Securities Registration: Employee Benefit Plan (s-8)
June 15 2022 - 2:27PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on June 15, 2022
Registration
No. 333- ________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
HARBOR
CUSTOM DEVELOPMENT, INC.
(Exact
name of registrant as specified in its charter)
Washington
(State
or other jurisdiction of incorporation or organization)
46-4827436
(I.R.S.
Employer Identification Number)
1201
Pacific Avenue, Suite 1200
Tacoma,
WA 98402
(Address
of Registrant’s principal executive offices, including zip code)
2018
INCENTIVE AND NONSTATUTORY STOCK OPTION PLAN
2020
RESTRICTED STOCK PLAN
(Full
title of the Plan)
Sterling
Griffin, Chief Executive Officer and President
Harbor
Custom Development, Inc.
1201
Pacific Avenue, Suite 1200
Tacoma,
WA 98402
(253)
649-0636
(Name,
address, and telephone number of agent for service)
Copies
to:
| Lynne
Bolduc, Esq. |
| FitzGerald
Kreditor Bolduc Risbrough LLP |
| 2
Park Plaza, Suite 850 |
| Irvine,
California 92614 |
| Tel:
(949) 788-8900 |
| Fax:
(949) 788-8980 |
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 ☐
INCORPORATION
BY REFERENCE OF PRIOR REGISTRATION STATEMENT
This
Registration Statement is filed by Harbor Custom Development, Inc. (the “Registrant”) for the purpose of registering pursuant
to General Instruction E to Form S-8, 2,000,000 additional shares of the Registrant’s common stock, no par value per share (the
“Common Stock”) under an Amendment to the Registrant’s 2018 Incentive and Nonstatutory Stock Option Plan (the “Option
Plan”) and 2,000,000 additional shares of Common Stock under an Amendment to the Registrant’s 2020 Restricted Stock Plan
(the “Stock Plan” and together with the Option Plan, the “Incentive Plans”). On April 21, 2022, the Registrant
filed with the Securities and Exchange Commission (the “Commission”) a definitive proxy statement that included proposals
to, among other things, increase the number of shares available for issuance under the Incentive Plans by 2,000,000 shares of Common
Stock each. The proposals to increase the number of shares of Common Stock available for issuance under the Incentive Plans were approved
by the Registrant’s stockholders on June 1, 2022. This Registration Statement registers the 4,000,000 additional shares of Common
Stock available for issuance under the Incentive Plans.
The
additional 4,000,000 shares of Common Stock available for issuance under the Incentive Plans registered pursuant to this Registration
Statement are the same class as those included on the Registration Statement on Form S-8 filed with the Commission on June 28, 2021 (File
No. 333-257462). The contents of the aforementioned Registration Statement, including any amendments thereto or filings incorporated
therein, are incorporated herein by reference, except as modified herein.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
Registrant is subject to the informational and reporting requirements of Sections 13(a), 14, and 15(d) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), and in accordance therewith files reports, proxy statements, and other information
with the Commission. The following documents, which are on file with the Commission, are hereby incorporated by reference in, and shall
be deemed a part of, this Registration Statement (other than any such documents or portions thereof that are furnished under Item 2.02
or Item 7.01 of Form 8-K, unless otherwise indicated therein, including any exhibits included with such Items):
(a)
Amendment No. 1 to the Registrant’s Annual Report on Form 10-K/A for the year ended December 31, 2021, filed with the Commission
on May 2, 2022;
(b)
The Registrant’s Definitive Proxy Statement on Schedule 14A filed with the Commission on April 21, 2022, as supplemented on May
12, 2022;
(c)
The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, filed with the Commission on May 12, 2022;
(d)
The Registrant’s Current Reports on Form 8-K filed with the Commission on January 18, 2022; January 20, 2022; February 2, 2022;
March 10, 2022; March 15, 2022; March 17, 2022; March 24, 2022; April 13, 2022; April 21, 2022; May 12, 2022; May 13, 2022; May 16, 2022;
and June 7, 2022; and
(e)
The description of the Registrant’s Common Stock contained in the Registrant’s registration statement on Form 8-A (File No.
000-39266) filed with the Commission on April 10, 2020 under the Exchange Act, including any amendment or report filed for the purpose
of updating such description.
All
documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, 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 in this Registration Statement and to be part hereof from the date
of the filing of such documents. The Registrant is not, however, incorporating by reference any documents or portions thereof, whether
specifically listed above or filed in the future, that are not deemed “filed” with the Commission, including any information
furnished pursuant to Items 2.02 or 7.01 of Form 8-K or related exhibits furnished pursuant to Item 9.01 of Form 8-K.
