<PAGE> 1
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------
SCHEDULE 13D/A
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 2)
WALDEN RESIDENTIAL PROPERTIES, INC.
(Name of Issuer)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
931210108
(CUSIP Number)
HAL R. HALL
C/O OLY HIGHTOP, LLC
200 CRESCENT COURT
SUITE 1600
DALLAS, TEXAS 75201
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
Copies to:
MICHAEL D. WORTLEY TIMOTHY B. SMITH
VINSON & ELKINS L.L.P. C/O OLY HIGHTOP, LLC
3700 TRAMMELL CROW CENTER 200 CRESCENT COURT
2001 ROSS AVENUE SUITE 1600
DALLAS, TEXAS 75201 DALLAS, TEXAS 75201
(214) 220-7732 (214) 720-7800
NOVEMBER 5, 1999
(Date of Event which Requires Filing of this Statement)
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<PAGE> 2
CUSIP NO. 931210108
<TABLE>
<S> <C> <C>
- ---------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
Oly Hightop, LLC
- ---------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group (a) [ ]
(b) [X]
- ---------------------------------------------------------------------------------------------------------------
3 SEC use only
- ---------------------------------------------------------------------------------------------------------------
4 Source of Funds(1) Not applicable
- ---------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- ---------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization State of Delaware
- ---------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ------------------------------------------------------------------------
8 Shared Voting Power(1) 1,408,500
Owned by Each Reporting ------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ------------------------------------------------------------------------
10 Shared Dispositive Power(1) 1,408,500
- ---------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(1) 1,408,500
- ---------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- ---------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(1) 5.53%
- ---------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person OO
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The reporting person expressly disclaims beneficial ownership with
respect to such shares. The reporting person does not own of record any
shares of stock of Walden Residential Properties, Inc. (the "Company"),
and no agreement exists between the reporting person and any other
party regarding the voting or disposition of any such shares; provided,
however, that certain affiliates of the reporting person expect to
enter into voting agreements with certain stockholders of the Company
(the "Voting Agreements") as described in Item 4. The shares listed
above represent shares beneficially owned, in the aggregate, by
Westdale Properties America I, Ltd., a Texas limited partnership; JGB
Ventures I, Ltd., a Texas limited partnership; JGB Holdings, Inc., a
Texas corporation; Joseph G. Beard and Ronald Kimel, as sole Trustee
for the benefit of the issue of Manuel Kimel under the Manuel Kimel
Family Trust; Westdale 2000 Inc., an Ontario, Canada corporation;
Trivestment Holdings Limited, an Ontario, Canada corporation; and
657330 Ontario Inc., an Ontario, Canada corporation (collectively, the
"WPA Group"), according to the Schedule 13D filed by such persons dated
January 4, 1999, as amended by amendments dated March 1, 1999, May 17,
1999, August 10, 1999 and October 1, 1999; provided, however, that such
persons have not affirmed that such persons constitute a "group" within
the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended (the "Act"). See Item 5.
Page 2 of 17
<PAGE> 3
CUSIP NO. 931210108
<TABLE>
<S> <C> <C>
- ---------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
Oly Hightop, L.P.
- ---------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group (a) [ ]
(b) [X]
- ---------------------------------------------------------------------------------------------------------------
3 SEC use only
- ---------------------------------------------------------------------------------------------------------------
4 Source of Funds(1) Not applicable
- ---------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- ---------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization State of Texas
- ---------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ------------------------------------------------------------------------
8 Shared Voting Power(1) 1,408,500
Owned by Each Reporting ------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ------------------------------------------------------------------------
10 Shared Dispositive Power(1) 1,408,500
- ---------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(1) 1,408,500
- ---------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- ---------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(1) 5.53%
- ---------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person PN
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The reporting person expressly disclaims beneficial ownership with
respect to such shares. The reporting person does not own of record any
shares of stock of the Company, and no agreement exists between the
reporting person and any other party regarding the voting or
disposition of any such shares, subject to the expected execution of
the Voting Agreements described in Item 4. The shares listed above
represent shares beneficially owned by the WPA Group, according to the
Schedule 13D filed by such persons dated January 4, 1999, as amended by
amendments dated March 1, 1999, May 17, 1999, August 10, 1999 and
October 1, 1999; provided, however, that such persons have not affirmed
that such persons constitute a "group" within the meaning of Section
13(d)(3) of the Act. See Item 5.
