033 FAO: ML Equity Derivatives A/C: 008-13589 Collateral: Not Applicable This Confirmation supplements, forms a part of, and is subject to, any existing ISDA Master Agreement or ISDA In- terest Rate and Currency Exchange Agreement or Merrill Lynch Equity Derivatives Master Agreement (the "Master Agreement"), between you and us. If we have not yet executed such a Master Agreement (a) certain terms used herein are defined in Annex ED hereto and certain provisions governing this Transaction are also contained in Annex ED, and (b) we agree to execute the MLIL form of ISDA Master Agreement promptly hereafter (provid- ed, that this Confirmation contains the essential terms of this Transaction). THIS CONFIRMATION WILL BE GOVERNED BY AND CON- STRUED IN ACCORDANCE WITH THE LAW OF NEW YORK (WITHOUT REFER- ENCE TO CHOICE OF LAW DOCTRINE). The interests represented hereby have not been reg- istered under the Securities Act of 1933, have been sold in a transaction exempt from registration thereunder, and may not be -5- transferred without the written consent of the Option Seller in a transaction exempt from registration. Unless otherwise stated, Merrill Lynch, Pierce, Fenner & Smith Incorporated acted as agent in this transaction. Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Confirmation enclosed for that purpose and returning it to us by facsimile transmission to Merrill Lynch, Pierce, Fenner & Smith Inc., Attention: Kathryn McAdams (Telecopier No.: 212- 449-6576) (Telephone No.: 212-449-8637). Very truly yours, MERRILL LYNCH INTERNATIONAL LIMITED By: /s/ Peter Cotterin Name: Peter Cotterin Title: Vice President Confirmed as of the date first above written GOTHAM PARTNERS, L.P. By: /s/David P. Berkowitz Name: David P. Berkowitz Title: Pres. of DPB Corp., a General Partner of Section H Partners, L.P., the General Partner of Gotham Partners, L.P. ML Ref. No. 958277 [SSCASH.FRM/053193] -6- EX-99.4 5 EXHIBIT 4 BT REF: NY-2556 DATE: April 24, 1995 TO: GOTHAM PARTNERS, L.P. 237 Park Avenue 9th Floor New York, NY 10017 ATTENTION: Bill Ackman/David Berkowitz FAX: 212 808-2455 FROM: BANKERS TRUST COMPANY, London Branch FAX 212 250-1467 BT REF: NY-2556 RE: European Call on the Rockefeller Center Properties Common Stock CONFIRMATION We are pleased to confirm the execution of an option transac- tion with you having the following terms and conditions. Option Seller: Bankers Trust Company, London Branch ("BTCO" or "Seller") Option Buyer: Gotham Partners, L.P. ("GOTHAM" or "Buyer") Option Units: 2,500 (1 Option = 100 shares) Option Type: European Call Subject Matter: Rockefeller Center Properties (the "Issuer") Common Stock (the "Stock") as listed on the New York Stock Ex- change (NYSE). (NYSE TICKER SYMBOL:RCP). Settlement: Cash Payment Trade Date: April 19, 1995 Effective Date: April 19, 1995 Expiration Date: April 22, 1996, or, if that date is not an Exchange Business Day, the first following day that is an Ex- change Business Day. Exercise Date: Expiration Date Exercise Procedure: The Seller shall deem this Option to have been automatically exercised on the Expiration Date absent instruc- tions to the contrary. Strike Price: USD 5.00 Valuation Time: At the close of trading on the Ex- change. Valuation Price: The value of the closing quotation for one trading unit of the Stock on the Valuation Date. Valuation Date: The Exercise Date. Premium: In consideration of the Seller entering into this agreement, Buyer agrees to pay the Seller a premium amount of USD 455,000 payable on value date April 21, 1995. The Premium is to be paid to Bankers Trust Company, New York, ABA #021001033 Bankers Trust Company, London Branch, A/C #040 000 16. Settlement Amount: Upon exercise of the Option, the Seller shall pay to the Buyer a Set- tlement Amount in USD (the "Settlement Amount") equal to the product of (1) the excess (if any) of the Valuation Price over the Strike Price and (2) the number of Option Units times 100. The Settlement Amount shall be paid to the Buyer two Banking Days (as herein defined) after the Valuation Date. Calculation Agent: BTCO, or any successor calculation agent appointed by BTCO, whose deter- minations and calculations shall be binding in the absence of manifest error. Market Disruption Events: (a) If the Calculation Agent deter- mines that on any Exercise Date a Market Disruption Event (as herein- after defined) has occurred and is -2- continuing, then such Exercise Date may be postponed until the next Ex- change Business Day on which there is no Market Disruption Event, provided, that, notwithstanding anything in this Option to the contrary, if such Exer- cise Date has not occurred on or prior to the eighth Exchange Business Day following the originally designated Exercise Date, such eighth Exchange Business Day shall be deemed to be such Exercise Date. The Calculation Agent shall use its reasonable efforts to give notice to the Buyer that a Market Disruption Event has occurred. (b) "Market Disruption Event" means the suspension or material limitation of trading in (a) the Stock or in securities