As
filed with the Securities and Exchange Commission on September 1,
2009
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_______________________
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
WINTHROP
REALTY TRUST
(Exact
Name of Registrant as Specified in Its Charter)
Ohio
(State
or Other Jurisdiction of
Incorporation
or Organization
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34-6513659
(I.R.S.
Employer
Identification
Number)
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7
Bulfinch Place, Suite 500
Boston,
Massachusetts 02114
(617) 570-4614
(Address,
Including Zip Code, and Telephone Number, Including Area Code,
of Registrant’s Principal Executive Offices)
With
copies to:
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Carolyn Tiffany
President
Winthrop
Realty Trust
7
Bulfinch Place, Suite 500
Boston,
Massachusetts 02114
(617) 570-4614
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David
J. Heymann
Post
Heymann & Koffler LLP
Two
Jericho Plaza
Wing
A, Suite 211
Jericho,
New York 11753
(516)
681-3636
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(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent
For Service)
_______________________
Approximate
date of commencement of proposed sale to the public:
From
time to time after the effective date of this Registration
Statement.
_______________________
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box.
ý
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933,
other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.
o
If this
Form is filed to register additional securities for an offering pursuant to
Rule 462(b) under the Securities Act, please check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering.
o
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier registration statement for the same offering.
o
If
delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.
o
If this
form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering.
o
If this
form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering.
o
If this
form is a registration statement pursuant to General Instruction I.D or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box.
x
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box.
o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
Large accelerated
filer
o
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Accelerated
filer
x
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Non-accelerated
filer
o
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Smaller reporting
company
o
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CALCULATION
OF REGISTRATION FEE
Title
of Each Class of Securities to be Registered
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Amount
to be
Registered
(1)
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Proposed
Maximum
Aggregate
Offering
Price
Per Security(2)
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Proposed
Maximum Aggregate Offering Price (2)
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Amount
of
Registration
Fee
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Common
shares of beneficial interest, par value $1 per share
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1,000,000
Shares
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$9.54
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$9,540,000
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$532.33
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(1) Pursuant
to Rule 416(a), the number of shares registered shall include an indeterminate
number of additional common shares of beneficial interest that may become
issuable as a result of stock splits, stock dividends, or similar transactions
in accordance with anti-dilution provisions of the dividend reinvestment
plan.
(2) Estimated
solely for the purpose of computing the amount of the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933 based on the
average of the high and low sales price per share of the registrant’s common
shares on August 28, 2009 as reported on the New York Stock
Exchange.
PROSPECTUS
Winthrop
Realty Trust
Dividend
Reinvestment and
Stock
Purchase Plan
1,000,000
Common Shares
of
Beneficial Interest
_____________________________________________________________
We are
Winthrop Realty Trust, a real estate investment trust formed under the laws of
the State of Ohio. This prospectus relates to the offer and sale to
our shareholders through our Dividend Reinvestment and Stock Purchase Plan,
which we refer to in this Prospectus as the Plan, of up to 1,000,000 of our
common shares of beneficial interest, $1.00 par value per share, which we refer
to in this Prospectus as common stock, covered by the Registration Statement of
which this Prospectus is a part. The Plan provides a simple, convenient,
low-cost means of investing in our common stock. Under the Plan,
existing shareholders may purchase common stock by reinvesting all or a portion
of the cash dividends on their common stock or making additional cash payments
of not less than $100 nor more than $10,000 per quarter, or both. A
detailed description of the Plan can be found under the heading “Dividend
Reinvestment and Stock Purchase Plan” beginning on page 6 of this
prospectus.
You
should read this prospectus carefully and retain it for future
reference.
Investing in our common stock
involves risks. You should read the “Risk Factors” section on
page 3 before electing to participate in the Plan.
Your
participation in the Plan is entirely voluntary, and you may terminate your
participation at any time. If you do not elect to participate in the
Plan, you will continue to receive cash dividends, if and when declared by our
board of trustees, in the usual manner.
Our
common stock is traded on the New York Stock Exchange under the symbol
“FUR”. The common stock issued pursuant to the Plan will also be
listed on the NYSE under the “FUR” symbol. The closing price of our
common stock on August 28, 2009 was $9.40 per share.
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS
APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR
ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date
of this prospectus is September 1, 2009
TABLE
OF CONTENTS
Page
WHERE
YOU CAN FIND MORE INFORMATION
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3
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RISK
FACTORS
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3
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CAUTIONARY
STATEMENTS CONCERNING FORWARD-LOOKING STATEMENTS
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3
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OUR
COMPANY
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5
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DIVIDEND
REINVESTMENT AND STOCK PURCHASE PLAN
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6
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USE
OF PROCEEDS
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19
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EXPERTS
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20
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LEGAL
MATTERS
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21
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INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
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21
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INDEMNIFICATION
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22
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We have
not authorized anyone to provide you with information that is different from
what is contained in this prospectus. Our Dividend Reinvestment and
Stock Purchase Plan is not available to any person to whom we may not legally
offer it.
This
prospectus is dated as of September 1, 2009. You should not assume
that the information contained in this prospectus is accurate as of any date
other than that date.
WHERE
YOU CAN FIND MORE INFORMATION
You can
obtain information on the operation of the Public Reference Room by calling the
SEC at 1-800-SEC-0330. You can obtain copies of this material by mail from the
Public Reference Room of the SEC at 1580, 100 F Street, N.E., Washington, D.C.
20549, at prescribed rates. You can also obtain such reports, proxy statements
and other information from the web site that the SEC maintains at
http://www.sec.gov.
Reports,
proxy statements and other information concerning us may also be obtained
electronically at our website, http://www.winthropreit.com, and through a
variety of databases, including, among others, the SEC’s Electronic Data
Gathering and Retrieval (“EDGAR”) program, Knight-Ridder Information Inc.,
Federal Filing/Dow Jones and Lexis/Nexis.
We have
filed a Registration Statement on Form S-3 to register with the SEC the shares
of our common stock being offered pursuant to this prospectus. This
prospectus is part of that Registration Statement. As permitted by
the SEC, this prospectus does not contain all the information you can find in
the Registration Statement or in its exhibits.
RISK
FACTORS
Investing
in our common stock involves risks. Prior to making a decision to
participate in the Plan and acquire additional shares of common stock, you
should carefully consider the risk factors set forth in Item 1A. Risk Factors in
our most recent Annual Report on Form 10-K, which is incorporated by reference
into this prospectus, as the same may be updated from time to time by our
filings under the Securities Exchange Act of 1934, as well as other information
contained or incorporated by reference into this prospectus.
