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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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AMENDMENT NO. 6 TO
SCHEDULE 13E-3
(RULE 13E-100)
RULE 13E-3 TRANSACTION STATEMENT UNDER SECTION 13(E) OF THE SECURITIES
EXCHANGE ACT OF 1934
KIMSOUTH REALTY INC.
(FORMERLY KNOWN AS KONOVER PROPERTY TRUST, INC.)
(Name of the Issuer)
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KIMSOUTH REALTY INC. LFSRI II ALTERNATIVE PARTNERSHIP L.P.
KPT PROPERTIES, L.P. LFSRI II-CADIM ALTERNATIVE
PROMETHEUS SOUTHEAST RETAIL TRUST PARTNERSHIP L.P. L.L.C.
PROMETHEUS SOUTHEAST RETAIL LLC LAZARD FRERES REAL ESTATE INVESTORS
LFSRI II SPV REIT CORP. L.L.C.
LF STRATEGIC REALTY INVESTORS II L.P. LAZARD FRERES & CO. LLC
(Name of Person(s) Filing Statement)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
301953 10 5
(CUSIP Number of Class of Securities)
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BRUCE M. KAUDERER, MARJORIE L. REIFENBERG
VICE PRESIDENT (LEGAL), GENERAL COUNSEL PRINCIPAL, GENERAL COUNSEL
AND SECRETARY AND SECRETARY
3333 NEW HYDE PARK ROAD, SUITE 100 LAZARD FRERES REAL ESTATE
NEW HYDE PARK, NY 11042-0020 INVESTORS L.L.C.
(516) 869-9000 30 ROCKEFELLER PLAZA, 50TH FLOOR
NEW YORK, NEW YORK 10020
(212) 632-6000
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications on Behalf of the Person(s) Filing Statement)
WITH COPIES TO:
STEVEN SCHEINFELD, ESQ. JEFFREY D. MARELL, ESQ.
FRIED, FRANK, HARRIS, SHRIVER PAUL, WEISS, RIFKIND, WHARTON
& JACOBSON & GARRISON
ONE NEW YORK PLAZA 1285 AVENUE OF THE AMERICAS
NEW YORK, NY 10004-1980 NEW YORK, NY 10019-6064
(212) 859-8000 (212) 373-3000
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THE TRANSACTION, PASSED UPON THE MERITS
OR FAIRNESS OF THE TRANSACTION, OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE
INFORMATION CONTAINED IN THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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This statement is filed in connection with (check the appropriate box):
a. [X] The filing of solicitation materials or an information
statement subject to Regulation 14A, Regulation 14C, or Rule 13e-3(c)
under the Securities Exchange Act of 1934.
b. [_] The filing of a registration statement under the Securities
Act of 1933.
c. [_] A tender offer.
d. [_] None of the above.
Check the following box if the soliciting materials or information statement
referred to in checking box (a) are preliminary copies: [_]
Check the following box if the filing is a final amendment reporting the results
of the transaction: [X]
CALCULATION OF FILING FEE
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TRANSACTION
VALUATION* AMOUNT OF FILING FEE
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$32,806,136 $7,560
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* Estimated for purposes of calculating the amount of the filing fee
only. Proposed maximum aggregate value of transaction: $32,806,136 (calculated
on the basis of (1) 15,299,092 outstanding shares of common stock that will
receive the merger consideration multiplied by the transaction price of $2.10,
plus (2) the product of (A) 448,403 shares which are subject to options to
purchase shares with an exercise price of less than $2.10 per share and (B) the
difference between $2.10 per share and the exercise price of such options).
[X] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
Amount Previously Paid: $7,560 Filing Party: Konover Property
Form or Registration No.: Schedule 14A Trust, Inc.
Date Filed: July 29, 2002
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This Amendment No. 6 to Rule 13E-3 Transaction Statement on Schedule
13E-3 (this "Schedule 13E-3") amends the Rule 13E-3 Transaction Statement filed
on July 29, 2002, as amended by Amendment No. 1 thereto filed on September 23,
2002, and further amended by Amendment No. 2 thereto and Amendment No. 3
thereto, both filed on October 15, 2002, Amendment No. 4 thereto, filed on
October 23, 2002, and Amendment No. 5 thereto, filed on October 23, 2002, and is
being filed jointly by Kimsouth Realty Inc. (formerly known as Konover Property
Trust, Inc.), a Maryland corporation and the issuer of the equity securities
which are the subject of the Rule 13e-3 transaction (the "Company"), KPT
Properties, L.P., a Delaware limited partnership, Prometheus Southeast Retail
Trust, a Maryland real estate investment trust ("Prometheus"), Prometheus
Southeast Retail LLC, a Delaware limited liability company ("PSLLC"), LFSRI II
SPV REIT Corp., a Delaware corporation ("SPV"), LF Strategic Realty Investors II
L.P., a Delaware limited partnership ("LFSRI II"), LFSRI II Alternative
Partnership L.P., a Delaware limited partnership ("Alternative"), LFSRI II-CADIM
Alternative Partnership L.P., a Delaware limited partnership ("CADIM"), Lazard
Freres Real Estate Investors L.L.C., a New York limited liability company
("LFREI"), and Lazard Freres & Co. LLC, a New York
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limited liability company ("LFC," and together with Prometheus, PSLLC, SPV,
LFSRI II, Alternative, CADIM and LFREI, the "Prometheus Parties"), in connection
with the Agreement and Plan of Merger, dated June 23, 2002, by and between PSCO
Acquisition Corp. (the "Buyer"), a Maryland corporation, and the Company, as
amended by Amendment No. 1 to the Agreement and Plan of Merger, dated as of July
26, 2002, by and between the Buyer and the Company (collectively referred to as
the "Merger Agreement").
