UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 23, 2012
NATIONAL RETAIL PROPERTIES, INC.
(Exact name of registrant as specified in its charter)
Maryland | 001-11290 | 56-1431377 | ||
State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) | ||
450 South Orange Avenue Suite 900 Orlando, Florida |
32801 | |||
(Address of principal executive offices) | (Zip Code) |
Registrants telephone number, including area code (407) 265-7348
Not applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 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)) |
Item 3.03. | Material Modification to Rights of Security Holders. |
On February 23, 2012, National Retail Properties, Inc. (the Company) filed with the Stated Department of Assessments and Taxation of the State of Maryland Articles Supplementary, dated February 21, 2012 (the Articles Supplementary), to the Companys Amended and Restated Articles of Incorporation, as amended (the Articles of Incorporation), establishing and fixing the rights and preferences of 115,000 shares of the Companys 6.625% Series D Cumulative Redeemable Preferred Stock, par value $0.01 per share (the Series D Preferred Stock).
The Series D Preferred Stock will be redeemable at par at the Companys election on or after February 23, 2017, will pay a 6.625% annual dividend and will have a liquidation preference of $2,500.00 per share. With respect to the payment of dividends and the distribution of the Companys assets upon liquidation, dissolution or winding up, the Series D Preferred Stock will rank (i) senior to the Companys common stock, (ii) on a parity with the Companys outstanding shares of 7.375% Series C Cumulative Redeemable Preferred Stock, par value $0.01 per share, and with any series of preferred stock issued by the Company in the future that by their terms rank on a parity with the Series D Preferred Stock, and (iii) junior to all of the Companys and its subsidiaries existing and future indebtedness and any equity securities that the Company may issue that by their terms rank senior to the Series D Preferred Stock. Unless full dividends on the Series D Preferred Stock and any other class of the Companys stock ranking on parity with the Series D Preferred Stock as to dividends have been paid or funds set aside for payment therefor for all past dividend periods, no dividend or distribution may be declared or paid or funds set aside for payment on the Companys common stock or any other capital stock that rank junior to the Series D Preferred Stock as to dividends and none of the Companys common stock, junior stock or parity stock as to dividends may be redeemed. In the event of the Companys liquidation, dissolution or winding up, the holders of the Series D Preferred Stock are entitled to be paid out of the Companys assets legally available for distribution to its stockholders a liquidation preference of $2,500.00 per share, plus an amount equal to any accrued and unpaid dividends to the date of payment before any distribution of assets is made to holders of the Companys common stock or any other capital stock that rank junior to the Series D Preferred Stock as to liquidation preference.
On and after February 23, 2017, the Company may, at its option, redeem the Series D Preferred Stock, in whole or from time to time in part, by paying $2,500.00 per share, plus any accrued and unpaid dividends to, but not including, the date of redemption (the Optional Redemption Right). Upon the occurrence of a Change of Control (as defined below), the Company may, at its option, redeem the Series D Preferred Stock, in whole or in part and within 120 days after the first date on which such Change of Control occurred, by paying $2,500.00 per share, plus any accrued and unpaid dividends to, but not including, the date of redemption.
Upon the occurrence of a Change of Control, holders of Series D Preferred Stock will have the right (unless, prior to the Change of Control Conversion Date (as defined below), the Company has provided or provides notice of its election to redeem their Series D Preferred Stock) to convert some or all of their Series D Preferred Stock (the Change of Control Conversion Right) into a number of shares of common stock per Series D Preferred Stock to be converted equal to the lesser of:
| the quotient obtained by dividing (i) the sum of the $2,500.00 liquidation preference plus the amount of any accrued and unpaid dividends to, but not including, the Change of Control Conversion Date (unless the Change of Control Conversion Date is after a record date for a Series D Preferred Stock dividend payment and prior to the corresponding Series D Preferred Stock distribution payment date, in which case no additional amount for such accrued and unpaid dividend will be included in this sum) by (ii) the Common Stock Price (as defined below); and |
| 187.06, subject to certain adjustments. |
A Change of Control is when, the following have occurred and are continuing:
| the acquisition by any person, including any syndicate or group deemed to be a person under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of purchases, mergers or other acquisition transactions of shares of our Company entitling that person to exercise more than 50% of the total voting power of all shares of our Company entitled to vote generally in elections of directors (except that such person will be deemed to have beneficial ownership of all securities that such person has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition); and |
| following the closing of any transaction referred to in the bullet point above, neither we nor the acquiring or surviving entity has a class of common securities (or ADRs representing such securities) listed on the New York Stock Exchange (the NYSE), the NYSE Amex Equities or The NASDAQ Stock Market, or listed or quoted on an exchange or quotation system that is a successor thereto. |
The Change of Control Conversion Date is the date the Series D Preferred Stock are to be converted, which will be a business day that is no fewer than 20 days nor more than 35 days after the date on which the Company provides the notice of occurrence of a Change of Control described above to the holders of Series D Preferred Stock.
The Common Stock Price will be: (1) the amount of cash consideration per share of Common Stock, if the consideration to be received in the Change of Control by the holders of the Common Stock is solely cash; and (2) the average of the closing prices for the Common Stock on the NYSE for the ten consecutive trading days immediately preceding, but not including, the effective date of the Change of Control, if the consideration to be received in the Change of Control by the holders of the Common Stock is other than solely cash.
The foregoing is a summary and is not complete. The full terms of the Series D Preferred Stock are set forth in the Articles Supplementary filed as Exhibit 3.1 hereto and incorporated herein by reference. The terms of the depositary shares, each representing a 1/100th interest in a share of Series D Preferred Stock, are set forth in the Deposit Agreement, dated February 23, 2012, among the Company, American Stock Transfer & Trust Company, LLC, as depositary, and the holders from time to time of depositary receipts issued thereunder (the Deposit Agreement). The Deposit Agreement is filed as Exhibit 4.1 to the Registration Statement on Form 8-A filed by the Company on February 22, 2012 and is incorporated herein by reference.
Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On February 23, 2012, National Retail Properties, Inc. (the Company) filed with the Stated Department of Assessments and Taxation of the State of Maryland Articles Supplementary, dated February 21, 2012 (the Articles Supplementary), to the Companys Amended and Restated Articles of Incorporation, as amended (the Articles of Incorporation), establishing and fixing the rights and preferences of 115,000 shares of the Companys 6.625% Series D Cumulative Redeemable Preferred Stock, par value $0.01 per share (the Series D Preferred Stock). A copy of the Articles Supplementary to the Companys Articles of Incorporation is filed as Exhibit 3.1 to this Current Report on Form 8-K, and is incorporated herein by reference. For additional information about the terms and conditions of the Series D Preferred Stock, see Item 3.03 above which is incorporated herein by reference.
Item 9.01. | Financial Statements and Exhibits. |
(d) | Exhibits. |
Exhibit |
Description | |
3.1 | Articles Supplementary Establishing and Fixing the Rights and Preferences of 6.625% Series D Cumulative Redeemable Preferred Stock, par value $0.01 per share, dated February 21, 2012. | |
4.1 | Deposit Agreement, among the Registrant, American Stock Transfer & Trust Company, as Depositary, and the holders of depositary receipts (filed as Exhibit 4.2 to the Registration Statement on Form 8-A filed on February 22, 2012 and incorporated herein by reference). | |
4.2 | Specimen Certificate for National Retail Property, Inc.s 6.625% Series D Cumulative Redeemable Preferred Stock, par value $0.01 per share (filed as Exhibit 4.2 to the Registration Statement on Form 8-A filed on February 22, 2012 and incorporated herein by reference). | |
5.1 | Opinion of Pillsbury Winthrop Shaw Pittman LLP as to the legality of the securities being issued by the registrant. | |
8.1 | Opinion of Pillsbury Winthrop Shaw Pittman LLP regarding certain material tax issues relating to the registrant. |
23.1 | Consent of Pillsbury Winthrop Shaw Pittman LLP to the filing of the Exhibit 5.1 herewith (included in its opinion filed as Exhibit 5.1). | |
23.2 | Consent of Pillsbury Winthrop Shaw Pittman LLP to the filing of the Exhibit 8.1 herewith (included in its opinion filed as Exhibit 8.1). |
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.
