UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 9)
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)
January 8, 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).
SCHEDULE 13D
CUSIP No. 337400105
---------
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
2,491,451 Shares (including an option to
SHARES purchase 493,150 Shares)
BENEFICIALLY 8 SHARED VOTING POWER
O
OWNED BY EACH
9 SOLE DISPOSITIVE POWER
REPORTING 2,491,451 Shares (including an option to
purchase 493,150 Shares)
PERSON WITH
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,491,451 Shares (including an option to purchase 493,150 Shares)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.85%
14 TYPE OF REPORTING PERSON*
PN
*See Instructions
SCHEDULE 13D
CUSIP No. 337400105
---------
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
30,449 (including an option to purchase 6,850 Shares)
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
O
OWNED BY EACH
9 SOLE DISPOSITIVE POWER
REPORTING 30,449 (including an option to purchase 6,850 Shares)
PERSON WITH
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
30,449 (including an option to purchase 6,850 Shares)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.11%
14 TYPE OF REPORTING PERSON*
PN
*See Instructions
This Amendment No. 9 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 8, 1998, Gotham gave notice (the "Notice") to the
Secretary of the Company pursuant to the Company's By-Laws of the
following: (i) its nomination of William A. Ackman, David P. Berkowitz
and James A. Williams for election to the three existing seats on the
Board of Trustees of the Company which will be open for election at
the Company's 1998 Annual Meeting of Beneficiaries (or any Special
Meeting of Beneficiaries held in lieu thereof); (ii) its proposal for
consideration at the Company's 1998 Annual Meeting of Beneficiaries
(or any Special Meeting of Beneficiaries held in lieu thereof) to
increase the size of the Board of Trustees from nine members to
fifteen members, with two new seats in each of the three classes on
the Company's Board of Trustees, and to hold an election for the six
newly created seats; (iii) its nomination of Daniel Shuchman and
Steven S. Snider for election to the new Class I seats on the
Company's Board of Trustees; Mary Ann Tighe and Stephen J. Garchik for
election to the new Class II seats on the Company's Board of Trustees;
and David S. Klafter and Daniel J. Altobello for election to the new
Class III seats on the Company's Board of Trustees; and (iv) its
nomination of Richard A. Mandel for election to the Board of Trustees
in the event that any of Gotham's other nominees is unable for any
reason to serve as a Trustee. A copy of the Notice and all of the
related documentation provided by Gotham to the Secretary of the
Company in connection therewith is attached hereto as Exhibit 9 and
incorporated herein by this reference.
Gotham plans to file proxy solicitation materials with the
Securities and Exchange Commission in connection with its proposal and
nominations and to solicit proxies of the Beneficiaries of the Company
in support of its proposal and nominations. This Schedule 13D does not
constitute a solicitation of a proxy, consent or authorization for or
with respect to the Company's 1998 Annual Meeting of Beneficiaries or
any special meeting of Beneficiaries.
In connection with the proposal and nominations discussed above,
the Reporting Persons, and if elected the nominees in the exercise of
their fiduciary duties, may consider various alternatives which may
relate to or result in: (a) the acquisition by any person of
additional securities of the Company; (b) an extraordinary corporate
transaction, such as a merger, reorganization or liquidation,
involving the Company; (c) a sale or transfer of a material amount of
the assets of the Company; (d) a change in the Board of Trustees or
management of the Company; (e) a material change in the present
capitalization or dividend policy of the Company; (f) other material
changes in the Company's business or corporate structure; (g) changes
in the Company's Amended Declaration of Trust or By-Laws or other
actions which as currently in place may impede the acquisition of
control of the Company by any person including, without limitation,
changes to eliminate the classified nature of the Company's Board of
Trustees and other anti-takeover devices; (h) a class of securities of
the Company being delisted from a national securities exchange; (i) a
class of equity securities of the Company becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the
Securities Exchange Act of 1934; or (j) actions similar to those
enumerated above (each of the foregoing are collectively hereinafter
referred to as the "Enumerated Actions").
