e424b5
Filed Pursuant to Rule 424(b)(5)
Registration File No. 333-131278
(To Prospectus Dated
January 25, 2006)
5,400,000
Shares
6.75%
Series G Cumulative Redeemable Preferred Stock
(Liquidation
Preference $25 Per Share)
We are offering to the public
5,400,000 shares of our 6.75% Series G Cumulative
Redeemable Preferred Stock, no par value, which we refer to in
this prospectus supplement as the Series G Preferred Stock.
Dividends on the Series G Preferred Stock will be
cumulative from the date of original issue and payable
quarterly, beginning on or about July 30, 2007, at the rate
of 6.75% per annum of its liquidation preference, or
$1.6875 per annum per share of Series G Preferred
Stock. However, if following a change of control,
the Series G Preferred Stock is not listed on the New York
Stock Exchange, or NYSE, or the American Stock Exchange or
quoted on NASDAQ, investors will be entitled to receive
cumulative cash dividends from, but not including, the first
date on which both the change of control has occurred and the
Series G Preferred Stock is not so listed or quoted at the
increased rate of 7.75% per annum of its liquidation
preference (equivalent to $1.9375 per annum per share) for
as long as the Series G Preferred Stock is not so listed or
quoted.
Except in instances relating to
preservation of our qualification as a real estate investment
trust, or REIT, for federal income tax purposes or in connection
with a change of control, the Series G
Preferred Stock is not redeemable prior to May 31, 2012. On
and after May 31, 2012, we may redeem the Series G
Preferred Stock in whole at any time or in part from time to
time at a redemption price of $25.00 per share, plus any
accrued and unpaid dividends to, but not including, the date of
redemption. If at any time following a change of
control, the Series G Preferred Stock is not listed
on the NYSE or the American Stock Exchange or quoted on NASDAQ,
we will have the option to redeem the Series G Preferred
Stock, in whole but not in part, within 90 days after the
first date on which both the change of control has occurred and
the Series G Preferred Stock is not so listed or quoted,
for cash at $25.00 per share, plus accrued and unpaid
dividends, if any, to, but not including, the redemption date.
The Series G Preferred Stock has no maturity date and will
remain outstanding indefinitely unless redeemed by us.
We will file an application to list
the Series G Preferred Stock on the NYSE under the symbol
UDRPrG. If this application is approved, trading of
the Series G Preferred Stock on the NYSE is expected to
begin within 30 days following initial delivery of the
Series G Preferred Stock.
There are restrictions on ownership
of the Series G Preferred Stock intended to preserve our
qualification as a REIT for federal income tax purposes. See
Description of the Series G Preferred
Stock Restrictions on Ownership on
page S-12
of this prospectus supplement.
Investing in the Series G
Preferred Stock involves certain risks. See Risk
Factors beginning on
page S-4
of this prospectus supplement and page 3 of the
accompanying prospectus, and the risks set forth under the
caption Item 1A. Risk Factors included in our
most recent Annual Report on
Form 10-K
and Quarterly Report on
Form 10-Q.
|
|
|
|
|
|
|
|
|
|
|
Per Share
|
|
Total
|
|
Public Offering Price
|
|
$
|
25.0000
|
|
|
$
|
135,000,000
|
|
Underwriting Discounts and
Commissions
|
|
$
|
0.7875
|
|
|
$
|
4,252,500
|
|
Proceeds to UDR (before expenses)
|
|
$
|
24.2125
|
|
|
$
|
130,747,500
|
|
Delivery of the Series G
Preferred Stock in book-entry form through The Depository Trust
Company will be made on or about May 31, 2007.
Neither the Securities and
Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if
this prospectus supplement and the accompanying prospectus is
truthful or complete. Any representation to the contrary is a
criminal offense.
We have granted the underwriters a
right to purchase within 30 days from the date of this
prospectus supplement up to a maximum of 600,000 additional
shares of our Series G Preferred Stock from us at the
public offering price, less underwriting discounts and
commissions, to cover over-allotments.
Sole
Book-Running Manager
Wachovia
Securities
Co-Managers
Banc of America
Securities LLC
|
|
|
Morgan
Keegan & Company, Inc.
|
|
The date of this
prospectus supplement is May 23, 2007
TABLE OF
CONTENTS
Prospectus
Supplement
|
|
|
|
|
|
|
Page
|
|
|
|
|
ii
|
|
|
|
|
S-1
|
|
|
|
|
S-4
|
|
|
|
|
S-5
|
|
|
|
|
S-6
|
|
|
|
|
S-15
|
|
|
|
|
S-22
|
|
|
|
|
S-24
|
|
|
|
|
S-24
|
|
|
|
|
S-25
|
|
|
|
|
S-25
|
|
|
Prospectus
|
|
|
|
2
|
|
|
|
|
2
|
|
|
|
|
2
|
|
|
|
|
3
|
|
|
|
|
3
|
|
|
|
|
3
|
|
|
|
|
4
|
|
|
|
|
4
|
|
|
|
|
18
|
|
|
|
|
20
|
|
|
|
|
25
|
|
|
|
|
26
|
|
|
|
|
26
|
|
|
|
|
26
|
|
|
|
|
40
|
|
|
|
|
40
|
|
|
|
|
41
|
|
|
|
|
41
|
|
|
|
|
41
|
|
You should rely only on the information contained or
incorporated by reference in this prospectus supplement and the
accompanying prospectus. Neither we nor any underwriter has
authorized any other person to provide you with different or
additional information. If anyone provides you with different or
additional information, you should not rely on it. Neither we
nor the underwriters are making an offer to sell the securities
in any jurisdiction where the offer or sale is not permitted.
You should assume that the information in this prospectus
supplement, the accompanying prospectus and the documents
incorporated by reference herein and therein is accurate only as
of the respective dates of those documents or on other dates
which are specified in those documents. Our business, financial
condition, results of operations and prospects may have changed
since those dates. References in this prospectus supplement and
the accompanying prospectus to UDR, United
Dominion Realty Trust, Inc., United Dominion,
we, us, our or the
company are to UDR, Inc.
i
CAUTIONARY
STATEMENT REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus supplement, the accompanying prospectus and the
documents we incorporate by reference contain
forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, Section 21E
of the Securities Exchange Act of 1934, or the Exchange Act, and
the Private Securities Litigation Reform Act of 1995.
Forward-looking statements, by their nature, involve estimates,
projections, goals, forecasts, assumptions, risks and
uncertainties that could cause actual results or outcomes to
differ materially from those expressed in a forward-looking
statement. Such forward-looking statements include, without
limitation, statements concerning property acquisitions and
dispositions, development activity and capital expenditures,
capital raising activities, rent growth, occupancy and rental
expense growth. Examples of forward-looking statements also
include statements regarding our expectations, beliefs, plans,
goals, objectives and future financial or other performance.
Words such as expects, anticipates,
intends, plans, believes,
seeks, estimates and variations of such
words and similar expressions are intended to identify such
forward-looking statements. Any forward-looking statement speaks
only as of the date on which it is made. Except to fulfill our
obligations under the United States securities laws, we
undertake no obligation to update any such statement to reflect
events or circumstances after the date on which it is made.
Examples of factors that can affect our expectations, beliefs,
plans, goals, objectives and future financial or other
performance include, but are not limited to, the following:
|
|
|
|
|
unfavorable changes in apartment market and economic conditions
that could adversely affect occupancy levels, rental rates or
our condominium activities,
|
|
|
|
the failure of acquisitions to achieve anticipated results,
|
|
|
|
possible difficulty in selling apartment communities,
|
|
|
|
the timing and closing of planned dispositions under agreement,
|
|
|
|
competitive factors that may limit our ability to lease
apartment homes or increase or maintain rents,
|
|
|
|
insufficient cash flow that could affect our debt financing and
create refinancing risk,
|
|
|
|
failure to generate sufficient revenue, which could impair our
debt service payments and reduce distributions to stockholders,
|
|
|
|
development and construction risks that may impact our
profitability,
|
|
|
|
potential damage from natural disasters, including hurricanes
and other weather-related events, which could result in
substantial costs to us,
|
|
|
|
risks from extraordinary losses for which we may not have
insurance or adequate reserves,
|
|
|
|
uninsured losses due to insurance deductibles, self-insurance
retention, uninsured claims or casualties, or losses in excess
of applicable coverage,
|
|
|
|
delays in completing developments and
lease-ups on
schedule,
|
|
|
|
our failure to succeed in new markets,
|
|
|
|
changing interest rates, which could increase interest costs and
affect the market price of our securities,
|
|
|
|
potential liability for environmental contamination, which could
result in substantial costs to us,
|
|
|
|
the imposition of federal taxes if we fail to qualify as a REIT
under the Internal Revenue Code of 1986, or the Internal Revenue
Code, in any taxable year,
|
ii
|
|
|
|
|
our internal control over financial reporting may not be
considered effective which could result in a loss of investor
confidence in our financial reports, and in turn have an adverse
effect on our stock price, and
|
|
|
|
changes in real estate laws, tax laws and other laws affecting
our business.
|
All of the above factors are difficult to predict, contain
uncertainties that may materially affect actual results, and may
be beyond our control. New factors emerge from time to time, and
it is not possible for our management to predict all of such
factors or to assess the effect of each such factor on our
business.
Although we believe that the assumptions underlying the
forward-looking statements contained herein and in the documents
incorporated by reference are reasonable, any of the assumptions
could be inaccurate, and therefore any of these statements
included in this document or in the documents incorporated by
reference may prove to be inaccurate. In light of the
significant uncertainties inherent in the forward-looking
statements included herein and in the documents incorporated by
reference, the inclusion of such information should not be
regarded as a representation by us or any other person that the
results or conditions described in such statements or our
objectives and plans will be achieved.
iii
PROSPECTUS
SUPPLEMENT SUMMARY
This summary highlights
information more fully described elsewhere in this prospectus
supplement and the accompanying prospectus. Before investing in
the Series G Preferred Stock, you should read carefully
this entire prospectus supplement and the accompanying
prospectus including the risks set forth under the caption
Risk Factors beginning on
page S-4
of this prospectus supplement and page 3 of the
accompanying prospectus, and the risks set forth under the
caption Item 1A. Risk Factors included in our
most recent Annual Report on
Form 10-K
and Quarterly Report on
Form 10-Q,
which are incorporated by reference herein and in the
accompanying prospectus, as the same may be updated from time to
time by filings under the Exchange Act that we incorporate by
reference herein and in the accompanying prospectus.
Our
Company
UDR, Inc. is a self administered
REIT that owns, acquires, renovates, develops, and manages
apartment communities nationwide. At March 31, 2007, our
apartment portfolio included 244 communities with 70,325
apartment homes nationwide. We changed our corporate name from
United Dominion Realty Trust, Inc. to UDR, Inc. on
March 14, 2007.
The
Offering
The following is a brief summary of
certain terms of this offering. For a more complete description
of the terms of the Series G Preferred Stock, see
Description of the Series G Preferred Stock
beginning on
page S-6
of this prospectus supplement and Description of Preferred
Stock beginning on page 18 of the accompanying
prospectus.
|
|
|
Issuer
|
|
UDR, Inc.
|
|
Shares Offered
|
|
5,400,000 shares of our 6.75%
Series G Cumulative Redeemable Preferred Stock, no par
value (6,000,000 shares if the underwriters
over-allotment option is exercised in full).
|
|
Dividends
|
|
Dividends on each share of
Series G Preferred Stock will be cumulative from the date
of original issue and are payable quarterly in arrears on or
about the 30th of each January, April, July and October,
commencing on or about July 30, 2007, at the rate of
6.75% per annum of its liquidation preference, or
$1.6875 per annum per share of Series G Preferred
Stock. However, if following a change of control,
the Series G Preferred Stock is not listed on the NYSE or
the American Stock Exchange or quoted on NASDAQ (or listed or
quoted on a successor exchange or quotation system), investors
will be entitled to receive, when and as authorized by our Board
of Directors and declared by us, out of funds legally available
for the payment of distributions, cumulative cash dividends
from, but not including, the first date on which both the change
of control has occurred and the Series G Preferred Stock is
not so listed or quoted at the increased rate of 7.75% per
annum of its liquidation preference (equivalent to
$1.9375 per annum per share for as long as the
Series G Preferred Stock is not so listed or quoted). To
see how we define change of control for this purpose, see
Description of the Series G Preferred
Stock Dividends below.
|
|
Liquidation Preference
|
|
If we liquidate, dissolve or wind
up, holders of the Series G Preferred Stock will have the
right to receive $25.00 per share, plus an amount per share
equal to accrued and unpaid dividends
|
S-1
|
|
|
|
|
(whether or not earned or declared)
to, but not including, the date of payment, before any payments
are made to holders of our common stock.
|
|
Maturity
|
|
The Series G Preferred Stock
has no maturity date and we are not required to redeem the
Series G Preferred Stock. Accordingly, the Series G
Preferred Stock will remain outstanding indefinitely, unless we
decide to redeem them. We are not required to set aside funds to
redeem the Series G Preferred Stock.
|
|
Ranking
|
|
The Series G Preferred Stock
will rank senior to our common stock and any other junior shares
that we may issue in the future, and on parity with any other
parity shares that we may issue in the future, in each case with
respect to payment of dividends and distribution of assets upon
liquidation, dissolution or winding up.
|
|
Conversion
|
|
The Series G Preferred Stock
is not convertible into or exchangeable for any property or any
other securities.
|
|
Optional Redemption
|
|
Except in instances relating to
preservation of our qualification as a REIT or pursuant to our
special optional redemption right discussed below, the
Series G Preferred Stock is not redeemable prior to
May 31, 2012. On and after May 31, 2012, we may redeem
the Series G Preferred Stock, in whole at any time or in
part from time to time, for cash at a redemption price of $25.00
per share, plus any accrued and unpaid dividends to, but not
including, the date of redemption.
|
|
Special Optional Redemption
|
|
If at any time following a
change of control, the Series G Preferred Stock
is not listed on the NYSE or the American Stock Exchange or
quoted on NASDAQ (or listed or quoted on a successor exchange or
quotation system), we will have the option to redeem the
Series G Preferred Stock, in whole but not in part, within
90 days after the first date on which both the change of
control has occurred and the Series G Preferred Stock is
not so listed or quoted, for cash at $25.00 per share, plus
accrued and unpaid dividends (whether or not declared) to, but
not including, the redemption date. To see how we define change
of control for this purpose, see Description of the
Series G Preferred Stock Dividends below.
|
|
Voting Rights
|
|
Holders of the Series G
Preferred Stock will generally have no voting rights. However,
if dividends on the Series G Preferred Stock are in arrears
for six quarterly dividend periods (whether or not consecutive),
the holders of the Series G Preferred Stock (voting
separately as a class with the holders of any other series of
parity preferred stock upon which like voting rights have been
conferred and are exercisable) will have the right to elect two
members to serve on our Board of Directors until we pay (or
declare and set aside for payment) all dividends that are then
in arrears. In addition, certain changes that would be material
and adverse to the rights of holders of the Series G
Preferred Stock cannot be made without the affirmative vote of
holders of at least two-thirds of the outstanding shares of
Series G Preferred Stock, voting as a single class.
|
S-2
|
|
|
Listing
|
|
We will file an application to list
the Series G Preferred Stock on the NYSE under the symbol
UDRPrG. We expect trading of the shares of
Series G Preferred Stock on the NYSE, if listing is
approved, to commence within 30 days after the date of the
initial delivery of the shares.
|
|
Use of Proceeds
|
|
We intend to use the net proceeds
from this offering to fund the redemption of the outstanding
shares of our 8.60% Series B Cumulative Redeemable
Preferred Stock, to repay outstanding indebtedness under our
$500 million unsecured revolving credit facility or for
other general corporate purposes, which may include repurchasing
our common stock.
|
|
Restrictions on Ownership
|
|
To assist us in complying with the
limitations on the concentration of ownership of a REIT imposed
by the Internal Revenue Code, our charter contains ownership and
transfer restrictions relating to our stock. These restrictions
include a provision that generally limits ownership by any
person of more than 9.9% of the value of our outstanding equity
stock, unless our Board of Directors exempts the person from
such ownership limitation, provided that any such exemption
shall not allow the person to exceed 13% of the value of our
outstanding equity stock. Shares owned in excess of such limit
will be deemed excess stock pursuant to our charter,
in which case the applicable holder will lose certain ownership
rights with respect to such shares. See Description of the
Series G Preferred Stock Restrictions on
Ownership below for additional information about these
restrictions.
|
|
Settlement Date
|
|
Delivery of the shares of
Series G Preferred Stock will be made against payment
therefor on or about May 31, 2007.
|
|
Form
|
|
The Series G Preferred Stock
will be maintained in book-entry form registered in the name of
the nominee of The Depository Trust Company, except in limited
circumstances.
|
|
Risk Factors
|
|
You should read carefully the risks
set forth under the caption Risk Factors beginning
on
page S-4
of this prospectus supplement and page 3 of the
accompanying prospectus, and the risks set forth under the
caption Item 1A. Risk Factors included in our
most recent Annual Report on
Form 10-K
and Quarterly Report on
Form 10-Q
for certain considerations relevant to an investment in the
Series G Preferred Stock.
|
S-3
RISK
FACTORS
Investing in the Series G Preferred Stock involves risks.
Before investing in the Series G Preferred Stock, you
should carefully consider, among other matters, the risk factors
below and under the caption Risk Factors beginning
on page 3 of the accompanying prospectus, and the risks set
forth under the caption Item 1A. Risk Factors
included in our most recent Annual Report on
Form 10-K
and Quarterly Report on
Form 10-Q,
which are incorporated by reference into this prospectus
supplement and the accompanying prospectus, as the same may be
updated from time to time by filings under the Exchange Act that
we incorporate by reference herein and in the accompanying
prospectus.
The
market value of the Series G Preferred Stock could be
materially adversely affected by various factors.
The Series G Preferred Stock is a new issue of securities
with no established trading market. We will apply to list the
Series G Preferred Stock on the NYSE. However, an active
trading market on the NYSE for the Series G Preferred Stock
may not develop or, if it does develop, may not last, in which
case the trading price of the Series G Preferred Stock
could be adversely affected. If an active trading market does
develop on the NYSE, the Series G Preferred Stock may trade
at prices lower than the initial offering price. The trading
price of our Series G Preferred Stock would depend on many
factors, including:
|
|
|
|
|
prevailing interest rates;
|
|
|
|
the market for similar securities;
|
|
|
|
general economic and financial market conditions;
|
|
|
|
our issuance of debt or preferred equity securities; and
|
|
|
|
our financial condition, results of operations and prospects.
|
We have been advised by the underwriters that they intend to
make a market in the Series G Preferred Stock, but they are
not obligated to do so and may discontinue market-making at any
time without notice.
Our
ability to pay dividends is limited by the requirements of
Maryland law.
Our ability to pay dividends on the Series G Preferred
Stock is limited by the laws of Maryland. Under applicable
Maryland law, a Maryland corporation may not make a distribution
if, after giving effect to the distribution, the corporation
would not be able to pay its debts as the debts become due in
the usual course of business, or the corporations total
assets would be less than the sum of its total liabilities plus
the amount that would be needed, if the corporation were
dissolved at the time of the distribution, to satisfy the
preferential rights upon dissolution of stockholders whose
preferential rights are superior to those receiving the
distribution. Accordingly, we may not make a distribution on the
Series G Preferred Stock if, after giving effect to the
distribution, we would not be able to pay our debts as they
become due in the usual course of business or our total assets
would be less than the sum of our total liabilities plus the
amount that would be needed to satisfy the preferential rights
upon dissolution of the holders of shares of any series of
preferred stock then outstanding, if any, with preferences
senior to those of the Series G Preferred Stock.
Dividends
payable by REITs do not qualify for the reduced tax rates
applicable to regular corporate dividends.
Legislation enacted in 2003 and 2006 generally reduced the
maximum tax rate for dividends payable to domestic stockholders
that are individuals, trusts and estates from 38.6% to 15.0%
(through 2010). Dividends payable by REITs, however, are
generally not eligible for the reduced rates. Although this
legislation does not adversely affect the taxation of REITs or
dividends paid by REITs, the more favorable rates applicable to
regular corporate dividends could cause investors who are taxed
at individual rates to perceive investments in REITs to be
relatively less attractive than investments in the stocks of
non-REIT
S-4
corporations that pay dividends, which could adversely affect
the value of the stock of REITs, including our preferred stock.
USE OF
PROCEEDS
We estimate that the net proceeds to us from this offering will
be approximately $130.5 million, or approximately
$145.0 million if the underwriters exercise their
over-allotment option in full, in each case after deducting
underwriting discounts and estimated offering expenses. We
intend to use the net proceeds from this offering to fund the
redemption of all of the outstanding shares of our 8.60%
Series B Cumulative Redeemable Preferred Stock, to repay
outstanding indebtedness under our $500 million unsecured
revolving credit facility or for other general corporate
purposes, which may include repurchasing our common stock. The
Series B Preferred Stock will be redeemed for a cash
redemption price of $25.00 per share, plus accrued and
unpaid dividends to the redemption date, which is May 29,
2007. There are currently 5,416,009 shares of our
Series B Preferred Stock issued and outstanding.
Our $500 million unsecured revolving credit facility
matures in May 2008 and, at our option, can be extended for an
additional year. We have the right to increase the credit
facility to $750 million under certain circumstances. Based
on our current credit ratings, the credit facility bears
interest at a rate equal to LIBOR plus 57.5 basis points.
As of May 18, 2007, $147.8 million was outstanding
under the credit facility leaving $352.2 million of unused
capacity. Amounts repaid under the unsecured revolving credit
facility may be reborrowed.
Certain of the underwriters or their affiliates are lenders
under our $500 million unsecured revolving credit facility.
If we use a portion of the net proceeds to repay outstanding
indebtedness under our $500 million unsecured revolving
credit facility, these underwriters or their affiliates will
receive a portion of the proceeds of this offering used to
reduce amounts outstanding thereunder.
S-5
DESCRIPTION
OF THE SERIES G PREFERRED STOCK
The description of certain terms and provisions of the
Series G Preferred Stock contained in this prospectus
supplement does not purport to be complete and is subject to,
and qualified in its entirety by reference to, the terms and
provisions of our charter, including the
Articles Supplementary setting forth the particular terms
of the Series G Preferred Stock, our bylaws and Maryland
law. The following description of the particular terms of the
Series G Preferred Stock supplements, and to the extent
inconsistent with, replaces, the description of the general
terms and provisions of our preferred stock set forth in the
accompanying prospectus.
General
Our charter authorizes the issuance of up to
50,000,000 shares of preferred stock, without par value.
The shares of preferred stock may be issued from time to time in
one or more series, without stockholder approval, with such
designations, preferences, conversion or other rights, voting
powers, restrictions, limitations as to dividends,
qualifications and terms and conditions of redemption thereof as
established by our Board of Directors.
As permitted by Maryland law, our charter authorizes our Board
of Directors, without any action by our stockholders, to amend
our charter from time to time to increase or decrease the
aggregate number of shares of stock of any class or series that
we are authorized to issue.
Prior to the completion of this offering, we will supplement our
charter to classify 6,000,000 shares of our authorized
preferred stock as Series G Preferred Stock and authorize
the issuance thereof. When issued, the Series G Preferred
Stock will be validly issued, fully paid and nonassessable. The
holders of Series G Preferred Stock will have no preemptive
rights with respect to any shares of our stock or any other
securities of the Company convertible into or carrying rights or
options to purchase any such shares. The Series G Preferred
Stock will not be subject to any sinking fund and we will have
no obligation to redeem or retire the Series G Preferred
Stock. Unless redeemed by us, the Series G Preferred Stock
will have a perpetual term, with no maturity. The Articles
Supplementary establishing the Series G Preferred Stock
permit us to reopen this series, without the consent
of the holders of the Series G Preferred Stock, in order to
issue additional shares of Series G Preferred Stock from
time to time. Thus, we may in the future issue additional shares
of Series G Preferred Stock without your consent. Any
additional shares of Series G Preferred Stock will have the
same terms as the shares of Series G Preferred Stock being
issued in this offering. These additional shares of
Series G Preferred Stock will, together with the shares of
Series G Preferred Stock being issued in this offering,
constitute a single series of securities.
We will file an application to list the Series G Preferred
Stock on the NYSE under the symbol UDRPrG. We expect
trading of the shares of Series G Preferred Stock on the
NYSE, if listing is approved, to commence within 30 days
after the date of initial delivery of the shares. See
Underwriting for a discussion of the expected
trading of the Series G Preferred Stock on the NYSE.
Ranking
The Series G Preferred Stock will rank senior to the Junior
Shares (as defined under Dividends
below), including shares of our common stock, with respect to
payment of dividends and amounts upon liquidation, dissolution
or winding up. While any shares of Series G Preferred Stock
are outstanding, we may not authorize or create any class or
series of capital stock that ranks senior to the Series G
Preferred Stock with respect to the payment of dividends or
amounts upon liquidation, dissolution or winding up without the
consent of the holders of two-thirds of the outstanding
Series G Preferred Stock voting as a single class. However,
we may create additional classes or series of stock, amend our
charter to increase the authorized number of shares of preferred
stock or issue series of preferred stock ranking on parity with
the Series G Preferred Stock with respect, in each case, to
the payment of dividends and amounts upon liquidation,
dissolution or winding up (Parity Shares) without
the consent of any holder of Series G Preferred Stock. See
Voting Rights below for a
discussion of the voting rights applicable if we seek to create
any class or series of preferred stock senior to the
Series G Preferred Stock.
S-6
We currently have the following Parity Shares issued and
outstanding: 5,416,009 shares of our 8.60% Series B
Cumulative Redeemable Preferred Stock, and 2,803,812 shares
of our Series E Cumulative Convertible Preferred Stock. Net
proceeds from this offering will be used to fund the redemption
of all of our outstanding Series B Preferred Stock, to
repay outstanding indebtedness under our $500 million
unsecured revolving credit facility or for other general
corporate purposes, which may include repurchasing our common
stock. See Use of Proceeds.
Dividends
Holders of Series G Preferred Stock will be entitled to
receive, when, as and if authorized by our Board of Directors,
out of funds legally available for payment, and declared by us,
cumulative cash dividends at the rate of 6.75% per annum per
share of its liquidation preference (equivalent to $1.6875 per
annum per share of Series G Preferred Stock). However, if
following a change of control (as defined below),
the Series G Preferred Stock is not listed on the NYSE or
the American Stock Exchange or quoted on NASDAQ (or listed or
quoted on a successor exchange or quotation system), holders of
the Series G Preferred Stock will be entitled to receive,
when and as authorized by our Board of Directors and declared by
us, out of funds legally available for the payment of dividends,
cumulative cash dividends from, but not including, the first
date on which both the change of control has occurred and the
Series G Preferred Stock is not so listed or quoted at the
increased rate of 7.75% per annum of its liquidation
preference, equivalent to $1.9375 per annum per share of
Series G Preferred Stock for as long as the Series G
Preferred Stock is not so listed or quoted. Dividends on each
share of Series G Preferred Stock will be cumulative from
the date of original issue and are payable quarterly in arrears
on or about the 30th of each January, April, July and October,
commencing on or about July 30, 2007 at the then applicable
annual rate; provided, however, that if any dividend payment
date falls on any day other than a business day, as defined in
the Articles Supplementary, the dividend due on such dividend
payment date shall be paid on the first business day immediately
following such dividend payment date. Each dividend is payable
to holders of record as they appear on our stock records at the
close of business on the record date, not exceeding 30 days
preceding the payment dates thereof as fixed by our Board of
Directors. Dividends are cumulative from the most recent
dividend payment date to which dividends have been paid, whether
or not in any dividend period or periods there shall be funds of
UDR legally available for the payment of such dividends.