NATIONAL RETAIL PROPERTIES, INC. | ||
By: | /s/ Kevin B. Habicht | |
Name: | Kevin B. Habicht | |
Title: | Executive Vice President, Chief Financial Officer, Assistant Secretary and Treasurer |
Dated: February 23, 2012
EXHIBIT INDEX
Exhibit |
Description | |
3.1 | Articles Supplementary Establishing and Fixing the Rights and Preferences of 6.625% Series D Cumulative Preferred Stock, par value $0.01 per share, dated February 21, 2012. | |
4.1 | Deposit Agreement, among the Registrant, American Stock Transfer & Trust Company, as Depositary, and the holders of depositary receipts (filed as Exhibit 4.2 to the Registration Statement on Form 8-A filed on February 22, 2012 and incorporated herein by reference). | |
4.2 | Specimen Certificate for National Retail Property, Inc.s 6.625% Series D Cumulative Redeemable Preferred Stock, par value $0.01 per share (filed as Exhibit 4.2 to the Registration Statement on Form 8-A filed on February 22, 2012 and incorporated herein by reference). | |
5.1 | Opinion of Pillsbury Winthrop Shaw Pittman LLP as to the legality of the securities being issued by the registrant. | |
8.1 | Opinion of Pillsbury Winthrop Shaw Pittman LLP regarding certain material tax issues relating to the registrant. | |
23.1 | Consent of Pillsbury Winthrop Shaw Pittman LLP to the filing of the Exhibit 5.1 herewith (included in its opinion filed as Exhibit 5.1). | |
23.2 | Consent of Pillsbury Winthrop Shaw Pittman LLP to the filing of the Exhibit 8.1 herewith (included in its opinion filed as Exhibit 8.1). |
Exhibit 3.1
NATIONAL RETAIL PROPERTIES, INC.
ARTICLES SUPPLEMENTARY
ESTABLISHING AND FIXING THE RIGHTS AND PREFERENCES
OF
6.625% SERIES D CUMULATIVE REDEEMABLE PREFERRED STOCK
Pursuant to Section 2-208(b) of the
Maryland General Corporation Law
National Retail Properties, Inc., a Maryland corporation (the Corporation), hereby certifies to the State Department of Assessments and Taxation of the State of Maryland that, pursuant to the authority conferred upon the Board of Directors of the Corporation by paragraph B of Article VI, Section 2 of the Corporations First Amended and Restated Articles of Incorporation, as amended to the date hereof and as the same may be amended hereafter from time to time (the Charter), and in accordance with Section 2-208(b) of the Maryland General Corporation Law, the Board of Directors and the Pricing Committee thereof, on February 10, 2012 and February 15, 2012, respectively, duly divided and classified unissued shares of Preferred Stock into a series designated as 6.625% Series D Cumulative Redeemable Preferred Stock of the Corporation. The description of the 6.625% Series D Cumulative Redeemable Preferred Stock, including the preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications, and terms or conditions of redemption thereof, as set by the Board of Directors and the Pricing Committee, are as follows:
Section 1. Number of Shares and Designation.
The shares of such series shall be designated 6.625% Series D Cumulative Redeemable Preferred Stock (the Series D Preferred Stock) and the number of shares constituting such series shall be 115,000. The designations, powers, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions, of the Series D Preferred Stock shall be subject in all cases to the provisions of Article VI of the Charter regarding limitations on beneficial ownership of the Corporations equity securities.
Section 2. Definitions.
Alternative Conversion Consideration shall have the meaning set forth in Section 7(e) hereof.
Alternative Form Consideration shall have the meaning set forth in Section 7(e) hereof.
Board of Directors shall mean the Board of Directors of the Corporation or any committee authorized by such Board of Directors to perform any of its responsibilities with respect to the Series D Preferred Stock.
Beneficiary shall have the meaning set forth in paragraph A of Article VI, Section 3 of the Charter.
Business Day shall mean any day other than a Saturday, Sunday or a day on which state or federally chartered banking institutions in Orlando, Florida or New York, New York are not required to be open.
Capital Gains Amount shall have the meaning set forth in Section 3(g) hereof.
Change of Control shall mean, after the original issuance of the Series D Preferred Stock, the following have occurred and are continuing: (1) the acquisition by any person, including any syndicate or group deemed to be a person under Section 13(d)(3) of the Exchange Act of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of purchases, mergers or other acquisition transactions of shares of the Corporation entitling that person to exercise more than fifty percent (50%) of the total voting power of all shares of the Corporation entitled to vote generally in elections of the Corporations directors (except that such person will be deemed to have beneficial ownership of all securities that such person has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition); and (2) following the closing of any transaction referred to in the foregoing clause (1), neither the Corporation nor the acquiring or surviving entity has a class of common securities (or American Depositary Receipts representing such securities) listed on the NYSE, the NYSE Amex or NASDAQ, or listed or quoted on an exchange or quotation system that is a successor to the NYSE, the NYSE Amex or NASDAQ.
Change of Control Conversion Date shall mean the date the Series D Preferred Stock is to be converted, which shall be a Business Day that is no fewer than 20 days nor more than 35 days after the date on which the Corporation provides the notice to the holders of the depositary shares representing interests in the Series D Preferred Stock.
Change of Control Conversion Right shall have the meaning set forth in Section 7(b) hereof.
Charter shall have the meaning set forth in the Preamble hereof.
Code shall mean the Internal Revenue Code of 1986, as amended.
Common Stock shall mean the common stock, par value $.01 per share, of the Corporation.
Common Stock Conversion Consideration shall have the meaning set forth in Section 7(b) hereof.
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Common Stock Price shall mean: (1) the amount of cash consideration per share of Common Stock, if the consideration to be received in the Change of Control by the holders of the Common Stock is solely cash; and (2) the average of the closing prices for the Common Stock on the NYSE for the ten consecutive trading days immediately preceding, but not including, the effective date of the Change of Control, if the consideration to be received in the Change of Control by the holders of the Common Stock is other than solely cash.
Conversion Consideration shall have the meaning set forth in Section 7(e) hereof.
Corporation shall have the meaning set forth in the Preamble hereof.
Deposit Agreement shall mean the depositary agreement, dated as of February 23, 2012 among the Corporation, the Depositary and the holders from time to time of Depositary Receipts, or a successor deposit agreement.
Depositary shall mean American Stock Transfer & Trust Company, or a duly appointed successor depositary.
Depositary Receipts shall mean the depositary receipts issued by the Depositary under the Deposit Agreement representing Depositary Shares.
Depositary Share(s) shall mean depositary shares, each representing a 1/100th interest in a share of Series D Preferred Stock at any time that the Series D Preferred Stock is being held by the Depositary under the Deposit Agreement.
Dividend Payment Date shall mean, with respect to each Dividend Period, the fifteenth (15th) day of the month following the month in which such Dividend Period has ended (March, June, September and December of each year), commencing on June 15, 2012.
Dividend Payment Record Date shall mean the date designated by the Board of Directors for the payment of dividends that is not more than 30 or less than 10 days prior to the applicable Dividend Payment Date.
Dividend Period shall mean the period commencing on and including, a Dividend Payment Date (or if no Dividend Payment Date has occurred, commencing on, and including, the Original Issue Date), and ending on, and including, the day immediately preceding the next succeeding Dividend Payment Date (or in the case of a period during which any shares of Series D Preferred Stock shall be redeemed pursuant to Section 5 hereof, ending on, and including, the redemption date with respect to the shares of Series D Preferred Stock being redeemed).
