As filed with the Securities and Exchange Commission on July 15, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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UNITED DOMINION REALTY TRUST, INC.
(Exact name of registrant as specified in its charter)
VIRGINIA 54-0857512
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
10 South 6th Street
Richmond, Virginia 23219-3802
(804) 780-2691
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Katheryn E. Surface
Senior Vice President and General Counsel
United Dominion Realty Trust, Inc.
10 South 6th Street
Richmond, Virginia 23219-3802
(804) 780-2691
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy to:
James W. Featherstone, III
Randell S. Parks
Hunton & Williams
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, Virginia 23219-4074
(804) 788-8200
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement in light of market
conditions and other factors.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: [ ]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434 under
the Securities Act, please check the following box: [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Proposed Maximum Proposed Maximum
Title of Each Class of Aggregate Amount Offering Price Per Aggregate Offering Amount of
Securities to be Registered to be Registered Unit(1) Price(1) Registration Fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $1.00 par value, per
share 95,119 shares $11.59375 $1,102,785.91 $306.58
====================================================================================================================
Rights to Purchase Series C
Junior Participating Redeemable
Preferred Stock, no par value (2) 95,119 rights N/A N/A N/A
====================================================================================================================
</TABLE>
(1) Calculated pursuant to Rule 457(c) under the Securities Act of 1933, as
amended.
(2) The rights will be attached to and trade with the common stock.
-----------------------
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, as amended, or until this registration statement shall
become effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
SUBJECT TO COMPLETION, DATED JULY , 1999
Prospectus
95,119 Shares
United Dominion Realty Trust, Inc.
Common Stock
Our common stock trades on the New York Stock Exchange under the symbol
"UDR."
We are the general partner of United Dominion Realty, L.P., a Delaware
limited partnership. On July 2, 1998, United Dominion Realty, L.P. issued 95,119
units of limited partnership interest to certain individuals and entities (the
"Unitholders") as partial consideration for 716 multi-family apartment homes.
The Unitholders have the option of redeeming all or a portion of those
partnership units for cash or shares of our common stock. If the Unitholders
choose to redeem all or a portion of their partnership units, and if we choose
to acquire those units in exchange for common stock, then the Unitholders will
receive one share of our common stock for each unit redeemed.
The shares may be offered and sold by the Unitholders or their
transferees from time to time in open-market or privately-negotiated
transactions which may involve underwriters or brokers.
We will not receive any of the proceeds from the sale of the shares by
the Unitholders, and the registration of the shares does not necessarily mean
that any of them will be issued by us or offered or sold by the Unitholders.
In part so that we can continue to qualify as a "real estate investment
trust" under federal tax laws, our charter does not permit anyone to own more
than 9.8% of our outstanding common stock. This and other limits on who can own
our common stock are described in this prospectus under "Restrictions on
Ownership and Transfer."
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Neither the Securities and Exchange Commission nor any other state securities
commission has approved or disapproved these securities or determined if this
prospectus is truthful and complete. Any representation to the contrary is
a crime.
- --------------------------------------------------------------------------------
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The date of this Prospectus is July , 1999.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNITL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
TABLE OF CONTENTS
Page
A WARNING ABOUT FORWARD-LOOKING STATEMENTS....................1
UNITED DOMINION REALTY TRUST, INC.............................2
DESCRIPTION OF CAPITAL STOCK..................................2
RESTRICTIONS ON TRANSFER OF CAPITAL STOCK.....................3
REDEMPTION OF UNITS...........................................3
FEDERAL INCOME TAX CONSEQUENCES OF UNITED DOMINION'S
STATUS AS A REIT....................................10
PLAN OF DISTRIBUTION.........................................22
EXPERTS......................................................23
LEGAL MATTERS................................................23
IF YOU WOULD LIKE ADDITIONAL INFORMATION.....................24
<PAGE>
A WARNING ABOUT FORWARD-LOOKING STATEMENTS
This prospectus, and the documents incorporated by reference, may
contain "forward-looking" statements. These forward looking statements usually
include words like "believes," "anticipates" and "expects" and describe our
expectations for the future. Of course, these expectations may not be met in
important ways for a variety of reasons. We have described these reasons in our
most recent Annual Report on Form 10-K and the other reports we file with the
SEC, and you should review them before you decide to buy our stock. We are not
required to update any forward-looking statements we make and we may not.
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UNITED DOMINION REALTY TRUST, INC.
United Dominion, a Virginia corporation headquartered in Richmond,
Virginia, is a self-administered real estate investment trust ("REIT"), whose
business is the ownership and operation of apartment communities located
throughout the United States. United Dominion is a fully integrated real estate
company with acquisition, development and property management capabilities. At
March 31, 1999, United Dominion's portfolio consisted of 329 communities
containing 86,989 apartment homes. United Dominion's apartment portfolio also
included seven communities with 2,076 apartment homes under development (of
which 772 were completed) and two additions to existing communities with 316
apartment homes (72 of which were completed). United Dominion had approximately
2,600 employees as of March 31, 1999.
United Dominion operates as a REIT under the federal income tax laws.
To qualify as a REIT, United Dominion must meet certain tests which, among other
things, require that (1) its assets consist primarily of real estate, (2) its
income be derived primarily from real estate and (3) at least 95% of its taxable
income be distributed to its shareholders each year. Because United Dominion
qualifies as a REIT, it generally is not subject to federal income taxes.
DESCRIPTION OF CAPITAL STOCK
General
United Dominion is authorized to issue 150,000,000 shares of common
stock, $1.00 par value, and 25,000,000 shares of preferred stock, no par value.
At July 2, 1999, there were outstanding 104,256,539 shares of common stock and
18,200,000 shares of preferred stock, consisting of 4,200,000 shares of United
Dominion's 9.25% Series A Cumulative Redeemable Preferred Stock (the "Series A
Preferred"), 6,000,000 shares of United Dominion's 8.60 % Series B Cumulative
Redeemable Preferred Stock (the "Series B Preferred"), 0 shares of United
Dominion's Series C Junior Participating Cumulative Redeemable Preferred Stock
(the "Series C Preferred") and 8,000,000 shares of United Dominion's 7.5% Series
D Cumulative Convertible Redeemable Preferred Stock (the "Series D Preferred").
The following statements with respect to the capital stock of United Dominion
are subject to the detailed provisions of United Dominion's Restated Articles of
Incorporation, as amended (the "Articles"), and bylaws (the "Bylaws") as
currently in effect. These statements do not purport to be complete, or to give
full effect to the terms of the provisions of statutory or common law, and are
subject to, and are qualified in their entirety by reference to, the terms of
the Articles and Bylaws, which are filed as exhibits to the registration
statement of which this prospectus is a part.
Common Stock
Holders of common stock are entitled to receive dividends when and as
declared by the Board of Directors after payment of, or provision for, full
cumulative dividends on and any required redemptions of shares of preferred
stock then outstanding. Holders of common stock have one vote per share and
non-cumulative voting rights, which means that holders of more than 50% of the
shares voting can elect all of the directors if they choose to do so, and, in
such event, the holders of the remaining shares will not be able to elect any
directors. In the event of any voluntary or involuntary liquidation or
dissolution of United Dominion, holders of common stock are entitled to share
ratably in the distributable assets of United Dominion remaining after
satisfaction of the prior preferential rights of the preferred stock and the
satisfaction of all debts and liabilities of United Dominion. Holders of common
stock do not have preemptive rights. The dividend and liquidation rights of
holders of the common stock are specifically limited by the terms of the Series
A Preferred, the Series B Preferred, the Series C Preferred and the Series D
Preferred, as described in the description of United Dominion's preferred stock
contained in United Dominion's registration statements on Form 8-A, as amended,
filed pursuant to Section 12 of the Exchange Act on May 1, 1995, June 11, 1997
and February 4, 1998. The transfer agent for the common stock is Chase Mellon
Shareholder Services, L.L.C., Ridgefield Park, New Jersey.
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Rights to Purchase Series C Preferred Stock
Each share of common stock has attached to it one right to purchase
from the Company one one-thousandth of a share of Series C Preferred. 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 will separate from the common stock and a distribution of
certificates evidencing the rights will occur upon the earlier of (i) 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 (ii) 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.
The rights will expire at the close of business on February 4, 2008,
unless earlier redeemed or exchanged by United Dominion. A more complete
description of the rights and the Series C Preferred is contained in United
Dominion's registration statement on Form 8-A, as amended, as filed on February
4, 1998.
Preferred Stock
The preferred stock is described in United Dominion's registration
statements on Form 8-A, as amended, filed pursuant to Section 12 of the Exchange
Act on May 1, 1995, June 11, 1997 and February 4, 1998.
RESTRICTIONS ON TRANSFER OF CAPITAL STOCK
For United Dominion to qualify as a REIT under federal income tax laws,
its shares of capital stock must be held by a minimum of 100 persons for at
least 335 days in each calendar year or during a proportionate part of a shorter
calendar year. In addition, at all times during the second half of each calendar
year, no more than 50% in value of the shares of capital stock of United
Dominion may be owned, directly or indirectly by five or fewer individuals.
Because the Board of Directors believes it is essential for United Dominion to
continue to qualify as a REIT, the Articles permit the Board of Directors to
prevent an individual or individuals from directly or indirectly owning shares
to the extent that such ownership would disqualify United Dominion as a REIT.
If the Board of Directors, in its good faith, determines that an
individual's or individuals' ownership of stock may disqualify United Dominion
as a REIT, the Board of Directors may call for a redemption (by lot or other
equitable means) to redeem a number of shares sufficient to maintain United
Dominion's REIT status. The redemption price per share shall be the closing sale
price on the NYSE as of the business day preceding the day on which notice of
redemption is given. In addition, United Dominion may stop any acquisition or
transfer of shares that would jeopardize United Dominion's REIT status.
REDEMPTION OF UNITS
Redemption Rights
Pursuant to the partnership agreement, the limited partners of United
Dominion Realty, L.P. generally have the right to cause the redemption of their
interests in United Dominion Realty, L.P. Each limited partner may, subject to
certain limitations, require that United Dominion Realty, L.P. redeem all or a
portion of his units at any time after one year from the date the units were
acquired by delivering a notice of exercise of redemption right to United
Dominion Realty, L.P. and United Dominion. The form of notice is an exhibit to
the United Dominion Realty, L.P. Partnership Agreement. A limited partner must
request the redemption of at least 1,000 units (or all of the units held by such
holder, if less than 1,000 are so held).
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<PAGE>
Upon redemption, each limited partner generally will receive from
United Dominion Realty, L.P. cash equal to the value of the units being
redeemed. The value of each unit will be assumed to be equal to the market value
of one share of United Dominion common stock. The market value of the common
stock for this purpose will be equal to the average of the closing trading
prices of the common stock (or substitute information, if no such closing prices
are available) on the NYSE for the ten consecutive trading days before the day
on which the redemption notice was received by United Dominion.
Instead of United Dominion Realty, L.P. redeeming the units, United
Dominion, in its sole discretion, may elect to purchase the units directly by
paying to the limited partner either (A) a number of shares of common stock
equal to the number of units being redeemed, or (B) cash in an amount equal to
the cash value of the units, as determined pursuant to the preceding paragraph.
