UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________
SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT UNDER SECTION 14(d)(4)
OF THE SECURITIES EXCHANGE ACT OF 1934
FSP 303 East Wacker Drive Corp.
(Name of Subject Company)
FSP 303 East Wacker Drive Corp.
(Names of Persons Filing Statement)
Preferred Stock, $0.01 par value per share
(Title of Class of Securities)
None
(CUSIP Number of Class of Securities)
George J. Carter
President
FSP 303 East Wacker Drive Corp.
401 Edgewater Place, Suite 200
Wakefield, MA 01880-6210
(781) 557-1300
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications on Behalf of the Persons Filing Statement)
With a Copy to:
Kenneth A. Hoxsie, Esq.
James R. Burke, Esq.
Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
(617) 526-6000
o Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
Item 1. Subject Company Information.
Name and Address
The name of the subject company is FSP 303 East Wacker Drive Corp., a Delaware corporation (“303 East Wacker”). The address of the principal executive offices of 303 East Wacker is 401 Edgewater Place, Suite 200, Wakefield, MA 01880-6210, and 303 East Wacker’s telephone number is (781) 557-1300.
Securities
This Solicitation/Recommendation Statement on Schedule 14D-9 (together with the exhibits, this “Schedule”) relates to the preferred stock, $0.01 par value per share, of 303 East Wacker (the “Preferred Stock”). As of February 18, 2009, there were 2,210 shares of Preferred Stock issued and outstanding.
Item 2. Identity and Background of Filing Person.
Name and Address
303 East Wacker is the person filing this Schedule. The information about 303 East Wacker’s business address and business telephone number in Item 1, under the heading “Name and Address,” is incorporated herein by reference.
Tender Offer
This Schedule relates to the tender offer by Moraga Gold, LLC; Steven Gold; MPF Income Fund 25, LLC; SCM Special Fund 2, LP; and MacKenzie Patterson Fuller, LP (collectively, “MPF”), disclosed in the Tender Offer Statement on Schedule TO, filed by MPF with the Securities and Exchange Commission (the “SEC”) on February 3, 2009, as amended by Amendment No. 1 to the Schedule TO filed by MPF with the SEC on February 12, 2009 (together with the exhibits thereto, as amended, the “Schedule TO”), pursuant to which MPF is offering to purchase up to 115 shares of Preferred Stock at a purchase price equal to $35,000 per share, less the amount of any dividends declared or made with respect to the Preferred Stock between February 3, 2009 and March 31, 2009, or such other date to which such offer may be extended, upon the terms and subject to the conditions set forth in the Offer to Purchase dated February 3, 2009, as amended by the Addendum dated February 11, 2009 (the “Offer to Purchase”) and the related Letter of Transmittal (the “Letter of Transmittal,” which, together with the Offer to Purchase, as each may be amended or supplemented from time to time, constitutes the “Offer”).
According to the Schedule TO, the address of the principal executive offices of MPF is 1640 School Street, Moraga, California 94556.
With respect to all information described herein as contained in the Offer to Purchase, Letter of Transmittal or Schedule TO, including information concerning MPF or its affiliates, officers or directors, or actions or events with respect to any of them, 303 East Wacker does not take any responsibility for the accuracy or completeness of such information or for any failure by MPF to disclose events or circumstances that may have occurred and may affect the significance, completeness or accuracy of any such information.
Item 3. Past Contacts, Transactions, Negotiations and Agreements.
Except as stated below in this Schedule and to the extent noted in 303 East Wacker’s Quarterly Report on Form 10-Q (including the financial statements and notes thereto filed therewith) for the quarter ended September 30, 2008 filed with the SEC on November 14, 2008 and incorporated herein by reference in its entirety as Exhibit (e)(1), there are no material agreements, arrangements or understandings or actual or potential conflicts of interest between 303 East Wacker or its affiliates and its executive officers, directors or affiliates. There are no material agreements, arrangements or understandings and no actual or potential conflicts of interest between 303 East Wacker or its affiliates and MPF and its executive officers, directors or affiliates, except that, pursuant to Rule 14d-5 under the Securities Exchange Act of 1934, as amended, 303 East Wacker has elected the mailing option provided by Rule 14d-5(b).
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303 East Wacker has in the past engaged in and currently engages in transactions with Franklin Street Properties Corp. (“FSP”). FSP is the beneficial owner of 100% of the Common Stock of 303 East Wacker and 43.7% of the Preferred Stock.
The spouse of William W. Gribbell, an executive officer and director of 303 East Wacker, currently holds approximately 0.01% of the Preferred Stock.
Barbara J. Fournier, an executive officer and director of 303 East Wacker, together with her spouse, currently holds approximately 0.02% of the Preferred Stock.
Item 4. The Solicitation or Recommendation.
303 East Wacker has decided to remain neutral as to the Offer and is expressing no opinion as to whether the holders of shares of Preferred Stock should accept or reject the Offer.
Although 303 East Wacker is not making a recommendation with respect to the Offer, 303 East Wacker believes that holders of Preferred Stock should consider the factors described in the Letter from 303 East Wacker to Shareholders, dated February 18, 2009, which is incorporated herein by reference in its entirety as Exhibit (a)(2), in making their own decisions of whether to accept or reject the Offer.