Although, except as otherwise disclosed herein, the Reporting
Persons and the nominees have no plans or proposals to engage in any
of the Enumerated Actions, the Reporting Persons and the nominees may
consider one or more of such Enumerated Actions in the future
depending upon factors including, but not limited to, the market for
the Shares, the Company's prospects, alternative investment
opportunities, general economic, business and monetary conditions, as
well as other factors deemed relevant by the Reporting Persons and the
nominees from time to time."
Item 7 is hereby amended to add the following information:
Item 7. Material to be Filed as Exhibits
"9. Gotham's Notice to the Secretary of the Company of its
Nominations and Proposal to be Considered at the 1998 Annual Meeting
of Beneficiaries of the Company and Related Documentation."
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 9, 1998
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
By: Karenina Corporation,
a general partner of Section H Partners, L.P.
By:/s/ William A. Ackman
---------------------
William A. Ackman
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
By: Karenina Corporation,
a general partner of Section H Partners, L.P.
By:/s/ William A. Ackman
---------------------
William A. Ackman
President
EXHIBIT 9
---------
Gotham Partners, L.P.
110 East 42nd Street
New York, New York 10017
January 8, 1998
BY HAND DELIVERY
- ----------------
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"), a Beneficiary of First Union Real Estate
Equity and Mortgage Investments (the "Company"), hereby gives notice of the
following to the Secretary of the Company pursuant to Article I, Section 7 of
the By-Laws of the Company:
1. Gotham hereby nominates William A. Ackman, David P. Berkowitz and James
A. Williams for election as Class II Trustees to the Board of Trustees
of the Company at the 1998 Annual Meeting of Beneficiaries of the
Company (or any Special Meeting of Beneficiaries held in lieu thereof).
2. Gotham hereby makes the proposal attached as Exhibit A hereto for
consideration by the Beneficiaries at the 1998 Annual Meeting of
Beneficiaries of the Company (or any Special Meeting of Beneficiaries
held in lieu thereof) (the "Proposal").
3. Gotham hereby nominates Daniel Shuchman and Steven S. Snider for
election to the two Class I seats on the Board of Trustees of the
Company created as a result of the adoption of the Proposal; Mary Ann
Tighe and Stephen J. Garchik for election to the two Class II on the
Board of Trustees of the Company created as a result of the adoption of
the Proposal; and David S. Klafter and Daniel J. Altobello for election
to the two Class III seats on the Board of Trustees of the Company
created as a result of the adoption of the Proposal; such elections to
be held immediately following the approval of the Proposal by the
Beneficiaries at the 1998 Annual Meeting of Beneficiaries of the
Company (or any Special Meeting held in lieu thereof).
4. Gotham hereby nominates Richard A. Mandel for election to the Board of
Trustees of the Company, provided that Mr. Mandel shall stand for
election only in the event that any of Gotham's nominees named in
paragraphs 1 or 3 above is unable for any reason to serve as a Trustee
of the Company.
Pursuant to Article I, Section 7 of the By-Laws of the Company, the
following documentation is included herewith: (i) the information specified in
Article I, Section 7(c)(i) of the By-Laws of the Company with respect to each of
Gotham's nominees for election to the Board of Trustees, which is attached as
Exhibit B hereto; (ii) a brief description of the Proposal and a statement of
Gotham's reasons for making the Proposal, which is attached as Exhibit C hereto;
(iii) the information required to be provided pursuant to Article I, Sections
7(c)(iii), (iv) and (v) of the By-Laws of the Company, which is attached as
Exhibit D hereto; (iv) a certification by Gotham that each of Gotham's nominees
meets all of the qualifications for Trustees set forth in the Amended
Declaration of Trust of the Company; and (v) a certification by Gotham that the
Proposal does not conflict with or violate any provision of the Declaration of
Trust of the Company.
