DEFC14A: Definitive proxy statement, contested solicitations
Published on March 30, 2001
SCHEDULE 14A INFORMATION
(Rule 14A-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [X]
Check the appropriate box:
ENTERTAINMENT PROPERTIES TRUST
- --------------------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
BRT REALTY TRUST
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on the table below per Exchange Act Rule 14a-6(i)(1) and 0-11.
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transaction applies:
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(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):
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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[ ] 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:
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(2) Form, Schedule or Registration Statement No.:
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(3) Filing Party:
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(4) Date Filed:
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PROXY STATEMENT
OF
BRT REALTY TRUST
IN OPPOSITION TO THE BOARD OF TRUSTEES
OF
ENTERTAINMENT PROPERTIES TRUST
------------------------
2001 ANNUAL MEETING OF SHAREHOLDERS
INTRODUCTION
This Proxy Statement (the "Proxy Statement") and the accompanying form of
Proxy are being furnished by BRT Realty Trust, a Massachusetts real estate
investment trust ("BRT"), to the owners of common shares of beneficial interest,
par value $0.01 per share ("Common Shares"), of Entertainment Properties Trust
(the "Company"), on or about March 30, 2001, in connection with the solicitation
by BRT of proxies from the holders of Common Shares ("Shareholders") to be voted
at the Company's 2001 Annual Meeting of Shareholders (the "Annual Meeting"). The
Company has announced that the Annual Meeting will be at the Leawood Town Center
Theatre, Leawood, Kansas at 10:00 a.m., local time. Although the Company has not
yet announced the date of the Annual Meeting, we believe that it will be held on
Wednesday, May 23, 2001.
BRT is soliciting proxies from fellow Shareholders in order to elect
Fredric H. Gould (the "BRT Nominee") to the Board of Trustees of the Company
(the "Board") at the Annual Meeting. BRT is proposing Fredric H. Gould for the
Board because it believes a new trustee who
- has significant interests aligned with Shareholders,
- is experienced in the real estate and finance fields, and
- has no relationship with the Company's largest tenant
is needed to enhance shareholder value.
THE SOLICITATION IS BEING MADE BY BRT AND NOT ON BEHALF OF THE BOARD.
BRT is the largest Shareholder of the Company and has been a Shareholder
since 1999. As of the date of this Proxy Statement, BRT is the beneficial owner
of 1,355,600 Common Shares (or approximately 9.2% of the outstanding Common
Shares). BRT is a real estate investment trust located at 60 Cutter Mill Road,
Suite 303, Great Neck, New York 11021. Its principal business is originating and
holding real estate mortgage loans.
PLEASE IGNORE ANY PROXY CARD YOU RECEIVE FROM THE
COMPANY. PLEASE RETURN ONLY BRT'S WHITE PROXY CARD AND DO NOT
RETURN ANY PROXY CARD FROM THE COMPANY UNDER ANY CIRCUMSTANCES.
IF YOU RETURN BOTH PROXY CARDS THERE IS A RISK THAT YOUR SHARES
WILL NOT BE VOTED AS YOU DESIRE, BECAUSE ONLY THE LATEST DATED
PROXY CARD YOU SUBMIT COUNTS.
REASONS TO VOTE FOR THE BRT NOMINEE
BRT is asking Shareholders to elect Fredric H. Gould to replace the
incumbent trustee. As the Company's largest Shareholder, BRT has become
dissatisfied with the Board's actions and is seeking to elect a nominee to the
Board whose interests are more aligned with Shareholders to begin changing the
way the Board operates.
THE BOARD DECLINED PREVIOUS OFFERS BY BRT. Since May 2000, the Board has
declined our proposals to make additional investments in the Company.
- On May 31, 2000, we asked the Board to waive the 9.8% ownership limit in
the Company's Declaration of Trust to allow BRT to continue to invest in
the Company. We assured the Board that there would not be an adverse
impact on the Company's REIT status. The Board continues to reject our
request, which we believe is to the detriment of Shareholders. This
restriction prevents us from buying additional Common Shares in the open
market, which we believe has a negative impact on the price of Common
Shares by eliminating a potential buyer interested in a large number of
Common Shares.
