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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13E-3
RULE 13e-3 TRANSACTION STATEMENT
(Under Section 13(e) of the Securities Exchange Act of 1934 and Rule 13e-3
thereunder)
AMERICAN INDUSTRIAL PROPERTIES REIT
(Name of Issuer)
DEVELOPERS DIVERSIFIED REALTY CORPORATION
DDR TRANSITORY SUB INC.
AMERICAN INDUSTRIAL PROPERTIES REIT
(Name of Person(s) Filing Statement)
COMMON SHARES OF BENEFICIAL INTEREST
(Title of Class of Securities)
026791202
(CUSIP Number of Class of Securities)
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SCOTT A. WOLSTEIN CHARLES W. WOLCOTT
CHIEF EXECUTIVE OFFICER CHIEF EXECUTIVE OFFICER
DEVELOPERS DIVERSIFIED REALTY CORPORATION AMERICAN INDUSTRIAL PROPERTIES REIT
3300 ENTERPRISE PARKWAY 6210 NORTH BELTLINE ROAD, SUITE 170
BEACHWOOD, OHIO 44122 DALLAS, TEXAS 75063
(216) 755-5500 (972) 756-6000
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(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of the Person(s) Filing Securities)
With copies to:
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ROBERT A. WEIBLE BRYAN L. GOOLSBY
Baker & Hostetler LLP GINA E. BETTS
3200 National City Center Locke Liddell & Sapp LLP
1900 East 9th Street 2200 Ross Avenue, Suite 2200
Cleveland, Ohio 44114 Dallas, Texas 75201
(216) 621-0200 (214) 740-8000
</TABLE>
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 soliciting materials or information statement
referred to in checking box (a) as preliminary copies: [X]
Check the following box if the filing is a final amendment reporting the
results of the transaction: [ ]
CALCULATION OF FILING FEE
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TRANSACTION VALUATION* AMOUNT OF FILING FEE
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$158,703,956...................................... $31,741
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* For purposes of calculating the filing fee only. The filing fee was
determined by adding (a) the product of (i) the 11,354,801 common shares of
beneficial interest, par value $0.10 per share, of American Industrial
Properties REIT (the "Common Shares") that are proposed to be acquired in the
merger and (ii) the merger consideration of $13.74 per Common Share, plus (b)
$1,350,990 payable to holders of options to purchase Common Shares in
exchange for the cancellation of such options, plus (c) $1,338,000 payable to
holders of dividend equivalent rights ("DERs") in exchange for the
cancellation of such DERs (collectively, the "Total Consideration"). The
payment of the filing fee, calculated in accordance with Regulation 240.0-11
under the Securities Exchange Act of 1934, as amended, equals one-fiftieth of
1% of the Total Consideration.
[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: $31,741
Form or Registration No.: SCHEDULE 14A PRELIMINARY PROXY STATEMENT
Filing Party: AMERICAN INDUSTRIAL PROPERTIES REIT
Date Filed: DECEMBER 1, 2000
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INTRODUCTION
This Rule 13e-3 Transaction Statement on Schedule 13E-3 (this "Schedule
13E-3") is being filed by (a) Developers Diversified Realty Corporation, an Ohio
corporation ("DDR"), (b) DDR Transitory Sub Inc., a Texas corporation and
subsidiary of DDR ("DDR Sub"), and (c) American Industrial Properties REIT, a
real estate investment trust organized under the Texas REIT Act and the issuer
of the equity securities which are the subject of the Rule 13e-3 transaction
("AIP"). This Schedule 13E-3 relates to the Agreement and Plan of Merger, dated
as of November 1, 2000 (the "Merger Agreement"), among DDR, DDR Sub and AIP.
