As filed with the Securities and Exchange Commission on August 12, 2021.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HIGHLANDS REIT, INC.
(Exact name of registrant as specified in its charter)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Maryland
|
|
81-0862795
|
|
(State or other jurisdiction of
|
|
(I.R.S. Employer
|
|
incorporation or organization)
|
|
Identification No.)
|
332 S Michigan Avenue, Ninth Floor
Chicago, Illinois 60604
(312) 583-7990
(Address of Principal Executive Offices)
HIGHLANDS REIT, INC. 2016 INCENTIVE AWARD PLAN
(Full title of the plan)
Richard Vance
President and Chief Executive Officer
Highlands REIT, Inc.
332 S Michigan Avenue, Ninth Floor
Chicago, Illinois 60604
(Name and address of agent for service)
(312) 583-7990
(Telephone number, including area code, of agent for service)
Copy to:
Cathy A. Birkeland, Esq.
Latham & Watkins LLP
330 N. Wabash Avenue, Suite 2800
Chicago, Illinois 60611
(312) 876-7700
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
|
☐
|
|
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 each Class 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
|
24,000,000 shares
|
$0.29
|
$6,960,000.00
|
$759.34
|
1.This Registration Statement registers 24,000,000 shares of Common stock, par value $0.01 per share (the “Common Stock”), of Highlands REIT, Inc. (the “Company”) for issuance pursuant to the Highlands REIT, Inc. 2016 Incentive Award Plan, as amended (the “Plan”).
Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers any additional shares of the Company’s Common Stock that may become issuable under the Plan by reason of any substitutions or adjustments to shares to account for any change in corporate capitalization, such as a merger, consolidation, reorganization, recapitalization, separation, partial or complete liquidation, stock dividend, stock split, reverse stock split, split up, spin-off, or other distribution of stock or property of the Company, combination or exchange of shares of Common Stock, dividend in kind, or other like change in capital structure.
2.The Proposed Maximum Offering Price Per Share has been estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act and is based on the estimated book value per share of the Common Stock of $0.29 (based on a book value of $251,516,000 of the Registrant as of June 30, 2021 and 881,673,012 shares of Common Stock outstanding as of the date hereof). The Common Stock is not listed on a national securities exchange.
EXPLANATORY NOTE
The Company previously registered an aggregate 43,000,000 shares of its Common Stock for issuance under the Plan by a registration statement on Form S-8 (File No. 333-210952) filed with the Securities and Exchange Commission (the “SEC”) on April 27, 2016 (the “Prior Registration Statement”). On August 12, 2021, the Company’s Board of Directors increased the authorized number of shares of its Common Stock under the Plan from 43,000,000 to 67,000,000. This Registration Statement is being filed pursuant to General Instruction E to Form S-8 to register such additional 24,000,000 shares of Common Stock which may be issued under the Plan.
The contents of the Prior Registration Statement are incorporated by reference into this Registration Statement in accordance with General Instruction E to Form S-8 to the extent not modified or superseded by the information included herein or by any subsequently filed document that is incorporated by reference in this Registration Statement or the Prior Registration Statement.
PART I
Item 1. Plan Information
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information
Not required to be filed with this Registration Statement.
PART II
Item 3. Incorporation of Documents by Reference
Not required to be filed with this Registration Statement.
Item 4. Description of Securities
Not required to be filed with this Registration Statement.
Item 5. Interests of Named Experts and Counsel
Not required to be filed with this Registration Statement.
Item 6. Indemnification of Directors and Officers
Not required to be filed with this Registration Statement.
Item 7. Exemption from Registration Claimed
Not required to be filed with this Registration Statement.
Item 8. Exhibits
|
|
|
|
|
|
|
|
|
|
|
Exhibit Number
|
|
Description of Exhibit
|
|
|
|
|
4.1
|
|
Highlands REIT, Inc. 2016 Incentive Award Plan (incorporated by reference to Exhibit 99.1 to the Company’s Registration Statement on Form S-8 filed with the Securities and Exchange Commission on April 27, 2016).
|
|
|
|
|
4.2
|
|
First Amendment to Highlands REIT, Inc. 2016 Incentive Award Plan (incorporated by reference to Exhibit 10.5 to the Company’s Quarterly Report on Form 10-Q, filed with the Securities and Exchange Commission on May 10, 2016).
|
|
|
|
|
|
|
Second Amendment to Highlands REIT, Inc. 2016 Incentive Award Plan.
|
|
|
|
|
|
|
Opinion of Venable LLP.
|
|
|
|
|
|
|
|
Consent of Venable LLP (included in Exhibit 5.1).
|
|
|
|
|
|
|
Consent of Grant Thornton LLP.
|
|
|
|
|
|
|
|
Consent of KPMG LLP.
|
|
|
|
|
24.1
|
|
Power of Attorney (included in the signature pages hereto).
|
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company’s annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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 Chicago, State of Illinois, on August 12, 2021.
|
|
|
|
|
|
|
|
HIGHLANDS REIT, INC.
|
|
|
|
By:
|
/s/ Richard Vance
|
|
|
Richard Vance
|
|
|
President and Chief Executive Officer
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below, hereby constitutes and appoints Richard Vance and Robert J. Lange, and each acting alone, his or her true and lawful attorneys-in-fact and agents, with full power of resubstitution and substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments or supplements to this Registration Statement and to file the same with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing necessary or appropriate to be done with respect to this Registration Statement or any amendments or supplements hereto in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, each acting alone, or his or her substitute or substitutes, 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 their respective capacities with Highlands REIT, Inc. and on the dates indicated.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Richard Vance
|
|
President, Chief Executive Officer and Director
(Principal Executive Officer)
|
|
August 12, 2021
|
|
Richard Vance
|
|
|
|
|
|
|
|
/s/ Kimberly A. Karas
|
|
Senior Vice President, Treasurer and Controller
(Principal Financial Officer and Principal Accounting Officer)
|
|
August 12, 2021
|
|
Kimberly A. Karas
|
|
|
|
|
|
|
|
|
/s/ Jeffrey L. Shekell
|
|
Director
|
|
August 12, 2021
|
|
Jeffrey L. Shekell
|
|
|
|
|
|
|
|
/s/ R. David Turner
|
|
Director
|
|
August 12, 2021
|
|
R. David Turner
|
|
|
|
|
|
|
SECOND AMENDMENT TO
HIGHLANDS REIT, INC.
