As filed with the Securities and Exchange Commission on August 1, 2022
Registration No. 333-266298
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1
to
Form S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Cottonwood Communities, Inc.
(Exact Name of Registrant as Specified in its Charter)
| Maryland | 6798 | 61-1805524 | ||
| (State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification Number) |
1245 Brickyard Rd., Suite 250
Salt Lake City, Utah 84106
(801) 278-0700
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
Daniel Shaeffer
Chief Executive Officer
Cottonwood Communities, Inc.
1245 Brickyard Rd., Suite 250
Salt Lake City, Utah 84106
(801) 278-0700
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
With copies to:
| Darryl Steinhause, Esq. Laura K. Sirianni, Esq. Kerry E. Johnson, Esq. 4141 Parklake Avenue, Suite 300 Raleigh, North Carolina 27612-2350 (919) 786-2000 |
Josh Schneiderman, Esq. Snell & Wilmer L.L.P. 350 South Grand Ave., Suite 3100 Los Angeles, California 90071 Tel: (213) 929-2500 |
Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable after the effectiveness of this registration statement and the satisfaction or waiver of all other conditions to the closing of the merger described herein.
If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. ☐
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. ☐
If this form is a post-effective amendment filed pursuant to Rule 462(d) 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. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☒ | Smaller reporting company | ☒ | |||
| Emerging growth company | ☒ | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☒
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ☐
Exchange Act Rule 14d-1(d) (Cross-Border Issuer Third Party Tender Offer) ☐
The Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment that specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
PART II
Information Not Required in the Prospectus
Item 20. Indemnification of Directors and Officers
Subject to the significant conditions set forth below, Cottonwood Communities, Inc. (the “Company”, “we”, “our” or the “registrant”) has included in its charter a provision limiting the liability of its directors and officers to the Company and its stockholders for money damages except for liability resulting from (a) actual receipt of an improper benefit or profit in money, property or services or (b) active and deliberate dishonesty established by a final judgment as being material to the cause of action.
Subject to the significant conditions set forth below, the charter also provides that the Company shall indemnify a director, officer or the advisor or any of its affiliates against any and all losses or liabilities reasonably incurred by them (other than when sued by or in right of the Company) in connection with or by reason of any act or omission performed or omitted to be performed on behalf of the Company in such capacity.
Under the Company’s charter, the Company shall not indemnify a director, the advisor or any of the advisor’s affiliates (each an “Indemnitee”) for any liability or loss suffered by an Indemnitee, nor shall it exculpate an Indemnitee, unless all of the following conditions are met: (i) an Indemnitee has determined, in good faith, that the course of conduct that caused the loss or liability was in the best interests of the Company; (ii) the Indemnitee was acting on behalf of or performing services for the Company; (iii) such liability or loss was not the result of (A) negligence or misconduct by the Indemnitee, excluding an Independent Director, or (B) gross negligence or willful misconduct by an Independent Director; and (iv) such indemnification or agreement to hold harmless is recoverable only out of the Company’s net assets and not from its stockholders. Notwithstanding the foregoing, an Indemnitee shall not be indemnified by the Company for any losses, liability or expenses arising from or out of an alleged violation of federal or state securities laws by such party unless one or more of the following conditions are met: (i) there has been a successful adjudication on the merits of each count involving alleged securities law violations as to the particular Indemnitee; (ii) such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to the particular Indemnitee; and (iii) a court of competent jurisdiction approves a settlement of the claims against a particular Indemnitee and finds that indemnification of the settlement and the related costs should be made, and the court considering the request for indemnification has been advised of the position of the Securities and Exchange Commission (the “SEC”) and of the published position of any state securities regulatory authority in which securities of the Company were offered or sold as to indemnification for violations of securities laws.
The charter provides that the advancement of Company funds to an Indemnitee for legal expenses and other costs incurred as a result of any legal action for which indemnification is being sought is permissible only if (in addition to the procedures required by Maryland law) all of the following conditions are satisfied: (i) the legal action relates to acts or omissions with respect to the performance of duties or services on behalf of the Company; (ii) the legal action is initiated by a third party who is not a common stockholder or the legal action is initiated by a common stockholder acting in his or her capacity as such and a court of competent jurisdiction specifically approves such advancement; and (iii) the Indemnitee undertakes to repay the advanced funds to the Company, together with the applicable legal rate of interest thereon, if the Indemnitee is found not to be entitled to indemnification.