DTC shall have the meaning set forth in Section 7(i) hereof.
Event shall have the meaning set forth in Section 6(d) hereof.
Excess Stock shall have the meaning set forth in Article VI of the Charter.
Exchange Act shall mean the Securities Exchange Act of 1934, as amended.
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Exchange Cap shall have the meaning set forth in Section 7(d) hereof.
NASDAQ shall mean the NASDAQ Stock Market, Inc. or a successor that is a national securities exchange registered under Section 6 of the Exchange Act.
NYSE shall mean the New York Stock Exchange, Inc. or a successor that is a national securities exchange registered under Section 6 of the Exchange Act.
NYSE Amex shall mean the NYSE Amex Equities or a successor that is a national securities exchange registered under Section 6 of the Exchange Act.
Original Issue Date shall mean the first date on which the Series D Preferred Stock is issued and sold in the form of Depositary Shares or otherwise.
Ownership Limit shall have the meaning set forth in paragraph A of Article VI, Section 3 of the Charter.
Parity Preferred shall have the meaning set forth in Section 6(b) hereof.
Preferred Directors shall have the meaning set forth in Section 6(b) hereof.
Preferred Dividend Default shall have the meaning set forth in Section 6(b) hereof.
Preferred Stock shall mean the preferred stock, par value $.01 per share, of the Corporation.
REIT shall have the meaning set forth in Section 5(a) hereof.
Series D Preferred Stock shall have the meaning set forth in Section 1 hereof.
Share Cap shall have the meaning set forth in Section 7(b) hereof.
Share Split shall have the meaning set forth in Section 7(c) hereof.
Special Optional Redemption Right shall have the meaning set forth in Section 5(c) hereof.
Total Distributions shall have the meaning set forth in Section 3(g) hereof.
Transfer Agent shall mean American Stock Transfer & Trust Company or such other agent or agents of the Corporation as may be designated by the Board of Directors or their designee as the transfer agent, registrar and dividend disbursing agent for the Series D Preferred Stock.
Trust shall have the meaning set forth in paragraph A of Article VI, Section 3 of the Charter.
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Section 3. Dividends and Distributions.
(a) Subject to the preferential rights of the holders of any class or series of equity securities of the Corporation ranking senior to the Series D Preferred Stock as to dividends, the holders of the then outstanding Series D Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available for the payment of dividends, cumulative cash dividends at the rate of 6.625% per annum of the $2,500.00 liquidation preference per share of the Series D Preferred Stock, which is equivalent to $165.625 per share of the Series D Preferred Stock (or $1.65625 per annum per Depositary Share). Such dividends shall accrue and be cumulative from and including the Original Issue Date and shall be payable quarterly in arrears on each Dividend Payment Date, commencing June 15, 2012; provided, however, that if any Dividend Payment Date is not a Business Day, then the dividend which would otherwise have been payable on such Dividend Payment Date may be paid on the next succeeding Business Day with the same force and effect as if paid on such Dividend Payment Date, and no interest or additional dividends or other sums shall accrue on the amount so payable from such Dividend Payment Date to such next succeeding Business Day. The initial dividend payable on the Series D Preferred Stock will cover the period from the Original Issue Date through June 15, 2012 and will be paid on June 15, 2012. The amount of any dividend payable on the Series D Preferred Stock for each full Dividend Period shall be computed by dividing $165.625 by four (4) regardless of the actual number of days in such full Dividend Period. The amount of any dividend payable on the Series D Preferred Stock for any partial Dividend Period including the initial Dividend Period shall be prorated and computed on the basis of a 360-day year consisting of twelve 30-day months. Dividends will be payable to holders of record as they appear in the stockholder records of the Corporation at the close of business on the applicable Dividend Payment Record Date. Notwithstanding any provision to the contrary contained herein, each outstanding share of Series D Preferred Stock shall be entitled to receive a dividend with respect to any Dividend Payment Record Date equal to the dividend paid with respect to each other share of Series D Preferred Stock that is outstanding on such date.
(b) No dividends on the Series D Preferred Stock shall be declared by the Board of Directors or paid or set apart for payment by the Corporation at such time as the terms and provisions of any agreement of the Corporation, including any agreement relating to its indebtedness, prohibits such declaration, payment or setting apart for payment or provides that such declaration, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such declaration, or payment or setting apart for payment shall be restricted or prohibited by law.
(c) Notwithstanding anything contained herein to the contrary, dividends on the Series D Preferred Stock shall accrue whether or not (i) the terms and provisions set forth in Section 3(b) hereof at any time prohibit the current payment of dividends, (ii) the Corporation has earnings, (iii) whether or not there are funds legally available for the payment of such dividends and (iv) whether or not such dividends are authorized. Accrued but unpaid dividends on the Series D Preferred Stock will accumulate as of the Dividend Payment Date on which they first become payable. No interest shall be payable in respect of any accrued but unpaid dividend on the Series D Preferred Stock.
(d) Except as provided in Section 3(e) below, no dividends shall be declared or paid or set apart for payment and no other distribution of cash or other property may be declared or made, directly or indirectly, on or with respect to any shares of Common Stock or shares of any
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other class or series of equity securities of the Corporation ranking, as to dividends, on a parity with or junior to the Series D Preferred Stock (other than a dividend paid in shares of Common Stock or in shares of any other class or series of equity securities ranking junior to the Series D Preferred Stock as to dividends and upon liquidation) for any period, nor shall any shares of Common Stock or any other shares of any other class or series of equity securities of the Corporation ranking, as to dividends or upon liquidation, on a parity with or junior to the Series D Preferred Stock be redeemed, purchased or otherwise acquired for any consideration and no other distribution of cash or other property may be made, directly or indirectly, on or with respect thereto (or any moneys be paid to or made available for a sinking fund for the redemption of any such shares) by the Corporation (except by conversion into or exchange for other shares of any class or series of equity securities of the Corporation ranking junior to the Series D Preferred Stock as to dividends and upon liquidation and except for the acquisition of shares made pursuant to the provisions of Article VI of the Charter), unless full cumulative dividends on the Series D Preferred Stock for all past Dividend Periods shall have been or contemporaneously are (i) declared and paid in cash or (ii) declared and a sum sufficient for the payment thereof in cash is set apart for such payment.
(e) When dividends are not paid in full (or a sum sufficient for such full payment is not so set apart) upon the Series D Preferred Stock and the shares of any other class or series of equity securities ranking, as to dividends, on a parity with the Series D Preferred Stock, all dividends declared upon the Series D Preferred Stock and each such other class or series of equity securities ranking, as to dividends, on a parity with the Series D Preferred Stock shall be declared pro rata so that the amount of dividends declared per share of Series D Preferred Stock and such other class or series of equity securities shall in all cases bear to each other the same ratio that accrued dividends per share on the Series D Preferred Stock and such other class or series of equity securities (which shall not include any accrual in respect of unpaid dividends on such other class or series of equity securities for prior Dividend Periods if such other class or series of equity securities does not have a cumulative dividend) bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Series D Preferred Stock which may be in arrears.
(f) Holders of shares of Series D Preferred Stock shall not be entitled to any dividend, whether payable in cash, property or shares of stock, in excess of full cumulative dividends on the Series D Preferred Stock as provided herein. Any dividend payment made on the Series D Preferred Stock shall first be credited against the earliest accrued but unpaid dividends due with respect to such shares which remains payable.
(g) If, for any taxable year, the Corporation elects to designate as capital gain dividends (as defined in Section 857 of the Code or any successor revenue code or section) any portion (the Capital Gains Amount) of the total distributions not in excess of the Corporations earnings and profits (as determined for United States federal income tax purposes) paid or made available for such taxable year to holders of all classes and series of capital stock (the Total Distributions), then the portion of the Capital Gains Amount that shall be allocable to holders of Series D Preferred Stock shall be in the same proportion that the Total Distributions paid or made available to the holders of Series D Preferred Stock for such taxable year bears to the Total Distributions for such taxable year made with respect to all classes or series of capital stock outstanding.