If United Dominion exercises its right to purchase the units, then United
Dominion Realty, L.P. has no obligation to redeem the units.
United Dominion anticipates that it generally will elect to purchase
units through the issuance of shares of common stock. The acquisition will be
treated as a sale of the units to United Dominion for federal income tax
purposes. See "-- Tax Consequences of Redemption." Upon purchase or redemption,
a limited partner will no longer have the right to receive distributions with
respect to the units.
A limited partner may not redeem his units if receipt of common stock
in exchange for those units would:
o result in that partner or any other person owning, directly or indirectly,
more than 9.8% of United Dominion's outstanding common stock,
o result in common stock being owned by fewer than 100 persons (determined
without reference to any rules of attribution),
o result in United Dominion being "closely held" under the federal income
tax laws,
o cause United Dominion to own, actually or constructively, 10% or more of
the ownership interests in a tenant of United Dominion's or United
Dominion Realty, L.P.'s real property, or
o cause the acquisition of common stock by the partner to be "integrated"
with any other distribution of common stock for purposes of complying with
the registration provisions of the Securities Act of 1933, as amended.
United Dominion, in its sole discretion, may waive this restriction and
permit a limited partner to exercise its redemption rights, but only if the
limited partner receives cash in exchange for the units.
Comparison of Ownership of Units and Redemption Shares
The information below highlights a number of the significant
differences between United Dominion Realty, L.P. and United Dominion and
compares legal rights associated with the ownership of units and common stock,
respectively. These comparisons are intended to assist limited partners of
United Dominion Realty, L.P. in understanding how their investment will be
changed if their units are purchased for shares of common stock. This discussion
is summary in nature and does not constitute a complete discussion of these
matters. Holders of units should carefully review the balance of this prospectus
and the registration statement of which this prospectus is a part for additional
important information about United Dominion.
Form of Organization and Assets Owned. United Dominion Realty, L.P. is
organized as a Virginia limited partnership. United Dominion is a Virginia
corporation. United Dominion elected to be taxed as a REIT under the federal tax
laws effective for its taxable year ended December 31, 1972 and intends to
maintain its qualification as a REIT.
Length of Investment. United Dominion Realty, L.P. has a stated
termination date of December 31, 2051, although it may be terminated earlier
under certain circumstances. United Dominion has a perpetual term and intends to
continue its operations for an indefinite time period.
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<PAGE>
Additional Equity. United Dominion Realty, L.P. is authorized to issue
units and other partnership interests to its partners or to other persons for
such consideration and on such terms and conditions as United Dominion, in its
sole discretion, may deem appropriate. In addition, United Dominion may cause
United Dominion Realty, L.P. to issue additional units, or other partnership
interests in one or more different series or classes which may be senior to the
units. Consideration for additional partnership interests may be cash or other
property or other assets permitted by Virginia law.
Under the Articles, the total number of shares of all classes of stock
that United Dominion has the authority to issue is 150,000,000 shares of common
stock and 25,000,000 shares of preferred stock. As of the date of this
prospectus, 18,200,000 shares of preferred stock are outstanding.
Management and Control. All management and control over the business of
United Dominion Realty, L.P. are vested in United Dominion, as general partner
of United Dominion Realty, L.P., and no limited partner has any right to
participate in or exercise management or control over the business of United
Dominion Realty, L.P. Upon the occurrence of an event of bankruptcy or the
dissolution of United Dominion, United Dominion shall be deemed to be removed as
general partner; otherwise, United Dominion may not be removed by the limited
partners with or without cause.
The Board of Directors has exclusive control over United Dominion's
business and affairs subject to the restrictions in the Articles and Bylaws. The
Board of Directors has adopted certain policies with respect to acquisitions,
development, investing, financing and conflicts of interest, but these policies
may be altered or eliminated without a vote of the shareholders. Accordingly,
except for their vote in the elections of directors, shareholders have no
control over the ordinary business policies of United Dominion.
Fiduciary Duties. Under Virginia law, United Dominion is accountable to
United Dominion Realty, L.P. as a fiduciary and, consequently, is required to
exercise good faith in all of its dealings with respect to partnership affairs.
However, under the United Dominion Realty, L.P. Partnership Agreement, United
Dominion is under no obligation to take into account the tax consequences to any
limited partner of any action taken by it, and United Dominion will have no
liability to a limited partner as a result of any damages suffered by or
benefits not derived by a limited partner as a result of an action or inaction
of United Dominion so long as United Dominion acted in good faith.
Under Virginia law, United Dominion's directors must perform their
duties in good faith, in a manner that they believe to be in the best interests
of United Dominion and with the care an ordinarily prudent person in a like
situation would exercise under similar circumstances. Directors of United
Dominion who act in such a manner generally will not be liable to United
Dominion for monetary damages arising from their activities.
Management Limitation of Liability and Indemnification. The United
Dominion Realty, L.P. Partnership Agreement generally provides that United
Dominion will incur no liability for monetary damages to United Dominion Realty,
L.P. or any limited partner for losses sustained as a result of errors in
judgment or of any act or omission if United Dominion acted in good faith. In
addition, United Dominion is not responsible for any misconduct or negligence on
the part of its agents, provided United Dominion appointed the agents in good
faith. The partnership agreement also provides for indemnification of United
Dominion, the directors and officers of United Dominion and other persons that
United Dominion designates, against any and all losses, claims, damages,
liabilities (joint or several), expenses (including reasonable legal fees and
expenses), judgments, fines, settlements and other amounts arising from any and
all claims, demands, actions, suits or proceedings, whether civil, criminal,
administrative or investigative, that relate to the operations of United
Dominion Realty, L.P. in which such person may be involved, or is threatened to
be involved. However, United Dominion Realty, L.P. shall not indemnify any
person (A) for an act or omission of that person that was material to the matter
giving rise to the proceeding and either was committed in bad faith or was the
result of active and deliberate dishonesty, (B) if the person actually received
an improper benefit in money, property or services or (C) in the case of any
criminal proceeding, if the person had reasonable cause to believe that the act
or omission was unlawful. Any indemnification will be made only out of assets of
United Dominion Realty, L.P.
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United Dominion's Articles obligate it to indemnify and advance
expenses to present and former directors and officers to the maximum extent
permitted by Virginia law. Virginia law permits a corporation to indemnify its
present and former directors and officers, among others, against judgments,
settlements, penalties, fines or reasonable expenses incurred with respect to a
proceeding to which they may be made a party by reason of their service in those
or other capacities if (A) the persons conducted themselves in good faith, (B)
they reasonably believed, in the case of conduct in their official capacities
with the corporation, that their conduct was in its best interests and, in all
other cases, that their conduct was at least not opposed to its best interests,
and (C) in the case of any criminal proceeding, they had no reasonable cause to
believe that their conduct was unlawful. Any indemnification by United Dominion
pursuant to the provisions of the Articles described above will be paid out of
the assets of United Dominion and will not be recoverable from the shareholders.
The VSCA permits the charter of a Virginia corporation to include a
provision eliminating or limiting the personal liability of its directors to the
corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, except that the provision cannot eliminate or limit the
liability of a director (A) for any breach of the director's duty of loyalty to
the corporation or its shareholders, (B) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of the law, or
(C) for unlawful distributions that exceed what could have been distributed
without violating Virginia law or the corporation's charter. United Dominion's
Articles contain a provision eliminating the personal liability of its directors
or officers to United Dominion or its shareholders for money damages to the
maximum extent permitted by Virginia law from time to time.
Anti-Takeover Provisions. Except in limited circumstances, United
Dominion has exclusive management power over the business and affairs of United
Dominion Realty, L.P. United Dominion may not be removed as general partner by
the limited partners with or without cause. Under the Partnership Agreement,
United Dominion may, in its sole discretion, prevent a limited partner from
transferring his interest or any rights as a limited partner. United Dominion
may exercise this right of approval to deter, delay or hamper attempts by
persons to acquire a controlling interest in United Dominion Realty, L.P.
As described above under "Restrictions on Transfer of Capital Stock,"
United Dominion's Board of Directors may restrict the acquisition of shares of
common stock.
In addition, Virginia has enacted several statutory provisions to deter
takeovers of Virginia corporations. Virginia law generally requires that any
merger, share exchange or sale of substantially all of the assets of a
corporation not in the ordinary course of business be approved by at least
two-thirds of the votes entitled to be cast by each voting group entitled to
vote, unless the articles of incorporation provide for a greater or lesser vote
(but in no event less than a majority of votes cast by each such voting group at
a meeting at which a quorum of the voting group exists). United Dominion's
Articles and Bylaws do not provide for a greater or lesser vote for the approval
of extraordinary transactions.
Virginia corporate law also contains provisions governing "Affiliated
Transactions." These provisions, with several exceptions discussed below,
require approval of material acquisition transactions between a Virginia
corporation and any holder of more than 10% of any class of its outstanding
voting shares (an "Interested Shareholder") by the holders of at least
two-thirds of the remaining voting shares. Affiliated Transactions subject to
this approval requirement include mergers, share exchanges, material
dispositions of corporate assets not in the ordinary course of business, any
dissolution of the corporation proposed by or on behalf of an Interested
Shareholder, or any reclassification, including reverse stock splits,
recapitalization or merger of the corporation with its subsidiaries which
increases the percentage of voting shares owned beneficially by an Interested
Shareholder by more than five percent.
For three years following the time that an Interested Shareholder
becomes an owner of 10% of the outstanding voting shares of a corporation, the
corporation cannot engage in an Affiliated Transaction with that Interested
Shareholder without approval of two-thirds of the voting shares other than those
shares beneficially owned by the Interested Shareholder, and majority approval
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of the "Disinterested Directors." A Disinterested Director means, with respect
to a particular Interested Shareholder, a member of the board of directors who
was (A) a member on the date on which the Interested Shareholder became an
Interested Shareholder and (B) recommended for election by, or was elected to
fill a vacancy and received the affirmative vote of, a majority of the
Disinterested Directors then on the board. At the expiration of the three-year
period, the statute requires approval of Affiliated Transactions by two-thirds
of the voting shares other than those beneficially owned by the Interested
Shareholder.
The principal exceptions to the special voting requirement apply to
transactions proposed after the three-year period has expired and require either
that the transaction be approved by a majority of the corporation's
Disinterested Directors or that the transaction satisfy the fair-price
requirements of the statute. In general, the fair-price requirement provides
that in a two-step acquisition transaction, the Interested Shareholder must pay
the shareholders in the second step either the same amount of cash or the same
amount and type of consideration paid to acquire the Virginia corporation's
shares in the first step.
None of the foregoing limitations and special voting requirements
applies to a transaction with an Interested Shareholder (A) whose acquisition of
shares making such person an Interested Shareholder was approved by a majority
of the Virginia corporation's Disinterested Directors or (B) who was an
Interested Shareholder on the date the corporation became subject to these
provisions by virtue of its having 300 shareholders of record.
In addition, the statute provides that, by affirmative vote of a
majority of the voting shares other than shares owned by any Interested
Shareholder, a corporation can adopt an amendment to its articles of
incorporation or bylaws providing that the Affiliated Transactions provisions
shall not apply to the corporation. United Dominion has not "opted out" of the
Affiliated Transactions provisions.