2016 INCENTIVE AWARD PLAN
THIS SECOND AMENDMENT TO THE HIGHLANDS REIT, INC. 2016 INCENTIVE AWARD PLAN (this “Second Amendment”), dated as of August 12, 2021, is made and adopted by the Board of Directors (the “Board”) of Highlands REIT, Inc., a Maryland corporation (the “Company”).
RECITALS
WHEREAS, the Company maintains the Highlands REIT, Inc. 2016 Incentive Award Plan, as amended by the First Amendment on May 9, 2016 (as so amended, the “Plan”);
WHEREAS, pursuant to Section 11.1(a) of the Plan, the Plan may be wholly or partially amended at any time or from time to time by the Board; and
WHEREAS, the Company desires to amend the Plan as set forth herein.
NOW, THEREFORE, BE IT RESOLVED, that the Plan is hereby amended as set forth herein.
AMENDMENT
1.Paragraph (a) of Section 3.1 of the Plan is hereby amended and restated in its entirety as follows:
“Subject to Section 3.1(b) and Section 11.2 hereof, the aggregate number of Shares which may be issued or transferred pursuant to Awards under the Plan is 67,000,000 Shares (the “Share Limit”). In order that the applicable regulations under the Code relating to Incentive Stock Options be satisfied, the maximum number of Shares that may be issued under the Plan upon the exercise of Incentive Stock Options shall be 67,000,000 Shares.”
2.This Second Amendment shall be and is hereby incorporated in and forms a part of the Plan.
3.Except as expressly provided herein, all terms and provisions of the Plan shall remain in full force and effect.
[Signature page follows]
I hereby certify that the foregoing Second Amendment was duly adopted by the Board of Directors of Highlands REIT, Inc. on August 12, 2021.
Executed on this 12th day of August, 2021.
|
|
|
|
|
/s/ RICHARD VANCE
|
|
Richard Vance
|
|
President and Chief Executive Officer
|
[LETTERHEAD OF VENABLE LLP]
August 12, 2021
Highlands REIT, Inc.
332 S Michigan Ave, Ninth Floor
Chicago, Illinois 60604
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have served as Maryland counsel to Highlands REIT, Inc., a Maryland corporation (the “Company”), in connection with certain matters of Maryland law arising out of the registration of 24,000,000 shares (the “Shares”) of Common Stock, $0.01 par value per share, of the Company (the “Common Stock”) issuable under the Highlands REIT, Inc. 2016 Incentive Award Plan, as amended (the “Plan”). The Shares are covered by the above-referenced Registration Statement, and all amendments thereto (the “Registration Statement”), filed by the Company with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”).
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the “Documents”):
1. The Registration Statement;
2. The charter of the Company (the “Charter”), certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
3. The Bylaws of the Company, certified as of the date hereof by an officer of the Company;
4. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
5. Resolutions adopted by the Board of Directors of the Company relating to, among other matters, the approval of an amendment to the Plan to increase the number of shares of Common Stock issuable pursuant to the Plan from 43,000,000 to 67,000,000 and the issuance of the Shares (the “Board Resolutions”), certified as of the date hereof by an officer of the Company;
6. The Plan, certified as of the date hereof by an officer of the Company;
7. A certificate executed by an officer of the Company, dated as of the date hereof; and
Highlands REIT, Inc.
August 12, 2012
Page 2
8. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1.Each individual executing any of the Documents, whether on behalf of such individual or any other person, is legally competent to do so.
2.Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.
3.Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.
4.All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.
5.The Shares will not be issued in violation of any restriction or limitation contained in Article VII of the Charter or in the Plan.
6.Upon the issuance of any of the Shares, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Charter.
7.Each option, restricted stock unit, right or other security exercisable or exchangeable for a Share pursuant to the Plan (each, an “Option”) will be duly authorized and validly granted in accordance with the Plan and exercised or exchanged in accordance with the terms of the Plan, including any stock option agreement, restricted stock agreement or other form of award agreement entered into in connection therewith, at the time of any exercise or exchange of such Option.
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
1.The Company is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.
Highlands REIT, Inc.
August 12, 2012
Page 3
2.The issuance of the Shares has been duly authorized and, when and to the extent issued in accordance with the Registration Statement, the Resolutions, the Plan and any stock option agreement, restricted stock agreement or other form of award agreement utilized under the Plan, the Shares will be validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the laws of the State of Maryland, and we do not express any opinion herein concerning federal law or the laws of any other state. We express no opinion as to the applicability or effect of any federal or state securities laws, including the securities laws of the State of Maryland, federal or state laws regarding fraudulent transfers or the laws, codes or regulations of any municipality or other local jurisdiction. To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. The opinion expressed herein is subject to the effect of any judicial decision which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.
The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the Commission as an exhibit to the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.
Very truly yours,
/s/ Venable LLP