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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9
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SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO SECTION
14(D)(4)
OF THE SECURITIES EXCHANGE ACT OF 1934
CENTURY PENSION INCOME FUND XXIV,
A CALIFORNIA LIMITED PARTNERSHIP
(Name of Subject Company)
CENTURY PENSION INCOME FUND XXIV,
A CALIFORNIA LIMITED PARTNERSHIP
(Name of Person(s) Filing Statement)
UNITS OF LIMITED PARTNERSHIP INTEREST
(Title of Class of Securities)
N/A
(Cusip Number of Class of Securities)
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WILLIAM H. JARRARD, JR.
PRESIDENT
FOX CAPITAL MANAGEMENT CORPORATION
ONE INSIGNIA FINANCIAL PLAZA
GREENVILLE, SOUTH CAROLINA 29602
(864) 239-2747
(Name, Address and Telephone Number of Person
Authorized to Receive Notice and Communications on Behalf of
the person(s) filing statement)
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ITEM 1. SECURITY AND SUBJECT COMPANY.
The name of the subject company is Century Pension Income Fund XXIV,
a California limited partnership (the "Partnership"), and the address of the
principal executive offices of the Partnership is One Insignia Financial Plaza,
Greenville, South Carolina 29602. The title of the class of equity securities
to which this statement relates is the units of limited partnership interest
("Units") of the Partnership.
ITEM 2. TENDER OFFER OF THE BIDDER.
This statement relates to an offer by Cooper River Properties,
L.L.C., a Delaware limited liability company (the "Purchaser"), to purchase up
to 33,000 of the outstanding Units at a purchase price of $85 per Unit, net to
the seller in cash, without interest, upon the terms and subject to the
conditions set forth in an Offer to Purchase dated September 29, 1998 (the
"Offer to Purchase") and related Assignment of Partnership Interest (which
collectively constitute the "Offer"). A Tender Offer Statement on Schedule
14D-1 with respect to the Offer has been filed by the Purchaser, Insignia
Properties, L.P., a Delaware limited partnership ("IPLP"), Insignia Properties
Trust, a Maryland real estate investment trust ("IPT") and Insignia Financial
Group, Inc., a Delaware corporation ("Insignia") (collectively, the "Bidders").
The address of the Purchaser's principal executive offices is One
Insignia Financial Plaza, Greenville, South Carolina 29602.
ITEM 3. IDENTITY AND BACKGROUND.
(a) The name and business address of the Partnership, which is the
person filing this statement, are set forth in Item 1 above.
(b)(1) Fox Partners VI, a California general partnership, is the
general partner of the Partnership (the "General Partner"), and its general
partners are Fox Capital Management Corporation, a California corporation which
is the managing general partner of the General Partner ("FCMC"), and Fox Realty
Investors, a California general partnership ("FRI"). The managing general
partner of FRI is NPI Equity Investments, II, Inc., which is a wholly-owned
subsidiary of IPT. As a result of certain transactions in connection with the
formation of IPT, FCMC became a wholly-owned subsidiary of IPT, and IPT
controls FCMC and FRI. The Purchaser is a recently formed, wholly-owned
subsidiary of IPLP, which is the operating partnership of IPT. IPT is the sole
general partner of IPLP (owning approximately 70% of the total equity interests
in IPLP), and Insignia is the sole limited partner of IPLP (owning
approximately 30% of the total equity interests in IPLP). Insignia and its
affiliates also own approximately 57% of the outstanding common shares of IPT.
Since 1996, Insignia (directly or through affiliates) has performed
asset management, partnership administration and investor relations services
for the Partnership.
By reason of these relationships, the General Partner has conflicts
of interest in considering the Offer.
The Partnership was not an affiliate of Insignia prior to January
1996. Accordingly, this section only discusses transactions between the
Partnership, on the one hand, and Insignia and its affiliates, on the other
hand, which have occurred since January 1996.
