SC 13E3 1 dsc13e3.txt SCHEDULE 13E-3 As Filed with the Securities and Exchange Commission on May 13, 2002 SCHEDULE 13E-3 (RULE 13E-100) TRANSACTION STATEMENT UNDER SECTION 13(E) OF THE SECURITIES EXCHANGE ACT OF 1934 AND RULE 13E-3 THEREUNDER SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 RULE 13E-3 TRANSACTION STATEMENT UNDER SECTION 13(E) OF THE SECURITIES EXCHANGE ACT OF 1934 First Union Real Estate Equity and Mortgage Investments -------------------------------------------------------------------------------- (Name of the Issuer) First Union Real Estate Equity and Mortgage Investments Gotham Golf Corp. Gotham Golf Partners, L.P. Florida Golf Properties, Inc. Gotham Partners, L.P. Gotham Partners III, L.P. Section H Partners, L.P. Karenina Corporation DPB Corp. Gotham Holdings II, L.L.C. Gotham International Advisors, L.L.C. -------------------------------------------------------------------------------- (Name of Persons Filing Statement) Shares of Beneficial Interest, Par Value $1.00 Per Share and Series A Cumulative Convertible Redeemable Preferred Shares of Beneficial Interest, Par Value $25.00 Per Share -------------------------------------------------------------------------------- (Title of Class of Securities) 337400105 and 337400303 -------------------------------------------------------------------------------- (CUSIP Number of Class of Securities) F. Ronald O'Keefe, Esq. Steven S. Snider, Esq. Adam O. Emmerich, Esq. Hahn Loeser & Parks LLP Hale and Dorr, LLP Wachtell, Lipton, Rosen & Katz 3300 BP Tower The Willard Office Building 51 West 52nd Street 200 Public Square 1445 Pennsylvania Avenue, NW New York, New York 10019-6150 Cleveland, Ohio 44114 Washington, D.C. 20004 Phone: (212) 403-1000 Phone: (216) 621-0150 Phone: (202) 942-8494 Fax: (212) 403-2000 Fax: (216) 241-2824 Fax: (202) 942-8484
-------------------------------------------------------------------------------- (Name, Address and Telephone Numbers of Persons Authorized to Receive Notices and Communications on Behalf of Persons Filing Statement) This statement is filed in connection with (check the appropriate box): a. [X] The filing of solicitation materials or an information statement subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities Exchange Act of 1934. b. [X] The filing of a registration statement under the Securities Act of 1933. c. [ ] A tender offer. d. [ ] None of the above. Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies: [X] Check the following box if the filing is a final amendment reporting the results of the transaction: [ ] CALCULATION OF FILING FEE
------------------------------------------------------------ --------------------------------------------------------- Transaction valuation* Amount of filing fee ------------------------------------------------------------ --------------------------------------------------------- Based on transaction value of $81,793,893.20, $0.00 representing the aggregate cash and securities and other property to be received by the Issuer as consideration for the transaction. ------------------------------------------------------------ ---------------------------------------------------------
* Pursuant to Exchange Act Rule 0-11(a)(2), the required fee is reduced in an amount equal to the fee paid to the Securities and Exchange Commission with respect to the Form S-4 filed in conjunction with this transaction. [X] Check the box if any part of the fee is offset as provided by (S) 240.0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Amount Previously Paid: $13,505.97 ------------------------------------------------------- Form or Registration No.: FORM S-4 ----------------------------------------------------- Filing Party: GOTHAM GOLF CORP. ----------------------------------------------------------------- Date Filed: May 13, 2002 ------------------------------------------------------------------- This Rule 13e-3 Transaction Statement (this "Statement") is being filed in connection with the mergers (the "Merger") of (1) First Union Real Estate Equity and Mortgage Investments (the "Company") with and into Gotham Golf Corp. ("GGC") and (2) GGC Merger Sub, Inc. ("Sub") with and into First Union Management, Inc., a wholly owned subsidiary of that certain Ohio Trust, dated as of October 1, 1996 by Adolph Posnick, trustee (the "FUMI Share Trust"), in each case, pursuant to an Agreement and Plan of Merger and Contribution, dated February 13, 2002 (the "Merger Agreement"). Concurrently with the filing of this Statement, the Company has filed its Preliminary Proxy Statement as part of the Registration Statement on Form S-4 (the "Form S-4") of GGC and Southwest Shopping Centers Co. II, LLC, an indirect, wholly-owned subsidiary of the