Filed Pursuant to Rule 424(b)(4)
Registration No. 333-259416
PROSPECTUS
19,304,625 Shares
NewLake Capital Partners, Inc.
Common Stock
This prospectus relates to the resale from time to time of (a) an aggregate 19,304,625 shares of common stock, $0.01 par value per share (the “common stock”), of NewLake Capital Partners, Inc., a Maryland corporation (“we,” “us,” or “our”), consisting of (i) 17,329,964 shares of common stock, (ii) 127,176 shares of common stock issuable upon the settlement of outstanding restricted stock units, (iii) 602,392 shares of common stock issuable upon the exercise of 602,392 warrants to purchase one share of common stock at an exercise price of $24.00 per share, (iv) 791,790 shares of common stock that may be issued pursuant to the exercise of the option at an exercise price of $24.00 per share by the selling stockholders named in this prospectus and (v) 453,303 shares of common stock issuable upon the redemption of 453,303 limited partnership interests in our operating partnership (“OP Units”).
On March 17, 2021, we consummated a merger (the “Merger”), pursuant to which we combined our company with a separate company (the “Target”) that owned a portfolio of industrial properties and dispensaries utilized in the cannabis industry, and renamed ourselves “NewLake Capital Partners, Inc.” In connection with the Merger, we entered into the amended and restated registration rights agreement (the “Registration Rights Agreement”) with certain stockholders of our company and of the Target. Additionally, we are registering for possible resale shares of our common stock that may be issued upon redemption of previously issued OP Units. We are registering the issuance and resale of the common stock held by the selling stockholders.
The selling stockholders (which term as used herein includes their pledgees, donees, transferees or other successors-in-interest) may offer the shares from time to time as they may determine through public transactions or through other means and at varying prices as determined by the prevailing market price for shares or in negotiated transactions as described in the section entitled “Plan of Distribution” beginning on page 81.
The registration of the shares of our common stock covered by this prospectus does not necessarily mean that any of the shares of common stock registered will be sold by the selling stockholders or that the holders of OP Units will request that our operating partnership redeem their OP Units, that upon any such redemption we will elect to issue shares of common stock in exchange for some or all of the OP Units tendered for redemption for common stock, or that any shares of our common stock issued to the selling stockholders in exchange for OP Units will be sold by the selling stockholders. We expect that the offering price for our common stock will be based on the prevailing market price of our common stock at the time of sale. Our common stock is listed on the OTCQX® Best Markets operated by OTC Markets Group, Inc. (the “OTCQX”) under the symbol “NLCP.” On May 13, 2022, the last sale price of our common stock, as reported on the OTCQX, was $19.99 per share.
We are not selling any securities under this prospectus and will not receive any of the proceeds from the sale of shares by the selling stockholder.
Shares of our common stock will be subject to the ownership and transfer limitations in our charter, which are intended to assist us in qualifying and maintaining our qualification as a real estate investment trust (“REIT”), including, subject to certain exceptions, a 7.5% ownership limit. See “Description of Capital Stock -- Restrictions on Ownership and Transfer.”
We are an “emerging growth company” and a “smaller reporting company” under the federal securities laws and will be subject to reduced public company reporting requirements. Investing in our common stock involves a high degree of risk. See “Risk Factors” beginning on page 10 of our Annual Report on Form 10-K incorporated by reference herein for a discussion of certain risk factors that you should consider before investing in our common stock.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is May 16, 2022.
TABLE OF CONTENTS
Page
PROSPECTUS SUMMARY |
1 |
RISK FACTORS |
7 |
FORWARD-LOOKING STATEMENTS |
8 |
USE OF PROCEEDS |
10 |
DISTRIBUTION POLICY |
11 |
BUSINESS AND PROPERTIES |
12 |
POLICIES WITH RESPECT TO CERTAIN ACTIVITIES |
27 |
DESCRIPTION OF THE PARTNERSHIP AGREEMENT OF OUR OPERATING PARTNERSHIP |
31 |
SELLING STOCKHOLDERS |
35 |
DESCRIPTION OF CAPITAL STOCK |
51 |
CERTAIN PROVISIONS OF MARYLAND LAW AND OF OUR CHARTER AND BYLAWS |
55 |
MATERIAL FEDERAL INCOME TAX CONSIDERATIONS |
60 |
PLAN OF DISTRIBUTION |
81 |
LEGAL MATTERS |
83 |
EXPERTS |
83 |
INCORPORATION BY REFERENCE |
83 |
WHERE YOU CAN FIND MORE INFORMATION |
83 |
You should rely only on the information contained in this document (as supplemented and amended) and the documents incorporated by reference herein or therein. We have not authorized anyone to provide you with different information or additional information. If anyone provides you with different information or additional information, you should not rely on it. We are not making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. The information in this prospectus is current as of the date such information is presented. You should not assume that the information contained in this prospectus and the documents incorporated by reference herein or therein are accurate as of any date other than their respective dates regardless of the time of delivery of the prospectus or any sale of our common stock. Our business, financial condition, liquidity, funds from operations (“FFO”), adjusted funds from operations (“AFFO”), results of operations and prospects may have changed since those dates.
TRADEMARKS
All brand and trade names, logos or trademarks contained, or referred to, in this registration statement are the property of their respective owners. These references shall not in any way be construed as participation by, or endorsement of, the offering of any of our securities by any of our tenants or their respective parent companies.
ABOUT THIS PROSPECTUS
This prospectus forms part of a registration statement that we filed with the Securities and Exchange Commission (“SEC”) and that includes exhibits that provide more detail of the matters discussed in this prospectus. You should read this prospectus and the related exhibits filed with the SEC, together with the additional information described under the headings “Where You Can Find More Information” and “Incorporation By Reference” before making your investment decision.
You should rely only on the information provided in this prospectus or in a prospectus supplement or any free writing prospectuses or amendments thereto. Neither we, nor the selling stockholders, have authorized anyone else to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. You should assume that the information in this prospectus is accurate only as of the date hereof. Our business, financial condition, results of operations and prospects may have changed since that date.
Neither we, nor the selling stockholders, are offering to sell or seeking offers to purchase these securities in any jurisdiction where the offer or sale is not permitted. We have not done anything that would permit this offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose is required, other than in the United States. Persons outside the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of the securities as to distribution of the prospectus outside of the United States.
PROSPECTUS SUMMARY
The following summary highlights information contained elsewhere in this prospectus. This summary is not complete and does not contain all of the information that you should consider before investing in our common stock. You should read the entire prospectus carefully, including the section entitled “Risk Factors,” as well as the financial statements and related notes incorporated by reference, before making an investment decision. Unless otherwise indicated, the information contained in this prospectus is as of December 31, 2021.
Our Company
We are an internally-managed Maryland corporation and a leading provider of real estate capital to state-licensed cannabis operators through sale-leaseback transactions, third-party purchases and funding for build-to-suit projects. Our properties are leased to single tenants on a long-term, triple-net basis, which obligates the tenant to be responsible for the ongoing expenses of a property, in addition to its rent obligations. We have elected to be taxed as a REIT beginning with our short taxable year ended December 31, 2019 and intend to operate our business so as to continue to qualify as a REIT.
Our tenants operate in the fast-growing cannabis industry. We supply necessary real estate capital primarily to companies that cultivate, produce and/or dispense cannabis. We believe we fill a need in an underserved market that has been created by, among other factors, the misalignment of federal and state legislation regarding cannabis. Moreover, we believe the banking industry’s general reluctance to finance owners of cannabis-related facilities, coupled with the owners’ need for capital to fund the growth of their operations, should result in significant opportunities for us to acquire industrial properties and dispensaries that provide stable and increasing rental revenue along with the potential for long-term appreciation in value.
As of December 31, 2021, we owned a geographically diversified portfolio consisting of 28 properties across 11 states with nine tenants, comprised of 17 dispensaries and 11 cultivation facilities. Additionally, during the fourth quarter of 2021, we funded a mortgage loan collateralized by a cultivation and processing facility. The loan is structured to convert to a twenty-year sale leaseback, unless a specific provision in the loan agreement is satisfied prior to July 29, 2022. As of December 31, 2021, we have aggregate unfunded commitments to invest $24.0 million for the development and improvement of our existing cultivation facilities in Arizona, Massachusetts, Missouri and Pennsylvania. Our leases are generally structured to disburse capital over specified periods of time. Generally, the leases also contain certain provisions that require tenants to pay rent on the full amount of capital under each lease, whether or not disbursed. Our Pennsylvania cultivation facility is currently paying rent on approximately $7.0 million of unfunded capital.
As of December 31, 2021, we had $3.8 million of debt via a seller financing and our owned properties had a weighted average remaining lease term of 14.5 years. Our tenants include affiliates of what we believe to be some of the leading and most well-capitalized companies in the industry, such as Curaleaf Holdings Inc. (“Curaleaf”), Cresco Labs, Inc. (“Cresco Labs”), Trulieve Cannabis Corp. (“Trulieve”) and Columbia Care, Inc. (“Columbia Care”). All of our leases include a parent or other affiliate guarantee by what we consider a well-capitalized guarantor.
We target regulated state-licensed cannabis properties, particularly those in limited-license jurisdictions (which we define generally as jurisdictions where the number of licenses granted to cannabis operators are limited and requires a rigorous approval process). Furthermore, our focus is on those properties owned or operated by experienced state-licensed cannabis companies, including vertically integrated multi-state businesses involved in cultivation, processing, logistics and retail activities. Columbia Care and Acreage Holdings, Inc. (“Acreage”), which we believe to be two of the largest and more sophisticated cannabis operators in the U.S., have each granted us rights of first offer with respect to certain property acquisition opportunities through December 22, 2022 and May 31, 2022, respectively. For a more detailed discussion of these rights of first offer see “Business and Properties—Rights of First Offer.”
We believe that our focus on cannabis properties in limited-license jurisdictions, where the property is an integral part of the license application process and moving the licensee’s operations from one location to another would require regulatory or other approvals, provides the opportunity to capture rental income on properties with above-market property level cash flows and greater re-leasing probability as these properties are generally in high demand. Generally, a tenant’s ability to meet rental obligations is strongly correlated to the tenant’s revenues derived from the property. In our experience, cannabis operations in limited-license jurisdictions generally have less competition and produce a higher revenue per square foot than unlimited-license cannabis jurisdictions, as well as traditional industrial and retail businesses. We believe that our portfolio has a property rent coverage (generally, the ability of the tenant to generate income sufficient to satisfy its rent and other financial obligations) that is significantly greater than the average for the overall commercial real estate industry.
Investment Guidelines
Our board of directors will adopt the following initial investment guidelines:
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No investment will be made that would cause us to fail to qualify as a REIT. |
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No investment will be made that would cause us to be required to register as an investment company under the Investment Company Act of 1940, as amended (the “1940 Act”). |
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The proceeds of any future offering by us or our operating partnership, and cash from operations and capital transactions may be invested in interest-bearing, short-term, investment-grade investments, subject to the requirements for maintaining our qualification as a REIT. |
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Our aggregate borrowings (secured and unsecured) will not exceed 50% of the cost of its tangible assets at the time of any new borrowing. |
The investment committee of our board of directors oversees our investment portfolio and compliance with our investment guidelines and policies. These investment guidelines may be changed or waived by our investment committee or board of directors without the approval of our stockholders.
The Merger
We were incorporated on April 9, 2019 originally under the name GreenAcreage Real Estate Corp. On March 17, 2021, we consummated a merger (the “Merger”), pursuant to which we combined our company with a separate company (the “Target”) that owned a portfolio of industrial properties and dispensaries utilized in the cannabis industry, and renamed ourselves “NewLake Capital Partners, Inc.” Immediately prior to the Merger, our company owned a portfolio of five properties among five states. The Target was a Maryland corporation organized in April 2019 under the name New Lake Capital Partners, Inc. that, immediately prior to the Merger, owned a portfolio of 19 properties among eight states.
Upon completion of the Merger, we owned 24 properties across nine states, and became one of the largest REITs in the cannabis industry. We consummated the Merger and combined businesses with the Target to, among other things, benefit from increasing economies of scale as we continue to grow, and as part of our evolution toward entering the public markets. In connection with the Merger, we also entered into various arrangements and agreements with certain of our significant stockholders, including director nomination rights. See “Certain Relationships and Related Party Transactions—Investor Rights Agreement” in our 2022 Definitive Proxy Statement on Schedule 14A and incorporated by reference herein for more information about these director nomination rights.
Government Regulation
Cannabis (with the exception of hemp containing no more than 0.3% THC by dry weight) is illegal under U.S. federal law. In those states in which the use of cannabis has been legalized, its use remains a violation of federal law pursuant to the Controlled Substances Act of 1970 (the “CSA”). The CSA classifies marijuana (cannabis) as a Schedule I controlled substance, and as such, both medical-use and adult-use cannabis are illegal under U.S. federal law. Moreover, on two separate occasions the U.S. Supreme Court ruled that the CSA trumps state law. Although internal policies and Congressional actions have placed certain limitations on the federal government’s ability to enforce federal cannabis laws against businesses legally operating under the medical marijuana laws of a given state, as discussed below, there exists the possibility that the federal government may enforce U.S. drug laws against companies operating in accordance with state cannabis laws, creating a climate of legal uncertainty regarding the production and sale of cannabis. Unless and until Congress amends or repeals the CSA with respect to medical-use and/or adult-use cannabis and the President approves such action (and as to the timing or scope of any such potential amendment or repeal there can be no assurance), there is a risk that the federal law enforcement authorities responsible for enforcing the CSA, including the U.S. Department of Justice (“DOJ”) and the Drug Enforcement Agency (“DEA”), may enforce current federal law.
Federal prosecutors have significant discretion to investigate and prosecute suspected violations of federal law and no assurance can be given that the federal prosecutor in each judicial district where we purchase a property will not choose to strictly enforce the federal laws governing cannabis production, processing or distribution. Any change in the federal government’s enforcement posture with respect to state-licensed cultivation of medical-use and adult-use cannabis, including the enforcement postures of individual federal prosecutors in judicial districts where we purchase properties, would result in our inability to execute our business plan, and we would likely suffer significant losses with respect to our investment in cannabis facilities in the U.S., which would adversely affect the trading price of our securities. Furthermore, following any such change in the federal government’s enforcement position, we could be subject to criminal prosecution, which could impact our ability to operate and could lead to imprisonment and/or the imposition of penalties, fines, or forfeiture. See “Risk Factors – Risks Related to Regulation” in our Annual Report on Form 10-K incorporated herein by reference.
In most states that have legalized medical-use and adult-use cannabis in some form, the growing, processing and/or dispensing of cannabis generally requires that the operator obtain one or more licenses in accordance with applicable state requirements. In addition, many states regulate various aspects of the growing, processing and/or dispensing of medical-use and adult-use cannabis. State and local governments in some cases also impose rules and regulations on the manner of operating cannabis businesses. As a result, applicable state and local laws and regulations vary widely, including, but not limited to, regulations governing medical-use and/or adult-use cannabis programs (such as the type of cannabis products permitted under the program, qualifications and registration of health professionals that may recommend treatment with medical cannabis, and the types of medical conditions that qualify for medical cannabis), product testing, the level of enforcement by state and local authorities on non-licensed cannabis operators, state and local taxation of regulated cannabis products, local municipality bans on operations and operator licensing processes and renewals. As a result of these and other factors, if our tenants default under their leases, we may not be able to find new tenants that can successfully engage in the cultivation, processing or dispensing of medical-use or adult-use cannabis on the properties.
There is no guarantee that state laws legalizing and regulating the growing, processing, sale and use of cannabis will not be repealed, amended or overturned, or that local governmental authorities will not limit the applicability of state laws within their respective jurisdictions. Unless and until Congress amends or repeals the CSA with respect to medical-use and/or adult-use cannabis and the President approves such action (and as to the timing or scope of any such potential amendment or repeal there can be no assurance), there is a risk that federal authorities may enforce current federal law. If the federal government begins to enforce federal laws relating to cannabis in states where the growing, processing, sale and use of cannabis is currently legal, or if existing applicable state laws are repealed or curtailed, our business, results of operations, financial condition and prospects would be materially and adversely affected.
For more information related to the regulation of cannabis and related matters, see “Business and Properties—Government Regulation and Environmental and Related Matters.”
Summary Risk Factors
Investing in our common stock involves a high degree of risk. Prospective investors are urged to carefully consider the matters discussed under “Risk Factors” beginning on page 10 of our Annual Report on Form 10-K incorporated by reference herein prior to making an investment in our common stock. Such risks include, but are not limited to:
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Many clearing firms in the United States are prohibited or very limited in their ability to settle securities offerings of companies engaged in the cannabis industry, which could adversely impact our ability to raise funds in the capital markets. |
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The COVID-19 pandemic, or the future outbreak of any other pandemic, could materially and adversely impact our tenants and their operations, and in turn our business (including our financial performance and condition). |
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We have a limited operating history and operate in an industry in its very early stages of development. |
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We have a very limited number of tenants, and the inability of any single tenant to make its lease payments could materially and adversely affect our business (including our financial performance and condition). |
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Our business is subject to risks associated with real estate assets and the real estate industry, which could materially and adversely affect our business (including our financial performance and condition). |
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Our real estate investments are concentrated in industrial properties suitable for the cultivation and production of cannabis and retail properties suitable for the dispensing of cannabis, and a decrease in demand for such facilities could materially and adversely affect our business (including our financial performance and condition). These properties may be difficult to sell or re-lease upon tenant defaults or lease terminations, either of which could materially and adversely affect our business (including our financial performance and condition). |
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Our properties are, and are expected to continue to be, geographically concentrated in states that permit cannabis cultivation and dispensing, and we will be subject to social, political and economic risks of doing business in these states. |
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We are an “emerging growth company,” and a “smaller reporting company” and we cannot be certain if the reduced disclosure requirements applicable to emerging growth companies and smaller reporting companies will make shares of our common stock less attractive to investors. |
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We incur significant new costs as a result of becoming a public company, and such costs may increase if and when we cease to be an emerging growth company. |
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Cannabis remains illegal under federal law, and therefore, strict enforcement of federal laws regarding cannabis would likely result in our inability and the inability of our tenants to execute our respective business plans. |
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Certain of our tenants engage in operations for the adult-use cannabis industry in addition to or in lieu of operations for the medical-use cannabis industry, and such tenants, we and our properties may be subject to additional risks associated with such adult-use cannabis operations. |
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New laws that are adverse to the business of our tenants may be enacted, and current favorable national, state or local laws or enforcement guidelines relating to cannabis operations may be modified or eliminated in the future. |
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We and our tenants may have difficulty accessing the service of banks and other financial institutions, which may make it difficult to contract for real estate needs. |
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Our growth depends on external sources of capital, which may not be available on favorable terms or at all (which such financing source risk may be more pronounced in the cannabis industry due to financial and regulatory constraints). |
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We are dependent on our key personnel for our success. |
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Our charter and certain provisions of Maryland law could inhibit changes in control. |
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Our rights and the rights of our stockholders to take action against or remove our directors and officers are limited, which could limit your recourse in the event of actions not in your best interests. |
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The market price and trading volume of our common stock may be volatile. |
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We cannot assure you of our ability to make distributions in the future. |
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Our failure to remain qualified as a REIT would subject us to U.S. federal income tax and applicable state and local taxes, which would reduce the amount of cash available for distribution to our stockholders and have significant adverse consequences on the market price of our common stock. |
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Legislative, regulatory or administrative changes could adversely affect us or our stockholders. |
Our Operating Structure
Our Company
We were incorporated as a Maryland corporation on April 9, 2019. We conduct our business through a traditional umbrella partnership REIT structure, in which properties are owned by an operating partnership, directly or through subsidiaries. Our properties are owned by our operating partnership indirectly through limited liability companies or other subsidiaries of our operating partnership, as described below under “—Our Operating Partnership.” We are the sole general partner of our operating partnership and own approximately 98% of the OP Units as of December 31, 2021. Our board of directors oversees our business and affairs.
