UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. __)
Wellsford Real Properties, Inc.
- ---------------------------------------------------------------------------
(Name of Issuer)
Common Stock, $0.01 par value
- ---------------------------------------------------------------------------
(Title of Class of Securities)
950241109
--------------------------------------------------------
(CUSIP Number)
Stephen Fraidin, P.C.
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10005
(212) 859-8140
- ---------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
December 28, 1999
(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 |X|.
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).
<PAGE>
SCHEDULE 13D
CUSIP No. 950241109 Page 2 of 9 Pages
1 NAME OF REPORTING PERSON/
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
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
NUMBER OF 7 SOLE VOTING POWER
SHARES 1,592,332
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 0
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 1,592,332
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,592,332
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.82%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS
<PAGE>
SCHEDULE 13D
CUSIP No. 950241109 Page 3 of 9 Pages
1 NAME OF REPORTING PERSON/
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
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 ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
NUMBER OF 7 SOLE VOTING POWER
SHARES 1,200
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 0
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 1,200
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,200
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.01%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS
<PAGE>
SCHEDULE 13D
CUSIP No. 950241109 Page 4 of 9 Pages
1 NAME OF REPORTING PERSON/
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
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 ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES 980,100
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 0
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 980,100
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
980,100
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.82%
14 TYPE OF REPORTING PERSON*
00; IA
*SEE INSTRUCTIONS
<PAGE>
Item 1. Security and Issuer
This statement on Schedule 13D (the "Statement") relates to the Common
Stock, $.01 par value ("Common Stock"), of Wellsford Real Properties, Inc.,
a Maryland corporation (the "Company"). The principal executive offices of
the Company are located at 535 Madison Avenue, New York, New York 10022.
Item 2. Identity and Background
This Statement is being filed by Gotham Partners, L.P., a New York
limited partnership ("Gotham"), with respect to shares of Common Stock
owned by it, Gotham Partners III, L.P., a New York limited partnership
("Gotham III"), with respect to shares of Common Stock owned by it, and
Gotham International Advisors, L.L.C., a Delaware limited liability company
("Gotham Advisors", and together with Gotham and Gotham III, the "Reporting
Persons"), with respect to shares of Common Stock owned by Gotham Partners
International, Ltd. ("Gotham International"), a Cayman exempted company.
Each of Gotham and Gotham III was formed to engage in the buying and
selling of securities for investment for its own account. Gotham Advisors
was formed for the purpose of providing a full range of investment advisory
services, including acting as the investment manager of one or more
investment funds or other similar entities, including Gotham International.
Section H Partners, L.P., a New York limited partnership ("Section
H"), is the sole general partner of Gotham and Gotham III. Karenina Corp.,
a New York corporation ("Karenina"), and DPB Corp., a New York corporation
("DPB"), are the sole general partners of Section H. Karenina is wholly
owned by Mr. William A. Ackman. DPB is wholly owned by Mr. David P.
Berkowitz. Pursuant to an investment management agreement (the "Investment
Management Agreement"), Gotham Advisors has the power to vote and dispose
of the shares of Common Stock held for the account of Gotham International
and, accordingly, may be deemed the "beneficial owner" of such shares.
Messrs. Ackman and Berkowitz are the Senior Managing Members of Gotham
Advisors. Gotham International, Section H, Karenina, DPB, Mr. Ackman and
Mr. Berkowitz are sometimes hereinafter collectively referred to as the
"Other Persons".
Messrs. Ackman and Berkowitz are citizens of the United States of
America, and the principal occupation of each of them is managing the
affairs of (i) Karenina and DPB, respectively, and through such entities
the affairs of Section H, Gotham and Gotham III, and (ii) Gotham Advisors,
and through such entity the affairs of Gotham International. The business
address of each of the Reporting Persons, Section H, Karenina, DPB, Mr.
Ackman and Mr. Berkowitz is 110 East 42nd Street, 18th Floor, New York, New
York 10017. The business address of Gotham International is c/o Goldman
Sachs (Cayman) Trust, Limited, Harbour Centre, 2nd Floor, P.O. Box 896,
George Town, Grand Cayman, Cayman Islands, British West Indies.
