UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 11)
First Union Real Estate Equity and Mortgage Investments
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(Name of Issuer)
Shares of Beneficial Interest, $1.00 par value
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(Title of Class of Securities)
337400105
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(CUSIP Number)
Stephen Fraidin, P.C.
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
(212) 859-8140
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(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
January 22, 1998
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(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 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 ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York, U.S.A.
NUMBER OF 7 SOLE VOTING POWER
SHARES 2,491,451 Shares
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 0
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 2,491,451 Shares
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,491,451 Shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.85%
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 PERSON
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
SHARES 30,449 Shares
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 0
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 30,449 Shares
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. 11 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 3 is hereby amended to add the following information:
"Item 3. Source and Amount of Funds or Other Consideration
The aggregate exercise price of the options exercised by Gotham on
January 21, 1998 was $5,326,020 and the aggregate exercise price of the
options exercised by Gotham II on January 21, 1998 was $73,980. All of the
funds required for these exercises 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 January 21, 1998, Gotham sent a letter to the Secretary of the
Company responding to and referencing the letter sent to Gotham by the
Secretary of the Company on January 20, 1998. Gotham's letter, dated
January 20, 1998, is attached as Exhibit 16 hereto and incorporated herein
by this reference. The Company's letter, dated January 21, 1998, is
attached as Exhibit 17 hereto and incorporated herein by this reference."
Item 5 is hereby amended to add the following information:
"Item 5. Interest in Securities of the Issuer
On January 21, 1997, Gotham exercised its right to purchase 493,150
Shares pursuant to its agreement entered into on January 29, 1997 with
Bankers Trust Company, as amended. On January 21, 1997, Gotham II exercised
its right to purchase 6,850 Shares pursuant to its agreement entered into
on January 29, 1997 with Bankers Trust Company, as amended."
Item 7 is hereby amended to add the following information:
"Item 7. Material to be Filed as Exhibits
16. Letter, dated January 21, 1998, from Gotham to the Secretary
of the Company.
17. Letter, dated January 20, 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.
January 22, 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
EXHIBIT 16
Gotham Partners, L.P.
110 East 42nd Street, 18th Floor
New York, New York 10017
January 21, 1998
VIA FAX & 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:
We are in receipt of your letter of January 20, 1998, in which
you contend that the notice of nominations and proposal submitted by Gotham
Partners, L.P. ("Gotham"), dated January 8, 1998 (the "Notice"), as
supplemented by Gotham's letter, dated January 20, 1998, does not satisfy the
informational requirements of Article I, Section 7(c) ("Section 7(c)") of
First Union's By-Laws, because it allegedly "continues to be deficient in not
identifying limited partners and other Beneficiaries and beneficial owners
who support Gotham's proposal and nominations." Gotham continues to believe
that your notice of deficiencies is defective and ineffectual and that
Gotham's Notice satisfies the requirements of Section 7(c).
Notwithstanding the foregoing and without waiving any of our
rights, to the extent you are making a technical objection to our Notice, we
hereby provide First Union the additional information attached hereto as
Exhibit A.
To the extent First Union's position results from its
disbelieving our certification that Gotham Partners II, L.P. is the only
"other Beneficiar[y] known by such Beneficiary [Gotham] to be supporting
[Gotham's] nomination or proposal on the date of such Beneficiary's notice,"
which is the information required by Section 7(c), we would like to reconfirm
that, as of the date of the Notice and as of today's date, Gotham has no
knowledge of any Beneficiary or beneficial owner of any Shares, other than
the Shares beneficially owned by Gotham and Gotham II as set forth on Exhibit
A hereto, that is known to be supporting its nominations or proposal.
We request your confirmation that Gotham has satisfied Section
7(c)'s informational requirements.
If you still contend that our Notice and the additional
information we have provided today and yesterday is somehow deficient, we
request that you provide immediate notice of that position and additional
time to cure.
If First Union does not confirm that Gotham's Notice complies
with Section 7(c), Gotham reserves all of its rights and remedies and will
seek appropriate relief, if and when required, in the pending federal court
action.
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/ 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
CC: Frances Floriano Goins, Esq.
