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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 14D-1
Tender Offer Statement Pursuant to Section 14(d)(1)
of the Securities Exchange Act of 1934
(AMENDMENT No. 2)
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RESOURCES PENSION SHARES 5, L.P.
a Delaware Limited Partnership
(Name of Subject Company)
PRESIDIO RPS ACQUISITION CORP.
(Bidder)
PRESIDIO CAPITAL CORP.
(Co-Bidder)
UNITS OF LIMITED PARTNERSHIP INTEREST
(Title of Class
of Securities)
NONE
(CUSIP Number of Class
of Securities)
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Allan B. Rothschild Copy to:
Presidio RPS Acquisition Corp. Mark I. Fisher
411 West Putnam Avenue Todd J. Emmerman
Greenwich, CT 06830 Rosenman & Colin LLP
(203) 862-7051 575 Madison Avenue
New York, New York 10022-2585
(212) 940-8800
(Name, Address and Telephone Number of
Person Authorized to Receive Notices and
Communications on Behalf of Bidder)
Calculation of Filing Fee
Transaction Amount of
Valuation* Filing Fee
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$13,000,000 $2,600.00
*For purposes of calculating the filing fee only. This amount assumes the
purchase of 2,000,000 Limited Partnership Interests ("Units") of the subject
company for $6.50 per Unit in cash.
/X/ Check box if any part of the fee is offset as provided by 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 date of its filing.
Amount previously paid: $2,600.00 Filing Party: Presidio RPS
Acquisition Corp.
Form or registration no.: Schedule 14D-1 Date Filed: February 18, 1998
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CUSIP No.: None 14D-1 Page 2 of 9 Pages
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- ------------------------------------------------------------------------------
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
PRESIDIO RPS ACQUISITION CORP.
- ------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(See Instructions)
(a) / /
(b) / /
- ------------------------------------------------------------------------------
3. SEC Use Only
- ------------------------------------------------------------------------------
4. Sources of Funds (See Instructions)
AF; WC
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5. Check Box if Disclosure of Legal Proceedings is
Required Pursuant to Items 2(e) or 2(f)
/ /
- ------------------------------------------------------------------------------
6. Citizenship or Place of Organization
Delaware
- ------------------------------------------------------------------------------
7. Aggregate Amount Beneficially Owned by Each Reporting
Person
100 Units
- ------------------------------------------------------------------------------
8. Check Box if the Aggregate Amount in Row (7) Excludes
Certain Shares (See Instructions)
/ /
- ------------------------------------------------------------------------------
9. Percent of Class Represented by Amount in Row (7)
Less than .1%
- ------------------------------------------------------------------------------
10. Type of Reporting Person (See Instructions)
CO
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CUSIP No.: None 14D-1 Page 3 of 9 Pages
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1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
PRESIDIO CAPITAL CORP.
- ------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(See Instructions)
(a) / /
(b) / /
- ------------------------------------------------------------------------------
3. SEC Use Only
- ------------------------------------------------------------------------------
4. Sources of Funds (See Instructions)
N/A
- ------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is
Required Pursuant to Items 2(e) or 2(f)
/ /
- ------------------------------------------------------------------------------
6. Citizenship or Place of Organization
Delaware
- ------------------------------------------------------------------------------
7. Aggregate Amount Beneficially Owned by Each Reporting
Person
624,935.33 Units*
- ------------------------------------------------------------------------------
8. Check Box if the Aggregate Amount in Row (7) Excludes
Certain Shares (See Instructions)
/ /
- ------------------------------------------------------------------------------
9. Percent of Class Represented by Amount in Row (7)
Approximately 11.1%
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10. Type of Reporting Person (See Instructions)
CO
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* Includes 100 Units owned by Presidio RPS Acquisition Corp.
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Page 4 of 9 Pages
AMENDMENT NO. 1 TO SCHEDULE 14D-1
This Amendment No. 2 amends the Tender Offer Statement on Schedule 14D-1
filed with the Commission on February 18, 1998 by Presidio RPS Acquisition Corp.
(the "Purchaser"), a Delaware corporation, as amended by Amendment No. 1 thereto
(the "Schedule 14D-1"), relating to the tender offer of the Purchaser to
purchase up to 2,000,000 of the outstanding Units of Limited Partnership
Interest ("Units") of Resources Pension Shares 5, L.P.(the "Partnership"), a
Delaware limited partnership, at a purchase price of $6.50 per Unit, net to the
seller in cash, without interest, upon the terms set forth in the Offer to
Purchase (the "Offer to Purchase") and in the related Letter of Transmittal, as
each may be supplemented or amended from time to time (which together constitute
the "Offer") to include the information set forth below. Terms not otherwise
defined herein shall have the meaning ascribed to them in the Schedule 14D-1 and
the Offer to Purchase.
Item 2. IDENTITY AND BACKGROUND.
Item 2(a) is hereby supplemented as follows:
The cover page of the Offer to Purchase is hereby amended by inserting the
following sentences following the first sentence of the second paragraph: "The
Purchaser is indirectly wholly-owned by Presidio Capital Corp. ("Presidio").
Presidio indirectly controls the General Partner. Accordingly, the Purchaser
and the General Partner are affiliated by virtue of being under the common
control of Presidio."