During the last five years, none of the Reporting Persons or Other
Persons (i) has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or has been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction
and as a result of such proceeding was or is subject to a judgment, decree
or final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
The aggregate purchase prices of the Common Stock purchased by Gotham,
Gotham III and Gotham International were $21,599,749, $16,092 and
$13,352,014, respectively. All of the funds required for the purchases were
obtained from the general funds of Gotham, Gotham III and Gotham
International, respectively.
Item 4. Purpose of the Transaction
Except as set forth below, none of the Reporting Persons has any plans
or proposals which would relate to or result in any of the matters set
forth in clauses (a) through (j) of Item 4 of the Schedule 13D form.
First Union Real Estate Equity and Mortgage Investments ("First
Union"), an Ohio business trust which may be deemed to be controlled by the
Reporting Persons, has engaged and may continue to engage in discussions and
may engage in negotiations with the Company regarding a possible business
combination or other material transaction involving First Union and the
Company. On December 28, 1999, each of First Union and Gotham entered into
a confidentiality and standstill agreement with the Company, copies of
which are attached hereto as Exhibit 2 and Exhibit 3, respectively, and
incorporated by reference herein. There is no assurance that a transaction
involving First Union and the Company will be consummated.
The Reporting Persons acquired the Common Stock for investment
purposes in the ordinary course of their business. The Reporting Persons
pursue an investment objective that seeks capital appreciation. In pursuing
this investment objective, the Reporting Persons analyze the operations,
capital structure and markets of companies in which they invest, including
the Company, through analysis of documentation and discussions with
knowledgeable industry and market observers and with representatives of
such companies (often at the invitation of management). As a result of
these activities, one or more of the Reporting Persons may participate in
interviews or hold discussions with third parties or with management in
which the Reporting Person may suggest or take a position with respect to
potential changes in the operations, management or capital structure of
such companies as a means of enhancing shareholder values. Such suggestions
or positions may relate to one or more of the transactions specified in
clauses (a) through (j) of Item 4 of the Schedule 13D form, including,
without limitation, such matters as disposing of one or more businesses,
selling the company or acquiring another company or business, changing
operating or marketing strategies, adopting, not adopting, modifying or
eliminating certain types of anti-takeover measures, restructuring the
company's capitalization, and reviewing dividend and compensation policies.
In the ordinary course of their business, the Reporting Persons have
met with the management of the Company to discuss the business and
financial condition of the Company. Subject to the second paragraph of this
Item 4, each of the Reporting Persons will continue to assess the Company's
business, financial condition, results of operations and prospects, general
economic, financial and industry conditions, the securities markets and
future trading prices in general and those for the Company's securities in
particular, other developments and other investment opportunities.
Depending on such assessments, one or more of the Reporting Persons may
acquire additional Common Stock or may determine to sell or otherwise
dispose of all or some of its holdings of Common Stock.
Item 5. Interest in Securities of the Issuer
(a) Gotham owns 1,592,332 shares of Common Stock as of the date of
this Statement, representing an aggregate of approximately 7.82% of the
outstanding Common Stock of the Company. Gotham III owns 1,200 shares of
Common Stock as of the date of this Statement, representing an aggregate of
approximately 0.01% of the outstanding Common Stock of the Company. Gotham
International owns 980,100 shares of Common Stock as of the date of this
Statement, representing an aggregate of approximately 4.82% of the
outstanding Common Stock of the Company. The percentages in this paragraph
are calculated based upon 20,351,571 outstanding shares of Common Stock of
the Company, as reported in the Company's Form 10-Q for the quarter ended
September 30, 1999. None of Gotham Advisors, Section H, Karenina, DPB, Mr.
Ackman or Mr. Berkowitz beneficially own any Common Stock (other than the
Common Stock beneficially owned by Gotham, Gotham III and Gotham
International).
(b) Each of Gotham and Gotham III has sole power to vote and to
dispose of all of the Common Stock beneficially owned by it. Pursuant to
the Investment Management Agreement, Gotham Advisors currently has the
power to vote and to dispose of all of the Common Stock beneficially owned
by Gotham International.
