MEDICAL PROPERTIES TRUST, INC.
Filed pursuant to Rule 424(b)(3)
Registration No. 333-121883
25,411,039 Shares
Medical Properties Trust,
Inc.
Common Stock
This prospectus relates to 25,411,039 shares of common
stock of Medical Properties Trust, Inc. that the selling
stockholders named in this prospectus may offer for resale from
time to time. The registration of these shares does not
necessarily mean the selling stockholders will offer or sell all
or any of these shares of common stock. We will not receive any
of the proceeds from the sale of any shares of common stock by
the selling stockholders, but will incur expenses in connection
with the offering.
The selling stockholders from time to time may offer and resell
the shares held by them directly or through agents or
broker-dealers on terms to be determined at the time of sale. To
the extent required, the names of any agent or broker-dealer and
applicable commissions or discounts and any other required
information with respect to any particular offer will be set
forth in a prospectus supplement that will accompany this
prospectus. A prospectus supplement also may add, update or
change information contained in this prospectus.
Investing in our common stock involves risks. You should
carefully read and consider the risk factors included in the
periodic and other reports we file with the Securities and
Exchange Commission.
Our common stock is listed on the New York Stock Exchange under
the symbol MPW. On October 5, 2006, the
closing price per share of our common stock was $14.08. To
ensure that we maintain our qualification as a real estate
investment trust, ownership by any person is limited to 9.8% of
the lesser of the number or value of outstanding common shares,
with certain exceptions.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is October 6, 2006.
TABLE OF
CONTENTS
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ABOUT
THIS PROSPECTUS
This prospectus is part of a shelf registration statement we
filed with the SEC. We have incorporated exhibits into the
registration statement. You should read the exhibits carefully
for provisions that may be important to you.
You should rely only on the information incorporated by
reference or provided in this prospectus or any prospectus
supplement. We have not authorized anyone to provide you with
different or additional information. We are not making an offer
of these securities in any state where the offer is not
permitted. You should not assume that the information in this
prospectus or in the documents incorporated by reference is
accurate as of any date other than the date on the front of this
prospectus or the date of the applicable documents.
All references to MPW, Company,
we, our and us refer to
Medical Properties Trust and its subsidiaries. The term
you refers to a prospective investor.
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A WARNING
ABOUT FORWARD LOOKING STATEMENTS
We make forward-looking statements in this prospectus that are
subject to risks and uncertainties. These forward-looking
statements include information about possible or assumed future
results of our business, financial condition, liquidity, results
of operations, plans and objectives. Statements regarding the
following subjects, among others, are forward-looking by their
nature:
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our business strategy;
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our projected operating results;
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our ability to acquire or develop net-leased facilities;
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availability of suitable facilities to acquire or develop;
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our ability to enter into, and the terms of, our prospective
leases and loans;
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our ability to raise additional funds through offerings of our
debt and equity securities;
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our ability to obtain future financing arrangements;
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estimates relating to, and our ability to pay, future
distributions;
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our ability to compete in the marketplace;
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market trends;
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lease rates and interest rates;
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projected capital expenditures; and
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the impact of technology on our facilities, operations and
business.
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The forward-looking statements are based on our beliefs,
assumptions and expectations of our future performance, taking
into account all information currently available to us. These
beliefs, assumptions and expectations can change as a result of
many possible events or factors, not all of which are known to
us. If a change occurs, our business, financial condition,
liquidity and results of operations may vary materially from
those expressed in our forward-looking statements. You should
carefully consider these risks before you make an investment
decision with respect to our common stock, along with, among
others, the following factors that could cause actual results to
vary from our forward-looking statements:
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factors referenced in our Annual Report on
Form 10-K
and in our Quarterly Reports on
Form 10-Q,
including those set forth under the sections captioned
Risk Factors, Managements Discussion and
Analysis of Financial Condition and Results of Operations;
and Our Business.
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general volatility of the capital markets and the market price
of our common stock;
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changes in our business strategy;
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changes in healthcare laws and regulations;
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availability, terms and development of capital;
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availability of qualified personnel;
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changes in our industry, interest rates or the general
economy; and
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the degree and nature of our competition.
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When we use the words believe, expect,
may, potential, anticipate,
estimate, plan, will,
could, intend or similar expressions, we
are identifying forward-looking statements. You should not place
undue reliance on these forward-looking statements. We are not
obligated to publicly update or revise any forward-looking
statements, whether as a result of new information, future
events or otherwise.
3
ABOUT
MEDICAL PROPERTIES TRUST
Overview
We are a self-advised real estate investment trust that
acquires, develops, leases and makes other investments in
healthcare facilities providing
state-of-the-art
healthcare services. We lease our facilities to healthcare
operators pursuant to long-term net-leases, which require the
tenant to bear most of the costs associated with the property.
We also make long-term, interest only mortgage loans to
healthcare operators, and from time to time, we also make
operating, working capital and acquisition loans to our tenants.
We were formed as a Maryland corporation on August 27, 2003
to succeed to the business of Medical Properties Trust, LLC, a
Delaware limited liability company, which was formed by one of
our founders in December 2002. We conduct substantially all of
our business through our wholly-owned subsidiaries, MPT
Operating Partnership, L.P. and MPT Development Services, Inc.
References in this registration statement to we,
us, and our include Medical Properties
Trust, Inc. and our wholly-owned subsidiaries.
In April 2004 we completed a private placement of
25,600,000 shares of common stock at an offering price of
$10.00 per share. The total net proceeds to us, after
deducting fees and expenses of the offering, were approximately
$233.5 million. Until that time, our founders (Edward K.
Aldag, Jr., William G. McKenzie, Emmett E. McLean and R.
Steven Hamner) personally funded the cash requirements necessary
to create a pipeline of potential acquisitions and to prepare
MPT for its private offering. Between April 2004 and June 2005,
we invested and committed to invest approximately
$468 million in healthcare assets.
On July 7, 2005, we completed an initial public offering of
12,066,823 shares of common stock, priced at
$10.50 per share. Of these shares of common stock,
701,823 shares were sold by selling stockholders (none of
which were founders or officers of the Company) and
11,365,000 shares were sold by us. On August 5, 2005,
the underwriters exercised an option to purchase an additional
1,810,023 shares of common stock to cover over-allotments.
In total, we raised net proceeds of approximately
$125.7 million pursuant to the offering after deducting the
underwriting discount and offering expenses. As of
September 15, 2006, we used net proceeds from the private
and initial public offerings, together with borrowed funds, to
invest and commit to invest a total of approximately
$637 million in healthcare assets.
Our investment in healthcare real estate, including mortgage
loans and other loans to certain of our tenants, is considered a
single reportable segment as further discussed in our
Consolidated Financial Statements, Note 2
Summary of Significant Accounting Policies, in Part II,
Item 8 of our Annual Report on
Form 10-K.
All of our investments are located in the United States, and we
do not expect to invest in
non-U.S. markets
in the foreseeable future.
As of September 15, 2006, we owned 15 facilities which were
being operated by four tenants, we had four facilities that were
under development and leased to four tenants, and we had three
mortgage loans to two operators.
We made an election to be taxed as a REIT under the Internal
Revenue Code, or the Code, commencing with our taxable year that
began on April 6, 2004.
Our principal executive offices are located at 1000 Urban Center
Drive, Suite 501, Birmingham, Alabama 35242. Our
telephone number is
(205) 969-3755.
Our Internet address is www.medicalpropertiestrust.com. The
information on our website does not constitute a part of this
prospectus.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly, and current reports, proxy statements
and other information with the SEC. You may read and copy the
registration statement and any other documents filed by us at
the SECs Public Reference Room at 100 F Street, N.E.,
Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330
for further information on the Public Reference Room. Our SEC
filings are also available to the public at the SECs
website at http://www.sec.gov. Our reference to the SECs
website is intended to be an inactive textual reference only. In
addition, you may read our SEC filings at the offices of the New
York Stock Exchange (the
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NYSE), which is located at 20 Broad Street, New
York, New York 10005. Our SEC filings are available at the NYSE
because our common stock is traded on the NYSE under the symbol
of MPW.
We maintain an Internet website that contains information about
us at http://www.medicalpropertiestrust.com. The information on
our website is not a part of this prospectus, and the reference
to our website is intended to be an inactive textual reference
only.
This prospectus is part of our registration statement and does
not contain all of the information in the registration
statement. We have omitted parts of the registration statement
in accordance with the rules and regulations of the SEC. For
more details concerning the Company and any securities offered
by this prospectus, you may examine the registration statement
on
Form S-3
and the exhibits filed with it at the locations listed in the
previous paragraphs.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference into
this prospectus the information we file with the SEC, which
means that we can disclose important information to you by
referring you to those documents. Information incorporated by
reference is part of this prospectus. Later information filed
with the SEC will update and supersede this information.
We incorporate by reference the documents listed below and any
future filings we make with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until
this offering is completed:
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our Annual Report on
Form 10-K
for the year ended December 31, 2005;
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our definitive proxy statement for the 2006 annual meeting of
stockholders as filed on April 20, 2006;
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our Quarterly Reports on
Form 10-Q
and
Form 10-Q/A
for the quarters ended March 31, 2006 and June 30,
2006;
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our Current Reports on
Form 8-K
filed on April 17, 2006, July 20, 2006 and
August 3, 2006
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We will provide, upon oral or written request, to each person,
including any beneficial owner, to whom a prospectus is
delivered, a copy of any or all of the information that has been
incorporated by reference in the prospectus but not delivered
with this prospectus. Any Person, including any beneficial owner
may request a copy of these filings, including exhibits at no
cost, by contacting:
Investor
Relations, Medical Properties Trust
1000 Urban Center Drive, Suite 501
Birmingham, Alabama 35242
by telephone at
(205) 969-3755
by facsimile at
(205) 969-3756
by e-mail at
clambert@medicalpropertiestrust.com
or by visiting our website,
http://www.medicalpropertiestrust.com. The information contained
on our website is not part of this prospectus and the reference
to our website is intended to be an inactive textual reference
only.
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USE OF
PROCEEDS
We will not receive any proceeds from the sale by the selling
shareholders of the common shares being offered by this
prospectus.
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DESCRIPTION
OF CAPITAL STOCK
The following summary of the material provisions of our
capital stock is subject to and qualified in its entirety by
reference to the Maryland General Corporation Law, or MGCL, and
our charter and bylaws. Copies of our charter and bylaws are on
file with the SEC. We recommend that you review these documents.
See Where You Can Find More Information.
Authorized
Stock
Our charter authorizes us to issue up to 100,000,000 shares
of common stock, par value $.001 per share, and
10,000,000 shares of preferred stock, par value
$.001 per share. As of the date of this prospectus, we have
40,195,564 shares of common stock issued and outstanding
and no shares of preferred stock issued and outstanding. Our
charter authorizes our board of directors to increase the
aggregate number of authorized shares or the number of shares of
any class or series without stockholder approval. Under Maryland
law, stockholders generally are not liable for the
corporations debts or obligations.
Common
Stock
All shares of our common stock offered hereby have been duly
authorized, fully paid and nonassessable. Subject to the
preferential rights of any other class or series of stock and to
the provisions of our charter regarding the restrictions on
transfer of stock, holders of shares of our common stock are
entitled to receive dividends on such stock when, as and if
authorized by our board of directors out of funds legally
available therefor and declared by us and to share ratably in
the assets of our company legally available for distribution to
our stockholders in the event of our liquidation, dissolution or
winding up after payment of or adequate provision for all known
debts and liabilities of our company, including the preferential
rights on dissolution of any class or classes of preferred stock.
Subject to the provisions of our charter regarding the
restrictions on transfer of stock, each outstanding share of our
common stock entitles the holder to one vote on all matters
submitted to a vote of stockholders, including the election of
directors and, except as provided with respect to any other
class or series of stock, the holders of such shares will
possess the exclusive voting power. There is no cumulative
voting in the election of our board of directors. Our directors
are elected by a plurality of the votes cast at a meeting of
stockholders at which a quorum is present.
Holders of shares of our common stock have no preference,
conversion, exchange, sinking fund, redemption or appraisal
rights and have no preemptive rights to subscribe for any
securities of our company. Subject to the provisions of our
charter regarding the restrictions on transfer of stock, shares
of our common stock will have equal dividend, liquidation and
other rights.
Under the MGCL, a Maryland corporation generally cannot
dissolve, amend its charter, merge, consolidate, sell all or
substantially all of its assets, engage in a share exchange or
engage in similar transactions outside of the ordinary course of
business unless approved by the corporations board of
directors and by the affirmative vote of stockholders holding at
least two-thirds of the shares entitled to vote on the matter
unless a lesser percentage (but not less than a majority of all
of the votes entitled to be cast on the matter) is set forth in
the corporations charter. Our charter does not provide for
a lesser percentage for these matters. However, Maryland law
permits a corporation to transfer all or substantially all of
its assets without the approval of the stockholders of the
corporation to one or more persons if all of the equity
interests of the person or persons are owned, directly or
indirectly, by the corporation. Because operating assets may be
held by a corporations subsidiaries, as in our situation,
this may mean that a subsidiary of a corporation can transfer
all of its assets without a vote of the corporations
stockholders.
Our charter authorizes our board of directors to reclassify any
unissued shares of our common stock into other classes or series
of classes of stock and to establish the number of shares in
each class or series and to set the preferences, conversion and
other rights, voting powers, restrictions, limitations as to
dividends or other distributions, qualifications or terms or
conditions of redemption for each such class or series.
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Preferred
Stock
Our charter authorizes our board of directors to classify any
unissued shares of preferred stock and to reclassify any
previously classified but unissued shares of any series. Prior
to issuance of shares of each series, our board of directors is
required by the MGCL and our charter to set the terms,
preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends or other
distributions, qualifications and terms and conditions of
redemption for each such series. Thus, our board of directors
could authorize the issuance of shares of preferred stock with
terms and conditions which could have the effect of delaying,
deferring or preventing a change of control transaction that
might involve a premium price for holders of our common stock or
which holders might believe to otherwise be in their best
interest. As of the date hereof, no shares of preferred stock
are outstanding, and we have no current plans to issue any
preferred stock.
Power to
Increase Authorized Stock and Issue Additional Shares of Our
Common Stock and Preferred Stock
We believe that the power of our board of directors, without
stockholder approval, to increase the number of authorized
shares of stock, issue additional authorized but unissued shares
of our common stock or preferred stock and to classify or
reclassify unissued shares of our common stock or preferred
stock and thereafter to cause us to issue such classified or
reclassified shares of stock will provide us with flexibility in
structuring possible future financings and acquisitions and in
meeting other needs which might arise. The additional classes or
series, as well as the common stock, will be available for
issuance without further action by our stockholders, unless
stockholder consent is required by applicable law or the rules
of any national securities exchange or automated quotation
system on which our securities may be listed or traded.
Restrictions
on Ownership and Transfer
In order for us to qualify as a REIT under the Code, not more
than 50% of the value of the outstanding shares of our stock may
be owned, actually or constructively, by five or fewer
individuals (as defined in the Code to include certain entities)
during the last half of a taxable year (other than the first
year for which an election to be a REIT has been made by us). In
addition, if we, or one or more owners (actually or
constructively) of 10% or more of our stock, actually or
constructively owns 10% or more of a tenant of ours (or a tenant
of any partnership in which we are a partner), the rent received
by us (either directly or through any such partnership) from
such tenant will not be qualifying income for purposes of the
REIT gross income tests of the Code. Our stock must also be
beneficially owned by 100 or more persons during at least
335 days of a taxable year of 12 months or during a
proportionate part of a shorter taxable year (other than the
first year for which an election to be a REIT has been made by
us).
Our charter contains restrictions on the ownership and transfer
of our capital stock that are intended to assist us in complying
with these requirements and continuing to qualify as a REIT. The
relevant sections of our charter provide that, effective upon
completion of our initial public offering and subject to the
exceptions described below, no person or persons acting as a
group may own, or be deemed to own by virtue of the attribution
provisions of the Code, more than (i) 9.8% of the number or
value, whichever is more restrictive, of the outstanding shares
of our common stock or (ii) 9.8% of the number or value,
whichever is more restrictive, of the issued and outstanding
preferred or other shares of any class or series of our stock.
We refer to this restriction as the ownership limit.
The ownership limit in our charter is more restrictive than the
restrictions on ownership of our common stock imposed by the
Code.
The ownership attribution rules under the Code are complex and
may cause stock owned actually or constructively by a group of
related individuals or entities to be owned constructively by
one individual or entity. As a result, the acquisition of less
than 9.8% of our common stock (or the acquisition of an interest
in an entity that owns, actually or constructively, our common
stock) by an individual or entity could nevertheless cause that
individual or entity, or another individual or entity, to own
constructively in excess of 9.8% of our outstanding common stock
and thereby subject the common stock to the ownership limit.
Our board of directors may, in its sole discretion, waive the
ownership limit with respect to one or more stockholders if it
determines that such ownership will not jeopardize our status as
a REIT (for example, by
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causing any tenant of ours to be considered a related
party tenant for purposes of the REIT qualification rules).
As a condition of our waiver, our board of directors may require
an opinion of counsel or IRS ruling satisfactory to our board of
directors and representations or undertakings from the applicant
with respect to preserving our REIT status.
In connection with the waiver of the ownership limit or at any
other time, our board of directors may decrease the ownership
limit for all other persons and entities; provided, however,
that the decreased ownership limit will not be effective for any
person or entity whose percentage ownership in our capital stock
is in excess of such decreased ownership limit until such time
as such person or entitys percentage of our capital stock
equals or falls below the decreased ownership limit, but any
further acquisition of our capital stock in excess of such
percentage ownership of our capital stock will be in violation
of the ownership limit. Additionally, the new ownership limit
may not allow five or fewer individuals (as defined
for purposes of the REIT ownership restrictions under the Code)
to beneficially own more than 49.5% of the value of our
outstanding capital stock.
Our charter generally prohibits:
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any person from actually or constructively owning shares of our
capital stock that would result in us being closely
held under Section 856(h) of the Code; and
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any person from transferring shares of our capital stock if such
transfer would result in shares of our stock being beneficially
owned by fewer than 100 persons (determined without reference to
any rules of attribution).
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Any person who acquires or attempts or intends to acquire
beneficial or constructive ownership of shares of our common
stock that will or may violate any of the foregoing restrictions
on transferability and ownership will be required to give notice
immediately to us and provide us with such other information as
we may request in order to determine the effect of such transfer
on our status as a REIT. The foregoing provisions on
transferability and ownership will not apply if our board of
directors determines that it is no longer in our best interests
to attempt to qualify, or to continue to qualify, as a REIT.
Pursuant to our charter, if any purported transfer of our
capital stock or any other event would otherwise result in any
person violating the ownership limit or the other restrictions
in our charter, then any such purported transfer will be void
and of no force or effect with respect to the purported
transferee or owner (collectively referred to hereinafter as the
purported owner) as to that number of shares in
excess of the ownership limit (rounded up to the nearest whole
share). The number of shares in excess of the ownership limit
will be automatically transferred to, and held by, a trust for
the exclusive benefit of one or more charitable organizations
selected by us. The trustee of the trust will be designated by
us and must be unaffiliated with us and with any purported
owner. The automatic transfer will be effective as of the close
of business on the business day prior to the date of the
violative transfer or other event that results in a transfer to
the trust. Any dividend or other distribution paid to the
purported owner, prior to our discovery that the shares had been
automatically transferred to a trust as described above, must be
repaid to the trustee upon demand for distribution to the
beneficiary of the trust and all dividends and other
distributions paid by us with respect to such excess
shares prior to the sale by the trustee of such shares shall be
paid to the trustee for the beneficiary. If the transfer to the
trust as described above is not automatically effective, for any
reason, to prevent violation of the applicable ownership limit,
then our charter provides that the transfer of the excess shares
will be void. Subject to Maryland law, effective as of the date
that such excess shares have been transferred to the trust, the
trustee shall have the authority (at the trustees sole
discretion and subject to applicable law) (i) to rescind as
void any vote cast by a purported owner prior to our discovery
that such shares have been transferred to the trust and
(ii) to recast such vote in accordance with the desires of
the trustee acting for the benefit of the beneficiary of the
trust, provided that if we have already taken irreversible
action, then the trustee shall not have the authority to rescind
and recast such vote.
