-----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, LkPIDx46m/Vu140CUCepQv81QUvTf8plX3xq9HW2PnvOforTS2KjUhWLxpemBjh3 N0QBl7vGTzQUTsNQHPub3A== 0000899983-97-000013.txt : 19970912 0000899983-97-000013.hdr.sgml : 19970912 ACCESSION NUMBER: 0000899983-97-000013 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19970909 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: 97677196 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 AMENDMENT NO. 3 TO SCHEDULE 13D SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 3) 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) September 9, 1997 (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). SCHEDULE 13D CUSIP No. 337400105 Page 2 of 6 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Gotham Partners, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A (a) [x] GROUP* (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 NUMBER OF 7 SOLE VOTING POWER SHARES 2,060,975 Shares (including options to purchase 1,183,150 Shares) BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH 0 9 SOLE DISPOSITIVE POWER 2,060,975 Shares (including options to purchase 1,183,150 Shares) REPORTING PERSON WITH 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,060,975 Shares (including options to purchase 1,183,150 Shares) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.37% 14 TYPE OF REPORTING PERSON* PN SCHEDULE 13D CUSIP No. 337400105 Page 3 of 6 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Gotham Partners II, L.P. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A (a) [x] GROUP* (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 NUMBER OF 7 SOLE VOTING POWER SHARES 25,925 (including options to purchase 16,850 Shares) BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH 0 9 SOLE DISPOSITIVE POWER 25,925 (including options to purchase 16,850 Shares) REPORTING PERSON WITH 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 25,925 (including options to purchase 16,850 Shares) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) .09% 14 TYPE OF REPORTING PERSON* PN Page 4 of 6 Pages This Amendment No. 3 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") both New York limited partnerships. Capitalized terms used and not defined in this Amendment have the meanings set forth in the Schedule 13D. Gotham and Gotham II are hereinafter referred to as the "Reporting Persons". Except as specifically provided herein, this Amendment does not modify any of the information previously reported on the Schedule 13D Item 3 is hereby amended to add the following information: Item 3. Source and Amount of Funds or Other Consideration The aggregate purchase price of the Common Stock purchased by Gotham was $2,186,354 and the aggregate purchase price of the Common Stock purchased by Gotham II was $20,446. All of the funds required for these purchases were obtained from the general funds of Gotham and Gotham II, respectively. Item 4 is hereby amended to add the following information: Item 4. Purpose of the Transaction "On September 8, 1997, the letter attached hereto as Exhibit 8 and incorporated herein by this reference was sent to Mr. James C. Mastandrea. "Except to the extent indicated in this Item 4, neither of the Reporting Persons has any plans or proposals which would relate to or result in any of the matters set forth in items (a) through (j) of Item 4 of Schedule 13D." Item 5 is hereby amended to add the following information: Item 5. Interest in Securities of the Issuer (a) Gotham owns 2,060,975 Shares (including options to purchase 1,183,150 Shares) as of the date of this Statement, representing an aggregate of approximately 7.37% of the outstanding Shares of the Company. Gotham II owns 25,925 Shares (including options to purchase 16,850 Shares) as of the date of this Statement, representing an aggregate of approximately .09% of the outstanding Shares of the Company. The percentages in this paragraph are calculated based upon 27,965,298 outstanding Shares as reported in the Company's Form 10-Q for the quarter ended June 30, 1997. (b) Each of Gotham and Gotham II has sole power to vote and to dispose of all of the Common Stock beneficially owned by it. Page 5 of 6 Pages (c) The tables below set forth information with respect to all purchases and sales of Common Stock by Gotham and Gotham II since June 10, 1997. In each case, the transactions took place on the New York Stock Exchange. Gotham Shares of Common Stock Date Purchased/(Sold) Price per Share 08/01/97 19,300 $13.3236 08/04/97 9,895 $13.30 08/05/97 49,480 $13.425 08/06/97 6,430 $13.30 08/12/97 495 $13.425 08/13/97 30,575 $13.413 08/14/97 2,965 $13.30 08/15/97 24,740 $13.275 08/18/97 19,790 $13.30 Gotham II Shares of Common Stock Date Purchased/(Sold) Price per Share 08/04/97 105 $13.30 08/05/97 520 $13.425 08/06/97 70 $13.30 08/12/97 5 $13.426 08/13/97 325 $13.413 08/14/97 35 $13.30 08/15/97 260 $13.275 08/18/97 210 $13.30 Item 7 is hereby amended to add the following information: Item 7. Material to be Filed as Exhibits "8. Letter, dated September 8, 1997, to Mr. James C. Mastandrea". Page 6 of 6 Pages 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. September 9, 1997 GOTHAM PARTNERS, L.P. By: Section H Partners, L.P. its general partner 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: DPB Corporation, a general partner of Section H Partners, L.P. By: /s/ David P. Berkowitz David P. Berkowitz President EX-99 2 September 8, 1997 Mr. James C. Mastandrea First Union Real Estate Investments 55 Public Square Suite 1900 Cleveland, OH 44113 Dear Jim: We are disappointed that the only substantive response to our letters to you is your request of August 20, 1997 for certain information from us. We assume that your questions about our ownership in First Union relate to the Board's concern about the Trust maintaining its special tax status. We assume that you are acting in good faith by addressing these questions to us, rather than attempting to make it cumbersome for us to work with the Trust in our attempt to increase shareholder value. Please be assured that we are well aware of the risks to First Union of a loss of the Company's REIT status or its favorable paired-share structure. In an effort to be responsive, we have addressed your questions below. As of the date hereof, Gotham Partners, L.P., a limited partnership, is the actual owner of 877,825 common shares of First Union and constructively owns, within the meaning of Treasury Regulation 1.857-8(c) and Section 544 of the Internal Revenue Code (through ownership of an option), an additional 1,183,150 common shares. In addition, as of the date hereof Gotham Partners II, L.P., a limited partnership, is the actual owner of 9,075 common shares of First Union and constructively owns (as defined above) an additional 16,850 common shares. Neither I nor David Berkowitz, nor any entity under our control, actually, constructively (as defined above) or beneficially owns any other equity interests in First Union. We sincerely hope that now that you have received this information you will turn to more fundamental issues, in particular, those raised in our July 14, 1997 letter. As we stated in that letter, we would welcome the opportunity to meet with the Board so that we can discuss our concerns and any proposals we may have in more detail. Sincerely, William A. Ackman -----END PRIVACY-ENHANCED MESSAGE-----