(c), (d) and (e). Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
Pursuant to Gotham's confidentiality and standstill agreement with the
Company, Gotham agreed that neither Gotham nor its affiliates would, for a
period of one year, directly or indirectly, take certain actions with
respect to the Company unless and until Gotham has received the prior
written invitation or approval of a majority of the Board of Directors of
the Company; provided, however, that at any time after June 28, 2000,
Gotham and its affiliates may purchase up to an aggregate of 20% of the
outstanding shares of any class of common stock of the Company (including
any such shares owned on December 28, 1999); provided, further that any
such shares of common stock that are so acquired shall be voted on all
matters submitted to a vote of the Company's stockholders during the six
month period beginning June 28, 2000 and ending December 28, 2000 as
directed by the Board of Directors of the Company. First Union's
confidentiality and standstill agreement with the Company is substantially
similar to Gotham's confidentiality and standstill agreement, without
allowance for any purchases of Common Stock until after December 28, 2000.
The foregoing descriptions of the confidentiality and standstill agreements
are qualified in their entirety by reference to the copies of these
agreements which are attached hereto as Exhibit 2 and Exhibit 3 and
incorporated by reference herein.
Except as described above, none of the Reporting Persons or Other
Persons is a party to any contract, arrangement, understanding or
relationship with respect to any securities of the Company, including but
not limited to transfer or voting of any of the securities, finder's fees,
joint ventures, loan or option agreements, puts or calls, guarantees of
profits, divisions of profit or losses or the giving or withholding of
proxies.
Item 7. Material to be Filed as Exhibits
The following exhibits are being filed with this Schedule:
Exhibit 1 A written agreement relating to the filing of joint
acquisition statements as required by Rule 13d-1(f)(1)
promulgated under the Securities Exchange Act of 1934, as
amended.
Exhibit 2 Confidentiality and Standstill Agreement dated December 28,
1999 between First Union and the Company.
Exhibit 3 Confidentiality and Standstill Agreement dated December 28,
1999 between Gotham and the Company.
Exhibit 4 Press Release dated December 29, 1999.
<PAGE>
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.
December 29, 1999
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
EXHIBIT 1
JOINT ACQUISITION STATEMENT PURSUANT TO RULE 13d-1(f)1
The undersigned acknowledge and agree that the foregoing statement on
Schedule 13D is filed on behalf of each of the undersigned and that all
subsequent amendments to this statement on Schedule 13D shall be filed on
behalf of each of the undersigned without the necessity of filing
additional joint acquisition statements. The undersigned acknowledge that
each shall be responsible for the timely filing of such amendments, and for
the completeness and accuracy of the information concerning him or it
contained therein, but shall not be responsible for the completeness and
accuracy of the information concerning the other, except to the extent that
he or it knows or has reason to believe that such information is
inaccurate.
DATED: December 29, 1999
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
EXHIBIT 2
Wellsford Real Properties, Inc.
535 Madison Avenue
New York, New York 10022
December 28, 1999
First Union Real Estate Equity
and Mortgage Investments
55 Public Square
Suite 1900
Cleveland, OH 44113
Ladies and Gentlemen:
First Union Real Estate Equity and Mortgage Investments ("First
Union") and Wellsford Real Properties, Inc. ("WRP") have expressed an
interest in exploring a possible transaction (the "Transaction") and, in
connection therewith, may exchange certain confidential information.
As used herein, "Confidential Material" means, with respect to
either party hereto (each a "Providing Party"), all information, whether
oral, written or otherwise (including any information furnished prior to
the execution of this agreement), furnished to the other party hereto (each
a "Receiving Party") or to such Receiving Party's directors, trustees,
officers, partners, members, managers, Affiliates (as defined in Rule 12b-2
under the Securities Exchange Act of 1934 (the "Exchange Act")), employees,
agents or representatives (collectively, "Representatives"), by the
Providing Party and all reports, analyses, compilations, studies and other
materials prepared by the Receiving Party or its Representatives (in
whatever form maintained, whether documentary, computer storage or
otherwise) containing, reflecting or based upon, in whole or in part, any
such proprietary confidential information. The term "Confidential Material"
does not include information which (i) is or becomes generally available to
the public other than as a result of a disclosure by the Receiving Party,
its Representatives or anyone to whom the Receiving Party or any of its
Representatives transmit any Confidential Material in violation of this
agreement or (ii) is or becomes known or available to the Receiving Party
or its Representatives on a non-confidential basis from a source (other
than the Providing Party or one of its Representatives) who is not, to the
knowledge of the Receiving Party after reasonable inquiry, prohibited from
transmitting the information to the Receiving Party or its Representatives
by a contractual, legal or fiduciary obligation.
