As filed with the Securities and Exchange Commission on January 30, 2015
Registration No. 333-201251
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2
TO
FORM S-11
FOR REGISTRATION UNDER THE SECURITIES ACT OF 1933
OF SECURITIES OF CERTAIN REAL ESTATE COMPANIES
Easterly Government Properties, Inc.
(Exact name of registrant as specified in governing instruments)
2101 L Street NW, Suite 750
Washington, D.C. 20037
(202) 595-9500
(Address, including Zip Code and Telephone Number, including Area Code, of Registrant’s Principal Executive Offices)
William C. Trimble, III
Chief Executive Officer and President
Easterly Government Properties, Inc.
2101 L Street NW, Suite 750
Washington, D.C. 20037
(202) 595-9500
(Name, Address, Including Zip Code and Telephone Number, Including Area Code, of Agent For Service)
| | | | |
| | | Copies to: | | |
Gilbert G. Menna Mark S. Opper Goodwin ProcterLLP The New York Times Building 620 Eighth Avenue New York, New York 10018 Tel: (212) 813-8800 Fax: (212) 355-3333 | | Darrell W. Crate Chairman of the Board of Directors Easterly Government Properties, Inc. 2101 L Street NW, Suite 750 Washington, D.C. 20037 Tel: (202) 595-9500 Fax: (617) 581-1440 | | David J. Goldschmidt Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, New York 10036 Tel: (212) 735-3000 Fax: (212) 735-2000 |
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this registration statement.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ¨
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If delivery of the prospectus is expected to be made pursuant to Rule 434, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (check one):
| | | | | | |
| Large accelerated filer | | ¨ | | Accelerated filer | | ¨ |
| Non-accelerated filer | | x (Do not check if a smaller reporting company) | | Smaller reporting company | | ¨ |
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment that specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
Easterly Government Properties, Inc. has prepared this Amendment No. 2 to the Registration Statement on Form S-11 (File No. 333-201251) solely for the purpose of filing Exhibits 1.1 through 10.6, 10.8 through 10.10, 10.12 through 21.1 and 23.2. No changes have been made to the preliminary prospectus constituting Part I of the Registration Statement or to Part II of the Registration Statement (other than to reflect in the Exhibit Table the filing of the aforementioned exhibits).
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| ITEM 31. | OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. |
The expenses expected to be incurred by us in connection with the registration and distribution of the securities being registered under this registration statement are as follows (all amounts are estimates other than the SEC and the Financial Industry Regulatory Authority, or FINRA, filing fees):
| | | | |
SEC Filing Fee | | $ | 26,000 | |
NYSE Listing Fee | | | 125,000 | |
FINRA Filing Fee | | | 34,000 | |
Printing Expenses | | | 305,000 | |
Legal Fees and Expenses | | | 1,200,000 | |
Accounting Fees and Expenses | | | 287,000 | |
Transfer Agent and Registrar Fees | | | 5,000 | |
Director and Officer Liability Insurance Premium | | | 300,000 | |
Miscellaneous | | | 3,000 | |
| | | | |
Total | | $ | 2,285,000 | |
| | | | |
| * | | to be completed by amendment |
| ITEM 32. | SALES TO SPECIAL PARTIES. |
On October 9, 2014, in connection with the initial capitalization of our company, we issued 1,000 shares of our common stock for an aggregate purchase price of $1,000. We will repurchase these shares at cost upon completion of this offering.
| ITEM 33. | RECENT SALES OF UNREGISTERED SECURITIES. |
On October 9, 2014, we issued 1,000 shares of our common stock in connection with the initial capitalization of our company for an aggregate purchase price of $1,000. We will repurchase these shares at cost upon completion of this offering. The issuance of such shares was effected in reliance upon an exemption from registration provided by Section 4(a)(2) of the Securities Act.
In connection with the formation transactions and the concurrent private placement, we will issue an aggregate of 10,341,712 shares of common stock and our operating partnership will issue 15,530,939 common units with an aggregate value of $155,125,683 and $232,964,083, respectively, based on the midpoint of the price range set forth on the front cover of the prospectus that forms a part of this registration statement, to participants in the formation transactions and the concurrent private placement, including Western Devcon and our continuing investors, that are transferring their interests to us in the entities that own our properties and other assets prior to the formation transactions in consideration of such transfer. Each such person had a substantive, pre-existing relationship with us. The issuance of such shares and common units will be effected in reliance upon exemptions from registration provided by Section 4(a)(2) of the Securities Act.
| ITEM 34. | INDEMNIFICATION OF DIRECTORS AND OFFICERS. |
Maryland law permits a Maryland corporation to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders for money damages except to the extent that (a) it is proved that the person actually received an improper benefit or profit in money, property or services for the amount of the benefit or profit in money, property or services actually received; or (b) a judgment or other final adjudication adverse to the person is entered in a proceeding based on a finding in the proceeding that the person’s action, or failure to act, was the result of active and deliberate dishonesty and was material to the cause
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of action adjudicated in the proceeding. Our charter contains a provision that eliminates such liability of our directors and authorizes us to eliminate such liability of our officers, to the maximum extent permitted by Maryland law.