Our Operating Partnership
Our operating partnership was formed as a Delaware limited partnership and commenced operations in April 2019. Substantially all of our assets are held by, and our operations are conducted through, our operating partnership. Our interest in our operating partnership generally entitles us to share in cash distributions from, and in the profits and losses of, our operating partnership in proportion to our percentage ownership. As the sole general partner of our operating partnership, we generally have the exclusive power under the partnership agreement to manage and conduct its business and affairs, subject to certain limited approval and voting rights of the limited partners, which are described more fully below in “Description of the Partnership Agreement of Our Operating Partnership.” In the future, we may continue to issue OP Units from time to time in connection with property acquisitions, as compensation, or otherwise.
Restrictions on Ownership and Transfer
Our charter provides that, subject to certain exceptions, no person may beneficially or constructively own more than 7.5% in value or in number of shares, whichever is more restrictive, of the outstanding shares of our common stock or of the outstanding shares of any class or series of our preferred stock, or more than 7.5% in value or number of shares, whichever is more restrictive, of the aggregate outstanding shares of all classes and series of our stock. Our charter also prohibits any person from (i) beneficially owning shares of our capital stock to the extent that such beneficial ownership would result in our being “closely held” within the meaning of Section 856(h) of the Internal Revenue Code of 1986, as amended (the “Code”), without regard to whether the ownership interest is held during the last half of the taxable year, or otherwise failing to qualify as a REIT (including, but not limited to, beneficial ownership or constructive ownership that would result in us owning (actually or constructively) an interest in a tenant that is described in Section 856(d)(2)(B) of the Code if the income derived by us from such tenant would cause us to fail to satisfy any of the gross income requirements of Section 856(c) of the Code) or (ii) transferring shares of our capital stock to the extent that such transfer would result in shares of our capital stock being beneficially owned by less than 100 persons (determined under the principles of Section 856(a)(5) of the Code). The foregoing restrictions on transferability and ownership will not apply if our board of directors determines that it is no longer in our best interests to attempt to qualify, or to continue to qualify as a REIT.
Our board of directors, in its sole discretion, may prospectively or retroactively exempt a person from the limits described above and may establish or increase an excepted holder percentage limit for such person. The person seeking an exemption must provide to our board of directors such representations, covenants and undertakings as our board of directors may deem appropriate in order to conclude that granting the exemption will not cause us to fail to qualify as a REIT. Our board of directors may not grant such an exemption to any person if such exemption would result in our failing to qualify as a REIT.
These ownership limitations could have the effect of discouraging a takeover or other transaction in which holders of our common stock might receive a premium for their shares over the then prevailing market price or which holders might believe to be otherwise in their best interests. For further details regarding stock ownership limits, see “Description of Capital Stock—Restrictions on Ownership and Transfer.”
Distribution Policy
We intend to continue to pay regular quarterly cash dividends to holders of shares of our common stock. Actual distributions may be significantly different from expected distributions. Distributions declared by us will be authorized by our board of directors in its sole discretion out of funds legally available therefor and will depend upon a number of factors, including restrictions under applicable law, our results of operations, the capital requirements of our company and the distribution requirements necessary to maintain our qualification as a REIT. See “Distribution Policy.”
We intend to continue to pay dividends that will enable us to meet the distribution requirements applicable to REITs and to eliminate or minimize our obligation to pay income and excise taxes. Although we have no current intention to pay dividends in shares of our common stock, we may in the future choose to do so. See “Material Federal Income Tax Considerations—Taxation of Taxable U.S. Stockholders.”
Our Tax Status
We have elected to be taxed as a REIT for U.S. federal income tax purposes beginning with our short taxable year ended December 31, 2019. We believe that, commencing with such taxable year, we have been organized and operated in a manner so as to qualify as a REIT under the U.S. federal income tax laws, and we intend to continue to operate in such a manner, but no assurances can be given that we will operate in a manner so as to remain qualified as a REIT. Our continued qualification as a REIT will depend upon our ability to meet, on a continuing basis, through actual investment and operating results, various complex requirements under the Code relating to, among other things, the sources of our gross income, the composition and values of our assets, our distribution levels and the diversity of ownership of our capital stock.
As a REIT, we generally are not subject to federal income tax on our net taxable income that we distribute currently to our stockholders. Under the Code, REITs are subject to numerous organizational and operational requirements, including a requirement that they distribute on an annual basis at least 90% of their REIT taxable income, determined without regard to the deduction for dividends paid and excluding any net capital gains. If we fail to qualify for taxation as a REIT in any taxable year and do not qualify for certain statutory relief provisions, our income for that year will be taxed at regular corporate rates, and we would be disqualified from taxation as a REIT for the four taxable years following the year during which we ceased to qualify as a REIT. As a result, we anticipate that our failure to qualify as a REIT would reduce the cash available for distribution by us to our stockholders. In addition, if we fail to qualify as a REIT, all distributions to stockholders will be taxable as regular corporate dividends to the extent of our current and accumulated earnings and profits. Even if we maintain our qualification as a REIT for federal income tax purposes, we may still be subject to state and local taxes on our income and assets and to federal income and excise taxes on our undistributed income. Additionally, any income earned by any taxable REIT subsidiary (“TRS”) we form in the future will be fully subject to federal, state and local corporate income tax.
Emerging Growth Company and Smaller Reporting Company Status
We are an “emerging growth company,” as defined in the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”). We are eligible to take advantage of certain exemptions from various reporting requirements that are applicable to other public companies that are not “emerging growth companies.” These exemptions include not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements and exemptions from the requirements of holding a non-binding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved. If we continue to take advantage of any of these exemptions, we do not know if some investors will find shares of our common stock less attractive as a result. The result may be a less active trading market for shares of our common stock and the price of our common stock may be more volatile.
In addition, the JOBS Act provides that an emerging growth company can take advantage of the extended transition period provided in the Securities Act for complying with new or revised accounting standards. An emerging growth company can delay the adoption of certain accounting standards until those standards would otherwise apply to private companies.
We will remain an emerging growth company until the earliest to occur of (i) the last day of the fiscal year during which our total annual revenue equals or exceeds $1.07 billion (subject to adjustment for inflation), (ii) the last day of the fiscal year following the fifth anniversary of our initial public offering, (iii) the date on which we have, during the previous three-year period, issued more than $1.0 billion in non-convertible debt or (iv) the date on which we are deemed to be a “large accelerated filer” under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
We are also a “smaller reporting company” as defined in Regulation S-K under the Securities Act and have elected to take advantage of certain of the scaled disclosures available to smaller reporting companies. We may be a smaller reporting company even after we are no longer an “emerging growth company.”
Corporate Information
NewLake Capital Partners, Inc., a Maryland corporation, was incorporated on April 9, 2019 originally under the name GreenAcreage Real Estate Corp. Our name was changed to NewLake Capital Partners, Inc. in March 2021 in connection with the Merger. Our principal executive offices are located at 27 Pine Street, Suite 50, New Canaan, CT 06840. Our telephone number is 203-594-1402. Information on, or accessible through, our website is not a part of, and is not incorporated into, this prospectus or the registration statement of which it forms a part.
RISK FACTORS
Investing in our common stock involves a high degree of risk. You should carefully consider the risk factors beginning on page 10 of our Annual Report on Form 10-K incorporated by reference herein, as well as the other information contained or incorporated by reference in this prospectus, including our historical and pro forma combined financial statements and the notes thereto, before making an investment decision to purchase shares of our common stock offered by this prospectus. The occurrence of any of the risks described could materially and adversely affect our business, prospects, financial, condition, cash flows, funds from operations, results of operations, the per-share trading price of our common stock and our ability to make cash distributions to our stockholders, which could cause you to lose all or a significant part of your investment in our common stock. Some statements in this prospectus, including statements in the following risk factors, constitute forward-looking statements. Please refer to the section titled “Forward-Looking Statements.”
FORWARD-LOOKING STATEMENTS
We make statements in this prospectus and in the documents incorporated by reference, that are forward-looking statements within the meaning of the federal securities laws. In particular, statements pertaining to our capital resources, property performance, leasing rental rates, future dividends and results of operations contain forward- looking statements. Likewise, our pro forma financial statements and all of our statements regarding anticipated growth in our funds from operations and anticipated market conditions, demographics and results of operations are forward-looking statements. You can identify forward-looking statements by the use of forward-looking terminology such as “believe,” “continue,” “could,” “expect,” “may,” “will,” “should,” “would,” “seek,” “approximately,” “intend,” “plan,” “pro forma,” “estimates” “forecast,” “project,” or “anticipate” or the negative of these words and phrases or similar words or phrases which are predictions of or indicate future events or trends and which do not relate solely to historical matters. You can also identify forward-looking statements by discussions of strategy, plans or intentions.
Forward-looking statements involve numerous risks and uncertainties and you should not rely on them as predictions of future events. Forward-looking statements depend on assumptions, data or methods which may be incorrect or imprecise and we may not be able to realize them. We do not guarantee that the transactions and events described will happen as described (or that they will happen at all). The following factors, among others, could cause actual results and future events to differ materially from those set forth or contemplated in the forward-looking statements:
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actions and initiatives of the U.S. or state governments and changes to government policies and the execution and impact of these actions, initiatives and policies, including the fact that cannabis remains illegal under federal law; |
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the impact of the COVID-19 pandemic, or future pandemics, on us, our business, our tenants, or the economy generally; |
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the impact of the Merger, including our ability to integrate businesses; |
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our status as an emerging growth company and a smaller reporting company; |
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general economic conditions; |
• |
adverse economic or real estate developments, either nationally or in the markets in which our properties are located; |
• |
other factors affecting the real estate industry generally; |
• |
the competitive environment in which we operate; |
• |
the estimated growth in and evolving market dynamics of the regulated cannabis market; |
• |
the expected medical-use or adult-use cannabis legalization in certain states; |
• |
shifts in public opinion regarding regulated cannabis; |
• |
the additional risks that may be associated with certain of our tenants cultivating adult-use cannabis in our cultivation facilities; |
• |
the risks associated with the development of cultivation centers and dispensaries; |
• |
our ability to successfully identify opportunities in target markets; |
• |
our lack of an extensive operating history; |
• |
our tenants’ lack of operating history; |
• |
the concentration of our tenants in certain geographical areas; |
• |
our failure to generate sufficient cash flows to service any outstanding indebtedness we may incur in the future; |
• |
defaults on, early terminations of or non-renewal of leases by tenants, including significant tenants; |
• |
our failure to acquire the properties in our identified pipeline successfully, on the anticipated timeline or at the anticipated costs; |
• |
our failure to properly assess employment growth or other trends in target markets and other markets in which we seek to invest; |
• |
lack or insufficient amounts of insurance; |
• |
bankruptcy or insolvency of a significant tenant or a substantial number of smaller tenants; |
• |
our access to certain financial resources, including banks and other financial institutions; |
• |
our failure to successfully operate acquired properties; |
• |
our ability to operate successfully as a public company; |
• |
our dependence on key personnel and ability to identify, hire and retain qualified personnel in the future; |
• |
conflicts of interests with our officers and/or directors stemming from their fiduciary duties to other entities, including our operating partnership; |
• |
our failure to obtain necessary outside financing on favorable terms or at all,; |
• |
fluctuations in interest rates and increased operating costs; |
• |
financial market fluctuations; |
• |
general volatility of the market price of our common stock; |
• |
changes in GAAP; |
• |
environmental uncertainties and risks related to adverse weather conditions and natural disasters; |
• |
our failure to maintain our qualification as a REIT for federal income tax purposes; and |
• |
changes in governmental regulations or interpretations thereof, such as real estate and zoning laws and increases in real property tax rates and taxation of REITs. |
While forward-looking statements reflect our good faith beliefs, they are not guarantees of future performance. We disclaim any obligation to publicly update or revise any forward-looking statement to reflect changes in underlying assumptions or factors, of new information, data or methods, future events or other changes after the date of this prospectus, except as required by applicable law. You should not place undue reliance on any forward-looking statements that are based on information currently available to us or the third parties making the forward-looking statements. For a further discussion of these and other factors that could impact our future results, performance or transactions, see the section titled “Risk Factors” in our Annual Report on Form 10-K incorporated herein by reference.
USE OF PROCEEDS
All of the shares of common stock offered by the selling stockholders pursuant to this prospectus will be sold by the selling stockholders for their respective accounts. We will not receive any of the proceeds from these sales.
The selling stockholders will pay any fees, discounts, selling commissions, stock transfer taxes and legal expenses incurred by such selling stockholders in disposing of their shares of common stock and offered pursuant to this prospectus.
DISTRIBUTION POLICY
We have elected to be taxed as a REIT for U.S. federal income tax purposes beginning with our short taxable year ended December 31, 2019 and intend to operate our business so as to continue to qualify as a REIT. We intend to continue to pay regular quarterly dividends, but as discussed below, all dividends are subject to the approval of our board of directors consistent with Maryland law and there can be no assurance over the timing, frequency or amount of any dividends. U.S. federal income tax law requires that a REIT distribute annually at least 90% of its net taxable income, excluding net capital gains, and that it pay tax at regular corporate rates to the extent that it annually distributes less than 100% of its net taxable income, including net capital gains. In addition, a REIT is required to pay a 4% nondeductible excise tax on the amount, if any, by which the distributions that it makes in a calendar year are less than the sum of 85% of its ordinary income, 95% of its capital gain net income and 100% of its undistributed income from prior years. For more information, please see “Material Federal Income Tax Considerations.” To satisfy the requirements to continue to qualify as a REIT and generally not be subject to U.S. federal income and excise tax, we generally intend to make quarterly distributions to holders of our common stock, over time in an amount equal to our taxable income. Although we anticipate generally making quarterly distributions to our stockholders over time, our board of directors has the sole discretion to determine the timing, form (including cash and shares of our common stock at the election of each of our stockholders) and amount of any distributions to our stockholders. Although not currently anticipated, in the event that our board of directors determines to make distributions in excess of the income or cash flow generated from our portfolio of assets, we may make such distributions from the proceeds of this or future offerings of equity or debt securities or other forms of debt financing or the sale of assets.
To the extent that in respect of any calendar year, cash available for distribution is less than our taxable income, we could be required to fund distributions from working capital, sell assets or borrow funds to make cash distributions or make a portion of the required distribution in the form of a taxable stock distribution or distribution of debt securities. For more information, see “Material Federal Income Tax Considerations—Distribution Requirements.”
Our charter allows us to issue preferred stock that could have a preference over our common stock with respect to distributions. We currently have no intention to issue any preferred stock over the short-or intermediate-term, but if we do, the distribution preference on the preferred stock could limit our ability to make distributions to the holders of our common stock.
Dividends and other distributions made by us will be authorized and determined by our board of directors in its sole discretion out of assets legally available therefor and will be dependent upon a number of factors, including restrictions under applicable law and other factors described below. We cannot assure you that our distributions will be made or sustained or that our board of directors will not change our distribution policy in the future. Any dividends or other distributions that we pay in the future will depend upon our actual results of operations, economic conditions, debt service requirements, capital expenditures and other factors that could differ materially from our current expectations. Our actual results of operations will be affected by a number of factors, including our revenue, operating expenses, interest expense and unanticipated expenditures. For more information regarding risk factors that could materially and adversely affect our actual results of operations, see “Risk Factors” in our Annual Report on Form 10-K incorporated herein by reference.
BUSINESS AND PROPERTIES
Our Company
We are an internally-managed Maryland corporation and a leading provider of real estate capital to state-licensed cannabis operators through sale- leaseback transactions, third-party purchases and funding for build-to-suit projects. Our properties are leased to single tenants on a long-term, triple-net basis, which obligates the tenant to be responsible for the ongoing expenses of a property, in addition to its rent obligations. We have elected to be taxed as a REIT for U.S. federal income tax purposes beginning with our short taxable year ended December 31, 2019 and intend to operate our business so as to continue to qualify as a REIT.
Our tenants operate in the fast-growing cannabis industry. We supply necessary real estate capital primarily to companies that cultivate, produce and/or dispense cannabis. We believe we fill a need in an underserved market that has been created by, among other factors, the misalignment of federal and state legislation regarding cannabis. Moreover, we believe the banking industry’s general reluctance to finance owners of cannabis-related facilities, coupled with the owners’ need for capital to fund the growth of their operations, should result in significant opportunities for us to acquire industrial properties and dispensaries that provide stable and increasing rental revenue along with the potential for long-term appreciation in value.
On March 17, 2021, we completed the acquisition of a separate company that owned a portfolio of industrial properties and dispensaries utilized in the cannabis industry (see “The Merger”). As of December 31, 2021, we owned a geographically diversified portfolio consisting of 28 properties across 11 states with nine tenants, comprised of 17 dispensaries and 11 cultivation facilities. Additionally, during the fourth quarter of 2021, we funded a mortgage loan collateralized by a cultivation and processing facility. The loan is structured to convert to a twenty-year sale leaseback, unless a specific provision in the loan agreement is satisfied prior to July 29, 2022. As of December 31, 2021, we have aggregate unfunded commitments to invest $24.0 million for the development and improvement of our existing cultivation facilities in Arizona, Massachusetts, Missouri and Pennsylvania. Our leases are generally structured to disburse capital over specified periods of time. Generally, the leases also contain certain provisions that require tenants to pay rent on the full amount of capital under each lease, whether or not disbursed. Our Pennsylvania cultivation facility is currently paying rent on approximately $7.0 million of unfunded capital.
