As filed with the Securities and Exchange Commission on November 12, 2021 

Registration No. 333-

 

UNITED STATES 

SECURITIES AND EXCHANGE COMMISSION 

WASHINGTON, D.C. 20549

 

FORM S-8 

REGISTRATION STATEMENT

UNDER 

THE SECURITIES ACT OF 1933

 

ORION OFFICE REIT INC. 

(Exact Name of Registrant as Specified in Its Charter)

 

Maryland   87-1656425

(State or Other Jurisdiction of

Incorporation or Organization)

 

(IRS Employer

Identification No.)

   

2325 E. Camelback Road, Floor 8

Phoenix, Arizona

  85016
(Address of Principal Executive Offices)   (Zip Code)

 

Orion Office REIT Inc. 2021 Equity Incentive Plan 

(Full Title of the Plan)

 

Paul McDowell 

Orion Office REIT Inc. 

2325 E. Camelback Road, Floor 8 

Phoenix, Arizona 85016 

(602) 698-1002 

(Name and Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)

 

Copy to: 

 

William J. Cernius, Esq. 

Darren Guttenberg, Esq. 

Latham & Watkins LLP 

650 Town Center Drive, 20th Floor 

Costa, Mesa, CA 92626-1925

(714) 540-1235

 

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 ¨ Accelerated filer ¨
       
Non-accelerated filer x Smaller reporting company ¨
       
    Emerging growth company x

 

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 Securities Act. ¨

 

CALCULATION OF REGISTRATION FEE

Title of Securities

to be Registered

Title of Plan

Amount

to be

Registered (1)

Proposed

Maximum

Offering Price

per Share(2)

Proposed

Maximum

Aggregate

Offering Price(2)

Amount of

Registration Fee(2)

Common Stock, par value $0.001 per share Orion Office REIT Inc. 2021 Equity Incentive Plan 3,700,000 $26.00 $96,200,000 $8,917.74

(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall be deemed to cover any additional securities to be offered or issued pursuant to the Orion Office REIT Inc. 2021 Equity Incentive Plan (the “Plan”) from stock splits, stock dividends or similar transactions with respect to the common stock, par value $0.001 per share (“Common Stock”), of Orion Office REIT Inc. (the “Registrant”).

(2) Pursuant to Rule 457(c) and (h) under the Securities Act, the proposed maximum offering price per share was determined based on the average of the high and low “when issued” prices of Common Stock reported by the New York Stock Exchange on November 5, 2021.

 

 

 

 

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The documents containing the information specified in Part I of Form S-8 will be delivered in accordance with Rule 428(b)(1) of the Securities Act. Such documents are not required to be filed with the Securities and Exchange Commission (the “SEC”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents, and the documents incorporated by reference in Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The SEC allows the Registrant to incorporate by reference the information the Registrant files with it, which means that the Registrant can disclose important information to you by referring to those documents. The information incorporated by reference is an important part of this Registration Statement, and information that we file later with the SEC will automatically update and supersede this information. The Registrant incorporates by reference the following documents that the Registrant has filed, or may file, with the SEC:

 

·the Registrant’s Registration Statement on Form 10 (File No. 001-40873) initially filed with the SEC on October 4, 2021 (as amended, the “Form 10”) and declared effective on October 22, 2021;

 

·the description of the Registrant’s common stock included in the Information Statement, filed as Exhibit 99.1 to the Form 10, and all amendments or reports filed for the purpose of updating such description;

 

·the Registrant's Current Report on Form 8-K filed by the Registrant with the SEC on October 25, 2021

 

In addition, all documents the Registrant files with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date of this Registration Statement 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 in this Registration Statement and to be a part hereof from the date of filing of such documents. Any information that the Registrant later files with the SEC will automatically update and supersede the information and statements contained in a document incorporated or deemed to be incorporated by reference herein. Any such information or statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute part of this Registration Statement. Under no circumstances will any information “furnished” to the SEC pursuant to applicable rules and regulations be deemed incorporated herein by reference unless such information expressly provides to the contrary.

 

Item 6. Indemnification of Directors and Officers.

 

The Maryland General Corporation Law (the “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:

 

·actual receipt of an improper benefit or profit in money, property or services, or

 

·active and deliberate dishonesty established by a final judgment as being material to the cause of action.

