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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
WESTIN HOTELS LIMITED PARTNERSHIP
(Name of Subject Company)
KALMIA INVESTORS, LLC
Merced Partners Limited Partnership
Smithtown Bay, LLC
Global Capital Management, Inc.
John D. Brandenborg
Michael J. Frey
(Name of PERSON(S) FILING STATEMENT)
UNITS OF LIMITED PARTNERSHIP INTERESTS
(Title of Class of Securities)
960 377 109
(Cusip Number of Class Of Securities)
Michael J. Frey
c/o Kalmia Investors, LLC
601 Carlson Parkway, Suite 200
Minnetonka, MN 55305
(888) 323-3757
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications on Behalf of Offeror)
With a copy to:
Gary J. Wolfe, Esq.
Seward & Kissel LLP
One Battery Park Plaza
New York, New York 10004
Telephone: (212) 574-1200
Facsimile: (212) 480-8421
TABLE OF CONTENTS
Item 1. Subject Company Information.
Item 2. Identity and Background of Filing Person.
Item 3. Past Contacts, Transactions, Negotiations and Agreements.
Item 4. The Solicitation or Recommendation.
Item 5. Persons/Assets, Retained, Employed, Compensated or Used.
Item 6. Interest in Securities of the Subject Company.
Item 7. Purposes of the Transaction and Plans or Proposals.
Item 8. Additional Information.
Item 9. Exhibits.
SIGNATURE
EX-(a)(1)
EX-(a)(2)
EX-(a)(3)
Item 1. Subject Company Information.
(a) Name and Address. The name of the subject company is Westin Hotels
Limited Partnership, a Delaware limited partnership (the "Partnership"). The
principal executive offices of the Partnership are located at 1111 Westchester
Avenue, White Plains, New York 10604 and the telephone number is (914) 640-8100.
The general partner of the Partnership is Westin Realty Corp., a Delaware
corporation (the "General Partner").
(b) Securities. The class of equity securities to which this Solicitation/
Recommendation Statement on Schedule 14D-9 (this "Statement") relates is the
Partnership's units of limited partnership interest (the "Units"). According to
the Schedule 14D-9 filed by the Partnership on January 20, 2004, there were
135,600 Units issued and outstanding as of January 15, 2004.
Item 2. Identity and Background of Filing Person.
(a) Name and Address. The filing persons are Kalmia Investors, LLC
("Kalmia") is a Delaware limited liability company formed on July 31, 1996.
Smithtown Bay, LLC is a Delaware limited liability company formed on July 29,
1996, and was named the Manager of Kalmia Investors, LLC on January 3, 2003.
Smithtown Bay's Manager is Global Capital Management, Inc. ("GCM"), a Delaware
corporation formed on September 23, 1988. Merced Partners Limited Partnership, a
Delaware limited partnership formed on January 19, 1990, of which GCM is the
General Partner, is the sole owner of all of the members of Kalmia, including
its manager, Smithtown Bay. GCM is controlled by its two officers and directors,
John D. Brandenborg and Michael J. Frey (collectively, the "Filing Persons").
Each Filing Person's principal executive offices are located at 601 Carlson
Parkway, Suite 200, Minnetonka, Minnesota 55305 and the telephone number is
(888) 323-3757.
(d) Tender Offer. This Statement relates to the tender offer by WHLP
Acquisition LLC ("Acquisition Sub"), a Delaware limited liability company and
wholly owned subsidiary of Starwood Hotels & Resorts Worldwide, Inc., a Maryland
corporation ("Starwood"), for all of the outstanding Units of the Partnership,
at a cash price of $735 per Unit, less all distributions declared or paid by the
Partnership from January 1, 2004, until the date on which Acquisition Sub
purchases the Units tendered pursuant to the Offer to Purchase and Solicitation
Statement, dated November 4, 2003 (as it may be amended from time to time, the
"Offer to Purchase"), upon the terms and subject to the conditions set forth in
the Offer to Purchase and the related Agreement of Assignment and Transfer
(which, as they may be amended from time to time, constitute the "Offer"). In
connection with the Offer, Acquisition Sub is soliciting consents to proposals
(the "Proposals") described in the Offer to Purchase that would facilitate the
transfer of Units to Acquisition Sub and its ability to effect a merger,
immediately after the completion of the Offer, of Acquisition Sub or one of its
affiliates and the Partnership (the "Merger"). In the Merger, each outstanding
Unit not owned by Acquisition Sub or one of its affiliates would be converted
into the right to receive cash in an amount equal to the price per Unit payable
in the Offer.
