SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
(Amendment No. 1)
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [X]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Materials Under Rule 14a-12
Prometheus Income Partners, a California limited partnership
(Name of Registrant as Specified in Its Charter)
Everest Investors 12, LLC
Everest Properties II, LLC
(Name of Person(s) Filing Proxy Statement)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1) Title of each class of securities to which transactions applies:
......................................................................
(2) Aggregate number of securities to which transactions applies:
......................................................................
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11.
.....................................................................
(4) Proposed maximum aggregate value of transaction:
......................................................................
(5) Total fee paid:
......................................................................
[ ] 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:
(2) Form, Schedule or Registration Statement no.:
(3) Filing Party:
(4) Date Filed:
EVEREST Investors 12, LLC
Everest Properties II, LLC
199 South Los Robles Avenue, Suite 440
Pasadena, California 91101
July [_], 2002
Enclosed is a Proxy Statement Solicitation asking you to give Everest your
proxy to vote your limited partnership units at the meeting of the limited
partners of the Partnership at 10:00 a.m., local time, on July 24, 2002, at
Villa Hotel, 4000 South El Camino Real, San Mateo, California 94403. The purpose
of the meeting is to vote on a proposed merger transaction by which an affiliate
of the General Partner would acquire the Partnership's properties and the
limited partners would receive $1,736 per Unit in cash.
Everest Investors 12, LLC, and Everest Properties II, LLC (collectively,
"Everest"), are each a limited partner of Prometheus Income Partners, a
California limited partnership (the "Partnership"). IF YOU GIVE EVEREST YOUR
PROXY, EVEREST WILL VOTE YOUR UNITS AS YOU DIRECT IN YOUR PROXY.
EVEREST STRONGLY RECOMMENDS THAT YOU VOTE AGAINST THE PROPOSALS BY THE
GENERAL PARTNER.
Without even attempting to market the Partnership's properties to
unaffiliated parties, the Partnership has received an unsolicited offer for the
Partnership's assets. Everest believes the offer is superior to the merger
proposal based on Everest's assessment that: (1) the offer would result in
approximately $152 per Unit more cash to limited partners, (2) the offer was
made by a well-qualified and credible purchaser that is not affiliated with the
Partnership or its general partner, and (3) even though it may take a little
more time to complete a sale, the offer (unlike the merger proposal) provides
that the Partnership (and therefore the limited partners) keep the benefit of
the mortgage principal payments and net cash flow made by the Partnership until
the date the transaction is closed.
DO NOT LET THE GENERAL PARTNER RUSH YOU INTO VOTING ON THE MERGER PROPOSAL.
THERE IS NOW A HIGHER OFFER AVAILABLE TO THE PARTNERSHIP TO CONSIDER. AS A
LIMITED PARTNER, EVEREST WANTS THE BEST RESULTS THAT CAN BE PROMPTLY ACHIEVED.
EVEREST BELIEVES IT IS IN OUR BEST INTERESTS AS LIMITED PARTNERS TO VOTE AGAINST
THE MERGER PROPOSAL.
The Securities and Exchange Commission has not passed upon the accuracy or
adequacy of the information contained in this document. Any representation to
the contrary is unlawful.
We urge you to carefully read the enclosed Proxy Solicitation Statement in
order to vote your interests. If you have already voted, you can change your
vote by returning the enclosed proxy to Everest with a later date than your
previous proxy. It is important actually to vote "Against," rather than simply
not vote, because PIP Partners will vote its 18.2% of the outstanding Units for
and against the merger proposal in the same proportion as the votes actually
returned by limited partners, but without counting non-votes as "Against" votes.
If you have any questions, please do not hesitate to contact Everest at
(626) 585-5920. On behalf of Everest, thank you for your consideration of these
matters.
W. Robert Kohorst
President
The Securities and Exchange Commission has not passed upon the accuracy or
adequacy of the information contained in this document. Any representation to
the contrary is unlawful.
PROXY SOLICITATION STATEMENT
of
EVEREST INVESTORS 12, LLC AND
EVEREST PROPERTIES II, LLC
regarding
PROMETHEUS INCOME PARTNERS
a California limited Partnership
July [_], 2002
Everest Investors 12, LLC, and Everest Properties II, LLC, each a
California limited liability company (collectively, "Everest"), are each a
limited partner of Prometheus Income Partners, a California limited partnership
(the "Partnership"). Everest is hereby requesting you to give us your proxy to
vote your limited partnership units ("Units") at the meeting of the limited
partners of the Partnership at 10:00 a.m., local time, on July 24, 2002, at
Villa Hotel, 4000 South El Camino Real, San Mateo, California 94403.