CAUTIONARY
STATEMENTS CONCERNING FORWARD-LOOKING STATEMENTS
Any
statements included in this prospectus, including any statements in the document
that are incorporated by reference herein that are not strictly historical are
forward-looking statements within the meaning of the safe harbor provisions of
the Private Securities Litigation Reform Act of 1995. Any such forward-looking
statements contained or incorporated by reference herein should not be relied
upon as predictions of future events. Certain such forward-looking statements
can be identified by the use of forward-looking terminology such as “believes,”
“expects,” “may,” “will,” “should,” “seeks,” “approximately,” “intends,”
“plans,” “pro forma,” “estimates” or “anticipates” or the negative thereof or
other variations thereof or comparable terminology, or by discussions of
strategy, plans, intentions or anticipated or projected events, results or
conditions. Such forward-looking statements are dependent on assumptions, data
or methods that may be incorrect or imprecise and they may be incapable of being
realized. Such forward-looking statements include statements with respect
to:
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the
declaration or payment of distributions by
us;
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the
ownership, management and operation of
properties;
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potential
acquisitions or dispositions of our properties, assets or other
businesses;
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our
policies regarding investments, acquisitions, dispositions, financings and
other matters;
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our
qualification as a real estate investment trust under the Internal Revenue
Code of 1986, as amended, which we refer to as the
Code;
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the
real estate industry and real estate markets in
general;
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the
availability of debt and equity
financing;
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general
economic conditions;
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supply
of real estate investment opportunities and
demand;
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trends
affecting us or our assets;
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the
effect of acquisitions or dispositions on capitalization and financial
flexibility;
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the
anticipated performance of our assets and of acquired properties and
businesses, including, without limitation, statements regarding
anticipated revenues, cash flows, funds from operations, earnings before
interest, depreciation and amortization, property net operating income,
operating or profit margins and sensitivity to economic downturns or
anticipated growth or improvements in any of the foregoing;
and
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our
ability, and that of our or assets and acquired properties and businesses
to grow
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You are
cautioned that, while forward-looking statements reflect our good faith beliefs,
they are not guarantees of future performance and they involve known and unknown
risks and uncertainties. Actual results may differ materially from those in the
forward-looking statements as a result of various factors. The information
contained or incorporated by reference in this prospectus and any amendment
hereof, including, without limitation, any risk factors in documents that are
incorporated by reference in this prospectus, identifies important factors that
could cause such differences. We undertake no obligation to publicly release the
results of any revisions to these forward-looking statements that may reflect
any future events or circumstances.
OUR
COMPANY
We are a
real estate investment trust, commonly referred to as a REIT, formed under the
laws of the State of Ohio. Our operations are managed by FUR Advisors LLC, who
we refer to as FUR Advisor or our advisor. Our common stock is traded on the
NYSE under the symbol “FUR.” We conduct our business through WRT Realty L.P., a
Delaware limited partnership which we refer to as the operating
partnership. We are the sole general partner of, and own all of the
limited partnership interests in, the operating partnership. Our
operating partnership structure, commonly referred to as an umbrella partnership
real estate investment trust or “UPREIT” structure, provides us with additional
flexibility when acquiring properties for cash and/or by issuing to sellers, as
a form of consideration, limited partnership interests in our operating
partnership. Although we have not yet issued any limited partnership
interests in connection with the acquisition of an asset, we believe that this
structure facilitates our ability to acquire portfolio and individual properties
by enabling us to structure transactions which may defer tax gains for a seller
while preserving our available cash for other purposes.
We are
engaged in the business of owning real property and real estate related assets
which we categorize into three operating segments: (i) the ownership of
investment properties which we refer to as operating properties; (ii) the
origination and acquisition of loans and debt securities secured directly or
indirectly by commercial and multi-family real property, which we refer to as
loan assets and loan securities, including collateral mortgage-backed
securities, which we refer to as CMBS, and collateral debt obligations, which we
refer to as CDO’s; and (iii) the ownership of equity and debt securities in
other REITs, which we refer to as REIT securities.
As of
June 30, 2009, we held interests in properties containing approximately 9.5
million square feet of rentable space, owned either directly by us or through
joint ventures. We also held loan assets and loan securities totaling
$106,167,000, which consists primarily of our investment in the Marc Realty
portfolio. In addition, we held REIT securities valued at $53,967,000
and cash and cash equivalents of approximately $20,469,000. As
of June 30, 2009, we had written down our investment in Lex-Win Concord LLC,
which we refer to as Concord, to zero for financial statement purposes but we
are continuing efforts towards an equity recovery.
Our
executive offices are located at 7 Bulfinch Place, Suite 500, Boston,
Massachusetts 02114-9507 and Two Jericho Plaza, Jericho, New York
11753. Our telephone numbers are (617) 570-4614 and (516) 822-0022
and our website is located at
http:/www.winthropreit.com
. None
of the information on our website that is not otherwise expressly set forth in
or incorporated by reference in this prospectus is a part of this
prospectus.
DIVIDEND
REINVESTMENT AND STOCK PURCHASE PLAN
The
following constitutes our Dividend Reinvestment and Stock Purchase
Plan. All references in this prospectus to "common stock" refer to
our common shares of beneficial interest, par value $1.00 per
share. To understand the Plan fully and evaluate the merits and risks
of an investment in our common stock, you should read this prospectus carefully,
together with our most recent Annual Report on Form 10-K, most recent Quarterly
Report on Form 10-Q, and the other documents incorporated by reference into this
prospectus as described under the heading "Where You Can Find More Information"
below
PURPOSE
1. What
is the purpose of the Plan?
The
primary purpose of the Plan is to give holders of record of common stock a
simple, convenient and economical way to reinvest all or a portion of their cash
dividends or optional cash payments, or both, in common stock. A
secondary purpose of the Plan is to provide us another way to raise additional
capital for general company purposes through sales of common stock under the
Plan.
INVESTMENT
OPTIONS
2. What
are my investment options under the Plan?
When
completing the Enrollment Form (see Question 7), you have the following
investment options:
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Full Dividend Reinvestment.
This option directs the Administrator to reinvest the cash
dividends paid on all of the shares of common stock owned by you then or
in the future in shares of common stock. This option also
permits you to make optional cash investments from $100 to $10,000 per
quarter to buy additional shares of common
stock.
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Partial Dividend
Reinvestment
.
This option
directs the Administrator to pay cash dividends to you on the number of
shares of common stock you specify on the Enrollment
Form.
Cash
dividends with respect to all other shares will be reinvested in common
stock.
