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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 1, 2024
Gladstone Commercial Corporation
(Exact Name of Registrant as Specified in Charter)
Maryland 001-33097 02-0681276
(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification Number)
1521 Westbranch Drive
,
Suite 100
,
McLean
,
Virginia
22102
(Address of Principal Executive Offices) (Zip Code)
(703)
287-5800
(Registrant's telephone number, including area code)
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:
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))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Trading Name of each exchange
Symbol(s) on which registered
Common Stock, par value $0.001 per share GOOD Nasdaq Global Select Market LLC
6.625% Series E Cumulative Redeemable Preferred Stock, par value $0.001 per share GOODN Nasdaq Global Select Market LLC
6.00% Series G Cumulative Redeemable Preferred Stock, par value $0.001 per share GOODO Nasdaq Global Select Market LLC
Indicate by check mark whether the registrant is an emerging growth company as
defined in Rule 405 of the Securities Act of 1933 ((s)230.405 of this chapter)
or Rule
12b-2
of the Securities Exchange Act of 1934
((s)240.12b-2
of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has
elected not to use the extended transition period for complying with any new
or revised financial accounting standards provided pursuant to Section 13(a)
of the Exchange Act.
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Item 8.01. Other Events.
As previously disclosed, the Company is party to that certain Dealer Manager
Agreement, dated as of February 20, 2020 (the "
Original Dealer Manager Agreement
"), as amended by that certain First Amendment to Dealer Manager Agreement,
dated as of February 9, 2023 (the "
First Amendment
" and, together with the Original Dealer Manager Agreement, the "
Dealer
Manager
Agreement
"), pursuant to which the Company may issue and sell shares of its 6.00%
Series F Cumulative Redeemable Preferred Stock, par value $0.001 per share ("
Series F Preferred Stock
").
The Company has filed a new prospectus supplement (the "
New Prospectus Supplement
") relating to the offering of (i) a maximum of 19,088,864 shares of Series F
Preferred Stock pursuant to the Dealer Manager Agreement, and (ii) up to
5,949,560 shares of Series F Preferred Stock pursuant to a dividend
reinvestment plan to those holders of the Series F Preferred Stock who
participate in such dividend reinvestment plan. The New Prospectus Supplement
supersedes and replaces the prospectus supplement, dated February 9, 2023 (the
"
Prior
Prospectus
Supplement
"), (which superseded and replaced the prospectus supplement, dated February
20, 2020 (the "
Original
Prospectus
Supplement
")), pursuant to which the Company offered a maximum of 19,329,859 shares of
Series F Preferred Stock in a primary offering and up to 5,975,410 shares of
Series F Preferred Stock pursuant to a dividend reinvestment plan. As of the
date hereof, 911,136 shares of Series F Preferred Stock have been sold in the
aggregate in the primary offering under the Original Prospectus Supplement and
the Prior Prospectus Supplement and 50,440 shares of Series F Preferred Stock
have been sold in the aggregate pursuant to the dividend reinvestment plan
under the Original Prospectus Supplement and the Prior Prospectus Supplement.
Copies of the Original Dealer Manager Agreement and the First Amendment are
filed as Exhibits 1.1 and 1.2, respectively, and are incorporated herein by
reference.
In connection with the filing of the New Prospectus Supplement, the Company is
also filing (i) the opinion of Venable LLP regarding the legality of shares as
Exhibit 5.1 to this Current Report on Form 8-K and (ii) the opinion of Squire
Patton Boggs (US) LLP regarding certain tax matters as Exhibit 8.1 to this
Current Report on
Form 8-K.
Item 9.01. Financial Statements and Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Not applicable.
(d) Exhibits.
Exhibit Description
No.
1.1 Dealer Management Agreement,
dated as of February
20, 2020, by and between Gladstone Commercial Corporation and
Gladstone Securities, LLC (incorporated by reference to Exhibit
1.1 to the Registrant's
Current Report on Form
8-K
(File No.
001-33097),
filed February
20, 2020).
1.2 First Amendment to Dealer Manager Agreement, dated as of February 9, 2023, by and between Gladstone Commercial Corporation
and Gladstone Securities, LLC (incorporated by reference to Exhibit 1.1 to the Company's Current Report on Form
8-K
(File
No. 001-33097),
filed February 9, 2023).
5.1 Opinion of Venable LLP.
8.1 Tax Opinion of Squire Patton Boggs (US) LLP.
23.1 Consent of Venable LLP
(included in Exhibit 5.1).