Accumulations of dividends on the Series G Preferred Stock
will not bear interest and holders of the Series G
Preferred Stock will not be entitled to any dividends in excess
of full cumulative dividends. Dividends payable on the
Series G Preferred Stock for any period greater or less
than a full dividend period will be computed on the basis of a
360-day year
consisting of twelve
30-day
months. Dividends payable on the Series G Preferred Stock
for each full dividend period will be computed by dividing the
annual dividend rate by four.
No dividend will be declared or paid on any Parity Shares unless
full cumulative dividends have been declared and paid or are
contemporaneously declared and funds sufficient for payment set
aside on the Series G Preferred Stock for all prior
dividend periods; provided, however, that if accrued dividends
on the Series G Preferred Stock for all prior dividend
periods have not been paid in full or a sum sufficient for such
payment is not set apart, then any dividend declared on the
Series G Preferred Stock for any dividend period and on any
Parity Shares will be declared ratably in proportion to accrued
and unpaid dividends on the Series G Preferred Stock and
such Parity Shares. All of our dividends on the Series G
Preferred Stock, including any capital gain dividends, will be
credited first to the earliest accrued and unpaid dividend date.
Our Board of Directors will not authorize and we will not
(i) declare, pay or set apart funds for the payment of any
dividend or other distribution with respect to any Junior Shares
(other than in shares of Junior Shares) or (ii) redeem,
purchase or otherwise acquire for consideration any Junior
Shares through a sinking fund or otherwise (other than a
redemption or purchase or other acquisition of shares of common
stock made for purposes of an employee incentive or benefit plan
of UDR or any subsidiary, or a conversion into or exchange for
Junior Shares or redemptions for the purpose of preserving our
qualification as a REIT), unless all cumulative dividends with
respect to the Series G Preferred Stock and any Parity
Shares at the time such dividends are payable have been paid or
funds have been set apart for payment of such dividends.
S-7
As used herein, (i) the term dividend does not
include dividends payable solely in shares of Junior Shares on
Junior Shares, or in options, warrants or rights to holders of
Junior Shares to subscribe for or purchase any Junior Shares,
and (ii) the term Junior Shares means our
common stock, and any other class of our capital stock now or
hereafter issued and outstanding that ranks junior as to the
payment of dividends or amounts upon liquidation, dissolution
and winding up to the Series G Preferred Stock.
A change of control shall be deemed to have occurred
at such time as (i) the date a person or
group (within the meaning of Sections 13(d) and
14(d) of the Exchange Act) becomes the ultimate beneficial
owner (as defined in
Rules 13d-3
and 13d-5
under the Exchange Act, except that a person or group shall be
deemed to have beneficial ownership of all shares of voting
stock that such person or group has the right to acquire
regardless of when such right is first exercisable), directly or
indirectly, of voting stock representing more than 50% of the
total voting power of our total voting stock; (ii) the date
we sell, transfer or otherwise dispose of all or substantially
all of our assets; or (iii) the date of the consummation of
a merger or stock exchange of our company with another entity
where our stockholders immediately prior to the merger or stock
exchange would not beneficially own, immediately after the
merger or stock exchange, shares representing 50% or more of all
votes (without consideration of the rights of any class of stock
to elect directors by a separate group vote) to which all
stockholders of the corporation issuing cash or securities in
the merger or stock exchange would be entitled in the election
of directors, or where members of our Board of Directors
immediately prior to the merger or stock exchange would not
immediately after the merger or stock exchange constitute a
majority of the board of directors of the corporation issuing
cash or securities in the merger or stock exchange. Voting
stock shall mean stock of any class or kind having the
power to vote generally in the election of directors.
Optional
Redemption
We may not redeem the Series G Preferred Stock prior to
May 31, 2012, except in certain limited circumstances
relating to the ownership limitation necessary to preserve our
qualification as a REIT or at any time the Series G
Preferred Stock is not listed on the NYSE or the American Stock
Exchange or quoted on NASDAQ (or listed or quoted on a successor
exchange or quotation service) following a change of
control. For further information regarding these
exceptions, see Special Optional
Redemption below and Restrictions on
Ownership below. On or after May 31, 2012, we, at our
option upon not less than 30 nor more than 60 days written
notice, may redeem the Series G Preferred Stock, in whole,
at any time, or in part, from time to time, for cash at a
redemption price of $25.00 per share, plus all accrued and
unpaid dividends thereon to, but not including, the date fixed
for redemption, without interest.
A notice of redemption (which may be contingent on the
occurrence of a future event) will be mailed, postage prepaid,
not less than 30 nor more than 60 days prior to the
redemption date, addressed to the respective holders of record
of the Series G Preferred Stock at their respective
addresses as they appear on our stock transfer records. A
failure to give such notice or any defect in the notice or in
its mailing will not affect the validity of the proceedings for
the redemption of any shares of Series G Preferred Stock
except as to the holder to whom notice was defective or not
given. Each notice will state:
|
|
|
|
|
the redemption date;
|
|
|
|
the redemption price;
|
|
|
|
the number of shares of Series G Preferred Stock to be
redeemed;
|
|
|
|
the place or places where the certificates evidencing the shares
of Series G Preferred Stock are to be surrendered for
payment; and
|
|
|
|
that dividends on the shares to be redeemed will cease to accrue
on such redemption date.
|
If fewer than all the shares of Series G Preferred Stock
held by any holder are to be redeemed, the notice mailed to such
holder will also specify the number of shares of Series G
Preferred Stock to be redeemed from such holder. If fewer than
all of the outstanding shares of Series G Preferred Stock
are to
S-8
be redeemed, the shares to be redeemed shall be selected by lot
or pro rata or by any other equitable method we may choose.
On the redemption date, we must pay on each share of
Series G Preferred Stock to be redeemed any accrued and
unpaid dividends, in arrears, for any dividend period ending on
or prior to the redemption date. In the case of a redemption
date falling after a dividend payment record date and prior to
the related payment date, the holders of Series G Preferred
Stock at the close of business on such record date will be
entitled to receive the dividend payable on such shares on the
corresponding dividend payment date, notwithstanding the
redemption of such shares prior to such dividend payment date.
Except as provided for in the two preceding sentences, no
payment or allowance will be made for unpaid dividends, whether
or not in arrears, on any Series G Preferred Stock called
for redemption.
If full cumulative dividends on the Series G Preferred
Stock and any Parity Shares have not been paid or declared and
set apart for payment, the Series G Preferred Stock may not
be redeemed in part and we may not purchase, redeem or otherwise
acquire Series G Preferred Stock or any Parity Shares other
than in exchange for Junior Shares; provided, however, that the
foregoing shall not prevent the purchase by us of shares held in
excess of the limits in our charter in order to ensure that we
continue to meet the requirements for qualification as a REIT.
See Restrictions on Ownership below.
On and after the date fixed for redemption, provided that we
have made available at the office of the registrar and transfer
agent a sufficient amount of cash to effect the redemption,
dividends will cease to accrue on the shares of Series G
Preferred Stock called for redemption (except that, in the case
of a redemption date after a dividend payment record date and
prior to the related payment date, holders of Series G
Preferred Stock on the dividend payment record date will be
entitled on such dividend payment date to receive the dividend
payable on such shares on the corresponding dividend payment
date), such shares shall no longer be deemed to be outstanding
and all rights of the holders of such shares as holders of
Series G Preferred Stock shall cease except the right to
receive the cash payable upon such redemption, without interest
from the date of such redemption.
Special
Optional Redemption
If at any time following a change of control (as
defined under Dividends above), the
Series G Preferred Stock is not listed on the NYSE or the
American Stock Exchange or quoted on NASDAQ (or listed or quoted
on a successor exchange or quotation service), we will have the
option to redeem the Series G Preferred Stock, in whole but
not in part, within 90 days after the first date on which
both the change of control has occurred and the Series G
Preferred Stock is not so listed or quoted, for cash at
$25.00 per share plus accrued and unpaid dividends (whether
or not declared) to, but not including, the date of redemption.
A notice of redemption will be mailed, postage prepaid, not less
than 30 nor more than 60 days prior to the redemption date,
addressed to the respective holders of record of the
Series G Preferred Stock at their respective addresses as
they appear on our stock transfer records. A failure to give
such notice or any defect in the notice or in its mailing will
not affect the validity of the proceedings for the redemption of
the shares of Series G Preferred Stock except as to the
holder to whom notice was defective or not given. Each notice
will state:
|
|
|
|
|
the redemption date;
|
|
|
|
the redemption price;
|
|
|
|
the place or places where the certificates evidencing the shares
of Series G Preferred Stock are to be surrendered for
payment; and
|
|
|
|
that dividends on the shares will cease to accrue on such
redemption date.
|
On the redemption date, we must pay on each share of
Series G Preferred Stock any accrued and unpaid dividends,
in arrears, for any dividend period ending on or prior to the
redemption date. In the case of a redemption date falling after
a dividend payment record date and prior to the related payment
date, the holders of Series G Preferred Stock at the close
of business on such record date will be entitled to
S-9
receive the dividend payable on such shares on the corresponding
dividend payment date, notwithstanding the redemption of such
shares prior to such dividend payment date. Except as provided
for in the two preceding sentences, no payment or allowance will
be made for unpaid dividends, whether or not in arrears, on any
Series G Preferred Stock called for redemption.
If full cumulative dividends on the Series G Preferred
Stock and any Parity Shares have not been paid or declared and
set apart for payment, we may not purchase, redeem or otherwise
acquire Series G Preferred Stock or any Parity Shares other
than in exchange for Junior Shares; provided, however, that the
foregoing shall not prevent the purchase by us of shares held in
excess of the limits in our charter in order to ensure that we
continue to meet the requirements for qualification as a REIT.
See Restrictions on Ownership below.
On and after the date fixed for redemption, provided that we
have made available at the office of the registrar and transfer
agent a sufficient amount of cash to effect the redemption,
dividends will cease to accrue on the shares of Series G
Preferred Stock (except that, in the case of a redemption date
after a dividend payment record date and prior to the related
payment date, holders of Series G Preferred Stock on the
dividend payment record date will be entitled on such dividend
payment date to receive the dividend payable on such shares on
the corresponding dividend payment date), such shares shall no
longer be deemed to be outstanding and all rights of the holders
of such shares as holders of Series G Preferred Stock shall
cease except the right to receive the cash payable upon such
redemption, without interest from the date of such redemption.
Liquidation
Preference
The holders of Series G Preferred Stock will be entitled to
receive in the event of any liquidation, dissolution or winding
up of UDR, whether voluntary or involuntary, $25.00 per
share of Series G Preferred Stock, which we refer to in
this prospectus supplement as the Liquidation
Preference, plus an amount per share of Series G
Preferred Stock equal to all dividends (whether or not earned or
declared) accrued and unpaid thereon to, but not including, the
date of final distribution to such holders.
Until the holders of Series G Preferred Stock have been
paid the Liquidation Preference and all accrued and unpaid
dividends in full, no payment will be made to any holder of
Junior Shares upon the liquidation, dissolution or winding up of
UDR. If, upon any liquidation, dissolution or winding up of UDR,
our assets, or proceeds thereof, distributable among the holders
of the Series G Preferred Stock are insufficient to pay in
full the Liquidation Preference and all accrued and unpaid
dividends and the liquidation preference and all accrued and
unpaid dividends with respect to any other shares of Parity
Shares, then such assets, or the proceeds thereof, will be
distributed among the holders of Series G Preferred Stock
and any such Parity Shares ratably in accordance with the
respective amounts which would be payable on such Series G
Preferred Stock and any such Parity Shares if all amounts
payable thereon were paid in full. None of (i) a
consolidation or merger of UDR with one or more entities,
(ii) a statutory stock exchange by UDR or (iii) a sale
or transfer of all or substantially all of our assets will be
considered a liquidation, dissolution or winding up, voluntary
or involuntary, of UDR.
Voting
Rights
Except as indicated below, the holders of Series G
Preferred Stock will have no voting rights.
If and whenever six quarterly dividends (whether or not
consecutive) payable on the Series G Preferred Stock are in
arrears, whether or not earned or declared, the number of
members then constituting our Board of Directors will be
increased by two and the holders of Series G Preferred
Stock, voting together as a class with the holders of any other
series of Parity Shares upon which like voting rights have been
conferred and are exercisable (any such other series, the
Voting Preferred Shares), will have the right to
elect two additional board members at an annual meeting of
stockholders or a properly called special meeting of the holders
of the Series G Preferred Stock and such Voting Preferred
Shares and at each subsequent annual meeting of stockholders
until all such dividends and dividends for the then current
S-10
quarterly period on the Series G Preferred Stock and such
other Voting Preferred Shares have been paid or declared and set
aside for payment. Whenever all arrears in dividends on the
Series G Preferred Stock and the Voting Preferred Shares
then outstanding have been paid and full dividends on the
Series G Preferred Stock and the Voting Preferred Shares
for the then current quarterly dividend period have been paid in
full or declared and set apart for payment in full, then the
right of the holders of the Series G Preferred Stock and
the Voting Preferred Shares to elect two additional board
members will cease, the terms of office of the board members
will forthwith terminate and the number of members of the Board
of Directors will be reduced accordingly. However, the right of
the holders of the Series G Preferred Stock and the Voting
Preferred Shares to elect the additional board members will
again vest if and whenever six quarterly dividends are in
arrears, as described above. In no event shall the holders of
Series G Preferred Stock be entitled pursuant to these
voting rights to elect a director that would cause us to fail to
satisfy a requirement relating to director independence of any
national securities exchange on which any class or series of our
stock is listed.
In addition, the approval of two-thirds of the votes entitled to
be cast by the holders of outstanding Series G Preferred
Stock, voting separately as a class, either at a meeting of
stockholders or by written consent, is required (i) to
amend, alter or repeal any provisions of our charter or the
Articles Supplementary relating to the Series G
Preferred Stock, whether by merger, consolidation or otherwise,
to affect materially and adversely the voting powers, rights or
preferences of the holders of the Series G Preferred Stock,
unless in connection with any such amendment, alteration or
repeal, the Series G Preferred Stock remains outstanding
without the terms thereof being materially changed in any
respect adverse to the holders thereof or is converted into or
exchanged for preferred stock of the surviving entity having
preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications and
terms and conditions of redemption thereof that are
substantially similar to those of the Series G Preferred
Stock, or (ii) to authorize, create, or increase the
authorized amount of any class or series of capital stock having
rights senior to the Series G Preferred Stock with respect
to the payment of dividends or amounts upon liquidation,
dissolution or winding up (provided that if such amendment
affects materially and adversely the rights, preferences,
privileges or voting powers of one or more but not all of the
other series of Voting Preferred Shares, the consent of the
holders of at least two-thirds of the outstanding shares of each
such series so affected is required). However, we may create
additional classes of Parity Shares and Junior Shares, amend our
charter to increase the authorized number of shares of Parity
Shares (including the Series G Preferred Stock) and Junior
Shares and issue additional series of Parity Shares and Junior
Shares without the consent of any holder of Series G
Preferred Stock.
Information
Rights
During any period in which we are not subject to Section 13
or 15(d) of the Exchange Act and any shares of Series G
Preferred Stock are outstanding, we will (i) transmit by
mail (or other permissible means under the Exchange Act) to all
holders of Series G Preferred Stock, as their names and
addresses appear in our record books and without cost to such
holders, the information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act of 1933 and
(ii) promptly, upon request, supply copies of such reports
to any prospective holder of Series G Preferred Stock. We
will mail (or otherwise provide) the information to the holders
of Series G Preferred Stock within 15 days after the
respective dates by which a periodic report on
Form 10-K
or
Form 10-Q,
as the case may be, in respect of such information would have
been required to be filed with the Securities and Exchange
Commission, or SEC, if we were subject to Section 13 or
15(d) of the Exchange Act.
Conversion
Rights
The Series G Preferred Stock is not convertible into or
exchangeable for any other property or any other securities.
S-11
Restrictions
on Ownership
For us to qualify as a REIT under the Internal Revenue Code, our
stock must be beneficially owned by 100 or more persons during
at least 335 days of a taxable year of twelve months or
during a proportionate part of a shorter taxable year. Also, not
more than 50% of the value of our outstanding stock may be
owned, directly or indirectly, by five or fewer individuals (as
defined in the Internal Revenue Code to include certain
entities) during the last half of a taxable year.
Our charter contains ownership and transfer restrictions
relating to our stock primarily to assist us in complying with
these requirement. These restrictions include a provision that
generally limits ownership by any person of more than 9.9% of
the value of our outstanding equity stock, unless our Board of
Directors exempts the person from such ownership limitation,
provided that any such exemption shall not allow the person to
exceed 13% of the value of our outstanding equity stock. Shares
owned in excess of such limit will be deemed excess
stock pursuant to our charter, in which case the
applicable holder will lose certain ownership rights with
respect to such shares.
Book-Entry
Procedures
The Depository Trust Company, which we refer to herein as DTC,
will act as securities depositary for the Series G
Preferred Stock. We will issue one or more fully registered
global securities certificates in the name of DTCs
nominee, Cede & Co. These certificates will represent
the total aggregate number of Series G Preferred Stock. We
will deposit these certificates with DTC or a custodian
appointed by DTC. We will not issue certificates to you for the
Series G Preferred Stock that you purchase, unless
DTCs services are discontinued as described below.
Title to book-entry interests in the Series G Preferred
Stock will pass by book-entry registration of the transfer
within the records of DTC in accordance with their respective
procedures. Book-entry interests in the securities may be
transferred within DTC in accordance with procedures established
for these purposes by DTC.
Each person owning a beneficial interest in the Series G
Preferred Stock must rely on the procedures of DTC and the
participant through which such person owns its interest to
exercise its rights as a holder of the Series G Preferred
Stock.
DTC has advised us that it is a limited-purpose trust company
organized under the New York Banking Law, a member of the
Federal Reserve System, a clearing corporation
within the meaning of the New York Uniform Commercial Code and a
clearing agency registered under the provisions of
Section 17A of the Exchange Act. DTC holds securities that
its participants, referred to as Direct Participants, deposit
with DTC. DTC also facilitates the settlement among Direct
Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized
book-entry changes in Direct Participants accounts,
thereby eliminating the need for physical movement of securities
certificates. Direct Participants include securities brokers and
dealers, banks, trust companies, clearing corporations, and
certain other organizations. DTC is owned by a number of its
Direct Participants and by the New York Stock Exchange, Inc.,
the American Stock Exchange LLC, and the National Association of
Securities Dealers, Inc. Access to the DTC system is also
available to others such as securities brokers and dealers,
banks and trust companies that clear through or maintain a
custodial relationship with a Direct Participant, either
directly or indirectly, referred to as Indirect Participants.
The rules applicable to DTC and its Direct and Indirect
Participants are on file with the SEC.
When you purchase the Series G Preferred Stock within the
DTC system, the purchase must be by or through a Direct
Participant. The Direct Participant will receive a credit for
the Series G Preferred Stock on DTCs records. You, as
the actual owner of the Series G Preferred Stock, are the
beneficial owner. Your beneficial ownership interest
will be recorded on the Direct and Indirect Participants
records, but DTC will have no knowledge of your individual
ownership. DTCs records reflect only the identity of the
Direct Participants to whose accounts Series G Preferred
Stock are credited.
S-12
You will not receive written confirmation from DTC of your
purchase. The Direct or Indirect Participants through whom you
purchased the Series G Preferred Stock should send you
written confirmations providing details of your transactions, as
well as periodic statements of your holdings. The Direct and
Indirect Participants are responsible for keeping an accurate
account of the holdings of their customers like you.
Transfers of ownership interests held through Direct and
Indirect Participants will be accomplished by entries on the
books of Direct and Indirect Participants acting on behalf of
the beneficial owners.
The laws of some states may require that specified purchasers of
securities take physical delivery of the Series G Preferred
Stock in definitive form. These laws may impair the ability to
transfer beneficial interests in the global certificates
representing the Series G Preferred Stock.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants,
and by Direct Participants and Indirect Participants to
beneficial owners will be governed by arrangements among them,
subject to any statutory or regulatory requirements as may be in
effect from time to time.
We understand that, under DTCs existing practices, in the
event that we request any action of holders, or an owner of a
beneficial interest in a global security such as you desires to
take any action which a holder is entitled to take under our
charter, DTC would authorize the Direct Participants holding the
relevant shares to take such action, and those Direct
Participants and any Indirect Participants would authorize
beneficial owners owning through those Direct and Indirect
Participants to take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
Redemption notices will be sent to Cede & Co. If less
than all of the shares of Series G Preferred Stock are
being redeemed, DTC will reduce each Direct Participants
holdings of Series G Preferred Stock in accordance with its
procedures.
In those instances where a vote is required, neither DTC nor
Cede & Co. itself will consent or vote with respect to
the Series G Preferred Stock. Under its usual procedures,
DTC would mail an omnibus proxy to us as soon as possible after
the record date. The omnibus proxy assigns Cede &
Co.s consenting or voting rights to those Direct
Participants whose accounts the Series G Preferred Stock
are credited on the record date, which are identified in a
listing attached to the omnibus proxy.
Dividend payments on the Series G Preferred Stock will be
made directly to DTC (or its successor, if applicable).
DTCs practice is to credit participants accounts on
the relevant payment date in accordance with their respective
holdings shown on DTCs records unless DTC has reason to
believe that it will not receive payment on that payment date.
Payments by Direct and Indirect Participants to beneficial
owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts
of customers in bearer form or registered in street
name. These payments will be the responsibility of the
participant and not of DTC, us or any agent of ours.
DTC may discontinue providing its services as securities
depositary with respect to the Series G Preferred Stock at
any time by giving reasonable notice to us. Additionally, we may
decide to discontinue the book-entry only system of transfers
with respect to the Series G Preferred Stock. In that
event, we will print and deliver certificates in fully
registered form for the Series G Preferred Stock. If DTC
notifies us that it is unwilling to continue as securities
depositary, or it is unable to continue or ceases to be a
clearing agency registered under the Exchange Act and a
successor depositary is not appointed by us within 90 days
after receiving such notice or becoming aware that DTC is no
longer so registered, we will issue the Series G Preferred
Stock in definitive form, at our expense, upon registration of
transfer of, or in exchange for, such global security.
According to DTC, the foregoing information with respect to DTC
has been provided to the financial community for informational
purposes only and is not intended to serve as a representation,
warranty or contract modification of any kind.
S-13
Global Clearance and Settlement
Procedures. Initial settlement for the
Series G Preferred Stock will be made in immediately
available funds. Secondary market trading between DTCs
Participants will occur in the ordinary way in accordance with
DTCs rules and will be settled in immediately available
funds using DTCs
Same-Day
Funds Settlement System.
Transfer
Agent, Registrar, Dividend Disbursing Agent and
Redemption Agent
The transfer agent, registrar, dividend disbursing agent and
redemption agent for the Series G Preferred Stock is Wells
Fargo Bank, N.A., South St. Paul, Minnesota.
S-14
MATERIAL
U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of material U.S. federal income
tax considerations with respect to the ownership of our
Series G Preferred Stock.
Taxation
of Taxable U.S. Stockholders
As used herein, the term U.S. stockholder means
a holder of our Series G Preferred Stock that for
U.S. federal income tax purposes is:
|
|
|
|
|
a citizen or resident of the United States;
|
|
|
|
a corporation (including an entity treated as a corporation for
U.S. federal income tax purposes) created or organized in or
under the laws of the United States, any of its states or the
District of Columbia;
|
|
|
|
an estate whose income is subject to U.S. federal income
taxation regardless of its source; or
|
|
|
|
a trust if: (1) a U.S. court is able to exercise
primary supervision over the administration of such trust and
one or more U.S. persons have the authority to control all
substantial decisions of the trust; or (2) it has a valid
election in place to be treated as a U.S. person.
|
If a partnership, entity or arrangement treated as a partnership
for U.S. federal income tax purposes holds our Series G
Preferred Stock, the U.S. federal income tax treatment of a
partner in the partnership will generally depend on the status
of the partner and the activities of the partnership. If you are
a partner in a partnership holding our Series G Preferred
Stock, you should consult your tax advisor regarding the
consequences of the ownership and disposition of our
Series G Preferred Stock by the partnership.
Taxation
of U.S. Stockholders on Distributions on Our Series G
Preferred Stock
As long as we qualify as a REIT, a taxable U.S. stockholder
must generally take into account as ordinary income
distributions made out of our current or accumulated earnings
and profits that we do not designate as capital gain dividends
or retained long-term capital gain. For purposes of determining
whether a distribution is made out of our current or accumulated
earnings and profits, our earnings and profits will be allocated
first to our preferred stock dividends, including dividends on
our Series G Preferred Stock, and then to our common stock
dividends.
Dividends paid to corporate U.S. stockholders will not
qualify for the dividends received deduction generally available
to corporations. In addition, dividends paid to a
U.S. stockholder generally will not qualify for the 15.0%
tax rate for qualified dividend income. Legislation
enacted in 2003 and 2006 reduced the maximum tax rate for
qualified dividend income from 38.6% to 15.0% for tax years 2003
through 2010. Without future congressional action, the maximum
tax rate on qualified dividend income will be 39.6% in 2011.
Qualified dividend income generally includes dividends paid to
U.S. stockholders taxed at individual rates by domestic C
corporations and certain qualified foreign corporations. Because
we are not generally subject to federal income tax on the
portion of our net taxable income distributed to our
stockholders, our dividends generally will not be eligible for
the 15.0% rate on qualified dividend income. As a result, our
ordinary dividends will be taxed at the higher tax rate
applicable to ordinary income, which currently is a maximum rate
of 35.0%. However, the 15.0% tax rate for qualified dividend
income will apply to our ordinary dividends to the extent
attributable: (i) to dividends received by us from non-REIT
corporations, such as certain taxable REIT subsidiaries; and
(ii) to income upon which we have paid corporate income tax
(e.g., to the extent that we distribute less than 100% of our
net taxable income). In general, to qualify for the reduced tax
rate on qualified dividend income, a stockholder must hold our
Series G Preferred Stock for more than 60 days during
the 121-day
period beginning on the date that is 60 days before the
date on which our Series G Preferred Stock become
ex-dividend (or, if the dividends are attributable to periods
aggregating in excess of 366 days, more than 90 days
during the
181-day
period beginning on the date that is 90 days before the
date on which our Series G Preferred Stock becomes
ex-dividend).
S-15
A U.S. stockholder generally will take into account as
long-term capital gain any distributions that we designate as
capital gain dividends without regard to the period for which
the U.S. stockholder has held our Series G Preferred
Stock. We generally will designate our capital gain dividends as
either 15.0% or 25.0% rate distributions. See
Capital Gains and Losses. A corporate
U.S. stockholder, however, may be required to treat up to
20.0% of certain capital gain dividends as ordinary income.
We may elect to retain and pay income tax on the net long-term
capital gain that we receive in a taxable year. In that case, to
the extent that we designate such amount in a timely notice to
such stockholder, a U.S. stockholder would be taxed on its
proportionate share of our undistributed long-term capital gain.
The U.S. stockholder would receive a credit for its
proportionate share of the tax we paid. The
U.S. stockholder would increase the basis in its stock by
the amount of its proportionate share of our undistributed
long-term capital gain, minus its share of the tax we paid.
To the extent that we make a distribution in excess of our
current and accumulated earnings and profits, such distribution
will not be taxable to a U.S. stockholder to the extent
that it does not exceed the adjusted tax basis of the
U.S. stockholders Series G Preferred Stock.