The purpose of this final amendment to Schedule 13E-3 is to report that
the Merger Agreement, the merger of the Buyer with and into the Company pursuant
to the Merger Agreement (the "Merger") and certain charter amendments
contemplated by the Merger Agreement were approved by holders of more than
two-thirds of the votes entitled to be cast at a special meeting of stockholders
of the Company held on November 22, 2002 and that the Merger became effective on
November 22, 2002 pursuant to Articles of Merger filed with the State Department
of Assessments and Taxation of the State of Maryland. At the effective time of
the Merger (the "Effective Time"), the Buyer was merged with and into the
Company with the Company as the surviving corporation. The Buyer, which was a
party to the Merger Agreement, is not a party to this final amendment because as
a result of the Merger, it no longer exists. In addition, KPT Acquisition L.P.,
which was a filing party to previous amendments to Schedule 13E-3, is not a
party to this final amendment because as a result of the merger of KPT
Acquisition, L.P. into KPT Properties, L.P., which merger was consummated prior
to the Merger, KPT Acquisition, L.P. no longer exists.
At the Effective Time, each share of the Company's common stock, par
value $0.01 per share (the "Company Common Stock"), issued and outstanding
immediately prior to the Effective Time was converted into the right to receive
a cash payment of $2.10, without interest, except that (1) each share of Company
Common Stock issued and outstanding immediately prior to the Effective Time
owned by any subsidiary of the Company and (2) each share of Company Common
Stock contributed to the Buyer by Prometheus immediately prior to the
consummation of the Merger was canceled and retired without any payment
therefor. At the Effective Time of the Merger, Company stock options, purchase
rights and repurchase rights issued under any Company stock-based compensation
plans with an exercise price of less than $2.10 per share were converted into
the right to receive a cash payment equal to the amount by which the per share
exercise price of such stock options, purchase rights or repurchase rights was
less than $2.10 multiplied by the number of shares of Common Stock subject to
such options, purchase rights or repurchase rights. Following the consummation
of the Merger, the two former common stockholders of the Buyer, Prometheus and
Kimkon Inc. (a subsidiary of Kimco Realty Corporation), own 100% of the
Company's outstanding common stock.
On November 25, the Company filed a press release announcing the
completion of the Merger.
On November 25, the Company filed a Form 15 with the Securities and
Exchange Commission, pursuant to Rules 12g-4 and 12h-3 promulgated under the
Securities Exchange Act of 1934, as amended, to provide notice of termination of
registration of the Company's common stock, and to immediately suspend all
reporting requirements under Sections 13(a) and 15(d) of the Securities Exchange
Act, as amended. Further, prior to the opening of business on November 25, 2002,
the Company's common stock was delisted from the New York Stock Exchange
pursuant to a request delivered by the Company to the New York Stock Exchange.
As a result of the Merger, the Company changed its name from "Konover Property
Trust, Inc." to "Kimsouth Realty Inc."
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The terms and conditions of the Merger and Merger Agreement are
described in the Company's definitive proxy statement under Regulation 14A of
the Securities Exchange Act of 1934, as amended (the "proxy statement") that was
filed with the Securities and Exchange Commission on October 23, 2002.
ITEM 1. SUMMARY TERM SHEET.
The information set forth under the section entitled "Summary Term
Sheet" in the proxy statement is incorporated herein by reference.
ITEM 2. SUBJECT COMPANY INFORMATION.
(a) Name and Address. The information set forth under the sections
entitled "Summary - Parties Involved in the Merger" and "The Parties Involved in
the Merger - Konover" in the proxy statement is incorporated herein by
reference.
(b) Securities. As of the date of the special meeting, there were
31,892,519 shares of Common Stock issued and outstanding and no other shares of
stock issued and outstanding. The information set forth under the section
entitled "The Special Meeting - Record Date and Voting Power" in the proxy
statement is incorporated herein by reference.
(c) Trading Market and Price. The information set forth under the
sections entitled "Selected Financial and Other Information - Comparative Market
and Per Share Data," "Information Concerning Konover - Market for Konover Common
Stock" and "Information Concerning Konover - Market for Konover Series A
Convertible Preferred Stock" in the proxy statement is incorporated herein by
reference. There is no established trading market for the Company's preferred
stock.
(d) Dividends. The information set forth under the sections
entitled "Summary Term Sheet," "Questions and Answers About the Merger Proposal
and the Charter Proposal," "Summary - Merger Description," "Selected Financial
and Other Information - Comparative Market and Per Share Data," "Information
Concerning Konover - Market for Konover Common Stock," "Information Concerning
Konover - Market for Konover Series A Convertible Preferred Stock" and "The
Merger and Related Agreements - Conduct of Konover's Business Before the Merger"
in the proxy statement is incorporated herein by reference.