According to the Tender Offer Statement on Schedule TO filed by Acquisition
Sub and Starwood on November 4, 2003, the address of the principal executive
offices of each of Acquisition Sub and Starwood is 1111 Westchester Avenue,
White Plains, New York 10604.
Item 3. Past Contacts, Transactions, Negotiations and Agreements.
Conflicts of Interest. As of the date hereof, there exists no material
agreement, arrangement or understanding and no actual or potential conflict of
interest between the Filing Persons or their respective affiliates and (i) the
Partnership, its executive officers, directors or affiliates or (ii) Acquisition
Sub, its executive officers, directors or affiliates.
Item 4. The Solicitation or Recommendation.
(a) Solicitation or Recommendation. The Filing Persons are advising holders
of Units ("Unitholders") to reject the Offer, not tender their Units pursuant to
the Offer and withdraw previously tendered Units. Kalmia is sending to
Unitholders a letter recommending that they reject the Offer, not tender their
Units pursuant to the Offer and withdraw previously tendered Units. The letter
also advises where instructions on revoking consents to Starwood's proposal are
contained in Starwood's consent solicitation. A copy of such letter is attached
to this Statement as Exhibit (a)(1).
(b) Reasons. The Filing Persons are advising holders of Units to reject the
Offer, not tender their Units pursuant to the Offerfor the following reasons:
o Kalmia believes that there is a conflict of interest between the General
Partner and Starwood.
o Kalmia believes that the present General Partner is breaching its
fiduciary duty to Unitholders by failing to maximize the Unitholders' value.
(c) Intent to Tender. Neither the Filing Persons nor any of their
affiliates intend to tender pursuant to the Offer any of the Units they hold of
record or own beneficially.
Item 5. Persons/ Assets, Retained, Employed, Compensated or Used.
Solicitations or Recommendations. No persons or classes of persons have
been employed, retained or are to be compensated to make solicitations or
recommendations in connection with the Offer or the transactions contemplated
thereby.
Item 6. Interest in Securities of the Subject Company.
Securities Transactions. Set forth below is a list of contractual
arrangements that the Filing Persons or their affiliates have entered into to
purchase Units during the 60-day period immediately preceding the date of this
Statement. All of such arrangements were entered into by Kalmia.
NUMBER OF UNITS PURCHASED IN
DATE TENDER OFFER PRICE OF UNITS
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September 30, 2003 6,369 $550
November 10, 2003 1,210 $550
February 9, 2004 6,542 $725
Item 7. Purposes of the Transaction and Plans or Proposals.
Not applicable.
Item 8. Additional Information.
None.
Item 9. Exhibits.
Exhibit No. Description
(a)(1) Letter to Limited Partners dated February 13, 2004, issued by
Kalmia.
(a)(2) Form of withdrawal from WLP Acquisition LLC's tender offer.
(a)(3) Press release dated February 13, 2004, issued by Kalmia.
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.
KALMIA INVESTORS, LLC
By: Smithtown Bay, LLC
Its Manager
By: Global Capital Management, Inc.
Its Manager
By: /s/ Michael J. Frey
-----------------------------------
Name: Michael J. Frey
Title: Chief Executive Officer
February 13, 2004
SMITHTOWN BAY, LLC
By: Global Capital Management, Inc.
Its Manager
By: /s/ Michael J. Frey
-----------------------------------
Name: Michael J. Frey
Title: Chief Executive Officer
Dated: February 13, 2004
MERCED PARTNERS LIMITED PARTNERSHIP
By: /s/ Michael J. Frey
-----------------------------------
Name: Michael J. Frey
Title: Chief Executive Officer
Dated: February 13, 2004
GLOBAL CAPITAL MANAGEMENT, INC.
By: /s/ Michael J. Frey
-----------------------------------
Name: Michael J. Frey
Title: Chief Executive Officer
Dated: February 13, 2004
MICHAEL J. FREY
By: /s/ Michael J. Frey
Dated: November ___, 2003
JOHN D. BRANDENBORG
By: /s/ John D. Brandenborg
Dated: February 13, 2004
Dated February 13, 2004
21919.0001 #463889v2