It is the position of the SEC that indemnification of directors and officers for liabilities arising under the Securities Act is against public policy and is unenforceable pursuant to Section 14 of the Securities Act.
The Company also purchases and maintains insurance on behalf of all of its directors and executive officers against liability asserted against or incurred by them in their official capacities with the Company, whether or not the Company is required or has the power to indemnify them against the same liability.
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Item 21. Exhibits and Financial Statement Schedules.
(a) The following is a list of exhibits filed as part of this registration statement.
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| * | Filed herewith. |
Item 22. Undertakings
(a) The Company undertakes 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 (the “Act”); (ii) to reflect in the prospectus any facts or events arising after the effective date of this 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 SEC 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 (iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
(b) The Company undertakes (i) that, for the purpose of determining any liability under the 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, and (ii) 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.
(c) The Company undertakes that, for the purpose of determining liability under the Act to any purchaser, if the Company is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than
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prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; 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 first use, 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 date of first use.
(d) For the purpose of determining liability of the Company under the Act to any purchaser in the initial distribution of the securities, the Company undertakes that in a primary offering of securities pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the Company will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: (i) any preliminary prospectus or prospectus of the Company relating to the offering required to be filed pursuant to Rule 424, (ii) any free writing prospectus relating to the offering prepared by or on behalf of the Company or used or referred to by the Company, (iii) the portion of any other free writing prospectus relating to the offering containing material information about the Company or its securities provided by or on behalf of the Company, and (iv) any other communication that is an offer in the offering made by the Company to the purchaser.
(e) The undersigned Company hereby undertakes as follows: that prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form.
(f) The Company undertakes that every prospectus: (i) that is filed pursuant to the immediately preceding paragraph, or (ii) that purports to meet the requirements of Section 10(a)(3) of the Securities Act, and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes 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.
(g) Insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company 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 Act and will be governed by the final adjudication of such issue.
(h) The undersigned Company hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of Form S-4, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
(i) The undersigned Company hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Salt Lake City, State of Utah, on August 1, 2022.
| COTTONWOOD COMMUNITIES, INC. | ||
| By: | /s/ Adam Larson | |
| Adam Larson Chief Financial Officer | ||
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 |
Title |
Date | ||
| * Daniel Shaeffer |
Chief Executive Officer and Director (principal executive officer) |
August 1, 2022 | ||
| * Susan Hallenberg |
Chief Accounting Officer and Treasurer (principal accounting officer) |
August 1, 2022 | ||
| /s/ Adam Larson Adam Larson |
Chief Financial Officer (principal financial officer) |
August 1, 2022 | ||
| * Chad Christensen |
Executive Chairman of the Board and Director | August 1, 2022 | ||
| * Jonathan Gardner |
Director | August 1, 2022 | ||
| * John Lunt |
Director | August 1, 2022 | ||
| * Philip White |
Director | August 1, 2022 | ||
| *By: | /s/ Adam Larson | |
| Adam Larson Chief Financial Officer, Attorney-In-Fact | ||
Exhibit 5.1
| DLA Piper LLP (US) 4141 Parklake Avenue, Suite 300 Raleigh, North Carolina 27612-2350 www.dlapiper.com
T 919.786.2000 F 919.786.2200 |
August 1, 2022
Board of Directors
Cottonwood Communities, Inc.
1245 Brickyard Road, Suite 250
Salt Lake City, Utah 84106
| Re: | Registration Statement on Form S-4 (File No. 333-266298) |
Ladies and Gentlemen:
We serve as counsel to Cottonwood Communities, Inc., a Maryland corporation (the “Company”), in connection with the registration under the Securities Act of 1933, as amended (the “Act”), of 4,335,367 shares of Class A common stock, $0.01 par value per share, of the Company (the “Shares”) to be issued by the Company in connection with the merger (the “Merger”) of Cottonwood Multifamily Opportunity Fund, Inc., a Maryland corporation (“CMOF”), with and into Cottonwood Communities GP Subsidiary, LLC, a Maryland limited liability company and a wholly owned subsidiary of the Company (“Merger Sub”), pursuant to the Agreement and Plan of Merger, dated as of July 8, 2022 (the “Merger Agreement”), by and among the Company, Merger Sub, CMOF, Cottonwood Residential O.P., LP and Cottonwood Multifamily Opportunity Fund O.P., LP. The Shares are covered by the above-referenced Registration Statement, and all amendments thereto (the “Registration Statement”), filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Act. This opinion (the “Letter”) is being provided at your request in connection with the filing of the Registration Statement.