The MGCL requires a corporation (unless its charter provides otherwise, which our 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, or in the defense of any claim, issue or matter in the proceeding, against reasonable expenses incurred by the director or officer in connection with the proceeding, claim, issue or matter. 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:
| | • | | the act or omission of the director or officer was material to the matter giving rise to the proceeding and: |
| | • | | was committed in bad faith; or |
| | • | | was the result of active and deliberate dishonesty; |
| | • | | the director or officer actually received an improper personal benefit in money, property or services; or |
| | • | | in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. |
Under the MGCL, a Maryland corporation may not, however, indemnify a director or officer for an adverse judgment in a suit by or in the right of the corporation or if the director or officer was adjudged liable on the basis that personal benefit was improperly received. Notwithstanding the foregoing, unless limited by the charter (which our charter does not), a court of appropriate jurisdiction, upon application of a director or officer, may order indemnification if it determines that the director or officer is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not the director or officer met the standards of conduct described above or has been adjudged liable on the basis that a personal benefit was improperly received, but such indemnification shall be limited to expenses.
In addition, the MGCL permits a Maryland corporation to advance reasonable expenses to a director or officer, without requiring a preliminary determination of the director’s or officer’s ultimate entitlement to indemnification, upon the corporation’s receipt of:
| | • | | 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 |
| | • | | a written undertaking by the director or officer or on the director’s or officer’s behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the director or officer did not meet the standard of conduct. |
Our charter authorizes us to obligate our company and our bylaws obligate us with respect to directors only, to the fullest 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 ultimate entitlement to indemnification, to:
| | • | | any present or former director who is made or threatened to be made a party to the proceeding by reason of his or her service in that capacity; or |
| | • | | any individual who, while serving as our director and at our request, serves or has served as a director, officer, partner, trustee, member or manager of another corporation, REIT, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise and who is made or threatened to be made a party to the proceeding by reason of his or her service in that capacity. |
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Our charter and bylaws also permit us to indemnify and advance expenses to any person who served a predecessor of ours in any of the capacities described above and to any officer, employee or agent of our company or a predecessor of our company. Furthermore, our officers and directors are indemnified against specified liabilities by the underwriters, and the underwriters are indemnified against certain liabilities by us, under the underwriting agreement relating to this offering. See “Underwriting.”
We intend to enter into indemnification agreements with each of our executive officers, directors and director nominees, whereby we indemnify such executive officers, directors and director nominees and pay or reimburse reasonable expenses in advance of final disposition of a proceeding if such executive officer or director is made or threatened to be made a party to the proceeding by reason of his or her service in that capacity to the fullest extent permitted by Maryland law against all expenses and liabilities, subject to limited exceptions. These indemnification agreements also provide that upon an application for indemnity by an executive officer or director to a court of appropriate jurisdiction, such court may order us to indemnify such executive officer or director.
The partnership agreement also provides that our company, as general partner, are indemnified to the extent provided therein. The partnership agreement further provides that our directors, director nominees, officers, employees, agents and designees are indemnified to the extent provided therein.
Insofar as the foregoing provisions permit indemnification of directors, director nominees, officers or persons controlling us for liability arising under the Securities Act, we have been informed that in the opinion of the SEC, this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
We expect to obtain an insurance policy under which our directors, director nominees and executive officers will be insured, subject to the limits of the policy, against certain losses arising from claims made against such directors and officers by reason of any acts or omissions covered under such policy in their respective capacities as directors or officers, including certain liabilities under the Securities Act.
| ITEM 35. | TREATMENT OF PROCEEDS FROM STOCK BEING REGISTERED. |
Not applicable.
| ITEM 36. | EXHIBITS AND FINANCIAL STATEMENT SCHEDULES. |
(a) See page F-1 for an index of the financial statements that are being filed as part of this registration statement.
