<SEC-DOCUMENT>0001532619-13-000068.txt : 20131107 <SEC-HEADER>0001532619-13-000068.hdr.sgml : 20131107 <ACCEPTANCE-DATETIME>20131106180130 ACCESSION NUMBER: 0001532619-13-000068 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20131106 ITEM INFORMATION: Other Events ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20131107 DATE AS OF CHANGE: 20131106 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Power REIT CENTRAL INDEX KEY: 0001532619 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 453116572 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-54560 FILM NUMBER: 131197724 BUSINESS ADDRESS: STREET 1: 301 WINDING ROAD CITY: OLD BETHPAGE STATE: NY ZIP: 11804 BUSINESS PHONE: 212-750-0373 MAIL ADDRESS: STREET 1: 301 WINDING ROAD CITY: OLD BETHPAGE STATE: NY ZIP: 11804 </SEC-HEADER> <DOCUMENT> <TYPE>8-K <SEQUENCE>1 <FILENAME>form8knov062013.txt <TEXT> SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 FORM 8-K Current Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 POWER REIT (Exact Name of Registrant as Specified in Its Charter) Maryland (State or Other Jurisdiction of Incorporation) 000-54560 45-3116572 (Commission File Number) (I.R.S. Employer Identification No.) 301 Winding Road, Old Bethpage, New York 11804 (Address of Principal Executive Offices) (Zip Code) (212) 750-0373 (Registrant's Telephone Number, Including Area Code) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFT|R 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) SECTION 8: OTHER EVENTS Item 8.01 On November 6, 2013, Power REIT ("Power REIT") filed a draft prospectus supplement to its previously filed and currently effective shelf registration statement on Form S-3 (File No. 333-180693) (the "Registration Statement"). Power REIT intends to issue, from time to time, up to 150,000 shares of 7.75% Series A Cumulative Redeemable Perpetual Preferred Stock, par value $0.001 per share, with liquidation preference value of $25.00 per share, (the "Series A Shares"). The legal and tax opinions of Leech Tishman Fuscaldo & Lampl, LLC relating to the Series A Shares being offered are filed as Exhibit 5.1 and Exhibit 8.1 respectively to this Current Report on Form 8-K. Power REIT's audit firm, Gibbons & Kawash, A.C., has also provided its consent, which is filed as Exhibit 23.1 to this Current Report on Form 8-k. The above disclosure shall not constitute an offer to sell or the solicitation of an offer to buy the securities discussed herein, nor shall there be any offer, solicitation, or sale of the securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. SECTION 9 FINANCIAL STATEMENTS AND EXHIBITS Item 9.01 Financial Statements and Exhibits (d) Exhibits Exhibit No. Description 5.1 Legal Opinion and consent of Leech Tishman Fuscaldo & Lampl, LLC, dated November 6, 2013 8.1 Tax Opinion and consent of Leech Tishman Fuscaldo & Lampl, LLC, dated November 6, 2013 23.1 Consent of Gibbons & Kawash A.C., independent registered public accounting firm, dated November 6, 2013 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Date: November 6, 2013 POWER REIT By: /s/ David H. Lesser Name: David H. Lesser Title: CEO and Chairman </TEXT> </DOCUMENT> <DOCUMENT> <TYPE>EX-5 <SEQUENCE>2 <FILENAME>exhibit51prosupnov062013.txt <TEXT> Exhibit 5.1 November 6, 2013 Board of Trustees Power REIT 301 Winding Road Old Bethpage, NY 11804 Ladies and Gentlemen: We have acted as special counsel to Power REIT, a Maryland real estate investment trust (the "Company"), in connection with the offering of Series A Cumulative Redeemable Perpetual Preferred Stock, par value $0.001 per share, with liquidation preference value of $25.00 per share, (the "Series A Shares") of the Company, not to exceed 150,000 shares, pursuant to a preliminary prospectus supplement dated November 6, 2013 (the "Prospectus Supplement"), which supplements a prospectus dated May 10, 2012 (the "2012 Prospectus") included in the Company's Registration Statement on Form S-3 (Reg. No. 333-180693) (the "Registration Statement"). The opinions set forth in this letter are based solely upon our review of, as submitted to us, the following documents (the "Reviewed Documents"): (a) the Prospectus Supplement; (b) the 2012 Prospectus; (c) the Company's Articles of Amendment and Restatement of Declaration of Trust; (d) the Company's Bylaws; and (e) the resolutions adopted by written consent of all of the Company's Trustees on November 5, 2013. In addition, we have made such investigations of published sources of law as we have deemed appropriate based solely on the Reviewed Documents for the purpose of providing the opinions hereinafter expressed. In our examination of the Reviewed Documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies. We have also assumed that the representations of officers and employees of the Company are true and correct as to questions of fact. This opinion letter is based as to matters of law solely on applicable provisions of Title 8 of the Corporations and Associations Article of the Annotated Code of Maryland, as amended, (the "Maryland REIT Law") and applicable provisions of the Maryland General Corporation Law, as amended (the "MGCL"). As used herein, the terms "Maryland REIT Law" and "MGCL" include the statutory provisions contained therein, all applicable provisions of the Maryland Constitution and reported judicial decisions interpreting these laws. It should be noted that the Maryland REIT Law and MGCL are subject to changes, which may be retroactive. Any changes may materially modify our conclusions herein. We assume no responsibility to either advise you of any changes in the Maryland REIT Law or MGCL or to update this opinion letter from time to time. We express no opinion herein as to any other laws, statutes, regulations, or ordinances. Moreover, there can be no assurance that the State of Maryland or a court will accept our conclusions contained in this opinion. Based upon, subject to and limited by the foregoing, we are of the opinion that the Series A Shares, when issued and sold by the Company in accordance with the terms of the offering against payment in full to the Company of