As
filed with the U.S. Securities and Exchange Commission on January 13, 2021.
Registration
No. 333-[ ]
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-1
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Harbor
Custom Development, Inc.
(Exact
Name of Registrant as Specified in Its Charter)
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Washington
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1531
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46-4827436
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(State
or Other Jurisdiction of
Incorporation
or Organization)
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(Primary
Standard Industrial
Classification
Code Number)
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(I.R.S.
Employer
Identification
Number)
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11505
Burnham Dr., Suite 301
Gig
Harbor, Washington 98332
(253)
649-0636
(Address,
including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
Sterling
Griffin, Chief Executive Officer and President
Harbor
Custom Development, Inc.
11505
Burnham Dr., Suite 301
Gig
Harbor, Washington 98332
(253)
649-0636
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
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Lynne
Bolduc, Esq.
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Anthony
Marsico, Esq.
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Fitzgerald
Yap Kreditor, LLP
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Dorsey
& Whitney LLP
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2
Park Plaza, Suite 850
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51
West 52nd Street
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Irvine,
California 92614
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New
York, NY 10019
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Tel:
(949) 788-8900
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Tel:
(212) 415-9214
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Fax:
(949) 788-8980
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Fax:
(212) 953-7201
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Approximate
date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration
Statement.
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933 check the following box: [ ]
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. [X] (File No. 333-251946)
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If
this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
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.
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Large
accelerated filer
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[ ]
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Accelerated
filer
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[ ]
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Non-accelerated
filer
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[ ]
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Smaller
reporting company
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[X]
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Emerging
growth company
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[X]
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
[ ]
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities
to be Registered
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Proposed Maximum
Aggregate Offering
Price(1)
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Amount of
Registration
Fees(2)
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Common Stock, no par value per share(3)
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$
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4,571,250
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$
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499
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Underwriters’ Warrants to purchase Common Stock(4)
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$
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–
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$
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–
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Common Stock underlying Underwriters’ Warrants(5)
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$
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248,440
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$
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28
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Total Registration Fee
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$
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4,819,690
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$
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527
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(6)
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(1)
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Estimated
solely for purposes of calculating the registration fee in accordance with Rule 457(o) under the Securities Act of 1933, as
amended. Pursuant to Rule 416 under the Securities Act of 1933, as amended, the shares of common stock registered hereby also
include an indeterminate number of additional shares of common stock as may from time to time become issuable by reason of
stock splits, stock dividends, recapitalizations, or other similar transactions
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(2)
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Calculated
pursuant to Rule 457(o) based on an estimate of the proposed maximum aggregate offering price of the securities registered
hereunder to be sold by the registrant.
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(3)
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Represents
only the additional number of securities being registered. Does not include the securities that the Registrant previously
registered on the Registration Statement on Form S-1 (File No. 333-251946).
Includes the aggregate offering price of additional shares of common stock that the underwriters have the option to purchase
from the Registrant in this offering to cover over-allotments, if any.
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(4)
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No
registration fee is required pursuant to Rule 457(g) under the Securities Act.
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(5)
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Estimated
solely for the purposes of calculating the registration fee pursuant to Rule 457(g) under
the Securities Act of 1933, as amended. The underwriters’ warrants are exercisable
at a per-share exercise price equal to 125% of the per-share public offering price. The
proposed maximum aggregate offering price of the underwriters’ warrants is $1,500,000,
which is equal to 125% of $1,200,000 (5% of $24,000,000). Represents
only the additional number of securities being registered. Does not include the securities
that the Registrant previously registered on Registration Statement on Form S-1 (File
No. 333-251946).
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(6)
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The
Registrant previously registered securities having a proposed maximum aggregate offering
price of $24,281,000 on its Registration Statement on Form S-1 (File No. 333-251946),
which was declared effective by the Securities and Exchange Commission on January 12,
2021. In accordance with Rule 462(b) under the Securities Act, an additional number of
securities having a proposed maximum offering price of $4,819,690 is hereby registered,
which includes securities issuable upon the exercise of the underwriters’ over-allotment
option.
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The Registration Statement shall become
effective upon filing in accordance with Rule 462(b) promulgated under the Securities Act of 1933, as amended.
Explanatory Note and Incorporation
by Reference
This Registration Statement is being
filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the “Securities Act”), for the sole purpose
of increasing the maximum aggregate offering price of common stock offered by Harbor Custom Development, Inc. (the “Registrant”)
by $4,819,690, consisting of 4,875,000 shares of common stock, 1,200,000 of which are subject to purchase upon exercise of the
underwriters’ option to purchase additional shares of the Registrant’s common stock, and 175,000 of which represent
the common stock underlying the warrants issued to representatives of the underwriter. This Registration Statement relates to
the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-251946) (the “Prior Registration Statement”),
initially filed by the Registrant on January 7, 2021 and declared effective by the Securities and Exchange Commission (the “Commission”)
on January 12, 2021. The required opinion of counsel and related consent and accountant’s consent are attached hereto and
filed herewith. Pursuant to Rule 462(b), the contents of the Prior Registration Statement, including the exhibits thereto, are
incorporated by reference into this Registration Statement.