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Section 4. Liquidation Preference.
Upon any voluntary or involuntary liquidation, dissolution or winding-up of the affairs of the Corporation, before any distribution or payment shall be made to holders of shares of Common Stock or any other class or series of equity securities of the Corporation ranking, as to liquidation rights, junior to the Series D Preferred Stock, the holders of shares of Series D Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation legally available for distribution to its stockholders a liquidation preference of $2,500.00 per share, plus an amount equal to any accrued and unpaid dividends to the date of payment (whether or not declared). In the event that, upon any such voluntary or involuntary liquidation, dissolution or winding-up, the available assets of the Corporation are insufficient to pay the amount of the liquidating distributions on all outstanding shares of Series D Preferred Stock and the corresponding amounts payable on all shares of other classes or series of equity securities of the Corporation ranking, as to liquidation rights, on a parity with the Series D Preferred Stock in the distribution of assets, then the holders of the Series D Preferred Stock and each such other class or series of shares of equity securities ranking, as to liquidation rights, on a parity with the Series D Preferred Stock shall share ratably in any such distribution of assets in proportion to the full liquidating distributions to which they would otherwise be respectively entitled. Written notice of any such liquidation, dissolution or winding up of the Corporation, stating the payment date or dates when, and the place or places where, the amounts distributable in such circumstances shall be payable, shall be given by first-class mail, postage pre-paid, not less than 30 nor more than 60 days prior to the payment date stated therein, to each record holder of shares of Series D Preferred Stock at the respective addresses of such holders as the same shall appear on the stock transfer records of the Corporation. After payment of the full amount of the liquidating distributions to which they are entitled, the holders of Series D Preferred Stock will have no right or claim to any of the remaining assets of the Corporation. The consolidation or merger of the Corporation with or into any other corporation, trust or entity, or the sale, lease, transfer or conveyance of all or substantially all of the property or business of the Corporation, shall not be deemed to constitute a liquidation, dissolution or winding-up of the affairs of the Corporation.
Section 5. Redemption.
(a) Shares of Series D Preferred Stock shall not be redeemable prior to February 23, 2017. However, in order to ensure that the Corporation remains qualified as a real estate investment trust (REIT) for United States federal income tax purposes in accordance with the Charter, the Series D Preferred Stock, together with all other equity securities of the Corporation, shall be subject to Article VI of the Charter pursuant to which Series D Preferred Stock owned by a stockholder in excess of the Ownership Limit shall automatically be transferred to a Trust for the exclusive benefit of a Beneficiary, as provided in Article VI, Section 4 of the Charter.
(b) On or after February 23, 2017, the Corporation, at its option upon not less than 30 nor more than 60 days written notice, may redeem the Series D Preferred Stock, in whole or in part, at any time or from time to time, for cash at a redemption price of $2,500.00 per share, plus all accrued and unpaid dividends (whether or not declared) thereon to, but not including, the date fixed for redemption, without interest. If fewer than all of the outstanding shares of Series D Preferred Stock are to be redeemed, the shares of Series D Preferred Stock to be redeemed shall
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be redeemed pro rata (as nearly as may be practicable without creating fractional shares), by lot or by any other equitable method determined by the Corporation. If such redemption is to be by lot and, as a result of such redemption, any holder of a number of shares of Series D Preferred Stock would become a holder of a number of shares of Series D Preferred Stock in excess of the Ownership Limit because such holders Series D Preferred Stock was not redeemed, or was only redeemed in part, then, except as otherwise provided in the Charter, the Corporation will redeem the requisite number of shares of Series D Preferred Stock of such holder such that no holder will hold in excess of the Ownership Limit subsequent to such redemption.
(c) Upon the occurrence of a Change of Control, the Corporation will have the option upon written notice mailed by the Corporation in accordance with Section 5(i) below, to redeem the Series D Preferred Stock, in whole or in part within 120 days after the first date on which such Change of Control occurred, for cash at $2,500.00 per share plus accrued and unpaid dividends, if any, to, but not including, the redemption date (Special Optional Redemption Right). No failure to give such notice or any defect thereto or in the mailing thereof shall affect the validity of the proceedings for the redemption of any Series D Preferred Stock except as to the holder to whom notice was defective or not given. If, prior to the Change of Control Conversion Date, the Corporation has provided or provides notice of redemption with respect to the Series D Preferred Stock (whether pursuant to the optional redemption right under Section 5(b) or the Special Optional Redemption Right under this Section 5(c), the holders of Series D Preferred Stock will not have the conversion right described below in Section 7.
(d) Holders of Series D Preferred Stock to be redeemed shall surrender such Series D Preferred Stock at the place designated in such notice and shall be entitled to the redemption price of $2,500.00 per share and any accrued and unpaid dividends (whether or not declared) payable upon such redemption following such surrender. If (i) notice of redemption of any shares of Series D Preferred Stock has been given, (ii) the funds necessary for such redemption have been set aside by the Corporation in trust for the benefit of the holders of any shares of Series D Preferred Stock so called for redemption and (iii) irrevocable instructions have been given to pay the redemption price and all accrued and unpaid dividends (whether or not declared), then from and after the redemption date dividends shall cease to accrue on such shares of Series D Preferred Stock, such shares of Series D Preferred Stock shall no longer be deemed outstanding and all rights of the holders of such shares will terminate, except the right to receive the redemption price plus any accrued and unpaid dividends (whether or not declared) payable upon such redemption, without interest. So long as no dividends are in arrears, nothing herein shall prevent or restrict the Corporations right or ability to purchase, from time to time either at a public or a private sale, all or any part of the Series D Preferred Stock at such price or prices as the Corporation may determine, subject to the provisions of applicable law, including the repurchase of shares of Series D Preferred Stock in open-market transactions duly authorized by the Board of Directors.
(e) The deposit of funds with a bank or trust corporation for the purpose of redeeming Series D Preferred Stock shall be irrevocable except that:
(i) the Corporation shall be entitled to receive from such bank or trust corporation the interest or other earnings, if any, earned on any money so deposited in trust, and the holders of any shares redeemed shall have no claim to such interest or other earnings; and
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(ii) any balance of monies so deposited by the Corporation and unclaimed by the holders of the Series D Preferred Stock entitled thereto at the expiration of two (2) years from the applicable redemption dates shall be repaid, together with any interest or other earnings thereon, to the Corporation, and after any such repayment, the holders of the shares entitled to the funds so repaid to the Corporation shall look only to the Corporation for payment without interest or other earnings.
(f) In the event of any redemption of the Series D Preferred Stock in order to preserve the status of the Corporation as a qualified REIT, such redemption shall be made in accordance with the terms and conditions set forth in this Section 5 of these Articles Supplementary. If the Corporation calls for redemption any shares of Series D Preferred Stock pursuant to and in accordance with this Section 5(f), then, the redemption price for such shares will be an amount in cash equal to $2,500.00 per share together with all accrued and unpaid dividends (whether or not declared) thereon to and including the date fixed for redemption, without interest.
(g) Unless full cumulative dividends on all Series D Preferred Stock shall have been or contemporaneously are declared and paid in cash or declared and a sum sufficient for the payment thereof in cash set apart for payment for all past Dividend Periods and the then-current Dividend Period, no Series D Preferred Stock shall be redeemed unless all outstanding shares of Series D Preferred Stock are simultaneously redeemed and the Corporation shall not purchase or otherwise acquire directly or indirectly any shares of Series D Preferred Stock or any class or series of equity securities of the Corporation ranking, as to dividends or upon liquidation, on a parity with or junior to the Series D Preferred Stock (except by exchange for shares of equity securities of the Corporation ranking, as to dividends and upon liquidation, junior to the Series D Preferred Stock); provided, however, that the foregoing shall not prevent the purchase of Series D Preferred Stock by the Corporation in accordance with the terms of Section 5(a) or 5(f) hereof or Article VI of the Charter or otherwise in order to ensure that the Corporation remains qualified as a REIT for United States federal income tax purposes or the purchase or acquisition of Series D Preferred Stock pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding shares of Series D Preferred Stock.