If you have any questions concerning this notice or any related legal
matters, please contact our counsel, Alexander R. Sussman of Fried, Frank,
Harris, Shriver & Jacobson, at (212) 859-8551.
Very truly yours,
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
By: Karenina Corporation,
a general partner of Section H Partners, L.P.
By: /s/ William A. Ackman
------------------------------------------
William A. Ackman
President
EXHIBIT A
---------
Proposal
--------
Gotham Partners, L.P. ("Gotham Partners"), a Beneficiary of First Union
Real Estate Equity and Mortgage Investments ("the Company"), meeting the
qualifications set forth in Article I, Section 7 of the By-Laws of the Company,
sets forth the following proposal to be considered by the Beneficiaries of the
Company at the Company's 1998 Annual Meeting of Beneficiaries (or any Special
Meeting of Beneficiaries held in lieu thereof):
Proposed, in accordance with Article VIII, Section 8.1 of the Company's Amended
Declaration of Trust, dated July 25, 1986,
(i) that the number of Trustees constituting the full Board of
Trustees of the Company shall be determined at the 1998 Annual Meeting of
Beneficiaries of the Company (or any Special Meeting of Beneficiaries held in
lieu thereof) to be fixed at fifteen (an increase of six members); and
(ii) that two of the newly-created seats of the Board of Trustees of
the Company be assigned to each of Class I, Class II and Class III; and
(iii) that, at the 1998 Annual Meeting of Beneficiaries of the Company
(or any Special Meeting of Beneficiaries held in lieu thereof), in addition to
electing the three Trustees to fill the seats of the three Trustees in Class II
whose terms are expiring, the Beneficiaries of the Company shall also elect six
Trustees (two Trustees to each of Class I, Class II and Class III) to serve in
the newly-created seats established in paragraph (ii) above.
EXHIBIT B
----------
Trustee Nominee Information
---------------------------
The following is the information required to be given by Gotham Partners, L.P.
("Gotham") with respect to its nominees for election to the Board of Trustees of
First Union Real Estate Equity and Mortgage Investments (the "Company") pursuant
to Article I, Section 7(c) of the By-Laws of the Company. All of such nominees
have an understanding with Gotham whereby they have agreed to be nominated to
the Board of Trustees by Gotham, and to serve on such Board if elected. In
addition, Gotham has agreed to indemnify each of the nominees for any liability
incurred by such nominee in connection with his or her nomination for election
to the Board of Trustees. None of the nominees has held any position or office
with the Company or with an entity affiliated with the Company since January 1,
1993.
WILLIAM A. ACKMAN
- -----------------
ADDRESS: 150 Columbus Avenue, Apt. 4D, New York, New York 10023
DATE OF BIRTH: May 11, 1966 (age 31)
CITIZENSHIP: United States
BUSINESS ADDRESS: Gotham Partners Management Co. LLC, 110 East 42nd Street, 18th
Floor, New York, New York 10017
EMPLOYMENT HISTORY: Since January 1, 1993, Mr. Ackman has been the Vice
President, Secretary and Treasurer of GPLP Management Corp., the Managing Member
of Gotham Partners Management Co. LLC, an investment management firm (and the
General Partner of its predecessor entity). Mr. Ackman has been employed by
Gotham Partners Management Co. LLC and its predecessor entity since January 1,
1993. Mr. Ackman was a general partner of Section H Partners, L.P., the General
Partner of the Gotham Partners, L.P. and Gotham Partners II, L.P. investment
funds, from January 1, 1993 through September 1993. Mr. Ackman has been the
President, Secretary and Treasurer of Karenina Corporation, a general partner of
Section H Partners, L.P. since October 1993.
DIRECTORSHIPS REQUIRED TO BE REPORTED PURSUANT TO ITEM 401(E)(2) OF REGULATION
S-K: None.
INVOLVEMENT IN LEGAL PROCEEDINGS REQUIRED TO BE REPORTED PURSUANT TO ITEM 401(F)
OF REGULATION S-K: None.