The Partnership's general partner has called the meeting to vote on:
1. A merger transaction proposed by Prometheus Development Co., the
Partnership's general partner (the "General Partner"), pursuant to the Amended
and Restated Agreement and Plan of Merger dated as of May 22, 2002 by and among
the Partnership and affiliates of the General Partner, pursuant to which (a) PIP
Acquisition, LLC, a California limited liability company and an affiliate of the
General Partner and a wholly owner subsidiary of PIP Partners (another affiliate
of the General Partner) will be merged with any into the Partnership, and (b)
each outstanding Unit (other than those held by PIP Partners) will be converted
into the right to receive $1,736 in cash. , PIP Partners-General, LLC and PIP
Acquisition, LLC, (a wholly owned subsidiary of PIP Partners set for in the by
which an affiliate of the General Partner would acquire the Partnership's
properties and the limited partners would receive $1,736 per Unit in cash. (The
"Merger Proposal").
2. A proposal to permit the General Partner to adjourn the meeting to
permit further solicitation of proxies if it has not received sufficient votes
by the time of the meeting to approve the merger proposal. (The "Adjournment
Proposal").
3. Such other business as may properly come before the meeting or any
adjournment or postponement of the meeting.
These items of business are described in the General Partner's Proxy
Statement dated June 13, 2002, previously sent to you (the "General Partner's
Proxy Statement"). This Proxy Solicitation Statement and the accompanying form
of proxy are first being mailed to limited partners on or about July [_], 2002.
The proxies are solicited upon the terms and subject to the conditions of this
Proxy Solicitation Statement and the accompanying form of proxy. Limited
partners of the Partnership of record at the close of business on May 31, 2002,
the record date, are entitled to notice of and to vote at the meeting. You may
vote in person at the meeting even if you have returned a proxy to the General
Partner or to Everest.
1
EVEREST RECOMMENDATION TO REJECT THE PROPOSALS
Everest recommends that you vote "AGAINST" the Merger Proposal and
"AGAINST" the Adjournment Proposal for the following reasons:
-The Partnership has received an unsolicited offer for the Partnership's
assets from a well-qualified and credible purchaser. Everest believes the
offer is superior to the merger proposal. Aspen Square Management, Inc.
("Aspen") has offered $54,500,000 for the Partnership's properties (the
"Superior Offer"), $1,300,000 more than the deal represented by the merger
transaction with the General Partner's affiliate (the "General Partner's
Offer"). Also, the Superior Offer includes no brokerage commission or
disposition fee for the Partnership, which eliminates $1,600,000 of selling
expenses to be charged to the Partnership under the General Partner's
Offer. The Superior Offer is effectively $2,900,000 higher than the General
Partner's Offer.
-You should receive about $152 per Unit more from the Superior Offer than
you would receive from the General Partner's Offer. Everest estimates that,
if the properties were sold pursuant to the Superior Offer, limited
partners would receive approximately $1,888 per unit of limited partnership
interest ("Unit"), which is $152 per unit more than the expected proceeds
of the General Partner's Offer.
-The Superior Offer was made by a party that is not affiliated with the
Partnership, its general partner, or Everest. You can be more confident
that the Partnership is receiving the full, fair market value for the
Partnership's properties. The general partner would be free to negotiate
and close a sale pursuant to the Superior Offer without the conflicts of
interest it has with the General Partner's Offer, and therefore should
better represent the interests of the Partnership and your interests as a
limited partner. The conditions of the Superior Offer are minimal and the
time-frame for completion of the sale pursuant to the Superior Offer is
comparable to the General Partner's Offer.
-The General Partner's Offer would divert to the general partner value that
Everest believes should accrue to the limited partners. The General
Partner's Offer assumes that the Partnership's debt does not change after
March 31, 2002, while in reality the Partnership should continue to make
mortgage payments, including payments of principal that increase the
Partnership's equity in its properties, and to generate cash flow. Pursuant
to the General Partner's Offer, the benefit of such principal payments and
net cash flow goes to the general partner's affiliated purchaser; while
under the Superior Offer, the benefit of such increased equity and net cash
flow goes to you as a limited partner. Everest believes that additional
costs incurred to sell the properties to Aspen, such as another limited
partner vote, would be more than offset by such net cash flow and equity
enhancement received by the Partnership.