(h) Notice of redemption shall be mailed by the Corporation, postage prepaid, as of a date set by the Corporation not less than 30 nor more than 60 days prior to the redemption date, addressed to the respective holders of record of the shares of Series D Preferred Stock to be redeemed at their respective addresses as they appear on the share transfer records of the Transfer Agent. No failure to give such notice or any defect thereto or in the mailing thereof shall affect the sufficiency of notice or validity of the proceedings for the redemption of any Series D Preferred Stock except as to a holder to whom notice was defective or not given. A redemption notice which has been mailed in the manner provided herein shall be conclusively presumed to have been duly given on the date mailed whether or not the holder received the redemption notice. In addition to any information required by law or the applicable rules of any exchange upon which Series D Preferred Stock may be listed or admitted to trading, each notice shall state (i) the redemption date; (ii) the redemption price; (iii) the number of shares of Series D
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Preferred Stock to be redeemed; (iv) the place or places where the shares of Series D Preferred Stock are to be surrendered for payment of the redemption price; and (v) that dividends on the Series D Preferred Stock to be redeemed shall cease to accrue on such redemption date. If fewer than all of the shares of Series D Preferred Stock held by any holder are to be redeemed, the notice mailed to such holder shall also specify the number of shares of Series D Preferred Stock held by such holder to be redeemed.
In the event the Corporation is exercising its Special Optional Redemption Right, the notice referred to above shall also state: (i) that the Series D Preferred Stock is being redeemed pursuant to the Corporations Special Optional Redemption Right in connection with the occurrence of a Change of Control and a brief description of the transaction(s) constituting such Change of Control and (ii) that the Series D Preferred Stock may not be tendered for conversion in connection with the Change of Control by the holder thereof and that each share of Series D Preferred Stock so tendered for conversion that is selected, prior to the Change of Control Conversion Date, for redemption will be redeemed on the related date of redemption instead of converted on the Change of Control Conversion Date.
(i) If a redemption date falls after a Dividend Payment Record Date and on or prior to the corresponding Dividend Payment Date, each holder of Series D Preferred Stock at the close of business of such Dividend Payment Record Date shall be entitled to the dividend payable on such shares on the corresponding Dividend Payment Date notwithstanding the redemption of such shares on or prior to such Dividend Payment Date, and each holder of Series D Preferred Stock that surrenders its shares on such redemption date will be entitled to the dividends accruing after the end of the Dividend Period to which such Dividend Payment Date relates up to and including the redemption date. Except as provided herein, the Corporation shall make no payment or allowance for unpaid dividends, whether or not in arrears, on Series D Preferred Stock which are redeemed.
(j) The Series D Preferred Stock is subject to the provisions of Article VI of the Charter, including, without limitation, the provision for the redemption of Excess Stock. In addition to the redemption rights set forth in Article VI of the Charter, Excess Stock issued upon exchange of Series D Preferred Stock pursuant to such Article may be redeemed, in whole or in part, at any time when outstanding Series D Preferred Stock are being redeemed, for cash at a redemption price of $2,500.00 per share of Series D Preferred Stock, plus all accrued and unpaid dividends (whether or not declared) on the Series D Preferred Stock, which were exchanged for such Excess Stock, through the date of such exchange, without interest. If the Corporation elects to redeem Excess Stock pursuant to the redemption right set forth in the preceding sentence, such Excess Stock shall be redeemed in such proportion and in accordance with such procedures as Series D Preferred Stock are being redeemed.
Section 6. Voting Rights.
(a) Holders of the Series D Preferred Stock shall not have any voting rights, except as provided by applicable law and as set forth in this Section 6.
(b) Whenever dividends on any shares of Series D Preferred Stock shall be in arrears for six (6) or more quarterly periods (whether or not declared or consecutive) (a Preferred
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Dividend Default), the holders of such shares of Series D Preferred Stock (voting separately as a class with all other series of preferred stock ranking on a parity with the Series D Preferred Stock as to dividends or upon liquidation and upon which like voting rights have been conferred and are exercisable (Parity Preferred)) will be entitled to vote for the election of a total of two additional directors of the Corporation (the Preferred Directors), and the number of directors on the Board of Directors shall increase by two, at a special meeting called by the holders of record of at least 20% of the Series D Preferred Stock or the holders of any other series of Parity Preferred so in arrears (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of stockholders) or at the next annual meeting of stockholders, and at each subsequent annual meeting until all dividends accumulated on such shares of Series D Preferred Stock for the past Dividend Periods and the dividend for the then-current Dividend Period shall have been fully paid or declared and a sum sufficient for the payment thereof set aside for payment.
(c) If and when all accumulated dividends and the dividend for the then-current Dividend Period on the Series D Preferred Stock shall have been paid in full or set aside for payment in full, the holders of shares of Series D Preferred Stock shall be divested of the voting rights set forth in Section 6(b) hereof (subject to revesting in the event of each subsequent Preferred Dividend Default) and, if all accumulated dividends and the dividend for the current Dividend Period have been paid in full or set aside for payment in full on all other series of Parity Preferred, the term of office of each Preferred Director so elected shall terminate and the number of directors on the Board of Directors shall decrease by two. Any Preferred Director may be removed at any time with or without cause by the vote of, and shall not be removed otherwise than by the vote of, the holders of record of a majority of the outstanding shares of the Series D Preferred Stock when they have the voting rights set forth in Section 6(b) (voting separately as a class with the Parity Preferred). So long as a Preferred Dividend Default shall continue, any vacancy in the office of a Preferred Director may be filled by written consent of the Preferred Director remaining in office, or, if none remains in office, by a vote of the holders of record of a majority of the outstanding shares of Series D Preferred Stock when they have the voting rights set forth in Section 6(b) (voting separately as a class with all other series of Parity Preferred). The Preferred Directors shall each be entitled to one vote per director on any matter.
(d) So long as any shares of Series D Preferred Stock remain outstanding, the affirmative vote or consent of the holders of at least 66 2/3% of the shares of Series D Preferred Stock outstanding at the time, given in person or by proxy, either in writing or at a meeting (voting separately as a single class), will be required to:
(i) authorize, create or issue, or increase the authorized or issued amount of, any class or series of equity securities ranking senior to the Series D Preferred Stock with respect to payment of dividends or the distribution of assets upon liquidation, dissolution or winding-up of the affairs of the Corporation or reclassify any authorized equity securities of the Corporation into such equity securities, or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase any such senior equity securities; or
(ii) amend, alter or repeal the provisions of the Charter or these Articles Supplementary, whether by merger, consolidation, transfer or conveyance of all or
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substantially all of its assets or otherwise (an Event), so as to materially and adversely affect any right, preference, privilege or voting power of the Series D Preferred Stock or the holders thereof; provided, however, with respect to the occurrence of any Event, so long as the Series D Preferred Stock remains outstanding with the terms thereof materially unchanged, or in the case in which the Corporation is not the surviving entity, so long as shares into which the Series D Preferred Stock have been converted in any successor entity to the Corporation remain outstanding with the terms thereof materially unchanged, the occurrence of such Event shall not be deemed to materially and adversely affect such rights, preferences, privileges or voting power of holders of Series D Preferred Stock, and in such case such holders shall not have any voting rights with respect to the occurrence of an Event; provided further that holders of the Series D Preferred Stock shall not be entitled to vote with respect to any increase in the amount of the authorized Common Stock or Preferred Stock or the creation or issuance of any other class or series of equity securities, in each case ranking on a parity with or junior to the Series D Preferred Stock with respect to the payment of dividends and the distribution of assets upon liquidation, dissolution or winding up of the Corporation.