23.2 Consent of Squire Patton Boggs (US)
LLP (included in Exhibit 8.1).
104 Cover Page Interactive Data File (embedded
within the Inline XBRL document).
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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.
Gladstone Commercial Corporation
(Registrant)
May 1, 2024 By: /s/ Gary Gerson
Gary Gerson
Chief Financial Officer
Exhibit 5.1
May 1, 2024
Gladstone CommercialCorporation
Suite 100
1521 Westbranch Drive
McLean, Virginia 22102
Re: Registration Statement on Form
S-3
(Registration No.
333-277877)
Ladies and Gentlemen:
We have served as Maryland counsel to Gladstone Commercial Corporation, a
Maryland corporation (the "Company"), in connection withcertain matters of
Maryland law arising out of the registration of (a) 19,088,864 shares (the
"Offering Shares") of 6.00% Series F Cumulative Redeemable Preferred Stock,
par value $0.001 per share (the "Series F PreferredStock"), of the Company, to
be issued in a public offering (the "Offering") pursuant to the Prospectus
Supplement (as defined below) and the Dealer Manager Agreement (as defined
below), and (b) 5,949,560 shares (the "DRIPShares" and, together with the
Offering Shares, the "Shares") of Series F Preferred Stock, to be issued
pursuant to the Prospectus Supplement and the Company's dividend reinvestment
plan (the "Plan"), each covered bythe above-referenced Registration Statement,
and all amendments thereto (the "Registration Statement"), filed by the
Company with the United States Securities and Exchange Commission (the
"Commission") under the Securities Act of1933, as amended (the "1933 Act").
In connection with our representation of the Company, and as a basis for the
opinionhereinafter set forth, we have examined originals, or copies certified
or otherwise identified to our satisfaction, of the following documents
(hereinafter collectively referred to as the "Documents"):
1. The Registration Statement;
2. The Prospectus, dated March 21, 2024, as supplemented by a Prospectus
Supplement, dated May 1, 2024 (the "ProspectusSupplement"), filed with the
Commission pursuant to Rule 424(b) of the General Rules and Regulations
promulgated under the 1933 Act;
3. The charter of the Company (the "Charter"), certified by the State
Department of Assessments and Taxation of Maryland (the"SDAT");
4. The Bylaws of the Company, as amended, certified as of the date hereof by
an officer of the Company;
5. A certificate of the SDAT as to the good standing of the Company, dated as
of a recent date;
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Gladstone Commercial Corporation
May 1, 2024
Page 2
6. Resolutions (the "Resolutions") adopted by the Board of Directors of the
Company(the "Board"), relating to, among other matters, (a) the sale and
issuance of the Shares, (b) the adoption of the Plan and (c) the authorization
of the execution, delivery and performance by the Company of the Dealer
ManagerAgreement, certified as of the date hereof by an officer of the Company;
7. The Dealer Manager Agreement, dated as of February 20,2020, as amended by
that certain First Amendment to Dealer Manager Agreement, dated as of February
9, 2023 (collectively, the "Dealer Manager Agreement"), by and between the
Company and Gladstone Securities LLC, a Delaware limitedliability company;
8. The Plan, as described under the heading "Dividend Reinvestment Plan" in
the Prospectus Supplement;
9. A certificate executed by an officer of the Company, dated as of the date
hereof; and
10. Such other documents and matters as we have deemed necessary or
appropriate to express the opinion set forth below, subject to theassumptions,
limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of such
individual or any other person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party (other
than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the Documents
has duly and validly executed and delivered each of theDocuments to which such
party is a signatory, and such party's obligations set forth therein are
legal, valid and binding and are enforceable in accordance with all stated
terms.
4. All Documents submitted to us as originals are authentic. The form and
content of all Documents submitted to us as unexecuted drafts do notdiffer in
any respect relevant to this opinion from the form and content of such
Documents as executed and delivered. All Documents submitted to us as
certified or photostatic copies conform to the original documents. All
signatures on all Documentsare genuine. All public records reviewed or relied
upon by us or on our behalf are true and complete. All representations,
warranties, statements and information contained in the Documents are true and
complete. There has been no oral or writtenmodification 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.
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Gladstone Commercial Corporation
May 1, 2024
Page 3
5. Upon issuance of any of the Shares, the total number of shares of Series F
Preferred Stockissued and outstanding will not exceed the total number of
shares of Series F Preferred Stock that the Company is then authorized to
issue under the Charter.