2
-The General Partner's Offer includes a disposition fee to which the
General Partner does not appear to be entitled. The General Partner's
calculation of the merger consideration (page 65 of the General Partner's
Proxy Statement) includes a "GP 1% disposition fee" of $532,000 that does
not appear to be authorized by the Partnership's partnership agreement.
-Whether or not the Superior Offer results in a sale, Everest believes that
the Partnership can receive more for its properties than the General
Partner's Offer. Since the General Partner has not listed the Partnership's
properties for sale, and since Aspen made an unsolicited offer that
significantly exceeds the General Partner's Offer, it is reasonable to
expect that if the properties were properly marketed to unaffiliated
purchasers, the Partnership would receive offers at prices significantly
exceeding the General Partner's Offer, and possibly exceeding the Superior
Offer.
-The Adjournment Proposal should be rejected so that the General Partner
has no reason to delay negotiating with Aspen on the Superior Offer.
Everest believes the best interests of the Partnership and the limited
partners would be served if the General Partner abandoned the General
Partner's Offer and instead pursued negotiations with Aspen on the Superior
Offer or properly marketed the Partnership's properties to unaffiliated
prospective purchasers. The Adjournment Proposal would give the General
Partner a chance to drag out the vote on the Merger Proposal indefinitely.
YOUR VOTE IS IMPORTANT. EACH VOTE HAS GREATER EFFECT BECAUSE PIP PARTNERS
(AN AFFILIATE OF THE GENERAL PARTNER) WILL VOTE ITS 18.2% OF THE OUTSTANDING
UNITS FOR AND AGAINST THE MERGER PROPOSAL IN THE SAME PROPORTION AS THE VOTES
ACTUALLY RETURNED BY LIMITED PARTNERS, BUT WITHOUT COUNTING NON-VOTES AS
"AGAINST" VOTES. This means that the Merger Proposal could be approved by
unaffiliated limited partners with as little as 32% of the outstanding Units
unless limited partners actually vote Against the Merger Proposal, rather than
rely on their non-votes being considered a vote Against.
Additional Considerations
In addition to the foregoing, you should also consider the following
when deciding whether to vote For or Against the Merger Proposal and the
Adjournment Proposal.
Everest's comments and recommendation are based entirely on Everest's
review of the Superior Offer as reflected in Aspen's offer letter; and Everest's
prior knowledge of Aspen's successful purchase of a portfolio of real estate
from a real estate investment trust in which Everest and some of its affiliates
held shares. Everest previously provided you with a copy of Aspen's offer so
that you can form your own opinion about the merits and credibility of the
Superior Offer. Everest has not independently investigated the accuracy of the
statements in Aspen's offer letter, and takes no responsibility for the
accuracy, inaccuracy, completeness or incompleteness of any of the information
contained therein.
3
You are not being asked to approve the Superior Offer at this time. By
returning the enclosed proxy, or by voting against the General Partner's
proposals, you are not approving the Superior Offer. To Everest's knowledge,
there is no definitive agreement between the Partnership and Aspen regarding the
Superior Offer, and therefore Aspen is not yet legally obligated to perform the
Superior Offer. If the Partnership and Aspen enter into a definitive agreement
pursuant to the Superior Offer, Article 9.3 of the Partnership's Second Amended
and Restated Limited Partnership Agreement requires that the vote of a majority
of the limited partners "approve or disapprove the sale of either or both of the
Properties." Everest does not know whether or not the General Partner and Aspen
will reach a definitive agreement.
Everest does not know what the General Partner will do if its proposals are
not approved. Although Everest believes the General Partner's fiduciary duties
to the Partnership and its limited partners require it to negotiate in good
faith with Aspen concerning the Superior Offer, the General Partner may decide
not do so, may decide not to enter into an agreement, and may decide not to
proceed to market the Partnership's properties for sale. Everest has not
attempted to identify or contact any potential buyers for the Partnership's
properties other than Aspen.
