UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 9)
Atlantic Realty Trust
-------------------------------------------------------------------------------
(Name of Issuer)
Common Shares of Beneficial Interest, par value $0.01 per share
-------------------------------------------------------------------------------
(Title of Class of Securities)
048798-10-2
(CUSIP Number)
Milton Cooper
Kimco Realty Corporation
3333 New Hyde Park Road
New Hyde Park, NY 11042-0020
(516) 869-9000
with a copy to:
Raymond Y. Lin, Esq.
Erica H. Steinberger, Esq.
Latham & Watkins LLP
885 Third Avenue
New York, New York 10022-4802
(212) 906-1200
-------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
January 31, 2003
(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 that is the subject of
this Schedule 13D, and is filing this schedule because of Rule
13d-1(e), 13d-1(f) or 13d-1(g), check the following box |_|.
(Continued on following pages)
(Page 1 of 21 pages)
------------------------ 13D ----------------------
CUSIP No. 048798-10-2 Page 2 of 21
-----------
---------- --------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (Entities only)
Kimco Realty Corporation
---------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
---------- --------------------------------------------------------------------
3 SEC USE ONLY
---------- --------------------------------------------------------------------
4 SOURCE OF FUNDS
WC
---------- --------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
---------- --------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Maryland
---------- --------------------------------------------------------------------
NUMBER OF SOLE VOTING POWER
7
SHARES 355,498
-------- --------------------------------------------------
BENEFICIALLY SHARED VOTING POWER
8
OWNED BY 712,539
-------- --------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 355,498
-------- --------------------------------------------------
PERSON SHARED DISPOSITIVE POWER
10
WITH 712,539
---------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,068,037
---------- --------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
---------- --------------------------------------------------------------------
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.0%
---------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
---------- --------------------------------------------------------------------
------------------------ 13D ----------------------
CUSIP No. 048798-10-2 Page 3 of 21
-----------
---------- --------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (Entities only)
Kimco Realty Services, Inc.
---------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
---------- --------------------------------------------------------------------
3 SEC USE ONLY
---------- --------------------------------------------------------------------
4 SOURCE OF FUNDS
WC, AF
---------- --------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
---------- --------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
---------- --------------------------------------------------------------------
NUMBER OF SOLE VOTING POWER
7
SHARES None
-------- --------------------------------------------------
BENEFICIALLY SHARED VOTING POWER
8
OWNED BY 712,539
-------- --------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING None
-------- --------------------------------------------------
PERSON SHARED DISPOSITIVE POWER
10
WITH 712,539
---------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
712,539
---------- --------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|_|
---------- --------------------------------------------------------------------
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.0%
---------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
---------- --------------------------------------------------------------------
------------------------ 13D ----------------------
CUSIP No. 048798-10-2 Page 4 of 21
-----------
---------- --------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (Entities only)
Milton Cooper
---------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
---------- --------------------------------------------------------------------
3 SEC USE ONLY
---------- --------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
---------- --------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
---------- --------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
United States
---------- --------------------------------------------------------------------
NUMBER OF SOLE VOTING POWER
7
SHARES 29,824
-------- --------------------------------------------------
BENEFICIALLY SHARED VOTING POWER
8
OWNED BY 3,127
-------- --------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 29,824
-------- --------------------------------------------------
PERSON SHARED DISPOSITIVE POWER
10
WITH 3,127
---------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
32,951
---------- --------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|X|
---------- --------------------------------------------------------------------
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
.9%
---------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
---------- --------------------------------------------------------------------
Page 5 of 21 pages
This Amendment No. 9 amends and supplements the Schedule 13D filed on
May 24, 1996, and amended on July 3, 1996, by Kimco Realty Corporation, a
Maryland corporation ("Kimco"), and Milton Cooper and further amended on May 15,
1997, June 10, 1997, April 30, 1998, September 20, 1999, August 10, 2000, August
23, 2000 by Kimco, Milton Cooper and Kimco Realty Services, Inc., a Delaware
corporation ("Services"), and August 9, 2001 (as amended, the "Schedule 13D"),
relating to the common shares of beneficial interest, par value $.01 per share
(the "Shares"), of Atlantic Realty Trust, a Maryland corporation (the
"Company"). Unless otherwise indicated, all capitalized terms used herein shall
have the meanings given to them in the Schedule 13D, and unless amended or
supplemented hereby, all information previously filed remains in effect.
Item 2. Identity and Background.
Information with respect to the executive officers and directors of
Kimco and Services, other than Mr. Cooper, required by Instruction C of Schedule
13D, is set forth on Schedule I hereto and incorporated herein by reference.
