As filed with the Securities and Exchange Commission on June 22, 2018
Registration No.
333-
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Essential Properties Realty Trust, Inc.
(Exact name of registrant as specified in its charter)
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Maryland
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82-4005693
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(State or other jurisdiction of incorporation or organization)
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(IRS Employer Identification Number)
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47 Hulfish Street, Suite 210
Princeton, New Jersey
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08542
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(Address of principal executive offices)
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(Zip code)
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Essential Properties Realty Trust, Inc. 2018 Incentive Plan
(Full title of the plan)
Peter M.
Mavoides
President and Chief Executive Officer
47 Hulfish Street, Suite 210
Princeton, New Jersey 08542
(Name and address of agent for service)
(609)
436-0610
(Telephone number, including area code, of agent for service)
With copy to:
J.
Gerard Cummins, Esq.
Bartholomew A. Sheehan, Esq.
Sidley Austin LLP
787
Seventh Avenue
New York, New York 10019
(212)
839-5300
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated
filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated
filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in
Rule 12b-2
of the Exchange Act (check one):
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒ (Do not check if a smaller reporting company)
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Smaller reporting company
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☐
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Emerging growth company
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☒
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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 7(a)(2)(B) of the Securities Act. ☒
CALCULATION
OF REGISTRATION FEE
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Title of Securities
to be Registered
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Amount
to be
Registered(1)
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Proposed
Maximum
Offering
Price
per Share(2)
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee(3)
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Common Stock, $0.01 par value per share
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3,550,000 shares
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$13.57
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$48,173,500
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$5,998
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(1)
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Represents the aggregate number of shares of the registrant’s common stock, $0.01 par value per share (the “Common Stock”), reserved for issuance under the Essential Properties Realty Trust, Inc. 2018
Incentive Plan (the “Plan”). Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers an additional indeterminate amount of shares to be offered or sold
pursuant to the Plan and shares that may become issuable under the Plan by reason of certain corporate transactions or events, including any share dividend, share split, recapitalization or any other similar adjustment of the registrant’s
outstanding Common Stock.
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(2)
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Represents the average of the high and the low prices per share of Common Stock of the registrant as reported on the New York Stock Exchange on June 21, 2018.
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(3)
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Computed in accordance with Rule 457(c) and (h) under the Securities Act.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Items 1 and 2 of Part I of Form
S-8
is omitted from this Registration
Statement in accordance with the provisions of Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”) and the introductory note to Part I of Form
S-8.
The documents
containing the information specified in Part I will be delivered to the participants in the Essential Properties Realty Trust, Inc. 2018 Incentive Plan covered by this Registration Statement as required by Rule 428(b)(1) under the Securities Act.
Such documents are not required to be, and are not, filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as a prospectus or prospectus supplement pursuant to Rule 424 under
the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by Reference.
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The following documents are incorporated by
reference in this Registration Statement:
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(1)
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The Registrant’s final prospectus, dated June 20, 2018 filed pursuant to Rule 424(b) under the Securities Act, in connection with its Registration Statement on Form
S-11
(File
No. 333-225215);
and
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(2)
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The description of the Registrant’s Common Stock contained in its Registration Statement on Form
8-A,
filed with the Commission on June 15, 2018, pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and all amendments or reports filed for the purpose of updating such description.
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In addition, all documents and reports subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be part hereof from the date of filing of such documents or reports.
Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
No document or information deemed to be furnished and not filed in accordance with rules of the Commission shall be deemed to be incorporated
herein by reference unless such document or information expressly provides to the contrary.
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Item 4.
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Description of Securities.
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Not applicable.
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Item 5.
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Interests of Named Experts and Counsel.
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Not applicable.
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Item 6.
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Indemnification of Directors and Officers.
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Maryland law permits a Maryland corporation
to include in its charter a provision eliminating the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from actual receipt of an improper benefit or profit in money,
property or services or active and deliberate dishonesty that is established by a final judgment and is material to the cause of action. The Registrant’s charter contains such a provision that eliminates such liability to the maximum extent
permitted by Maryland law.
The MGCL requires a Maryland corporation (unless its charter provides otherwise, which the Registrant’s
charter does not) to indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he or she is made or threatened to be made a party by reason of his or her service in that capacity.
The MGCL permits a Maryland corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to
which they may be made or are threatened to be made a party by reason of their service in those or other capacities unless it is established that:
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the act or omission of the director or officer was material to the matter giving rise to the proceeding and:
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was committed in bad faith; or
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was the result of active and deliberate dishonesty;
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the director or officer actually received an improper personal benefit in money, property or services; or
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in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful.
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However, under the MGCL, a Maryland corporation may not indemnify a director or officer for an adverse judgment in a suit by or on behalf of
the corporation or if the director or officer was adjudged liable on the basis that personal benefit was improperly received, unless, in either case, a court orders indemnification and then only for expenses. A court may order indemnification if it
determines that the director or officer is fairly and reasonably entitled to indemnification, even though the director or officer did not meet the prescribed standard of conduct or was adjudged liable on the basis that personal benefit was
improperly received.