Page 3 of 17
<PAGE> 4
CUSIP NO. 931210108
<TABLE>
<S> <C> <C>
- ---------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
Oly Hightop Two GP, LLC
- ---------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group (a) [ ]
(b) [X]
- ---------------------------------------------------------------------------------------------------------------
3 SEC use only
- ---------------------------------------------------------------------------------------------------------------
4 Source of Funds(1) Not applicable
- ---------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- ---------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization State of Delaware
- ---------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ------------------------------------------------------------------------
8 Shared Voting Power(1) 1,408,500
Owned by Each Reporting ------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ------------------------------------------------------------------------
10 Shared Dispositive Power(1) 1,408,500
- ---------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(1) 1,408,500
- ---------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- ---------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(1) 5.53%
- ---------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person OO
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The reporting person expressly disclaims beneficial ownership with
respect to such shares. The reporting person does not own of record any
shares of stock of the Company, and no agreement exists between the
reporting person and any other party regarding the voting or
disposition of any such shares, subject to the expected execution of
the Voting Agreements described in Item 4. The shares listed above
represent shares beneficially owned by the WPA Group, according to the
Schedule 13D filed by such persons dated January 4, 1999, as amended by
amendments dated March 1, 1999, May 17, 1999, August 10, 1999 and
October 1, 1999; provided, however, that such persons have not affirmed
that such persons constitute a "group" within the meaning of Section
13(d)(3) of the Act. See Item 5.
Page 4 of 17
<PAGE> 5
CUSIP NO. 931210108
<TABLE>
<S> <C> <C>
- ---------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
Oly Real Estate Partners II, L.P.
- ---------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group (a) [ ]
(b) [X]
- ---------------------------------------------------------------------------------------------------------------
3 SEC use only
- ---------------------------------------------------------------------------------------------------------------
4 Source of Funds(1) Not applicable
- ---------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- ---------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization State of Texas
- ---------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ------------------------------------------------------------------------
8 Shared Voting Power(1) 1,408,500
Owned by Each Reporting ------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ------------------------------------------------------------------------
10 Shared Dispositive Power(1) 1,408,500
- ---------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(1) 1,408,500
- ---------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- ---------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(1) 5.53%
- ---------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person PN
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The reporting person expressly disclaims beneficial ownership with
respect to such shares. The reporting person does not own of record any
shares of stock of the Company, and no agreement exists between the
reporting person and any other party regarding the voting or
disposition of any such shares, subject to the expected execution of
the Voting Agreements described in Item 4. The shares listed above
represent shares beneficially owned by the WPA Group, according to the
Schedule 13D filed by such persons dated January 4, 1999, as amended by
amendments dated March 1, 1999, May 17, 1999, August 10, 1999 and
October 1, 1999; provided, however, that such persons have not affirmed
that such persons constitute a "group" within the meaning of Section
13(d)(3) of the Act. See Item 5.
Page 5 of 17
<PAGE> 6
CUSIP NO. 931210108
<TABLE>
<S> <C> <C>
- ---------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
Oly REP II, L.P.
- ---------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group (a) [ ]
(b) [X]
- ---------------------------------------------------------------------------------------------------------------
3 SEC use only
- ---------------------------------------------------------------------------------------------------------------
4 Source of Funds(1) Not applicable
- ---------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- ---------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization State of Texas
- ---------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ------------------------------------------------------------------------
8 Shared Voting Power(1) 1,408,500
Owned by Each Reporting ------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ------------------------------------------------------------------------
10 Shared Dispositive Power(1) 1,408,500
- ---------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(1) 1,408,500
- ---------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- ---------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(1) 5.53%
- ---------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person PN
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The reporting person expressly disclaims beneficial ownership with
respect to such shares. The reporting person does not own of record any
shares of stock of the Company, and no agreement exists between the
reporting person and any other party regarding the voting or
disposition of any such shares, subject to the expected execution of
the Voting Agreements described in Item 4. The shares listed above
represent shares beneficially owned by the WPA Group, according to the
Schedule 13D filed by such persons dated January 4, 1999, as amended by
amendments dated March 1, 1999, May 17, 1999, August 10, 1999 and
October 1, 1999; provided, however, that such persons have not affirmed
that such persons constitute a "group" within the meaning of Section
13(d)(3) of the Act. See Item 5.