Company ("SSCC"), relating to the (i) the solicitation of proxies for the special meeting of the holders of the Company's Shares of Beneficial Interest, par value $1.00 per share (the "Common Shares"), at which holders of the Common Shares will be asked to approve the Merger and (ii) registration of certain GGC and SSCC securities to be issued in connection with the Merger. ITEM 1. SUMMARY TERM SHEET Item 1001 of Regulation M-A. Not applicable. The Form S-4 meets the requirements of Securities Act Rule 421(d). ITEM 2. SUBJECT COMPANY INFORMATION Item 1002 of Regulation M-A. (a) The Company is the subject company for purposes of this Statement. The information contained in the section entitled "THE PARTIES - First Union Real Estate Equity and Mortgage Investments" in the Form S-4 is incorporated herein by this reference. The telephone number of the Company's principal executive office is (212) 949-1373. (b) The information contained in the sections entitled "THE SPECIAL MEETING - The Record Date" and "INFORMATION REGARDING FIRST UNION SHARES" in the Form S-4 is incorporated herein by this reference. (c), (d) The information contained in the sections entitled "INFORMATION REGARDING FIRST UNION SHARES" and "INFORMATION REGARDING FIRST UNION SHARES - Price and Dividend Information" in the Form S-4 is incorporated herein by this reference. (e) The information contained in the section entitled "CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS - Registration Rights Agreement with Gotham Partners" in the Form S-4 is incorporated herein by this reference. (f) The information contained in the section entitled "INFORMATION REGARDING FIRST UNION SHARES - Share Repurchases" in the Form S-4 is incorporated herein by this reference. ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON Item 1003 of Regulation M-A. (a) - (b) The information contained in the sections entitled "THE PARTIES - First Union Real Estate Equity and Mortgage Investments," "THE PARTIES - Gotham Golf Corp.," "THE PARTIES - Gotham Golf Partners, L.P.," and "THE PROPOSED TRANSACTION - Interests of First Union Trustees, Officers and Related Parties in the Proposed Transaction" in the Form S-4 is incorporated herein by this reference. Each of Gotham Partners III, L.P., Gotham Holdings II, L.L.C. and Gotham International Advisors, L.L.C. (together with Gotham Partners, L.P., the, "Gotham FUR Investors") is an affiliate of Gotham Partners, L.P. and each is a private investment partnership with investments in the Company. Section H Partners, L.P. is the general partner of Gotham Partners, L.P. and Gotham Partners, III, L.P. and Karenina Corporation and DPB Corp. are the general partners of Section H Partners, L.P. The principal office of the Gotham FUR Investors, Section H Partners, L.P., Karenina Corporation and DPB Corp. is located at 110 East 42nd Street, 19th Floor, New York, New York, 10017. The telephone number of the Company's principal offices is (212) 949-1373. The principal office of Florida Golf Properties, Inc. is c/o Gotham Golf Partners, L.P., 575 East Chocolate Avenue, Hershey, Pennsylvania, 17033. The telephone number of GGC's, Sub's, Gotham Golf Partners, L.P.'s and Florida Golf Properties, Inc.'s principal offices is (717) 312-1355. The telephone number of the Gotham FUR Investors, Section H Partners, L.P., Karenina Corporation and DPB Corp. offices is (212) 286-0300. (c) (1) - (2) William A. Ackman, who serves as the Company's Chairman, is also the President, sole director and sole shareholder of Karenina Corporation. David P. Berkowitz, is the President, sole director and sole shareholder of DPB Corp. GGC is a Delaware corporation wholly owned by Gotham Golf Partners, L.P., and thus may be deemed to be an affiliate of the Company by virtue of the fact that Gotham Golf Partners, L.P. is under the common control of Gotham Partners, L.P. or its controlled affiliates. The information contained in the sections entitled "GOTHAM GOLF CORP.-Directors and Executive Officers" in the Form S-4 is incorporated herein by this reference. Set forth below are the (i) name, (ii) address, (iii) current principal occupation or employment, and the name, principal business and address of any corporation or other organization in which the employment or occupation is conducted, and (iv) material occupations, positions, offices or employment during the past five years, and the name, principal business and address of any corporation or other organization in which the occupation, position, office or employment was carried on, of each of the directors and executive officers of GGC:
------------------------------------- ------------------------------------------- ----------------------------------- Name; Position with GGC Business Address; Business Phone Number Principal Occupation or Employment ------------------------------------- ------------------------------------------- ----------------------------------- William A. Ackman Gotham Partners, L.P. January 1993 - current, 10 East 42nd Street, 18th Floor co-investment manager of the New York, NY 10017 following investment funds: Gotham Partners, L.P., Gotham Partners III, L.P. and Gotham Partners International, Limited. Gotham Golf Partners, L.P. May 1997 - current, member of the 575 East Chocolate Avenue Executive Committee of Gotham Hershey, PA 17033 Golf Partners, L.P., which is (717) 312-1355 engaged in the acquisition, ownership and management of golf courses. First Union Real Estate Equity and June 1998 - current, Chairman of Mortgage Investments the Board of Trustees of the 125 Park Avenue Company, which is engaged in the New York, NY 10017 ownership and management of real-estate investments. ------------------------------------- ------------------------------------------- ----------------------------------- R. Daniel Mays Gotham Golf Partners, L.P. July 1996 - current, Chief Chief Executive Officer 575 East Chocolate Avenue Executive Officer of Gotham and Hershey, PA 17033 member of the Executive Committee (717) 312-1355 of Golf Partners, L.P., which is engaged in the acquisition, ownership and management of golf courses. ------------------------------------- ------------------------------------------- ----------------------------------- John Caporaletti Gotham Golf Partners, L.P. January 2000 - current, President President and Chief Operating 575 East Chocolate Avenue and Chief Operating Office of Officer Hershey, PA 17033 Gotham Golf Partners, L.P., which (717) 312-1355 is engaged in the acquisition, ownership and management of golf courses. August 1997 - January 2000, Vice President, of Gotham Golf Partners, L.P. ------------------------------------- ------------------------------------------- -----------------------------------
------------------------------------- ------------------------------------------- ----------------------------------- Peter H. Frost Gotham Golf Partners, L.P. January 2002 - current, Chief Chief Financial Officer 575 East Chocolate Avenue Financial Officer of Gotham Golf Hershey, PA 17033 Partners, L.P., which is engaged (717) 312-1355 in the acquisition, ownership and management of golf courses. The Boyd's Collection, Ltd. September 2000 - January 2002, 350 South Street Chief Financial Officer of The McSherrystown, PA 17344 Boyd's Collection, Ltd., a giftware designer and wholesaler. The Boyd's Collection, Ltd. April 1999 - August 2000, Vice 350 South Street President, Finance of The Boyd's McSherrystown, PA 17344 Collection, Ltd., a giftware designer and wholesaler. Enesco Corporation 1992 - March 1999, Corporate 225 Windsor Drive Controller at Enesco Corporation, Ithaca, IL 60143-1225 a giftware designer and wholesaler. ------------------------------------- ------------------------------------------- ----------------------------------- William F. Leahy Gotham Golf Partners, L.P. October 2000 - current, President Vice President, General Counsel 16850 Sudley Road and General Counsel of Gotham Centreville, VA 20120 Golf Partners, L.P., which is engaged in the acquisition, ownership and management of golf courses. Hale and Dorr LLP 1985 - October 2000, Senior The Willard Office Building Partner of Hale and Dorr LLP, a 1455 Pennsylvania Avenue, N.W. law firm. Washington, DC 20004 ------------------------------------- ------------------------------------------- -----------------------------------
------------------------------------- ------------------------------------------- ----------------------------------- Michael S. Armel Gotham Golf Partners, L.P. June 1998 - current, Vice Vice President 575 East Chocolate Avenue President of Gotham Golf Hershey, PA 17033 Partners, L.P., which is engaged (717) 312-1355 in the acquisition, ownership and management of golf courses. Fore Golf Services October 1996 - June 1998, 10688-C Crestwood Drive Executive Vice President of Fore Manassas, VA 20109 Golf Services, a golf course ownership and management company. ------------------------------------- ------------------------------------------- ----------------------------------- Andrew C. Bonus Gotham Golf Partners, L.P. March 1998 - current, Vice Vice President 575 East Chocolate Avenue President of Gotham Golf Hershey, PA 17033 Partners, L.P., which is engaged (717) 312-1355 in the acquisition, ownership and management of golf courses. KSL Fairways December 1993 - February 1998, 9540 Center Street Regional Manager of KSL Fairways, Suite 200 a golf course ownership and Manassas, VA 20110 management