DANIEL J. ALTOBELLO
- -------------------
ADDRESS: 9727 Avenel Farm Drive, Potomac, Maryland 20854
DATE OF BIRTH: February 28, 1941 (age 56)
CITIZENSHIP: United States
BUSINESS ADDRESS: ONEX Food Services, Inc., 6550 Rock Spring Drive, Bethesda,
Maryland 20817
EMPLOYMENT HISTORY: Mr. Altobello has been the Chairman of the Board of ONEX
Food Services, Inc., an airline catering company, since September 1995. Mr.
Altobello has been a partner in Ariston Investment Partners, a consulting firm,
since September 1995. Mr. Altobello was the Chairman, President and Chief
Executive Officer of Caterair International Corporation, an airline catering
company, from January 1, 1993 until September 1995.
DIRECTORSHIPS REQUIRED TO BE REPORTED PURSUANT TO ITEM 401(E)(2) OF REGULATION
S-K: Mr. Altobello is a member of the Boards of Directors of American Management
Systems, Inc. and Colorado Prime Corporation.
INVOLVEMENT IN LEGAL PROCEEDINGS REQUIRED TO BE REPORTED PURSUANT TO ITEM 401(F)
OF REGULATION S-K: None.
DAVID P. BERKOWITZ
- ------------------
ADDRESS: 2109 Broadway, New York, New York 10023
DATE OF BIRTH: March 10, 1962 (age 35)
CITIZENSHIP: United States
BUSINESS ADDRESS: Gotham Partners Management Co. LLC, 110 East 42nd Street, 18th
Floor, New York, New York 10017
EMPLOYMENT HISTORY: Since January 1, 1993, Mr. Berkowitz has been the President
of GPLP Management Corp., the Managing Member of Gotham Partners Management Co.
LLC, an investment management firm (and the General Partner of its predecessor
entity). Mr. Berkowitz has been employed by Gotham Partners Management Co. LLC
and its predecessor entity since January 1, 1993. Mr. Berkowitz was a general
partner of Section H Partners, L.P., the General Partner of Gotham Partners,
L.P. and Gotham Partners II, L.P. investment funds, from January 1993 through
September 1993. Mr. Berkowitz has been the President, Secretary and Treasurer of
DBP Corporation, a general partner of Section H Partners, L.P. since October
1993.
DIRECTORSHIPS REQUIRED TO BE REPORTED PURSUANT TO ITEM 401(E)(2) OF REGULATION
S-K: None.
INVOLVEMENT IN LEGAL PROCEEDINGS REQUIRED TO BE REPORTED PURSUANT TO ITEM 401(F)
OF REGULATION S-K: None.
ADDRESS: 56 East 92nd Street, New York, New York 10128
STEPHEN J. GARCHIK
- ------------------
ADDRESS: 9605 Sotweed Drive, Potomac, Maryland 20854
DATE OF BIRTH: March 12, 1954 (age 43)
CITIZENSHIP: United States
BUSINESS ADDRESS: The Evans Company, 8251 Greensboro Drive, Suite 850, McLean,
Virginia 22102
EMPLOYMENT HISTORY: Since January 1, 1993, Mr. Garchik has been the President of
The Evans Company, a commercial real estate development and management firm. Mr.
Garchik has been the Chairman of Florida Golf Partners, L.P., a golf course
ownership, operation and development enterprise, since July 1996.
DIRECTORSHIPS REQUIRED TO BE REPORTED PURSUANT TO ITEM 401(E)(2) OF REGULATION
S-K: None.
INVOLVEMENT IN LEGAL PROCEEDINGS REQUIRED TO BE REPORTED PURSUANT TO ITEM 401(F)
OF REGULATION S-K: None.