Virginia corporate law also contains provisions regulating certain
"control share acquisitions," which are transactions causing the voting strength
of any person acquiring beneficial ownership of shares of a public corporation
in Virginia to meet or exceed certain threshold percentages (20%, 33 1/3% or
50%) of the total votes entitled to be cast for the election of directors.
Shares acquired in a control share acquisition have no voting rights unless (A)
the voting rights are granted by a majority vote of all outstanding shares other
than those held by the acquiring person or any officer or employee director of
the corporation, or (B) the articles of incorporation or bylaws of the
corporation provide that these Virginia law provisions do not apply to
acquisitions of its shares. The acquiring person may require that a special
meeting of the shareholders be held to consider the grant of voting rights to
the shares acquired in the control share acquisition. United Dominion has not
adopted an amendment to its Articles or Bylaws making these provisions
inapplicable to acquisition of its shares.
Voting Rights. Under the Partnership Agreement, the limited partners
have voting rights only as to the continuation of United Dominion Realty, L.P.
in certain circumstances and as to certain amendments of the Partnership
Agreement, as described more fully below. Otherwise, all decisions relating to
the operation and management of United Dominion Realty, L.P. are made by United
Dominion. At June 30, 1999, United Dominion held approximately 81% of the
outstanding interests in United Dominion Realty, L.P. As units held by limited
partners are redeemed, United Dominion's percentage ownership of United Dominion
Realty, L.P. will increase. If additional units are issued to third parties,
United Dominion's percentage ownership of United Dominion Realty, L.P. will
decrease.
Shareholders of United Dominion have the right to vote on, among other
things, a merger or sale of substantially all of the assets of United Dominion,
certain amendments to the Articles and dissolution of United Dominion. All
shares of common stock have one vote, and the Articles permit the Board of
Directors to classify and issue preferred stock in one or more series having
voting power which may differ from that of the common stock. See "Description of
Capital Stock."
Amendment of the Partnership Agreement or the Articles. The United
Dominion Realty, L.P. Partnership Agreement may be amended by United Dominion
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without the consent of the limited partners in any respect, except that certain
amendments affecting the fundamental rights of a limited partner must be
approved by consent of limited partners (other than United Dominion or any
subsidiary of United Dominion) holding more than 50% of the units. Such consent
is required for any amendment that would:
o affect the redemption rights,
o adversely affect the rights of limited partners to receive
distributions payable to them under United Dominion Realty, L.P.
Agreement,
o alter United Dominion Realty, L.P.'s profit and loss allocations,
o alter the provisions relating to the amendment of the United Dominion
Realty, L.P. Partnership Agreement, or
o impose any obligation upon the limited partners to make additional
capital contributions to United Dominion Realty, L.P.
The Articles may be amended by the affirmative vote of the holders of a
majority of the shares of each voting group entitled to vote on the amendment.
United Dominion's Bylaws may be amended by the Board of Directors or by vote of
the holders of a majority of the outstanding shares.
Vote Required to Dissolve United Dominion Realty, L.P. or United
Dominion. At any time prior to December 31, 2051 (upon which date United
Dominion Realty, L.P. shall terminate), United Dominion may elect to dissolve
United Dominion Realty, L.P. in its sole discretion. Dissolution shall also
occur upon (A) the bankruptcy, dissolution or withdrawal of United Dominion
(unless the limited partners unanimously elect to continue United Dominion
Realty, L.P.), (B) the passage of 90 days after the sale or other disposition of
all or substantially all the assets of United Dominion Realty, L.P. or (C) the
redemption of all of the outstanding units (other than those held by United
Dominion or any subsidiary of United Dominion, if any).
Under Virginia law, the Board of Directors generally must recommend and
the holders of two-thirds of the outstanding common stock entitled to vote must
approve any proposal in order to dissolve United Dominion.
Vote Required to Sell Assets or Merge. Under its Partnership Agreement,
the sale, exchange, transfer or other disposition of all or substantially all of
United Dominion Realty, L.P.'s assets or merger or consolidation of United
Dominion Realty, L.P. requires only the consent of United Dominion. Under
Virginia law, any merger or share exchange of United Dominion requires the
separate approval of the Board of Directors and each group of shareholders
entitled to vote on the matter by two-thirds of all votes entitled to be cast by
such group. Under Virginia law, the sale of all or substantially all of the
assets of United Dominion other than in the normal course of business requires
the approval of the Board of Directors and holders of two-thirds of the
outstanding shares of common stock. No approval of the shareholders is required
for the sale of United Dominion's assets in the usual and regular course of
business.
Compensation, Fees and Distributions. United Dominion does not receive
any compensation for its services as general partner of United Dominion Realty,
L.P. As a partner in United Dominion Realty, L.P., however, United Dominion has
the same right to allocations and distributions as other partners of United
Dominion Realty, L.P. In addition, United Dominion Realty, L.P. will reimburse
United Dominion for all expenses incurred relating to the ongoing operation of
United Dominion Realty, L.P. and any offering of partnership interests in United
Dominion Realty, L.P. or capital stock of United Dominion.
Liability of Investors. Under the United Dominion Realty, L.P.
Partnership Agreement and applicable state law, the liability of the limited
partners for United Dominion Realty, L.P.'s debts and obligations is generally
limited to the amount of their investment in United Dominion Realty, L.P., and
limited partners are generally not liable for any debts, liabilities, contracts
or obligations of United Dominion Realty, L.P.
Under Virginia law, United Dominion's shareholders are not personally
liable for the debts or obligations of United Dominion.
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Nature of Investments. The units constitute equity interests entitling
each limited partner to his pro rata share of cash distributions made to the
limited partners of United Dominion Realty, L.P. United Dominion Realty, L.P.
generally intends to retain and reinvest in its business proceeds of the sale of
property or excess refinancing proceeds.
The shares of common stock constitute equity interests in United
Dominion. United Dominion is entitled to receive its pro rata share of
distributions made by United Dominion Realty, L.P. with respect to the units,
and each shareholder will be entitled to his pro rata share of any dividends or
distributions paid with respect to the common stock. The dividends payable to
the shareholders are not fixed in amount and are only paid if, when and as
declared by the Board of Directors. In order to qualify as a REIT, United
Dominion must distribute at least 95% of its annual taxable income (excluding
capital gains), and any taxable income (including capital gains) not distributed
will be subject to corporate income tax.
Potential Dilution of Rights. United Dominion is authorized, in its
sole discretion and without the consent of the limited partners, to cause United
Dominion Realty, L.P. to issue additional limited partnership interests and
other equity securities for any partnership purpose at any time to the limited
partners or to other persons on terms and conditions established by United
Dominion.
The Board of Directors of United Dominion may issue, in its discretion,
additional shares of common stock and a variety of other equity securities of
United Dominion with such powers, preferences and rights as the Board of
Directors may designate. The issuance of additional shares of either common
stock or other similar or senior equity securities may result in the dilution of
the interests of the shareholders.
Liquidity. Subject to certain exceptions, a limited partner may not
transfer all or any portion of his units without (A) obtaining the prior written
consent of United Dominion, which consent may be withheld in the sole and
absolute discretion of United Dominion, and (B) meeting certain other
requirements set forth in the United Dominion Realty, L.P. Partnership
Agreement. Limited partners should expect to hold their units until they redeem
them for cash or shares of common stock, or until United Dominion Realty, L.P.
terminates. The right of a transferee to become a substituted limited partner
also is subject to the consent of United Dominion, which consent may be withheld
in its sole and absolute discretion. If United Dominion does not consent to the
admission of a transferee, the transferee will succeed to all economic rights
and benefits attributable to such units but will not become a limited partner or
possess any other rights of limited partners (including the right to vote on or
consent to actions of United Dominion Realty, L.P.). United Dominion has the
right to redeem any units held by a transferee who does not become a substituted
limited partner within 20 business days of the transfer. United Dominion may
require, as a condition of any transfer, that the transferring limited partner
assume all costs incurred by United Dominion Realty, L.P. in connection with
such transfer.
Federal Income Taxation. United Dominion Realty, L.P. is not subject to
federal income taxes. Instead, each holder of an interest in United Dominion
Realty, L.P. takes into account its allocable share of United Dominion Realty,
L.P.'s taxable income or loss in determining its federal income tax liability.
As of January 1, 1999, the maximum federal income tax rate for individuals was
39.6%. Income and loss from United Dominion Realty, L.P. generally is subject to
the "passive activity" limitations. Under the "passive activity" rules, income
and loss from United Dominion Realty, L.P. that is considered "passive" income
or loss generally can be offset against income and loss, including passive loss
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carry-forwards from prior years, from other investments that constitute "passive
activities", unless United Dominion Realty, L.P. is considered a "publicly
traded partnership," in which case income and loss from United Dominion Realty,
L.P. can only be offset against other income and loss from United Dominion
Realty, L.P. Income of United Dominion Realty, L.P., however, that is
attributable to dividends or interest does not qualify as passive income and
cannot be offset with losses and deductions from a "passive activity." Cash
distributions from United Dominion Realty, L.P. are not taxable to a holder of
units except to the extent they exceed such holder's basis in its units, which
will include such holder's allocable share of United Dominion Realty, L.P.'s
debt. Each year, holders of units will receive a Schedule K-1 tax form
containing detailed tax information for inclusion in preparing their federal
income tax returns. Holders of units are required in some cases to file state
income tax returns and/or pay state income taxes in the states in which United
Dominion Realty, L.P. owns property, even if they are not residents of those
states, and in some such states United Dominion Realty, L.P. is required to
remit a withholding tax with respect to distributions to such nonresidents.
United Dominion elected to be taxed as a REIT effective for its taxable
year ended December 31, 1972. As long as it qualifies as a REIT, United Dominion
generally will be permitted to deduct distributions paid to its shareholders,
which effectively will reduce or eliminate the "double taxation" that typically
results when a corporation earns income and distributes that income to its
shareholders in the form of dividends. A REIT, however, is subject to federal
income tax on income that is not distributed and also may be subject to federal
income and excise taxes in certain circumstances. The maximum federal income tax
rate for corporations currently is 35% and for individuals is 39.6%. Dividends
paid by United Dominion will be treated as "portfolio" income and cannot be
offset with losses from "passive activities." Distributions made by United
Dominion to its taxable domestic shareholders out of current or accumulated
earnings and profits will be taken into account by them as ordinary income.
Distributions that are designated as capital gain dividends generally will be
taxed as long-term capital gain, subject to certain limitations. Distributions
in excess of current and accumulated earnings and profits will be treated as a
non-taxable return of capital to the extent of a shareholder's adjusted basis in
its common stock, and the excess over a shareholder's adjusted basis will be
taxed as capital gain. Each year, shareholders of United Dominion, other than
certain institutional investors, will receive IRS Form 1099, which is used by
corporations to report dividends paid to their shareholders. Shareholders who
are individuals generally should not be required to file state income tax
returns and/or pay state income taxes outside of their state of residence with
respect to United Dominion's operations and distributions. United Dominion may
be required to pay state income and/or franchise taxes in certain states.