If the General Partner's proposals are not approved, it is possible that
adverse changes in the real estate market, the financial market, interest rates,
the Partnership's properties or other factors could occur before the
Partnership's properties are sold that would result in a transaction less
favorable that the General Partner's merger transaction. It is also possible
that the Partnership will incur additional costs to consummate a transaction
with Aspen, or to market the Partnership's properties, that would reduce the
proceeds otherwise available to limited partners; however, Everest is confident
that such efforts would result in significantly higher net proceeds to limited
partners even after deducting any such additional expenses.
Everest has no affiliation with Aspen. Everest directed Aspen's attention
to the opportunity to make an offer for the Partnership's properties based on
Everest's prior knowledge of Aspen's successful purchase of other real estate
and Everest's familiarity with the Partnership as a limited partner. Everest has
asked Aspen to consider paying a finder's fee to Everest if it succeeds in
acquiring the Partnership's properties, but Aspen has made no agreement to do so
or response to Everest's request.
The General Partner's merger transaction is described in detail in the
General Partner's Proxy Statement. You should review the General Partner's Proxy
Statement carefully to evaluate the Merger Proposal. Everest has not
independently investigated the accuracy of the statements in the General
Partner's Proxy Statement, and takes no responsibility for the accuracy,
inaccuracy, completeness or incompleteness of any of the information contained
therein or for the failure by the General Partner to disclose events which may
have occurred and may affect the significance or accuracy of any such
information.
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INFORMATION CONCERNING EVEREST
This Solicitation is being made by Everest Investors 12, LLC ("Everest
Investors 12"), and Everest Properties II, LLC ("Everest Properties"), each a
California limited liability company. Everest Investors 12 owns 645 Units and
Everest Properties owns 304 Units of the Partnership (collectively, 5% of the
outstanding Units). They intend to vote their Units against the general
partner's proposals.
Below is a schedule of the dates and amounts for all purchases of Units by
Everest Investors 12 and Everest Properties during the last 2 years (there were
no sales).
Everest Properties Everest Investors 12
------------------ --------------------
12/8/00 25 Units 4/26/01 49 Units
12/31/00 264 Units 5/1/01 292 Units
3/30/01 15 Units 5/7/01 164 Units
5/11/01 85 Units
5/16/01 25 Units
5/22/01 30 Units
Everest Investors 12 was formed in 1999 for the purpose of investing in
limited partnerships similar to the Partnership, and is managed by Everest
Properties, which manages all of the business affairs of Everest Investors 12.
Everest Properties was formed in 1996 and manages investments in real estate,
cable and equipment leasing limited partnerships, and conducts other investment
banking activities regarding real estate. The principal office of Everest
Properties is 199 South Los Robles Avenue, Suite 440, Pasadena, CA 91101;
telephone (626) 585-5920.
The management of Everest Properties has significant experience in the real
estate industry and with limited partnerships like the Partnership. Below are
resumes for the members of the executive management of Everest Properties.
W. Robert Kohorst. Mr. Kohorst is the President of Everest Properties and
its affiliates. He is a lawyer by profession. From 1984 through 1990, Mr.
Kohorst was the President of the Private Placement Group for Public Storage,
Inc., a national real estate syndicator. Mr. Kohorst's responsibilities included
all structuring, marketing, investor services and accounting services for
private placement syndications for Public Storage, Inc., and its affiliates.
Upon leaving Public Storage, Inc. in 1990, Mr. Kohorst was the Chief Executive
Officer and principal of two businesses, Tiger Shark Golf, Inc., a golf
equipment manufacturer, and Masquerade International, Inc., a manufacturer of
costumes. In 1991 Mr. Kohorst co-founded KH Financial, Inc., which has been
engaged in the acquisition of general partner interests, real estate companies
and related assets. Mr. Kohorst has been the President of KH Financial, Inc.
from its inception to the present. Mr. Kohorst holds a Juris Doctor from the
University of Michigan and a Bachelor of Science degree in accounting from the
University of Dayton.
