-----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, PnuCYsc75933jjPBUCT5NayD5Ffr7cAMqvIzBXcO3nBJ8H0cfZtCTrkHs+VG6wpz i7lAe+UobPcXHByFR7vQRA== 0000898822-01-500207.txt : 20010517 0000898822-01-500207.hdr.sgml : 20010517 ACCESSION NUMBER: 0000898822-01-500207 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20010516 GROUP MEMBERS: GOTHAM HOLDINGS II, L.L.C. GROUP MEMBERS: GOTHAM INT'L ADVISORS, L.L.C. GROUP MEMBERS: GOTHAM PARTNERS III, L.P. GROUP MEMBERS: GOTHAM PARTNERS LP /NY/ 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 SEC ACT: SEC FILE NUMBER: 005-19676 FILM NUMBER: 1640925 BUSINESS ADDRESS: STREET 1: 551 FIFTH AVE STREET 2: STE 1416 CITY: NEW YORK STATE: NY ZIP: 10176 BUSINESS PHONE: 2129051104 MAIL ADDRESS: STREET 1: 551 FIFTH AVE STREET 2: SUITE 1416 CITY: NEW YORK STATE: NY ZIP: 10176 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 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 1 may14-schedule13d.txt SCHEDULE 13D ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------------------------------------------- SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 38) ----------------------------------------------------- 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) ----------------------------------------------------- DAVID S. KLAFTER, ESQ. GOTHAM PARTNERS MANAGEMENT CO., LLC 110 EAST 42ND STREET NEW YORK, NEW YORK 10017 (212) 286-0300 (NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS) ----------------------------------------------------- MAY 15, 2001 (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: Schedules filed in paper format shall include a signed original and five copes of the schedule, including all exhibits. SEE Rule 13d-7 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). ================================================================================ - ------------------- --------------------- CUSIP NO. 337400105 SCHEDULE 13D (PAGE 2 OF 10) - ------------------- --------------------- - -------------------------------------------------------------------------------- 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 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 ITEM 2(D) OR 2(E) |_| - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION NEW YORK - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 2,873,158 BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH --------------------------------------------------------------- 8 SHARED VOTING POWER 0 --------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 2,873,158 --------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,873,158 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_| - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.24% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - -------------------------------------------------------------------------------- * See Instructions - ------------------- --------------------- CUSIP NO. 337400105 SCHEDULE 13D (PAGE 3 OF 10) - ------------------- --------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON/ S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Gotham International Advisors, L.L.C. - -------------------------------------------------------------------------------- 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 ITEM 2(D) OR 2(E) |_| - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 2,431,664 BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH --------------------------------------------------------------- 8 SHARED VOTING POWER 0 --------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 2,431,664 --------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,431,664 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_| - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.97% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* OO;IA - -------------------------------------------------------------------------------- * See Instructions - ------------------- --------------------- CUSIP NO. 337400105 SCHEDULE 13D (PAGE 4 OF 10) - ------------------- --------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON/ S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Gotham Partners III, 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 ITEM 2(D) OR 2(E) |_| - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION NEW YORK - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 58,448 BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH --------------------------------------------------------------- 8 SHARED VOTING POWER 0 --------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 58,448 --------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 58,448 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_| - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.17% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - -------------------------------------------------------------------------------- * See Instructions - ------------------- --------------------- CUSIP NO. 337400105 SCHEDULE 13D (PAGE 5 OF 10) - ------------------- --------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON/ S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Gotham Holdings II, L.L.C. - -------------------------------------------------------------------------------- 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 ITEM 2(D) OR 2(E) |_| - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION NEW YORK - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 477,963 BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH --------------------------------------------------------------- 8 SHARED VOTING POWER 0 --------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 477,963 --------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 477,963 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_| - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.37% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - -------------------------------------------------------------------------------- * See Instructions This Amendment No. 38 (this "Amendment") amends and supplements the Statement on Schedule 13D, as amended (the "Schedule 13D"), relating to the shares of beneficial interest, par value $1.00 per share, of First Union Real Estate Equity and Mortgage Investments, an Ohio business trust, (the "Issuer") previously filed by Gotham Partners, L.P. and Gotham Partners III, L.P., New York limited partnerships, and Gotham Holdings II, L.L.C. and Gotham International Advisors, L.L.C., Delaware limited liability companies (together, the "Reporting Persons"). This Amendment is being filed to update the Schedule 13D in light of certain recent events. 