In connection with our representation of the Company, and as a basis for the opinions hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (collectively, the “Documents”):
| 1. | The Registration Statement and the related form of Proxy Statement/Prospectus included therein in the form in which it was transmitted to the Commission under the Act; |
| 2. | The charter of the Company (the “Charter”), certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”); |
| 3. | The Bylaws of the Company, certified as of the date hereof by an officer of the Company; |
| 4. | A certificate of the SDAT as to the good standing of the Company, dated as of a recent date; |
August 1, 2022
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| 5. | Resolutions (the “Board Resolutions”) adopted by the Board of Directors of the Company, relating to, among other matters, the approval of the Merger Agreement, the Merger and the issuance of the Shares, certified as of the date hereof by an officer of the Company; |
| 6. | The Merger Agreement; |
| 7. | A certificate executed by an officer of the Company, dated as of the date hereof; and |
| 8. | Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein. |
In expressing the opinions set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding.
4. All Documents submitted to us as originals are authentic. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all such Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All statements and information contained in the Documents are true and complete. There has been no oral or written modification or amendment to the Documents, or waiver of any provision of the Documents, by action or omission of the parties or otherwise.
5. The Merger will be duly approved by all necessary corporate action on the part of CMOF. Articles of Merger relating to the Merger (the “Articles of Merger”) will be filed with and accepted for record by the SDAT.
6. None of the Shares will be issued or transferred in violation of Article VI of the Charter or any other restriction or limitation on transfer and ownership of shares of stock of the Company contained in the Charter.
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
1. The Company is validly existing as a corporation and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.
2. The Shares have been duly authorized and, upon delivery of the Shares in the manner contemplated by the Board Resolutions, the Merger Agreement, the Articles of Merger, the Charter and the Registration Statement, will be validly issued, fully paid and nonassessable.
August 1, 2022
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The foregoing opinions are limited to the substantive laws of the State of Maryland and we do not express any opinion herein concerning any other law. We express no opinion as to compliance with the securities (or “blue sky”) laws of the State of Maryland. The opinions expressed herein are subject to the effect of judicial decisions that may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.
We assume no obligation to supplement this Letter if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinions expressed herein after the date hereof.
This Letter is being furnished to you for submission to the Commission as an exhibit to the Registration Statement.
We hereby consent to the filing of this Letter as an exhibit to the Registration Statement and to the use of the name of our firm therein under the heading “Legal Matters.” In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Act.
Very truly yours,
/s/ DLA Piper LLP (US)
Exhibit 8.1
| DLA Piper LLP (US) 444 West Lake Street, Suite 900 Chicago, Illinois 60606-0089 T 312.368.4000 F 312.236.7516 W www.dlapiper.com |
August 1, 2022
Cottonwood Communities, Inc.
1245 Brickyard Road, Suite 250
Salt Lake City, Utah 84106
Ladies and Gentlemen:
We have acted as counsel to Cottonwood Communities, Inc., a Maryland corporation (“Company”), in connection with that certain Agreement and Plan of Merger, dated as of July 8, 2022 (the “Merger Agreement”), by and among the Company, Cottonwood Communities GP Subsidiary, LLC, a Maryland limited liability company and a wholly owned subsidiary of the Company (“Merger Sub”), Cottonwood Residential O.P., LP, a Delaware limited partnership and a subsidiary of Merger Sub, Cottonwood Multifamily Opportunity Fund, Inc., a Maryland corporation (“CMOF”), and Cottonwood Multifamily Opportunity Fund O.P., LP, a Delaware limited partnership and subsidiary of CMOF. This opinion letter is being delivered to be filed as an exhibit to the registration statement on Form S-4 (File No. 333-266298), which contains the proxy statement/prospectus of the Company and CMOF filed with the Securities and Exchange Commission (the “SEC”) on July 22, 2022, as amended and supplemented through the date hereof (the “Form S-4”).
