SC 13E3/A 1 dsc13e3a.txt AMENDMENT NO. 2 TO SCHEDULE 13E-3 As Filed with the Securities and Exchange Commission on August 26, 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 (Amendment No. 2) 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. William A. Ackman Talton R. Embry (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. 20004-1008 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, representing the aggregate cash and securities and other property to be received by the Issuer as consideration for the transaction............. $0.00
================================================================================ * 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 2 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. ("Gotham Golf Corp") 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 Gotham Golf Corp and Southwest Shopping Centers Co. II, LLC, an indirect, wholly-owned subsidiary of the Company ("Southwest Shopping Centers"), relating to the (i) 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 Gotham Golf Corp and Southwest Shopping Centers 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. In addition, on December 12, 2000, 1,000,000 Company Common Shares were purchased for the account of Gotham International Advisors, L.L.C. at $2.38 per share. On November 30, 2001, 2,383,030 Company Common Shares were purchased for the account of Gotham Partners, L.P. and 48,634 Company Common Shares were purchased for the account of Gotham Partners III, L.P. at $2.44 per share, respectively. Further, on December 31, 2001, 2,431,664 Company Common Shares were purchased for the account of Gotham International Advisors, L.L.C. at $2.40 per share. Other than as disclosed in the aforementioned Schedules 13D, there have been no purchases within the past two years by any person who is a filer to this Schedule 13E-3. 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 3 Partners, L.P.," and "SPECIAL FACTORS--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 or similar vehicle with investments in the Company. The Manager of Gotham Holdings II, L.L.C. is Gotham Holdings Management L.L.C. William A. Ackman and David P. Berkowitz are the managing members of Gotham Holdings Management L.L.C. In addition, William A. Ackman and David P. Berkowitz serve as senior managing members of Gotham International Advisors, L.L.C. 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. In addition, since January 1993, Mr. David P. Berkowitz has been employed as co-investment manager of the following investment funds: Gotham Partners, L.P., Gotham Partners III, L.P. and Gotham Partners International, Limited. Since May 1997, Mr. David P. Berkowitz has served as a member of the Executive Committee of Gotham Golf Partners, L.P. Further, from June 1998 through September 2000, Mr. David P. Berkowitz served as a member of the Company's Board of Trustees. Please see below regarding Mr. Ackman's current principal occupation and material occupation, positions, offices or employment held during the past five years. The principal office of the immediately foregoing persons and entities is located at: c/o Gotham Partners Management Co., L.P., 110 East 42nd Street, 19th Floor, New York, New York, 10017. The telephone number of the Company's principal offices is (212) 949-1373. In addition to Mr. Ackman, the following individuals serve on the Board of Trustees of the Company: Daniel J. Altobello, Altobello Family Partners, 6550 Rock Spring Drive, Suite 550, Bethesda, MD 20817; Bruce R. Berkowitz, Fairholme Capital Management, 51 JFK Parkway, Short Hills, NJ 07078; Jeffrey B. Citrin, Blackacre Capital Management LLC, 450 Park Avenue, 28th Floor, New York, NY 10022; and Talton R. Embry, Magten Asset Management Corp., 35 East 21st Street New York, NY 10010. 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 Gotham Golf Corp'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) and (2) Mr. Daniel J. Altobello is chairman of Altobello Family Partners, an investment partnership, and has been a partner in Ariston Investment Partners, a consulting firm, since October 1995. Mr. Altobello was Chairman of the Board of ONEX Food Services, Inc., an airline catering company, from October 1995 to January 2000. See Item (a), above, for the address of Altobello Family Partners. Mr. Bruce R. Berkowitz has been Managing Member of Fairholme Capital Management L.L.C., a registered investment adviser, since June 1997 and President and Director of Fairholme Funds, Inc., a registered investment company under the Investment Company Act of 1940, since December 1999. Since December 2001, Mr. Berkowitz is also a Director and Deputy Chairman of Olympus Re Holdings, Ltd. and Olympus Reinsurance Company, Ltd., both of Bermuda. He also served as Managing Director of Smith Barney, Inc., a subsidiary of the Travelers Inc., a diversified financial services holding company, from 1995 to May 1997. See Item (a), above, for the address of Fairholme Capital Management. Mr. Jeffrey Citrin has been President of Blackacre Capital Management LLC, a private fund engaged in real estate investment, since 1994. See Item (a) above for the address of Blackacre Capital Management LLC. Mr. Talton R. Embry has been chairman of Magten Asset Management Corp., a private investment management company, since 1998, and was previously chief investment officer, since 1978. See Item (a), above, for the address of Magten Asset Management Corp. 4 Mr. William A. Ackman, who serves as the Company's Chairman, is also the President, sole director and sole shareholder of Karenina Corporation. Mr. David P. Berkowitz, is the President, sole director and sole shareholder of DPB Corp. Gotham Golf Corp 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 Gotham Golf Corp:
Name; Position with Gotham Golf Corp* Business Address; Business Phone Number Principal Occupation or Employment ------------------------------------- --------------------------------------- ---------------------------------- William A. Ackman.................. Gotham Partners Management Co., L.P. January 1993-current, co- Chairman of the Board 110 East 42nd Street, 18th Floor 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 575 East Chocolate Avenue the Executive Committee of Hershey, PA 17033 Gotham Golf Partners, L.P., (717) 312-1355 which is 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 New York, NY 10017 the 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 and member Hershey, PA 17033 of the Executive Committee of (717) 312-1355 Gotham 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 Officer of Officer Hershey, PA 17033 Gotham Golf Partners, L.P., (717) 312-1355 which engaged in the acquisition, ownership and management of golf courses.