Neither 303 East Wacker nor, to its knowledge, any executive officer, director, affiliate or subsidiary of 303 East Wacker currently intends to tender or sell any shares of Preferred Stock pursuant to the Offer.
Item 5. Persons/Assets, Retained, Employed, Compensated or Used.
Neither 303 East Wacker nor anyone acting on its behalf has employed, retained or compensated any person to make solicitations or recommendations in connection with the Offer.
Item 6. Interest in Securities of the Subject Company.
No transactions in the Preferred Stock have been effected by 303 East Wacker or any of its executive officers, directors, affiliates or subsidiaries during the past 60 days.
Item 7. Purposes of the Transaction and Plans or Proposals.
303 East Wacker is not undertaking and is not engaged in any negotiations in response to the Offer that relate to a tender offer or other acquisition of the Preferred Stock by 303 East Wacker, any subsidiary of 303 East Wacker or any other person.
303 East Wacker is not undertaking and is not engaged in any negotiations in response to the Offer which relate to, or would result in, (i) any extraordinary transaction, such as a merger, reorganization or liquidation, involving 303 East Wacker or any subsidiary of 303 East Wacker, (ii) any purchase, sale or transfer of a material amount of assets of 303 East Wacker or any subsidiary of 303 East Wacker or (iii) any material change in the present dividend rate or policy, or indebtedness or capitalization of 303 East Wacker.
There are no transactions, board resolutions, agreements in principle or signed contracts entered into in response to the Offer that relate to one or more of the matters referred to in this Item 7.
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Item 8. Additional Information.
303 East Wacker owns a 28-story multi-tenant office tower located in downtown Chicago, Illinois containing approximately 859,187 rentable square feet of office and retail space and a 294-stall underground parking garage (the “Property”). The Property was approximately 86% leased as of February 17, 2009.
The Property’s largest tenant is KPMG LLP (“KPMG”), which leases approximately 259,000 square feet (30%) of the Property’s rentable space through August 31, 2012. Early in 2008 KPMG hired a broker, CB Richard Ellis, to review potential locations for its Chicago office for the next 15-20 years. On February 16, 2009, KPMG notified 303 East Wacker that it will be relocating to a different property location following the expiration of its lease on August 31, 2012. With approximately 3.5 years remaining on KPMG’s lease, 303 East Wacker’s management will use that time to implement a marketing plan designed to locate a replacement tenant (or tenants).
The statements included or incorporated by reference in this document relating to matters that are not historical facts may be deemed to be “forward-looking statements.” Forward-looking statements may be characterized by terminology such as “believe,” “anticipate,” “should,” “intend,” “plan,” ”will,” “expect,” “estimated,” and “projects” and similar expressions. These statements are based on assumptions and assessments made by 303 East Wacker in light of its experience and perception of historical trends, current conditions, expected future developments and other factors it believes to be appropriate and involve risks and uncertainties relating to the occurrence of future events.
Any such forward-looking statements are not guarantees of future performance, and actual results, developments and business decisions may differ materially from those envisaged by such forward-looking statements. Although 303 East Wacker believes that the expectations reflected in such forward-looking statements are reasonable, it cannot give any assurances that these expectations will ultimately prove to be correct. Other risks and uncertainties concerning 303 East Wacker’s performance are set forth in reports and documents filed by 303 East Wacker with the SEC.
Item 9. Exhibits.
Exhibit No. | Description |
(a)(2) | Letter from 303 East Wacker to Shareholders dated February 18, 2009. |
(e)(1) | 303 East Wacker’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2008 filed with the SEC on November 14, 2008 (File No. 000-53165) and incorporated herein by reference. |
(e)(2) | Asset Management Agreement, incorporated herein by reference to Exhibit 10.3 to 303 East Wacker’s Registration Statement on Form 10, as amended, filed with the SEC on April 11, 2008 (File No. 000-53165). |
(e)(3) | Voting Agreement, incorporated herein by reference to Exhibit 10.4 to 303 East Wacker’s Registration Statement on Form 10, as amended, filed with the SEC on April 11, 2008 (File No. 000-53165). |
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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.
FSP 303 EAST WACKER DRIVE CORP. | |
Date: February 18, 2009 | By:/s/ George J. Carter |
Name: George J. Carter | |
Title: President |
EXHIBIT INDEX
Exhibit No. | Description |
(a)(2) | Letter from 303 East Wacker to Shareholders dated February 18, 2009. |
(e)(1) | 303 East Wacker’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2008 filed with the SEC on November 14, 2008 (File No. 000-53165) and incorporated herein by reference. |
(e)(2) | Asset Management Agreement, incorporated herein by reference to Exhibit 10.3 to 303 East Wacker’s Registration Statement on Form 10, as amended, filed with the SEC on April 11, 2008 (File No. 000-53165). |
(e)(3) | Voting Agreement, incorporated herein by reference to Exhibit 10.4 to 303 East Wacker’s Registration Statement on Form 10, as amended, filed with the SEC on April 11, 2008 (File No. 000-53165). |