Instead, such distribution will reduce the adjusted tax basis of
such stock. To the extent that we make a distribution in excess
of both our current and accumulated earnings and profits and the
U.S. stockholders adjusted tax basis in its
Series G Preferred Stock, such stockholder will recognize
long-term capital gain, or short-term capital gain if the
Series G Preferred Stock has been held for one year or
less, assuming the Series G Preferred Stock is a capital
asset in the hands of the U.S. stockholder. In addition, if
we declare a distribution in October, November, or December of
any year that is payable to a U.S. stockholder of record on
a specified date in any such month, such distribution shall be
treated as both paid by us and received by the
U.S. stockholder on December 31 of such year, provided
that we actually pay the distribution during January of the
following calendar year.
Stockholders may not include in their individual income tax
returns any of our net operating losses or capital losses.
Instead, we would carry over such losses for potential offset
against our future income. Taxable distributions from us and
gain from the disposition of our Series G Preferred Stock
will not be treated as passive activity income, and therefore,
stockholders generally will not be able to apply any
passive activity losses, such as losses from certain
types of limited partnerships in which the stockholder is a
limited partner to offset income they derive from our
Series G Preferred Stock, against such income. In addition,
taxable distributions from us and gain from the disposition of
our Series G Preferred Stock generally may be treated as
investment income for purposes of the investment interest
limitations (although any capital gains so treated will not
qualify for the lower 15.0% tax rate applicable to capital gains
of most domestic non-corporate investors). We will notify
stockholders after the close of our taxable year as to the
portions of our distributions attributable to that year that
constitute ordinary income, return of capital, and capital gain.
Taxation
of U.S. Stockholders on the Disposition of Series G
Preferred Stock
Upon any taxable sale or other disposition of Series G
Preferred Stock, a U.S. stockholder will recognize gain or
loss for U.S. federal income tax purposes in an amount
equal to the difference between (1) the amount of cash and
the fair market value of any property on the sale or other
disposition and (2) the U.S. stockholders
adjusted basis in the Series G Preferred Stock for tax
purposes. In general, a U.S. stockholder who is not a
dealer in securities must treat any gain or loss realized upon a
taxable disposition of our Series G Preferred Stock as
long-term capital gain or loss if the U.S. stockholder has
held the Series G Preferred Stock for more than one year
and otherwise as short-term capital gain or loss. However, a
U.S. stockholder must treat any loss upon a sale or
exchange of Series G Preferred Stock held by such
stockholder for six months or less as a long-term capital loss
to the extent of any actual or deemed distributions from us that
such U.S. stockholder previously has characterized as
long-term capital gain. All or a portion of any loss that a
U.S. stockholder realizes upon a taxable disposition of the
Series G Preferred Stock may be disallowed if the
U.S. stockholder purchases other Series G Preferred
Stock within 30 days before or after the disposition. In
addition, the ability to otherwise deduct capital losses can be
subject to limitations under the Internal Revenue Code.
S-16
Taxation
of U.S. Stockholders on a Redemption of Series G
Preferred Stock
A redemption of the Series G Preferred Stock will be
treated under Section 302 of the Internal Revenue Code as a
distribution that is taxable as dividend income (to the extent
of our current or accumulated earnings and profits), unless the
redemption satisfies certain tests set forth in
Section 302(b) of the Internal Revenue Code enabling the
redemption to be treated as a sale of the Series G
Preferred Stock (in which case the redemption will be treated in
the same manner as a sale described above in
Taxation of U.S. Stockholders on the
Disposition of Series G Preferred Stock). The
redemption will satisfy such tests if it (i) is
substantially disproportionate with respect to the
holders interest in our stock, (ii) results in a
complete termination of the holders interest
in all our classes of our stock, or (iii) is not
essentially equivalent to a dividend with respect to the
holder, all within the meaning of Section 302(b) of the
Internal Revenue Code. In determining whether any of these tests
have been met, stock considered to be owned by the holder by
reason of certain constructive ownership rules set forth in the
Internal Revenue Code, as well as stock actually owned,
generally must be taken into account. Because the determination
as to whether any of the three alternative tests of
Section 302(b) of the Internal Revenue Code described above
will be satisfied with respect to any particular holder of the
Series G Preferred Stock depends upon the facts and
circumstances at the time that the determination must be made,
prospective investors are urged to consult their tax advisors to
determine such tax treatment.
If a redemption of the Series G Preferred Stock does not
meet any of the three tests described above, the redemption
proceeds will be treated as a distribution, as described above
in Taxation of U.S. Stockholders on
Distributions on our Series G Preferred Stock. In
that case, a stockholders adjusted tax basis in the
redeemed Series G Preferred Stock will be transferred to
such stockholders remaining stock holdings in us. If the
stockholder does not retain any of our shares, such basis could
be transferred to a related person that holds our stock or it
may be lost.
Capital
Gains and Losses
A taxpayer generally must hold a capital asset for more than one
year for gain or loss derived from its sale or exchange to be
treated as long-term capital gain or loss. The highest marginal
individual income tax rate is 35.0%. However, the maximum tax
rate on long-term capital gain applicable to
U.S. stockholders taxed at individual rates is 15.0%
(through 2010). The maximum tax rate on long-term capital gain
from the sale or exchange of section 1250
property, or depreciable real property, is 25.0% computed
on the lesser of the total amount of the gain or the accumulated
Section 1250 depreciation. With respect to distributions
that we designate as capital gain dividends and any retained
capital gain that we are deemed to distribute, we generally may
designate whether such a distribution is taxable to our
non-corporate stockholders at a 15.0% or 25.0% rate. Thus, the
tax rate differential between capital gain and ordinary income
for non-corporate taxpayers may be significant. In addition, the
characterization of income as capital gain or ordinary income
may affect the deductibility of capital losses. A non-corporate
taxpayer may deduct capital losses not offset by capital gains
against its ordinary income only up to a maximum annual amount
of $3,000. A non-corporate taxpayer may carry forward unused
capital losses indefinitely. A corporate taxpayer must pay tax
on its net capital gain at ordinary corporate rates. A corporate
taxpayer may deduct capital losses only to the extent of capital
gains, with unused losses being carried back three years and
forward five years.
Information
Reporting Requirements and Backup Withholding
We will report to our stockholders and to the Internal Revenue
Service, or IRS, the amount of distributions we pay during each
calendar year, and the amount of tax we withhold, if any. Under
the backup withholding rules, a stockholder may be subject to
backup withholding at the rate of 28.0% with respect to
distributions unless such holder:
|
|
|
|
|
is a corporation or comes within certain other exempt categories
and, when required, demonstrates this fact; or
|
S-17
|
|
|
|
|
provides a taxpayer identification number, certifies as to no
loss of exemption from backup withholding, and otherwise
complies with the applicable requirements of the backup
withholding rules.
|
A stockholder who does not provide us with its correct taxpayer
identification number also may be subject to penalties imposed
by the IRS. Any amount paid as backup withholding will be
creditable against the stockholders income tax liability.
In addition, we may be required to withhold a portion of capital
gain distributions to any stockholders who fail to certify their
non-foreign status to us. See Taxation of
Non-U.S. Stockholders.
Taxation
of Tax-Exempt Stockholders
Tax-exempt entities, including qualified employee pension and
profit sharing trusts and individual retirement accounts and
annuities, generally are exempt from federal income taxation.
However, they are subject to taxation on their unrelated
business taxable income. While many investments in real estate
generate unrelated business taxable income, the IRS has issued a
published ruling that dividend distributions from a REIT to an
exempt employee pension trust do not constitute unrelated
business taxable income, provided that the exempt employee
pension trust does not otherwise use the shares of the REIT in
an unrelated trade or business of the pension trust. Based on
that ruling, amounts that we distribute to tax-exempt
stockholders generally should not constitute unrelated business
taxable income. However, if a tax-exempt stockholder were to
finance its investment in our Series G Preferred Stock with
debt, a portion of the income that it receives from us would
constitute unrelated business taxable income pursuant to the
debt-financed property rules. In addition, our
dividends that are attributable to excess inclusion income will
constitute unrelated business taxable income in the hands of
most tax-exempt stockholders. Furthermore, social clubs,
voluntary employee benefit associations, supplemental
unemployment benefit trusts, and qualified group legal services
plans that are exempt from taxation under special provisions of
the federal income tax laws are subject to different unrelated
business taxable income rules, which generally will require them
to characterize distributions that they receive from us as
unrelated business taxable income. Finally, in certain
circumstances, a qualified employee pension or profit sharing
trust that owns more than 10% of our stock is required to treat
a percentage of the dividends that it receives from us as
unrelated business taxable income. Such percentage is equal to
the gross income that we derive from an unrelated trade or
business, determined as if we were a pension trust, divided by
our total gross income for the year in which we pay the
dividends. That rule applies to a pension trust holding more
than 10% of our stock only if:
|
|
|
|
|
the percentage of our dividends that the tax-exempt trust would
be required to treat as unrelated business taxable income is at
least 5%;
|
|
|
|
we qualify as a REIT by reason of the modification of the rule
requiring that no more than 50% of our stock be owned by five or
fewer individuals that allows the beneficiaries of the pension
trust to be treated as holding our stock in proportion to their
actuarial interests in the pension trust; and
|
|
|
|
either: (1) one pension trust owns more than 25% of the
value of our stock; or (2) a group of pension trusts
individually holding more than 10% of the value of our stock
collectively owns more than 50% of the value of our stock.
|
Taxation
of
Non-U.S. Stockholders
The rules governing U.S. federal income taxation of nonresident
alien individuals, foreign corporations, and other foreign
stockholders (collectively,
non-U.S. stockholders)
are complex. This section is only a summary of such rules. We
urge
non-U.S. stockholders
to consult their tax advisors to determine the impact of
federal, state, local and foreign income tax laws on the
ownership of our Series G Preferred Stock, including any
reporting requirements.
A
non-U.S. stockholder
that receives a distribution that is not attributable to gain
from our sale or exchange of a United States real property
interest, as defined below, and that we do not designate
as a
S-18
capital gain dividend or retained capital gain will recognize
ordinary income to the extent that we pay such distribution out
of our current or accumulated earnings and profits. A
withholding tax equal to 30% of the gross amount of the
distribution ordinarily will apply to such distribution unless
an applicable tax treaty reduces or eliminates the tax. If a
distribution is treated as effectively connected with the
non-U.S. stockholders
conduct of a U.S. trade or business (or if a tax treaty
applies, a permanent establishment), the
non-U.S. stockholder
generally will be subject to U.S. federal income tax on the
distribution at graduated rates, in the same manner as
U.S. stockholders are taxed with respect to such
distribution, and a
non-U.S. stockholder
that is a corporation also may be subject to the 30% branch
profits tax with respect to the distribution. We plan to
withhold U.S. income tax at the rate of 30% on the gross
amount of any such distribution paid to a
non-U.S. stockholder
unless either:
|
|
|
|
|
a lower treaty rate applies and the
non-U.S. stockholder
files an IRS
Form W-8BEN
evidencing eligibility for that reduced rate with us; or
|
|
|
|
the
non-U.S. stockholder
files an IRS
Form W-8ECI
with us claiming that the distribution is effectively connected
income.
|
A
non-U.S. stockholder
will not incur tax on a distribution in excess of our current
and accumulated earnings and profits if the excess portion of
such distribution does not exceed the adjusted basis of its
Series G Preferred Stock. Instead, the excess portion of
such distribution will reduce the adjusted basis of such shares.
A
non-U.S. stockholder
will be subject to tax on a distribution that exceeds both our
current and accumulated earnings and profits and the adjusted
basis of its Series G Preferred Stock, if the
non-U.S. stockholder
otherwise would be subject to tax on gain from the sale or
disposition of its Series G Preferred Stock, as described
below. Because we generally cannot determine at the time we make
a distribution whether the distribution will exceed our current
and accumulated earnings and profits, we normally will withhold
tax on the entire amount of any distribution at the same rate as
we would withhold on a dividend. However, a
non-U.S. stockholder
may claim a refund of amounts that we withhold if we later
determine that a distribution in fact exceeded our current and
accumulated earnings and profits.
We may be required to withhold 10% of any distribution that
exceeds our current and accumulated earnings and profits.
Consequently, although we intend to withhold at a rate of 30% on
the entire amount of any distribution, to the extent that we do
not do so, we will withhold at a rate of 10% on any portion of a
distribution not subject to withholding at a rate of 30%.
For any year in which we qualify as a REIT, a
non-U.S. stockholder
will incur tax on distributions that are attributable to gain
from our sale or exchange of a United States real property
interest under special provisions of the federal income
tax laws referred to as FIRPTA. The term United States
real property interest includes certain interests in real
property and stock in corporations at least 50% of whose assets
consist of interests in real property. Under those rules, a
non-U.S. stockholder
is taxed on distributions attributable to gain from sales of
United States real property interests as if such gain were
effectively connected with a U.S. business of the
non-U.S. stockholder.
A
non-U.S. stockholder
thus would be taxed on such a distribution at the normal capital
gains rates applicable to U.S. stockholders, subject to
applicable alternative minimum tax and a special alternative
minimum tax in the case of a nonresident alien individual. A
non-U.S. corporate
stockholder not entitled to treaty relief or exemption also may
be subject to the 30% branch profits tax on such a distribution.
We must withhold 35% of any distribution that we could designate
as a capital gain dividend. A
non-U.S. stockholder
may receive a credit against its tax liability for the amount we
withhold.
Capital gain distributions to the holders of Series G
Preferred Stock that are attributable to our sale of real
property will be treated as ordinary dividends rather than as
gain from the sale of a United States real property interest, as
long as: (1) our Series G Preferred Stock is
regularly traded on an established securities market
in the United States; and (2) the
non-U.S. stockholder
did not own more than 5% of our Series G Preferred Stock at
any time during the one-year period prior to the distribution.
As a result,
non-U.S. stockholders
owning 5% or less of our Series G Preferred Stock generally
will be subject to withholding tax on such capital gain
distributions in the same manner as they are subject to
withholding tax on ordinary dividends. If our Series G
Preferred Stock is not regularly traded on an established
S-19
securities market in the United States or the
non-U.S. stockholder
owned more than 5% of our Series G Preferred Stock at any
time during the one-year period prior to the distribution,
capital gain distributions that are attributable to our sale of
real property would be subject to tax under FIRPTA, as described
in the preceding paragraph. Moreover, if a
non-U.S. stockholder
disposes of our Series G Preferred Stock during the
30 day period preceding a dividend payment, and such
non-U.S. stockholder
(or a person related to such
non-U.S. stockholder)
acquires or enters into a contract or option to acquire our
Series G Preferred Stock within 61 days of the
1st day of the 30 day period described above, and any
portion of such dividend payment would, but for the disposition,
be treated as a United States real property interest capital
gain to such
non-U.S. stockholder,
then such
non-U.S. stockholder
shall be treated as having United States real property interest
capital gain in an amount that, but for the disposition, would
have been treated as United States real property interest
capital gain.
A
non-U.S. stockholder
generally will not incur tax under FIRPTA with respect to gain
realized upon a disposition of our Series G Preferred Stock
as long as at all times
non-U.S. persons
hold, directly or indirectly, less than 50% in value of our
stock. We cannot assure you that that test will be met. However,
a
non-U.S. stockholder
that owned, actually or constructively, 5% or less of our
Series G Preferred Stock at all times during a specified
testing period will not incur tax under FIRPTA if our
Series G Preferred Stock is regularly traded on
an established securities market in the United States. Because
we expect our Series G Preferred Stock will be regularly
traded on an established securities market in the United States
following this offering, a
non-U.S. stockholder
will not incur tax under FIRPTA with respect to any such gain
unless it owns, actually or constructively, more than 5% of our
Series G Preferred Stock. If the gain on the sale of our
Series G Preferred Stock were taxed under FIRPTA, a
non-U.S. stockholder
would be taxed in the same manner as U.S. stockholders with
respect to such gain, subject to applicable alternative minimum
tax or, a special alternative minimum tax in the case of
nonresident alien individuals. Distributions subject to FIRPTA
may also be subject to a 30% branch profits tax when received by
a
non-U.S. stockholder
that is a corporation. Furthermore, a
non-U.S. stockholder
will incur tax on gain not subject to FIRPTA if (1) the
gain is effectively connected with the
non-U.S. stockholders
U.S. trade or business, in which case the
non-U.S. stockholder
will be subject to the same treatment as U.S. stockholders
with respect to such gain, or (2) the
non-U.S. stockholder
is a nonresident alien individual who was present in the United
States for 183 days or more during the taxable year and has
a tax home in the United States, in which case the
non-U.S. stockholder
will incur a 30% tax on his capital gains.
Information Reporting and Backup
Withholding. Backup withholding will apply to
dividend payments made to a
non-U.S. stockholder
of Series G Preferred Stock unless the holder has certified
that it is not a U.S. person and the payor has no actual
knowledge that the owner is not a
non-U.S. person.
Information reporting generally will apply with respect to
dividend payments even if certification is provided. Payment of
the proceeds from a disposition of our shares by a
non-U.S. stockholder
made to or through the U.S. office of a broker is generally
subject to information reporting and backup withholding unless
the holder or beneficial owner certifies that it is not a
U.S. person or otherwise establishes an exemption.
Generally, IRS information reporting and backup withholding will
not apply to a payment of disposition proceeds if the payment is
made outside the United States through a foreign office of a
foreign broker-dealer. If the proceeds from a disposition of our
shares are paid to or through a foreign office of a
U.S. broker-dealer or a
non-U.S. office
of a foreign broker-dealer that is (i) a controlled
foreign corporation for U.S. federal income tax
purposes, (ii) a person 50% or more of whose gross income
from all sources for a specified three-year period was
effectively connected with a U.S. trade or business,
(iii) a foreign partnership with one or more partners who
are U.S. persons and who in the aggregate hold more than
50% of the income or capital interest in the partnership, or
(iv) a foreign partnership engaged in the conduct of a
trade or business in the United States, then backup withholding
and information reporting generally will apply unless the
non-U.S. holder
satisfies certification requirements regarding its status as a
non-U.S. person
and the broker-dealer has no actual knowledge that the owner is
not a
non-U.S. person.
A
non-U.S. stockholder
should consult its tax advisor regarding application of
withholding and backup withholding in its particular
circumstance and the availability of and procedure for obtaining
an exemption from withholding and backup withholding under
current U.S. Treasury regulations.
S-20
Other Tax
Considerations
Possible Legislative or Other Actions Affecting Tax
Considerations. Prospective investors should recognize that
the present U.S. federal income tax treatment of an
investment in us may be modified by legislative, judicial or
administrative action at any time, and that any such action may
affect investments and commitments previously made. The rules
dealing with U.S. federal income taxation are constantly
under review by persons involved in the legislative process and
by the IRS and the U.S. Treasury Department, resulting in
revisions of regulations and revised interpretations of
established concepts as well as statutory changes. Revisions in
U.S. federal tax laws and interpretations thereof could
adversely affect the tax consequences of an investment in us.
State and Local Taxes. We and our stockholders
may be subject to state or local taxation in various
jurisdictions, including those in which we or they transact
business or reside. The state and local tax treatment of us and
our stockholders may not conform to the U.S. federal income
tax consequences discussed above. Consequently, prospective
stockholders should consult their own tax advisors regarding the
effect of state and local tax laws on an investment in
Series G Preferred Stock.
S-21
UNDERWRITING
Wachovia Capital Markets, LLC is acting as the sole book-running
manager of the offering and is acting as representative of the
underwriters named below. Subject to the terms and conditions
stated in the underwriting agreement dated the date of this
prospectus supplement, each underwriter below has severally
agreed to purchase from us the following respective number of
shares of Series G Preferred Stock at the public offering
price less the underwriting discounts and commissions set forth
on the cover page of this prospectus supplement:
|
|
|
|
|
|
|
Number of
|
|
Underwriter
|
|
Shares
|
|
|
Wachovia Capital Markets, LLC
|
|
|
3,672,000
|
|
Banc of America Securities LLC
|
|
|
378,000
|
|
RBC Dain Rauscher Inc.
|
|
|
378,000
|
|
Stifel,
Nicolaus & Company, Incorporated
|
|
|
378,000
|
|
Morgan
Keegan & Company, Inc.
|
|
|
162,000
|
|
Wells Fargo Securities, LLC
|
|
|
162,000
|
|
BB&T Capital Markets, a
division of Scott & Stringfellow, Inc.
|
|
|
27,000
|
|
Bear, Stearns & Co. Inc.
|
|
|
27,000
|
|
Davenport & Company LLC
|
|
|
27,000
|
|
H&R Block Financial Advisors,
Inc.
|
|
|
27,000
|
|
J.J.B. Hilliard, W.L. Lyons,
Inc.
|
|
|
27,000
|
|
Janney Montgomery Scott LLC
|
|
|
27,000
|
|
Oppenheimer & Co., Inc.
|
|
|
27,000
|
|
Robert W. Baird & Co.
Incorporated
|
|
|
27,000
|
|
Ryan Beck & Co., Inc.
|
|
|
27,000
|
|
Wedbush Morgan Securities Inc.
|
|
|
27,000
|
|
|
|
|
|
|
Total
|
|
|
5,400,000
|
|
|
|
|
|
|
The underwriting agreement provides that the obligations of the
several underwriters to purchase the Series G Preferred
Stock offered hereby are subject to certain conditions
precedent, including the receipt of certain certificates,
opinions and letters from us, our attorneys and independent
accountants. The underwriting agreement provides that the
underwriters will purchase all of the Series G Preferred
Stock offered by this prospectus supplement, other than those
covered by the over-allotment option described below, if any of
these shares are purchased.
The underwriters initially propose to offer the Series G
Preferred Stock to the public at the public offering price set
forth on the cover page of this prospectus supplement and to
dealers at that price less a concession not in excess of
$.50 per share. The underwriters may allow, and these
dealers may re-allow, a concession of not more than
$.45 per share to other dealers. After the initial offering
of the Series G Preferred Stock, the offering price and
other selling terms may be varied by the underwriters from time
to time.
We have granted to the underwriters an option, exercisable not
later than 30 days after the date of this prospectus
supplement, to purchase up to 600,000 additional shares of
Series G Preferred Stock at the public offering price less
the underwriting discounts and commissions set forth on the
cover page of this prospectus supplement. The underwriters may
exercise this option only to cover over-allotments made in
connection with the sale of the Series G Preferred Stock
offered by this prospectus supplement. To the extent that the
underwriters exercise this option, each of the underwriters will
become obligated, subject to conditions, to purchase
approximately the same percentage of these additional shares of
Series G Preferred Stock as the number of shares of
Series G Preferred Stock to be purchased by it in the above
table bears to the 5,400,000 shares of Series G
Preferred Stock offered by this prospectus supplement. We will
be
S-22
obligated, pursuant to the option, to sell these additional
shares of Series G Preferred Stock to the underwriters to
the extent the option is exercised. If any additional shares of
Series G Preferred Stock are purchased, the underwriters
will offer the additional shares on the same terms as those on
which the 5,400,000 shares are being offered.
The following table shows the per share and total public
offering price, underwriting discounts and proceeds, before
expenses, to us, assuming either no exercise or full exercise by
the underwriters of their over-allotment option.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
|
|
|
Without
|
|
|
With Full
|
|
|
|
|
|
|
Exercise of
|
|
|
Exercise of
|
|
|
|
|
|
|
Over-Allotment
|
|
|
Over-Allotment
|
|
|
|
Per Share
|
|
|
Option
|
|
|
Option
|
|
|
Public offering price
|
|
$
|
25.0000
|
|
|
$
|
135,000,000
|
|
|
$
|
150,000,000
|
|
Underwriting discounts and
commissions
|
|
$
|
0.7875
|
|
|
$
|
4,252,500
|
|
|
$
|
4,725,000
|
|
Proceeds to us (before expenses)
|
|
$
|
24.2125
|
|
|
$
|
130,747,500
|
|
|
$
|
145,275,000
|
|
In addition, we estimate that the total expenses of this
offering, excluding underwriting discounts and commissions, will
be approximately $250,000 and are payable by us.
We will file an application to list the Series G Preferred
Stock on the NYSE under the symbol UDRPrG. We expect
trading of the Series G Preferred Stock on the NYSE, if
listing is approved, to commence within 30 days after the
initial delivery of the shares. The underwriters have advised us
that they intend to make a market in the shares prior to the
commencement of trading on the NYSE. The underwriters will have
no obligation to make a market in the Series G Preferred
Stock, however, and may cease market making activities, if
commenced, at any time.
We have agreed to indemnify the underwriters against some
specified types of liabilities, including liabilities under the
Securities Act of 1933, and to contribute to payments the
underwriters may be required to make in respect of any of these
liabilities.
We have agreed, subject to limited exceptions, not to, directly
or indirectly, offer, pledge, sell, contract to sell, otherwise
dispose of, sell or grant any option, purchase any option, grant
any purchase right or warrant or enter into any share or other
agreement that transfers, in whole or in part, the economic
consequences of ownership of, any of our preferred securities
that are substantially similar to the Series G Preferred
Stock, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the
right to receive, any such substantially similar securities
without the prior written consent of Wachovia Capital Markets,
LLC, for a period of 60 days after the initial issuance of
the Series G Preferred Stock. The foregoing restrictions do
not apply to the redemption of our Series B Preferred Stock.
In connection with the offering, the underwriters may purchase
and sell our Series G Preferred Stock in the open market.
These transactions may include short sales, purchases to cover
positions created by short sales and stabilizing transactions.
|
|
|
|
|
Short sales involve the sale by the underwriters of a greater
number of shares than they are required to purchase in the
offering. Covered short sales are sales made in an amount not
greater than the underwriters option to purchase
additional Series G Preferred Stock from us in this
offering. The underwriters may close out any covered short
position by either exercising their option to purchase
additional shares or purchasing shares in the open market. In
determining the source of shares to close out the covered short
position, the underwriters will consider, among other things,
the price of shares available for purchase in the open market as
compared to the price at which they may purchase shares through
the over-allotment option.
|
|
|
|
Naked short sales are any sales in excess of the over-allotment
option. The underwriters must close out any naked short position
by purchasing shares in the open market. A naked short position
is more likely to be created if the underwriters are concerned
that there may be downward pressure on the price of the shares
in the open market prior to the completion of this offering.
|
S-23
|
|
|
|
|
Stabilizing transactions consist of various bids for or
purchases of our Series G Preferred Stock made by the
underwriters in the open market prior to the completion of this
offering.
|
|
|
|
The underwriters may impose a penalty bid. This occurs when a
particular underwriter repays to the other underwriters a
portion of the underwriting discount received by it because the
representative of the underwriters has repurchased shares sold
by or for the account of that underwriter in stabilizing or
short covering transactions.
|
|
|
|
Purchases to cover a short position and stabilizing transactions
may have the effect of preventing or slowing a decline in the
market price of our Series G Preferred Stock. Additionally,
these purchases, along with the imposition of a penalty bid, may
stabilize, maintain or otherwise affect the market price of our
Series G Preferred Stock. As a result, the price of our
Series G Preferred Stock may be higher than the price that
might otherwise exist in the open market. These transactions may
be effected on the NYSE, in the
over-the-counter
market or otherwise and may be discontinued at any time.
|
The underwriters and their affiliates have from time to time
provided, and may in the future provide, various investment
banking, commercial banking, financial advisory and other
services for us for which they have received or will receive
customary fees and expenses. The underwriters and their
affiliates may, from time to time, engage in other transactions
with us and perform other services for us in the ordinary course
of their businesses. Certain of the underwriters or their
affiliates are lenders under our $500 million unsecured
revolving credit facility. As described above, we intend to use
the net proceeds from this offering to fund the redemption of
the outstanding shares of our Series B Preferred Stock, to
repay borrowings outstanding under our credit facility or for
other general corporate purposes, which may include repurchasing
our common stock. If we use a portion of the net proceeds to
repay outstanding indebtedness under our $500 million
unsecured revolving credit facility, these underwriters or their
affiliates will receive a portion of the net proceeds from this
offering through the repayment of borrowings under our credit
facility.