company. ------------------------------------- ------------------------------------------- ----------------------------------- Timothy L. Barefield GiftCertificates.com December 2001 - current, Chief 2815 Eastlake Avenue East Operating Officer of Suite 201 Giftcertificates.com, an online Seattle, WA 98102 incentives and gift certificates (206) 568-2500 company; September 2001 - December 2001, Executive Vice President of Operations of Giftcertificates.com; July 1999 - September 2001, Vice President of Human Resources of Giftcertificates.com. Swissotel Management June 1999 - February 2000, c/o Raffles International Holdings Vice-President of Human Resources 2 Stamford Road of Swissotel Management Corporation, Raffles City Convention Centre a hotel management company. Singapore 178882 ------------------------------------- ------------------------------------------- -----------------------------------
------------------------------------- ------------------------------------------- ----------------------------------- Accor North America, Inc. August 1997 - June 1999, 245 Park Avenue, 26th Floor Vice-President of Human Resources New York, NY 10167 of Accor North America, Inc., a hotel management company. Delray Farms, Inc. August 1995 - August 1997, 826 West Jackson, Suite 600 Director of Human Resources of Chicago, IL 60067 Delray Farms, Inc., a retail food company. ------------------------------------- ------------------------------------------- ----------------------------------- Dominic L. Chila DLC Management Group Inc. 1978 - current, President of DLC Director Designee 510 Walnut Street Management Group, Inc., which is Suite 420 engaged in the management of Philadelphia, PA 19106 parking lots and garages. (215) 829-8200 c/o DLC Management Group Inc. 1974 - current, Senior Partner of 510 Walnut Street Chila & Co., a certified public Suite 420 accounting firm. Philadelphia, PA 19106 (215) 829-8200 ------------------------------------- ------------------------------------------- ----------------------------------- Talton R. Embry Magten Asset Management Corp. 1998 - current, Chairman of 35 East 21st Street Magten Investment Management New York, NY 10010 Corp., a private investment (212) 529-6600 management company; 1978 - 1998, chief investment officer of Magten Investment Management Corp. ------------------------------------- ------------------------------------------- ----------------------------------- Harvey S. Klein JA-VA Inc. 1975 - current, President and 300B Laird Street Chief Executive Officer of JA-VA Wilkes-Barre, PA 18702 Inc., a real estate leasing and (570) 823-1466 development company. ------------------------------------- ------------------------------------------- -----------------------------------
------------------------------------- ------------------------------------------- ----------------------------------- Anthony E. Meyer Meyer and Co. LLC 2000 - current, Chairman of Meyer 551 Fifth Avenue and Co., a diversified merchant Suite 3100 banking firm. New York, NY 10176 (212) 389-6521 Lazard Freres & Co. From 1994 to 1999, Managing 30 Rockefeller Plaza Director in the real estate New York, NY 10020 division of Lazard Freres, an investment banking firm. ------------------------------------- ------------------------------------------- ----------------------------------- Allen J. Model Overseas Strategic Consulting, Ltd. 1993 - current, Managing Partner 1500 Walnut Street of Overseas Strategic Consulting, Suite 1300 Ltd., an international consulting Philadelphia, PA 19102 firm. --------------------------------------------------------------------------------------------------------------------- *An indicated position with GGC is the position the individual will assume upon completion of the proposed transaction. ---------------------------------------------------------------------------------------------------------------------
Florida Golf Properties, Inc. is a Florida corporation that is the general partner of Gotham Golf Partners, L.P. and, consequently, information relating to it is required to be reported on this Schedule 13E-3. Florida Golf Properties, Inc. is owned and controlled by R. Daniel Mays and Stephen J. Garchik. The principal address of Florida Golf Properties, Inc. is 575 East Chocolate Avenue, Hershey, Pennsylvania, 17033. Set forth below are the (i) name, (ii) address, (iii) current principal occupation or employment, and the name, principal business and address of any corporation or other organization in which the employment or occupation is conducted, (iv) material occupations, positions, offices or employment during the past five years, and the name, principal business and address of any corporation or other organization in which the occupation, position, office or employment was carried on, of each of the directors and executive officers of Florida Golf Properties, Inc.:
--------------------------------------- ----------------------------------------- ----------------------------------- Name; Position with Florida Golf Business Address; Business Phone Number Principal Occupation or Employment Properties, Inc. --------------------------------------- ----------------------------------------- ----------------------------------- R. Daniel Mays Florida Golf Properties, Inc. July 1996 - current, Chief Chief Executive Officer and Director c/o Gotham Golf Partners, L.P. Executive Officer and member of 575 East Chocolate Avenue, the Executive Committee of Gotham Hershey, Pennsylvania, 17033 Golf Partners, L.P., which is (717) 312-1355 engaged in the acquisition, ownership and management of golf courses. --------------------------------------- ----------------------------------------- -----------------------------------
--------------------------------------- ----------------------------------------- ----------------------------------- Stephen J. Garchik Gotham Golf Partners, L.P. May 1997 - current, Executive Senior Vice President, 575 East Chocolate Avenue, Committee Member, Gotham Golf Treasurer and Director Hershey, PA 17033 Partners, L.P., which is engaged (717) 312-1355 in the acquisition, ownership and management of golf courses. Mr. Garchik was Chief Executive Officer from May 1997 to February 2002 and has been Senior Vice President and Treasurer since January 2000. SJM Partners, Inc. January 1997 - current, President 9001 Congressional Court of SJM Partners, which provides Potomac, MD 20854 real estate consulting services (301) 299-8616 and is involved in real estate development projects. The Evans Company 1987 - current, President of The 1930 Isaac Newton Square W. Evans Company, which is involved Reston, VA 20190 in real estate developments (703) 467-8222 projects. --------------------------------------- ----------------------------------------- ----------------------------------- New River Valley Radio Partners and January 1997 - current, Managing Bay Media Radio Partners LLC Member of New River Valley Radio 1930 Isaac Newton Square W. Partners, which owns and manages Reston, VA 20190 a radio station. Mr. Garchik was (703) 467-8222 also Managing Member of Bay Media Radio Partners LLC, which owns and manages a radio station and a cable television business. East Coast Storage LLC September 1998 - current, 1930 Isaac Newton Square W. Managing Member, East Coast Reston, VA 20190 Storage LLC, which develops, owns (703) 467-8222 and operates self storage facilities. Gotham Partners, L.P. July 1999 - current, Consultant 10 East 42nd Street, 18th Floor to Gotham Partners, L.P. New York, NY 10017 regarding certain investments. --------------------------------------- ----------------------------------------- -----------------------------------
--------------------------------------- ----------------------------------------- ----------------------------------- John Caporaletti Florida Golf Properties, Inc. January 2000 - current, President President and Chief Operating Officer c/o Gotham Golf Partners, L.P. and Chief Operating Officer of 575 East Chocolate Avenue, Gotham Golf Partners, L.P., which Hershey, PA 17033 is engaged in the acquisition, (717) 312-1355 ownership and management of golf courses; August 1997 - January 2000, Vice President, of Gotham Golf Partners, L.P. --------------------------------------- ----------------------------------------- ----------------------------------- William F. Leahy Florida Golf Properties, Inc. October 2000 - current, Vice Secretary c/o Gotham Golf Partners, L.P. President and General Counsel of 16850 Sudley Road Gotham Golf Partners, L.P., which Centreville, VA 20120 is engaged in the acquisition, (703) 520-4216 ownership and management of golf courses. Hale and Dorr LLP 1985 - October 2000, Senior The Willard Office Building Partner of Hale and Dorr LLP, a 1455 Pennsylvania Avenue, N.W. law firm. Washington, DC 20004 --------------------------------------- ----------------------------------------- ----------------------------------- Michael S. Armel Florida Golf Properties, Inc. June 1998 - current, Vice Vice President c/o Gotham Golf Partners, L.P. President of Gotham Golf 575 East Chocolate Avenue, Partners, L.P., which is engaged Hershey, PA 17033 in the acquisition, ownership and (717) 312-1355 management of golf courses. Fore Golf Services October 1996 - June 1998, 10688-C Crestwood Drive Executive Vice President of Fore Manassas, VA 20109 Golf Services, a golf course ownership and management company. --------------------------------------- ----------------------------------------- -----------------------------------
