As filed with the Securities and Exchange Commission
on November 8, 2023
Registration No. 333-205845
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
(POST-EFFECTIVE AMENDMENT NO. 2)
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
WHEELER REAL ESTATE INVESTMENT TRUST, INC.
(Exact name of registrant as specified in governing
instruments)
Maryland |
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45-2681082 |
(State or Other Jurisdiction of
Incorporation or Organization) |
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(I.R.S. Employer
Identification No.) |
2529 Virginia Beach Blvd.
Virginia Beach, Virginia 23452
(757) 627-9088
(Address, including zip code, of principal executive
offices)
Wheeler Real Estate
Investment Trust, Inc.
2015 Long-Term Incentive
Plan
(Full title of the plan)
Kaufman & Canoles, P.C.
150 W. Main Street, Suite 2100
Norfolk, VA 23510
(757) 624-3000
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Daniel P. Raglan, Esq.
Cadwalader, Wickersham & Taft LLP
200 Liberty Street
New York, NY 10281
(212) 504-6000
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 |
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☐ |
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Accelerated filer |
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☐ |
Non-accelerated filer |
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☒ |
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Smaller reporting company |
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☒ |
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Emerging growth company |
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☐ |
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 NOTE
This
Post-Effective Amendment No. 2 (the “Post-Effective Amendment No. 2”) relates to the Registration Statement
on Form S-8 (File No. 333-205845) filed with the Securities and Exchange Commission (the “SEC”) by Wheeler
Real Estate Investment Trust, Inc., a Maryland corporation (the “Company”) on July 24, 2015, as amended by Post-Effective
Amendment No. 1 thereto (File No. 333-205845) filed with the SEC on April 7, 2017 (as so amended, the “2015 Registration Statement”),
and is being filed to adjust the number of securities covered by the 2015 Registration Statement pursuant to Rule 416(b) of the Securities
Act of 1933, as amended (the “Securities Act”), and related interpretations of the staff of the SEC.
The
2015 Registration Statement registered 1,000,000 shares of common stock, par value $0.01 per share (the “Common Stock”)
of the Company, to be issued pursuant to the Company’s 2015 Long-Term Incentive Plan.
On March 31, 2017, the Company completed a one-for-eight reverse stock split of shares of its Common Stock (the “First Reverse
Stock Split”), the effect of which was to reduce the number of shares of Common Stock covered by the 2015 Registration Statement
to 125,000 shares of Common Stock. On August 17, 2023, the Company completed a one-for-ten reverse stock split of shares of its Common
Stock (the “Second Reverse Stock Split”, and together with the First Stock Split, the “Reverse Stock Splits”).
Accordingly, the purpose of this Post-Effective Amendment No. 2 is to proportionately reduce the number of shares of Common Stock
covered by the 2015 Registration Statement (taking into account the Reverse Stock Splits). As a result, as of August 17, 2023, on a post-reverse
stock split basis, the 2015 Registration Statement now covers a maximum of 12,500 shares of Common Stock.
Except
to the extent specified herein, the 2015 Registration Statement, as originally filed, is not amended or otherwise affected by this Post-Effective
Amendment No. 2.
PART
II
information
required in the registration statement
Item 3. Incorporation of Documents
by Reference.
The following documents,
which have been filed by the Company with the SEC, are incorporated in this Registration Statement by reference:
| ● | Prospectus
dated September 29, 2023 filed with the SEC on September 29, 2023 pursuant to Rule 424(b)
of the Securities Act in connection with the Company’s Registration Statement on Form S-11 (File No. 333- 274329); |
| ● | Annual
Report on Form 10-K filed with the SEC on March 2, 2023; |
| ● | Current Reports on Form 8-K filed with the
SEC on May 19, 2023, May 22, 2023, May 22, 2023, June
5, 2023, June 14, 2023, June
28, 2023, July 18, 2023, August
8, 2023, August 17, 2023, September
1, 2023, September
5, 2023, September 7, 2023, September
18, 2023, October 6, 2023, October
18, 2023 and November 7,
2023; |
| ● | Definitive
Proxy Statement filed with the SEC on April 6, 2023; and |
All
documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”) subsequent to the date of this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement 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 part hereof from the date
of filing of such documents; provided, however, that documents or information, or portions thereof, which are furnished and not filed
in accordance with the rules of the SEC shall not be deemed incorporated by reference into this Registration Statement.