We expect that delivery of the Series G Preferred Stock
will be made against payment therefor on or about May 31,
2007, which will be the fifth business day following the date
hereof (this settlement cycle being referred to as
T+5). Under
Rule 15c6-1
of the Exchange Act, trades in the secondary market generally
are required to settle in three business days, unless the
parties to that trade expressly agree otherwise. Accordingly,
purchasers who wish to trade the Series G Preferred Stock
on the date of this prospectus supplement or the next two
succeeding business days will be required, by virtue of the fact
that the Series G Preferred Stock initially will settle in
T+5 to specify an alternate settlement cycle at the time of any
such trade to prevent a failed settlement and should consult
their own advisor.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements
and other information with the SEC. Our filings with the SEC are
available to the public on the Internet at the SECs web
site at http://www.sec.gov. You may also read and copy any
document that we file with the SEC at its public reference room
at 100 F Street, NE, Washington, D.C. 20549. Please call
the SEC at
1-800-SEC-0330
for further information on the public reference room and their
copy charges.
You can inspect our reports, proxy statements and other
information that we file at the offices of the New York Stock
Exchange at 20 Broad Street, New York, New York 10005.
INCORPORATION
OF INFORMATION FILED WITH THE SEC
The SEC allows us to incorporate by reference the
information we file with the SEC, which means that we can
disclose important information to you be referring you to those
documents. The information incorporated by reference herein is
an important part of this prospectus supplement and the
accompanying prospectus. Any statement contained in a document
which is incorporated by reference in this prospectus
S-24
supplement and the accompanying prospectus is automatically
updated and superseded if information contained in this
prospectus supplement and the accompanying prospectus, or
information that we later file with the SEC prior to the
termination of this offering, modifies or replaces this
information. The following documents filed with the SEC are
incorporated by reference in this prospectus supplement and the
accompanying prospectus (Commission File
No. 1-10524),
except for any document or portion thereof deemed to be
furnished and not filed in accordance with SEC rules:
|
|
|
|
|
Annual Report on
Form 10-K
for the year ended December 31, 2006 filed on March 1,
2007;
|
|
|
|
Quarterly Report on
Form 10-Q
for the quarter ended March 31, 2007, filed on May 10,
2007;
|
|
|
|
Current Reports on
Form 8-K
filed on February 16, 2007, March 15, 2007,
March 19, 2007 (Item 8.01 information only),
March 22, 2007, April 24, 2007 and May 18, 2007;
|
|
|
|
our definitive proxy statement dated March 26, 2007, filed
on March 23, 2007 in connection with our Annual Meeting of
Stockholders held on May 8, 2007;
|
|
|
|
the description of our capital stock contained in our
Registration Statement on
Form 8-A/A
dated and filed on November 7, 2005, and all amendments or
reports filed with the SEC for the purpose of updating such
description;
|
|
|
|
all documents filed by us with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act (other than
current reports furnished under Item 2.02 or 7.01 of
Form 8-K)
after the date of this prospectus supplement and prior to the
termination of this offering.
|
We will provide without charge to each person, including any
beneficial owner, to whom this prospectus supplement and the
accompanying prospectus are delivered, a copy of any of the
documents referred to above by written or oral request. To
receive a free copy of any of the documents incorporated by
reference in this prospectus supplement and the accompanying
prospectus (other than exhibits, unless they are specifically
incorporated by reference in the documents), call or write to
UDR, Inc., 1745 Shea Center Drive, Suite 200, Highlands
Ranch, Colorado 80129, Attention: Investor Relations, telephone
number
(720) 283-6120.
We also maintain a website that contains additional information
about us (http://www.udr.com). Information on our website is not
part of, or incorporated by reference into, this prospectus
supplement or the accompanying prospectus.
LEGAL
MATTERS
The validity of the Series G Preferred Stock offered hereby
and certain U.S. federal income tax matters will be passed
upon for us by Morrison & Foerster LLP. Certain legal
matters will be passed upon for the underwriters by Sidley
Austin LLP, New York, New York.
EXPERTS
Ernst & Young LLP, independent registered public
accounting firm, has audited our consolidated financial
statements and schedule as of December 31, 2006 and 2005
and for each of the three years in the period ended
December 31, 2006 included in our Current Report on
Form 8-K
filed on May 18, 2007, and managements assessment of
the effectiveness of our internal control over financial
reporting as of December 31, 2006 included in our Annual
Report on
Form 10-K
for the year ended December 31, 2006, as set forth in their
reports, which are incorporated by reference in this prospectus
supplement and elsewhere in the registration statement. Our
financial statements and schedule and managements
assessment are incorporated by reference in reliance on
Ernst & Young LLPs reports, given on their
authority as experts in accounting and auditing.
S-25
PROSPECTUS
Common Stock
Preferred Stock
Debt Securities
Warrants
Purchase Contracts
Units
We may from time to time offer and sell common stock, preferred
stock, debt securities, warrants and purchase contracts, as well
as units that include any of these securities. The debt
securities, preferred stock, warrants and purchase contracts may
be convertible into or exercisable or exchangeable for common or
preferred stock or other securities of ours.
We will offer our securities in amounts, at prices and on terms
to be determined at the time we offer those securities. We will
provide the specific terms of the securities and the terms of
the offering in supplements to this prospectus. You should read
this prospectus and the applicable prospectus supplement
carefully before you invest in our securities.
We may offer and sell these securities on a delayed or
continuous to or through one or more agents, underwriters or
dealers as designated from time to time, directly to one or more
purchasers, through a combination of these methods or any other
method as provided in the applicable prospectus supplement. In
addition, this prospectus may be used to offer any of these
securities for the account of persons other than us as provided
in the applicable prospectus supplement. If any agents, dealers
or underwriters are involved in the sale of any securities, the
applicable prospectus supplement will set forth any applicable
commissions or discounts.
Our common stock is traded on the New York Stock Exchange under
the symbol UDR.
Investing in our securities involves risks. Before buying our
securities, you should refer to the risk factors included in our
periodic reports, in prospectus supplements relating to specific
offerings and in other information that we file with the
Securities and Exchange Commission. See Risk Factors
on page 3.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
January 25, 2006
ABOUT
THIS PROSPECTUS
This prospectus is part of a shelf registration
statement that we have filed on
Form S-3
with the Securities and Exchange Commission, or SEC. By using a
shelf registration statement, we may sell, at any time and from
time to time, in one or more offerings, any combination of the
securities described in this prospectus. The exhibits to our
registration statement contain the full text of certain
contracts and other important documents we have summarized in
this prospectus. Because these summaries may not contain all the
information that you may find important in deciding whether to
purchase the securities we offer, you should review the full
text of these documents. The registration statement and the
exhibits can be obtained from the SEC as indicated under the
heading Where You Can Find More Information.
This prospectus only provides you with a general description of
the securities we may offer. Each time we sell securities, we
will provide a prospectus supplement that contains specific
information about the terms of those securities and the
offering. The prospectus supplement may also add, update or
change information contained in this prospectus. You should read
both this prospectus and any prospectus supplement together with
the additional information described below under the heading
Where You Can Find More Information.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. Our filings with the SEC are
available to the public on the Internet at the SECs web
site at http://www.sec.gov. You may also read and copy any
document we file with the SEC at its public reference room at
100 F Street, NE, Washington, DC 20549. Please call the SEC at
1-800-SEC-0330
for more information about their public reference room and their
copy charges. Our reports, proxy statements and other
information about us may also be inspected at:
The New York Stock Exchange
20 Broad Street
New York, New York 10005
INCORPORATION
OF INFORMATION FILED WITH THE SEC
The SEC allows us to incorporate by reference the
information we file with the SEC, which means that we can
disclose important information to you by referring you to those
documents. Any information that we refer to in this manner is
considered part of this prospectus. Any information that we file
with the SEC after the date of this prospectus will
automatically update and, where applicable, supersede the
information contained in this prospectus.
We are incorporating by reference the following documents that
we have previously filed with the SEC (Commission File
No. 1-10524), except for any document or portion thereof
deemed to be furnished and not filed in accordance
with SEC rules:
|
|
|
|
|
Annual Report on
Form 10-K
for the year ended December 31, 2004.
|
|
|
|
Quarterly Report on
Form 10-Q
for the quarter ended March 31, 2005.
|
|
|
|
Quarterly Report on
Form 10-Q
for the quarter ended June 30, 2005.
|
|
|
|
Quarterly Report on
Form 10-Q
for the quarter ended September 30, 2005.
|
|
|
|
Current Reports on
Form 8-K
and
Form 8-K/A
filed with the SEC on January 11, 2005, March 22,
2005, April 6, 2005, May 9, 2005, May 19, 2005,
May 27, 2005, August 1, 2005, August 11, 2005,
November 15, 2005, December 5, 2005, December 14,
2005, December 19, 2005, December 23, 2005, and
January 6, 2006.
|
|
|
|
Our definitive Proxy Statement dated April 1, 2005, filed
in connection with our Annual Meeting of Stockholders held on
May 3, 2005.
|
2
|
|
|
|
|
The description of our capital stock contained in our
Registration Statement on
Form 8-A/A
dated and filed with the SEC on November 7, 2005, including
any amendments or reports filed with the SEC for the purpose of
updating such description.
|
We are also incorporating by reference any future filings that
we make with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, or the Exchange
Act, after the date of this prospectus and prior to the
termination of this offering. In no event, however, will any of
the information that we furnish to the SEC in any
Current Report on
Form 8-K
from time to time be incorporated by reference into, or
otherwise included in, this prospectus.
We will provide without charge to each person, including any
beneficial owner, to whom this prospectus is delivered a copy of
any of the documents referred to above by written or oral
request to:
United Dominion Realty Trust, Inc.
1745 Shea Center Drive, Suite 200
Highlands Ranch, Colorado 80129
Attention: Investor Relations
Telephone: (720) 283-6120
We maintain a web site at www.udrt.com. The reference to our web
site does not constitute incorporation by reference of the
information contained at the site and you should not consider it
a part of this prospectus or any other document we file with or
furnish to the SEC.
UNITED
DOMINION REALTY TRUST, INC.
We are a self-administered real estate investment trust, or
REIT, that owns, acquires, renovates, develops and manages
apartment communities nationwide. As of December 31, 2005,
our portfolio included 259 communities with a total of 74,875
apartment homes nationwide.
We have elected to be taxed as a REIT under the applicable
provisions of the Internal Revenue Code of 1986, or the
Code. To continue to qualify as a REIT under the
Code, we must continue to meet certain tests which, among other
things, generally require that our assets consist primarily of
real estate assets, our income be derived primarily from real
estate assets, and that we distribute at least 90% of our REIT
taxable income (other than our net capital gain) to our
stockholders. As a qualified REIT, we generally will not be
subject to U.S. federal income taxes on our REIT taxable
income to the extent we distribute such income to our
stockholders.
We were formed in 1972 as a Virginia corporation and
reincorporated in the State of Maryland in June 2003. Our
principal executive offices are located at 1745 Shea Center
Drive, Suite 200, Highlands Ranch, Colorado 80129. The
telephone number of our principal executive offices is
(720) 283-6120. Our corporate headquarters is located at
400 East Cary Street, Richmond, Virginia 23219. The telephone
number of our corporate headquarters is (804) 780-2691.
RISK
FACTORS
Investing in our securities involves risks. Before purchasing
our securities, in addition to the other information in this
prospectus and the applicable prospectus supplement, you should
carefully consider the risk factors under the heading
Factors Affecting Our Business and Prospects in the
Business section of our most recent Annual Report on
Form 10-K,
which is incorporated by reference into this prospectus and the
applicable prospectus supplement, as the same may be updated
from time to time by our filings under the Securities Exchange
Act of 1934.
USE OF
PROCEEDS
Unless we state otherwise in the applicable prospectus
supplement, we will use the net proceeds we receive from the
sale of the securities offered by this prospectus and the
accompanying prospectus supplement
3
for general corporate purposes. General corporate purposes may
include additions to working capital, capital expenditures,
repayment of debt, funding improvements to properties, and
acquiring and developing additional properties. Pending
application of the net proceeds, we intend to invest the
proceeds in interest bearing accounts and short-term, interest
bearing securities.
GENERAL
DESCRIPTION OF SECURITIES THAT WE MAY OFFER
We may offer and sell, at any time and from time to time:
|
|
|
|
|
our debt securities, in one or more series, which may be senior
debt securities or subordinated debt securities,
|
|
|
|
shares of our common stock, par value $.01 per share,
|
|
|
|
shares of our preferred stock, without par value,
|
|
|
|
warrants to purchase our common stock, preferred stock or debt
securities,
|
|
|
|
purchase contracts,
|
|
|
|
units that include any of these securities, and
|
|
|
|
any combination of these securities.
|
The terms of any securities we offer will be determined at the
time of sale. We may issue debt securities, preferred stock,
warrants and purchase contracts that are convertible into or
exercisable or exchangeable for common or preferred stock or
other securities of ours. When particular securities are
offered, a supplement to this prospectus will be filed with the
SEC, which will describe the terms of the offering and sale of
the offered securities.
DESCRIPTION
OF DEBT SECURITIES
We may offer debt securities, in one or more series, which may
be senior debt securities or subordinated debt securities, in
each case under an indenture entered into between us and a
trustee. The debt securities will be our direct obligations. We
will describe the particular terms of each series of debt
securities offered, including a description of the material
terms of the applicable indenture, in a prospectus supplement.
This description will contain all or some of the following, as
applicable:
|
|
|
|
|
the title of the debt securities and whether the debt securities
are senior debt securities or subordinated debt securities,
|
|
|
|
the aggregate principal amount of the debt securities being
offered, the aggregate principal amount of debt securities
outstanding, and any limit on the principal amount, including
the aggregate principal amount of debt securities authorized,
|
|
|
|
the terms and conditions, if any, upon which the debt securities
are convertible into our common stock, preferred stock or other
securities, including the conversion price or its manner of
calculation, the conversion period, provisions as to whether
conversion will be at our option or the option of the holders,
the events requiring an adjustment to the conversion price and
provisions affecting conversion in the event of the redemption
of the debt securities,
|
|
|
|
the percentage of the principal amount at which we will issue
the debt securities and, if other than the principal amount of
the debt securities, the portion of the principal amount payable
upon declaration of acceleration of their maturity, or, if
applicable, the portion of the principal amount of the debt
securities that is convertible into our capital stock, or the
method for determining the portion,
|
|
|
|
if convertible, in connection with the preservation of our
status as a REIT, any applicable limitations on the ownership or
transferability of our capital stock into which the debt
securities are convertible,
|
|
|
|
the denominations of the debt securities, if other than
denominations of an integral multiple of $1,000,
|
4
|
|
|
|
|
the date or dates, or the method for determining the date or
dates, on which the principal of the debt securities will be
payable and the amount of principal payable on the debt
securities,
|
|
|
|
the rate or rates, which may be fixed or variable, at which the
debt securities will bear interest, if any, or the method for
determining the rate or rates, the date or dates from which the
interest will accrue or the method for determining the date or
dates, the interest payment dates on which any interest will be
payable and the regular record dates for the interest payment
dates or the method for determining the dates, the person to
whom interest should be payable, and the basis for calculating
interest if other than that of a
360-day year
consisting of twelve
30-day
months,
|
|
|
|
the place or places where the principal of, and any premium or
make-whole amount, any interest on, and any additional amounts
payable in respect of, the debt securities will be payable,
where holders of debt securities may surrender for registration
of transfer or exchange, and where holders may serve notices or
demands to or upon us in respect of the debt securities and the
applicable indenture,
|
|
|
|
any provisions for the redemption of the debt securities, the
period or periods within which, the price or prices, including
any premium or make-whole amount, at which, the currency or
currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which
the debt securities may be redeemed in whole or in part at our
option, if we have the option,
|
|
|
|
our obligation, if any, to redeem, repay or purchase the debt
securities pursuant to any sinking fund or analogous provision
or at the option of a holder of the debt securities, and the
period or periods within which or the date or dates on which,
the price or prices at which, the currency or currencies,
currency unit or units or composite currency or currencies in
which, and other terms and conditions upon which the debt
securities will be redeemed, repaid or purchased, in whole or in
part, pursuant to the obligation,
|
|
|
|
if other than United States dollars, the currency or currencies
in which the debt securities will be denominated and payable,
which may be a foreign currency or units of two or more foreign
currencies or a composite currency or currencies,
|
|
|
|
whether the amount of payments of principal of, and any premium
or make-whole amount, or any interest on the debt securities may
be determined with reference to an index, formula or other
method, which index, formula or method may be based on one or
more currencies, currency units, composite currencies,
commodities, equity indices or other indices, and the manner for
determining the amounts,
|
|
|
|
whether the principal of, and any premium or make-whole amount,
or any interest or additional amounts on the debt securities are
to be payable, at the election of United Dominion or a holder,
in a currency or currencies, currency unit or units or composite
currency or currencies other than that in which the debt
securities are denominated or stated to be payable, the period
or periods within which, and the terms and conditions upon
which, the election may be made, and the time and manner of, and
identity of the exchange rate agent with responsibility for,
determining the exchange rate between the currency or
currencies, currency unit or units or composite currency or
currencies in which the debt securities are denominated or
stated to be payable and the currency or currencies, currency
unit or units or composite currency or currencies in which the
debt securities are to be so payable,
|
|
|
|
provisions, if any, granting special rights to the holders of
the debt securities upon the occurrence of specified events,
|
|
|
|
any deletions from, modifications of or additions to the events
of default or covenants of United Dominion with respect to the
debt securities, whether or not the events of default or
covenants are consistent with the events of default or covenants
set forth in the applicable indenture,
|
|
|
|
whether the debt securities will be issued in certificated or
book-entry form,
|
|
|
|
the applicability, if any, of the defeasance and covenant
defeasance provisions of the applicable indenture,
|
5
|
|
|
|
|
whether and under what circumstances we will pay additional
amounts as contemplated in the applicable indenture on the debt
securities in respect of any tax, assessment or governmental
charge and, if so, whether we will have the option to redeem the
debt securities rather than pay the additional amounts, and the
terms of the option,
|
|
|
|
any restrictions or condition on the transferability of the debt
securities,
|
|
|
|
the exchanges, if any, on which the debt securities may be
listed,
|
|
|
|
the trustee, authenticating or paying agent, transfer agent or
registrar, and
|
|
|
|
any other material terms of the debt securities and the
applicable indenture.
|
The debt securities may be original issue discount securities,
which are debt securities that may provide for less than their
entire principal amount to be payable upon declaration of
acceleration of their maturity. Special U.S. federal income
tax, accounting and other considerations applicable to original
issue discount securities will be described in the prospectus
supplement.
Unless we specify otherwise in the applicable prospectus
supplement, we will issue our senior debt securities under an
indenture dated as of November 1, 1995, between us and the
trustee under the indenture, which is U.S. Bank National
Association, formerly Wachovia Bank, National Association
(formerly First Union National Bank). We refer to this indenture
as the Senior Indenture. Unless we specify otherwise
in the applicable prospectus supplement, we will issue our
subordinated debt securities under the indenture dated as of
August 1, 1994, between us and the trustee under the
indenture, which is SunTrust Bank (formerly known as Crestar
Bank). We refer to this indenture as the Subordinated
Indenture. The Senior Indenture and the Subordinated
Indenture are sometimes referred to in this prospectus
individually as an Indenture and collectively as the
Indentures. As trustees, U.S. Bank and SunTrust
Bank serve two roles. First, the trustees can enforce your
rights against us if we default on the debt securities. Second,
the trustees assist in administering our obligations under the
debt securities, such as payments of interest.
Below, we describe the Indentures and summarize some of their
provisions. However, we have not described every aspect of the
Indentures or the debt securities that we may issue under the
Indentures. You should refer to the actual Indentures for a
complete description of their provisions and the definitions of
terms used in them. In this prospectus, we provide only the
definitions for some of the more important terms in the
Indentures. Wherever we refer to defined terms of the Indentures
in this prospectus or in the prospectus supplement, we are
incorporating by reference those defined terms. The Senior
Indenture and Subordinated Indenture are exhibits to the
registration statement of which this prospectus is a part.
General
Terms
The Indentures do not limit the aggregate principal amount of
debt securities that we may issue and provide that we may issue
debt securities from time to time in one or more series, except
that the Senior Indenture contains limitations on the amount of
indebtedness that we may incur, as described in more detail
below.
The senior debt securities issued under the Senior Indenture
will be unsecured obligations and will rank on a parity with all
of our other unsecured and unsubordinated indebtedness. The
subordinated debt securities issued under the Subordinated
Indenture will be our unsecured obligations and will be
subordinated in right of payment to all senior debt.
Each Indenture allows for any one or more series of debt
securities to have one or more trustees. Any trustee under
either Indenture may resign or be removed with respect to one or
more series of debt securities, and a successor trustee may be
appointed to act with respect to the series. If two or more
persons are acting as trustee with respect to different series
of debt securities, each trustee will be a trustee of a trust
under the applicable Indenture separate and apart from the trust
administered by any other trustee. Unless this prospectus or the
applicable prospectus supplement states differently, each
trustee of a series of debt securities may take any action that
we may take under the applicable Indenture.
6
We will provide you with more information in the applicable
prospectus supplement regarding any deletions, modifications or
additions to the events of default or covenants that are
described below, including any addition of a covenant or other
provision.
Denominations,
Interest, Registration and Transfer
Unless the applicable prospectus supplement states differently,
the debt securities of any series issued under an Indenture in
registered form will be issuable in denominations of $1,000 and
integral multiples of $1,000. Unless the prospectus supplement
states otherwise, the debt securities of any series issued under
an Indenture in bearer form will be issuable in denominations of
$5,000.
Unless otherwise provided in the applicable prospectus
supplement, the trustees will pay the principal of and any
premium and interest on the debt securities issued under an
Indenture and will register the transfer of any debt securities
at their offices. However, at our option, we may distribute
interest payments by mailing a check to the address of each
holder of debt securities that appears on the register for the
debt securities.
Any interest on the debt securities not punctually paid or duly
provided for on any interest payment date will cease to be
payable to the holder on the applicable regular record date.
This defaulted interest may be paid to the person in whose name
the debt security is registered at the close of business on a
special record date for the payment of the defaulted interest.
We will set the special record date and give the holder of the
debt security at least 10 days prior notice. In the
alternative, this defaulted interest may be paid at any time in
any other lawful manner, all as more completely described in the
applicable Indenture.
Subject to any limitations imposed upon debt securities issued
under an Indenture in book-entry form, the debt securities of
any series will be exchangeable for other debt securities of the
same series and of a like aggregate principal amount and tenor
of different authorized denominations upon surrender to the
applicable trustee of the debt securities. In addition, subject
to any limitations imposed upon debt securities issued under an
Indenture in book-entry form, a holder may surrender the debt
securities to the trustee for conversion or registration of
transfer. Debt securities surrendered for conversion,
registration of transfer or exchange will be duly endorsed or
accompanied by a written instrument of transfer from the holder.
A holder will not have to pay a service charge for any
registration of transfer or exchange of any debt securities, but
we may require payment of a sum sufficient to cover any
applicable tax or other governmental charge.
If the prospectus supplement refers to any transfer agent, in
addition to the applicable trustee that we initially designated
with respect to any series of debt securities, we may at any
time rescind the designation of the transfer agent or approve a
change in the location through which the transfer agent acts,
except that we will be required to maintain a transfer agent in
each place of payment for the series. We may at any time
designate additional transfer agents with respect to any series
of debt securities issued under an Indenture.
Neither we nor the trustees under the Indentures will be
required to:
|
|
|
|
|
issue, register the transfer of or exchange debt securities of
any series during a period beginning at the opening of business
15 days before any selection of debt securities of that
series to be redeemed and ending at the close of business on the
day of mailing of the relevant notice of redemption,
|
|
|
|
register the transfer of or exchange any debt security, or
portion thereof, called for redemption, except the unredeemed
portion of any debt security being redeemed in part, or
|
|
|
|
issue, register the transfer of or exchange any debt security
that has been surrendered for repayment at the holders
option, except the portion, if any, of the debt security not to
be repaid.
|
Merger,
Consolidation or Sale
The Indentures generally provide that we may consolidate with,
or sell, lease or convey all or substantially all of our assets
to, or merge with or into, any other entity, provided that:
|
|
|
|
|
either we will be the continuing entity, or the successor entity
formed by or resulting from the consolidation or merger or that
will have received the transfer of the assets is an entity
organized and
|
7
|
|
|
|
|
existing under the laws of the United States or any state and
will expressly assume payment of the principal of, and any
premium or make-whole amount, if any, and interest on all of the
debt securities issued under the Indenture and the due and
punctual performance and observance of all of the covenants and
conditions contained in the Indenture,
|
|
|
|
|
|
immediately after giving effect to the transaction and treating
any resulting indebtedness that becomes our or any
subsidiarys obligation as having been incurred by us or
the subsidiary at the time of the transaction, no event of
default under the Indenture, and no event which, after notice or
the lapse of time, or both, would become an event of default,
will have occurred and be continuing, and
|
|
|
|
we receive an Officers Certificate and legal opinion as to
compliance with these conditions.
|
Covenants
Under the Senior Indenture
The Senior Indenture provides that we will not, and will not
permit any subsidiary to, incur any Debt (as defined below) if,
immediately after giving effect to the incurrence of the
additional Debt and the application of the proceeds from the
Debt, the aggregate principal amount of all of our outstanding
Debt on a consolidated basis determined in accordance with
generally accepted accounting principles is greater than 60% of
the sum of, without duplication:
|
|
|
|
|
our Total Assets (as defined below) as of the end of the
calendar quarter covered in our Annual Report on
Form 10-K
or Quarterly Report on
Form 10-Q,
as the case may be, most recently filed with the SEC, or, if the
filing is not permitted under the Exchange Act, with the
trustee, prior to the incurrence of the additional Debt, and
|
|
|
|
the purchase price of any real estate assets or mortgages
receivable acquired, and the amount of any securities offering
proceeds received, to the extent the proceeds were not used to
acquire real estate assets or mortgages receivable or used to
reduce Debt, by us or any subsidiary since the end of the
calendar quarter, including those proceeds obtained in
connection with the incurrence of the additional Debt.
|
In addition to the foregoing limitations on the incurrence of
Debt, the Senior Indenture provides that we will not, and will
not permit any subsidiary to, incur any Debt secured by any
mortgage, lien, charge, pledge, encumbrance or security interest
of any kind upon any of our or any subsidiarys property
if, immediately after giving effect to the incurrence of the
Debt and the application of the proceeds from the Debt, the
aggregate principal amount of all of our outstanding Debt on a
consolidated basis that is secured by any mortgage, lien,
charge, pledge, encumbrance or security interest on our or any
subsidiarys property is greater than 40% of our Total
Assets.