 

 

The MGCL requires the Registrant (unless the Registrant’s charter provides otherwise, which the Registrant’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 a party by reason of his or her service in that capacity. The MGCL permits the Registrant to indemnify the Registrant’s 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:

 

·the act or omission of the director or officer was material to the matter giving rise to the proceeding and (a) was committed in bad faith or (b) was the result of active and deliberate dishonesty;

 

·the director or officer actually received an improper personal benefit in money, property or services; or

  

·in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful.

 

Under the MGCL, the Registrant may not indemnify a director or officer in a suit by the Registrant or in the Registrant’s right in which the director or officer was adjudged liable to the Registrant or in a suit in which the director or officer was adjudged liable on the basis that personal benefit was improperly received. A court may order indemnification if it determines that the director or officer is fairly and reasonably entitled to indemnification, even though the director or officer did not meet the prescribed standard of conduct or was adjudged liable on the basis that personal benefit was improperly received. However, indemnification for an adverse judgment in a suit by the Registrant or in the Registrant’s right, or for a judgment of liability on the basis that personal benefit was improperly received, is limited to expenses.

 

In addition, the MGCL permits the Registrant to advance reasonable expenses to a director or officer upon the Registrant’s receipt of:

 

·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 Registrant; and

 

·a written undertaking by or on behalf of the director or officer to repay the amount paid or reimbursed by the Registrant if it is ultimately determined that the director or officer did not meet the standard of conduct.

 

The Registrant’s charter obligates it 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:

 

·any present or former director or officer who is made or threatened to be made a party to, or witness in, a proceeding by reason of his or her service in that capacity; or

 

·any individual who, while a director or officer of the Registrant and at the Registrant’s request, serves or has served as a director, officer, partner, trustee, member, manager, trustee, employee or agent of another corporation, REIT, limited liability company, partnership, joint venture, trust, employee benefit plan or any other enterprise and who is made or threatened to be made a party to, or witness in, the proceeding by reason of his or her service in that capacity.

 

The Registrant’s charter also permits the Registrant to indemnify and advance expenses to any person who served a predecessor of Orion in any of the capacities described above and to any employee or agent of Orion or a predecessor of Orion.

 

 

 

The Registrant has entered into indemnification agreements with the Registrant’s current directors and executive officers that provide for indemnification to the maximum extent permitted by Maryland law.

 

Item 8. Exhibits.

 

A list of exhibits filed with this Registration Statement is contained in the exhibits index, which is incorporated by reference.

 

Item 9. Undertakings.

 

The undersigned Registrant hereby undertakes:

 

(1)  To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

 

i. to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

 

ii. to reflect in the prospectus any facts or events arising after the effective date of 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table 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.

 

(2)  That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3)  To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(4)  The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(5)  Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such issue.

 

 

 

EXHIBIT INDEX

 

Exhibit
Number
  Description
3.1*   Amended and Restated Articles of Incorporation.
     
3.2*   Amended and Restated Bylaws.
     
10.1*   Orion Office REIT Inc. 2021 Equity Incentive Plan
     
5.1*   Opinion of Ballard Spahr LLP.
     
23.1*   Consent of KPMG LLP.
     
23.2*   Consent of Deloitte & Touche LLP.
     
23.3*   Consent of Ballard Spahr LLP (included in Exhibit 5.1).
     
24.1*   Power of Attorney (included in the signature page to this Registration Statement)

 

* Filed herewith.

 

 

 

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 San Diego, State of California, on this 12th day of November, 2021.

 

  ORION OFFICE REIT INC.
   
  By:   /s/ Michelle Bushore
    Michelle Bushore
    Executive Vice President, Chief Legal Officer and Secretary

 

POWER OF ATTORNEY

 

Each person whose signature appears below hereby constitutes and appoints Paul McDowell and Gavin Brandon, and each of them singly, his or her true and lawful attorneys-in-fact and agents, 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 any and all additional registration statements pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agents full power and authority to do and perform each and every act in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them or their or his or her 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 as of the dates indicated.

 

Signature   Title   Date
         
/s/ Sumit Roy   Chief Executive Officer and President   November 12, 2021
Sumit Roy   (Principal Executive Officer), Director    
         
/s/ Christie Kelly   Executive Vice President, Chief Financial Officer and Treasurer   November 12, 2021
Christie Kelly   (Principal Financial Officer and Principal Accounting Officer), Director    
         
/s/ Michelle Bushore   Director   November 12, 2021
Michelle Bushore