Page 6 of 17
<PAGE> 7
CUSIP NO. 931210108
<TABLE>
<S> <C> <C>
- ---------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
Oly Fund II, LLC
- ---------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group (a) [ ]
(b) [X]
- ---------------------------------------------------------------------------------------------------------------
3 SEC use only
- ---------------------------------------------------------------------------------------------------------------
4 Source of Funds(1) Not applicable
- ---------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- ---------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization State of Texas
- ---------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ------------------------------------------------------------------------
8 Shared Voting Power(1) 1,408,500
Owned by Each Reporting ------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ------------------------------------------------------------------------
10 Shared Dispositive Power(1) 1,408,500
- ---------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(1) 1,408,500
- ---------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- ---------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(1) 5.53%
- ---------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person OO
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The reporting person expressly disclaims beneficial ownership with
respect to such shares. The reporting person does not own of record any
shares of stock of the Company, and no agreement exists between the
reporting person and any other party regarding the voting or
disposition of any such shares, subject to the expected execution of
the Voting Agreements described in Item 4. The shares listed above
represent shares beneficially owned by the WPA Group, according to the
Schedule 13D filed by such persons dated January 4, 1999, as amended by
amendments dated March 1, 1999, May 17, 1999, August 10, 1999 and
October 1, 1999; provided, however, that such persons have not affirmed
that such persons constitute a "group" within the meaning of Section
13(d)(3) of the Act. See Item 5.
Page 7 of 17
<PAGE> 8
CUSIP NO. 931210108
This Amendment No. 2 to Schedule 13D is hereby filed by Oly Fund II,
LLC, a Texas limited liability company ("Oly Fund II"); Oly REP II, L.P., a
Texas limited partnership ("Oly REP"); Oly Real Estate Partners II, L.P., a
Texas limited partnership ("Oly Real Estate"); Oly Hightop Two GP, LLC, a
Delaware limited liability company ("Oly Two"); Oly Hightop, L.P., a Texas
limited partnership ("Oly LP"); and Oly Hightop, LLC, a Delaware limited
liability company ("Oly LLC"). Oly Fund II, Oly REP, Oly Real Estate, Oly Two,
Oly LP and Oly LLC are collectively referred to herein as the "Reporting
Persons." Each Reporting Person disclaims responsibility for the completeness
and accuracy of the information contained in this Schedule 13D concerning the
other Reporting Persons.
This Amendment No. 2 amends and supplements Items 4, 5 and 6 and amends
and restates Item 7 contained in the Schedule 13D dated August 9, 1999, and
amended on September 28, 1999, filed by each of the Reporting Persons (as
amended, the "Prior Filing"). Items 1, 2 and 3 of the Prior Filing remain
unchanged.
ITEM 4. PURPOSE OF THE TRANSACTION.
On September 24, 1999, the Company, Oly Hightop Corporation, a Maryland
corporation and affiliate of the Reporting Persons ("Newco"), and Oly Hightop
Parent, L.P., a Delaware limited partnership and affiliate of the Reporting
Persons and the direct parent of Newco ("Parent"), executed that certain
Agreement and Plan of Merger dated September 24, 1999 among the Company, Newco
and Parent (the "Prior Agreement"). On the same day the Company, Walden/Drever
Operating Partnership, L.P., a Delaware limited partnership ("WDOP"), and WDOP
Merger, L.P., a Delaware limited partnership, executed that certain Agreement
and Plan of Merger dated September 24, 1999 (the "Prior WDOP Merger Agreement")
among the Company, WDOP and WDOP Merger, L.P., pursuant to which WDOP Merger,
L.P. would merge with and into WDOP (the "WDOP Merger"). Also on the same day
the Company, Walden Residential Operating Partnership, L.P., a Delaware limited
partnership ("WROP"), and WROP Merger, L.P., a Delaware limited partnership,
executed that certain Agreement and Plan of Merger dated September 24, 1999 (the
"Prior WROP Merger Agreement") among the Company, WROP and WROP Merger, L.P.,
pursuant to which WROP Merger, L.P. would merge with and into WROP (the "WROP
Merger").
A few weeks later the Company, Parent and Newco agreed that the Prior
Agreement, the Prior WDOP Merger Agreement and the Prior WROP Merger Agreement
incorrectly reflected the receipt by holders of WDOP Class B common and
preferred units and WROP Class C and Class D units of units of WDOP and WROP,
respectively, following the WDOP Merger and the WROP Merger. The parties agreed
that the agreement reached on September 24, 1999 was to permit those holders to
elect to receive new securities in Parent rather than in WDOP and WROP, the
surviving entities of the WDOP Merger and the WROP Merger. In addition, the
parties also agreed (1) to not permit the Company to make severance or similar
payments to its officers or consultants other than those permitted by existing
employment or consulting agreements, (2) to fix the aggregate reduction in the
Cash Merger Consideration (as defined below) for capital expenditures at
$2,557,695 and (3) to provide that the Company would not be entitled to
terminate the Merger Agreement (as defined below) if Parent and Newco waived any
reduction in the Cash Merger Consideration that exceeded $5,000,000 as a result
of capital expenditures and consent payments.