(e) The foregoing voting provisions of this Section 6 shall not apply if, at or prior to the time when the act with respect to which such vote would otherwise be required shall be effected, all outstanding shares of Series D Preferred Stock shall have been redeemed or called for redemption upon proper notice and sufficient funds, in cash, shall have been deposited in trust to effect such redemption.
(f) In any matter in which the Series D Preferred Stock may vote (as expressly provided herein or as may be required by law), each share of Series D Preferred Stock shall be entitled to one vote per $2,500.00 of liquidation preference.
(g) Except as expressly stated herein, the Series D Preferred Stock will not have any relative, participating, optional or other special voting rights and powers and the consent of the holders thereof shall not be required for the taking of any corporate action, including but not limited to, any merger or consolidation of the Corporation or a sale of all or substantially all of the assets of the Corporation, irrespective of the effect that such merger, consolidation or sale may have upon the rights, preferences, privileges or voting power of the holders of the Series D Preferred Stock.
Section 7. Conversion.
(a) Series D Preferred Stock shall not be convertible into or exchangeable for any other property or securities of the Corporation, except as provided in this Section 7 and except that the Series D Preferred Stock will automatically be exchanged by the Corporation for Excess Stock in accordance with Article VI of the Charter in the same manner that Common Stock are exchanged for Excess Stock pursuant thereto, in order to ensure that the Corporation remains qualified as a REIT for federal income tax purposes.
(b) Upon the occurrence of a Change of Control, each holder of the Series D Preferred Stock shall have the right, unless, prior to the Change of Control Conversion Date, the Corporation has provided or provides notice of its election to redeem the Series D Preferred
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Stock pursuant to the Redemption Right or Special Optional Redemption Right, to convert some or all of the Series D Preferred Stock held by such holder (the Change of Control Conversion Right) on the Change of Control Conversion Date into a number of shares of Common Stock per share of Series D Preferred Stock to be converted (the Common Stock Conversion Consideration) equal to the lesser of (A) the quotient obtained by dividing (i) the sum of the $2,500 per share liquidation preference plus the amount of any accrued and unpaid dividends to, but not including, the Change of Control Conversion Date (unless the Change of Control Conversion Date is after a Dividend Record Date and prior to the corresponding Dividend Payment Date, in which case no additional amount for such accrued and unpaid dividend will be included in such sum) by (ii) the Common Stock Price and (B) 187.06 (the Share Cap), subject to Section 7(c).
(c) The Share Cap is subject to pro rata adjustments for any share splits (including those effected pursuant to a Common Stock distribution), subdivisions or combinations (in each case, a Share Split) with respect to Common Stock as follows: the adjusted Share Cap as the result of a Share Split shall be the number of Common Stock that is equivalent to the product obtained by multiplying (i) the Share Cap in effect immediately prior to such Share Split by (ii) a fraction, the numerator of which is the number of shares of Common Stock outstanding after giving effect to such Share Split and the denominator of which is the number of shares of Common Stock outstanding immediately prior to such Share Split.
(d) For the avoidance of doubt, subject to the immediately succeeding sentence, the aggregate number of shares of Common Stock (or equivalent Alternative Conversion Consideration (as defined below), as applicable) issuable in connection with the exercise of the Change of Control Conversion Right shall not exceed 21,511,900 shares of Common Stock (or equivalent Alternative Conversion Consideration, as applicable) (the Exchange Cap). The Exchange Cap is subject to pro rata adjustments for any Share Splits on the same basis as the corresponding adjustment to the Share Cap and is subject to increase in the event that additional shares of Series D Preferred Stock are issued in the future.
(e) In the case of a Change of Control pursuant to which shares of Common Stock shall be converted into cash, securities or other property or assets (including any combination thereof) (the Alternative Form Consideration), a holder of Series D Preferred Stock shall receive upon conversion of such Series D Preferred Stock the kind and amount of Alternative Form Consideration which such holder of Series D Preferred Stock would have owned or been entitled to receive upon the Change of Control had such holder of Series D Preferred Stock held a number of shares of Common Stock equal to the Common Stock Conversion Consideration immediately prior to the effective time of the Change of Control (the Alternative Conversion Consideration; and the Common Stock Conversion Consideration or the Alternative Conversion Consideration, as may be applicable to a Change of Control, shall be referred to herein as the Conversion Consideration).
(f) No fractional Common Stock shall be issued upon the conversion of Series D Preferred Stock. In lieu of fractional shares, holders shall be entitled to receive the cash value of such fractional shares based on the Common Stock Price.
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(g) Within 15 days following the occurrence of a Change of Control, a notice of occurrence of the Change of Control, describing the resulting Change of Control Conversion Right, shall be delivered to the holders of record of the Series D Preferred Stock at their addresses as they appear on the Corporations share transfer records and notice shall be provided to the Corporations Transfer Agent. No failure to give such notice or any defect thereto or in the mailing thereof shall affect the validity of the proceedings for the conversion of any Series D Preferred Stock except as to the holder to whom notice was defective or not given. Each notice shall state: (a) the events constituting the Change of Control; (b) the date of the Change of Control; (c) the last date on which the holders of Series D Preferred Stock may exercise their Change of Control Conversion Right; (d) the method and period for calculating the Common Stock Price; (e) the Change of Control Conversion Date, which shall be a Business Day occurring within 20 to 35 days following the date of such notice; (f) that if, prior to the Change of Control Conversion Date, the Corporation has provided or provides notice of its election to redeem all or any portion of the Series D Preferred Stock, the holder will not be able to convert such shares of Series D Preferred Stock and such shares of Series D Preferred Stock shall be redeemed on the related redemption date, even if they have already been tendered for conversion pursuant to the Change of Control Conversion Right; (g) if applicable, the type and amount of Alternative Conversion Consideration entitled to be received per share of Series D Preferred Stock; (h) the name and address of the paying agent and the conversion agent; and (i) the procedures that the holders of Series D Preferred Stock must follow to exercise the Change of Control Conversion Right.
(h) The Corporation shall issue a press release for publication on the Dow Jones & Company, Inc. Business Wire, PR Newswire or Bloomberg Business News (or, if such organizations are not in existence at the time of issuance of such press release, such other news or press organization as is reasonably calculated to broadly disseminate the relevant information to the public), or post notice on the Corporations website, in any event prior to the opening of business on the first Business Day following any date on which the Corporation provides notice pursuant to Section 7(g) above to the holders of Series D Preferred Stock.
(i) In order to exercise the Change of Control Conversion Right, a holder of Series D Preferred Stock shall be required to deliver, on or before the close of business on the Change of Control Conversion Date, the certificates evidencing the Series D Preferred Stock, to the extent such shares are certificated, to be converted, duly endorsed for transfer, together with a written conversion notice completed, to the Corporations Transfer Agent. Such notice shall state: (i) the relevant Change of Control Conversion Date; (ii) the number of shares of Series D Preferred Stock to be converted; and (iii) that the shares of Series D Preferred Stock are to be converted pursuant to the applicable terms of the Series D Preferred Stock. Notwithstanding the foregoing, if the shares of Series D Preferred Stock are held in global form, such notice shall comply with applicable procedures of The Depository Trust Company (DTC).
(j) Holders of Series D Preferred Stock may withdraw any notice of exercise of a Change of Control Conversion Right (in whole or in part) by a written notice of withdrawal delivered to the Corporations Transfer Agent prior to the close of business on the Business Day prior to the Change of Control Conversion Date. The notice of withdrawal must state: (i) the number of withdrawn shares of Series D Preferred Stock; (ii) if certificated shares of Series D Preferred Stock have been issued, the certificate numbers of the withdrawn shares of Series D
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Preferred Stock; and (iii) the number of shares of Series D Preferred Stock, if any, which remain subject to the conversion notice. Notwithstanding the foregoing, if the Series D Preferred Stock is held in global form, the notice of withdrawal shall comply with applicable procedures of DTC.
