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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR SECTION 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
PRICE ENTERPRISES, INC.
(NAME OF SUBJECT COMPANY (ISSUER) AND FILING PERSON (OFFEROR))
COMMON STOCK, $0.0001 PAR VALUE
(TITLE OF CLASS OF SECURITIES)
741444103
741444202
(CUSIP NUMBERS OF CLASS OF SECURITIES)
GARY B. SABIN
CHIEF EXECUTIVE OFFICER
PRICE ENTERPRISES, INC.
17140 BERNARDO CENTER DRIVE, SUITE 300
SAN DIEGO, CALIFORNIA 92128
(858) 675-9400
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND
COMMUNICATIONS ON BEHALF OF THE FILING PERSON(S))
COPIES TO:
SCOTT N. WOLFE, ESQ. SIMON M. LORNE, ESQ.
CRAIG M. GARNER, ESQ. MARY ANN LYMAN, ESQ.
LATHAM & WATKINS MUNGER TOLLES & OLSON LLP
12636 HIGH BLUFF DRIVE, SUITE 300 355 SOUTH GRAND AVENUE, 35TH FLOOR
SAN DIEGO, CALIFORNIA 92130 LOS ANGELES, CALIFORNIA 90071
(858) 523-5400 (213) 683-9100
CALCULATION OF FILING FEE
TRANSACTION VALUATION* AMOUNT OF FILING FEE
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$8,083,019 $1,617
* Determined pursuant to Rule 0-11(b)(1) of the Securities Exchange Act of
1934, assuming that 1,154,717 shares of common stock are purchased at a
price of $7.00 per share.
[ ] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously
paid. Identify the previous filing by registration statement number, or
the form or schedule and the date of its filing.
Amount Previously Paid: Not applicable. Filing party: Not applicable.
Form or Registration No.: Not applicable. Date Filed: Not applicable.
[ ] Check box if filing relates solely to preliminary communications made
before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
[ ] third-party tender offer subject [ ] going private transaction subject to
to Rule 14d-1 Rule 13e-3
[x] issuer tender offer subject to [ ] amendment to Schedule 13D under Rule
Rule 13e-4 13d-2
Check the following box if the filing is a final amendment reporting the results
of the tender offer [_]
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This Tender Offer Statement on Schedule TO relates to the offer by Price
Enterprises, Inc., a Maryland corporation ("Enterprises"), to purchase all
outstanding shares of its common stock, par value $0.0001 per share (the
"Enterprises Common Stock"). Enterprises is offering to purchase up to
1,154,717 shares, which represent all outstanding shares of Enterprises
Common Stock (other than those shares currently held by Excel Legacy
Corporation, a Delaware corporation ("Legacy"), and those shares issued in
the merger of Enterprises and Legacy), at a price of $7.00 per share, net to
the seller in cash, without interest. Enterprises' offer is being made upon
the terms and subject to the conditions set forth in the Offer to Purchase
dated August 10, 2001 (the "Offer to Purchase") and in the related letter of
transmittal (which, as amended or supplemented from time to time, together
constitute the "Offer"). This Tender Offer Statement on Schedule TO is
intended to satisfy the reporting requirements of Rule 13e-4(c)(2) of the
Securities Exchange Act of 1934, as amended.
ITEM 1. SUMMARY TERM SHEET
The information set forth in "Summary Term Sheet" of the Offer to Purchase
is incorporated herein by reference.
ITEM 2. SUBJECT COMPANY INFORMATION
The information set forth in "Introduction," "The Offer - Section 7 - Price
Range of Shares; Dividends," "The Offer - Section 10 - Purpose of the Offer and
Related Transactions," "The Offer - Section 12 - Certain Information About
Enterprises" and "The Offer - Section 18 - Material Federal Income Tax
Consequences Related to Price Legacy" of the Offer to Purchase is incorporated
herein by reference.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON.
Enterprises is the filing person. The information set forth in "The Offer -
Section 12 - Certain Information About Enterprises" and "The Offer - Section 14
- Interests of Directors and Officers; Transactions and Arrangements Concerning
the Shares" of the Offer to Purchase is incorporated herein by reference. Unless
otherwise indicated, the current business address of each filing person and
person listed under General Instruction C to Schedule TO is 17140 Bernardo
Center Drive, Suite 300, San Diego, California 92128.
In November 1999, Legacy completed its exchange offer for the Enterprises
Common Stock. In the Legacy exchange offer, Legacy acquired approximately 91.3%
of the Enterprises Common Stock, which represents approximately 77.3% of the
voting power of Enterprises. At the close of the Legacy exchange offer, Legacy
took over daily management of Enterprises, including property management and
finance.