FEDERAL INCOME TAX CONSEQUENCES
OF UNITED DOMINION'S STATUS AS A REIT
The following sections summarize the federal income tax issues that
you, as a redeeming limited partner and prospective shareholder of United
Dominion, may consider relevant. Because this section is a summary, it does not
address all of the tax issues that may be important to you. In addition, this
section does not address the tax issues that may be important to shareholders
that are subject to special treatment under the federal income tax laws, such as
insurance companies, tax-exempt organizations, except to the extent discussed in
"--Taxation of Tax-Exempt Stockholders" below, financial institutions or
broker-dealers, and non-U.S. individuals and foreign corporations, except to the
extent discussed in "--Taxation of Non-U.S. Stockholders" below.
The statements in this section are based on the current federal income
tax laws governing our qualification as a REIT. United Dominion cannot assure
you that new laws, interpretations thereof, or court decisions, any of which may
take effect retroactively, will not cause any statement in this section to be
inaccurate.
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United Dominion urges you to consult your own tax advisor regarding the
specific tax consequences to you of redeeming your units for common stock and of
United Dominion's election to be taxed as a REIT. Specifically, you should
consult your own tax advisor regarding the federal, state, local, foreign and
other tax consequences of such investment and election, and regarding potential
changes in applicable tax laws.
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Tax Consequences of Redemption
The following discussion summarizes certain federal income tax
considerations that may be relevant to a limited partner who exercises his right
to require the redemption of his units.
Tax Treatment of Redemption of Units. Upon a limited partner's exercise
of his redemption right, United Dominion may elect to purchase the units. See
"--- Redemption Rights." If United Dominion assumes the redemption obligation
and purchases units from a redeeming limited partner, the United Dominion
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Realty, L.P. Partnership Agreement provides that the redemption will be treated
by United Dominion, United Dominion Realty, L.P., and the redeeming limited
partner as a sale of units by the limited partner to United Dominion. The sale
will be fully taxable to the redeeming limited partner, and he will realize for
tax purposes an amount equal to the sum of the cash or the value of the common
stock received in exchange for the units, plus the amount of any partnership
liabilities allocable to the redeemed units at the time of the purchase.
If United Dominion does not elect to assume the obligation to redeem a
limited partner's units, then United Dominion Realty, L.P. may either (A) redeem
the units for cash that United Dominion contributes to United Dominion Realty,
L.P., or (B) redeem the units for cash that United Dominion does not contribute
to United Dominion Realty, L.P. If United Dominion Realty, L.P. redeems the
units for cash contributed by United Dominion, the redemption likely would be
treated for tax purposes as a sale of such units in a fully taxable transaction.
In that event, the redeeming partner will realize an amount equal to the sum of
the cash received in connection with the redemption, plus the amount of any
partnership liabilities allocable to the redeemed units at the time of the
redemption. The determination of the amount of gain or loss in the event of sale
treatment is discussed more fully below.
If United Dominion Realty, L.P. chooses to redeem units for cash that
is not contributed by United Dominion, the tax consequences would be the same as
described in the previous paragraph, except that if United Dominion Realty, L.P.
redeems less than all of the units owned by a limited partner, the limited
partner would not be permitted to recognize any loss occurring on the
transaction. The limited partner will recognize taxable gain only to the extent
that (A) the sum of the cash and the amount of any partnership liabilities
allocable to the redeemed units exceeds (B) his adjusted basis in all of his
units immediately before the redemption.
Tax Treatment of Disposition of Units by Limited Partner Generally. If
a unit is redeemed in a manner that is treated as a sale of the Unit, or if a
limited partner otherwise disposes of a unit in a transaction that is not
treated as a redemption for tax purposes, the determination of gain or loss from
such sale or other disposition will be based on the difference between the
amount realized for tax purposes and the tax basis in such unit. See "-- Basis
of units." Upon the sale of a unit, the "amount realized" will be measured by
the sum of the cash and fair market value of other property, such as shares of
common stock, received, plus the amount of any partnership liabilities allocable
to the unit sold. To the extent that the amount realized exceeds the limited
partner's basis in the unit sold, the limited partner will recognize gain. The
amount of gain recognized, or even the tax liability resulting from such gain,
could exceed the amount of cash and the value of any other property received
during the sale.
Except as described below, any gain recognized upon a sale or other
disposition of units will be treated as gain attributable to the sale or
disposition of a capital asset. To the extent, however, that (A) the amount
realized upon the sale of a unit that is attributable to a limited partner's
share of United Dominion Realty, L.P.'s "unrealized receivables", as defined in
the federal income tax laws, exceeds (B) the limited partner's basis
attributable to those assets, the excess will be treated as ordinary income.
Unrealized receivables include, to the extent not previously included in United
Dominion Realty, L.P.'s income, any rights to payment for services rendered or
to be rendered. Unrealized receivables also include amounts that would be
subject to recapture as ordinary income if United Dominion Realty, L.P. had sold
its assets at their fair market value at the time of the transfer of a unit.
Basis of Units. In general, if a limited partner received his units
upon liquidation of a partnership, he will have an initial tax basis in his
units equal to his basis in his interest in the liquidated partnership.
Similarly, in general, if a limited partner received his units in exchange for a
contribution of a partnership interest or other property to United Dominion
Realty, L.P., he will have a tax basis equal to his basis in the contributed
partnership interest or other property.
A limited partner's tax basis generally is increased by (1) his share
of United Dominion Realty, L.P.'s taxable income and (2) increases in his share
of United Dominion Realty, L.P.'s liabilities, including any increase in his
share of liabilities occurring in connection with the transactions resulting in
the issuance of the units. Generally, a limited partner's basis in his units is
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decreased (but not below zero) by (1) his share of United Dominion Realty,
L.P.'s distributions, (2) decreases in his share of United Dominion Realty,
L.P.'s liabilities, including any decrease in his share of liabilities occurring
in connection with the transactions resulting in the issuance of the units, (3)
his share of United Dominion Realty, L.P.'s losses and (4) his share of United
Dominion Realty, L.P.'s nondeductible expenditures that are not chargeable to
capital.
Potential Application of Disguised Sale Regulations to a Redemption of
Units. There is a risk that a redemption of units may cause the limited
partner's original transfer of property to United Dominion Realty, L.P.
in exchange for units to be treated as a "disguised sale" of property.
Federal income tax law generally provides that, unless an exception
applies, if (A) a partner contributes property to a partnership and (B) the
partnership at the same time or afterwards transfers money or other
consideration, including the assumption of or taking subject to a liability, to
the partner, then the transaction will be treated as a "disguised sale," in
whole or in part, of the property by the partner to the partnership. In the
absence of an applicable exception, if money or other consideration is
transferred by a partnership to a partner within two years of the partner's
contribution of property to the partnership, the transactions will be, when
viewed together, presumed to be a sale of the contributed property unless the
facts and circumstances clearly establish that the transfers do not constitute a
sale. However, if two years have passed between the contribution of property and
the transfer of money or other consideration from the partnership to a partner,
the transactions will be presumed not to be a sale unless the facts and
circumstances clearly establish that the transfers constitute a sale.
Accordingly, if United Dominion Realty, L.P. redeems a unit, the
Internal Revenue Service could argue that the transaction should be treated as a
sale, because the redeeming limited partner will receive cash after he has
contributed property to United Dominion Realty, L.P. If the Internal Revenue
Service were to make that argument successfully, the original issuance of the
units could be taxable as a disguised sale under the federal income tax laws.
Any gain recognized thereby may be eligible for installment reporting under the
federal tax laws.
Taxation of United Dominion
United Dominion elected to be taxed as a REIT under the federal income
tax laws commencing with its taxable year ended December 31, 1972. United
Dominion believes that it has operated in a manner intended to qualify as a REIT
since its election to be a REIT and it intends to continue to so operate. This
section discusses the laws governing the federal income tax treatment of a REIT
and its shareholders. Those laws are highly technical and complex.
United Dominion's qualification as a REIT depends on its ability to
meet on a continuing basis qualification tests set forth in the federal tax
laws. Those qualification tests involve the percentage of income that United
Dominion earns from specified sources, the percentage of its assets that fall
within specified categories, the diversity of its share ownership, and the
percentage of its earnings that it distributes. The REIT qualification tests are
described in more detail below. For a discussion of the tax treatment of United
Dominion and its shareholders if United Dominion fails to qualify as a REIT, see
"--Failure to Qualify."
If United Dominion qualifies as a REIT, it generally will not be
subject to federal income tax on the taxable income that it distributes to its
shareholders. The benefit of that tax treatment is that it avoids the "double
taxation" at both the corporate and stockholder levels that generally results
from owning stock in a corporation. However, United Dominion will be subject to
federal tax in the following circumstances:
o United Dominion will pay federal income tax on taxable
income, including net capital gain, that it does not
distribute to its shareholders during, or within a
specified time period after, the calendar year in which
the income is earned.
o United Dominion may be subject to the "alternative minimum
tax" on any items of tax preference that it does not
distribute or allocate to its shareholders.
o United Dominion will pay income tax at the highest
corporate rate on (A) net income from the sale or other
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o disposition of property acquired through foreclosure
("foreclosure property") that it holds primarily for sale
to customers in the ordinary course of business and (B)
other non-qualifying income from foreclosure property.
o United Dominion will pay a 100% tax on net income from
sales or other dispositions of property, other than
foreclosure property, that it holds primarily for sale to
customers in the ordinary course of business ("prohibited
transactions").
o If United Dominion fails to satisfy the 75% gross income
test or the 95% gross income test, as described below
under "--Requirements for Qualification--Income Tests",
and nonetheless continues to qualify as a REIT because it
meets other requirements, it will pay a 100% tax on (A)
the gross income attributable to the greater of the
amounts by which it fails the 75% and 95% gross income
tests, multiplied by (B) a fraction intended to reflect
its profitability.
o If United Dominion fails to distribute during a calendar
year at least the sum of (A) 85% of its REIT ordinary
income for such year, (B) 95% of its REIT capital gain net
income for such year, and (C) any undistributed taxable
income from prior periods, it will pay a 4% excise tax on
the excess of such required distribution over the amount
it actually distributed.
o United Dominion may elect to retain and pay income tax on
its net long-term capital gain.
o If United Dominion acquires any asset from a corporation
generally subject to full corporate-level tax in a merger
or other transaction in which it acquires a basis in the
asset that is determined by reference to the C corporation's
basis in that or another asset, it will pay tax at the highest
regular corporate rate applicable if it recognizes
gain on the sale or disposition of such asset during the
10-year period after it acquires such asset. The amount of
gain on which it will pay tax is the lesser of (A) the amount
of gain that it recognizes at the time of the sale or
disposition and (B) the amount of gain that it would have
recognized if it had sold the asset at the time it acquired
the asset. The rule described in this paragraph will
apply assuming that United Dominion makes an election under
IRS Notice 88-19 upon its acquisition of an asset from a C
corporation.