Concurrently with the filing of this Schedule 13E-3, AIP is filing with the
Securities and Exchange Commission a proxy statement (the "Proxy Statement")
under Regulation 14A of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), relating to the special meeting of shareholders of AIP at which
the shareholders of AIP will consider and vote upon, among other things, a
proposal to approve and adopt the Merger Agreement and authorize the
transactions contemplated thereby. A copy of the Proxy Statement is attached
hereto as Exhibit (a)(2) and a copy of the Merger Agreement is attached as
Appendix B to the Proxy Statement. All references in this Schedule 13E-3 to
Items 1001 through 1016 are references to Items contained in Regulation M-A
under the Exchange Act.
The information contained in the Proxy Statement, including all annexes
thereto, is hereby expressly incorporated herein by reference. As of the date
hereof, the Proxy Statement is in preliminary form and is subject to completion
or amendment. Capitalized terms used herein but not defined in this Schedule
13E-3 shall have the meanings given to them in the Proxy Statement.
The information contained in this Schedule 13E-3 and/or the Proxy Statement
concerning (a) AIP was supplied by AIP and neither DDR nor DDR Sub takes
responsibility for the accuracy of such information and (b) DDR and/or DDR Sub
was supplied by DDR and AIP takes no responsibility for the accuracy of such
information.
ITEM 1. SUMMARY TERM SHEET.
Item 1001
The information contained in the sections of the Proxy Statement entitled
"Summary Term Sheet" and "Questions and Answers About the Proposed Transactions"
is incorporated herein by reference.
ITEM 2. SUBJECT COMPANY INFORMATION.
Item 1002
(a) The information contained in the section of the Proxy Statement
entitled "The Companies -- AIP" is incorporated herein by reference.
(b) The information contained in the section of the Proxy Statement
entitled "The Special Meeting -- Record Date and Quorum Requirement" is
incorporated herein by reference.
(c)-(d) The information contained in the section of the Proxy Statement
entitled "Historical Market Information" is incorporated herein by reference.
(e) Not applicable.
(f) The information contained in the sections of the Proxy Statement
entitled "Special Factors -- Transactions and Relationships between AIP and DDR"
and "-- Share Purchases" are incorporated herein by reference.
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ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON.
Item 1003
(a) The information contained in the sections of the Proxy Statement
entitled "The Companies," "Trust Managers and Executive Officers of AIP,"
"Directors and Executive Officers of DDR" and "Directors and Executive Officers
of DDR Sub" is incorporated herein by reference. Under one interpretation of the
rules governing "going private" transactions under Rule 13e-3 of the Exchange
Act, one or both of DDR and DDR Sub may be deemed to be an affiliate of AIP.
(b) The information contained in the section of the Proxy Statement
entitled "The Companies" is incorporated herein by reference.
(c) The information contained in the sections of the Proxy Statement
entitled "Trust Managers and Executive Officers of AIP," "Directors and
Executive Officers of DDR" and "Directors and Executive Officers of DDR Sub" is
incorporated herein by reference.
None of the filing persons nor any of the individuals referred to in the
information incorporated by reference into this Item 3 has been convicted in a
criminal proceeding during the past five years (excluding traffic violations or
similar misdemeanors), nor has any of these persons been a party to any judicial
or administrative proceeding during the past five years that resulted in a
judgment, decree or final order enjoining the person from future violations of,
or prohibiting activities subject to, federal or state securities laws or a
finding of any violation of federal or state securities laws. Each of these
persons is a citizen of the United States of America.
ITEM 4. TERMS OF THE TRANSACTION.
Item 1004
(a)(1) Not applicable.
(a)(2)(i) The information contained in the sections of the Proxy Statement
entitled "Summary Term Sheet," "Questions and Answers About the Proposed
Transactions," "Summary -- Overview of the Transactions" and "The Merger
Agreement" is incorporated herein by reference.
(a)(2)(ii) The information contained in the sections of the Proxy Statement
entitled "Summary -- Overview of the Transactions" and "Special
Factors -- General Description" is incorporated herein by reference.