By completing the Enrollment Form, you direct the
Administrator to reinvest automatically any subsequent cash dividends on
your shares of common stock, other than specifically excluded shares and
shares you do not hold of record. This election will also apply
to additional shares that you acquire of record whether through the Plan
or otherwise. To select this option, dividends with respect to
at least 10 shares of common stock held by you must be
reinvested. This option also permits you to make optional cash
investments from $100 to $10,000 per quarter to buy additional shares of
common stock.
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·
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Optional Cash Investments
Only.
This option permits you to make optional cash
investments from $100 to $10,000 per quarter to buy additional shares of
common stock. We will continue to pay you cash dividends, when
and if declared by our board of trustees, on the shares of common stock
owned by you then or in the future, unless you designate such shares for
reinvestment pursuant to the Plan.
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You
should choose your investment option by checking the appropriate box on the
Enrollment Form, as applicable. If you sign and return the Enrollment
Form without checking an option, the Administrator will choose the "Full
Dividend Reinvestment" option and will reinvest all cash dividends on all shares
of common stock registered in your name.
BENEFITS
OF THE PLAN
3. What
are the benefits of the Plan?
If you
enroll in the Plan, you will:
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Eliminate
the costs normally associated with the purchase or our common stock
including brokerage and service fees. We will pay any such fees
charged by the Administrator.
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Receive
a 2% discount from the average of the daily high and low sales price of
our common stock on the New York Stock Exchange for all shares purchased
pursuant to the Plan
directly from
us
.
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Enjoy
the convenience of having all or a portion of your cash dividends
automatically reinvested in additional shares of common stock including
amounts that would result in the purchase of fractional
shares.
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Be
provided with the flexibility of making optional cash investments of $100
to $10,000 in any calendar quarter to buy additional shares of common
stock. You may make these optional cash investments on a
regular or occasional basis.
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Simplify
your record keeping by receiving periodic statements which will reflect
all current activity in your account, including purchases, sales and
latest balances.
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Retain
the ability through a directive to the Administrator to sell or transfer
all or a portion of the shares of common stock held in your
account.
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4. Are
there any disadvantages to the Plan?
In
evaluating the potential advantages of the Plan, prospective Plan participants
should also consider possible disadvantages of the Plan. A
participant must make an investment decision to participate in the Plan and to
purchase common stock prior to the date the purchase price is
determined. See Question 13 below. Unless we specifically
provide otherwise, a participant may only terminate participation with respect
to a given dividend if such termination is given five days prior to the record
date for such dividend. See Question 19. The market price
of the common stock may fluctuate between the time you make an investment
decision to participate in the Plan and the time at which common stock is
purchased. Finally, you must be aware of the income tax consequences
of participation in the Plan (summarized under Question 33 below), including the
rule that you will be treated for federal income tax purposes as having received
on each dividend payment date a distribution equal to the fair market value of
the common stock purchased plus any cash actually distributed. You
will likely be taxed on the discount from the market price for our common stock
when you acquire shares directly from us with reinvested cash
dividends.
ADMINISTRATION
5. Who
will administer the Plan?
National
City Bank, a registered transfer agent, or such other entity as we may
designate, will serve as the Administrator of the Plan. The
Administrator (a) acts as your agent, (b) keeps records of all Plan accounts,
(c) sends your account statements to you, (d) buys and, at your direction, sells
all shares of common stock under the Plan, and (e) performs other duties
relating to the Plan.
You
should direct all correspondence and inquiries concerning the Plan to the
Administrator as follows:
By
Mail:
Winthrop
Dividend Reinvestment and Stock Purchase Plan
c/o
National City Bank, Dept. 5352
Reinvestment
Services
P.O. Box
94946
Cleveland,
Ohio 44101-4946
By
Overnight Mail or Courier:
Winthrop Dividend Reinvestment and
Stock Purchase Plan
c/o National City Bank, Dept.
5352
Reinvestment Services
3
rd
Floor –
North Annex
4100 W. 150
th
Street
Cleveland, Ohio 44135
Be sure
to include a reference to Winthrop Realty Trust in your
correspondence.
By
Telephone:
Shareholder
customer service, including sale of shares:
(800)
622-6757 (within the United States and Canada)
(216)
257-8663 (outside the United States and Canada)
An
automated voice response system is available 24 hours a day, seven days a
week.
Customer
service representatives are available 8:00 a.m.-5:00 p.m. U.S. eastern time each
business day. A foreign language service for more than 140 languages
is available.
TDD:
(800) 622-5571. A telecommunications device for the hearing impaired
is available.
By
Internet:
The
Administrator will promptly respond to all messages forwarded on the
Internet. The Administrator's Internet address is
www.nationalcity.com/shareholderservices
. The
Administrator’s e-mail address is
shareholder.inquiries@nationalcity.com
.
We may
replace the Administrator with a successor Administrator at any
time. The Administrator may resign as Administrator of the Plan at
any time. In either such case, we will appoint a successor
Administrator, and will notify you of such change.
ELIGIBILITY
AND PARTICIPATION
6. Am
I eligible to participate in the Plan?
General.
All
existing holders of record and beneficial owners of common stock can participate
in the Plan. If you hold your shares in your own name, you may
participate in the Plan immediately. If you are a beneficial owner
whose shares are registered in any name other than your own (e.g., in a broker’s
“street name” or in the name of a bank nominee) and you want to participate in
the Plan, you must request that your bank or broker transfer to your name all
shares of common stock for which dividend reinvestment is desired, or enroll on
your behalf.
Legal
Restrictions.
You may not participate in the Plan if it would
be unlawful for you to do so in the jurisdiction where you are a citizen or
reside. If you are a citizen or resident of a country other than the
United States, you should confirm that by participating in the Plan you will not
violate local laws governing, among other things, taxes, currency and exchange
controls, stock registration and foreign investments.
Exclusion from Plan for Short-Term
Trading.
You should not use the Plan to engage in short-term
trading activities that could change the normal trading volume of the common
stock. In such case, we may prevent you from participating in the
Plan.
Exclusion from Plan at our
Election.
Notwithstanding any other provisions in this
prospectus, we reserve the right to prevent you from participating in the Plan
for any reason. It is in our sole discretion to exclude you from
participation in the Plan.
Exceeding the Ownership Limitation
Set Forth in Our Charter.