As of December 31, 2021 we had $3.8 million of debt via seller financing and our owned properties had a weighted average remaining lease term of 14.5 years. Our tenants include affiliates of what we believe to be some of the leading and most well-capitalized companies in the industry, such as Curaleaf, Cresco Labs, Trulieve and Columbia Care. All of our leases include a parent or other affiliate guarantee by what we consider a well-capitalized guarantor.
We intend to target regulated state-licensed cannabis properties, particularly those in limited-license jurisdictions (which we define generally as jurisdictions where the number of licenses granted to cannabis operators are limited and requires a rigorous approval process). Furthermore, our focus is on those properties owned or operated by experienced state-licensed cannabis companies, including vertically integrated multi-state businesses involved in cultivation, processing, logistics and retail activities. Columbia Care and Acreage, which we believe to be two of the largest and more sophisticated cannabis operators in the U.S., have each granted us rights of first offer with respect to certain property acquisition opportunities through December 22, 2022 and May 31, 2022, respectively. For a more detailed discussion of these rights of first offer see “Business and Properties—Rights of First Offer.”
We believe that our focus on cannabis properties in limited-license jurisdictions, where the property is an integral part of the license application process and moving the licensee’s operations from one location to another would require regulatory or other approvals, provides the opportunity to capture rental income on properties with above-market property level cash flows and greater re-leasing probability as these properties are generally in high demand. Generally, a tenant’s ability to meet rental obligations is strongly correlated to the tenant’s revenues derived from the property. In our experience, cannabis operations in limited-license jurisdictions generally have less competition and produce a higher revenue per square foot than unlimited-license cannabis jurisdictions, as well as traditional industrial and retail businesses. We believe that our portfolio has a property rent coverage (generally, the ability of the tenant to generate income sufficient to satisfy its rent and other financial obligations) that is significantly greater than the average for the overall commercial real estate industry.
Our Properties
We seek to acquire industrial properties and dispensaries that are strategic profit centers for our tenants and are well positioned for the regulatory evolution of the industry. Licensed industrial and dispensary locations are critical components of the cannabis industry, particularly in limited-license jurisdictions. As of December 31, 2021, we owned 28 properties comprised of 17 dispensaries and 11 cultivation facilities that are 100% leased to state-licensed cannabis operators, with a weighted average remaining lease term of 14.5 years. Based on invested capital, as of December 31, 2021, our portfolio is comprised of approximately 89.3% cultivation facilities and 10.7% dispensaries. We define tenant reimbursement commitments as a commitment pursuant to our lease with the tenant to fund alterations, additions or improvements to the premises.
As of December 31, 2021, we have aggregate unfunded commitments to invest $24.0 million for the development and improvement of our existing cultivation facilities in Arizona, Massachusetts, Missouri and Pennsylvania. We define these tenant reimbursement commitments as a commitment pursuant to our lease with the tenant to fund alterations, additions or improvements to the premises. Our leases are generally structured to disburse capital over specified periods of time. The leases also generally contain certain provisions that require tenants to pay rent on the full amount of capital under each lease, whether or not disbursed. As of December 31, 2021, our Pennsylvania cultivation facility is currently paying rent on approximately $7.0 million of unfunded capital.
Existing Portfolio. The table below sets forth our property portfolio as of December 31, 2021:
Property Type |
State |
Tenant/Borrower(1) |
Rentable Square Feet(2) |
Capital Investment(3) |
||||||
Cultivation |
Florida |
Curaleaf |
379,435 |
$ |
55,000,000 |
|||||
Cultivation |
Illinois |
Cresco Labs |
222,455 |
50,731,761 |
||||||
Cultivation |
Massachusetts |
Revolutionary Clinics |
145,852 |
42,860,186 |
(4) |
|||||
Cultivation |
Pennsylvania |
Trulieve |
144,602 |
37,222,909 |
(5) |
|||||
Cultivation |
Missouri |
Organic Remedies |
81,808 |
16,063,732 |
(6) |
|||||
Cultivation |
Massachusetts |
Columbia Care |
38,890 |
13,826,255 |
||||||
Cultivation |
Illinois |
Columbia Care |
32,802 |
11,360,605 |
||||||
Cultivation |
Pennsylvania |
Acreage |
30,625 |
10,160,872 |
||||||
Cultivation |
Massachusetts |
Acreage |
38,380 |
9,790,499 |
||||||
Cultivation |
Arizona |
Mint |
130,757 |
5,527,099 |
(7)(8) |
|||||
Dispensary |
California |
Columbia Care |
2,470 |
3,773,941 |
||||||
Dispensary |
Ohio |
Curaleaf |
7,200 |
3,353,213 |
||||||
Dispensary |
Illinois |
Curaleaf |
5,040 |
3,361,956 |
||||||
Dispensary |
Connecticut |
Curaleaf |
11,181 |
2,932,432 |
||||||
Dispensary |
Pennsylvania |
Curaleaf |
3,500 |
2,227,066 |
||||||
Dispensary |
Massachusetts |
Columbia Care |
4,290 |
2,320,264 |
||||||
Dispensary |
North Dakota |
Curaleaf |
4,590 |
2,174,504 |
||||||
Dispensary |
Arkansas |
Curaleaf |
7,592 |
2,157,438 |
||||||
Dispensary |
Massachusetts |
PharmaCann |
11,116 |
2,087,116 |
||||||
Dispensary |
Pennsylvania |
Curaleaf |
1,968 |
1,917,403 |
||||||
Cultivation |
Massachusetts |
Mint |
39,600 |
1,600,000 |
(9) |
|||||
Dispensary |
Illinois |
Curaleaf |
6,100 |
1,733,729 |
||||||
Dispensary |
Pennsylvania |
PharmaCann |
3,481 |
1,314,035 |
||||||
Dispensary |
Illinois |
Columbia Care |
4,736 |
1,215,421 |
||||||
Dispensary |
Illinois |
Curaleaf |
4,200 |
1,024,162 |
||||||
Dispensary |
Connecticut |
Acreage |
2,872 |
928,251 |
||||||
Dispensary |
Massachusetts |
PharmaCann |
3,850 |
820,819 |
(10) |
|||||
Dispensary |
Illinois |
Curaleaf |
1,851 |
594,680 |
||||||
Total |
1,371,243 |
$ |
288,080,348 |
(1) |
Lease is with a subsidiary of this entity, for which this entity or an affiliate is a guarantor. |
(2) |
Includes estimated rentable square feet at completion of construction. |
(3) |
Includes the purchase price (and transaction costs that have been capitalized into the purchase price) and tenant reimbursement commitments funded, if any, as of December 31, 2021. Excludes tenant reimbursement commitments not funded as of December 31, 2021. See footnotes below. |
(4) |
Includes 88,200 OP Units issued in connection with the purchase of the property. |
(5) |
Excludes $7,046,612 of tenant reimbursement commitments not funded as of December 31, 2021. The tenant is currently paying rent on this unfunded commitment. |
(6) |
Excludes $5,026,934 of tenant reimbursement commitments not funded as of December 31, 2021. |
(7) |
Property is currently in development and we expect will receive final licensing upon occupancy. |
(8) |
Excludes $8,967,902 of tenant reimbursement commitments not funded as of December 31, 2021. |
(9) |
Excludes $3,000,000 of tenant reimbursement commitments not funded as of December 31, 2021. |
(10) |
This property was sold on March 21, 2022. |
Percentage Leased and Base Rent
The following table sets forth the percentage leased and annualized base rent per leased square foot for our portfolio as of the dates indicated below.
City, State |
Tenant |
Year End |
% Leased |
Annualized Base Rent per Leased Square Foot(1) |
||||||
Uncasville, CT |
Acreage |
2019 |
100.0% |
$ |
35.46 | |||||
Uncasville, CT |
Acreage |
2020 |
100.0 |
36.52 |
||||||
Uncasville, CT |
Acreage |
2021 |
100.0 |
38.47 |
||||||
Sterling, MA |
Acreage |
2019 |
100.0 |
33.15 |
||||||
Sterling, MA |
Acreage |
2020 |
100.0 |
34.15 |
||||||
Sterling, MA |
Acreage |
2021 |
100.0 |
35.97 |
||||||
Sinking Springs, PA |
Acreage |
2019 |
100.0 |
43.12 |
||||||
Sinking Springs, PA |
Acreage |
2020 |
100.0 |
44.41 |
||||||
Sinking Springs, PA |
Acreage |
2021 |
100.0 |
46.78 |
||||||
Aurora, IL |
Columbia Care |
2019 |
100.0 |
28.95 |
(2) | |||||
Aurora, IL |
Columbia Care |
2020 |
100.0 |
40.90 |
||||||
Aurora, IL |
Columbia Care |
2021 |
100.0 |
41.92 |
||||||
Chicago, IL |
Columbia Care |
2019 |
100.0 |
24.05 |
(2) | |||||
Chicago, IL |
Columbia Care |
2020 |
100.0 |
24.05 |
||||||
Chicago, IL |
Columbia Care |
2021 |
100.0 |
24.66 |
||||||
Greenfield, MA |
Columbia Care |
2019 |
100.0 |
50.89 |
(2) | |||||
Greenfield, MA |
Columbia Care |
2020 |
100.0 |
50.89 |
||||||
Greenfield, MA |
Columbia Care |
2021 |
100.0 |
52.16 |
||||||
Lowell, MA |
Columbia Care |
2019 |
100.0 |
26.73 |
(2) | |||||
Lowell, MA |
Columbia Care |
2020 |
100.0 |
35.86 |
||||||
Lowell, MA |
Columbia Care |
2021 |
100.0 |
44.25 |
||||||
San Diego, CA |
Columbia Care |
2019 |
100.0 |
187.34 |
(2) | |||||
San Diego, CA |
Columbia Care |
2020 |
100.0 |
187.34 |
||||||
San Diego, CA |
Columbia Care |
2021 |
100.0 |
192.02 |
||||||
Lincoln, IL |
Cresco |
2019 |
100.0 |
21.71 |
(2) | |||||
Lincoln, IL |
Cresco |
2020 |
100.0 |
27.11 |
||||||
Lincoln, IL |
Cresco |
2021 |
100.0 |
27.79 |
||||||
Chicago, IL |
Curaleaf |
2021 |
100.0 |
65.83 |
||||||
Mt. Dora, FL |
Curaleaf |
2020 |
100.0 |
18.84 |
||||||
Mt. Dora, FL |
Curaleaf |
2021 |
100.0 |
18.84 |
||||||
Groton, CT |
Curaleaf |
2020 |
100.0 |
26.11 |
||||||
Groton, CT |
Curaleaf |
2021 |
100.0 |
26.76 |
||||||
King of Prussia, PA |
Curaleaf |
2020 |
100.0 |
93.75 |
||||||
King of Prussia, PA |
Curaleaf |
2021 |
100.0 |
96.09 |
||||||
Litchfield, IL |
Curaleaf |
2020 |
100.0 |
30.75 |
||||||
Litchfield, IL |
Curaleaf |
2021 |
100.0 |
31.52 |
||||||
Little Rock, AR |
Curaleaf |
2020 |
100.0 |
27.24 |
||||||
Little Rock, AR |
Curaleaf |
2021 |
100.0 |
27.92 |
||||||
Mokena, IL |
Curaleaf |
2020 |
100.0 |
24.16 |
||||||
Mokena, IL |
Curaleaf |
2021 |
100.0 |
24.76 |
||||||
Morris, IL |
Curaleaf |
2020 |
100.0 |
25.56 |
||||||
Morris, IL |
Curaleaf |
2021 |
100.0 |
27.71 |
||||||
Newark, Ohio |
Curaleaf |
2020 |
100.0 |
46.89 |
||||||
Newark, Ohio |
Curaleaf |
2021 |
100.0 |
48.06 |
||||||
Morton, PA |
Curaleaf |
2020 |
100.0 |
63.52 |
||||||
Morton, PA |
Curaleaf |
2021 |
100.0 |
65.10 |
||||||
Minot, ND |
Curaleaf |
2021 |
100.0 |
46.13 |
||||||
Franklin, MA |
PharmaCann |
2020 |
100.0 |
21.94 |
(3) | |||||
Franklin, MA |
PharmaCann |
2021 |
100.0 |
47.00 |
||||||
Shamokin, PA |
PharmaCann |
2020 |
100.0 |
43.52 |
||||||
Shamokin, PA |
PharmaCann |
2021 |
100.0 |
44.72 |
||||||
Shrewsbury, MA |
PharmaCann |
2020 |
100.0 |
19.42 |
Shrewsbury, MA |
PharmaCann |
2021 |
100.0 |
19.96 |
|||||
Mckeesport, PA |
Trulieve |
2019 |
100.0 |
31.84 |
|||||
Mckeesport, PA |
Trulieve |
2020 |
100.0 |
23.76 |
(4) | ||||
Mckeesport, PA |
Trulieve |
2021 |
100.0 |
36.47 |
(4)(5) | ||||
Palmer, MA |
Mint |
2021 |
100.0 |
5.31 |
(6) | ||||
Phoenix, AZ |
Mint |
2021 |
100.0 |
5.56 |
(6) | ||||
Fitchburg, MA |
Revolutionary Clinics |
2021 |
100.0 |
34.56 |
|||||
Chaffee, MO |
Organic Remedies |
2021 |
100.0 |
22.64 |
(7) |
(1) |
Annualized base rent per leased square foot is calculated by dividing (i) December annualized base rent by (ii) net rentable square feet. |
(2) |
Property was purchased in December 2019. December 2019 rent is pro-rated on an annualized basis. |
(3) |
Property was a build-to-suit and was not placed in service. Rent per square foot was based on anticipated building square footage upon completion. This property was sold on March 21, 2022. |
(4) |
Property is under construction. Rent per square foot is based on square footage placed in service as of December of each year. |
(5) |
As of December 31, 2021, this property is currently paying rent on approximately $7.0 million of unfunded capital. |
(6) |
Property is under construction. Rent per square foot is based on square footage upon completion of construction. |
(7) |
Property was purchased in December 2021. December 2021 rent was pro-rated on an annualized basis. |
Lease Expirations
The following table sets forth a summary of the lease expirations for leases in place as of December 31, 2021 for each of the ten full calendar years beginning January 1, 2021. The information set forth in the table assumes that tenants exercise no renewal options.
Year of Lease Expiration |
Number of |
Square |
% of |
Annualized |
% of |
Annualized |
||||||||||||||||||
2021 |
— | — | — | — | — | $ | — | |||||||||||||||||
2022 |
— | — | — | — | — | — | ||||||||||||||||||
2023 |
— | — | — | — | — | — | ||||||||||||||||||
2024 |
— | — | — | — | — | — | ||||||||||||||||||
2025 |
— | — | — | — | — | — | ||||||||||||||||||
2026 |
— | — | — | — | — | — | ||||||||||||||||||
2027 |
— | — | — | — | — | — | ||||||||||||||||||
2028 |
— | — | — | — | — | — | ||||||||||||||||||
2029 |
3 | 11,496 | 0.84 |
% |
814,848 | 2.27 |
% |
70.88 | ||||||||||||||||
2030 |
— | — | — | — | — | — | ||||||||||||||||||
2031 |
3 | 18,447 | 1.34 | 558,453 | 1.55 |
% |
30.27 | |||||||||||||||||
Thereafter |
22 | 1,341,300 | 97.82 | 34,602,761 | 96.18 |
% |
25.80 | |||||||||||||||||
Total/Weighted Average(3) |
28 | 1,371,243 | 100.0 |
% |
$ | 35,976,062 | 100.0 |
% |
$ | 26.24 |
(1) |
Annualized base rent is calculated by multiplying (i) rental payments (defined as cash rents without regard to rental abatements) for the month ended December 31, 2021, by (ii) 12. |
(2) |
Annualized base rent per leased square foot is calculated by dividing (i) annualized base rent (without regard to rental abatements) by (ii) net rentable square feet. |
(3) |
Does not include a Mortgage loan collateralized by a cultivation and processing facility. The loan is structured to convert to a twenty-year sale leaseback, unless a specific provision in the loan agreement is satisfied prior to July 29, 2022. |
Geographical Diversification
Geographic diversification is an important component of any real estate portfolio, including ours. Exposure to different states and municipalities mitigates the risk of adverse impacts on our portfolio from economic, environmental, regulatory or demographic changes. Our properties are located in Arizona, Arkansas, California, Connecticut, Florida, Illinois, Massachusetts, Missouri, North Dakota, Ohio and Pennsylvania. These states represent different phases of cannabis market structure and development, as well as diverse regional economic drivers. The following table sets forth certain state-by-state information regarding our property portfolio as of December 31, 2021:
State |
Number of Properties |
Capital Investment(1) |
Rentable Square Feet(2) |
Percentage of Annualized Rental Revenue(3) |
||||||||||||
Massachusetts |
7 | $ | 73,305,139 | (4) | 281,978 | 25.0 | % | |||||||||
Illinois |
7 | 70,022,313 | 277,184 | 23.2 | % | |||||||||||
Florida |
1 | 55,000,000 | 379,435 | 19.9 | % | |||||||||||
Pennsylvania |
5 | 52,842,286 | (5) | 184,176 | 20.2 | %(6) | ||||||||||
Missouri |
1 | 16,063,732 | (7) | 81,808 | 5.1 | % | ||||||||||
California |
1 | 3,773,941 | 2,470 | 1.3 | % | |||||||||||
Connecticut |
2 | 3,860,683 | 14,053 | 1.1 | % | |||||||||||
Ohio |
1 | 3,353,213 | 7,200 | 1.0 | % | |||||||||||
Arizona |
1 | 5,527,099 | (8) | 130,757 | 2.0 | % | ||||||||||
North Dakota |
1 | 2,174,504 | 4,590 | 0.6 | % | |||||||||||
Arkansas |
1 | 2,157,438 | 7,592 | 0.6 | % | |||||||||||
Total |
28 | $ | 288,080,348 | 1,371,243 | 100 | % |
(1) |
Includes the purchase price (and in some cases, transaction costs that have been capitalized into the purchase price) and tenant reimbursement commitments funded, if any, as of December 31, 2021. Excludes tenant reimbursement commitments not funded as of December 31, 2021. See footnotes below. |
(2) |
Includes estimated rentable square feet at completion of construction. |
(3) |
Annualized rental revenue represents the annualized monthly base rent of executed leases as of December 31, 2021. |
(4) |
Includes $40,070,000 in cash and 88,200 OP Units issued in connection with the purchase of a property. Excludes $3,000,000 of tenant reimbursement commitments not funded as of December 31, 2021. |
(5) |
Excludes $7,046,612 of tenant reimbursement commitments not funded as of December 31, 2021. |
(6) |
Includes a property that is currently paying rent on approximately $7.0 million of unfunded capital. |
(7) |
Excludes $5,026,934 of tenant reimbursement commitments not funded as of December 31, 2021. |
(8) |
Excludes $8,967,902 of tenant reimbursement commitments not funded as of December 31, 2021 |
Our Tenants
We target companies that have successfully navigated complex state regulation and fulfilled rigorous state-licensing requirements. We believe we have been diligent in partnering with a diverse tenant base of experienced operators in limited licensed jurisdictions that have strong management teams. Our tenants have generally demonstrated access to capital, which is critical to continuing to execute on their respective business plans.
