-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TzlvkcF8z9tqIniwGMlY7MLvqwybo7vZgvnI2kAU6MingOU2pQiSlRryI5UDwHlz qFH1Uohf/+Fk8EXAH94iHA== 0000895345-98-000039.txt : 19980204 0000895345-98-000039.hdr.sgml : 19980204 ACCESSION NUMBER: 0000895345-98-000039 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980203 SROS: NYSE SUBJECT COMPANY: 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: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-19676 FILM NUMBER: 98520511 BUSINESS ADDRESS: STREET 1: 55 PUBLIC SQUARE STREET 2: STE 1900 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 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GOTHAM PARTNERS LP /NY/ CENTRAL INDEX KEY: 0000899983 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 363593298 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 110 EAST 42ND ST 18TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 2122860300 MAIL ADDRESS: STREET 1: 110 EAST 42 ND ST 18TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 SC 13D/A 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 15) First Union Real Estate Equity and Mortgage Investments - ------------------------------------------------------------------------ (Name of Issuer) Shares of Beneficial Interest, $1.00 par value - ------------------------------------------------------------------------ (Title of Class of Securities) 337400105 ------------------------------------------------ (CUSIP Number) Stephen Fraidin, P.C. Fried, Frank, Harris, Shriver & Jacobson One New York Plaza New York, New York 10004 (212) 859-8140 - ------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) February 3, 1998 ------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|. Check the following box if a fee is being paid with the statement |_|. (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class.) (See Rule 13d-7.) NOTE: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SEC1746(12-91) SCHEDULE 13D CUSIP No. 337400105 Page 2 of 5 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS Gotham Partners, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION New York, U.S.A. NUMBER OF 7 SOLE VOTING POWER 2,501,951 Shares SHARES BENEFICIALLY 8 SHARED VOTING POWER 0 OWNED BY EACH REPORTING 9 SOLE DISPOSITIVE POWER 2,501,951 Shares PERSON WITH 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,501,951 Shares 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.89% 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS SCHEDULE 13D CUSIP No. 337400105 Page 3 of 5 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS Gotham Partners II, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION New York, U.S.A. NUMBER OF 7 SOLE VOTING POWER 30,449 Shares SHARES BENEFICIALLY 8 SHARED VOTING POWER 0 OWNED BY EACH REPORTING 9 SOLE DISPOSITIVE POWER 30,449 Shares PERSON WITH 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 30,449 Shares 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.11% 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS This Amendment No. 15 amends and supplements the Statement on Schedule 13D (the "Schedule 13D") relating to the shares of Beneficial Interest, par value $1.00 per share ("Shares"), of First Union Real Estate Equity and Mortgage Investments, an Ohio business trust (the "Company") previously filed by Gotham Partners, L.P. ("Gotham") and Gotham Partners II, L.P. ("Gotham II" and together with Gotham, the "Reporting Persons"), both New York limited partnerships. Capitalized terms used and not defined in this Amendment have the meanings set forth in the Schedule 13D. Except as specifically provided herein, this Amendment does not modify any of the information previously reported on the Schedule 13D. Item 4 is hereby amended to add the following information: "Item 4. Purpose of the Transaction On January 30, 1998, Gotham sent a letter to the Secretary of the Company. A copy of such letter is attached as Exhibit 31 hereto and incorporated herein by this reference. On February 3, 1998, the Secretary of the Company sent a letter to Gotham in response to Gotham's letter to the Secretary of the Company, dated January 30, 1998. A copy of such letter is attached as Exhibit 32 hereto and incorporated herein by this reference." Item 7 is hereby amended to add the following information: "Item 7. Material to be Filed as Exhibits 31. Letter, dated January 30, 1998, from Gotham to the Secretary of the Company. 32. Letter, dated February 3, 1998, from the Secretary of the Company to Gotham. After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct. February 3, 1998 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 By: DPB Corporation, a general partner of Section H Partners, L.P. By: /s/ David P. Berkowitz ---------------------- David P. Berkowitz President GOTHAM PARTNERS II, 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 By: DPB Corporation, a general partner of Section H Partners, L.P. By: /s/ David P. Berkowitz ---------------------- David P. Berkowitz President EX-99.1 2 EXHIBIT 31 Gotham Partners, L.P. 110 East 42nd Street, 18th Floor New York, New York 10017 January 30, 1998 BY FAX AND OVERNIGHT MAIL - ------------------------- Paul F. Levin, Esq. Secretary First Union Real Estate Equity and Mortgage Investments 55 Public Square, Suite 1900 Cleveland, Ohio 44113-1937 Dear Mr. Levin: Gotham Partners, L.P. ("Gotham") is a holder of record of shares of Beneficial Interest, par value $1.00 per share ("Shares"), of First Union Real Estate Equity and Mortgage Investments (the "Company"), and is entitled to vote its Shares at the 1998 Annual Meeting of Beneficiaries of or any special meeting held in lieu thereof (the "Annual Meeting"). In connection with its proposal and nominations to be presented for consideration at the Annual Meeting, Gotham hereby requests that, pursuant to Rule 14a-7 