generally on the Stock Ex- change or (b) option contracts related to the Stock traded on any exchange. For the purposes of this definition, (1) a limitation on the hours and number of days of trading will not constitute a Market Disruption Event if it results from an announced change in the regular business hours of the relevant exchange and (2) a limitation on trading imposed during the course of a day by reason of movements in price otherwise exceeding levels permitted by the relevant exchange will constitute a Market Disruption Event. Adjustments: The Strike Price and the number of Option Units shall be subject to ad- justment as follows: (a) If prior to any Exercise Date any adjustment is made by the Options Clearing Corporation or its successors ("OCC") in the terms of outstanding OCC-issued options ("OCC Options") on the Stock, an equivalent adjustment shall be made by the Calculation Agent in the terms of this Option. Except as provided below, no adjustment shall be made in the terms of this Option for any event that does not result in an adjustment to the terms of such outstanding OCC Options. Without -3- limiting the generality of the foregoing NO ADJUSTMENT SHALL BE MADE IN THE TERMS OF THIS OPTION FOR ORDI- NARY CASH DIVIDENDS. For indicative purposes, a summary of the terms under which adjustments may be made by the OCC as in effect on the date hereof is set forth below: (i) Whenever there is a stock divi- dend, stock distribution, stock split, reverse stock split, rights offering, distribution, reorganization, recapi- talization, reclassification, extra- ordinary cash dividend or similar event in respect of the Stock, or a merger, consolidation, dissolution or liquidation of the Issuer, the number of option contracts, the unit of trading, the exercise price and the underlying amount of Stock, or any of them, with respect to all outstanding option contracts open for trading in the Stock may be adjusted. (ii) All adjustments are made by the Securities Committee of the OCC. The Securities Committee determines whether to make adjustments to reflect particular events in respect of the Stock, and the nature and extent of any such adjustment, based on its judgment as to what is appropriate for the protection of investors and the public interest, taking into account such factors as fairness to holders and writers of option contracts on the Stock, the maintenance of a fair and orderly market in options on the Stock, consistency of interpretation and practice, efficiency of exercise settlement procedures and the coordi- nation with other clearing agencies of the clearance and settlement of transactions in the Stock. (iii) In the case of a stock divi- dend, stock distribution or stock split whereby one or more whole num- bers of Stock are issued with respect to each outstanding share, each option contract covering that share shall be -4- increased by the same number of addi- tional option contracts as the number of shares issued with respect to each share, the exercise price per share in effect immediately prior to such event shall be proportionately reduced, and the unit of trading shall remain the same. (iv) In the case of a stock dividend, stock distribution or stock split whereby other than a whole number of shares is issued in respect of each outstanding share, the exercise price in effect immediately prior to such event shall be proportionately re- duced, and conversely, in the case of a reverse stock split or combination of shares, the exercise price in effect immediately prior to such event shall be proportionately increased. Whenever the exercise price with re- spect to an option contract has been reduced or increased, the unit of trading shall be proportionately in- creased or reduced, as the case may be. (v) In the case of any distribution made with respect to shares, other than cash dividends and other than distributions for which adjustments are provided in subsections (iii) or (iv) above, if an adjustment is determined by the Securities Committee to be appropriate, (i) the exercise price in effect immediately prior to such event shall be reduced by the value per share of the distributed property, in which event the unit of trading shall not be adjusted, or (ii) the unit of trading in effect imme- diately prior to such event shall be adjusted so as to include the amount of property distributed with respect to the number of shares represented by such unit of trading, in which event the exercise price shall not be ad- justed. (vi) In the case of any event for which adjustment is not provided in any of the foregoing paragraphs, the -5- Securities Committee may make such adjustments it determines to be rea- sonable under the circumstances. (vii) Adjustments shall as a general rule become effective on the "ex-date" established by the principal stock exchange or market on which the Shares are traded. (viii) All adjustments of the exer- cise price of an outstanding option contract shall be rounded to the nearest 1/8 of a dollar, and all ad- justments of the unit of trading shall be rounded