In consideration of the exchange of the Confidential Material,
First Union and WRP agree that:
1. Subject to paragraph 3 below, the Confidential Material will
be kept confidential and will not, without the prior written consent of the
Providing Party, be disclosed by the Receiving Party or its
Representatives, in whole or in part, and will not be used by the Receiving
Party or its Representatives, directly or indirectly, for any purpose other
than in connection with evaluating, negotiating or advising with respect to
a possible Transaction. Moreover, such Receiving Party agrees to disclose
that it is evaluating a Transaction and transmit Confidential Material to
its Representatives only if and to the extent that such Representatives
need to know the Confidential Material for the purpose of evaluating,
negotiating or advising with respect to such Transaction and are informed
by such Receiving Party of the confidential nature of the Confidential
Material and of the terms of this agreement. In any event, each Receiving
Party will be responsible for any actions by its Representatives which are
not in accordance with the provisions hereof.
2. Subject to paragraph 3 below, without the prior written
consent of the other party hereto, except as required by law, neither First
Union nor WRP nor any of their respective Representatives will disclose to
any person any information regarding a possible Transaction or any
information relating in any way to the Confidential Material, including,
without limitation,(i) the fact that discussions or negotiations are taking
place concerning a possible Transaction, including the status thereof or
the termination of discussions or negotiations, (ii) any of the terms,
conditions or other facts with respect to any such possible Transaction or
(iii) that this agreement exists or that Confidential Material has been
provided. The term "Person" as used in this agreement shall be broadly
interpreted to include, without limitation, any corporation, company,
group, limited liability company, partnership or other entity or any
individual.
3. In the event that either the Receiving Party, or its
Representatives or anyone to whom such Receiving Party or its
Representatives supply the Confidential Material or any of the facts or
information referred to in paragraph 2 above, are requested or required (by
oral questions, interrogatories, requests for information or documents,
subpoena, civil investigative demand, any informal or formal investigation
by any government or governmental agency or authority or otherwise in
connection with legal processes) to disclose any Confidential Material or
any of the facts or information referred to in the immediately preceding
paragraph or any information relating to a possible Transaction or such
Person's opinion, judgment, view or recommendation concerning the Providing
Party as developed from the Confidential Material, such Receiving Party
agrees (i) to immediately notify the Providing Party of the existence,
terms and circumstances surrounding such a request,(ii) to consult with the
Providing Party on the advisability of taking legally available steps to
resist or narrow such request and (iii) if disclosure of such information
is required, to furnish only that portion of the Confidential Material
which, in the opinion of such Receiving Party's counsel, such Receiving
Party is legally compelled to disclose and to cooperate with any action by
the Providing Party to obtain an appropriate protective order or other
reliable assurance that confidential treatment will be accorded the
Confidential Material, it being agreed that the Providing Party shall
reimburse the Receiving Party for all reasonable out-of-pocket expense
incurred by the Receiving Party in connection with such cooperation.
4. Each of First Union and WRP hereby acknowledges that it is
aware, and agrees to advise such of its Representatives who are informed in
accordance with the terms of this agreement as to the matters which are the
subject of this agreement, that the United States securities laws prohibit
any person who has received from an issuer material, non-public information
concerning the matters which are the subject to this agreement from
purchasing or selling securities of such issuer or from communicating such
information to any other person under circumstances in which it is
reasonably foreseeable that such person is likely to purchase or sell such
securities.