(b) The following exhibits are filed as part of, or incorporated by reference into, this registration statement on Form S-11:
| | |
Exhibit | | Exhibit Description |
| |
| 1.1 | | Form of Underwriting Agreement |
| |
| 3.1 | | Amended and Restated Articles of Amendment and Restatement of Easterly Government Properties, Inc. |
| |
| 3.2 | | Amended and Restated Bylaws of Easterly Government Properties, Inc. |
| |
| 4.1 | | Specimen Certificate of Common Stock of Easterly Government Properties, Inc. |
| |
| 5.1 | | Opinion of Goodwin Procter LLP regarding the validity of the securities being registered |
| |
| 8.1 | | Opinion of Goodwin ProcterLLP regarding certain tax matters |
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| | |
Exhibit | | Exhibit Description |
| |
| 10.1 | | Form of Amended and Restated Limited Partnership Agreement of Easterly Government Properties LP |
| |
| 10.2 | | Registration Rights Agreement among Easterly Government Properties, Inc. and the persons named therein, dated January 26, 2015 |
| |
| 10.3† | | Form of 2015 Equity Incentive Plan |
| |
| 10.4 | | Form of Indemnification Agreement between Easterly Government Properties, Inc. and each of its Directors and Executive Officers |
| |
| 10.5 | | Contribution Agreement by and among Easterly Government Properties, Inc., Easterly Government Properties LP and U.S. Government Properties Income & Growth Fund, LP, dated January 26, 2015 |
| |
| 10.6 | | Contribution Agreement by and among Easterly Government Properties, Inc., Easterly Government Properties LP and USGP II Investor, LP, dated January 26, 2015 |
| |
| 10.7* | | Contribution Agreement by and among Easterly Government Properties, Inc., Easterly Government Properties LP and Easterly Capital, LLC |
| |
| 10.8 | | Contribution Agreement by and among Easterly Government Properties, Inc., Easterly Government Properties LP and Michael P. Ibe, Courthouse Management, Inc. and Western Devcon, Inc., dated January 26, 2015 |
| |
| 10.9 | | Form of Tax Protection Agreement by and among Easterly Government Properties, Inc., Easterly Government Properties LP and Michael P. Ibe |
| |
| 10.10 | | Employment Agreement by and among Easterly Government Properties Services LLC, Easterly Government Properties, Inc., Easterly Government Properties LP and William C. Trimble, III, dated January 30, 2015 |
| |
| 10.11* | | Intellectual Property License Agreement between Easterly Government Properties, Inc. and Easterly Capital, LLC |
| |
| 10.12 | | Form of Credit Agreement among Easterly Government Properties LP, as Borrower, Easterly Government Properties, Inc., as Parent Guarantor, and certain subsidiaries of Easterly Government Properties, Inc. from time to time party thereto, as Guarantors, the initial lenders and the initial issuing banks named therein, Citibank, N.A., as Administrative Agent, Raymond James Bank, N.A. and Royal Bank of Canada, as Co-Syndication Agents, and Citigroup Global Markets Inc., Raymond James Bank, N.A. and RBC Capital Markets, as Joint Lead Arrangers and Joint Book Running Manager |
| |
| 10.13 | | Share Purchase Agreement by and among Easterly Government Properties, Inc. and the entities listed on Schedule I thereto, dated January 26, 2015 |
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| 10.14 | | Registration Rights Agreement by and among Easterly Government Properties, Inc. and the entities party to the Share Purchase Agreement, dated January 26, 2015 |
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| 10.15 | | Director Nomination Agreement by and between Easterly Government Properties, Inc. and Michael P. Ibe, dated January 26, 2015 |
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| 21.1 | | List of Subsidiaries of the Registrant |
| |
| 23.1** | | Consent of PricewaterhouseCoopers LLP |
| |
| 23.2 | | Consents of Goodwin ProcterLLP (included in Exhibits 5.1 and 8.1) |
| |
| 23.3** | | Consent of Dr. Dennis Eisen |
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| | |
Exhibit | | Exhibit Description |
| |
| 24.1** | | Power of Attorney (included on the signature page to the Registration Statement filed on December 23, 2014) |
| |
| 99.1** | | Consent of Michael P. Ibe |
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| 99.2** | | Consent of William H. Binnie |
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| 99.3** | | Consent of Cynthia A. Fisher |
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| 99.4** | | Consent of Emil W. Henry, Jr. |
| |
| 99.5** | | Consent of James E. Mead |
| * | | To be filed by amendment. |
| † | | Compensatory plan or arrangement. |
The undersigned registrant hereby undertakes that:
| | 1) | | For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. |
| | 2) | | For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus 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. |
The undersigned registrant hereby further undertakes to provide to the underwriters at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, director nominees, 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 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than 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 Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-11 and has duly caused this Amendment No. 2 to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on January 30, 2015.
| | |
| EASTERLY GOVERNMENT PROPERTIES, INC. |
| |
| By: | | /s/ William C. Trimble, III |
| Name: | | William C. Trimble, III |
| Title: | | Chief Executive Officer and President |
Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 2 to the registration statement has been signed by the following persons in the capacities and on the dates indicated.