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Name; Position with Gotham Golf Corp* Business Address; Business Phone Number Principal Occupation or Employment ------------------------------------- --------------------------------------- ---------------------------------- 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, Itasca, IL 60143-1225 a giftware designer and wholesaler. William F. Leahy................. Gotham Golf Partners, L.P. October 2000-current, General Secretary, General Counsel 16850 Sudley Road Counsel of Gotham Golf Partners, Centreville, VA 20120 L.P., which is engaged in the acquisition, ownership and management of golf courses. January 2001-current, of Secretary Gotham Golf Partners, L.P. 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 President Vice President 575 East Chocolate Avenue of Gotham Golf Partners, L.P., Hershey, PA 17033 which is engaged in the (717) 312-1355 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 the acquisition, ownership and management of golf courses.
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Name; Position with Gotham Golf Corp* Business Address; Business Phone Number Principal Occupation or Employment ------------------------------------- --------------------------------------- ---------------------------------- KSL Fairways December 1993-February 1998, 9540 Center Street Regional Manager of KSL Suite 200 Fairways, a golf course ownership Manassas, VA 20110 and management company. Timothy L. Barefield......... GiftCertificates.com December 2001-current, Chief Director Designee 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, Vice- c/o Raffles International Holdings President of Human Resources of 2 Stamford Road Swissotel Management Raffles City Convention Centre Corporation, a hotel management Singapore 178882 company. Accor North America, Inc. August 1997-June 1999, Vice- 245 Park Avenue, 26th Floor President of Human Resources of New York, NY 10167 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 Suite 420 is 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 Director Designee 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 Chief Director Designee 300B Laird Street Executive Officer of JA-VA Inc., Wilkes-Barre, PA 18702 a real estate leasing and (570) 823-1466 development company.
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Name; Position with Gotham Golf Corp* Business Address; Business Phone Number Principal Occupation or Employment ------------------------------------- --------------------------------------- ---------------------------------- Anthony E. Meyer............. Meyer and Co. LLC 2000-current, Chairman of Meyer Director Designee 551 Fifth Avenue and Co., a diversified merchant Suite 3100 banking firm. New York, NY 10176 (212) 389-6521 Lazard Freres & Co. 1994-1999, Managing Director in 30 Rockefeller Plaza the real estate division of Lazard New York, NY 10020 Freres & Co., an investment banking firm. Allen J. Model............... Overseas Strategic Consulting, Ltd. 1993-current, Managing Partner Director Designee 1500 Walnut Street of Overseas Strategic Consulting, Suite 1300 Ltd., an international consulting Philadelphia, PA 19102 firm.
-------- * An indicated position with Gotham Golf Corp 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, 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 Florida Golf Properties, Inc.:
Name; Position with Florida Golf Properties, Inc. Business Address; Business Phone Number Principal Occupation or Employment ----------------------------- --------------------------------------- ----------------------------------- R. Daniel Mays................... Florida Golf Properties, Inc. July 1996-current, Chief Chief Executive Officer and c/o Gotham Golf Partners, L.P. Executive Officer and member of Director 575 East Chocolate Avenue, the Executive Committee of Hershey, PA 17033 Gotham Golf Partners, L.P., (717) 312-1355 which is 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 in (717) 312-1355 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 of 9001 Congressional Court SJM Partners, which provides real Potomac, MD 20854 estate consulting services and is (301) 299-8616 involved in real estate development projects.