Legacy's executive offices are located at 17140 Bernardo Center Drive,
Suite 300, San Diego, California 92128 and its telephone number is (858)
675-9400. Legacy also has an office in West Bountiful, Utah, which coordinates
its acquisitions and dispositions, and property management offices in Fountain
Valley, California, San Diego, California, and Fairfax, Virginia.
None of Legacy's directors or executive officers beneficially own any
shares of Enterprises Common Stock. However, under General Instruction C to
Schedule TO, Legacy's directors and executive officers may be deemed to
beneficially own the shares of Enterprises Common Stock held by Legacy.
The table below indicates the name, position with Legacy and ages of the
directors, executive officers and other key employees of Legacy as of August 3,
2001.
NAME POSITION WITH LEGACY AGE
---- -------------------- ---
Gary B. Sabin................. Chairman, President and Chief Executive Officer 47
Richard B. Muir............... Director, Executive Vice President, Chief Operating 45
Officer and Secretary
Jack McGrory.................. Director 51
Richard J. Nordlund........... Director 56
Robert E. Parsons, Jr......... Director 45
Robert S. Talbott............. Director 47
John H. Wilmot................ Director 58
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Graham R. Bullick, Ph.D....... Senior Vice President--Capital Markets 50
Mark T. Burton................ Senior Vice President--Acquisitions 40
S. Eric Ottesen............... Senior Vice President, General Counsel and Assistant Secretary 45
James Y. Nakagawa............. Chief Financial Officer 35
William J. Stone.............. Senior Vice President--Retail Development 57
John A. Visconsi.............. Senior Vice President--Leasing/Asset Management 56
For information on the above named directors, officers and other key
employees, excluding Messrs. Nordlund, Parsons, Talbott and Wilmot, see
"Information about Enterprises--Enterprises' Management" in the Offer to
Purchase. For information on the other above named directors, officers and other
key employees, see below.
RICHARD J. NORDLUND has served as a director of Legacy since Legacy's
formation and as President of RJN Management, a real estate firm in Santa
Barbara, California, since 1985. From 1978 through 1988, Mr. Nordlund served as
President of First Corporate Services, an investment banking firm in
Minneapolis, Minnesota. He is also associated with Miller & Schroeder Financial,
Inc. Mr. Nordlund's business experience includes 28 years in the investment
banking and mortgage banking industries.
ROBERT E. PARSONS, JR. has served as a director of Legacy since Legacy's
formation. He served as a director of Excel Realty Trust and then New Plan Excel
from January 1989 to April 1999. Mr. Parsons is presently Executive Vice
President and Chief Financial Officer of Host Marriott Corporation, a company he
joined in 1981. He also serves as a director and officer of several Host
Marriott subsidiaries, and as a director of Merrill Financial Corporation, a
privately-held real estate company.
ROBERT S. TALBOTT has served as a director of Legacy since Legacy's
formation. Mr. Talbott is an attorney and has served as President of Holrob
Investments, LLC, a company engaged in the acquisition, development, management
and leasing of real property, since 1997. From 1985 through 1997, Mr. Talbott
served as Executive Vice President and President of Horne Properties, Inc.,
where he was involved in the acquisition and development of over 100 shopping
centers. He also serves as a member of the Public Building Authority of
Knoxville, Tennessee, as a member of the Knoxville Industrial Development Board,
as a director of the Knoxville Chamber of Commerce and as Chairman of the St.
Mary's Foundation.
JOHN H. WILMOT has served as a director of Legacy since Legacy's formation.
He served as a director of Excel Realty Trust and then New Plan Excel from 1989
to April 1999. Mr. Wilmot, individually and through his wholly-owned
corporations, develops and manages real property, including office buildings,
shopping centers and residential projects primarily in the Phoenix/Scottsdale
area, and has been active in that business since 1976.
ITEM. 4. TERMS OF THE TRANSACTION.
The information set forth in "Introduction," "The Offer - Section 1 - Terms
of the Offer; Expiration Date," "The Offer - Section 2 - Acceptance for Payment
and Payment," "The Offer - Section 3 - Procedures for Tendering Enterprises
Common Stock," "The Offer - Section 4 - Withdrawal Rights," "The Offer - Section
6 - Extension of the Offer; Termination; Amendment," "The Offer - Section 10 -
Purpose of the Offer and Related Transactions," "The Offer - Section 14 -
Interests of Directors and Officers; Transactions and Arrangements Concerning
the Shares," "The Offer - Section 15 - Effects of the Offer on the Market for
Shares; Registration Under the Exchange Act," "The Offer - Section 17 - Material
United States Federal Income Tax Consequences Related to the Offer," "The Offer
- Section 18 - Material Federal Income Tax Consequences Related to Price Legacy"
and "The Offer - Section 20 - Miscellaneous" of the Offer to Purchase is
incorporated herein by reference.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
The information set forth in "The Offer - Section 9 - Background of the
Offer," "The Offer - Section 10 - Purpose of the Offer and Related
Transactions," "The Offer - Section 12 - Certain Information About
Enterprises" and "The Offer - Section 14 - Interests of Directors and
Officers; Transactions and Arrangements Concerning the Shares" of the Offer
to Purchase is incorporated herein by reference.