Requirements for Qualification
A REIT is a corporation, trust, or association that meets the following
requirements:
1. it is managed by one or more trustees or directors;
2. its beneficial ownership is evidenced by transferable shares,
or by transferable certificates of beneficial interest;
3. it would be taxable as a domestic corporation, but for provisions of
federal income tax law defining a REIT;
4. it is neither a financial institution nor an insurance company subject
to certain provisions of the federal income tax law;
5. at least 100 persons are beneficial owners of its shares or ownership
certificates;
6. not more than 50% in value of its outstanding shares or
ownership certificates is owned, directly or indirectly,
by five or fewer individuals, as defined in the federal
income tax laws to include specified entities,) during the
last half of any taxable year (the "5/50 Rule");
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7. it elects to be a REIT or has made such election for a
previous taxable year and satisfies all relevant filing
and other administrative requirements established by the
Service that must be met to elect and maintain REIT
status;
8. it uses a calendar year for federal income tax purposes
and complies with the recordkeeping requirements of the
federal income tax laws; and
9. it meets certain other qualification tests, described
below, regarding the nature of its income and assets.
United Dominion must meet requirements 1 through 4 during its entire
taxable year and must meet requirement 5 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 United Dominion complies with all the requirements for
ascertaining the ownership of its outstanding shares in a taxable year and has
no reason to know that it violated requirement 6, it will be deemed to have
satisfied requirement 6 for such taxable year. For purposes of determining share
ownership under requirement 6, an "individual" generally includes a supplemental
unemployment compensation benefits plan, a private foundation, or a portion of a
trust permanently set aside or used exclusively for charitable purposes. An
"individual," however, generally does not include a trust that is a qualified
employee pension or profit sharing trust under the federal income tax laws, and
beneficiaries of such a trust will be treated as holding shares of United
Dominion's capital stock in proportion to their actuarial interests in the trust
for purposes of requirement 6.
United Dominion believes it has issued sufficient common stock with
sufficient diversity of ownership to satisfy requirements 5 and 6 set forth
above. In addition, United Dominion's Articles restrict the ownership and
transfer of the common stock so that United Dominion should continue to satisfy
requirements 5 and 6. The provisions of the Articles restricting the ownership
and transfer of the common stock are described in "Restrictions on Transfer of
Capital Stock."
United Dominion currently has several direct corporate subsidiaries and
may have additional corporate subsidiaries in the future. A corporation that is
a "qualified REIT subsidiary" is not treated as a corporation separate from its
parent REIT. 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 of the REIT. A "qualified REIT subsidiary" is a
corporation, all of the capital stock of which is owned by the REIT. Thus, in
applying the requirements described herein, any "qualified REIT subsidiary" of
United Dominion will be ignored, and all assets, liabilities, and items of
income, deduction, and credit of such subsidiary will be treated as assets,
liabilities, and items of income, deduction, and credit of United Dominion.
United Dominion's corporate subsidiaries are qualified REIT subsidiaries.
Accordingly, they are not subject to federal corporate income taxation, though
they may be subject to state and local taxation.
In the case of a REIT that is a partner in a partnership, the REIT is
treated as owning its proportionate share of the assets of the partnership and
as earning its allocable share of the gross income of the partnership for
purposes of the applicable REIT qualification tests. Thus, United Dominion's
proportionate share of the assets, liabilities and items of income of United
Dominion Realty, L.P. and of any other partnership in which United Dominion has
acquired or will acquire an interest, directly or indirectly, are treated as
assets and gross income of United Dominion for purposes of applying the various
REIT qualification requirements.
Income Tests
United Dominion must satisfy two gross income tests annually to
maintain its qualification as a REIT. First, at least 75% of its gross income
for each taxable year must consist of defined types of income that it derives,
directly or indirectly, from investments relating to real property or mortgages
on real property or temporary investment income (the "75% gross income test").
In general, qualifying income for purposes of the 75% gross income test
includes:
o "rents from real property,"
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o interest on debt secured by mortgages on real property or on interests
in real property, and
o dividends or other distributions on and gain from the sale of shares in
other REITs.
Second, in general, at least 95% of its gross income for each taxable
year must consist of income that is qualifying income for purposes of the 75%
gross income test, dividends, other types of interest, gain from the sale or
disposition of stock or securities, or any combination of the foregoing (the
"95% gross income test"). Gross income from United Dominion's sale of property
that it holds primarily for sale to customers in the ordinary course of business
is excluded from both income tests. The following paragraphs discuss the
specific application of these tests to United Dominion.
Rents and Interest. Rent that United Dominion receives from real
property that it owns and leases to tenants will qualify as "rents from real
property" only if the following conditions are met.
o First, the rent must not be based, in whole or in part, on the
income or profits of any person. However, "rents from real
property" generally does not exclude an amount solely because it
is based on a fixed percentage or percentages of receipts or
sales.
o Second, neither United Dominion nor a direct or indirect owner of
10% or more of its stock may own, actually or constructively, 10%
or more of a tenant from whom it receives rent.
o Third, all of the rent received under a lease of real property
will not qualify as "rents from real property" unless the rent
attributable to the personal property leased in connection with
such lease is no more than 15% of the total rent received under
the lease.
o Finally, United Dominion generally must not operate or manage
its real property or furnish or renderservices to its tenants,
other than through an "independent contractor" who is
adequately compensated and from whom United Dominion does not
derive revenue. However, United Dominion need not provide
services through an "independent contractor," but instead
may provide services directly, if the services are "usually or
customarily rendered" in connection with the rental of space
for occupancy only and are not otherwise considered "rendered
to the occupant." In addition, United Dominion may render a de
minimis amount of "non-customary" services to the tenants of
a property, other than through an independent contractor,
as long as its income from the services does not exceed 1% of its
income from the related property.
United Dominion does not receive any rent that is based on the income
or profits of any person. In addition, United Dominion does not own, directly or
indirectly, 10% or more of any tenant. Furthermore, United Dominion believes
that any personal property rented in connection with our apartment facilities is
well within the 15% restriction. Finally, United Dominion does not provide
services, other than within the 1% de minimis exception described above to its
tenants that are not customarily furnished or rendered in connection with the
rental of the apartment units, other than through an independent contractor.
United Dominion, through United Dominion Realty, L.P., which is not an
independent contractor, provides services with respect to the facilities and
will provide services with respect to any newly acquired apartment facilities.
Such services include (1) common area services, such as cleaning and maintaining
public entrances, exits, stairways, walkways, lobbies and rest rooms, removing
snow and debris, collecting trash, and painting the exteriors of the facilities
and common areas, (2) providing general security for the facilities, (3)
cleaning and repairing units at the facilities as tenants move in and out, (4)
at the request of the tenant, and without additional charge, accepting delivery
of goods from carriers or unlocking a particular unit when goods are delivered
to a facility, (5) permitting tenants to use the fax machine at a facility for
occasional local faxes without additional charge and for occasional
long-distance faxes for a nominal charge, (6) maintaining underground utilities
and structural elements of the facilities, and (7) paying real and personal
property taxes or the cost of replacing or refurbishing personal property with
respect to real and personal property owned by United Dominion Realty, L.P. at a
facility. United Dominion believes that the services provided by United Dominion
Realty, L.P. are customarily furnished or rendered in connection with the rental
of space for occupancy only by apartment facilities in the geographic areas in
which its facilities are located.
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United Dominion's investment, through United Dominion Realty, L.P., in
the facilities in major part gives rise to rental income that is qualifying
income for purposes of the 75% and 95% gross income tests. Gains on sales of the
facilities or of United Dominion's interest in United Dominion Realty, L.P.
generally will be qualifying income for purposes of the 75% and 95% gross income
tests. United Dominion anticipates that income on its other investments will not
result in United Dominion's failing the 75% or 95% gross income test for any
year.
Prohibited Transaction Rules. A REIT will incur a 100% tax on the net
income derived from any 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. United Dominion believes that none of
its or United Dominion Realty, L.P.'s assets is held for sale to customers and
that a sale of any such asset would not be in the ordinary course of its
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. Nevertheless, United Dominion will attempt to comply with the
terms of safe-harbor provisions in the federal tax laws prescribing when an
asset sale will not be characterized as a prohibited transaction. United
Dominion cannot assure you, however, that United Dominion can comply with such
safe-harbor provisions or that United Dominion or United Dominion Realty, L.P.
will avoid owning property that may be characterized as property that it holds
"primarily for sale to customers in the ordinary course of a trade or business."
Hedging Transactions. From time to time, United Dominion or United
Dominion Realty, L.P. may enter into hedging transactions with respect to one or
more of its assets or liabilities. Its hedging activities may include entering
into interest rate swaps, caps and floors, or options to purchase such items,
and futures and forward contracts. To the extent that United Dominion or United
Dominion Realty, L.P. enters into an interest rate swap or cap contract, option,
futures contract, forward rate agreement or any similar financial instrument to
hedge its indebtedness incurred to acquire or carry "real estate assets," any
periodic income or gain from the disposition of such contract should be
qualifying income for purposes of the 95% gross income test, but not the 75%
gross income test. To the extent that United Dominion or United Dominion Realty,
L.P. hedges with other types of financial instruments, or in other situations,
it is not entirely clear how the income from those transactions will be treated
for purposes of the gross income tests. United Dominion intends to structure any
hedging transactions in a manner that does not jeopardize its status as a REIT.
Failure to Qualify. If United Dominion fails to satisfy one or both of
the 75% and 95% gross income tests for any taxable year, it nevertheless may
qualify as a REIT for such year if it qualifies for relief under specified
provisions of the federal tax laws. Those relief provisions generally will be
available if its failure to meet such tests is due to reasonable cause and not
due to willful neglect, United Dominion attaches a schedule of the sources of
its income to its tax return, and any incorrect information on the schedule was
not due to fraud with intent to evade tax. United Dominion cannot predict,
however, whether in all circumstances it would qualify for the relief
provisions. In addition, as discussed above in "--Taxation of United Dominion,"
even if the relief provisions apply, United Dominion would incur a 100% tax on
the gross income attributable to the greater of the amounts by which it fails
the 75% and 95% gross income tests, multiplied by a fraction intended to reflect
its profitability.
Asset Tests
To maintain its qualification as a REIT, United Dominion also must
satisfy two asset tests at the close of each quarter of each taxable year.
First, at least 75% of the value of its total assets must consist of cash or
cash items, including certain receivables, government securities, "real estate
assets," or qualifying temporary investments (the "75% asset test"). The term
"real estate assets" includes interests in real property, interests in mortgages
on real property and stock in other REITs. For purposes of the 75% asset test,
the term "interest in real property" includes an interest in mortgage loans or
land and improvements thereon, a leasehold of real property, and an option to
acquire real property or a leasehold of real property. Qualifying temporary
investments are investments in stock or debt instruments during the one-year
period following United Dominion's receipt of new capital that it raises through
equity offerings or public offerings of debt with at least five-year terms.
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The second asset test has two components. First, of United Dominion's
investments not included in the 75% asset class, the value of its interest in
any one issuer's securities, which does not include its stock in other REITs,
United Dominion Realty, L.P., or any qualified REIT subsidiary, may not exceed
5% of the value of its total assets (the "5% asset test"). Second, United
Dominion may not own more than 10% of any one issuer's outstanding voting
securities, which does not include its stock in other REITs, United Dominion
Realty, L.P., or any qualified REIT subsidiary, (the "10% asset test").
