As filed with the Securities and Exchange Commission on May 20, 2022

Registration No. 333-            

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Spirit Realty Capital, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Maryland   20-1676382

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

2727 North Harwood Street

Suite 300

Dallas, Texas 75201

(Address of Principal Executive Offices) (Zip Code)

Second Amended and Restated Spirit Realty Capital, Inc. and Spirit Realty, L.P. 2012 Incentive Award Plan

(Full title of the plan)

Jackson Hsieh

Chief Executive Officer

Spirit Realty Capital, Inc.

2727 North Harwood Street

Suite 300

Dallas, Texas 75201

(Name and address of agent for service)

(972) 476-1900

(Telephone number, including area code, of agent for service)

 

 

Copy to:

Julian T.H. Kleindorfer, Esq.

Lewis W. Kneib, Esq.

Latham & Watkins LLP

355 South Grand Avenue

Los Angeles, California 90071

(213) 485-1234

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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 12-b2 of the Exchange Act.

 

Large accelerated filer      Accelerated filer  
Non-accelerated filer      Smaller reporting company  
     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 7(a)(2)(B) of the Securities Act  ☐

 

 

 


INTRODUCTION

This Registration Statement on Form S-8 (this “Registration Statement”) is filed by Spirit Realty Capital, Inc. (referred to herein as “our,” “we” or “us”) relating to an additional 3,000,000 shares of Common Stock issuable to our eligible employees, directors and consultants under the Plan.

These shares being registered pursuant to this Registration Statement are the same class as other securities for which earlier Registration Statements on Form S-8 (File Nos. 333-262898, 333-190001 and 333-215098) (together, the “Prior Registration Statements”) were filed with the Securities and Exchange Commission (the “Commission”) on February 22, 2022, July 18, 2013 and December 14, 2016, respectively.

In accordance with General Instruction E of Form S-8, this Registration Statement incorporates by reference and makes a part hereof the contents of the Prior Registration Statements to the extent not modified or superseded hereby or by any subsequently filed document incorporated by reference herein or therein.

PART I

INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS

We are not filing or including in this Registration Statement the information called for in Part I of Form S-8 (by incorporation by reference or otherwise) in accordance with the rules and regulations of the Securities and Exchange Commission (the “Commission”).

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.

Incorporation of Documents by Reference

The Commission allows us to incorporate by reference the information we file with it, which means that we can disclose important information to you by referring to those documents. The information incorporated by reference is an important part of this Registration Statement, and information that we file later with the Commission will automatically update and supersede this information. We incorporate by reference the following documents we filed with the Commission:

 

  (a)

our Annual Report on Form 10-K for the year ended December 31, 2021 filed with the SEC on February 14, 2022;

 

  (b)

our Quarterly Report on Form 10-Q for the quarter ended March 31, 2022 filed with the SEC on May 3, 2022;

 

  (c)

our Current Reports on Form 8-K filed with the SEC on January 10, 2022 (excluding the information appearing in item 2.02 of, and Exhibits 99.1 and 99.2 to, such Current Report on Form 8-K), January 19, 2022 and January 25, 2022 (excluding the information appearing in item 7.01 of, and Exhibit 99.1 to, such Current Report on Form 8-K), March 30, 2022 (excluding the information appearing on Exhibit 99.1 to, such Current Report on Form 8-K); and

 

  (d)

the description of our Common Stock contained in the Registration Statement on Form 8-A filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on July 16, 2013, including any amendment or report filed for the purpose of updating such description.


In addition, all documents subsequently filed by us with the Commission 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 then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents with the Commission. We are not, however, incorporating by reference any documents or portions thereof, whether specifically listed above or filed in the future, that are not deemed “filed” with the Commission, including our compensation committee report and performance graph or any information furnished pursuant to Items 2.02 or 7.01 of Form 8-K or certain exhibits furnished pursuant to Item 9.01 of Form 8-K. Any statement contained in a document incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement, or in any subsequently filed document which also is or is deemed to be incorporated by reference in this Registration Statement, 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.

 

Item 8.

Exhibits

 

Exhibit

No.

  

Description

4.1    Form of Certificate for Common Stock of Spirit Realty Capital, Inc.(1)
4.2†    Second Amended and Restated Spirit Realty Capital, Inc. and Spirit Realty, L.P. 2012 Incentive Award Plan(2)
5.1*    Opinion of Ballard Spahr LLP
23.1*    Consent of Ballard Spahr LLP (included in Exhibit 5.1)
23.2*    Consent of Ernst & Young LLP for Spirit Realty Capital, Inc.
24.1*    Power of Attorney (included on the signature page of this Registration Statement)
107*    Filing Fee Table

 

*

Filed herewith.

