As filed with the Securities and Exchange Commission on June 14, 2023
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
ARMADA HOFFLER PROPERTIES, INC.
(Exact name of registrant as specified in its charter)
Maryland | 46-1214914 | |||||||
| (State or other jurisdiction of incorporation organization) | (IRS Employer Identification Number) | |||||||
222 Central Park Avenue, Suite 2100 Virginia Beach, Virginia | 23462 | |||||||
| (Address of Principal Executive Offices) | (Zip Code) | |||||||
Armada Hoffler Properties, Inc. Amended and Restated 2013 Equity Incentive Plan
(Full title of the plan)
Louis S. Haddad
Armada Hoffler Properties, Inc.
222 Central Park Avenue, Suite 2100 Virginia Beach
Virginia 23462
(Name and address of agent for service)
(757) 366-4000
(Telephone number, including area code, of agent for service)
Copies to:
Justin R. Salon
Andrew P. Campbell
Morrison & Foerster LLP
2100 L St., NW
Suite 900
Washington, D.C. 20037
(202) 887-1500
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 | x | Accelerated filer | o | ||||||||||||||
Non-accelerated filer | o | Smaller reporting company | o | ||||||||||||||
Emerging growth company | o | ||||||||||||||||
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. o
EXPLANATORY NOTE
This Registration Statement is filed by Armada Hoffler Properties, Inc. (the “Company”) for the purpose of registering additional shares of the Company’s Common Stock, $0.01 par value per share (“Common Stock”), issuable pursuant to Amendment No. 1 (the “Amendment”) to the Company’s Amended and Restated 2013 Equity Incentive Plan (as amended by Amendment No. 1, the “Amended Plan”). On May 12, 2023, the Company filed with the Securities and Exchange Commission (the “Commission”) Supplement No. 1 to the Company’s Definitive Proxy Statement on Schedule 14A, filed with the Commission on April 21, 2023, which included a proposal to adopt the Amendment. The Amendment increases the number of shares of Common Stock reserved for issuance under the Amended Plan by 1,700,000 shares. The proposal to adopt the Amendment was approved by the Company’s stockholders on June 14, 2023. This Registration Statement registers the 1,700,000 additional shares of Common Stock available for issuance under the Amended Plan.
The 1,700,000 additional shares of Common Stock available for issuance under the Amended Plan registered pursuant to this Registration Statement are the same class as those registered on the Company’s Registration Statement on Form S-8, which was filed with the Commission on June 15, 2017 (File No. 333-218750) (the “Prior Registration Statement”), which is currently effective. Pursuant to General Instruction E to Form S-8, the contents of the Prior Registration Statement, including any amendments thereto or filings incorporated therein, are incorporated by reference except as modified, supplemented or superseded herein.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part I will be sent or given to the persons participating in the Amended Plan, as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). In accordance with the instructions to Part I of Form S-8, such documents need not be filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 promulgated under the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which the Company has previously filed with the Commission, are hereby incorporated by reference into this Registration Statement, except to the extent that such reports/documents are only “furnished” to the Commission:
1.The Company’s Annual Report on Form 10-K for the year ended December 31, 2022, filed with the Commission on February 23, 2023;
2.The Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2023, filed with the Commission on May 10, 2023;
3.The Company’s Current Reports on Form 8-K, filed with the Commission on February 28, 2023 and May 5, 2023 (solely with respect to Item 1.01);
4.The information specifically incorporated by reference into the Company’s Annual Report on Form 10-K for the year ended December 31, 2022, from the Company’s Definitive Proxy Statement on Schedule 14A,
filed with the Commission on April 21, 2023 (including Supplement No. 1 thereto, filed with the Commission on May 12, 2023); and
5.The description of Common Stock contained in the Company’s Registration Statement on Form 8-A (File No. 001-35908), filed with the Commission on May 3, 2013, pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description.
All reports and other documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be part hereof from the date of filing such documents.
Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein (or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein) modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed to constitute a part hereof, except as so modified or superseded.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Maryland law permits a Maryland corporation to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from (a) actual receipt of an improper benefit or profit in money, property or services or (b) active and deliberate dishonesty that is established by a final judgment and is material to the cause of action. The Company’s charter contains a provision which eliminates the Company’s directors’ and officers’ liability to the maximum extent permitted by Maryland law.
Maryland law requires a Maryland corporation (unless its charter provides otherwise, which the Company’s charter does not) to indemnify a director or officer who has been successful in the defense of any proceeding to which he or she is made or threatened to be made a party by reason of his or her service in that capacity. Maryland law permits a Maryland corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made or threatened to be made a party by reason of their service in those or other capacities unless it is established that: (a) the act or omission of the director or officer was material to the matter giving rise to the proceeding and (i) was committed in bad faith or (ii) was the result of active and deliberate dishonesty; (b) the director or officer actually received an improper personal benefit in money, property or services; or (c) in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. However, under Maryland law, a Maryland corporation may not indemnify for an adverse judgment in a suit by or in the right of the corporation or for a judgment of liability on the basis that personal benefit was improperly received, unless in either case a court orders indemnification and then only for expenses. In addition, Maryland law permits a Maryland corporation to advance reasonable expenses to a director or officer upon the corporation’s receipt of (a) a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation and (b) a written undertaking by him or her or on his or her behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the standard of conduct was not met.
The Company’s charter authorizes the Company, to the maximum extent permitted by Maryland law, to obligate the Company and the Company’s bylaws obligate the Company, to indemnify any present or former director or officer or any individual who, while a director or officer of the Company and at the Company’s request, serves or has served as a director, officer, partner, trustee, member or manager of another corporation, real estate investment trust, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise and who is made or threatened to be made a party to the proceeding by reason of his or her service in that capacity from and against any claim or liability to which that individual may become subject or which that individual may incur by reason of his or her service in any of the foregoing capacities and to pay or reimburse his or her reasonable expenses in advance of final disposition of a proceeding. The Company’s charter and bylaws also permit the Company to indemnify and advance expenses to any individual who served a predecessor of the Company in any of the capacities described above and any employees or agents of the Company or a predecessor of the Company.
The Company has entered into indemnification agreements with certain of its executive officers and each of its directors whereby the Company has agreed to indemnify such executive officers and directors to the fullest extent permitted by Maryland law against all expenses and liabilities, subject to limited exceptions. These indemnification agreements also provide that upon an application for indemnity by an executive officer or director to a court of appropriate jurisdiction, such court may order the Company to indemnify such executive officer or director.
Insofar as the foregoing provisions permit indemnification of directors, officer or persons controlling the Company for liability arising under the Securities Act, the Company has been informed that in the opinion of the Commission this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. | Description | |||||||
4.1 | ||||||||
Exhibit No. | Description | |||||||
4.2 | ||||||||
4.3 | ||||||||
4.4 | ||||||||
4.5 | ||||||||
4.6 | ||||||||
4.7 | ||||||||
4.8 | ||||||||
5.1* | ||||||||
10.1 | ||||||||
10.2* | ||||||||
23.1* | ||||||||
23.2* | ||||||||
24.1* | ||||||||
107* | ||||||||
*Filed herewith
Item 9. Undertakings.
(a) The undersigned registrant 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 of 1933, as amended (the “Securities Act”);
(ii) To reflect in the prospectus any facts or events arising after the effective date of the 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 a 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 periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (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 registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’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 the 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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, as amended, 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 Virginia Beach, Commonwealth of Virginia, on June 14, 2023.
