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REGISTRATION NO. _____________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TRANSCONTINENTAL REALTY INVESTORS, INC.
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(Exact name of registrant as specified in governing instruments)
Nevada 94-6565852
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1800 Valley View Lane, Suite 300, Dallas, Texas 75234
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(Address of Principal Executive Offices) (Zip Code)
Director Stock Option Plan
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(Full title of the plan)
Robert A. Waldman, Esq.
Senior Vice President, General Counsel and Secretary
1800 Valley View Lane, Suite 300
Dallas, Texas 75234
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(Name and address of agent for service)
(469) 522-4200 o (469) 522-4299 (Fax)
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(Telephone number, including area code, of agent for service)
With a Copy to:
Steven C. Metzger, Esq.
Prager, Metzger & Kroemer PLLC
2626 Cole Avenue, Suite 900
Dallas, Texas 75204
(214) 969-7600 o (214) 523-3838 (Fax)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed maximum
Title of securities Amount to be maximum offering aggregate offering Amount of
to be registered registered (1) price per units(s) price (2) registration fee (2)
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<S> <C> <C> <C> <C>
Transcontinental Realty 140,000 $ 14.88 $ 2,010,750 $ 530.84
Investors, Inc. Common Shares
Stock, par value $0.01
per share
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</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
registration statement also covers an indeterminate additional amount
of shares of Common Stock to be offered or sold pursuant to the
antidilution provisions of the Director Stock Option Plan.
(2) Calculated based on 25,000 shares subject to options issued under the
Director Stock Option Plan at an exercise price of $14.88 per share,
and the remaining 115,000 shares at a price per share calculated on the
basis of the closing sales price per share, as reported on NYSE on
November 29, 2000, of $14.25, all in accordance with Rule 457(h)
promulgated under the Securities Act of 1933, as amended.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents, which have been previously filed with the
Securities and Exchange Commission (the "Commission") by Transcontinental Realty
Investors, Inc. (the "Company" or "TCI"), are incorporated by reference in this
Registration Statement:
(a) Annual Report on Form 10-K for the year ended December 31, 1999,
which contains audited consolidated financial statements and schedules of the
Company for the three fiscal years ended December 31, 1999 (the "1999 Form
10-K").
(b) All reports filed by the Company pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since December 31, 1999.
(c) The description of the Company's common stock, par value $.01 per
share (the "Common Stock"), contained in the Company's Registration Statement on
Form 8-B, filed with the Commission on March 19, 1992, including any amendment
or report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement, which indicate that all
of the shares of Common Stock offered have been sold or which deregisters all of
such shares 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 statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall 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 Articles of Incorporation provide that Transcontinental Realty
Investors, Inc. "shall indemnify to the fullest extent authorized or permitted
by law (as now or hereafter in effect) . . . to any person made or threatened to
be made a party or witness to any action, suit or proceeding (whether civil or
criminal otherwise) by reason of the fact that such person is or was a director,
officer, employee or agent of Transcontinental Realty Investors, Inc. . . . .
Further, the Bylaws provide that "[e]ach officer, director or employee . . .
shall be indemnified . . . to the full extent permitted under Chapter 78 of the
Nevada Revised Statutes and other applicable law." Pursuant to the Nevada
Revised Statutes ("NRS"), a corporation may indemnify persons for expenses
related to an action, suit or proceeding, except an action by or in the right of
the corporation, by reason of the fact that such person is or was a director,
officer, employee or agent, if such person acted in good faith and in a manner
which he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, if such
person had no reasonable cause to believe his conduct was unlawful. The expenses
indemnified against in this provision include attorneys' fees, judgments, fines
and amounts paid in settlement actually and reasonably incurred in connection
with the action, suit or proceeding. The NRS further provides that a corporation
may indemnify persons for attorneys' fees related to an action, suit or
proceeding by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that such person is or was a director, officer,
employee or agent, if such person acted in good faith
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and in a manner which he reasonably believed to be in or not opposed to the best
interests of the corporation. The corporation may also indemnify directors for
amounts paid in judgments and settlements in such a suit, but only if ordered by
a court after determining that the person is "fairly and reasonably" entitled to
indemnity.
