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S-8
WASHINGTON PRIME GROUP INC. filed this Form S-8 on 05/20/2019
Entire Document
 
wpg20190517_s8.htm

 

As filed with the Securities and Exchange Commission on May 20, 2019

Registration No. 333-      

 



 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C.  20549

 

FORM S-8

 

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

WASHINGTON PRIME GROUP INC.

(Exact name of Registrant as specified in its
charter)

 

Indiana

 

46-4323686

(State or other jurisdiction of
incorporation or organization)

 

(I.R.S. Employer Identification No.)

 

180 East Broad Street

Columbus, Ohio 43215
(Address of principal executive offices) (Zip Code)

 

2019 Washington Prime Group, L.P. Stock Incentive Plan

(Full title of the Plan)

 

 


 

Robert P. Demchak
180 East Broad Street

Columbus, Ohio 43215

(Name and address of agent for service)

 

 


 

(614) 621-9000

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

 

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 securities to be registered

 

Amount to be
registered (1)

 

Proposed maximum
offering price per
share

 

Proposed maximum
aggregate offering
price

 

Amount of
registration
fee

 

Common stock, $0.0001 par value per share, to be issued under the 2019 Washington Prime Group, L.P. Stock Incentive Plan

 

7,290,000

$

4.90

(2)

$

35,721,000

(2)

$

4,329.39

(2)

(1)

Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also be deemed to register any additional securities to be offered or issued in connection with the provisions of the 2019 Washington Prime Group, L.P. Stock Incentive Plan (the “Plan”) that provide for adjustments in the amount of securities to be offered or issued to prevent dilution resulting from share splits, share dividends or similar transactions.

 

(2)

Pursuant to Rule 457(h) under the Securities Act, the maximum offering price, per share and in the aggregate, and the registration fee were calculated based upon the average of the high and low prices of Washington Prime Group Inc. common stock as reported by the New York Stock Exchange on May 16, 2019.

 

 

 

 

EXPLANATORY NOTE

 

The purpose of this Form S-8 Registration Statement (the “Registration Statement”) is to register shares of Washington Prime Group Inc. (“WPG,” the “Company” or the “Registrant”) common stock, par value $0.0001 per share (the “Common Shares”), that may be offered pursuant to the 2019 Washington Prime Group, L.P. Stock Incentive Plan (the “Plan”).

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428(b)(1) under the Securities Act, and the introductory note to Part I of Form S-8.  The documents containing the information specified in Part I will be delivered to the participants in the Plan as required by Rule 428(b)(1).

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

ITEM 3.               INCORPORATION OF DOCUMENTS BY REFERENCE.

 

The following documents, which have been filed with the U.S. Securities and Exchange Commission (the “Commission”) by the Company, are incorporated in this Registration Statement by reference:

 

 

1.

The Company’s Annual Report on Form 10-K for its fiscal year ended December 31, 2018, filed with the Commission on February 21, 2019 (the “Annual Report”), including the portions of the Company’s Definitive Proxy Statement on Schedule 14A filed with the Commission on March 29, 2019 incorporated by reference into the Annual Report;

 

 

2.

The Quarterly Report on Form 10-Q filed by the Company with the Commission on April 25, 2019;

 

 

 

 

 

3.

The Current Reports on Form 8-K filed by the Company with the Commission on February 8, 2019, February 15, 2019, February 22, 2019, March 22, 2019, April 22, 2019, and May 20, 2019; and

 

 

4.

The description of WPG’s Common Shares included in the Information Statement, filed as Exhibit 99.1 to the Form 10 (Commission File No. 001-36252) initially filed on December 24, 2013, as amended by Amendment No. 1 on February 12, 2014, Amendment No. 2 on March 24, 2014, and Amendment No. 3 on April 21, 2014, under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (the “Form 10”) and any amendments, reports or other filings filed with the Commission for the purpose of updating such description.

 

All documents filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Registration Statement (other than any such documents or portions thereof that are furnished under Item 2.02 or Item 7.01 of a Current Report on Form 8-K, unless otherwise indicated therein, including any exhibits included with such Items), prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.

 

Any statement contained in this Registration Statement or in a document incorporated or deemed to be 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 or incorporated by reference herein or in any subsequently filed document which is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

ITEM 4.

DESCRIPTION OF SECURITIES.