(a)(2)(iii) The information contained in the sections of the Proxy
Statement entitled "Special Factors -- DDR's Purpose and Reasons for the
Merger," "-- Benefits of the Merger to DDR," "-- Recommendation of the Special
Committee and the Board of Trust Managers; Reasons for the Merger" and
"-- Benefits and Detriments to Non-DDR Shareholders" is incorporated herein by
reference.
(a)(2)(iv) The information contained in the section of the Proxy Statement
entitled "The Special Meeting -- Required Vote" is incorporated herein by
reference.
(a)(2)(v) The information contained in the sections of the Proxy Statement
entitled "The Merger Agreement -- Consequences of the Merger" and "-- Employee
Share Plan" is incorporated herein by reference.
(a)(2)(vi) The information contained in the section of the Proxy Statement
entitled "Special Factors -- Anticipated Accounting Treatment of the Merger" is
incorporated herein by reference.
(a)(2)(vii) The information contained in the section of the Proxy Statement
entitled "Special Factors -- Material Federal Income Tax Consequences" is
incorporated herein by reference.
(c) The information contained in the section of the Proxy Statement
entitled "Special Factors -- Conflicts of Interest" is incorporated herein by
reference.
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(d) The information contained in the section of the Proxy Statement
entitled "Dissenters' Rights" is incorporated herein by reference.
(e) The information contained in the section of the Proxy Statement
entitled "Special Factors -- Provision for Non-DDR Shareholders" is incorporated
herein by reference.
(f) Not applicable.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
Item 1005
(a) The information contained in the section of the Proxy Statement
entitled "Special Factors -- Transactions and Relationships Between AIP and DDR"
is incorporated herein by reference.
(b) The information contained in the section of the Proxy Statement
entitled "Special Factors -- Background of the Merger" is incorporated herein by
reference.
(c) The information contained in the sections of the Proxy Statement
entitled "Special Factors -- Background of the Merger" and "-- Transactions and
Relationships between AIP and DDR" is incorporated herein by reference.
(e) The information contained in the sections of the Proxy Statement
entitled "Summary -- Votes Required and Voting Agreements," "Special
Factors -- Conflicts of Interest," "Special Factors -- Transactions and
Relationships Between AIP and DDR" and "The Merger Agreement" is incorporated
herein by reference.
ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
Item 1006
(a) The information contained in the section of the Proxy Statement
entitled "The Merger Agreement -- Consequences of the Merger" is incorporated
herein by reference.
(b) The information contained in the sections of the Proxy Statement
entitled "Special Factors -- Plans for AIP After the Merger" and "The Merger
Agreement -- Consequences of the Merger" is incorporated herein by reference.
ITEM 7. PURPOSES, ALTERNATIVES, REASONS AND EFFECTS.
Item 1013
(a) The information contained in the sections of the Proxy Statement
entitled "Special Factors -- DDR's Purpose and Reasons for the Merger," and
"-- Recommendation of the Special Committee and the Board of Trust Managers;
Reasons for the Merger" is incorporated herein by reference.
(b) The information contained in the sections of the Proxy Statement
entitled "Special Factors -- Background of the Merger" and "-- DDR's Purpose and
Reasons for the Merger" is incorporated herein by reference.
(c) The information contained in the sections of the Proxy Statement
entitled "Special Factors -- DDR's Purpose and Reasons for the Merger,"
"-- Benefits of the Merger to DDR," "-- Recommendation of the Special Committee
and the Board of Trust Managers; Reasons for the Merger" and "-- Benefits and
Detriments to Non-DDR Shareholders" is incorporated herein by reference.
(d) The information contained in the sections of the Proxy Statement
entitled "Special Factors -- DDR's Purpose and Reasons for the Merger,"
"-- Benefits of the Merger to DDR," "-- Benefits and Detriments to Non-DDR
Shareholders," "-- Conflicts of Interest," "-- Material Federal Income Tax
Consequences," "-- Plans for AIP After the Merger," "-- Anticipated Accounting
Treatment of the Merger," "The Merger Agreement -- Consequences of the Merger"
and "Dissenters' Rights" is incorporated herein by reference.