For us to qualify as a
real estate investment trust for federal income tax purposes, no more than 50%
in value of our outstanding stock may be actually and/or constructively owned by
five or fewer individuals (as defined in the Internal Revenue Code to include
certain entities) during the last half of a taxable year or during a
proportionate part of a shorter taxable year (the "Closely-Held Requirement"),
and our common stock must be beneficially owned by 100 or more persons during at
least 335 days of a taxable year or during a proportionate part of a shorter
taxable year (the "100 Shareholder Requirement"). Because we expect
to continue to qualify as a real estate investment trust, our by-laws contain an
ownership restriction (the "Ownership Limitation"), which is intended to help
ensure compliance with these requirements, that no holder of our stock may own,
or be deemed to own by virtue of any of the attribution rules of the Internal
Revenue Code, more than 9.8% of our outstanding beneficial
interests. Our board of trustees may exempt a shareholder from the
Ownership Limitation if such shareholder presents evidence satisfactory to the
board of trustees or our tax counsel that the ownership by such shareholder will
not then or in the future jeopardize our status as a real estate investment
trust.
Any
purchase of shares of our common stock under the Plan, whether through the
reinvestment of dividends or optional cash investments, will be void,
ab initio,
if such purchase
would result in a violation of the Ownership Limitation, Closely-Held
Requirement or 100 Shareholder Requirement. If your purchase is
voided, then you will receive either the dividends that were to be reinvested in
cash and/or a refund of your optional cash payment (in either case without
interest).
7. How
do I enroll in the Plan?
You may
complete and sign an Enrollment Form (enclosed with this prospectus and also
available from the Administrator) and mail it to the Administrator at the
address listed in Question 5. If shares of common stock are
registered in more than one name (such as joint tenants, trustees, etc.), all
registered holders must sign the Enrollment Form. Once you enroll in
the Plan, you will remain enrolled until you withdraw from the Plan or we
terminate the Plan.
If you
are a beneficial owner whose shares are registered in any name other than your
own (e.g., in a broker’s “street name” or in the name of a bank nominee) and you
want to participate in the Plan, you must request that your bank or broker
transfer to your name all shares of common stock for which dividend reinvestment
is desired, or enroll on your behalf.
8.
When will the
investment of cash dividends begin?
The
Administrator will begin to reinvest dividends that you would otherwise receive
on the first dividend payment date after receipt of your Enrollment Form,
provided the Administrator receives your Enrollment Form before the record date
set for the related dividend payment. Once you enroll in the Plan,
you will remain enrolled in the Plan until you withdraw from the Plan or we
terminate the Plan.
Yes. You
may change or terminate your participation in the Plan at any time by sending
written notification to the Administrator at the address set forth in
Question 5. The Administrator must receive any such change
before the record date for a dividend payment in order for such change to become
effective for that dividend payment. The Administrator also must
receive any change in the number of shares of common stock that you have
designated for cash dividend payment before the record date for a dividend
payment in order to reinvest for such change to be effective on the next
dividend payment date.
Except as
provided in the last sentence of this paragraph, you will not incur any costs in
connection with the establishment or administration of the Plan or purchases
under the Plan, all of which will be borne by us. This includes fees
charged by the Administrator, if any, relating to changes in your reinvestment
election and requests for stock certificates. However, if you enroll
in the plan through your bank or broker, you may incur fees to your bank or
broker which will not be borne by us.
If you
request that the Administrator sell shares acquired through the Plan, you will
be charged a transaction fee of $15.00 and a trading fee which is currently
$.035 per share. This fee will be deducted from the proceeds of your sale. The
fee structure is subject to change. If there are changes to the fee
structure, you will be notified in advance of implementation.
PURCHASES
11. How
are shares purchased under the Plan?
The
number of shares of common stock that will be purchased for your account will
depend on the total amount to be invested for your benefit (the sum of the
amount of your cash dividend to be reinvested and any optional cash investment
you elect to make) and the applicable price per share at which purchases are
made. Each participant will be credited with that number of shares of common
stock (including fractions computed to three decimal places) equal to the total
amount to be invested, divided by the applicable price per share. The
price per share will be determined as described under Question 13
below.
The
Administrator will purchase shares of our common stock with dividend proceeds to
be reinvested and all optional cash investments, at our discretion, either
directly from us from our authorized but unissued shares of common stock, or on
the open market, or by a combination of these two options. To the
extent that shares are purchased from us, additional funds received by us will
be used for general company purposes. It is our present intention for
the Plan to purchase all shares directly from us, although this is subject to
change at any time.
12. When
will shares of common stock be purchased through the Plan?
Purchases
of shares with reinvested cash dividends and optional cash investments will be
made on the date on which we pay cash dividends on our common stock or as soon
as practicable thereafter. We expect that the Administrator will make
all purchases within one week if shares are purchased on the open
market.
S
hares Purchased From
Us.
Shares of common stock purchased from us will be purchased
at a price equal to 98% (subject to change) of the average of the daily high and
low sales price for a share of common stock reported by the New York Stock
Exchange on the dividend payment date, or, if no trading occurs in shares of
common stock on the applicable dividend payment date, the first trading day
immediately preceding such dividend payment date for which trades are reported,
computed to four decimal places, if necessary.
Shares Purchased on the Open
Market.
Shares of common stock purchased by the Administrator
through open market or privately negotiated transactions will be purchased at a
price equal to the weighted average purchase price paid by the Administrator for
such shares, computed up to four decimal places, if necessary.
14. How
are optional cash investments made?
As a Plan participant, you may make
optional cash investments for the purchase of common stock. Payments must be at
least $100 and not more than $10,000 per quarter. You are not
obligated to make any optional cash investments, and if you choose to do so, you
need not pay the same amount each quarter.
Cash investments must be received at
least two business days before an investment date in order to be used to
purchase shares of common stock on that investment date. Optional
cash investments received later than two business days before an investment date
will be held, without interest, until the next investment date. Any
payments not yet invested will be refunded on written request received by the
Administrator not later than two business days before the next investment
date.
You may make optional cash investments
when you join the Plan by enclosing a check payable to the Administrator,
National City Bank, with the enrollment card. After you are enrolled,
please use the form provided with your account statement when you make optional
cash investments. Checks must be in U.S. funds and drawn on a United
States bank.
Shares purchased with optional cash
investments will be held by the Administrator and credited to your account under
the Plan. Thereafter, dividends on such shares will automatically be
fully reinvested in additional shares of common stock unless shares credited to
your account are withdrawn from the Plan by written notice to the Administrator,
which must be received before the applicable dividend record date.
A shareholder who is not a shareholder
of record and who owns shares of our common stock through a broker, bank or
other nominee should contact the broker, bank or other nominee regarding how to
make optional cash payments. The broker, bank or other nominee will submit
optional cash payments to the Plan Administrator on behalf of the beneficial
owner.
15. Are
there any limitations on optional cash investments?
