S-8

As filed with the Securities and Exchange Commission on May 20, 2020

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

American Public Education, Inc.

(Exact name of registrant as specified in its charter)

Delaware	01-0724376
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification No.)

111 West Congress Street  Charles Town, West Virginia	25414
(Address of Principal Executive Offices)	(Zip Code)

American Public Education, Inc. 2017 Omnibus Incentive Plan

(Full title of the plan)

Thomas A. Beckett

Senior Vice President, General Counsel and Secretary

American Public Education, Inc.

111 West Congress Street

Charles Town, West Virginia 25414

(Name and address of agent for service)

304-724-3700

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

Copy to:

 William I. Intner

Hogan Lovells US LLP

100 International Drive, Suite 2000

Baltimore, Maryland 21202

(410) 659-2700

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer	¨	Accelerated filer	x
Non-accelerated filer	¨	Smaller reporting company	¨
		Emerging growth company	¨

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.  ☐

CALCULATION OF REGISTRATION FEE

Title of securities to be registered	Amount to be registered(1)	Proposed maximum offering price per share(2)	Proposed maximum aggregate offering price	Amount of registration fee
Common Stock, par value $0.01 per share	1,425,000	$31.205	$44,467,125	$5,771.83

(1) Consists of shares available for issuance under the American Public Education, Inc. 2017 Omnibus Incentive Plan (the “2017 Plan”). In accordance with Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also cover any additional shares of common stock that may be offered or issued under the 2017 Plan in connection with any stock dividend, stock split, recapitalization or similar transaction.

(2) The price stated above is estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) and Rule 457(c) promulgated under the Securities Act and is based on the average of the high and low sale prices of the common stock of American Public Education, Inc. as reported on the Nasdaq Global Select Market on May 14, 2020.

EXPLANATORY NOTE

This Registration Statement on Form S-8 (this “Registration Statement”) of American Public Education, Inc. (the “Registrant”) is being filed to register 1,425,000 additional shares of the Registrant’s common stock, par value $0.01 per share (“Common Stock”) authorized for issuance pursuant to the 2017 Plan. The Registrant previously registered shares of Common Stock under the 2017 Plan on a Registration Statement on Form S-8 (File No. 333- 218015) filed on May 15, 2017 (the “Original S-8”). On March 30, 2020, the Registrant’s Board of Directors adopted an amendment to the 2017 Plan to increase the number of shares of Common Stock available for issuance thereunder by 1,425,000 (the “Amendment”), subject to stockholder approval. The Registrant's stockholders approved the Amendment at the Registrant’s Annual Meeting of Stockholders on May 15, 2020.

As permitted by General Instruction E to Form S-8, this Registration Statement incorporates by reference the contents of the Original S-8, except to the extent supplemented, amended, or superseded by the information set forth herein.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 8. Exhibits.

Exhibit Number	Description
4.1	Form of certificate representing the Common Stock, $0.01 par value per share, of the Registrant (incorporated by reference to exhibit filed with the Registrant’s Registration Statement on Form S-1 (File No. 333-145185)).
5.1	Opinion of Hogan Lovells US LLP.
23.1	Consent of Hogan Lovells US LLP (included in Exhibit 5.1).
23.2	Consent of Deloitte & Touche, LLP, independent registered public accounting firm.
23.3	Consent of RSM US LLP, independent registered public accounting firm.
24.1	Power of Attorney (included on signature page).
99.1	American Public Education, Inc. 2017 Omnibus Incentive Plan (incorporated by reference to exhibit filed with the Registrant’s Current Report on Form 8-K (File No. 001-33810) filed with the Commission on May 15, 2017).
99.2	Amendment Number One to the American Public Education, Inc. 2017 Omnibus Incentive Plan (incorporated by reference to exhibit filed with the Registrant's Current Report on Form 8-K (File No. 001-33810) filed with the Commission on May 18, 2020.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Baltimore, State of Maryland, on May 20, 2020.

AMERICAN PUBLIC EDUCATION, INC.
By:	/s/ Richard W. Sunderland, Jr., CPA
	Richard W. Sunderland, Jr., CPA
	Executive Vice President and Chief Financial Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Angela Selden and Richard W. Sunderland, Jr., and each of them, as his or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-8 (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.