Item 4. Purpose of Transaction.
The Company's charter contains a provision limiting the number of
Shares that may be owned, actually or constructively pursuant to the attribution
rules set forth in Section 544 of the Internal Revenue Code of 1986, as amended,
as modified by Section 856(h), or in Section 318(a) as modified by Section
856(d)(5) (constructive ownership pursuant to such attribution rules,
"Constructive Ownership"), by any person to 9.8% of the total number of Shares
issued and outstanding. Kimco, Mr. Cooper and the Company entered into a
Standstill Agreement, dated as of April 30, 1998, pursuant to which the Company
granted Kimco and Mr. Cooper an exception from such charter provision with
respect to Shares Constructively Owned by either Kimco or Mr. Cooper in excess
of 9.8% of the issued and outstanding Shares (the "Excess Shares"), and Kimco
and Mr. Cooper agreed, unless specifically requested by the Company's board of
trustees, not to, among other things, (i) acquire or agree or publicly offer or
propose to acquire ownership or control of (A) any securities of the Company in
excess of 25% of the issued and outstanding Shares or (B) any subsidiary or
assets or properties of the Company or any of its subsidiaries or divisions,
including by way of tender offer, business combination, merger or other
consolidation (provided that nothing shall prohibit Kimco and Mr. Cooper from
proposing to acquire assets which the Company has announced an intention to sell
or for which it is soliciting bids) or (ii) make any "solicitation" of "proxies"
(as such terms are used in the proxy rules of the Securities and Exchange
Commission), and further agreed to vote any Excess Shares in accordance with the
recommendation of the Company's board of trustees, (iii) form or join a "group"
(as defined in Section 13(d)(3) of the Exchange Act) in connection with any of
the provisions of Section 1 of the Standstill Agreement, other than a group
consisting solely of two or more of Kimco, Services and Mr. Cooper and any
Affiliated Persons, and (iv) disclose any intention, plan or arrangement
inconsistent with the provisions of Section 1.
On August 10, 2000, the Company entered into an amended and restated
standstill agreement with the Reporting Persons which increased the number of
Company securities that may be acquired by the Reporting Persons and their
Affiliated Persons to 30% of the issued and outstanding Shares.
On January 31, 2003, the Company entered into a second amended and
restated standstill agreement with the Reporting Persons (the "Second Amended
and Restated Standstill Agreement"), filed as Exhibit 5 hereto, to further
increase the number of Company securities that may be acquired by the Reporting
Persons and their Affiliated Persons to 33% of the issued and outstanding
Shares. All other terms and conditions of original Standstill Agreement, as
previously amended by the Amended and Restated Standstill Agreement, remain in
effect as previously disclosed.
Page 6 of 21 pages
Item 5. Interest in Securities of the Issuer.
(a) Kimco beneficially owns 1,068,037 Shares (which includes all of the
Shares owned by Services, all of whose outstanding voting common stock is owned
by Kimco), or approximately 30.0% of the outstanding Shares, and Services
beneficially owns an aggregate of 712,539 Shares, or approximately 20.0% of the
outstanding Shares (based on 3,561,553 Shares reported by the Company to be
outstanding as of November 12, 2002, in the Company's Quarterly Report on Form
10-Q for the Period Ended September 30, 2002).
Mr. Cooper beneficially owns 32,951 Shares, or approximately .9% of the
outstanding Shares, of which 2,012 Shares are held through IRA accounts, and
3,127 Shares are held by a trust for Adam Kimmel, the son of Martin S. Kimmel
(the "Kimmel Trust"), for which Mr. Cooper serves as a trustee. Such holdings do
not include an aggregate of 6,050 Shares held by Mr. Cooper's adult children or
their spouses, an aggregate of 2,979 Shares held by nine trusts for the benefit
of Mr. Cooper's grandchildren, for which certain of such adult children serve as
trustees, or 3,750 Shares held by CLS General Partnership Corporation (a
Delaware corporation which serves as the general partner of Power Test Investors
Limited Partnership, a New York limited partnership), of which Mr. Cooper is a
stockholder and serves as secretary and a director, as to all of which Shares
Mr. Cooper disclaims beneficial ownership.
Except as set forth herein, each of the Reporting Persons disclaims
beneficial ownership of any Shares beneficially owned by any other person
described in this Item 5(a) or on Schedule I to the Schedule 13D.