Any
statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded
for the 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 statement so modified or
superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Under no circumstances
will any information furnished under Items 2.02 or 7.01 of Form 8-K be deemed incorporated by reference unless such Current Report on
Form 8-K expressly provides to the contrary.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
The
Washington Business Corporations Act (“WBCA”) provides that a corporation may indemnify an individual made a party to a proceeding
because the individual is or was a director against liability incurred in the proceeding if: (i) the individual acted in good faith and
(ii) the individual reasonably believed, in the case of conduct in the individual’s official capacity, that the individual’s
conduct was in the best interests of the corporation, and in all other cases, that the individual’s conduct was at least not opposed
to the corporation’s best interests. In the case of a criminal proceeding, the individual must not have had any reasonable cause
to believe the conduct was unlawful.
A
director may not be indemnified in connection with a proceeding by or in the right of the corporation in which the director was found
liable to the corporation, or a proceeding in which the director was found to have improperly received a personal benefit. Washington
law provides for mandatory indemnification of directors for reasonable expenses incurred when the indemnified party is wholly successful
in the defense of the proceeding. A corporation may indemnify officers to the same extent as directors.
Washington
law also permits a director of a corporation who is a party to a proceeding to apply to the courts for indemnification or advance of
expenses, unless its articles of incorporation provide otherwise, and the court may order indemnification or advancement of expenses
under certain circumstances set forth in the statute. Washington law further provides that a corporation may, if authorized by its articles
of incorporation, bylaws, or a resolution adopted or ratified by its shareholders, provide indemnification in addition to that provided
by statute, subject to certain conditions set forth in the statute.
The
Registrant’s Bylaws provide, among other things, for the indemnification of directors, and authorize the board of directors to
pay reasonable expenses incurred by, or to satisfy a judgment or fine against, a current or former director in connection with any legal
liability incurred by the individual while acting for the Registrant within the scope of his or her employment, provided, however, that
such payment of expenses in advance of the final disposition of the proceeding will be made only upon the receipt of an undertaking of
the director to repay all amounts advanced if it should be ultimately determined that the director is not entitled to be indemnified.
In
addition, the Registrant’s Bylaws and director agreements provide that the directors will not be personally liable for monetary
damages to the Registrant for conduct as a director if they are wholly successful in the defense of the proceeding as described above.
The
limitation of liability and indemnification provisions in the Bylaws may discourage stockholders from bringing a lawsuit against the
Registrant’s directors and officers for breach of their fiduciary duties. They may also reduce the likelihood of derivative litigation
against the directors and officers, even though an action, if successful, might benefit the Registrant and the Registrant’s stockholders.
Further, a stockholder’s investment may be adversely affected to the extent that the Registrant pays the costs of settlement and
damage awards against the directors and officers pursuant to these indemnification provisions.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to the directors, officers, and certain employees
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.
There
is no pending litigation or proceeding naming the Registrant or any of its directors or officers as to which indemnification is being
sought, nor is the Registrant aware of any pending or threatened litigation that may result in claims for indemnification.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
The
Exhibit Index immediately preceding the exhibits 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 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 20% 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 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 this Registration Statement is on Form S-8, and 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 of 1934 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 offered at that time shall
be deemed to be the initial bona fide offering thereof; and
(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 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 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 that 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
The
following documents are hereby filed with or incorporated by reference into this Registration Statement as indicated below.
SIGNATURES
The
Registrant. 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 Tacoma, State of Washington, on June 10, 2022.
| Harbor
Custom Development, Inc. |
|
| |
|
|
| |
/s/
Sterling Griffin |
|
| By:
|
Sterling
Griffin |
|
| Its:
|
Chief
Executive Officer and President |
|
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Sterling Griffin as his or her
true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement and to file the same, with
all relevant exhibits and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith,
as fully 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 any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities
and on the date indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/
Sterling Griffin |
|
Chief
Executive Officer, President, and Chairman of the Board of Directors |
|
June
10, 2022 |
| Sterling
Griffin |
|
(Principal
Executive Officer) |
|
|
| |
|
|
|
|
| /s/
Lance Brown |
|
Chief
Financial Officer |
|
June
10, 2022 |
| Lance
Brown |
|
(Principal
Financial Officer and Principal Accounting Officer) |
|
|
| |
|
|
|
|
| /s/
Richard Schmidtke |
|
Director |
|
June
10, 2022 |
| Richard
Schmidtke |
|
|
|
|
| |
|
|
|
|
| /s/
Dennis Wong |
|
Director |
|
June
10, 2022 |
| Dennis
Wong |
|
|
|
|
| |
|
|
|
|
| /s/
Larry Swets |
|
Director |
|
June
10, 2022 |
| Larry
Swets |
|
|
|
|
| |
|
|
|
|
| /s/
Wally Walker |
|
Director |
|
June
10, 2022 |
| Wally
Walker |
|
|
|
|
| |
|
|
|
|
| /s
Karen Bryant |
|
Director |
|
June
10, 2022 |
| Karen
Bryant |
|
|
|
|
| |
|
|
|
|
| /s/
Chris Corr |
|
Director |
|
June
10, 2022 |
| Chris
Corr |
|
|
|
|
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