As Filed
With the Securities and Exchange Commission on December 30, 2008
Registration
No. 333-________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
WHITESTONE
REIT
(Exact
name of registrant as specified in its Charter)
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Maryland
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76-0594970
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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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2600
South Gessner, Suite 500
Houston,
Texas 77063
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(Address
of Principal Executive Offices)
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WHITESTONE
REIT
2008
LONG-TERM EQUITY INCENTIVE OWNERSHIP PLAN
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(Full
title of the plan)
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James
C. Mastandrea
Chairman
and Chief Executive Officer
2600
South Gessner, Suite 500
Houston,
Texas 77063
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(Name
and Address of agent for service)
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(713)
827-9595
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(Telephone
number, including area code, of agent for service)
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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. (Check one):
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Large
accelerated filer
¨ Accelerated
filer
Non-accelerated
filer
ý Smaller
reporting company
¨
(Do
not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
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Title
of securities
to
be registered
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Amount
to be
registered (1)
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Proposed
maximum
offering
price
per share (2)
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Proposed
maximum
aggregate
offering
price (2)
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Amount
of
registration
fee
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Common
shares
of
beneficial
interest,
$0.001
par value
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2,063,885(3)
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$5.15
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$10,629,007.75
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$417.72
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(1)
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Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the
“Securities Act”), this registration statement includes an indeterminate
number of additional common shares of beneficial interest, $0.001 par
value (the “Common Shares”), which may be offered and issued to prevent
dilution from stock splits, stock dividends or similar transactions as
provided in the Whitestone REIT 2008 Long-Term Equity Incentive Ownership
Plan (the
“Plan”).
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(2)
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Estimated
solely for the purpose of calculating the registration fee, pursuant to
Rule 457(h) under the Securities Act and based on the book value of the
Common Shares as of December 10,
2008.
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(3) |
This
figure does not include the additional Common Shares that will be added to
the Common Shares authorized for issuance under the Plan pursuant to an
“evergreen” provision contained in the Plan. Pursuant to such provision,
the maximum aggregate number of Common Shares that may be issued under the
Plan will be increased upon each issuance of Common Shares by Whitestone
REIT (the “Registrant” or the “Company”) so that at any time the maximum
number of Common Shares that may be issued under the Plan shall equal
12.5% of the aggregated number of Common Shares and units of Whitestone
REIT Operating Partnership, L.P., issued and
outstanding.
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PART
I
Information
Required in the Section 10(a) Prospectus
The Registrant has sent or given or
will send or give documents containing the information specified by Part I of
this Form S-8 Registration Statement (the “Registration Statement”) to
participants in the Plan to which this Registration Statement relates, as
specified in Rule 428(b)(1) promulgated by the Securities and Exchange
Commission (the “SEC” or the “Commission”) under the Securities Act. The
Registrant is not filing such documents with the SEC, but these documents (along
with the documents incorporated by reference into the Registration Statement
pursuant to Item 3 of Part II hereof) 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 by the
Registrant with the SEC, pursuant to the Securities Act or the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), are hereby incorporated
by reference and shall be deemed to be a part hereof from the date of filing of
such document:
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(1)
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The
Registrant’s Annual Report on Form 10-K for the year ended December 31,
2007, as amended;
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(2)
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The
Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31,
2008, as amended, the Registrant’s Quarterly Report on Form 10-Q for the
quarter ended June 30, 2008, as amended and the Registrant’s Quarterly
Report on Form 10-Q for the quarter ended September 30,
2008;
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(3)
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The
Registrant’s Current Reports on Form 8-K filed with the Commission on
February 12, 2008, March 3, 2008, March 17, 2008, April 1, 2008 (Item
8.01), April 14, 2008, April 17, 2008, May 20, 2008, June 4, 2008, July
31, 2008, August 1, 2008, August 8, 2008, October 1, 2008 October 7, 2008
October 9, 2008 and December 19, 2008;
and
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(4)
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The
description of the Registrant’s Common Shares, par value $0.001 per share,
contained in the Registrant’s Registration Statement on Form 10
(Commission File No. 000-50256) filed with the Commission on April 30,
2003, as amended.
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All documents filed by the Registrant
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act after the
date hereof and prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents. Notwithstanding the foregoing, information
furnished under Items 2.02 and 7.01 of any Current Report on Form 8-K, including
the related exhibits, is not incorporated by reference in this Registration
Statement or the related prospectus.
Item
4. Description of
Securities.
Not applicable.
Item
5. Interests of Named Experts
and Counsel.
Not
applicable.
Item
6. Indemnification of Trustees
and Officers.
Article IX of the Registrant’s Articles
of Amendment and Restatement, as filed with and accepted for record by the State
Department of Assessments and Taxation of Maryland on July 31, 2008 (the
“Declaration of Trust”), provides that, to the maximum extent that Maryland law
from time to time permits limitation of liability of trustees and officers of
trusts, no trustee or officer shall be liable to the Company or its shareholders
for money damages.
Maryland law provides in general that a
provision in the declaration of trust of a Maryland real estate investment trust
limiting the liability of trustees and officers may not limit their liability to
the trust or its shareholders (i) to the extent it is proved that the person
actually received an improper benefit or profit in money, property or services
for the amount of the benefit or profit actually received, or (ii) to the extent
that a judgment or other final adjudication adverse to the person is entered in
a proceeding based on a finding that the person’s action, or failure to act, was
the result of active and deliberate dishonesty and was material to the cause of
action adjudicated in the proceeding.