As described in the Form S-4, and pursuant to the Merger Agreement, the parties thereto intend to merge (the “Merger”) CMOF with and into Merger Sub, with Merger Sub surviving the Merger as a wholly owned subsidiary of the Company.
In connection with Section 8.2(e) of the Merger Agreement, you have requested our opinion that for U.S. federal income tax purposes the Merger will qualify as a reorganization under Section 368(a)(1) of the Internal Revenue Code of 1986, as amended (the “Code”).
BACKGROUND
Upon the terms and subject to the conditions set forth in the Merger Agreement, CMOF shall merge with and into Merger Sub. Following the Merger, Merger Sub will continue as the surviving entity and a wholly owned subsidiary of Company, and the separate corporate existence of CMOF will cease. The Company will maintain its existence as a real estate investment trust under Section 856 of the Code.
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DOCUMENTS REVIEWED
In rendering the opinion expressed herein, we have examined and relied on: (i) the Merger Agreement, (ii) the Form S-4, (iii) certificates of representations, each of which is dated August 1, 2022, provided by Company and CMOF, respectively (the “Certificates of Representations”), and (iv) such other documents, records and instruments as we have deemed necessary in order to enable us to render the opinion expressed herein.
OPINION AND GENERAL LIMITATIONS
The opinion set forth in this letter is based on relevant provisions of the Code, Treasury Regulations promulgated thereunder, interpretations of the foregoing as expressed in court decisions, legislative history, and existing administrative rulings and practices of the Internal Revenue Service (“IRS”) (including its practices and policies in issuing private letter rulings, which are not binding on the IRS except with respect to a taxpayer that receives such a ruling), all as of the date hereof. These provisions and interpretations are subject to change, which may or may not be retroactive in effect, and which may result in modifications of our opinion. Our opinion does not foreclose the possibility of a contrary determination by the IRS or a court of competent jurisdiction, or of a contrary determination by the IRS or the Treasury Department in regulations or rulings issued in the future. An opinion of counsel with respect to an issue represents counsel’s best professional judgment as to the outcome on the merits of the issue, if the issue were to be litigated, but an 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 the issue or that a court will not sustain such a position asserted by the IRS.
In our examination of the foregoing documents, we have assumed that (i) all documents reviewed by us are original documents, or true, correct and complete copies of original documents, and have not been subsequently amended, (ii) the signatures on each original document are genuine, (iii) each party who executed the document had proper authority and capacity, (iv) all representations and statements set forth in such documents are true, correct and complete and will remain true, correct and complete at all times up to and including the effective time of the Merger, (v) the Merger will be consummated in accordance with the terms of the Merger Agreement, (vi) all obligations imposed by any such documents on the parties thereto have been or will be performed or satisfied in accordance with their terms, and (vii) the parties at all times will operate in accordance with the method of operation described in their organizational documents and the Form S-4.
For purposes of rendering the opinion expressed herein, we have also assumed that the representations contained in the Certificates of Representations are true, correct and complete and will remain true, correct and complete at all times up to and including the effective time of the Merger, that all parties related to the Merger have complied with and will continue to comply with the covenants and agreements set forth in the Certificates of Representations and the Merger
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Agreement, and that each representation that is stated in the Certificates of Representations to be made to the best of the knowledge of the parties related to the Merger is accurate and complete and will remain accurate and complete at all times up to and including the effective time of the Merger without regard to such qualification as to the best of knowledge of any of the party related to the Merger.
Our opinion could be affected if any of the facts set forth in the Merger Agreement, the Form S-4 or the Certificates of Representations or other documents, records and instruments we have reviewed are or become inaccurate or if there is a failure to comply with any of the covenants and agreements set forth in the Merger Agreement or the Certificates of Representations.
Based upon and subject to the foregoing, we are of the opinion that the merger of CMOF with and into Merger Sub will qualify as a reorganization within the meaning of Section 368(a)(1) of the Code.
The opinion expressed herein represents our conclusions as to the application of the U.S. federal income tax laws existing as of the date hereof. We can give no assurance that legislative enactments, administrative changes or judicial decisions that would modify or supersede our opinion will not be forthcoming. The opinion expressed herein represents our conclusions based upon the assumptions, documents, facts, representations, covenants and agreements referred to above. Any material amendments to such documents, changes in any significant facts or inaccuracy of such assumptions, representations, covenants or agreements could affect the accuracy of our opinion. Although we have made such inquiries and performed such investigations as we have deemed necessary to fulfill our professional responsibilities as counsel, we have not undertaken an independent investigation of all of the facts referred to in this letter and the Certificates of Representations.