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ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
The information set forth in "The Offer - Section 9 - Background of the
Offer," "The Offer - Section 10 - Purpose of the Offer and Related Transactions"
and "The Offer - Section 15 - Effects of the Offer on the Market for Shares;
Registration Under the Exchange Act" of the Offer to Purchase is incorporated
herein by reference.
ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The information set forth in "The Offer - Section 8 - Source and Amount of
Funds" and "The Offer - Section 19 - Fees and Expenses" of the Offer to Purchase
is incorporated herein by reference.
ITEM 8. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
The information set forth in "The Offer - Section 12 - Certain Information
About Enterprises" and "The Offer - Section 14 - Interests of Directors and
Officers; Transactions and Arrangements Concerning the Shares" of the Offer to
Purchase is incorporated herein by reference.
ITEM 9. PERSONS/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED.
Neither Enterprises nor any person acting on its behalf has or currently
intends to employ, retain, or compensate any person to make solicitations or
recommendations to the holders of Enterprises Common Stock with respect to
the Offer.
ITEM 10. FINANCIAL STATEMENTS
The information set forth in "The Offer - Section 13 - Unaudited Pro Forma
Operating and Financial Information" of the Offer to Purchase is incorporated
herein by reference.
ITEM 11. ADDITIONAL INFORMATION
The information set forth in "The Offer - Section 15 - Effects of the Offer
on the Market for Shares; Registration Under the Exchange Act," "The Offer -
Section 16 - Certain Legal Matters; Regulatory Approvals" and the entire Offer
to Purchase is incorporated herein by reference.
ITEM 12. EXHIBITS.
(a)(1)(i) Offer to Purchase.
(a)(1)(ii) Letter of Transmittal.
(a)(1)(iii) Notice of Guaranteed Delivery.
(a)(1)(iv) Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees.
(a)(1)(v) Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.
(a)(1)(vi) Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9.
(a)(2) Not applicable.
(a)(3) Not applicable.
(a)(4) Not applicable.
(a)(5)(i) Summary Advertisement, dated August 10, 2001.
(a)(5)(ii) Press Release, dated August 10, 2001.
(a)(5)(iii) Letter to Stockholders from Gary B. Sabin, President and Chief
Executive Officer of Enterprises, dated August 10, 2001.
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(b) Not applicable.
(c) Opinion of American Appraisal Associates, Inc. (included as an
exhibit to the Offer to Purchase filed herewith as Exhibit
(a)(1)(i)).
(d)(1) Agreement and Plan of Merger, dated as of March 21, 2001, by
and among Enterprises, PEI Merger Sub, Inc. and Legacy.*
(d)(2) Securities Purchase Agreement, dated as of March 21, 2001, by
and among Enterprises and Warburg, Pincus Equity Partners,
L.P., Warburg, Pincus Netherlands Equity Partners I, C.V.,
Warburg, Pincus Netherlands Equity Partners II, C.V. and
Warburg, Pincus Netherlands Equity Partners III, C.V.*
(d)(3) Form of Articles of Amendment and Restatement of Enterprises.*
(d)(4) Form of Stockholder Agreement, dated as of March 21, 2001,
between Enterprises and certain stockholders of Legacy.*
(d)(5) Voting Agreement, dated as of March 21, 2001, by and among
Warburg, Pincus Equity Partners L.P., Enterprises and Legacy.*
(d)(6) Form of Registration Rights Agreement, by and among Warburg,
Pincus Equity Partners, L.P., Warburg, Pincus Netherlands
Equity Partners I, C.V., Warburg, Pincus Netherlands Equity
Partners II, C.V., Warburg, Pincus Netherlands Equity Partners
III, C.V. and Enterprises.*
(d)(7) Form of Common Stock Purchase Warrant of Enterprises.*
(d)(8) Conversion Agreement, dated as of April 12, 2001, by and among
Enterprises, The Sol and Helen Price Trust, Warburg, Pincus
Equity Partners, L.P. and Legacy.**
(d)(9) Indenture, dated as of November 5, 1999, between Legacy and
Wells Fargo Bank Minnesota, N.A., for 9.0% Convertible
Redeemable Subordinated Secured Debentures due 2004,
including form of Debenture and form of Pledge Agreement.***
(d)(10) Indenture, dated as of November 5, 1999, between Legacy and
Wells Fargo Bank Minnesota, N.A., for 10.0% Senior
Redeemable Secured Notes due 2004, including form of Note
and form of Pledge Agreement.***
(d)(11) Note Purchase Agreement, dated as of October 6, 1999,
between Legacy and The Sol and Helen Price Trust, including
form of Secured Promissory Note and form of Pledge
Agreement.***
(g) Not applicable.