ARMADA HOFFLER PROPERTIES, INC. | ||||||||
By: | /s/ LOUIS S. HADDAD | |||||||
Louis S. Haddad | ||||||||
President and Chief Executive Officer | ||||||||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Louis S. Haddad or Matthew T. Barnes-Smith and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments to the Registration Statement), and to file the same, with all exhibits thereto, and any other documents in connection therewith, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Name | Capacity | Date | ||||||||||||
/s/ DANIEL A. HOFFLER | Executive Chairman and Director | June 14, 2023 | ||||||||||||
Daniel A. Hoffler | ||||||||||||||
/s/ LOUIS S. HADDAD | President, Chief Executive Officer and Vice Chairman and Director (principle executive officer) | June 14, 2023 | ||||||||||||
Louis S. Haddad | ||||||||||||||
Chief Financial Officer (principle financial officer and principal accounting officer) | ||||||||||||||
/s/ MATTHEW T. BARNES-SMITH | June 14, 2023 | |||||||||||||
Matthew T. Barnes-Smith | ||||||||||||||
/s/ GEORGE F. ALLEN | Director | June 14, 2023 | ||||||||||||
George F. Allen | ||||||||||||||
/s/ JAMES A. CARROLL | Director | June 14, 2023 | ||||||||||||
James A. Carroll | ||||||||||||||
/s/ JAMES C. CHERRY | Director | June 14, 2023 | ||||||||||||
James C. Cherry | ||||||||||||||
/s/ DENNIS H. GARTMAN | Director | June 14, 2023 | ||||||||||||
Dennis H. Gartman | ||||||||||||||
/s/ EVA S. HARDY | Director | June 14, 2023 | ||||||||||||
Eva S. Hardy | ||||||||||||||
/s/ A. RUSSELL KIRK | Director | June 14, 2023 | ||||||||||||
A. Russell Kirk | ||||||||||||||
/s/ JOHN W. SNOW | Director | June 14, 2023 | ||||||||||||
John W. Snow | ||||||||||||||
Exhibit 5.1
June 14, 2023
Board of Directors
Armada Hoffler Properties, Inc.
222 Central Park Avenue, Suite 2100
Virginia Beach, Virginia 23462
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We are acting as counsel to Armada Hoffler Properties, Inc., a Maryland 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 “Securities Act”), relating to the proposed offering of an aggregate amount of up to 1,700,000 additional shares (the “Shares”) of the Company’s common stock, $0.01 par value per share (“Common Stock”), all of which Shares may be issued pursuant to awards under the Company’s Amended and Restated 2013 Equity Incentive Plan (as amended, the “Plan”).
As counsel for the Company, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary for the purposes of rendering this opinion and we are familiar with the proceedings taken and proposed to be taken by the Company in connection with the authorization, issuance and sale of the Shares. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity with the originals of all documents submitted to us as copies. We also have assumed that the Shares will not be issued in violation of the ownership limit contained in the Company’s Articles of Amendment and Restatement, as supplemented. 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 Maryland General Corporation Law, as amended. We express no opinion herein as to any other laws, statutes, ordinances, rules, or regulations. As used herein, the term “Maryland General Corporation Law,
as amended” includes the statutory provisions contained therein, all applicable provisions of the Maryland Constitution and reported judicial decisions interpreting these laws.
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 or a duly authorized committee thereof and the Plan, the Shares will be validly issued, fully paid and nonassessable.
This opinion letter has been prepared for use in connection with the Registration Statement. We assume no obligation to advise you of any changes in the foregoing subsequent to the effective date of the Registration Statement.
We consent to the use of this opinion as an exhibit to the Registration Statement, and we consent to the reference of our name wherever appearing in the Registration Statement and any amendments thereto. 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 Securities Act.
Very truly yours,
/s/ Morrison & Foerster LLP
Exhibit 10.2
AMENDMENT NO. 1 TO THE
ARMADA HOFFLER PROPERTIES, INC.