5. Each Receiving Party hereby acknowledges that the Confidential
Material is being furnished to it in consideration of its agreement that,
for a period of one year from the date hereof, neither such Receiving Party
nor its Affiliates shall, directly or indirectly, (a)(x) solicit, seek or
offer to effect or effect, (xx) negotiate with or provide any information
to the Board of Directors or Board of Trustees, as the case may be, of the
Providing Party, any trustee, director or officer of the Providing Party or
any stockholder of the Providing Party with respect to, (xxx) make any
statement or proposal, whether written or oral, either alone or in concert
with others, to the Board of Directors or Board of Trustees, as the case
may be, of the Providing Party, any director or officer of the Providing
Party or any stockholder of the Providing Party or any other person with
respect to, or (xxxx) make any public announcement (except as required by
law in respect of actions permitted hereby) or proposal or offer whatsoever
(including, but not limited to, any "solicitation" or "proxies" as such
terms are defined or used in Regulation 14A of the Exchange Act) with
respect to, (i) any form of business combination or similar or other
extraordinary transaction involving the Providing Party or any Affiliate
thereof, including, without limitation, a merger, tender or exchange offer
or liquidation of the Providing Party's assets, (ii) any form of
restructuring, recapitalization or similar transaction with respect to the
Providing Party or any Affiliate thereof, (iii) any purchase of any
securities or assets, or rights or options to acquire any securities or
assets (through purchase, exchange, conversion or otherwise), of the
Providing Party or any Affiliate thereof, (iv) any proposal to seek
representation on the Board of Directors or Board of Trustees, as the case
may be, of the Providing Party or to seek to appoint, elect or remove any
member of the Board of Directors or Board of Trustees, as the case may be,
of the Providing Party or make any public statements proposing or
suggesting any change in the Board of Directors or Board of Trustees, a the
case may be, or management of the Providing Party or otherwise to seek to
control or influence the management, Board of Directors or Board of
Trustees, as the case may be, or policies of the Providing Party or any
Affiliate thereof, (v) any request or proposal to waive, terminate or amend
the provisions of this agreement or (vi) any proposal or other statement
inconsistent with the terms of this agreement or (b) instigate, encourage,
join, act in concert with or assist (including, but not limited to,
providing or assisting in any way in the obtaining of financing for, or
acting as a joint or co- bidder for the Providing Party with) any third
party to do any of the foregoing (the actions referred to in (a) and (b) in
this sentence are referred to as "Prohibited Actions"), unless and until
such Receiving Party has received the prior written invitation or approval
of a majority of the Board of Directors or Board of Trustees, as the case
may be, of the Providing Party to do any of the foregoing, it being agreed
and understood that the entering into of this agreement shall not
constitute such invitation or approval.
6. Each Receiving Party acknowledges that neither the Providing
Party nor any of its Representatives has made, or, except as may be
otherwise provided in any definitive agreement relating to a Transaction,
will make, any representation or warranty, express or implied, as to the
accuracy or completeness of the Confidential Material. Each Receiving Party
agrees that, except as may be otherwise provided in any definitive
agreement relating to a Transaction, neither the Providing Party nor its
Representatives shall have any liability to such Receiving Party or any of
its Representatives resulting from the Confidential Material or the
Receiving Party's or its Representatives' consideration of, or
participation in a process relating to, a possible Transaction.
7. Promptly upon request from either Providing Party, the
Receiving Party shall, except to the extent prevented by law, redeliver to
the Providing Party or destroy all tangible Confidential Material delivered
to it or its Representatives and any other tangible material containing,
prepared on the basis of, or reflecting any information in the Confidential
Material (whether prepared by the Providing Party, its advisors or
otherwise), including all reports, analyses, compilations, studies and
other materials containing or based on the Confidential Material or
reflecting such Receiving Party's review of, or interest in, such Providing
Party, and will not retain any copies, extracts or other reproductions in
whole or in part of such tangible material. Any such destruction shall be
certified in writing to the Providing Party by an authorized officer of the
Receiving Party supervising the same.
8. Each of First Union and WRP acknowledges and agrees that in
the event of any breach of this agreement by either party, the other party
would be irreparably and immediately harmed and could not be made whole by
monetary damages. It is accordingly agreed that each party, in addition to
any other remedy to which it may be entitled in law or equity, shall be
entitled to an injunction or injunctions to prevent breaches of this
agreement by the other party or by any non-party recipient of the
Confidential Material and to compel specific performance of this agreement,
without the need for proof of actual damages. Further, each party hereby
waives any request for or the seeking or posting of any bond in connection
with such injunction or injunctions.
9. Each of First Union and WRP agrees that (i) unless and until a
definitive written agreement between them with respect to a Transaction has
been executed and delivered, neither First Union nor WRP will be under any
legal obligation of any kind whatsoever with respect thereto and (ii) this
agreement shall be superseded by such definitive written agreement, except
to the extent otherwise provided therein. The agreements set forth in this
agreement may be modified or waived only by a written instrument duly
executed by First Union and WRP.