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ITEM 8. FAIRNESS OF THE TRANSACTION.
Item 1014
(a)-(b) The information contained in the sections of the Proxy Statement
entitled "Special Factors -- Background of the Merger," "-- Position of DDR
Regarding Fairness of the Merger" and "-- Fairness of the Merger; Opinion of
Financial Advisor" is incorporated herein by reference.
(c) The information contained in the section of the Proxy Statement
entitled "The Special Meeting -- Required Vote" is incorporated herein by
reference.
(d) The information contained in the sections of the Proxy Statement
entitled "Special Factors -- Background of the Merger" and "-- Provision for
Non-DDR Shareholders" is incorporated herein by reference.
(e) The information contained in the sections of the Proxy Statement
entitled "Special Factors -- Background of the Merger," and "-- Recommendation
of the Special Committee and the Board of Trust Managers; Reasons for the
Merger" is incorporated herein by reference.
(f) Not applicable.
ITEM 9. REPORTS, OPINIONS, APPRAISALS AND NEGOTIATIONS.
Item 1015
(a)-(c) The information contained in the sections of the Proxy Statement
entitled "Special Factors -- Background of the Merger," "-- Fairness of the
Merger; Opinion of the Financial Advisor" and Appendix A to the Proxy Statement
is incorporated herein by reference.
ITEM 10. SOURCE AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION.
Item 1007
(a), (b) and (d) The information contained in the section of the Proxy
Statement entitled "Special Factors -- Source and Amount of Funds; Financing for
the Merger" is incorporated herein by reference.
(c) The information contained in the section of the Proxy Statement
entitled "Fees and Expenses" is incorporated herein by reference.
ITEM 11. INTEREST IN SECURITIES OF THE SUBJECT COMPANY
Item 1008
(a) The information contained in the section of the Proxy Statement
entitled "Principal Shareholders and Share Ownership of Management of AIP" is
incorporated herein by reference.
(b) The information contained in the section of the Proxy Statement
entitled "Special Factors -- Share Purchases" is incorporated herein by
reference.
ITEM 12. THE SOLICITATION OR RECOMMENDATION.
Item 1012
(d) The information contained in the sections of the Proxy Statement
entitled "Summary -- Votes Required and Voting Agreements" and "The Special
Meeting -- Required Vote" is incorporated herein by reference.
(e) The information contained in the sections of the Proxy Statement
entitled "Special Factors -- Position of DDR Regarding Fairness of the Merger"
"-- Recommendation of the Special Committee and the Board of Trust Managers;
Reasons for the Merger" is incorporated herein by reference.
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ITEM 13. FINANCIAL STATEMENTS.
Item 1010
(a) The information contained in the section of the Proxy Statement
entitled "Selected Historical Consolidated Financial Data," AIP's Consolidated
Financial Statements on pages F-1 through F-25 of AIP's Annual Report on Form
10-K for the fiscal year ended December 31, 1999 filed with the SEC on March 29,
2000 and pages 3 through 15 of AIP's Quarterly Report on Form 10-Q for the
quarter ended September 30, 2000 filed with the SEC on November 14, 2000 is
incorporated herein by reference.
(b) Not applicable.
ITEM 14. PERSONS/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED.
Item 1009
(a)-(b) The information contained in the section of the Proxy Statement
entitled "The Special Meeting -- Proxy Solicitation" is incorporated herein by
reference.
ITEM 15. ADDITIONAL INFORMATION.
Item 1011
(b) The information contained in the section of the Proxy Statement
entitled "Special Factors -- Litigation Relating to the Merger" is incorporated
herein by reference.
ITEM 16. EXHIBITS.
Item 1016
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(a)(2) -- Preliminary Proxy Statement filed with the Securities and
Exchange Commission on December 1, 2000.