Any
statement contained in this Registration Statement or in a document incorporated or deemed to be incorporated by reference in this Registration
Statement will be deemed to be modified or superseded to the extent that a statement contained or incorporated by reference herein or
in any other subsequently filed document which also is or is deemed to be incorporated by reference in this Registration
Statement modifies or supersedes that statement. Any statement so modified or superseded will 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
The Maryland General Corporation
Law (“MGCL”) 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 (in which case liability is limited to the value of the benefit or profit
actually received) or (b) active and deliberate dishonesty established by a judgment or final adjudication as being material to the
cause of action. The charter of the Company expressly limits the personal liability of our directors and officers for money damages to
the maximum extent permitted by Maryland law.
The charter of the Company
provides that it has the power, to the maximum extent permitted by Maryland law, to obligate itself to indemnify and to pay or reimburse
reasonable expenses in advance of final disposition of a proceeding to our present and former directors and officers, whether serving
us or any other entity at our request, from and against any claim or liability to which such person may become subject or which such person
may incur by reason of his or her service in any such capacity. The Company has exercised this power by adopting a bylaw that requires
the Company, to the maximum extent permitted by Maryland law in effect from time to time, to indemnify and, without requiring a preliminary
determination of the ultimate entitlement to indemnification, pay or reimburse reasonable expenses in advance of final disposition of
a proceeding to our present and former directors and officers as provided above.
Notwithstanding the Company’s
charter and bylaws, the MGCL requires a corporation (unless its charter provides otherwise, which the Company’s 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, or threatened to be made, a party by reason of his or her service in that capacity. The MGCL permits a 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 the MGCL, 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, the MGCL permits a corporation to advance reasonable expenses to a director or officer upon the
corporation’s receipt of (x) 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 (y) 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 shall ultimately be determined that the standard of
conduct was not met.
The
Company maintains insurance for its directors and officers against certain liabilities, including liabilities under the Securities Act,
under insurance policies, the premiums of which are paid by the Company. The effect of these insurance policies is to indemnify any directors
or officers of the Company against expenses, judgments, attorneys’ fees and other amounts paid in settlements incurred by a director
or officer upon a determination that such person acted in accordance with the requirements of such insurance policy.
We
have entered into indemnification agreements with each of our current directors and executive officers. These agreements require us to
indemnify these individuals to the maximum extent permitted under Maryland law against liabilities that may arise by reason of their service
to us, and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified upon our receipt
of certain affirmations and undertakings. We also intend to enter into indemnification agreements with future directors and executive
officers.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the SEC such 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 of Document |
4.1 |
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Articles of Amendment and Restatement of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on August 5, 2016 (Filed as exhibit to Form 8-K, filed on August 8, 2016). |
4.2 |
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Articles Supplementary of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on September 16, 2016 (Filed as exhibit to Form 8-K, filed on September 20, 2016). |
4.3 |
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Articles Supplementary of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on December 1, 2016 (Filed as exhibit to Form 8-K, filed on December 5, 2016). |
4.4 |
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Articles of Amendment of Wheeler Real Estate Investment Trust, Inc., filed with SDAT on March 28, 2017 (Filed as exhibit to Form 8-K, filed on April 3, 2017). |
4.5 |
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Articles of Amendment of Wheeler Real Estate Investment Trust, Inc., filed with SDAT on March 28, 2017 (Filed as exhibit to Form 8-K, filed on April 3, 2017). |
4.6 |
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Articles of Amendment of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on May 29, 2016 (Filed as exhibit to Form 8-K, filed on May 29, 2020). |
4.7 |
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Certificate of Correction of Articles Supplementary of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on May 3, 2018 (Filed as exhibit to Form 8-K, filed on May 4, 2018). |
4.8 |
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Articles Supplementary of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on July 8, 2021 (Filed as an exhibit to Form 8-K, filed on July 8, 2021). |
4.9 |
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Articles of Amendment of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on November 5, 2021 (Filed as an exhibit to Form 8-K, filed on November 5, 2021). |
