0000898822-05-000200.txt : 20120615 0000898822-05-000200.hdr.sgml : 20120615 20050328172718 ACCESSION NUMBER: 0000898822-05-000200 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20050328 DATE AS OF CHANGE: 20050328 GROUP MEMBERS: KIMCO REALTY SERVICES, INC. GROUP MEMBERS: MILTON COOPER SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ATLANTIC REALTY TRUST CENTRAL INDEX KEY: 0000948975 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 133849655 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-45961 FILM NUMBER: 05707417 BUSINESS ADDRESS: STREET 1: 747 THIRD AVE CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 2123551255 MAIL ADDRESS: STREET 1: 747 THIRD AVE CITY: NEW YORK STATE: NY ZIP: 10017 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: KIMCO REALTY CORP CENTRAL INDEX KEY: 0000879101 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 132744380 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 3333 NEW HYDE PARK RD STREET 2: PO BOX 5020 CITY: NEW HYDE PARK STATE: NY ZIP: 11042 BUSINESS PHONE: 5168699000 MAIL ADDRESS: STREET 1: 3333 NEW HYDE PARK ROAD STREET 2: PO BOX 5020 CITY: NEW HYDE PARKQ STATE: NY ZIP: 11042 SC 13D/A 1 mar2813da.txt MARCH 28, 2005 SCHEDULE 13D/A (AMENDMENT NO. 12) ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------- SCHEDULE 13D/A INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13D-1(A) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13D-2 (AMENDMENT NO. 12) ATLANTIC REALTY TRUST (NAME OF ISSUER) COMMON SHARES OF BENEFICIAL INTEREST, PAR VALUE $.01 PER SHARE -------------------------------------------------------------- (Title of Class of Securities) 048798-10-2 ------------------------------------------------------------------------------- (CUSIP Number) MILTON COOPER KIMCO REALTY CORPORATION 3333 NEW HYDE PARK ROAD NEW HYDE PARK, NY 11042-0020 (516) 869-9000 -------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) MARCH 28, 2005 -------------------------------------------------------------- (Date of Event Which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box: / /. (Continued on following pages) (Page 1 of 8 Pages) =============================================================================== CUSIP No. 048798-10-2 Page 2 of 8 Pages -------------------------------------------------------------------------------- 1. NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Kimco Realty Corporation -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / / (b) / / -------------------------------------------------------------------------------- 3. SEC USE ONLY ------------------------------------------------------------------------------- 4. SOURCE OF FUNDS WC -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION Maryland -------------------------------------------------------------------------------- Number of 7. SOLE VOTING POWER Shares 355,498 -------------------------------------------------------------------- Beneficially 8. SHARED VOTING POWER Owned By 962,289 -------------------------------------------------------------------- Each 9. SOLE DISPOSITIVE POWER Reporting 355,498 -------------------------------------------------------------------- Person With 10. SHARED DISPOSITIVE POWER 962,289 -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,317,787 -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / / -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 37.0% -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON REPORTING CO -------------------------------------------------------------------------------- CUSIP No. 048798-10-2 Page 3 of 8 Pages -------------------------------------------------------------------------------- 1. NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Kimco Realty Services, Inc. -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / / (b) / / -------------------------------------------------------------------------------- 3. SEC USE ONLY -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS WC, AF -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware -------------------------------------------------------------------------------- Number of 7. SOLE VOTING POWER Shares none -------------------------------------------------------------------- Beneficially 8. SHARED VOTING POWER Owned By 962,289 -------------------------------------------------------------------- Each 9. SOLE DISPOSITIVE POWER Reporting none -------------------------------------------------------------------- Person With 10. SHARED DISPOSITIVE POWER 962,289 -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 962,289 -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / / -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 27.0% -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON REPORTING CO -------------------------------------------------------------------------------- CUSIP No. 