-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, pl0K9iEuJgFLgpd9LUoymX1cmB1nMoAy1YzXGpYXYMHsSRQS1rYDUAK5dKLpXKCM 8MZBp7l5KnEwIDA5dlDNfA== 0000950152-95-000978.txt : 19950517 0000950152-95-000978.hdr.sgml : 19950516 ACCESSION NUMBER: 0000950152-95-000978 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19950512 EFFECTIVENESS DATE: 19950531 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: FIRST UNION REAL ESTATE EQUITY & MORTGAGE INVESTMENTS CENTRAL INDEX KEY: 0000037008 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 346513657 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-59297 FILM NUMBER: 95537817 BUSINESS ADDRESS: STREET 1: 55 PUBLIC SQUARE STREET 2: SUITE 1910 CITY: CLEVELAND STATE: OH ZIP: 44113 BUSINESS PHONE: 2167814030 MAIL ADDRESS: STREET 1: 55 PUBLIC SQUARE SUITE 1910 CITY: CLEVELAND STATE: OH ZIP: 44113 FORMER COMPANY: FORMER CONFORMED NAME: FIRST UNION REALTY DATE OF NAME CHANGE: 19691012 S-8 1 FIRST UNION S-8 1 As filed with the Securities and Exchange Commission on May 12, 1995 Registration Statement No. 33-_____________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------------- FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS (Exact name of registrant as specified in its charter) OHIO 34-6513657 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) Suite 1900, 55 Public Square Cleveland, Ohio 44113-1937 (Address of principal executive offices) FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS 1981 EMPLOYEE SHARE OPTION PLAN, AS AMENDED (Full title of the plan) ----------------------- Paul F. Levin Senior Vice President - General Counsel and Secretary First Union Real Estate Equity and Mortgage Investments Suite 1900, 55 Public Square Cleveland, Ohio 44113-1937 (216) 781-4030 ----------------------- (Name, address, and telephone number, including area code, of agent for service) ----------------------- CALCULATION OF REGISTRATION FEE
================================================================================================================= Number of shares Proposed maximum Proposed maximum Title of shares to to be offering price aggregate Amount of registration be registered registered(1) per share(2) offering price(2) fee(2) - ----------------------------------------------------------------------------------------------------------------- Shares of Beneficial 200,000 $7.25 $1,450,000.00 $500.00 Interest (3) =================================================================================================================
(1) The 200,000 Shares of Beneficial Interest to be registered are in addition to 400,000 Shares of Beneficial Interest registered pursuant to Registrant's Registration Statement on Form S-8, File No. 280819, filed with the Commission on December 9, 1982 and 224,000 Shares of Beneficial Interest deemed to be registered pursuant to Registrant's Registration Statement on Form S-8, File No. 280819 pursuant to Rule 416. (2) Estimated solely for the purposes of calculating the registration fee in accordance with Rule 457 based on the average high and low prices reported for the Registrant's Shares of Beneficial Interest on the New York Stock Exchange on May 10, 1995. (3) Includes associated rights (the "Rights") to purchase the Registrant's Shares of Beneficial Interest. Until the occurrence of certain prescribed events, none of which has occurred, the Rights are not exercisable, are evidenced by the certificates representing the Registrant's Shares of Beneficial Interest, and will be transferred along with and only with the Registrant's Shares of Beneficial Interest. 2 Part II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents By Reference First Union Real Estate Equity and Mortgage Investments (the "Registrant") incorporates by reference into this Registration Statement (the "Registration Statement") the following documents, which are on file with the Securities and Exchange Commission (the "Commission"): 1. The Registrant's Annual Report on Form 10-K for the year ended December 31, 1994; 2. The description of the Shares of Beneficial Interest contained in the Registrant's Registration Statement on Form S-3, No. 3357756 filed with the Commission on February 2, 1993 and the description of the Rights to purchase Shares of Beneficial Interest contained in the Registrant's Registration Statement on Form 8-A, filed on April 2, 1990, as amended by Form 8-A/A filed on May 2, 1990; and 3. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel Not applicable. Item 6. Indemnification of Trustees and Officers Under Ohio law, Ohio business trusts are permitted to purchase and maintain insurance on behalf of any person who is or was a trustee, officer, employee, shareholder, or agent of the business against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such. Ohio business trusts, 3 however, are not liable for any act, omission, or obligation of any trustee when not acting in such capacity. Pursuant to Article III, Section 3.3, of the Declaration of Trust of the Registrant, each Trustee and officer of the Trust is entitled to indemnification for any loss, expense, or liability in connection with the Trust property or the affairs of the Trust, except for such of his own acts as constitute bad faith, willful misfeasance, or willful disregard of his duties. The Trust has acquired insurance indemnifying Trustees and officers in certain cases and with certain deductible limitations. Item 7. Exemption from Registration Claimed Not applicable. Item 8. Exhibits See Index to Exhibits. Item 9. Undertakings (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "1933 Act"); (ii) to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement, provided, however, that clauses (i) and (ii) do not apply if the Registration Statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those clauses is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the 1933 Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and, where applicable, each filing 4 of an employee benefit plan's annual report pursuant to Section 15(d) of the 1934 Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the 1933 Act and will be governed by the final adjudication of such issue. 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cleveland, State of Ohio, on the 12th day of May, 1995. FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS By: /s/ James C. Mastandrea ----------------------------------- James C. Mastandrea, President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated. Title and Description James C. Mastandrea, President, Chief Executive Officer, and Trustee (Principal Executive Officer); Gregory D. Bruhn, Executive Vice President, Chief Financial Officer (Principal Financial Officer); John J. Dee, Senior Vice President - Controller (Principal Accounting Officer); Otes Bennett, Jr., Trustee; Kenneth K. Chalmers, Trustee; William E. Conway, Trustee; Daniel G. DeVos, Trustee; Allen H. Ford, Trustee; Russell R. Gifford, Trustee; Stephen R. Hardis, Trustee; and E. Bradley Jones, Trustee. By: /s/ Paul F. Levin ----------------------------------- Paul F. Levin, Attorney-in-Fact May 12, 1995 6 FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS INDEX TO EXHIBITS EXHIBIT DESCRIPTION - ------- ----------- 4(a) Share Purchase Agreement dated as of December 31, 1983, between Registrant and First Union Management, Inc. (incorporated by reference to Registration Statement on Form S-3 No. 2-88719) 4(b) First Amendment to Share Purchase Agreement dated as of December 10, 1985, between Registrant and First Union Management, Inc. (incorporated by reference to Registration Statement on Form S-3 No. 33-2818) 4(c) Second Amendment to Share Purchase Agreement dated as of December 9, 1986, between Registrant and First Union Management, Inc. (incorporated by reference to Registration Statement on Form S-3 No. 33-11524) 4(d) Third Amendment to Share Purchase Agreement dated as of December 2, 1987, between Registrant and First Union Management, Inc. (incorporated by reference to Registration Statement on Form S-3 No. 33-19812) 4(e) Fourth Amendment to Share Purchase Agreement dated as of December 7, 1988, between Registrant and First Union Management, Inc. (incorporated by reference to Registration Statement on Form S-3 No. 33-26758) 4(f) Fifth Amendment to Share Purchase Agreement dated as of November 29, 1989, between Registrant and First Union Management, Inc. (incorporated by reference to Registration Statement on Form S-3 No. 33-33279) 4(g) Sixth Amendment to Share Purchase Agreement dated as of November 28, 1990, between Registrant and First Union Management, Inc. (incorporated by reference to Registration Statement on Form S-3 No. 33-38754) 4(h) Seventh Amendment to Share Purchase Agreement dated as of November 27, 1991, between Registrant and First Union Management, Inc. (incorporated by reference to Registration Statement on Form S-3 No. 33-45355) 7 4(i) Eighth Amendment to Share Purchase Agreement dated as of November 30, 1992, between Registrant and First Union Management, Inc. 4(j) Declaration of Trust dated August 1, 1961, as amended through July 25, 1986, and By-Laws, as amended (incorporated by reference to Registrant's Annual Report on Form 10-K for the year ended 1986) 4(k) Form of certificate for Shares of Beneficial Interest (incorporated by reference to Registration Statement on Form S-3 No. 33-2818) 4(l) Registration Statement of Shareholder Rights to Purchase Common Shares dated March 30, 1990 (incorporated by reference to Registration Statement 1-06249) 4(m) Amendment to Registration Statement of Shareholder Rights to Purchase Common Shares dated May 1, 1990 (incorporated by reference to Amendment No. 1 to Registration Statement 1-06249) 5 Opinion of Thompson, Hine and Flory, as to the legality of