4.10 |
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Articles of Amendment of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on November 29, 2021 (Filed as an exhibit to Form 8-K, filed on November 29, 2021). |
4.11 |
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Articles of Amendment of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on August 16, 2023 (Filed as an exhibit to Form 8-K, filed on August 17, 2023). |
4.12 |
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Articles of Amendment of Wheeler Real Estate Investment Trust, Inc. filed with SDAT on August 16, 2023 (Filed as an exhibit to Form 8-K, filed on August 17, 2023) |
4.13 |
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Bylaws of Wheeler Real Estate Investment Trust, Inc., as amended (Filed as exhibit to Form 8-K, filed on May 29, 2020). |
4.14 |
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Amended and Restated Agreement of Limited Partnership of Wheeler REIT, L.P. (Filed as exhibit to Form S-11 (Registration No. 333-198245) filed on August 20, 2014 pursuant to the Securities Act of 1933). |
4.15 |
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Amendment to the Amended and Restated Agreement of Limited Partnership of Wheeler REIT, L.P. Designation of Series A Convertible Preferred Units (Filed as exhibit to Form 8-K, filed on April 15, 2015). |
4.16 |
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Amendment to the Amended and Restated Agreement of Limited Partnership of Wheeler REIT, L.P. Amended Designation of Series B Convertible Preferred Units (Filed as exhibit to Form 8-K, filed on July 15, 2016). |
4.17 |
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Amendment to the Amended and Restated Agreement of Limited Partnership of Wheeler REIT, L.P. Designation of Series D Cumulative Convertible Preferred Units (Filed as exhibit to Form 8-K, filed on September 20, 2016). |
4.18 |
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Amendment to the Amended and Restated Agreement of Limited Partnership of Wheeler REIT, L.P. Amended Designation of Additional Series D Cumulative Convertible Preferred Units (Filed as exhibit to Form 8-K, filed on December 5, 2016). |
4.19 |
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Amendment to the Amended and Restated Agreement of Limited Partnership of Wheeler REIT, L.P. (Filed as exhibit to Form 8-K, filed on September 5, 2019). |
4.20 |
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Amendment to the Amended and Restated Agreement of Limited Partnership of Wheeler REIT, L.P., dated December 22, 2020 (Filed as an exhibit to Form 8-K, filed on December 23, 2020). |
4.21 |
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Amendment to the Amended and Restated Agreement of Limited Partnership of Wheeler REIT, L.P, dated March 12, 2021 (Filed as an exhibit to Form 8-K, filed on March 12, 2021). |
4.22 |
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Form of Certificate of Common Stock of Wheeler Real Estate Investment Trust, Inc. (Filed as an exhibit to Form S-11, filed on September 1, 2023). |
4.23 |
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Form of Certificate of Series B Preferred Stock of Wheeler Real Estate Investment Trust, Inc. (Filed as exhibit to Form S-11/A (Registration No. 333-194831) filed on April 23, 2014 pursuant to the Securities Act of 1933). |
4.24 |
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Form of Certificate of Series D Preferred Stock of Wheeler Real Estate Investment Trust, Inc. (Filed as exhibit to Form 8-K, filed on September 20, 2016). |
4.25 |
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Indenture, dated as of August 13, 2021 between Wheeler Real Estate Investment Trust Inc. and Wilmington Savings Fund Society, FSB., as trustee (including form of Note) (Filed as an exhibit to Form 8-K, filed on August 16, 2021). |
4.26 |
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Common Stock Purchase Warrant, dated December 22, 2020 (Filed as an exhibit to Form 8-K, filed on December 23, 2020). |
4.27 |
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Form of Common Stock Purchase Warrant, dated March 12, 2021 (Filed as an exhibit to Form 8-K, filed on March 12, 2021). |
5.1 |
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Opinion of Gordon Feinblatt LLC* |
10.1 |
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Wheeler Real Estate Investment Trust, Inc. 2015 Long-Term Incentive Plan (Filed as exhibit to Form 8-K, filed on June 8, 2015) |
10.2 |
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Amendment No. 1 to Wheeler Real Estate Investment Trust, Inc. 2015 Long-Term Incentive Plan (Filed as an exhibit to Form S-11, filed on September 1, 2023) |
10.3 |
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Amendment No. 2 to Wheeler Real Estate Investment Trust, Inc. 2015 Long-Term Incentive Plan* |
23.1 |
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Consent of Cherry Bekaert LLP* |
23.2 |
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Consent of Gordon Feinblatt LLC (included in Exhibit 5.1)* |
24.1 |
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Power of Attorney (included on Signature Page of 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; |
| (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%
change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee Tables” or “Calculation
of Registration Fee” table, as applicable, 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 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 Securities and Exchange 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. |
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 Virginia Beach, State of Virginia, on November 8, 2023.