Management contract or compensatory plan or arrangement.

(1)

Incorporated by reference to Exhibit 4.1 to the Registration Statement on Form S-4/A filed with the Commission on March 29, 2013 (No. 333-187122).

(2)

Incorporated by reference to Annex B to the Definitive Proxy Statement on Schedule 14A filed with the Commission on April 8, 2022 (No. 001-36004).


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-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on this 20th day of May, 2022.

 

SPIRIT REALTY CAPITAL, INC.
By:  

/s/ Michael Hughes

 

Michael Hughes

Executive Vice President and Chief Financial Officer

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Jackson Hsieh, Michael Hughes, Prakash Parag, Jay Young and Rochelle Thomas, with full power to act without the other, such person’s true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign this Registration Statement, and any and all amendments thereto, and to file the same, with exhibits and schedules thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing necessary or desirable to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Name

  

Title

  

Date

/s/ Jackson Hsieh

Jackson Hsieh

  

President, Chief Executive Officer and Director

(Principal Executive Officer)

   May 20, 2022

/s/ Michael Hughes

Michael Hughes

  

Executive Vice President and Chief Financial Officer

(Principal Financial Officer)

   May 20, 2022

/s/ Prakash Parag

Prakash Parag

  

Senior Vice President and Chief Accounting Officer

(Principal Accounting Officer)

   May 20, 2022

/s/ Kevin M. Charlton

Kevin M. Charlton

   Director    May 20, 2022

/s/ Elizabeth F. Frank

Elizabeth F. Frank

   Director    May 20, 2022

/s/ Michelle M. Frymire

Michelle M. Frymire

   Director    May 20, 2022

/s/ Kristian M. Gathright

Kristian M. Gathright

   Director    May 20, 2022

/s/ Richard I. Gilchrist

Richard I. Gilchrist

   Director    May 20, 2022


/s/ Diana M. Laing

Diana M. Laing

   Director    May 20, 2022

/s/ Nicholas P. Shepherd

Nicholas P. Shepherd

   Director    May 20, 2022

/s/ Thomas J. Sullivan

Thomas J. Sullivan

   Director    May 20, 2022

EX-5.1

Exhibit 5.1

 

LOGO

 

LOGO

May 20, 2022

Spirit Realty Capital, Inc.

2727 North Harwood Street

Suite 300

Dallas, Texas 75201

 

  Re:

Spirit Realty Capital, Inc., a Maryland corporation (the “Company”) – Registration Statement on Form S-8 to be filed on or about the date hereof relating to an additional 3,000,000 shares (the “Shares”) of common stock, par value $0.05 per share (“Common Stock”), of the Company to be issued subsequent to the date hereof under the Second Amended and Restated Spirit Realty Capital, Inc. and Spirit Realty, L.P. 2012 Incentive Award Plan (the “Plan”)

Ladies and Gentlemen:

We have acted as Maryland corporate counsel to the Company in connection with the registration of the Shares under the Securities Act of 1933, as amended (the “Act”), by the Company pursuant to the Registration Statement on Form S-8 to be filed by the Company with the Securities and Exchange Commission (the “Commission”) on or about the date hereof (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 purposes of this opinion, we have examined the following documents (hereinafter collectively referred to as 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 August 21, 2013, Articles of Amendment filed with the Department on May 13, 2014, Articles Supplementary filed with the Department on March 3, 2017, Articles Supplementary filed with the Department on October 2, 2017, Articles of Amendment filed with the Department on December 12, 2018, Articles of Amendment filed with the Department on April 29, 2019 and Articles of Amendment filed with the Department on November 18, 2021;

 

  (ii)

the Fifth Amended and Restated Bylaws of the Company, dated as of August 10, 2017 (the “Bylaws”);

 

  (iii)

certain resolutions adopted by the Board of Directors of the Company (the “Board of Directors”) with respect to the Plan (the “Directors’ Resolutions”);

 

  (iv)

the Plan;


BALLARD SPAHR LLP

Spirit Realty Capital, Inc.