Shares of Beneficial Interest being registered 23(a) Consent of Independent Public Accountants 23(b) Consent of Thompson, Hine and Flory contained in their opinion filed as Exhibit 5 to this Registration Statement 24(a) Power of Attorney of Trustees 24(b) Power of Attorney of Officers EX-5 2 FIRST UNION S-8 EXHIBIT 5 1 EXHIBIT 5 [Thompson, Hine and Flory letterhead] May 12, 1995 First Union Real Estate Equity and Mortgage Investments Suite 1900, 55 Public Square Cleveland, Ohio 44113-1937 Gentlemen: As counsel for First Union Real Estate Equity and Mortgage Investments (the "Trust"), we are familiar with the Registration Statement on Form S-8 (the "Registration Statement") to be filed by the Trust with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended, with respect to 200,000 Shares of Beneficial Interest (the "Shares") to be issued under the First Union Real Estate Equity and Mortgage Investments 1981 Employee Share Option Plan, As Amended (the "Plan"). In connection with the foregoing, we have examined the following: 1. The Declaration of Trust and By-Laws of the Trust, each as amended to date; 2. The Registration Statement (including Exhibits thereto); and 3. Copies of the Plan, records of the proceedings of the Board of Trustees and shareholders of the Trust relating to the adoption and approval of the Plan, and such other documents as we deemed it necessary to examine as a basis for our opinion. Based upon that examination, we are of the opinion that: A. The Trust is a business trust duly organized and validly existing under the laws of the State of Ohio. B. The Shares have been duly authorized and, when issued and delivered pursuant to the Plan and in the manner contemplated by the Registration Statement, will be validly issued, fully paid, and non-assessable. We hereby consent to the filing of this Opinion as Exhibit 5 to the Registration Statement and to the use of our name therein. Very truly yours, /s/ Thompson, Hine and Flory EX-23.A 3 FIRST UNION S-8 EXHIBIT 23(A) 1 EXHIBIT 23(a) CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement on Form S-8 of our reports dated February 1, 1995 included in First Union Real Estate Equity and Mortgage Investments' Annual Report on Form 10-K for the year ended December 31, 1994 and to all references to our Firm included in this registration statement. /s/ Arthur Andersen LLP ARTHUR ANDERSEN LLP Cleveland, Ohio, May 12, 1995. EX-24.A 4 FIRST UNION S-8 EXHIBIT 24(A) 1 EXHIBIT 24(a) POWER OF ATTORNEY OF TRUSTEES Each of the undersigned Trustees of First Union Real Estate Equity and Mortgage Investments hereby appoints Paul F. Levin, Gregory D. Bruhn, and John J. Dee, and each of them as his attorney-in-fact, to execute, in his name and in his capacity as a Trustee, and to file a Registration Statement on Form S-8 relating to the Shares of Beneficial Interest and related Rights to be issued under the First Union Real Estate Equity and Mortgage Investments 1981 Employee Share Option Plan, As Amended, and any amendment (including post-effective amendment) or supplement thereto. /s/ Otes Bennett, Jr. /s/ Kenneth K. Chalmers - -------------------------------------------- -------------------------------------------- Otes Bennett, Jr. Kenneth K. Chalmers /s/ William E. Conway /s/ Daniel G. DeVos - -------------------------------------------- -------------------------------------------- William E. Conway Daniel G. DeVos /s/ Allen H. Ford /s/ Russell R. Gifford - -------------------------------------------- -------------------------------------------- Allen H. Ford Russell R. Gifford /s/ Stephen R. Hardis /s/ E. Bradley Jones - -------------------------------------------- -------------------------------------------- Stephen R. Hardis E. Bradley Jones
/s/ James C. Mastandrea -------------------------------------------- James C. Mastandrea EX-24.B 5 FIRST UNION S-8 EXHIBIT 24(B) 1 EXHIBIT 24(b) POWER OF ATTORNEY OF OFFICERS Each of the undersigned officers of First Union Real Estate Equity and Mortgage Investments hereby appoints Paul F. Levin, Gregory D. Bruhn, and John J. Dee, and each of them as his attorney-in-fact, to execute, in his name and in his capacity as an Officer, and to file a Registration Statement on Form S-8 relating to the Shares of Beneficial Interest and related Rights to be issued under the First Union Real Estate Equity and Mortgage Investments 1981 Employee Share Option Plan, As Amended, and any amendment (including post-effective amendment) or supplement thereto. /s/ James C. Mastandrea /s/ Gregory D. Bruhn - ----------------------------------------- -------------------------------------------- James C. Mastandrea, President Gregory D. Bruhn, Executive and Chief Executive Officer Vice President and Chief Financial Officer
/s/ John J. Dee ----------------------------------------- John J. Dee, Senior Vice President - Controller -----END PRIVACY-ENHANCED MESSAGE-----