Shares of our capital stock transferred to the trustee are
deemed offered for sale to us, or our designee, at a price per
share equal to the lesser of (i) the price paid by the
purported owner for the shares (or, if the event
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which resulted in the transfer to the trust did not involve a
purchase of such shares of our capital stock at market price,
the market price on the day of the event which resulted in the
transfer of such shares of our capital stock to the trust) and
(ii) the market price on the date we, or our designee,
accepts such offer. We have the right to accept such offer until
the trustee has sold the shares of our capital stock held in the
trust pursuant to the provisions discussed below. Upon a sale to
us, the interest of the charitable beneficiary in the shares
sold terminates and the trustee must distribute the net proceeds
of the sale to the purported owner and any dividends or other
distributions held by the trustee with respect to such capital
stock will be paid to the charitable beneficiary.
If we do not buy the shares, the trustee must, within
20 days of receiving notice from us of the transfer of
shares to the trust, sell the shares to a person or entity
designated by the trustee who could own the shares without
violating the ownership limit. After that, the trustee must
distribute to the purported owner an amount equal to the lesser
of (i) the net price paid by the purported owner for the
shares (or, if the event which resulted in the transfer to the
trust did not involve a purchase of such shares at market price,
the market price on the day of the event which resulted in the
transfer of such shares of our capital stock to the trust) and
(ii) the net sales proceeds received by the trust for the
shares. Any proceeds in excess of the amount distributable to
the purported owner will be distributed to the beneficiary.
All persons who own, directly or by virtue of the attribution
provisions of the Code, more than 5% (or such other percentage
as provided in the regulations promulgated under the Code) of
the lesser of the number or value of the shares of our
outstanding capital stock must give written notice to us within
30 days after the end of each calendar year. In addition,
each stockholder will, upon demand, be required to disclose to
us in writing such information with respect to the direct,
indirect and constructive ownership of shares of our stock as
our board of directors deems reasonably necessary to comply with
the provisions of the Code applicable to a REIT, to comply with
the requirements or any taxing authority or governmental agency
or to determine any such compliance.
All certificates representing shares of our capital stock will
bear a legend referring to the restrictions described above.
These ownership limits could delay, defer or prevent a
transaction or a change of control of our company that might
involve a premium price over the then prevailing market price
for the holders of some, or a majority, of our outstanding
shares of common stock or which such holders might believe to be
otherwise in their best interest.
Transfer
Agent and Registrar
The transfer agent and registrar for our common stock is
American Stock Transfer and Trust Co.
10
PARTNERSHIP
AGREEMENT
The following is a summary of the material terms of the first
amended and restated agreement of limited partnership of our
operating partnership. This summary is subject to and qualified
in its entirety by reference to the first amended and restated
agreement of limited partnership of our operating partnership, a
copy of which is on file with the SEC. See Where You Can
Find More Information.
Management
of Our Operating Partnership
MPT Operating Partnership, L.P., our operating partnership, was
organized as a Delaware limited partnership on
September 10, 2003. The initial partnership agreement was
entered into on that date and amended and restated on
March 1, 2004. Pursuant to the partnership agreement, as
the owner of the sole general partner of the operating
partnership, Medical Properties Trust, LLC, we have, subject to
certain protective rights of limited partners described below,
full, exclusive and complete responsibility and discretion in
the management and control of the operating partnership. We have
the power to cause the operating partnership to enter into
certain major transactions, including acquisitions,
dispositions, refinancings and selection of tenants, and to
cause changes in the operating partnerships line of
business and distribution policies. However, any amendment to
the partnership agreement that would affect the redemption
rights of the limited partners or otherwise adversely affect the
rights of the limited partners requires the consent of limited
partners, other than us, holding more than 50% of the units of
our operating partnership held by such partners.
Transferability
of Interests
We may not voluntarily withdraw from the operating partnership
or transfer or assign our interest in the operating partnership
or engage in any merger, consolidation or other combination, or
sale of substantially all of our assets, in a transaction which
results in a change of control of our company unless:
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we receive the consent of limited partners holding more than 50%
of the partnership interests of the limited partners, other than
those held by our company or its subsidiaries;
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as a result of such transaction, all limited partners will have
the right to receive for each partnership unit an amount of
cash, securities or other property equal in value to the
greatest amount of cash, securities or other property paid in
the transaction to a holder of one share of our common stock,
provided that if, in connection with the transaction, a
purchase, tender or exchange offer shall have been made to and
accepted by the holders of more than 50% of the outstanding
shares of our common stock, each holder of partnership units
shall be given the option to exchange its partnership units for
the greatest amount of cash, securities or other property that a
limited partner would have received had it (i) exercised
its redemption right (described below) and (ii) sold,
tendered or exchanged pursuant to the offer shares of our common
stock received upon exercise of the redemption right immediately
prior to the expiration of the offer; or
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we are the surviving entity in the transaction and either
(i) our stockholders do not receive cash, securities or
other property in the transaction or (ii) all limited
partners receive for each partnership unit an amount of cash,
securities or other property having a value that is no less than
the greatest amount of cash, securities or other property
received in the transaction by our stockholders.
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We also may merge with or into or consolidate with another
entity if immediately after such merger or consolidation
(i) substantially all of the assets of the successor or
surviving entity, other than partnership units held by us, are
contributed, directly or indirectly, to the partnership as a
capital contribution in exchange for partnership units with a
fair market value equal to the value of the assets so
contributed as determined by the survivor in good faith and
(ii) the survivor expressly agrees to assume all of our
obligations under the partnership agreement and the partnership
agreement shall be amended after any such merger or
consolidation so as to arrive at a new method of calculating the
amounts payable upon exercise of the redemption right that
approximates the existing method for such calculation as closely
as reasonably possible.
We also may (i) transfer all or any portion of our general
partnership interest to (A) a wholly-owned subsidiary or
(B) a parent company, and following such transfer may
withdraw as general partner and
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(ii) engage in a transaction required by law or by the
rules of any national securities exchange or automated quotation
system on which our securities may be listed or traded.
Capital
Contribution
We contributed to our operating partnership substantially all
the net proceeds of our April 2004 private placement and our
July 2005 initial public offering as a capital contribution in
exchange for units of the operating partnership. The partnership
agreement provides that if the operating partnership requires
additional funds at any time in excess of funds available to the
operating partnership from borrowing or capital contributions,
we may borrow such funds from a financial institution or other
lender and lend such funds to the operating partnership on the
same terms and conditions as are applicable to our borrowing of
such funds. Under the partnership agreement, we are obligated to
contribute the proceeds of any offering of shares of our
companys stock as additional capital to the operating
partnership. We are authorized to cause the operating
partnership to issue partnership interests for less than fair
market value if we have concluded in good faith that such
issuance is in both the operating partnerships and our
best interests. If we contribute additional capital to the
operating partnership, we will receive additional partnership
units and our percentage interest will be increased on a
proportionate basis based upon the amount of such additional
capital contributions and the value of the operating partnership
at the time of such contributions. Conversely, the percentage
interests of the limited partners will be decreased on a
proportionate basis in the event of additional capital
contributions by us. In addition, if we contribute additional
capital to the operating partnership, we will revalue the
property of the operating partnership to its fair market value,
as determined by us, and the capital accounts of the partners
will be adjusted to reflect the manner in which the unrealized
gain or loss inherent in such property, that has not been
reflected in the capital accounts previously, would be allocated
among the partners under the terms of the partnership agreement
if there were a taxable disposition of such property for its
fair market value, as determined by us, on the date of the
revaluation. The operating partnership may issue preferred
partnership interests, in connection with acquisitions of
property or otherwise, which could have priority over common
partnership interests with respect to distributions from the
operating partnership, including the partnership interests that
our wholly-owned subsidiary owns as general partner.
Redemption Rights
Pursuant to Section 8.04 of the partnership agreement, the
limited partners, other than us, will receive redemption rights,
which will enable them to cause the operating partnership to
redeem their limited partnership units in exchange for cash or,
at our option, shares of our common stock on a
one-for-one
basis, subject to adjustment for stock splits, dividends,
recapitalization and similar events. Currently, we own 100% of
the issued limited partnership units of our operating
partnership. Under Section 8.04 of our partnership
agreement, holders of limited partnership units will be
prohibited from exercising their redemption rights for
12 months after they are issued, unless this waiting period
is waived or shortened by our board of directors.
Notwithstanding the foregoing, a limited partner will not be
entitled to exercise its redemption rights if the delivery of
common stock to the redeeming limited partner would:
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result in any person owning, directly or indirectly, common
stock in excess of the stock ownership limit in our charter;
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result in our shares of stock being owned by fewer than 100
persons (determined without reference to any rules of
attribution);
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cause us to own, actually or constructively, 10% or more of the
ownership interests in a tenant of our or the partnerships
real property, within the meaning of Section 856(d)(2)(B)
of the Code; or
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cause the acquisition of common stock by such redeeming limited
partner to be integrated with any other distribution
of common stock for purposes of complying with the registration
provisions of the Securities Act
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We may, in our sole and absolute discretion, waive any of these
restrictions.
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With respect to the partnership units issuable in connection
with the acquisition or development of our facilities, the
redemption rights may be exercised by the limited partners at
any time after the first anniversary of our acquisition of these
facilities; provided, however, unless we otherwise agree:
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a limited partner may not exercise the redemption right for
fewer than 1,000 partnership units or, if such limited partner
holds fewer than 1,000 partnership units, the limited partner
must redeem all of the partnership units held by such limited
partner;
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a limited partner may not exercise the redemption right for more
than the number of partnership units that would, upon
redemption, result in such limited partner or any other person
owning, directly or indirectly, common stock in excess of the
ownership limitation in our charter; and
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a limited partner may not exercise the redemption right more
than two times annually.
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We currently hold all the outstanding interests in our operating
partnership and, accordingly, there are currently no units of
our operating partnership subject to being redeemed in exchange
for shares of our common stock. The number of shares of common
stock issuable upon exercise of the redemption rights will be
adjusted to account for stock splits, mergers, consolidations or
similar pro rata stock transactions.
The partnership agreement requires that the operating
partnership be operated in a manner that enables us to satisfy
the requirements for being classified as a REIT, to avoid any
federal income or excise tax liability imposed by the Code
(other than any federal income tax liability associated with our
retained capital gains) and to ensure that the partnership will
not be classified as a publicly traded partnership
taxable as a corporation under Section 7704 of the Code.
In addition to the administrative and operating costs and
expenses incurred by the operating partnership, the operating
partnership generally will pay all of our administrative costs
and expenses, including:
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all expenses relating to our continuity of existence;
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all expenses relating to offerings and registration of
securities;
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all expenses associated with the preparation and filing of any
of our periodic reports under federal, state or local laws or
regulations;
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all expenses associated with our compliance with laws, rules and
regulations promulgated by any regulatory body; and
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all of our other operating or administrative costs incurred in
the ordinary course of business on behalf of the operating
partnership.
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Distributions
The partnership agreement provides that the operating
partnership will distribute cash from operations, including net
sale or refinancing proceeds, but excluding net proceeds from
the sale of the operating partnerships property in
connection with the liquidation of the operating partnership, at
such time and in such amounts as determined by us in our sole
discretion, to us and the limited partners in accordance with
their respective percentage interests in the operating
partnership.
Upon liquidation of the operating partnership, after payment of,
or adequate provision for, debts and obligations of the
partnership, including any partner loans, any remaining assets
of the partnership will be distributed to us and the limited
partners with positive capital accounts in accordance with their
respective positive capital account balances.
Allocations
Profits and losses of the partnership, including depreciation
and amortization deductions, for each fiscal year generally are
allocated to us and the limited partners in accordance with the
respective percentage interests in the partnership. All of the
foregoing allocations are subject to compliance with the
provisions of Sections 704(b) and 704(c) of the Code and
Treasury regulations promulgated thereunder. The operating
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partnership expects to use the traditional method
under Section 704(c) of the Code for allocating items with
respect to contributed property acquired in connection with the
offering for which the fair market value differs from the
adjusted tax basis at the time of contribution.
Term
The operating partnership will have perpetual existence, or
until sooner dissolved upon:
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our bankruptcy, dissolution, removal or withdrawal, unless the
limited partners elect to continue the partnership;
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the passage of 90 days after the sale or other disposition
of all or substantially all the assets of the
partnership; or
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an election by us in our capacity as the owner of the sole
general partner of the operating partnership.
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Tax
Matters
Pursuant to the partnership agreement, the general partner is
the tax matters partner of the operating partnership.
Accordingly, through our ownership of the general partner of the
operating partnership, we have authority to handle tax audits
and to make tax elections under the Code on behalf of the
operating partnership.
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UNITED
STATES FEDERAL INCOME TAX CONSIDERATIONS
This section summarizes the current material federal income tax
consequences to our company and to our stockholders generally
resulting from the treatment of our company as a REIT. Because
this section is a general summary, it does not address all of
the potential tax issues that may be relevant to you in light of
your particular circumstances. Baker, Donelson, Bearman,
Caldwell & Berkowitz, P.C., or Baker Donelson, has
acted as our counsel, has reviewed this summary, and is of the
opinion that the discussion contained herein fairly summarizes
the federal income tax consequences that are material to a
holder of shares of our common stock. The discussion does not
address all aspects of taxation that may be relevant to
particular stockholders in light of their personal investment or
tax circumstances, or to certain types of stockholders that are
subject to special treatment under the federal income tax laws,
such as insurance companies, tax-exempt organizations (except to
the limited extent discussed in Taxation of
Tax-Exempt Stockholders), financial institutions or
broker-dealers, and non-United States individuals and foreign
corporations (except to the limited extent discussed in
Taxation of Non-United States
Stockholders).
The statements in this section and the opinion of Baker
Donelson, referred to as the Tax Opinion, are based on the
current federal income tax laws governing qualification as a
REIT. We cannot assure you that new laws, interpretations of law
or court decisions, any of which may take effect retroactively,
will not cause any statement in this section to be inaccurate.
You should be aware that opinions of counsel are not binding on
the IRS, and no assurance can be given that the IRS will not
challenge the conclusions set forth in those opinions.
This section is not a substitute for careful tax planning. We
urge you to consult your own tax advisors regarding the specific
federal state, local, foreign and other tax consequences to you,
in light of your own particular circumstances, of the purchase,
ownership and disposition of shares of our common stock, our
election to be taxed as a REIT and the effect of potential
changes in applicable tax laws.
Taxation
of Our Company
We were previously taxed as a subchapter S corporation. We
revoked our subchapter S election on April 6, 2004 and we
have elected to be taxed as a REIT under Sections 856
through 860 of the Code, commencing with our taxable year that
began on April 6, 2004 and ended on December 31, 2004.
Our counsel has opined that, for federal income tax purposes, we
are and have been organized in conformity with the requirements
for qualification to be taxed as a REIT under the Code
commencing with our initial short taxable year ended
December 31, 2004, and that our current and proposed method
of operations as described in this prospectus and as represented
to our counsel by us satisfies currently, and will enable us to
continue to satisfy in the future, the requirements for such
qualification and taxation as a REIT under the Code for future
taxable years. This opinion, however, is based upon factual
assumptions and representations made by us.
We believe that our proposed future method of operation will
enable us to continue to qualify as a REIT. However, no
assurances can be given that our beliefs or expectations will be
fulfilled, as such qualification and taxation as a REIT depends
upon our ability to meet, for each taxable year, various tests
imposed under the Code as discussed below. Those qualification
tests involve the percentage of income that we earn from
specified sources, the percentage of our assets that falls
within specified categories, the diversity of our stock
ownership, and the percentage of our earnings that we
distribute. Baker Donelson will not review our compliance with
those tests on a continuing basis. Accordingly, with respect to
our current and future taxable years, no assurance can be given
that the actual results of our operation will satisfy such
requirements. For a discussion of the tax consequences of our
failure to maintain our qualification as a REIT, see
Failure to Qualify.
The sections of the Code relating to qualification and operation
as a REIT, and the federal income taxation of a REIT and its
stockholders, are highly technical and complex. The following
discussion sets forth only the material aspects of those
sections. This summary is qualified in its entirety by the
applicable Code provisions and the related rules and
regulations. We generally will not be subject to federal income
tax on the taxable income that we distribute to our
stockholders. The benefit of that tax treatment is that it
avoids the
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double taxation, or taxation at both the corporate
and stockholder levels, that generally results from owning stock
in a corporation. However, we will be subject to federal tax in
the following circumstances:
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We are subject to the corporate federal income tax on taxable
income, including net capital gain, that we do not distribute to
stockholders during, or within a specified time period after,
the calendar year in which the income is earned.
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We are subject to the corporate alternative minimum
tax on any items of tax preference that we do not
distribute or allocate to stockholders.
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We are subject to tax, at the highest corporate rate, on:
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net income from the sale or other disposition of property
acquired through foreclosure (foreclosure property)
that we hold primarily for sale to customers in the ordinary
course of business, and
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other non-qualifying income from foreclosure property.
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We are subject to a 100% tax on net income from sales or other
dispositions of property, other than foreclosure property, that
we hold primarily for sale to customers in the ordinary course
of business.
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If we fail to satisfy the 75% gross income test or the 95% gross
income test, as described below under
Requirements for Qualification
Gross Income Tests, but nonetheless continue to qualify as
a REIT because we meet other requirements, we will be subject to
a 100% tax on:
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the greater of (i) the amount by which we fail the 75%
test, or (ii) the excess of 95% (90% for taxable years
beginning before January 1, 2005) of our gross income
over the amount of gross income attributable to sources that
qualify under the 95% test, multiplied by
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a fraction intended to reflect our profitability.
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If we fail to distribute during a calendar year at least the sum
of: (i) 85% of our REIT ordinary income for the year,
(ii) 95% of our REIT capital gain net income for the year,
and (iii) any undistributed taxable income from earlier
periods, then we will be subject to a 4% excise tax on the
excess of the required distribution over the amount we actually
distributed.
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If we fail to satisfy one or more requirements for REIT
qualification during a taxable year beginning on or after
January 1, 2005, other than a gross income test or an asset
test, we will be required to pay a penalty of $50,000 for each
such failure.
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We may elect to retain and pay income tax on our net long-term
capital gain. In that case, a United States stockholder
would be taxed on its proportionate share of our undistributed
long-term capital gain (to the extent that we make a timely
designation of such gain to the stockholder) and would receive a
credit or refund for its proportionate share of the tax we paid.
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We may be subject to a 100% excise tax on certain transactions
with a taxable REIT subsidiary that are not conducted at
arms-length.
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If we acquire any asset from a C corporation (that
is, a corporation generally subject to the full corporate-level
tax) in a transaction in which the basis of the asset in our
hands is determined by reference to the basis of the asset in
the hands of the C corporation, and we recognize gain on the
disposition of the asset during the 10 year period
beginning on the date that we acquired the asset, then the
assets built-in gain will be subject to tax at
the highest regular corporate rate.
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Requirements
for Qualification
To continue to qualify as a REIT, we must meet various
(i) organizational requirements, (ii) gross income
tests, (iii) asset tests, and (iv) annual distribution
requirements.