As of December 31, 2021, all of our revenues were derived from nine tenants. The following table sets forth the tenants in our property portfolio as of December 31, 2021. All of our leases include a parent or other affiliate guarantee by what we consider a well-capitalized guarantor.
Tenant(1) |
Capital Investment(2) |
Number of Leases |
Percentage of Annualized Rental Revenue(3) |
|||||||||
Curaleaf |
$ | 76,476,584 | 11 | 25.8 |
% |
|||||||
Cresco Labs |
50,731,761 | 1 | 17.2 |
% |
||||||||
Trulieve |
37,222,909 | (4) | 1 | 14.7 |
% |
|||||||
Revolutionary Clinics |
42,860,186 | (5) | 1 | 14.0 |
% |
|||||||
Columbia Care |
32,496,486 | 5 | 10.9 |
% |
||||||||
Acreage |
20,879,622 | 3 | 8.1 |
% |
||||||||
Organic Remedies |
16,063,732 | (6) | 1 | 5.1 |
% |
|||||||
Mint |
7,127,099 | (7) | 2 | 2.6 |
% |
|||||||
PharmaCann |
4,221,969 | 3 | 1.6 |
% |
||||||||
Total |
$ | 288,080,348 | 28 | 100.0 |
% |
(1) |
Lease is with a subsidiary of this entity, for which this entity or an affiliate is a guarantor. |
(2) |
Includes the purchase price (and transaction costs that have been capitalized into the purchase price) and tenant reimbursement commitments funded, if any, as of December 31, 2021. Excludes tenant reimbursement commitments not funded as of December 31, 2021. See footnotes below. |
(3) |
Annualized Rental Revenue represents the annualized monthly base rent of executed leases and annualized interest income on mortgage loan as of December 31, 2021. |
(4) |
Excludes $7,046,612 of tenant reimbursement commitments not funded as of December 31, 2021. The tenant is currently paying rent on this unfunded commitment. |
(5) |
Includes 88,200 OP Units issued in connection with the purchase of a property. |
(6) |
Excludes $5,026,934 of tenant reimbursement commitments not funded as of December 31, 2021. |
(7) |
Excludes $11,967,902 of tenant reimbursement commitments not funded as of December 31, 2021. |
The following sets forth additional information related to certain of our tenants as of December 31, 2021:
Curaleaf
We own ten dispensaries and one cultivation facility that are leased to subsidiaries of Curaleaf, which is, or an affiliate is, the corporate guarantor. Curaleaf is publicly-traded on the CSE and OTC markets under the symbols CURA and CURLF, respectively. Curaleaf’s filings, including their financial information, are electronically available at www.sec.gov and from the Canadian System for Electronic Document Analysis and Retrieval (“SEDAR”) at www.sedar.com, the Canadian equivalent of the SEC electronic document gathering and retrieval system.
Cresco Labs
We own one cultivation facility that is leased to a subsidiary of Cresco Labs, which is the corporate guarantor. Cresco Labs is publicly-traded on the CSE and the OTC markets under the symbols CL and CRLBF, respectively. Cresco Lab’s filings, including their financial information, are electronically available at www.sec.gov and from the Canadian SEDAR at www.sedar.com, the Canadian equivalent of the SEC electronic document gathering and retrieval system.
Our Borrower
While our focus is primarily on sale leaseback transactions, we may, from time to time, incorporate loan elements into a transaction to be strategic with our tenants/borrowers and differentiate ourselves from competitors. We anticipate that any loans we provide will be part of a transaction with the objective to acquire the subject property and secure a long-term lease consistent with our sale leaseback program.
At December 31, 2021, we had one loan outstanding that was structured to convert to a twenty-year sale leaseback, unless a specific provision in the loan agreement is satisfied prior to July 29, 2022. Interest for the loan period was prepaid at closing and a repayment premium would be due if the loan is repaid. Interest payments from this borrower during the loan period are classified as “Interest Income from Mortgage Loan” in our Consolidated Statement of Operations included in our Annual Report on Form 10-K incorporated herein by reference. Upon conversion to a sale leaseback transaction, the lease payments would be considered rental revenue, consistent with our other tenant relationships.
As of December 31, 2021, all of our Interest Income from Mortgage Loan was derived from one borrower. The following table sets forth the borrower in our portfolio as of December 31, 2021. Our loan includes a parent or other affiliate guarantee by what we consider a well-capitalized guarantor.
Borrower |
Capital Investment |
Number of Loans |
Percentage of Annualized Interest Income on Mortgage Loan |
|||||||||
Hero Diversified Associates Inc. |
$ |
30,000,000 |
1 |
100.0 |
% |
|||||||
Total |
$ |
30,000,000 |
1 |
100.0 |
% |
Additional Information with Respect to Certain of Our Properties
Florida Industrial Property
This 379,435 square foot industrial property is the largest property in our portfolio by square footage and rental revenue. As of December 31, 2021 this property was 100% leased, with annualized base rent of $7.2 million. The building was constructed in various stages from 2001 to 2020, and is 100% leased to a subsidiary of Curaleaf through July 31, 2035 with two five-year renewal options. Curaleaf is publicly-traded on the CSE and OTC markets and, as of December 31, 2021, had an equity market capitalization of $6.1 billion. Curaleaf is one of the largest vertically integrated multistate operators, and as of December 31, 2021 reportedly operated 25 cultivation facilities and 117 dispensaries across 23 states. This lease includes a parent or other affiliate guarantee by what we consider a well-capitalized guarantor.
Percent Leased and Revenue Per Rentable Square Foot
As of December 31, 2021 and 2020, the Florida industrial property was 100% leased, with revenue per rentable square foot of $18.84 and $18.84, respectively.
Tax Basis and Depreciation
As of December 31, 2021, our federal tax basis in this property is estimated to be approximately $55.0 million. The life claimed for this property is 40 years. Depreciation is calculated on a straight-line basis at a rate of 2.5% per year.
Illinois Industrial Property
This 222,455 square foot industrial property is the second largest property in our portfolio by square footage and rental revenue. As of December 31, 2021 this property was 100% leased, with annualized base rent of $6.2 million. Construction of the building was completed in 2020 and is 100% leased to a subsidiary of Cresco Labs through December 31, 2034, with two five-year renewal options. Cresco Labs is publicly-traded on the CSE and the OTC markets, and, as of December 31, 2021, had an equity market capitalization of $1.9 billion. As of December 31, 2021, Cresco Labs reportedly operated 15 cultivation facilities and 46 dispensaries across nine states. This lease includes a parent or other affiliate guarantee by what we consider a well-capitalized guarantor.
Percent Leased and Revenue Per Rentable Square Foot
As of December 31, 2021 and 2020, the Illinois industrial property was 100% leased, with revenue per rentable square foot of $27.79 and $21.71, respectively.
Tax Basis and Depreciation
As of December 31, 2021, our federal tax basis in this property is estimated to be approximately $50.7 million. The life claimed for this property is 40 years for the building and 15 years for improvements. Depreciation is calculated on a straight-line basis at a rate of 2.5% and 6.67% per year.
Massachusetts Industrial Property
This 145,852 square foot industrial property is the third largest in our portfolio by square footage and rental revenue. As of December 31, 2021 this property was 100% leased, with annualized base rent of $5.0 million. The building was constructed in 1885, improved in various stages from 2016 to 2020, and is 100% leased to a subsidiary of Revolutionary Clinics through June 30, 2036 with three five-year renewal options. Revolutionary Clinics is a privately-held, vertically integrated operator in Massachusetts. As of December 31, 2021, Revolutionary Clinics reportedly owned one cultivation and processing facility and three operational dispensaries in Massachusetts. This lease includes a parent or other affiliate guarantee by what we consider a well-capitalized guarantor.
Percent Leased and Revenue per Rentable Square Foot
As of December 31, 2021, the Massachusetts industrial property was 100% owned, leased or occupied by Revolutionary Clinics and affiliates of Revolutionary Clinics, with revenue per rentable square foot of $34.56.
Tax Basis and Depreciation
As of December 31, 2021, our federal tax basis in this property is estimated to be approximately $42.9 million. The life claimed for this property is 40 years. Depreciation is calculated on a straight-line basis at a rate of 2.5% per year.
Pennsylvania Industrial Property
This 144,602 square foot industrial property is the fourth largest tenant in our portfolio by square footage and rental revenue. As of December 31, 2021this property was 100% leased, with annualized base rent of $5.3 million. The building was constructed in various phases between 2018 and 2021 and is 100% leased to a subsidiary of Trulieve through October 31, 2034 with two five-year renewal options. Trulieve is publicly-traded on the CSE and the OTC markets, and as of December 31, 2021, had an equity market capitalization of $4.8 billion. As of December 31, 2021, Trulieve reportedly operated ten cultivation facilities and 159 dispensaries across 11 states. This lease includes a parent or other affiliate guarantee by what we consider a well-capitalized guarantor.
Percent Leased and Revenue Per Rentable Square Foot
As of December 31, 2021 and 2020 the Pennsylvania industrial property was 100% leased, with rentable square footage of 102,543 and 42,059 and 102,543 and 33,422 square feet, respectively and revenue per rentable square foot of $36.47 and $23.76, respectively.
Tax Basis and Depreciation
As of December 31, 2021, our federal tax basis in this property is estimated to be approximately $28.5 million. The life claimed for this property is 40 years for the building and 20 years for improvements. Depreciation is calculated on a straight-line basis at a rate of 2.5% per year and 5.0% per year.
Rights of First Offer
Acreage
Under a First Offer Agreement dated May 9, 2019, we have a right of first offer to acquire cannabis related properties valued over $1,000,000 identified for acquisition by Acreage and to provide funding for any build-to-suit construction, expansion, or material alterations of the improvements thereon. This agreement expires May 31, 2022 and will be automatically extended for consecutive one-year terms unless we or Acreage elect to terminate the agreement by giving written notice at least 30 days prior to the expiration date.
The right of first offer generally requires Acreage to notify us in writing of the real estate acquisition opportunity. We will have five days after receipt of the notice to give written notice to Acreage that we desire to enter into negotiations with regard to the acquisition opportunity. We will then have 90 days to negotiate with the owner of the property and enter into a term sheet or letter of intent. If we are unable to reach an agreement within 90 days, Acreage will be free to negotiate an agreement with the property owner in connection with the acquisition opportunity.
Columbia Care
Pursuant to our leases with Columbia Care and its affiliates, we have been granted a right of first offer with respect to certain properties owned by Columbia Care and its affiliates. The right of first offer generally requires Columbia Care and its affiliates, prior to agreeing to sell any property they own located in the U.S., to offer, by written notice, to sell the property to us. We will have 15 days after receipt of the written offer notice to give written notice to Columbia Care as to whether we desire to purchase the property, such written notice setting forth the purchase price and terms and conditions upon which we are willing to purchase the property and (if applicable) lease the property back to Columbia Care and its affiliates. We will then have 45 days to negotiate the principal terms of the transaction. If we are able to come to an agreement on the principal terms of the transaction, we will then have 60 days to negotiate the definitive transaction documents. If we are unable to come to an agreement during either the 45- or 60-day period, then Columbia Care and its affiliates may solicit, market and/or sell the property, provided that the sale closes within 270 days after the date on which Columbia Care was able to market the property pursuant to the terms of this right of first offer. If after the expiration of such 270-day period the sale of the property has not closed, then our right of first offer shall be reinstated and such right of first offer shall continue until the expiration of the right of first offer on December 23, 2022.
Until December 23, 2022, we have granted our tenants that are affiliates of Columbia Care a right of first offer. Pursuant to the tenant right of first offer, we must present the tenant with written notice of our intent to sell the property at which they are a tenant. The tenant’s right of first offer is subject to the same terms as those described in the immediately preceding paragraph.
Property Characteristics
Cultivation and Processing Properties. Cultivation and processing properties are required to be operated by businesses that have completed a rigorous state licensing process. Because interstate commerce involving cannabis is prohibited and the number of licenses granted in a particular state is typically restricted, there are substantial barriers to entry for competing facilities. We believe owning these mission critical industrial facilities with long- term leases will generate highly attractive current yields and above market returns for industrial facilities. We expect to target cannabis cultivation and production facilities that generally are improved with state-of-the-art infrastructure and equipment to facilitate optimal growing conditions, including enhanced HVAC systems for climate and humidity control, high-capacity plumbing systems, specialized lighting systems, and sophisticated building management, cultivation monitoring and security systems.
Dispensaries. We believe that dispensaries provide enhanced geographical and supply chain diversification to our portfolio. Contrary to the decline of general brick and mortar retail stores driven by the growing shift to online activity, we expect distribution of cannabis products to primarily be through licensed locations, similar to alcohol and pharmaceutical products. Dispensary locations are difficult to locate because they not only need to be in highly desirable locations, but they also need to satisfy local zoning requirements and not meet local objection. Each city and state have their own requirements and specifications for an entitlement process, but generally these conditional-use permitting processes create barriers to entry for competing locations due to sensitive use restrictions and avoidance of clustering of dispensaries. The dispensaries we intend to acquire will be those that have already been qualified and licensed for retail cannabis sales. This gives strategic defensibility to the business and the real estate. Additionally, we expect that dispensaries will be an important component of the industry’s expansion as operators see education and customer interaction as key to growing the customer base and increasing transaction volume.
Our Target Markets
As of December 31, 2021, we owned properties in the following 11 states: Arizona, Arkansas, California, Connecticut, Florida, Illinois, Massachusetts, Missouri, North Dakota, Ohio and Pennsylvania. We focus on states and municipalities where licensed cannabis properties are in high demand and connected to the operating license. This is a critical component of our underwriting methodology due to the fact that approaches to regulation vary significantly by state and municipality. For example, as of December 31, 2021, Oregon had issued over 1,200 cultivator and over 300 processor licenses, while Pennsylvania had only issued 25 grower/processor licenses. We believe that states with licensing limitations and more rigorous licensing requirements present more attractive investment opportunities because the operators are likely to be better capitalized and the properties more valuable for remarketing, should the need arise. Additionally, in states that have a more relaxed regulatory environment, strict municipal laws or regulations may present similar locally attractive opportunities.
Transporting cannabis across state lines remains illegal. As a result, each state has its own supply and demand dynamics that are largely driven by how the state devised its cannabis laws and regulations. For this reason, we prioritize states that present dynamics constructive to the credit risk of the tenant. We focus on population, licensing limits, approved therapies and number of licenses, among other factors. Limited-license jurisdictions typically have more restrictions resulting in fewer licensees and creating a natural barrier to entry. This leads to a more favorable operating environment for our lessees, which we believe reduces their credit risk relative to operators in states with unlimited licenses (e.g., Oregon).
We believe that much has been learned by cannabis industry participants and regulators over the past twenty years about creating a regulatory framework that strikes the right balance of healthy competition, economics, risk and control. We believe that many of the states creating new cannabis markets have observed the shortcomings of unlimited license structures, better understand the operating environment and are developing regulations to better manage the cannabis industry. Since each state takes a different approach to regulation, and in some instances, there are municipal laws layered on top of state laws, our analysis of each opportunity requires significant understanding of the state and local operating environment.
Our Financing Strategy
We intend to meet our long-term liquidity needs through cash flow from operations, the issuance of equity and debt securities, including common stock, preferred stock and long-term notes, and asset level financing from financial institutions. Where possible, we also may issue OP Units to acquire properties from existing owners seeking a tax-deferred transaction. We expect to issue equity and debt securities at times when we believe that our stock price or cost of debt capital, respectively, is at a level that allows for the reinvestment of offering proceeds in accretive property acquisitions. We may also issue common stock to permanently finance properties that were previously financed by debt securities. However, we cannot assure you that we will have access to the capital markets at times and on terms that are acceptable to us. Our investment guidelines will initially provide that our aggregate borrowings (secured and unsecured) will not exceed 50% of the cost of our tangible assets at the time of any new borrowing, subject to our board of directors’ discretion.
Competition
The current market for properties that meet our investment objectives is limited. In addition, we believe finding properties that are appropriate for the specific use of allowing medical-use and adult-use cannabis operators may be limited as more competitors enter the market, and as regulated cannabis operators obtain greater access to alternative financing sources, including but not limited to equity and debt financing sources. For example according to analysis by Viridian Capital Advisors, North American cannabis companies either closed or announced more than $12.8 billion in capital in 2021 through December 31.
We face significant competition from a diverse mix of market participants, including but not limited to, other companies with similar business models, independent investors, hedge funds and other real estate investors, hard money lenders, and cannabis operators themselves, all of whom may compete with us in our efforts to acquire real estate zoned for regulated cannabis facilities. In some instances, we will be competing to acquire real estate with persons who have no interest in the cannabis industry but have identified value in a real estate location that we may be interested in acquiring. In particular, we face competition from established companies in this industry, including Innovative Industrial Properties, Inc. (the largest publicly-traded cannabis-focused REIT listed in the U.S.) as well as local real estate investors, particularly for smaller retail assets. Recently, we have also seen competition from emerging debt funds. We believe that most cannabis cultivation facilities typically require capital in excess of $20.0 million, which could provide some barriers for smaller potential competitors.
These competitors may prevent us from acquiring desirable properties or may cause an increase in the price we must pay for properties. Our competitors may have greater financial and operational resources than we do and may be willing to pay more for certain assets or may be willing to accept more risk than we believe can be prudently managed. In particular, larger companies may enjoy significant competitive advantages that result from, among other things, a lower cost of capital and enhanced operating efficiencies. Our competitors may also adopt transaction structures similar to ours, which would decrease our competitive advantage in offering flexible transaction terms.
