Securities Registration: Employee Benefit Plan (s-8)
April 29 2022 - 5:23PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on April 29, 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
Brixmor Property Group Inc.
(Exact name of registrant as specified in its
charter)
Maryland |
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45-2433192 |
(State or other jurisdiction of |
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(I.R.S. Employer |
incorporation or organization) |
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Identification Number) |
450 Lexington Avenue
New York, NY 10017
Telephone: (212) 869-3000
(Address, including zip code, and telephone
number, including area code, of Registrant’s Principal Executive Offices)
Brixmor Property Group Inc. 2022 Omnibus Incentive
Plan
(Full title of the plan)
Steven F. Siegel
Executive Vice President, General Counsel and
Secretary
Brixmor Property Group Inc.
450 Lexington Avenue
New York, NY 10017
Telephone: (212) 869-3000
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Michael E. McTiernan
Andrew S. Zahn
Hogan Lovells US LLP
Columbia Square
555 Thirteenth Street, NW
Washington, DC 20004
Telephone: (202) 637 5600
Facsimile: (202) 637 5910
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 ¨ |
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. ☐
EXPLANATORY STATEMENT
On
February 1, 2022, the Board of Directors of Brixmor Property Group Inc. (the “Registrant”) approved the Brixmor Property Group
Inc. 2022 Omnibus Incentive Plan (the “2022 Incentive Plan”), subject
to the approval of the Registrant’s stockholders. On April 27, 2022, the Registrant’s stockholders approved the 2022 Incentive
Plan. This registration statement (this “Registration Statement”) is being filed in order to register the 10,000,000 shares
of common stock, par value $0.01, of the Registrant (“Common Stock”), that may be offered or sold to participants under the
2022 Incentive Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee
Plan Annual Information.*
* The documents containing the information specified
in this Part I will be sent or given to participants in the 2022 Incentive Plan in accordance with Rule 428(b)(1) under the Securities
Act of 1933, as amended (the “Securities Act”). Such documents need not be filed with the Securities and Exchange Commission
(the “Commission”) pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference
in this Registration Statement pursuant to Item 3 of Part II hereof, 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 filed
with the Commission by the Registrant pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), are hereby incorporated by reference in this Registration Statement:
| (c) | the description of the Common Stock contained in the Registrant’s Registration Statement on Form 8-A filed on October 30, 2013, including all amendments and reports filed for the purpose of updating such description, including the description
of the Common Stock contained in Exhibit 4.22 of the Registrant’s Annual Report on Form 10-K for the year ended
December 31, 2021. |
The Registrant also incorporates
any documents subsequently filed by the Registrant under 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 to this Registration Statement indicating that all securities
offered 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 a part hereof from the date of filing of such documents. Unless expressly incorporated into this
Registration Statement, a report furnished (and not filed) on Form 8-K or Form 8-K/A shall not be incorporated by
reference into, or otherwise included in, this Registration Statement.
Any statement contained 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 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, except as so modified or superseded, to constitute a part of this Registration Statement. To the extent that any proxy
statement is incorporated by reference herein, such incorporation shall not include any information contained in such proxy statement
which is not, pursuant to the Commission’s rules, deemed to be “filed” with the Commission or subject to the liabilities
of Section 18 of the Exchange Act.
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
the Registrant to include a provision in its charter eliminating the liability of its directors and officers to the Registrant 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 Registrant’s charter contains a provision that eliminates its directors’ and officers’ liability to the
maximum extent permitted by Maryland law.
Maryland law requires
the Registrant (unless its charter were to provide otherwise, which its charter does not) to indemnify a director or officer who has been
successful, on the merits or otherwise, in the defense of any proceeding to which he or she is made a party by reason of his or her service
in that capacity. Maryland law permits the Registrant 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 certain other capacities unless it is established
that:
| · | the act or omission of the director or officer was material to the matter giving rise to the
proceeding and (a) was committed in bad faith or (b) was the result of active and deliberate dishonesty; |
| · | the director or officer actually received an improper personal benefit in money, property or
services; or |
| · | in the case of any criminal proceeding, the director or officer had reasonable cause to believe
that the act or omission was unlawful. |
Maryland
law prohibits the Registrant from indemnifying a director or officer who has been adjudged
liable in a suit by the Registrant or on its behalf or in which the director or officer was
adjudged liable on the basis that a personal benefit was improperly received. A court may order indemnification if it determines that
the director or officer is fairly and reasonably entitled to indemnification, even though the director or officer did not meet the prescribed
standard of conduct or was adjudged liable on the basis that personal benefit was improperly received; however, indemnification for an
adverse judgment in a suit by the Registrant or on its behalf, or for a judgment of liability
on the basis that personal benefit was improperly received, is limited to expenses.