DAVID S. KLAFTER
- ----------------
ADDRESS: 119 Waverly Place, Apt. 3, New York, New York 10011
DATE OF BIRTH: February 24, 1955 (age 42)
CITIZENSHIP: United States
BUSINESS ADDRESS: Gotham Partners Management Co. LLC, 110 East 42nd Street, 18th
Floor, New York, New York 10017
EMPLOYMENT HISTORY: Mr. Klafter has been an in-house counsel and investment
analyst at Gotham Partners Management Co. LLC, an investment management firm,
since April 1996. Mr. Klafter was counsel at White & Case, a law firm, from
January 1, 1993 until December 1993, and a partner at White & Case from January
1994 until April 1996.
DIRECTORSHIPS REQUIRED TO BE REPORTED PURSUANT TO ITEM 401(E)(2) OF REGULATION
S-K: None.
INVOLVEMENT IN LEGAL PROCEEDINGS REQUIRED TO BE REPORTED PURSUANT TO ITEM 401(F)
OF REGULATION S-K: None.
RICHARD A. MANDEL
- -----------------
ADDRESS: 28 Hilltop Road, Short Hills, New Jersey 07078
DATE OF BIRTH: September 1, 1962 (age 35)
CITIZENSHIP: United States
BUSINESS ADDRESS: Kennedy-Wilson International, 1270 Avenue of the Americas,
Suite 1818, New York, New York 10020
EMPLOYMENT HISTORY: Mr. Mandel has been the President of the Brokerage Division
of Kennedy-Wilson International, a real estate brokerage and investment firm,
since December 1996. From October 1993 until December 1996, Mr. Mandel was a
Managing Director in charge of the Asian Operations of Kennedy-Wilson
International. From January 1, 1993 until October 1993, he was a Director of
Jones Lang Wootton, a real estate brokerage firm.
DIRECTORSHIPS REQUIRED TO BE REPORTED PURSUANT TO ITEM 401(E)(2) OF REGULATION
S-K: Mr. Mandel is a member of the Board of Directors of Kennedy-Wilson
International.
INVOLVEMENT IN LEGAL PROCEEDINGS REQUIRED TO BE REPORTED PURSUANT TO ITEM 401(F)
OF REGULATION S-K: None.
DANIEL SHUCHMAN
- ---------------
ADDRESS: 203 East 72nd Street, Apt. 7D, New York, New York 10021
DATE OF BIRTH: August 4, 1965 (age 32)
CITIZENSHIP: United States
BUSINESS ADDRESS: Gotham Partners Management Co. LLC, 110 East 42nd Street, 18th
Floor, New York, New York 10017
EMPLOYMENT HISTORY: Mr. Shuchman has been an investment analyst at Gotham
Partners Management Co. LLC, an investment management firm, since October 1994.
Mr. Shuchman was an investment banker at Goldman Sachs & Co., an investment
banking firm, from January 1, 1993 until August 1994.
DIRECTORSHIPS REQUIRED TO BE REPORTED PURSUANT TO ITEM 401(E)(2) OF REGULATION
S-K: None.
INVOLVEMENT IN LEGAL PROCEEDINGS REQUIRED TO BE REPORTED PURSUANT TO ITEM 401(F)
OF REGULATION S-K: None.
STEVEN S. SNIDER
- ----------------
ADDRESS: 1624 Foxhall Road, N.W., Washington, D.C. 20007
DATE OF BIRTH: December 31, 1956 (age 41)
CITIZENSHIP: United States
BUSINESS ADDRESS: Hale and Dorr LLP, 1455 Pennsylvania Avenue, N.W., Washington,
D.C. 20004
EMPLOYMENT HISTORY: Since January 1, 1993, Mr. Snider has been a senior partner
at Hale and Dorr LLP, a law firm.
DIRECTORSHIPS REQUIRED TO BE REPORTED PURSUANT TO ITEM 401(E)(2) OF REGULATION
S-K: None.
INVOLVEMENT IN LEGAL PROCEEDINGS REQUIRED TO BE REPORTED PURSUANT TO ITEM 401(F)
OF REGULATION S-K: None.
