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As filed with the Securities and Exchange Commission on May 12, 1995
Registration Statement No. 33-_____________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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
1994 LONG TERM INCENTIVE PERFORMANCE PLAN
(Full title of the plan)
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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)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Number of shares Proposed maximum Proposed maximum
Title of shares to to be offering price aggregate Amount of
be registered registered per share(1) offering price(1) registration fee(1)
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<S> <C> <C> <C> <C>
Shares of Beneficial
Interest (2) 1,629,785 $7.25 $11,815,941.25 $4,074.49
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</TABLE>
(1) 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.
(2) 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.
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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,
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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
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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.
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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
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FIRST UNION
REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
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<S> <C>
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)
</TABLE>
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<TABLE>
<S> <C>
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 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
</TABLE>
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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 1,629,785 Shares of Beneficial Interest
(the "Shares") to be issued under the First Union Real Estate Equity and
Mortgage Investments 1994 Long Term Incentive Performance Plan (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
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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
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ARTHUR ANDERSEN LLP
Cleveland, Ohio,
May 12, 1995.
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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 1994 Long Term Incentive Performance Plan, and
any amendment (including post-effective amendment) or supplement thereto.
<TABLE>
<S> <C>
/s/ Otes Bennett, Jr. /s/ Kenneth K. Chalmers
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Otes Bennett, Jr. Kenneth K. Chalmers
/s/ William E. Conway /s/ Daniel G. DeVos
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William E. Conway Daniel G. DeVos
/s/ Allen H. Ford /s/ Russell R. Gifford
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Allen H. Ford Russell R. Gifford
/s/ Stephen R. Hardis /s/ E. Bradley Jones
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Stephen R. Hardis E. Bradley Jones
</TABLE>
/s/ James C. Mastandrea
--------------------------------
James C. Mastandrea
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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 1994 Long Term Incentive Performance Plan, 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