In addition to the foregoing limitations on the incurrence of
Debt, the Senior Indenture provides that we will not, and will
not permit any subsidiary to, incur any Debt if the ratio of
Consolidated Income Available for Debt Service (as defined
below) to the Annual Service Charge (as defined below) for the
four consecutive fiscal quarters most recently ended prior to
the date on which the additional Debt is to be incurred will
have been less than 1.5, on a pro forma basis after giving
effect to the Debt and to the application of the proceeds from
the Debt, and calculated on the assumption that:
|
|
|
|
|
the Debt and any other Debt incurred since the first day of the
four-quarter period and the application of the proceeds
therefrom, including to refinance other Debt, had occurred at
the beginning of the period,
|
|
|
|
our repayment or retirement of any other Debt since the first
day of the four-quarter period had been incurred, repaid or
retired at the beginning of the period, except that, in making
the computation, the amount of Debt under any revolving credit
facility will be computed based upon the average daily balance
of the Debt during the period,
|
|
|
|
in the case of Acquired Debt (as defined below) or Debt incurred
in connection with any acquisition since the first day of the
four-quarter period, the related acquisition had occurred as of
the first day of
|
8
|
|
|
|
|
the period with the appropriate adjustments with respect to the
acquisition being included in the pro forma calculation, and
|
|
|
|
|
|
in the case of our acquisition or disposition of any asset or
group of assets since the first day of the four-quarter period,
whether by merger, stock purchase or sale, or asset purchase or
sale, the acquisition or disposition or any related repayment of
Debt had occurred as of the first day of the period with the
appropriate adjustments with respect to the acquisition or
disposition being included in the pro forma calculation.
|
The Subordinated Indenture does not limit the incurrence of Debt.
The following terms used in the covenants summarized above have
the indicated meanings:
Acquired Debt means Debt of a person
(i) existing at the time the person becomes a subsidiary or
(ii) assumed in connection with the acquisition of assets
from the person, in each case, other than Debt incurred in
connection with, or in contemplation of, the person becoming a
subsidiary or the acquisition. Acquired Debt will be deemed to
be incurred on the date of the related acquisition of assets
from any person or the date the acquired person becomes a
subsidiary.
Annual Service Charge as of any date means the
maximum amount that is payable in any period for interest on,
and original issue discount of, our Debt and the amount of
dividends that are payable in respect of any Disqualified Stock
(as defined below).
Capital Stock means, with respect to any person, any
capital stock, including preferred stock, shares, interests,
participations or other ownership interests, however designated,
of the person and any rights (other than debt securities
convertible into or exchangeable for corporate stock), warrants
or options to purchase any capital stock.
Consolidated Income Available for Debt Service for
any period means Funds From Operations (as defined below) plus
amounts that have been deducted for interest on Debt.
Debt of United Dominion or any subsidiary means any
indebtedness of United Dominion, or any subsidiary, whether or
not contingent, in respect of, without duplication:
|
|
|
|
|
borrowed money or evidenced by bonds, notes, debentures or
similar instruments,
|
|
|
|
indebtedness secured by any mortgage, pledge, lien, charge,
encumbrance or any security interest existing on property owned
by United Dominion or any subsidiary,
|
|
|
|
the reimbursement obligations, contingent or otherwise, in
connection with any letters of credit actually issued or amounts
representing the balance deferred and unpaid of the purchase
price of any property or services, except any balance that
constitutes an accrued expense or trade payable, or all
conditional sale obligations or obligations under any title
retention agreement,
|
|
|
|
the principal amount of all obligations of United Dominion or
any subsidiary with respect to redemption, repayment or other
repurchase of any Disqualified Stock, or
|
|
|
|
any lease of property by United Dominion or any subsidiary as
lessee that is reflected on United Dominions consolidated
balance sheet as a capitalized lease in accordance with
generally accepted accounting principles to the extent, in the
case of items of indebtedness under the first three bullet
points above, that any of the items, other than letters of
credit, would appear as a liability on United Dominions
consolidated balance sheet in accordance with generally accepted
accounting principles, and also includes, to the extent not
otherwise included, any obligation of United Dominion or any
subsidiary to be liable for, or to pay, as obligor, guarantor or
otherwise, other than for purposes of collection in the ordinary
course of business, debt of another person, other than United
Dominion or any subsidiary.
|
Debt will be deemed to be incurred by us or any subsidiary
whenever we or a subsidiary creates, assumes, guarantees or
otherwise becomes liable for that Debt.
9
Disqualified Stock means, with respect to any
person, any capital stock of the person that by the terms of the
capital stock, or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable, upon
the happening of any event or otherwise:
|
|
|
|
|
matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise,
|
|
|
|
is convertible into or exchangeable or exercisable for Debt or
Disqualified Stock, or
|
|
|
|
is redeemable at the option of the holder thereof, in whole or
in part, in each case on or prior to the Stated Maturity of the
series of debt securities.
|
Funds From Operations for any period means income
before gains or losses on investments and extraordinary items
plus amounts that have been deducted, and minus amounts that
have been added, for the following items, without duplication:
|
|
|
|
|
provision for preferred stock dividends,
|
|
|
|
provision for property depreciation and amortization, and
|
|
|
|
the effect of any adjustments for significant non-recurring
items, including any noncash charge resulting from a change in
accounting principles in determining income before gains or
losses on investments and extraordinary items for the period, as
reflected in our financial statements for the period determined
on a consolidated basis in accordance with generally accepted
accounting principles.
|
Total Assets as of any date means the sum of:
|
|
|
|
|
our Undepreciated Real Estate Assets, and
|
|
|
|
all of our other assets determined in accordance with generally
accepted accounting principles, but excluding intangibles.
|
Undepreciated Real Estate Assets as of any date
means the original cost plus capital improvements of our real
estate assets on the date, before depreciation and amortization
determined on a consolidated basis in accordance with generally
accepted accounting principles.
Except as described above, the Indentures do not contain any
provisions that would limit our ability to incur indebtedness or
that would afford holders of the debt securities protection in
the event of a highly leveraged or similar transaction involving
us or in the event of a change of control. However, our Articles
of Restatement, referred to in this prospectus as our charter,
contains ownership and transfer restrictions relating to our
stock that are designed primarily to preserve our status as a
REIT for U.S. federal income tax purposes. The Code
generally provides that concentration of more than 50% in value
of direct or indirect ownership of our stock in five or fewer
individual stockholders during the last six months of any year,
or ownership of our stock by fewer than 100 persons on more than
a limited number of days during any taxable year, will result in
our disqualification as a REIT for such purposes. Provisions of
our charter that are intended to prevent concentration of
ownership may prevent or hinder a change of control. You should
refer to the applicable prospectus supplement for information
with respect to any deletions from, modifications of or
additions to the events of default or covenants of United
Dominion that are described in this section, including any
addition of a covenant or other provision providing event risk
or similar protection.
Covenants
Under Both Indentures
Each Indenture includes the following covenants:
Existence. Except as described above under
Merger, Consolidation or Sale, we will do or cause
to be done all things necessary to preserve and keep in full
force and effect our existence, rights, both under our charter
and statutory, and franchises. However, we will not be required
to preserve any right or franchise if our board of directors
determines that its preservation is no longer desirable in the
conduct of our business and the business of our subsidiaries as
a whole and that the loss thereof is not disadvantageous in any
material respect to the holders of the debt securities of any
series.
10
Maintenance of Properties. We will cause all
of our properties used or useful in the conduct of our business
or the business of any subsidiary to be maintained and kept in
good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements
thereof, all as in our judgment may be necessary so that our
business may be properly and advantageously conducted at all
times. However, we will not be prevented from selling or
otherwise disposing of for value our properties in the ordinary
course of business.
Insurance. We will, and will cause each of our
subsidiaries to, keep all of our insurable properties insured
against loss or damage in an amount at least equal to their then
full insurable value with financially sound and reputable
insurance companies.
Payment of Taxes and Other Claims. We will pay
or discharge or cause to be paid or discharged, before the same
becomes delinquent:
|
|
|
|
|
all taxes, assessments and governmental charges levied or
imposed upon us or any subsidiary or upon our or any
subsidiarys income, profits or property, and
|
|
|
|
all lawful claims for labor, materials and supplies that, if
unpaid, might by law become a lien upon our or any
subsidiarys property.
|
However, we will not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
Provision of Financial Information. Whether or
not we are subject to Sections 13 or 15(d) of the Exchange
Act, we will, to the extent permitted under the Exchange Act,
file with the SEC the annual reports, quarterly reports and
other documents that we would have been required to file with
the SEC pursuant to Sections 13 and 15(d) if we were
subject to those Sections. We will also in any event:
|
|
|
|
|
within 15 days of each required filing date
|
|
|
|
|
|
transmit by mail to all holders of debt securities, as their
names and addresses appear in the security register, without
cost to the holders, copies of the annual reports and quarterly
reports that we would have been required to file with the SEC
pursuant to Sections 13 or 15(d) of the Exchange Act if we
were subject to those Sections, and
|
|
|
|
file with the trustee copies of the annual reports, quarterly
reports and other documents that we would have been required to
file with the SEC pursuant to Sections 13 or 15(d) of the
Exchange Act if we were subject to those Sections, and
|
|
|
|
|
|
if our filing the documents with the SEC is not permitted under
the Exchange Act, promptly upon written request and payment of
the reasonable cost of duplication and delivery, supply copies
of the documents to any prospective holder.
|
Events of
Default, Notice and Waiver
Each Indenture provides that the following events are
events of default with respect to any issued series
of debt securities:
|
|
|
|
|
default for 30 days in the payment of any installment of
interest or additional amounts payable on any debt security of
the series,
|
|
|
|
default in the payment of the principal of, or any premium or
make-whole amount on any debt security of the series at its
maturity,
|
|
|
|
default in making any sinking fund payment as required for any
debt security of the series,
|
|
|
|
default in the performance of any other covenant of United
Dominion contained in the Indenture, other than a covenant added
to the Indenture solely for the benefit of a series of debt
securities issued under
|
11
|
|
|
|
|
the Indenture other than the series, continued for 60 days
after written notice as provided in the Indenture,
|
|
|
|
|
|
default under any bond, debenture, note, mortgage, indenture or
instrument under which there may be issued or by which there may
be secured or evidenced any indebtedness for money borrowed by
us, or by any subsidiary, the repayment of which we have
guaranteed or for which we are directly responsible or liable as
obligor or guarantor, having an aggregate principal amount
outstanding of at least $10,000,000, whether the indebtedness
now exists or will later be created, which default will have
resulted in the indebtedness being declared due and payable
prior to the date on which it would otherwise have become due
and payable, without the acceleration having been rescinded or
annulled within 10 days after written notice as provided in
the Indenture,
|
|
|
|
the entry by a court of competent jurisdiction of one or more
judgments, orders or decrees against us or any subsidiary in an
aggregate amount, excluding amounts covered by insurance, in
excess of $10,000,000 and those judgments, orders or decrees
remain undischarged, unstayed and unsatisfied in an aggregate
amount, excluding amounts covered by insurance, in excess of
$10,000,000 for a period of 30 consecutive days,
|
|
|
|
certain events of bankruptcy, insolvency or reorganization, or
court appointment of a receiver, liquidator or trustee of United
Dominion or any significant subsidiary or for all or
substantially all of either of their properties, and
|
|
|
|
any other event of default provided with respect to the series
of debt securities.
|
The term significant subsidiary means each
significant subsidiary, as defined in
Regulation S-X
promulgated under the Securities Act, of United Dominion.
If an event of default under either Indenture with respect to
debt securities of any series at the time outstanding occurs and
is continuing, then in every case the trustee or the holders of
not less than 25% in principal amount of the outstanding debt
securities of that series may declare the principal amount, or,
if the debt securities of that series are original issue
discount securities or indexed securities, the portion of the
principal amount as may be specified in their terms, of, and any
make-whole amount on, all of the debt securities of that series
to be due and payable immediately by written notice to us, and
to the trustee if given by the holders. However, at any time
after the declaration of acceleration with respect to debt
securities of the series, or of all debt securities then
outstanding under the applicable Indenture, as the case may be,
has been made, but before a judgment or decree for payment of
the money due has been obtained by the trustee, the holders of
not less than a majority in principal amount of the outstanding
debt securities of the series, or of all debt securities then
outstanding under the applicable Indenture, as the case may be,
may rescind and annul the declaration and its consequences if:
|
|
|
|
|
we will have deposited with the trustee all required payments of
the principal of and any premium or make-whole amount and
interest, and any additional amounts, on the debt securities of
the series, or of all debt securities then outstanding under the
applicable Indenture, as the case may be, plus certain fees,
expenses, disbursements and advances of the trustee, and
|
|
|
|
all events of default, other than the nonpayment of accelerated
principal, or specified portion thereof and any premium or
make-whole amount, or interest, with respect to the debt
securities of the series, or of all debt securities then
outstanding under the applicable Indenture, as the case may be,
have been cured or waived as provided in the Indenture.
|
Each Indenture also provides that the holders of not less than a
majority in principal amount of the outstanding debt securities
of any series, or of all debt securities then outstanding under
the applicable Indenture, as the case may be, may waive any past
default with respect to the series and its consequences, except
a default:
|
|
|
|
|
in the payment of the principal of, or any premium or make-whole
amount, or interest or additional amounts payable on any debt
security of the series, or
|
12
|
|
|
|
|
in respect of a covenant or provision contained in the
applicable Indenture that cannot be modified or amended without
the consent of the holder of each affected outstanding debt
security.
|
Each trustee is required to give notice to the holders of debt
securities within 90 days of a default under the applicable
Indenture. However, the trustee may withhold notice to the
holders of any series of debt securities of any default with
respect to that series, except a default in the payment of the
principal of, or any premium or make-whole amount, or interest
or additional amounts payable, on any debt security of the
series or in the payment of any sinking fund installment in
respect of any debt security of the series, if the trustee
considers the withholding to be in the interest of the holders.
Each Indenture provides that no holders of debt securities of
any series may institute any proceedings, judicial or otherwise,
with respect to the Indenture or for any remedy thereunder,
except in the case of failure of the trustee for 60 days to
act after it has received a written request to institute
proceedings in respect of an event of default from the holders
of not less than 25% in principal amount of the outstanding debt
securities of the series, as well as an offer of reasonable
indemnity. This provision will not prevent, however, any holder
of debt securities from instituting suit for the enforcement of
payment of the principal of, and any premium or make-whole
amount, interest on and additional amounts payable with respect
to, the debt securities at their respective due dates.
Modification
of the Indentures
We and the applicable trustee may modify and amend either
Indenture with the consent of the holders of not less than a
majority in principal amount of all outstanding debt securities
issued under the Indenture affected by the modification or
amendment. However, we must have the consent of the holders of
all affected outstanding debt securities to:
|
|
|
|
|
change the stated maturity of the principal of, or any premium
or make-whole amount, or any installment of principal of or
interest or additional amounts payable on, any debt security,
|
|
|
|
reduce the principal amount of, or the rate or amount of
interest on, or any premium or make-whole amount payable on
redemption of, or any additional amounts payable with respect
to, any debt security, or reduce the amount of principal of an
original issue discount security or make-whole amount, if any,
that would be due and payable upon declaration of acceleration
of its maturity or would be provable in bankruptcy, or adversely
affect any right of repayment of the holder of any debt security,
|
|
|
|
change the place of payment, or the coin or currency, for
payment of principal of, and any premium or make-whole amount,
or interest on, or any additional amounts payable with respect
to, a debt security,
|
|
|
|
impair the right to institute suit for the enforcement of any
payment on or with respect to any debt security,
|
|
|
|
reduce the percentage of outstanding debt securities of any
series necessary to modify or amend the applicable Indenture, to
waive compliance with any provisions of that Indenture or any
defaults and consequences thereunder or to reduce the quorum or
voting requirements set forth in the Indenture, or
|
|
|
|
modify any of the foregoing provisions or any of the provisions
relating to the waiver of certain past defaults or certain
covenants, except to increase the required percentage to effect
the action or to provide that certain other provisions may not
be modified or waived without the consent of the holder of the
debt security.
|
The holders of not less than a majority in principal amount of
outstanding debt securities issued under either Indenture have
the right to waive our compliance with some covenants in the
Indenture.
Subordination
Upon any distribution to our creditors in a liquidation,
dissolution, reorganization or similar proceeding, the payment
of the principal of and interest on subordinated debt securities
issued under the Subordinated Indenture will be subordinated to
the extent provided in the Subordinated Indenture in right of
payment to the
13
prior payment in full of all senior debt. Our obligation to make
payment of the principal and interest on the subordinated debt
securities will not otherwise be affected.
No payment of principal or interest may be made on the
subordinated debt securities at any time if a default on senior
debt exists that permits the holders of the senior debt to
accelerate its maturity and the default is the subject of
judicial proceedings or we receive notice of the default. After
all senior debt is paid in full and until the subordinated debt
securities are paid in full, holders will be subrogated to the
rights of holders of senior debt to the extent that
distributions otherwise payable to holders have been applied to
the payment of senior debt. By reason of this subordination, in
the event of a distribution of assets upon insolvency, certain
of our general creditors may recover more, ratably, than holders
of the subordinated debt securities.
Senior debt is defined in the Subordinated Indenture as the
principal of and interest on, or substantially similar payments
to be made by United Dominion in respect of, the following,
whether outstanding at the date of execution of the Subordinated
Indenture or thereafter incurred, created or assumed:
|
|
|
|
|
our indebtedness for money borrowed or represented by
purchase-money obligations,
|
|
|
|
our indebtedness evidenced by notes, debentures, or bonds, or
other securities issued under the provisions of an indenture,
fiscal agency agreement or other instrument,
|
|
|
|
our obligations as lessee under leases of property either made
as part of any sale and lease-back transaction to which we are a
party or otherwise,
|
|
|
|
indebtedness of partnerships and joint ventures that is included
in our consolidated financial statements,
|
|
|
|
indebtedness, obligations and liabilities of others in respect
of which we are liable contingently or otherwise to pay or
advance money or property or as guarantor, endorser or otherwise
or which we have agreed to purchase or otherwise
acquire, and
|
|
|
|
any binding commitment of us to fund any real estate investment
or to fund any investment in any entity making a real estate
investment, in each case other than the following:
|
|
|
|
|
|
any indebtedness, obligation or liability referred to in the
above bullet points as to which, in the instrument creating or
evidencing the same pursuant to which the same is outstanding,
it is provided that the indebtedness, obligation or liability is
not superior in right of payment to the subordinated debt
securities or ranks pari passu with the subordinated debt
securities,
|
|
|
|
any indebtedness, obligation or liability that is subordinated
to indebtedness of United Dominion to substantially the same
extent as or to a greater extent than the subordinated debt
securities are subordinated, and
|
|
|
|
the subordinated debt securities.
|
At December 31, 2005, our senior unsecured debt aggregated
approximately $1.8 billion.
Discharge,
Defeasance and Covenant Defeasance
Under each Indenture, we may discharge certain obligations to
holders of any series of debt securities issued under the
Indenture that have not already been delivered to the applicable
trustee for cancellation and that either have become due and
payable or will become due and payable within one year, or
scheduled for redemption within one year, by irrevocably
depositing with the applicable trustee, in trust, funds in the
currency or currencies, currency unit or units or composite
currency or currencies in which the debt securities are payable
in an amount sufficient to pay the entire indebtedness on the
debt securities in respect of principal, and any premium or
make-whole amount, and interest and any additional amounts
payable to the date of the deposit, if the debt securities have
become due and payable, or to the stated maturity or redemption
date, as the case may be.
14
Each Indenture provides that, if the provisions of its
Article Fourteen are made applicable to the debt securities
of or within any series pursuant the Indenture, we may elect:
|
|
|
|
|
defeasance, which is to defease and be discharged
from any and all obligations with respect to the debt
securities, except for the obligation to pay additional amounts,
if any, upon the occurrence of certain events of tax, assessment
or governmental charge with respect to payments on the debt
securities and the obligations to register the transfer or
exchange of the debt securities, to replace temporary or
mutilated, destroyed, lost or stolen debt securities, to
maintain an office or agency in respect of the debt securities
and to hold moneys for payment in trust, or
|
|
|
|
covenant defeasance, which is to be released from
our obligations with respect to the debt securities under
provisions of each Indenture described under Covenants
Under the Senior Indenture and Covenants Under Both
Indentures above, or, if provided pursuant to
Section 301 of each Indenture, our obligations with respect
to any other covenant, and any omission to comply with the
obligations will not constitute a default or an event or default
with respect to the debt securities issued under the Indenture.
|
In either case upon our irrevocable deposit with the applicable
trustee, in trust, of an amount, in the currency or currencies,
currency unit or currency units or composite currency or
currencies in which the debt securities are payable at stated
maturity, or Government Obligations (as defined below), or both,
applicable to the debt securities that through the scheduled
payment of principal and interest in accordance with their terms
will provide money in an amount sufficient to pay the principal
of, and any premium or make-whole amount, and interest on the
debt securities, and any mandatory sinking fund or analogous
payments thereon, on the scheduled due dates therefor.
Such a trust may only be established if, among other things, we
have delivered to the applicable trustee an opinion of counsel,
as specified in each Indenture, to the effect that the holders
of the debt securities will not recognize income, gain or loss
for U.S. federal income tax purposes as a result of the
defeasance or covenant defeasance and will be subject to
U.S. federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if the
defeasance or covenant defeasance had not occurred. In the case
of defeasance, the opinion of counsel must refer to and be based
upon a ruling of the Internal Revenue Service or a change in
applicable U.S. federal income tax laws occurring after the
date of the Indenture.
Government Obligations means securities that are:
|
|
|
|
|
direct obligations of the United States of America or the
government that issued the foreign currency in which the debt
securities of a particular series are payable, for the payment
of which its full faith and credit is pledged, or
|
|
|
|
obligations of a person controlled or supervised by and acting
as an agency or instrumentality of the United States of America
or the government that issued the foreign currency in which the
debt securities of the series are payable, the payment of which
is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or any other
government, which, in either case, are not callable or
redeemable at the option of the issuer, and will also include a
depository receipt issued by a bank or trust company as
custodian with respect to any Government Obligation or a
specific payment of interest on or principal of any Government
Obligation held by the custodian for the account of the holder
of a depository receipt, provided that, except as required by
law, the custodian is not authorized to make any deduction from
the amount payable to the holder of the depository receipt from
any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or
principal of the Government Obligation evidenced by the
depository receipt.
|
15
Unless otherwise provided in the prospectus supplement, if after
we have deposited funds and/or Government Obligations to effect
defeasance or covenant defeasance with respect to debt
securities of any series issued under an Indenture:
|
|
|
|
|
the holder of a debt security of the series is entitled to, and
does, elect pursuant to Section 301 of the Indenture or the
terms of the debt security to receive payment in a currency,
currency unit or composite currency other than that in which the
deposit has been made in respect of the debt security, or
|
|
|
|
a Conversion Event (as defined below) occurs in respect of the
currency, currency unit or composite currency in which the
deposit has been made, the indebtedness represented by the debt
security will be deemed to have been, and will be, fully
discharged and satisfied through the payment of the principal
of, and any premium or make-whole amount, and interest on the
debt security as they become due out of the proceeds yielded by
converting the amount deposited in respect of the debt security
into the currency, currency unit or composite currency in which
the debt security becomes payable as a result of the election or
cessation of usage based on the applicable market exchange rate.
|
Conversion Event means the cessation of use of:
|
|
|
|
|
a currency, currency unit or composite currency, other than the
ECU or other currency unit, both by the government of the
country that issued the currency and for the settlement of
transactions by a central bank or other public institutions of
or within the international banking community,
|
|
|
|
the ECU both within the European Monetary System and for the
settlement of transactions by public institutions of or within
the European Communities, or
|
|
|
|
any currency unit or composite currency other than the ECU for
the purposes for which it was established.
|
Unless otherwise provided in the prospectus supplement, all
payments of principal of, and any premium or make-whole amount,
and interest on any debt security issued under an Indenture that
is payable in a foreign currency that ceases to be used by its
government of issuance will be made in United States dollars.
If we effect covenant defeasance with respect to any debt
securities and those debt securities are declared due and
payable because of the occurrence of any event of default, the
amount in the currency, currency unit or composite currency in
which the debt securities are payable, and Government
Obligations on deposit with the trustee, will be sufficient to
pay amounts due on the debt securities at the time of their
stated maturity but may not be sufficient to pay amounts due on
the debt securities at the time of the acceleration resulting
from the event of default. This situation will not apply in the
case of an event of default described in the fourth bullet point
under Events of Default, Notice and Waiver of either
Indenture, which sections would no longer be applicable to the
debt securities or described in the last bullet point under
Events of Default, Notice and Waiver with respect to
a covenant as to which there has been covenant defeasance.
However, we would remain liable to make payment of the amounts
due at the time of acceleration.
The prospectus supplement may further describe the provisions,
if any, permitting defeasance or covenant defeasance, including
any modifications to the provisions described above, with
respect to the debt securities of or within a particular series.
Book-Entry
System
We may issue debt securities of a series as one or more fully
registered global securities. We will deposit the global
securities with, or on behalf of, a depository bank identified
in the prospectus supplement relating to the series. We will
register the global securities in the name of the depository
bank or its nominee. In that case, one or more global securities
will be issued in a denomination or aggregate denominations
equal to the aggregate principal amount of outstanding debt
securities of the series represented by the global security or
securities. Until any global security is exchanged in whole or
in part for debt securities in definitive certificated form, the
depository bank or its nominee may not transfer the global
certificate except to each other, another nominee or to their
successors and except as described in the applicable prospectus
supplement.
16
The prospectus supplement will describe the specific terms of
the depository arrangement with respect to a series of debt
securities that a global security will represent. We anticipate
that the following provisions will apply to all depository
arrangements.
Upon the issuance of any global security, and the deposit of the
global security with or on behalf of the depository bank for the
global security, the depository bank will credit, on its
book-entry registration and transfer system, the respective
principal amounts of the debt securities represented by the
global security to the accounts of institutions, also referred
to as participants, that have accounts with the
depository bank or its nominee. The accounts to be credited will
be designated by the underwriters or agents engaging in the
distribution or placement of the debt securities or by us, if we
offer and sell the debt securities directly. Ownership of
beneficial interests in the global security will be limited to
participants or persons that may hold interests through
participants.
Ownership of beneficial interests by participants in the global
security will be shown by book-keeping entries on, and the
transfer of that ownership interest will be effected only
through book-keeping entries to, records maintained by the
depository bank or its nominee for the global security.
Ownership of beneficial interests in the global security by
persons that hold through participants will be shown by
book-keeping entries on, and the transfer of that ownership
interest among or through the participants will be effected only
through book-keeping entries to, records maintained by the
participants.
The laws of some jurisdictions require that some of the
purchasers of securities take physical delivery of the
securities in definitive certificated form rather than
book-entry form. Such laws may impair the ability to own,
transfer or pledge beneficial interests in any global security.
So long as the depository bank for a global security or its
nominee is the registered owner of the global security, the
depository bank or the nominee, as the case may be, will be
considered the sole owner or holder of the debt securities
represented by the global security for all purposes under the
Indenture. Except as described below or otherwise specified in
the applicable prospectus supplement, owners of beneficial
interests in a global security:
|
|
|
|
|
will not be entitled to have debt securities of the series
represented by the global security registered in their names,
|
|
|
|
will not receive or be entitled to receive physical delivery of
debt securities of the series in definitive certificated
form, and
|
|
|
|
will not be considered the holders thereof for any purposes
under the applicable indenture.
|
Accordingly, each person owning a beneficial interest in the
global security must rely on the procedures of the depository
bank and, if the person is not a participant, on the procedures
of the participant through which the person directly or
indirectly owns its interest, to exercise any rights of a holder
under the applicable indenture. The depository bank may grant
proxies and otherwise authorize participants to give or take any
request, demand, authorization, direction, notice, consent,
waiver or other action that a holder is entitled to give or take
under the indenture.
We understand that under existing industry practices, if we
request any action of holders or any owner of a beneficial
interest in the global security desires to give any notice or
take any action that a holder is entitled to give or take under
the indenture, the depository bank for the global security would
authorize the participants holding the relevant beneficial
interest to give notice or take action, and the participants
would authorize beneficial owners owning through the
participants to give notice or take action or would otherwise
act upon the instructions of beneficial owners owning through
them.