In addition, due to a number of factors, including but not limited to potential greater clarity of the laws and regulations governing regulated cannabis by state and federal governments, the number of entities and the amount of funds competing for suitable investment properties may increase substantially, resulting in increased demand and increased prices paid for these properties. Furthermore, changes in federal regulations pertaining to cannabis could also lead to increased access to U.S. capital markets for our competitors and for regulated cannabis operators (including but not limited to access to Nasdaq and/or the New York Stock Exchange). We compete for the acquisition of properties primarily based on their purchase price and lease terms. If we pay higher prices for properties or offer lease terms that are less attractive for us, our profitability may decrease, and you may experience a lower return on our common stock. Increased competition for properties may also preclude us from acquiring those properties that would generate attractive returns to us.
Risk Management
We are focused on creating a diversified portfolio based on tenants, geographical concentration and license concentration (i.e., dispensary vs. cultivation). In completing rigorous asset-level and tenant due diligence, we draw upon a pool of highly experienced professionals within our management team, investment committee and third parties to underwrite, evaluate and diligence investment opportunities. We obtain third-party property condition reports, environmental reviews and other customary diligence items.
Our underwriting criteria primarily focuses on:
Tenant Character
This criterion focuses on the tenant’s reputation (as perceived by us) and track record of paying debts. Our evaluation goes beyond these criteria to understand the tenant’s ability to manage in a highly regulated and complex industry and meet a rigorous set of state licensing requirements. We will continue to target operators that have experience in the industry and have built a positive reputation.
Financial Stability and Capacity
We evaluate a tenant and financial guarantor’s financial stability and capacity to meet all their respective obligations, including rent, insurance and taxes by evaluating their respective balance sheet, cash flow and net income history and projections. Reviewing these financial statements and projections, inclusive of key assumptions, provides a window into a tenant and financial guarantor’s ability to meet all financial obligations. In instances of tenants pursuing growth strategies where profitability is delayed, we evaluate a tenant’s liquidity and capital resources to withstand losses and achieve cash flow necessary to fulfill its obligations.
Ongoing monitoring of tenant credit quality is an important element of our risk management activity. We review, on a quarterly basis, tenant and guarantor financial statements, when available, and perform ongoing monitoring of tenant and guarantor announcements pertaining to their business operations and financial performance. We perform certain financial analysis on tenant and guarantor financial statements, when available, to understand the tenant’s ability to meet financial obligations when due, as well as the revenue and cash flows derived from the properties we own. We also benchmark financial performance at the properties we own to other cannabis properties, to the extent such information is available.
Access to Capital
Capital and access to capital are critical to the success of high-growth businesses. We assess a tenant’s ability to withstand varying market conditions, adjust to an evolving market landscape, invest in capabilities necessary to remain competitive and fund operating losses, if applicable.
Real Estate
We seek to ensure that our facilities are considered mission-critical to our tenants, which positions us high in their cash flow priorities. We focus on states and municipalities where licensed cannabis properties are in high demand and connected to the operating license. Furthermore, we focus on potential non-cannabis alternative uses for properties we own, as well as standard real estate metrics such as the cost-basis, price per square foot and replacement cost-basis to minimize risk from shifts in industry dynamics or regulatory developments. We also focus on the ability of a facility to produce expected revenue based on cultivation capacity, harvest cycles and pricing in each unique market and then evaluate each transaction using rent as a percentage of revenue, in order to underwrite a property’s ability to generate free cash flow for the tenant.
Other Conditions
This category encompasses industry conditions, tenant circumstances and transaction terms. We focus on segments of the legal cannabis industry that present long-term sustainable trends supporting the success of our tenant and security of our contractual cash flow. Additionally, we evaluate the tenant’s use for the property relative to its other activities, as well as its positioning in the marketplace. We may also negotiate the terms of our leases to provide additional protection for the company when we deem necessary.
Pursuant to our triple-net leases, tenants are responsible for the ongoing expenses of a property (including taxes and insurance), in addition to the tenants’ rent obligations. We monitor all lease provisions to ensure strict compliance, including any tenant improvement funds that may be distributed. Additionally, our leases typically require tenant financials to be delivered on a regular basis and documentation to demonstrate compliance with all state laws, rules and cannabis regulations. When distributing tenant improvement funds, we engage a third-party to review each reimbursement request for accuracy, completion of work and proof of payment prior to disbursement.
Investment Guidelines
Our board of directors will adopt the following initial investment guidelines:
• |
No investment will be made that would cause us to fail to qualify as a REIT. |
• |
No investment will be made that would cause us to register as an investment company under the 1940 Act. |
• |
The proceeds of any future offering by us or our operating partnership, and cash from operations and capital transactions may be invested in interest-bearing, short-term, investment-grade investments, subject to the requirements for maintaining our qualification as a REIT. |
• |
Our aggregate borrowings (secured and unsecured) will not exceed 50% of the cost of its tangible assets at the time of any new borrowing. |
The investment committee of our board of directors oversees our investment portfolio and compliance with our investment guidelines and policies. These investment guidelines may be changed or waived by our investment committee or board of directors without the approval of our stockholders.
The Merger
We were incorporated on April 9, 2019 originally under the name GreenAcreage Real Estate Corp. On March 17, 2021, we consummated a merger pursuant to which we combined our company with the Target, and renamed ourselves “NewLake Capital Partners, Inc.” Immediately prior to the Merger, our company owned a portfolio of five properties among five states. The Target was a Maryland corporation organized in April 2019 under the name New Lake Capital Partners, Inc. that, immediately prior to the Merger, owned a portfolio of 19 properties among eight states.
Upon completion of the Merger, we owned 24 properties across nine states, and became one of the largest REITs in the cannabis industry. We consummated the Merger and combined businesses with the Target to, among other things, benefit from increasing economies of scale as we continue to grow, and as part of our evolution toward entering the public markets. In connection with the Merger, we also entered into various arrangements and agreements with certain of our significant stockholders, including director nomination rights. See “Certain Relationships and Related Party Transactions—Investor Rights Agreement” in our 2022 Definitive Proxy Statement on Schedule 14A and incorporated by reference herein for more information about these director nomination rights.
Emerging Growth Company Status
We are an “emerging growth company,” as defined in the JOBS Act. We are eligible to take advantage of certain exemptions from various reporting requirements that are applicable to other public companies that are not “emerging growth companies.” These exemptions include not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements and exemptions from the requirements of holding a non-binding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved. If we continue to take advantage of any of these exemptions, we do not know if some investors will find shares of our common stock less attractive as a result. The result may be a less active trading market for shares of our common stock and the price of our common stock may be more volatile.
In addition, the JOBS Act provides that an emerging growth company can take advantage of the extended transition period provided in the Securities Act for complying with new or revised accounting standards. This means that an emerging growth company can delay the adoption of certain accounting standards until those standards would otherwise apply to private companies.
We will remain an emerging growth company until the earliest to occur of (i) the last day of the fiscal year during which our total annual revenue equals or exceeds $1.07 billion (subject to adjustment for inflation), (ii) the last day of the fiscal year following the fifth anniversary of our initial public offering, (iii) the date on which we have, during the previous three-year period, issued more than $1.0 billion in non-convertible debt or (iv) the date on which we are deemed to be a “large accelerated filer” under the Exchange Act.
Insurance
Our tenants are generally required to maintain liability and property insurance coverage for the properties they lease from us pursuant to triple-net leases. These leases generally require our tenants to name us (and any of our lenders that have a mortgage on the property leased by the tenant) as additional insureds on their liability policies and additional named insured and/or loss payee (or mortgagee, in the case of our lenders) on their property policies. We typically obtain title insurance policies when acquiring new properties, with the exception of our Sterling, MA property, which insure fee title to our real properties. Depending on the location of the property, losses of a catastrophic nature, such as those caused by earthquakes and floods, may be covered by insurance policies that are held by our tenant with limitations such as large deductibles or co-payments that a tenant may not be able to meet. In addition, losses of a catastrophic nature, such as those caused by wind, hail, hurricanes, terrorism or acts of war, may be uninsurable or not economically insurable. In the event there is damage to our properties that is not covered by insurance and such properties are subject to recourse indebtedness, we will continue to be liable for the indebtedness, even if these properties are irreparably damaged. Should an uninsured loss arise against us, we would be required to use our own funds to resolve the issue, including litigation costs. See “Risk Factors—Risks Related to Our Business —Liability for uninsured losses could materially and adversely affect our business (including our financial performance and condition)” in our Annual Report on Form 10-K incorporated herein by reference. In addition to being a named insured on our tenants’ liability policies, we separately maintain commercial general liability coverage.
Government Regulation and Environmental and Related Matters
Federal Laws Applicable to the Medical-use and Adult-use Cannabis Industry
Cannabis (with the exception of hemp containing no more than 0.3% THC by dry weight) is illegal under U.S. federal law. In those states in which the use of cannabis has been legalized, its use remains a violation of federal law pursuant to the CSA. The CSA classifies marijuana (cannabis) as a Schedule I controlled substance, and as such, both medical-use and adult-use cannabis are illegal under U.S. federal law. Moreover, on two separate occasions the U.S. Supreme Court ruled that the CSA trumps state law. Although internal policies and Congressional actions have placed certain limitations on the federal government’s ability to enforce federal cannabis laws against businesses legally operating under the medical marijuana laws of a given state, as discussed below, there exists the possibility that the federal government may enforce U.S. drug laws against companies operating in accordance with state cannabis laws, creating a climate of legal uncertainty regarding the production and sale of cannabis. Unless and until Congress amends the CSA with respect to cannabis (and the President approves such amendment), there is a risk that the federal law enforcement authorities responsible for enforcing the CSA, including the DOJ and the DEA, may enforce current federal law.
Under the Obama administration, the DOJ previously issued memoranda, including the so-called “Cole Memo” on August 29, 2013, providing internal guidance to federal prosecutors concerning enforcement of federal cannabis prohibitions under the CSA. This guidance essentially characterized use of federal law enforcement resources to prosecute those complying with state laws allowing the use, manufacture and distribution of cannabis as an inefficient use of such federal resources where states have enacted laws legalizing cannabis in some form and have also implemented strong and effective regulatory and enforcement systems to control the cultivation, processing, distribution, sale and possession of cannabis, conduct in compliance with those laws and regulations was not a priority for the DOJ. Instead, the Cole Memo directed U.S. Attorney’s Offices discretion not to investigate or prosecute state law compliant participants in the medical cannabis industry who did not implicate certain identified federal government priorities, including preventing interstate diversion or distribution of cannabis to minors.
On January 4, 2018, then-U.S. Attorney General Jeff Sessions issued a written memorandum rescinding the Cole Memo (the “Sessions Memo”). The Sessions Memo instructs federal prosecutors to enforce the laws enacted by Congress and to follow well-established principles that govern all federal prosecutors when deciding whether to pursue prosecutions related to cannabis activities. As a result, federal prosecutors could, and still can, use their prosecutorial discretion to decide to prosecute actors compliant with their state laws. The Sessions Memo states that “these principles require federal prosecutors deciding which cases to prosecute to weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.” The Sessions Memo went on to state that given the DOJ’s well-established general principles, “previous nationwide guidance specific to marijuana is unnecessary and is rescinded, effective immediately.” Although there have not been any identified prosecutions of state law compliant cannabis entities, there can be no assurance that the federal government will not enforce federal laws relating to cannabis in the future and it remains unclear what impact the Sessions Memo will have on the regulated cannabis industry, if any.
President Biden’s Attorney General, Merrick Garland, has not provided a clear policy directive for the U.S. as it pertains to state-legal cannabis related activities. It is not yet known whether the DOJ under President Biden and Attorney General Garland will re-adopt the Cole Memo or announce a substantive cannabis enforcement policy, and there can be no assurances that DOJ or other law enforcement authorities will not seek to vigorously enforce existing laws. During Attorney General Garland’s confirmation hearings in February 2021, he noted that non-violent, low-level cannabis enforcement is not an effective use of federal law enforcement resources, and he seemed generally supportive of states’ rights to legalize and regulate marijuana. He stopped short of confirming that the DOJ would reissue an updated version of the Cole Memo, however.
One legislative safeguard for the medical cannabis industry, appended to federal appropriations legislation, remains in place. Commonly referred to as the “Rohrabacher-Blumenauer Amendment,” (or the “Rohrabacher-Farr Amendment”) this so-called “rider” provision has been appended to the Consolidated Appropriations Acts since 2015. Under the terms of the Rohrabacher-Blumenauer rider, the federal government is prohibited from using congressionally appropriated funds to enforce federal cannabis laws against regulated medical cannabis actors operating in compliance with state and local law. On December 27, 2020, Congress passed an omnibus spending bill that again included the Rohrabacher-Blumenauer Amendment, extending its application until September 30, 2021. Congress did not pass the next spending bill before the September 30, 2021 deadline. On December 3, 2021, President Biden signed the Further Extending Government Funding Act which included the Rohrabacher-Blumenauer Amendment, extending its application through February 18, 2022, which was further extended through a stopgap appropriations bill until March 11, 2022. On March 11, 2022, President Biden signed the omnibus spending bill which included the Rohrabacher-Blumenauer Amendment, extending its application until September 30, 2022. There is no assurance that Congress will approve inclusion of a similar prohibition on DOJ spending in the appropriations bills for future years. In USA vs. McIntosh, the U.S. Circuit Court of Appeals for the Ninth Circuit held that this provision prohibits the DOJ from spending funds from relevant appropriations acts to prosecute individuals who engage in conduct permitted by state medical-use cannabis laws and who strictly comply with such laws. However, the Ninth Circuit’s opinion, which only applies in the states of Alaska, Arizona, California, Hawaii and Idaho, also held that persons who do not strictly comply with all state laws and regulations regarding the distribution, possession and cultivation of medical-use cannabis have engaged in conduct that is unauthorized, and in such instances the DOJ may prosecute those individuals.
Furthermore, while we target the acquisition of medical-use facilities in certain jurisdictions, our leases do not prohibit cannabis cultivation for adult-use that is permissible under the state and local laws where our facilities are located. Consequently, certain of our tenants currently (and additional tenants may in the future) cultivate, process and/or dispense adult-use cannabis as well as medical-use cannabis in our facilities, as permitted by state and local laws now or in the future, which may in turn subject the tenant, us and our properties to greater and/or different federal legal and other risks as compared to facilities where cannabis is cultivated exclusively for medical use, including not providing protection under the Congressional spending bill provision.
Federal prosecutors have significant discretion to investigate and prosecute suspected violations of federal law and no assurance can be given that the federal prosecutor in each judicial district where we purchase a property will not choose to strictly enforce the federal laws governing cannabis production, processing or distribution. Any change in the federal government’s enforcement posture with respect to state-licensed cultivation of medical-use and adult-use cannabis, including the enforcement postures of individual federal prosecutors in judicial districts where we purchase properties, would result in our inability to execute our business plan, and we would likely suffer significant losses with respect to our investment in cannabis facilities in the U.S., which would adversely affect the trading price of our securities. Furthermore, following any such change in the federal government’s enforcement position, we could be subject to criminal prosecution, which could impact our ability to operate and could lead to imprisonment and/or the imposition of penalties, fines, or forfeiture. See “Risk Factors – Risks Related to Regulation” in our Annual Report on Form 10-K incorporated herein by reference.
State Laws Applicable to the Medical-use and Adult-use Cannabis Industry
In most states that have legalized medical-use and adult-use cannabis in some form, the growing, processing and/or dispensing of cannabis generally requires that the operator obtain one or more licenses in accordance with applicable state requirements. In addition, many states regulate various aspects of the growing, processing and/or dispensing of medical-use and adult-use cannabis. State and local governments in some cases also impose rules and regulations on the manner of operating cannabis businesses. As a result, applicable state and local laws and regulations vary widely, including, but not limited to, regulations governing medical-use and/or adult-use cannabis programs (such as the type of cannabis products permitted under the program, qualifications and registration of health professionals that may recommend treatment with medical cannabis, and the types of medical conditions that qualify for medical cannabis), product testing, the level of enforcement by state and local authorities on non-licensed cannabis operators, state and local taxation of regulated cannabis products, local municipality bans on operations and operator licensing processes and renewals. As a result of these and other factors, if our tenants default under their leases, we may not be able to find new tenants that can successfully engage in the cultivation, processing or dispensing of medical-use or adult-use cannabis on the properties.
There is no guarantee that state laws legalizing and regulating the growing, processing, sale and use of cannabis will not be repealed, amended or overturned, or that local governmental authorities will not limit the applicability of state laws within their respective jurisdictions. Unless and until Congress amends or repeals the CSA with respect to medical-use and/or adult-use cannabis and the President approves such action (and as to the timing or scope of any such potential amendment or repeal there can be no assurance), there is a risk that federal authorities may enforce current federal law. If the federal government begins to enforce federal laws relating to cannabis in states where the growing, processing, sale and use of cannabis is currently legal, or if existing applicable state laws are repealed or curtailed, our business, results of operations, financial condition and prospects would be materially and adversely affected.
Laws Applicable to Financial Services for Cannabis Industry
All banks are subject to federal law, whether the bank is a national bank or state-chartered bank. At a minimum, all banks maintain federal deposit insurance which requires adherence to federal law. Violation of federal law could subject a bank to loss of its charter. Financial transactions involving proceeds generated by cannabis-related conduct can form the basis for prosecution under the federal money laundering statutes, unlicensed money transmitter statutes and the Bank Secrecy Act. For example, under the Bank Secrecy Act, banks must report to the federal government any suspected illegal activity, which would include any transaction associated with a cannabis-related business. These reports must be filed even though the business is operating in compliance with applicable state and local laws. Therefore, financial institutions that conduct transactions with money generated by cannabis-related conduct could face criminal liability under the Bank Secrecy Act for, among other things, failing to identify or report financial transactions that involve the proceeds of cannabis-related violations of the CSA.