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Organizational Requirements. A REIT is a
corporation, trust or association that meets each of the
following requirements:
(1) it is managed by one or more trustees or directors;
(2) its beneficial ownership is evidenced by transferable
stock, or by transferable certificates of beneficial interest;
(3) it would be taxable as a domestic corporation, but for
its election to be taxed as a REIT under Sections 856
through 860 of the Code;
(4) it is neither a financial institution nor an insurance
company subject to special provisions of the federal income tax
laws;
(5) at least 100 persons are beneficial owners of its stock
or ownership certificates (determined without reference to any
rules of attribution);
(6) not more than 50% in value of its outstanding stock or
ownership certificates is owned, directly or indirectly, by five
or fewer individuals, which the federal income tax laws define
to include certain entities, during the last half of any taxable
year; and
(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 IRS that
must be met to elect and maintain REIT status.
We must meet requirements one through four during our entire
taxable year and must meet requirement five during at least
335 days of a taxable year of 12 months, or during a
proportionate part of a taxable year of less than
12 months. If we comply with all the requirements for
ascertaining information concerning the ownership of our
outstanding stock in a taxable year and have no reason to know
that we violated requirement six, we will be deemed to have
satisfied requirement six for that taxable year. We do not have
to satisfy requirements five and six for our taxable year ending
December 31, 2004. After the issuance of common stock
pursuant to our April 2004 private placement, we had issued
common stock with enough diversity of ownership to satisfy
requirements five and six as set forth above. Our charter
provides for restrictions regarding the ownership and transfer
of our shares of common stock so that we should continue to
satisfy these requirements. The provisions of our charter
restricting the ownership and transfer of our shares of common
stock are described in Description of Capital
Stock Restrictions on Ownership and Transfer.
For purposes of determining stock ownership under requirement
six, 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 our shares in proportion to their actuarial
interests in the trust for purposes of requirement six.
A corporation that is a qualified REIT subsidiary,
or QRS, is not treated as a corporation separate from its parent
REIT. All assets, liabilities, and items of income, deduction
and credit of a QRS are treated as assets, liabilities, and
items of income, deduction and credit of the REIT. A QRS is a
corporation, all of the capital stock of which is owned by the
REIT. Thus, in applying the requirements described herein, any
QRS that we own will be ignored, and all assets, liabilities,
and items of income, deduction and credit of such subsidiary
will be treated as our assets, liabilities, and items of income,
deduction and credit.
An unincorporated domestic entity, such as a partnership, that
has a single owner, generally is not treated as an entity
separate from its parent for federal income tax purposes. An
unincorporated domestic entity with two or more owners is
generally treated as a partnership for federal income tax
purposes. In the case of a REIT that is a partner in a
partnership that has other partners, 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, our proportionate share of the assets, liabilities
and items of income of our operating partnership and any other
partnership, joint venture, or limited liability
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company that is treated as a partnership for federal income tax
purposes in which we acquire an interest, directly or
indirectly, is treated as our assets and gross income for
purposes of applying the various REIT qualification requirements.
A REIT is permitted to own up to 100% of the stock of one or
more taxable REIT subsidiaries. A taxable REIT
subsidiary is a fully taxable corporation that may earn income
that would not be qualifying income if earned directly by the
parent REIT. The subsidiary and the REIT must jointly file an
election with the IRS to treat the subsidiary as a taxable REIT
subsidiary. A taxable REIT subsidiary will pay income tax at
regular corporate rates on any income that it earns. In
addition, the taxable REIT subsidiary rules limit the
deductibility of interest paid or accrued by a taxable REIT
subsidiary to its parent REIT to assure that the taxable REIT
subsidiary is subject to an appropriate level of corporate
taxation. Further, the rules impose a 100% excise tax on certain
types of transactions between a taxable REIT subsidiary and its
parent REIT or the REITs tenants that are not conducted on
an arms-length basis. We may engage in activities
indirectly through a taxable REIT subsidiary as necessary or
convenient to avoid obtaining the benefit of income or services
that would jeopardize our REIT status if we engaged in the
activities directly. In particular, we would likely engage in
activities through a taxable REIT subsidiary if we wished to
provide services to unrelated parties which might produce income
that does not qualify under the gross income tests described
below. We might also dispose of an unwanted asset through a
taxable REIT subsidiary as necessary or convenient to avoid the
100% tax on income from prohibited transactions. See description
below under Prohibited Transactions. A taxable REIT
subsidiary may not operate or manage a healthcare facility. For
purposes of this definition a healthcare facility
means a hospital, nursing facility, assisted living facility,
congregate care facility, qualified continuing care facility, or
other licensed facility which extends medical or nursing or
ancillary services to patients and which is operated by a
service provider which is eligible for participation in the
Medicare program under Title XVIII of the Social Security
Act with respect to such facility. We have formed and made a
taxable REIT subsidiary election with respect to MPT Development
Services, Inc., a Delaware corporation formed in January 2004.
We may form or acquire one or more additional taxable REIT
subsidiaries in the future. See Federal Income Tax
Considerations Income Taxation of the Partnerships
and the Partners Taxable REIT Subsidiaries.
Gross Income Tests. We must satisfy two gross
income tests annually to maintain our qualification as a REIT.
First, at least 75% of our gross income for each taxable year
must consist of defined types of income that we derive, directly
or indirectly, from investments relating to real property or
mortgages on real property or qualified temporary investment
income. Qualifying income for purposes of that 75% gross income
test generally includes:
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rents from real property;
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interest on debt secured by mortgages on real property, or on
interests in real property;
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dividends or other distributions on, and gain from the sale of,
shares in other REITs;
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gain from the sale of real estate assets;
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income derived from the temporary investment of new capital that
is attributable to the issuance of our shares of common stock or
a public offering of our debt with a maturity date of at least
five years and that we receive during the one year period
beginning on the date on which we received such new
capital; and
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gross income from foreclosure property.
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Second, in general, at least 95% of our gross income for each
taxable year must consist of income that is qualifying income
for purposes of the 75% gross income test, other types of
interest and dividends, gain from the sale or disposition of
stock or securities, income from certain hedging instruments or
any combination of these. Gross income from our sale of property
that we hold primarily for sale to customers in the ordinary
course of business is excluded from both the numerator and the
denominator in both income tests. In addition, for taxable years
beginning on and after January 1, 2005, income and gain
from hedging transactions that we enter into to
hedge indebtedness incurred or to be incurred to acquire or
carry real estate assets and that
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are clearly and timely identified as such also will be excluded
from both the numerator and the denominator for purposes of the
95% gross income test (but not the 75% gross income test). The
following paragraphs discuss the specific application of the
gross income tests to us.
Rents from Real Property. Rent that we receive
from our real property will qualify as rents from real
property, which is qualifying income for purposes of the
75% and 95% gross income tests, only if the following conditions
are met.
First, the rent must not be based in whole or in part on the
income or profits of any person. Participating rent, however,
will qualify as rents from real property if it is
based on percentages of receipts or sales and the percentages:
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are fixed at the time the leases are entered into;
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are not renegotiated during the term of the leases in a manner
that has the effect of basing rent on income or profits; and
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conform with normal business practice.
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More generally, the rent will not qualify as rents from
real property if, considering the relevant lease and all
the surrounding circumstances, the arrangement does not conform
with normal business practice, but is in reality used as a means
of basing the rent on income or profits. We have represented to
Baker Donelson that we intend to set and accept rents which are
fixed dollar amounts or a fixed percentage of gross revenue, and
not determined to any extent by reference to any persons
income or profits, in compliance with the rules above.
Second, we must not own, actually or constructively, 10% or more
of the stock or the assets or net profits of any tenant,
referred to as a related party tenant, other than a taxable REIT
subsidiary. Failure to adhere to this limitation would cause the
rental income from the related party tenant to not be treated as
qualifying income for purposes of the REIT gross income tests.
The constructive ownership rules generally provide that, if 10%
or more in value of our stock is owned, directly or indirectly,
by or for any person, we are considered as owning the stock
owned, directly or indirectly, by or for such person. We do not
own any stock or any assets or net profits of any tenant
directly. In addition, our charter prohibits transfers of our
shares that would cause us to own, actually or constructively,
10% or more of the ownership interests in a tenant. We should
not own, actually or constructively, 10% or more of any tenant
other than a taxable REIT subsidiary. We have represented to
counsel that we will not rent any facility to a related-party
tenant. However, because the constructive ownership rules are
broad and it is not possible to monitor continually direct and
indirect transfers of our shares, no absolute assurance can be
given that such transfers or other events of which we have no
knowledge will not cause us to own constructively 10% or more of
a tenant other than a taxable REIT subsidiary at some future
date. MPT Development Services, Inc., our taxable REIT
subsidiary, has made and will make loans to tenants to acquire
operations and for other purposes. We have structured and will
structure these loans as debt and believe that they will be
characterized as such, and that our rental income from our
tenant borrowers will be treated as qualifying income for
purposes of the REIT gross income tests. However, there can be
no assurance that the IRS will not take a contrary position. If
the IRS were to successfully treat a loan to a particular tenant
as an equity interest, the tenant would be a related party
tenant with respect to our company, the rent that we receive
from the tenant would not be qualifying income for purposes of
the REIT gross income tests, and we could lose our REIT status.
However, as stated above, we believe that these loans will be
treated as debt rather than equity interests.
As described above, we currently own 100% of the stock of MPT
Development Services, Inc., a taxable REIT subsidiary, and may
in the future own up to 100% of the stock of one or more
additional taxable REIT subsidiaries. Under an exception to the
related-party tenant rule described in the preceding paragraph,
rent that we receive from a taxable REIT subsidiary will qualify
as rents from real property as long as (i) the
taxable REIT subsidiary is a qualifying taxable REIT subsidiary
(among other things, it does not operate or manage a healthcare
facility), (ii) at least 90% of the leased space in the
facility is leased to persons other than taxable REIT
subsidiaries and related party tenants, and (iii) the
amount paid by the taxable REIT subsidiary to rent space at the
facility is substantially comparable to rents paid by other
tenants of the facility for comparable
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space. If in the future we receive rent from a taxable REIT
subsidiary, we will seek to comply with this exception.
Third, the rent attributable to the personal property leased in
connection with a lease of real property must not be greater
than 15% of the total rent received under the lease. The rent
attributable to personal property under a lease is the amount
that bears the same ratio to total rent under the lease for the
taxable year as the average of the fair market values of the
leased personal property at the beginning and at the end of the
taxable year bears to the average of the aggregate fair market
values of both the real and personal property covered by the
lease at the beginning and at the end of such taxable year (the
personal property ratio). With respect to each of
our leases, we believe that the personal property ratio
generally will be less than 15%. Where that is not, or may in
the future not be, the case, we believe that any income
attributable to personal property will not jeopardize our
ability to qualify as a REIT. There can be no assurance,
however, that the IRS would not challenge our calculation of a
personal property ratio, or that a court would not uphold such
assertion. If such a challenge were successfully asserted, we
could fail to satisfy the 75% or 95% gross income test and thus
lose our REIT status.
Fourth, we cannot furnish or render noncustomary services to the
tenants of our facilities, or manage or operate our facilities,
other than through an independent contractor who is adequately
compensated and from whom we do not derive or receive any
income. However, we need not provide services through an
independent contractor, but instead may provide
services directly to our tenants, if the services are
usually or customarily rendered in connection with
the rental of space for occupancy only and are not considered to
be provided for the tenants convenience. In addition, we
may provide a minimal amount of noncustomary
services to the tenants of a facility, other than through an
independent contractor, as long as our income from the services
does not exceed 1% of our income from the related facility.
Finally, we may own up to 100% of the stock of one or more
taxable REIT subsidiaries, which may provide noncustomary
services to our tenants without tainting our rents from the
related facilities. We do not intend to perform any services
other than customary ones for our tenants, other than services
provided through independent contractors or taxable REIT
subsidiaries. We have represented to Baker Donelson that we will
not perform noncustomary services which would jeopardize our
REIT status.
Finally, in order for the rent payable under the leases of our
properties to constitute rents from real property,
the leases must be respected as true leases for federal income
tax purposes and not treated as service contracts, joint
ventures, financing arrangements, or another type of
arrangement. We generally treat our leases with respect to our
properties as true leases for federal income tax purposes;
however, there can be no assurance that the IRS would not
consider a particular lease a financing arrangement instead of a
true lease for federal income tax purposes. In that case, our
income from that lease would be interest income rather than rent
and would be qualifying income for purposes of the 75% gross
income test to the extent that our loan does not
exceed the fair market value of the real estate assets
associated with the facility. All of the interest income from
our loan would be qualifying income for purposes of
the 95% gross income test. We believe that the characterization
of a lease as a financing arrangement would not adversely affect
our ability to qualify as a REIT.
If a portion of the rent we receive from a facility does not
qualify as rents from real property because the rent
attributable to personal property exceeds 15% of the total rent
for a taxable year, the portion of the rent attributable to
personal property will not be qualifying income for purposes of
either the 75% or 95% gross income test. If rent attributable to
personal property, plus any other income that is nonqualifying
income for purposes of the 95% gross income test, during a
taxable year exceeds 5% of our gross income during the year, we
would lose our REIT status. By contrast, in the following
circumstances, none of the rent from a lease of a facility would
qualify as rents from real property: (i) the
rent is considered based on the income or profits of the tenant;
(ii) the tenant is a related party tenant or fails to
qualify for the exception to the related-party tenant rule for
qualifying taxable REIT subsidiaries; or (iii) we furnish
more than a de minimis amount of noncustomary services to the
tenants of the facility, or manage or operate the facility,
other than through a qualifying independent contractor or a
taxable REIT subsidiary. In any of these circumstances, we could
lose our REIT status because we would be unable to satisfy
either the 75% or 95% gross income test.
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Tenants may be required to pay, besides base rent,
reimbursements for certain amounts we are obligated to pay to
third parties (such as a tenants proportionate share of a
facilitys operational or capital expenses), penalties for
nonpayment or late payment of rent or additions to rent. These
and other similar payments should qualify as rents from
real property.
Interest. The term interest
generally does not include any amount received or accrued,
directly or indirectly, if the determination of the amount
depends in whole or in part on the income or profits of any
person. However, an amount received or accrued generally will
not be excluded from the term interest solely
because it is based on a fixed percentage or percentages of
receipts or sales. Furthermore, to the extent that interest from
a loan that is based upon the residual cash proceeds from the
sale of the property securing the loan constitutes a
shared appreciation provision, income attributable
to such participation feature will be treated as gain from the
sale of the secured property.
Fee Income. We may receive various fees in
connection with our operations. The fees will be qualifying
income for purposes of both the 75% and 95% gross income tests
if they are received in consideration for entering into an
agreement to make a loan secured by real property and the fees
are not determined by income and profits. Other fees are not
qualifying income for purposes of either gross income test. Any
fees earned by MPT Development Services, Inc., our taxable REIT
subsidiary, will not be included for proposes of the gross
income tests. We anticipate that MPT Development Services, Inc.
will receive most of the management fees, inspection fees, and
construction fees in connection with our operations.
Prohibited Transactions. 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. We believe that none of our
assets will be held primarily for sale to customers and that a
sale of any of our assets will not be in the ordinary course of
our business. Whether a REIT holds an asset primarily for
sale to customers in the ordinary course of a trade or
business depends, however, on the facts and circumstances
in effect from time to time, including those related to a
particular asset. Nevertheless, we will attempt to comply with
the terms of safe-harbor provisions in the federal income tax
laws prescribing when an asset sale will not be characterized as
a prohibited transaction. We cannot assure you, however, that we
can comply with the safe-harbor provisions or that we will avoid
owning property that may be characterized as property that we
hold primarily for sale to customers in the ordinary
course of a trade or business. We may form or acquire a
taxable REIT subsidiary to hold and dispose of those facilities
we conclude may not fall within the safe-harbor provisions.
Foreclosure Property. We will be subject to
tax at the maximum corporate rate on any income from foreclosure
property, other than income that otherwise would be qualifying
income for purposes of the 75% gross income test, less expenses
directly connected with the production of that income. However,
gross income from foreclosure property will qualify under the
75% and 95% gross income tests. Foreclosure property is any real
property, including interests in real property, and any personal
property incidental to such real property acquired by a REIT as
the result of the REITs having bid on the property at
foreclosure, or having otherwise reduced such property to
ownership or possession by agreement or process of law after
actual or imminent default on a lease of the property or on
indebtedness secured by the property, or a Repossession
Action. Property acquired by a Repossession Action will
not be considered foreclosure property if
(i) the REIT held or acquired the property subject to a
lease or securing indebtedness for sale to customers in the
ordinary course of business or (ii) the lease or loan was
acquired or entered into with intent to take Repossession Action
or in circumstances where the REIT had reason to know a default
would occur. The determination of such intent or reason to know
must be based on all relevant facts and circumstances. In no
case will property be considered foreclosure
property unless the REIT makes a proper election to treat
the property as foreclosure property.
Foreclosure property includes any qualified healthcare property
acquired by a REIT as a result of a termination of a lease of
such property (other than a termination by reason of a default,
or the imminence of a default, on the lease). A qualified
healthcare property means any real property, including
interests in real property, and any personal property incident
to such real property which is a healthcare facility or is
necessary or incidental to the use of a healthcare facility. For
this purpose, a healthcare facility means a hospital, nursing
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facility, assisted living facility, congregate care facility,
qualified continuing care facility, or other licensed facility
which extends medical or nursing or ancillary services to
patients and which, immediately before the termination,
expiration, default, or breach of the lease secured by such
facility, was operated by a provider of such services which was
eligible for participation in the Medicare program under
Title XVIII of the Social Security Act with respect to such
facility.
However, a REIT will not be considered to have foreclosed on a
property where the REIT takes control of the property as a
mortgagee-in-possession
and cannot receive any profit or sustain any loss except as a
creditor of the mortgagor. Property generally ceases to be
foreclosure property at the end of the third taxable year
following the taxable year in which the REIT acquired the
property (or, in the case of a qualified healthcare property
which becomes foreclosure property because it is acquired by a
REIT as a result of the termination of a lease of such property,
at the end of the second taxable year following the taxable year
in which the REIT acquired such property) or longer if an
extension is granted by the Secretary of the Treasury. This
period (as extended, if applicable) terminates, and foreclosure
property ceases to be foreclosure property on the first day:
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on which a lease is entered into for the property that, by its
terms, will give rise to income that does not qualify for
purposes of the 75% gross income test, or any amount is received
or accrued, directly or indirectly, pursuant to a lease entered
into on or after such day that will give rise to income that
does not qualify for purposes of the 75% gross income test;
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on which any construction takes place on the property, other
than completion of a building or any other improvement, where
more than 10% of the construction was completed before default
became imminent; or
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which is more than 90 days after the day on which the REIT
acquired the property and the property is used in a trade or
business which is conducted by the REIT, other than through an
independent contractor from whom the REIT itself does not derive
or receive any income. For this purpose, in the case of a
qualified healthcare property, income derived or received from
an independent contractor will be disregarded to the extent such
income is attributable to (i) a lease of property in effect
on the date the REIT acquired the qualified healthcare property
(without regard to its renewal after such date so long as such
renewal is pursuant to the terms of such lease as in effect on
such date) or (ii) any lease of property entered into after
such date if, on such date, a lease of such property from the
REIT was in effect and, under the terms of the new lease, the
REIT receives a substantially similar or lesser benefit in
comparison to the prior lease.