The Maryland REIT Law (the “MRL”)
provides that a Maryland real estate investment trust may indemnify and advance
expenses to trustees, officers, employees and agents of the trust to the same
extent as is permitted for officers, directors, employees and agent of a
Maryland corporation under the Maryland General Corporation Law (the “MGCL”).
The MGCL generally permits a corporation to indemnify any director or officer
made or threatened to be made a party to any proceeding by reason of service as
a director or officer unless it is established that: (i) the act or omission of
the director or officer was material to the matter giving rise to the proceeding
and was committed in bad faith or was the result of active and deliberate
dishonesty; (ii) the director or officer actually received an improper personal
benefit in money, property or services; or (iii) in the case of any criminal
proceeding, the director or officer had reasonable cause to believe that the act
or omission was unlawful. Indemnification may be against judgments, penalties,
fines, settlements and reasonable expenses (including attorneys’ fees) actually
incurred by the director or officer in connection with the
proceeding. 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 corporation or in the corporation’s right, or for a judgment of liability
on the basis that personal benefit was improperly received, is limited to
expenses. The MGCL permits a corporation to advance reasonable
expenses to a director or officer upon 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.
Under the MGCL, unless limited by
charter, a corporation is required to indemnify a director or officer for
reasonable expenses incurred if the director or officer has been successful, on
the merits or otherwise, in defense of any proceeding to which the director or
officer is made or threatened to be made a party by reason of service as a
director or officer, or in the defense of any claim, issue or matter in such a
proceeding. The Declaration of Trust does not limit such
indemnification of the Registrant’s trustees and officer.
The MGCL also permits a Maryland
corporation to indemnify its employees and agents to the same extent as its
directors and officers.
The Declaration of Trust authorizes the
Registrant, to the maximum extent permitted by Maryland law, to obligate itself
to indemnify (i) any present or former trustee or officer or (ii) any individual
who, while a trustee or officer and, at the Registrant’s request, serves or has
served another real estate investment trust, corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise as a director,
officer, partner, trustee, employee or agent against any claim or liability
arising from that status and to pay or reimburse their reasonable expenses in
advance of final disposition of a proceeding. The Registrant’s
Amended and Restated Bylaws (the “Bylaws”) obligate the Registrant to provide
such indemnification and advance of expenses. The Declaration of
Trust and Bylaws also permit the Registrant to indemnify and advance expenses to
any individual who served a predecessor of the Registrant in any of the
capacities described above and any employee or agent of the Registrant or its
predecessor.
Indemnification provided or permitted
by the MRL or MGCL may not be deemed exclusive of any other rights, by
indemnification or otherwise, to which a trustee or officer may be entitled
under the Declaration of Trust, the Bylaws, any resolution of shareholders or
trustees, any agreement or otherwise.
Item
7. Exemption from Registration
Claimed.
None.
Item
8. Exhibits.
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4.1
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Whitestone
REIT 2008 Long-Term Equity Incentive Ownership Plan (incorporated by
reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K
filed with the SEC on July 31, 2008).
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| 5.1 |
Opinion
of Venable LLP, as to the legality of securities registered. |
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| 23.1 |
Consent
of Pannell Kerr Forster of Texas, P.C., Independent Registered Public
Accounting Firm. |
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| 23.2 |
Consent
of Venable LLP (included in Exhibit 5.1). |
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| 24.1 |
Power
of attorney (included on signature page). |
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Item
9. Undertakings.
A. The
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 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 a 20% 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
clauses (A)(1)(i) and (A)(1)(ii) of this section do not apply if the
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 into this Registration Statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
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.
(4) That,
for the purpose of determining liability under the Securities Act to any
purchaser:
(i) If the Registrant is relying on Rule
430B:
(A) Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by section 10(a) of the Securities Act shall
be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or
the date of the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement relating to the
securities in the registration statement to which that prospectus relates, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date; or
(ii) If
the Registrant is subject to Rule 430C, each prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than prospectuses filed in
reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after effectiveness.
Provided, however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as to a purchaser
with a time of contract of sale prior to such first use, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such date of first use.
(5)
That, for the purpose of determining liability of the Registrant under the
Securities Act to any purchaser in the initial distribution of the
securities:
The
undersigned Registrant undertakes that in a primary offering of securities of
the undersigned Registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned Registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned Registrant or used or referred to by the undersigned
Registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned Registrant or its securities provided
by or on behalf of the undersigned Registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
B.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this 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 trustees, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a trustee, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such trustee, 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 Houston, State of Texas,
on this 30th day of December, 2008.
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WHITESTONE
REIT |
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By:
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/s/ James
C. Mastandrea |
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James
C. Mastandrea |
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Chairman
and Chief Executive Officer |
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POWER
OF ATTORNEY
KNOW ALL MEN BY THESE
PRESENTS, each person whose signature appears below hereby constitutes
and appoints James C. Mastandrea and David K. Holeman as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his 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 all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and
necessary, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming said attorney-in-fact and agent, or his
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 dates
indicated.
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Signature
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Title
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Date
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/s/
James
C. Mastandrea
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Chairman
of the Board and Chief
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James
C. Mastandrea
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Executive
Officer (Principal Executive
Officer)
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/s/
David
K. Holeman
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Chief
Financial Officer (Principal
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Financial
and Accounting Officer)
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/s/
Donald
F. Keating
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