- On September 27, 2000, we offered to make a direct $20 million investment
in the Company. We proposed to pay a 40% premium to the then current
market price. Again, the Board said "no" and would not discuss this offer
with us.
It is BRT's view that the Board's negative response to BRT's proposals
illustrates an unwillingness to provide a major Shareholder with greater input
into the Company's plans, while the Company's stock continues to trade at what
BRT believes are disappointing values.
FREDRIC H. GOULD HAS THE EXPERIENCE WE BELIEVE YOUR COMPANY NEEDS. Fredric
H. Gould is an individual of integrity who has over 40 years of experience in
the real estate industry. As BRT's Chairman and CEO and as a result of his other
activities in the real estate industry, we believe he is a highly accomplished
executive who is well-experienced at asset management, investment
decision-making and capital markets activities. We believe Mr. Gould is capable
of thoroughly understanding and directing our Company's business. By voting the
enclosed WHITE Proxy Card for Fredric H. Gould, Shareholders can demonstrate to
the other members of the Board their support for a nominee with more real estate
experience than management's nominee.
FREDRIC H. GOULD WILL WORK TO PROTECT SHAREHOLDER VALUE. BRT, as the
Company's largest Shareholder, believes that a new perspective is needed on the
Board to reinvigorate the process of enhancing shareholder value and to ensure
that any strategic transactions are undertaken in the best interest of all
Shareholders. Fredric H. Gould would be the designee of the Company's largest
Shareholder, whose interests are strongly aligned with Shareholders because of
its investment in the Company currently valued at approximately $19.3 million.
Although Mr. Gould does not currently have a specific plan, if elected, he
intends to embark on a strategy designed to focus management on maximizing the
benefits of the current business.
If elected, Fredric H. Gould, will not have the power by himself to cause
the Board to act in any particular way. However, subject to his fiduciary duties
to the Company and Shareholders under applicable law, Fredric H. Gould will
attempt to influence his fellow directors to act in a manner that he believes is
in the best interests of all Shareholders.
EVEN AFTER YOU HAVE SUBMITTED YOUR PROXY, YOU MAY CHANGE
YOUR VOTE AT ANY TIME BEFORE THE MEETING BY SENDING A DULY
EXECUTED PROXY WITH A LATER DATE TO GEORGESON AT THE
ADDRESS ON THE BACK COVER.
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NOMINEE FOR TRUSTEE
GENERAL
The Bylaws of the Company provide that the exact number of trustees shall
be fixed by resolution of the Board. According to public information, the Board
currently consists of five members and is divided into three classes having
three-year terms that expire in successive years. The term of office of the
trustee in Class I expires at the Annual Meeting. BRT has nominated Frederic H.
Gould to serve as Class I trustee for a term of three years and until his
successor is duly elected and qualified. Mr. Gould has consented to serve as a
trustee if elected.
THE BRT NOMINEE
The information below concerning age and principal occupation has been
furnished by Fredric H. Gould.
- ---------------
(1) Fredric H. Gould beneficially owns an aggregate of 1,390,337 Common Shares
of the Company. Mr. Gould has sole voting and sole dispositive power over
2,112 Common Shares, which includes 1,850 Common Shares owned by him,
individually, and 262 Common Shares owned by the Fredric H. Gould Spousal
IRA. Fredric H. Gould also may be deemed to have shared voting and shared
dispositive power over 1,388,225 Common Shares in his capacity as Chairman
of the Board of Trustees and Chief Executive Officer of BRT (which
beneficially owns 1,355,600 Common Shares), a General Partner of Gould
Investors, L.P. (which beneficially owns 30,000 Common Shares) and Chairman
of the Board and Chief Executive Officer of One Liberty Properties, Inc.
