Healthpeak Properties, Inc 8-K, filed Jul 30, 2020
Healthpeak Properties, Inc. (DOC)
About this 8-K
Healthpeak Properties, Inc filed this 8-K on July 30, 2020.
Items reported
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WAshington, D.C. 20549
FORM
CURRENT REPORT
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 8.01 Other Events.
On July 30, 2020, Healthpeak Properties, Inc., a Maryland corporation (the “Company”), filed with the Securities and Exchange Commission a prospectus supplement (the “Prospectus Supplement”) to the prospectus dated May 31, 2018 included in the Company’s automatic shelf registration statement on Form S-3ASR (No. 333-225318). The Prospectus Supplement relates to the possible issuance of up to 926,055 shares of the Company’s common stock, from time to time, to the holders of units representing non-managing membership interests in SH DR California IV, LLC (the “Units”), in connection with a redemption of the Units.
Pursuant to the terms of the Second Amended and Restated Limited Liability Company Agreement of SH DR California IV, LLC, dated as of July 18, 2019 (the “LLC Agreement”), the holders of the Units may not exercise their redemption rights until one year after the date of issuance of the Units. Registration of the issuance of shares of the Company’s common stock as provided in the Prospectus Supplement does not necessarily mean that any of the holders of the Units will exercise their redemption rights with respect to the Units or that SH DR California IV, LLC will elect, in its sole discretion, to issue shares of the Company’s common stock to satisfy its redemption obligation instead of paying a cash amount.
In connection with the filing of the Prospectus Supplement, the Company is filing an opinion of its counsel, Ballard Spahr LLP, regarding the legality of the securities being registered, which opinion is attached as Exhibit 5.1 to this Current Report on Form 8-K, and an opinion of its counsel, Skadden, Arps, Slate, Meagher & Flom LLP, regarding certain tax matters, which opinion is attached as Exhibit 8.1 to this Current Report on Form 8-K.
The Company has also filed a copy of the LLC Agreement, which agreement is incorporated by reference as Exhibit 10.1 to this Current Report on Form 8-K.
Item 9.01 Financial Statements and Exhibits.
| (d) | Exhibits. The following exhibits are being filed herewith: |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: July 30, 2020
| Healthpeak Properties, Inc. | ||
| By: | /s/ Troy E. McHenry | |
| Troy E. McHenry | ||
| Executive Vice President, Chief Legal Officer and Corporate Secretary | ||
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Exhibit 5.1
July 30, 2020
Healthpeak Properties, Inc.
1920 Main Street
Suite 1200
Irvine, California 92614
| Re: | Healthpeak Properties, Inc., a Maryland corporation (the "Company") |
Ladies and Gentlemen:
We have acted as Maryland corporate counsel to the Company in connection with the registration of 926,055 shares (the "Shares") of common stock of the Company, par value $1.00 per share ("Common Stock"), to be issued to one or more holders (the "Unit Holders") of units representing non-managing membership interests (the "Units") in SH DR California IV, LLC, a Delaware limited liability company (the "LLC"), in exchange for such Units upon redemption thereof, under the Securities Act of 1933, as amended (the "Act"), pursuant to the Registration Statement on Form S-3 filed with the Securities and Exchange Commission (the "Commission") on or about May 31, 2018 (the "Registration Statement"). You have requested our opinion with respect to the matters set forth below.
