As filed with the Securities and Exchange Commission on August 1, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CLIPPER REALTY INC.
(Exact name of registrant as specified in its charter)
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Maryland
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47-4579660
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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4611 12th Avenue, Suite 1L
Brooklyn, NY 11219
(Address of Principal Executive Offices) (Zip Code)
Clipper Realty Inc. 2015 Omnibus Incentive Compensation Plan
Clipper Realty Inc. 2015 Non-Employee Director Plan
(Full title of the plan)
David Bistricer
Co-Chairman and Chief Executive Officer
Clipper Realty Inc.
4611 12th Avenue, Suite 1L
Brooklyn, NY 11219
(Name and address of agent for service)
(718) 438-2804
(Telephone number, including area code, of agent for service)
Copy to:
Emanuel J. Adler, Esq.
Yelena M. Barychev, Esq.
Blank Rome LLP
1271 Avenue of the Americas
New York, NY 10020
(212) 885-5000
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 definitions of "large accelerated filer,” "accelerated filer,” "smaller reporting company” and "emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer ☐
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Accelerated filer ☒
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Non-accelerated filer ☐
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Smaller reporting company ☒
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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
Pursuant to General Instruction E of Form S-8, this Registration Statement on Form S-8 is filed by Clipper Realty Inc., a Maryland corporation (the “Company”), in order to register an additional (i) 2,500,000 shares of the Company’s common stock, $0.01 par value per share (the “Common Stock”), issuable under the Clipper Realty Inc. 2015 Omnibus Incentive Compensation Plan, and (ii) 500,000 shares of Common Stock issuable under the Clipper Realty Inc. 2015 Non-Employee Director Plan, which are securities of the same class and relate to the same employee benefit plans, as applicable, as those shares of Common Stock registered on the Company’s registration statements on Form S-8 previously filed with the Securities and Exchange Commission on June 24, 2022 (Registration No. 333-265818), June 29, 2020 (Registration No. 333-239536) and April 7, 2017 (Registration No. 333-217191) (the “Prior Registration Statements”), with all of Prior Registration Statements incorporated herein by reference and made part of this Registration Statement, except as amended hereby.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, Clipper Realty Inc. 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, New York, on this 1st day of August, 2024.
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CLIPPER REALTY INC.
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By:
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/s/ David Bistricer
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David Bistricer
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Co-Chairman and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints David Bistricer and Sam Levinson, his or her true and lawful attorneys-in-fact and agents (with full power to each of them to act alone), with full power of substitution and re-substitution, 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 on Form S-8, and to file the same, with the exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing required and necessary to be done in and about the foregoing as fully for 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 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 and on the dates indicated.
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Name
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Title
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Date
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/s/ David Bistricer
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Co-Chairman of the Board and
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August 1, 2024
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David Bistricer
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Chief Executive Officer
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(Principal Executive Officer)
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/s/ Lawrence E. Kreider, Jr.
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Chief Financial Officer
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August 1, 2024
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Lawrence E. Kreider, Jr.
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(Principal Financial Officer and Principal Accounting Officer)
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/s/ Sam Levinson
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Co-Chairman of the Board
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August 1, 2024
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Sam Levinson
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/s/ Howard M. Lorber
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Director
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August 1, 2024
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Howard M. Lorber
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/s/ Robert J. Ivanhoe
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Director
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August 1, 2024
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Robert J. Ivanhoe
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/s/ Roberto A. Verrone
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Director
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August 1, 2024
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Roberto A. Verrone
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/s/ Richard N. Burger
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Director
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August 1, 2024
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Richard N. Burger
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/s/ Harmon S. Spolan
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Director
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August 1, 2024
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Harmon S. Spolan
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Exhibit 5.1
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750 E. PRATT STREET SUITE 900 BALTIMORE, MD 21202
T 410.244.7400 F 410.244.7742 www.Venable.com
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August 1, 2024
Clipper Realty Inc.
4611 12th Avenue, Suite 1L
Brooklyn, New York 11219
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have served as Maryland counsel to Clipper Realty Inc., a Maryland corporation (the “Company”), in connection with certain matters of Maryland law relating to the registration by the Company of the offering and issuance of up to (collectively, the “Shares”) (i) 2,500,000 additional shares of the Company’s common stock, $0.01 par value per share (the “Common Stock”), that the Company may issue pursuant to the Omnibus Plan (as defined below), as amended by the Third Amendment thereto, and (ii) 500,000 additional shares of Common Stock that the Company may issue pursuant to the Director Plan (as defined below), as amended by the Third Amendment thereto, in each case covered by the above-referenced Registration Statement, and all amendments thereto (the “Registration Statement”), filed by the Company with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), on or about the date hereof.
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the “Documents”):
1. The Registration Statement;
2. The charter of the Company (the “Charter”), certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
3. The Bylaws of the Company, certified as of the date hereof by an officer of the Company;
4. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
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Clipper Realty Inc.