 

Not applicable.

 

ITEM 5.

INTERESTS OF NAMED EXPERTS AND COUNSEL.

 

Not applicable.

 

ITEM 6.

INDEMNIFICATION OF DIRECTORS AND OFFICERS.

 

Under Chapter 35 of the Indiana Business Corporation Law (the “IBCL”), directors are required to discharge their duties in good faith, with the care that an ordinarily prudent person in a like position would exercise under similar circumstances and in a manner that the directors reasonably believe to be in the best interests of the corporation. Under the IBCL, a director is not liable for any action taken as a director, or any failure to act, regardless of the nature of the alleged breach of duty (including alleged breaches of the duty of care, the duty of loyalty, and the duty of good faith) unless the director has breached or failed to perform the duties of the director’s office and the breach or failure to perform constitutes willful misconduct or recklessness. This exculpation from liability under the IBCL does not affect the liability of directors for violations of the federal securities laws.

 

The Company’s officers and directors are indemnified under Indiana law, the Company’s Amended and Restated Articles of Incorporation (the “Articles of Incorporation”) and its Amended and Restated Bylaws, as amended (the “Bylaws”), as well as the Amended and Restated Limited Partnership Agreement, as amended (the “Partnership Agreement”) of Washington Prime Group, L.P. (the “Operating Partnership”), against certain liabilities.

 

Chapter 37 of the Indiana Business Corporation law (the “IBCL”) authorizes every Indiana corporation to indemnify its officers and directors, subject to the limitations and procedures therein, against liability for judgments, settlements, penalties, fines and reasonable expenses incurred in connection with threatened, pending or completed actions, suits or proceedings, whether civil, criminal, administrative or investigative and whether formal or informal, to which the officers or directors are made a party by reason of their relationship to the corporation. Officers and directors may be indemnified where they have acted in good faith and, in the case of conduct in their official capacity, they reasonably believed the conduct was in the corporation’s best interests, and in all other cases, they reasonably believed the conduct was not against the best interests of the corporation, and in the case of criminal proceedings they either had reasonable cause to believe the conduct was lawful or there was no reasonable cause to believe the conduct was unlawful. Chapter 37 of the IBCL also requires every Indiana corporation to indemnify any of its officers or directors (unless limited by the articles of incorporation of the corporation) who were wholly successful, on the merits or otherwise, in the defense of any such proceeding against reasonable expenses incurred in connection with the proceeding.

 

 

 

 

An Indiana corporation may also pay for or reimburse the reasonable expenses incurred by an officer or director who is a party to a proceeding in advance of final disposition of the proceeding if such individual furnishes the corporation a written affirmation of his or her good faith belief that he or she has met the required standard of conduct and a written undertaking to repay the advance if it is ultimately determined that he or she did not meet the required standard of conduct, and a determination is made that the facts then known to those making the determination would not preclude indemnification under Chapter 37.

 

Chapter 37 of the IBCL states that the indemnification provided for therein is not exclusive of any other rights to which a person may be entitled under the articles of incorporation, bylaws or resolutions of the board of directors or shareholders.

 

The Company’s Articles of Incorporation and Bylaws provide for indemnification of its directors and officers, to the fullest extent permitted by the IBCL, as well as for advancement of expenses. The Company has also entered into indemnification agreements with its directors and executive officers providing such persons with indemnification, to the fullest extent permitted by the IBCL, as well as for advancement of expenses.

 

In addition, the Company has a directors’ and officers’ liability and company reimbursement policy that insures against certain liabilities, subject to applicable retentions.

 

The Partnership Agreement provides that the Operating Partnership is required to indemnify the Company and is also required to indemnify the Company’s officers and directors to the same extent such individuals would be indemnified by the Company pursuant to the Articles of Incorporation; provided, however, that no partner of the Operating Partnership will have any personal liability with respect to such indemnification and any such indemnification is to be satisfied solely out of the assets of the Operating Partnership. 

 

ITEM 7.

EXEMPTION FROM REGISTRATION CLAIMED.

 

Not applicable.

 

ITEM 8.

EXHIBITS.

 

The Exhibits to this Registration Statement are listed in the Exhibit Index preceding the signature page of this Registration Statement, which Exhibit Index is incorporated herein by reference.