MARY ANN TIGHE
- --------------
ADDRESS: 1320 York Avenue, Apt. 36B, New York, New York 10021
DATE OF BIRTH: August 24, 1948 (age 49)
CITIZENSHIP: United States
BUSINESS ADDRESS: Insignia/ESG, 200 Park Avenue, New York, New York 10166
EMPLOYMENT HISTORY: Since January 1, 1993, Ms. Tighe has been an Executive
Managing Director and a member of the Executive and Strategic Planning
Committees of Insignia/ESG, a commercial real estate firm.
DIRECTORSHIPS REQUIRED TO BE REPORTED PURSUANT TO ITEM 401(E)(2) OF REGULATION
S-K: None.
INVOLVEMENT IN LEGAL PROCEEDINGS REQUIRED TO BE REPORTED PURSUANT TO ITEM 401(F)
OF REGULATION S-K: None.
JAMES A. WILLIAMS
- -----------------
ADDRESS: 3518 Franklin Road, Bloomfield Hills, Michigan 48382
DATE OF BIRTH: March 30, 1942 (age 55)
CITIZENSHIP: United States
BUSINESS ADDRESS: Williams, Williams, Ruby & Plunkett PC, 380 N. Woodward
Avenue, Suite 380, Birmingham, Michigan 48009
EMPLOYMENT HISTORY: Since January 1, 1993, Mr. Williams has been the President
of Williams, Williams, Ruby & Plunkett PC, a law firm. Mr. Williams has also
been the Chairman of Michigan National Bank and Michigan National Corporation
since November 1995.
DIRECTORSHIPS REQUIRED TO BE REPORTED PURSUANT TO ITEM 401(E)(2) OF REGULATION
S-K: None.
INVOLVEMENT IN LEGAL PROCEEDINGS REQUIRED TO BE REPORTED PURSUANT TO ITEM 401(F)
OF REGULATION S-K: None.
EXHIBIT C
----------
Description of the Proposal
---------------------------
To increase the number of Trustees on the Company's Board of Trustees from
its current composition of nine members to fifteen members and to hold an
election of Trustees to fill the newly-created positions along with the three
seats whose terms are expiring.
Reasons for the Proposal
------------------------
Gotham Partners, L.P. and Gotham Partners II, L.P. ("Gotham") together are
the Company's largest Beneficiaries, holding 7.18% of the outstanding shares of
Beneficial Interest of the Company as well as options to acquire approximately
an additional 1.78% of the shares which Gotham intends to exercise on or before
the expiration date of the options.
On July 14, 1997 Gotham sent a letter (the "Letter") to the Company's
Trustees and the Directors of First Union Management, Inc. indicating concern
with the Company's recently modified strategic plan. In addition, Gotham
questioned management's ability to implement a strategy which would maximize the
value of the Company's stapled-stock structure, given management's limited
experience acquiring and managing operating businesses. Gotham's concerns arose
primarily from (1) the Company's equity offerings which Gotham believes were
ill-timed, poorly-executed and dilutive; (2) the price paid by the Company for
Impark; and (3) the fact that Mr. Mastandrea has told Gotham that he is
unwilling to enter into any transaction which would replace existing management
with a new investor group and management team with the capital and experience to
maximize the value of the Company's structure.
In the Letter and a follow-up letter dated July 23, 1997, Gotham requested
a meeting with the Trustees and Directors to discuss its concerns and proposals
for maximizing the Company's value. These and future attempts by Gotham to meet
with the Trustees and Directors have proven unsuccessful.
The Company has stated that it intends to focus on purchasing parking
assets. Despite its stated goal to acquire parking assets, the Company has used
most of its financial resources ($292 million of $350 million invested in the
third and fourth quarters of 1997) to acquire shopping malls which do not take
advantage of the Company's stapled-stock structure. Based on management's record
to date, Gotham believes that the Company has yet to demonstrate it is capable
of implementing its own strategic plan.