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WHEELER REAL ESTATE INVESTMENT TRUST, INC. |
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By: |
/s/ M. Andrew Franklin |
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M. Andrew Franklin |
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Chief Executive Officer and President
(Principal Executive Officer) |
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By: |
/s/ Crystal Plum |
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Crystal Plum |
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Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer) |
POWER OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby makes, designates, constitutes and appoints M. Andrew
Franklin and Crystal Plum, and each of them (with full power and authority to act without the other), his or her true and lawful attorneys-in-fact and
agents, each 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, including post-effective amendments, to this Registration Statement, and to file the same,
with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting 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,
as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of 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, this Registration Statement has been signed by the following persons in the capacities
and on the date indicated.
Name |
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Title |
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Date |
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/s/ M. Andrew Franklin |
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M. Andrew Franklin |
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Chief Executive Officer and
President (Principal Executive Officer) |
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November 8, 2023 |
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/s/ Crystal Plum |
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Crystal Plum |
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Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer) |
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November 8, 2023 |
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/s/ Stefani D. Carter |
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Stefani D. Carter |
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Chair of the Board |
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November 8, 2023 |
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/s/ E.J. Borrack |
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E.J. Borrack |
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Director |
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November 8, 2023 |
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/s/ Kerry G. Campbell |
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Kerry G. Campbell |
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Director |
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November 8, 2023 |
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/s/ Saverio M. Flemma |
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Saverio M. Flemma |
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Director |
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November 8, 2023 |
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/s/ Megan Parisi |
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Megan Parisi |
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Director |
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November 8, 2023 |
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/s/ Dennis Pollack |
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Dennis Pollack |
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Director |
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November 8, 2023 |
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/s/ Joseph D. Stilwell |
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Joseph D. Stilwell |
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Director |
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November 8, 2023 |
II-5
Exhibit 5.1
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1001 FLEET STREET
SUITE 700
BALTIMORE, MARYLAND 21202-4346 |
November 8, 2023
Wheeler Real Estate Investment Trust, Inc.
2529 Virginia Beach Boulevard
Virginia Beach, VA 23452 |
|
Ladies and Gentlemen:
We are furnishing this opinion letter in accordance
with the requirements of Item 601(b)(5) of Regulation S-K in connection with Post-Effective Amendment No. 2 on Form S-8/A (the “Amendment”)
to the Registration Statement on Form S-8, File No. 333-205845 (the “Original Registration Statement”) of Wheeler Real
Estate Investment Trust, Inc., a Maryland corporation (the “Company”), filed with the U.S. Securities and Exchange
Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), on the
date hereof in connection with the Company’s registration of shares of its common stock, par value $.01 per share (the “Common
Stock”), that may be issued under the Wheeler Real Estate Investment Trust, Inc. 2015 Long-Term Incentive Plan (the “Plan”).
The Original Registration Statement was filed with the Commission on July 24, 2015 and was subsequently amended pursuant to Post-Effective
Amendment No. 1 on Form S-8/A filed with the Commission on April 7, 2017 (as so amended, the “2015 Registration Statement”).
The Amendment is being filed to reflect the Company’s one-for-10 reverse stock split of shares of the Common Stock on August 17,
2023 (the “Reverse Split”), with the effect that the 2015 Registration Statement now covers a maximum of 12,500 shares
of Common Stock (the “Common Shares”).
I.
Documents Reviewed
In addition to various publicly-available reports
and other documents filed by the Company with the Commission made available through its Electronic Data Gathering, Analysis and Retrieval
system, we have examined copies of the following documents (the “Documents”):
1. the
2015 Registration Statement and the Amendment, in the forms in which they were filed with the Commission (collectively, the “Offering
Documents”);
2. Articles
of Amendment and Restatement filed by the Company with the State Department of Assessments and Taxation of Maryland (“SDAT”)
on August 5, 2016 (the “Articles of Incorporation”);
3. Articles
Supplementary filed by the Company with SDAT on September 16, 2016, as corrected by the Certificate of Correction filed with SDAT on May
3, 2018;
|
Wheeler Real Estate Investment Trust, Inc.