In addition, the MGCL permits a Maryland corporation to advance reasonable expenses to a director or officer upon
the corporation’s receipt of:
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a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation; and
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a written undertaking, which may be unsecured, by the director or officer or on the director’s or officer’s behalf to repay the amount paid if it is ultimately determined that the standard of conduct has not
been met.
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The Registrant’s charter obligates the Registrant, to the maximum extent permitted by Maryland law in effect
from time to time, to indemnify and to pay or reimburse reasonable expenses in advance of final disposition of a proceeding without requiring a preliminary determination of the director’s or officer’s ultimate entitlement to
indemnification to:
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any present or former director or officer who is made or threatened to be made a party to, or witness in, the proceeding by reason of his or her service in that capacity; or
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any individual who, while a director or officer of the Registrant and at its request, serves or has served as a director, officer, partner, member, manager, trustee, employee or agent of another corporation, real estate
investment trust, partnership, limited liability company, joint venture, trust, employee benefit plan or any other enterprise and who is made or threatened to be made a party to, or witness in, the proceeding by reason of his or her service in that
capacity.
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The Registrant’s charter also permits the Registrant, with the approval of its board of directors, to
indemnify and advance expenses to any person who served a predecessor of the Registrant in any of the capacities described above and to any employee or agent of the Registrant or a predecessor of the Registrant.
The Registrant intends to enter into indemnification agreements with each of its directors and executive officers that will obligate the
Registrant to indemnify them to the maximum extent permitted by Maryland law. The indemnification agreements will provide that, if a director or executive officer is a party to, or witness in, or is threatened to be made a party to, or witness in,
any proceeding by reason of his or her service as a director, officer, employee or agent of the Registrant or as a director, officer, partner, member, manager, fiduciary, employee, agent or trustee of any other foreign or domestic corporation, real
estate investment trust, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise that he or she is or was serving in such capacity at the Registrant’s request, the Registrant must indemnify the
director or executive officer for all expenses and liabilities actually and reasonably incurred by him or her, or on his or her behalf, to the maximum extent permitted under Maryland law, including in any proceeding brought by the director or
executive officer to enforce his or her rights under the indemnification agreement, to the extent provided by the agreement. The indemnification agreements will also require the Registrant to advance reasonable expenses incurred by the indemnitee
within ten days of the receipt by the Registrant of a statement from the indemnitee requesting the advance, provided the statement evidences the expenses and is accompanied or preceded by:
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a written affirmation of the indemnitee’s good faith belief that he or she has met the standard of conduct necessary for indemnification; and
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a written undertaking, which may be unsecured, by the indemnitee or on his or her behalf to repay the amount paid if it ultimately established that the standard of conduct has not been met.
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The indemnification agreements will also provide for procedures for the determination of entitlement to indemnification, including requiring
such determination be made by independent counsel after a change of control of the Registrant.
In addition, the Registrant’s
directors and officers may be entitled to indemnification pursuant to the terms of the partnership agreement of the Registrant’s operating partnership, Essential Properties, L.P.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
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Item 7.
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Exemption from Registration Claimed.
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Not applicable.
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Exhibit
No.
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Description
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4.1
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Form of Articles of Amendment and Restatement of Essential Properties Realty Trust, Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s Registration Statement on Form
S-11/A
(File
No. 333-225215)
filed with the Commission on June 11, 2018)
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4.2
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Form of Amended and Restated Bylaws of Essential Properties Realty Trust, Inc. (incorporated by reference to Exhibit 3.2 to the Registrant’s Registration Statement on Form
S-11/A
(File
No. 333-225215)
filed with the Commission on June 11, 2018)
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4.3
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Form of Common Stock Certificate of Essential Properties Realty Trust, Inc. (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form
S-11
(File
No. 333-225215)
filed with the Commission on May 25, 2018)
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5.1
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Opinion of Venable LLP
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10.1
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Essential Properties Realty Trust, Inc. 2018 Incentive Plan (incorporated by reference to Exhibit 10.10 to the Registrant’s Registration Statement on
Form S-11/A
(File
No. 333-225215)
filed on June 11, 2018)
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23.1
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Consent of Ernst & Young LLP as to the balance sheet of Essential Properties Realty Trust, Inc.
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23.2
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Consent of Ernst & Young LLP as to the consolidated financial statements of Essential Properties Realty Trust, Inc. Predecessor
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23.3
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Consent of Venable LLP (contained in Exhibit 5.1)
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(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration statement;
provided
,
however
,
that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities Act , each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona
fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial
bona
fide
offering thereof.
(h) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that, in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than for the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication of such issue.
EXHIBIT INDEX
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Exhibit
No.