(h) Not applicable.
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* Incorporated by reference to Enterprises' Current Report on Form 8-K filed
with the SEC on March 23, 2001.
** Incorporated by reference to Enterprises' Quarterly Report on Form 10-Q/A
filed with the SEC on May 25, 2001.
*** Incorporated by reference to Legacy's Current Report on Form 8-K (File
No. 0-23503) filed with the SEC on November 12, 1999.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: August 10, 2001 PRICE ENTERPRISES, INC.
By: /s/ Gary B. Sabin
------------------------------------
Name: Gary B. Sabin
Title: President and Chief Executive
Officer
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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(a)(1)(i) Offer to Purchase.
(a)(1)(ii) Letter of Transmittal.
(a)(1)(iii) Notice of Guaranteed Delivery.
(a)(1)(iv) Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees.
(a)(1)(v) Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.
(a)(1)(vi) Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9.
(a)(2) Not applicable.
(a)(3) Not applicable.
(a)(4) Not applicable.
(a)(5)(i) Summary Advertisement dated August 10, 2001.
(a)(5)(ii) Press Release dated August 10, 2001.
(a)(5)(iii) Letter to Stockholders from Gary B. Sabin, President and Chief
Executive Officer of Enterprises, dated August 10, 2001.
(b) Not applicable.
(c) Opinion of American Appraisal Associates, Inc. (included as an
exhibit to the Offer to Purchase filed herewith as Exhibit
(a)(1)(i)).
(d)(1) Agreement and Plan of Merger, dated as of March 21, 2001, by
and among Enterprises, PEI Merger Sub, Inc. and Legacy.*
(d)(2) Securities Purchase Agreement, dated as of March 21, 2001, by
and among Enterprises and Warburg, Pincus Equity Partners,
L.P., Warburg, Pincus Netherlands Equity Partners I, C.V.,
Warburg, Pincus Netherlands Equity Partners II, C.V. and
Warburg, Pincus Netherlands Equity Partners III, C.V.*
(d)(3) Form of Articles of Amendment and Restatement of Enterprises.*
(d)(4) Form of Stockholder Agreement, dated as of March 21,
2001, between Enterprises and certain stockholders of
Legacy.*
(d)(5) Voting Agreement, dated as of March 21, 2001, by and among
Warburg, Pincus Equity Partners L.P., Enterprises and Legacy.*
(d)(6) Form of Registration Rights Agreement, by and among Warburg,
Pincus Equity Partners, L.P., Warburg, Pincus Netherlands
Equity Partners I, C.V., Warburg, Pincus Netherlands Equity
Partners II, C.V., Warburg, Pincus Netherlands Equity Partners
III, C.V. and Enterprises.*
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(d)(7) Form of Common Stock Purchase Warrant of Enterprises.*
(d)(8) Conversion Agreement, dated as of April 12, 2001, by and among
Enterprises, The Sol and Helen Price Trust, Warburg, Pincus
Equity Partners, L.P. and Legacy.**
(d)(9) Indenture, dated as of November 5, 1999, between Legacy and
Wells Fargo Bank Minnesota, N.A., for 9.0% Convertible
Redeemable Subordinated Secured Debentures due 2004,
including form of Debenture and form of Pledge Agreement.***
(d)(10) Indenture, dated as of November 5, 1999, between Legacy and
Wells Fargo Bank Minnesota, N.A., for 10.0% Senior
Redeemable Secured Notes due 2004, including form of Note
and form of Pledge Agreement.***
(d)(11) Note Purchase Agreement, dated as of October 6, 1999,
between Legacy and The Sol and Helen Price Trust, including
form of Secured Promissory Note and form of Pledge
Agreement.***
(g) Not applicable.
(h) Not applicable.
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* Incorporated by reference to Enterprises' Current Report on Form 8-K filed
with the SEC on March 23, 2001.
** Incorporated by reference to Enterprises' Quarterly Report on Form 10-Q/A
filed with the SEC on May 25, 2001.
*** Incorporated by reference to Legacy's Current Report of Form 8-K (File
No. 0-23503) filed with the SEC on November 12, 1999.
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