On November 5, 1999, the Company, Parent and Newco entered into an
Amended and Restated Agreement and Plan of Merger (the "Merger Agreement").
Pursuant to the Merger Agreement, the Company will merge (the "Merger") with and
into Newco, with Newco being the surviving corporation, upon the terms and
conditions set forth in the Merger Agreement. The following summary of certain
terms of the Merger Agreement is qualified in its entirety by reference to the
Merger Agreement, which is incorporated herein by reference.
Company Common Stock and Company Convertible Preferred Stock. The
Merger Agreement provides that upon the consummation of the Merger, other than
shares of common stock, par value $0.01 per share, of the Company ("Company
Common Stock") held by the Company or any of its subsidiaries or by Parent or
any of its subsidiaries, which shares will be canceled and no consideration will
be received therefor, and subject to reduction as described below, (i) each
share of Company Common Stock issued and outstanding immediately prior to the
effective time of the Merger (the "Effective Time") will be converted into the
right to receive $23.25 in cash, and (ii) each share of 9.16% Series B
Convertible Preferred Stock, par value $0.01 per share, of the Company ("Company
Convertible Preferred
Page 8 of 17
<PAGE> 9
CUSIP NO. 931210108
Stock") issued and outstanding immediately prior to the Effective Time will be
converted into the right to receive an amount in cash equal to the sum of (A)
the product of (1) $23.25 and (2) the number of shares of Company Common Stock
into which such share of Company Convertible Preferred Stock would have been
convertible immediately prior to the Effective Time and (B) accrued and unpaid
dividends on the Company Convertible Preferred Stock to but excluding the
Closing Date. The per share consideration described in clauses (i) and (ii)
above, subject to reduction as described below, is referred to herein as the
"Cash Merger Consideration."
Reduction in Cash Merger Consideration. As more fully set forth in the
Merger Agreement, the Cash Merger Consideration is subject to reduction in
connection with certain expenditures by the Company relating to capital
improvements, payments to obtain consents required to consummate the Merger, and
other expenditures. Accordingly, the amount, $23.25, set forth in the preceding
paragraph will be reduced by a per share amount equal to the amount that is, (i)
in the case of the Company Common Stock, 79.89% of such total expenditures
divided by the number of outstanding shares of Company Common Stock immediately
prior to the Effective Time, and (ii) in the case of the Company Convertible
Preferred Stock, 6.12% of such total expenditures divided by the number of
outstanding shares of Company Convertible Preferred Stock immediately prior to
the Effective Time. The remaining percentage of expenditures will reduce the
consideration to be received by certain limited partners of WDOP and WROP upon
the consummation of the respective mergers of newly formed subsidiaries of
Parent into WDOP and WROP immediately prior to the Effective Time.
Company Senior Preferred Stock and Company Redeemable Preferred Stock.
If the Merger is approved both by holders of at least two-thirds of the
outstanding shares of 9.20% Senior Preferred Stock, par value $0.01 per share,
of the Company ("Company Senior Preferred Stock") and by holders of at least
two-thirds of the outstanding shares of 9.0% Redeemable Preferred Stock, par
value $0.01 per share, of the Company ("Company Redeemable Preferred Stock")
entitled to vote thereon (such approvals, the "Preferred Stock Vote"), then (i)
each share of Company Senior Preferred Stock issued and outstanding immediately
prior to the Effective Time will be converted into one validly issued, fully
paid and nonassessable unit of senior preferred limited partnership interest in
Parent having the rights and preferences set forth in the First Amended and
Restated Agreement of Limited Partnership of Parent (the "Parent Partnership
Agreement"), (ii) each share of Company Redeemable Preferred Stock issued and
outstanding immediately prior to the Effective Time shall be converted into one
validly issued, fully paid and nonassessable unit of redeemable preferred
limited partnership interest having the rights and preferences set forth in the
Parent Partnership Agreement, and (iii) each holder of Company Senior Preferred
Stock and Company Redeemable Preferred Stock shall become a limited partner of
Parent and shall be bound by the terms of the Parent Partnership Agreement. If
the Preferred Stock Vote is obtained, Newco will merge into Parent, with Parent
being the surviving entity.
Alternatively, if the Preferred Stock Vote is not obtained, then (i)
each share of Company Senior Preferred Stock issued and outstanding immediately
prior to the Effective Time shall be converted into one validly issued, fully
paid and nonassessable share of 9.20% Senior Preferred Stock of Newco having the
rights and preferences set forth in the Articles Supplementary designating the
9.20% Senior Preferred Stock of Newco (which rights and preferences are
substantially identical to the existing rights and preferences of the Company
Senior Preferred Stock), and (ii) each share of Company Redeemable Preferred
Stock issued and outstanding immediately prior to the Effective Time shall be
converted into one validly issued, fully paid and nonassessable share of 9.0%
Redeemable Preferred Stock of Newco (which rights and preferences are
substantially identical to the existing rights and preferences of the Company
Redeemable Preferred Stock).