Despite these laws, the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”) issued a memorandum on February 14, 2014 (the “FinCEN Memorandum”) outlining the pathways for financial institutions to bank state-sanctioned cannabis businesses in compliance with federal enforcement priorities. Concurrently with the FinCEN Memorandum, the DOJ issued supplemental guidance directing federal prosecutors to consider the federal enforcement priorities enumerated in the Cole Memo with respect to federal money laundering, unlicensed money transmitter and Bank Secrecy Act offenses based on cannabis-related violations of the CSA. The FinCEN Memorandum sets forth extensive requirements for financial institutions to meet if they want to offer bank accounts to cannabis-related businesses and echoed the enforcement priorities of the Cole Memo. Under these guidelines, financial institutions must submit a Suspicious Activity Report (“SAR”) in connection with all cannabis-related banking activities by any client of such financial institution, in accordance with federal money laundering laws. These cannabis-related SARs are divided into three categories – “marijuana limited,” “marijuana priority,” and “marijuana termination” – based on the financial institution’s belief that the business in question follows state law, is operating outside of compliance with state law, or where the banking relationship has been terminated, respectively. FinCEN provides a lengthy (but not exhaustive) list of marijuana-related “red flags” in the FinCEN Memorandum that banks are obligated to be aware of and monitor for. This is a level of scrutiny that is far beyond what is expected of any normal banking relationship.
As a result, many banks are hesitant to offer any banking services to cannabis-related businesses, including opening bank accounts. While we currently maintain banking relationships, our inability to maintain those accounts or the lack of access to bank accounts or other banking services in the future, would make it difficult for us to operate our business, increase our operating costs, and pose additional operational, logistical and security challenges. Similarly, if our proposed tenants are unable to access banking services, they will not be able to enter into triple-net leasing arrangements with us, as our leases will require rent payments to be made by check or wire transfer.
The rescission of the Cole Memo has not yet affected the status of the FinCEN Memorandum, nor has the Department of the Treasury given any indication that it intends to rescind the FinCEN Memorandum itself. Although the FinCEN Memorandum remains intact, it is unclear whether the current administration will continue to follow, modify or retract the guidelines of the FinCEN Memorandum. The DOJ continues to have the right and power to prosecute crimes committed by banks and financial institutions, such as money laundering and violations of the Bank Secrecy Act, that occur in any state including states that have in some form legalized the sale of cannabis. Further, the conduct of the DOJ’s enforcement priorities could change for any number of reasons. A change in the DOJ’s priorities could result in the DOJ’s prosecuting banks and financial institutions for crimes that were not previously prosecuted.
In addition, for our tenants that are publicly-traded companies, securities clearing firms may refuse to accept deposits of securities of those tenants, which may negatively impact the trading and valuations of such tenants and have a material adverse impact on our tenants’ ability to finance their operations and growth through the capital markets.
The increased uncertainty surrounding financial transactions related to cannabis activities may also result in financial institutions discontinuing services to the cannabis industry. See “Risk Factors – Risks Related to Regulation in our Annual Report on Form 10-K incorporated herein by reference.”
Agricultural Regulation
The medical-use and adult-use cannabis properties that we own that are used primarily for cultivation and production of medical-use and adult-use cannabis are subject to the laws, ordinances and regulations of state, local and federal governments, including laws, ordinances and regulations involving land use and usage, water rights, treatment methods, disturbance, the environment, and eminent domain.
Each governmental jurisdiction has its own distinct laws, ordinances and regulations governing the use of agricultural lands and water. Many such laws, ordinances and regulations seek to regulate water usage and water runoff because water can be in limited supply, as is the case in certain locations where our properties are located. In addition, runoff from rain or from irrigation is governed by laws, ordinances and regulations from state, local and federal governments. Additionally, if any of the water used on or running off from our properties flows to any rivers, streams, ponds, the ocean or other waters, there may be specific laws, ordinances and regulations governing the amount of pollutants, including sediments, nutrients and pesticides, that such water may contain.
We believe that our existing properties have, and other properties that we acquire in the future will have, sources of water, including wells and/or surface water that provide sufficient amounts of water necessary for the current operations at each location. However, should the need arise for additional water from wells and/or surface water sources, we may be required to obtain additional permits or approvals or to make other required notices prior to developing or using such water sources. Permits for drilling water wells or withdrawing surface water may be required by federal, state and local governmental entities pursuant to laws, ordinances, regulations or other requirements, and such permits may be difficult to obtain due to drought, the limited supply of available water within the districts of the states in which our properties are located or other reasons.
In addition to the regulation of water usage and water runoff, state, local and federal governments also seek to regulate the type, quantity and method of use of chemicals and materials for growing crops, including fertilizers, pesticides and nutrient rich materials. Such regulations could include restricting or preventing the use of such chemicals and materials near residential housing or near water sources. Further, some regulations have strictly forbidden or significantly limited the use of certain chemicals and materials. Licenses, permits and approvals must be obtained from governmental authorities requiring such licenses, permits and approvals before chemicals and materials can be used at grow facilities. Reports on the usage of such chemicals and materials must be submitted pursuant to applicable laws, ordinances, and regulations and the terms of the specific licenses, permits and approvals. Failure to comply with laws, ordinances and regulations, to obtain required licenses, permits and approvals or to comply with the terms of such licenses, permits and approvals could result in fines, penalties and/or imprisonment.
Because properties we own may be used for growing medical-use and adult-use cannabis, there may be other additional land use and zoning regulations at the state or local level that affect our properties that may not apply to other types of agricultural uses. For example, certain states in which our properties are located require stringent security systems in place at grow facilities and require stringent procedures for disposal of waste materials.
As an owner of cultivation facilities, we may be liable or responsible for the actions or inactions of our tenants with respect to these laws, regulations and ordinances.
Environmental Matters
Our properties and the operations thereon are subject to federal, state and local environmental laws, ordinances and regulations, including laws relating to water, air, solid wastes and hazardous substances. Our properties and the operations thereon are also subject to federal, state and local laws, ordinances, regulations and requirements related to the federal Occupational Safety and Health Act, as well as comparable state statutes relating to the health and safety of our employees and others working on our properties. Although we believe that we and our tenants are in material compliance with these requirements, there can be no assurance that we will not incur significant costs, civil and criminal penalties and liabilities, including those relating to claims for damages to persons, property or the environment resulting from operations at our properties. Furthermore, many of our properties have been repurposed for regulated cannabis operations, and historically were utilized for other purposes, including heavy industrial uses, which expose us to additional risks associated with historical releases of substances at the properties.
Real Estate Industry Regulation
Generally, the ownership and operation of real properties are subject to various laws, ordinances and regulations, including regulations relating to zoning, land use, water rights, wastewater, storm water runoff and lien sale rights and procedures. These laws, ordinances or regulations, such as the Comprehensive Environmental Response and Compensation Liability Act and its state analogs, or any changes to any such laws, ordinances or regulations, could result in or increase the potential liability for environmental conditions or circumstances existing, or created by tenants or others, on our properties. Laws related to upkeep, safety and taxation requirements may result in significant unanticipated expenditures, loss of our properties or other impairments to operations, any of which would adversely affect our cash flows from operating activities.
Americans with Disabilities Act
Our properties must comply with Title III of the ADA to the extent that such properties are “public accommodations” as defined by the ADA. The ADA may require removal of structural barriers to access by persons with disabilities in certain public areas of our properties where such removal is readily achievable. We believe the existing properties are in substantial compliance with the ADA and that we will not be required to make substantial capital expenditures to address the requirements of the ADA. However, noncompliance with the ADA could result in imposition of fines or an award of damages to private litigants. Although our tenants are generally responsible for all maintenance and repairs of the property pursuant to our leases, including compliance with the ADA and other similar laws or regulations, we could be held liable as the owner of the property for a failure of one of our tenants to comply with these laws or regulations.
Legal Proceedings
We are currently not a party to any material legal proceedings. From time to time, we may in the future be a party to various claims and routine litigation arising in the ordinary course of business.
Corporate Information
NewLake Capital Partners, Inc., a Maryland corporation, was incorporated on April 9, 2019 originally under the name GreenAcreage Real Estate Corp. Our name was changed to NewLake Capital Partners, Inc. in March 2021 in connection with the Merger. Our principal executive offices are located at 27 Pine Street, Suite 50, New Canaan, CT 06840. Our telephone number is 203-594-1402. Information on, or accessible through, our website is not a part of, and is not incorporated into, this prospectus or the registration statement of which it forms a part.
POLICIES WITH RESPECT TO CERTAIN ACTIVITIES
The following is a discussion of certain of our investment, financing and other policies. These policies have been determined by our board of directors and, in general, may be amended or revised from time to time by our board of directors without a vote of our stockholders.
Investment Policies
Investments in Real Estate or Interests in Real Estate
We conduct all of our investment activities through our operating partnership and its subsidiaries. Our investment objectives are to maximize the cash flow of our properties, acquire properties with cash flow growth potential, provide quarterly cash distributions and achieve long-term capital appreciation for our stockholders through increases in the value of our company. Consistent with our policy to acquire assets for both income and capital gain, our operating partnership intends to hold its properties for investment with a view to long-term appreciation, to engage in the business of acquiring, developing and owning its properties and to make occasional sales of the properties as are consistent with our investment objectives. We have not established a specific policy regarding the relative priority of these investment objectives. For a discussion of our properties and our acquisition and other strategic objectives, see “Business and Properties.”
We pursue our investment objectives primarily through the ownership by our operating partnership of our portfolio of properties and other acquired properties and assets. We currently intend to invest primarily in industrial properties and dispensaries. Future investment activities will not be limited to any geographic area, property type or to a specified percentage of our assets. While we may diversify in terms of property locations, size and market, we do not have any limit on the amount or percentage of our assets that may be invested in any one property or any one geographic area. We intend to engage in such future investment activities in a manner that is consistent with the maintenance of our qualification as a REIT for federal income tax purposes. In addition, we may purchase or lease income-producing industrial properties and dispensaries or other types of properties for long-term investment, expand and improve the properties we presently own or other acquired properties, or sell such properties, in whole or in part, when circumstances warrant.
We may also participate with third parties in property ownership, through joint ventures or other types of co-ownership. We also may acquire real estate or interests in real estate in exchange for the issuance of common stock, units, preferred stock or options to purchase stock. These types of investments may permit us to own interests in larger assets without unduly restricting our diversification and, therefore, provide us with flexibility in structuring our portfolio. We will not, however, enter into a joint venture or other partnership arrangement to make an investment that would not otherwise meet our investment policies.
Equity investments in acquired properties may be subject to existing mortgage financing and other indebtedness or to new indebtedness which may be incurred in connection with acquiring or refinancing these properties. Debt service on such financing or indebtedness will have a priority over any dividends with respect to our common stock. Investments are also subject to our policy not to be required to register as an “investment company” under the 1940 Act.
Investments in Real Estate Mortgages
While our portfolio consists of, and our business objectives emphasize, equity investments in industrial properties and dispensaries, we may, at the discretion of our board of directors and without a vote of our stockholders, invest in mortgages and other types of real estate interests in a manner that is consistent with our qualification as a REIT. We do not presently intend to invest in mortgages or deeds of trust. If we choose to invest in mortgages, we would expect to invest in mortgages secured by industrial properties and dispensaries. However, there is no restriction on the proportion of our assets that may be invested in a type of mortgage or any single mortgage or type of mortgage loan. Investments in real estate mortgages run the risk that one or more borrowers may default under the mortgages and that the collateral securing those mortgages may not be sufficient to enable us to recoup our full investment.
Securities of or Interests in Persons Primarily Engaged in Real Estate Activities and Other Issuers
Subject to the percentage of ownership limitations and the income and asset tests necessary for REIT qualification, we may in the future invest in securities of other REITs, other entities engaged in real estate activities or securities of other issuers where such investment would be consistent with our investment objectives. We may invest in the debt or equity securities of such entities, including for the purpose of exercising control over such entities. We have no current plans to invest in entities that are not engaged in real estate activities. We will limit our investment in such securities so that we will remain exempt from the requirement to register as an “investment company” under the 1940 Act.
Investments in Other Securities
Other than as described above, we do not intend to invest in any additional securities such as bonds, preferred stock or common stock.
Dispositions
We do not currently intend to dispose of any of our properties, although we reserve the right to do so if, based upon management’s periodic review of our portfolio, our board of directors determines that such action would be in our best interests.
Financings and Leverage Policy
We anticipate using a number of different sources to finance our acquisitions and operations, including cash flows from operations, asset sales, if any, seller financing, issuance of debt securities, private financings (such as bank credit facilities, which may or may not be secured by our assets), property-level mortgage debt, common or preferred equity issuances or any combination of these sources, to the extent available to us, or other sources that may become available from time to time. Any debt that we incur may be recourse or nonrecourse and may be secured or unsecured. We also may take advantage of joint venture or other partnering opportunities as such opportunities arise in order to acquire properties that would otherwise be unavailable to us. We may use the proceeds of our borrowings to acquire assets, to refinance existing debt or for general corporate purposes.
Although we are not required to maintain any particular leverage ratio, we intend, when appropriate, to employ prudent amounts of leverage. We expect to use leverage conservatively, assessing the appropriateness of new equity or debt capital based on market conditions, including prudent assumptions regarding future cash flow, the creditworthiness of tenants and future rental rates. Our charter and bylaws do not limit the amount of debt that we may incur. Our board of directors has not adopted a policy limiting the total amount of debt that we may incur. Going forward, we intend to target a debt to gross total assets ratio of approximately 50%, which we believe is in line with similar publicly-traded REITs.
Our board of directors will consider a number of factors in evaluating the amount of debt that we may incur. If we adopt a debt policy, our board of directors may from time to time modify such policy in light of then-current economic conditions, relative costs of debt and equity capital, market values of our properties, general conditions in the market for debt and equity securities, fluctuations in the market price of our common stock, growth and acquisition opportunities and other factors. Our decision to use leverage in the future to finance our assets will be at our discretion and will not be subject to the approval of our stockholders, and we are not restricted by our governing documents or otherwise in the amount of leverage that we may use.
Lending Policies
Although we do not have a policy limiting our ability to make loans to other persons, we do not intend to make loans to third parties although we may consider offering purchase money financing in connection with the sale of properties where the provision of that financing will increase the value to be received by us for the property sold. We also may make loans to joint ventures in which we participate. However, we do not intend to engage in significant lending activities. Any loan we make will be consistent with maintaining our qualification as a REIT.
Equity Capital Policies
To the extent that our board of directors determines to obtain additional capital, we may issue debt or equity securities, including OP Units or senior securities of our operating partnership, retain earnings (subject to provisions in the Code requiring distributions of income to maintain REIT qualification) or pursue a combination of these methods. As long as our operating partnership is in existence, we will generally contribute the proceeds of all equity capital raised by us to our operating partnership in exchange for additional interests in our operating partnership, which will dilute the ownership interests of the limited partners in our operating partnership.
Existing common stockholders will have no preemptive rights to common or preferred stock or units issued in any securities offering by us, and any such offering might cause a dilution of a stockholder’s investment in us. We may in the future continue to issue shares of capital stock or OP Units in connection with acquisitions of property.
We may, under certain circumstances, purchase shares of our common stock or other securities in the open market or in private transactions with our stockholders, provided that those purchases are approved by our board of directors. Our board of directors has no present intention of causing us to repurchase any shares of our common stock or other securities, and any such action would only be taken in conformity with applicable federal and state laws and the applicable requirements for qualification as a REIT.
Conflict of Interest Policies
Overview
Conflicts of interest could arise in the future as a result of the relationships between us and our affiliates, on the one hand, and our operating partnership or any partner thereof, on the other. Our directors and officers have duties to our company under applicable Maryland law in connection with their management of our company. At the same time, we, as the general partner of our operating partnership, have fiduciary duties and obligations to our operating partnership and its other partners under Maryland law and the partnership agreement in connection with the management of our operating partnership. Our fiduciary duties and obligations, as the general partner of our operating partnership, may come into conflict with the duties of our directors and officers to our company.
Under Delaware law, a general partner of a Delaware limited partnership has fiduciary duties of loyalty and care to the partnership and its partners and must discharge its duties and exercise its rights as general partner under the partnership agreement or Delaware law consistently with the obligation of good faith and fair dealing. The partnership agreement provides that, in the event of a conflict between the interests of our operating partnership or any partner, on the one hand, and the separate interests of our company or our stockholders, on the other hand, we, in our capacity as the general partner of our operating partnership, are under no obligation not to give priority to the separate interests of our company or our stockholders, and that any action or failure to act on our part or on the part of our directors that gives priority to the separate interests of our company or our stockholders that does not result in a violation of the contract rights of the limited partners of the operating partnership under its partnership agreement does not violate the duty of loyalty that we, in our capacity as the general partner of our operating partnership, owe to the operating partnership and its partners. The duty of care requires a general partner to refrain from engaging in grossly negligent or reckless conduct, intentional misconduct or a knowing violation of law, and this duty may not be unreasonably reduced by the partnership agreement.
The partnership agreement provides that we are not be liable to our operating partnership or any partner for monetary damages for losses sustained, liabilities incurred or benefits not derived by our operating partnership or any limited partner, except for liability for our intentional harm or gross negligence. The partnership agreement also provides that any obligation or liability in our capacity as the general partner of our operating partnership that may arise at any time under the partnership agreement or any other instrument, transaction or undertaking contemplated by the partnership agreement will be satisfied, if at all, out of our assets or the assets of our operating partnership only, and no obligation or liability of the general partner will be personally binding upon any of our directors, stockholders, officers, employees or agents, regardless of whether such obligation or liability is in the nature of contract, tort or otherwise, and none of our directors or officers will be liable or accountable in damages or otherwise to the partnership, any partner or any assignee of a partner for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or any act or omission. Our operating partnership must indemnify us, our directors and officers, officers of our operating partnership and any other person designated by us against any and all losses, claims, damages, liabilities (whether joint or several), expenses (including, without limitation, attorneys’ fees and other legal fees and expenses), judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, that relate to the operations of the operating partnership, unless (1) an act or omission of the person was material to the matter giving rise to the action and either was committed in bad faith or was the result of active and deliberate dishonesty, (2) for any transaction for which such person actually received an improper personal benefit in violation or breach of any provision of the partnership agreement, or (3) in the case of a criminal proceeding, the person had reasonable cause to believe the act or omission was unlawful.
Our operating partnership must also pay or reimburse the reasonable expenses of any such person upon its receipt of a written affirmation of the person’s good faith belief that the standard of conduct necessary for indemnification has been met and a written undertaking to repay any amounts paid or advanced if it is ultimately determined that the person did not meet the standard of conduct for indemnification. Our operating partnership will not indemnify or advance funds to any person with respect to any action initiated by the person seeking indemnification without our approval (except for any proceeding brought to enforce such person’s right to indemnification under the partnership agreement) or if the person is found to be liable to our operating partnership on any portion of any claim in the action.
Sale or Refinancing of Properties
While we will have the exclusive authority under the partnership agreement to determine whether, when, and on what terms to sell a property or when to refinance or repay indebtedness, any such decision would require the approval of our board of directors.