(b)(1) -- Credit Agreement, dated as of January 28, 1999, by and
among American Industrial Properties REIT, Bank One
Texas, N.A., and the Lenders named therein.
(b)(2) -- First Amendment to Credit Agreement, dated as of April
12, 1999 among American Industrial Properties REIT, Bank
One Texas, N.A., and the Lenders named therein.
(c) -- Opinion of Chase Securities Inc., attached as Appendix A
to the Preliminary Proxy Statement.*
(d)(1) -- Agreement and Plan of Merger, dated as of November 1,
2000, by and among American Industrial Properties REIT,
Developers Diversified Realty Corporation and DDR
Transitory Sub Inc., attached as Appendix B to the Proxy
Statement.*
(d)(2) -- Voting Agreement dated November 1, 2000, by and among
American Industrial Properties REIT, Developers
Diversified Realty Corporation, LaSalle Investment
Management Group, Inc. and LaSalle Investment Management
(Securities), L.P. (filed as Exhibit 99.1 to the Form 8-K
filed by American Industrial Properties REIT with the SEC
on November 8, 2000 and incorporated herein by
reference).
(d)(3) -- Voting Agreement dated November 1, 2000, by and among
American Industrial Properties REIT, Developers
Diversified Realty Corporation, Morgan Stanley Dean
Witter Investment Management Inc., on behalf of its
clients with respect to shares of AIP over which it (or
its designee) exercises investment discretion, and MS
Real Estate Special Situations Inc. (filed as Exhibit
99.2 to the Form 8-K filed by American Industrial
Properties REIT with the SEC on November 8, 2000 and
incorporated herein by reference).
</TABLE>
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(d)(4) -- Voting Agreement dated November 1, 2000, by and among American Industrial Properties
REIT, Developers Diversified Realty Corporation and USAA Real Estate Company (filed as
Exhibit 99.3 to the Form 8-K filed by American Industrial Properties REIT with the SEC
on November 8, 2000 and incorporated herein by reference).
(d)(5) -- Voting Agreement dated November 1, 2000, by and among American Industrial Properties
REIT, Value Enhancement Fund IV, L.P. and LaSalle Investment Management (Securities),
L.P. (filed as Exhibit 99.4 to the Form 8-K filed by American Industrial Properties
REIT with the SEC on November 8, 2000 and incorporated herein by reference).
(d)(6) -- Voting Agreement dated November 1, 2000, by and among American Industrial Properties
REIT, Value Enhancement Fund IV, L.P., Morgan Stanley Dean Witter Investment Management
Inc., on behalf of its clients with respect to shares of AIP over which it (or its
designee) exercises investment discretion, and MS Real Estate Special Situations Inc.
(filed as Exhibit 99.5 to the Form 8-K filed by American Industrial Properties REIT
with the SEC on November 8, 2000 and incorporated herein by reference).
(d)(7) -- Voting Agreement dated November 1, 2000, by and among American Industrial Properties
REIT, Value Enhancement Fund IV, L.P. and USAA Real Estate Company (filed as Exhibit
99.6 to the Form 8-K filed by American Industrial Properties REIT with the SEC on
November 8, 2000 and incorporated herein by reference).
(f) -- Sections 25.10, 25.20 and 25.30 of the Texas REIT Act, attached as Appendix D to the
Preliminary Proxy Statement.*
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* Incorporated by reference to the Preliminary Proxy Statement filed by American
Industrial Properties REIT with the SEC on December 1, 2000.
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SIGNATURE
After due inquiry and to the best of their knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
complete and correct.
DEVELOPERS DIVERSIFIED REALTY
CORPORATION
By: /s/ JAMES A. SCHOFF
-----------------------------------
Name: James A. Schoff
Title: Vice Chairman and Chief
Investment Officer
DDR TRANSITORY SUB INC.