| | | | |
Signature | | Title | | Date |
| | |
/s/ William C. Trimble, III William C. Trimble, III | | Chief Executive Officer, President and Director | | January 30, 2015 |
| | (Principal Executive Officer) | | |
| | |
/s/ Alison M. Bernard Alison M. Bernard | | Executive Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | | January 30, 2015 |
| | |
/s/ Darrell W. Crate | | Chairman of the Board of Directors | | January 30, 2015 |
| Darrell W. Crate | | | | |
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EXHIBIT INDEX
| | |
Exhibit | | Exhibit Description |
| |
| 1.1 | | Form of Underwriting Agreement |
| |
| 3.1 | | Amended and Restated Articles of Amendment and Restatement of Easterly Government Properties, Inc. |
| |
| 3.2 | | Amended and Restated Bylaws of Easterly Government Properties, Inc. |
| |
| 4.1 | | Specimen Certificate of Common Stock of Easterly Government Properties, Inc. |
| |
| 5.1 | | Opinion of Goodwin Procter LLP regarding the validity of the securities being registered |
| |
| 8.1 | | Opinion of Goodwin ProcterLLP regarding certain tax matters |
| |
| 10.1 | | Form of Amended and Restated Limited Partnership Agreement of Easterly Government Properties LP |
| |
| 10.2 | | Registration Rights Agreement among Easterly Government Properties, Inc. and the persons named therein, dated January 26, 2015 |
| |
| 10.3† | | Form of 2015 Equity Incentive Plan |
| |
| 10.4 | | Form of Indemnification Agreement between Easterly Government Properties, Inc. and each of its Directors and Executive Officers |
| |
| 10.5 | | Contribution Agreement by and among Easterly Government Properties, Inc., Easterly Government Properties LP and U.S. Government Properties Income & Growth Fund, LP, dated January 26, 2015 |
| |
| 10.6 | | Contribution Agreement by and among Easterly Government Properties, Inc., Easterly Government Properties LP and USGP II Investor, LP, dated January 26, 2015 |
| |
| 10.7* | | Contribution Agreement by and among Easterly Government Properties, Inc., Easterly Government Properties LP and Easterly Capital, LLC |
| |
| 10.8 | | Contribution Agreement by and among Easterly Government Properties, Inc., Easterly Government Properties LP and Michael P. Ibe, Courthouse Management, Inc. and Western Devcon, Inc., dated January 26, 2015 |
| |
| 10.9 | | Form of Tax Protection Agreement by and among Easterly Government Properties, Inc., Easterly Government Properties LP and Michael P. Ibe |
| |
| 10.10 | | Employment Agreement by and among Easterly Government Properties Services LLC, Easterly Government Properties, Inc., Easterly Government Properties LP and William C. Trimble, III, dated January 30, 2015 |
| |
| 10.11* | | Intellectual Property License Agreement between Easterly Government Properties, Inc. and Easterly Capital, LLC |
| |
| 10.12 | | Form of Credit Agreement among Easterly Government Properties LP, as Borrower, Easterly Government Properties, Inc., as Parent Guarantor, and certain subsidiaries of Easterly Government Properties, Inc. from time to time party thereto, as Guarantors, the initial lenders and the initial issuing banks named therein, Citibank, N.A., as Administrative Agent, Raymond James Bank, N.A. and Royal Bank of Canada, as Co-Syndication Agents, and Citigroup Global Markets Inc., Raymond James Bank, N.A. and RBC Capital Markets, as Joint Lead Arrangers and Joint Book Running Manager |
| |
| 10.13 | | Share Purchase Agreement by and among Easterly Government Properties, Inc. and the entities listed on Schedule I thereto, dated January 26, 2015 |
| |
| 10.14 | | Registration Rights Agreement by and among Easterly Government Properties, Inc. and the entities party to the Share Purchase Agreement, dated January 26, 2015 |
| | |
Exhibit | | Exhibit Description |
| |
| 10.15 | | Director Nomination Agreement by and between Easterly Government Properties, Inc. and Michael P. Ibe, dated January 26, 2015 |
| |
| 21.1 | | List of Subsidiaries of the Registrant |
| |
| 23.1** | | Consent of PricewaterhouseCoopers LLP |
| |
| 23.2 | | Consents of Goodwin ProcterLLP (included in Exhibits 5.1 and 8.1) |
| |
| 23.3** | | Consent of Dr. Dennis Eisen |
| |
| 24.1** | | Power of Attorney (included on the signature page to the Registration Statement filed on December 23, 2014) |
| |
| 99.1** | | Consent of Michael P. Ibe |
| |
| 99.2** | | Consent of William H. Binnie |
| |
| 99.3** | | Consent of Cynthia A. Fisher |
| |
| 99.4** | | Consent of Emil W. Henry, Jr. |
| |
| 99.5** | | Consent of James E. Mead |
| * | | To be filed by amendment. |
| † | | Compensatory plan or arrangement. |