The opinion expressed herein is (i) limited to those matters expressly covered, and no opinion is to be implied in respect of any other matter, (ii) as of the date hereof, and (iii) rendered by us at the request of Company in connection with the Form S-4. We assume no obligation to update our opinion in the event that there is either a change in the legal authorities, facts or documents on which we have relied in rendering our opinion. This opinion letter may not be relied on by any other person, other than CMOF, or for any other purpose, without our prior written consent, which may be withheld in our sole discretion; provided that this opinion may be relied upon by persons entitled to do so pursuant to applicable provisions of federal securities laws. We hereby consent to the filing of this opinion letter as an exhibit to the Form S-4 and to the reference to DLA Piper LLP (US) under the captions “U.S. Federal Income Tax Considerations” and “Legal Matters” in the Form S-4. In giving this consent, however, we do not admit thereby that we are an “expert” within the meaning of the Securities Act of 1933, as amended.
| Very truly yours, |
| /s/ DLA Piper LLP (US) |
| DLA Piper LLP (US) |
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Exhibit 8.2
August 1, 2022
Cottonwood Multifamily Opportunity Fund, Inc.
1245 Brickyard Road, Suite 250
Salt Lake City, Utah 84106
Ladies and Gentlemen:
We have acted as counsel to Cottonwood Multifamily Opportunity Fund, Inc. (“CMOF”), in connection with that certain Agreement and Plan of Merger, dated as of July 8, 2022 (the “Merger Agreement”), by and among Cottonwood Communities, Inc., a Maryland corporation (“CCI”), Cottonwood Communities GP Subsidiary, LLC, a Maryland limited liability company and a wholly owned subsidiary of CCI (“Merger Sub”), Cottonwood Residential O.P., LP, a Delaware limited partnership and a subsidiary of Merger Sub, CMOF, and Cottonwood Multifamily Opportunity Fund O.P., LP, a Delaware limited partnership and subsidiary of CMOF. This opinion letter is being delivered to be filed as an exhibit to the registration statement on Form S-4 (File No. 333-266298), which contains the proxy statement/prospectus of CCI and CMOF filed with the Securities and Exchange Commission (the “SEC”) on July 22, 2022, as amended and supplemented through the date hereof (the “Form S-4”).
As described in the Form S-4, and pursuant to the Merger Agreement, the parties thereto intend to merge (the “Merger”) CMOF with and into Merger Sub, with Merger Sub surviving the Merger as a wholly owned subsidiary of CCI.
In connection with Section 8.3(e) of the Merger Agreement, you have requested our opinion that for U.S. federal income tax purposes the Merger will qualify as a reorganization under Section 368(a)(1) of the Internal Revenue Code of 1986, as amended (the “Code”).
BACKGROUND
Upon the terms and subject to the conditions set forth in the Merger Agreement, CMOF shall merge with and into Merger Sub. Following the Merger, Merger Sub will continue as the surviving entity and a wholly owned subsidiary of CCI, and the separate corporate existence of CMOF will cease. CCI will maintain its existence as a real estate investment trust under Section 856 of the Code.
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DOCUMENTS REVIEWED
In rendering the opinion expressed herein, we have examined and relied on: (i) the Merger Agreement, (ii) the Form S-4, (iii) certificates of representations, each of which is dated August 1, 2022, provided by CCI and CMOF, respectively (the “Certificates of Representations”), and (iv) such other documents, records and instruments as we have deemed necessary in order to enable us to render the opinion expressed herein.