(which beneficially owns 2,625 Common Shares). Gould Investors is a member
of SASS/Gould Real Estate Securities LLC ("SASS/Gould") and an affiliate of
Gould Investors is the sub-advisor to SASS/Gould. In the aggregate, BRT,
Gould Investors, One Liberty, SASS/Gould (which beneficially owns 28,500
Common Shares), Fredric H. Gould, individually and in his Spousal IRA (which
beneficially owns 262 Common Shares), Helaine Gould (who beneficially owns
1,000 Common Shares), Jeffrey Gould (who beneficially owns 300 Common
Shares), Matthew Gould (who beneficially owns 350 Common Shares) and Israel
Rosenzweig (who beneficially owns 5,300 Common Shares), who are acting as a
group, own 1,397,287 Common Shares. The address of each of the foregoing is
60 Cutter Mill Road, Great Neck, NY 11021, other than SASS/Gould (which is
1185 Avenue of the Americas) and Helaine Gould (which is 5 Overlook Circle,
Manhasset, NY 11030).
Fredric H. Gould has entered into an Indemnification Agreement with BRT
pursuant to which: (i) he has agreed to be named as a nominee for election as a
trustee of the Company at the Annual Meeting; (ii) he (unless previously
approved by BRT in writing) has agreed that he will not serve as a nominee for
election as a trustee of the Company, or to otherwise stand for election as or
become a trustee of the Company, as a nominee proposed by any other party
(including the Board); and (iii) BRT has agreed to indemnify Fredric H. Gould
from and against any losses incurred by Fredric H. Gould resulting from,
relating to or arising out of the nomination of Fredric H. Gould for election as
a trustee of the Company at the Annual Meeting.
BRT RECOMMENDS THAT SHAREHOLDERS VOTE IN FAVOR OF THE BRT NOMINEE LISTED ABOVE
AND NOT RETURN THE COMPANY'S PROXY TO THE COMPANY AND NOT VOTE IN FAVOR OF THE
NOMINEE OF THE COMPANY.
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QUESTIONS CONCERNING THIS PROXY STATEMENT OR THE ACCOMPANYING
WHITE PROXY CARD SHOULD BE DIRECTED TO:
GEORGESON SHAREHOLDER COMMUNICATIONS INC.
17 STATE STREET, 10TH FLOOR
NEW YORK, NEW YORK 10004
CALL TOLL FREE
(800) 223-2064
VOTING
Based on public information, the Board has fixed the close of business on
March 26, 2001 as the record date for the determination of the holders of Common
Shares entitled to notice of and to vote at the Annual Meeting. Based on the
latest available public information, there were 14,722,762 Common Shares
outstanding on October 1, 2000. On all matters, including the election of the
trustee, each holder of Common Shares will have one vote for each share held.
The attendance at the Annual Meeting, in person or by proxy, of the holders
of a majority of the outstanding Common Shares entitled to vote at the Annual
Meeting is necessary to constitute a quorum. "Broker non-votes" will be counted
for purposes of determining whether there is a quorum. Similarly, a proxy marked
"abstain" with respect to any matter will not be voted but will be counted as
present. The affirmative vote of the holders of a plurality of the votes cast at
the Annual Meeting is required for the election of the trustee. A properly
signed Proxy marked "withhold authority" with respect to the election of the
trustee will not be voted for the trustee so indicated, but will be counted to
determine whether there is a quorum. The affirmative vote of a majority of the
votes cast at the Annual Meeting will be necessary to ratify the appointment of
Ernst & Young LLP as the Company's independent accountants for 2001. If any
other matter properly comes before the Annual Meeting, its resolution will be
determined by the affirmative vote of the holders of a majority of votes cast at
the meeting. Since the election of the trustee and the ratification of the
appointment of independent accountants will be determined by votes cast rather
than by a percentage of the shares present, "broker non-votes" and abstentions
will not affect the election of the trustee or the ratification of independent
accountants.