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Under the Limited Partnership Agreement, the General Partner holds
an interest in the Partnership and is entitled to participate in certain cash
distributions made by the Partnership to its partners. The General Partner
received from the Partnership in respect of its interest in the Partnership
cash distributions of $6,000 to date in 1998 and $11,000 in each of 1997, 1996
and 1995. Pursuant to the Limited Partnership Agreement, the General Partner is
entitled to receive a Partnership management fee for services equal to 10% of
the Partnership's cash available for distribution. The Partnership paid
Insignia and its affiliates fees for partnership management services in the
amounts of approximately $123,000 for each of the years ended December 31, 1997
and 1996, respectively, and has paid Insignia and its affiliates partnership
management fees equal to $62,000 during the first six months of 1998. The
Partnership reimbursed the General Partner and its affiliates (including
Insignia) for expenses incurred in connection with asset management and
partnership administration services performed by them for the Partnership for
the years ended December 31, 1997 and 1996 in the amounts of $97,000 and
$126,000, respectively, and has reimbursed them for such services in the amount
of $61,000 through June 30, 1998 (including reimbursements paid to an affiliate
of the General Partner in the amount of $1,000 for the year ended December 31,
1997 for costs incurred in connection with construction oversight services).
For the period January 1, 1996 through December 31, 1996, the Partnership
insured its properties under a master policy through an agency and insurer
unaffiliated with FCMC, and through an agency affiliated with FCMC for the
period January 1, 1997 through August 31, 1997. An affiliate of FCMC acquired,
in the acquisition of a business, certain financial obligations from an
insurance agency which was later acquired by the agent who placed the current
year's master policy. That agent assumed the financial obligations to the
affiliate of FCMC who received payments on these obligations from the agent.
Insignia and the General Partner believe that the aggregate financial benefit
derived by Insignia and its affiliates from such arrangement was immaterial.
As described above, the Purchaser and the General Partner are
affiliates of and controlled by IPT, which is controlled by Insignia. The
General Partner has conflicts of interest in considering the Offer, including
(i) as a result of the fact that a sale or liquidation of the Partnership's
assets would result in a decrease or elimination of the fees paid to the
General Partner and/or its affiliates and (ii) the fact that as a consequence
of the Purchaser's ownership of Units, the Purchaser (which is an affiliate of
the General Partner) may have incentives to seek to maximize the value of its
ownership of Units, which in turn may result in a conflict for the General
Partner in attempting to reconcile the interests of the Purchaser (which is an
affiliate of the General Partner) with the interests of the other Limited
Partners. As with any rational investment decision, the Purchaser (which is an
affiliate of the General Partner) is making the Offer with a view to making a
profit. Accordingly, there is a conflict between the desire of the Purchaser
(which is an affiliate of the General Partner) to purchase Units at a low price
and the desire of the Limited Partners to sell their Units at a high price.
As described in the Offer to Purchase, the Purchaser (which is an
affiliate of the General Partner) expects to pay for the Units it purchases
pursuant to the Offer with funds provided by IPLP as capital contributions.
IPLP in turn intends to use its cash on hand and, if necessary, funds available
to it under its credit facility to make such contributions. It is possible,
however, that in connection with its future financing activities, IPT or IPLP
may cause or request the Purchaser (which is an affiliate of the General
Partner) to pledge the Units as collateral for loans, or otherwise agree to
terms which provide IPT, IPLP and the Purchaser with incentives to generate
substantial near-term cash flow from the Purchaser's investment in the Units.
This could be the case, for example, if a loan has a "balloon" maturity after a
relatively short time or bears a high or increasing interest rate. In such a
situation, the General Partner may experience a conflict of interest in seeking
to reconcile the best interests of the Partnership with the need of its
affiliates for cash flow from the Partnership's activities.
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If the Purchaser is successful in acquiring a significant number of
Units pursuant to the Offer, the Purchaser (which is an affiliate of the
General Partner) will have the right to vote those Units and thereby
significantly influence all voting decisions with respect to the Partnership,
including decisions concerning liquidation, amendments to the Limited
Partnership Agreement, removal and replacement of the General Partner and
mergers, consolidations and other extraordinary transactions. This means that
(i) non-tendering Limited Partners could be prevented from taking action they
desire but that IPT (which is an affiliate of the General Partner) opposes and
(ii) IPT (which is an affiliate of the General Partner) may be able to take
action desired by IPT but opposed by the non-tendering Limited Partners.