OPINION AND GENERAL LIMITATIONS
The opinion set forth in this letter is based on relevant provisions of the Code, Treasury Regulations promulgated thereunder, interpretations of the foregoing as expressed in court decisions, legislative history, and existing administrative rulings and practices of the Internal Revenue Service (“IRS”) (including its practices and policies in issuing private letter rulings, which are not binding on the IRS except with respect to a taxpayer that receives such a ruling), all as of the date hereof. These provisions and interpretations are subject to change, which may or may not be retroactive in effect, and which may result in modifications of our opinion. Our opinion does not foreclose the possibility of a contrary determination by the IRS or a court of competent jurisdiction, or of a contrary determination by the IRS or the Treasury Department in regulations or rulings issued in the future. An opinion of counsel with respect to an issue represents counsel’s best professional judgment as to the outcome on the merits of the issue, if the issue were to be litigated, but an 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 the issue or that a court will not sustain such a position asserted by the IRS.
In our examination of the foregoing documents, we have assumed that (i) all documents reviewed by us are original documents, or true, correct and complete copies of original documents, and have not been subsequently amended, (ii) the signatures on each original document are genuine, (iii) each party who executed the document had proper authority and capacity, (iv) all representations and statements set forth in such documents are true, correct and complete and will remain true, correct and complete at all times up to and including the effective time of the Merger, (v) the Merger will be consummated in accordance with the terms of the Merger Agreement, (vi) all obligations imposed by any such documents on the parties thereto have been or will be performed or satisfied in accordance with their terms, and (vii) the parties at all times will operate in accordance with the method of operation described in their organizational documents and the Form S-4.
For purposes of rendering the opinion expressed herein, we have also assumed that the representations contained in the Certificates of Representations are true, correct and complete and will remain true, correct and complete at all times up to and including the effective time of the Merger, that all parties related to the Merger have complied with and will continue to comply with the covenants and agreements set forth in the Certificates of Representations and the Merger
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Agreement, and that each representation that is stated in the Certificates of Representations to be made to the best of the knowledge of the parties related to the Merger is accurate and complete and will remain accurate and complete at all times up to and including the effective time of the Merger without regard to such qualification as to the best of knowledge of any of the party related to the Merger.
Our opinion could be affected if any of the facts set forth in the Merger Agreement, the Form S-4 or the Certificates of Representations or other documents, records and instruments we have reviewed are or become inaccurate or if there is a failure to comply with any of the covenants and agreements set forth in the Merger Agreement or the Certificates of Representations.
Based upon and subject to the foregoing, we are of the opinion that the merger of CMOF with and into Merger Sub will qualify as a reorganization within the meaning of Section 368(a)(1) of the Code.
The opinion expressed herein represents our conclusions as to the application of the U.S. federal income tax laws existing as of the date hereof. We can give no assurance that legislative enactments, administrative changes or judicial decisions that would modify or supersede our opinion will not be forthcoming. The opinion expressed herein represents our conclusions based upon the assumptions, documents, facts, representations, covenants and agreements referred to above. Any material amendments to such documents, changes in any significant facts or inaccuracy of such assumptions, representations, covenants or agreements could affect the accuracy of our opinion. Although we have made such inquiries and performed such investigations as we have deemed necessary to fulfill our professional responsibilities as counsel, we have not undertaken an independent investigation of all of the facts referred to in this letter and the Certificates of Representations.
The opinion expressed herein is (i) limited to those matters expressly covered, and no opinion is to be implied in respect of any other matter, (ii) as of the date hereof, and (iii) rendered by us at the request of CMOF in connection with the Form S-4. We assume no obligation to update our opinion in the event that there is either a change in the legal authorities, facts or documents on which we have relied in rendering our opinion. This opinion letter may not be relied on by any other person, other than CCI, or for any other purpose, without our prior written consent, which may be withheld in our sole discretion; provided that this opinion may be relied upon by persons entitled to do so pursuant to applicable provisions of federal securities laws. We hereby consent to the filing of this opinion letter as an exhibit to the Form S-4 and to the reference to Snell & Wilmer LLP under the captions “U.S. Federal Income Tax Considerations” and “Legal Matters” in the Form S-4. In giving this consent, however, we do not admit thereby that we are an “expert” within the meaning of the Securities Act of 1933, as amended.
| Very truly yours,
/s/ Snell & Wilmer L.L.P. Snell & Wilmer L.L.P. |
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Exhibit 8.3
| DLA Piper LLP (US) 444 West Lake Street, Suite 900 Chicago, Illinois 60606-0089 T 312.368.4000 F 312.236.7516 W www.dlapiper.com |
August 1, 2022
Cottonwood Multifamily Opportunity Fund, Inc.