Mr. Mastandrea's record as Chairman, CEO, and President of the Company has
been disappointing particularly when measured based on the Company's share price
performance during his tenure. From the date he became Chairman of the Company
on January 1, 1994 to the date prior to the Company's initial disclosure of its
stapled-stock structure in its convertible preferred offering on October 24,
1996, the Company's common stock price DECLINED 27% (from $9.625 to $7).
Since the Company's stapled-stock structure was publicly revealed in the
preferred stock offering prospectus, the Company's common stock has appreciated
substantially. Even if one includes the recent share price increase, the
Company's stock has underperformed the other paired-shared REITs over Mr.
Mastandrea's tenure with the Company. From January 1, 1994 to the present, while
the Company's stock has appreciated by 69%, Starwood's stock has appreciated
451%, California Jockey/Patriot American's stock has appreciated 344% and Santa
Anita/MediTrust's stock has appreciated 104%.
Gotham believes that the existing Board of Trustees has done little to
maximize shareholder value. Gotham believes this is largely due to the Board's
lack of real estate expertise and insubstantial shareholdings in the Company.
Mr. Mastandrea has publicly stated (Wachtell Lipton REIT conference, New York
City, April 7, 1997) that he does not want his board members to own stock
because the only way they can be truly independent is if they are not
significant shareholders of the Company.
Gotham believes that the best board members are those who are independent -
INDEPENDENT OF MANAGEMENT, not INDEPENDENT OF SHAREHOLDERS' INTERESTS - and who
have significant real estate and operating company investment experience and/or
a substantial cash investment in the stock in the Company. Gotham believes its
nominees better meet these criteria and can better represent the interests of
the shareholders than the existing board.
As a result, Gotham intends to seek shareholder support for its nominees.
Gotham will seek majority representation on the Board of Trustees at the next
Annual Meeting of Beneficiaries (or any Special Meeting of Beneficiaries held in
lieu thereof) and has nominated nine individuals (who are described in further
detail in the accompanying nomination notice) to replace the three trustees
whose terms are expiring and to fill a newly-expanded board.
Upon gaining majority representation on the Company's Board of Trustees and
after reviewing relevant information about the business and operations of the
Company, Gotham expects that the new board will propose changes in the
management of the Company, but has not presently identified new management. In
addition, after careful analysis of various factors, in particular the
value-maximization strategies of the other paired-share REITs, the new board may
cause the Company to change its strategic direction, including, without
limitation, identifying a strategic partner or partners, pursuing acquisitions
in other real-estate-intensive operating businesses, disposing of non-core
assets and/or seeking the sale of the Company in a single transaction or a
series of transactions which would preserve and maximize the value of the
Company's stapled-stock structure. Gotham does not currently have any specific
plans regarding any of the foregoing.
EXHIBIT D
----------
Proponent Information
---------------------
The following is the information required to be given pursuant to Article I,
Sections 7(c)(iii), (iv) and (v) of the By-Laws of First Union Real Estate
Equity and Mortgage Investments (the "Company") by a Beneficiary offering a
nomination or proposal:
1. NAME AND ADDRESS OF THE BENEFICIARY MAKING THE PROPOSAL OR NOMINATION (THE
"PROPONENT") AS THEY APPEAR IN THE SHARE TRANSFER BOOKS OF THE COMPANY:
Gotham Partners, L.P., 110 East 42nd Street, New York, New York 10017
2. NAME AND ADDRESS OF ANY OTHER BENEFICIARY KNOWN BY THE PROPONENT TO BE
SUPPORTING THE NOMINATION AND PROPOSAL: Gotham Partners II, L.P., 110 East
42nd Street, New York, New York 10017
3. THE CLASS AND NUMBER OF SHARES OF BENEFICIAL INTEREST OF THE COMPANY
("SHARES") OWNED BY THE PROPONENT: Gotham Partners, L.P. owns 1,998,301
Shares and holds an option to acquire 493,150 Shares.