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Hedging Transactions. From time to time, we
may enter into hedging transactions with respect to one or more
of our assets or liabilities. Our hedging activities may include
entering into interest rate swaps, caps, and floors, options to
purchase such items, and futures and forward contracts. For
taxable years beginning prior to January 1, 2005, any
periodic income or gain from the disposition of any financial
instrument for these or similar transactions to hedge
indebtedness we incur to acquire or carry real estate
assets should be qualifying income for purposes of the 95%
gross income test (but not the 75% gross income test). For
taxable years beginning on and after January 1, 2005,
income and gain from hedging transactions will be
excluded from gross income for purposes of the 95% gross income
test (but not the 75% gross income test). For those taxable
years, a hedging transaction will mean any
transaction entered into in the normal course of our trade or
business primarily to manage the risk of interest rate or price
changes, or currency fluctuations with respect to borrowings
made or to be made, or ordinary obligations incurred or to be
incurred, to acquire or carry real estate assets. We will be
required to clearly identify any such hedging transaction before
the close of the day on which it was acquired, originated, or
entered into. Since the financial markets continually introduce
new and innovative instruments related to risk-sharing or
trading, it is not entirely clear which such instruments will
generate income which will be considered qualifying income for
purposes of the gross income tests. We intend to structure any
hedging or similar transactions so as not to jeopardize our
status as a REIT.
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Failure to Satisfy Gross Income Tests. If we
fail to satisfy one or both of the gross income tests for a 2004
taxable year, we nevertheless may qualify as a REIT for that
year if we qualify for relief under certain provisions of the
federal income tax laws. Those relief provisions generally will
be available if:
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our failure to meet those tests is due to reasonable cause and
not to willful neglect, and
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following our identification of such failure for any taxable
year, a schedule of the sources of our income is filed in
accordance with regulations prescribed by the Secretary of the
Treasury.
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We cannot with certainty predict whether any failure to meet
these tests will qualify for the relief provisions. As discussed
above in Taxation of Our Company, even
if the relief provisions apply, we would incur a 100% tax on the
gross income attributable to the greater of the amounts by which
we fail the 75% and 95% gross income tests, multiplied by a
fraction intended to reflect our profitability.
Asset Tests. To maintain our qualification as
a REIT, we also must satisfy the following asset tests at the
end of each quarter of each taxable year.
First, at least 75% of the value of our total assets must
consist of:
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cash or cash items, including certain receivables;
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government securities;
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real estate assets, which includes interest in real property,
leaseholds, options to acquire real property or leaseholds,
interests in mortgages on real property and shares (or
transferable certificates of beneficial interest) in other REITs;
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stock in other REITs; and
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investments in stock or debt instruments attributable to the
temporary investment (i.e., for a period not exceeding
12 months) of new capital that we raise through equity
offerings or public offerings of debt with at least a five year
term.
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With respect to investments not included in the 75% asset class,
we may not hold securities of any one issuer (other than a
taxable REIT subsidiary) that exceed 5% of the value of our
total assets; nor may we hold securities of any one issuer
(other than a taxable REIT subsidiary) that represent more than
10% of the voting power of all outstanding voting securities of
such issuer, or more than 10% of the value of all outstanding
securities of such issuer.
In addition, we may not hold securities of one or more taxable
REIT subsidiaries that represent in the aggregate more than 20%
of the value of our total assets, irrespective of whether such
securities may also be included in the 75% asset class (e.g., a
mortgage loan issued to a taxable REIT subsidiary). Furthermore,
no more than 25% of our total assets may be represented by
securities that are not included in the 75% asset class, but
this requirement will necessarily be satisfied if the 75% asset
class requirement is satisfied.
For purposes of the 5% and 10% asset tests, the term
securities does not include stock in another REIT,
equity or debt securities of a qualified REIT subsidiary or
taxable REIT subsidiary, mortgage loans that constitute real
estate assets, or equity interests in a partnership. The term
securities, however, generally includes debt
securities issued by a partnership or another REIT, except that
for purposes of the 10% value test, the term
securities does not include:
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Straight debt, defined as a written unconditional
promise to pay on demand or on a specified date a sum certain in
money if (i) the debt is not convertible, directly or
indirectly, into stock, and (ii) the interest rate and
interest payment dates are not contingent on profits, the
borrowers discretion, or similar factors. Straight
debt securities do not include any securities issued by a
partnership or a corporation in which we or any controlled TRS
(i.e., a TRS in which we own directly or indirectly more than
50% of the voting power or value of the stock) holds
non-straight debt securities that have an aggregate
value of more than 1% of the issuers outstanding
securities. However, straight debt securities
include debt subject to the following contingencies:
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a contingency relating to the time of payment of interest or
principal, as long as either (i) there is no change to the
effective yield of the debt obligation, other than a change to
the annual yield that does not exceed the greater of 0.25% or 5%
of the annual yield, or (ii) neither the aggregate issue
price nor the aggregate face amount of the issuers debt
obligations held by us exceeds $1 million and no more than
12 months of unaccrued interest on the debt obligations can
be required to be prepaid; and
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a contingency relating to the time or amount of payment upon a
default or prepayment of a debt obligation, as long as the
contingency is consistent with customary commercial practice;
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Any loan to an individual or an estate;
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Any section 467 rental agreement, other
than an agreement with a related party tenant;
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Any obligation to pay rents from real property;
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Any security issued by a state or any political subdivision
thereof, the District of Columbia, a foreign government of any
political subdivision thereof, or the Commonwealth of Puerto
Rico, but only if the determination of any payment thereunder
does not depend in whole or in part on the profits of any entity
not described in this paragraph or payments on any obligation
issued by an entity not described in this paragraph;
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Any security issued by a REIT;
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Any debt instrument of an entity treated as a partnership for
federal income tax purposes to the extent of our interest as a
partner in the partnership;
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Any debt instrument of an entity treated as a partnership for
federal income tax purposes not described in the preceding
bullet points if at least 75% of the partnerships gross
income, excluding income from prohibited transaction, is
qualifying income for purposes of the 75% gross income test
described above in Requirements for
Qualification Income Tests.
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For purposes of the 10% value test, our proportionate share of
the assets of a partnership is our proportionate interest in any
securities issued by the partnership, without regard to
securities described in the last two bullet points above.
MPT Development Services, Inc., our taxable REIT subsidiary, has
made and will make loans to tenants to acquire operations and
for other purposes. If the IRS were to successfully treat a
particular loan to a tenant as an equity interest in the tenant,
the tenant would be a related party tenant with
respect to our company and the rent that we receive from the
tenant would not be qualifying income for purposes of the REIT
gross income tests. As a result, we could lose our REIT status.
In addition, if the IRS were to successfully treat a particular
loan as an interest held by our operating partnership rather
than by MPT Development Services, Inc. and to treat the loan as
other than straight debt, we could fail the 10% asset test with
respect to such interest and, as a result, could lose our REIT
status.
We will monitor the status of our assets for purposes of the
various asset tests and will manage our portfolio in order to
comply at all times with such tests. If we fail to satisfy the
asset tests at the end of a calendar quarter, we will not lose
our REIT status if:
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we satisfied the asset tests at the end of the preceding
calendar quarter; and
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the discrepancy between the value of our assets and the asset
test requirements arose from changes in the market values of our
assets and was not wholly or partly caused by the acquisition of
one or more non-qualifying assets.
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If we did not satisfy the condition described in the second item
above, we still could avoid disqualification by eliminating any
discrepancy within 30 days after the close of the calendar
quarter in which it arose.
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In the event that, at the end of any calendar quarter, we
violate the 5% or 10% test described above, we will not lose our
REIT status if (1) the failure is de minimis (up to the
lesser of 1% of our assets or $10 million) and (2) we
dispose of assets or otherwise comply with the asset tests
within six months after the last day of the quarter in which we
identified the failure of the asset test. In the event of a more
than de minimis failure of the 5% or 10% tests, or a failure of
the other assets test, at the end of any calendar quarter, as
long as the failure was due to reasonable cause and not to
willful neglect, we will not lose our REIT status if we
(1) dispose of assets or otherwise comply with the asset
tests within six months after the last day of the quarter in
which we identified the failure of the asset test and
(2) pay a tax equal to the greater of $50,000 or 35% of the
net income from the nonqualifying assets during the period in
which we failed to satisfy the asset tests.
Distribution Requirements. Each taxable year,
we must distribute dividends, other than capital gain dividends
and deemed distributions of retained capital gain, to our
stockholders in an aggregate amount not less than:
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90% of our REIT taxable income, computed without
regard to the dividends-paid deduction or our net capital gain
or loss, and
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90% of our after-tax net income, if any, from foreclosure
property,
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the sum of certain items of non-cash income.
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We must pay such distributions in the taxable year to which they
relate, or in the following taxable year if we declare the
distribution before we timely file our federal income tax return
for the year and pay the distribution on or before the first
regular dividend payment date after such declaration.
We will pay federal income tax on taxable income, including net
capital gain, that we do not distribute to stockholders. In
addition, we will incur a 4% nondeductible excise tax on the
excess of a specified required distribution over amounts we
actually distribute if we distribute an amount less than the
required distribution during a calendar year, or by the end of
January following the calendar year in the case of distributions
with declaration and record dates falling in the last three
months of the calendar year. The required distribution must not
be less than the sum of:
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85% of our REIT ordinary income for the year;
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95% of our REIT capital gain income for the year; and
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any undistributed taxable income from prior periods.
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We may elect to retain and pay income tax on the net long-term
capital gain we receive in a taxable year. See
Taxation of Taxable United States
Stockholders. If we so elect, we will be treated as having
distributed any such retained amount for purposes of the 4%
excise tax described above. We intend to make timely
distributions sufficient to satisfy the annual distribution
requirements and to avoid corporate income tax and the 4% excise
tax.
It is possible that, from time to time, we may experience timing
differences between the actual receipt of income and actual
payment of deductible expenses and the inclusion of that income
and deduction of such expenses in arriving at our REIT taxable
income. For example, we may not deduct recognized capital losses
from our REIT taxable income. Further, it is
possible that, from time to time, we may be allocated a share of
net capital gain attributable to the sale of depreciated
property that exceeds our allocable share of cash attributable
to that sale. As a result of the foregoing, we may have less
cash than is necessary to distribute all of our taxable income
and thereby avoid corporate income tax and the excise tax
imposed on certain undistributed income. In such a situation, we
may need to borrow funds or issue additional shares of common or
preferred stock.
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Under certain circumstances, we may be able to correct a failure
to meet the distribution requirement for a year by paying
deficiency dividends to our stockholders in a later
year. We may include such deficiency dividends in our deduction
for dividends paid for the earlier year. Although we may be able
to avoid income tax on amounts distributed as deficiency
dividends, we will be required to pay interest based upon the
amount of any deduction we take for deficiency dividends.
Recordkeeping Requirements. We must maintain
certain records in order to qualify as a REIT. In addition, to
avoid paying a penalty, we must request on an annual basis
information from our stockholders designed to disclose the
actual ownership of our shares of outstanding capital stock. We
intend to comply with these requirements.
Failure to Qualify. If we failed to qualify as
a REIT in any taxable year and no relief provision applied, we
would have the following consequences. We would be subject to
federal income tax and any applicable alternative minimum tax at
rates applicable to regular C corporations on our taxable
income, determined without reduction for amounts distributed to
stockholders. We would not be required to make any distributions
to stockholders, and any distributions to stockholders would be
taxable as ordinary income to the extent of our current and
accumulated earnings and profits. Corporate stockholders could
be eligible for a dividends-received deduction if certain
conditions are satisfied. Unless we qualified for relief under
specific statutory provisions, we would not be permitted to
elect taxation as a REIT for the four taxable years following
the year during which we ceased to qualify as a REIT.
If we fail to satisfy one or more requirements for REIT
qualification, other than the gross income tests and the asset
tests, we could avoid disqualification if the failure is due to
reasonable cause and not to willful neglect and we pay a penalty
of $50,000 for each such failure. In addition, there are relief
provisions for a failure of the gross income tests and asset
tests, as described above in Income
Tests and Asset Tests.
Taxation of Taxable United States
Stockholders. As long as we qualify as a REIT, a
taxable United States stockholder will be required
to take into account as ordinary income distributions made out
of our current or accumulated earnings and profits that we do
not designate as capital gain dividends or retained long-term
capital gain. A United States stockholder will not qualify for
the dividends-received deduction generally available to
corporations. The term United States stockholder
means a holder of shares of common stock that, for United States
federal income tax purposes, is:
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a citizen or resident of the United States;
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a corporation or partnership (including an entity treated as a
corporation or partnership for United States federal income tax
purposes) created or organized under the laws of the United
States or of a political subdivision of the United States;
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an estate whose income is subject to United States federal
income taxation regardless of its source; or
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any trust if (i) a United States court is able to exercise
primary supervision over the administration of such trust and
one or more United States persons have the authority to control
all substantial decisions of the trust or (ii) it has a
valid election in place to be treated as a United States person.
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Distributions paid to a United States stockholder generally will
not qualify for the maximum 15% tax rate in effect for
qualified dividend income for tax years through
2010. Without future congressional action, the maximum tax rate
on qualified dividend income will be taxed at ordinary income
tax rates starting in 2011. Qualified dividend income generally
includes dividends paid by domestic C corporations and certain
qualified foreign corporations to most United States
noncorporate stockholders. Because we are not generally subject
to federal income tax on the portion of our REIT taxable income
distributed to our stockholders, our dividends generally will
not be eligible for the new 15% rate on qualified dividend
income. As a result, our ordinary REIT dividends will continue
to be taxed at the higher tax rate applicable to ordinary
income. Currently, the highest marginal individual income tax
rate on ordinary income is 35%. However, the 15% tax rate for
qualified dividend income will apply to our ordinary REIT
dividends, if any, that are (i) attributable to dividends
received by us from non-REIT corporations, such as our taxable
REIT subsidiary, and (ii) attributable to income upon which
we have paid corporate income tax (e.g., to the extent that we
distribute less than 100%
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of our taxable income). In general, to qualify for the reduced
tax rate on qualified dividend income, a stockholder must hold
our common stock for more than 60 days during the
120-day
period beginning on the date that is 60 days before the
date on which our common stock becomes ex-dividend.
Distributions to a United States stockholder which we designate
as capital gain dividends will generally be treated as long-term
capital gain, without regard to the period for which the United
States stockholder has held its common stock. We generally will
designate our capital gain dividends as 15% or 25% rate
distributions.
We may elect to retain and pay income tax on the net long-term
capital gain that we receive in a taxable year. In that case, a
United States stockholder would be taxed on its proportionate
share of our undistributed long-term capital gain. The United
States stockholder would receive a credit or refund for its
proportionate share of the tax we paid. The United States
stockholder would increase the basis in its shares of common
stock by the amount of its proportionate share of our
undistributed long-term capital gain, minus its share of the tax
we paid.
A United States stockholder will not incur tax on a distribution
in excess of our current and accumulated earnings and profits if
the distribution does not exceed the adjusted basis of the
United States stockholders shares. Instead, the
distribution will reduce the adjusted basis of the shares, and
any amount in excess of both our current and accumulated
earnings and profits and the adjusted basis will be treated as
capital gain, long-term if the shares have been held for more
than one year, provided the shares are a capital asset in the
hands of the United States stockholder. In addition, any
distribution we declare in October, November, or December of any
year that is payable to a United States stockholder of record on
a specified date in any of those months will be treated as paid
by us and received by the United States stockholder on
December 31 of the year, provided we actually pay the
distribution during January of the following calendar year.
Stockholders may not include in their individual income tax
returns any of our net operating losses or capital losses.
Instead, these losses are generally carried over by us for
potential offset against our future income. Taxable
distributions from us and gain from the disposition of shares of
common stock will not be treated as passive activity income;
stockholders generally will not be able to apply any
passive activity losses, such as losses from certain
types of limited partnerships in which the stockholder is a
limited partner, against such income. In addition, taxable
distributions from us and gain from the disposition of common
stock generally will be treated as investment income for
purposes of the investment interest limitations. We will notify
stockholders after the close of our taxable year as to the
portions of the distributions attributable to that year that
constitute ordinary income, return of capital, and capital gain.
Taxation of United States Stockholders on the Disposition of
Shares of Common Stock. In general, a United
States stockholder who is not a dealer in securities must treat
any gain or loss realized upon a taxable disposition of our
shares of common stock as long-term capital gain or loss if the
United States stockholder has held the stocks for more than one
year, and otherwise as short-term capital gain or loss. However,
a United States stockholder must treat any loss upon a sale or
exchange of common stock held for six months or less as a
long-term capital loss to the extent of capital gain dividends
and any other actual or deemed distributions from us which the
United States stockholder treats as long-term capital gain. All
or a portion of any loss that a United States stockholder
realizes upon a taxable disposition of common stock may be
disallowed if the United States stockholder purchases other
shares of our common stock within 30 days before or after
the disposition.
Capital Gains and Losses. The tax-rate
differential between capital gain and ordinary income for
non-corporate taxpayers may be significant. 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 currently 35%. The maximum tax rate on
long-term capital gain applicable to individuals is 15% for
sales and exchanges of assets held for more than one year and
occurring on or after May 6, 2003 through December 31,
2010. The maximum tax rate on long-term capital gain from the
sale or exchange of section 1250 property
(i.e., generally, depreciable real property) is 25% to the
extent the gain would have been treated as ordinary income if
the property were section 1245 property (i.e.,
generally, depreciable personal property). We generally may
designate whether a distribution we designate as
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capital gain dividends (and any retained capital gain that we
are deemed to distribute) is taxable to non-corporate
stockholders at a 15% or 25% rate.
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
of $3,000 annually. A non-corporate taxpayer may carry unused
capital losses forward indefinitely. A corporate taxpayer must
pay tax on its net capital gain at corporate ordinary income
rates. A corporate taxpayer may deduct capital losses only to
the extent of capital gains, with unused losses carried back
three years and forward five years.
Information Reporting Requirements and Backup
Withholding. We will report to our stockholders
and to the IRS the amount of distributions we pay during each
calendar year and the amount of tax we withhold, if any. A
stockholder may be subject to backup withholding at a rate of up
to 28% with respect to distributions unless the holder:
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is a corporation or comes within certain other exempt categories
and, when required, demonstrates this fact; or
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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
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A stockholder who does not provide us with its correct taxpayer
identification number also may be subject to penalties imposed
by the IRS. Any amount paid as backup withholding will be
creditable against the stockholders income tax liability.
In addition, we may be required to withhold a portion of capital
gain distributions to any stockholders who fail to certify their
non-foreign status to us. For a discussion of the backup
withholding rules as applied to non-United States stockholders,
see Taxation of Non-United States Stockholders.
Taxation of Tax-Exempt
Stockholders. Tax-exempt entities, including
qualified employee pension and profit sharing trusts and
individual retirement accounts, referred to as pension trusts,
generally are exempt from federal income taxation. However, they
are subject to taxation on their unrelated business
taxable income. While many investments in real estate
generate unrelated business taxable income, the IRS has issued a
ruling that dividend distributions from a REIT to an exempt
employee pension trust do not constitute unrelated business
taxable income so long as 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
we distribute to tax-exempt stockholders generally should not
constitute unrelated business taxable income. However, if a
tax-exempt stockholder were to finance its acquisition of common
stock with debt, a portion of the income it received from us
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 special
provisions of the federal income tax laws are subject to
different unrelated business taxable income rules, which
generally will require them to characterize distributions they
receive from us as unrelated business taxable income. Finally,
in certain circumstances, a qualified employee pension or
profit-sharing trust that owns more than 10% of our shares of
common stock must treat a percentage of the dividends it
receives from us as unrelated business taxable income. The
percentage is equal to the gross income we derive from an
unrelated trade or business, determined as if we were a pension
trust, divided by our total gross income for the year in which
we pay the dividends. This rule applies to a pension trust
holding more than 10% of our shares only if:
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the percentage of our dividends which the tax-exempt trust must
treat as unrelated business taxable income is at least 5%;
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we qualify as a REIT by reason of the modification of the rule
requiring that no more than 50% of our shares of common stock be
owned by five or fewer individuals, which modification allows
the beneficiaries of the pension trust to be treated as holding
shares in proportion to their actual interests in the pension
trust; and
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either of the following applies:
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one pension trust owns more than 25% of the value of our shares
of common stock; or
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a group of pension trusts individually holding more than 10% of
the value of our shares of common stock collectively owns more
than 50% of the value of our shares of common stock.