(e) Prior Public Offerings. Not applicable.
(f) Prior Stock Purchases. The information set forth under the
sections entitled "Information Concerning Konover - Common Stock Purchase
Information" and "Information Concerning Konover - Preferred Stock Purchase
Information" in the proxy statement is incorporated herein by reference.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON
(a) Name and Address. The Company is the subject company. The
other filing persons are affiliates. The information set forth under the
sections entitled "Summary - Parties Involved in the Merger," "The Parties
Involved in the Merger," "Appendix F - Information Relating to the Directors and
Executive Officers of the Prometheus Parties," "Appendix G - Information
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Relating to Kimco, Kimco Realty Services, Kimkon, and the Directors and
Executive Officers of Kimco (for the purposes of complying with General
Instruction C to Schedule 13E-3 only)," "Appendix H - Information Relating to
the Directors and Executive Officers of PSCO Acquisition Corp." and "Appendix I
- Information Relating to the Directors and Executive Officers of Konover
Property Trust, Inc." to the proxy statement is incorporated herein by
reference.
(b) Business and Background of Entities. The information set forth
under the sections entitled "Summary - Parties Involved in the Merger," "The
Parties Involved in the Merger" and "Appendix G - Information Relating to Kimco,
Kimco Realty Services, Kimkon, and the Directors and Executive Officers of Kimco
(for the purposes of complying with General Instruction C to Schedule 13E-3
only)" to the proxy statement is incorporated herein by reference.
(c) Business and Background of Natural Persons. The information
set forth under the sections entitled "The Parties Involved in the Merger,"
"Appendix F - Information Relating to the Directors and Executive Officers of
the Prometheus Parties," "Appendix G - Information Relating to Kimco, Kimco
Realty Services, Kimkon, and the Directors and Executive Officers of Kimco (for
the purposes of complying with General Instruction C to Schedule 13E-3 only),"
"Appendix H - Information Relating to the Directors and Executive Officers of
PSCO Acquisition Corp." and "Appendix I - Information Relating to the Directors
and Executive Officers of Konover Property Trust, Inc." to the proxy statement
is incorporated herein by reference.
ITEM 4. TERMS OF THE TRANSACTION.
(a)(1) Tender Offers. Not applicable.
(a)(2)(i) Transaction Description. The information set forth under the
sections entitled "Summary Term Sheet," "Questions and Answers About the Merger
Proposal and the Charter Proposal," "Summary," "Special Factors" and "The Merger
and Related Agreements" in the proxy statement is incorporated herein by
reference.
(a)(2)(ii) Consideration. The information set forth under the sections
entitled "Summary Term Sheet," "Questions and Answers About the Merger Proposal
and the Charter Proposal," "Summary," "Special Factors" and "The Merger and
Related Agreements - Conversion of Stock and Options" in the proxy statement is
incorporated herein by reference.
(a)(2)(iii) Reasons for Transaction. The information set forth under
the sections entitled "Questions and Answers About the Merger Proposal and the
Charter Proposal," "Summary," "Special Factors - Background of the Merger,"
"Special Factors - Reasons for the Merger; Factors Considered by the Special
Committee and Board of Directors," "Special Factors - PSCO's and the Prometheus
Parties' Position as to the Fairness of the Merger" and "Special Factors -
Purpose of the Merger" in the proxy statement is incorporated herein by
reference.
(a)(2)(iv) Vote Required for Approval. The information set forth under
the sections entitled "Summary Term Sheet," "Questions and Answers About the
Merger Proposal and the Charter Proposal," "Summary," "The Special Meeting -
Record Date and Voting Power," "The Special Meeting - Quorum and Vote Required,"
"Special Factors - Vote Required to Approve the Merger Proposal and the Charter
Proposal" and "Proposal Regarding Charter Amendments" in the proxy statement is
incorporated herein by reference.
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(a)(2)(v) Differences in the Rights of Security Holders. The
information set forth under the sections entitled "Summary Term Sheet,"
"Questions and Answers About the Merger Proposal and the Charter Proposal,"
"Summary," "Special Factors - Effects of the Merger," "The Merger and Related
Agreements - The Merger," "The Merger and Related Agreements - Conversion of
Stock and Options" and "Proposal Regarding Charter Amendments" in the proxy
statement is incorporated herein by reference.
(a)(2)(vi) Accounting Treatment. The information set forth under the
sections entitled "Summary Term Sheet," "Questions and Answers About the Merger
Proposal and the Charter Proposal," "Summary" and "Special Factors - Expected
Accounting Treatment of the Merger" in the proxy statement is incorporated
herein by reference.
(a)(2)(vii) Income Tax Consequences. The information set forth under
the sections entitled "Summary Term Sheet," "Questions and Answers About the
Merger Proposal and the Charter Proposal," "Summary" and "Special Factors -
Material Federal Income Tax Considerations" in the proxy statement is
incorporated herein by reference.