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Name; Position with Florida Golf Properties, Inc. Business Address; Business Phone Number Principal Occupation or Employment ----------------------------- --------------------------------------- ---------------------------------- The Evans Company 1987-current, President of The 1930 Isaac Newton Square W. Evans Company, which is Reston, VA 20190 involved in real estate (703) 467-8222 development projects. New River Valley Radio Partners January 1997-current, Managing and Bay Media Radio Partners LLC Member of New River Valley 1930 Isaac Newton Square W. Radio Partners, which owns and Reston, VA 20190 manages a radio station. Mr. (703) 467-8222 Garchik was 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, (703) 467-8222 owns and operates self-storage facilities. Gotham Partners, L.P. July 1999-current, Consultant to 110 East 42nd Street, 18th Floor Gotham Partners, L.P. regarding New York, NY 10017 certain investments. First Union Real Estate Equity and June 1998-December 2000, member Mortgage Investments of the Board of Trustees of the 125 Park Avenue company, which is engaged in the New York, NY 10017 ownership and management of (212) 949-1373 real estate investments. John Caporaletti................... Florida Golf Properties, Inc. January 2001-current, President President and Chief Operating c/o Gotham Golf Partners, L.P. and Chief Operating Officer of Officer 575 East Chocolate Avenue, Gotham Golf Partners, L.P., Hershey, PA 17033 which is engaged in the (717) 312-1355 acquisition, 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, General Secretary c/o Gotham Golf Partners, L.P. Counsel of Gotham Golf Partners, 16850 Sudley Road L.P., which is engaged in the Centreville, VA 20120 acquisition, ownership and (703) 520-4216 management of golf courses. January 2001-current, Secretary of Gotham Golf Partners, L.P. 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
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Name; Position with Florida Golf Properties, Inc. Business Address; Business Phone Number Principal Occupation or Employment ----------------------------- --------------------------------------- ----------------------------------- Michael S. Armel....... Florida Golf Properties, Inc. June 1998-current, Vice President Vice President c/o Gotham Golf Partners, L.P. of Gotham Golf Partners, L.P., 575 East Chocolate Avenue, which is engaged in the Hershey, PA 17033 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 in Hershey, PA 17033 the acquisition, ownership and (717) 312-1355 management of golf courses. KSL Fairways December 1993-February 1998, 9540 Center Street Regional Manager of KSL Suite 200 Fairways, a golf course ownership Manassas, VA 20110 and 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," "SPECIAL FACTORS," "COMPARISON OF SHAREHOLDER RIGHTS," and "THE SPECIAL MEETING--Vote Required 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 "SPECIAL FACTORS" and "THE MERGER AGREEMENT" in the Form S-4 is incorporated herein by this reference. (d) The information contained in the section entitled "SPECIAL FACTORS--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, Gotham Golf Corp 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. 10 Item 5. Past Contacts, Transactions, Negotiations and Agreements Item 1005 of Regulation M-A. (a) None. (b) The information contained in the section entitled "THE VOTING AGREEMENT" in the Form S-4 is incorporated herein by this reference. (c) 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 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. (b) The information contained in the sections entitled "QUESTIONS AND ANSWERS ABOUT SPECIAL FACTORS," "THE MERGER AGREEMENT--Structure and Effective Time," "THE MERGER AGREEMENT--Merger Consideration," and "THE MERGER AGREEMENT--Effect of Proposed Transaction on Other Securities of First Union" in the Form S-4 is incorporated herein by this reference. (c) (1)-(8) The information contained in the sections entitled "SPECIAL FACTORS," "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 "SPECIAL FACTORS--Background," "SPECIAL FACTORS--Consideration of the Proposed Terms," "SPECIAL FACTORS--Recommendation of the Special Committee," "SPECIAL FACTORS--Recommendation of the First Union Board of Trustees," "SPECIAL FACTORS--Fairness of the Proposed Transaction" and "SPECIAL FACTORS--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 "SPECIAL FACTORS--Background" in the Form S-4 is incorporated herein by this reference. (d) The information contained in the sections entitled "SPECIAL FACTORS--Background," "SPECIAL FACTORS--Material Federal Income Tax Consequences to U.S. Holders," "SPECIAL FACTORS--Material Federal Income Tax Consequences to Non-U.S. Holders," "SPECIAL FACTORS--Tax Considerations Relating to the Notes," and "UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS FOR Gotham Golf Corp" and "THE MERGER AGREEMENT" in the Form S-4 is incorporated herein by this reference. 