If the enclosed form of Proxy is executed and returned, it may nevertheless
be revoked by the person giving it any time before the vote at the Annual
Meeting either by filing with the Secretary of the Company a written notice of
revocation or a proxy bearing a later date than the most recently submitted
proxy or by attending the Annual Meeting and voting in person. The execution of
a proxy will not affect a Shareholder's right to attend the Annual Meeting and
vote in person, but attendance at the Annual Meeting will not, by itself, revoke
a proxy.
Unless contrary instructions are indicated on the enclosed White Proxy
Card, all Common Shares represented by valid Proxies received pursuant to this
solicitation (which have not been revoked as described above) will be voted (a)
FOR the election of Fredric H. Gould, (b) FOR the ratification of the selection
of Ernst & Young LLP as the Company's independent accountants for 2001 and (c)
at the discretion of the Proxy holder(s), on such other business as may properly
come before the Annual Meeting, including any adjournment(s) or postponements(s)
thereof.
IF YOU WISH TO VOTE FOR FREDRIC H. GOULD, YOU MUST EXECUTE AND RETURN THE
ENCLOSED WHITE PROXY CARD AND SHOULD NOT EXECUTE OR RETURN THE COMPANY'S PROXY
CARD.
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EVEN AFTER YOU HAVE SUBMITTED YOUR PROXY, YOU MAY CHANGE YOUR VOTE AT ANY
TIME BEFORE THE MEETING BY SENDING A DULY EXECUTED PROXY WITH A LATER DATE TO
GEORGESON AT THE ADDRESS ON THE BACK COVER.
IF YOUR COMMON SHARES ARE HELD IN THE NAME OF A BROKERAGE FIRM, BANK OR
NOMINEE ON THE RECORD DATE, ONLY IT CAN VOTE YOUR SHARES AND ONLY UPON RECEIPT
OF YOUR SPECIFIC INSTRUCTIONS. PLEASE CONTACT THE PERSON RESPONSIBLE FOR YOUR
ACCOUNT AND GIVE INSTRUCTIONS FOR YOUR SHARES TO BE VOTED ON THE WHITE PROXY
CARD FOR FREDRIC H. GOULD.
YOUR VOTE AT THIS YEAR'S ANNUAL MEETING IS ESPECIALLY IMPORTANT. PLEASE SIGN AND
DATE THE ENCLOSED WHITE PROXY CARD AND RETURN IT IN THE ENCLOSED POSTAGE-PAID
ENVELOPE PROMPTLY.
INFORMATION CONCERNING PERSONS WHO MAY SOLICIT PROXIES
Under the applicable regulations of the Securities and Exchange Commission,
each of BRT and Fredric H. Gould is deemed to be a "participant" in BRT's
solicitation of proxies. The following table sets forth the name, business
address and principal occupation of Fredric H. Gould and any other person who
may solicit proxies from Shareholders of the Company on behalf of BRT (each a
"Participant").
FREDRIC H. GOULD
Chairman of the Board and
Chief Executive Officer
BRT Realty Trust
60 Cutter Mill Road
Great Neck, NY 11021
SIMEON BRINBERG
Senior Vice President and Secretary
BRT Realty Trust
60 Cutter Mill Road
Great Neck, NY 11021
MARK H. LUNDY
Vice President
BRT Realty Trust
60 Cutter Mill Road
Great Neck, NY 11021
MARK O. DECKER
Ferris, Baker Watts, Incorporated
7601 Lewinsville Road
Suite 205
McLean, VA 22102
MARK O. DECKER, JR.
Ferris, Baker Watts, Incorporated
7601 Lewinsville Road
Suite 205
McLean, VA 22102
CHRISTOPHER LUCAS
Ferris, Baker Watts, Incorporated
7601 Lewinsville Road
Suite 205
McLean, VA 22102
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The following is a summary of all transactions in Company securities by the
Participant over the last two years. Unless otherwise indicated, no Participant
other than BRT has purchased or sold Common Shares of the Company within the
past two years. Unless otherwise indicated, all transactions effected by the
Participants were purchases.