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Taxation of Non-United States
Stockholders. The rules governing United States
federal income taxation of nonresident alien individuals,
foreign corporations, foreign partnerships, and other foreign
stockholders are complex. This section is only a summary of such
rules. We urge non-United States stockholders to consult their
own tax advisors to determine the impact of federal, state, and
local income tax laws on ownership of shares of common stock,
including any reporting requirements.
A non-United States stockholder that receives a distribution
which (i) is not attributable to gain from our sale or
exchange of United States real property interests
(defined below) and (ii) we do not designate as a capital
gain dividend (or retained capital gain) will recognize ordinary
income to the extent of our current or accumulated earnings and
profits. A withholding tax equal to 30% of the gross amount of
the distribution ordinarily will apply unless an applicable tax
treaty reduces or eliminates the tax. However, a non-United
States stockholder generally will be subject to federal income
tax at graduated rates on any distribution treated as
effectively connected with the non-United States
stockholders conduct of a United States trade or business,
in the same manner as United States stockholders are taxed on
distributions. A corporate non-United States stockholder may, in
addition, be subject to the 30% branch profits tax. We plan to
withhold United States income tax at the rate of 30% on the
gross amount of any distribution paid to a non-United States
stockholder unless:
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a lower treaty rate applies and the non-United States
stockholder files an IRS
Form W-8BEN
evidencing eligibility for that reduced rate with us; or
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the non-United States stockholder files an IRS
Form W-8ECI
with us claiming that the distribution is effectively connected
income.
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A non-United States stockholder will not incur tax on a
distribution in excess of our current and accumulated earnings
and profits if the excess portion of the distribution does not
exceed the adjusted basis of the stockholders shares of
common stock. Instead, the excess portion of the distribution
will reduce the adjusted basis of the shares. A non-United
States stockholder will be subject to tax on a distribution that
exceeds both our current and accumulated earnings and profits
and the adjusted basis of its shares, if the non-United States
stockholder otherwise would be subject to tax on gain from the
sale or disposition of shares of common stock, as described
below. Because we generally cannot determine at the time we make
a distribution whether or not the distribution will exceed our
current and accumulated earnings and profits, we normally will
withhold tax on the entire amount of any distribution at the
same rate as we would withhold on a dividend. However, a
non-United States stockholder may obtain a refund of amounts we
withhold if we later determine that a distribution in fact
exceeded our current and accumulated earnings and profits.
We must withhold 10% of any distribution that exceeds our
current and accumulated earnings and profits. We will,
therefore, withhold at a rate of 10% on any portion of a
distribution not subject to withholding at a rate of 30%.
For any year in which we qualify as a REIT, a non-United States
stockholder will incur tax on distributions attributable to gain
from our sale or exchange of United States real property
interests under the FIRPTA provisions of the
Code. The term United States real property interests
includes interests in real property and stocks in corporations
at least 50% of whose assets consist of interests in real
property. Under the FIRPTA rules, a non-United States
stockholder is taxed on distributions attributable to gain from
sales of United States real property interests as if the gain
were effectively connected with the conduct of a United States
business of the non-United States stockholder. A non-United
States stockholder thus would be taxed on such a distribution at
the normal capital gain rates applicable to United States
stockholders, subject to applicable alternative minimum tax and
a special alternative minimum tax in the case of a nonresident
alien individual. A non-United States corporate stockholder not
entitled to treaty relief or exemption also may be
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subject to the 30% branch profits tax on such a distribution. We
must withhold 35% of any distribution that we could designate as
a capital gain dividend. A non-United States stockholder may
receive a credit against our tax liability for the amount we
withhold.
For taxable years beginning on and after January 1, 2005,
for
non-U.S. stockholders
of our publicly-traded shares, capital gain distributions that
are attributable to our sale of real property will not be
subject to FIRPTA and therefore will be treated as ordinary
dividends rather than as gain from the sale of a United States
real property interest, as long as the
non-U.S. stockholder
did not own more than 5% of the class of our stock on which the
distributions are made for the one year period ending on the
date of distribution. As a result,
non-U.S. stockholders
generally would be subject to withholding tax on such capital
gain distributions in the same manner as they are subject to
withholding tax on ordinary dividends.
A non-United States stockholder generally will not incur tax
under FIRPTA with respect to gain on a sale of shares of common
stock as long as, at all times, non-United States persons hold,
directly or indirectly, less than 50% in value of the
outstanding common stock. We cannot assure you that this test
will be met. In addition, a non-United States stockholder that
owned, actually or constructively, 5% or less of the outstanding
common stock at all times during a specified testing period will
not incur tax under FIRPTA on gain from a sale of common stock
if the stock is regularly traded on an established
securities market. Any gain subject to tax under FIRPTA will be
treated in the same manner as it would be in the hands of United
States stockholders subject to alternative minimum tax, but
under a special alternative minimum tax in the case of
nonresident alien individuals.
A non-United States stockholder generally will incur tax on gain
from the sale of common stock not subject to FIRPTA if:
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the gain is effectively connected with the conduct of the
non-United States stockholders United States trade or
business, in which case the non-United States stockholder will
be subject to the same treatment as United States stockholders
with respect to the gain; or
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the non-United States stockholder is a nonresident alien
individual who was present in the United States for
183 days or more during the taxable year and has a
tax home in the United States, in which case the
non-United States stockholder will incur a 30% tax on capital
gains.
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Other Tax
Consequences
Tax Aspects of Our Investments in the Operating
Partnership. The following discussion summarizes
certain federal income tax considerations applicable to our
direct or indirect investment in our operating partnership and
any subsidiary partnerships or limited liability companies we
form or acquire, each individually referred to as a Partnership
and, collectively, as Partnerships. The following discussion
does not cover state or local tax laws or any federal tax laws
other than income tax laws.
Classification as Partnerships. We are
entitled to include in our income our distributive share of each
Partnerships income and to deduct our distributive share
of each Partnerships losses only if such Partnership is
classified for federal income tax purposes as a partnership (or
an entity that is disregarded for federal income tax purposes if
the entity has only one owner or member), rather than as a
corporation or an association taxable as a corporation. An
organization with at least two owners or members will be
classified as a partnership, rather than as a corporation, for
federal income tax purposes if it:
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is treated as a partnership under the Treasury regulations
relating to entity classification (the
check-the-box
regulations); and
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is not a publicly traded partnership.
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Under the
check-the-box
regulations, an unincorporated entity with at least two owners
or members may elect to be classified either as an association
taxable as a corporation or as a partnership. If such an entity
does not make an election, it generally will be treated as a
partnership for federal income tax purposes. We intend that each
Partnership will be classified as a partnership for federal
income tax purposes (or else a disregarded entity where there
are not at least two separate beneficial owners).
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A publicly traded partnership is a partnership whose interests
are traded on an established securities market or are readily
tradable on a secondary market (or a substantial equivalent). A
publicly traded partnership is generally treated as a
corporation for federal income tax purposes, but will not be so
treated for any taxable year for which at least 90% of the
partnerships gross income consists of specified passive
income, including real property rents, gains from the sale or
other disposition of real property, interest, and dividends (the
90% passive income exception).
Treasury regulations, referred to as PTP regulations, provide
limited safe harbors from treatment as a publicly traded
partnership. Pursuant to one of those safe harbors, the private
placement exclusion, interests in a partnership will not be
treated as readily tradable on a secondary market or the
substantial equivalent thereof if (i) all interests in the
partnership were issued in a transaction or transactions that
were not required to be registered under the Securities Act, and
(ii) the partnership does not have more than 100 partners
at any time during the partnerships taxable year. For the
determination of the number of partners in a partnership, a
person owning an interest in a partnership, grantor trust, or
S corporation that owns an interest in the partnership is
treated as a partner in the partnership only if
(i) substantially all of the value of the owners
interest in the entity is attributable to the entitys
direct or indirect interest in the partnership and (ii) a
principal purpose of the use of the entity is to permit the
partnership to satisfy the 100-partner limitation. Each
Partnership should qualify for the private placement exclusion.
We have not requested, and do not intend to request, a ruling
from the Internal Revenue Service that the Partnerships will be
classified as partnerships for federal income tax purposes. If
for any reason a Partnership were taxable as a corporation,
rather than as a partnership, for federal income tax purposes,
we likely would not be able to qualify as a REIT. See
Requirements for Qualification
Income Tests and Requirements for
Qualification Asset Tests. In addition, any
change in a Partnerships status for tax purposes might be
treated as a taxable event, in which case we might incur tax
liability without any related cash distribution. See
Requirements for Qualification
Distribution Requirements. Further, items of income and
deduction of such Partnership would not pass through to its
partners, and its partners would be treated as stockholders for
tax purposes. Consequently, such Partnership would be required
to pay income tax at corporate rates on its net income, and
distributions to its partners would constitute dividends that
would not be deductible in computing such Partnerships
taxable income.
Income
Taxation of the Partnerships and Their Partners
Partners, Not the Partnerships, Subject to
Tax. A partnership is not a taxable entity for
federal income tax purposes. We will therefore take into account
our allocable share of each Partnerships income, gains,
losses, deductions, and credits for each taxable year of the
Partnership ending with or within our taxable year, even if we
receive no distribution from the Partnership for that year or a
distribution less than our share of taxable income. Similarly,
even if we receive a distribution, it may not be taxable if the
distribution does not exceed our adjusted tax basis in our
interest in the Partnership.
Partnership Allocations. Although a
partnership agreement generally will determine the allocation of
income and losses among partners, allocations will be
disregarded for tax purposes if they do not comply with the
provisions of the federal income tax laws governing partnership
allocations. If an allocation is not recognized for federal
income tax purposes, the item subject to the allocation will be
reallocated in accordance with the partners interests in
the partnership, which will be determined by taking into account
all of the facts and circumstances relating to the economic
arrangement of the partners with respect to such item. Each
Partnerships allocations of taxable income, gain, and loss
are intended to comply with the requirements of the federal
income tax laws governing partnership allocations.
Tax Allocations With Respect to Contributed
Properties. Income, gain, loss, and deduction
attributable to appreciated or depreciated property that is
contributed to a partnership in exchange for an interest in the
partnership must be allocated in a manner such that the
contributing partner is charged with, or benefits from,
respectively, the unrealized gain or unrealized loss associated
with the property at the time of the contribution. Similar rules
apply with respect to property revalued on the books of a
partnership. The amount of such unrealized gain or unrealized
loss, referred to as built-in gain or built-in loss, is
generally equal to the
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difference between the fair market value of the contributed or
revalued property at the time of contribution or revaluation and
the adjusted tax basis of such property at that time, referred
to as a book-tax difference. Such allocations are solely for
federal income tax purposes and do not affect the book capital
accounts or other economic or legal arrangements among the
partners. The United States Treasury Department has issued
regulations requiring partnerships to use a reasonable
method for allocating items with respect to which there is
a book-tax difference and outlining several reasonable
allocation methods. Our operating partnership generally intends
to use the traditional method for allocating items with respect
to which there is a book-tax difference.
Basis in Partnership Interest. Our
adjusted tax basis in any partnership interest we own generally
will be:
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the amount of cash and the basis of any other property we
contribute to the partnership;
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increased by our allocable share of the partnerships
income (including tax-exempt income) and our allocable share of
indebtedness of the partnership; and
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reduced, but not below zero, by our allocable share of the
partnerships loss, the amount of cash and the basis of
property distributed to us, and constructive distributions
resulting from a reduction in our share of indebtedness of the
partnership.
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Loss allocated to us in excess of our basis in a partnership
interest will not be taken into account until we again have
basis sufficient to absorb the loss. A reduction of our share of
partnership indebtedness will be treated as a constructive cash
distribution to us, and will reduce our adjusted tax basis.
Distributions, including constructive distributions, in excess
of the basis of our partnership interest will constitute taxable
income to us. Such distributions and constructive distributions
normally will be characterized as long-term capital gain.
Depreciation Deductions Available to
Partnerships. The initial tax basis of property
is the amount of cash and the basis of property given as
consideration for the property. A partnership in which we are a
partner generally will depreciate property for federal income
tax purposes under the modified accelerated cost recovery system
of depreciation, referred to as MACRS. Under MACRS, the
partnership generally will depreciate furnishings and equipment
over a seven year recovery period using a 200% declining balance
method and a half-year convention. If, however, the partnership
places more than 40% of its furnishings and equipment in service
during the last three months of a taxable year, a mid-quarter
depreciation convention must be used for the furnishings and
equipment placed in service during that year. Under MACRS, the
partnership generally will depreciate buildings and improvements
over a 39 year recovery period using a straight line method
and a mid-month convention. The operating partnerships
initial basis in properties acquired in exchange for units of
the operating partnership should be the same as the
transferors basis in such properties on the date of
acquisition by the partnership. Although the law is not entirely
clear, the partnership generally will depreciate such property
for federal income tax purposes over the same remaining useful
lives and under the same methods used by the transferors. The
partnerships tax depreciation deductions will be allocated
among the partners in accordance with their respective interests
in the partnership, except to the extent that the partnership is
required under the federal income tax laws governing partnership
allocations to use a method for allocating tax depreciation
deductions attributable to contributed or revalued properties
that results in our receiving a disproportionate share of such
deductions.
Sale of a Partnerships
Property. Generally, any gain realized by a
Partnership on the sale of property held for more than one year
will be long-term capital gain, except for any portion of the
gain treated as depreciation or cost recovery recapture. Any
gain or loss recognized by a Partnership on the disposition of
contributed or revalued properties will be allocated first to
the partners who contributed the properties or who were partners
at the time of revaluation, to the extent of their built-in gain
or loss on those properties for federal income tax purposes. The
partners built-in gain or loss on contributed or revalued
properties is the difference between the partners
proportionate share of the book value of those properties and
the partners tax basis allocable to those properties at
the time of the contribution or revaluation. Any remaining gain
or loss recognized by the Partnership on the disposition of
contributed or revalued properties, and any gain or loss
recognized by the Partnership on the disposition of other
properties, will be allocated among the partners in accordance
with their percentage interests in the Partnership.
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Our share of any Partnership gain from the sale of inventory or
other property held primarily for sale to customers in the
ordinary course of the Partnerships trade or business will
be treated as income from a prohibited transaction subject to a
100% tax. Income from a prohibited transaction may have an
adverse effect on our ability to satisfy the gross income tests
for REIT status. See Requirements for
Qualification Income Tests. We do not
presently intend to acquire or hold, or to allow any Partnership
to acquire or hold, any property that is likely to be treated as
inventory or property held primarily for sale to customers in
the ordinary course of our, or the Partnerships, trade or
business.
Taxable REIT Subsidiaries. As described above,
we have formed and have made a timely election to treat MPT
Development Services, Inc. as a taxable REIT subsidiary and may
form or acquire additional taxable REIT subsidiaries in the
future. A taxable REIT subsidiary may provide services to our
tenants and engage in activities unrelated to our tenants, such
as third-party management, development, and other independent
business activities.
We and any corporate subsidiary in which we own stock must make
an election for the subsidiary to be treated as a taxable REIT
subsidiary. If a taxable REIT subsidiary directly or indirectly
owns shares of a corporation with more than 35% of the value or
voting power of all outstanding shares of the corporation, the
corporation will automatically also be treated as a taxable REIT
subsidiary. Overall, no more than 20% of the value of our assets
may consist of securities of one or more taxable REIT
subsidiaries, irrespective of whether such securities may also
qualify under the 75% assets test, and no more than 25% of the
value of our assets may consist of the securities that are not
qualifying assets under the 75% test, including, among other
things, certain securities of a taxable REIT subsidiary, such as
stock or non-mortgage debt.
Rent we receive from our taxable REIT subsidiaries will qualify
as rents from real property as long as at least 90%
of the leased space in the property is leased to persons other
than taxable REIT subsidiaries and related party tenants, and
the amount paid by the taxable REIT subsidiary to rent space at
the property is substantially comparable to rents paid by other
tenants of the property for comparable space. The taxable REIT
subsidiary rules limit the deductibility of interest paid or
accrued by a taxable REIT subsidiary to us to assure that the
taxable REIT subsidiary is subject to an appropriate level of
corporate taxation. Further, the rules impose a 100% excise tax
on certain types of transactions between a taxable REIT
subsidiary and us or our tenants that are not conducted on an
arms-length basis.
A taxable REIT subsidiary may not directly or indirectly operate
or manage a healthcare facility. For purposes of this definition
a healthcare facility means a hospital, nursing
facility, assisted living facility, congregate care facility,
qualified continuing care facility, or other licensed facility
which extends medical or nursing or ancillary services to
patients and which is operated by a service provider which is
eligible for participation in the Medicare program under
Title XVIII of the Social Security Act with respect to such
facility.
State and Local Taxes. We and our stockholders
may be subject to taxation by various states and localities,
including those in which we or a stockholder transact business,
own property or reside. The state and local tax treatment may
differ from the federal income tax treatment described above.
Consequently, stockholders should consult their own tax advisors
regarding the effect of state and local tax laws upon an
investment in our common stock.
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SELLING
STOCKHOLDERS
The following table sets forth the beneficial ownership of our
common stock by the selling stockholders as of June 30,
2005 and the number of shares that may be offered for resale by
this prospectus. The SEC has defined beneficial
ownership of a security to mean the possession, directly or
indirectly, of voting power
and/or
investment power. A stockholder is also deemed to be, as of any
date, the beneficial owner of all securities that the
stockholder has the right to acquire within 60 days after
that date through (a) the exercise of any option, warrant
or right, (b) the conversion of a security, (c) the
power to revoke a trust, discretionary account or similar
arrangement, or (d) the automatic termination of a trust,
discretionary account or similar arrangement. Except as
otherwise noted, the beneficial owners named in the table have
sole voting and investment power with respect to all shares of
our common stock shown as beneficially owned by them, subject to
community property laws, where applicable.
The selling stockholders may offer all, a portion or none of the
shares owned by them and covered by this prospectus. In
preparing the table below, we have assumed that the selling
stockholders will sell all of the common stock covered by this
prospectus. Shares of common stock may also be sold by donees,
pledgees or other transferees or successors in interest of the
selling stockholders. Except as described below, to our
knowledge, none of the selling stockholders has had a material
relationship with us or any of our affiliates within the past
three years.
