<PAGE>
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
(Amendment No. 1)
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [x]
Check the appropriate box:
[x] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to (S) 240.14a-11(c) or (S) 240.14a-12
Brauvin High Yield Fund L.P., a Delaware limited partnership
- --------------------------------------------------------------------------------
(Name of Registrant as Specified in its Charter)
Ben O. Carrol
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box)
[ ] $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1), 14a-6(i)(2) or
Item 22(a)(2) of Schedule 14A.
[ ] $500 per each party to the controversy pursuant to Exchange Act Rule
14a-6(i)(3)
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applied:
---------------------------------------------------------------------
2) Aggregate number of securities to which transaction applies:
----------------------------------------------------------------------
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
----------------------------------------------------------------------
4) Proposed maximum aggregate value of transaction:
----------------------------------------------------------------------
5) Total fee paid:
----------------------------------------------------------------------
[x] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
----------------------------------------------------------------------
2) Form, Schedule or Registration Statement No.:
----------------------------------------------------------------------
3) Filing Party:
----------------------------------------------------------------------
4) Date Filed:
----------------------------------------------------------------------
<PAGE>
Revision 1
PRELIMINARY MATERIALS
---------------------
BEN O. CARROLL
c/o The Mills Firm
300 Drake's Landing
Suite 155
Greenbrae, California 94904
Telephone: 415-464-4770
Fax: 415-464-4777
SOLICITATION STATEMENT
Relating to the Special Meeting of Limited Partners
of Brauvin High Yield Fund, L.P.
To Be Held November 8, 1996
<PAGE>
Revision 1
PRELIMINARY MATERIALS
---------------------
INTRODUCTION
GENERAL
This Solicitation Statement is being first mailed to the beneficial owners
("Limited Partners") of the limited partnership interests ("Units") of Brauvin
High Yield Fund, L.P., a Delaware limited partnership (the "Partnership"), on or
about [November 4], 1996 by the undersigned Limited Partner (the "Dissenting
Partner") regarding the revocation of proxies that may have been granted to
Jerome J. Brault and Brauvin Realty Advisors, Inc. (collectively, the "Corporate
General Partners") for use at a special meeting of the Limited Partners (the
"Special Meeting") to be held at the offices of the Partnership, 150 South
Wacker Drive, Chicago, Illinois 60606, on Friday, November 8, 1996, at 9:00
a.m., Central Standard Time. As you are probably aware, together with Dissenting
Partners from Brauvin High Yield Fund L.P. II, Brauvin Income Plus L.P. III, and
Brauvin Corporate Lease Program IV, L.P., the Dissenting Partner has commenced
class action litigation against the Corporate General Partners and the Purchaser
in the United States District Court, Northern District of Illinois, Eastern
Division, for breach of fiduciary duty (the "Class Action Lawsuit"). As part of
the Class Action Lawsuit, on September 20, 1996, the Court delayed the original
date for the Special Meeting to October 9, 1996 and authorized The Mills Firm to
communicate with the other Limited Partners.
On September 27, 1996, The Mills Firm sent a letter requesting that you
revoke proxies that you may have granted to the Corporate General Partners of
our Partnership regarding proposals (the "Proposals") to (i) merge the
Partnership with Brauvin Real Estate Funds, LLC, a Delaware limited liability
company ("Purchaser") and (ii) adopt an amendment to the Partnership's
Partnership Agreement to permit a majority vote of the Limited Partners to
determine the outcome of the merger without the vote of the General Partners
("September 27 Letter"). A number of Limited Partners responded favorably to the
September 27 Letter and sent in revocations ("REVOCATIONS") as requested. The
exact number of REVOCATIONS that were sent in is not known to the Dissenting
Partner, but, according to an October 21, 1996 communication from Jerome J.
Brault (the "Managing General Partner"), the Partnership does NOT have the
---
necessary votes to consummate the proposed transactions.
SEC COMPLIANCE
The September 27 Letter was hurriedly prepared in order for the Limited
Partners to have a meaningful opportunity to act before the Special Meeting
rescheduled by the Court to October 9, 1996. This letter was not submitted to
the Securities and Exchange Commission ("SEC") in accordance with its
proxy rules prior to being sent to the Limited Partners by The Mills Firm. This
Solicitation Statement is designed to correct such omission.
