SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(Amendment No. 2)
Solicitation/Recommendation Statement Pursuant to
Section 14(d)(4) of the Securities Exchange Act of 1934
PRUDENTIAL REALTY TRUST
(Name of Subject Company)
PRUDENTIAL REALTY TRUST
(Name of Person(s) Filing Statement)
CAPITAL SHARES OF BENEFICIAL INTEREST, PAR VALUE $0.01
(Title of Class of Securities)
74435P-20-3
(CUSIP Number of Class of Securities)
Donna M. Dellechiaie, Esq.
Associate Regional Counsel
Prudential Realty Group
3 Gateway Center
100 Mulberry Street, 14th Floor
Newark, New Jersey 07102-4077
(201) 802-5412
(Name, address and telephone number of person authorized to receive notice
and communications on behalf of the person(s) filing statement)
Copy to:
Michael M. Maney, Esq.
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
(212) 558-4000
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This Amendment No. 2 amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9, dated May 31,
1995, as amended (the "Schedule 14D-9"), filed by Prudential Realty Trust,
a Massachusetts business trust (the "Trust"), relating to the tender offer
disclosed in the Schedule 14D-1, dated May 17, 1995, as amended (the
"Schedule 14D-1"), of the bidder, Black Bear Realty, Ltd., a newly formed
Ohio limited liability company (the "Bidder"), of which Richard M. Osborne
is the sole managing member, to purchase all of the outstanding Capital
Shares of the Trust upon the terms and subject to the conditions set forth
in the Offer to Purchase, dated May 17, 1995, as amended, and the related
Letter of Transmittal (together, the "Offer"). Capitalized terms used and
not defined herein shall have the meanings set forth in the Schedule 14D-9.
Item 8. Additional Information to be Furnished.
Item 8 is hereby amended and supplemented by adding thereto the
following:
(b)(3) Intervention by Holders of Income Shares.
On June 16, 1995, Philip V. Oppenheimer, General Partner of the
P. Oppenheimer Investment Partnership, L.P. ("Oppenheimer"), and the IRA of
Mark Close (together with Oppenheimer, the "Intervenors") filed a motion to
intervene in the Superior Court Action as defendants and class
representatives of the putative defendant class of owners of Income Shares
(excluding from the class Mr. Osborne, Robert G. Stern, the Bidder, Turkey
Vulture Fund XIII, Ltd. and their respective affiliates and relatives). On
June 16, 1995, the Intervenors also filed an answer and class action
counterclaim relating to the Superior Court Action (the "Intervenors
Counterclaim"). In the Intervenors Counterclaim, the Intervenors seek the
Court to enter an order and judgment: (1) declaring that an affirmative
vote of 75% of the outstanding Income Shares and an affirmative vote of 75%
of the outstanding Capital Shares, each voting separately as a class, is
required to effectuate the Proposed Merger; (2) declaring that under the
present factual circumstances, under the Declaration, all of the proceeds
from the sale of the Trust's assets must be distributed to the holders of
Income Shares until the holders of Income Shares have received up to $8.00
per Income Share in distributions from the sale of the Trust's real estate
holdings; (3) declaring that the holders of Capital Shares cannot receive
any equity in a new entity into which the Trust is merged, at the expense
of the holders of Income Shares, unless the value of the Trust's net assets
exceeds $8.00 times the number of Income Shares outstanding at the time of
the merger; (4) awarding the Intervenors their reasonable attorneys' fees
and costs in this action; and (5) granting the Intervenors such other
relief as may be appropriate.
On June 20, 1995, the Intervenors filed a similar motion to
intervene in the Probate Action, and filed an answer and class action
counterclaim seeking the same relief enumerated above.
(d) Special Meeting. On June 14, 1995, Richard M. Osborne
sent a letter to Jeffrey L. Danker, President of the Trust (the "June 14
Letter"), regarding a special meeting of the Trust's shareholders for the
following stated purposes: (1) to have a vote of the shareholders directing
the Trustees to rescind the plan of liquidation of the Trust; and (2) to
have a vote of the shareholders to instruct the Trustees to declare null
and void the agreement to sell real estate to Security Capital Industrial
Trust and any and all agreements to sell assets of the Trust. On June 23,
1995, Jeffrey L. Danker, President of the Trust, sent a letter to
Mr. Osborne and Turkey Vulture Fund XIII, Ltd. replying to the June 14
Letter (the "June 23 Letter"). The June 23 Letter stated that following a
careful review of the Trust's Declaration of Trust (the "Declaration") and
the Trustees' Regulations
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(the "Regulations") by the Trustees and counsel to the Trust, the Trustees
concluded that the purposes of the meeting as stated in the June 14 Letter
are not purposes permitted by the Declaration or the Regulations, nor are
they purposes upon which the shareholders can lawfully act under applicable
law. As such, the Trustees also concluded that the chief executive officer
of the Trust has no duty to call such a meeting pursuant to the Declaration
and the chief executive officer of the Trust declined to call such a
special meeting.
A form of press release announcing the Trust's response to the
June 14 Letter and a copy of the June 23 Letter are filed as Exhibits 15
and 16 hereto, respectively, and are incorporated herein by reference.
Item 9. Material to be Filed as Exhibits.
Item 9 is hereby amended and supplemented by adding thereto the
following:
Exhibit 15 -- Form of Press Release, dated June 23, 1995.
Exhibit 16 -- Letter of June 23, 1995 from Jeffrey L. Danker, President
of the Trust, to Richard M. Osborne and Turkey Vulture
Fund XIII, Ltd.
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SIGNATURE
After reasonable 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: June 23, 1995
PRUDENTIAL REALTY TRUST
By: /s/ Jeffrey L. Danker
Name: Jeffrey L. Danker
Title: President