6. The Shares will not be issued in violation of any restriction or limitation
contained in Article EIGHTH of the Charter.
Based upon the foregoing, and subject to the assumptions, limitations and
qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under and by
virtue of the laws of the State of Maryland and is in good standingwith the
SDAT.
2. The issuance of the Offering Shares has been duly authorized and, when and
to the extent issued against payment thereforin accordance with the
Registration Statement, the Prospectus Supplement, the Resolutions and the
Dealer Manager Agreement, the Offering Shares will be validly issued, fully
paid and nonassessable.
3. The issuance of the DRIP Shares has been duly authorized and, when and to
the extent issued against payment therefor in accordance with theRegistration
Statement, the Prospectus Supplement, the Resolutions and the Plan, the DRIP
Shares will be validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the laws of the State of Maryland and we
do not express any opinion herein concerning any other law. Weexpress no
opinion as to compliance with 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
ouropinion 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. The opinion expressed herein is subject to the effect of
judicial decisions which maypermit the introduction of parol evidence to
modify the terms or the interpretation of agreements.
The opinion expressed herein islimited to the matters specifically set forth
herein and no other opinion shall be inferred beyond the matters expressly
stated. We assume no obligation to supplement this opinion if any applicable
law changes after the date hereof or if we becomeaware of any fact that might
change the opinion expressed herein after the date hereof.
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Gladstone Commercial Corporation
May 1, 2024
Page 4
This opinion is being furnished to you for submission to the Commission as an
exhibit to theCompany's Current Report on Form
8-K
relating to the Offering (the "Current Report"), which is incorporated by
reference in the Registration Statement. We hereby consent to the filing of
thisopinion as an exhibit to the Current Report and the said incorporation by
reference and to the use of the name of our firm therein. In giving this
consent, we do not admit that we are within the category of persons whose
consent is required bySection 7 of the 1933 Act.
Very truly yours,
/s/ Venable LLP
Exhibit 8.1
Squire Patton Boggs (US) LLP
2550 M Street, NW
Washington, DC20037
O +1 202 457 6000
F +1202 457 6315
squirepattonboggs.com
May 1, 2024
Gladstone Commercial Corporation
1521 Westbranch Drive, Suite 100
McLean, Virginia 22102
Re: Registration Statement on Form
S-3
(Registration
No. 333-277877)
Ladies and Gentlemen:
We have acted as tax counsel to Gladstone Commercial Corporation, a Maryland
corporation ("
Gladstone
"), and Gladstone CommercialLimited Partnership, a Delaware limited
partnership (the "
Operating Partnership
"), in connection with the offer and sale of shares of Gladstone's 6.00%
Series F Cumulative Redeemable Preferred Stock, par value $0.001 pershare,
pursuant to a prospectus supplement filed with the Securities and Exchange
Commission (the "
SEC
") on May 1, 2024 (the "
Prospectus Supplement
") pursuant to the Securities Act of 1933, asamended (the "
Act
"), as part of a registration statement on
Form S-3, File No. 333-277877 (the
"
RegistrationStatement
"), which contains the base prospectus (the "
Prospectus
"). You have requested our opinion regarding certain U.S. federal income tax
matters.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of such documentation
andinformation provided by Gladstone as we have deemed necessary or
appropriate as a basis for the opinion set forth herein. In addition,
Gladstone has provided us with, and we are relying upon, a certificate
containing certain factual representationsand covenants of duly authorized
officers of Gladstone (the "Officers' Certificate") relating to, among other
things, the actual and proposed operations of Gladstone, the Operating
Partnership and the entities in which either holds,or has held, a direct or
indirect interest (Gladstone, the Operating Partnership and such entities,
collectively, the "Company").