--------------------------------------- ----------------------------------------- ----------------------------------- Andrew C. Bonus Florida Golf Properties, Inc. March 1998 - current, Vice Vice President c/o Gotham Golf Partners, L.P. President of Gotham Golf 575 East Chocolate Avenue, Partners, L.P., which is engaged Hershey, PA 17033 in the acquisition, ownership and (717) 312-1355 management of golf courses. KSL Fairways December 1993 - February 1998, 9540 Center Street Regional Manager of KSL Fairways, Suite 200 a golf course ownership and Manassas, VA 20110 management company. --------------------------------------- ----------------------------------------- -----------------------------------
(c) (3) - (5) None of the persons described in this paragraph (c) was convicted in a criminal proceeding during the past five years (excluding traffic violations or similar misdemeanors). None of the persons described in this paragraph (c) was a party to any judicial or administrative proceeding during the past five years (except for matters that were dismissed without sanction or settlement) that resulted in a judgment, decree or final order enjoining the person from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of federal or state securities laws. With the exception of Peter Frost, who is a citizen of the United Kingdom, each of the persons described in this paragraph (c) is a citizen of the United States of America. ITEM 4. TERMS OF THE TRANSACTION Item 1004 of Regulation M-A. (a) The information contained in the sections entitled "SUMMARY - The Proposed Transaction," "THE PROPOSED TRANSACTION," "COMPARISON OF SHAREHOLDER RIGHTS," and "REQUIRED VOTE FOR THE PROPOSED TRANSACTION" in the Form S-4 is incorporated herein by this reference. (c) The terms of the Merger treat the holders of the Common Shares differently from the holders of the Company's Series A Cumulative Convertible Redeemable Preferred Shares of Beneficial Interest, Liquidation Value $25.00 per share and holders of the Company's 8.875% Senior Notes, due September 15, 2003 (such notes the, "Senior Notes"). Information contained in the sections entitled "THE PROPOSED TRANSACTION " and "THE MERGER AGREEMENT" in the Form S-4 is incorporated herein by this reference. (d) The information contained in the section entitled "THE PROPOSED TRANSACTION - No Dissenters' Rights Or Appraisal Rights" in the Form S-4 is incorporated herein by this reference. (e) None. (f) The information contained in the section entitled "THE MERGER AGREEMENT - Market Listing" in the Form S-4 is incorporated herein by this reference. In addition, GGC is currently in discussions with national securities exchanges regarding the feasibility of listing all of its securities, other than the Senior Notes which it will assume pursuant to the Merger Agreement, on a national securities exchange or authorized to be traded on an automated quotation system operation by a national securities association. ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS Item 1005 of Regulation M-A. (a),(b) and (c) None. (e) The information contained in the sections entitled "CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS - Registration Rights Agreement With Gotham Partners" and "THE VOTING AGREEMENT" in the Form S-4 is incorporated herein by this reference. ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS Item 1006 of Regulation M-A. (c) (1) - (8) The information contained in the sections entitled "THE PROPOSED TRANSACTION," "THE MERGER AGREEMENT" and "GOTHAM GOLF CORP" in the Form S-4 is incorporated herein by this reference. ITEM 7. PURPOSES, ALTERNATIVES, REASONS AND EFFECTS Item 1013 of Regulation M-A. (a) The information contained in the sections entitled "THE PROPOSED TRANSACTION - Background," "THE PROPOSED TRANSACTION - Consideration of the Proposed Terms," "THE PROPOSED TRANSACTION - Recommendation of the Special Committee," "THE PROPOSED TRANSACTION - Recommendation of the First Union Board of Trustees," "THE PROPOSED TRANSACTION - Fairness of the Proposed Transaction" and "THE PROPOSED TRANSACTION - The Gotham Parties' Reasons for the Proposed Transaction and Determination of Fairness" in the Form S-4 is incorporated herein by this reference. (b) and (c) The information contained in the section entitled "THE PROPOSED TRANSACTION - Background" in the Form S-4 is incorporated herein by this reference. (d) The information contained in the sections entitled "THE PROPOSED TRANSACTION-Background," "THE PROPOSED TRANSACTION - Material Federal Income Tax Consequences to U.S. Holders," "THE PROPOSED TRANSACTION - Material Federal Income Tax Consequences to Non-U.S. Holders," "THE PROPOSED TRANSACTION - Tax Considerations Relating to the Notes," and "UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS FOR GGC" and "THE MERGER AGREEMENT" in the Form S-4 is incorporated herein by this reference. ITEM 8. FAIRNESS OF THE TRANSACTION Item 1014 of Regulation M-A. (a) -The information contained in the sections entitled "THE PROPOSED TRANSACTION - Background," "THE PROPOSED TRANSACTION - Recommendation of the Special Committee," "THE PROPOSED TRANSACTION - Fairness of the Proposed Transaction," "THE PROPOSED TRANSACTION - Recommendation of First Union's Board of Trustees" and "THE PROPOSED TRANSACTION - The Gotham Parties' Determination of Fairness" in the Form S-4 is incorporated herein by this reference. (b) The information contained in the sections entitled "THE PROPOSED TRANSACTION - Fairness of the Proposed Transaction" and "THE PROPOSED TRANSACTION - The Gotham Parties' Determination of Fairness" in the Form S-4 is incorporated herein by this reference. (c) The information contained in the section entitled "THE SPECIAL MEETING-Vote Required for Approval of the Merger Agreement" in the Form S-4 is incorporated herein by this reference. (d) The information contained in the section entitled "THE PROPOSED TRANSACTION-Background" in the Form S-4 is incorporated herein by this reference. (e) The information contained in the section entitled "THE PROPOSED TRANSACTION-Recommendation of First Union's Board of Trustees" in the Form S-4 is incorporated herein by this reference. (f) None. ITEM 9. REPORTS, OPINIONS, APPRAISALS AND NEGOTIATIONS Item 1015 of Regulation M-A. (a) - (c) The information contained in the sections entitled "THE PROPOSED TRANSACTION - Background" and "THE PROPOSED TRANSACTION - Opinion of the Special Committee's Financial Advisors" in the Form S-4 is incorporated herein by this reference. ITEM 10. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION Item 1007 of Regulation M-A. (a) - (d) The information contained in the section entitled "FINANCING; SOURCE AND AMOUNT OF FUNDS" in the Form S-4 is incorporated herein by this reference. If the holders of Company Common Shares elect to receive cash consideration, and there are no reductions in the merger consideration paid as part of the Merger (including, without limitations, those deductions described in the section entitled "THE MERGER AGREEMENT" in the Form S-4, which is incorporated herein by this reference), the total amount of funds paid to holders of Company Common Shares is expected to be approximately $81.8 million. If the holders of Company Common Shares elect to receive securities rather than cash consideration they could receive debt securities with a total face amount of $20 million and common stock of approximately $41.8 million, and the balance of their consideration, if any, in cash. There are no conditional financing arrangements or alternative financing arrangements for the proposed transaction. The currently estimated fees and expenses for the proposed transaction are as follows: (1) filing fees - $12,988; (2) legal fees - $5.8 million; (3) financial advisory fees - $1.7 million; (4) accounting fees - $1.7 million; (5) solicitation expenses - $70,000; (6) printing costs - $235,000; (7) appraiser's fees - $20,000 and (8) administrative expenses - $250,000. In addition, the information contained in the section entitled "THE MERGER AGREEMENT - Expense Reimbursement" in the Form S-4 is incorporated herein by this reference. ITEM 11. INTEREST IN SECURITIES OF THE SUBJECT COMPANY Item 1008 of Regulation M-A. (a) The information contained in the section entitled "SECURITY OWNERSHIP OF TRUSTEES AND OFFICERS, CERTAIN BENEFICIAL OWNERS, CONTROLLING PERSONS AND EXECUTIVE OFFICERS AND DIRECTORS OF PERSONS ULTIMATELY IN CONTROL OF THE COMPANY" in the Form S-4 is incorporated herein by this reference. (b) None. ITEM 12. THE SOLICITATION OR RECOMMENDATION Item 1012 of Regulation M-A. (d) The information contained in the section entitled "THE VOTING AGREEMENT" in the Form S-4 is incorporated herein by this reference. (e) The information contained in the section entitled "THE PROPOSED TRANSACTION-Recommendation of First Union's Board of Trustees" in the Form S-4 is incorporated herein by this reference. ITEM 13. FINANCIAL STATEMENTS Item 1010 of Regulation M-A. (a) and (b) The information contained in the section entitled "FINANCIAL STATEMENTS" in the Form S-4 is incorporated herein by this reference. ITEM 14. PERSONS/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED Item 1009 of Regulation M-A. (a) The information contained in the section entitled "THE SPECIAL MEETING-Solicitation of Proxies" in the Form S-4 is incorporated herein by this reference. (b) None. ITEM 15. ADDITIONAL INFORMATION Item 