(c) Different Terms. The information set forth under the sections
entitled "Summary Term Sheet," "Questions and Answers About the Merger Proposal
and the Charter Proposal," "Summary," "Special Factors - Effects of the Merger,"
"The Merger and Related Agreements - The Merger Structure," "The Merger and
Related Agreements - Conversion of Stock and Options" and "Proposal Regarding
Charter Amendments" in the proxy statement is incorporated herein by reference.
(d) Appraisal Rights. The information set forth under the sections
entitled "Summary Term Sheet," "Questions and Answers About the Merger Proposal
and the Charter Proposal," "Summary" and "The Merger and Related Agreements -
Conversion of Stock and Options - Appraisal Rights" in the proxy statement is
incorporated herein by reference.
(e) Provisions for Unaffiliated Security Holders. The information
set forth under the section entitled "Where You Can Find More Information" in
the proxy statement is incorporated herein by reference.
(f) Eligibility for Listing or Trading. The information set forth
under the section entitled "The Merger and Related Agreements - Conversion of
Stock and Options - Konover Series A Convertible Preferred Stock" in the proxy
statement is incorporated herein by reference.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
(a) Transactions. Not applicable.
(b), (c) Significant Corporate Events; Negotiations or Contracts. The
information set forth under the sections entitled "Summary Term Sheet,"
"Questions and Answers About the Merger Proposal and the Charter Proposal,"
"Summary" and "Special Factors - Background of the Merger" in the proxy
statement is incorporated herein by reference.
(e) Agreements Involving the Subject Company's Securities. The
information set forth under the sections entitled "The Merger and Related
Agreements - Co-Investment Agreement," "The Merger and Related Agreements -
Voting Agreement," "The Merger and Related Agreements - Supplemental Voting and
Tender Agreement," "The Merger and Related
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Agreements - Additional Agreements - Stockholders Agreement Waiver," "The Merger
and Related Agreements - Other Agreements," "Special Factors - Interests of
Directors and Officers in the Merger - Interests of Prometheus Designated
Directors," "Special Factors - Background of the Merger" and "The Parties
Involved in the Merger" in the proxy statement is incorporated herein by
reference.
ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
(b) Use of Securities Acquired. The information set forth under
the sections entitled "Summary Term Sheet," "Questions and Answers About the
Merger Proposal and the Charter Proposal," "Summary," and "The Merger and
Related Agreements - Conversion of Stock and Options" in the proxy statement is
incorporated herein by reference.
(c)(1) through (8) Plans. The information set forth under the sections
entitled "Summary Term Sheet," "Questions and Answers About the Merger Proposal
and the Charter Proposal," "Summary," "Special Factors - Effects of the Merger,"
"Special Factors - Future Plans" and "The Merger and Related Agreements" in the
proxy statement is incorporated herein by reference.
ITEM 7. PURPOSES, ALTERNATIVES, REASONS AND EFFECTS.
(a) through (c) Purposes, Alternatives and Reasons. The information set
forth under the sections entitled "Summary Term Sheet," "Questions and Answers
About the Merger Proposal and the Charter Proposal," "Summary," "Special Factors
- Background of the Merger," "Special Factors - Reasons for the Merger; Factors
Considered by the Special Committee and Board of Directors," "Special Factors -
PSCO's and the Prometheus Parties' Position as to the Fairness of the Merger,"
"Special Factors - Purpose of the Merger" and "The Merger and Related Agreements
- The Merger Structure" in the proxy statement is incorporated herein by
reference.
(d) Effects. The information set forth under the sections entitled
"Summary Term Sheet," "Questions and Answers About the Merger Proposal and the
Charter Proposal," "Summary," "Special Factors - Background of the Merger,"
"Special Factors - Reasons for the Merger; Factors Considered by the Special
Committee and Board of Directors," "Special Factors - PSCO's and the Prometheus
Parties' Position as to the Fairness of the Merger," "Special Factors - Effects
of the Merger," "Special Factors - Future Plans," "Special Factors - Material
Federal Income Tax Considerations," "Special Factors - Estimated Fees and
Expenses of the Merger," "The Merger and Related Agreements - The Merger," "The
Merger and Related Agreements - Conversion of Stock and Options" and "The Merger
and Related Agreements - Additional Agreements - Delisting and Termination of
Registration" in the proxy statement is incorporated herein by reference.
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ITEM 8. FAIRNESS OF THE TRANSACTION.
(a), (b) Fairness; Factors Considered in Determining Fairness. The
information set forth under the sections entitled "Summary Term Sheet,"
"Questions and Answers About the Merger Proposal and the Charter Proposal,"
"Summary," "Special Factors - Reasons for the Merger; Factors Considered by the
Special Committee and Board of Directors," "Special Factors - Opinion of the
Special Committee's Financial Advisor," "Special Factors - PSCO's and the
Prometheus Parties' Position as to the Fairness of the Merger" and "Special
Factors - Purpose of the Merger" in the proxy statement is incorporated herein
by reference.