A recent legislative proposal would allow United Dominion to own up to
100% of the stock of taxable REIT subsidiaries which could perform activities
unrelated to United Dominion's tenants, such as third-party management,
development, and other independent business activities, as well as provide
services to United Dominion's tenants. United Dominion would be subject to
restrictions on its stock ownership of those taxable subsidiaries. The taxable
REIT subsidiary provision would be effective for taxable years beginning after
the date of enactment.
For purposes of the asset tests, United Dominion is deemed to own its
proportionate share of the assets of United Dominion Realty, L.P. and any other
partnership in which it owns an interest, rather than its interest in such
partnership. United Dominion has operated and intends to continue to operate so
that it has not acquired or disposed, and in the future will not acquire or
dispose, of assets in a way that would cause it to violate either asset test.
If United Dominion should fail to satisfy the asset tests at the end of
a calendar quarter, it would not lose its REIT status if (A) it satisfied the
asset tests at the close of the preceding calendar quarter and (B) the
discrepancy between the value of its assets and the asset test requirements
arose from changes in the market values of its assets and was not wholly or
partly caused by the acquisition of one or more non-qualifying assets. If United
Dominion did not satisfy the condition described in clause (B) of the preceding
sentence, it still could avoid disqualification as a REIT by eliminating any
discrepancy within 30 days after the close of the calendar quarter in which the
discrepancy arose.
Distribution Requirements
Each taxable year, United Dominion must distribute dividends, other
than capital gain dividends and deemed distributions of retained capital gain,
to its shareholders in an aggregate amount at least equal to:
o the sum of (A) 95% of its "REIT taxable income", computed without
regard to the dividends paid deduction and its net capital gain or
loss, and (B) 95% of its after-tax net income, if any, from
foreclosure property,
o minus the sum of certain items of non-cash income.
United Dominion must pay such distributions in the taxable year to
which they relate, or in the following taxable year if it declares the
distribution before it timely files its federal income tax return for such year
and pays the distribution on or before the first regular dividend payment date
after such declaration.
United Dominion will pay federal income tax on taxable income,
including net capital gain, that it does not distribute to shareholders.
Furthermore, if it fails to distribute during a calendar year, or, in the case
of distributions with declaration and record dates falling in the last three
months of the calendar year, by the end of January following such calendar year,
at least the sum of:
o 85% of its REIT ordinary income for such year,
o 95% of its REIT capital gain income for such year, and
o any undistributed taxable income from prior periods,
it will incur a 4% nondeductible excise tax on the excess of such required
distribution over the amounts it actually distributed. United Dominion may elect
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to retain and pay income tax on the net long-term capital gain it receives in a
taxable year. See "--Taxation of Taxable U.S. Stockholders." If it so elects, it
will be treated as having distributed any such retained amount for purposes of
the 4% excise tax described above. United Dominion has made, and intends to
continue to make, timely distributions sufficient to satisfy the annual
distribution requirements.
It is possible that, from time to time, United Dominion may experience
timing differences between (A) the actual receipt of income and actual payment
of deductible expenses and (B) the inclusion of that income and deduction of
such expenses in arriving at its REIT taxable income. For example, United
Dominion may not deduct recognized capital losses from its "REIT taxable
income." Further, it is possible that, from time to time, United Dominion may be
allocated a share of net capital gain attributable to the sale of depreciated
property that exceeds its allocable share of cash attributable to that sale. As
a result of the foregoing, United Dominion may have less cash than is necessary
to distribute all of its taxable income and thereby avoid corporate income tax
and the excise tax imposed on certain undistributed income. In such a situation,
it may need to borrow funds or issue preferred stock or additional common stock.
Under certain circumstances, United Dominion may be able to correct a
failure to meet the distribution requirement for a year by paying "deficiency
dividends" to its shareholders in a later year. United Dominion may include such
deficiency dividends in its deduction for dividends paid for the earlier year.
Although United Dominion may be able to avoid income tax on amounts distributed
as deficiency dividends, it will be required to pay interest to the Internal
Revenue Service based upon the amount of any deduction it takes for deficiency
dividends.
Recordkeeping Requirements
United Dominion must maintain certain records in order to qualify as a
REIT. In addition, to avoid a monetary penalty, it must request on an annual
basis information from its shareholders designed to disclose the actual
ownership of its outstanding stock. United Dominion has complied, and intends to
continue to comply, with such requirements.
Failure to Qualify
If United Dominion failed to qualify as a REIT in any taxable year, and
no relief provision applied, it would be subject to federal income tax,
including any applicable alternative minimum tax, on its taxable income at
regular corporate rates. In calculating its taxable income in a year in which it
failed to qualify as a REIT, United Dominion would not be able to deduct amounts
paid out to shareholders. In fact, United Dominion would not be required to
distribute any amounts to shareholders in such year. In such event, to the
extent of its current and accumulated earnings and profits, all distributions to
shareholders would be taxable as ordinary income. Subject to certain limitations
of the federal tax laws, corporate shareholders might be eligible for the
dividends received deduction. Unless United Dominion qualified for relief under
specific statutory provisions, it also would be disqualified from taxation as a
REIT for the four taxable years following the year during which it ceased to
qualify as a REIT. United Dominion cannot predict whether in all circumstances
it would qualify for such statutory relief.
Taxation of Taxable U.S. Stockholders
As long as United Dominion qualifies as a REIT, a taxable "U.S.
Stockholder" must take into account distributions out of United Dominion's
current or accumulated earnings and profits and that United Dominion does not
designate as capital gain dividends or retained long-term capital gain as
ordinary income. A U.S. Stockholder will not qualify for the dividends received
deduction generally available to corporations. As used herein, the term "U.S.
Stockholder" means a holder of United Dominion's common stock that for U.S.
federal income tax purposes is
o a citizen or resident of the United States,
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o a corporation, partnership, or other entity created or
organized in or under the laws of the United States or of
an political subdivision thereof,
o an estate whose income from sources outside the United
States is includible in gross income for U.S. federal
income tax purposes regardless of its connection with the
conduct of a trade or business within the United States,
or
o any trust with respect to which (A) a U.S. court is able
to exercise primary supervision over the administration of
such trust and (B) one or more U.S. persons have the
authority to control all substantial decisions of the
trust.
A U.S. Stockholder will recognize distributions that United Dominion
designates as capital gain dividends as long-term capital gain, to the extent
they do not exceed United Dominion's actual net capital gain for the taxable
year, without regard to the period for which the U.S. Stockholder has held its
common stock. Subject to certain limitations, United Dominion will designate its
capital gain dividends as either 20% or 25% rate distributions. A corporate U.S.
Stockholder, however, may be required to treat up to 20% of its capital gain
dividends as ordinary income.
United Dominion may elect to retain and pay income tax on the net
long-term capital gain that it receives in a taxable year. In that case, a U.S.
Stockholder would be taxed on its proportionate share of United Dominion's
undistributed long-term capital gain. The U.S. Stockholder would receive a
credit or refund for its proportionate share of the tax United Dominion paid.
The U.S. Stockholder would increase the basis in its stock by the amount of its
proportionate share of United Dominion's undistributed long-term capital gain,
minus its share of the tax United Dominion paid.
A U.S. Stockholder will not incur tax on a distribution in excess of
United Dominion's current and accumulated earnings and profits if such
distribution does not exceed the adjusted basis of the U.S. Stockholder's common
stock. Instead, such distribution will reduce the adjusted basis of such common
stock. A U.S. Stockholder will recognize a distribution in excess of both United
Dominion's current and accumulated earnings and profits and the U.S.
Stockholder's adjusted basis in its common stock as long-term capital gain, or
short-term capital gain if the common stock has been held for one year or less,
assuming the common stock is a capital asset in the hands of the U.S.
Stockholder. In addition, if United Dominion declares 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 United Dominion and received by the U.S. Stockholder on December
31 of such year, provided that United Dominion actually pays the distribution
during January of the following calendar year. United Dominion will notify U.S.
Stockholders after the close of its taxable year as to the portions of the
distributions attributable to that year that constitute ordinary income or
capital gain dividends.
Taxation of U.S. Stockholders on the Disposition of the Common Stock
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 the common stock
as long-term capital gain or loss if the U.S. Stockholder has held the common
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
common stock held by such shareholder for six months or less, after applying
certain holding period rules as a long-term capital loss to the extent of
capital gain dividends and other distributions from United Dominion that such
U.S. Stockholder treats as long-term capital gain. All or a portion of any loss
a U.S. Stockholder realizes upon a taxable disposition of the common stock may
be disallowed if the U.S. Stockholder purchases other shares of common stock
within 30 days before or after the disposition.
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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 39.6%.
The maximum tax rate on long-term capital gain applicable to non-corporate
taxpayers is 20% for sales and exchanges of assets held for more than one year.
The maximum tax rate on long-term capital gain from the sale or exchange of
depreciable real property is 25% to the extent that such gain would have been
treated as ordinary income if the property were personal property. With respect
to distributions that United Dominion designates as capital gain dividends and
any retained capital gain that it is deemed to distribute, United Dominion
generally may designate whether such a distribution is taxable to its
non-corporate shareholders at a 20% or 25% 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 can 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
United Dominion will report to its shareholders and to the Internal
Revenue Service the amount of distributions it pays during each calendar year,
and the amount of tax it withholds, if any. Under the backup withholding rules,
a shareholder may be subject to backup withholding at the rate of 31% with
respect to distributions unless such holder (A) is a corporation or comes within
another exempt category and, when required, demonstrates this fact or (B)
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 shareholder who does not provide United
Dominion with its correct taxpayer identification number also may be subject to
penalties imposed by the Internal Revenue Service. Any amount paid as backup
withholding will be creditable against the shareholder's income tax liability.
In addition, United Dominion may be required to withhold a portion of capital
gain distributions to any shareholders who fail to certify their non-foreign
status to United Dominion. The Treasury Department has issued final regulations
regarding the backup withholding rules as applied to Non-U.S. Stockholders.
Those regulations alter the current system of backup withholding compliance and
are effective for distributions made after December 31, 2000. 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 Internal Revenue Service 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 United Dominion distributes to tax-exempt
organizations generally should not constitute unrelated business taxable income.
However, if a tax-exempt organization were to finance its acquisition of the
common stock with debt, a portion of the income that it receives from United
Dominion would constitute unrelated business taxable income pursuant to the
"debt-financed property" rules. Furthermore, social clubs, voluntary employee
benefit associations, supplemental unemployment benefit trusts and qualified
group legal services plans that are exempt from taxation under 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 United Dominion as unrelated business taxable income.
Finally, in certain circumstances, a qualified employee pension or profit
sharing trust that owns more than 10% of United Dominion's stock is required to
treat a percentage of the dividends that it receives from United Dominion as
unrelated business taxable income (the "UBTI percentage"). The UBTI percentage
is equal to the gross income United Dominion derives from an unrelated trade or
business, determined as if it were a pension trust, divided by its total gross
income for the year in which it pays the dividends. The unrelated business
taxable income rule applies to a pension trust holding more than 10% of United
Dominion's stock only if:
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o the UBTI Percentage is at least 5%;
o United Dominion qualifies as a REIT by reason of the
modification of the rule requiring that no more than 50%
of United Dominion's stock is held by five or fewer
individuals that allows the beneficiaries of the pension
trust to be treated as holding United Dominion's stock in
proportion to their actuarial interests in the pension
trust; and
o Either (1) one pension trust owns more than 25% of the
value of United Dominion's stock or (2) a group of pension
trusts individually holding more than 10% of the value of
United Dominion's stock collectively owns more than 50% of
the value of its stock.