Company Warrants. The Board of Directors of the Company has reduced the
exercise price of the warrants to purchase Company Common Stock then outstanding
under (i) that certain Series A Warrant Agreement dated as of December 27, 1996
between the Company and The First National Bank of Boston and (ii) that certain
Series B Warrant Agreement dated as of October 1, 1997 between the Company and
the First National Bank of Boston, to an exercise price per share equal to $0.01
below the Cash Merger Consideration per share, effective immediately prior to
the Effective Time. Subject to their earlier expiration in accordance with their
respective terms, each such warrant outstanding at the Effective Time shall
automatically be canceled and cease to exist and shall thereafter represent the
Page 9 of 17
<PAGE> 10
CUSIP NO. 931210108
right to receive for each share of Company Common Stock subject to such Company
warrants an amount in cash equal to $0.01.
Company Stock Options. At the Effective Time of the Merger, each
outstanding option to purchase Company Common Stock that has been granted under
the Company's Amended and Restated 1994 Stock Option Plan, the Company's
Long-Term Incentive Plan or the Company's 1998 Non-Qualified Employee Stock
Purchase Plan, whether or not then vested or exercisable, will become fully
vested and exercisable as of the Effective Time and will automatically be
canceled and cease to exist as of the Effective Time and will be converted into
the right to receive an amount in cash, if positive, equal to the number of
shares of Company Common Stock subject to such option multiplied by the excess
of (i) the per share Cash Merger Consideration minus (ii) the exercise price of
such option.
Company Restricted Stock. As of the Effective Time, all restrictions
upon each outstanding share of restricted stock that has been granted under the
Company's Long-Term Incentive Plan will terminate, each such share of restricted
stock will be converted into the right to receive the per share Cash Merger
Consideration, and each share of restricted stock will be canceled.
Directors and Officers. The directors and officers of the Company will
resign at the Effective Time, and the Merger Agreement provides that the
directors and officers of Newco will be the initial directors and officers of
the surviving entity at the Effective Time.
Amendment to Rights Agreement. In addition, the Company has amended the
Rights Agreement dated as of March 26, 1998 between the Company and BankBoston,
N.A. (the "Company Rights Agreement") to provide that none of the execution and
delivery of the Merger Agreement or related documents or the consummation of the
transactions contemplated by the Merger Agreement or related documents will
cause (i) the rights to purchase Series A Junior Participating Preferred Stock
of the Company to be exercisable under the Company Rights Agreement, (ii)
Parent, Newco or any of their respective Subsidiaries or any of their respective
stockholders or holders of partnership interests to be deemed an "Acquiring
Person" (as defined in the Company Rights Agreement), or (iii) any such event to
be deemed a "Distribution Date" (as defined in the Company Rights Agreement).
State Takeover Laws. The Board of Directors of the Company has exempted
the transactions contemplated by the Merger Agreement from Section 3-602
(business combinations statute) of the Maryland General Corporation Law and has
amended the Company's bylaws to exempt the transactions contemplated by the
Merger Agreement from Title 3, Subtitle 7 (control shares act) of the
Corporations and Associations Article of the Annotated Code of Maryland.
Representations, Warranties and Covenants. The Company, Parent and
Newco each have made certain customary representations, warranties and covenants
in connection with the Merger as set forth in the Merger Agreement.
Conditions. Consummation of the Merger is subject to various conditions
fully set forth in the Merger Agreement, including (without limitation) the
conditions that (i) the Merger be approved by a majority of the shares of
Company Common Stock entitled to vote on the Merger, (ii) certain consents
required to consummate the transactions contemplated by the Merger Agreement
shall have been obtained, (iii) the debt and equity financing for the
transactions contemplated by the Merger Agreement shall have been received in
accordance with the terms of the financing commitments, and (iv) no material
adverse change shall have occurred with respect to the Company.