The Corporate General Partners have asserted that the September 27
Letter contained a number of misleading statements or omissions. Those
assertions have been stated in filings made with the Court, and are repeated in
October 4, 1996 and October 21, 1996 letters from Mr.
<PAGE>
Brault which have been mailed to the Limited Partners. The validity of those
assertions has not been finally resolved by the Court.
This Solicitation Statement supersedes the September 27 Letter, and has a
threefold purpose: first, to urge Limited Partners not to cancel REVOCATIONS
which have already been submitted to the Corporate General Partners; second, to
correct any omissions from, or misstatements in, the September 27 Letter; and
third, to give Limited Partners a chance to cancel REVOCATIONS submitted in
response to the September 27 Letter, if, after reading this document, they deem
such cancellation appropriate.
For the reasons described in the next section of this Solicitation
Statement, the Dissenting Partner STRONGLY URGES ALL LIMITED PARTNERS WHO HAVE
REVOKED PREVIOUSLY SUBMITTED PROXIES NOT TO CANCEL SUCH REVOCATIONS.
---
REASONS TO VOTE AGAINST THE "PROPOSALS"
Conflicts of Interest
- ---------------------
The Corporate General Partners which are recommending the Proposals will
control the entity into which the Partnership will be merged as described in the
first Proposal. While they assert that ultimately they may own no more than 20%
of the Purchaser, the fact is that today they control 100% and there is no
assurance that they will not maintain effective management control of, and a
significant equity interest in, the Purchaser even after equity financing is
raised.
Neither the Corporate General Partners nor the Partnership have taken
additional steps necessary to support the price being paid to the Limited
Partners (such as obtaining confirming appraisals from other than Cushman &
Wakefield), or, indeed, to obtain a higher price for Limited Partners, such
as attempting to market the property to third parties or subjecting the property
to an auction procedure. The Corporate General Partners appear to
want to maintain an equity interest in the Partnership's assets for
themselves, creating the ultimate conflict of interest.
General partners of limited partnerships are obligated to exercise the
highest standard of care in connection with transactions entered into by the
partnership, particularly in connection with related party transactions and
self-dealing. Mere disclosure of self-dealing is not adequate. Thus, a vote
against the merger Proposal would obtain time during which to test alternative
means for determining the value of the Partnership's assets and the Units in
unrelated third party transactions and procedures.
In addition, if the merger is completed as proposed by the Corporate
General Partners, any significant increase in the value of the Partnership's
assets would inure totally to the benefit of the Corporate General Partners, as
it would in a sale to an unrelated third party. This
2
<PAGE>
possibility should be considered in deciding how to vote. You may want to
continue to share in the potential appreciation. Leaving in place a REVOCATION
of any proxies approving the Proposals will allow you to continue as ultimate
"owners" of the properties.
The Valuation Process
- ---------------------
The Corporate General Partners have obtained an appraisal from Cushman &
Wakefield which is based on only one of the recommended methods of appraising
properties. In addition, Cushman & Wakefield was asked to render a financial
"fairness" opinion with respect to the transaction contemplated by the Proposals
as a whole. It would have provided more comfort to the Limited Partners had a
reputable independent investment banking firm been engaged to evaluate the
overall transaction and render the fairness opinion based on Cushman &
Wakefield's appraisal. While the offered price may be "reasonable," the process
selected by the Corporate General Partners was not designed to assure the
Limited Partners of the "best price."
Leaving in place a REVOCATION of your vote for the Proposals would allow
for the process of obtaining a more complete appraisal and a wholly independent
fairness opinion.