The Limited Partnership Agreement provides that the General Partner
has absolute discretion as to whether to admit an assignee of Units to the
Partnership as a substituted Limited Partner. The Purchaser (which is an
affiliate of the General Partner) will seek to be admitted to the Partnership
as a substituted Limited Partner upon consummation of the Offer and, when
admitted, will have the right to vote each Unit purchased pursuant to the
Offer. Even if the Purchaser (which is an affiliate of the General Partner) is
not admitted to the Partnership as a substituted Limited Partner, however, the
Purchaser nonetheless will have the right to vote each Unit purchased in the
Offer pursuant to the irrevocable appointment by tendering Limited Partners of
the Purchaser (which is an affiliate of the General Partner) and its managers
and designees as proxies with respect to the Units tendered by such Limited
Partners and accepted for payment by the Purchaser. As a result, if the
Purchaser (which is an affiliate of the General Partner) is successful in
acquiring a significant number of Units pursuant to the Offer, the Purchaser
will have the right to vote those Units and thereby significantly influence all
voting decisions with respect to the Partnership. In general, IPLP and the
Purchaser (which are affiliates of the General Partner) will vote the Units
owned by them in whatever manner they deem to be in IPT's best interests,
which, because of their relationship with the General Partner, also may be in
the interest of the General Partner, but may not be in the interest of other
Limited Partners. This could (i) prevent non-tendering Limited Partners from
taking action they desire but that IPT opposes and (ii) enable IPT to take
action desired by IPT but opposed by non-tendering Limited Partners. Under the
Limited Partnership Agreement, Limited Partners holding a majority of the Units
are entitled to take action with respect to a variety of matters including:
removal of the General Partner and in certain circumstances election of a new
or successor general partner; dissolution of the Partnership; sale of all or
substantially all of the assets of the Partnership; and most types of
amendments to the Limited Partnership Agreement.
To the best knowledge of the General Partner, except as described in
this Schedule 14D- 9, there are no other material agreements, arrangements,
understandings or any actual or potential conflicts of interest between the
Partnership, the General Partner and their affiliates and the Bidders, their
executive officers, directors or affiliates.
ITEM 4. THE SOLICITATION OR RECOMMENDATION.
Because of the existing and potential future conflicts of interest
described in Item 3 above, the Partnership and the General Partner are
remaining neutral and making no recommendation as to whether Limited Partners
should tender their Units in response to the Offer.
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ITEM 5. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
Neither the Partnership nor any person acting on its behalf has
employed, retained or compensated, or intends to employ, retain or compensate,
any person or class of person to make solicitations or recommendation to
Limited Partners on its behalf concerning the Offer.
ITEM 6. RECENT TRANSACTIONS AND INTEREST WITH RESPECT TO SECURITIES.
None.
ITEM 7. CERTAIN NEGOTIATIONS AND TRANSACTIONS BY THE SUBJECT COMPANY.
None.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED.
Litigation. On March 24, 1998, certain persons claiming to own
limited partner interests in certain of the IPT Partnerships (including the
Partnership) whose general partners (the "General Partners") are affiliates of
Insignia (the "Partnerships") filed a purported class and derivative action in
California Superior Court in the County of San Mateo (the "Complaint") against
Insignia, the General Partners (including the General Partner), certain persons
and entities who purportedly formerly controlled the General Partners, and
additional entities affiliated with and individuals who are officers, directors
and/or principals of several of the defendants. The complaint contains
allegations that, among other things, (i) the defendants breached their
fiduciary duties to the plaintiffs by selling or agreeing to sell their
"fiduciary positions" as stockholders, officers and directors of the General
Partners for a profit and retaining said profit rather than distributing it to
the plaintiffs; (ii) the defendants breached their fiduciary duties by
mismanaging the Partnerships and misappropriating the assets of the
Partnerships by (a) manipulating the operations of the Partnerships to depress
the trading price of limited partnership units (the "Units") of the
Partnerships; (b) coercing and fraudulently inducing unitholders to sell Units
to certain of the defendants at depressed prices; and (c) using the voting
control obtained by purchasing Units at depressed prices to entrench certain of
the defendants' positions of control over the Partnerships; and (iii) the
defendants breached their fiduciary duties to the plaintiffs by (a) selling
assets of the Partnerships such as mailing lists of unitholders; and (b)
causing the General Partners to enter into exclusive arrangements with their
affiliates to sell goods and services to the General Partners, the unitholders
and tenants of Partnership properties. The complaint also alleges that the
foregoing allegations constitute violations of various California securities,
corporate and partnership statutes, as well as conversion and common law fraud.