BRT TRANSACTIONS
- ---------------
(1) These transactions were effected by SASS/Gould.
Except as described in this Proxy Statement, neither the Participant nor
any of his respective affiliates or associates (together, the "Participant
Affiliates"), (i) directly or indirectly beneficially owns any securities of the
Company or of any subsidiary of the Company or (ii) has had any relationship
with the Company in any capacity other than as a Shareholder. Furthermore,
except as described in this Proxy Statement, neither the Participant nor any
Participant Affiliate is a party to any transaction or series of transactions
since January 1, 2000, or has knowledge of any currently proposed transaction or
series of transactions, (i) to which the Company or any of its subsidiaries was
or is to be a party, (ii) in which the amount involved exceeds $60,000, and
(iii) in which the Participant or Participant Affiliate had or will have, a
direct or indirect material interest.
Except as described in this Proxy Statement, neither the Participant nor
any Participant Affiliates has entered into any agreement or understanding with
any person respecting any (i) future employment by the Company or its affiliates
or (ii) any transactions to which the Company or any of its affiliates will or
may be a party. Except as described in this Proxy Statement, there are no
contracts, arrangements or understandings by
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the Participant or Participant Affiliates within the past year with any person
with respect to any capital stock of the Company.
COST AND METHOD OF SOLICITATION
BRT will bear the cost of this solicitation. While no precise estimate of
this cost can be made at the present time, BRT currently estimates that it will
spend a total of approximately $300,000 for its solicitation of proxies,
including expenditures for attorneys, solicitors and advertising, printing,
transportation and related expenses. As of March 27, 2001, BRT has incurred
proxy solicitation expenses of approximately $50,000. BRT expects to seek
reimbursement from the Company for its expenses in connection with this
solicitation. In addition to soliciting proxies by mail, proxies may be
solicited in person or by telephone, telecopy, e-mail or the Internet.
BRT will also reimburse brokers, fiduciaries, custodians and other
nominees, as well as persons holding stock for others who have the right to give
voting instructions, for out-of-pocket expenses incurred in forwarding this
Proxy Statement and related materials to, and obtaining instructions or
authorizations relating to such materials from, beneficial owners of Company
capital stock. BRT will pay for the cost of these solicitations, but these
individuals will receive no additional compensation for these solicitation
services. BRT has retained Ferris, Baker Watts, Incorporated ("Ferris") as its
independent financial advisor in connection with the solicitation of proxies and
revocations. For such services, BRT has paid Ferris $25,000 and will pay an
additional $25,000 upon election of Fredric H. Gould, plus reasonable
out-of-pocket expenses. BRT has also agreed to indemnify Ferris against certain
liabilities and expenses. BRT has retained the proxy solicitation firm of
Georgeson Shareholder Communications Inc. ("Georgeson") at estimated fees of not
more than $40,000 in the aggregate, plus reasonable out-of-pocket expenses, to
participate in the solicitation of proxies and revocations. BRT also has agreed
to indemnify Georgeson against certain liabilities and expenses. BRT estimates
that approximately 50 employees of Georgeson will be involved in the
solicitation of proxies on behalf of BRT.
ADDITIONAL INFORMATION
Certain information regarding Company Common Shares held by the Company's
Trustees, nominees, management and 5% stockholders is contained in the Company's
Proxy Statement and is incorporated herein by reference. Information concerning
the date by which proposals of security holders intended to be presented at the
next annual meeting of stockholders of the Company must be received by the
Company for inclusion in the Company's proxy statement and form of proxy for
that meeting is also contained in the Company's Proxy Statement and is
incorporated herein by reference.
BRT assumes no responsibility for the accuracy or completeness of any
information contained herein which is based on, or incorporated by reference to,
the Company's Proxy Statement.
BRT REALTY TRUST
March 30, 2001
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IMPORTANT
PLEASE REVIEW THIS DOCUMENT AND THE ENCLOSED MATERIALS CAREFULLY. YOUR VOTE IS
VERY IMPORTANT, NO MATTER HOW MANY OR HOW FEW SHARES YOU OWN.