(k) Series D Preferred Stock as to which the Change of Control Conversion Right has been properly exercised and for which the conversion notice has not been properly withdrawn shall be converted into the applicable Conversion Consideration in accordance with the Change of Control Conversion Right on the Change of Control Conversion Date, unless, prior to the Change of Control Conversion Date, the Corporation has provided or provides notice of its election to redeem such Series D Preferred Stock, whether pursuant to its Redemption Right or Special Optional Redemption Right. If the Corporation elects to redeem Series D Preferred Stock that would otherwise be converted into the applicable Conversion Consideration on a Change of Control Conversion Date, such Series D Preferred Stock shall not be so converted and the holders of such shares shall be entitled to receive on the applicable redemption date $2,500.00 per share, plus any accrued and unpaid dividends thereon to, but not including, the redemption date.
(l) The Corporation shall deliver the applicable Conversion Consideration no later than the third Business Day following the Change of Control Conversion Date.
(m) Notwithstanding anything to the contrary contained herein, no holder of Series D Preferred Stock will be entitled to convert such Series D Preferred Stock into Common Stock to the extent that receipt of such Common Stock would cause the holder of such Common Stock (or any other person) to Beneficially Own or Constructively Own, each term within the meaning of the Charter, Common Stock of the Corporation in excess of the Ownership Limit.
(n) In the event that holders of Common Stock have the opportunity to elect the form of consideration to be received in the Change of Control, the consideration that the holders of Series D Preferred Stock shall receive shall be the form and proportion of the aggregate consideration elected by the holders of the Common Stock who participate in the determination (based on the weighted average of elections) and shall be subject to any limitations to which all holders of Common Stock are subject, including, without limitation, pro rata reductions applicable to any portion of the consideration payable in the Change of Control.
Section 8. Ranking.
In respect of rights to the payment of dividends and the distribution of assets in the event of any liquidation, dissolution or winding up of the affairs of the Corporation, the Series D Preferred Stock shall rank (i) senior to all classes or series of the Corporations Common Stock and to all other equity securities issued by the Corporation ranking junior to the Series D Preferred Stock as to the payment of dividends and the distribution of assets in the event of any liquidation, dissolution or winding up of the Corporation, (ii) on a parity with the Corporations 7.375% Series C Cumulative Redeemable Preferred Stock, $0.01 par value, that are issued and outstanding, if any, and all equity securities issued by the Corporation in the future the terms of which specifically provide that such equity securities rank on a parity with the Series D Preferred
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Stock as to the payment of dividends and the distribution of assets in the event of any liquidation, dissolution or winding up of the Corporation, and (iii) junior to all equity securities issued by the Corporation in the future the terms of which specifically provide that such equity securities rank senior to the Series D Preferred Stock as to the payment of dividends and the distribution of assets in the event of any liquidation, dissolution or winding up of the Corporation. The term equity securities does not include convertible debt securities, which will rank senior to the Series D Preferred Stock prior to conversion. All shares of Series D Preferred Stock shall rank equally with one another and shall be identical in all respects.
Section 9. Restrictions on Transfer, Acquisition and Redemption of Shares.
The Series D Preferred Stock is governed by and issued subject to all of the limitations, terms and conditions of the Corporations Charter, including but not limited to the terms and conditions (including exceptions and exemptions) of Article VI of the Charter. The foregoing sentence shall not be construed to limit to the Series D Preferred Stock the applicability of any other term or provision of the Charter. In addition to the legend contemplated by paragraph K of Article VI, Section 3 of the Charter, each certificate for Series D Preferred Stock shall bear substantially the following legend:
The Corporation will furnish to any stockholder, on request and without charge, a full statement of the information required by Section 2-211(b) of the Maryland General Corporation Law with respect to the designations and any preferences, conversion and other rights, voting powers, restrictions, limitations as to distributions, qualifications, and terms and conditions of redemptions of the stock of each class which the Corporation has authority to issue and, if the Corporation is authorized to issue any preferred or special class in series or classes, (i) the difference in the relative rights and preferences between the shares of each series and class to the extent set, and (ii) the authority of the Board of Directors to set such rights and preferences of subsequent series and classes. The foregoing summary does not purport to be complete and is subject to and qualified in its entirety by reference to the Charter of the Corporation, a copy of which will be sent without charge to each stockholder who so requests. Such request must be made to the Secretary of the Corporation at its principal office.
Section 10. Shares of Stock To Be Retired.
All shares of Series D Preferred Stock which shall have been issued and reacquired in any manner by the Corporation shall be restored to the status of authorized but unissued shares of Preferred Stock of the Corporation, without designation as to class or series.
Section 11. Record Holders.
The Corporation and the Transfer Agent may deem and treat the record holder of any Series D Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Corporation nor the Transfer Agent shall be affected by any notice to the contrary.
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Section 12. Listing.
In the event the Series D Preferred Stock is no longer held by the Depositary in depositary form, the Corporation shall use its best efforts to promptly list the Series D Preferred Stock on the NYSE, the NYSE Amex or NASDAQ.
Section 13. Sinking Fund.
The Series D Preferred Stock shall not be entitled to the benefits of any retirement or sinking fund.
Section 14. Exclusion of Other Rights.
The Series D Preferred Stock shall not have any preferences or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption other than expressly set forth in the Charter and these Articles Supplementary.
Section 15. Headings of Subdivisions.
The headings of the various subdivisions hereof are for convenience of reference only and shall not affect the interpretation of any of the provisions hereof.
Section 16. Severability of Provisions.
If any preferences or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of the Series D Preferred Stock set forth in the Charter and these Articles Supplementary are invalid, unlawful or incapable of being enforced by reason of any rule of law or public policy, all other preferences or other rights, voting powers, restrictions, limitations as to distributions, qualifications or terms or conditions of redemption of Series D Preferred Stock set forth in the Charter which can be given effect without the invalid, unlawful or unenforceable provision thereof shall, nevertheless, remain in full force and effect and no preferences or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of the Series D Preferred Stock herein set forth shall be deemed dependent upon any other provision thereof unless so expressed therein.
Section 17. No Preemptive Rights.
No holder of shares of Series D Preferred Stock shall have any preemptive or preferential right to subscribe for, or to purchase, any additional shares of stock of the Corporation of any class or series, or any other security of the Corporation which the Corporation may issue or sell.
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IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be executed under seal in its name and on its behalf by its Executive Vice President, Chief Financial Officer, Assistant Secretary and Treasurer and attested to by its Executive Vice President, General Counsel and Secretary as of February 21, 2012.
NATIONAL RETAIL PROPERTIES, INC. |
/s/ Kevin B. Habicht |
Kevin B. Habicht |
Executive Vice President, |
Chief Financial Officer, |
Assistant Secretary and Treasurer |
[SEAL]
ATTEST:
/s/ Christopher P. Tessitore |
Christopher P. Tessitore |
Executive Vice President, |
General Counsel and Secretary |
THE UNDERSIGNED Executive Vice President, Chief Financial Officer, Assistant Secretary and Treasurer of National Retail Properties, Inc., who executed on behalf of the Corporation the foregoing Articles Supplementary which this certificate is made a part, hereby acknowledges in the name and on behalf of said Corporation the foregoing Articles Supplementary to be the duly authorized act of said Corporation and hereby certifies to the best of his knowledge, information and belief that the matters and facts set forth herein with respect to the authorization and approval thereof are true in all material respects under the penalties of perjury.
/s/ Kevin B. Habicht |
Kevin B. Habicht |
Executive Vice President, |
Chief Financial Officer, |
Assistant Secretary and Treasurer |
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Exhibit 5.1
Pillsbury Winthrop Shaw Pittman LLP
2300 N Street, NW | Washington, DC 20037-1122 | tel 202.663.8000 | fax 202.663.8007
February 23, 2012
National Retail Properties, Inc.