Termination. The Merger Agreement may be terminated under the
circumstances set forth in the Merger Agreement, including (without limitation)
upon the following events: (i) by Parent or Newco, if the Board of Directors of
the Company (or its special committee) has withdrawn or modified, in any manner
which is adverse to Parent or Newco, its recommendation or approval of the
Merger or has recommended an inquiry, proposal or offer with respect to a
merger, acquisition, tender offer, exchange offer, consolidation, sale of assets
or similar transaction involving, or any purchase of, 10% or more of the assets
or any equity securities of the Company or any of its subsidiaries, other than
the transactions contemplated by the Merger Agreement (any such inquiry,
proposal or offer, a "Company Acquisition
Page 10 of 17
<PAGE> 11
CUSIP NO. 931210108
Proposal"), (ii) by the Company, under certain circumstances if the Company
receives a financially superior Company Acquisition Proposal, (iii) by Parent or
Newco, if a material adverse change occurs with respect to the Company, (iv) by
Parent or Newco, under certain circumstances if the debt and equity financing
commitments terminate or expire, or if the aggregate gross proceeds from such
debt financing (excluding the commitment of The Chase Manhattan Bank) are less
than $825,000,000, (v) by the Company, if the conditions of Parent and Newco to
consummate the Merger have been satisfied, neither Parent nor Newco has the
right to terminate the Merger Agreement, and Newco fails or refuses to effect
the Merger, (vi) by the Company, if the sum of certain expenditures described
under "Reduction in Cash Merger Consideration" above exceeds $5,000,000;
provided, however, that the Company shall not have the right to terminate the
Merger Agreement if Parent and Newco waive the requirement that the Cash Merger
Consideration be reduced by such excess, and (vii) by Parent or Newco, if
certain retention bonuses exceed $2,000,000.
Break Up Fee. As more fully described in the Merger Agreement, if (i)
Parent or Newco terminates the Merger Agreement because the Company's Board of
Directors (or its special committee) has withdrawn or adversely modified its
recommendation or approval of the Merger or has recommended to the stockholders
a Company Acquisition Proposal or (ii) the Company terminates the Merger
Agreement under certain circumstances because its Board of Directors (or special
committee) has determined to withdraw its recommendation or approval of the
Merger based on the receipt of a financially superior Company Acquisition
Proposal, then the Company shall pay Parent a break up fee of $26,750,000 (the
"Break Up Fee"). In addition, the Company shall pay Parent the Break Up Fee if
the Merger Agreement is terminated by Parent, Newco or the Company because (i)
the stockholders do not approve the Merger, (ii) at the time of the stockholders
meeting a Company Acquisition Proposal was pending, and (iii) within 12 months
after the meeting, a Company Acquisition Proposal is agreed to or consummated.
Termination Expenses. The Company shall pay to Parent the expenses
incurred by Parent in connection with the transaction up to $12,000,000 if the
Merger Agreement is terminated for any reason other than (i) by mutual consent,
(ii) due to a material breach of the Merger Agreement by Parent or Newco, (iii)
due to insufficient available proceeds under the debt financing or (iv) because
the condition to Newco's obligation to effect the Merger relating to receipt of
financing has not been satisfied solely due to the failure of The Chase
Manhattan Bank to provide debt financing under its commitment.
Parent shall pay to the Company the expenses incurred by the Company in
connection with the transaction up to $2,000,000 if the Merger Agreement is
terminated due to a material breach of the Merger Agreement by Parent or Newco.
Liquidation Damages. Parent shall pay to the Company liquidated damages
of $5,000,000 if Newco refuses to effect the Merger after all conditions are
satisfied and neither Parent nor Newco has the right to terminate the Merger
Agreement.
Mergers of WDOP and WROP. Concurrently with the execution of the Merger
Agreement, Parent, WDOP Merger Sub, L.P., a Delaware limited partnership and
affiliate of the Reporting Persons ("WDOP Merger Sub"), and WDOP, entered into
an Amended and Restated Agreement and Plan of Merger in connection with which
(i) the common limited partners of WDOP will (A) receive cash or (B) elect to
receive new securities of Parent or a combination of new securities of Parent
and cash, (ii) the preferred limited partners of WDOP will (A) receive cash or
(B) elect to receive new preferred securities of Parent, and (iii) immediately
prior to the Merger, WDOP Merger Sub will merge with and into WDOP, with WDOP as
the surviving entity. In addition, Parent, WROP Merger Sub, L.P., a Delaware
limited partnership and affiliate of the Reporting Persons ("WROP Merger Sub"),
and WROP, entered into an Amended and Restated Agreement and Plan of Merger, in
connection with which (i) the limited partners of WROP will (A) receive cash or
(B) elect to receive new securities of Parent or a combination of new securities
of Parent and cash and (ii) immediately prior to the Merger, WROP Merger Sub
will merge with and into WROP, with WROP as the surviving entity.