1. If your shares are registered in your own name, please sign, date and mail
the enclosed WHITE Proxy Card to Georgeson Shareholder Communications Inc. in
the postage-paid envelope provided today.
2. If you have previously signed and returned a proxy card to Entertainment
Properties Trust, you have every right to change your vote. Only your latest
dated card will count. You may revoke any proxy card already sent to
Entertainment Properties Trust by signing, dating and mailing the enclosed
WHITE Proxy Card in the postage-paid envelope provided. Any proxy may be
revoked at any time prior to the 2001 Annual Meeting by sending a new proxy
card to Georgeson Shareholder Communications Inc. or the Secretary of
Entertainment Properties Trust, or by voting in person at the 2001 Annual
Meeting.
3. If your shares are held in the name of a brokerage firm, bank nominee or
other institution, only it can sign a WHITE Proxy Card with respect to your
shares and only after receiving your specific instructions. Accordingly,
please sign, date and mail the enclosed WHITE Proxy Card in the postage-paid
envelope provided, and to ensure that your shares are voted, you should also
contact the person responsible for your account and give instructions for a
WHITE Proxy Card to be issued representing your shares.
4. After signing the enclosed WHITE Proxy Card do not sign or return the
Company's proxy card unless you intend to change your vote, because only your
latest dated proxy card will be counted.
If you have any questions about giving your proxy or require assistance, please
call:
[GEORGESON SHAREHOLDER COMMUNICATIONS INC. LOGO]
17 State Street
New York, NY 10004
Banks and Brokers (212) 440-9800
Call Toll-Free: 1-800-223-2064
IN OPPOSITION TO THE BOARD OF TRUSTEES OF
ENTERTAINMENT PROPERTIES TRUST
PROXY FOR THE 2001 ANNUAL MEETING OF SHAREHOLDERS
THIS PROXY IS SOLICITED ON BEHALF OF BRT REALTY TRUST
The undersigned hereby appoints Fredric H. Gould and Simeon Brinberg,
or either of them proxies for the undersigned with full power of substitution,
to vote all shares of beneficial interest of Entertainment Properties Trust (the
"Company") which the undersigned is entitled to vote at the Company's 2001
Annual Meeting of Shareholders, and any postponements or adjournments thereof
(the "Meeting"), hereby revoking all prior proxies, on the matters set forth
below as follows:
BRT REALTY RECOMMENDS A VOTE FOR PROPOSAL 1 AND 2.
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED.
IF A CHOICE IS NOT SPECIFIED, THE PROXY WILL BE VOTED FOR THE NOMINEE LISTED
BELOW AND FOR THE RATIFICATION OF ERNST & YOUNG LLP AS INDEPENDENT ACCOUNTANTS
FOR THE COMPANY FOR 2001.
[X] Please mark your votes as in this example.
1. Election of Trustee: Fredric H. Gould
FOR the nominee listed above WITHHOLD AUTHORITY to vote for the
nominee listed above (If you do not
check this box, your shares will be
voted in favor of the nominee.)
[_] [_]
2. Proposal to Ratify Appointment of Ernst & Young LLP as Independent
Accountants for 2001.
FOR AGAINST ABSTAIN
[_] [_] [_]
3. To act upon any other matters that may properly come before the meeting.
PLEASE MARK YOUR VOTES(ON REVERSE SIDE), SIGN, DATE AND RETURN THE PROXY CARD
PROMPTLY USING THE ENCLOSED POSTAGE-PAID ENVELOPE.
Please sign exactly as your name appears on this Proxy. When shares are
held by joint tenants, both should sign. When signing as attorney, executor,
administrator, trustee or guardian, please give your full title. If a
corporation, please sign in full corporate name by President or other authorized
officer. If a partnership, please sign in partnership name by the authorized
person.
Date: _______________, 2001 ______________________________
Signature of Shareholder
_______________________________
Signature of Shareholder