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David I. Lesser. Mr. Lesser is the Executive Vice President of Everest
Properties. He is a lawyer by profession. From 1979 through 1986, Mr. Lesser
practiced corporate and real estate law with Kadison, Pfaelzer, Woodard, Quinn &
Rossi and Johnsen, Manfredi & Thorpe, two prominent Los Angeles law firms. From
1986 through 1995, Mr. Lesser was a principal and member of Feder, Goodman &
Schwartz and its predecessor firm, co-managing the firm's corporate and real
estate practice. Between 1990 and 1992, Mr. Lesser was counsel to Howard, Rice,
Nemerovski, Robertson, Canady & Falk. Mr. Lesser is also a Vice President of KH
Financial, Inc. Mr. Lesser holds a Juris Doctor from Columbia University and a
Bachelor of Arts degree from the University of Rochester.
Christopher K. Davis. Mr. Davis is a Vice President and the General Counsel
of Everest Properties. He is a lawyer by profession. From 1991 to 1995, he
practiced securities and corporate law with Gibson, Dunn & Crutcher, a prominent
national law firm headquartered in Los Angeles. From 1995 through 1997, he
served as Senior Staff Counsel and then Director of Corporate Legal of
Pinkerton's, Inc., a worldwide provider of security, investigation and related
services. At Pinkerton, Mr. Davis was responsible for directing the corporate
legal section of the legal department. Mr. Davis holds a Juris Doctor from
Harvard Law School and a Bachelor of Science degree in Business Administration
from the University of California, Berkeley.
Peter J. Wilkinson. Mr. Wilkinson is a Vice President and the Chief
Financial Officer of Everest Properties. He is an accountant by profession. From
1981 through 1987, he worked for Deloitte Haskins and Sells and Coopers and
Lybrand in London and Sydney in their audit divisions, gaining significant
experience in a variety of industry segments. From 1987 to 1990, he was the
company secretary and controller of Gresham Partners, an Australian investment
bank where, in addition to being responsible for all financial, tax and
administrative matters, he was involved with analyzing leveraged buyout,
property finance and business acquisitions. Mr. Wilkinson joined BankAmerica in
the United States and from 1991 to 1996 held a number of positions, culminating
in being the Division Finance Officer for the Corporate Trust and Mortgage and
Asset Backed divisions. In this capacity, he was responsible for presentation of
all financial information and financial due diligence during their divestiture.
Mr. Wilkinson holds a Bachelor of Science degree from Nottingham University and
is an English chartered accountant.
INFORMATION CONCERNING THE PARTNERSHIP AND PROPOSALS
Information concerning the Partnership and the General Partner's proposals
is available in the General Partner's Proxy Statement, which is available for
free from the website of the Securities and Exchange Commission: www.sec.gov
(select "Filings and Forms (EDGAR)" from the home page and follow instructions
to search for "Prometheus Income Partners"). Everest's Proxy Solicitation
Statement and any other additional soliciting materials are also available for
free at the same website.
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MEETING AND VOTING PROCEDURE
Returning Your Proxy To Everest
The proxy form included with this Proxy Solicitation Statement may be used
by limited partners to cast their votes. For each proposal, limited partners
should mark a box adjacent to the proposal indicating that the limited partner
votes "For" or "Against" the proposal, or wishes to "Abstain." All proxies that
are properly completed, signed and delivered to Everest, and not revoked prior
to the vote at the meeting will be given effect in accordance with the
specifications thereof. If none of the boxes on the proxy is marked, but the
proxy is otherwise properly completed and signed, the limited partner delivering
such proxy will be deemed to have voted "Against" the proposals.
Limited partners are requested to complete, sign and date the proxy form
included with this Proxy Solicitation Statement and mail, hand deliver, send by
overnight courier or fax the original signed proxy to Everest at:
Everest Properties II, LLC
199 S. Los Robles Ave., Suite 440
Pasadena, CA 91101
Fax: (626) 585-5929
Proxies should be sent or delivered to Everest and not to the Partnership.
A prepaid, return envelope is included herewith.
This Proxy Solicitation Statement and the related proxy are first being
mailed to Limited Partners on or about July [_], 2002. Limited partners who are
record owners of Units as of May 31, 2002 (the "record date") may execute and
deliver a proxy. A beneficial owner of Units who is not the record owner of such
Units must arrange for the record owner of such Units to execute and deliver to
Everest a proxy that reflects the vote of the beneficial owner.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance and revocation of the proxy, and the interpretation of the
terms and conditions of this solicitation, will be determined by Everest, whose
determination will be final and binding. Everest reserves the absolute right to
reject any or all proxies that are not in proper form or the acceptance of
which, in the opinion of Everest or its counsel, could be unlawful. Everest also
reserves the right to waive any irregularities or conditions as to particular
proxies or Units. Unless waived, any irregularities in connection with proxies
must be cured within such time as Everest determines. None of Everest, any of
its affiliates, or any other person shall be under any duty to give any
notification of any such defects, irregularities or waiver, nor shall any of
them incur any liability for failure to give such notification. Deliveries of
proxies will not be deemed to have been made until any irregularities or defects
therein have been cured or waived.