CERTIFICATION
The Registrant hereby certifies to
the Commission that (1) it has instructed its bank to pay the filing fee set forth on the cover page of this Registration Statement
by a wire transfer of such amount to the Commission’s account at U.S. Bank as soon as practicable (but no later than the
close of business as of January 13, 2021); (2) it will not revoke such instructions; (3) it has sufficient funds in the relevant
account to cover the amount of such filing fee; and (4) it will confirm receipt of such instructions by its bank during regular
business hours no later than January 13, 2021.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
16. Exhibits and Financial Statement Schedules.
(a) All exhibits filed with or incorporated
by reference in the Prior Registration Statement on Form S-1 (File No. 333-251946) are incorporated by reference into, and shall
be deemed a part of, this Registration Statement, and the following additional exhibits are filed herewith, as part of this Registration
Statement.
EXHIBIT
INDEX
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of Gig Harbor, State of Washington, on January 12,
2021.
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Harbor
Custom Development, Inc.
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By:
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/s/
Sterling Griffin
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Sterling
Griffin
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Chief
Executive Officer, President, and Chairman of the Board of Directors
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Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-1 has been signed by the
following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/
Sterling Griffin
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Chief
Executive Officer, President, and Chairman of the Board of Directors
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January
12, 2021
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Sterling
Griffin
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(Principal
Executive Officer)
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*
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Chief
Financial Officer
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January
12, 2021
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Lynda
Meadows
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(Principal
Financial Officer and Principal Accounting Officer)
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*
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Director
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January
12, 2021
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Robb
Kenyon
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*
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Director
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January
12, 2021
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Dennis
Wong
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*
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Director
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January
12, 2021
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Larry
Swets
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*
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Director
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January
12, 2021
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Wally
Walker
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By:
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/s/
Sterling Griffin
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Sterling Griffin
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Attorney-in-Fact
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Exhibit
5.1
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ATTORNEYS
AT LAW
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January
12, 2021
Board
of Directors
Harbor
Custom Development, Inc.
11505
Burnham Dr., Suite 301
Gig
Harbor, WA 98332
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Michael
J. FitzGerald*
Eoin
L. Kreditor*
Eric
P. Francisconi
Lynne
Bolduc
George
Vausher, LLM, CPA‡
Eric
D. Dean
John
C. Clough
David
M. Lawrence
Natalie
N. FitzGerald
Brook
John Changala
Josephine Rachelle Aranda
Derek
R. Guizado
John
M. Marston†
Deborah
M. Rosenthal†
Maria
M. Rullo†
Larry
S. Zeman†
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Re:
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Securities
Registered Under Registration Statement on Form S-1 Pursuant to 462(b);
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Ladies
and Gentlemen:
We
have acted as counsel to Harbor Custom Development, Inc., a Washington corporation (the “Company”), in connection
with the preparation and filing by the Company with the Securities and Exchange Commission (the “Commission” pursuant
to Rule 462(b) under the Securities Act of 1933, as amended (the “Act”) of a registration statement on Form S-1 (the
“462(b) Registration Statement”) which relates to the Company’s Registration Statement on Form S-1 (File No.
333-251946) (the “Registration Statement”) initially filed by the Company on January 7, 2021 and declared effective
by the Commission on January 12, 2021.
The
462(b) Registration Statement relates to the offer and sale by the Company of (i) up to an additional 3,500,000 shares of the
Company’s common stock, no par value (the “Common Stock”); (ii) up to 1,200,000 additional shares of Common
Stock (the “Over-Allotment Shares”) for which the underwriters have been granted an over-allotment option; (iii) underwriter’s
warrants to purchase up to a number of shares of Common Stock equal to 5% of the number of Shares sold pursuant to the Registration
Statement and 462(b) Registration Statement, at a per share exercise price equal to 125% of the public offering price per share
(the “Underwriter Warrants”), and (v) all shares of Common Stock issuable upon exercise of the Underwriter Warrants
(the “Warrant Shares”) (collectively, the “Shares”).
This
opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion
is expressed herein as to any matter pertaining to the contents of the 462(b) Registration Statement or related Prospectus, other
than as expressly stated herein with respect to the issue of the Shares.
As
such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this
letter. We have relied upon certificates and other assurances of officers of the Company and others as to factual matters without
having independently verified such factual matters. We are opining herein as to the Washington Business Corporation Act of the
State of Washington and federal laws of the United States and we express no opinion with respect to any other laws.
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January
12, 2021
Page
2
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Subject
to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Shares shall
have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the purchasers,
and have been issued by the Company against payment therefor in total numbers that do not exceed the total number of shares available
under the Company’s certificate of incorporation and in the circumstances contemplated by the form of underwriting agreement
most recently filed as an exhibit to the Registration Statement, the issue and sale of the Shares will have been duly authorized
by all necessary corporate action of the Company, and the Shares will be validly issued, fully paid and nonassessable. In rendering
the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated
shares provided in the Washington Business Corporation Act of the State of Washington.
This
opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled
to rely upon it pursuant to the applicable provisions of the Act. We consent to the filing of this opinion as an exhibit to the
462(b) Registration Statement and to the reference to our firm in the Prospectus under the heading “Legal Matters.”
In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section
7 of the Act or the rules and regulations of the Commission thereunder.
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Sincerely,
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/s/
Lynne Bolduc
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Lynne
Bolduc, Esq.
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