(c) Approval of Security Holders. The information set forth under
the sections entitled "Summary Term Sheet," "Questions and Answers About the
Merger Proposal and the Charter Proposal," "Summary," "The Special Meeting -
Quorum and Vote Required," "Special Factors - Vote Required to Approve the
Merger Proposal and the Charter Proposal," "Special Factors - Reasons for the
Merger; Factors Considered by the Special Committee and Board of Directors,"
"Special Factors - PSCO's and the Prometheus Parties' Position as to the
Fairness of the Merger" and "Proposal Regarding Charter Amendments" in the proxy
statement is incorporated herein by reference.
(d) Unaffiliated Representative. The information set forth under
the sections entitled "Summary Term Sheet," "Questions and Answers About the
Merger Proposal and the Charter Proposal," "Summary," "Special Factors -
Background of the Merger," "Special Factors - Reasons for the Merger; Factors
Considered by the Special Committee and Board of Directors," "Special Factors -
Opinion of the Special Committee's Financial Advisor" and "Special Factors -
PSCO's and the Prometheus Parties' Position as to the Fairness of the Merger" in
the proxy statement is incorporated herein by reference.
(e) Approval of Directors. The information set forth under the
sections entitled "Summary Term Sheet," "Questions and Answers About the Merger
Proposal and the Charter Proposal," "Summary" and "Special Factors - Reasons for
the Merger; Factors Considered by the Special Committee and Board of Directors"
in the proxy statement is incorporated herein by reference.
(f) Other Offers. The information set forth under the section
entitled "Special Factors - Background of the Merger" in the proxy statement is
incorporated herein by reference.
ITEM 9. REPORTS, OPINIONS, APPRAISALS AND NEGOTIATIONS.
(a) - (c) Report, Opinion or Appraisal; Preparer and Summary of the
Report, Opinion or Appraisal; Availability of Documents. The information set
forth under the sections entitled "Questions and Answers About the Merger
Proposal and the Charter Proposal," "Summary," "Special Factors - Background of
the Merger," "Special Factors - Reasons for the Merger; Factors Considered by
the Special Committee and Board of Directors" and "Special Factors - Opinion of
the Special Committee's Financial Advisor" in the proxy statement is
incorporated herein by reference. The full text of the written opinion of Credit
Suisse First Boston Corporation, dated June 23, 2002, is attached to the proxy
statement as Appendix E and incorporated herein by reference.
ITEM 10. SOURCE AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION.
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(a) Source of Funds. The information set forth under the sections
entitled "Summary - Financing, Tax, and Accounting Matters" and "Special Factors
- Financing for the Merger" in the proxy statement is incorporated herein by
reference.
(b) Conditions. Not applicable.
(c) Expenses. The information set forth under the sections
entitled "The Special Meeting - Solicitation of Proxies and Expenses," "Special
Factors - Estimated Fees and Expenses of the Merger" and "The Merger and Related
Agreements - Termination of the Merger Agreement" in the proxy statement is
incorporated herein by reference.
(d) Borrowed Funds. Not applicable.
ITEM 11. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) Securities Ownership. The information set forth under the
sections entitled "Summary Term Sheet," "Special Factors - Interests of
Directors and Officers in the Merger - Share Ownership" and "Information
Concerning Konover - Security Ownership of Certain Beneficial Owners and Konover
Management" in the proxy statement is incorporated herein by reference.
(b) Securities Transactions. The information set forth under the
section entitled "Information Concerning Konover - Common Stock Purchase
Information" in the proxy statement is incorporated herein by reference.
ITEM 12. THE SOLICITATION OR RECOMMENDATION.
(d) Intent to Tender or Vote in a Going-Private Transaction. The
information set forth under the sections entitled "Summary Term Sheet,"
"Questions and Answers About the Merger Proposal and the Charter Proposal,"
"Summary," "The Special Meeting - Quorum and Vote Required," "Special Factors -
Interests of Directors and Officers in the Merger," "Special Factors - Vote
Required to Approve the Merger Proposal and the Charter Proposal" and "The
Merger and Related Agreements - Voting Agreement" in the proxy statement is
incorporated herein by reference.
(e) Recommendation of Others. The information set forth under the
sections entitled "Summary Term Sheet," "Questions and Answers About the Merger
Proposal and the Charter Proposal," "Summary," "The Special Meeting - Purpose of
the Special Meeting," "Special Factors - Reasons for the Merger; Factors
Considered by the Special Committee and Board of Directors" and "Special Factors
- PSCO's and the Prometheus Parties' Position as to the Fairness of the Merger"
in the proxy statement is incorporated herein by reference.
ITEM 13. FINANCIAL STATEMENTS.
(a) Financial Information. The information set forth under the
sections entitled "Where You Can Find More Information" and "Selected Financial
and Other Information" in the proxy statement is incorporated herein by
reference, and the information set forth in the consolidated financial
statements of the Company included in the Company's most recent Annual Report on
Form 10-K attached as Appendix J to the proxy statement and the Company's most
recent Quarterly Report on Form 10-Q attached as Appendix L to the proxy
statement is incorporated herein by reference.
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(b) PRO FORMA Information. The PRO FORMA information set forth
under the section entitled "Selected Financial and Other Information" in the
proxy statement is incorporated herein by reference.
ITEM 14. PERSONS/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED.