1245 Brickyard Road Suite 250
Salt Lake City, UT 84106
| Re: | Tax Opinion for REIT Status |
Ladies and Gentlemen:
We have acted as counsel to Cottonwood Communities, Inc., a Maryland corporation (the “Company”), in connection with the merger (the “Merger”) described in that certain Agreement and Plan of Merger, dated as of July 8, 2022 (the “Merger Agreement”), by and among the Company, Cottonwood Communities GP Subsidiary, LLC, a Maryland limited liability company and a wholly owned subsidiary of the Company (“Merger Sub”), Cottonwood Residential O.P., LP, a Delaware limited partnership and a subsidiary of the Merger Sub, Cottonwood Multifamily Opportunity Fund, Inc., a Maryland corporation (“CMOF”), and Cottonwood Multifamily Opportunity Fund O.P., LP, a Delaware limited partnership and subsidiary of CMOF. This opinion letter is being delivered to be filed as an exhibit to the registration statement on Form S-4 (File No. 333-266298), which contains the proxy statement/prospectus of the Company and CMOF filed with the Securities and Exchange Commission (the “SEC”) on July 22, 2022, as amended and supplemented through the date hereof (the “Form S-4). All capitalized terms used but not defined herein shall have the meanings ascribed to them in the Merger Agreement.
You have requested our opinion on the qualification of the Company as a real estate investment trust (“REIT”) under Sections 856-860 of the Internal Revenue Code of 1986, as amended (the “Code”). This opinion letter is furnished at the request of the Company so that the Form S-4 may fulfill the requirements of Item 601(b)(8) of Regulation S-K, 17 C.F.R. ss. 229.601(b)(8).
In connection with rendering the opinions expressed below, we have examined originals (or copies identified to our satisfaction as true copies of the originals) of the following documents (collectively, the “Reviewed Documents”):
| (1) | the Company’s charter in effect as of the date hereof (the “Articles”); |
| (2) | the Company’s bylaws in effect as of the date hereof (the “Bylaws”); |
| (3) | the Form S-4; |
| (4) | the Merger Agreement; and |
| (5) | such other documents as may have been presented to us by the Company from time to time. |
In addition, we have relied upon the factual representations contained in the certificate issued by the Company dated as of the date hereof, executed by a duly appointed officer, setting forth certain representations relating to the organization and proposed operation of the Company and its subsidiaries (the “Certificate”).
For purposes of our opinions, we have not made an independent investigation of all of the facts set forth in the documents we reviewed. We consequently have assumed that the information presented in such documents or otherwise furnished to us accurately and completely describes all material facts relevant to our opinions. No facts have come to our attention, however, that would cause us to question the accuracy and completeness of such facts or documents. Any representation or statement in any document upon which we rely that is made “to the best of our knowledge” or otherwise similarly qualified is assumed to be correct. Any alteration of such facts may adversely affect our opinions.
In our review, we have assumed, with the consent of the Company, that all of the representations and statements of a factual nature set forth in the documents we reviewed are true and correct, and all of the obligations imposed by any such documents on the parties thereto have been and will be performed or satisfied in accordance with their terms. We have also assumed the genuineness of all signatures, the proper execution of all documents, the authenticity of all documents submitted to us as originals, the conformity to originals of documents submitted to us as copies, and the authenticity of the originals from which any copies were made.
The opinions set forth are this letter is based on relevant provisions of the Code, the regulations promulgated thereunder by the United States Department of the Treasury (“Regulations”) (including proposed and temporary Regulations), and interpretations of the foregoing as expressed in court decisions, the legislative history, and existing administrative rulings and practices of the Internal Revenue Service (“IRS”), including its practices and policies in issuing private letter rulings, which are not binding on the IRS except with respect to a taxpayer that receives such a ruling, all as of the date hereof.
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In rendering these opinions, we have assumed that the transactions contemplated by the Reviewed Documents have been or will be consummated in accordance with the terms and provisions of such documents, and that such documents accurately reflect the material facts of such transactions. In addition, the opinions are based on the assumption that the Company and its subsidiaries will each be operated in the manner described in the Articles, the Bylaws, and the other organizational documents of each such entity and their subsidiaries, as the case may be, and all terms and provisions of such agreements and documents will be complied with by all parties thereto.
