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): May 29, 2013
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) | |||
Registrant’s 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 May 29, 2013, National Retail Properties, Inc. (the “Company”) filed with the Maryland State Department of Assessments and Taxation Articles Supplementary (the “Articles Supplementary”) to the Company’s 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 Company’s 5.70% Series E Cumulative Redeemable Preferred Stock, par value $0.01 per share (the “Series E Preferred Stock”).
The Series E Preferred Stock will be redeemable at par at the Company’s election on or after May 30, 2018, will pay a 5.70% 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 Company’s assets upon liquidation, dissolution or winding up, the Series E Preferred Stock will rank (i) senior to the Company’s common stock, (ii) on a parity with the Company’s outstanding shares of 6.625% Series D 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 E Preferred Stock, and (iii) junior to all of the Company’s 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 E Preferred Stock. Unless full dividends on the Series E Preferred Stock and any other class of the Company’s stock ranking on parity with the Series E 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 Company’s common stock or any other capital stock that rank junior to the Series E Preferred Stock as to dividends and none of the Company’s common stock, junior stock or parity stock as to dividends may be redeemed. In the event of the Company’s liquidation, dissolution or winding up, the holders of the Series E Preferred Stock are entitled to be paid out of the Company’s 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 Company’s common stock or any other capital stock that rank junior to the Series E Preferred Stock as to liquidation preference.
On and after May 30, 2018, the Company may, at its option, redeem the Series E 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 . Upon the occurrence of a “Change of Control” (as defined below), the Company may, at its option, redeem the Series E 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 E 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 E Preferred Stock) to convert some or all of their Series E Preferred Stock into a number of shares of common stock per Series E 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 E Preferred Stock dividend payment and prior to the corresponding Series E 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 |
| • | 119.45, 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 MKT LLC 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 E 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 E 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 E Preferred Stock are set forth in the Articles Supplementary filed as Exhibit 3.2 to the Registration Statement on Form 8-A filed by the Company on May 30, 2013, which is incorporated herein by reference. The terms of the depositary shares, each representing a 1/100th interest in a share of Series E Preferred Stock, are set forth in the Deposit Agreement, dated as of May 30, 2013, 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”). A form of the Deposit Agreement is filed as Exhibit 4.1 to the Registration Statement on Form 8-A filed by the Company on May 30, 2013 and is incorporated herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The disclosure provided under Item 3.03 above is incorporated hereunder by reference.
Item 9.01. Financial Statements and Exhibits.
| (d) | Exhibits. |
| Exhibit No. |
Description | |
| 3.1 | Articles Supplementary Establishing and Fixing the Rights and Preferences of 5.70% Series E Cumulative Redeemable Preferred Stock, par value $0.01 per share, dated May 29, 2013 (filed as Exhibit 3.2 to the Registration Statement on Form 8-A filed on May 30, 2013). | |
| 4.1 | Form of Deposit Agreement, among the Registrant, American Stock Transfer & Trust Company, as Depositary, and the holders of depositary receipts (filed as Exhibit 4.1 to the Registration Statement on Form 8-A filed on May 30, 2013 and incorporated herein by reference). | |
| 4.2 | Specimen Certificate for National Retail Property, Inc.’s 5.70% Series E Cumulative Redeemable Preferred Stock, par value $0.01 per share (filed as Exhibit 4.3 to the Registration Statement on Form 8-A filed on May 30, 2013 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: May 30, 2013
EXHIBIT INDEX
| Exhibit |
Description | |
| 3.1 | Articles Supplementary Establishing and Fixing the Rights and Preferences of 5.70% Series E Cumulative Redeemable Preferred Stock, par value $0.01 per share, dated May 29, 2013 (filed as Exhibit 3.2 to the Registration Statement on Form 8-A filed on May 30, 2013). | |
| 4.1 | Form of 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 May 30, 2013 and incorporated herein by reference). | |
| 4.2 | Specimen Certificate for National Retail Property, Inc.’s 5.70% Series E 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 May 30, 2013 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 5.1
PILLSBURY WINTHROP SHAW PITTMAN LLP
2300 N St. NW
Washington, DC 20037
May 30, 2013
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 Company’s 5.70% Series E Cumulative Redeemable Preferred Stock, par value $0.01 per share (the “Series E 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 May 22, 2013 (the “Underwriting Agreement”) between the Company and the several underwriters named therein and of the Deposit Agreement dated May 30, 2013 (the “Deposit Agreement”) by and among the Company, American Stock Transfer & Trust Company, LLC, as Depositary, and the holders from time to time of the depositary receipts issued thereunder. The Depositary Shares and Series E Preferred Stock will be offered and sold by the Company pursuant to the Registration Statement on Form S-3 (Registration No. 333-179696) (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 24, 2012, as supplemented by the prospectus supplement dated May 22, 2013 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 E 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, and 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 law of the State of Maryland, 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 Company’s 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 St. NW
Washington, DC 20037
May 22, 2013
National Retail Properties, Inc.
450 South Orange Avenue
Suite 900
Orlando, FL 32801
Ladies and Gentlemen:
In connection with the filing on May 22, 2013 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 Company’s 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 22, 2013; and the Company’s 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)
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 Company’s 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 Company’s federal income tax returns, and in the Registration Statement, as well as the information provided to us by the Company’s 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, 2012, (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, 2013 and for all future taxable years, and (iii) the statements in (x) the prospectus set forth under the caption “Material Federal Income Tax Considerations,” and (y) the prospectus supplement set forth under the caption “Additional Material Federal Income Tax
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 2013 year and all future years, however, we note that the Company’s 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.
/s/ PILLSBURY WINTHROP SHAW PITTMAN LLP