048798-10-2 Page 4 of 8 Pages -------------------------------------------------------------------------------- 1. NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Milton Cooper -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / / (b) / / -------------------------------------------------------------------------------- 3. SEC USE ONLY -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS OO -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION United States -------------------------------------------------------------------------------- Number of 7. SOLE VOTING POWER Shares 29,824 -------------------------------------------------------------------- Beneficially 8. SHARED VOTING POWER Owned By 3,127 -------------------------------------------------------------------- Each 9. SOLE DISPOSITIVE POWER Reporting 29,824 -------------------------------------------------------------------- Person With 10. SHARED DISPOSITIVE POWER 3,127 -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 32,951 -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / / -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) .9% -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON REPORTING IN -------------------------------------------------------------------------------- This Amendment No. 12 amends and supplements the Schedule 13D filed on May 24, 1996, and amended on July 3, 1996, by Kimco Realty Corporation, a Maryland corporation ("Kimco"), and Milton Cooper and further amended on May 15, 1997, June 10, 1997, April 30, 1998, September 20, 1999, August 10, 2000, August 23, 2000, August 9, 2001, January 31, 2003, August 3, 2004 and February 24, 2005 by Kimco, Milton Cooper and Kimco Realty Services, Inc., a Delaware corporation ("Services") (as amended, the "Schedule 13D"), relating to the common shares of beneficial interest, par value $.01 per share (the "Shares"), of Atlantic Realty Trust, a Maryland corporation (the "Company"). Unless otherwise indicated, all capitalized terms used herein shall have the meanings given to them in the Schedule 13D, and unless amended or supplemented hereby, all information previously filed remains in effect. ITEM 4. PURPOSE OF THE TRANSACTION Item 4 is hereby amended to add the following: On March 28, 2005, Kimco and the Company entered into an Indemnification Agreement (the "Indemnification Agreement"), pursuant to which the Company agreed to permit Kimco to enter the Hylan Center property (the "Property") to conduct due diligence and Kimco agreed to indemnify the Company against certain claims, damages, costs and liability which may result from such diligence. Kimco also agreed to treat any information concerning the Property furnished by the Company or obtained by Kimco in the course of its diligence as strictly confidential. Pursuant to the Indemnification Agreement, the Company also agreed for the forty five day period beginning on March 28, 2005 (such period, the "Exclusivity Period"), not to, directly or through its officers, directors, employees, affiliates, brokers, investment bankers, attorneys and other agents and representatives (collectively, "Representatives"), solicit, encourage, engage in negotiations or discussions with, or furnish any confidential information or data to, any third party (other than Kimco) relating to a potential or actual proposal to acquire any of the capital stock or assets of the Company, including the Property (an "Acquisition Proposal") and to cease and instruct its Representatives to immediately cease any such activities. The Company agreed to promptly provide Kimco with any written Acquisition Proposals, and promptly inform Kimco of the material terms of any oral Acquisition Proposals, received by the Company or its Representatives during the Exclusivity Period. The foregoing description of the Indemnification Agreement is qualified in its entirety by reference to the Indemnification Agreement which is attached as an exhibit hereto and incorporated herein by reference. Kimco is not under any legal obligation of any kind whatsoever with respect to any transaction concerning the purchase and sale of the Property by virtue of the Indemnification Agreement or otherwise and has no obligation to continue to pursue any such transaction. Kimco, Services and Milton Cooper each reserves the right, based on all relevant factors, and in each case subject to the provisions of the Standstill Agreement (as defined in the Schedule 13D), to acquire additional Shares, to dispose of all or a portion of its holdings of Shares, to modify, amend or rescind any proposals with respect to the Property (including the Proposal (as defined in the Schedule 13D)), to make any alternative proposals with respect to an acquisition of Shares or assets of the Company, a merger, a reorganization or any other extra-ordinary transaction involving the Company or its assets, or to change its intention with respect to any or all of the matters referred to in this Item 4. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. The response to Item 4 is incorporated herein by reference. ITEM 7. MATERIALS TO BE FILED AS EXHIBITS. Exhibit 9. Indemnification Agreement, dated as of March 28, 2005, by and among the Company and Kimco. SIGNATURE After reasonable inquiry and to the best of the undersigned's knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. KIMCO REALTY CORPORATION By: /s/ Milton Cooper ----------------------------------------- Name: Milton Cooper Title: Chairman and Chief Executive Officer KIMCO REALTY SERVICES, INC. By: /s/ Milton Cooper ----------------------------------------- Name: Milton Cooper Title: President /s/ Milton Cooper -------------------------------------------- Milton Cooper March 28, 2005 Exhibit Index Exhibit 9. Indemnification Agreement, dated as of March 28, 2005, by and among Atlantic Realty Trust and Kimco Realty Corporation. EX-9 2 indemnificationagreement.txt INDEMNIFICATION AGREEMENT EXECUTION COPY INDEMNIFICATION AGREEMENT THIS INDEMNIFICATION AGREEMENT (this "AGREEMENT") is entered into as of the 28th day of March 2005, by and among Atlantic Realty Trust ("Seller") and Kimco Realty Corporation ("Buyer"). RECITALS A. Buyer and Seller have entered into exclusive good faith negotiations of a Purchase and Sale Agreement ("Purchase and Sale Agreement"), in connection with that certain property commonly known as Hylan Plaza Shopping Center located in Staten Island, New York (collectively with the land and improvements thereon, the "Property"). B. Buyer desires to conduct the Property Diligence (as defined below) on the terms and conditions provided herein. C. Seller is willing to permit Buyer to do the Property Diligence on the terms and conditions provided herein. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: AGREEMENT PROPERTY DILIGENCE. Seller hereby agrees to permit Buyer and its representatives to enter onto the Property to conduct due diligence on the Property including, without limitation, inspecting and performing tests upon the Property (including, without limitation, environmental, including "Phase II" environmental testing, structural, engineering and other tests) (collectively, the "Property Diligence"). Buyer shall be exclusively responsible for all of its and its representative's costs and fees associated with its investigation and review of the Property. Buyer shall conduct and shall cause its representatives to conduct any inspections and reviews in a commercially reasonable, prudent and professional manner and in compliance with all applicable laws. A representative of Seller may, at its option, be present during any inspections or reviews of the property. Buyer agrees to repair promptly any damage or disturbance Buyer or its representatives shall cause to the Property. Nothing in this Agreement shall preclude Buyer or its representatives from complying with any express legal obligation to report environmental violations or other circumstances existing at the Property to any governmental authority (to the extent that Buyer can prove that such an obligation exists) and such compliance alone shall not be the basis for any liability to Buyer hereunder. BUYER'S INDEMNIFICATION OF SELLER. Buyer shall indemnify, defend and hold Seller harmless from any and all claims, damages, costs and liability resulting directly from Buyer or its representatives conducting the Property Diligence in a manner that does not comply with the requirements of Section 1 above, except to the extent the same is caused by Seller's gross negligence or willful misconduct; provided, that in no event shall Buyer be liable for consequential, punitive, or special damages. Buyer shall exercise commercially reasonable efforts to minimize disruption to the tenants of the Property in connection with the Property Diligence and 1 Buyer's or its representative;s activities. No consent by Seller to any such activity shall be deemed to constitute a waiver by Seller or the assumption of liability or risk by Seller. NO LIENS CREATED BY BUYER. Buyer shall not permit any mechanic's or materialman's liens or any other liens to attach to the Property by reason of the performance of the Property Diligence or the purchase of any materials by Buyer or Buyer's representatives in connection with the Property Diligence. CONFIDENTIALITY. Buyer agrees to treat any information concerning the Property furnished by the Seller or obtained by the Buyer in the course of its diligence activities pursuant to Section 1 (the "Confidential Material") strictly confidential. Except as required by law, neither Buyer nor any of it employees, officers, directors, agents, advisors or representatives ("Representatives") shall disclose any Confidential Material to any other person. The term "Confidential