Signature	Title	Date
/s/ Angela Selden Angela Selden	President, Chief Executive Officer and Director (Principal Executive Officer)	May 20, 2020
/s/ Richard W. Sunderland, Jr., CPA Richard W. Sunderland, Jr., CPA	Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)	May 18, 2020
* Eric C. Andersen	Chairperson of the Board of Directors	May 11, 2020
* Barbara G. Fast	Director	May 11, 2020
* Jean C. Halle	Director	May 12, 2020
* Dr. Barbara Kurshan	Director	May 12, 2020
* Timothy J. Landon	Director	May 12, 2020
* William G. Robinson, Jr.	Director	May 14, 2020

*By:	/s/ Richard W. Sunderland, Jr., CPA
	Richard W. Sunderland, Jr., CPA
	Attorney in Fact

EX-5.1

Exhibit 5.1

Hogan Lovells US LLP Harbor East 100 International Drive Suite 2000 Baltimore, MD 21202 T +1 410 659 2700 F +1 410 659 2701 www.hoganlovells.com 

May 20, 2020

Board of Directors

American Public Education, Inc.

111 W. Congress Street

Charles Town, West Virginia 25414

Ladies and Gentlemen:

We are acting as counsel to American Public Education, Inc., a Delaware corporation (the “Company”), in connection with its registration statement on Form S-8 (the “Registration Statement”), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Act”) relating to the proposed offering of up to 1,425,000 newly issued shares of the common stock, par value $.01 per share (the “Common Stock”) of the Company (the “Shares”), all of which shares are issuable pursuant to the American Public Education, Inc. 2017 Omnibus Incentive Plan (the “Plan”). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.

For purposes of this opinion letter, we have examined copies of such agreements, instruments and documents as we have deemed an appropriate basis on which to render the opinions hereinafter expressed. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including pdfs). As to all matters of fact, we have relied on the representations and statements of fact made in the documents so reviewed, and we have not independently established the facts so relied on. This opinion letter is given, and all statements herein are made, in the context of the foregoing.

This opinion letter is based as to matters of law solely on the Delaware General Corporation Law, as amended. We express no opinion herein as to any other statutes, rules or regulations.

Based upon, subject to and limited by the foregoing, we are of the opinion that following (i) effectiveness of the Registration Statement, (ii) issuance of the Shares pursuant to the terms of the Plan, and (iii) receipt by the Company of the consideration for the Shares specified in the applicable resolutions of the Board of Directors and in the Plan, the Shares will be validly issued, fully paid, and nonassessable.

Hogan Lovells US LLP is a limited liability partnership registered in the District of Columbia. “Hogan Lovells” is an international legal practice that includes Hogan Lovells US LLP and Hogan Lovells International LLP, with offices in: Alicante Amsterdam Baltimore Beijing Birmingham Boston Brussels Colorado Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Houston Johannesburg London Los Angeles Luxembourg Madrid Mexico City Miami Milan Minneapolis Monterrey Moscow Munich New York Northern Virginia Paris Perth Philadelphia Rome San Francisco São Paulo Shanghai Silicon Valley Singapore Sydney Tokyo Warsaw Washington, D.C. Associated Offices: Budapest Jakarta Riyadh Shanghai FTZ Ulaanbaatar Zagreb. Business Service Centers: Johannesburg Louisville. Legal Services Center: Berlin. For more information see www.hoganlovells.com

American Public Education, Inc. - 2 - May 20, 2020

This opinion letter has been prepared for use in connection with the Registration Statement. We assume no obligation to advise of any changes in the foregoing subsequent to the effective date of the Registration Statement.

We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are an “expert” within the meaning of the Act.

Very truly yours,

/s/ Hogan Lovells US LLP

HOGAN LOVELLS US LLP

EX-23.2

Exhibit 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated March 10, 2020, relating to the consolidated financial statements of American Public Education Inc., and the effectiveness of American Public Education Inc.’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of American Public Education Inc. and subsidiaries for the year ended December 31, 2019.

/s/ DELOITTE & TOUCHE LLP

McLean, Virginia

May 20, 2020

EX-23.3

Exhibit 23.3

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in this Registration Statement on Form S-8 of American Public Education, Inc. of our report dated February 27, 2018, relating to the consolidated financial statements and the financial statement schedule of American Public Education, Inc. and Subsidiaries, appearing in the Annual Report on Form 10-K of American Public Education, Inc. and Subsidiaries for the year ended December 31, 2019.

/s/ RSM US LLP

Richmond, Virginia

May 20, 2020