(a) and (b) Solicitations or Recommendations; Employees and Corporate
Assets. The information set forth under the sections entitled "Summary,"
"Questions and Answers About the Merger Proposal and the Charter Proposal,"
"Special Factors - Background of the Merger," "Special Factors - Reasons for the
Merger; Factors Considered by the Special Committee and Board of Directors" and
"Special Factors - Opinion of the Special Committee's Financial Advisor" in the
proxy statement is incorporated herein by reference.
ITEM 15. ADDITIONAL INFORMATION.
(b) Other Material Information. The information set forth under
the sections entitled "Special Factors - Litigation Challenging the Merger" and
"Special Factors - Events Relating to the Former Holders of Series A Convertible
Preferred Stock" in the proxy statement is incorporated herein by reference.
ITEM 16. EXHIBITS.
(a) Definitive proxy statement on Schedule 14A filed with the
Securities and Exchange Commission on October 23, 2002 (incorporated herein by
reference to the proxy statement (Commission No. 01-11998)).
(b) Not applicable.
(c)(1) Opinion of Credit Suisse First Boston Corporation, dated June
23, 2002 (incorporated herein by reference to Appendix E to the proxy
statement).
(c)(2) Presentation by Credit Suisse First Boston Corporation dated
June 23, 2002 (previously filed with Schedule 13E-3, filed July 29, 2002
(Commission No. 5-45054)).
(c)(3) Presentation by Credit Suisse First Boston Corporation, dated
February 7, 2002 (previously filed with Amendment No. 2 to Schedule 13E-3, filed
October 15, 2002 (Commission No. 5-45054)).
(c)(4) Presentation by Credit Suisse First Boston Corporation, dated
February 4, 2002 (previously filed with Amendment No. 2 to Schedule 13E-3, filed
October 15, 2002 (Commission No. 5-45054)).
(c)(5) Presentation by Credit Suisse First Boston Corporation, dated
January 16, 2002 (previously filed with Amendment No. 2 to Schedule 13E-3, filed
October 15, 2002 (Commission No. 5-45054)).
(c)(6) Presentation by Credit Suisse First Boston Corporation, dated
November 20, 2001 (previously filed with Amendment No. 3 to Schedule 13E-3,
filed October 15, 2002 (Commission No. 5-45054)).
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(c)(7) Presentation by Credit Suisse First Boston Corporation, dated
November 12, 2001 (previously filed with Amendment No. 3 to Schedule 13E-3,
filed October 15, 2002 (Commission No. 5-45054)).
(c)(8) Presentation by Credit Suisse First Boston Corporation, dated
August 30, 2001 (previously filed with Amendment No. 3 to Schedule 13E-3, filed
October 15, 2002 (Commission No. 5-45054)).
(c)(9) Presentation by Credit Suisse First Boston Corporation, dated
August 22, 2001 (previously filed with Amendment No. 3 to Schedule 13E-3, filed
October 15, 2002 (Commission No. 5-45054)).
(c)(10) Presentation by Credit Suisse First Boston Corporation, dated
July 25, 2001 (previously filed with Amendment No. 3 to Schedule 13E-3, filed
October 15, 2002 (Commission No. 5-45054)).
(c)(11) Presentation by Credit Suisse First Boston Corporation, dated
February 26, 2001 (previously filed with Amendment No. 3 to Schedule 13E-3,
filed October 15, 2002 (Commission No. 5-45054)).
(d)(1) Agreement and Plan of Merger, dated as of June 23, 2002, by
and between PSCO Acquisition Corp. and Konover Property Trust, Inc.
(incorporated herein by reference to Appendix A1 of the proxy statement).
(d)(2) Amendment No. 1 to the Agreement and Plan of Merger, dated as
of July 26, 2002, by and between PSCO Acquisition Corp. and Konover Property
Trust, Inc. (incorporated herein by reference to Appendix A2 of the proxy
statement).
(d)(3) Voting Agreement, dated as of June 23, 2002, by and between
Prometheus Southeast Retail Trust, Konover Property Trust, Inc., and Kimkon Inc.
(incorporated herein by reference to Appendix B of the proxy statement).
(d)(4) Supplemental Voting and Tender Agreement, dated as of June 23,
2002, by and between Prometheus Southeast Retail Trust and Konover Property
Trust, Inc. (incorporated herein by reference to Appendix C of the proxy
statement).
(d)(5) Co-Investment Agreement, dated as of June 23, 2002, by and
among Prometheus Southeast Retail Trust, Kimkon Inc., PSCO Acquisition Corp., LF
Strategic Realty Investors II L.P., LFSRI II - CADIM Alternative Partnership
L.P., LFSRI II Alternative Partnership L.P., and Kimco Realty Corporation
(incorporated herein by reference to Appendix D1 of the proxy statement).
(d)(6) Amendment No. 1 to the Co-Investment Agreement, dated as of
July 26, 2002, by and among Prometheus Southeast Retail Trust, Kimkon Inc., PSCO
Acquisition Corp., LF Strategic Realty Investors II L.P., LFSRI II - CADIM
Alternative Partnership L.P., LFSRI II Alternative Partnership L.P., and Kimco
Realty Corporation (incorporated herein by reference to Appendix D2 of the proxy
statement).