By: /s/ JAMES A. SCHOFF
-----------------------------------
Name: James A. Schoff
Title: Vice President
AMERICAN INDUSTRIAL PROPERTIES REIT
By: /s/ CHARLES W. WOLCOTT
-----------------------------------
Name: Charles W. Wolcott
Title: President and Chief Executive
Officer
Dated: December 1, 2000
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INDEX TO EXHIBITS
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EXHIBIT
NO. DESCRIPTION
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(a)(2) -- Preliminary Proxy Statement filed with the Securities and
Exchange Commission on December 1, 2000.
(b)(1) -- Credit Agreement, dated as of January 28, 1999, by and
among American Industrial Properties REIT, Bank One
Texas, N.A., and the Lenders named therein.
(b)(2) -- First Amendment to Credit Agreement, dated as of April
12, 1999 among American Industrial Properties REIT, Bank
One Texas, N.A., and the Lenders named therein.
(c) -- Opinion of Chase Securities Inc., attached as Appendix A
to the Preliminary Proxy Statement.*
(d)(1) -- Agreement and Plan of Merger, dated as of November 1,
2000, by and among American Industrial Properties REIT,
Developers Diversified Realty Corporation and DDR
Transitory Sub Inc., attached as Appendix B to the Proxy
Statement.*
(d)(2) -- Voting Agreement dated November 1, 2000, by and among
American Industrial Properties REIT, Developers
Diversified Realty Corporation, LaSalle Investment
Management Group, Inc. and LaSalle Investment Management
(Securities), L.P. (filed as Exhibit 99.1 to the Form 8-K
filed by American Industrial Properties REIT with the SEC
on November 8, 2000 and incorporated herein by
reference).
(d)(3) -- Voting Agreement dated November 1, 2000, by and among
American Industrial Properties REIT, Developers
Diversified Realty Corporation, Morgan Stanley Dean
Witter Investment Management Inc., on behalf of its
clients with respect to shares of AIP over which it (or
its designee) exercises investment discretion, and MS
Real Estate Special Situations Inc. (filed as Exhibit
99.2 to the Form 8-K filed by American Industrial
Properties REIT with the SEC on November 8, 2000 and
incorporated herein by reference).
(d)(4) -- Voting Agreement dated November 1, 2000, by and among
American Industrial Properties REIT, Developers
Diversified Realty Corporation and USAA Real Estate
Company (filed as Exhibit 99.3 to the Form 8-K filed by
American Industrial Properties REIT with the SEC on
November 8, 2000 and incorporated herein by reference).
(d)(5) -- Voting Agreement dated November 1, 2000, by and among
American Industrial Properties REIT, Value Enhancement
Fund IV, L.P. and LaSalle Investment Management
(Securities), L.P. (filed as Exhibit 99.4 to the Form 8-K
filed by American Industrial Properties REIT with the SEC
on November 8, 2000 and incorporated herein by
reference).
(d)(6) -- Voting Agreement dated November 1, 2000, by and among
American Industrial Properties REIT, Value Enhancement
Fund IV, L.P., Morgan Stanley Dean Witter Investment
Management Inc., on behalf of its clients with respect to
shares of AIP over which it (or its designee) exercises
investment discretion, and MS Real Estate Special
Situations Inc. (filed as Exhibit 99.5 to the Form 8-K
filed by American Industrial Properties REIT with the SEC
on November 8, 2000 and incorporated herein by
reference).
(d)(7) -- Voting Agreement dated November 1, 2000, by and among
American Industrial Properties REIT, Value Enhancement
Fund IV, L.P. and USAA Real Estate Company (filed as
Exhibit 99.6 to the Form 8-K filed by American Industrial
Properties REIT with the SEC on November 8, 2000 and
incorporated herein by reference).
(f) -- Sections 25.10, 25.20 and 25.30 of the Texas REIT Act,
attached as Appendix D to the Preliminary Proxy
Statement.*
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* Incorporated by reference to the Preliminary Proxy Statement filed by American
Industrial Properties REIT with the SEC on December 1, 2000.