AMENDED AND RESTATED 2013 EQUITY INCENTIVE PLAN
This Amendment No. 1 (“Amendment No. 1”) to the Armada Hoffler Properties, Inc. Amended and Restated 2013 Equity Incentive Plan (the “Plan”), is made effective as of June 14, 2023. All capitalized terms not specifically defined in this Amendment No. 1 shall have the meanings ascribed to them in the Plan.
The Plan is hereby amended as follows:
1.A new definition is added to Article I as follows:
Amendment No. 1 Effective Date
“Amendment No. 1 Effective Date” means June 14, 2023, the date Amendment No. 1 was approved by the stockholders of the Company.
2. The text of Section 5.02(a) of the Plan is hereby amended and restated to read in its entirety as follows:
“(a) The maximum aggregate number of Common Shares that may be issued under this Plan pursuant to the exercise of Options and SARs, the grant of Stock Awards or Other Equity-Based Awards and the settlement of Performance Units and Incentive Awards is 3,400,000 shares. Other Equity-Based Awards that are LTIP Units shall reduce the maximum aggregate number of shares of Common Stock that may be issued under this Plan on a one-for-one basis, i.e., each such unit shall be treated as an award of Common Stock.”
3. The text of Section 5.04 of the Plan is hereby amended to add the following sentence:
“If SARs are settled in Common Shares, the aggregate number of Common Shares that may be issued under the Plan will be reduced by the gross number of Common Shares subject to the SAR (or the portion thereof that is exercised), not the net number of Common Shares issued.”
4. The text of Article XVII of the Plan is hereby amended and restated to read in its entirety as follows:
“No Stock Award, Performance Unit Award, Incentive Award, Option, SAR or Other Equity-Based Award may be granted under this Plan after the day before the tenth anniversary of the Amendment No. 1 Effective Date. Stock Awards, Performance Unit awards, Incentive Awards, Options, SARs and Other Equity-Based Awards granted before such date shall remain valid in accordance with their terms.”
Except to the extent amended hereby, the terms and provisions of the Plan shall remain in full force and effect.
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8 No. 333- ) pertaining to the Amended and Restated 2013 Equity Incentive Plan of Armada Hoffler Properties, Inc. of our reports dated February 23, 2023, with respect to the consolidated financial statements of Armada Hoffler Properties, Inc. and the effectiveness of internal control over financial reporting of Armada Hoffler Properties, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2022, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Richmond, VA
June 14, 2023
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Armada Hoffler Properties, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1—Newly Registered Securities
Security Type | Security Class Title | Fee Calculation Rule | Amount Registered(1) | Proposed Maximum Offering Price Per Unit(2) | Maximum Aggregate Offering Price | Fee Rate | Amount of Registration Fee | ||||||||||||||||
| Equity | Common stock, $0.01 par value per share: | ||||||||||||||||||||||
| —Armada Hoffler Properties, Inc Amended and Restated 2013 Equity Incentive Plan | Other(3) | 1,700,000 | $11.76 | $19,992,000 | $0.0001102 | $2,203.12 | |||||||||||||||||
| Total Offering Amounts | $19,992,000 | ||||||||||||||||||||||
| Total Fee Offsets | $0 | ||||||||||||||||||||||
| Net Fee Due | $2,203.12 | ||||||||||||||||||||||
(1) Represents additional shares of common stock, $0.01 par value per share (“Common Stock”), of Armada Hoffler Properties, Inc. (the “Company”) reserved for issuance under the Company’s Amended and Restated 2013 Equity Incentive Plan (as amended, the “Amended Plan”). Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers an additional indeterminate amount of shares to be offered or sold pursuant to the Amended Plan and shares that may become issuable under the Amended Plan by reason of certain corporate transactions or events, including any share dividend, share split, recapitalization or any other similar adjustment of the outstanding Common Stock.
(2) Represents the average of the high and the low prices per share of Common Stock of the Company as reported on the New York Stock Exchange on June 9, 2023.
(3) The registration fee has been computed in accordance with Rule 457(c) and (h) under the Securities Act.
_____________________________________________________________________