Page 11 of 17
<PAGE> 12
CUSIP NO. 931210108
Voting Agreements. Parent and Newco expect to enter into voting
agreements with the Company and certain of its securityholders (the
"Stockholders") under which each of the Stockholders would agree, and would
grant to Parent an irrevocable proxy to vote the shares of that Stockholder, as
follows:
(a) at any meeting of stockholders of the Company called to vote upon
the Merger or the Merger Agreement, or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval (including by
written consent) with respect to the Merger and the Merger Agreement is sought,
to vote (or cause to be voted) the number of shares of Company Common Stock,
Company Senior Preferred Stock or Company Redeemable Preferred Stock that the
Stockholder owns of record or of which the Stockholder has the power to direct
the vote (and any shares later acquired, including upon the exercise of stock
options or conversion of units of limited partnership interest in WDOP and WROP)
(the "Subject Shares") in favor of the Merger and any other transaction
contemplated by the Merger Agreement;
(b) at any meeting of the stockholders of the Company or at any
adjournments thereof or in any other circumstances upon which the Stockholder's
vote, consent or other approval is sought, to vote (or cause to be voted) the
Subject Shares against (i) any merger agreement or merger (other than the Merger
Agreement and the Merger), consolidation, combination, sale of substantial
assets, reorganization, recapitalization, dissolution, liquidation or winding up
of or by the Company or any other takeover proposal or Company Acquisition
Proposal or (ii) any amendment of the Company's charter or bylaws or other
proposal or transaction involving the Company or any of its subsidiaries which
would in any manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger Agreement
or change the voting rights of the Company Common Stock, Company Senior
Preferred Stock or Company Redeemable Preferred Stock;
(c) subject to certain exceptions, not to sell, transfer, pledge,
assign or otherwise dispose of (including by gift) (collectively, the
"Transfer"), or enter into any contract, option or other arrangement with
respect to the Transfer of the Subject Shares to any person other than pursuant
to the terms of the Merger Agreement or enter into any voting arrangement in
connection with any Company Acquisition Proposal; and
(d) not to directly or indirectly solicit, initiate or encourage the
submission of any Company Acquisition Proposal or, except as permitted by the
Merger Agreement, directly or indirectly participate in any discussions or
negotiations regarding, or furnish to any person any information with respect
to, or take any other action to facilitate any inquiries or the making of any
proposal that constitutes, or may reasonably be expected to lead to, any Company
Acquisition Proposal.
The foregoing summary of the terms of the Voting Agreement is qualified
in its entirety by reference to the form of Voting Agreement, which is
incorporated herein by reference.
Financing Commitments. In connection with the debt financing contemplated
by the financing commitments, certain properties of the Company will be
transferred to various existing or newly created subsidiaries of the Company.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) and (b) As described in Item 4 of this Schedule 13D, the Reporting
Persons, together with the WPA Group, may be deemed to be members of a group
under Section 13(d)(3) of the Act. At the close of business on November 5, 1999,
the WPA Group may be deemed to be the beneficial owner of 1,408,500 shares of
the Company Common Stock, which constitutes approximately 5.53% of the
25,460,434 shares of the Company Common Stock outstanding on September 24, 1999,
according to the Company's representations in the Merger Agreement. The
Reporting Persons do not, directly or indirectly, have or share the power to
vote or to direct the vote of, or to dispose or to direct the disposition of,
such shares of Company Common Stock owned by the WPA Group. The Reporting
Persons
Page 12 of 17
<PAGE> 13
931210108
expressly declare that the filing of this statement shall not be construed as an
admission that such person is, for purposes of Section 13(d) of the Act, the
beneficial owner of the Stock held by the WPA Group.
(c) No transactions in the Company Common Stock were effected by the
Reporting Persons during the past 60 days. On September 22, 1999, two members of
the WPA Group transferred certain shares internally among affiliated entities.
Westdale 2000 Inc., an Ontario, Canada corporation, transferred 170,000 shares
of Company Common Stock to Westdale Properties America, Inc., a Nevada
corporation ("Westdale Properties"), in exchange for 170,000 shares of Series A
Preferred Stock of Westdale Properties. In addition, Ronald Kimel made a capital
contribution of 6,100 shares of Company Common Stock to 657330 Ontario Inc., an
Ontario, Canada corporation, which in turn transferred these shares to Westdale
Properties in exchange for 6,100 shares of Series A Preferred Stock of Westdale
Properties. Westdale Properties subsequently made a capital contribution of all
such 176,100 shares to Westdale Properties America I, Ltd., a Texas limited
partnership.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
Parent, Newco and the Company entered into the Merger Agreement on
November 5, 1999, and expect to enter into Voting Agreements with certain
securityholders of the Company as described in Item 4.