down to eliminate any fraction, and if the unit of trading is rounded down to eliminate a frac- tion, the adjusted exercise price shall be further adjusted, to the nearest 1/8 of a dollar, to reflect any diminution in the value of the option contract resulting from the elimination of the fraction. (b) If, prior to any Exercise Date there shall be no outstanding OCC Options on Stock, and an event shall occur for which an adjustment might have been required under the By-laws, Rules and stated policies of OCC applicable to the adjustment of OCC Options, as described above (the "OCC Adjustment Rules"), the Calculation Agent shall determine, at its reason- able discretion, but applying the principles set forth in the OCC Ad- justment Rules then in effect, whether to adjust the terms of this transac- tions, and the nature of any such adjustment. (c) The Calculation Agent shall notify the respective parties of any adjustment pursuant to this clause and the date of its effectiveness. (d) Except for an adjustment under subsection (b) above, the Calculation agent is not obligated to verify whether the prerequisites for an ad- justment pursuant to this clause exist or whether such adjustment has been -6- correctly calculated or whether the date of effectiveness has been cor- rectly fixed. In this connection, the Calculation Agent does not assume any liability of any nature. (e) Upon the consummation of a Merger Event in respect of the Shares, the Calculation Agent shall make such ad- justments to this Transaction as it, in its sole discretion, deems appro- priate. "Merger Event" means, in respect of the Shares, as of the date upon which holders become bound to transfer such shares held by them, any (i) reclas- sification or change of such Shares (other than a consolidation, amalgam- ation or merger in which that issuer of shares is the continuing corpora- tion and which does not result in any such reclassification or change of Shares) or (iii) other takeover offer for such shares that results in a transfer of all such shares (other than the Shares owned or controlled by the offeror) on or before the Expira- tion Date. Performance By Designee: (a) This Confirmation is for the benefit of the parties hereto and may not be assigned, resold or transferred by either party thereto without the prior written consent of the other party and any assignment without such consent shall be void and without ef- fect; provided, however, that BTCO or its successor in business is hereby authorized to transfer its rights and obligations under this Confirmation to any affiliate of BTCO, without the consent of GOTHAM, provided that (1) any such assignment shall be to an affiliate to which substantially all of the assets of BTCO have been transferred; or (2) the obligations of such affiliate are guaranteed by BTCO, Bankers Trust Company or Bankers Trust New York Corporation. Such transfer shall be fully effective to transfer -7- all such rights and obligations upon notice in writing from BTCO to GOTHAM. Banking Day: Any day on which is both (1) a day other than a Saturday, Sunday or any day on which banks in London are au- thorized or required under applicable law to remain closed and (2) an Ex- change Business Day. Exchange Business Day: A day which is a day for trading of securities on the New York Stock Ex- change and the Chicago Board of Trade. Early Termination: In the event that the Seller shall have determined in good faith prior to the Exercise Date that its performance under the Option shall have become unlawful in whole or in part as a result of compliance in good faith by such party with any applicable present or future law, rule, regulation, judgment, order or directive of any governmental, administrative, legisla- tive or judicial authority, then the Seller may terminate the Option upon payment to the Buyer of an amount determined to be the fair market value of this Option on the date of such termination. Documentation: The parties agree that they will exe- cute and deliver a standard Bankers Trust Option Agreement evidencing this option transaction as soon as practi- cable after the Trade Date (and in no event more than 30 days thereafter). Please review this Confirmation carefully and immediately upon receipt so that errors or discrepancies can be promptly iden- tified and rectified. Please confirm that the foregoing correctly sets forth the terms of our Agreement by (1) sending a return fax to such ef- fect for the attention of the BT Equity Administration Group, (Fax no. 212-250-1467 which is responsible for administration of this Option, and (2) signing and returning one of the two executed counterparts of the Option Agreement which will shortly be sent to you. We are very pleased to have executed this transaction with you. -8- Regards, BANKERS TRUST COMPANY, LONDON BRANCH By: /s/ Keith McDonald Name: Keith McDonald Title: Vice President Agreed: GOTHAM PARTNERS, L.P. By: /s/ David P. Berkowitz Name: David P. Berkowitz Title: Pres. of D.P.B. Corp., a G.P. of Section H Partners, the G.P. of Gotham Partners, L.P. -9-