Policies Applicable to All Directors and Officers
Our charter and bylaws do not restrict any of our directors, officers, stockholders or affiliates from having a pecuniary interest in an investment or transaction that we have an interest in or from conducting, for their own account, business activities of the type we conduct. We intend, however, to adopt policies that are designed to eliminate or minimize potential conflicts of interest, including a policy for the review, approval or ratification of any related party transactions. This policy will provide that the audit committee of our board of directors will review the relevant facts and circumstances of each related party transaction, including if the transaction is on terms comparable to those that could be obtained in arm’s length dealings with an unrelated third party before approving such transaction. We will also adopt a code of business conduct and ethics, which will provide that all of our directors, officers and employees are prohibited from taking for themselves opportunities that are discovered through the use of corporate property, information or position without our consent. See “Code of Business Conduct and Ethics” in our 2022 Definitive Proxy Statement on Schedule 14A and incorporated by reference herein. However, we cannot assure you that these policies or provisions of law will always be successful in eliminating the influence of such conflicts, and if they are not successful, decisions could be made that might fail to reflect fully the interests of all stockholders.
Interested Director and Officer Transactions
Pursuant to the Maryland General Corporation Law (“MGCL”), a contract or other transaction between us and a director or between us and any other corporation, firm or other entity in which any of our directors is a director or has a material financial interest is not void or voidable solely on the grounds of such common directorship or interest, the presence of such director at the meeting at which the contract or transaction is authorized, approved or ratified or the counting of the director’s vote in favor thereof, provided that:
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the fact of the common directorship or interest is disclosed or known to our board of directors or a committee of our board, and our board or such committee authorizes, approves or ratifies the transaction or contract by the affirmative vote of a majority of disinterested directors, even if the disinterested directors constitute less than a quorum; |
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the fact of the common directorship or interest is disclosed or known to our stockholders entitled to vote thereon, and the transaction or contract is authorized, approved or ratified by a majority of the votes cast by the stockholders entitled to vote other than the votes of shares owned of record or beneficially by the interested director or corporation, firm or other entity; or |
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the transaction or contract is fair and reasonable to us at the time it is authorized, ratified or approved. |
Furthermore, under Delaware law (where our operating partnership is formed), we, as general partner, have a fiduciary duty of loyalty to our operating partnership and its partners and, consequently, such transactions also are subject to the duties that we, as general partner, owe to the operating partnership and its limited partners (as such duty has been modified by the partnership agreement). We will also adopt a policy that requires that all contracts and transactions between us, our operating partnership or any of our subsidiaries, on the one hand, and any of our directors or executive officers or any entity in which such director or executive officer is a director or has a material financial interest, on the other hand, must be approved by the affirmative vote of a majority of our disinterested directors even if less than a quorum. Where appropriate, in the judgment of the disinterested directors, our board of directors may obtain a fairness opinion or engage independent counsel to represent the interests of non-affiliated security holders, although our board of directors will have no obligation to do so.
Policies with Respect to Other Activities
We will have authority to offer common stock, preferred stock or options to purchase stock in exchange for property and to repurchase or otherwise acquire our common stock or other securities in the open market or otherwise, and we may engage in such activities in the future. As described in “Description of the Partnership Agreement of Our Operating Partnership” we expect, but are not obligated, to issue common stock to holders of OP Units upon some or all of their exercises of their redemption rights. Our board of directors has the authority, without further stockholder approval, to amend our charter to increase or decrease the number of authorized shares of common stock or preferred stock or the number of shares of stock of any class or series that we have authority to issue and our board of directors, without stockholder approval, has the authority to authorize us to issue additional shares of common stock or preferred stock, in one or more series, including senior securities, in any manner, and on the terms and for the consideration, it deems appropriate. See “Description of Capital Stock.” We have not engaged in trading, underwriting or agency distribution or sale of securities of other issuers other than our operating partnership and do not intend to do so. At all times, we intend to make investments in such a manner as to qualify as a REIT, unless because of circumstances or changes in the Code, or the Treasury regulations, our board of directors determines that it is no longer in our best interests to attempt to qualify, or to continue to qualify as a REIT. In addition, we intend to make investments in such a way that we will not be treated as an investment company under the 1940 Act.
Reporting Policies
We intend to make available to our stockholders annual reports, including our audited financial statements. We are subject to the information reporting requirements of the Exchange Act. Pursuant to those requirements, we are required to file annual and periodic reports, proxy statements and other information, including audited financial statements, with the SEC.
DESCRIPTION OF THE PARTNERSHIP AGREEMENT OF OUR OPERATING PARTNERSHIP
The following summarizes the material terms of the agreement of limited partnership of our operating partnership, a copy of which is an exhibit to the registration statement of which this prospectus is a part. See “Where You Can Find More Information.”
Management
We are the sole general partner of our operating partnership, NLCP Operating Partnership LP, a Delaware limited partnership. We conduct substantially all of our operations and make substantially all of our investments through our operating partnership. Pursuant to the partnership agreement, we, as the general partner, have full, complete and exclusive responsibility and discretion in the management and control of our operating partnership, including the ability to cause our operating partnership to enter into certain major transactions including acquisitions, dispositions, refinancings and selection of lessees, to make distributions to partners and to cause changes in our operating partnership’s business activities.
Transferability of Interests
Holders of partnership units may not transfer their units without our consent, as general partner of the operating partnership. We may not engage in any merger, consolidation or other combination, or sale of all or substantially all of our assets in a transaction that results in a change in control of our company without the consent of the limited partners, unless:
• |
all of the limited partners will receive, or will have the right to elect to receive, for each OP Unit an amount of cash, securities or other property equal to the product of the adjustment factor (as defined in the partnership agreement) and the greatest amount of cash, securities or other property paid to a holder of one of our common shares in consideration of one of our common shares; or |
• |
all of the following conditions are met: (w) substantially all of the assets directly or indirectly owned by our operating partnership are owned, immediately following the consummation of such transaction, directly or indirectly by our operating partnership or another limited partnership or limited liability company which is the survivor of a merger, consolidation or combination of assets with our operating partnership and is classified as a partnership for federal income tax purposes (in each case, the “Surviving Partnership”); (x) limited partners that held OP Units immediately prior to the consummation of such transaction own an equivalent percentage interest of the Surviving Partnership based on the relative fair market value of the net assets of our operating partnership vis-a-vis the other net assets of the Surviving Partnership immediately prior to the consummation of such transaction; (y) the rights, preferences and privileges in the Surviving Partnership of such limited partners are at least as favorable in all material respects as those in effect with respect to the partnership common units immediately prior to the consummation of such transaction; and (z) the rights of such limited partners include at least one of the following: (A) the right to redeem their interests in the Surviving Partnership for the consideration (or equivalent consideration) available to such persons pursuant to the partnership agreement or (B) the right to redeem their interests in the Surviving Partnership for cash on terms substantially equivalent to those in effect with respect to their OP Units immediately prior to the consummation of such transaction, or, if the ultimate controlling person of the Surviving Partnership has publicly-traded common equity securities, such common equity securities, with an exchange ratio based on the determination of relative fair market value of such securities and our common stock. |
We also may, as the general partner, transfer all or any portion of its general partnership interest to (A) a wholly-owned subsidiary or (B) the owner of all of our ownership interests.
Capital Contributions
As of December 31, 2021, we own an approximate 98% partnership interest in our operating partnership. The partnership agreement provides that if our operating partnership requires additional funds at any time in excess of funds available to our operating partnership from borrowing or capital contributions, we may borrow such funds from a financial institution or other lender and lend such funds to our operating partnership on the same terms and conditions as are applicable to our borrowing of such funds. Under the partnership agreement, we are obligated to contribute the net proceeds from any future offering of common or preferred equity securities as additional capital to our operating partnership. If we contribute additional capital to our operating partnership, we will receive additional common or preferred units, as applicable, and our percentage interest will be increased on a proportionate basis based upon the amount of such additional capital contributions and the value of our operating partnership at the time of such contributions. Conversely, the percentage interests of the limited partners will be decreased on a proportionate basis in the event of additional capital contributions by us. In addition, if we contribute additional capital to our operating partnership, the general partner will revalue the property of our operating partnership to its fair market value (as determined by the general partner) and the capital accounts of the partners will be adjusted to reflect the manner in which the unrealized gain or loss inherent in such property (that has not been reflected in the capital accounts previously) would be allocated among the partners under the terms of the partnership agreement if there were a taxable disposition of such property for its fair market value (as determined by the general partner) on the date of the revaluation. Our operating partnership may issue preferred partnership interests, in connection with acquisitions of property or otherwise, which could have priority over common partnership interests with respect to distributions from our operating partnership, including the partnership interests we own as the general partner.
Redemption Rights
Pursuant to the partnership agreement, limited partners, other than us, will receive redemption rights, which will enable them to cause our operating partnership to redeem their OP Units in exchange for cash or, at our option, for shares of our common stock on a one-for-one basis, commencing 12 months from the date of issuance of such units. Redemptions will generally occur only on the first day of each calendar quarter. Limited partners must submit an irrevocable notice to our operating partnership of the intention to tender for redemption no less than 60 days prior to the redemption date. The number of shares of common stock issuable upon redemption of OP Units held by limited partners may be adjusted upon the occurrence of certain events such as share dividends, share subdivisions or combinations. We expect to fund any cash redemptions out of available cash or borrowings. Notwithstanding the foregoing, a limited partner will not be entitled to exercise its redemption rights if the delivery of common stock to the redeeming limited partner would:
• |
result in any person owning, directly or indirectly, shares of common stock in excess of the stock ownership limit in our charter; |
• |
result in our shares being owned by fewer than 100 persons (determined without reference to any rules of attribution); |
• |
result in our being “closely held” within the meaning of Section 856(h) of the Code; |
• |
cause us to own, actually or constructively, 10% or more of the ownership interests in a tenant (other than a TRS) of ours, our operating partnership’s or a subsidiary partnership’s real property, within the meaning of Section 856(d)(2)(B) of the Code; |
• |
otherwise cause us to fail to qualify as a REIT under the Code; or |
• |
cause the acquisition of common stock by such redeeming limited partner to be “integrated” with any other distribution of common stock or OP Units for purposes of complying with the registration provisions of the Securities Act. |
We, as the general partner, may, in our sole and absolute discretion, waive any of these restrictions.
The partnership agreement requires that our operating partnership be operated in a manner that enables us to satisfy the requirements for being classified as a REIT, to avoid any federal income or excise tax liability imposed by the Code (other than any federal income tax liability associated with our retained capital gains) and to ensure that the partnership will not be classified as a “publicly traded partnership” taxable as a corporation under Section 7704 of the Code.
Partnership Expenses
In addition to the administrative and operating costs and expenses incurred by our operating partnership, our operating partnership generally will pay all of our administrative costs and expenses, including:
• |
all expenses relating to our continuity of existence and our subsidiaries’ operations; |
• |
all expenses relating to offerings and registration of securities; |
• |
all expenses associated with any repurchase by us of any securities; |
• |
all expenses associated with the preparation and filing of any of our periodic or other reports and communications under federal, state or local laws or regulations; |
• |
all expenses associated with our compliance with laws, rules and regulations promulgated by any regulatory body; |
• |
all administrative costs and expenses, including salaries and other payments to directors, officers or employees; |
• |
all accounting and legal expenses; |
• |
all expenses associated with any 401(k) plan, incentive plan, bonus plan or other plan providing compensation to our employees; |
• |
all expenses incurred by us relating to any issuance or redemption of partnership units; and |
• |
all of our other operating or administrative costs incurred in the ordinary course of business on behalf of our operating partnership. |
These expenses, however, do not include any of our administrative and operating costs and expenses incurred that are attributable to properties that, in the future, may be owned by us directly rather than by our operating partnership or its subsidiaries.
General Partner Duties
Our directors and officers have duties under applicable Maryland law to oversee our management in a manner consistent with our best interests. At the same time, we, as the general partner of our operating partnership, have fiduciary duties to our operating partnership and to the limited partners under Delaware law in connection with the management of our operating partnership. Our duties, as general partner, to our operating partnership and its limited partners, therefore, may come into conflict with the duties of our directors and officers to us. Unless otherwise provided for in the relevant partnership agreement, Delaware law generally requires a general partner of a Delaware limited partnership to adhere to fiduciary duty standards under which it owes its limited partners the highest duties of loyalty and care and which generally prohibits such general partner from taking any action or engaging in any transaction as to which it has a conflict of interest. The partnership agreement provides that in the event of a conflict between the interests of our stockholders, on the one hand, and the limited partners of the operating partnership, on the other hand, as general partner we will endeavor in good faith to resolve the conflict in a manner not adverse to either our stockholders or the limited partners; provided, however, that so long as we own a controlling interest in the operating partnership, any such conflict that we, in our sole and absolute discretion, determine cannot be resolved in a manner not adverse to either our stockholders or the limited partners shall be resolved in favor of our stockholders and we shall not be liable for monetary damages for losses sustained, liabilities incurred or benefits not derived by the limited partners in connection with such decisions.
Distributions
The partnership agreement provides that our operating partnership will distribute cash from operations (including net sale or refinancing proceeds, but excluding net proceeds from the sale of our operating partnership’s property in connection with the liquidation of our operating partnership) at such time and in such amounts as determined by the general partner in its sole discretion, to us and the other limited partners in accordance with their respective percentage interests in our operating partnership.
Upon liquidation of our operating partnership, after payment of, or adequate provision for, debts and obligations of the partnership, including any partner loans, any remaining assets of the partnership will be distributed to us and the other limited partners with positive capital accounts in accordance with their respective positive capital account balances.
Allocations
Profits and losses of the partnership (including depreciation and amortization deductions) for each fiscal year generally will be allocated to us and the other limited partners in accordance with the respective percentage interests in the partnership. All of the foregoing allocations are subject to compliance with the provisions of Sections 704(b) and 704(c) of the Code and Treasury regulations promulgated thereunder. To the extent Treasury regulations promulgated pursuant to Section 704(c) of the Code permit, we, as the general partner, shall have the authority to elect the method to be used by our operating partnership for allocating items with respect to (i) the difference between our adjusted tax basis in our portfolio and the proceeds from future offerings that we will contribute to our operating partnership in exchange for OP Units and (ii) contributed property acquired for OP Units for which fair market value differs from the adjusted tax basis at the time of contribution. Any such election shall be binding on all partners. Upon the occurrence of certain specified events, our operating partnership will revalue its assets.
Amendments of the Partnership Agreement
We, as the general partner, without the consent of the limited partners, may amend the partnership agreement in any respect; provided that the following amendments require the consent of limited partners holding more than 50% of the partnership interests of the limited partners (other than those held by us or our subsidiaries):
• |
any amendment converting a limited partner into a general partner; |
• |
any amendment adversely modifying in any material respect the limited liability of a limited partner; |
• |
any amendment that would alter our operating partnership’s allocations of profit and loss to the limited partners, other than with respect to the issuance of additional OP Units pursuant to the partnership agreement; |
• |
any amendment that would impose on the limited partners any obligation to make additional capital contributions to our operating partnership; |
• |
any amendment that would amend the decisions of Adjustment Factor or Value (both as defined in the partnership agreement) in a manner adverse to the limited partners; and |
• |
any amendment that would impose an obligation on the limited partners to make additional capital contributions to our operating partnership; or any amendment that alters or modifies the provisions of the partnership agreement related to the transfer of our partnership interest, as the general partner. |
Indemnification and Limitation of Liability
The limited partners of our operating partnership expressly acknowledge that the general partner of our operating partnership is acting for the benefit of our operating partnership, the limited partners (including us) and our stockholders collectively and that we are under no obligation to consider the separate interests of the limited partners (including, without limitation, the tax consequences to some or all of the limited partners) in deciding whether to cause our operating partnership to take, or decline to take, any actions. The partnership agreement provides that in the event of a conflict between the interests of our stockholders on the one hand, and the limited partners of our operating partnership on the other hand, the general partner will endeavor in good faith to resolve the conflict in a manner not adverse to either our stockholders or the limited partners, provided however, that so long as we own a controlling interest in our operating partnership, any such conflict that the general partner, in its sole and absolute discretion, determines cannot be resolved in a manner not adverse to either our stockholders or the limited partners will be resolved in favor of our stockholders, and neither the general partner nor our company will be liable for monetary damages for losses sustained, liabilities incurred or benefits not derived by the limited partners in connection with such decisions.
To the extent permitted by applicable law, the partnership agreement will provide for the indemnification of the general partner, and our officers, directors, employees, agents and any other persons we may designate from and against any and all claims arising from operations of our operating partnership in which any indemnitee may be involved, or is threatened to be involved, as a party or otherwise, unless it is established by a court of competent jurisdiction that:
• |
the act or omission of the indemnitee was material to the matter giving rise to the proceeding and either was committed in bad faith or was the result of active and deliberate dishonesty; |
• |
the indemnitee actually received an improper personal benefit in money, property or services; or |
• |
in the case of any criminal proceeding, the indemnitee had reasonable cause to believe that the act or omission was unlawful. |
Similarly, the general partner of our operating partnership, and our officers, directors, agents or employees, will not be liable for monetary damages to our operating partnership or the limited partners for losses sustained or liabilities incurred as a result of errors in judgment or mistakes of fact or law or of any act or omission so long as any such party acted in good faith.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling our company pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Term
Our operating partnership will continue indefinitely or until sooner dissolved upon:
• |
the dissolution, death, removal or withdrawal of the last remaining general partner unless, within ninety (90) days after such event, a majority in interest of the partners remaining agree in writing, in their sole and absolute discretion, to continue the Partnership and to the appointment, effective as of the date of such event, of a successor general partner; |
• |
the passage of 90 days after the sale or other disposition of all or substantially all of the assets of the partnership; |
• |
an election by us in our capacity as the general partner, with the consent of the limited partners; |
• |
entry of a decree of judicial dissolution of our operating partnership; or |
• |
any acquisition by our operating partnership or by us as the general partner of all partnership units other than partnership units held by us as the general partner. |
Tax Matters
The partnership agreement will provide that the sole general partner of our operating partnership will be partnership representative of our operating partnership and, as such, will have authority to handle tax audits and to make tax elections under the Code on behalf of our operating partnership.