Oly LLC has entered into an expense sharing agreement with Westdale
Asset Management, Ltd. ("Westdale"), an affiliate of the WPA Group, a copy of
which is incorporated herein by reference. Under this agreement, the parties
have agreed to share certain fees and expenses incurred in connection with the
proposed Merger. Westdale has agreed to commit $12,000,000 in equity financing
for the Merger and will receive a $1,000,000 sourcing fee upon the closing of
the Merger. In addition, the agreement provides that two members of the WPA
Group will be appointed as members of an advisory management committee of Oly
Hightop Holding, L.P., a Delaware limited partnership and the parent of Parent,
and that Newco (or an affiliate) and Westdale will enter into a management
agreement if the Merger is consummated.
To the best knowledge of the Reporting Persons, there are no other
contracts, arrangements, understandings or relationships (legal or otherwise)
among the Reporting Persons or between any of the Reporting Persons and any
other person with respect to any securities of the Issuer, including but not
limited to, transfer or voting of any of the securities of the Issuer, finder's
fees, joint ventures, loan or option arrangements, puts or calls, guarantees of
profits, division of profits or loss, or the giving or withholding of proxies,
or a pledge or contingency the occurrence of which would give another person
voting power over the securities of the Issuer.
Page 13 of 17
<PAGE> 14
CUSIP NO. 931210108
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
EXHIBIT
NO.
- -------
10.1 Agreement and Plan of Merger dated September 24, 1999 among Parent,
Newco and the Company.(1)
10.2 Amended and Restated Agreement and Plan of Merger dated November 5,
1999 among Parent, Newco and the Company.(2)
10.3 Form of Voting Agreement among Parent, Newco, the Company and the
stockholder named therein.(1)
10.4 Letter Agreement dated September 24, 1999 between Oly LLC and
Westdale.+
99.1 Joint Filing Statement dated September 28, 1999, among Oly Fund II, Oly
REP, Oly Real Estate, Oly Two, Oly LP and Oly LLC.+
+Previously filed.
(1) Incorporated by reference to the Company's Current Report on Form 8-K
dated September 24, 1999.
(2) Incorporated by reference to the Company's Current Report on Form 8-K
dated November 5, 1999.
Page 14 of 17
<PAGE> 15
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
Dated: November 12, 1999 OLY FUND II, LLC
By: /s/ Hal R. Hall
-------------------------------------------
Name: Hal R. Hall
-----------------------------------------
Title: Vice President
----------------------------------------
OLY REP II, L.P.
By: Oly Fund II, LLC,
its general partner
By: /s/ Hal R. Hall
-------------------------------------------
Name: Hal R. Hall
-----------------------------------------
Title: Vice President
----------------------------------------
OLY REAL ESTATE PARTNERS II, L.P.
By: Oly REP II, L.P.,
its general partner
By: Oly Fund II, LLC,
its general partner
By: /s/ Hal R. Hall
-------------------------------------------
Name: Hal R. Hall
-----------------------------------------
Title: Vice President
----------------------------------------
OLY HIGHTOP TWO GP, LLC
By: /s/ Hal R. Hall
-------------------------------------------
Name: Hal R. Hall
-----------------------------------------
Title: Vice President
----------------------------------------
Page 15 of 17
<PAGE> 16
OLY HIGHTOP, L.P.
By: Oly Hightop Two GP, LLC,
its general partner
By: /s/ Hal R. Hall
-------------------------------------------
Name: Hal R. Hall
-----------------------------------------
Title: Vice President
----------------------------------------
OLY HIGHTOP, LLC
By: Oly Hightop, L.P.,
its sole member
By: Oly Hightop Two GP, LLC,
its general partner
By: /s/ Hal R. Hall
-------------------------------------------
Name: Hal R. Hall
-----------------------------------------
Title: Vice President
----------------------------------------
Page 16 of 17
<PAGE> 17
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<S> <C>
10.1 Agreement and Plan of Merger dated September 24, 1999 among Parent,
Newco and the Company.(1)
10.2 Amended and Restated Agreement and Plan of Merger dated November 5,
1999 among Parent, Newco and the Company.(2)
10.3 Form of Voting Agreement among Parent, Newco, the Company and the
stockholder named therein.(1)
10.4 Letter Agreement dated September 24, 1999 between Oly LLC and
Westdale.+
99.1 Joint Filing Statement dated September 28, 1999, among Oly Fund II, Oly
REP, Oly Real Estate, Oly Two, Oly LP and Oly LLC.+
</TABLE>
+Previously filed.
(1) Incorporated by reference to the Company's Current Report on Form 8-K dated
September 24, 1999.
(2) Incorporated by reference to the Company's Current Report on Form 8-K dated
November 5, 1999.
Page 17 of 17