EXHIBIT A
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We hereby provide First Union Real Estate Equity and Mortgage
Investments ("First Union"), the following information, which shall be
incorporated and made a part of the notice (the "Notice") of Gotham Partners,
L.P. ("Gotham") to First Union relating to its proposal and nominations for
consideration at First Union's 1998 Annual Meeting of Beneficiaries (or any
special meeting held in lieu thereof):
Gotham is the record and beneficial owner of 100 shares of
Beneficial Interest, par value $1.00, of First Union (the "Shares"), and the
beneficial owner of an additional 2,491,351 Shares (including an option to
purchase 493,150 Shares). Gotham Partners II, L.P. ("Gotham II") is the
beneficial owner of 30,449 Shares (including an option to purchase 6,850
Shares). The option agreements in connection with the options to acquire
Shares held by Gotham and Gotham II are attached as exhibits to the Schedule
13D of Gotham and Gotham II, as amended, which is incorporated herein by
reference. Cede & Co. is the record owner of the Shares of which Gotham is
the beneficial owner and not the record owner, and is the record holder of
all of the Shares of which Gotham II is the beneficial holder. The address
of Cede & Co. is 55 Water Street, New York, New York 10041-0099. Gotham and
Gotham II intend to instruct Cede & Co. to vote such Shares held of record
by Cede & Co. in favor of the proposal and nominations presented in the
Notice. In addition, we note the following: the general partner of Gotham
is Section H Partners, L.P. The general partners of Section H Partners,
L.P. are Karenina Corporation and DPB Corporation. William A. Ackman is the
President and sole shareholder of Karenina Corporation. David P. Berkowitz
is the President and sole shareholder of DPB Corporation. In such indicated
capacities, Section H Partners, L.P., Karenina Corporation, DPB Corporation,
William A. Ackman and David P. Berkowitz may be deemed to be beneficial
owners of the Shares described above as beneficially held by Gotham and
Gotham II. All of such entities and persons support the nominations and
proposal made by Gotham in the Notice, and the address of each of such
entities and persons is care of 110 East 42nd Street, 18th Floor, New York,
New York 10017. Other than through their respective interests in the Shares
described above, none of such entities or persons has any financial interest
in the proposal set forth in the Notice or is a Beneficiary or beneficial
owner of any other Shares.
Except as described herein and in the Notice, Gotham has no
knowledge of any Beneficiary or beneficial owner of Shares that was known to
be supporting its proposal and nominations as of the date of the Notice or
is known to be supporting its proposal and nominations as of today's date.
In addition, although we do not believe that the By-Laws of First
Union require us to disclose the following information to First Union, in
response to your letter, dated January 20, 1998, Gotham states that it does
not have any knowledge of any limited partner of Gotham or Gotham II who
supported Gotham's proposal and nominations on the date of the Notice, or,
indeed, who supports such proposal and nominations as of today, other than
those limited partners who are also nominees of Gotham. David S. Klafter
and Daniel Shuchman are limited partners of Section H Partners, L.P. and of
Gotham. Mary Ann Tighe and James A. Williams are limited partners of
Gotham. None of such persons are Beneficiaries or beneficial owners of any
Shares.
The Notice and supplements thereto provided by Gotham to First
Union assume that the definition of the term "beneficial ownership" is that
contained in Rule 13d-3 of the Securities Exchange Act of 1934, as amended.
If this is not the case, you should inform us immediately of such other
definition used by First Union.
EXHIBIT 17
January 20, 1998
SENT VIA TELECOPIER
AND FEDERAL EXPRESS
===================
Mr. David Klafter
Gotham Partners, L.P.
110 East 42nd Street, 18th Floor
New York, New York 10017
Attn: Mr. David P. Berkowitz
Mr. William A. Ackman
Gentlemen:
In response to your letter dated January 20, 1998 and its attempt
to cure deficiencies in providing information required by Article 1, Section
7(c) of First Union's By-Laws, the Notice (as defined in your letter)
continues to be deficient in not identifying limited partners and other
Beneficiaries and beneficial owners who support Gotham's proposal and
nominations.
Sincerely,
/s/ Paul F. Levin
-----------------
Paul F. Levin
Secretary
cc: Alexander R. Sussman
Fried, Frank, Harris, Shriver & Jacobson
David C. Weiner
Hahn, Loeser & Parks LLP