In our capacity as Maryland corporate counsel to the Company and for the purposes of this opinion, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (collectively, the "Documents"):
| (i) | the corporate charter of the Company (the "Charter"), represented by Articles of Restatement filed with the State Department of Assessments and Taxation of Maryland (the "Department") on June 1, 2012, Articles of Merger filed with the Department on December 3, 2015, Articles Supplementary filed with the Department on July 31, 2017 and Articles of Amendment filed with the Department on October 30, 2019; |
| (ii) | the Fifth Amended and Restated Bylaws of the Company dated as of February 8, 2015, as amended by Amendment No. 1 to the Fifth Amended and Restated Bylaws of the Company, dated as of January 28, 2016, and Amendment No. 2 to the Fifth Amended and Restated Bylaws of the Company, dated as of July 27, 2017, and the Sixth Amended and Restated Bylaws of the Company dated as of October 30, 2019 (collectively, the "Bylaws"); |
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
July 30, 2020
Page 2
| (iii) | the Minutes of the Organizational Action of the Board of Directors of the Company, dated March 21, 1985 (the "Organizational Minutes"); |
| (iv) | certain resolutions adopted by the Board of Directors of the Company (the "Directors' Resolutions"); |
| (v) | the Second Amended and Restated Limited Liability Company Agreement of SH DR California IV, LLC, dated as of July 18, 2019 (the "LLC Agreement"); |
| (vi) | a certificate of Troy E. McHenry, the Executive Vice President, Chief Legal Officer and Corporate Secretary of the Company, dated as of a recent date (the "Officer's Certificate"), to the effect that, among other things, the Charter, the Bylaws, the Organizational Minutes, the Directors' Resolutions and the LLC Agreement are true, correct and complete, have not been rescinded or modified and are in full force and effect on the date of the Officer's Certificate; |
| (vii) | the Registration Statement and the related form of prospectus supplement relating to the Shares (the "Prospectus Supplement"), in substantially the form filed or to be filed with the Commission pursuant to the Act; |
| (viii) | a status certificate of the Department, dated as of a recent date, to the effect that the Company is duly incorporated and existing under the laws of the State of Maryland; and |
| (ix) | such other laws, records, documents, certificates, opinions and instruments as we have deemed necessary to render this opinion, subject to the limitations, assumptions and qualifications noted below. |
In reaching the opinions set forth below, we have assumed the following:
| (a) | each person executing any instrument, document or agreement on behalf of any party (other than the Company) is duly authorized to do so; |
| (b) | each natural person executing any instrument, document or agreement is legally competent to do so; |
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
July 30, 2020
Page 3
| (c) | any of the Documents submitted to us as originals are authentic; the form and content of any Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such documents as executed and delivered; any of the Documents submitted to us as certified or photostatic copies conform to the original documents; all signatures on all of the Documents are genuine; all public records reviewed or relied upon by us or on our behalf are true and complete; there has been no modification of, or amendment to, any of the Documents, and there has been no waiver of any provision of any of the Documents by action or omission of the parties or otherwise; |
| (d) | all certificates submitted to us, including but not limited to the Officer's Certificate, are true, correct and complete both when made and as of the date hereof; |
| (e) | upon the issuance of any of the Shares subsequent to the date hereof, the total number of shares of Common Stock of the Company issued and outstanding on the date subsequent to the date hereof on which such Shares are issued, after giving effect to such issuance of such Shares, will not exceed the total number of shares of Common Stock that the Company is authorized to issue under the Charter; |
| (f) | none of the Shares will be issued or transferred in violation of the provisions of Article V of the Charter relating to restrictions on ownership and transfer of stock or the provisions of Article V of the Charter relating to business combinations; and |
| (g) | none of the Shares will be issued and sold to an Interested Stockholder of the Company or an Affiliate thereof, all as defined in Subtitle 6 of Title 3 of the Maryland General Corporation Law (the "MGCL"), in violation of Section 3-602 of the MGCL. |
Based on the foregoing, and subject to the assumptions and qualifications set forth herein, it is our opinion that, as of the date of this letter:
| 1. | The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. |
| 2. | The Shares have been duly authorized for issuance by all necessary corporate action on the part of the Company, and if, as and when such Shares are issued and delivered by the Company to the applicable Unit Holders in exchange for Units of the LLC upon redemption thereof, upon and subject to the terms and conditions set forth in the LLC Agreement and the Directors' Resolutions, such Shares will be duly authorized, validly issued, fully paid and non-assessable. |
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
July 30, 2020
Page 4
The foregoing opinion is limited to the substantive laws of the State of Maryland, and we do not express any opinion herein concerning any other law. We express no opinion as to the applicability or effect of any federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers. To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter.