November 8, 2023
Page 2 |
4. Articles
Supplementary filed by the Company with SDAT on November 15, 2016;
5. Articles
Supplementary filed by the Company with SDAT on November 21, 2016;
6. Articles
Supplementary filed by the Company with SDAT on December 1, 2016;
7. A first
Articles of Amendment to the Articles of Incorporation filed by the Company with SDAT on March 28, 2017;
8. A second
Articles of Amendment to the Articles of Incorporation filed by the Company with SDAT on March 28, 2017;
9. Articles
of Amendment to the Articles of Incorporation filed by the Company with SDAT on May 29, 2020;
10. Articles
Supplementary filed by the Company with SDAT on July 8, 2021 (together with the documents identified in Paragraphs 3, 4 and 6, the “Series
D Articles Supplementary”);
11. Articles
of Amendment filed by the Company with SDAT on November 5, 2021;
12. Articles
of Amendment filed by the Company with SDAT on November 29, 2021;
13. Articles
of Amendment filed by the Company with SDAT on August 16, 2023 with effective time of 5:00 p.m. on August 17, 2023;
14. Articles
of Amendment filed by the Company with SDAT on August 16, 2023 with effective time of 5:01 p.m. on August 17, 2023 (together with the
documents identified in Items 2 through 13 of this Section I, the “Charter”);
15. the
Bylaws of the Company (the “Bylaws”);
16. the
certificate of good standing issued by SDAT on November 6, 2023 with respect to the Company;
17. the
minutes of the meeting of the Board of Directors of the Company (the “Board”) held on April 1, 2015 evidencing the
Board’s approval and adoption of the Plan and the authorization of the issuance of shares of Common Stock contemplated thereby;
18. the
resolutions adopted by the Board on July 31, 2023 authorizing and approving the Reverse Split (together with the minutes described in
Item 17 of this Section I, the “Resolutions”); and
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Wheeler Real Estate Investment Trust, Inc.
November 8, 2023
Page 3 |
19. the
Certificate of Secretary, dated as of the date hereof, issued to us by the Secretary of the Company with respect to certain factual matters
relevant to this opinion letter.
II. Assumptions
In expressing the opinions set forth below, we have assumed, and so far as is known to us there
are no facts inconsistent therewith, that:
1. all
Documents submitted to us as originals are authentic;
2. all
Documents submitted to us as certified or photostatic copies conform to the original documents;
3. all
signatures on all such Documents are genuine;
4. all
public records reviewed or relied upon by us or on our behalf are true and complete;
5. all
statements and information contained in the Documents are true and complete;
6. each
person who executed any of the Documents was authorized to do so;
7. each
natural person who executed any of the Documents was legally competent to do so and had knowledge about all matters stated therein; and
8. there
has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any
of the Documents, in connection with this opinion letter, by action or omission of the parties thereto or otherwise;
9. the
Charter, the Bylaws, and the Resolutions will not have been amended or rescinded, and will be in full force and effect, at all times at
which any Common Shares are offered or issued by the Company;
10. the
Common Shares will, if and when issued, be issued in the manner stated in, and pursuant to, the Offering Documents and the Plan;
11. upon
the issuance of any Common Shares pursuant to the Offering Documents and the Plan, the total number of shares of Common Stock issued and
outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Charter;
12. none
of the Common Shares will be issued in violation of the restrictions on transfer and ownership set forth in Article VI of the Articles
of Incorporation, as amended to date, and as the same may be amended in the future;
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Wheeler Real Estate Investment Trust, Inc.
November 8, 2023
Page 4 |
13. at
the time of the issuance of any Common Shares, the Company or its transfer agent will record in the Company’s stock ledger the name(s)
of the persons to whom such shares are issued;
14. the
2015 Registration Statement and the Amendment, and any amendments thereto (including post-effective amendments), will have been declared
effective by the Commission; and
15. the
Company will remain duly organized, validly existing, and in good standing under the laws of the State of Maryland at the time any Common
Shares are offered or issued by the Company.
As to any facts material to this opinion letter
that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives
of the Company and others.