11 Item 8. Fairness of the Transaction Item 1014 of Regulation M-A. (a) The information contained in the sections entitled "SPECIAL FACTORS--Background," "SPECIAL FACTORS--Recommendation of the Special Committee," "SPECIAL FACTORS--Fairness of the Proposed Transaction," "SPECIAL FACTORS--Recommendation of First Union's Board of Trustees" and "SPECIAL FACTORS--Gotham Parties' Reasons for the Proposed Transaction and Determination of Fairness" in the Form S-4 is incorporated herein by this reference. (b) The information contained in the sections entitled "SPECIAL FACTORS--Fairness of the Proposed Transaction" and "SPECIAL FACTORS--The Gotham Parties' Reasons for the Proposed Transaction and 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 Proposed Transaction" in the Form S-4 is incorporated herein by this reference. (d) The information contained in the section entitled "SPECIAL FACTORS--Background" in the Form S-4 is incorporated herein by this reference. (e) The information contained in the section entitled "SPECIAL FACTORS--Recommendation of First Union's Board of Trustees" in the Form S-4 is incorporated herein by this reference. (f) On June 28, 2002, 3,500 Company Common Shares were sold for the account of Mr. Embry at $2.21 per share. On June 30, 2002, 2,543,040 Company Common Shares were distributed in kind to clients of Magten Asset Management Corp. ("Magten"), an investment advisory firm controlled by Mr. Embry. Prior to the distribution, Magten had held the shares for its clients and, with Mr. Embry, had been deemed to beneficially own the shares. Item 9. Reports, Opinions, Appraisals and Negotiations Item 1015 of Regulation M-A. (a)-(c) The information contained in the sections entitled "SPECIAL FACTORS--Background" and "SPECIAL FACTORS--Opinion of the Special Committee's Financial Advisors" in the Form S-4 is incorporated herein by this reference. No filing party to this Schedule 13E-3 other than First Union and Mr. Embry, in his capacity as a First Union board member, has received any reports, opinions or appraisals from an outside party that are materially related to the proposed transaction. 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 can 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 and Fee Reimbursement" in the Form S-4 is incorporated herein by this reference. 12 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 COMPANY" in the Form S-4 is incorporated herein by this reference. In addition, with respect to the filing parties of this Schedule 13E-3 other than First Union, Gotham Golf Corp, Gotham Golf Partners, Florida Golf Properties, Inc. and Mr. Embry, the information set forth in the Schedule 13D filings by such parties, as amended, is incorporated herein by this reference. The most recent Schedule 13D filing by such persons was filed on May 16, 2002 as Amendment No. 45. The information set forth in the Schedule 13D filings of Mr. Embry is incorporated herein by this reference. The most recent Schedule 13D filing by Mr. Embry was filed on July 12, 2002 as Amendment No. 3. In addition, the following director designees of Gotham Golf Corp own or may be deemed to own First Union common shares in the amounts indicated below:
Number of Percent of Name Shares Class ---- --------- ---------- Timothy L. Barefield.................... 1,050(1) * Anthony E. Meyer........................ 35,000 *
-------- *Less than one percent. (1) Consists of 600 shares beneficially owned by Michael Barefield, Mr. Barefield's son, and 450 shares beneficially owned by Stephanie Barefield, Mr. Barefield's daughter. (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 "SPECIAL FACTORS--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. Gotham Golf Corp has retained Mercury Partners LLC and its affiliates ("Mercury Partners") to act as its financial advisor in connection with the proposed transaction 13 between First Union and Gotham Golf Corp. The engagement letter between Gotham Golf Corp and Mercury Partners (the "Engagement Letter") provides that Gotham Golf Corp will compensate Mercury Partners as follows: (a) a retainer fee of $50,000 and, upon the execution of the agreement in the Engagement Letter, an additional $100,000; (b) a financial advisory fee at the closing of the subscription rights offering equal to 2% of the aggregate subscription price for the subscription rights exercised or Gotham Golf Corp common shares purchased for between $0 and $5 million, plus 0.5% of the aggregate subscription