The Meeting
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The meeting is to be held at 10:00 a.m., local time, on July 24, 2002, at
Villa Hotel, 4000 South El Camino Real, San Mateo, California 94403; unless
adjourned or postponed by the General Partner. Excerpts from the General
Partner's Proxy Statement regarding the conduct of the meeting of limited
partners are set forth below for your convenience and information.
Matters to be Considered
At the meeting, the limited partners will be asked to consider and vote on
the merger proposal and the adjournment proposal and to consider any other
matters as may properly come before the meeting. A vote for the merger proposal
is not also a vote for the adjournment proposal. You must vote separately on
each proposal.
Approval of the merger proposal by the limited partners is a condition to
Prometheus Income Partners' participation in the merger.
Approval of the adjournment proposal will permit the adjournment of the
meeting to solicit additional proxies in the event that there are not sufficient
votes at the time of the meeting to approve the merger proposal. Prometheus
Development Co. intends to recommend the adjournment of the meeting for ten days
if on the date of the meeting Prometheus Income Partners has not received duly
executed proxies which, when added to the number of votes represented in person
at the meeting by persons who at that time intend to vote for the merger
proposal, will constitute a sufficient number of votes to approve the merger
proposal. However, if limited partners holding greater than a majority of the
outstanding units have indicated their intention to vote against, and have
submitted duly executed proxies voting against, the merger proposal, the merger
does not require Prometheus Development Co. to recommend adjournment of the
meeting. Approval of the adjournment proposal by the limited partners is not a
condition to Prometheus Income Partners' participation in the transaction.
Other than the merger proposal and the adjournment proposal, Prometheus
Development Co. does not expect to ask the limited partners to vote on any other
matters at the meeting. However, if matters other than the merger proposal and
the adjournment proposal are properly brought before the meeting, or any
adjournments or postponements of the meeting, the persons appointed as proxies
will have discretion to vote or act on those matters according to their best
judgment.
Record Date; Voting Power
Prometheus Development Co. has fixed the close of business on May 31, 2002,
as the record date for determination of the limited partners entitled to notice
of and to vote at the meeting and any adjournment or postponement of the
meeting. Only holders of record of units at the close of business on May 31,
2002 are entitled to notice of and to vote at the meeting. As of the record
date, there were 18,995 units in Prometheus Income Partners outstanding and held
of record by 920 holders of record. Holders of record of units are entitled to
one vote for each unit that they hold on the merger proposal, the adjournment
proposal and any other matter that may properly come before the meeting.
8
Quorum
The necessary quorum for the transaction of business at the meeting is the
presence in person or by proxy of limited partners holding a majority of the
units in Prometheus Income Partners outstanding on the record date. For purposes
of determining the presence of a quorum, proxies marked "ABSTAIN" will be
counted by Prometheus Development Co. as present at the meeting.
In the event that there are insufficient votes present at the meeting to
constitute a quorum, and proxies and votes for the merger proposal represent
fewer than 50% of the units, the units for which proxies have been received
marked in favor of the adjournment proposal may be voted to adjourn the meeting
to a later date. Notice of the adjourned meeting need not be given if the time
and place of the adjourned meeting is announced at the meeting, the adjournment
is for not more than forty-five days from the date of the original meeting and
no new record date is set.
Vote Required
A vote for the merger proposal is not also a vote for the adjournment
proposal. You must vote separately on each proposal. The affirmative vote of
limited partners holding greater than 50% of the units outstanding on the record
date is required to approve the merger proposal. The affirmative vote of limited
partners holding more than 50% of the units present in person or by proxy at the
meeting is required to approve the adjournment proposal.
Limited partners are urged to complete, date, sign and promptly return the
enclosed proxy. All properly executed proxies received by Prometheus Development
Co. prior to the meeting that are not revoked will be voted at the meeting in
accordance with the instructions indicated on the proxies.