(d)(7) Amended and Restated Stock Purchase Agreement, dated March 23,
1998, between Konover Property Trust, Inc. and Prometheus Southeast Retail LLC.
(incorporated
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herein by reference to the Company's Current Report on Form 8-K dated March 23,
1998, as amended on June 3, 1998).
(d)(8) Stockholders Agreement, dated as of February 24, 1998, by and
between Konover Property Trust, Inc. and Prometheus Southeast Retail LLC.
(incorporated herein by reference to the Company's Current Report on Form 8-K
dated March 23, 1998, as amended on June 3, 1998).
(d)(9) Registration Rights Agreement, dated as of February 24, 1998,
by and between Konover Property Trust, Inc. and Prometheus Southeast Retail LLC.
(incorporated herein by reference to the Company's Current Report on Form 8-K
dated March 23, 1998, as amended on June 3, 1998).
(d)(10) Contingent Value Right Agreement, dated as of February 24,
1998, by and between Konover Property Trust, Inc. and Prometheus Southeast
Retail Trust (as assignee of Prometheus Southeast Retail LLC) (incorporated
herein by reference to the Company's Current Report on Form 8-K dated March 23,
1998, as amended on June 3, 1998).
(f) Not applicable.
(g) Not applicable.
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING INFORMATION
This Schedule 13E-3 includes and incorporates by reference
forward-looking statements which are based on the Company's and/or, where
applicable, the Prometheus Parties' current estimates and assumptions and, as
such, involve uncertainty and risk. Forward-looking statements include the
information concerning possible or assumed future results of operations and also
include those preceded or followed by words such as "anticipates," "believes,"
"thinks," "could," "estimates," "expects," "intends," "may," "should," "plans,"
"targets" and/or similar expressions. Forward-looking statements made in any
document incorporated by reference into this Schedule 13E-3 or otherwise made
within this Schedule 13E-3 in relation to the merger are not protected under the
safe harbors of the Private Securities Litigation Reform Act of 1995.
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SIGNATURE
After due inquiry and to the best of our knowledge and belief, we
certify that the information set forth in this statement is true, complete and
correct.
Dated as of November 25, 2002
KIMSOUTH REALTY INC. (f/k/a Konover Property
Trust Inc.)
By: /s/ Mark S. Ticotin
---------------------------------------
Name: Mark S. Ticotin
Title: Director and Chairman
KPT PROPERTIES, L.P.
By: KIMSOUTH REALTY INC. (f/k/a Konover
Property Trust Inc.), as general partner
By: /s/ Mark S. Ticotin
----------------------------------
Name: Mark S. Ticotin
Title: Director and Chairman
PROMETHEUS SOUTHEAST RETAIL TRUST
By: /s/ Matthew J. Lustig
---------------------------------------
Name: Matthew J. Lustig
Title: President
PROMETHEUS SOUTHEAST RETAIL LLC
By: LFSRI II SPV REIT Corp.
as managing member
By: /s/ Matthew J. Lustig
----------------------------------
Name: Matthew J. Lustig
Title: President
LFSRI II SPV REIT CORP.
By: /s/ Matthew J. Lustig
---------------------------------------
Name: Matthew J. Lustig
Title: President
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LF STRATEGIC REALTY INVESTORS II L.P.
By: Lazard Freres Real Estate Investors
L.L.C. as general partner
By: /s/ Matthew J. Lustig
----------------------------------
Name: Matthew J. Lustig
Title: Managing Principal
LFSRI II ALTERNATIVE PARTNERSHIP L.P.
By: Lazard Freres Real Estate Investors
L.L.C. as general partner
By: /s/ Matthew J. Lustig
----------------------------------
Name: Matthew J. Lustig
Title: Managing Principal
LFSRI II-CADIM ALTERNATIVE PARTNERSHIP L.P.
By: Lazard Freres Real Estate Investors
L.L.C. as general partner
By: /s/ Matthew J. Lustig
----------------------------------
Name: Matthew J. Lustig
Title: Managing Principal
LAZARD FRERES REAL ESTATE INVESTORS L.L.C.
By: /s/ Matthew J. Lustig
---------------------------------------
Name: Matthew J. Lustig
Title: Managing Principal
LAZARD FRERES & CO. LLC
By: /s/ Scott D. Hoffman
---------------------------------------
Name: Scott D. Hoffman
Title: Managing Director
- 14 -
Exhibit Index
Exhibit
Number Description
(a) Definitive proxy statement on Schedule 14A filed with
the Securities and Exchange Commission on October 23,
2002 (incorporated herein by reference to the proxy
statement (Commission No. 01-11998)).
(b) Not applicable.
(c)(1) Opinion of Credit Suisse First Boston Corporation,
dated June 23, 2002 (incorporated herein by reference
to Appendix E to the proxy statement).
(c)(2) Presentation by Credit Suisse First Boston Corporation,
dated June 23, 2002 (previously filed with Schedule
13E-3, filed July 29, 2002 (Commission No. 5-45054)).