Any selling stockholder that is identified as a broker-dealer
will be deemed to be an underwriter within the
meaning of Section 2(11) of the Securities Act, unless such
selling stockholder obtained the stock as compensation for
services. In addition, any affiliate of a broker-dealer will be
deemed to be an underwriter within the meaning of
Section 2(11) of the Securities Act, unless such selling
stockholder purchased in the ordinary course of business and, at
the time of its purchase of the stock to be resold, did not have
any agreements or understandings, directly or indirectly, with
any person to distribute the stock. As a result, any profits on
the sale of the common stock by selling stockholders who are
deemed to be underwriters and any discounts,
commissions or concessions received by any such broker-dealers
who are deemed to be underwriters will be deemed to
be underwriting discounts and commissions under the Securities
Act. Selling stockholders who are deemed to be
underwriters will be subject to prospectus delivery
requirements of the Securities Act and to certain statutory
liabilities, including, but not limited to, those under
Sections 11, 12 and 17 of the Securities Act and
Rule 10b-5
under the Exchange Act.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Maximum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
Percentage of
|
|
|
Beneficial Ownership
|
|
|
|
Number of
|
|
|
Shares of
|
|
|
All Shares of
|
|
|
After Resale of Shares
|
|
|
|
Shares of
|
|
|
Common Stock
|
|
|
Common Stock
|
|
|
of Common
Stock(1)
|
|
|
|
Common Stock
|
|
|
Offered by This
|
|
|
Beneficially
|
|
|
Number of
|
|
|
|
|
|
|
Beneficially
|
|
|
Prospectus for
|
|
|
Owned Before
|
|
|
Shares of
|
|
|
|
|
Selling Stockholder
|
|
Owned
|
|
|
Resale
|
|
|
Resale(2)
|
|
|
Common Stock
|
|
|
Percentage
|
|
|
Unaffiliated(3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3M(4)
|
|
|
265,225
|
|
|
|
265,225
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Aetna Services, Inc. Small Cap
Equity(5)
|
|
|
25,800
|
|
|
|
25,800
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
AG Arb Partners,
L.P.(6)(7)
|
|
|
88,000
|
|
|
|
88,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
AG CNG Fund,
L.P.(6)(7)
|
|
|
45,000
|
|
|
|
45,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
AG Funds,
L.P.(6)(7)
|
|
|
50,000
|
|
|
|
50,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
AG MM,
L.P.(6)(7)
|
|
|
28,000
|
|
|
|
28,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
AG Princess,
L.P.(6)(7)
|
|
|
22,000
|
|
|
|
22,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
AG Super Fund,
L.P.(6)(7)
|
|
|
275,000
|
|
|
|
275,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Allan Rothstein
|
|
|
5,000
|
|
|
|
5,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Atlas
Capital(8)
|
|
|
150,000
|
|
|
|
150,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Anita U.
Schorsch(6)
|
|
|
1,000
|
|
|
|
1,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Alpha US Sub Fund I,
LLC(10)
|
|
|
8,254
|
|
|
|
8,254
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Anthony Bruno and Kathleen Bruno
JTWROS
|
|
|
1,000
|
|
|
|
1,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
34
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Maximum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
Percentage of
|
|
|
Beneficial Ownership
|
|
|
|
Number of
|
|
|
Shares of
|
|
|
All Shares of
|
|
|
After Resale of Shares
|
|
|
|
Shares of
|
|
|
Common Stock
|
|
|
Common Stock
|
|
|
of Common
Stock(1)
|
|
|
|
Common Stock
|
|
|
Offered by This
|
|
|
Beneficially
|
|
|
Number of
|
|
|
|
|
|
|
Beneficially
|
|
|
Prospectus for
|
|
|
Owned Before
|
|
|
Shares of
|
|
|
|
|
Selling Stockholder
|
|
Owned
|
|
|
Resale
|
|
|
Resale(2)
|
|
|
Common Stock
|
|
|
Percentage
|
|
|
Anthony V. Bruno and Christina S.
Bruno JTWROS
|
|
|
1,000
|
|
|
|
1,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Arkansas Teachers Retirement
System(5)
|
|
|
45,000
|
|
|
|
45,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Augustus V.L. Brokaw III TTEE
Augustus V.L. Brokaw III Revocable Trust Dated
10/14/1993(13)
|
|
|
1,300
|
|
|
|
1,300
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Australian Retirement
Fund Global Small Companies
Portfolio(9)
|
|
|
42,300
|
|
|
|
42,300
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Axia Offshore Partners,
Ltd.(10)
|
|
|
31,874
|
|
|
|
31,874
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Axia Partners,
L.P.(10)
|
|
|
16,460
|
|
|
|
16,460
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Axia Partners Qualified,
L.P.(10)
|
|
|
66,412
|
|
|
|
66,412
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Bel Air Opportunistic Fund,
L.P.(11)
|
|
|
40,000
|
|
|
|
40,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Bert Fingerhut Roth
IRA(12)
|
|
|
5,000
|
|
|
|
5,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Bill
Ham(13)
|
|
|
20,000
|
|
|
|
20,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Bill Ham IRA
Rollover(13)
|
|
|
8,000
|
|
|
|
8,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Black
Foundation(13)
|
|
|
1,800
|
|
|
|
1,800
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Bonnie Paley Minzer Revocable
Trust(14)
|
|
|
1,000
|
|
|
|
1,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Brian C.
Porter(15)
|
|
|
334
|
|
|
|
334
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Brunswick Master
Trust(4)
|
|
|
33,150
|
|
|
|
33,150
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Burke F.
Hayes(15)
|
|
|
334
|
|
|
|
334
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Caroline Hicks Roth
IRA(16)
|
|
|
2,500
|
|
|
|
2,500
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Carrhae &
Co.(19)
|
|
|
36,250
|
|
|
|
36,250
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Case Western Reserve
University(9)
|
|
|
16,200
|
|
|
|
16,200
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Central States Southeast &
Southwest Areas Pension
Fund(19)
|
|
|
57,250
|
|
|
|
57,250
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Charles Affron and Mirella Affron
JTWROS
|
|
|
1,000
|
|
|
|
1,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Charles F. Wedel
|
|
|
2,000
|
|
|
|
2,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Clearpond &
Co.(18)
|
|
|
525,500
|
|
|
|
525,500
|
|
|
|
1.3
|
%
|
|
|
0
|
|
|
|
*
|
|
Condor Partners
L.P.(20)
|
|
|
61,300
|
|
|
|
61,300
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Connection Machine
Services, Inc.(11)
|
|
|
4,000
|
|
|
|
4,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Continental Casualty
Company(6)(21)
|
|
|
100,000
|
|
|
|
100,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Cotran Investments,
Ltd.(22)
|
|
|
50,000
|
|
|
|
50,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Cynthia Rothstein
|
|
|
5,000
|
|
|
|
5,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Daniel W. Huthwaite &
Constance R. Huthwaite
|
|
|
2,250
|
|
|
|
2,250
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
David M. Golush
|
|
|
4,600
|
|
|
|
4,600
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
David A.
Todd(13)
|
|
|
5,200
|
|
|
|
5,200
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Delaware Dividend Income Fund, a
Series of Delaware Group Equity
Funds(6)(17)
|
|
|
19,700
|
|
|
|
19,700
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Delaware Investments Dividend and
Income Fund,
Inc.(6)(17)
|
|
|
35,000
|
|
|
|
35,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Delaware Investments Global
Dividend and Income Fund,
Inc.(6)(17)
|
|
|
9,400
|
|
|
|
9,400
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Dennis M. Langley
|
|
|
50,000
|
|
|
|
50,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
35
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Maximum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
Percentage of
|
|
|
Beneficial Ownership
|
|
|
|
Number of
|
|
|
Shares of
|
|
|
All Shares of
|
|
|
After Resale of Shares
|
|
|
|
Shares of
|
|
|
Common Stock
|
|
|
Common Stock
|
|
|
of Common
Stock(1)
|
|
|
|
Common Stock
|
|
|
Offered by This
|
|
|
Beneficially
|
|
|
Number of
|
|
|
|
|
|
|
Beneficially
|
|
|
Prospectus for
|
|
|
Owned Before
|
|
|
Shares of
|
|
|
|
|
Selling Stockholder
|
|
Owned
|
|
|
Resale
|
|
|
Resale(2)
|
|
|
Common Stock
|
|
|
Percentage
|
|
|
DNB NOR
Globalspar (I)(23)
|
|
|
172,105
|
|
|
|
172,105
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
DNB NOR Globalspar
(II)(23)
|
|
|
481,895
|
|
|
|
481,895
|
|
|
|
1.2
|
%
|
|
|
0
|
|
|
|
*
|
|
Donald P. and Jean M. McDougall
|
|
|
2,250
|
|
|
|
2,250
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Dorothy S. Rasplicka
|
|
|
2,450
|
|
|
|
2,450
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Douglas Woloshin
|
|
|
2,000
|
|
|
|
2,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Emergency Services Superannuation
Board Global Smaller
Companies
Portfolio(9)
|
|
|
29,300
|
|
|
|
29,300
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Emerson
Electric(4)
|
|
|
45,500
|
|
|
|
45,500
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Emily L.
Todd(13)
|
|
|
6,500
|
|
|
|
6,500
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Endeavor Capital Offshore Fund,
Ltd.(18)
|
|
|
180,700
|
|
|
|
180,700
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Endeavor Capital Partners,
L.P.(18)
|
|
|
60,700
|
|
|
|
60,700
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Endeavor Capital Partners II,
L.P.(18)
|
|
|
12,300
|
|
|
|
12,300
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Eric J.
Gaaserud(15)
|
|
|
334
|
|
|
|
334
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Evan L. Julber
|
|
|
14,900
|
|
|
|
14,900
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Evelyn Berry Spousal Rollover
IRA(19)
|
|
|
1,525
|
|
|
|
1,525
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
First Financial Fund,
Inc.(9)
|
|
|
419,500
|
|
|
|
419,500
|
|
|
|
1.0
|
%
|
|
|
0
|
|
|
|
*
|
|
Francesca V. Ozdoba
Pension & Profit Sharing
Plan(24)
|
|
|
1,000
|
|
|
|
1,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Francis and Cynthia
OConnor(15)
|
|
|
7,214
|
|
|
|
7,214
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Fred G. Neuwirth
|
|
|
2,500
|
|
|
|
2,500
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Friedman, Billings,
Ramsey &
Co., Inc.(25)
|
|
|
52,388
|
|
|
|
52,388
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
FBR Ashton Income Fund,
LLC(26)
|
|
|
50,000
|
|
|
|
50,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
FBR Ashton Limited
Partnership(26)
|
|
|
500,000
|
|
|
|
500,000
|
|
|
|
1.2
|
%
|
|
|
0
|
|
|
|
*
|
|
FBR Ashton Special Situations
Fund, L.P.(26)
|
|
|
445,000
|
|
|
|
445,000
|
|
|
|
1.1
|
%
|
|
|
0
|
|
|
|
*
|
|
Friedman Billings Ramsey Group,
Inc.(26)
|
|
|
1,795,571
|
|
|
|
1,795,571
|
|
|
|
4.5
|
%
|
|
|
0
|
|
|
|
*
|
|
Frorer Partners,
L.P.(27)
|
|
|
25,000
|
|
|
|
25,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
GLG North American Opportunity
Fund(28)
|
|
|
300,000
|
|
|
|
300,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
GLG Partners (Financials
Fund)(29)
|
|
|
290,000
|
|
|
|
220,000
|
|
|
|
*
|
|
|
|
70,000
|
|
|
|
*
|
|
GMI Investment
Trust(4)
|
|
|
47,075
|
|
|
|
47,075
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Goldman Sachs Asset Management
Foundation(19)
|
|
|
3,175
|
|
|
|
3,175
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Goldman Sachs Asset
Management, L.P.(9)
|
|
|
112,000
|
|
|
|
112,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Goldman Sachs JB Were Investment
Management Pty.,
Ltd.(9)
|
|
|
3,000
|
|
|
|
3,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Greenlight Capital,
L.P.(30)
|
|
|
165,600
|
|
|
|
165,600
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Greenlight Capital
Offshore, Ltd.(30)
|
|
|
598,000
|
|
|
|
598,000
|
|
|
|
1.5
|
%
|
|
|
0
|
|
|
|
*
|
|
Greenlight Capital Qualified,
L.P.(30)
|
|
|
469,600
|
|
|
|
469,600
|
|
|
|
1.2
|
%
|
|
|
0
|
|
|
|
*
|
|
Greenlight Reinsurance,
Ltd.(30)
|
|
|
185,000
|
|
|
|
185,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Guggenheim Portfolio
Company III,
LLC(6)(18)
|
|
|
33,100
|
|
|
|
33,100
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
36
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Maximum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
Percentage of
|
|
|
Beneficial Ownership
|
|
|
|
Number of
|
|
|
Shares of
|
|
|
All Shares of
|
|
|
After Resale of Shares
|
|
|
|
Shares of
|
|
|
Common Stock
|
|
|
Common Stock
|
|
|
of Common
Stock(1)
|
|
|
|
Common Stock
|
|
|
Offered by This
|
|
|
Beneficially
|
|
|
Number of
|
|
|
|
|
|
|
Beneficially
|
|
|
Prospectus for
|
|
|
Owned Before
|
|
|
Shares of
|
|
|
|
|
Selling Stockholder
|
|
Owned
|
|
|
Resale
|
|
|
Resale(2)
|
|
|
Common Stock
|
|
|
Percentage
|
|
|
Henry Ripp
IRA(31)
|
|
|
2,000
|
|
|
|
2,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Hillel & Elaine Weinberger
|
|
|
10,000
|
|
|
|
10,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Indiana State Teachers Retirement
Fund(5)
|
|
|
41,900
|
|
|
|
41,900
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Iprofile US Equity
Pool(5)
|
|
|
1,500
|
|
|
|
1,500
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Institutional Benchmarks Master
Fund,
Ltd.(32)
|
|
|
3,562
|
|
|
|
3,562
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Invesco Perpetual Asset Management
(33)
|
|
|
220,000
|
|
|
|
220,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Investors of America,
L.P.(34)
|
|
|
301,400
|
|
|
|
301,400
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
J&S Black
F.L.P.(13)
|
|
|
5,900
|
|
|
|
5,900
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
J. Rock
Tonkel, Jr.(15)
|
|
|
1,666
|
|
|
|
1,666
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
JB Were Global Small Companies
Fund(9)
|
|
|
203,500
|
|
|
|
203,500
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Jack Sear Revocable
Trust(35)
|
|
|
1,000
|
|
|
|
1,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Jack Barish
|
|
|
5,000
|
|
|
|
5,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
James V. Kimsey
|
|
|
10,000
|
|
|
|
10,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
James Locke and Susan Locke Tenants
by their Entirety
|
|
|
8,000
|
|
|
|
8,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
James C.
Neuhauser(15)
|
|
|
1,666
|
|
|
|
1,666
|
|
|
|
|
|
|
|
0
|
|
|
|
*
|
|
Jay Rasplicka
|
|
|
5,450
|
|
|
|
5,450
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Jean C. Brokaw Revocable
Trust Dated
10/14/1993(13)
|
|
|
1,300
|
|
|
|
1,300
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Jed Hart
|
|
|
2,500
|
|
|
|
2,500
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Jeffrey & Stacey
Feinberg(36)
|
|
|
354,000
|
|
|
|
354,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Jeffrey C. Kahn
|
|
|
500
|
|
|
|
500
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Jeffry L.
Lacy(13)
|
|
|
1,800
|
|
|
|
1,800
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Jody Irwin, Separate
Property(13)
|
|
|
2,600
|
|
|
|
2,600
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
JLF Partners I,
L.P.(36)
|
|
|
697,901
|
|
|
|
697,901
|
|
|
|
1.7
|
%
|
|
|
0
|
|
|
|
*
|
|
JLF Partners II,
L.P.(36)
|
|
|
45,279
|
|
|
|
45,279
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
JLF Offshore Deferred
Account(36)
|
|
|
300,000
|
|
|
|
300,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
JLF Offshore Fund,
Ltd.(36)
|
|
|
1,002,120
|
|
|
|
1,002,120
|
|
|
|
2.5
|
%
|
|
|
0
|
|
|
|
|
|
John A. Hartford
Foundation Inc.(19)
|
|
|
11,250
|
|
|
|
11,250
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
John A. Johnston & Robin
L. Johnston
|
|
|
1,000
|
|
|
|
1,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
AG Sav & Inv Plan FBO Jed
A. Hart(7)
|
|
|
2,500
|
|
|
|
2,500
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
John Black, IRA
Rollover(13)
|
|
|
3,800
|
|
|
|
3,800
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
John William Edgemond
|
|
|
3,000
|
|
|
|
3,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
John F. Syburg
|
|
|
1,000
|
|
|
|
1,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Judith S. Roth
|
|
|
5,000
|
|
|
|
5,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
John M. Weaver
|
|
|
3,000
|
|
|
|
3,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Julian E. Gillespie and Heather A.
Gillespie(15)
|
|
|
4,000
|
|
|
|
4,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Kayne Anderson REIT Fund,
L.P.(6)(37)
|
|
|
125,000
|
|
|
|
125,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Kensington Strategic Realty
Fund(20)
|
|
|
1,336,600
|
|
|
|
1,096,100
|
|
|
|
3.34
|
%
|
|
|
240,500
|
|
|
|
*
|
|
Kensington Real Estate Securities
Fund(20)
|
|
|
142,900
|
|
|
|
142,900
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
37
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Maximum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
Percentage of
|
|
|
Beneficial Ownership
|
|
|
|
Number of
|
|
|
Shares of
|
|
|
All Shares of
|
|
|
After Resale of Shares
|
|
|
|
Shares of
|
|
|
Common Stock
|
|
|
Common Stock
|
|
|
of Common
Stock(1)
|
|
|
|
Common Stock
|
|
|
Offered by This
|
|
|
Beneficially
|
|
|
Number of
|
|
|
|
|
|
|
Beneficially
|
|
|
Prospectus for
|
|
|
Owned Before
|
|
|
Shares of
|
|
|
|
|
Selling Stockholder
|
|
Owned
|
|
|
Resale
|
|
|
Resale(2)
|
|
|
Common Stock
|
|
|
Percentage
|
|
|
Kensington Realty Income Fund,
L.P.(20)
|
|
|
86,100
|
|
|
|
76,600
|
|
|
|
*
|
|
|
|
9,500
|
|
|
|
*
|
|
Kristin Junkin
IRA(38)
|
|
|
1,500
|
|
|
|
1,500
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Lawrence Chimerine
|
|
|
400
|
|
|
|
400
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
LG&E Energy
Corp.(5)
|
|
|
12,300
|
|
|
|
12,300
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Liebro Partners
LLC(39)
|
|
|
3,000
|
|
|
|
3,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Louis Scowcroft Peery Charitable
Foundation(13)
|
|
|
1,800
|
|
|
|
1,800
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Loyola University
Endowment(4)
|
|
|
11,870
|
|
|
|
11,870
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Loyola University
Retirement(4)
|
|
|
11,750
|
|
|
|
11,750
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Lucie Wray
Todd(13)
|
|
|
10,000
|
|
|
|
10,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Lupa Family Partners,
L.P.(40)
|
|
|
38,910
|
|
|
|
38,910
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Lyxor/Third Point
Fund Limited(41)
|
|
|
109,128
|
|
|
|
109,128
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
M&M Arbitrage
LLC(32)
|
|
|
19,973
|
|
|
|
19,973
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
M&M Arbitrage Fund II,
LLC(32)
|
|
|
21,520
|
|
|
|
21,520
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
M&M Arbitrage Offshore
Ltd.(32)
|
|
|
53,122
|
|
|
|
53,122
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Magnolia Charitable Trust, Emily L.