4. THE CLASS AND NUMBER OF SHARES OWNED BY ANY BENEFICIARIES DESCRIBED IN
PARAGRAPH 2 ABOVE: Gotham Partners II, L.P. owns 23,599 Shares and holds an
option to acquire 6,850 Shares.
5. ANY FINANCIAL INTEREST OF THE PROPONENT IN THE PROPONENT'S PROPOSAL: Gotham
has no interest in the Proposal other than its interest as an owner of
Shares and an option to acquire Shares.
<PAGE>
CERTIFICATION OF PROPOSAL
Pursuant to Article I, Section 7 of the By-Laws of First Union Real
Estate Equity and Mortgage Investments (the "Company"), the undersigned, Gotham
Partners, L.P., a Beneficiary of the Company, hereby certifies that its proposal
to be brought before the 1998 Annual Meeting of Beneficiaries of the Company (or
any Special Meeting of Beneficiaries held in lieu thereof), a copy of which is
attached as Exhibit A hereto, does not conflict with or violate any provisions
of the Declaration of Trust of the Company.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on
this 8th day of January, 1998.
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
By: Karenina Corporation,
a general partner of Section H Partners, L.P.
By: /s/ William A. Ackman
--------------------------------------
William A. Ackman
President
Exhibit A
---------
Proposal
--------
Gotham Partners, L.P. ("Gotham Partners"), a Beneficiary of First Union
Real Estate Equity and Mortgage Investments ("the Company"), meeting the
qualifications set forth in Article I, Section 7 of the By-Laws of the Company,
sets forth the following proposal to be considered by the Beneficiaries of the
Company at the Company's 1998 Annual Meeting of Beneficiaries (or any Special
Meeting of Beneficiaries held in lieu thereof):
Proposed, in accordance with Article VIII, Section 8.1 of the Company's
Amended Declaration of Trust, dated July 25, 1986,
(i) that the number of Trustees constituting the full Board of Trustees
of the Company shall be determined at the 1998 Annual Meeting of Beneficiaries
of the Company (or any Special Meeting of Beneficiaries held in lieu thereof) to
be fixed at fifteen (an increase of six members); and
(ii) that two of the newly-created seats of the Board of Trustees of the
Company be assigned to each of Class I, Class II and Class III; and
(iii) that, at the 1998 Annual Meeting of Beneficiaries of the Company (or
any Special Meeting of Beneficiaries held in lieu thereof), in addition to
electing the three Trustees to fill the seats of the three Trustees in Class II
whose terms are expiring, the Beneficiaries of the Company shall also elect six
Trustees (two Trustees to each of Class I, Class II and Class III) to serve in
the newly-created seats established in paragraph (ii) above.
<PAGE>
CERTIFICATION OF NOMINEES
Pursuant to Article I, Section 7(c) of the By-Laws of First Union Real
Estate Equity and Mortgage Investments (the "Company"), the undersigned, Gotham
Partners, L.P., a Beneficiary of the Company, hereby certifies that each of its
nominees for election to the Board of Trustees of the Company at the 1998 Annual
Meeting of Beneficiaries of the Company (or any Special Meeting of Beneficiaries
held in lieu thereof), a list of whom is attached hereto as Exhibit A, meets all
the qualifications for Trustees set forth in the Declaration of Trust of the
Company, including, but not limited to, Section 8.10 thereof.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on
this 8th day of January, 1998.
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
By: Karenina Corporation,
a general partner of Section H Partners, L.P.
By: /s/ William A. Ackman
------------------------------------------
William A. Ackman
President
Exhibit A
---------
Nominees
--------
William A. Ackman
Daniel J. Altobello
David P. Berkowitz
Stephen J. Garchik
David S. Klafter
Richard A. Mandel
Daniel Shuchman
Steven S. Snider
Mary Ann Tighe
James A. Williams