For purposesof this opinion, we have not independently verified the facts,
statements, representations and covenants set forth in the Officers'
Certificate or in any other document. In particular, we note that the Company
has engaged in, and may engage in,transactions in connection with which we
have not provided legal advice, and have not reviewed, and of which we may be
unaware. Consequently, we have relied on Gladstone's representations that the
facts, statements, representations andcovenants presented in the Officers'
Certificate and other documents, or otherwise furnished to us, accurately and
completely describe all material facts relevant to our opinion. We have
assumed that all such facts, statements, representationsand covenants are true
without regard to any qualification as to knowledge, belief or intent. Our
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opinion is conditioned on the continuing accuracy and completeness of such
facts, statements, representations and covenants. No facts have come to our
attention that would cause us to questionthe accuracy or completeness of such
facts, statements, representations, or covenants. Any material change or
inaccuracy in the facts, statements, representations, or covenants 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 haveassumed 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 orphotostatic 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 also is based on the correctness of the following assumptions: (a)
the entities comprising the Company have been and will continue to beoperated
in accordance with the laws of the jurisdictions in which they were formed and
in the manner described in the relevant organizational documents, (b) there
will be no changes in the applicable laws of the State of Maryland or of
anyother jurisdiction under the laws of which any of the entities comprising
the Company have been formed, and (c) each of the written agreements to which
the Company is a party will be implemented, performed, construed and enforced
in accordancewith its terms. We have made all assumptions and statements of
reliance herein with your permission and without any independent investigation
or verification on our part. We express no opinion with respect to the subject
matter or accuracy of suchassumptions or items relied upon.
In rendering our opinion, we have considered and relied upon the Internal
Revenue Code of 1986, as amended (the"Code"), and existing and proposed
Treasury regulations, rulings and other administrative guidance and judicial
decisions, all as in effect as of the date hereof and all of which are subject
to change or differing interpretations, possiblywith retroactive effect. Any
such change or interpretation could affect our conclusions set forth herein.
In this regard, an opinion of counsel with respect to an issue represents
counsel's best judgment as to the outcome on the merits withrespect to such
issue, is not binding on the IRS or the courts, and is not a guarantee that
the IRS will not assert a contrary position with respect to such issue or that
a court will not sustain such a position if asserted by the IRS.
We express no opinion as to the laws of any jurisdiction other than the
federal laws of the United States of America to the extent specifically
referred toherein.
Based upon and subject to the foregoing and the discussion below, we are of
the opinion that:
1. Gladstone has been organized and has operated in conformity with the requirements for qualification andtaxation as a
real estate investment trust (a "REIT") pursuant to Sections 856 through 860 of the Code for its taxable years ended
December 31, 2022 and December 31, 2023, and Gladstone's organization and current andproposed method of operation will
enable it to continue to qualify for taxation as a REIT for its taxable year ending December 31, 2024 and in the future.
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2. The statements contained in the Prospectus under the caption "Material U.S.
Federal Income TaxConsiderations" insofar as such statements constitute matters
of law, summaries of legal matters, or legal conclusions, fairly present
and summarize, in all material respects, the matters referred to therein.
We express no opinion on any issue relating to the Company other than as
expressly stated above.
Gladstone's qualification and taxation as a REIT depend upon its ability to
meet on a continuing basis, through actual annual operating and otherresults,
the various requirements under the Code with regard to the sources of its
income, the composition of its assets, the level of its distributions to
stockholders, and the diversity of its stock ownership, among other things.
Squire PattonBoggs (US) LLP will not review Gladstone's compliance with these
requirements on a continuing basis. Accordingly, no assurance can be given
that the actual results of Gladstone's operations for the current taxable year
or any futuretaxable years will satisfy the requirements for Gladstone's
qualification and taxation as a REIT.
The foregoing opinion is limited to the U.S.federal income tax matters
addressed herein. We express no opinion with respect to other federal tax
matters, issues arising under any other federal laws or the laws of any other
country, or any state or locality. This opinion is expressed as of thedate
hereof, and we are under no obligation and undertake no obligation to
supplement or revise our opinion to reflect any legal or factual developments
arising subsequent to the date hereof.
This opinion letter has been prepared in connection with Gladstone's filing of
the Prospectus Supplement. Except as provided in the next paragraph,
thisopinion letter may not be distributed, quoted in whole or in part or
otherwise reproduced in any document, filed with any governmental agency, or
relied upon by any other person for any other purpose, other than as required
by law, without ourexpress written consent.
We hereby consent to the filing of this opinion letter as an exhibit to a
Current Report on Form
8-K,
to be filed by the Company with the SEC on or about the date hereof, which
will be incorporated by reference in the Registration Statement. We also
consent to the reference to Squire Patton Boggs (US) LLPunder the caption
"Legal Matters" in the Prospectus Supplement. In giving this consent, we do
not admit that we are in the category of persons whose consent is required
under the Act or the rules and regulations of the SEC thereunder.
Very truly yours,
/s/ Squire Patton Boggs (US) LLP
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