Todd and David A. Todd,
TTEEs(13)
|
|
|
4,300
|
|
|
|
4,300
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Marcy A. Newberger Revocable
Trust(42)
|
|
|
2,250
|
|
|
|
2,250
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Mary L.G. Theroux, Trustee Mary
L.G. Theroux Charitable Remainder Unitrust
5-14-96(13)
|
|
|
6,200
|
|
|
|
6,200
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Mary L.G. Theroux, TTEE of the Mary
L.G. Theroux Revocable Living Trust U/A
9/30/68(13)
|
|
|
4,800
|
|
|
|
4,800
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Maritime Life Discovery
Fund(9)
|
|
|
40,600
|
|
|
|
40,600
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Mark Bruno and Martha Bruno JTWROS
|
|
|
1,000
|
|
|
|
1,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Mark J. Roach
|
|
|
1,000
|
|
|
|
1,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Martin Hirschhorn
|
|
|
10,000
|
|
|
|
10,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Massachusetts Pension Reserves
Investment Management Board REIT
Portfolio(9)
|
|
|
103,900
|
|
|
|
103,900
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Mavian,
LLC(19)
|
|
|
575
|
|
|
|
575
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Mercury Real Estate Advisors
LLC(43)
|
|
|
34,000
|
|
|
|
34,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Miami University
Endowment(19)
|
|
|
1,675
|
|
|
|
1,675
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Miami University
Foundation(19)
|
|
|
2,000
|
|
|
|
2,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Michael A. Claggett, IRA
Rollover(13)
|
|
|
1,000
|
|
|
|
1,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Michael C. Bruno
|
|
|
5,000
|
|
|
|
5,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Millennium Partners,
L.P.(6)(44)
|
|
|
2,200,000
|
|
|
|
1,500,000
|
|
|
|
5.5
|
%
|
|
|
700,000
|
|
|
|
1.8
|
%
|
Murray Gorin
|
|
|
5,000
|
|
|
|
5,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Munder Micro-Cap Equity
Fund(6)(45)
|
|
|
190,600
|
|
|
|
190,600
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Munder Real Estate Equity
Investment
Fund(6)(45)
|
|
|
104,400
|
|
|
|
104,400
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Mutual of America Institutional
Funds, Inc. All American
Fund(6)(46)
|
|
|
3,940
|
|
|
|
3,940
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
38
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Maximum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
Percentage of
|
|
|
Beneficial Ownership
|
|
|
|
Number of
|
|
|
Shares of
|
|
|
All Shares of
|
|
|
After Resale of Shares
|
|
|
|
Shares of
|
|
|
Common Stock
|
|
|
Common Stock
|
|
|
of Common
Stock(1)
|
|
|
|
Common Stock
|
|
|
Offered by This
|
|
|
Beneficially
|
|
|
Number of
|
|
|
|
|
|
|
Beneficially
|
|
|
Prospectus for
|
|
|
Owned Before
|
|
|
Shares of
|
|
|
|
|
Selling Stockholder
|
|
Owned
|
|
|
Resale
|
|
|
Resale(2)
|
|
|
Common Stock
|
|
|
Percentage
|
|
|
Mutual of America Institutional
Funds, Inc. Aggressive Equity
Fund(6)(46)
|
|
|
5,740
|
|
|
|
5,740
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Mutual of America Investment
Corporation All American
Fund(6)(46)
|
|
|
34,720
|
|
|
|
34,720
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Mutual of America Investment
Corporation Aggressive Equity
Fund(6)(46)
|
|
|
130,600
|
|
|
|
130,600
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
NCR Pension Trust-REIT Concentrated
Sector
Portfolio(9)
|
|
|
45,400
|
|
|
|
45,400
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Neese Family Equity Investments
Ltd.(19)
|
|
|
2,250
|
|
|
|
2,250
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Nutmeg Partners,
L.P.(6)(7)
|
|
|
60,000
|
|
|
|
60,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Optimix Investment Management
Limited(9)
|
|
|
17,000
|
|
|
|
17,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Pacific Credit
Corp.(11)
|
|
|
8,000
|
|
|
|
8,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Pennant Offshore Partners
Ltd.(47)
|
|
|
374,850
|
|
|
|
374,850
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Pennant Onshore Partners,
L.P.(47)
|
|
|
80,080
|
|
|
|
80,080
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Pennant Onshore Qualified,
L.P.(47)
|
|
|
245,070
|
|
|
|
245,070
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Peter A. Gallagher
|
|
|
2,250
|
|
|
|
2,250
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Peter A. Kirsch
|
|
|
300
|
|
|
|
300
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Phillip
Caplan(15)
|
|
|
3,667
|
|
|
|
3,667
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
PHS Bay Colony Fund,
L.P.(6)(7)
|
|
|
22,000
|
|
|
|
22,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
PHS Patriot Fund,
L.P.(6)(7)
|
|
|
10,000
|
|
|
|
10,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Pinnacle Oil
Company(48)
|
|
|
10,000
|
|
|
|
10,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Pitney Bowes Pension
Plan(5)
|
|
|
16,700
|
|
|
|
16,700
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Producer-Writers
Guild(4)
|
|
|
16,350
|
|
|
|
16,350
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Prudential Real Estate Securities
Fund(9)
|
|
|
36,100
|
|
|
|
36,100
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Public Employees Retirement
System of Mississippi-REIT
Portfolio(9)
|
|
|
33,500
|
|
|
|
33,500
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
PWB Value Partners,
L.P.(49)
|
|
|
387,666
|
|
|
|
387,666
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Quota Rabbico
N.V.(40)
|
|
|
48,424
|
|
|
|
48,424
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Ralph Pasture Pension
Plan(50)
|
|
|
2,000
|
|
|
|
2,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Raytheon Master Pension
Trust Real Estate Hedged
Portfolio(9)
|
|
|
60,500
|
|
|
|
60,500
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
The Real Estate Investment
Trust Series(6)(17)
|
|
|
849,735
|
|
|
|
425,935
|
|
|
|
2.1
|
%
|
|
|
423,800
|
|
|
|
1
|
%
|
The Real Estate Investment
Trust Portfolio(6)(17)
|
|
|
587,165
|
|
|
|
293,865
|
|
|
|
1.5
|
%
|
|
|
293,300
|
|
|
|
*
|
|
The Real Estate Investment
Trust II
Portfolio(6)(17)
|
|
|
66,800
|
|
|
|
33,900
|
|
|
|
*
|
|
|
|
32,900
|
|
|
|
*
|
|
Realty Enterprise
Fund LLC(6)(51)
|
|
|
30,000
|
|
|
|
30,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Retail Employees Superannuation
Trust(9)
|
|
|
55,100
|
|
|
|
55,100
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Retirement Plan for Hospital
Employees(5)
|
|
|
10,000
|
|
|
|
10,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Richard Feinberg
|
|
|
7,500
|
|
|
|
7,500
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
RNR II, LP
|
|
|
118,000
|
|
|
|
118,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
39
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Maximum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
Percentage of
|
|
|
Beneficial Ownership
|
|
|
|
Number of
|
|
|
Shares of
|
|
|
All Shares of
|
|
|
After Resale of Shares
|
|
|
|
Shares of
|
|
|
Common Stock
|
|
|
Common Stock
|
|
|
of Common
Stock(1)
|
|
|
|
Common Stock
|
|
|
Offered by This
|
|
|
Beneficially
|
|
|
Number of
|
|
|
|
|
|
|
Beneficially
|
|
|
Prospectus for
|
|
|
Owned Before
|
|
|
Shares of
|
|
|
|
|
Selling Stockholder
|
|
Owned
|
|
|
Resale
|
|
|
Resale(2)
|
|
|
Common Stock
|
|
|
Percentage
|
|
|
Robeco Boston Partners All Cap
Value
Fund(4)
|
|
|
2,225
|
|
|
|
2,225
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Robeco Boston Partners Small
Cap II Value
Fund(4)
|
|
|
195,900
|
|
|
|
87,500
|
|
|
|
*
|
|
|
|
108,400
|
|
|
|
*
|
|
Robert Feinberg
|
|
|
5,000
|
|
|
|
5,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Richard A. Kraemer & Gail
G. Kraemer TIC
|
|
|
10,000
|
|
|
|
10,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Richard J.
Hendrix(15)
|
|
|
5,333
|
|
|
|
5,333
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Ron Clarke, IRA
Rollover(13)
|
|
|
500
|
|
|
|
500
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Royal Capital Management/Seneca
Capital Managed
Account(52)
|
|
|
7,900
|
|
|
|
7,900
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Royal Capital Value Fund,
Ltd.(52)
|
|
|
220,700
|
|
|
|
220,700
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Royal Capital Value Fund,
LP(52)
|
|
|
52,200
|
|
|
|
52,200
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Royal Capital Value Fund (QP),
LP(52)
|
|
|
504,200
|
|
|
|
504,200
|
|
|
|
1.3
|
%
|
|
|
0
|
|
|
|
*
|
|
SAC Strategic Investments,
LLC(18)
|
|
|
73,200
|
|
|
|
73,200
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Sarah P. Fleischer Family
Trust No. 1(53)
|
|
|
2,500
|
|
|
|
2,500
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Satellite Fund I,
L.P.(54)
|
|
|
1,770
|
|
|
|
1,770
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Satellite Fund II,
L.P.(54)
|
|
|
23,230
|
|
|
|
23,230
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Savannah
ILA(4)
|
|
|
14,375
|
|
|
|
14,375
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
SCCM Financial
Inc.(55)
|
|
|
3,000
|
|
|
|
3,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
SEI Institutional Trust Small
Cap
Fund(9)
|
|
|
55,500
|
|
|
|
55,500
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
SEI Institutional Investments
Trust Small Cap
Fund(9)
|
|
|
128,000
|
|
|
|
128,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
SEI Institutional Managed
Trust Real Estate
Fund(9)
|
|
|
11,400
|
|
|
|
11,400
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
SEI Institutional Managed
Trust Small Cap Growth
Fund(9)
|
|
|
169,000
|
|
|
|
169,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
SEI Institutional Managed
Trust Small Cap Value
Fund(9)
|
|
|
39,400
|
|
|
|
39,400
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
SEI US Small Companies
Fund(9)
|
|
|
14,700
|
|
|
|
14,700
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Seligman Global Fund Series,
Inc.-Global Smaller Companies
Fund(9)
|
|
|
73,200
|
|
|
|
73,200
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Sisters of St. Joseph
Carondelet(4)
|
|
|
6,675
|
|
|
|
6,675
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Small Capitalization Equity
Fund(5)
|
|
|
9,000
|
|
|
|
9,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Small Capitalization Equity
Fund Collective
Trust(5)
|
|
|
41,600
|
|
|
|
41,600
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
South Ferry #2,
LP(56)
|
|
|
300,000
|
|
|
|
300,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Steven H.
Goldberg(15)
|
|
|
2,214
|
|
|
|
2,214
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Steven Rothstein
|
|
|
5,000
|
|
|
|
5,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Steven Vartan
|
|
|
500
|
|
|
|
500
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
SVS Asset Management,
LLC(19)
|
|
|
1,275
|
|
|
|
1,275
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
TALVEST Global Small Cap
Fund(9)
|
|
|
24,400
|
|
|
|
24,400
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Telstra Super Pty LTD-Super Global
Smaller
Companies(9)
|
|
|
35,600
|
|
|
|
35,600
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Terrebonne Investors
(Bermuda) L.P.(9)
|
|
|
21,300
|
|
|
|
21,300
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Terrebonne Partners,
L.P.(9)
|
|
|
18,600
|
|
|
|
18,600
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
40
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Maximum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
Percentage of
|
|
|
Beneficial Ownership
|
|
|
|
Number of
|
|
|
Shares of
|
|
|
All Shares of
|
|
|
After Resale of Shares
|
|
|
|
Shares of
|
|
|
Common Stock
|
|
|
Common Stock
|
|
|
of Common
Stock(1)
|
|
|
|
Common Stock
|
|
|
Offered by This
|
|
|
Beneficially
|
|
|
Number of
|
|
|
|
|
|
|
Beneficially
|
|
|
Prospectus for
|
|
|
Owned Before
|
|
|
Shares of
|
|
|
|
|
Selling Stockholder
|
|
Owned
|
|
|
Resale
|
|
|
Resale(2)
|
|
|
Common Stock
|
|
|
Percentage
|
|
|
Texas County and District
Retirement
System-REIT(9)
|
|
|
182,300
|
|
|
|
182,300
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
The Church Pension Fund
Real Estate Securities
Portfolio(9)
|
|
|
30,900
|
|
|
|
30,900
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Third Point Partners,
L.P.(41)
|
|
|
174,945
|
|
|
|
174,945
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Third Point Ultra,
Ltd.(41)
|
|
|
48,634
|
|
|
|
48,634
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Third Point Offshore
Fund Ltd.(41)
|
|
|
357,208
|
|
|
|
357,208
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Third Point Resources
Ltd.(41)
|
|
|
32,320
|
|
|
|
32,320
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Third Point Resources
L.P.(41)
|
|
|
27,765
|
|
|
|
27,765
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Thomas B. Parsons
|
|
|
1,000
|
|
|
|
1,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Timothy B. Matz and Jane F. Matz
JTWROS(6)
|
|
|
5,000
|
|
|
|
5,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Timothy P.
OBrien(15)
|
|
|
3,334
|
|
|
|
3,334
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Thomas D. & Elizabeth G.
Eckert
|
|
|
20,000
|
|
|
|
20,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Tombstone Limited
Partnership(57)
|
|
|
20,000
|
|
|
|
20,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
United Capital
Management, Inc.(58)
|
|
|
20,000
|
|
|
|
20,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
United Congregations
Mesora(59)
|
|
|
100,000
|
|
|
|
100,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
University of
Delaware(9)
|
|
|
18,600
|
|
|
|
18,600
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
University of Richmond
Endowment(4)
|
|
|
14,725
|
|
|
|
14,725
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
University of Southern California
Endowment(4)
|
|
|
32,375
|
|
|
|
32,375
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Vantagepoint Aggressive
Opportunities
Fund(9)
|
|
|
176,000
|
|
|
|
176,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Verizon Investment Management
Corp.(4)
|
|
|
174,955
|
|
|
|
172,555
|
|
|
|
*
|
|
|
|
2,400
|
|
|
|
*
|
|
Vestal Venture
Capital(60)
|
|
|
63,000
|
|
|
|
63,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Wellington Management Portfolios
(Dublin)-Global Smaller Companies
Equity(9)
|
|
|
36,000
|
|
|
|
36,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Wichita Retirement
Systems(5)
|
|
|
9,900
|
|
|
|
9,900
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Wildlife Conservation
Society(4)
|
|
|
8,150
|
|
|
|
8,150
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
William A. Hazel Revocable
Trust(61)
|
|
|
4,500
|
|
|
|
4,500
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
William & Flora Hewlette
Foundation-Real Estate Securities
Portfolio(9)
|
|
|
23,800
|
|
|
|
23,800
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
William S. McLeod BSSC Master Def.
Contrib. P/ S
Plan(62)
|
|
|
2,000
|
|
|
|
2,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Wray & Todd Interests,
Ltd.(13)
|
|
|
15,000
|
|
|
|
15,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
WTC-CIF Real Asset
Portfolio(9)
|
|
|
49,200
|
|
|
|
49,200
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
WTC-CTF Real Asset
Portfolio(9)
|
|
|
153,600
|
|
|
|
153,600
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Y&H Soda
Foundation(19)
|
|
|
5,475
|
|
|
|
5,475
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Yaupon
Fund LTD(63)
|
|
|
5,042
|
|
|
|
5,042
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Yaupon Partners
LP(63)
|
|
|
19,958
|
|
|
|
19,958
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
York Capital Management,
L.P.(64)
|
|
|
24,452
|
|
|
|
24,452
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
York Credit Opportunities Fund,
L.P.(64)
|
|
|
90,000
|
|
|
|
90,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
York Investment
Limited(64)
|
|
|
195,548
|
|
|
|
195,548
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Subtotal:
|
|
|
24,358,332
|
|
|
|
22,477,532
|
|
|
|
60
|
%
|
|
|
1,880,800
|
|
|
|
4.7
|
%
|
41
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Maximum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
Percentage of
|
|
|
Beneficial Ownership
|
|
|
|
Number of
|
|
|
Shares of
|
|
|
All Shares of
|
|
|
After Resale of Shares
|
|
|
|
Shares of
|
|
|
Common Stock
|
|
|
Common Stock
|
|
|
of Common
Stock(1)
|
|
|
|
Common Stock
|
|
|
Offered by This
|
|
|
Beneficially
|
|
|
Number of
|
|
|
|
|
|
|
Beneficially
|
|
|
Prospectus for
|
|
|
Owned Before
|
|
|
Shares of
|
|
|
|
|
Selling Stockholder
|
|
Owned
|
|
|
Resale
|
|
|
Resale(2)
|
|
|
Common Stock
|
|
|
Percentage
|
|
|
Affiliated
Stockholders
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Charles Carpenter and Laura L. Pitts
|
|
|
2,000
|
|
|
|
2,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Edward K.
Aldag, Jr.(65)
|
|
|
499,022
|
|
|
|
281,217
|
|
|
|
*
|
|
|
|
217,805
|
|
|
|
*
|
|
Emmett E.
McLean(66)
|
|
|
199,022
|
|
|
|
105,207
|
|
|
|
*
|
|
|
|
93,815
|
|
|
|
*
|
|
G. Steven
Dawson(67)
|
|
|
50,833
|
|
|
|
20,000
|
|
|
|
*
|
|
|
|
30,833
|
|
|
|
*
|
|
Keith T. Ghezzi
|
|
|
5,000
|
|
|
|
5,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Michael G.
Stewart(68)
|
|
|
50,000
|
|
|
|
30,000
|
|
|
|
*
|
|
|
|
20,000
|
|
|
|
*
|
|
Patricia W. Green
|
|
|
1,000
|
|
|
|
1,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
Richard S. Hamner IRA
Rollover(69)
|
|
|
2,000
|
|
|
|
2,000
|
|
|
|
*
|
|
|
|
0
|
|
|
|
*
|
|
R. Steven and Glenda R. Hamner
JTWROS(69)
|
|
|
199,022
|
|
|
|
71,804
|
|
|
|
*
|
|
|
|
127,218
|
|
|
|
*
|
|
Robert E. Holmes,
PhD.(67)
|
|
|
31,833
|
|
|
|
1,000
|
|
|
|
*
|
|
|
|
30,833
|
|
|
|
*
|
|
William G.
McKenzie(70)
|
|
|
150,022
|
|
|
|
97,680
|
|
|
|
*
|
|
|
|
52,342
|
|
|
|
*
|
|
Subtotal:
|
|
|
1,189,754
|
|
|
|
616,908
|
|
|
|
1.5
|
%
|
|
|
572,846
|
|
|
|
1.43
|
%
|
Other Selling
Stockholders(71)
|
|
|
(69
|
)
|
|
|
2,316,599
|
|
|
|
6.7
|
%
|
|
|
0
|
|
|
|
*
|
|
Total:
|
|
|
25,548,086
|
|
|
|
25,411,039
|
|
|
|
63
|
%
|
|
|
2,453,646
|
|
|
|
6.1
|
%
|
|
|
|
*
|
|
Holdings represent less than 1% of
all shares of common stock outstanding.
|
|
(1)
|
|
Assumes that each named selling
stockholder sells all of the shares of our common stock that it
holds that are covered by this prospectus and neither acquires
nor disposes of any other shares of common stock, or right to
purchase other shares of common stock subsequent to the date as
of which it provided information to us regarding its holdings.