If you mark "ABSTAIN" on your proxy and do not vote in person at the
meeting, the effect will be the same as a vote against the merger proposal. If
you fail to return your proxy and do not vote in person at the meeting, as a
result of the agreement of PIP Partners to vote as have the voting limited
partners, the effect on the merger proposal will depend on how other limited
partners vote. If you fail to return your proxy, your units will have no effect
on the outcome of the adjournment proposal. If you mark "ABSTAIN" on your proxy
and do not vote in person at the meeting, the effect will be the same as a vote
against the adjournment proposal. If you sign and return your proxy but do not
give instructions on your proxy, your units will be voted for the merger
proposal and for the adjournment proposal.
Approval of the merger proposal by the limited partners is a condition to
Prometheus Income Partners' participation in the merger. Therefore, if
Prometheus Development Co. does not receive votes for the merger proposal from
limited partners holding greater than 50% of the units, the merger proposal will
not be approved and Prometheus Income Partners will not participate in the
merger.
9
Approval of the adjournment proposal by the limited partners is not a
condition to Prometheus Income Partners' participation in the transaction.
Approval of the adjournment proposal by the limited partners will permit the
adjournment of the meeting to solicit additional proxies in the event that there
are not sufficient votes at the time of the meeting to approve the merger
proposal.
Changing Your Vote
You may revoke your proxy at any time before it is voted at the meeting (1)
by sending in a later dated, signed proxy, (2) by written notice of revocation
to Prometheus Development Co. or (3) by attending the meeting and voting in
person.
Revocation of Proxies Granted to Everest
Proxies granted to Everest may be revoked at any time before it is voted at
the meeting (1) by sending in a later dated, signed proxy, (2) by written notice
of revocation to Everest or (3) by attending the meeting and voting in person.
For a revocation to be effective, the notice must specify the name of the record
holder of the Units and the name of the person having executed the proxy to be
revoked (if different), and must be executed in the same manner as the proxy to
which the revocation or change relates or by a duly authorized person that so
indicates and that submits with the notice appropriate evidence of such
authority as determined by Everest.
Everest reserves the right to contest the validity of any revocation or
change of vote and all questions as to validity (including time of receipt) will
be determined by Everest in its sole discretion, which determination will be
final and binding. None of Everest, any of its affiliates, or any other person
will be under any duty to give notification of any defects or irregularities
with respect to any revocation or change of vote nor shall any of them incur any
liability for failure to give such notification.
Absence of Appraisal Rights
There are no appraisal or other similar rights available to limited
partners in connection with this solicitation of proxies.
Solicitation of Proxies
Neither the Partnership nor the General Partner is a participant in this
solicitation of proxies. Everest Investors 12 and Everest Properties are
participants in the solicitation, and will initially bear all costs of this
solicitation of proxies, including fees for attorneys, and the cost of
preparing, printing and mailing this Proxy Solicitation Statement. Everest may
seek reimbursement for such costs from the Partnership or Aspen to the extent
allowed under the partnership agreement and applicable law. In addition to the
use of mails, certain officers or regular employees of Everest Properties may
solicit proxies; however, none of these individuals have been specially engaged
to assist the solicitation and no officer or employee will be compensated for
services to assist the solicitation other than reimbursement of any
out-of-pocket expenses relating to the solicitation. The total fees and expenses
to be incurred by Everest in connection with this solicitation are estimated to
be $20,000. Everest has incurred fees and expenses in connection with this
solicitation as of July [_], 2002, of approximately [$____].
Limited partners are encouraged to contact Everest at the address and
telephone number set forth on the back cover of this Proxy Solicitation
Statement with any questions regarding this solicitation and with requests for
additional copies of this Proxy Solicitation Statement and form of proxy.
PROXY SOLICITATION STATEMENT
of
EVEREST INVESTORS 12, LLC AND
EVEREST PROPERTIES II, LLC
regarding
PROMETHEUS INCOME PARTNERS
a California limited Partnership
Deliveries of proxies, properly completed and duly executed, should be made
to Everest at the address or fax number set forth below.
Questions and requests for assistance about procedures for consenting or
other matters relating to this solicitation may be directed to Everest at the
address and telephone number listed below. Additional copies of this Proxy
Solicitation Statement and form of proxy may be obtained from Everest as set
forth below.