This opinion letter is issued as of the date hereof and is necessarily limited to laws now in effect and facts and circumstances presently existing and brought to our attention. We assume no obligation to supplement this opinion letter if any applicable laws change after the date hereof, or if we become aware of any facts or circumstances that now exist or that occur or arise in the future and may change the opinions expressed herein after the date hereof.
We consent to your filing this opinion as an exhibit to the Company’s Current Report on Form 8-K relating to the Shares, which is incorporated by reference in the Registration Statement, and further consent to the filing of this opinion as an exhibit to the applications to securities commissioners for the various states of the United States for registration of the Shares. We also consent to the identification of our firm as Maryland counsel to the Company in the section of the Prospectus Supplement entitled "Validity of Common Stock". In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Act.
| Very truly yours, | |
| /s/ Ballard Spahr LLP |
Exhibit 8.1
Skadden, Arps, Slate, Meagher & Flom llp
155 North Wacker Drive
| Chicago, Illinois 60606-1720 |
FIRM/AFFILIATE |
| ________ | OFFICES |
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| TEL: (312) 407-0700 | BOSTON |
| FAX: (312) 407-0411 | HOUSTON |
| www.skadden.com | LOS ANGELES |
| NEW YORK | |
| PALO ALTO | |
| WASHINGTON, D.C. | |
| WILMINGTON | |
| ----------- | |
| BEIJING | |
| BRUSSELS | |
| FRANKFURT | |
| HONG KONG | |
| LONDON | |
| MOSCOW | |
| July 30, 2020 | MUNICH |
| PARIS | |
| SÃO PAULO | |
| SEOUL | |
| SHANGHAI | |
| SINGAPORE | |
| Healthpeak Properties, Inc. | TOKYO |
| 1920 Main Street, Suite 1200 | TORONTO |
Irvine, CA 92614
| Re: | Certain United States Federal Income Tax Matters |
Ladies and Gentlemen:
We have acted as United States federal income tax counsel to Healthpeak Properties, Inc., a Maryland corporation (“Healthpeak” and, collectively with the entities in which Healthpeak holds, or has held, a direct or indirect interest, the “Company”), in connection with the issuance of shares of common stock (the “Securities”) offered by the prospectus supplement dated July 30, 2020 (the “Prospectus Supplement”).
The Securities are being offered pursuant to (i) a registration statement on Form S-3 (File No. 333-225318) relating to the Securities and other securities of Healthpeak filed on May 31, 2018 with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), allowing for delayed offerings pursuant to Rule 415 of the General Rules and Regulations under the Securities Act (the “Rules and Regulations”), including the information deemed to be a part of the registration statement pursuant to Rule 430B of the Rules and Regulations (such registration statement, the “Registration Statement”); (ii) a prospectus, dated May 31, 2018 (the “Base Prospectus”), which forms a part of and is included in the Registration Statement; and (iii) the Prospectus Supplement (together with the Base Prospectus, the “Prospectus”). The Registration Statement and the Prospectus are collectively referred to herein as the “Offering Documents.”
Healthpeak Properties, Inc.
July 30, 2020
Page 2
This opinion is being furnished in accordance with the requirements of Item 601(b)(8) of Regulation S-K under the Securities Act.