SELLING STOCKHOLDERS
This prospectus relates to the resale from time to time of (a) an aggregate of 19,304,625 shares of our common stock, consisting of (i) 17,329,964 shares of our common stock, , (ii) 127,176 shares of common stock issuable upon the settlement of outstanding restricted stock units, (iii) 602,392 shares of our common stock issuable upon the exercise of 602,392 warrants held by the selling stockholders (each exercisable for one share of common stock) at an exercise price of $24.00 per share, (iv) 791,790 shares of common stock issuable upon the exercise of an option (each exercisable for one share of common stock) at an exercise price of $24.00 per share and (v) 453,303 shares of common stock issuable upon the redemption of 453,303 OP Units. When we refer to the “selling stockholders” in this prospectus, we mean the persons listed in the table below until such persons dispose of the shares of common stock identified below.
The following table sets forth, as of the date of this prospectus, the names of each selling stockholder, the number of shares of our common stock currently held by such selling stockholders prior to any shares issued to them upon exchange of common units, the maximum number of shares of our common stock currently issuable to such selling stockholders in such exchange and the aggregate number of shares of our common stock that may owned by such selling stockholders after such exchange. Since the selling stockholders may sell all, some or none of their shares, we cannot estimate the aggregate number of shares that the selling stockholders will offer pursuant to this prospectus or that the selling stockholders will own upon completion of the offering to which this prospectus relates. The following table does not take into effect any restrictions on ownership or transfer on such shares as described in “Description of Capital Stock — Restrictions on Ownership and Transfer.”
Prior to Resale |
After Resale |
||||||||||||||||||||||||||||||||
Name of Selling Stockholder |
Number of Shares of Common Stock Beneficially Owned Prior to Exchange |
OP Units Beneficially Owned Prior to Exchange |
Maximum Number of Shares Issuable upon Exchange Registered Hereby |
Shares Beneficially Owned Following the Exchange |
Percentage of All Shares of Common Stock(1) |
Number of Shares of Common Stock Being Offered |
Number of Shares of Common Stock Beneficially Owned |
Percentage of All Shares of Common Stock(2) |
|||||||||||||||||||||||||
16 Day Equity Group Series LLC |
21,056 | (3) | — | — | 21,056 | (3) | * | 21,056 | (3) | — | — | ||||||||||||||||||||||
2014 Alan Shamah Discretionary Trust |
14,000 | — | — | 14,000 | * | 14,000 | — | — | |||||||||||||||||||||||||
64 Group, LLC |
4,212 | (4) | — | — | 4,212 | (4) | * | 4,212 | (4) | — | — | ||||||||||||||||||||||
A-8 Venture LLC |
8,422 | (5) | — | — | 8,422 | (5) | * | 8,422 | (5) | — | — | ||||||||||||||||||||||
Amy Adams |
9,475 | (6) | — | — | 9,475 | (6) | * | 9,475 | (6) | — | — | ||||||||||||||||||||||
Adlane Realty Co LLC |
2,364 | — | — | 2,364 | * | 2,364 | — | — | |||||||||||||||||||||||||
Ari Adlerstein |
15,792 | (7) | — | — | 15,792 | (7) | * | 15,792 | (7) | — | — | ||||||||||||||||||||||
AE 2015 Grantor CLAT |
44,118 | — | — | 44,118 | * | 44,118 | — | — | |||||||||||||||||||||||||
AE Lake Partners, LLC |
2,313 | (8) | — | — | 2,313 | (8) | * | 2,313 | (8) | — | — | ||||||||||||||||||||||
AH Capital Holdings, LLC |
4,212 | (9) | — | — | 4,212 | (9) | * | 4,212 | (9) | — | — | ||||||||||||||||||||||
Luis F. Ahumada |
4,728 | — | — | 4,728 | * | 4,728 | — | — | |||||||||||||||||||||||||
Catherine H. Alba |
4,728 | — | — | 4,728 | * | 4,728 | — | — | |||||||||||||||||||||||||
Alchemy Capital LLC |
10,000 | — | — | 10,00 | * | 10,00 | — | — | |||||||||||||||||||||||||
ALEXG Holdings, LLC |
46,225 | (10) | — | — | 46,225 | (10) | * | 46,225 | (10) | — | — | ||||||||||||||||||||||
ALG Legacy |
74,511 | (11) | — | — | 74,511 | (11) | * | 74,511 | (11) | — | — | ||||||||||||||||||||||
Allison Fine 2012 Irrevocable Trust |
2,105 | (12) | — | — | 2,105 | (12) | * | 2,105 | (12) | — | — | ||||||||||||||||||||||
Allison K. Bosco Exempt Descendant’s Trust U/A 12/7/12, Karen S. Kaplan, Trustee |
10,528 | (13) | — | — | 10,528 | (13) | * | 10,528 | (13) | — | — | ||||||||||||||||||||||
Amy Tarson Adams 2010 Irrevocable Trust |
10,528 | (14) | — | — | 10,528 | (14) | * | 10,528 | (14) | — | — | ||||||||||||||||||||||
Kiley T. Anderson |
4,212 | (15) | — | — | 4,212 | (15) | * | 4,212 | (15) | — | — | ||||||||||||||||||||||
Anne L Pearlstein Living Trust |
10,528 | (16) | — | — | 10,528 | (16) | * | 10,528 | (16) | — | — | ||||||||||||||||||||||
David Annenberg |
1,053 | (17) | — | — | 1,053 | (17) | * | 1,053 | (17) | — | — | ||||||||||||||||||||||
Jamie Annenberg |
4,212 | (18) | — | — | 4,212 | (18) | * | 4,212 | (18) | — | — | ||||||||||||||||||||||
Jarrett Annenberg |
127,504 | (19) | — | — | 127,504 | (19) | * | 127,504 | (19) | — | — | ||||||||||||||||||||||
Annenberg Investment LTD.401 Trust |
4,212 | (20) | — | — | 4,212 | (20) | * | 4,212 | (20) | — | — | ||||||||||||||||||||||
ANO PROP 8, LLC |
8,422 | (21) | — | — | 8,422 | (21) | * | 8,422 | (21) | — | — | ||||||||||||||||||||||
Antion Trust U/A 10/28/1998 |
7,092 | — | — | 7,092 | * | 7,092 | — | — | |||||||||||||||||||||||||
Aquaty Capital, LLC |
6,331 | (22) | — | — | 6,331 | (22) | * | 6,331 | (22) | — | — | ||||||||||||||||||||||
Archon Capital LLC |
16,845 | (23) | — | — | 16,845 | (23) | * | 16,845 | (23) | — | — | ||||||||||||||||||||||
Ari Levy Revocable Trust DTD |
* | ||||||||||||||||||||||||||||||||
04-04-2015 | 10,528 | (24) | — | — | 10,528 | (24) | * | 10,528 | (24) | — | — | ||||||||||||||||||||||
Arise Capital LLC |
21,056 | (25) | — | — | 21,056 | (25) | * | 21,056 | (25) | — | — |
Prior to Resale |
After Resale |
|||||||||||||||||||||||||||||||
Name of Selling Stockholder |
Number of Shares of Common Stock Beneficially Owned Prior to Exchange |
OP Units Beneficially Owned Prior to Exchange |
Maximum Number of Shares Issuable upon Exchange Registered Hereby |
Shares Beneficially Owned Following the Exchange |
Percentage of All Shares of Common Stock(1) |
Number of Shares of Common Stock Being Offered |
Number of Shares of Common Stock Beneficially Owned |
Percentage of All Shares of Common Stock(2) |
||||||||||||||||||||||||
Ashland Ventures, LLC Series 17 |
4,212 | (26) | — | — | 4,212 | (26) | * | 4,212 | (26) | — | — | |||||||||||||||||||||
Aslan Capital LLC |
10,528 | (27) | — | — | 10,528 | (27) | * | 10,528 | (27) | — | — | |||||||||||||||||||||
Axum Investments LLC |
6,317 | (28) | — | — | 6,317 | (28) | * | 6,317 | (28) | — | — | |||||||||||||||||||||
Badbull Capital Management LLC |
33,689 | (29) | — | — | 33,689 | (29) | * | 33,689 | (29) | — | — | |||||||||||||||||||||
Badlands Investment Group |
2,364 | — | — | 2,364 | * | 2,364 | — | — | ||||||||||||||||||||||||
Bagan Investments, LP |
6,317 | (30) | — | — | 6,317 | (30) | * | 6,317 | (30) | — | — | |||||||||||||||||||||
Ammar Bahrani |
1,263 | (31) | — | — | 1,263 | (31) | * | 1,263 | (31) | — | — | |||||||||||||||||||||
Matthew Bailey |
4,212 | (32) | — | — | 4,212 | (32) | * | 4,212 | (32) | — | — | |||||||||||||||||||||
Carl R. Bangert |
5,000 | — | — | 5,000 | * | 5,000 | — | — | ||||||||||||||||||||||||
Tom Barker |
168,447 | (33) | — | — | 168,447 | (33) | * | 168,447 | (33) | — | — | |||||||||||||||||||||
Baum Family Trust |
10,528 | (34) | — | — | 10,528 | (34) | * | 10,528 | (34) | — | — | |||||||||||||||||||||
Beachhead Special Opportunities LLC |
125,000 | — | — | 125,000 | * | 125,000 | — | — | ||||||||||||||||||||||||
Scott N. Beatty |
4,212 | (35) | — | — | 4,212 | (35) | * | 4,212 | (35) | — | — | |||||||||||||||||||||
John Bendheim |
4,728 | — | — | 4,728 | * | 4,728 | — | — | ||||||||||||||||||||||||
Nancee R Berger |
42,111 | (36) | — | — | 42,111 | (36) | * | 42,111 | (36) | — | — | |||||||||||||||||||||
Irwin Bernstein |
5,643 | (37) | — | — | 5,643 | (37) | * | 5,643 | (37) | — | — | |||||||||||||||||||||
Stanley Bernstein |
10,528 | (38) | — | — | 10,528 | (38) | * | 10,528 | (38) | — | — | |||||||||||||||||||||
Morris Betesh |
6,317 | (39) | — | — | 6,317 | (39) | * | 6,317 | (39) | — | — | |||||||||||||||||||||
Beth Bezark |
4,212 | (40) | — | — | 4,212 | (40) | * | 4,212 | (40) | — | — | |||||||||||||||||||||
BG Investment Partners-New Path LLC |
8,422 | (41) | — | — | 8,422 | (41) | * | 8,422 | (41) | — | — | |||||||||||||||||||||
Robert A Bielinski Jr. |
8,422 | (42) | — | — | 8,422 | (42) | * | 8,422 | (42) | — | — | |||||||||||||||||||||
Big Red H LP |
29,478 | (43) | — | — | 29,478 | (43) | * | 29,478 | (43) | — | — | |||||||||||||||||||||
Senie B Bloys |
21,056 | (44) | — | — | 21,056 | (44) | * | 21,056 | (44) | — | — | |||||||||||||||||||||
Constance Blue |
4,212 | (45) | — | — | 4,212 | (45) | * | 4,212 | (45) | — | — | |||||||||||||||||||||
Bobolink Holdings, LLC |
4,212 | (46) | — | — | 4,212 | (46) | * | 4,212 | (46) | — | — | |||||||||||||||||||||
Scott Boilen |
11,820 | — | — | 11,820 | * | 11,820 | — | — | ||||||||||||||||||||||||
Patrick Borchard |
4,586 | (47) | — | — | 4,586 | (47) | * | 4,586 | (47) | — | — | |||||||||||||||||||||
Brendan Steer & Stephanie Steer JT WROS |
5,000 | — | — | 5,000 | * | 5,000 | — | — | ||||||||||||||||||||||||
Bret Herman & Karen Herman JT WROS |
3,500 | — | — | 3,500 | * | 3,500 | — | — | ||||||||||||||||||||||||
Paul Brinberg |
28,686 | — | — | 28,686 | * | 9,456 | 19,230 | * | ||||||||||||||||||||||||
Brookdale International Partners L.P. |
100,000 | — | — | 100,000 | * | 100,000 | — | — | ||||||||||||||||||||||||
Greg Buchholz |
21,056 | (48) | — | — | 21,056 | (48) | * | 21,056 | (48) | — | — | |||||||||||||||||||||
Robert Buzzell |
4,212 | (49) | — | — | 4,212 | (49) | * | 4,212 | (49) | — | — | |||||||||||||||||||||
Calypso Investment Partners LLC |
2,105 | (50) | — | — | 2,105 | (50) | * | 2,105 | (50) | — | — | |||||||||||||||||||||
Cama Plan Administrator FBO Richard Finder IRA |
6,317 | (51) | — | — | 6,317 | (51) | * | 6,317 | (51) | — | — | |||||||||||||||||||||
Cambridge Information Group 1 LLC |
23,641 | — | — | 23,641 | * | 23,641 | — | — | ||||||||||||||||||||||||
Michael Campbell |
2,500 | — | — | 2,500 | * | 2,500 | — | — | ||||||||||||||||||||||||
Cari L. Feehan 2012 FamTr Cari L. Feehan TTEE |
5,265 | (52) | — | — | 5,265 | (52) | * | 5,265 | (52) | — | — | |||||||||||||||||||||
David Carroll |
269,931 | (53) | 106,384 | 106,384 | 376,315 | (53) | 1.73 | % | 376,315 | (53) | — | — | ||||||||||||||||||||
Cascade Oak Ventures, LLC |
2,364 | — | — | 2,364 | * | 2,364 | — | — | ||||||||||||||||||||||||
Cerba Holdings LLC |
21,056 | (54) | — | — | 21,056 | (54) | * | 21,056 | (54) | — | — | |||||||||||||||||||||
Chad C. Feehan 2012 Fam Tr Chad C. Feehan TTEE |
5,264 | (55) | — | — | 5,264 | (55) | * | 5,264 | (55) | — | — | |||||||||||||||||||||
David Chaimovitz |
8,212 | (56) | — | — | 8,212 | (56) | * | 8,212 | (56) | — | — | |||||||||||||||||||||
Billy Chan |
6,317 | (57) | — | — | 6,317 | (57) | * | 6,317 | (57) | — | — | |||||||||||||||||||||
Kathe Kramer Chase |
11,820 | — | — | 11,820 | * | 11,820 | — | — | ||||||||||||||||||||||||
CHD3 LLC ADK Series |
63,167 | (58) | — | — | 63,167 | (58) | * | 63,167 | (58) | — | — | |||||||||||||||||||||
Christopher S Barry 2012 Family Trust |
21,056 | (59) | — | — | 21,056 | (59) | * | 21,056 | (59) | — | — | |||||||||||||||||||||
William R. Cline Jr. |
23,641 | — | — | 23,641 | * | 23,641 | — | — |
Prior to Resale |
After Resale |
|||||||||||||||||||||||||||||||
Name of Selling Stockholder |
Number of Shares of Common Stock Beneficially Owned Prior to Exchange |
OP Units Beneficially Owned Prior to Exchange |
Maximum Number of Shares Issuable upon Exchange Registered Hereby |
Shares Beneficially Owned Following the Exchange |
Percentage of All Shares of Common Stock(1) |
Number of Shares of Common Stock Being Offered |
Number of Shares of Common Stock Beneficially Owned |
Percentage of All Shares of Common Stock(2) |
||||||||||||||||||||||||
Cohen & Cohen |
3,158 | (60) | — | — | 3,158 | (60) | * | 3,158 | (60) | — | — | |||||||||||||||||||||
Justin Cohen |
3,158 | (61) | — | — | 3,158 | (61) | * | 3,158 | (61) | — | — | |||||||||||||||||||||
Brian Coleman |
10,528 | (62) | — | — | 10,528 | (62) | * | 10,528 | (62) | — | — | |||||||||||||||||||||
Peter E. Coleman |
42,111 | (63) | — | — | 42,111 | (63) | * | 42,111 | (63) | — | — | |||||||||||||||||||||
Collins Family LLC |
21,056 | (64) | — | — | 21,056 | (64) | * | 21,056 | (64) | — | — | |||||||||||||||||||||
Richard S. Conen |
4,212 | (65) | — | — | 4,212 | (65) | * | 4,212 | (65) | — | — | |||||||||||||||||||||
Conexxion Investments, LLC |
11,820 | — | — | 11,820 | * | 11,820 | — | — | ||||||||||||||||||||||||
Anthony Coniglio |
586,641 | (66) | — | — | 586,641 | (66) | 2.74 | % | 586,641 | (66) | — | — | ||||||||||||||||||||
Craig Effron & Caryn Effron JT Ten WROS |
11,820 | — | — | 11,820 | * | 11,820 | — | — | ||||||||||||||||||||||||
CREefer Ventures, LLC. |
8,422 | (67) | — | — | 8,422 | (67) | * | 8,422 | (67) | — | — | |||||||||||||||||||||
Jesse Criz |
2,105 | (68) | — | — | 2,105 | (68) | * | 2,105 | (68) | — | — | |||||||||||||||||||||
Dacien D. Barry 2012 Family Trust |
21,056 | (69) | — | — | 21,056 | (69) | * | 21,056 | (69) | — | — | |||||||||||||||||||||
Stephen Dailey |
4,728 | — | — | 4,728 | * | 4,728 | — | — | ||||||||||||||||||||||||
Daniel Joel Gumbiner Revocable Trust Dated February 1 |
5,264 | (70) | — | — | 5,264 | (70) | * | 5,264 | (70) | — | — | |||||||||||||||||||||
Ronald Clinton Darby |
8,422 | (71) | — | — | 8,422 | (71) | * | 8,422 | (71) | — | — | |||||||||||||||||||||
Darryl Shellhamer & Susan Shellhamer JTWROS |
5,000 | — | — | 5,000 | * | 5,000 | — | — | ||||||||||||||||||||||||
David Abatemarco& Tracy Abatemarco JT TEN WROS |
473 | — | — | 473 | * | 473 | — | — | ||||||||||||||||||||||||
David Fish21st Century Trust |
14,739 | (72) | — | — | 14,739 | (72) | * | 14,739 | (72) | — | — | |||||||||||||||||||||
Anthony B. Davis |
21,056 | (73) | — | — | 21,056 | (73) | * | 21,056 | (73) | — | — | |||||||||||||||||||||
Robert A. Dawson |
2,365 | — | — | 2,365 | * | 2,365 | — | — | ||||||||||||||||||||||||
DDC Enterprises Group LLC |
4,632 | (74) | — | — | 4,632 | (74) | * | 4,632 | (74) | — | — | |||||||||||||||||||||
Decurion Group, LLC |
25,000 | — | — | 25,000 | * | 25,000 | — | — | ||||||||||||||||||||||||
Paul Delaney |
14,184 | — | — | 14,184 | * | 14,184 | — | — | ||||||||||||||||||||||||
Joseph Delvecchio |
11,820 | — | — | 11,820 | * | 11,820 | — | — | ||||||||||||||||||||||||
Michael Derisi |
2,364 |