(c)(3) Presentation by Credit Suisse First Boston Corporation,
dated February 7, 2002 (previously filed with Amendment
No. 2 to Schedule 13E-3, filed October 15, 2002
(Commission No. 5-45054)).
(c)(4) Presentation by Credit Suisse First Boston Corporation,
dated February 4, 2002 (previously filed with Amendment
No. 2 to Schedule 13E-3, filed October 15, 2002
(Commission No. 5-45054)).
(c)(5) Presentation by Credit Suisse First Boston Corporation,
dated January 16, 2002 (previously filed with Amendment
No. 2 to Schedule 13E-3, filed October 15, 2002
(Commission No. 5-45054)).
(c)(6) Presentation by Credit Suisse First Boston Corporation,
dated November 20, 2001 (previously filed with
Amendment No. 3 to Schedule 13E-3, filed October 15,
2002 (Commission No. 5-45054)).
(c)(7) Presentation by Credit Suisse First Boston Corporation,
dated November 12, 2001 (previously filed with
Amendment No. 3 to Schedule 13E-3, filed October 15,
2002 (Commission No. 5-45054)).
(c)(8) Presentation by Credit Suisse First Boston Corporation,
dated August 30, 2001 (previously filed with Amendment
No. 3 to Schedule 13E-3, filed October 15, 2002
(Commission No. 5-45054)).
(c)(9) Presentation by Credit Suisse First Boston Corporation,
dated August 22, 2001 (previously filed with Amendment
No. 3 to Schedule 13E-3, filed October 15, 2002
(Commission No. 5-45054)).
(c)(10) Presentation by Credit Suisse First Boston Corporation,
dated July 25, 2001 (previously filed with Amendment
No. 3 to Schedule 13E-3, filed October 15, 2002
(Commission No. 5-45054)).
- 15 -
(c)(11) Presentation by Credit Suisse First Boston Corporation,
dated February 26, 2001 (previously filed with
Amendment No. 3 to Schedule 13E-3, filed October 15,
2002 (Commission No. 5-45054)).
(d)(1) Agreement and Plan of Merger, dated as of June 23,
2002, by and between PSCO Acquisition Corp. and Konover
Property Trust, Inc. (incorporated herein by reference
to Appendix A1 of the proxy statement).
(d)(2) Amendment No. 1 to the Agreement and Plan of Merger,
dated as of July 26, 2002, by and between PSCO
Acquisition Corp. and Konover Property Trust, Inc.
(incorporated herein by reference to Appendix A2 of the
proxy statement).
(d)(3) Voting Agreement, dated as of June 23, 2002, by and
between Prometheus Southeast Retail Trust, Konover
Property Trust, Inc., and Kimkon Inc. (incorporated
herein by reference to Appendix B of the proxy
statement).
(d)(4) Supplemental Voting and Tender Agreement, dated as of
June 23, 2002, by and between Prometheus Southeast
Retail Trust and Konover Property Trust, Inc.
(incorporated herein by reference to Appendix C of the
proxy statement).
(d)(5) Co-Investment Agreement, dated as of June 23, 2002, by
and among Prometheus Southeast Retail Trust, Kimkon
Inc., PSCO Acquisition Corp., LF Strategic Realty
Investors II L.P., LFSRI II - CADIM Alternative
Partnership L.P., LFSRI II Alternative Partnership
L.P., and Kimco Realty Corporation (incorporated herein
by reference to Appendix D1 of the proxy statement).
(d)(6) Amendment No. 1 to the Co-Investment Agreement, dated
as of July 26, 2002, by and among Prometheus Southeast
Retail Trust, Kimkon Inc., PSCO Acquisition Corp., LF
Strategic Realty Investors II L.P., LFSRI II - CADIM
Alternative Partnership L.P., LFSRI II Alternative
Partnership L.P., and Kimco Realty Corporation
(incorporated herein by reference to Appendix D2 of the
proxy statement).
(d)(7) Amended and Restated Stock Purchase Agreement, dated
March 23, 1998, between Konover Property Trust, Inc.
and Prometheus Southeast Retail LLC. (incorporated
herein by reference to the Company's Current Report on
Form 8-K dated March 23, 1998, as amended on June 3,
1998).
(d)(8) Stockholders Agreement, dated as of February 24, 1998,
by and between Konover Property Trust, Inc. and
Prometheus Southeast Retail LLC. (incorporated herein
by reference to the Company's Current Report on Form
8-K dated March 23, 1998, as amended on June 3, 1998).
(d)(9) Registration Rights Agreement, dated as of February 24,
1998, by and between Konover Property Trust, Inc. and
Prometheus Southeast Retail LLC. (incorporated herein
by reference to the Company's Current Report on Form
8-K dated March 23, 1998, as amended on June 3, 1998).
- 16 -
(d)(10) Contingent Value Right Agreement, dated as of February
24, 1998, by and between Konover Property Trust, Inc.
and Prometheus Southeast Retail Trust (as assignee of
Prometheus Southeast Retail LLC) (incorporated herein
by reference to the Company's Current Report on Form
8-K dated March 23, 1998, as amended on June 3, 1998).
(f) Not applicable.
(g) Not applicable.
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