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. PURPOSE OF TRANSACTION Item 4 is hereby amended to add the following: (a)-(j) At a meeting on May 15, 2001 between certain representatives of the Issuer and certain representatives of the Reporting Persons, the Reporting Persons delivered a proposal letter (the "Proposal Letter") (a copy of which is attached as an exhibit hereto and incorporated herein by reference) proposing certain transactions between the Reporting Persons and the Issuer, as more fully described in the Proposal Letter (the "Proposed Transaction"). Among other things, the Proposed Transaction contemplates the acquisition by the Issuer of certain businesses and assets controlled by the Reporting Persons and/or their affiliates in exchange for newly issued equity of the Issuer or a newly formed entity that will be the successor of the Issuer ("Newco"). The equity to be issued in respect of the acquisition of such assets would be based upon the value of the businesses and assets contributed by the Reporting Persons and/or their affiliates, and a per share price of $2.40. In connection with their proposal, the Reporting Persons hope to enter into discussions (with a view toward entering into definitive binding agreements) with the board of directors, management and certain existing stockholders of the Issuer regarding the Proposed Transaction or alternative transactions between or among such persons, including disposition or combination transactions involving the Issuer and certain of the Reporting Persons or their affiliates and/or certain assets of such persons. The Reporting Persons have filed this Amendment to reflect their proposal as to the Proposed Transaction. If the Proposed Transaction is consummated, among other matters, there may be a change of control of the Issuer, with the Reporting Persons and/or their affiliates controlling the Issuer thereafter. In addition to the foregoing matters, the Reporting Persons intend to review their holdings in the Issuer on a continuing basis. As part of this ongoing review, the Reporting Persons have engaged or may in the future engage, legal and financial advisors to assist them in such review and in evaluating strategic alternatives that are or may become available with respect to the Issuer. In respect of that review and in connection with the Proposed Transaction, and depending upon, among other things, current and anticipated future trading prices for the Issuer's equity, the financial condition, results of operations and prospects of the Issuer and its businesses, general economic, market and industry conditions, and the Reporting Persons' overall investment portfolio, strategic objectives and financial condition, the Reporting Persons may from time to time consider a number of possible alternative strategies for enhancing the value of their investment in the Issuer, enhancing the value of the Issuer's assets or enhancing the value of the Reporting Persons' assets through the involvement of the Issuer, or other extraordinary matters relating to the Issuer, including, among other things: (i) continued ownership of the Issuer's equity currently beneficially owned by the Reporting Persons; (ii) acquiring additional securities of the Issuer in the open market, in privately negotiated transactions or otherwise; (iii) a sale or transfer of a material amount of assets of (A) the Reporting Persons and/or their affiliates to the Issuer and/or its affiliates or (B) the Issuer and/or any of its affiliates to the Reporting Persons and/or their affiliates; (iv) proposing or seeking a business combination with the Issuer or otherwise proposing or seeking to take control of the Issuer or otherwise effect an extraordinary corporate transaction such as an acquisition, merger, recapitalization, reorganization or liquidation involving the Issuer, the Reporting Persons or any of their respective subsidiaries and/or affiliates or assets; (v) or proposing or effecting any other transaction or matter that would constitute or result in any of the transactions, matters or effects enumerated in Item 4(a)-(j) of Schedule 13D. In light of the preliminary nature of the Proposed Transaction and the considerations noted above, there can be no assurance that the Reporting Persons will continue to pursue the Proposed Transaction or that the Proposed Transaction or any similar transaction will be acceptable to the Issuer or as to the terms of any transaction that may be entered into by the Issuer, the Reporting Person or any of their respective affiliates. Moreover, there can be no assurance that the Reporting Persons will or will not develop any alternative plans or proposals with respect to any of the foregoing matters or take any particular action or actions with respect to some or all of their holdings in the Issuer, or as to the timing of any such matters should they be so pursued by the Reporting Persons. The Reporting Persons reserve the right, at any time and in each Reporting Person's sole discretion, to take any of the actions set forth above. Except as set forth above, the Reporting Persons have no present plans or intentions that would result in any of the matters required to be set forth in items (a) through (j) of Item 4 of Schedule 13D. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS 99.1 Proposal Letter from Gotham Partners, L.P. to the Special Committee of the Board of Directors of First Union Real Estate Equity and Mortgage Investments. 