As filed with the Securities and Exchange Commission on September 12, 2014
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-11
REGISTRATION STATEMENT
FOR REGISTRATION UNDER THE SECURITIES ACT OF 1933
OF SECURITIES OF CERTAIN REAL ESTATE COMPANIES
Wheeler Real Estate Investment Trust, Inc.
(Exact name of registrant as specified in its governing instruments)
Riversedge North, 2529 Virginia Beach Blvd., Suite 200 Virginia Beach, Virginia 23452
(757) 627-9088
(Address, including zip code and telephone number, including area code, of registrant’s principal executive offices)
CT Corporation System
111 Eighth Avenue
New York, New York 10011
(800) 624-0909
(Name, address, including zip code and telephone number, including area code, of agent for service)
Copies to:
| Bradley A. Haneberg, Esq. Matthew B. Chmiel, Esq. Haneberg, PLC 5 W Runswick Drive Richmond, Virginia 23238 (804) 814-2209 – telephone |
James M. Jenkins, Esq. Alexander R. McClean, Esq. Harter Secrest & Emery LLP 1600 Bausch & Lomb Place Rochester, New York 14604 (585) 232-6500 – telephone (585) 232-2152 – facsimile |
Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.
If any of the Securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, check the following box: ¨
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement of the same offering. x 333-198245
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ¨ | Accelerated filer | ¨ | |||
| Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company | x | |||
CALCULATION OF REGISTRATION FEE
|
| ||||
| Title of Each Class of Securities To Be Registered |
Proposed Aggregate Offering Price(1) |
Amount of Registration Fee | ||
| Units, each Unit consisting of five shares of Series B Preferred Stock, without par value per share, and six Warrants each to purchase one share of Common Stock, par value $0.01 per share(2) |
$3,450,000 | $444.36 | ||
| Series B Preferred Stock included as part of the Units(3) |
— | — | ||
| Warrants included as part of the Units(4) |
— | — (5) | ||
| Common Stock Issuable Upon Conversion of the Series B Preferred Stock(6) |
— | — | ||
| Common Stock Issuable upon exercise of the Warrants(7) (8) |
$910,800 |
$117.31 | ||
| Total |
$4,360,800 |
$562 | ||
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| (1) | Estimated solely for purposes of calculating the registration fee in accordance with Rule 457(o) under the Securities Act of 1933, as amended, or the Securities Act. |
| (2) | Includes $450,000 units that may be purchased by the underwriters to cover over-allotments, if any. |
| (3) | We are registering 138,000 shares of Series B Preferred Stock hereunder, including 18,000 shares of Series B Preferred Stock to cover over-allotments, if any. |
| (4) | We are registering hereunder Warrants to purchase 165,600 shares of common stock hereunder, including Warrants to purchase 21,600 shares of common stock to cover over-allotments, if any. |
| (5) | No separate registration fee required pursuant to Rule 457(g) of the Securities Act. |
| (6) | No separate registration fee required pursuant to Rule 457 (i) of the Securities Act. |
| (7) | In accordance with Rule 457(g), the registration fee is calculated assuming an exercise price of $5.50 per share, which is the highest of (i) the price at which the warrants may be exercised; (ii) the offering price of securities of the same class included in the registration statement; and (iii) the price of securities of the same class, as determined by Rule 457(c). |
| (8) | Pursuant to Rule 416 of the Securities Act, such number of shares of common stock registered hereby also shall include an indeterminate number of shares of common stock that may be issued in connection with stock splits, stock dividends, recapitalizations or similar events or adjustments in the number of shares issuable as provided in the Warrants and the rights, preferences and limitations of the Series B Preferred Stock. |
Explanatory Note
This registration statement is being filed pursuant to Rule 462(b) (“Rule 462(b)”) under the Securities Act of 1933, as amended, and General Instruction G of Form S-11, and includes the registration statement facing page, this page, the signature page, an exhibit index, opinions of counsel and the independent registered public accountants’ consents. Pursuant to Rule 462(b), the contents of our registration statement on Form S-11, as amended (File No. 333-198245), including the exhibits thereto, which was declared effective by the Securities and Exchange Commission on September 11, 2014 (the “Initial Registration Statement”), are incorporated by reference into this registration statement. This registration statement covers the registration of an additional 138,000 shares of our Series B Preferred Stock and Warrants to purchase 165,600 shares of our common stock for sale in the offering related to the Initial Registration Statement.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that the registrant meets all of the requirements for filing on Form S-11 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 this 12th day of September, 2014.
| WHEELER REAL ESTATE INVESTMENT TRUST, INC. | ||
| By: |
/S/ JON S. WHEELER | |
| Jon S. Wheeler Chairman and Chief Executive Officer | ||
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.
| Signature |
Title |
Date | ||
| /S/ JON S. WHEELER* Jon. S. Wheeler |
Chairman of the Board of Directors and Chief Executive Officer (Principal Executive Officer) | September 12, 2014 | ||
| * Steven M. Belote |
Chief Financial Officer (Principal Financial and Accounting Officer) | September 12, 2014 | ||
| * Christopher J. Ettel |
Director | September 12, 2014 | ||
| * David Kelly |
Director | September 12, 2014 | ||
| * William W. King |
Director | September 12, 2014 | ||
| * Warren D. Harris |
Director | September 12, 2014 | ||
| * Carl B. McGowan, Jr. |
Director | September 12, 2014 | ||
| * Ann L. McKinney |
Director | September 12, 2014 | ||
| * Jeffrey Zwerdling |
Director | September 12, 2014 | ||
| * |
/s/ Jon S. Wheeler | |
| Jon S. Wheeler | ||
| Attorney-in-Fact | ||
| September 12, 2014 |
EXHIBIT INDEX
| Exhibit | ||
| 5.1 | Opinion of Kaufman & Canoles, P.C. | |
| 8.1 | Opinion of Kaufman & Canoles, P.C. with respect to tax matters | |
| 23.1 | Consent of Cherry Bekaert LLP related to Port Crossing Shopping Center, LaGrange Marketplace, Cyress Shopping Center, Harrodsburg Marketplace, Freeway Junction, Clover Plaza, South Square, Waterway Plaza, Wetland Square, and St. George Plaza. | |
| 23.2 | Consent of Cherry Bekaert LLP related to Brook Run Shopping Center and Northeast Plaza Shopping Center. | |
| 23.3 | Consent of Cherry Bekaert LLP related to the Annual Report on Form 10-K of Wheeler Real Estate Investment Trust, Inc. for the fiscal year ended December 31, 2013 | |
| 23.4 | Consent of Kaufman & Canoles, P.C. (included in Exhibit 5.1) | |
| 23.5 | Consent of Kaufman & Canoles, P.C. (included in Exhibit 8.1) | |