Failure of Recommendation by Independent General Partners
- ---------------------------------------------------------
In the August 23, 1996 proxy material prepared by the Corporate General
Partners and distributed to you, disclosure is made that two of the individual
General Partners who are not related to Mr. Brault or Brauvin Realty Advisors,
Inc., Cezar M. Froelich and David M. Strosberg (the "Independent General
Partners"), are not recommending the Proposals "since they believe that the most
advantageous methodology for a fair price for the assets would be to seek third-
party offers through an arm's-length bidding process." In fact, as also
disclosed in the August 23, 1996 proxy material, both Independent General
Partners have announced their respective intention to resign as a General
Partner of the Partnership. It is clear from the positions taken by the
Independent General Partners that the second of the Proposals, namely the
amendment to the Partnership Agreement permitting the merger without the consent
of the General Partners, is a bold self-serving tactic to avoid a result which,
because of the announced positions of the Independent General Partners, would
negate the possibility of a successful merger on the terms proposed.
While Limited Partners may, of course, amend the Partnership Agreement, the
affiliated Corporate General Partners are asking for your consent to amend the
Partnership Agreement to eliminate the necessity for the exercise of judgment on
the part of the Independent General Partners of the Partnership. Frankly, they
are also asking you to override the judgment of the Independent General Partners
that this is not the best course of action to be taken now. Presumably, the
provision of the Partnership Agreement requiring both the approval of the
Limited Partners and the General Partners to transactions such as those
contemplated by the Proposals was to satisfy fiduciary obligations on the part
of General Partners to Limited Partners, as well as to obtain the consent and
advice of the persons most affected by and knowledgeable about the assets owned
by the Partnership. This protection is clearly lost by virtue of the second
Proposal.
3
<PAGE>
Leaving in place the REVOCATION of a prior "yes" vote on the second
Proposal therefore, would be a confirmation that you, as Limited Partners,
desire the protection originally afforded to you by the Partnership Agreement.
CANCELLATION OF YOUR EARLIER SUBMITTED REVOCATION WILL HAVE THE EFFECT OF
VOTING "YES" FOR THE PROPOSALS. YOU ARE URGED NOT TO CANCEL YOUR REVOCATION.
---
PENDING LITIGATION
As noted in the Introduction, the Dissenting Partner has filed the Class
Action Lawsuit to protect the interests of all of the Limited Partners. The
Dissenting Partner has been certified by the Court as the class representative.
The Dissenting Partner has been successful in delaying the original date of the
Special Meeting to allow additional information about the Proposals to be
supplied to the Limited Partners. In such lawsuit, the Corporate General
Partners challenged the September 27 Letter and the revocations submitted in
response to it. They have described their position in the October 4, 1996 and
October 21, 1996 communications to the Limited Partners.
The Court has refused to invalidate REVOCATIONS submitted in response to
the September 27 Letter. The U.S. Circuit Court for the Seventh Circuit has
refused to hear an appeal of this ruling on an emergency basis and the Corporate
General Partners have appealed that ruling.
In the meantime, on October 17, 1996, the Dissenting Partner filed a motion
for partial summary judgment to invalidate the proxies solicited by the
Corporate General Partners to vote in favor of the Proposals. The basis for such
motion is that a proxy voting procedure is not authorized by Delaware law absent
specific language in the partnership agreement which does not exist in the
Partnership's Partnership Agreement. The Corporate General Partners' response is
due November 4, 1996, with the Dissenting Partner having the right to submit a
reply by November 12, 1996. If the Court rules favorably on this motion, the
entire special meeting voting process will be invalidated, and all solicitations
to date from the Corporate General Partners and the Dissenting Partner would be
of no effect.
CORRECTIONS AND CLARIFICATIONS OF SEPTEMBER 27 LETTER
In order to bring this solicitation into compliance with the SEC's proxy
rules, in addition to other clarifications in "Reasons To Vote Against the
Proposals," the following corrections to, or clarifications of, the September
27, 1996 Letter should be noted:
4
<PAGE>
1. As previously stated in the September 30 Letter from The Mills Firm,
the Court did not review or approve or disapprove the text of the September 27
Letter.
2. The statement in the September 27 Letter that the cover letter to the
August 23, 1996 solicitation statement implies that the appraisal and the
fairness opinion come from separate entities was inaccurate. The September 27
Letter was not intended to impugn the integrity of Cushman & Wakefield, or
misrepresent its appraisal. The key point was that, while "reasonable," the
price was not necessarily the best available.