It should be noted that statutes, regulations, judicial decisions and administrative interpretations are subject to change at any time and, in some circumstances, with retroactive effect. A material change that is made after the date hereof in any of the foregoing bases for our opinion could affect our conclusions. Furthermore, if the facts vary from those relied upon (including if any representations, warranties, covenants or assumptions upon which we have relied are inaccurate, incomplete, breached or ineffective), our opinion contained herein could be inapplicable. Moreover, the qualification and taxation of the Company as a REIT depends upon its ability to meet, through actual annual operating results, distribution levels and diversity of share ownership and the various qualification tests imposed under the Code, the results of which will not be reviewed by the undersigned. Accordingly, no assurance can be given that the actual results of the operations of the Company for any one taxable year will satisfy such requirements.
Based upon and subject to the foregoing, we are of the opinion that commencing with its taxable year ended December 31, 2019, the Company has been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code, and its actual method of operation through the date of this opinion and its intended method of operation through the end of the Hypothetical Short Year (as defined below) has enabled the Company, and will enable the Company, to meet the requirements for qualification and taxation as a REIT through the end of the Hypothetical Short Year, determined: (i) as if the Company’s taxable year beginning January 1, 2022 ended on the closing of the Merger (the interval of time between January 1, 2022 and the Closing, the “Hypothetical Short Year”), and (ii) without regard to the distribution requirement described in Section 857(a)(1) of the Code with respect to the Hypothetical Short Year.
The foregoing opinion expressed herein relates to the satisfaction of the REIT qualification requirements only for the taxable year ended December 31, 2019 through the end of the Hypothetical Short Year. No opinion is expressed regarding the Company’s qualification as a REIT for any taxable year or portion thereof beginning after the Hypothetical Short Year. We note that the REIT qualification requirements (including those relating to a REIT’s gross income, assets, and distributions) are normally tested at the end of, or for, a calendar quarter or calendar year, and that the Company’s taxable year beginning January 1, 2022, will not actually end for U.S. federal income tax purposes until after the closing of the Merger. Accordingly, we assume for purposes of this opinion that the Company will not take or omit to take any action if such action or omission, as the case may be, would cause any of the representations in the Certificate to be untrue or is otherwise inconsistent with the qualification of the Company for taxation as a REIT, in each case with respect to the Hypothetical Short Year or any prior year.
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Based upon and subject to the foregoing, we are also of the opinion that the discussion in the Form S-4, under the heading “U.S. Federal Income Tax Considerations”, to the extent that it constitutes matters of federal income tax law or legal conclusions relating thereto, is correct in all material respects.
The foregoing opinions are limited to the matters specifically discussed herein, which are the only matters to which the Company has requested our opinion pursuant to the Merger Agreement. Other than as expressly stated above, we express no opinion on any issue relating to the Company or to any investment therein.
For a discussion of the legal principles that we analyzed in reaching the opinions set forth in this letter, we incorporate by reference the discussions of federal income tax issues, which we assisted in preparing, in the Form S-4 under the heading “U.S. Federal Income Tax Considerations”.
Please note that an opinion of counsel represents only counsel’s best legal judgment, and has no binding effect or official status of any kind, and that no assurance can be given that contrary positions may not be taken by the IRS or that a court considering the issues would not hold otherwise.
This opinion letter has been prepared solely for your use in connection with the filing of the Form S-4 and speaks as of the date hereof. We undertake no responsibility by reason of this opinion letter or otherwise to advise you or any other person of any changes in our opinion subsequent to the delivery of this opinion letter. This opinion letter may not be distributed, quoted in whole or in part or otherwise reproduced in any document, or filed with any governmental agency without our prior written consent. This opinion letter may not be relied on by any other person, or for any other purpose, without our prior written consent, which may be withheld in our sole discretion; provided that this opinion may be relied upon by persons entitled to do so pursuant to applicable provisions of federal securities laws. We hereby consent to the filing of this opinion letter as an exhibit to the Form S-4 and to the reference to DLA Piper LLP (US) under the captions “U.S. Federal Income Tax Considerations” and “Legal Matters” in the Form S-4. In giving this consent, however, we do not admit thereby that we are an “expert” within the meaning of the Securities Act of 1933, as amended.
| Very truly yours, |
| /s/ DLA Piper LLP (US) |
| DLA Piper LLP (US) |
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