Yes. A Plan participant, or a
beneficial owner on whose behalf a participant is acting, may make optional cash
investments during the period between each quarterly investment date of not less
than $100 nor more than $10,000. If a Plan participant, or a
beneficial owner on whose behalf a participant is acting, holds more than one
Plan account or shares of common stock under the same social security or tax
identification number, optional cash investments from the Plan participant or
beneficial owner will generally be aggregated and subject to the maximum
investment of $10,000. We will not consider or grant any request for
waiver of the maximum investment. A Plan participant, or a beneficial
owner on whose behalf a participant is acting, may use optional cash payments to
purchase a number of shares of common stock exceeding that number of shares
owned by the Plan participant or beneficial owner on the record
date.
During the period that an optional cash
investment is pending, the collected funds in the possession of the
Administrator may be invested in certain permitted investments. For
purposes of this Plan, “permitted investments” shall mean any money market
mutual funds registered under the Investment Company Act (including those of an
affiliate of the Administrator or for which the Administrator or any of its
affiliates provides management advisory or other services) consisting entirely
of (i) direct obligations of the United States of America, or (ii) obligations
fully guaranteed by the United States of America. The risk of any loss from such
permitted investments shall be the responsibility of the
Administrator. Investment income from such permitted investments
shall be retained by the Administrator.
If any optional cash contribution,
including payments by check or automatic withdrawal, is returned for any reason,
National City Bank will remove from the participant’s account any shares
purchased upon prior credit of such funds, and will sell these
shares. The Administrator may sell other shares in the account to
recover a returned funds fee for each optional cash contribution returned unpaid
for any reason and may sell additional shares as necessary to cover any market
loss incurred by the Administrator.
SALE
OR TRANSFER OF SHARES; WITHDRAWALS AND TERMINATION
Yes. If
you should ever want a stock certificate for all or a portion of the whole
shares of common stock acquired through the Plan, the Administrator will send
one to you upon your request. The Administrator will normally mail a
certificate to you within two business days of your request. The
Administrator will send you a check for any fractional shares of common stock if
you request issuance of a certificate for all of your shares held in book-entry
form. The price for fractional shares of common stock will be
determined by the Administrator by using 100% of the average of the closing
prices for a share of common stock reported by the New York Stock Exchange on
the five business days immediately prior to the transaction date.
Yes. You
may sell your shares of common stock at any time through the Administrator by
contacting the Administrator by telephone or in writing no later than 9:00 A.M.
Eastern time on the sale date. Your sale request will be processed
and your shares will, subject to market conditions and other factors, generally
be sold the Friday following the receipt of your sale request. Please
note that sale transactions may take longer depending on the volume of shares to
be sold. If it appears that the sale transaction will take longer
than 30 days to complete, the Administrator will notify you. All
requests are final. The Administrator cannot and does not guarantee
the actual sale date or price. The Administrator will mail a check to
you on the settlement date for your sale, which is three business days after
your shares have been sold. The proceeds payable to you will be
reduced by a transaction fee of $15.00 and a trading fee charged by the trading
desk which is currently $.035 per share, but is subject to change.
If you
prefer, you may sell your shares through a securities broker of your choice, in
which case you must request that your shares be transferred by the Administrator
to your broker. See Question 18 below for instructions on how to
transfer your shares. You could also request a certificate for your
shares and deliver the certificate to a broker if you prefer.
Yes. You
can transfer the ownership of all or part of your shares held in book-entry
form, whether by gift, private sale, or otherwise, by contacting the
Administrator and requesting a Transfer Form. You can then use this
form to indicate the number of shares to be transferred and provide the share
transfer and registration information requested by the Administrator and a stock
power. Transfers must be made in whole shares and signatures of all
registered holders will be required and must be “Medallion Guaranteed” by a
participating financial institution. A new Enrollment Form will be
required if the person to whom the shares are transferred desires to continue
participation in the Plan.
Yes. Participation
in the Plan is entirely voluntary. You may terminate your
participation at any time at no cost to you by notifying the Administrator by
telephone or in writing that you no longer wish to have your dividends
reinvested. To be effective for a given dividend payment, the
Administrator must receive notice at least five business days before the record
date for that dividend.
After a
termination notice is received, unless you provide sale instructions as
described in Question 17 above or request that a certificate be issued, the
Administrator will continue to maintain your share position in book-entry
form.
Each time
the Administrator makes an investment for your account, the Administrator will
send you a detailed statement that will provide the following information with
respect to your Plan account:
|
·
|
total
cash dividends received;
|
|
·
|
total
optional cash investments received;
|
|
·
|
total
number of shares of common stock purchased (including fractional
shares);
|
|
·
|
price
paid per share of common stock;
|
|
·
|
date
of stock purchases; and
|
|
·
|
total
number of shares of common stock in your Plan
account.
|
You
should retain these statements to determine the tax cost basis of the shares
purchased for your account under the Plan.
21. Will
I receive Annual Reports, Proxy Materials and other shareholder
communications?
Yes. You
will receive the same materials sent to all of our shareholders, including our
annual reports to shareholders, notices of shareholder meetings, and proxy
statements.
22. Where
will notices be sent?
The
Administrator will address all of its notices to you at your last known
address. You should notify the Administrator promptly in writing of
any change of address.
We
traditionally have paid dividends quarterly on the 15
th
day of
January, April, July and October. In addition, our board of trustees
may declare special dividends on our common stock from time to time based on our
operations and tax status. Neither we nor the Administrator will be
liable when conditions, including compliance with the rules and regulations of
the SEC, prevent the Administrator from buying shares of common stock or
interfere with the timing of such purchases.
24. What
happens if we issue a stock dividend or declare a stock split?
Any stock
dividend or split shares of common stock distributed by us on shares of common
stock held by the Administrator for your account will be credited to you and
held in book-entry form. The Plan statement immediately following the
stock dividend or stock split will indicate the number of shares of common stock
credited as a result of such dividend or split.
No. Certificates
for shares of common stock purchased through the Plan will not be issued to you
unless you request them. See Question 16 above. Otherwise,
shares of common stock purchased through the Plan will be held in book-entry
form.
No. Shares
of common stock held in book-entry form may not be assigned or pledged in any
way. If you wish to assign or pledge your whole shares of common
stock purchased through the Plan, you must request that certificates for those
shares be issued in your name as described in Question 16 above.
Yes. The
Plan may be amended, modified, suspended, or terminated at any time by our board
of trustees without the approval of participants in the Plan. Notice
of suspension, termination, modification, or material amendment will be sent to
all participants, who shall have the right at all times to terminate
participation in the Plan.
As
indicated in Question 9 above, you may change or terminate your participation in
the Plan at any time. Further, either we or the Administrator may
terminate your participation in the Plan at any time by written notice to
you.