In addition, Maryland
law permits the Registrant to advance reasonable expenses to a director or officer upon its 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
and (b) a written undertaking by him or her or on his or her behalf to repay the amount paid or reimbursed if it is ultimately determined
that the standard of conduct was not met.
To the maximum extent
permitted by Maryland law, the Registrant’s charter authorizes the Registrant to indemnify any person who serves or has served,
and the Registrant’s bylaws obligate the Registrant, to the maximum extent permitted by Maryland law, to indemnify any individual
who is made or threatened to be made a party to or witness in a proceeding by reason of his or her service:
| · | as the Registrant’s director or officer; or |
| · | while a director or officer and at the Registrant’s request,
as a director, officer, partner, manager, member or trustee of another corporation, real estate investment trust, partnership, joint venture,
limited liability company, trust, employee benefit plan or other enterprise, |
from and against any claim or liability to
which he or she may become subject or that he or she may incur by reason of his or her service in any of these capacities, and to pay
or reimburse his or her reasonable expenses in advance of final disposition of a proceeding. The Registrant’s charter and bylaws
also permit the Registrant to indemnify and advance expenses to any individual who served any of our predecessors in any of the capacities
described above and any employee or agent of the Registrant or any of its predecessors.
The Registrant is party
to indemnification agreements with its directors and executive officers. These agreements require the Registrant to indemnify these individuals
to the fullest extent permitted under Maryland law and the Registrant’s charter against liabilities that may arise by reason of
their service to the Registrant, and to advance expenses incurred as a result of any proceeding against them as to which they could be
indemnified. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors or executive officers,
the Registrant has been informed that, in the opinion of the SEC, such indemnification is against public policy and is therefore unenforceable.
The partnership agreement
of Brixmor Operating Partnership LP (the “Operating Partnership”) provides that
the Operating Partnership is required to indemnify to the fullest extent permitted by law (i) the Registrant, BPG Subsidiary LLC,
and Brixmor OP GP LLC, and any member, manager or managing member of Brixmor OP GP LLC or BPG Subsidiary LLC, or an employee or agent
of the Registrant, BPG Subsidiary LLC, Brixmor OP GP LLC or the Operating Partnership, and (ii) such other persons (including affiliates
or employees of the Registrant, BPG Subsidiary LLC, Brixmor OP GP LLC or the Operating Partnership) as Brixmor OP GP LLC may designate
from time to time (whether before or after the event giving rise to potential liability), in its sole and absolute discretion.
In addition, the Registrant’s
directors and officers are indemnified for specified liabilities and expenses pursuant to the organizational documents of certain of the
Registrant’s subsidiaries.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed
as part of this Registration Statement:
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; |
| (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 this 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
this Registration Statement or any material change to such information in this Registration Statement; |
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above
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 Securities 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 of 1933, 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 of 1933, each filing
of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) 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 of 1933 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 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 New York, the State of New York, on April 29, 2022.
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BRIXMOR PROPERTY GROUP INC. |
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By: |
/s/ James M. Taylor |
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Name: James M. Taylor |
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Title: Chief Executive Officer and President |
POWER OF ATTORNEY
Know all men by these presents,
that each person whose signature appears below hereby constitutes and appoints James M. Taylor, Angela Aman and Steven F. Siegel, and
each of them, any of whom may act without joinder of the other, the individual’s true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for the person and in his or her name, place and stead, in any and all capacities, to sign
this Registration Statement and any or all amendments or supplements to this Registration Statement, including post-effective amendments,
and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission,
and does hereby grant unto said attorneys-in-fact and agents, and each of them, 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 or she might or
could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, 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 indicated
on the 29th day of April, 2022.
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Signature |
Title |
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/s/ James M. Taylor |
Director, Chief Executive Officer and President |
James M. Taylor |
(Principal Executive Officer) |
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/s/ Angela Aman |
Chief Financial Officer |
Angela Aman |
(Principal Financial Officer) |
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/s/ Steven T. Gallagher |
Chief Accounting Officer |
Steven T. Gallagher |
(Principal Accounting Officer) |
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/s/ John G. Schreiber |
Chairman of the Board of Directors |
John G. Schreiber |
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/s/ Michael Berman |
Director |
Michael Berman |
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/s/ Julie Bowerman |
Director |
Julie Bowerman |
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/s/ Sheryl M. Crosland |
Director |
Sheryl M. Crosland |
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/s/ Thomas W. Dickson |
Director |
Thomas W. Dickson |
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/s/ Daniel B. Hurwitz |
Director |
Daniel B. Hurwitz |
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/s/ Sandra A. J. Lawrence |
Director |
Sandra A. J. Lawrence |
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/s/ William D. Rahm |
Director |
William D. Rahm |
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