450 South Orange Avenue
Orlando, FL 32801
Ladies and Gentlemen:
We are acting as counsel for National Retail Properties, Inc., a Maryland corporation (the Company), in connection with the issuance and sale of 11,500,000 depositary shares (the Depositary Shares), each representing a 1/100th interest in a share of the Companys 6.625% Series D Cumulative Redeemable Preferred Stock, par value $0.01 per share (the Series D Preferred Stock), of the Company, all of which are authorized but heretofore unissued shares to be offered and sold by the Company, in accordance with the terms of the Underwriting Agreement dated February 15, 2012 (the Underwriting Agreement) between the Company and the several underwriters named therein and of the Deposit Agreement dated February 23, 2012 (the Deposit Agreement) by and among the Company, American Stock Transfer & Trust Company, LLC and the holders from time to time of the depositary receipts issued thereunder. The Depositary Shares and Series D Preferred Stock will be offered and sold by the Company pursuant to the Registration Statement on Form S-3 (Registration No. 333-157583) (the Registration Statement), filed by the Company with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933 (the Act), and related prospectus, dated February 27, 2009, as supplemented by the prospectus supplement dated February 15, 2012 relating to the offer and sale of the Depositary Shares (as so supplemented, the Prospectus).
We have reviewed and are familiar with such documents, corporate proceedings and other matters as we have considered relevant or necessary as a basis for the opinions in this letter. Based on the foregoing, we are of the opinion that the Series D Preferred Stock and the Depositary Shares, when issued and delivered by the Company in accordance with the terms of the Underwriting Agreement and the Deposit Agreement, upon receipt of consideration for the Depositary Shares in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable.
The opinions set forth in this letter are limited to the Maryland General Corporation Law, as in effect on the date hereof, and we express no opinion as to the law of any other jurisdiction. We have no responsibility or obligation to update this letter or to take into account changes in law, facts or any other developments of which we may later become aware.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Companys Current Report on Form 8-K filed by the Company with the Commission on the date hereof and the incorporation thereof in the Registration Statement and to the use of our name under the caption Legal Matters in the Prospectus. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ PILLSBURY WINTHROP SHAW PITTMAN LLP
Exhibit 8.1
Pillsbury Winthrop Shaw Pittman LLP
2300 N Street, NW | Washington, DC 20037-1122 | tel 202.663.8000 | fax 202.663.8007
February 15, 2012
National Retail Properties, Inc.
450 South Orange Avenue
Suite 900
Orlando, FL 32801
Ladies and Gentlemen:
In connection with the filing on February 15, 2012 by National Retail Properties, Inc. (the Company) of a registration statement on Form S-3, including the prospectus, prospectus supplement, and all documents incorporated and deemed to be incorporated by reference therein (collectively, the Registration Statement) with the Securities and Exchange Commission, you have asked us to render an opinion with respect to the qualification of the Company as a real estate investment trust (REIT) under sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the Code).
We have served as special counsel for the Company in connection with the filing of the Registration Statement and from time to time in the past have represented the Company on specific matters as requested by the Company. Specifically for the purpose of this opinion, we have examined and relied upon the following: copies of the Companys Articles of Incorporation and any amendments thereto; the Registration Statement; copies of executed leases covering real property owned by the Company; the Form 10-K filed on February 26, 2011; and the Companys Form S-11 Registration Statement as filed with the Securities and Exchange Commission on August 15, 1984.
We have not served as general counsel to the Company and have not been involved in decisions regarding the day-to-day operation of the Company and its properties. We have, however, discussed the mode of operation of the Company with its officers with a view to learning information relevant to the opinions expressed herein and have received and relied upon a certificate from the Company with respect to certain matters.
We have discussed with management of the Company arrangements relating to the management of its properties, the relationships of the Company with tenants of such properties, and certain terms of leases of such properties to tenants, with a view to assuring that (i) at the close of each quarter of the taxable years covered by this opinion, it met the asset composition requirements set forth in section 856(c)(4), (ii)
National Retail Properties, Inc.
February 15, 2012
Page 2
with respect to years covered by this opinion, it satisfied the 95% and 75% gross income tests set forth in sections 856(c)(2) and (3), respectively, and (iii) with respect to tax years prior to 1998, it satisfied the 30% gross income test. We have further reviewed with management of the Company the requirements that the beneficial ownership of a REIT be held by 100 or more persons for at least 335/365ths of each taxable year and that a REIT must satisfy the diversity of ownership requirements of section 856(h) as such requirements existed in the years covered by this opinion, and we have been advised by management that at all times during the years covered by this opinion (and specifically on each record date for the payment of dividends during 1984 through the date hereof) the Company has maintained the records required by section 1.857-8 of the Treasury Regulations, that no later than January 30 of each year it sent the demand letters required by section 1.857-8(d) of the Treasury Regulations, and that the actual ownership of the Company shares was such that, to the best knowledge of its management (based upon responses to the aforesaid demands, any filing of a Schedule 13D or 13G under the Securities Exchange Act of 1934, as amended, or any other sources of information), the Company satisfied the applicable requirements of section 856(h). Further, we have examined various property leases and lease supplements relating to the properties that the Company owns, and although leases relating to certain properties that the Company owns have not been made available to us, the Company has represented with respect to such leases that they do conform in all material respects to a form of lease agreement provided to us. On the basis of discussions with management of the Company, we are not aware that the Companys election to be a REIT has been terminated or challenged by the Internal Revenue Service or any other party, or that the Company has revoked its election to be a REIT for any such prior year so as to make the Company ineligible to qualify as a REIT for the years covered by this opinion.
In rendering the opinions set forth herein, we are assuming that copies of documents examined by us are true copies of originals thereof and that the information concerning the Company set forth in the Companys federal income tax returns, and in the Registration Statement, as well as the information provided to us by the Companys management are true and correct. We have no reason to believe that such assumptions are not warranted.
Based upon the foregoing, we are of the opinion that (i) the Company was a real estate investment trust as defined by section 856(a) for its taxable years ended December 31, 1984 through December 31, 2011, (ii) its current and proposed method of operation and ownership will enable it to meet the requirements for qualification and taxation as a REIT for its taxable year ending December 31, 2012 and for all future taxable years, and (iii) the statements in the prospectus set forth under the caption Federal Income Tax Considerations, and in the prospectus supplement set forth under the caption Supplemental Material United States Federal Income Tax
Pillsbury Winthrop Shaw Pittman LLP
National Retail Properties, Inc.
February 15, 2012
Page 3
Considerations, insofar as they purport to describe or summarize certain provisions of the agreements, statutes or regulations referred to therein, are accurate descriptions or summaries in all material respects, and the discussion thereunder expresses the opinion of Pillsbury Winthrop Shaw Pittman LLP insofar as it relates to matters of United States federal income tax law and legal conclusions with regard to those matters. With respect to the 2012 year and all future years, however, we note that the Companys status as a real estate investment trust at any time is dependent upon, among other things, its meeting the requirements of section 856 throughout the year and for the year as a whole.
This opinion is based upon the existing provisions of the Code (or predecessor provisions, as applicable), rules and regulations (including proposed regulations) promulgated thereunder, and reported administrative and judicial interpretations thereof, all of which are subject to change, possibly with retroactive effect. This opinion is limited to the specific matters covered hereby and should not be interpreted to imply that the undersigned has offered its opinion on any other matter.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. We also consent to the reference to Pillsbury Winthrop Shaw Pittman LLP under the caption Legal Matters in the Registration Statement. In giving such consent, we do not consider that we are experts, within the meaning of the term used in the Securities Act of 1933, as amended (the Act), or the rules and regulations of the Securities and Exchange Commission promulgated thereunder, with respect to any part of the Registration Statement, including this opinion as an exhibit or otherwise, or within the category of persons whose consent is required by Section 7 of the Act.
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Pillsbury Winthrop Shaw Pittman LLP
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