Principal and any premium and interest payments on debt
securities represented by a global security registered in the
name of a depository bank or its nominee will be made to the
depository bank or its nominee, as the case may be, as the
registered owner of the global security. None of us, the trustee
or any paying agent for the debt securities will have any
responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests in any global security or for maintaining, supervising
or reviewing any records relating to the beneficial ownership
interests.
17
We expect that the depository bank for any series of debt
securities represented by a global security, upon receipt of any
payment of principal, premium or interest, will credit
immediately participants accounts with payments in amounts
proportionate to their respective beneficial interests in the
principal amount of the global security as shown on the records
of the depository bank. We also expect that payments by
participants to owners of beneficial interests in the global
security or securities held through the participants will be
governed by standing instructions and customary practices, as is
now the case with securities held for the accounts of customers
registered in street name, and will be the
responsibility of the participants.
If the depository bank for any series of debt securities
represented by a global security is at any time unwilling or
unable to continue as depository bank and we do not appoint a
successor depository bank within 90 days, we will issue the
debt securities in definitive certificated form in exchange for
the global security. In addition, we may at any time and in our
sole discretion determine not to have the debt securities of a
series represented by one or more global securities and, in that
event, will issue debt securities of the series in definitive
certificated form in exchange for the global security
representing the series of debt securities.
Debt securities of the series issued in definitive certificated
form will, except as described in the applicable prospectus
supplement, be issued in denominations of $1,000 and integral
multiples thereof and will be issued in registered form.
Trustees
U.S. Bank National Association (formerly Wachovia Bank,
National Association) is the trustee under the Senior Indenture.
SunTrust Bank is the trustee under the Subordinated Indenture,
as well as the indenture dated December 19, 2005 relating
to our 4.00% Convertible Senior Notes due 2035. Both
U.S. Bank and SunTrust Bank have lending relationships with
us.
DESCRIPTION
OF PREFERRED STOCK
The following description sets forth general terms and
provisions of our preferred stock. Specific terms of any series
of preferred stock offered by a prospectus supplement will be
described in that prospectus supplement. You should review our
charter for a more complete description of the preferences,
limitations and relative rights of a particular series of
preferred stock.
General
We are authorized to issue 50,000,000 shares of preferred
stock, without par value. The preferred stock is issuable in
series designated by our board of directors, without further
stockholder action and pursuant to our charter, with the
designations, preferences, terms, rights, restrictions,
limitations, qualifications, terms and conditions of redemption
and other relative rights as our board of directors may approve.
We currently have four designated series of preferred stock:
8.60% Series B Cumulative Redeemable Preferred Stock,
Series C Junior Participating Cumulative Redeemable
Preferred Stock, Series E Cumulative Convertible Preferred
Stock and Series F Preferred Stock. At December 31,
2005, there were outstanding 5,416,009 shares of
Series B Preferred Stock and 2,803,812 shares of
Series E Preferred Stock. No shares of Series C
Preferred Stock or Series F Preferred Stock have been
issued. We will not issue any shares of Series C Preferred
Stock except upon the exercise of rights as described below
under Description of Common Stock Preferred
Stock Purchase Rights. We will not issue additional shares
of any outstanding series of preferred stock.
Our preferred stock will have the dividend, liquidation,
redemption, conversion and voting rights described below unless
otherwise provided in the prospectus supplement relating to a
particular series of preferred stock. In an offering of a series
of our preferred stock, the prospectus supplement will provide
specific terms of the series, including:
|
|
|
|
|
the title and liquidation preference per share of the preferred
stock and the number of shares offered,
|
|
|
|
the price at which the series will be issued,
|
18
|
|
|
|
|
the dividend rate or method of its calculation, the dates on
which dividends will be payable and the dates from which
dividends will commence to accumulate,
|
|
|
|
any redemption or sinking fund provisions of the series,
|
|
|
|
any conversion provisions of the series, and
|
|
|
|
any additional dividend, liquidation, redemption, sinking fund
and other rights, preferences, privileges, limitations and
restrictions of the series.
|
Our preferred stock will, when issued, be fully paid and
nonassessable. Unless otherwise specified in the prospectus
supplement relating to a particular series of preferred stock,
each series will rank on a parity as to dividends and
distributions in the event of a liquidation with each other
series of preferred stock and, in all cases, will be senior to
the common stock.
Dividend
Rights
Holders of preferred stock of each series will be entitled to
receive, when declared by our board of directors, cash dividends
at the rates and on the dates as set forth in the prospectus
supplement relating to the series of preferred stock. The rate
may be fixed or variable or both and may be cumulative,
noncumulative or partially cumulative.
If the prospectus supplement provides, as long as any shares of
preferred stock are outstanding, no dividends will be declared
or paid or any distributions be made on the common stock unless
the accrued dividends on each series of preferred stock have
been fully paid or declared and set apart for payment and we
will have set apart all amounts, if any, required to be set
apart for all sinking funds, if any, for each series of
preferred stock.
If the prospectus supplement so provides, when dividends are not
paid in full upon any series of preferred stock and any other
series of preferred stock ranking on a parity as to dividends
with the series of preferred stock, all dividends declared upon
the series of preferred stock and any other series of preferred
stock ranking on a parity as to dividends will be declared pro
rata so that the amount of dividends declared per share on the
series of preferred stock and the other series will in all cases
bear to each other the same ratio that accrued dividends per
share on the series of preferred stock and the other series bear
to each other.
Each series of preferred stock will be entitled to dividends as
described in the prospectus supplement relating to the series,
which may be based upon one or more methods of determination.
Different series of preferred stock may be entitled to dividends
at different dividend rates or based upon different methods of
determination. Except as provided in the applicable prospectus
supplement, no series of preferred stock will be entitled to
participate in our earnings or assets.
Rights
Upon Liquidation
In the event of any voluntary or involuntary liquidation,
dissolution or winding up of United Dominion, the holders of
each series of preferred stock will be entitled to receive out
of our assets available for distribution to stockholders the
amount stated or determined on the basis set forth in the
prospectus supplement relating to the series. This distribution
may include accrued dividends, if the liquidation, dissolution
or winding up is involuntary. If the liquidation, dissolution or
winding up is voluntary, the distribution may equal the current
redemption price per share provided for the series set forth in
the prospectus supplement, otherwise than for the sinking fund,
if any, provided for the series. Any preferential basis for the
distribution will be set forth in the prospectus supplement.
If, upon any voluntary or involuntary liquidation, dissolution
or winding up of United Dominion, the amounts payable with
respect to preferred stock of any series and any other shares of
our stock ranking as to any such distribution on a parity with
the series of preferred stock are not paid in full, the holders
of preferred stock of the series and of the other shares will
share ratably in any distribution of our assets in proportion to
the full respective preferential amounts to which they are
entitled or on such other basis as is set forth in the
applicable prospectus supplement. The rights, if any, of the
holders of any series of preferred stock to
19
participate in our remaining assets after the holders of other
series of preferred stock have been paid their respective
specified liquidation preferences upon any liquidation,
dissolution or winding up of United Dominion will be described
in the prospectus supplement relating to the series.
Redemption
A series of preferred stock may be redeemable, in whole or in
part, at our option, and may be subject to mandatory redemption
pursuant to a sinking fund, in each case upon terms, at the
times, the redemption prices and for the types of
consideration set forth in the prospectus supplement relating to
the series. The prospectus supplement relating to a series of
preferred stock that is subject to mandatory redemption will
specify the number of shares of the series that we will redeem
in each year commencing after a specified date at a specified
redemption price per share, together with an amount equal to any
accrued and unpaid dividends to the date of redemption.
If, after giving notice of redemption to the holders of a series
of preferred stock, we deposit with a designated bank funds
sufficient to redeem the preferred stock, then from and after
the deposit, all shares called for redemption will no longer be
outstanding for any purpose, other than the right to receive the
redemption price and the right to convert the shares into other
classes of our capital stock. The prospectus supplement will set
forth the redemption price relating to a particular series of
preferred stock.
Except as indicated in the applicable prospectus supplement, the
preferred stock is not subject to any mandatory redemption at
the option of the holder.
Sinking
Fund
The prospectus supplement for any series of preferred stock will
state the terms, if any, of a sinking fund for the purchase or
redemption of that series.
Conversion
Rights
The prospectus supplement for any series of preferred stock will
state the terms, if any, on which shares of that series are
convertible into shares of common stock or another series of
preferred stock. The preferred stock will have no preemptive
rights.
Voting
Rights
The prospectus supplement relating to a particular series of
preferred stock will set forth any voting rights applicable to
that series.
Restrictions
on Ownership and Transfer
Our charter contains ownership and transfer restrictions
relating to our stock that are designed primarily to preserve
our status as a REIT. These restrictions, which apply to our
preferred stock and our common stock, include the ownership and
transfer restrictions discussed in more detail below under
Description of Common Stock Restrictions on
Ownership and Transfer.
Transfer
Agent and Registrar
The prospectus supplement will state our selection for the
transfer agent, registrar and dividend disbursement agent for a
series of preferred stock. The registrar for shares of preferred
stock will send notices to preferred stockholders of any
meetings at which holders of preferred stock have the right to
vote on any matter.
DESCRIPTION
OF COMMON STOCK
The following is a summary of some of the important terms of our
common stock. The following discussion also summarizes some of
the terms of our preferred stock, our stockholder rights plan
and Maryland
20
law. None of these summaries or descriptions is complete and all
of them are qualified by reference to our charter, bylaws and
stockholder rights plan and the applicable provisions of
Maryland law. You should review the applicable Maryland law as
well as our charter, bylaws and stockholder rights plan for a
more complete description of our common stock.
General
We are authorized to issue 250,000,000 shares of common
stock, $0.01 par value per share. As of December 31,
2005, there were 134,012,053 shares of our common stock
issued and outstanding and 23,833,710 shares of our common
stock reserved for issuance upon exercise of outstanding stock
options, convertible notes, convertible preferred stock and
operating partnership units exchangeable for our common stock.
Voting
Rights
Holders of our common stock have one vote per share and are not
entitled to cumulate votes in the election of directors. The
holders of our outstanding Series E Preferred Stock are
entitled to vote on an as converted (one-for-one)
basis as a single class in combination with the holders of our
common stock at any meeting of stockholders for the election of
directors or for any other purpose on which holders of our
common stock are entitled to vote. If we issue shares of our
Series F Preferred Stock, the holders thereof will be
entitled to one vote for each share of the Series F
Preferred Stock they hold, voting together with the holders of
our common stock, on each matter submitted to a vote of
securityholders at a meeting of our stockholders.
Dividends
Holders of our common stock are entitled to receive dividends
if, when and as declared by our board of directors out of
legally available funds after payment of, or provision for, full
cumulative dividends on shares of our preferred stock then
outstanding. In the event of our voluntary or involuntary
liquidation or dissolution, holders of our common stock are
entitled to share ratably in our distributable assets remaining
after satisfaction of the prior preferential rights of our
preferred stock and the satisfaction of all of our debts and
liabilities. Holders of our common stock do not have preemptive
rights.
The dividend and liquidation rights of holders of our common
stock are specifically limited by the terms of the outstanding
preferred stock, which in general provide that no dividends will
be declared or paid on the common stock unless the accrued
dividends on each series of outstanding preferred stock have
been fully paid or declared and set apart for payment, and that
in the event of any liquidation, dissolution or winding up of
our company, the holders of each series of outstanding preferred
stock will be entitled to receive out of our assets available
for distribution to stockholders the liquidation preference of
that series before any amount is distributed to holders of
common stock.
Certain
Maryland Law Provisions
As a Maryland corporation, we are subject to certain
restrictions concerning certain business
combinations (including a merger, consolidation, share
exchange or, in certain circumstances, an asset transfer or
issuance or reclassification of equity securities) between us
and an interested stockholder. Interested
stockholders are persons: (i) who beneficially own 10% or
more of the voting power of our outstanding voting stock, or
(ii) who are affiliates or associates of us who, at any
time within the two-year period prior to the date in question,
were the beneficial owners of 10% or more of the voting power of
our outstanding stock. Such business combinations are prohibited
for five years after the most recent date on which the
interested stockholder became an interested stockholder.
Thereafter, any such business combination must be recommended by
the board of directors and approved by the affirmative vote of
at least: (i) 80% of the votes entitled to be cast by
holders of the outstanding voting shares voting together as a
single voting group, and (ii) two-thirds of the votes
entitled to be cast by holders of the outstanding voting shares
other than voting shares held by the interested stockholder or
an affiliate or associate of the interested stockholder with
whom the business combination is to be effected, unless, among
other things, the corporations stockholders receive a
minimum
21
price for their shares and the consideration is received in the
form of cash or other consideration in the same form as
previously paid by the interested stockholder for its shares.
These provisions of Maryland law do not apply, however, to
business combinations that are approved or exempted by the board
of directors prior to the time that the interested stockholder
becomes an interested stockholder.
Also under Maryland law, control shares of a
Maryland corporation acquired in a control share
acquisition have no voting rights except to the extent
approved by a vote of two-thirds of the votes entitled to be
cast on the matter, excluding shares owned by the acquirer or by
officers or directors who are employees of the corporation.
Control shares are shares of stock which, if
aggregated with all other shares of stock owned by the acquirer
or shares of stock for which the acquirer is able to exercise or
direct the exercise of voting power except solely by virtue of a
revocable proxy, would entitle the acquirer to exercise voting
power in electing directors within one of the following ranges
of voting power:
|
|
|
|
|
one-tenth or more but less than one-third,
|
|
|
|
one-third or more but less than a majority, or
|
|
|
|
a majority or more of all voting power.
|
Control shares do not include shares the acquiring person is
then entitled to vote as a result of having previously obtained
stockholder approval. A control share acquisition
means, subject to certain exceptions, the acquisition of,
ownership of or the power to direct the exercise of voting power
with respect to, control shares.
The control share acquisition statute does not apply to shares
acquired in a merger, consolidation or share exchange if the
corporation is a party to the transaction or to acquisitions
approved or exempted by the charter or bylaws of the
corporation. Our bylaws contain a provision exempting from the
control share acquisition statute any acquisitions by any person
of shares of our stock.
Under Title 3, Subtitle 8 of the Maryland General
Corporation Law, a Maryland corporation that has a class of
equity securities registered under the Securities Exchange Act
of 1934 and that has at least three directors who are not
officers or employees of the corporation, are not acquiring
persons, are not directors, officers, affiliates or associates
of any acquiring person, or are not nominated or designated as a
director by an acquiring person, may elect in its charter or
bylaws or by resolution of its board of directors to be subject
to certain provisions of Subtitle 8 that may have the
effect of delaying or preventing a change in control of the
corporation. These provisions relate to a classified board of
directors, removal of directors, establishing the number of
directors, filling vacancies on the board of directors and
calling special meetings of the corporations stockholders.
We have not made the election to be governed by these provisions
of Subtitle 8 of the Maryland General Corporation Law.
However, our charter and our bylaws permit our board of
directors to determine the number of directors subject to a
minimum number and other provisions contained in such documents.
Restrictions
on Ownership and Transfer
Our charter contains ownership and transfer restrictions
relating to our stock that are designed primarily to preserve
our status as a REIT. These restrictions include but are not
limited to the following:
|
|
|
|
|
no person may beneficially own or constructively own shares of
our outstanding equity stock (defined as stock that
is either common stock or preferred stock) with a value in
excess of 9.9% of the value of all outstanding equity stock
unless our board of directors exempts the person from such
ownership limitation, provided that any such exemption shall not
allow the person to exceed 13% of the value of our outstanding
equity stock;
|
|
|
|
any transfer that, if effective, would result in any person
beneficially owning or constructively owning equity stock with a
value in excess of 9.9% of the value of all outstanding equity
stock (or such higher value not to exceed 13% as determined
pursuant to an exemption from our board of directors) shall be
void as to the transfer of that number of shares of equity stock
which would otherwise be beneficially
|
22
|
|
|
|
|
owned or constructively owned by such person in excess of such
ownership limit; and the intended transferee shall acquire no
rights in such excess shares of equity stock;
|
|
|
|
|
|
except as provided in our charter, any transfer that, if
effective, would result in the equity stock being beneficially
owned by fewer than 100 persons shall be void as to the transfer
of that number of shares which would be otherwise beneficially
owned or constructively owned by the transferee; and the
intended transferee shall acquire no rights in such excess
shares of equity stock; and
|
|
|
|
any transfer of shares of equity stock that, if effective, would
result in us being closely held within the meaning
of Section 856(h) of the Code shall be void as to the
transfer of that number of shares of equity stock which would
cause us to be closely held within the meaning of
Section 856(h) of the Code; and the intended transferee
shall acquire no rights in such excess shares of equity stock.
|
Transfer
Agent
The transfer agent and registrar for our common stock is Wells
Fargo Bank, N.A., 161 North Concord Exchange, South
St. Paul, Minnesota 55075.
Exchange
Listing
Our common stock is listed for trading on the New York Stock
Exchange under the symbol UDR.
Preferred
Stock Purchase Rights
Pursuant to our First Amended and Restated Rights Agreement
dated September 14, 1999, each share of our common stock
evidences one right to purchase from us one one-thousandth of a
share of our Series C Junior Participating Cumulative
Redeemable Preferred Stock. Except with respect to certain
preferential rights, each one one-thousandth of a share of
Series C Preferred Stock is structured to be the equivalent
of one share of common stock. The exercise price of the rights
is $45.00, subject to adjustment. The rights are not currently
exercisable and no shares of Series C Preferred Stock are
currently outstanding.
The rights will separate from the common stock and a
distribution of certificates evidencing the rights will occur
upon the earlier of:
|
|
|
|
|
10 business days following a public announcement that a
person or group of related persons has acquired, or obtained the
right to acquire, beneficial ownership of more than 15% of the
outstanding shares of common stock, or
|
|
|
|
10 business days following the commencement of a tender offer or
exchange offer that would result in a person or group
beneficially owning more than 15% of the outstanding shares of
common stock.
|
Generally, the rights will become exercisable at the time of the
distribution of certificates evidencing the rights as set forth
above. The rights will expire at the close of business on
February 4, 2008, unless we redeem or exchange them earlier.
The Series C Preferred Stock is junior to all other
outstanding series of preferred stock in respect of rights to
receive dividends and to participate in distributions or
payments in the event of our liquidation, dissolution or winding
up. The Series C Preferred Stock is senior to the common
stock and any other capital stock of United Dominion ranking, as
to dividends and upon liquidation, junior to the Series C
Preferred Stock.
Holders of shares of the Series C Preferred Stock will be
entitled to receive, if, when and as declared by our board of
directors, out of legally available funds, cumulative
preferential cash dividends payable quarterly in an amount per
share equal to the greater of:
|
|
|
|
|
$0.01 or
|
|
|
|
subject to adjustment set forth in the charter, 1,000 times the
aggregate per share amount of all cash dividends, and 1,000
times the aggregate per share amount, payable in kind, of all
non-cash dividends
|
23
|
|
|
|
|
or other distributions, other than dividends payable in shares
of common stock, declared on the common stock since the
immediately preceding quarterly dividend payment date, or, with
respect to the first quarterly dividend payment date, since the
first issuance of any share or fraction of a share of
Series C Preferred Stock.
|
In the event of any liquidation, dissolution or winding up of
United Dominion, the holders of shares of Series C
Preferred Stock are entitled to be paid out of our assets
legally available for distribution to our stockholders, subject
to the prior preferential rights of our other preferred stock
ranking senior to the Series C Preferred Stock, a
liquidation preference of $1,000 per share, plus accrued
and unpaid dividends thereon to the date of payment, which is
referred to as the Series C Preferred Liquidation
Preference. After the payment to the holders of the shares
of the Series C Preferred Stock of the full Series C
Preferred Liquidation Preference, the holders of the
Series C Preferred Stock as such shall have no right or
claim to any of our remaining assets until the holders of common
stock shall have received an amount per share, referred to as
the common adjustment, equal to the quotient
obtained by dividing the Series C Preferred Liquidation
Preference by 1,000, subject to adjustments as set forth in the
charter. Following the payment of the full amount of the
Series C Preferred Liquidation Preference, the full amount
of any liquidation preference payable to holders of any of our
other shares of stock ranking on a parity with the Series C
Preferred Stock as to any liquidation distribution, and the full
amount of the common adjustment, respectively, holders of shares
of the Series C Preferred Stock, such other shares and
shares of the common stock shall be entitled to receive their
ratable and proportionate share of our remaining assets to be
distributed in the ratio of 1,000 (subject to adjustment as set
forth in our charter) to 1 with respect to the Series C
Preferred Stock, such other shares and the common stock, on a
per share basis, respectively. In the event that there are not
sufficient assets available after payment in full of the
Series C Preferred Liquidation Preference and such other
liquidation preferences to permit payment in full of the common
adjustment, then the remaining assets shall be distributed
ratably to the holders of the common stock.
The outstanding shares of Series C Preferred Stock may be
redeemed at the option of the board of directors as a whole, but
not in part, at any time, or from time to time, at a redemption
price per share equal to 1,000 (subject to certain adjustments
as set forth in our charter) times the Average Market Value of
the common stock, plus all accrued and unpaid dividends to and
including the date fixed for redemption. The Average
Market Value is the average of the closing sale prices of
a share of the common stock during the
30-day
period immediately preceding the date before the redemption date
quoted on the Composite Tape for New York Stock Exchange Listed
Stocks, or, if the common stock is not quoted on the Composite
Tape, on the New York Stock Exchange, or, if the common stock is
not listed on such exchange, on the principal United States
registered securities exchange on which the common stock is
listed, or, if the common stock is not listed on any such
exchange, the average of the closing bid quotations with respect
to a share of common stock during such
30-day
period on The Nasdaq Stock Market, or if no such quotations are
available, the fair market value of a share of common stock as
determined by our board of directors in good faith.
Each share of Series C Preferred Stock entitles its holder
to 1,000 votes on all matters submitted to a vote of our
stockholders. In general, the holders of shares of Series C
Preferred Stock and the holders of shares of common stock vote
together as one voting group on all those matters. If the
Series C Preferred Stock is listed or admitted to trading
on the New York Stock Exchange, approval by the holders of at
least two-thirds of the outstanding shares of the Series C
Preferred Stock will be required for adoption of any amendment
to our charter or bylaws that would materially affect the
existing terms of the Series C Preferred Stock.
Whenever dividends on any shares of Series C Preferred
Stock are in arrears for six or more consecutive quarterly
periods, the holders of such shares, voting separately as a
class with all other series of preferred stock having like
voting rights, will be entitled to vote for the election of two
additional directors of United Dominion at a special meeting
called by the holders of record of at least 10% of the
Series C Preferred Stock or the holders of any other series
of preferred stock so in arrears or at the next annual meeting
of stockholders, and at each subsequent annual meeting until all
dividends accumulated on such shares of Series C Preferred
Stock for the past dividend periods and the current dividend
period shall have been fully paid or declared and a sum
sufficient for the payment thereof set aside for payment. In
such case, the entire board of United Dominion will be increased
by two directors.
24
The dividend rate on the Series C Preferred Stock, the
common adjustment, the Series C Preferred Stock redemption
price and the number of votes per share of Series C
Preferred Stock and certain other terms of the Series C
Preferred Stock are all subject to adjustment upon the
declaration of any dividend payable in common stock, subdivision
of the outstanding common stock or combination of the
outstanding shares of common stock into a smaller number of
shares.
The Series C Preferred Stock is not convertible into or
exchangeable for any other property or securities of United
Dominion except as provided in Article VI of our charter.
Effective January 6, 2004, we appointed Wells Fargo Bank,
N.A. as Rights Agent under the First Amended and Restated Rights
Agreement, replacing Mellon Investor Services LLC.
DESCRIPTION
OF WARRANTS
We may issue warrants, in one or more series, for the purchase
of our common stock, preferred stock or debt securities.
Warrants may be issued independently or together with our common
stock, preferred stock or debt securities and may be attached to
or separate from any offered securities.
The warrants will be evidenced by warrant certificates. Unless
otherwise specified in the prospectus supplement, the warrant
certificates may be traded separately from the common stock,
preferred stock or debt securities, if any, with which the
warrant certificates were issued. Warrant certificates may be
exchanged for new warrant certificates of different
denominations at the office of an agent that we will appoint.
Until a warrant is exercised, the holder of a warrant does not
have any of the rights of a holder of our stock or debt
securities and is not entitled to any payments on any debt
securities or shares of stock issuable upon exercise of the
warrants.
A prospectus supplement accompanying this prospectus relating to
a particular series of warrants to issue debt securities or
shares of stock will describe the terms of those warrants,
including:
|
|
|
|
|
the title and the aggregate number of warrants,
|
|
|
|
the debt securities or stock for which each warrant is
exercisable,
|
|
|
|
the date or dates on which the right to exercise such warrants
commence and expire,
|
|
|
|
the price or prices at which such warrants are exercisable,
|
|
|
|
the currency or currencies in which such warrants are
exercisable,
|
|
|
|
the periods during which and places at which such warrants are
exercisable,
|
|
|
|
the terms of any mandatory or optional call provisions,
|
|
|
|
the price or prices, if any, at which the warrants may be
redeemed at the option of the holder or will be redeemed upon
expiration,
|
|
|
|
the identity of the warrant agent, and
|
|
|
|
the exchanges, if any, on which such warrants may be listed.
|
You may exercise warrants by payment to our warrant agent of the
exercise price, in each case in such currency or currencies as
are specified in the warrant, and giving your identity and the
number of warrants to be exercised. Once you pay our warrant
agent and deliver the properly completed and executed warrant
certificate to our warrant agent at the specified office, our
warrant agent will, as soon as practicable, forward securities
to you in authorized denominations or share amounts. If you
exercise less than all of the warrants evidenced by your warrant
certificate, you will be issued a new warrant certificate for
the remaining amount of warrants.
25
DESCRIPTION
OF PURCHASE CONTRACTS
We may issue purchase contracts obligating holders to purchase
from us, and us to sell to the holders, our securities at a
future date or dates. The purchase contracts may require us to
make periodic payments to the holders of purchase contracts.
These payments may be unsecured or prefunded on a basis to be
specified in the prospectus supplement relating to the purchase
contracts.
The applicable prospectus supplement will describe the terms of
any purchase contract. The purchase contracts will be issued
pursuant to documents to be issued by us. You should read the
particular terms of the documents, which will be described in
more detail in the applicable prospectus supplement.
DESCRIPTION
OF UNITS
We may issue units consisting of one or more purchase contracts,
warrants, debt securities, shares of preferred stock, shares of
common stock or any combination of such securities. The
applicable prospectus supplement will describe the terms of the
units and of the securities comprising the units, including
whether and under what circumstances the securities comprising
the units may be traded separately. You should read the
particular terms of the documents pursuant to which the units
would be issued, which will be described in more detail in the
applicable prospectus supplement.
MATERIAL
U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following discussion describes the material
U.S. federal income tax considerations relating to our
qualification and taxation as a REIT which may be material to
purchasers of our securities. This summary is based on current
law, is for general information only and is not tax advice. The
tax treatment of a holder of our debt or equity securities will
vary depending upon the terms of the specific securities
acquired by such holder, as well as the holders particular
situation. You are urged to review the applicable prospectus
supplement in connection with the purchase of any of our
securities, and to consult your own tax advisor regarding the
specific tax consequences to you of investing in our securities
and of our election to be taxed as a REIT.
We urge you to consult your own tax advisor regarding the tax
consequences to you of the acquisition, ownership and
disposition of our securities and of our election to be taxed as
a REIT. Specifically, you should consult your own tax advisor
regarding the U.S. federal, state, local, foreign, and
other tax consequences of such acquisition, ownership,
disposition and election and regarding potential changes in
applicable tax laws.