price for the subscription rights exercised or Gotham Golf Corp common shares purchased for between $5 and $30 million, plus 0.75% of the aggregate subscription price for the subscription rights exercised or Gotham Golf Corp shares purchased for in excess of $30 million; and (c) a financial advisory fee equal to 0.5% of any equity, preferred, mezzanine or convertible or participating investment or joint venture capital for Gotham Golf Corp when such investment is funded (provided that the investment is funded on or prior to 12 months from and after the date of the Engagement Letter and that during such 12 month period, any such investment is funded by or on behalf of a person or persons solicited by Mercury Partners for any such investment in connection with this agreement). The Engagement Letter provides that Gotham Golf Corp will reimburse Mercury Partners for reasonable out-of-pocket expenses, and that Gotham Golf Corp will indemnify Mercury Partners and certain related persons against certain liabilities arising out of its engagement. (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 Gotham Golf Corp. 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. (b) Not applicable. (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 28, 2002. (c) (4) 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. 14 (c) (5) U.S. Bancorp Libra's Updated Summary of the Preliminary Estimated Range of Orderly Liquidation Values to the Special Committee of the Board of Trustees of First Union Real Estate Equity and Mortgage Investments, dated as of June 30, 2001 and presented to the Special Committee on August 29, 2001. (c) (6) Duff & Phelps LLC's Draft Valuation Analysis of Gotham Golf Corp., dated August 22, 2001. (c) (7) Duff & Phelps LLC's Draft Valuation Analysis of Gotham Golf Corp., dated August 21, 2001. (c) (8) U.S. Bancorp Libra's Summary of Certain Extraordinary Transactions to the Special Committee of the Board of Trustees of First Union Real Estate Equity and Mortgage Investments, dated as of August 13, 2001. (c) (9) U.S. Bancorp Libra's Summary of the Preliminary Estimated Range of Orderly Liquidation Values to the Special Committee of the Board of Trustees of First Union Real Estate Equity and Mortgage Investments, dated as of March 31, 2001 and delivered to the Special Committee on June 9, 2001. (c) (10) Cushman & Wakefield of Texas, Inc.'s Complete Appraisal of Real Property, Park Plaza Mall, dated May 10, 2001.* (c) (11) Memorandum by U.S. 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. * Certain text from this exhibit has been redacted pursuant to an application for confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission. 15 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: August 26, 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 16 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. ACKMAN ----------------------------------- William A. Ackman Senior Managing Member 17 GOTHAM INTERNATIONAL ADVISORS, L.L.C. By: /S/ WILLIAM A. ACKMAN ----------------------------- William A. Ackman Senior Managing Member By: /S/ WILLIAM A. ACKMAN ----------------------------- William A. Ackman By: /S/ TALTON R. EMBRY ----------------------------- Talton R. Embry 18 EXHIBIT INDEX
Exhibit No. Description ----------- ----------- (a)(2)(A) Proxy Statement-Prospectus of the Company and Gotham Golf Corp. 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 January 28, 2002. (c)(4) 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)(5) U.S. Bancorp Libra's Updated Summary of the Preliminary Estimated Range of Orderly Liquidation Values to the Special Committee of the Board of Trustees of First Union Real Estate Equity and Mortgage Investments, dated as of June 30, 2001, and presented to the Special Committee on August 29, 2001. (c)(6) Duff & Phelps LLC's Draft Valuation Analysis of Gotham Golf Corp., dated August 22, 2001. (c)(7) Duff & Phelps LLC's Draft Valuation Analysis of Gotham Golf Corp., dated August 21, 2001. (c)(8) U.S. Bancorp Libra's Summary of Certain Extraordinary Transactions to the Special Committee of the Board of Trustees of First Union Real Estate Equity and Mortgage Investments, dated as of August 13, 2001. (c)(9) U.S. Bancorp Libra's Updated Summary of the Preliminary Estimated Range of Orderly Liquidation Values to the Special Committee of the Board of Trustees of First Union Real Estate Equity and Mortgage Investments, dated as of March 31, 2001 and delivered to the Special Committee on June 9, 2001. (c)(10) Cushman & Wakefield of Texas, Inc.'s Complete Appraisal of Real Property, Park Plaza Mall, dated May 10, 2001. (c)(11) Memorandum by U.S. 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.
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