In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the Offering Documents and such other documentation and information provided to us by you as we have deemed necessary or appropriate as a basis for the opinion set forth herein. In addition, you have provided us with, and we are relying upon, a certificate containing certain factual statements, factual representations, and covenants of officers of Healthpeak (the “Officers’ Certificate”) relating to, among other things, the actual and proposed operations of the Company. These representations and covenants relate, in some cases, to transactions and investments for which we did not act as the Company’s primary counsel. For purposes of our opinion, we have not independently verified all of the facts, statements, representations and covenants set forth in the Officers’ Certificate, the Offering Documents or in any other document. In particular, we note that the Company may engage in transactions in which we have not provided legal advice, and have not reviewed, and of which we may be unaware. We have, consequently, assumed and relied on your representation that the statements, representations, and covenants contained in the Officers’ Certificate, the Offering Documents, and other documents, or otherwise furnished to us, accurately and completely describe all material facts relevant to such statements, representations, and covenants. We have assumed that such facts, statements, representations, and covenants are true without regard to any qualification as to knowledge, belief, intent, or materiality. Our opinion is conditioned on the continuing accuracy and completeness of such facts, statements, representations, and covenants. We are not aware of any facts inconsistent with such statements, representations, and covenants. Any material change or inaccuracy in the facts referred to, set forth or assumed herein or in the Officers’ Certificate may affect our conclusions set forth herein.
In our review of certain documents in connection with our opinion as expressed below, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed, photostatic, or electronic copies, and the authenticity of the originals of such copies. Where documents have been provided to us in draft form, we have assumed that the final executed versions of such documents will not differ materially from such drafts.
Our opinion is also based on the correctness of the following assumptions: (i) Healthpeak and each of the entities comprising the Company has been and will continue to be operated in accordance with the laws of the jurisdiction in which it was formed and in the manner described in the relevant organizational documents, (ii) there will be no changes in the applicable laws of the State of Maryland or of any other jurisdiction under the laws of which any of the entities comprising the Company have been formed, and (iii) each of the written agreements to which the Company is a party has been and will be implemented, construed, and enforced in accordance with its terms.
In rendering our opinion, we have considered and relied upon the Internal Revenue Code of 1986, as amended (the “Code”), the regulations promulgated thereunder (“Regulations”), administrative rulings and other Treasury interpretations of the Code and the Regulations by the courts and the Internal Revenue Service, all as they exist at the date hereof. It should be noted that the Code, Regulations, judicial decisions, and administrative interpretations are subject to change at any time and, in some circumstances, with retroactive effect. A material change that is made after the date hereof in any of the foregoing bases for our opinion could affect our conclusions set forth herein. There can be no assurance, moreover, that our opinion will be accepted by the Internal Revenue Service or, if challenged, by a court.
Healthpeak Properties, Inc.
July 30, 2020
Page 3
Based on and subject to the foregoing, we are of the opinion that commencing with Healthpeak’s taxable year that ended on December 31, 1985, Healthpeak has been organized and operated in conformity with the requirements for qualification as a real estate investment trust (a “REIT”) under the Code, and its actual method of operation through the date of this opinion has enabled, and its proposed method of operation will continue to enable, it to meet the requirements for qualification and taxation as a REIT under the Code thereafter.
As noted in the Prospectus, Healthpeak’s qualification and taxation as a REIT depend upon its ability to meet, through actual operating results, certain requirements relating to the sources of its income, the nature of its assets, distribution levels and diversity of stock ownership, and various other qualification tests imposed under the Code, the results of which are not reviewed by us. Accordingly, no assurance can be given that the actual results of Healthpeak’s operation for any one taxable year will satisfy the requirements for taxation as a REIT under the Code.
This opinion is furnished only to you in connection with the Offering Documents. We hereby consent to the filing of this opinion with the Commission as an exhibit to Healthpeak’s Current Report on Form 8-K, being filed on the date hereof. 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 Securities Act or the Rules and Regulations. Except as set forth above, we express no other opinion. This opinion is expressed as of the date hereof, and we are under no obligation to supplement or revise our opinion to reflect any legal developments or factual matters arising subsequent to the date hereof, or the impact of any information, document, certificate, record, statement, representation, covenant, or assumption relied upon herein that becomes incorrect or untrue.
| Very truly yours, | |
| /s/ Skadden, Arps, Slate, Meagher & Flom LLP |