Because the selling stockholders are not obligated to sell all
or any portion of the shares of our common stock shown as
offered by them, we cannot estimate the actual number of shares
of our common stock that will be held by any selling stockholder
upon completion of this offering.
|
|
(2)
|
|
Based on 40,195,564 shares of
common stock outstanding as of September 15, 2006.
|
|
(3)
|
|
Except as otherwise indicated in
Note 14, holders of our shares of common stock that are
unaffiliated with us were subject to
lock-up
agreements that expired on September 6, 2005.
|
|
(4)
|
|
This selling stockholder
represented to us that Boston Partners Asset Management, LLC
serves as its investment adviser, and that Harry Rosenbluth and
David Dabora exercise voting and investment power over these
shares.
|
|
(5)
|
|
This selling stockholder
represented to us that ING Investment Management Co. has sole
voting power and sole investment power over the shares of common
stock held by this stockholder, and that William E. Bartol is a
Vice President of ING Investment Management Co., and in that
role exercises voting and investment power over the shares of
common stock held by this stockholder.
|
|
(6)
|
|
This selling stockholder is an
affiliate of a broker-dealer. The selling stockholder
represented that it purchased the shares in the ordinary course
of business and, at the time of purchase of the shares to be
resold, the selling stockholder did not have any agreement or
understandings, directly, or indirectly, with any person to
distribute the shares.
|
|
(7)
|
|
This selling stockholder
represented to us that Angelo, Gordon & Co., L.P.
serves as its investment manager, and that John M. Angelo and
Michael L. Gordon, as Partners of Angelo, Gordon & Co.,
L.P. have voting and investment authority over these shares.
|
|
(8)
|
|
This selling stockholder
represented to us that Atlas Capital Management, L.P. is the
general partner of Atlas Capital (QP) L.P. Atlas Capital, LP.
and Atlas Capital Offshore Fund, Ltd. are the general partners
of Atlas Capital Master Fund, L.P. The shares of common stock
held by Atlas Capital (QP) L.P. and Atlas Capital Master Fund,
L.P. are being presented on a group basis. Robert Alpert
exercises voting and investment power over these shares.
|
|
(9)
|
|
This selling stockholder
represented to us that Wellington Management Company, LLP is an
investment adviser registered under the Investment Advisers Act
of 1940, as amended (Wellington), and that in its
capacity as an investment adviser, Wellington is deemed to share
beneficial ownership over the shares of common stock held by
this stockholder.
|
|
(10)
|
|
This selling stockholder
represented to us that Axia Capital Management serves as its
investment manager, and that Raymond Garea, as Chief Executive
Officer of Axia Capital Management, has voting and investment
authority over these shares.
|
|
(11)
|
|
This selling stockholder
represented to us that Bel Air Investment Advisors LLC has sole
voting power and sole investment power with respect to the
shares of common stock held by this stockholder, and that
Michael Powers is a Portfolio Manager of Bel Air Investment
Advisors LLC, and in that role exercises voting and investment
power over the shares of common stock held by this stockholder.
|
|
(12)
|
|
This selling stockholder
represented to us that Bert Fingerhut has voting and investment
authority over these shares.
|
|
(13)
|
|
This selling stockholder
represented to us that Roger E. King, President of King
Investment Advisors, Inc. is the investment advisor for this
stockholder and has voting power over the shares of common stock
held by this stockholder.
|
|
(14)
|
|
This selling stockholder
represented to us that Bonnie Paley Minzer has voting and
investment authority over these shares.
|
|
(15)
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This selling stockholder is an
employee of Friedman, Billings, Ramsey & Co., Inc., a
broker-dealer. The selling stockholder represented to us that it
obtained the shares in the ordinary course of business and, at
the time of purchase of the shares to be resold, the selling
stockholder did not have any agreement or understandings,
directly, or indirectly, with any person to distribute
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42
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the shares. Friedman, Billings,
Ramsey & Co., Inc. served as the initial purchaser and
placement agent for our April 2004 private placement. In
addition, Friedman, Billings, Ramsey & Co., Inc. served
as the sole book-running manager of our initial public offering.
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(16)
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This selling stockholder
represented to us that Caroline Hicks has voting and investment
authority over these shares.
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(17)
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This selling stockholder
represented to us that Damon Andres has investment discretion
and voting authority over these shares.
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(18)
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This selling stockholder
represented to us that Endeavour Capital Advisors has investment
discretion over the shares of common stock held by this
stockholder, and that Laurence Austin and Mitchell Katz exercise
voting and investment power over the shares of common stock held
by this stockholder.
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(19)
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This selling stockholder
represented to us that Wasatch Advisors has sole voting power
and sole investment power over the shares of common stock held
by this stockholder, and that John Mazanec is a Portfolio
Manager of Wasatch Advisors, and in that role exercises voting
and investment power over the shares of commons stock held by
this stockholder.
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(20)
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This selling stockholder
represented to us that John Kramer has voting and investment
authority over these shares.
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(21)
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This selling stockholder
represented to us that Dennis Hemme has voting and investment
authority over these shares.
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(22)
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This selling stockholder
represented to us that Camille Cotran has voting and investment
authority over these shares.
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(23)
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This selling stockholder
represented to us that Oyvind Birkeland has voting authority
over these shares, and that Espen Lundstrom and Kjell Morten
Hamre have investment authority over these shares.
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(24)
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This selling stockholder
represented to us that Francesca V. Ozdoba has voting and
investment authority over these shares.
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(25)
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This selling stockholder is a
registered broker-dealer, and received these shares as
compensation for financial advisory services. Friedman,
Billings, Ramsey & Co., Inc. served as the initial
purchaser and placement agent for our April 2004 private
placement. In addition, Friedman, Billings, Ramsey &
Co., Inc. served as the sole book-running manager of our initial
public offering. Eric Billings is the Chairman and Chief
Executive Officer of Friedman, Billings, Ramsey & Co.,
and in that role exercises voting and investment power over the
shares of common stock held by this stockholder.
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(26)
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This selling stockholder is an
affiliate of a broker-dealer. The selling stockholder
represented to us that it purchased the shares in the ordinary
course of business and, at the time of purchase of the shares to
be resold, the selling stockholder did not have any agreement or
understandings, directly or indirectly, with any person to
distribute the shares. Eric Billings is the Chairman and Chief
Executive Officer of Friedman Billings Ramsey Group, Inc., and
in that role exercises voting and investment power over the
shares of common stock held by this stockholder.
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(27)
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This selling stockholder
represented to us that Peter Frorer is the general partner of
Frorer Partners, L.P., and has sole voting power and sole
investment power with respect to the shares of common stock held
by Frorer Partners, L.P.
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(28)
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This selling stockholder
represented to us that John Gisond has voting and investment
authority over these shares.
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(29)
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This selling stockholder
represented to us that Robert Murphy has voting and investment
authority over these shares.
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(30)
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This selling stockholder
represented to us that Greenlight Capital, Inc. serves as its
investment manager, and that David Einhorn, as President of
Greenlight Capital, Inc., has voting and investment authority
over these shares.
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(31)
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This selling stockholder
represented to us that Henry Ripp has voting and investment
authority over these shares.
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(32)
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This selling stockholder
represented to us that sole voting and investment power is held
by Mangan & McColl Partners, LLC, and that John F.
Mangan, Jr. role exercises voting and investment power over
the shares of common stock held by this stockholder.
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(33)
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This selling stockholder
represented to us that Ian Brady has voting and investment
authority over these shares.
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(34)
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This selling stockholder
represented to us that James Dierberg has voting and investment
authority over these shares.
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(35)
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This selling stockholder
represented to us that Jack Sear has voting and investment
authority over these shares.
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(36)
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This selling stockholder
represented to us that JLF Asset Management, L.L.C. serves as
the management company
and/or
investment manager to JLF Partners I, L.P., JLF
Partners II, L.P. JLF Offshore Deferred Account and JLF
Offshore Fund, Ltd. Jeffrey L. Feinberg is the managing member
of JLF Asset Management, L.L.C., and has voting and investment
authority over these shares.
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(37)
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This selling stockholder
represented to us that Richard Kayne has voting and investment
authority over these shares.
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(38)
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This selling stockholder
represented to us that Kristen Junkin has voting and investment
authority over these shares.
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(39)
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This selling stockholder
represented to us that Ronald Liebowitz has voting and
investment authority over these shares.
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(40)
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This selling stockholder
represented to us that Blavin & Company, Inc. has sole
voting power and sole investment power over the shares of common
stock held by this stockholder. Paul Blavin is the Chief
Executive Officer of Blavin & Company, Inc., and in
that role exercises voting and investment power over the shares
of common stock held by this stockholder.
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(41)
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This selling stockholder
represented to us that Third Point LLC is the investment manager
for Third Point Partners, L.P., Third Point Ultra, Ltd., Third
Point Offshore Fund Ltd., Third Point Resources Ltd., Third
Point Resources, L.P. and Lyxor/ Third Point Fund Limited.
Daniel S. Loeb is the Managing Member of Third Point LLC, and in
that role exercises voting and investment power over the shares
of common stock held by this stockholder.
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(42)
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This selling stockholder
represented to us that Marcy A. Newberger has voting and
investment authority over these shares.
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(43)
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This selling stockholder
represented to us that David R. Jarvis and Malcolm F. MacLean
have voting and investment authority over these shares.
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(44)
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This selling stockholder
represented to us that the 2,200,000 shares of common stock
beneficially owned by this stockholder includes
700,000 shares of common stock held by its affiliate,
Millenco, L.P. The general partner of this stockholder is
Millennium Management, L.L.C., a Delaware limited liability
company (Millennium Management). Millennium
Management may be deemed to have voting control and investment
discretion over securities owned by this stockholder. Israel A.
Englander is the managing member of Millennium Management, and
exercises voting and investment authority over these shares, and
may be deemed to be the beneficial owner of any shares deemed to
be owned by Millennium Management. This stockholder has advised
us that the foregoing should not be construed as an admission by
either Millennium Management or Mr. Englander as to
beneficial ownership of the shares of common stock owned by this
stockholder.
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(45)
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This selling stockholder
represented to us that Munder Capital Management, an affiliate
of Comerica Securities, Inc., is the investment adviser to
Munder Real Estate Equity Investment Fund and Munder Micro-Cap
Equity Fund. The Munder Capital Management Proxy Committee
exercises voting and investment authority over these shares. The
Munder Capital Management
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43
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Proxy Committee consists of the
following members: Mary Ann Shumaker (non-voting), Andrea
Leistra, Debbie Leich, Thomas Mudie and Stephen Shenkenberg
(non-voting).
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(46)
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This selling stockholder
represented to us that Stephen Rich has voting and investment
authority over these shares.
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(47)
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This selling stockholder
represented to us that Pennant Capital Management, LLC serves as
the management company to Pennant Onshore Partners, L.P.,
Pennant Offshore Partners, Ltd, and Pennant Onshore Qualified,
L.P. Alan Fournier is the Managing Member of Pennant Capital
Management, and in that role exercises voting and investment
power over the shares of common stock held by this stockholder.
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(48)
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This selling stockholder
represented to us that Guy Dove has voting and investment
authority over these shares.
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(49)
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This selling stockholder
represented to us that Michael Spalter has voting and investment
authority over these shares.
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(50)
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This selling stockholder
represented to us that Ralph Pasture has voting and investment
authority over these shares.
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(51)
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This selling stockholder
represented to us that John Wells has voting and investment
authority over these shares.
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(52)
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This selling stockholder
represented to us that Yale M. Fergang has voting and investment
authority over these shares.
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(53)
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This selling stockholder
represented to us that James S. Fleischer has voting and
investment authority over these shares.
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(54)
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This selling stockholder
represented to us that the General Partner of each of Satellite
Fund I, L.P. and Satellite Fund II, L.P. is Satellite
Advisors, L.L.C. (Advisors). The senior members of
Advisors are Lief Rosenblatt, Gabriel Nechamkin and Mark
Sonnino, each have voting and investment authority over the
shares held by this selling stockholder. Each of Advisors and
Messrs. Rosenblatt, Nechamkin and Sonnino disclaim
beneficial ownership of these shares.
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(55)
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This selling stockholder
represented to us that Robert Slayton has voting and investment
authority over these shares.
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(56)
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This selling stockholder
represented to us that Morris Wolfson has voting and investment
authority over these shares.
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(57)
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This selling stockholder
represented to us that Nathan Brand has voting and investment
authority over these shares.
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(58)
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This selling stockholder
represented to us that James A. Lustig has voting and investment
authority over these shares.
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(59)
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This selling stockholder
represented to us that Aaron Wolfson has voting and investment
authority over these shares.
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(60)
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This selling stockholder
represented to us that Allan R. Lyons has voting and investment
authority over these shares.
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(61)
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This selling stockholder
represented to us that William A. Hazel has voting and
investment authority over these shares.
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(62)
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This selling stockholder
represented to us that William S. McLeod has voting and
investment authority over these shares.
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(63)
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This selling stockholder
represented to us that Robert Lietzow has voting and investment
authority over these shares.
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(64)
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This selling stockholder
represented to us that James G. Dinen has voting and investment
authority over these shares.
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(65)
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Mr. Aldag is our Chairman,
President and Chief Executive Officer.
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(66)
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Mr. McLean is our Executive
Vice President, Chief Financial Officer and Treasurer.
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(67)
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Mr. Dawson and Mr. Holmes
are members of our board of directors.
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(68)
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Mr. Stewart is our Executive
Vice President, General Counsel and Secretary.
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(69)
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Mr. Hamner is our Executive
Vice President and Chief Financial Officer and a member of our
board of directors.
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(70)
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Mr. McKenzie is our Vice
Chairman of the Board of Directors.
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(71)
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The number of shares of common
stock included in these columns represents shares of common
stock owned by stockholders who have not yet been specifically
identified. Only those selling stockholders specifically
identified above may sell their shares pursuant to this
prospectus. Information concerning other stockholders who wish
to become selling stockholders will be set forth in
post-effective amendments to the registration statement of which
this prospectus forms a part from time to time, if and when
required.
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PLAN OF
DISTRIBUTION
We are registering the resale of the shares of common stock
offered by this prospectus in accordance with the terms of a
registration rights agreement that we entered into with the
selling stockholders in connection with our April 2004 private
placement. The registration of these shares, however, does not
necessarily mean that any of the shares will be offered or sold
by the selling stockholders or their respective donees, pledgees
or other transferees or successors in interest. We will not
receive any proceeds from the sale of the common stock offered
by this prospectus.
The sale of the shares of common stock by any selling
stockholder, including any donee, pledgee or other transferee
who receives shares from a selling stockholder, may be effected
from time to time by selling them directly to purchasers or to
or through broker-dealers. In connection with any sale, a
broker-dealer may act as agent for the selling stockholder or
may purchase from the selling stockholder all or a portion of
the shares as principal. These sales may be made on the New York
Stock Exchange or other exchanges on which our common stock is
then traded, in the
over-the-counter
market or in private transactions.
The shares may be sold in one or more transactions at:
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fixed prices;
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prevailing market prices at the time of sale;
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prices related to the prevailing market prices; or
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otherwise negotiated prices.
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The shares of common stock may be sold in one or more of the
following transactions:
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ordinary brokerage transactions and transactions in which a
broker-dealer solicits purchasers;
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block trades (which may involve crosses or transactions in which
the same broker acts as an agent on both sides of the trade) in
which a broker-dealer may sell all or a portion of such shares
as agent but may position and resell all or a portion of the
block as principal to facilitate the transaction;
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purchases by a broker-dealer as principal and resale by the
broker-dealer for its own account pursuant to this prospectus;
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a special offering, an exchange distribution or a secondary
distribution in accordance with applicable rules promulgated by
the National Association of Securities Dealers, Inc. or stock
exchange rules;
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sales at the market to or through a market maker or
into an existing trading market, on an exchange or otherwise,
for the shares;
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sales in other ways not involving market makers or established
trading markets, including privately-negotiated direct sales to
purchasers;
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any other legal method; and
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any combination of these methods.
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In effecting sales, broker-dealers engaged by a selling
stockholder may arrange for other broker-dealers to participate.
Broker-dealers will receive commissions or other compensation
from the selling stockholder in the form of commissions,
discounts or concessions. Broker-dealers may also receive
compensation from purchasers of the shares for whom they act as
agents or to whom they sell as principals or both. Compensation
as to a particular broker-dealer may be in excess of customary
commissions and will be in amounts to be negotiated.
The distribution of the shares of common stock also may be
effected from time to time in one or more underwritten
transactions. Any underwritten offering may be on a best
efforts or a firm commitment basis. In
connection with any underwritten offering, underwriters or
agents may receive compensation in the form of discounts,
concessions or commissions from the selling stockholders or from
purchasers of the shares. Underwriters may sell the shares to or
through dealers, and dealers may receive compensation in the
form of discounts, concessions or commissions from the
underwriters
and/or
commissions from the purchasers for whom they may act as agents.
The selling stockholders have advised us that they have not
entered into any agreements, understandings or arrangements with
any underwriters or broker-dealers regarding the sale of their
securities, nor is there any underwriter or coordinating
broker-dealer acting in connection with any proposed sale of
shares by the selling stockholders. We will file a supplement to
this prospectus, if required, under Rule 424(b) under the
Securities Act upon being notified by the selling stockholders
that any material arrangement has been entered into with a
broker-dealer for the sale of shares through a block trade,
special offering, exchange distribution or secondary
distribution or a purchase by a broker or dealer. This
supplement will disclose:
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the name of the selling stockholders and of participating
brokers and dealers;
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the number of shares involved;
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the price at which the shares are to be sold;
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the commissions paid or the discounts or concessions allowed to
the broker-dealers, where applicable;
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that the broker-dealers did not conduct any investigation to
verify the information set out or incorporated by reference in
this prospectus; and
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other facts material to the transaction.
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45
The selling stockholders and any underwriters, or
brokers-dealers or agents that participate in the distribution
of the shares may be deemed to be underwriters
within the meaning of the Securities Act, and any profit on the
sale of the shares by them and any discounts, commissions or
concessions received by any underwriters, dealers, or agents may
be deemed to be underwriting compensation under the Securities
Act. Because the selling stockholders may be deemed to be
underwriters under the Securities Act, the selling
stockholders will be subject to the prospectus delivery
requirements of the Securities Act. The selling stockholders and
any other person participating in a distribution will be subject
to the applicable provisions of the Exchange Act and its rules
and regulations. For example, the anti-manipulative provisions
of Regulation M may limit the ability of the selling
stockholders or others to engage in stabilizing and other market
making activities.
From time to time, the selling stockholders may pledge their
shares of common stock pursuant to the margin provisions of
their customer agreements with their brokers. Upon default by a
selling stockholder, the broker may offer and sell such pledged
shares from time to time. Upon a sale of the shares, the selling
stockholders intend to comply with the prospectus delivery
requirements under the Securities Act by delivering a prospectus
to each purchaser in the transaction. We intend to file any
amendments or other necessary documents in compliance with the
Securities Act that may be required in the event the selling
stockholders default under any customer agreement with brokers.
In order to comply with the securities laws of certain states,
if applicable, the shares of common stock may be sold only
through registered or licensed broker-dealers. We have agreed to
pay all expenses incidental to the offering and sale of the
shares, other than commissions, discounts and fees of
underwriters, broker-dealers or agents. We have agreed to
indemnify the selling stockholders against certain losses,
claims, damages, actions, liabilities, costs and expenses,
including liabilities under the Securities Act.
The selling stockholders have agreed to indemnify us, our
officers and directors and each person who controls (within the
meaning of the Securities Act) or is controlled by us, against
any losses, claims, damages, liabilities and expenses arising
under the securities laws in connection with this offering with
respect to written information furnished to us by the selling
stockholders.
EXPERTS
Our consolidated financial statements and the accompanying
financial statement schedule for the period from inception
(August 27, 2003) through December 31, 2005, as
included with the annual report on
Form 10-K
for the period ending December 31, 2005 and incorporated by
reference, have been audited by KPMG LLP, independent registered
public accounting firm, as stated in their report incorporated
by reference, and upon the authority of KPMG LLP as experts in
accounting and auditing.
The consolidated financial statements of Vibra Healthcare, LLC
for the period from inception (May 14, 2004) through
December 31, 2005 as included with the annual report on
form 10-K
for the period ending December 31, 2005 and incorporated by
reference have been audited by Parente Randolph, LLC,
independent registered public accounting firm, as stated in
their report incorporated by reference, and upon the authority
of Parente Randolph, LLC as experts in accounting and auditing.
LEGAL
MATTERS
Certain legal matters, including the validity of the common
stock offered hereby has been passed upon for us by Baker,
Donelson, Bearman, Caldwell & Berkowitz, P.C. The
summary of legal matters contained in the section of this
prospectus under the heading United States Federal Income
Tax Considerations is based on the opinion of Baker,
Donelson, Bearman, Caldwell & Berkowitz, P.C.
46
25,411,039 Shares
Common Stock
PROSPECTUS
October 6, 2006