General
We elected to be taxed as a REIT under the federal income tax
laws commencing with our taxable year ended December 31,
1972. We believe that we have been organized and operated in a
manner that permits us to satisfy the requirements for taxation
as a REIT under the applicable provisions of the Code.
Qualification and taxation as a REIT depend upon our ability to
meet, through actual annual operating results, asset
diversification, distribution levels and diversity of stock
ownership, the various qualification tests imposed under the
Code discussed below. Although we intend to continue to operate
to satisfy such requirements, the actual results of our
operations for any particular taxable year may not satisfy such
requirements.
The provisions of the Code, U.S. Treasury regulations
promulgated thereunder and other U.S. federal income tax
laws relating to qualification and operation as a REIT and the
taxation of holders of our securities are highly technical and
complex. The following sets forth the material aspects of the
laws that govern the U.S. federal income tax treatment of a
REIT. This summary is qualified in its entirety by the
applicable Code provisions, rules and Treasury regulations
thereunder, and administrative and judicial interpretations
thereof. Further, the anticipated income tax treatment described
in this prospectus may be changed, perhaps retroactively, by
legislative, administrative or judicial action at any time.
26
Morrison & Foerster LLP has acted as our tax counsel
in connection with the filing of this prospectus. In connection
with this filing, Morrison & Foerster LLP will opine
that we have been organized and have operated in conformity with
the requirements for qualification and taxation as a REIT under
the Code for each of our taxable years beginning with the
taxable year ended December 31, 2002 through our taxable
year ended December 31, 2005, and if we continue to be
organized and operated after December 31, 2005 in the same
manner as we have prior to that date, we will continue to
qualify as a REIT. The opinion of Morrison & Foerster
LLP will be based on various assumptions and representations
made by us as to factual matters, including representations made
by us in this prospectus and a factual certificate provided by
one of our officers. Moreover, our qualification and taxation as
a REIT depends upon our ability to meet the various
qualification tests imposed under the Code and discussed below,
relating to our actual annual operating results, asset
diversification, distribution levels, and diversity of stock
ownership, the results of which have not been and will not be
reviewed by Morrison & Foerster LLP. Accordingly,
neither Morrison & Foerster LLP nor we can assure you
that the actual results of our operations for any particular
taxable year will satisfy these requirements.
In brief, if certain detailed conditions imposed by the REIT
provisions of the Code are satisfied, entities, such as us, that
invest primarily in real estate and that otherwise would be
treated for U.S. federal income tax purposes as
corporations, generally are not taxed at the corporate level on
their REIT taxable income that is distributed
currently to stockholders. This treatment substantially
eliminates the double taxation (i.e.,
taxation at both the corporate and stockholder levels) that
generally results from investing in corporations under current
law.
If we fail to qualify as a REIT in any year, however, we will be
subject to U.S. federal income tax as if we were an
ordinary corporation and our stockholders will be taxed in the
same manner as stockholders of ordinary corporations. In that
event, we could be subject to potentially significant tax
liabilities, the amount of cash available for distribution to
our stockholders could be reduced and we would not be obligated
to make any distributions. Moreover, we could be disqualified
from taxation as a REIT for four taxable years.
REIT
Taxation
In any year in which we qualify as a REIT, in general, we will
not be subject to U.S. federal income tax on that portion
of our net income that we distribute to stockholders, except as
follows:
|
|
|
|
|
First, we will be taxed at regular corporate rates on any
undistributed REIT taxable income, including undistributed net
capital gain. However, we can elect to pass through
any of our taxes paid on our undistributed net capital gain
income to our stockholders on a pro rata basis.
|
|
|
|
Second, under certain circumstances, we may be subject to the
alternative minimum tax on our items of tax
preference.
|
|
|
|
Third, if we have (a) net income from the sale or other
disposition of foreclosure property which is held
primarily for sale to customers in the ordinary course of
business or (b) other nonqualifying income from foreclosure
property, we will be subject to tax at the highest corporate
rate on such income.
|
|
|
|
Fourth, if we have net income from prohibited transactions
(which are, in general, sales or other dispositions of property
held primarily for sale to customers in the ordinary course of
business, generally other than, foreclosure property and
property involuntarily converted), such income will be subject
to a 100% penalty tax.
|
|
|
|
Fifth, as discussed in detail below, if we should fail to
satisfy the gross income tests or the asset tests, and
nonetheless maintain our qualification as a REIT because certain
other requirements have been satisfied, we ordinarily will be
subject to a penalty tax relating to such failure, computed as
described below. Similarly, if we maintain our REIT status
despite our failure to satisfy one or more requirements for REIT
qualification, other than the gross income tests and asset
tests, we must pay a penalty of $50,000 for each such failure.
|
27
|
|
|
|
|
Sixth, if we should fail to distribute during each calendar year
at least the sum of (1) 85% of our ordinary income for such
year, (2) 95% of our net capital gain income for such year,
and (3) any undistributed taxable income from prior
periods, we will be subject to a 4% excise tax on the excess of
such required distribution over the amounts distributed.
|
|
|
|
Seventh, if we acquire any asset from a C-corporation
(i.e., generally a corporation subject to full
corporate-level tax) in a transaction in which the basis of the
asset in our hands is determined by reference to the basis of
the asset (or any other property) in the hands of the
C-corporation, and we recognize gain on the disposition of such
asset during the
10-year
period beginning on the date on which we acquired such asset,
then, to the extent of any built-in, unrealized gain at the time
of acquisition, such gain generally will be subject to tax at
the highest regular corporate rate.
|
|
|
|
Eighth, we may be subject to an excise tax if our dealings with
our taxable REIT subsidiaries, defined below, are not at
arms length.
|
|
|
|
Finally, any earnings we derive through a taxable REIT
subsidiary will effectively be subject to a corporate-level tax.
|
Requirements
for Qualification
The Code defines a REIT as a corporation, trust or association
(1) which is managed by one or more trustees or directors;
(2) the beneficial ownership of which is evidenced by
transferable shares, or by transferable certificates of
beneficial interest; (3) which would be taxable as a
domestic corporation, but for Sections 856 through 860 of
the Code; (4) which is neither a financial institution nor
an insurance company subject to certain provisions of the Code;
(5) the beneficial ownership of which is held by 100 or
more persons; (6) not more than 50% in value of the
outstanding stock of which is owned, directly or indirectly, by
five or fewer individuals, as defined in the Code, at any time
during the last half of each taxable year; and (7) which
meets certain other tests, described below, regarding the nature
of its income and assets and minimum distribution requirements
with respect to its REIT taxable income.
The Code provides that conditions (1) to (4), inclusive,
must be met during the entire taxable year and that condition
(5) must be met during at least 335 days of a taxable
year of 12 months, or during a proportionate part of a
taxable year of less than 12 months. If we were to fail to
satisfy condition (6) during a taxable year, that failure
would not result in our disqualification as a REIT under the
Code for such taxable year as long as (i) we satisfied the
stockholder demand statement requirements described in the
succeeding paragraph and (ii) we did not know, or
exercising reasonable diligence would not have known, whether we
had failed condition (6).
We believe we have issued sufficient stock with sufficient
diversity of ownership to satisfy conditions (5) and
(6) above. Moreover, to evidence compliance with these
requirements, we must maintain records which disclose the actual
ownership of our outstanding stock. In fulfilling our
obligations to maintain records, we must and will demand written
statements each year from the record holders of designated
percentages of our stock disclosing the actual owners of our
stock. A list of those persons failing or refusing to comply
with such demand must be maintained as part of our records. A
stockholder failing or refusing to comply with our written
demand must submit with his U.S. federal income tax returns
a similar statement disclosing the actual ownership of our stock
and certain other information. In addition, our charter
restricts the transfer of our shares in order to assist in
satisfying the share ownership requirements. These restrictions
are discussed in more detail above under the heading
Description of Common Stock Restrictions on
Ownership and Transfer.
Although we intend to satisfy the stockholder demand letter
rules described in the preceding paragraph, our failure to
satisfy these requirements will not result in our
disqualification as a REIT under the Code but may result in the
imposition of Internal Revenue Service penalties against us.
We currently have several direct corporate subsidiaries and may
have additional corporate subsidiaries in the future. Certain of
our corporate subsidiaries will be treated as qualified
REIT subsidiaries under the Code. A corporation will
qualify as a qualified REIT subsidiary if we own 100% of its
outstanding stock and
28
we and the subsidiary do not jointly elect to treat it as a
taxable REIT subsidiary as described below. A
corporation that is a qualified REIT subsidiary is not treated
as a separate corporation, and all assets, liabilities and items
of income, deduction and credit of a qualified REIT subsidiary
are treated as assets, liabilities and items of income,
deduction and credit (as the case may be) of the parent REIT for
all purposes under the Code (including all REIT qualification
tests). Thus, in applying the requirements described in this
prospectus the subsidiaries in which we own a 100% interest
(other than taxable REIT subsidiaries) will be ignored, and all
assets, liabilities and items of income, deduction and credit of
such subsidiaries will be treated as our assets, liabilities and
items of income, deduction and credit. A qualified REIT
subsidiary is not subject to U.S. federal income tax and
our ownership of the stock of such a subsidiary will not violate
the REIT asset tests, described below under Asset
Tests.
In the case of a REIT that is a partner in a partnership,
U.S. Treasury regulations provide that the REIT will be
deemed to own its proportionate share, generally based on its
pro rata share of capital interest in the partnership, of the
assets of the partnership and will be deemed to be entitled to
the gross income of the partnership attributable to such share.
In addition, the character of the assets and gross income of the
partnership shall retain the same character in the hands of the
REIT for purposes of satisfying the gross income tests and the
asset tests, described below. Thus, our proportionate share of
the assets, liabilities and items of income of a partnership in
which we own an interest, directly or indirectly will be treated
as our assets, liabilities and items of income for purposes of
applying the requirements described below. The taxation of our
investments in partnerships is discussed below under
Investments in Partnerships.
We report our net income based on the calendar year.
Asset
Tests
At the close of each quarter of our taxable year, we generally
must satisfy three tests relating to the nature of our assets.
First, at least 75% of the value of our total assets must be
represented by interests in real property, interests in
mortgages on real property, shares in other REITs, cash, cash
items and government securities (as well as certain temporary
investments in stock or debt instruments purchased with the
proceeds of new capital raised by us). Second, although the
remaining 25% of our assets generally may be invested without
restriction, securities in this class generally may not exceed
either (1) 5% of the value of our total assets as to any
one nongovernment issuer, (2) 10% of the outstanding voting
securities of any one issuer, or (3) 10% of the value of
the outstanding securities of any one issuer. Third, not more
than 20% of the total value of our assets can be represented by
securities of one or more taxable REIT subsidiaries
(described below). Securities for purposes of the above 5% and
10% asset tests may include debt securities, including debt
issued by a partnership. However, debt of an issuer will not
count as a security for purposes of the 10% value test if the
security qualifies for any of a number of exceptions applicable,
for example, to straight debt, as specially defined
for this purpose.
We and a corporation in which we own stock may make a joint
election for such subsidiary to be treated as a taxable
REIT subsidiary. The securities of a taxable REIT
subsidiary are not subject to the 5% asset test and the 10% vote
and value tests described above. Instead, as discussed above, a
separate asset test applies to taxable REIT subsidiaries. The
rules regarding taxable REIT subsidiaries contain provisions
generally intended to ensure that transactions between a REIT
and its taxable REIT subsidiary occur at arms
length and on commercially reasonable terms. These
requirements include a provision that prevents a taxable REIT
subsidiary from deducting interest on direct or indirect
indebtedness to its parent REIT if, under a specified series of
tests, the taxable REIT subsidiary is considered to have an
excessive interest expense level or
debt-to-equity
ratio. In addition, a 100% penalty tax can be imposed on the
REIT if its loans to or rental, service or other agreements with
its taxable REIT subsidiary are determined not to be on
arms length terms. No assurance can be given that our
loans to or rental, service or other agreements with our taxable
REIT subsidiaries will be on arms length terms. A taxable
REIT subsidiary is subject to a corporate level tax on its net
taxable income, as a result of which our earnings derived
through a taxable REIT subsidiary are effectively subject to a
corporate level tax notwithstanding our status as a REIT. To the
extent that a taxable REIT subsidiary pays dividends to us in a
particular calendar year, we may designate a corresponding
portion of dividends we pay to our noncorporate stockholders
during that year as qualified dividend income
eligible to
29
be taxed at reduced rates to such recipients. The taxation of
U.S. holders of our equity stock is discussed below under
Taxation of Taxable U.S. Holders.
We have made elections to treat several of our corporate
subsidiaries as taxable REIT subsidiaries. We believe that the
value of the securities we hold of our taxable REIT subsidiaries
does not and will not represent more than 20% of our total
assets, and that all transactions between us and our taxable
REIT subsidiaries are conducted on arms length terms. In
addition, we believe that the amount of our assets that are not
qualifying assets for purposes of the 75% asset test will
continue to represent less than 25% of our total assets and will
satisfy the 5% and both 10% asset tests.
Beginning in 2005, if we fail to satisfy the 5% and/or 10% asset
tests for a particular quarter, we will not lose our REIT status
if the failure is due to the ownership of assets the total value
of which does not exceed a specified de minimis threshold,
provided that we come into compliance with the asset tests
generally within six months after the last day of the quarter in
which we identify the failure. In addition, beginning in 2005,
other failures to satisfy the asset tests generally will not
result in a loss of REIT status if (i) following our
identification of the failure, we file a schedule with the
Internal Revenue Service describing each asset that caused the
failure; (ii) the failure was due to reasonable cause and
not to willful neglect; (iii) we come into compliance with
the asset tests generally within six months after the last day
of the quarter in which the failure was identified; and
(iv) we pay a tax equal to the greater of $50,000 or the
amount determined by multiplying the highest corporate tax rate
by the net income generated by the prohibited assets for the
period beginning on the first date of the failure and ending on
the earlier of the date we dispose of such assets and the end of
the quarter in which we come into compliance with the asset
tests.
Gross
Income Tests
We must satisfy two separate percentage tests relating to the
sources of our gross income for each taxable year. For purposes
of these tests, where we invest in a partnership, we will be
treated as receiving our pro rata share based on our capital
interest in the partnership of the gross income and loss of the
partnership, and the gross income of the partnership will retain
the same character in our hands as it has in the hands of the
partnership. The taxation of our investments in partnerships is
discussed below under Investments in Partnerships.
At least 75% of our gross income for a taxable year must be
qualifying income. Qualifying income generally
includes (1) rents from real property (except as modified
below); (2) interest on obligations collateralized by
mortgages on, or interests in, real property; (3) gains
from the sale or other disposition of interests in real property
and real estate mortgages, other than gain from property held
primarily for sale to customers in the ordinary course of our
trade or business, or dealer property;
(4) dividends or other distributions on shares in other
REITs, as well as gain from the sale of such shares;
(5) abatements and refunds of real property taxes;
(6) income from the operation, and gain from the sale of
property acquired at or in lieu of a foreclosure of the mortgage
collateralized by such property, or foreclosure
property; (7) commitment fees received for agreeing
to make loans collateralized by mortgages on real property or to
purchase or lease real property; and (8) income from
temporary investments in stock or debt instruments purchased
with the proceeds of new capital raised by us.
Rents received from a tenant will not, however, qualify as rents
from real property in satisfying the 75% test (or the 95% test
described below) if we, or an owner of 10% or more of our equity
securities, directly or constructively owns (i) in the case
of any tenant that is a corporation, stock possessing 10% or
more of the total combined voting power of all classes of stock
entitled to vote, or 10% or more of the total value of shares of
all classes of stock of such tenant; or (ii) in the case of
any tenant that is not a corporation, an interest of 10% or more
in the assets or net profits of such tenant, or a related
party tenant, unless the related party tenant is a taxable
REIT subsidiary and certain other requirements are satisfied. In
addition, if rent attributable to personal property, leased in
connection with a lease of real property, is greater than 15% of
the total rent received under the lease, then the portion of
rent attributable to such personal property will not
30
qualify as rents from real property. Moreover, an amount
received or accrued generally will not qualify as rents from
real property (or as interest income) for purposes of the 75%
test and 95% test (described below) if it is based in whole or
in part on the income or profits of any person. Rent or interest
will not be disqualified, however, solely by reason of being
based on a fixed percentage or percentages of receipts or sales.
Finally, for rents received to qualify as rents from real
property, we generally must not operate or manage the property
or furnish or render certain services to tenants, other than
through an independent contractor who is adequately
compensated and from whom we derive no revenue or through a
taxable REIT subsidiary. The independent contractor
or taxable REIT subsidiary requirement, however, does not apply
to the extent that the services provided by us are usually
or customarily rendered in connection with the rental of
space for occupancy only, and are not otherwise considered
rendered to the occupant. For both the related party
tenant rules and determining whether an entity qualifies as an
independent contractor of a REIT, certain attribution rules of
the Code apply, pursuant to which ownership interests in certain
entities held by one entity are deemed held by certain other
related entities.
In general, if a REIT provides impermissible services to its
tenants, all of the rent from that property will be disqualified
from satisfying the 75% test and 95% test (described below).
However, rents will not be disqualified if a REIT provides de
minimis impermissible services. For this purpose, services
provided to tenants of a property are considered de minimis
where income derived from the services rendered equals 1% or
less of all income derived from the property (as determined on a
property-by-property basis). For purposes of the 1% threshold,
the amount treated as received for any service shall not be less
than 150% of the direct cost incurred by the REIT in furnishing
or rendering the service.
We do not receive any rent that is based on the income or
profits of any person. In addition, we do not own, directly or
indirectly, 10% or more of any tenant (other than, perhaps, a
tenant that is a taxable REIT subsidiary where other
requirements are satisfied). Furthermore, we believe that any
personal property rented in connection with our apartment
facilities is well within the 15% restriction. Finally, we do
not believe that we provide services, other than within the 1%
de minimis exception described above, to our tenants that are
not customarily furnished or rendered in connection with the
rental of property, other than through an independent contractor
or a taxable REIT subsidiary. We do not intend to rent to any
related party, to base any rent on the income or profits of any
person (other than rents that are based on a fixed percentage or
percentages of receipts or sales), or to charge rents that would
otherwise not qualify as rents from real property.
In addition to deriving 75% of our gross income from the sources
listed above, at least 95% of our gross income for a taxable
year must be derived from the above-described qualifying income,
or from dividends, interest or gains from the sale or
disposition of stock or other securities that are not dealer
property. Dividends from a corporation (including a taxable REIT
subsidiary) and interest on any obligation not collateralized by
an interest on real property are included for purposes of the
95% test, but not (except with respect to dividends from a REIT)
for purposes of the 75% test. For purposes of determining
whether we comply with the 75% and 95% tests, gross income does
not include income from prohibited transactions
(discussed below).
From time to time, we may enter into hedging transactions with
respect to one or more of our assets or liabilities. Our hedging
activities may include entering into interest rate or other
swaps, caps and floors, or options to purchase such items, and
futures and forward contracts. Through the end of our 2004 tax
year, to the extent that we entered into an interest rate swap
or cap contract, option, futures contract, forward rate
agreement or any similar financial instrument to hedge our
indebtedness incurred to acquire or carry real estate
assets, any periodic income or gain from the disposition
of such contract was qualifying income for purposes of the 95%
gross income test, but not the 75% gross income test. Beginning
in 2005, to the extent a transaction meets certain
identification requirements and hedges any indebtedness incurred
or to be incurred to acquire or carry real estate
assets, including interest rate hedges as well as other
types of hedges, any income or gain from the disposition of such
a hedging transaction will be disregarded in applying the 95%
gross income test, but will continue to be taken into account as
nonqualifying income for purposes of the 75% gross income test.
To the extent that we hedge with other types of financial
instruments, or in other situations,
31
it is not entirely clear how the income from those transactions
will be treated for purposes of the gross income tests. We
intend to structure any hedging transactions in a manner that
does not jeopardize our status as a REIT.
Our investment in apartment communities generally gives rise to
rental income that is qualifying income for purposes of the 75%
and 95% gross income tests. Gains on sales of apartment
communities, other than from prohibited transactions, as
described below, or of our interest in a partnership generally
will be qualifying income for purposes of the 75% and 95% gross
income tests. We have leases on certain other properties that we
own and we treat the income from those leases as nonqualifying
income for purposes of the 75% and 95% gross income tests;
however, we anticipate that income from those properties and our
other investments will not result in our failing the 75% or 95%
gross income test for any year.
Even if we fail to satisfy one or both of the 75% or 95% tests
for any taxable year, we may still qualify as a REIT for such
year if we are entitled to relief under certain provisions of
the Code. These relief provisions will generally be available if
our failure to comply was due to reasonable cause and not to
willful neglect, and we timely comply with requirements for
reporting each item of our income to the Internal Revenue
Service. It is not possible, however, to state whether in all
circumstances we would be entitled to the benefit of these
relief provisions. Even if these relief provisions apply, we
will still be subject to a special tax upon the greater of
either (1) the amount by which 75% of our gross income
exceeds the amount of our income qualifying under the 75% test
for the taxable year or (2) the amount by which 90% (95%
for 2005 and later taxable years) of our gross income exceeds
the amount of our income qualifying for the 95% income test for
the taxable year, multiplied by a fraction intended to reflect
our profitability.
Like-Kind
Exchanges
We may dispose of our properties in transactions intended to
qualify under a provision of the Code which permits the
nonrecognition of loss or gain on the exchange of property held
for productive use in a trade or business or for investment for
property of like kind. No assurance can be given
that our nonrecognition of loss or gain will be respected for
U.S. federal income tax purposes. If not, we may be
required to make additional distributions to our stockholders
under the deficiency dividend procedures set forth
below.
Annual
Distribution Requirements
To qualify as a REIT, we are required to distribute dividends
(other than capital gain dividends) to our stockholders each
year in an amount equal to at least (A) the sum of
(i) 90% of our REIT taxable income (computed without regard
to the dividends paid deduction and our net capital gain) and
(ii) 90% of the net income (after tax), if any, from
foreclosure property, minus (B) the sum of certain items of
non-cash income over 5% of our REIT taxable income. Such
distributions must be paid in the taxable year to which they
relate, or in the following twelve months if declared before we
timely file our tax return for such year and if paid on or
before the first regular dividend payment after such
declaration. These distributions are taxable to stockholders in
the year in which paid, even though the distributions relate to
our prior taxable year for purposes of the 90% distribution
requirement. To the extent that we do not distribute all of our
net capital gain or distribute at least 90%, but less than 100%,
of our REIT taxable income, as adjusted, we will be subject to
tax on the undistributed amount at regular corporate tax rates,
as the case may be. (However, we can elect to pass
through any of our taxes paid on our undistributed net
capital gain income to our stockholders on a pro rata basis.)
Furthermore, if we should fail to distribute during each
calendar year at least the sum of (1) 85% of our ordinary
income for such year, (2) 95% of our net capital gain
income for such year, and (3) any undistributed taxable
income from prior periods, we would be subject to a 4% excise
tax on the excess of such required distribution over the sum of
the amounts actually distributed and the amount of any net
capital gains we elected to retain and pay tax on. For these and
other purposes, dividends declared by us in October, November or
December of one taxable year and payable to a stockholder of
record on a specific date in any such month shall be treated as
both paid by us and received by the stockholder during such
taxable year, provided that the dividend is actually paid by us
by January 31 of the following taxable year.
32
We believe that we have made timely distributions sufficient to
satisfy the annual distribution requirements. It is possible
that in the future we may not have sufficient cash or other
liquid assets to meet the distribution requirements, due to
timing differences between the actual receipt of income and
actual payment of expenses on the one hand, and the inclusion of
such income and deduction of such expenses in computing our REIT
taxable income on the other hand. Further, as described below,
it is possible that, from time to time, we may be allocated a
share of net capital gain attributable to the sale of
depreciated property that exceeds our allocable share of cash
attributable to that sale. To avoid any problem with the
distribution requirements, we will closely monitor the
relationship between our REIT taxable income and cash flow and,
if necessary, will borrow funds or issue preferred or common
stock to satisfy the distribution requirement. We may be
required to borrow funds at times when market conditions are not
favorable.
If we fail to meet the distribution requirements as a result of
an adjustment to our tax return by the Internal Revenue Service
or we determine that we understated our income on a filed
return, we may retroactively cure the failure by paying a
deficiency dividend (plus applicable penalties and
interest) within a specified period.
Beginning in 2005, if we should fail to satisfy one or more
requirements for REIT qualification, other than the gross income
tests and asset tests, we may retain our REIT qualification if
the failures are due to reasonable cause and not willful
neglect, and if we pay a penalty of $50,000 for each such
failure.
Under legislation enacted in 2004, the utilization of losses
allocable to leased property owned by a partnership having both
taxable and tax-exempt partners may be subject to certain
limitations. As a result, beginning in 2006, certain losses
generated with respect to properties owned by a partnership in
which we invest, such as our operating partnerships, may be
disallowed, which could increase the amount of distributions we
are required to make in a particular year in order to meet the
REIT distribution requirements and also could increase the
portion of distributions to our stockholders that are taxable as
dividends.
Prohibited
Transaction Rules
A REIT will incur a 100% penalty tax on the net income derived
from a sale or other disposition of property, other than
foreclosure property, that the REIT holds primarily for sale to
customers in the ordinary course of a trade or business, which
we refer to as a prohibited transaction. Under a
safe harbor provision in the Code, however, income from certain
sales of real property held by the REIT for at least four years
at the time of the disposition will not be treated as income
from a prohibited transaction. We believe that none of our
assets is held for sale to customers and that a sale of any of
our assets would not be in the ordinary course of our business.
Whether a REIT holds an asset primarily for sale to
customers in the ordinary course of a trade or business
depends, however, on the facts and circumstances in effect from
time to time, including those related to a particular asset.
Although we will attempt to ensure that none of our sales of
property will constitute a prohibited transaction, we cannot
assure you that none of such sales will be so treated.
Failure
to Qualify
If we fail to qualify for taxation as a REIT in any taxable year
and the relief provisions do not apply, we will be subject to
tax (including any applicable alternative minimum tax) on our
taxable income at regular corporate rates. Distributions to
stockholders in any year in which we fail to qualify will not be
deductible by us, nor will they be required to be made. In such
event, to the extent of our current and accumulated earnings and
profits, all distributions to stockholders will be taxable as
ordinary income, and, subject to certain limitations in the
Code, corporate distributees may be eligible for the dividends
received deduction and noncorporate distributees may be eligible
to treat the dividends as qualified dividend income
taxable at capital gain rates. Unless entitled to relief under
specific statutory provisions, we will also be disqualified from
taxation as a REIT for the four taxable years following the year
during which qualification was lost. It is not possible to state
whether we would be entitled to such statutory relief.
33
Investments
in Partnerships
The following discussion summarizes certain U.S. federal
income tax considerations applicable solely to our investment in
entities treated as partnerships for U.S. federal income
tax purposes. The discussion does not cover state or local tax
laws or any U.S. federal tax laws other than income tax
laws.