August 1, 2024
Page 2
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5. The Clipper Realty Inc. 2015 Omnibus Incentive Compensation Plan, in the form filed as Exhibit 10.11 to the Company’s Registration Statement on Form S-11, filed confidentially with the Commission on Form DRS/A on December 23, 2015 (Commission File No. 377-01190), as amended by the First Amendment to the Clipper Realty Inc. 2015 Omnibus Incentive Compensation Plan, in the form attached as Appendix A to the Company’s Proxy Statement, dated April 29, 2020 (Commission File No. 001-38010), filed with the Commission on April 29, 2020, the Second Amendment to the Clipper Realty Inc. 2015 Omnibus Incentive Compensation Plan, in the form attached as Appendix A to the Company’s Proxy Statement, dated May 2, 2022 (Commission File No. 001-38010), filed with the Commission on May 2, 2022 and the Third Amendment to the Clipper Realty Inc. 2015 Omnibus Incentive Compensation Plan, in the form attached as Appendix A to the Company’s Proxy Statement, dated April 29, 2024 (Commission File No. 001-38010), filed with the Commission on April 29, 2024 (as so amended, the “Omnibus Plan”);
6. The Clipper Realty Inc. 2015 Non-Employee Director Plan, in the form filed as Exhibit 10.12 to the Company’s Registration Statement on Form S-11, filed confidentially with the Commission on Form DRS/A on December 23, 2015 (Commission File No. 377-01190), as amended by the First Amendment to the Clipper Realty Inc. 2015 Non-Employee Director Plan, in the form attached as Appendix B to the Company’s Proxy Statement, dated April 29, 2020 (Commission File No. 001-38010), filed with the Commission on April 29, 2020, the Second Amendment to the Clipper Realty Inc. 2015 Non-Employee Director Plan, in the form attached as Appendix B to the Company’s Proxy Statement, dated May 2, 2022 (Commission File No. 001-38010), filed with the Commission on May 2, 2022 and the Third Amendment to the Clipper Realty Inc. 2015 Non-Employee Director Plan, in the form attached as Appendix B to the Company’s Proxy Statement, dated April 29, 2024 (Commission File No. 001-38010), filed with the Commission on April 29, 2024 (the “Director Plan” and each of Director Plan and the Omnibus Plan, a “Plan”);
7. Resolutions (the “Resolutions”) adopted by the Board of Directors of the Company, relating to the registration and issuance of the Shares, certified as of the date hereof by an officer of the Company;
8. The Report of the Inspector of Election for the 2024 Annual Meeting of Stockholders of the Company convened on June 18, 2024, with respect to the proposal to approve the Third Amendment to the Director Plan and the proposal to approve the Third Amendment to the Omnibus Plan, certified as of the date hereof by an officer of the Company;
9. A certificate executed by an officer of the Company, dated as of the date hereof; and
10. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.
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Clipper Realty Inc.
August 1, 2024
Page 3
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In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.
4. All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete. 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, by action or omission of the parties or otherwise.
5. None of the Shares will be issued in violation of any restriction or limitation contained in the Charter. Upon any issuance of Shares, 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.
6. Each award that provides for the potential issuance of a Share pursuant to a Plan (each, an “Award”) will be duly authorized and validly granted in accordance with the applicable Plan, and any Share issued pursuant to any such Award will be issued in accordance with the terms of such Plan and such Award, including any agreement entered into in connection therewith.
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.
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Clipper Realty Inc.
August 1, 2024
Page 4
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2. The issuance of the Shares has been duly authorized and, when and if issued and delivered by the Company pursuant to the Registration Statement, the Resolutions and the applicable Plan, the Shares will be validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning federal law or the laws of any other jurisdiction. We express no opinion as to the applicability or effect of any federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers or the laws, codes or regulations of any municipality or other local jurisdiction. To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. The opinion expressed herein is subject to the effect of any judicial decisions which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.
The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the Commission as an exhibit to the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of the name of our firm therein. In giving this consent, 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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Very truly yours,
/s/ Venable LLP
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Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
Clipper Realty Inc.
New York, New York
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated March 14, 2024, relating to the consolidated financial statements, financial statement schedule, and the effectiveness of internal control over financial reporting, which reports appear in Clipper Realty Inc.’s Annual Report on Form 10-K for the year ended December 31, 2023.
/s/ PKF O’Connor Davies, LLP
New York, New York
August 1, 2024
Exhibit 107
CALCULATION OF FILING FEE TABLE
Form S-8
Clipper Realty Inc.
Table 1 – Newly Registered Securities
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Security
Type
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Security
Class
Title
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Fee
Calculation
Rule
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Amount
Registered(1)
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Proposed
Maximum
Offering
Price Per
unit(2)
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Maximum
Aggregate
Offering
Price
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Fee Rate
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Amount of
Registration
Fee
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Equity
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Common Stock, par value $0.01 per share
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(2)
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Omnibus Plan
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2,500,000
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$3.95
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$9,875,000
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.00014760
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$1,457.55
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Director Plan
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500,000
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$3.95
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$1,975,000
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.00014760
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$291.51
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Total Offering Amounts
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$11,850,000
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$1,749.06
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Total Fee Offsets
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-
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Net Fee Due
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$1,749.06
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(1)
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This Registration Statement is being filed with the Securities and Exchange Commission (the “SEC”) to register an additional 2,500,000 shares of Common Stock (“Common Stock”) that may be issued under the Clipper Realty Inc. 2015 Omnibus Incentive Compensation Plan (the “Omnibus Plan”) and an additional 500,000 shares of Common Stock that may be issued under the Clipper Realty Inc. 2015 Non-Employee Director Plan (the “Director Plan,” and collectively with the Omnibus Plan, the “Plans”). In accordance with Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall be deemed to cover any additional securities which may be issued pursuant to the Plans to prevent dilution from stock splits, stock dividends or similar transactions.
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(2)
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Estimated, in accordance with Rule 457(c) and Rule 457(h) under the Securities Act, solely for the purpose of calculating the registration fee, based upon the average of the high and low sale prices for shares of Common Stock on the New York Stock Exchange on July 30, 2024.
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