Taxation of Non-U.S. Stockholders
The rules governing U.S. federal income taxation of nonresident alien
individuals, foreign corporations, foreign partnerships, and other foreign
shareholders (collectively, "Non-U.S. Stockholders") are complex. This section
is only a summary of such rules. United Dominion urges Non-U.S. Stockholders to
consult their own tax advisors to determine the impact of federal, state, and
local income tax laws on ownership of the common stock, including any reporting
requirements.
A Non-U.S. Stockholder that receives a distribution that is not
attributable to gain from United Dominion's sale or exchange of U.S. real
property interests, as defined below, and that United Dominion does not
designate as a capital gain dividend or retained capital gain will recognize
ordinary income to the extent that United Dominion pays such distribution out of
its 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.
However, if a distribution is treated as effectively connected with the Non-U.S.
Stockholder's conduct of a U.S. trade or business, the Non-U.S. Stockholder
generally will be subject to federal income tax on the distribution at graduated
rates, in the same manner as U.S. Stockholders are taxed with respect to such
distributions. The non-U.S. stockholder also may be subject to the 30% branch
profits tax if it is a non-U.S. corporation. United Dominion plans 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 (1) a lower treaty rate applies and the
Non-U.S. Stockholder files the required form evidencing eligibility for that
reduced rate with United Dominion or (2) the Non-U.S. Stockholder files an IRS
Form 4224 with United Dominion claiming that the distribution is effectively
connected income. The U.S. Treasury Department has issued final regulations that
modify the manner in which United Dominion will comply with the withholding
requirements. Those regulations are effective for distributions made after
December 31, 2000.
A Non-U.S. Stockholder will not incur tax on a distribution in excess
of United Dominion's current and accumulated earnings and profits if such
distribution does not exceed the adjusted basis of its common stock. Instead,
such a distribution will reduce the adjusted basis of such common stock. A
Non-U.S. Stockholder will be subject to tax on a distribution that exceeds both
United Dominion's current and accumulated earnings and profits and the adjusted
basis of its common stock, if the Non-U.S. Stockholder otherwise would be
subject to tax on gain from the sale or disposition of its common stock, as
described below. Because United Dominion generally cannot determine at the time
it makes a distribution whether or not the distribution will exceed its current
and accumulated earnings and profits, it normally will withhold tax on the
entire amount of any distribution at the same rate as it would withhold on a
dividend. However, a Non-U.S. Stockholder may obtain a refund of amounts that
United Dominion withholds if it later determines that a distribution in fact
exceeded its current and accumulated earnings and profits.
United Dominion must withhold 10% of any distribution that exceeds its
current and accumulated earnings and profits. Consequently, although it intends
to withhold at a rate of 30% on the entire amount of any distribution, to the
extent that it does not do so, it will withhold at a rate of 10% on any portion
of a distribution not subject to withholding at a rate of 30%.
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For any year in which United Dominion qualifies as a REIT, a Non-U.S.
Stockholder will incur tax on distributions that are attributable to gain from
its sale or exchange of "U.S. real property interests" under the provisions of
the Foreign Investment in Real Property Tax Act of 1980 ("FIRPTA"). The term
"U.S. real property interests" includes certain interests in real property and
stock in corporations at least 50% of whose assets consists of interests in real
property, but excludes mortgage loans and mortgage-backed securities. Under
FIRPTA, a Non-U.S. Stockholder is taxed on distributions attributable to gain
from sales of U.S. 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
gain 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 shareholder not entitled to treaty relief
or exemption also may be subject to the 30% branch profits tax on distributions
subject to FIRPTA. United Dominion must withhold 35% of any distribution that it
could designate as a capital gain dividend. A Non-U.S. Stockholder may receive a
credit against its FIRPTA tax liability for the amount United Dominion
withholds.
A Non-U.S. Stockholder generally will not incur tax under FIRPTA on
gain from the sale of its common stock as long as United Dominion is a
"domestically controlled REIT." A "domestically controlled REIT" is a REIT in
which at all times during a specified testing period non-U.S. persons held,
directly or indirectly, less than 50% in value of the stock. However, a Non-U.S.
Stockholder that owned, actually or constructively, 5% or less of the common
stock at all times during a specified testing period will not incur tax under
FIRPTA if the common stock is "regularly traded" on an established securities
market. If the gain on the sale of the common 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, a special
alternative minimum tax in the case of nonresident alien individuals, and the
possible application of the 30% branch profits tax in the case of non-U.S.
corporations. However, a Non-U.S. Stockholder will incur tax on gain not subject
to FIRPTA if:
o the gain is effectively connected with the Non-U.S. Stockholder's
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
o the Non-U.S. Stockholder is a nonresident alien individual who was
present in the U.S. 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.
Other Tax Consequences
State and Local Taxes
United Dominion and/or you may be subject to state and local tax in
various states and localities, including those states and localities in which
United Dominion or you transact business, own property or reside. The state and
local tax treatment in such jurisdictions may differ from the federal income tax
treatment described above. Consequently, you should consult your own tax advisor
regarding the effect of state and local tax laws upon an investment in the
common stock.
PLAN OF DISTRIBUTION
This prospectus relates to the possible issuance by United Dominion of
the shares of common stock if, and to the extent that, the Unitholders tender
their units for redemption and United Dominion elects to purchase the units for
shares of common stock. United Dominion is registering the issuance of the
shares covered by this prospectus to make it possible to provide the Unitholders
with freely tradeable securities upon purchase of their units. However,
registration of the shares does not necessarily mean that any shares will be
issued by United Dominion or offered or sold by such Unitholder.
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United Dominion may from time to time issue shares of common stock upon
purchase of units tendered for redemption. United Dominion will acquire units in
exchange for any redemption shares that United Dominion issues in connection
with these acquisitions. Consequently, with each such redemption, United
Dominion's interest in United Dominion Realty, L.P. will increase.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our Annual Report on Form 10-K for
the year ended December 31, 1998, as set forth in their report, which is
incorporated by reference in this prospectus and elsewhere in this Registration
Statement. Our consolidated financial statements and schedule are incorporated
by reference in reliance on Ernst & Young LLP's report, given on their authority
as experts in accounting and auditing.
The consolidated financial statements of American Apartment Communities
II, Inc. and American Apartment Communities II, L.P., for the year ended
December 31, 1997, included in United Dominion's Current Report on Form 8-K
filed with the Securities and Exchange Commission on October 23, 1998, as
amended, incorporated herein by reference, have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their reports with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in giving said reports.
LEGAL MATTERS
The validity of the issuance of the shares of common stock offered
pursuant to this Prospectus will be passed upon for United Dominion by Hunton &
Williams, Richmond, Virginia.
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IF YOU WOULD LIKE ADDITIONAL INFORMATION
United Dominion files annual, quarterly and special reports, proxy
statements and other information with the U.S. Securities and Exchange
Commission ("SEC"). You may read and copy this information at the SEC's public
reference rooms, which are located in:
450 Fifth Street, NW 7 World Trade Center, Suite 1300
Washington, DC 20549 New York, NY 10048
500 West Madison Street, Suite 1400
Chicago, IL 60661-2511
Please call the SEC at 1-800-SEC-0330 for further information on the
public reference rooms. This information is also available on-line on the SEC's
web site at http://www.sec.gov.
United Dominion will provide you free of charge with any of these
documents filed with the SEC. To get your free copies, please call or write:
United Dominion Realty Trust, Inc.
10 South 6th Street
Richmond, Virginia 23219-3802
(804) 780-2691
The SEC allows United Dominion to "incorporate by reference" from other
documents that we file with them, which means that United Dominion can disclose
important information to you by referring you to other documents. The documents
that are incorporated by reference are legally considered to be a part of this
prospectus, and information that we file later with the SEC will automatically
update and supersede this information. The documents incorporated by reference
are:
o Annual Report on Form 10-K for the year ended December 31, 1998;
o Quarterly Report on Form 10-Q for the quarter ended March 31, 1999;
o Current Report on Form 8-K dated September 11, 1998, filed on
October 23, 1998, as amended by Amendment No. 1 on Form 8-K/A
dated and filed on December 21, 1998; Current Report on Form
8-K dated November 2, 1998, filed on November 6, 1998; Current
Report on Form 8-K dated December 7, 1998, filed on December
21, 1998; Current Report on Form 8-K dated and filed on
January 20, 1999; Current Report on Form 8-K dated and filed
March 29, 1999;
o The description of the common stock and preferred stock
contained in United Dominion's Registration Statements on Form
8-A dated April 9, 1990, May 1, 1995, June 10, 1997 and
February 4, 1998, filed under the Exchange Act, including any
amendments or reports filed for the purpose of updating such
descriptions;
o Any filings with the SEC pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act of 1934 between the date of this
prospectus and the termination of the offering of all of the
Redemption Shares.
24
<PAGE>
As you read the above documents, you may find some inconsistencies in
information from one document to another. If you find inconsistencies between
the documents, or between a document and this prospectus, you should rely on the
statements made in the most recent document.
You should rely only on the information in this prospectus or incorporated by
reference. United Dominion has not authorized anyone to provide you with any
different information. The selling shareholders will not make an offer of these
shares in any state where the offer is not permitted. You should not assume that
the information in this prospectus or any supplement is accurate as of any date
other than the date on the front of those documents.
25
<PAGE>
Prospective investors may rely on the information contained in this
prospectus. United Dominion has not authorized anyone to provide prospective
investors with information different from that contained in this prospectus.
This prospectus is not an offer to sell nor is it seeking an offer to buy these
securities in any state where the offer or sale is not permitted. The
information contained in this prospectus is correct only as of the date of this
prospectus, regardless of the time of the delivery of this prospectus or any
sale of these securities.
UNITED DOMINION REALTY TRUST, INC.
95,119 SHARES
COMMON STOCK
---------------
PROSPECTUS
---------------
July , 1999
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The estimated expenses in connection with the offering are as follows:
Securities and Exchange Commission registration fee ...... $306.58
Accounting fees and expenses.............................. 4,000.00
Legal fees and expenses .................................. 2,500.00
Printing and postage expenses............................. 800.00
Miscellaneous............................................. 0.00
TOTAL ........................................... $7,606.58
Item 15. Indemnification of Officers and Directors
Directors and officers of United Dominion may be indemnified against
liabilities, fines, penalties, and claims imposed upon or asserted against them
as provided in the Virginia Stock Corporation Act and the Articles. Such
indemnification covers all costs and expenses reasonably incurred by a director
or officer. The Board of Directors, by a majority vote of a quorum of
disinterested directors or, under certain circumstances, independent counsel
appointed by the Board of Directors, must determine that the director or officer
seeking indemnification was not guilty of willful misconduct or a knowing
violation of the criminal law. In addition, the Virginia Stock Corporation Act
and United Dominion's Articles may under certain circumstances eliminate the
liability of directors and officers in a shareholder or derivative proceeding.