(b) Each Reporting Person has sole power to vote, or direct the vote,
and to dispose or direct the disposition of, all Shares reported as beneficially
owned by it or him, except that, (i) Kimco, by reason of its ownership of all of
Services' voting common stock, shares the power to direct the vote or the
disposition of all Shares reported as beneficially owned by Services, and (ii)
with respect to the 3,127 Shares held by the Kimmel Trust, Mr. Cooper shares
such power with the other trustee.
(c) No transactions in Shares were effected by or for the account of
Services since December 6, 2002.
(d) No person other than the Reporting Persons is known to the
Reporting Persons to have the right to receive or the power to direct the
receipt of dividends from, or the proceeds from the sale of, the Shares
beneficially owned by the Reporting Persons, except that, with respect to the
Shares owned by the Kimmel Trust, such Trust and the trustee thereof who shares
such power with Mr. Cooper.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
See Item 4 for a description of the Second Amended and Restated
Standstill Agreement entered into by the Reporting Persons and the Company with
respect to Shares of the Company held by the Reporting Persons on January 31,
2003.
Page 7 of 21 pages
Item 7. Material to be Filed as Exhibits.
Exhibit 5. Second Amended and Restated Standstill Agreement
Page 8 of 21 pages
Signature
---------
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.
KIMCO REALTY CORPORATION
By: /s/ Milton Cooper
------------------------------------
Name: Milton Cooper
Title: Chairman and Chief Executive
Officer
KIMCO REALTY SERVICES, INC.
By: /s/ Milton Cooper
------------------------------------
Name: Milton Cooper
Title: President
/s/ Milton Cooper
----------------------------------------
Milton Cooper
Dated: February 3, 2003
Page 9 of 21 pages
EXHIBIT INDEX
Exhibit Page Number
1. Joint Filing Agreement *
2. Joint Filing Agreement *
3. Standstill Agreement *
4. Amended Standstill Agreement *
5. Second Amended and Restated Standstill 12
Agreement
-------------
* Previously filed
Page 10 of 21 pages
SCHEDULE I
Set forth below is the name, principal business, business address and
beneficial ownership of Shares of each executive officer and director of Kimco
and Services, other than Milton Cooper, for whom such information is contained
in Items 2 and 5 of the Schedule 13D. Unless otherwise indicated, the current
business address of each person is c/o Kimco, 3333 New Hyde Park Road, Suite
100, New Hyde Park, NY 11041-0020. Each such person is a citizen of the United
States of America.
Executive Officers & Directors of Kimco and Services.
Shares Beneficially
Name Principal Occupation or Employment Owned(1)
---- ---------------------------------- -------------------
Martin S. Kimmel Director of Kimco and Services, Chairman 10,487(2)
(Emeritus) of the Board of Directors of Kimco
and Services
Michael J. Flynn Vice Chairman of the Board of Directors of Kimco -0-
and Services, President and Chief Operating
Officer of Kimco and Services
Richard G. Dooley Director of Kimco; Consultant to Massachusetts -0-
c/o Massachusetts Mutual Life Mutual Life Insurance Company
Insurance Company
1295 State Street
Springfield, Mass. 01111
Joe Grills Director of Kimco; Chief Investment Officer for -0-
11479 Twin Mountains Road the IBM Retirement Funds, 1986-1993
Clifton, VI 22733
Frank Lourenso Director of Kimco; Executive Vice President of -0-
c/o The Chase Manhattan Bank J.P. Morgan
270 Park Avenue
New York, NY 10017
Thomas A. Caputo Executive Vice President of Kimco and Services -0-
Glenn G. Cohen Vice President and Treasurer of Kimco and -0-
Services
Ray Edwards Vice President of Kimco and Services -0-
Jerald Friedman Executive Vice President of Kimco and Services -0-
David Henry Vice Chairman of the Board of Directors of Kimco -0-
and Chief Investment Officer of Kimco and
Services
Bruce M. Kauderer Vice President, Legal and Secretary of Kimco and -0-
Services
Page 11 of 21 pages
Shares Beneficially
Name Principal Occupation or Employment Owned(1)
---- ---------------------------------- -------------------
Michael V. Pappagallo Chief Financial Officer of Kimco and Services -0-
David Samber Vice President of Kimco and Services -0-
----------------
1 All of such Shares were received in the Distribution and no consideration was
paid therefor.
2 Does not include 14,135 Shares beneficially owned by Mr. Kimmel's wife or
3,127 by a trust for the benefit of Mr. Kimmel's son, for which Mr. Cooper
serves as trustee, as to which Mr. Kimmel disclaims beneficial interest.
Such Shares were received in the Distribution and no consideration was paid
therefor.