the consideration set forth therein, will be duly authorized, validly issued, fully paid and nonassessable. This opinion is being furnished solely in connection with the filing of the Prospectus Supplement, and speaks as of the date hereof. We disclaim any undertaking to advise you of any subsequent changes of the facts stated or assumed herein or any subsequent changes in applicable law. We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and the references to this firm under the caption "Legal Matters" in the Prospectus Supplement and the 2012 Prospectus. In giving such consent, we do not thereby admit that we are an "expert" within the meaning of the Securities Act of 1933, as amended. Very truly yours, /s/ Leech Tishman Fuscaldo & Lampl, LLC </TEXT> </DOCUMENT> <DOCUMENT> <TYPE>EX-8 <SEQUENCE>3 <FILENAME>exhibit81prosupnov062013.txt <TEXT> Exhibit 8.1 November 6, 2013 Board of Trustees Power REIT 301 Winding Road Old Bethpage, NY 11804 Ladies and Gentlemen: We have acted as special tax counsel to Power REIT, a Maryland real estate investment trust (the "Company"), in connection with the offering of Series A Cumulative Redeemable Perpetual Preferred Stock, par value $0.001 per share, with liquidation preference value of $25.00 per share, (the "Series A Shares") of the Company, not to exceed 150,000 shares, pursuant to a preliminary prospectus supplement dated November 6, 2013 (the "Prospectus Supplement"), which supplements a prospectus dated May 10, 2012 (the "2012 Prospectus") included in the Company's Registration Statement on Form S-3 (Reg. No. 333-180693) (the "Registration Statement"). You have requested our opinion as to the accuracy of the discussions contained under the section entitled "Additional Material United States Federal Income Tax Considerations" in the Prospectus Supplement and the section entitled "Material United States Federal Income Tax Considerations" in the 2012 Prospectus. In rendering our opinion, we have considered applicable provisions of the Internal Revenue Code of 1986, as amended, (the "Code"), its legislative history, judicial authority, current administrative rulings and practice, and existing and proposed Treasury Regulations, all as in effect and existing on the date hereof (collectively referred to as the "Federal Income Tax Laws"). It should be noted that the Federal Income Tax Laws are subject to changes, which may be retroactive. Any changes may materially modify our conclusions herein. We assume no responsibility to either advise you of any changes in the Federal Income Tax Laws or to update this opinion letter from time to time. We express no opinion herein as to any other laws, statutes, regulations, or ordinances. Moreover, there can be no assurance that the Internal Revenue Service (the "IRS") or a court will accept our conclusions contained in this opinion. Although we believe that our conclusions as stated below will be sustained if challenged, our opinion is not binding on the IRS or the courts, and is not a guarantee that the IRS will not assert a contrary position with respect to such issue or that a court will not sustain a contrary position asserted by the IRS. For purposes of this opinion letter, we reviewed (1) Amendment No. 1 to the Registration Statement dated May 10, 2012, (2) the 2012 Prospectus, and (3) the Prospectus Supplement. We have assumed that all of the representations and statements set forth in such documents are true and correct, and all of the obligations imposed by any such documents on the parties thereto have been and will continue to be performed or satisfied in accordance with their terms. We also have assumed the genuineness of all signatures, the proper execution of all documents, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies). This opinion letter is given, and all statements herein are made, in the context of the foregoing. For purposes of rendering our opinion, we have not made an independent investigation of the facts set forth in any of the above-referenced documents, including the 2012 Prospectus and the Prospectus Supplement. We consequently have relied upon representations and information presented in such documents. Based upon, subject to and limited by the foregoing, it is our opinion that the discussion set forth in the Prospectus Supplement under the section entitled "Additional Material United States Federal Income Tax Considerations" and the discussion set forth in the 2012 Prospectus under the section entitled "Material United States Federal Income Tax Considerations" represents our opinion as to the matters discussed therein as of the date of this opinion. This opinion letter has been prepared solely for your use in connection with the filing of the Prospectus Supplement and speaks as of the date hereof. We assume no responsibility to advise you of any changes in the facts as stated or assumed herein, or any subsequent changes in applicable law. We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and the references to this firm under the caption "Legal Matters" in the Prospectus Supplement and the 2012 Prospectus. In giving such consent, we do not thereby admit that we are an "expert" within the meaning of the Securities Act of 1933, as amended. Very truly yours, /s/ Leech Tishman Fuscaldo & Lampl, LLC </TEXT> </DOCUMENT> <DOCUMENT> <TYPE>EX-23 <SEQUENCE>4 <FILENAME>exhibit231prosupnov062013.txt <TEXT> Exhibit 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We hereby consent to the incorporation by reference in the Prospectus Supplement of Power REIT relating to the issuance of Series A Cumulative Redeemable Perpetual Preferred Stock, and in the Registration Statement (No. 333-180693) of which the Prospectus Supplement is a part, of our report dated March 29, 2013 relating to our audit of Power REIT's consolidated financial statements, which also appear in Power REIT's Annual Report on Form 10-K for the year ended December 31, 2012. We also consent to the reference to us under the heading "Experts" in the Prospectus Supplement. /s/ Gibbons & Kawash, A.C. Charleston, West Virginia November 6, 2013 </TEXT> </DOCUMENT> </SEC-DOCUMENT>