10. Each of First Union and WRP agrees that for a period of two
years from the date hereof it will not solicit to hire any person then
currently employed by the other party.
11. Each of First Union and WRP agrees that it will not contact
or solicit information from any of the other party's stockholders,
employees, tenants, vendors or lenders except to the extent approved in
writing by such other party, which consent will not be unreasonably
withheld or delayed if such other party intends to continue discussions
regarding a Transaction.
12. It is understood and agreed that no failure or delay by
either party hereto in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of
any right, power or privilege hereunder.
13. This agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to the
principles of conflict of laws thereof. This agreement may not be assigned
in whole or in part by either party without the prior written consent of
the other party. This agreement may be executed in counterparts, each of
which shall be deemed to be an original, and all of which shall constitute
the same agreement.
14. Notwithstanding anything contained herein to the contrary,
this agreement is made and executed on behalf of First Union by its
officer(s) on behalf of the trustees thereof, and none of the trustees or
any additional or successor trustee hereafter appointed, or any
beneficiary, officer, employee or agent of First Union shall have any
liability in his or her personal or individual capacity, but instead, WRP
shall look solely to the property and assets of First Union for
satisfaction of claims of any nature arising under or in connection with
this agreement.
Very truly yours,
WELLSFORD REAL PROPERTIES, INC.
By: /s/ Edward Lowenthal
------------------------------
Agreed:
FIRST UNION REAL ESTATE AND
MORTGAGE INVESTMENTS
By: /s/ William A. Ackman
--------------------------
Chairman
EXHIBIT 3
Wellsford Real Properties, Inc.
535 Madison Avenue
New York, New York 10022
December 28, 1999
Gotham Partners, L.P.
110 East 42nd Street
New York, N.Y. 10017
Ladies and Gentlemen:
Gotham Partners, L.P. ("Gotham") and Wellsford Real Properties,
Inc. ("WRP") have expressed an interest in exploring a possible transaction
(the "Transaction") between WRP and an entity which is an affiliate (as
defined in Rule 12b-2 under the Securities Exchange Act of 1934 (the
"Exchange Act) of Gotham.
In connection with the foregoing and in consideration of
confidential information provided by WRP to Gotham, Gotham hereby
acknowledges that for a period of one year from the date hereof, neither
Gotham nor its affiliates shall, directly or indirectly, (a)(x) solicit,
seek or offer to effect or effect, (xx) negotiate with or provide any
information to the Board of Directors of WRP, any director or officer of
WRP or any stockholder of WRP with respect to, (xxx) make any statement or
proposal, whether written or oral, either alone or in concert with others,
to the Board of Directors of WRP, any director or officer of WRP or any
stockholder of WRP or any other person with respect to, or (xxxx) make any
public announcement (except as required by law in respect of actions
permitted hereby) or proposal or offer whatsoever (including, but not
limited to, any "solicitation" or "proxies" as such terms are defined or
used in Regulation 14A of the Exchange Act) with respect to, (i) any form
of business combination or similar or other extraordinary transaction
involving WRP or any affiliate thereof, including, without limitation, a
merger, tender or exchange offer or liquidation of WRP's assets, (ii) any
form of restructuring, recapitalization or similar transaction with respect
to WRP or any affiliate thereof, (iii) any purchase of any securities or
assets, or rights or options to acquire any securities or assets (through
purchase, exchange, conversion or otherwise), of WRP or any affiliate
thereof, (iv) any proposal to seek representation on the Board of Directors
of WRP or to seek to appoint, elect or remove any member of the Board of
Directors of WRP or make any public statements proposing or suggesting any
change in the Board of Directors or management of WRP or otherwise to seek
to control or influence the management, Board of Directors of WRP or any
affiliate thereof, (v) any request or proposal to waive, terminate or amend
the provisions of this agreement or (vi) any proposal or other statement
inconsistent with the terms of this agreement or (b) instigate, encourage,
join, act in concert with or assist (including, but not limited to,
providing or assisting in any way in the obtaining of financing for, or
acting as a joint or co-bidder for WRP with) any third party to do any of
the foregoing (the actions referred to in (a) and (b) in this sentence are
referred to as "Prohibited Actions"), unless and until Gotham has received
the prior written invitation or approval of a majority of the Board of
Directors of WRP to do any of the foregoing, it being agreed and understood
that the entering into of this agreement shall not constitute such
invitation or approval; provided, however, that at any time after six
months after the date hereof, Gotham and its Affiliates may purchase up to
an aggregate of 20% of the outstanding shares of any class of common stock
of WRP (including any such shares owned on the date hereof); provided,
further that any such shares of common stock that are so acquired shall be
voted on all matters submitted to a vote of WRP's stockholders during the
six month period beginning six month after the date hereof and ending one
year after the date hereof (the "Six Month Period") as directed by the
Board of Directors of WRP.