If the person involved is not a director or officer of United Dominion,
the Board of Directors may cause United Dominion to indemnify to the same extent
allowed for directors and officers of United Dominion such person who was or is
a party to a proceeding, by reason of the fact that he is or was an employee or
agent of United Dominion, or is or was serving at the request of United Dominion
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise.
Item 16. Exhibits
2(a) -- Agreement and Plan of Merger dated as of December 19, 1997,
between United Dominion, ASR Investments Corporation and ASR
Acquisition Sub, Inc. (filed as Exhibit 2(a) to United
Dominion's Form S-4 Registration Statement, filed with the
Commission on January 30, 1998 (File No. 333-45305), and
incorporated by reference herein)
2(b) -- Agreement and Plan of Merger dated as of October 1, 1996,
between United Dominion, United Sub, Inc. and South West
Property Trust Inc. (filed as Exhibit 2(a) to United
Dominion's Form S-4 Registration Statement, filed with the
Commission on October 9, 1996 (File No. 333-13745), and
incorporated by reference herein)
2(c) -- Agreement and Plan of Merger dated as of September 10, 1998,
between United Dominion and American Apartment Communities II,
Inc. including as exhibits thereto the proposed terms of the
Series D Preferred Stock and the proposed form of Investment
Agreement between United Dominion, United Dominion Realty,
L.P., American Apartment Communities II, Inc., American
Apartment Communities II, L.P., American Apartment Communities
Operating Partnership, L.P., Schnitzer Investment Corp., AAC
Management LLC and LF Strategic Realty Investors, L.P.
(filed as Exhibit 2(c) to United Dominion's Form S-3
Registration Statement, filed with the Commission on September
25, 1998 (File No. 333-64281), and incorporated by reference
herein)
II-1
<PAGE>
2(d) -- Partnership Interest Purchase and Exchange Agreement dated as
of September 10, 1998, between United Dominion, United
Dominion Realty, L.P., American Apartment Communities
Operating Partnership, L.P., AAC Management LLC, Schnitzer
Investment Corp, Fox Point Ltd. and James D. Klingbeil
including as an exhibit thereto the proposed form of the Third
Amended and Restated limited partnership Agreement of United
Dominion Realty, L.P. (filed as Exhibit 2(d) to United
Dominion's Form S-3 Registration Statement, filed with the
Commission on September 25, 1998 (File No. 333-64281), and
incorporated by reference herein)
4(a) -- Restated Articles of Incorporation of United Dominion dated
January 21, 1999 (filed as Exhibit 4(a)(ii) to United
Dominion's Form S-3 Registration Statement, filed with the
Commission on February 24, 1999 (File No. 333-72885), and
incorporated by reference herein)
4(b) -- Restated Bylaws of the Company (filed as Exhibit 3(b) to
the Company's Annual Report on Form 10-K for the year ended
December 31, 1998 (File No. 1-10524), and incorporated by
reference herein)
4(c) -- Specimen United Dominion common stock certificate (filed as
Exhibit 4(i) to United Dominion's Annual Report on Form 10-K
for the year ended December 31, 1993 (File No. 1-10524), and
incorporated by reference herein)
4(d) -- Note Purchase Agreement dated as of January 15, 1993,
between United Dominion and CIGNA Property and Casualty
Insurance Company, Connecticut General Life Insurance Company,
Connecticut General Life Insurance Company on behalf of one or
more separate accounts, Insurance Company of North America,
Principal Mutual Life Insurance Company, and Aid Association
for Lutherans (filed as Exhibit 6(c)(5) to United Dominion's
Form 8-A Registration Statement dated April 19, 1990 (File No.
1-10524), and incorporated by reference herein)
4(e) -- Rights Agreement dated as of January 27, 1998, between
United Dominion and ChaseMellon Shareholder Services, L.L.C.,
as Rights Agent (filed as Exhibit 1 to United Dominion's Form
8-A Registration Statement dated February 4, 1998 (File No.
1-10524) and incorporated by reference herein)
4(f) -- Form of Rights Certificate (included in Exhibit 4(e))
5 -- Opinion of Hunton & Williams
23(a) -- Consent of Ernst & Young LLP
23(b) -- Consent of Arthur Andersen LLP
23(c) -- Consent of Hunton & Williams (included in Exhibit 5)
24 -- Power of Attorney (see signature page)
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
II-2
<PAGE>
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth in
the Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any
material change to such information in the
Registration Statement;
Provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the information
required to be included in a post-effective
amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions of the Virginia Code, the Articles
of Incorporation or By-laws of the registrant or resolutions of the Board of
Directors of the registrant adopted pursuant thereto, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Richmond,
Commonwealth of Virginia on the 12th day of July, 1999.
UNITED DOMINION REALTY TRUST, INC.
By /s/ John P. McCann
--------------------
John P. McCann
Chief Executive Officer
Power of Attorney
Know All Men and Women By These Presents that each individual whose
signature appears below constitutes and appoints John P. McCann and Katheryn E.
Surface, and each of them, such individual's true and lawful attorneys-in-fact
and agents with full power of substitution, for such individual and in his or
her name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this registration statement
and any registration statement related to the offering contemplated by this
registration statement that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or either of them, or their or his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on July 12, 1999.
Signature Title & Capacity
/s/ John P. McCann Chairman, Chief Executive Officer (Principal
------------------------ Executive Officer) and Director
John P. McCann
/s/ John S. Schneider President and Director
- --------------------------
John S. Schneider
/s/ Kevin W. Walsh Vice President Finance Principal Financial
- ------------------------- Officer)
Kevin W. Walsh
<PAGE>
/s/ Robin R. Flanagan Principal Accounting Officer
- --------------------------
Robin R. Flanagan
/s/ Jeff C. Bane Director
- ---------------------------
Jeff C. Bane
Director
/s/ R. Toms Dalton
- ----------------------------
R. Toms Dalton, Jr.
Director
- ---------------------------
Robert P. Freeman Director
- ----------------------------
Jon A. Grove Director
- ----------------------------
Barry M. Kornblau Director
/s/ James D. Klingbeil Director
- -----------------------------
James D. Klingbeil
/s/ Lynne B. Sagalyn Director
- -----------------------------
Lynne B. Sagalyn
- -----------------------------
Mark J. Sandler Director
Director
- -----------------------------
Robert W. Scharar
<PAGE>
EXHIBIT INDEX
<TABLE>
Exhibit Document
<S> <C>
2(a) -- Agreement and Plan of Merger dated as of December 19, 1997,
between United Dominion, ASR Investments Corporation and ASR
Acquisition Sub, Inc. (incorporated by reference)
2(b) -- Agreement and Plan of Merger dated as of October 1, 1996, between United Dominion,
United Sub, Inc. and South West Property Trust Inc. (incorporated by reference)
2(c) -- Agreement and Plan of Merger dated as of September 10, 1998, between United Dominion
and American Apartment Communities II, Inc. including as exhibits thereto the proposed
terms of the Series D Preferred Stock and the proposed form of Investment Agreement
between United Dominion, United Dominion Realty, L.P., American Apartment Communities
II, Inc., American Apartment Communities II, L.P., American Apartment Communities
Operating Partnership, L.P., Schnitzer Investment Corp., AAC Management LLC and LF
Strategic Realty Investors, L.P. (incorporated by reference)
2(d) -- Partnership Interest Purchase and Exchange Agreement dated as of September 10,
1998, between United Dominion, United Dominion Realty, L.P., American Apartment
Communities Operating Partnership, L.P., AAC Management LLC, Schnitzer Investment
Corp, Fox Point Ltd. and James D. Klingbeil including as an exhibit thereto the
proposed form of the Third Amended and Restated limited partnership Agreement of
United Dominion Realty, L.P. (incorporated by reference)
4(a) -- Restated Articles of Incorporation of United Dominion, dated January 21, 1999 (incorporated by
reference)
4(b) -- Restated Bylaws of United Dominion (incorporated by reference)
4(c) -- Specimen United Dominion common stock certificate (incorporated by reference)
4(d) -- Note Purchase Agreement dated as of January 15, 1993,
between United Dominion and CIGNA Property and Casualty
Insurance Company, Connecticut General Life Insurance Company,
Connecticut General Life Insurance Company on behalf of one or
more separate accounts, Insurance Company of North America,
Principal Mutual Life Insurance Company, and Aid Association
for Lutherans (incorporated by reference)
4(e) -- Rights Agreement dated as of January 27, 1998, between
United Dominion and ChaseMellon Shareholder Services, L.L.C.,
as Rights Agent (incorporated by reference)
4(f) -- Form of Rights Certificate (included in Exhibit 4(e))
5 -- Opinion of Hunton & Williams
23(a) -- Consent of Ernst & Young LLP
23(b) -- Consent of Arthur Andersen LLP
<PAGE>
23(c) -- Consent of Hunton & Williams (included in Exhibit 5)
24 -- Power of Attorney
</TABLE>
(804) 788-8200
July 15, 1999
Board of Directors
United Dominion Realty Trust, Inc.
10 South Sixth Street
Richmond, Virginia 23219
Registration Statement on Form S-3
95,119 Shares of Common Stock
Gentlemen:
We are acting as counsel for United Dominion Realty Trust, Inc. (the
"Company") in connection with the registration under the Securities Act of 1933,
as amended, of 95,119 shares of Common Stock, $1.00 par value, of the Company
(the "Redemption Shares") and 95,119 rights to purchase shares of Series C
Junior Participating Redeemable Preferred Stock, no par value (the "Rights").
The Redemption Shares and Rights are described in the Registration Statement on
Form S-3 of the Company (the "Registration Statement") to be filed with the
Securities and Exchange Commission (the "Commission") on July 15, 1999. In
connection with the filing of the Registration Statement, you have requested our
opinion concerning certain corporate matters.
We are of the opinion that:
1. The Company is a corporation duly organized and validly existing
under the laws of the Commonwealth of Virginia.
2. When the Redemption Shares and Rights have been issued to the
Unitholders, as described in the Registration Statement, the Redemption Shares
and Rights will be legally issued, fully paid and nonassessable.
We consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement and to the references to us in the
Prospectus included therein.
Very truly yours,
/s/ Hunton & Williams
Exhibit 23(a)
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 333-00000) and related Prospectus of United
Dominion Realty Trust, Inc. for the registration of 95,119 shares of its common
stock and rights to purchase series C junior participating redeemable preferred
stock and to the incorporation by reference therein of our report dated January
27, 1999, with respect to the consolidated financial statements and schedule of
United Dominion Realty Trust, Inc. included in its Annual Report (Form 10-K) for
the year ended December 31, 1998, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Richmond, Virginia
July 12, 1999
Exhibit 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report on American Apartment
Communities II, Inc., dated February 27, 1998, and our report on American
Apartment Communities II, L.P., dated February 12, 1998, included in the
Company's Current Report on Form 8-K, filed with the SEC on October 23, 1998,
and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
San Francisco, California
July 14, 1999