Item 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SUBJECT COMPANY'S SECURITIES.
Item 7 is hereby supplemented as follows:
On March 3, 1998, the Purchaser obtained the written agreement of Mr. Barry
Patterson to use his best efforts in his
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Page 5 of 9 Pages
capacity as Chairperson of the Investment Committee for the McKee Foods
Corporation Retirement Plan (the "Retirement Plan") to cause the tender
pursuant to the Offer of approximately 150,000 Units owned by the Retirement
Plan (the "McKee Units") in the event the Purchaser increased the Purchase
Price to $6.50 per Unit. Such agreement arose from conversations with Mr.
Patterson in which he indicated a willingness to recommend that the McKee
Units be tendered, but not at $6.00 per Unit. Through such conversations, it
was determined that Mr. Patterson would be willing to enter into such
agreement at a Purchase Price of $6.50 per Unit.
Item 10. ADDITIONAL INFORMATION.
Item 10(e) is hereby supplemented as follows:
A February 26th hearing in the action commenced by Everest was adjourned at
the request of Everest for the purpose of permitting discovery. The Partnership
and the General Partner objected to the adjournment.
Section 12.1.2 of the Partnership Agreement provides that "no Limited
Partner may sell, assign, transfer or exchange any Units if counsel for the
Partnership shall be of the opinion that such sale, assignment, transfer or
exchange would be in violation of any applicable federal or state securities law
(including any investor suitability standards)." Furthermore, Section 12.4 of
the Partnership Agreement provides that "any attempted sale, assignment,
transfer or exchange in contravention of the provisions of this [Section] 12
shall, in the sole discretion of
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Page 6 of 9 Pages
the Administrative General Partner, be voided and deemed ineffectual and
shall not bind or be recognized by the Partnership". Pursuant to the
foregoing provisions the General Partner refused to recognize transfers to
Everest of Units purportedly acquired in the Everest Offer based on its
belief that the Everest Offer violated the provisions of the Williams Act.
The Everest Offer was made on a first-received, first-buy basis with all
tenders being irrevocable and with no provision for withdrawal or proration
rights. The General Partner believed that the Everest Offer violated the
following provisions of the Williams Act: Rule 14e-1(a) (the Everest Offer was
not effectively open for 20 business days since there were no withdrawal or
proration rights and tenders were accepted on a first-received, first-buy
basis); Rule 14e-1(c) (while the Everest Offer expired on December 19, 1997,
payment was only to be made following confirmation by the Partnership of a valid
transfer - the General Partner believes this procedure violates the prompt
payment rule); Sections 14(d)(5) and (6) (these provisions provide for statutory
withdrawal and proration rights which the General Partner believes apply to all
tenders); and Section 14(e) (inadequate disclosure on issues relating to right
of Unitholders to receive distributions and taxable income allocated to
tendering Unitholders).
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Page 7 of 9 Pages
Item 10(f) is hereby supplemented as follows:
The second sentence of "Section 14. Conditions of the Offer." is hereby
amended by replacing the words "and before the acceptance of such Units for
payment or the payment therefor, or the later thereof, as applicable" with the
following phrase: "and before the Expiration Date".
Item 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 is hereby amended by adding the following, which is attached
as an exhibit:
(c)(1) Agreement, dated March 3, 1998, between the Purchaser and
Mr. Barry Patterson, Chairperson, Investment Committee,
McKee Foods Corporation Retirement Plan
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Page 8 of 9 Pages
SIGNATURES
After due 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: March 13, 1998
PRESIDIO RPS ACQUISITION CORP.
By: /s/ Allan B. Rothschild
--------------------------------
Name: Allan B. Rothschild
Title: Vice President
PRESIDIO CAPITAL CORP.
By: /s/ Allan B. Rothschild
--------------------------------
Name: Allan B. Rothschild
Title: Executive Vice
President
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Page 9 of 9 Pages
EXHIBIT INDEX
Sequentially
Exhibit No. Description Numbered Page
- ----------- ----------- -------------
99.(c)(1) Agreement, dated March 3, 1998, between the Purchaser
and Mr. Barry Patterson, Chairperson, Investment
Committee, McKee Foods Corporation Retirement Plan. . .
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Exhibit (c)(1)
Presidio RPS Acquisition Corp.
411 West Putnam Avenue
Greenwich, CT 06830
March 3, 1998
Mr. Barry Patterson
Chairperson, Investment Committee
McKee Foods Corporation Retirement Plan
Dear Mr. Patterson:
Reference is made to our February 18, 1998 offer to purchase units of limited
partnership interest in Resources Pension Shares 5, L.P. for $6.00 per unit
(the "Offer"). You hereby represent that you have significant influence over
the disposition of approximately 150,000 units. You hereby agree to use your
best efforts to cause the tender pursuant to the Offer of the foregoing
approximately 150,000 units in the event we increase the purchase price in
the Offer to $6.50 per unit.
Any tenders made pursuant to the Offer shall be subject to the terms and
conditions of the Offer.
Sincerely,
Presidio RPS Acquisition Corp.
By: /s/
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Allan B. Rothschild
Vice President
Accepted and Agreed:
By: /s/
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Name: Barry S. Patterson
Title: Chair, Investment Committee