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. May 15, 2001 GOTHAM PARTNERS, L.P. By: Section H Partners, L.P., its general partner By: Karenina Corporation, a general partner of Section H Partners, L.P. By: /s/ William A. Ackman ------------------------- William A. Ackman President GOTHAM PARTNERS III, L.P. By: Section H Partners, L.P., its general partner By: Karenina Corporation, a general partner of Section H Partners, L.P. By: /s/ William A. Ackman ------------------------- William A. Ackman President GOTHAM INTERNATIONAL ADVISORS, L.L.C. By: /s/ William A. Ackman ------------------------- William A. Ackman Senior Managing Member GOTHAM HOLDINGS II, L.L.C. By: Gotham Holdings Management LLC, the Manager By: /s/ William A. Ackman ------------------------- William A. Ackman Senior Managing Member EX-99 2 may14-sc13dex.txt EXHIBIT 99.1 EXHIBIT 99.1 GOTHAM PARTNERS, L.P. 110 EAST 42ND STREET NEW YORK, NEW YORK 10017 May 15, 2001 BY HAND - ------- Special Committee of the Board of Directors of First Union Real Estate Equity and Mortgage Investments Gentlemen: This letter will serve to set forth the general outline of a transaction we are proposing (the "Proposed Transaction") between First Union Real Estate Equity and Mortgage Investments ("First Union") and Gotham Partners, L.P. ("Gotham"). We believe that the Proposed Transaction represents an attractive opportunity for First Union and its public stockholders to participate in an ongoing business with a larger equity and asset base, and a disciplined, experienced and focused management team with a proven record of value creation. We believe that the Proposed Transaction would be in the best interest of First Union and its stockholders. Furthermore, we believe that consummation of the Proposed Transaction would result in a stronger combined company which is well positioned to achieve high long-term rates of return for its stockholders. In short, the Proposed Transaction consists of the acquisition by First Union of certain public and private operating businesses and assets owned and controlled by Gotham in exchange for newly issued equity of First Union. (For various tax and other reasons, we think this may most easily be accomplished through the creation of a new company ("Newco") that would be First Union's successor, but we would expect to work with you and your financial and legal advisors to arrive at the optimal structure.) The equity in the combined company to be issued in respect of the acquisition of the Gotham assets would be based upon the value of those businesses contributed by Gotham, and a per share price of $2.40. We expect that the surviving company's common equity would continue to be listed and traded on the NYSE or another major U.S. exchange, subject to normal approval requirements. We would welcome the opportunity to share with you the details and investment potential of the businesses and assets we propose to contribute. In the aggregate, we believe their equity value to be in excess of $160 million. In addition, we would also be willing to explore an additional cash equity investment from Gotham or a third party of up to an additional $200 million. First Union Real Estate Equity and Mortgage Investments May 15, 2001 Page 2 The Proposed Transaction would be subject to approval by the stockholders of First Union and to other customary conditions, including registration of the shares to be issued as part of the Proposed Transaction. We would expect and require that those First Union stockholders currently represented on the First Union Board of Directors would commit to support and vote in favor of the Proposed Transaction as a condition of our own willingness to proceed. Subsequent to the consummation of the Proposed Transaction, the existing managing partners of Gotham, William A. Ackman and David P. Berkowitz, would become Chairman and President of the combined company and certain other employees of Gotham would assume management roles in the company. The Proposed Transaction would be effected pursuant to a combination agreement in form and substance customary for transactions of this sort, which would be entered into only following (i) approval and recommendation by the unaffiliated members of the First Union Board of Directors, who we would expect to serve as a Special Committee of the Board in connection with the consideration of the Proposed Transaction, and (ii) receipt by First Union of an opinion from your independent financial advisor as to the fairness from a financial point of view of the Proposed Transaction to the stockholders of First Union unaffiliated with Gotham. We expect that the holders of First Union's Series A Preferred Stock would continue to hold an identical instrument following the Proposed Transaction; no refinancing or repayment is necessary or contemplated. Additionally, in connection with the Proposed Transaction, we expect that First Union's 8.875% Secured Senior Notes due September 15, 2003 will remain outstanding. As you know, we and our financial and legal advisors (Peter J. Solomon Company and Wachtell, Lipton, Rosen & Katz) are prepared to meet with the Special Committee and your legal and financial advisors at your convenience to review the Proposed Transaction and any other aspects of First Union, Gotham or the businesses of Gotham proposed to be combined with First Union that may be of interest or assistance. In addition, we would like to arrange for you or such other members of the Special Committee as may be appropriate, together with your financial and legal advisors, to meet the management of the key businesses of Gotham proposed to be combined with First Union. Of course, we reserve the right to amend or withdraw the proposal at any time at our sole discretion. First Union Real Estate Equity and Mortgage Investments May 15, 2001 Page 3 We look forward to continuing to work with you on the Proposed Transaction. Very truly yours, cc. Thomas H. McCormick, Esq., Shaw Pittman -----END PRIVACY-ENHANCED MESSAGE-----