1011 of Regulation M-A. (b) The information contained in the Form S-4 is incorporated herein by this reference. ITEM 16. EXHIBITS (a) (2) (A) Proxy Statement-Prospectus of the Company and GGC. Incorporated herein by reference to the separate filing on Form S-4 made concurrently herewith. (a) (2) (B) Joint Press Release of the Company and Gotham Partners, L.P., dated February 14, 2002. (a) (2) (C) Form of Proxy. (b) Not applicable. (c) (1) Fairness Opinion of Duff & Phelps LLC as filed in the Form S-4. (c) (2) Duff & Phelps LLC's Fairness Analysis to the Special Committee of the Board of Trustees of First Union Real Estate Equity and Mortgage Investments, the Trustee of the FUMI Share Trust and the Board of Directors of First Union Management, Inc., dated as of February 12, 2002. (c) (3) Duff & Phelps LLC's Liquidation Analysis to the Board of Trustees of First Union Real Estate Equity and Mortgage Investments, dated as of January 18, 2002. (c) (4) Duff & Phelps LLC's Draft Valuation Analysis of GGC, dated August 21, 2001. (c) (5) Cushman & Wakefield of Texas, Inc.'s Complete Appraisal of Real Property, Park Plaza Mall, dated May 10, 2001. (c) (6) Memorandum by US Bancorp Libra to Daniel Altobello, dated April 17, 2001. (d) Voting Agreement, dated February 13, 2002. Incorporated by reference to the separate filing on Form S-4 made concurrently herewith. (f) None. (g) None. SIGNATURES 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. Dated: May 13, 2002 FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS By: /s/ Daniel J. Altobello ---------------------------------- Daniel J. Altobello Trustee GOTHAM GOLF CORP By: /s/ William F. Leahy ---------------------------------- William F. Leahy President GGC MERGER SUB, INC. By: /s/ William F. Leahy ---------------------------------- William F. Leahy President FLORIDA GOLF PROPERTIES, INC. By: /s/ John Caporaletti ---------------------------------- John Caporaletti President GOTHAM PARTNERS, L.P. By: Section H Partners, L.P., its general partner By: Karenina Corporation a general partner of Section H Partners, L.P. By: /s/ William A. Ackman ---------------------------------- William A. Ackman President GOTHAM PARTNERS III, L.P. By: Section H Partners, L.P., its general partner By: Karenina Corporation a general partner of Section H Partners, L.P. By: /s/ William A. Ackman ---------------------------------- William A. Ackman President SECTION H PARTNERS, L.P. By: Karenina Corporation a general partner of Section H Partners, L.P. By: /s/ William A. Ackman ---------------------------------- William A. Ackman President KARENINA CORPORATION By: /s/ William A. Ackman ---------------------------------- William A. Ackman President DPB CORP. By: /s/ David P. Berkowitz ---------------------------------- David P. Berkowitz President GOTHAM HOLDINGS II, L.L.C. By: Gotham Holdings Management LLC, the Manager By: /s/ William A. Ackam ---------------------------------- William A. Ackam Senior Managing Member GOTHAM INTERNATIONAL ADVISORS, L.L.C. By: /s/ William A. Ackman ---------------------------------- William A. Ackman Senior Managing Member EXHIBIT INDEX
Exhibit No. Description ----------------------------------------------------------------------------------------------------------------------- (a) (2) (A) Proxy Statement-Prospectus of the Company and GGC. Incorporated by reference to the separate filing on Form S-4 made concurrently herewith. (a) (2) (B) Joint Press Release of the Company and Gotham Partners, L.P., dated February 14, 2002. Incorporated by reference to the Company's filing on Form 8-K filed February 14, 2002. (a) (2) (C) Form of Proxy. Incorporated by reference to the separate filing on Form S-4 made concurrently herewith. (c) (1) Fairness Opinion of Duff & Phelps LLC. Incorporated by reference to the separate filing on Form S-4 made concurrently herewith. (c) (2) Duff & Phelps LLC's Fairness Analysis to the Special Committee of the Board of Trustees of First Union Real Estate Equity and Mortgage Investments, the Trustee of the FUMI Share Trust and the Board of Directors of First Union Management, Inc., dated as of February 12, 2002. (c) (3) Duff & Phelps LLC's Liquidation Analysis to the Board of Trustees of First Union Real Estate Equity and Mortgage Investments, dated as of January 18, 2002. (c) (4) Duff & Phelps LLC's Draft Valuation Analysis of GGC, dated August 21, 2001. (c) (5) Cushman & Wakefield of Texas, Inc.'s Complete Appraisal of Real Property, Park Plaza Mall, dated May 10, 2001. (c) (6) Memorandum by US Bancorp Libra to Daniel Altobello, dated April 17, 2001. (d) Voting Agreement, dated February 13, 2002. Incorporated herein by reference to the separate filing on Form S-4 made concurrently herewith.