1. Each of Gotham and WRP acknowledges and agrees that in the
event of any breach of this agreement by either party, the other party
would be irreparably and immediately harmed and could not be made whole by
monetary damages. It is accordingly agreed that each party, in addition to
any other remedy to which it may be entitled in law or equity, shall be
entitled to an injunction or injunctions to prevent breaches of this
agreement by the other party and to compel specific performance of this
agreement, without the need for proof of actual damages. Further, each
party hereby waives any request for or the seeking or posting of any bond
in connection with such injunction or injunctions.
2. Each of Gotham and WRP agrees that for a period of two years
from the date hereof it will not solicit to hire any person then currently
employed by the other party.
3. Each of Gotham and WRP agrees that it will not contact or
solicit information from any of the other party's stockholders, employees,
tenants, vendors or lenders except to the extent approved in writing by
such other party, which consent will not be unreasonably withheld or
delayed if such other party intends to continue discussions regarding a
Transaction.
4. For a period of one year from the date hereof, WRP agrees that
it will not adopt any stockholders rights plan or similar plan that would
directly or indirectly restrict, limit or otherwise affect the ability of
Gotham to acquire the beneficial ownership of 20% or less of any class of
outstanding common stock of WRP (including any such shares owned on the
date hereof).
5. It is understood and agreed that no failure or delay by either
party hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of
any right, power or privilege hereunder.
6. This agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to the
principles of conflict of laws thereof. This agreement may not be assigned
in whole or in part by either party without the prior written consent of
the other party. This agreement may be executed in counterparts, each of
which shall be deemed to be an original, and all of which shall constitute
the same agreement.
Very truly yours,
WELLSFORD REAL PROPERTIES, INC.
By: /s/ Edward Lowenthal
---------------------------------
Agreed:
GOTHAM PARTNERS, L.P.
By: Section H Partners, L.P.,
General Partner
By: DPB Corporation,
General Partner
By: /s/ David P. Berkowitz
-----------------------------
Title: President
EXHIBIT 4
For Immediate Release
---------------------
First Union Real Estate Investments Announces Exploration of Possible
- ---------------------------------------------------------------------
Transaction Involving Wellsford Real Properties, Inc.
- -----------------------------------------------------
Cleveland, Ohio. December 29, 1999. First Union Real Estate Investments
announced today that it has entered into a confidentiality and standstill
agreement with Wellsford Real Properties, Inc. which will permit First
Union and Wellsford to explore the possibility of a business combination or
other material transaction. Gotham Partners, L.P. also announced today that
it has filed a Schedule 13D with the Securities and Exchange Commission
regarding Wellsford. The filing disclosed that Gotham has also entered into
a confidentiality and standstill agreement with Wellsford in connection
with the exploration of a possible transaction involving First Union and
Wellsford. There is no assurance that a transaction will be consummated. No
further announcements are intended to be made concerning the possible
transaction until a definitive agreement has been executed or the
discussions have been terminated.
Certain statements contained in this news release that are forward-looking
are based on current expectations that are subject to a number of
uncertainties and risks, and actual results may differ materially. The
uncertainties and risks include, but are not limited to, changes in market
activity, changes in local real estate conditions and markets, actions by
competitors, interest rate movements and general economic conditions.
Further information concerning First Union can be found in the information
included in the Annual Report on Form 10K filed by First Union with the
SEC.
First Union Real Estate Equity and Mortgage Investments is a NYSE-listed
stapled-stock real estate investment trust.