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Company elect to either provide Gotham with a list of all of the record holders of Shares (in such form as is required by Rule 14a-7 and as is set forth below) or to mail Gotham's soliciting materials (including proxy statements, forms of proxy and other soliciting materials to be furnished by Gotham) to the record holders of Shares. The Company is required to notify Gotham of its election within five business days of the date hereof. In the event that the Company elects to provide Gotham with a list of the record holders of Shares, Gotham hereby requests, and the Company is required to deliver to Gotham within five business days of the date hereof, (i) a reasonably current list of the names, addresses and security positions of all of the record holders, including banks, brokers and similar entities, holding Shares and other securities of the Company in the same class or classes as holders which have been or are to be solicited on management's behalf; and (ii) the most recent list of names, addresses and security positions of beneficial owners as specified in Rule 14a-13(b) promulgated under the Exchange Act, in the possession of the Company, or which subsequently comes into the possession of the Company. In addition, if the Company makes this election, the Company shall furnish Gotham with updated record holder information on a daily basis or, if not available on a daily basis, at the shortest reasonable interval, through the record date of the Annual Meeting. In the event that the Company elects to mail Gotham's soliciting materials, the Company shall mail copies of any proxy statement, form of proxy or other soliciting material furnished by Gotham to all of the record holders of Shares, including banks, brokers or similar entities. The Company is required to mail a sufficient number of copies to the banks, brokers and similar entities for distribution to all beneficial owners of Shares. The Company is further required to mail Gotham's materials with reasonable promptness after tender of the material to be mailed, envelopes or other containers therefor, postage or payment for postage and other reasonable expenses of effecting such mailing. Gotham also requests, pursuant to clause (a)(1) of Rule 14a-7, that the Company provide Gotham with the following information within five business days of the date hereof: (i) a statement of the approximate number of record holders and beneficial holders of the Company's securities, separated by type of holder and class, owning Shares or other securities in the same class or classes as holders which have been or are to be solicited on management's behalf; and (ii) the estimated cost of mailing a proxy statement, form of proxy or other communication to such holders, including to the extent known or reasonably available, the estimated costs of any bank, broker, and similar person through whom the Company has or intends to solicit beneficial owners in connection with the Annual Meeting. Enclosed herewith is the certification of Gotham given pursuant to clause (c)(2) of Rule 14a-7. Very truly yours, 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/ Willaim A. Ackman --------------------------------------- William A. Ackman President By: DPB Corporation, a general partner of Section H Partners, L.P. By: /s/ David P. Berkowitz --------------------------------------- David P. Berkowitz President CERTIFICATE The undersigned, Gotham Partners, L.P. ("Gotham"), hereby certifies as follows: 1. The list of security holders of First Union Real Estate Equity and Mortgage Investments (the "Company") which Gotham has requested from the Company will be used to solicit proxies in connection with its proposal and nominations to be presented for consideration at the 1998 Annual Meeting of Beneficiaries of the Company or any special meeting held in lieu thereof (the "Annual Meeting"), which are set forth in Gotham's Notice to the Secretary of the Company dated January 8, 1998. 2. Gotham will not use the information contained in such list of security holders for any purpose other than to communicate with or solicit security holders regarding the Annual Meeting. 3. Gotham will not disclose the information contained in such list of security holders to any person other than an employee or agent of Gotham to the extent necessary to effectuate such communication or solicitation. 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/ Willaim A. Ackman --------------------------------------- William A. Ackman President By: DPB Corporation, a general partner of Section H Partners, L.P. By: /s/ David P. Berkowitz --------------------------------------- David P. Berkowitz President EX-99.2 3 EXHIBIT 32 February 3, 1998 VIA FACSIMILE & FEDERAL EXPRESS - ------------------------------- William A. Ackman David P. Berkowitz Gotham Partners, L.P. 110 East 42nd St., 18th Floor New York, NY 10017 Gentlemen: In response to your request that First Union notify Gotham whether First Union will provide Gotham a shareholder list or mail Gotham's soliciting materials, First Union has no plans to do either. As you know, First Union's Board of Trustees has determined, pursuant to the Declaration of Trust and By-Laws, that Gotham's shares are "Excess Securities." As provided in Article VI, Section 8 of the By-Laws: As the equivalent of treasury Securities for such purposes, the Excess Securities shall not be entitled to any voting rights; shall not be considered to be outstanding for quorums or voting purposes; and shall not be entitled to receive interest or any other distribution with respect to the Securities. Consequently, under the Declaration of Trust and By-Laws, your Excess Securities are really treasury shares and are outside the coverage of Regulation 14(a)-7. Very truly yours, /s/ Paul F. 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