 

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;

 

 

(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 a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and

 

 

 

 

 

(iii)

To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in the Registration Statement;

 

provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) above 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 Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the 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 Commission 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.

 

 

 

 

EXHIBIT INDEX

 

Exhibit No.

 

Description

 

 

 

 

 

 

4.1

 

Amended and Restated Articles of Incorporation of Washington Prime Group, Inc. (incorporated by reference to Form 8-K filed on May 22, 2017).

     

4.2

 

Amended and Restated Bylaws of Washington Prime Group Inc., effective August 30, 2016 (incorporated by reference to Form 8-K filed on September 2, 2016).

     

4.3

 

Amended and Restated Limited Partnership Agreement of Washington Prime Group, L.P. (incorporated by reference to Form 8‑K filed on May 29, 2014).

     
4.4   Amendment No. 1 to Amended and Restated Limited Partnership Agreement of Washington Prime Group, L.P. dated as of January 14, 2015, setting forth the Terms of Series G Preferred Units (incorporated by reference to Form 10-K filed February 26, 2015).
 

 

 

4.5

 

Amendment No. 2 to Amended and Restated Limited Partnership Agreement of Washington Prime Group, L.P. dated as of January 14, 2015, setting forth the Terms of Series H Preferred Units (incorporated by reference to Form 10‑K filed February 26, 2015).

     

4.6

 

Amendment No. 3 to Amended and Restated Limited Partnership Agreement of Washington Prime Group, L.P. dated as of January 14, 2015, setting forth the Terms of Series I Preferred Units (incorporated by reference to Form 10‑K filed February 26, 2015).

     

4.7

 

Amendment No. 4 to Amended and Restated Limited Partnership Agreement of Washington Prime Group, L.P. dated as of January 14, 2015, setting forth the Terms of Series I‑1 Preferred Units (incorporated by reference to Form 10‑K filed February 26, 2015).

     

4.8

 

2019 Washington Prime Group, L.P. Stock Incentive Plan (incorporated by reference to Form 8-K filed on May 20, 2019).

     

5.1

 

Opinion of Faegre Baker Daniels LLP.*

 

 

 

23.1

 

Consent of Ernst & Young LLP.*

 

 

 

23.2

 

Consent of Faegre Baker Daniels LLP (contained in Exhibit 5.1 to this Registration Statement).*

 

 

 

24.1

 

Powers of Attorney (included on signature page of this Registration Statement).*

 


* Filed herewith.

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, 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 Indianapolis, Indiana, on May 20, 2019.

 

 

WASHINGTON PRIME GROUP INC.

 

   

 

 

 

 

By:

/s/ Louis G. Conforti

 

 

Louis G. Conforti

 

 

Chief Executive Officer (Principal Executive Officer)

 

POWER OF ATTORNEY

 

Each of the undersigned directors and officers of Washington Prime Group Inc. (the “Company”) hereby constitutes and appoints Mark E. Yale and Robert P. Demchak, Esq., and each of them, as his or her true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him or her and on his or her behalf and in his or her name, place and stead, in any and all capacities, to sign, execute and to affix his or her seal to and file with the U.S. Securities and Exchange Commission (or any other governmental or regulatory authority) any and all amendments (including pre-effective and post-effective amendments and Registration Statements filed pursuant to Rule 462 under the Securities Act of 1933) to this Registration Statement, with all exhibits and any and all documents required to be filed with respect thereto, granting unto said attorney, and each of them, full power and authority to do and to perform each and every act and thing requisite and necessary to be done in order to effectuate the same as fully to all intents and purposes as he himself or she herself might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, 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 indicated on May 20, 2019:

 

/s/ Louis G. Conforti

 

Louis G. Conforti

 

Chief Executive Officer and Director

 

(Principal Executive Officer)

 

   
   
/s/ Robert J. Laikin  

Robert J. Laikin

 

Chairman of the Board

 

 

 

 

/s/ J. Taggart Birge

 

J. Taggart Birge

 

Director

 

 

/s/ John J. Dillon III

 

John J. Dillon III

 

Director

 

 

 

 

 

 

/s/ John F. Levy

 

John F. Levy

 

Director

 

 

 

/s/ Jacquelyn Soffer

 

Jacquelyn Soffer

 

Director

 

 

 /s/ Sheryl G. von Blucher

 

Sheryl G. von Blucher

 

Director

 