If the
Plan is terminated and we establish another dividend reinvestment plan, you will
be automatically enrolled in such other dividend reinvestment plan and shares of
common stock credited to your account under the Plan will be automatically
credited to such other plan, subject to applicable laws. If the Plan
is terminated and we do not establish another dividend reinvestment plan, your
rights as a stockholder will not be effected in any way, and any book-entry
shares that you own will continue to be credited to your account unless you
specifically request otherwise.
No. Cash
dividends allocated for reinvestment through the Plan will be deposited in a
non-interest bearing account controlled by the Administrator pending
investment. Funds of participants will be commingled and aggregated
for purposes of investment.
We will send you proxy materials for
any meeting of shareholders in order to vote all whole shares of common stock
credited to your account. You may vote your shares of common stock
either by designating the vote of such shares by proxy or by voting such shares
in person at the meeting of shareholders.
Neither
we nor the Administrator or their agents or employees will be liable to any
participant in the Plan for any act or omission in good faith, including without
limitation any claims of liability (i) arising out of failure to terminate a
participant’s participation in the Plan prior to receipt of notice in writing,
(ii) with respect to the price at or terms upon which shares of common stock may
be purchased under the Plan or the times such purchases may be made, or (iii)
with respect to any fluctuation in the market value of the common stock before,
at, or after the time any such purchases may be made.
The
trading price of common stock may rise or fall during the period between the
payment of a cash dividend and the completion of the
purchase. Neither we nor the Administrator has any responsibility for
the market value of shares of common stock held in book-entry form or for
changes in our stock price.
Neither
we nor the Administrator can assure any participant of a profit or protect any
participant against a loss due to a decline in the value of the shares of common
stock acquired through the Plan. An investment in common stock is not
insured and is subject to significant market fluctuations.
Neither
we nor the Administrator provides any advice or makes any recommendations
regarding the purchase or sale of shares of common stock; all such decisions
must be made by you based upon your own research and judgment.
We and
the Administrator will interpret the Plan. Any such interpretations
will be final. The Plan and related Plan documentation will be
governed by and construed in accordance with the laws of the State of
Ohio.
32. How
are payments with "insufficient funds" handled?
In the
event that any check or other deposit is returned unpaid for any reason or your
pre-designated bank account does not have sufficient funds for an automatic
debit, the Administrator will consider the request for investment of that
purchase null and void. The Administrator will immediately remove
from your account any shares already purchased in anticipation of receiving
those funds and will sell such shares. If the net proceeds from the
sale of those shares are insufficient to satisfy the balance of the uncollected
amounts, the Administrator may sell additional shares from your account as
necessary to satisfy the uncollected balance. There is a $25.00 charge for any
check, electronic funds transfer or other deposit that is returned unpaid by
your bank. This fee will be collected by the Administrator through
the sale of the number of shares from your Plan account necessary to satisfy the
fee.
The
following summary is based upon United States federal income tax laws as of the
date of this Prospectus. Such laws are subject to change at any time,
possibly with retroactive effect. The discussion is limited to
certain federal income tax consequences to individual Plan participants who are
residents or citizens of the United States and assumes that all distributions
from us will be from our earnings and profits for federal income tax
purposes.
With
respect to reinvested dividends, you will be treated for federal income tax
purposes as having received a dividend in an amount equal to the fair market
value of shares of our common stock acquired with reinvested
dividends. In addition, if we acquire shares for your account on the
open market, you will be deemed to have received a dividend in the amount of any
brokerage commissions and other trading fees paid on your behalf. The
tax basis of shares of common stock acquired with reinvested dividends will
equal the fair market value of the shares on the date dividends are reinvested,
plus, if applicable, any brokerage commissions or other trading fees paid on
your behalf. Your holding period for shares acquired pursuant to the
Plan generally will begin on the day following the date of acquisition of such
shares for your account.
Based on
private letter rulings issued by the Internal Revenue Service (the “IRS”), it
appears that if you make an optional cash investment and have also elected to
reinvest dividends, then you will be treated with respect to your cash
investment as having received a dividend in the amount (if any) by which the
fair market value of the shares of our common stock purchased for your account
exceeds the amount of your optional cash investment. The amount of
such dividend, together with your optional cash investment, will be included in
your tax basis for the shares of our common stock purchased for your
account. If you make an optional cash investment and have not also
elected to reinvest dividends, then it appears that the amount (if any) by which
the fair market value of the shares of our common stock purchased for your
account over the amount of your optional cash investment should be taxable to
you as a dividend, and your tax basis in the shares purchased will simply equal
your optional cash investment. In either case, your holding period
for the shares purchased generally will begin on the day following the date of
acquisition of the shares of our common stock for your
account. Private letter rulings are not binding against the IRS
(except as to the taxpayers to whom the ruling are issued), and you should
consult your own tax advisor as to the tax consequences of purchasing shares of
our common stock under the Plan.
We intend
to take the position that any service fee paid by us to the Administrator on
behalf of Plan participants is not taxable to you as dividend
income. However, the IRS might disagree. In the event the
IRS successfully asserts a contrary position, you may be entitled to deduct the
amount of the service fee attributable to your Plan shares as a miscellaneous
itemized deduction, subject to applicable limitations.
Upon
withdrawal from or termination of the Plan, you may receive a cash payment in
lieu of any fractional share credited to your account. This payment
likely will be treated as an amount realized from the sale of the fractional
share, and you will recognize gain or loss equal to the difference between the
amount received for the fractional share equivalent and your tax basis in that
fractional share.
In
addition, you will recognize gain or loss when you sell shares acquired through
the Plan. The amount of your gain or loss will be the difference
between the amount that you receive for the shares, less brokerage commissions
and other trading fees (including, if applicable, the fee charged by the
Administrator), and your tax basis therefor.
We will
be required to withhold (currently at a rate of 28%) for federal income tax
purposes (“back-up withholding”) from all dividend payments to you if (i) you
fail to furnish us your taxpayer identification number (“TIN”), which is your
social security number, (ii) the IRS has notified us that the TIN
furnished by you is incorrect, (iii) the IRS notifies us that back-up
withholding should be commenced because you have failed to report interest or
dividends properly, or (iv) you have failed to certify, under penalties of
perjury, that you are not subject to back-up withholding. If you are
subject to back-up withholding, the Administrator will invest in shares of
common stock an amount equal to the dividends payable to you less the amount of
tax required to be withheld. Any amount withheld will be creditable
against your federal income tax liability.
Neither
we nor the Administrator is able to provide tax advice. The foregoing
is only a summary of some of the applicable United States federal income tax
provisions. This discussion is general in nature and does not cover foreign,
state, and local income tax consequences of participation in the Plan. You
should consult your own tax advisor regarding the tax consequences of
participation in the Plan or the disposal of your shares.