3. In asserting that the Partnership's assets may be worth more than the
pending offer from the Purchaser, no projection of future value of Partnership
assets was intended. However, the Dissenting Partners are aware of at least one
offer from a third party for the assets of sister partnerships, Brauvin Income
Plus L.P. III ("Brauvin Fund III") and Brauvin Corporate Lease Program IV L.P.
("Brauvin Fund IV"), at a higher price, which offer has been rejected by the
-
Corporate General Partners. This offer has not been disclosed to the Limited
Partners. The Corporate General Partners contend that the basis for the
rejection is that normally a sale to a third party must take into account
possible outstanding liabilities of the Partnership, which would not be true for
a sale to the proposed Brauvin Purchaser. If third party offers at higher
prices are available for the assets of Brauvin Funds III and IV, it does not
seem unreasonable to assume that better offers may be available for the
Partnership's assets.
INFORMATION ABOUT DISSENTING PARTNER
The Dissenting Partner is Ben O. Carroll of Albany, Georgia. He is retired
and holds 10 Units of the Partnership. Mr. Carroll has been certified as class
representative for the Limited Partners of the Partnership in the above
described Class Action Lawsuit. His only interest in the Proposals is to see
that the value of the Units is maximized by the General Partners of the
Partnership in any transaction, or series of transactions, in which the
Partnership properties are disposed of.
INFORMATION CONCERNING THE MILLS FIRM
The Mills Firm is a law firm located in Greenbrae, California, specializing
in litigation matters. It began its involvement in this transaction as counsel
for the Dissenting Partner in the commencement of the Class Action Lawsuit.
Prior to the Dissenting Partner being certified as a class representative for
the other Limited Partners in the Class Action Lawsuit, The Mills Firm had a
contingent fee agreement with the Dissenting Partner. As a part of that
agreement, The Mills Firm agreed to advance the costs of the preparation and
dissemination of this Solicitation Statement and the September 27 Letter. If
such Class Action Lawsuit is successful, The Mills
5
<PAGE>
Firm may be entitled to such fee for its services as the Court deems appropriate
to be paid out of any recovery from the defendants or out of any proceeds from
the sale of the Partnership's assets at a price in excess of that proposed by
the Corporate General Partners. Except for the potential receipt of such
attorneys' fees, The Mills Firm has no interest in the transactions described in
the Proposals. The Mills Firm has no interest in the outcome of the vote being
sought by the Corporate General Partners. If the vote sought by the Corporate
General Partners is obtained, and if there is no recovery against the Corporate
General Partners and other defendants in such Class Action Lawsuit, The Mills
Firm will receive no compensation for its efforts in representing either the
Dissenting Partner or the class of Limited Partners of the Partnership.
GENERAL
The REVOCATION was solicited by and on behalf the Dissenting Partner. The
Dissenting Partner encourages you not to revoke it. This Solicitation Statement
will be transmitted to Limited Partners by mail.
Each Unit is entitled to one vote. The number of Units outstanding is as
stated in the General Partners' August 23, 1996 Solicitation Statement. A
majority of the Units must be voted in favor of the Proposals for them to be
approved. Revocation of a "yes" vote, as well as failure to vote affirmatively,
is effectively a "NO" vote. The effect of a cancellation of a REVOCATION will
be a "yes" vote for the Proposals.
-----------------------------
"Dissenting Partner"
6
<PAGE>
SPECIAL MEETING - NOVEMBER 8, 1996
THE REVOCATION OF YOUR APPROVAL VOTE IS EXTREMELY IMPORTANT
YOU ARE STRONGLY URGED NOT TO CANCEL IT.
---
1. If you wish to cancel a Revocation previously submitted in response to the
September 27 Letter, you must submit a Cancellation of Revocation to The
Herman Group, Inc. at or before the time of the special meeting or November
8, 1996.
2. If you have any questions or require any additional information concerning
this Solicitation Statement, please contact:
The Mills Firm
300 Drake's Landing
Suite 155
Greenbrae, California 94904
Telephone: 415-464-4770
Fax: 415-464-4777