 

 

/s/ Mark E. Yale

 

Mark E. Yale

 

Executive Vice President and Chief Financial Officer

 

(Principal Financial Officer)

 

 

 

 /s/ Melissa A. Indest

 

Melissa A. Indest

Executive Vice President, Finance and Chief Accounting

Officer (Principal Accounting Officer)

 

 

 

ex_145411.htm

EXHIBIT 5.1

 

 

 

 

Faegre Baker Daniels LLP

600 East 96th Street  Suite 600

Indianapolis  Indiana 46240-3789

Phone +1 317 569 9600

Fax +1 317 569 4800

 

 

May 20, 2019

Washington Prime Group Inc. 
180 East Broad Street
Columbus, Ohio 43215

 

      Re: Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as counsel to Washington Prime Group Inc., an Indiana corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) of the Company’s Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”), registering the offer and sale of up to 7,290,000 shares of the Company’s common stock, par value $0.0001 per share (the “Shares”), pursuant to the 2019 Washington Prime Group, L.P. Stock Incentive Plan (the “Plan”).

 

For purposes of this opinion letter, we have examined the Plan, the Registration Statement, the Amended and Restated Articles of Incorporation of the Company, as currently in effect, the Amended and Restated Bylaws of the Company, as currently in effect, and the resolutions of the Company’s Board of Directors authorizing the issuance of the Shares. We have also examined a certificate of the Secretary of the Company dated the date hereof (the “Certificate”) and originals, or copies certified or otherwise authenticated to our satisfaction, of such corporate records and other records, agreements, instruments, certificates of public officials and documents as we have deemed necessary as a basis for the opinions hereinafter expressed and have made such examination of statutes and decisions and reviewed such questions of law as we have deemed relevant and necessary in connection with the opinions hereinafter expressed. As to facts material to this opinion letter, we have relied upon certificates, statements or representations of public officials, of officers and representatives of the Company (including the Certificate) and of others, without any independent verification thereof.

 

In rendering the opinions set forth below, we have assumed: (i) the legal capacity of all natural persons; (ii) the genuineness of all signatures; (iii) the authenticity of all documents submitted to us as originals; (iv) the conformity to original documents of all documents submitted to us as certified, conformed, photostatic or facsimile copies; (v) the authenticity of the originals of such latter documents; (vi) the truth, accuracy and completeness of the information, representations and warranties contained in the public records, agreements, documents, instruments, certificates and other records we have reviewed; and (vii) the absence of any undisclosed modifications to the agreements and instruments reviewed by us. We have also assumed that the Company’s board of directors, or a duly authorized committee thereof, will have approved the issuance of each award under the Plan prior to the issuance thereof.

 

 

 

 

Based on and subject to the foregoing and to the other qualifications, assumptions and limitations set forth herein, we are of the opinion that all necessary corporate action on the part of the Company has been taken to authorize the issuance and sale of the Shares to be issued in accordance with the Plan and that, when (a) the Shares have been issued and sold as contemplated in the Registration Statement and related prospectus and in accordance with the Plan and any applicable award agreement, and (b) where applicable, the consideration for the Shares specified in the Plan and any applicable award agreement has been received by the Company, the Shares will be validly issued, fully paid and nonassessable.

 

We do not express any opinion herein with respect to the laws of any jurisdiction other than, subject to the limitations and assumptions contained herein, the laws of the State of Indiana.

 

This opinion speaks only as of the date the Registration Statement becomes effective under the Act, and we assume no obligation to revise or supplement this opinion thereafter. This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.

 

 

 

Very truly yours,

 

FAEGRE BAKER DANIELS LLP

 

 

By:      /s/ Janelle Blankenship                             

           Janelle Blankenship, Partner

 

 

ex_145412.htm

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2019 Washington Prime Group, L.P. Stock Incentive Plan of Washington Prime Group Inc. of our reports dated February 21, 2019, with respect to the consolidated financial statements and schedule of Washington Prime Group Inc., and the effectiveness of internal control over financial reporting of Washington Prime Group Inc., included in its Annual Report (Form 10-K) for the year ended December 31, 2018, filed with the Securities and Exchange Commission. 

 

/s/ Ernst & Young LLP

 

Indianapolis, Indiana

May 20, 2019

 

©2013- WASHINGTON PRIME GROUP