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Description
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4.1
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Form of Articles of Amendment and Restatement of Essential Properties Realty Trust, Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s
Registration Statement on Form
S-11/A
(File
No. 333-225215)
filed with the Commission on June 11, 2018)
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4.2
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Form of Amended and Restated Bylaws of Essential Properties Realty Trust, Inc. (incorporated by reference to Exhibit 3.2 to the Registrant’s
Registration Statement on Form
S-11/A
(File
No. 333-225215)
filed with the Commission on June 11, 2018)
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4.3
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Form of Common Stock Certificate of Essential Properties Realty Trust, Inc. (incorporated by reference to Exhibit 4.1 to the Registrant’s
Registration Statement on Form
S-11
(File
No. 333-225215)
filed with the Commission on May 25, 2018)
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5.1
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Opinion of Venable LLP
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10.1
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Essential Properties Realty Trust, Inc. 2018 Incentive Plan (incorporated by reference to Exhibit 10.10 to the Registrant’s
Registration Statement on
Form S-11/A
(File
No. 333-225215)
filed on June 11, 2018)
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23.1
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Consent of Ernst & Young LLP as to the balance sheet of Essential Properties Realty Trust, Inc.
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23.2
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Consent of Ernst & Young LLP as to the consolidated financial statements of Essential Properties Realty Trust, Inc. Predecessor
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23.3
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Consent of Venable LLP (contained in Exhibit 5.1)
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-8
and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of
Princeton, New Jersey, on this 22nd day of June, 2018.
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Essential Properties Realty Trust, Inc.
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By:
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/s/ Peter M. Mavoides
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Peter M. Mavoides
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President and Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has
been signed by the following persons in the capacities and on the dates indicated:
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Signature
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Title
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Date
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/s/ Peter M. Mavoides
Peter M. Mavoides
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Director, President and Chief Executive Officer
(principal executive officer)
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June 22, 2018
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/s/ Hillary P. Hai
Hillary P. Hai
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Chief Financial Officer
(principal financial and accounting officer)
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June 22, 2018
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/s/ Scott A. Estes
Scott A. Estes
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Director
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June 22, 2018
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Exhibit 5.1
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750 E. PRATT STREET SUITE 900 BALTIMORE, MD 21202
T
410.244.7400
F
410.244.7742 www.Venable.com
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June 22, 2018
Essential Properties Realty
Trust, Inc.
47 Hulfish Street
Suite 210
Princeton, New Jersey 08542
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Re:
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Registration Statement on Form S-8
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Ladies and Gentlemen:
We have served as Maryland counsel to Essential Properties Realty Trust, Inc., a Maryland corporation (the “Company”), in connection
with certain matters of Maryland law relating to the registration by the Company of 3,550,000 shares (the “Shares”) of common stock, par value $0.01 per share (the “Common Stock”), of the Company, that the Company may issue
pursuant to the Essential Properties Realty Trust, Inc. 2018 Incentive Plan (the “Plan”). The Shares are covered by the above-referenced Registration Statement, and all amendments thereto (the “Registration Statement”), as filed
with the United States Securities and Exchange Commission (the “Commission”) by the Company on or about the date hereof under the Securities Act of 1933, as amended (the “1933 Act”).
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of the following documents (collectively, the “Documents”):
1. The
Registration Statement in the form in which it was transmitted to the Commission under the 1933 Act;
2. The charter of the Company,
certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
3. The Bylaws of the Company, certified
as of the date hereof by an officer of the Company;
4. Resolutions (the “Resolutions”) adopted by the Board of Directors of the
Company (i) declaring the Plan advisable and directing that the Plan be submitted to the sole stockholder of the Company for consideration and approval, and (ii) the issuance of the Shares, certified as of the date hereof by an officer of
the Company;
Essential
Properties Realty Trust, Inc.
June 22, 2018
Page
2
5. Resolutions adopted by the consent of the stole stockholder of the Company approving the
Plan, certified as of the date hereof by an officer of the Company;
6. The Plan, certified as of the date hereof by an officer of the
Company;
7. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
8. A certificate executed by an officer of the Company, dated as of the date hereof; and
9. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth in this letter, subject to the
assumptions, 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 another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the
Documents to which such party is a signatory, and the obligations of such party 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 not
differ 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 Documents
are 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 written
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.
Essential
Properties Realty Trust, Inc.
June 22, 2018
Page
3
5. None of the Shares will be issued or transferred in violation of any restriction or
limitation contained in Article VII of the Charter or in the Plan. Upon the issuance of any of the Shares, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company
is then authorized to issue under the Charter.
6. Each option, stock appreciation right, restricted stock award, restricted stock unit
award, performance award, long term incentive plan unit or other security exercisable or exchangeable for a Share will have been duly authorized, validly granted and duly exercised or exchanged in accordance with the terms of the Plan, including any
stock option, restricted stock or similar agreement entered into in connection therewith, at the time of any exercise of such option, stock appreciation right, restricted stock award, restricted stock unit award, performance award, long term
incentive plan unit or other security.
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 validly existing under the laws of the State of
Maryland and is in good standing with the SDAT.
2. The Shares have been duly authorized and, when and if issued and delivered in
accordance with the Plan, the Resolutions and any stock option agreement, restricted stock agreement or other form of award agreement utilized under the Plan, 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. We
express 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 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.
The opinion expressed herein is limited 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 become aware of any fact that might change the opinion expressed herein after the date hereof.
Essential
Properties Realty Trust, Inc.
June 22, 2018
Page
4
This opinion is being furnished to you for submission to the Commission as an exhibit to the
Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement 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 by Section 7 of the 1933 Act.
Very truly yours,
/s/ Venable LLP