We hold a direct ownership interest in certain partnerships. In
general, partnerships are pass-through entities
which are not subject to U.S. federal income tax. Rather,
partners are allocated their proportionate shares of the items
of income, gain, loss, deduction and credit of a partnership,
and are potentially subject to tax thereon, without regard to
whether the partners receive a distribution from the
partnership. We include our proportionate share, based on our
capital interest in a partnership, of the foregoing partnership
items for purposes of the various REIT income tests, and we
include our allocable share of such partnership items in the
computation of our REIT taxable income. Any resultant increase
in our REIT taxable income increases our distribution
requirements, but is not subject to U.S. federal income tax
in our hands provided that such income is distributed to our
stockholders. Moreover, for purposes of the REIT asset tests, we
include our proportionate share, generally based on our capital
interest in the partnership, of assets held by the partnerships.
|
|
|
Tax
Allocations with Respect to the Properties
|
Pursuant to Section 704(c) of the Code, income, gain, loss
and deduction attributable to appreciated or depreciated
property that is contributed to a partnership in exchange for an
interest in the partnership (such as some of our properties),
must be allocated in a manner such that the contributing partner
is charged with, or benefits from, respectively, the unrealized
gain or unrealized loss associated with the property at the time
of the contribution. The amount of such unrealized gain or
unrealized loss is generally equal to the difference between the
fair market value of contributed property at the time of
contribution, and the adjusted tax basis of such property at the
time of contribution, or a book-tax difference. Such
allocations are solely for U.S. federal income tax purposes
and do not affect the book capital accounts or other economic or
legal arrangements among the partners. Our two material
partnership subsidiaries, referred to in this discussion as the
operating partnerships, have property subject to
book-tax differences. Consequently, the partnership agreement of
the operating partnerships requires such allocations to be made
in a manner consistent with Section 704(c) of the Code.
In general, the partners who contributed appreciated assets to
the operating partnerships will be allocated lower amounts of
depreciation deductions for tax purposes and increased taxable
income and gain on sale by the operating partnerships of the
contributed assets (including some of our properties). This will
tend to eliminate the book-tax difference over time. However,
the special allocation rules under Section 704(c) of the
Code do not always entirely rectify the book-tax difference on
an annual basis or with respect to a specific taxable
transaction, such as a sale. Thus, the carryover basis of the
contributed assets in the hands of the operating partnerships
can be expected to cause us to be allocated lower depreciation
and other deductions, and possibly greater amounts of taxable
income in the event of a sale of such contributed assets, in
excess of the economic or book income allocated to us as a
result of such sale. This may cause us to recognize taxable
income in excess of cash proceeds, which might adversely affect
our ability to comply with the REIT distribution requirements.
In addition, the application of Section 704(c) of the Code
is not entirely clear and may be affected by authority that may
be promulgated in the future.
Generally, any gain realized by the operating partnerships on
the sale of property held by the operating partnerships will be
capital gain, except for any portion of such gain that is
treated as certain depreciation or cost recovery recapture. Our
share of any gain realized by the operating partnerships on the
sale of any dealer property generally will be
treated as income from a prohibited transaction that is subject
to a 100% penalty tax, as discussed above under Prohibited
Transaction Rules. Under existing law, whether property is
dealer property is a question of fact that depends on all the
facts and circumstances with respect to the particular
34
transaction. The operating partnerships intend to hold their
properties for investment with a view to long-term appreciation,
to engage in the business of acquiring, developing, owning and
operating their properties, and to make such occasional sales of
their properties as are consistent with our investment
objectives. Based upon such investment objectives, we believe
that in general our properties should not be considered dealer
property and that the amount of income from prohibited
transactions, if any, will not be material.
Investment
in Our Stock
The following summary describes certain U.S. federal income
tax consequences relating to the purchase, ownership, and
disposition of our equity stock as of the date hereof. This
summary deals only with equity stock held as capital
assets, (within the meaning of Section 1221 of the
Code), and does not address tax considerations applicable to an
investors particular circumstances or to investors that
may be subject to special tax rules, including, without
limitation, financial institutions (including banks), insurance
companies, dealers in securities or currencies, persons subject
to the mark-to market rules of the Code, persons that will hold
our stock as a position in a hedging transaction,
integrated transaction, straddle or
conversion transaction for U.S. federal income
tax purposes, entities treated as partnerships for
U.S. federal income tax purposes, U.S. holders, as
defined below, that have a functional currency other
than the U.S. dollar, persons subject to the alternative
minimum tax provisions of the Code and, except as expressly
indicated below, tax-exempt organizations.
In addition, if a partnership (including for this purpose any
entity treated as a partnership for U.S. federal income tax
purposes) is a holder of our equity stock, the tax treatment of
a partner in the partnership generally will depend upon the
status of the partner and upon the activities of the
partnership. Holders that are partnerships, and partners in such
partnerships, should consult their tax advisors about the
U.S. federal income tax consequences of purchasing, holding
and disposing of our equity stock.
As used herein, the term U.S. holder means any
beneficial owner of our equity stock who or that is for
U.S. federal income tax purposes (i) a citizen or
resident of the United States, (ii) a corporation (or other
entity treated as a corporation for U.S. federal income tax
purposes) created or organized in or under the laws of the
United States, any state thereof or the District of Columbia,
(iii) an estate the income of which is subject to
U.S. federal income taxation regardless of its source,
(iv) a trust if (A) a court within the United States
is able to exercise primary supervision over the administration
of the trust and (B) one or more U.S. persons have the
authority to control all substantial decisions of the trust, or
(v) certain eligible trusts that elect to be taxed as
U.S. persons under applicable U.S. Treasury
regulations. As used herein, the term
non-U.S. holder
means a beneficial owner of our equity stock who or that is not
a U.S. holder.
|
|
|
Taxation
of Taxable U.S. Holders
|
As long as we qualify as a REIT, distributions made to our
taxable U.S. holders on our equity stock out of current or
accumulated earnings and profits (and not designated as capital
gain dividends or qualified dividend income) will be
taken into account by them as ordinary income, and
U.S. holders that are corporations will not be entitled to
a dividends received deduction.
Qualified dividend income of noncorporate taxpayers
is currently taxed as net capital gain, thus reducing the
maximum tax rate on such dividends to 15% for taxable years
ending after December 31, 2002 and beginning before
January 1, 2009. In general, dividends paid by REITs are
not eligible for the 15% tax rate on qualified dividend
income and, as a result, our ordinary REIT dividends will
continue to be taxed at the higher ordinary income tax rate.
Dividends received by a noncorporate stockholder could be
treated as qualified dividend income, however, to
the extent we have dividend income from taxable corporations
(such as a taxable REIT subsidiary) and to the extent such
dividends are attributable to income that is subject to tax at
the REIT level (for example, if we distributed less than 100% of
our taxable income). In general, to qualify for the reduced tax
rate on qualified dividend income, a stockholder must hold our
common stock for more than 60 days during the
121-day
period beginning on the date that is 60 days before the
date on which our common stock becomes ex-dividend; different
holding periods apply to our preferred stock.
35
To the extent we make distributions in excess of current and
accumulated earnings and profits, these distributions are
treated first as a tax-free return of capital to the
U.S. holder, reducing the tax basis of a
U.S. holders equity stock by the amount of such
distribution (but not below zero), with distributions in excess
of the U.S. holders tax basis treated as proceeds
from a sale of equity stock, the tax treatment of which is
described below. Distributions will generally be taxable, if at
all, in the year of the distribution. However, any dividend
declared by us in October, November or December of any year and
payable to a U.S. holder who held our equity stock on a
specified record date in any such month shall be treated as both
paid by us and received by the U.S. holder on
December 31 of such year, provided that the dividend is
actually paid by us during January of the following calendar
year.
In general, distributions which are designated by us as capital
gain dividends will be taxable to U.S. holders as gain from
the sale of assets held for greater than one year, or
long-term capital gain. That treatment will apply
regardless of the period for which a U.S. holder has held
the equity stock upon which the capital gain dividend is paid.
However, corporate U.S. holders may be required to treat up
to 20% of certain capital gain dividends as ordinary income.
Noncorporate taxpayers are generally taxable at a current
maximum tax rate of 15% for long-term capital gain attributable
to sales or exchanges occurring on or after May 6, 2003 but
before January 1, 2009. A portion of any capital gain
dividends received by noncorporate taxpayers might be subject to
tax at a 25% rate to the extent attributable to gains realized
on the sale of real property that correspond to our
unrecaptured Section 1250 gain.
We may elect to retain, rather than distribute as a capital gain
dividend, our net long-term capital gain. In such event, we
would pay tax on such retained net long-term capital gain. In
addition, to the extent designated by us, a U.S. holder
generally would (1) include his proportionate share of such
undistributed long-term capital gain in computing his long-term
capital gain for his taxable year in which the last day of our
taxable year falls (subject to certain limitations as to the
amount so includable), (2) be deemed to have paid his share
of the U.S. federal income tax imposed on us on the
designated amounts included in such U.S. holders
long-term capital gain, (3) receive a credit or refund for
such amount of tax deemed paid by the U.S. holder,
(4) increase the adjusted basis of his equity stock by the
difference between the amount of such includable gain and the
tax deemed to have been paid by him, and (5) in the case of
a U.S. holder that is a corporation, appropriately adjust
its earnings and profits for the retained capital gains in
accordance with U.S. Treasury regulations.
Distributions made by us and gain arising from the sale or
exchange by a U.S. holder of equity stock will not be
treated as passive activity income, and as a result,
U.S. holders generally will not be able to apply any
passive losses against this income or gain.
U.S. holders may not include in their individual income tax
returns any of our net operating losses or capital losses.
Disposition of Equity Stock. Upon any taxable
sale or other disposition of our equity stock, a
U.S. holder will recognize gain or loss for
U.S. federal income tax purposes in an amount equal to the
difference between (1) the amount of cash and the fair
market value of any property received on the sale or other
disposition and (2) the U.S. holders adjusted
basis in the equity stock for tax purposes.
This gain or loss will be a capital gain or loss, and will be
long-term capital gain or loss, respectively if our equity stock
has been held for more than one year at the time of the
disposition. Noncorporate U.S. holders generally are
taxable at a current maximum rate of 15% on long-term capital
gain. The U.S. Treasury has the authority to prescribe, but
has not yet prescribed, regulations that would apply a capital
gain tax rate of 25% (which is generally higher than the
long-term capital gain tax rates for noncorporate
U.S. holders) to a portion of capital gain realized by a
noncorporate U.S. holder on the sale of REIT stock that
would correspond to the REITs unrecaptured
Section 1250 gain. U.S. holders are urged to
consult with their own tax advisors with respect to their
capital gain tax liability. A corporate U.S. holder will be
subject to tax at a maximum rate of 35% on capital gain from the
sale of our equity stock regardless of its holding period for
the shares.
In general, any loss upon a sale or exchange of our equity stock
by a U.S. holder who has held such shares for six months or
less (after applying certain holding period rules) will be
treated as a long-term capital loss, to the extent of
distributions (actually made or deemed made in accordance with
the discussion above) from us required to be treated by such
U.S. holder as long-term capital gain.
36
Information Reporting and Backup
Withholding. Payments of dividends on our equity
stock and proceeds received upon the sale, redemption or other
disposition of our shares may be subject to Internal Revenue
Service information reporting and backup withholding tax.
Payments to certain U.S. holders (including, among others,
corporations and certain tax-exempt organizations) are generally
not subject to information reporting or backup withholding.
Payments to a non-corporate U.S. holder generally will be
subject to information reporting. Such payments also generally
will be subject to backup withholding tax if such holder:
|
|
|
|
|
fails to furnish its taxpayer identification number, which for
an individual is ordinarily his or her social security number,
|
|
|
|
furnishes an incorrect taxpayer identification number,
|
|
|
|
is notified by the Internal Revenue Service that it has failed
to properly report payments of interest or dividends, or
|
|
|
|
fails to certify, under penalties of perjury, that it has
furnished a correct taxpayer identification number and that the
Internal Revenue Service has not notified the U.S. holder
that it is subject to backup withholding.
|
A U.S. holder that does not provide us with its correct
taxpayer identification number may also be subject to penalties
imposed by the Internal Revenue Service. Any amount paid as
backup withholding will be creditable against the
U.S. holders U.S. federal income tax liability,
if any, and otherwise will be refundable, provided that the
requisite procedures are followed.
You should consult your tax advisor regarding your qualification
for an exemption from backup withholding and information
reporting and the procedures for obtaining such an exemption, if
applicable.
|
|
|
Taxation
of Tax-Exempt U.S. Holders
|
Based upon a published ruling by the Internal Revenue Service, a
distribution by us to, and gain upon a disposition of our equity
stock by, a U.S. holder that is a tax-exempt entity will
not constitute unrelated business taxable income, or
UBTI, provided that the tax-exempt entity has not
financed the acquisition of its equity stock with
acquisition indebtedness within the meaning of the
Code and the stock is not otherwise used in an unrelated trade
or business of the tax-exempt entity. However, for tax-exempt
U.S. holders that are social clubs, voluntary employee
benefit associations, supplemental unemployment benefit trusts
and qualified group legal services plans exempt from
U.S. federal income taxation under Sections 501(c)(7),
(c)(9), (c)(l7) and (c)(20) of the Code, respectively, income
from an investment in us will constitute UBTI unless the
organization properly sets aside or reserves such amounts for
purposes specified in the Code. These tax-exempt
U.S. holders should consult their own tax advisers
concerning these set aside and reserve requirements.
Notwithstanding the preceding paragraph, however, a portion of
the dividends paid by us may be treated as UBTI to certain
domestic private pension trusts if we are treated as a
pension-held REIT. We believe that we are not, and
we do not expect to become, a pension-held REIT. If
we were to become a pension-held REIT, these rules generally
would only apply to certain pension trusts that held more than
10% of our shares.
Taxation
of
Non-U.S. Holders
The following is a discussion of certain anticipated
U.S. federal income tax consequences of the ownership and
disposition of our equity stock applicable to
non-U.S. holders
of such shares. The discussion is based on current law and is
for general information only. The discussion addresses only
certain and not all aspects of U.S. federal income
taxation. Special rules may apply to certain
non-U.S. holders
such as controlled foreign corporations and
passive foreign investment companies. Such entities
should consult their own tax advisors to determine the
U.S. federal, state, local and other tax consequences that
may be relevant to them.
37
|
|
|
Distributions
from the Company
|
1. Ordinary Dividends. The portion of
dividends received by
non-U.S. holders
payable out of our current and accumulated earnings and profits
which are not attributable to capital gains and which are not
effectively connected with a U.S. trade or business of the
non-U.S. holder
will be subject to U.S. withholding tax at the rate of 30%
(unless reduced by an applicable income tax treaty). In general,
non-U.S. holders
will not be considered engaged in a U.S. trade or business
solely as a result of their ownership of our equity stock. In
cases where the dividend income from a
non-U.S. holders
investment in our equity stock is effectively connected with the
non-U.S. holders
conduct of a U.S. trade or business (or, if an income tax
treaty applies, is attributable to a U.S. permanent
establishment of the
non-U.S. holder),
the
non-U.S. holder
generally will be subject to U.S. tax at graduated rates,
in the same manner as U.S. holders are taxed with respect
to such dividends (and may also be subject to the 30% branch
profits tax in the case of a corporate
non-U.S. holder).
2. Non-Dividend Distributions. Unless our
stock constitutes a USRPI (as defined below), distributions by
us which are not paid out of our current and accumulated
earnings and profits will not be subject to U.S. income or
withholding tax. If it cannot be determined at the time a
distribution is made whether or not such distribution will be in
excess of current and accumulated earnings and profits, the
distribution will be subject to withholding at the rate
applicable to dividends. However, the
non-U.S. holder
may seek a refund of such amounts from the Internal Revenue
Service if it is subsequently determined that such distribution
was, in fact, in excess of our current and accumulated earnings
and profits. If our equity stock constitutes a USRPI, a
distribution in excess of current and accumulated earnings and
profits will be subject to 10% withholding tax and may be
subject to additional taxation under FIRPTA (as defined below).
However, the 10% withholding tax will not apply to distributions
already subject to the 30% dividend withholding.
We expect to withhold U.S. federal income tax at the rate
of 30% on the gross amount of any distributions of ordinary
income made to a
non-U.S. holder
unless (1) a lower treaty rate applies and proper
certification is provided or (2) the
non-U.S. holder
files an Internal Revenue Service
Form W-8ECI
with us claiming that the distribution is effectively connected
with the
non-U.S. holders
conduct of a U.S. trade or business (or, if an income tax
treaty applies, is attributable to a U.S. permanent
establishment of the
non-U.S. holder).
However, the
non-U.S. holder
may seek a refund of such amounts from the Internal Revenue
Service if it is subsequently determined that such distribution
was, in fact, in excess of our current and accumulated earnings
and profits.
3. Capital Gain Dividends. Under the
Foreign Investment in Real Property Tax Act of 1980, or FIRPTA,
a distribution made by us to a
non-U.S. holder,
to the extent attributable to gains, which we refer to as
USRPI Capital Gains, from dispositions of United
States Real Property Interests, or USRPIs, will be
considered effectively connected with a U.S. trade or
business of the
non-U.S. holder
and therefore will be subject to U.S. income tax at the
rates applicable to U.S. holders, without regard to whether
such distribution is designated as a capital gain dividend. (The
properties owned by us generally are USRPIs.) Distributions
subject to FIRPTA may also be subject to a 30% branch profits
tax in the hands of a corporate
non-U.S. holder
that is not entitled to treaty exemption. Notwithstanding the
preceding, distributions received on our equity stock, to the
extent attributable to USRPI Capital Gains, will not be treated
as gain recognized by the
non-U.S. holder
from the sale or exchange of a USRPI if (1) the class of
our equity stock held by such
non-U.S. holder
is regularly traded on an established securities market located
in the United States and (2) the
non-U.S. holder
did not own more than 5% of such class of shares at any time
during the one-year period ending on the date of the
distribution. The distribution will instead be treated as an
ordinary dividend to the
non-U.S. holder,
and the tax consequences to the
non-U.S. holder
will be as described above under Ordinary Dividends.
Distributions attributable to our capital gains which are not
USRPI Capital Gains generally will not be subject to
U.S. federal income taxation, unless (1) investment in
our equity stock is effectively connected with the
non-U.S. holders
U.S. trade or business (or, if an income tax treaty
applies, is attributable to a U.S. permanent establishment
of the
non-U.S. holder),
in which case the
non-U.S. holder
will be subject to the same treatment as U.S. holders with
respect to such gain (except that a corporate
non-U.S. holder
may also be subject to the 30% branch profits tax), or
(2) the
non-U.S. holder
is a non-resident alien individual who is
38
present in the United States for 183 days or more during
the taxable year and certain other conditions are present, in
which case the non-resident alien individual will be subject to
a 30% tax on the individuals U.S. capital gain.
We generally will be required to withhold and remit to the
Internal Revenue Service 35% of any distributions to
non-U.S. holders
that are designated as capital gain dividends, or, if greater,
35% of a distribution that could have been designated as a
capital gain dividend. Distributions can be designated as
capital gain dividends to the extent of our net capital gain for
the taxable year of the distribution. The amount withheld is
creditable against the
non-U.S. holders
U.S. federal income tax liability. This withholding will
not apply to any amounts paid to a holder of not more than 5% of
a class of our equity stock while such class of stock is
regularly traded on an established securities market. Instead,
those amounts will be treated as described above under
Ordinary Dividends.
Disposition of Our Equity Stock. Unless our
equity stock constitutes a USRPI, a sale of such shares by a
non-U.S. holder
generally will not be subject to U.S. federal income
taxation unless (1) the investment in the equity stock is
effectively connected with the
non-U.S. holders
U.S. trade or business (or, if an income tax treaty
applies, is attributable to a U.S. permanent establishment
of the
non-U.S. holder),
or (2) the
non-U.S. holder
is a non-resident alien individual who is present in the United
States for 183 days or more during the taxable year and
certain other conditions are present.
Our equity stock will not constitute a USRPI if we are a
domestically controlled REIT. A domestically
controlled REIT is a REIT in which, at all times during a
specified testing period, less than 50% in value of its shares
is held directly or indirectly by
non-U.S. holders.
We believe that we are, and we expect to continue to be, a
domestically controlled REIT, and therefore that the sale of our
equity stock will not be subject to taxation under FIRPTA.
Because at least some classes of our equity stock will be
publicly traded, however, no assurance can be given that we will
continue to be a domestically controlled REIT.
Even if we do not constitute a domestically controlled REIT, a
non-U.S. holders
sale of our equity stock generally will not be subject to tax
under FIRPTA as a sale of a USRPI provided that (1) the
shares are regularly traded (as defined by
applicable U.S. Treasury regulations) on an established
securities market and (2) the selling non-U.S holder held
(taking into account constructive ownership rules) 5% or less of
our outstanding equity stock at all times during a specified
testing period. It is currently anticipated that our stock will,
in the future, be regularly traded on an established securities
market within the meaning of this provision.
If gain on the sale of our equity stock were to be subject to
taxation under FIRPTA, the
non-U.S. holder
would be subject to the same treatment as a U.S. holder
with respect to such gain (subject to applicable alternative
minimum tax and a special alternative minimum tax in the case of
non-resident alien individuals). In addition, the purchaser of
the equity stock could be required to withhold 10% of the
purchase price and remit such amount to the Internal Revenue
Service.
Information Reporting and Backup
Withholding. Backup withholding will apply to
dividend payments made to a
non-U.S. holder
of our equity stock unless the holder has certified that it is
not a U.S. holder and the payor has no actual knowledge
that the owner is not a
non-U.S. holder.
Information reporting generally will apply with respect to
dividend payments even if certification is provided.
Payment of the proceeds from a disposition of our shares by a
non-U.S. holder
made to or through the U.S. office of a broker is generally
subject to information reporting and backup withholding unless
the holder or beneficial owner certifies that it is not a
U.S. holder or otherwise establishes an exemption.
Generally, Internal Revenue Service information reporting and
backup withholding will not apply to a payment of disposition
proceeds if the payment is made outside the United States
through a foreign office of a foreign broker-dealer. If the
proceeds from a disposition of our shares are paid to or through
a foreign office of a U.S. broker-dealer or a
non-U.S. office
of a foreign broker-dealer that is (i) a controlled
foreign corporation for U.S. federal income tax
purposes, (ii) a person 50% or more of whose gross income
from all sources for a specified three-year period was
effectively connected with a U.S. trade or business,
(iii) a foreign partnership with one or more partners who
are U.S. persons and who in the aggregate hold more than
50% of the income or capital interest in the partnership, or
(iv) a foreign partnership engaged in the conduct of a
trade or business
39
in the United States, then backup withholding and information
reporting generally will apply unless the
non-U.S. holder
satisfies certification requirements regarding its status as a
non-U.S. holder
and the broker-dealer has no actual knowledge that the owner is
not a
non-U.S. holder.
A
non-U.S. holder
should consult its tax advisor regarding application of
withholding and backup withholding in its particular
circumstance and the availability of and procedure for obtaining
an exemption from withholding and backup withholding under
current U.S. Treasury regulations.
Other Tax
Considerations
|
|
|
Dividend
Reinvestment Program
|
Stockholders participating in our common stock dividend
reinvestment program are treated as having received the gross
amount of any cash distributions which would have been paid by
us to such Stockholders had they not elected to participate in
the program. These distributions will retain the character and
tax effect applicable to distributions from us generally.
Participants in the dividend reinvestment program are subject to
U.S. federal income and withholding tax on the amount of
the deemed distributions to the extent that such distributions
represent dividends or gains, even though they receive no cash.
Shares of our common stock received under the program will have
a holding period beginning with the day after purchase, and a
tax basis equal to their cost (which is the gross amount of the
distribution).
|
|
|
Possible
Legislative or Other Actions Affecting Tax
Considerations
|
Prospective investors should recognize that the present
U.S. federal income tax treatment of an investment in us
may be modified by legislative, judicial or administrative
action at any time, and that any such action may affect
investments and commitments previously made. The rules dealing
with U.S. federal income taxation are constantly under
review by persons involved in the legislative process and by the
Internal Revenue Service and the U.S. Treasury Department,
resulting in revisions of regulations and revised
interpretations of established concepts as well as statutory
changes. Revisions in U.S. federal tax laws and
interpretations thereof could adversely affect the tax
consequences of an investment in us.
We and our stockholders may be subject to state or local
taxation in various jurisdictions, including those in which we
or they transact business or reside. The state and local tax
treatment of us and our stockholders may not conform to the
U.S. federal income tax consequences discussed above.
Consequently, prospective stockholders should consult their own
tax advisers regarding the effect of state and local tax laws on
an investment in our equity stock.
SELLING
SECURITYHOLDERS
Information about selling securityholders, where applicable,
will be set forth in a prospectus supplement, in a
post-effective amendment, or in filings we make with the SEC
under the Exchange Act which are incorporated by reference.
PLAN OF
DISTRIBUTION
We may sell the offered securities on a delayed or continuous
basis through one or more agents, underwriters or dealers,
directly to one or more purchasers, through a combination of any
of these methods of sale, or in any other manner, as provided in
the applicable prospectus supplement. This prospectus may also
be used to offer any of these securities for the account of
persons other than us as provided in the applicable prospectus
supplement. We will identify the specific plan of distribution,
including any underwriters, dealers, agents or direct purchasers
and their compensation in a prospectus supplement.
40
FORWARD-LOOKING
STATEMENTS
This prospectus and the documents incorporated by reference in
this prospectus contain forward-looking statements
within the meaning of Section 27A of the Securities Act of
1933, Section 21E of the Exchange Act, and the Private
Securities Litigation Reform Act of 1995. Forward-looking
statements, by their nature, involve estimates, projections,
goals, forecasts, assumptions, risks and uncertainties that
could cause actual results or outcomes to differ materially from
those expressed in a forward-looking statement. Such
forward-looking statements include, without limitation,
statements concerning property acquisitions and dispositions,
development activity and capital expenditures, capital raising
activities, rent growth, occupancy and rental expense growth.
Examples of forward-looking statements also include statements
regarding our expectations, beliefs, plans, goals, objectives
and future financial or other performance. Words such as
expects, anticipates,
intends, plans, believes,
seeks, estimates and variations of such
words and similar expressions are intended to identify such
forward-looking statements. Any forward-looking statement speaks
only as of the date on which it is made; and, except to fulfill
our obligations under the United States securities laws, we
undertake no obligation to update any such statement to reflect
events or circumstances after the date on which it is made.
Although we believe that the assumptions underlying the
forward-looking statements contained herein are reasonable, any
of the assumptions could be inaccurate, and therefore we cannot
assure you that any of these statements included in this
document or in the documents incorporated by reference will
prove to be accurate. In light of the significant uncertainties
inherent in the forward-looking statements included herein, the
inclusion of such information should not be regarded as a
representation by us or any other person that the results or
conditions described in such statements or our objectives and
plans will be achieved.
LEGAL
MATTERS
Certain legal matters with respect to the securities being
offered hereby will be passed upon for us by
Morrison & Foerster LLP. Any agents or underwriters
will be represented by their own counsel named in the applicable
prospectus supplement.
EXPERTS
Ernst & Young LLP, independent registered public
accounting firm, has audited our consolidated financial
statements and schedule for the year ended December 31,
2004 included in our Current Report on
Form 8-K
filed on November 15, 2005, and has audited
managements assessment of the effectiveness of internal
control over financial reporting as of December 31, 2004
included in our Annual Report on
Form 10-K
for the year ended December 31, 2004, as set forth in their
reports, which are incorporated by reference in this prospectus
and elsewhere in the registration statement. Our financial
statements and schedule and managements assessment are
incorporated by reference in reliance on Ernst & Young
LLPs reports, given on their authority as experts in
accounting and auditing.
41
5,400,000
Shares
6.75%
Series G Cumulative Redeemable Preferred Stock
(Liquidation
Preference $25 Per Share)
Prospectus Supplement
May 23, 2007
Wachovia
Securities
Banc of America
Securities LLC
RBC Capital
Markets
Stifel
Nicolaus
Morgan Keegan
& Company, Inc.
Wells Fargo
Securities