Under the Management Liability Provision (Article NINTH of the Articles
of Incorporation), the directors do not have personal liability to the Company
or its stockholders for monetary damages for any breach of their fiduciary
duties as directors (including, without limitation, any liability for gross
negligence in the performance of their duties), except (i) for acts or omissions
which involve intentional misconduct, fraud or a knowing violation of law or
(ii) for the payment of dividends in violation of NRS 78.300. By precluding
personal liability for certain breaches of fiduciary duty, including grossly
negligent business decisions in evaluating takeover proposals to acquire the
Company, the Management Liability Provision supplements indemnification rights
afforded under The Company's Articles of Incorporation and Bylaws which provide,
in substance, that the Company shall indemnify its directors, officers,
employees and agents to the fullest extent permitted by the NRS and other
applicable laws.
Insofar as indemnification by Transcontinental Realty Investors, Inc.
for liabilities arising under the Securities Act of 1933, as amended (the
"Securities Act"), may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed that in the opinion of the Commission 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.
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<CAPTION>
Exhibit
Designation Description
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<S> <C>
*5.1 Form of opinion of Prager, Metzger & Kroemer PLLC as to the
legality of the securities.
*5.2 Form of opinion of Gordon & Silver, Ltd. as to the legality of
the securities.
23.1 Consent of Prager, Metzger & Kroemer PLLC (included in Exhibit
5.1)
23.2 Consent of Gordon & Silver, Ltd. (included in Exhibit 5.2)
*23.3 Consent of BDO Seidman, LLP
24.1 Power of Attorney (set forth on signature page).
</TABLE>
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;
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* Filed herewith.
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(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;
(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 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
periodic reports filed by the registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the Registration Statement.
1. 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.
2. To remove from the 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 15(d) of the Securities
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 by the Registrant for liabilities
arising under the Securities Act may be permitted to directors, officers, and
controlling persons of the Registrant pursuant to the provisions described in
Item 6 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 by the Registrant 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, subject 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.
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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 a Form S-8 and has duly caused this Registration
Statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Dallas, State of Texas, on November
29, 2000.
TRANSCONTINENTAL REALTY INVESTORS, INC.
By: /s/ Karl L. Blaha
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Karl L. Blaha, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below on this Registration Statement constitutes and appoints each of Karl L.
Blaha and Mark W. Branigan, his true and lawful attorney-in-fact and agent, 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 (until revoked in writing) to
sign any and all amendments (including post- effective amendments thereto) to
this Registration Statement of Transcontinental Realty Investors, Inc. and to
file same, with all exhibits thereto, and other documents in connection
therewith with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent, or any of them, or their or his or her substitute or
substitutes, 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 might or could do in person, hereby ratifying and confirming all that 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 or amendment thereto has been signed below by the
following persons in the capacities and on the date indicated.
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<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Ted P. Stokely Chairman of the Board of Directors November 29, 2000
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Ted P. Stokely
/s/ R. Douglas Leonhard Director November 29, 2000
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R. Douglas Leonhard
/s/ Murray Shaw Director November 29, 2000
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Murray Shaw
/s/ Martin L. White Director November 29, 2000
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Martin L. White
/s/ Edward G. Zampa Director November 29, 2000
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Edward G. Zampa
/s/ Karl L. Blaha President (Principal Executive Officer) November 29, 2000
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Karl L. Blaha
/s/ Mark W. Branigan Executive Vice President and Chief November 29, 2000
--------------------------------------- Financial Officer (Principal Financial
Mark W. Branigan and Accounting Officer)
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INDEX TO EXHIBITS
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
*5.1 Form of opinion of Prager, Metzger & Kroemer PLLC as to the
legality of the securities.
*5.2 Form of opinion of Gordon & Silver, Ltd. as to the legality of
the securities.
23.1 Consent of Prager, Metzger & Kroemer PLLC (included in Exhibit
5.1)
23.2 Consent of Gordon & Silver, Ltd. (included in Exhibit 5.2)
*23.3 Consent of BDO Seidman, LLP
24.1 Power of Attorney (set forth on signature page).
</TABLE>
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* Filed herewith.