The complaint seeks unspecified compensatory and punitive damages, an
injunction blocking the sale of control of the General Partners and a court
order directing the defendants to discharge their fiduciary duties to the
plaintiffs. On June 25, 1998, the General Partners filed a motion seeking
dismissal of the action. In lieu of responding to the motion, the plaintiffs
have filed an amended complaint. IPT believes that the allegations contained in
the Complaint are without merit and intend to vigorously contest the
plaintiffs' action.
On July 30, 1998, certain entities claiming to own limited
partnership interests in 44 of the IPT Partnerships (including the Partnership)
(the "Subject Partnerships") whose general partners are affiliates of Insignia,
IPT and the Purchaser (the "Affiliated General Partners") filed a complaint in
the Superior Court of the State of California, County of Los Angeles (the "Los
Angeles Complaint") against Insignia, the Subject Partnerships (defined below),
the Affiliated General Partners (including the General Partner) and additional
entities affiliated with several
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of the defendants. Plaintiffs allege that they have requested from, but have
been denied by each of the Subject Partnerships, lists of their respective
limited partners for the purpose of making tender offers to purchase up to 4.9%
of the units of limited partnership interest in each of the Subject
Partnerships. The Los Angeles Complaint also alleges that certain of the
defendants made tender offers to purchase units of limited partnership interest
in many of the Subject Partnerships, with the alleged result that plaintiffs
have been deprived of the benefits they would have realized from ownership of
the additional units. The plaintiffs assert eleven causes of action, including
breach of contract, unfair business practices, and violations of the
partnership statutes of the states in which the Subject Partnerships are
organized. Plaintiffs seeks compensatory, punitive and treble damages. None of
the defendants has yet responded to the Los Angeles Complaint. IPT believes the
claims to be without merit and intends to defend the action vigorously.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
(a) Form of cover letter to Limited Partners of the Partnership
dated September 29.
(b) None.
(c) None.
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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.
Dated: September 29, 1998
Century Pension Income Fund XXIV,
a California limited partnership
By: Fox Partners VI,
its General Partner
By: Fox Capital Management Corporation,
its managing general partner
By: /s/ William H. Jarrard, Jr.
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William H. Jarrard, Jr.
President
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
(a) Form of cover letter to Limited Partners from the
Partnership dated September 29, 1998.
(b) None.
(c) None.
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Exhibit (a)
Century Pension Income Fund XXIV
September 29, 1998
Dear Limited Partner:
Enclosed is the Schedule 14D-9 which was filed by Century Pension
Income Fund XXIV (the "Partnership") with the Securities and Exchange
Commission in connection with an offer (the "Offer") by Cooper River
Properties, L.L.C., a Delaware limited liability company (the "Purchaser"),
Insignia Properties, L.P., a Delaware limited partnership ("IPLP"), Insignia
Properties Trust, a Maryland real estate investment trust ("IPT"), and Insignia
Financial Group, Inc., a Delaware corporation ("Insignia," and together with
IPLP, IPT and the Purchaser, the "Bidders"), to purchase units of limited
partnership interest ("Units") in the Partnership.
The Partnership's general partner is Fox Partners VI (the "General
Partner"), which is an affiliate of the Bidders. Due to the affiliation between
the General Partner of the Partnership and the Bidders, the General Partner is
subject to certain conflicts of interest in connection with the response to the
Offer.
AS A RESULT OF THE EXISTING AND POTENTIAL CONFLICTS OF INTEREST,
NEITHER THE PARTNERSHIP NOR THE GENERAL PARTNER EXPRESSES ANY OPINION AS TO THE
OFFER AND EACH IS REMAINING NEUTRAL AND MAKING NO RECOMMENDATION AS TO WHETHER
LIMITED PARTNERS SHOULD TENDER THEIR UNITS IN RESPONSE TO THE OFFER.
Limited Partners are advised to carefully read the enclosed Schedule
14D-9.
Century Pension Income Fund XXIV