No person is authorized to give any information or to make any
representation not contained in this Proxy Solicitation Statement regarding the
solicitation of proxies made hereby, and, if given or made, any such information
or representation should not be relied upon as having been authorized by Everest
or any other person. The delivery of this Proxy Solicitation Statement shall
not, under any circumstances, create any implication that there has been no
change in the information set forth herein or in the affairs of Everest or the
Partnership since the date hereof.
Everest Properties II, LLC
199 South Los Robles Avenue, Suite 440
Pasadena, California 91101
(626) 585-5920
Fax: (626) 585-5929
REVOCABLE PROXY
THIS PROXY IS SOLICITED ON BEHALF OF THE EVEREST LIMITED PARTNERS
The undersigned hereby appoints David I. Lesser, Christopher K. Davis and Vahan
Saroians, or any of them, with full power of substitution, as attorneys, agents
and proxies (the "Proxies") to vote on behalf of the undersigned at the meeting
of limited partners of Prometheus Income Partners to be held at 10:00 a.m.,
local time, on Wednesday, July 24, 2002, at Villa Hotel, 4000 South El Camino
Real, San Mateo, California 94403, or any adjournment or postponement of the
meeting:
(1) Proposal to approve the Amended and Restated Agreement and Plan of Merger
dated as of May 22, 2002 by and among Prometheus Income Partners, a California
limited partnership, PIP Partners - General, LLC, a California limited liability
company, and PIP Acquisition, LLC, a California limited liability company. This
proposal, together with the merger and all of the transactions contemplated by
the merger agreement, is referred to in the accompanying Proxy Solicitation
Statement as the "Merger Proposal." Approval of the Merger Proposal will also
constitute approval of all of the transactions contemplated by the merger
agreement.
|_| FOR |_| AGAINST |_| ABSTAIN
(2) Proposal to permit Prometheus Development Co. to adjourn the meeting to
permit further solicitation of proxies in the event that there are not
sufficient votes at the time of the meeting to approve the Merger Proposal. This
proposal is referred to in the accompanying Proxy Solicitation Statement as the
"Adjournment Proposal."
|_| FOR |_| AGAINST |_| ABSTAIN
THE EVEREST LIMITED PARTNERS RECOMMEND A VOTE "AGAINST" THE MERGER PROPOSAL AND
"AGAINST" THE ADJOURNMENT PROPOSAL.
This proxy when properly executed will be voted in the manner directed in this
document by the undersigned limited partner. If no direction is made on this
card, this proxy will be voted AGAINST the merger proposal and AGAINST the
adjournment proposal. This proxy also authorizes the proxies to vote at their
discretion on any other matter that may properly come before the meeting or any
adjournment or postponement thereof.
Instructions For Returning Proxy. Please mark, sign, date and return this proxy
promptly using the enclosed postage paid envelope, or via facsimile, to:
Everest Properties II, LLC By: ______________________________
199 S. Los Robles Ave., #440
Pasadena, CA 91101 Print Name: _______________________
Tel: (626) 585-5920
Fax: (626) 585-5929 By: ______________________________
Print Name: _______________________
Please sign exactly as name appears hereon. When units are held by joint
tenants, both should sign. When signing as an attorney, executor, administrator,
trustee or guardian, please give full tittle of the signer. If a corporation,
please sign name by President or other authorized officer. If a partnership,
please sign partnership name by authorized person.
Questions and Information. If you have questions or need assistance in
completing your proxy, please call Everest.
PLEASE MARK, SIGN, DATE AND RETURN THIS PROXY PROMPTLY AS INSTRUCTED ABOVE.
PROMETHEUS INCOME PARTNERS
a California limited Partnership
PROXY OF LIMITED PARTNER
Deliveries of proxies, properly completed and duly executed, should be made
to Everest at the address or fax number set forth below. A prepaid, return
envelope is included herewith.
Questions and requests for assistance relating to this solicitation may be
directed to Everest at the address and telephone number listed below. Additional
copies of this Proxy Solicitation Statement and form of proxy may be obtained
from Everest as set forth below.
EVEREST PROPERTIES II, LLC
199 South Los Robles Avenue, Suite 440
Pasadena, California 91101
(626) 585-5920
Fax: (626) 585-5929