May 20, 2022

Page 2

 

  (v)

the Registration Statement, in substantially the form to be filed with the Commission pursuant to the Act;

 

  (vi)

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;

 

  (vii)

a certificate executed by one or more officers of the Company, dated as of the date hereof (the “Officers’ Certificate”), to the effect that, among other things, the Charter, the Bylaws and the Directors’ Resolutions are true, correct and complete, have not been rescinded or modified and are in full force and effect on the date of the Officers’ Certificate, and certifying, among other things, as to the manner of adoption of the Directors’ Resolutions and the approval of the Plan by the stockholders of the Company; and

 

  (viii)

such other documents and matters as we have deemed necessary and appropriate to render the opinions set forth in this letter, 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 of the Documents on behalf of any party (other than the Company) is duly authorized to do so;

 

  (b)

each natural person executing any of the Documents is legally competent to do so;

 

  (c)

all Documents submitted to us as originals are authentic; the form and content of any Documents submitted to us as unexecuted drafts do not, and will 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, facsimile or photostatic copies conform to the original document; all signatures of parties on all of the Documents are genuine; all public records reviewed or relied upon by us or on our behalf are accurate and complete; all statements and information contained in the Documents are true and complete; and 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 (including the Officers’ Certificate) submitted to us are true and correct, both when made and as of the date hereof;

 

  (e)

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;


BALLARD SPAHR LLP

Spirit Realty Capital, Inc.

May 20, 2022

Page 3

 

  (f)

none of the Shares will be issued or transferred in violation of the provisions of the Charter relating to restrictions on ownership and transfer of capital stock; and

 

  (g)

upon each 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, 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.

Based on our review of 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 generally authorized for issuance pursuant to the Plan and if, as and when the Shares are issued subsequent to the date hereof either as awards of restricted stock or upon the exercise of options, or in respect of stock appreciation rights or other equity-based awards, in each case pursuant to due authorization by the Board of Directors or a properly appointed committee thereof to which the Board of Directors has delegated the requisite power and authority, in exchange for the consideration therefor, all in accordance with, and subject to, the terms and conditions of the Plan and the awards of restricted stock, options, stock appreciation rights or other equity-based awards relating to such Shares, such Shares will be duly authorized, validly issued, fully paid and non-assessable.

The opinions presented herein are limited to the laws of the State of Maryland and we do not express any opinion herein concerning any laws other than the laws of the State of Maryland. 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 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. 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


EX-23.2

Exhibit 23.2

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Second Amended and Restated Spirit Realty Capital, Inc. and Spirit Realty, L.P. 2012 Incentive Award Plan of our reports dated February 14, 2022, with respect to the consolidated financial statements of Spirit Realty Capital, Inc. and the effectiveness of internal control over financial reporting of Spirit Realty Capital, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2021, filed with the Securities and Exchange Commission.

 

/s/ Ernst & Young LLP
Dallas, Texas
May 20, 2022

EX-FILING FEES

Exhibit 107

EX-FILING FEES

Form S-8

(Form Type)

Spirit Realty Capital, Inc.

(Exact Name of Registrant as Specified in its Charter)

Table 1: Newly Registered Securities

 

Security Type  

Security

Class

Title

 

Fee

Calculation

Rule

 

Amount

Registered(1)(2)

 

Proposed

Maximum

Offering

Price Per

Unit

 

Maximum

Aggregate

Offering

Price

 

Fee

Rate

 

Amount of

Registration

Fee

Equity   Common Stock, par value $0.05 per share   Rule 457(c)3)   3,000,000   $41.88(3)   $ 125,640,000.00   0.0000927   $ 11,646.83
Total Offering Amounts               $ 11,646.83
Total Fees Previously Paid               —  
Total Fee Offsets(4)               —  
Net Fee Due               $ 11,646.83

(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also cover any additional shares of the registrant’s common stock, par value $0.05 per share (the “Common Stock”), that become issuable under the Second Amended and Restated Sprit Realty Capital, Inc. and Spirit Realty, L.P. 2012 Incentive Award Plan (as amended, the “Plan”) by reason of any stock dividend, stock split, recapitalization or similar transaction effected without the registrant’s receipt of consideration that would increase the number of outstanding shares of Common Stock.

(2) Covers 3,000,000 additional shares of Common Stock available for issuance pursuant to the Plan.

(3) For purposes of computing the registration fee only. Pursuant to Rule 457(c)of the Securities Act, the Proposed Maximum Offering Price Per Share is based upon the average of the high and low prices of Common Stock, as reported on the New York Stock Exchange on May 18, 2022, which was $41.88 per share.

(4) The registrant does not have any fee offsets.