USE
OF PROCEEDS
We will use the net proceeds from the
sale of shares of our common stock issued under the Plan for working capital and
for other general purposes. We have no basis for estimating either
the number of shares of our common stock that ultimately will be sold pursuant
to the Plan or prices at which such shares will be sold.
We will
not receive any funds under the Plan from the purchase of shares of our common
stock in the open market by the Administrator.
EXPERTS
The
financial statements as of December 31, 2006 and for the year then ended before
the effects of the adjustments to retrospectively apply the change in accounting
resulting from the adoption of Statement of Financial Accounting Standards No.
160 (“SFAS 160”), “
Non-controlling Interests in
Consolidated Financial Statements, an amendment to ARB 51
”as described in
Note 2 and the adjustments to the 2006 earnings per share to retrospectively
apply the effect of the reverse stock split of the Company's Common Shares of
Beneficial Interest, (not separately included or incorporated by reference in
the Prospectus) have been audited by Deloitte & Touche LLP, an independent
registered public accounting firm. The adjustments to those financial
statements to retrospectively apply the change in accounting principle resulting
from the adoption of SFAS 160 as described in Note 2 and the adjustments to the
2006 earnings per share to retrospectively apply the effect of the reverse stock
split of the Company's Common Shares of Beneficial Interest have been audited by
PricewaterhouseCoopers LLP, an independent registered public accounting
firm. The consolidated financial statements as of December 31, 2006
and for the year then ended incorporated in this prospectus by reference to the
Current Report on Form 8-K dated August 27, 2009, have been so incorporated in
reliance on the reports of (i) Deloitte & Touche LLP solely with respect to
those financial statements before the effects of the adjustments to
retrospectively apply the change in accounting resulting from the adoption of
SFAS 160 as described in Note 2 and the adjustments to the 2006 earnings per
share to retrospectively apply the effect of the reverse stock split of the
Company's Common Shares of Beneficial Interest and (ii) PricewaterhouseCoopers
LLP solely with respect to the adjustments to those financial statements to
retrospectively apply the change in accounting resulting from the adoption of
SFAS 160 as described in Note 2 and the adjustments to the 2006 earnings per
share to retrospectively apply the effect of the reverse stock split of the
Company's Common Shares of Beneficial Interest, given on the authority of such
firms as experts in auditing and accounting.
The
financial statements as of December 31, 2008 and 2007 and for the years ended
December 31, 2008 and 2007 incorporated in this Prospectus by reference to
Winthrop Realty Trust's Current Report on Form 8-K dated August 27, 2009 and the
financial statement schedule and management's assessment of the effectiveness of
internal control over financial reporting (which is included in Management's
Report on Internal Control over Financial Reporting) incorporated in this
Prospectus by reference to the Annual Report on Form 10-K of Winthrop Realty
Trust as of December 31, 2008 and 2007 and for the years ended December 31, 2008
and 2007 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, an independent registered public accounting firm,
given on the authority of said firm as experts in auditing and
accounting.
The
financial statements of Lex-Win Concord LLC incorporated in this Prospectus by
reference to Winthrop Realty Trust's Current Report on Form 8-K dated August 27,
2009 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, an independent registered public accounting firm,
given on the authority of said firm as experts in auditing and
accounting.
On
November 1, 2008, our auditors, Tauber & Balser, P.C., combined with, and
changed their name to, Habif, Arogeti & Wynne, LLP. The financial
statements of the Chicago Properties (our Marc Realty joint venture) as of and
for the year ended December 31, 2007 incorporated in this prospectus by
reference to Winthrop Realty Trust’s Annual Report on Form 10-K for the year
ended December 31, 2008 have been so incorporated in reliance on the report of
Tauber & Balser, P.C., an independent registered public accounting firm,
given on the authority of said firm as experts in auditing and
accounting.
LEGAL
MATTERS
Certain
legal matters, including the legality of the securities offered hereby, have
been passed upon by Hahn Loeser & Parks LLP.
The SEC
allows us to “incorporate by reference” the information we file with them, which
means that we can disclose important information to you by referring you to
those documents. The information incorporated by reference is considered to be
part of this prospectus, and information that we file later with the SEC will
automatically update and supersede this information. We incorporate by reference
the following documents:
|
•
|
Annual
Report on Form 10-K for the year ended December 31, 2008 (with
respect to Items 6, 7, 7A and 8, as amended by the Current Report on Form
8-K filed on August 28, 2009);
|
|
•
|
Quarterly
Report on Form 10-Q for the quarter ended June 30,
2009;
|
|
•
|
Quarterly
Report on Form 10-Q for the quarter ended March 31,
2009;
|
|
•
|
Current
Reports on Form 8-K filed on August 28, 2009, August 7, 2009 (solely
with respect to Item 8.01), July 15, 2009, June 4, 2009, May 8, 2009
(solely with respect to Item 8.01), April 21, 2009, March 6, 2009 (solely
with respect to Items 1.01 and 8.01), February 13, 2009, and January 8,
2009; and
|
|
•
|
Our
Definitive Proxy Statement on Schedule 14A dated April 21,
2009.
|
All
documents filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended, which is commonly
referred to as the Exchange Act, after the date of this prospectus and prior to
the termination of the offering of all securities under this prospectus will
also be deemed to be incorporated by reference into this prospectus and to be a
part hereof.
You may
request a copy of these filings, at no cost, by writing or telephoning us at the
following address:
Beverly
Bergman, Director of Investor Relations
Winthrop
Realty Trust
7
Bulfinch Place, Suite 500
Boston,
MA 02114
(617) 570-4614
No
dealer, salesperson or any other person has been authorized to give any
information or to make any representations other than those contained in or
incorporated by reference in this prospectus in connection with the offer made
by this prospectus, and, if given or made, such information or representations
must not be relied upon as having been authorized by us. This prospectus does
not constitute an offer to sell, or a solicitation of an offer to buy any
security other than the securities offered hereby, nor does it constitute an
offer to sell or a solicitation of any offer to buy any of the shares offered by
anyone in any jurisdiction in which such offer or solicitation is not
authorized, or in which the person making such offer or solicitation is not
qualified to do so, or to any person to whom it is unlawful to make such offer
or solicitation.
Neither
the delivery of this prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that the information contained herein is
correct as of any time subsequent to the date hereof.
INDEMNIFICATION
Our
declaration of trust provides that our trustees will not be individually liable
for any obligation or liability incurred by or on our behalf or by trustees for
our benefit and on our behalf. Subject to the specific conditions
contained therein, our declaration of trust also obligates us to indemnify our
trustees for, and pay or reimburse them for expenses incurred related to, claims
and liabilities which they may become subject to by reason of having served as a
trustee.