III. Opinion
Based on the foregoing, and subject to the qualifications
and assumptions set forth herein, it is our opinion that, if and when issued by the Company under the circumstances contemplated by the
Offering Documents and the Plan, the Common Shares will be duly authorized, validly issued, fully paid, and non-assessable.
IV. Qualifications
In addition to the assumptions set forth above,
the opinion set forth herein is also subject to the following qualifications:
1. we
are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters;
2. the
foregoing opinion is limited to the provisions of the Maryland General Corporation Law and the applicable provisions of the Maryland Declaration
of Rights, each as currently in effect on the date hereof, and the reported judicial decisions interpreting these laws. We do not express
any opinion herein concerning any other laws; and
3. the
foregoing opinion is rendered as of the date first set forth above, and we undertake no obligation to advise you of any changes or any
new developments, including, without limitation, changes in the facts set forth in the Documents and/or to any applicable laws, that might
affect the opinion set forth herein.
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Wheeler Real Estate Investment Trust, Inc.
November 8, 2023
Page 5 |
We hereby consent to the filing of this opinion
letter as an exhibit to the Registration Statement and to the use of the name of our firm therein. In issuing this opinion letter, we
do not admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act.
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Sincerely, |
|
|
|
/s/ Gordon Feinblatt LLC |
Exhibit 10.3
AMENDMENT NO. 2 to the
2015 LONG-TERM INCENTIVE PLAN
of
Wheeler Real Estate Investment Trust, Inc.
August 17, 2023
This Amendment No. 2 (this
“Amendment”) to the 2015 Long-Term Incentive Plan (the “Plan”) of Wheeler Real Estate Investment
Trust, Inc. (the “Company”) is hereby adopted by the Board of Directors of the Company (the “Board”),
effective as of the date first referenced above.
WHEREAS, the Plan
was adopted for and on behalf of the Company by the Board on April 1, 2015 and approved by the stockholders
of the Company on June 4, 2015; and
WHEREAS, on
March 31, 2017, the Company completed a one-for-eight reverse stock split (the
“First Reverse Stock Split”) of shares of the Company’s common stock, par value $0.01 per share (“Common
Stock”); and
WHEREAS, on August
17, 2023, the Company completed a one-for-ten reverse stock split (the “Second Reverse Stock Split”, and together with
the First Stock Split, the “Reverse Stock Splits”) of shares of Common Stock; and
WHEREAS, pursuant
to Section 14 of the Plan, in the event of a stock dividend, stock split or combination of shares, spin-off, reclassification, recapitalization,
merger or other change in the Company’s capital stock (including, but not limited to, the creation or issuance to shareholders generally
of rights, options or warrants for the purchase of common stock or preferred stock of the Company), the number and kind of shares of stock
or securities of the Company to be issued under the Plan (under outstanding Awards and Awards (as defined in the Plan) to be granted in
the future), the exercise price of options, and other relevant provisions shall be appropriately adjusted; and
WHEREAS, the Board
wishes to amend the Plan to reflect the Reverse Stock Splits.
NOW, THEREFORE, BE IT
RESOLVED,
| 1. | Section 4 of the Plan is hereby amended to change the total number of shares of Common Stock reserved
for issuance under the Plan to 12,500. |
| 2. | Sections 6(a), 7(a), 8(a) and 9(a) of the Plan are hereby amended to change the number of shares of Common
Stock referenced in each respective Section to 2,500. |
| 3. | Except as modified herein, all terms and conditions of the Plan shall remain in full force and effect. |
| 4. | This Amendment shall be governed by the laws of Maryland, without reference to principles of conflict
of law. |
| 5. | If any provision of this Amendment is or becomes invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby. |
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
Wheeler Real Estate Investment Trust, Inc. and
Subsidiaries
Virginia Beach, Virginia
We hereby consent to the incorporation by reference
in this Amendment No. 2 to the Registration Statement (File No. 333-205845) on Form S-8 of our report dated March 2, 2023, relating to
the consolidated financial statements and consolidated financial statement schedules of Wheeler Real Estate Investment Trust, Inc. and
Subsidiaries (the “Company”) as of December 31, 2022 and 2021 and for each of the years in the two-year period ended
December 31, 2022, which appears in the Company’s Annual Report on Form 10-K, filed with the Securities and Exchange Commission
on March 2, 2023.
/s/ Cherry Bekaert LLP
Virginia Beach, Virginia
November 8, 2023
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