Material" does not include information which (i) is already in Buyer's possession, provided that such information is not subject to another confidentiality agreement with or other obligation of secrecy to the Seller, (ii) becomes generally available to the public other than as a result of a disclosure, directly or indirectly, by Buyer or its Representatives, or (iii) becomes available to Buyer on a non-confidential basis from a source other than the Seller or its Representatives, provided that such source is not bound by a confidentiality agreement with or other obligation of secrecy to the Seller. NOTICES. All notices, demands, requests and other communications required pursuant to the provisions of this Agreement ("Notice") shall be in writing and shall be delivered to the addresses set forth on the signature pages hereto. EXCLUSIVE NEGOTIATIONS. During the period commencing on the date hereof and ending forty five days after the date hereof (such period, the "Exclusivity Period"), Seller will not, directly or through its officers, directors, employees, affiliates, brokers, investment bankers, attorneys and other agents and representatives (collectively, "Representatives"), solicit, encourage, engage in negotiations or discussions with, or furnish any confidential information or data to, any third party (other than Buyer) relating to a potential or actual proposal to acquire any of the capital stock or assets of the Seller, including the Property (an "Acquisition Proposal") and will cease and instruct its Representatives to immediately cease any such activities. Seller will promptly provide Buyer with any written Acquisition Proposals, and promptly inform Buyer of the material terms of any oral Acquisition Proposals, received by Seller or its Representatives during the Exclusivity Period. BINDING EFFECT; NO OBLIGATION. This Agreement shall be binding upon and inure to the benefit of Seller and Buyer, and their respective heirs, personal representatives, successors and permitted assigns. Neither the execution of this Agreement nor any of the terms or conditions set forth herein shall create any obligation for Buyer to do any or all of the Property Diligence. Unless and until a definitive agreement between Seller and Buyer concerning the purchase and sale of the Property, Buyer will not be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this or any written or oral expression with respect to such a transaction by any of its directors, officers, employees, agents or any other representatives or its advisors, and has no obligation to continue to pursue such a transaction. 2 GOVERNING LAW AND VENUE. The laws of the state of New York shall govern the validity, construction, enforcement, and interpretation of this Agreement with respect to the Property, except for the conflict of law provisions thereof which would result in the application of the laws of another jurisdiction. All claims, disputes and other matters in question with respect to the Property arising out of or relating to this Agreement, or the breach thereof, shall be decided by proceedings instituted and litigated in a state or federal court for the district in which the Property is situated, and the parties hereto expressly consent to the venue and jurisdiction of such court. MULTIPLE COUNTERPARTS. This Agreement may be executed in a number of identical counterparts. If so executed, each of such counterparts is to be deemed an original for all purposes and all such counterparts shall, collectively, constitute one Agreement. In making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterparts. CONSTRUCTION. No provision of this Agreement shall be construed in favor of, or against, any particular party by reason of any presumption with respect to the drafting of this Agreement; both parties, being represented by counsel, having fully participated in the negotiation of this instrument. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.] 3 NOW WHEREFORE, the parties hereto have executed this Agreement as of the date first set forth above. SELLER: ATLANTIC REALTY TRUST By: /s/ Joel M. Pashcow ---------------------------------------- Name: Joel M. Pashcow Title: Chairman Address for notices: Atlantic Realty Trust 747 3rd Avenue New York, New York 10017 Attention: Joel Pashcow With a copy to (which shall not constitute notice): Proskauer Rose LLP 1585 Broadway New York, New York 10036-8200 Attention: Peter M. Fass, Esq. 4 BUYER: KIMCO REALTY CORPORATION By: /s/ Bruce M. Kauderer ----------------------------------------- Name: Bruce M. Kauderer Title: Vice President Address for notices: Kimco Realty Corporation 3333 New Hyde Park Road New Hyde Park, New York 11042-0020 Attention: General Counsel With a copy to (which shall not constitute notice): Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, NY 10019 Attention: Adam O. Emmerich, Esq. 5