We have
acquired insurance indemnifying our trustees and officers in certain cases and
with certain deductible limitations.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Set forth
below is an estimate of the approximate amount of the fees and expenses (other
than underwriting discounts and commissions) incurred in connection with the
sale and distribution of the securities being registered hereby. All
amounts are estimated except the Commission registration fee:
Securities
and Exchange Commission registration fee
|
|
$
|
532
|
|
Printing
and engraving costs
|
|
|
15,000
|
*
|
Accounting
fees and expense
|
|
|
20,000
|
*
|
Legal
fees and expenses
|
|
|
10,000
|
*
|
Miscellaneous
|
|
|
5,000
|
*
|
TOTAL
|
|
$
|
50,532
|
*
|
ITEM
15. INDEMNIFICATION OF TRUSTEES AND OFFICERS.
Pursuant
to Article III, Section 3.3 of our Amended and Restated Declaration of
Trust, each trustee, officer, employee and agent of the registrant is entitled
to indemnification for any loss, cost, liability or obligation in connection
with our property or affairs except for his own acts as constitute bad faith,
willful misfeasance or willful disregard of his duties.
We have
acquired insurance indemnifying our trustees and officers in certain cases and
with certain deductible limitations.
The
following exhibits are included as part of this Registration
Statement:
Exhibit
No.
|
|
Exhibit
|
3.1
|
|
Amended
and Restated Declaration of Trust as of May 21, 2009 - Incorporated by
reference to Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q
for the quarter ended June 30, 2009.
|
|
|
|
3.2
|
|
Bylaws
of the Registrant as restated on November 8, 2005 - Incorporated by
reference to Exhibit 3.1 to the Registrant’s Form 8-K filed November 10,
2005.
|
|
|
|
3.3
|
|
Amendment
to Bylaws adopted January 10, 2007 - Incorporated by reference to Exhibit
3.1 to the Registrant’s Form 8-K filed January 16, 2007
|
|
|
|
3.4
|
|
Amendment
to Bylaws adopted February 27, 2007 - Incorporated by reference to Exhibit
3.1 to the Registrant’s Form 8-K filed March 2, 2007
|
|
|
|
4.1
|
|
Form
of certificate for Shares of Beneficial Interest - Incorporated by
reference to Exhibit 4.1 to the Trust’s Annual Report on Form 10-K for the
year ended December 31, 2008.
|
|
|
|
4.2
|
|
Agreement
of Limited Partnership of First Union REIT L.P., dated as of January 1,
2005 - Incorporated by reference to Exhibit 4.1 to the Registrant’s Form
8-K filed January 4, 2005
|
|
|
|
4.3
|
|
Amended
and Restated Certificate of Designations for Series B-1 Cumulative
Convertible Redeemable Preferred Shares of Beneficial Interest (“Series
B-1 Certificate of Designations”) - Incorporated by reference to Exhibit
4.1 to the Registrant’s Form 8-K filed June 21, 2005.
|
|
|
|
4.4
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Amendment
No. 1 to Series B-1 Certificate of Designations – Incorporated by
reference to the Registrant’s Form 8-K filed November 13,
2007
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5.1
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Opinion
of Hahn Loeser & Parks LLP regarding legality of securities being
registered
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23.1
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Consent
of Deloitte & Touche LLP
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23.2
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Consent
of PricewaterhouseCoopers LLP
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23.3
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Consent
of PricewaterhouseCoopers LLP
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23.4
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Consent
of Hahn Loeser & Parks LLP (included in Exhibit
5.1)
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23.5
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Consent
of Tauber & Balser, PC
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24
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Power
of Attorney (included on signature
page)
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ITEM
17. UNDERTAKINGS.
(a)
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The
undersigned Registrant hereby
undertakes:
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(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933, as amended (the “Securities Act”);
(ii) to
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective Registration Statement; and
Provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement will be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
will be deemed to be the initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to trustees, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a trustee, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
trustee, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(d) That,
for the purpose of determining liability under the Securities Act to any
purchaser:
(1) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement;
and
(2) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x)
for the purpose of providing the information required by section 10(a) of
the Securities Act shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided
in Rule 430B, for liability purposes of the issuer and any person that is
at that date an underwriter, such date shall be deemed to be a new effective
date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Boston, State of Massachusetts, on September 1, 2009.
WINTHROP
REALTY TRUST
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By:
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/s/ MICHAEL
L. ASHNER
______________________________
Michael
L. Ashner
Chief
Executive Officer (Principal Executive Officer)
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By:
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/s/ THOMAS
C. STAPLES
______________________________
Thomas
C. Staples
Chief
Financial Officer (Principal Financial Officer)
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Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated.
Name
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Title
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Date
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/s/
MICHAEL L. ASHNER
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Michael
L. Ashner
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Trustee
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September
1, 2009
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*
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Thomas
McWilliams
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Trustee
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September
1, 2009
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*
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Arthur
Blasberg, Jr.
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Trustee
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September
1, 2009
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*
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Howard
Goldberg
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Trustee
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September
1, 2009
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*
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Steven
Zalkind
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Trustee
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September
1, 2009
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*
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Bradley
Scher
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Trustee
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September
1, 2009
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*
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Carolyn
Tiffany
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Trustee
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September
1, 2009
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*
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Lee
Seidler
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Trustee
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September
1, 2009
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*
By:
Michael
Ashner
As
Attorney-in-Fact pursuant to a Power of
Attorney
previously granted
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POWER OF ATTORNEY
KNOW ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Michael L. Ashner and Carolyn Tiffany, and each or
either of them, his or her true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this registration statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, or their or his substitutes or
substitute, may lawfully do or cause to be done by virtue hereof. This Power of
Attorney may be signed in several counterparts.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated.
Name
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Title
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Date
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/s/
Michael L. Ashner
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Trustee
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August
31, 2009
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Michael
L. Ashner
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/s/
Arthur Blasberg, Jr.
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Trustee
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August
31, 2009
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Arthur
Blasberg, Jr.
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/s/
Howard Goldberg
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Trustee
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August
31, 2009
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Howard
Goldberg
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/s/
Bradley Scher
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Trustee
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August
31, 2009
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Bradley
Scher
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/s/
Lee Seidler
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Trustee
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August
31, 2009
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Lee
Seidler
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/s/
Carolyn Tiffany
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Trustee
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August
31, 2009
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Carolyn
Tiffany
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Trustee
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August
31, 2009
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Steven
Zalkind
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