As filed with the Securities and Exchange Commission on September 1, 1999
Registration No.333-________
==========================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
REGISTRATION STATEMENT ON FORM S-8
Under
THE SECURITIES ACT OF 1933
____________________
MARGATE INDUSTRIES, INC.
------------------------
(Exact name of Registrant as specified in its charter)
DELAWARE 84-8963939
- --------------------------------- -------------------------
(State or other jurisdiction (IRS Employer I.D. Number
of incorporation or organization)
129 N. MAIN STREET
YALE, MICHIGAN 48097
(Address of Principal Executive Offices, Including Zip Code)
MARGATE SERVICES AGREEMENT
--------------------------
(Full title of the plan)
William H. Hopton
Margate Industries, Inc.
129 N. Main Street
Yale, Michigan 48097
(810) 387-4300
--------------------------------------------------------
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==============================================================================================
Title Proposed Proposed maximum Amount
of securities Amount to maximum offering aggregate of registration
to be registered be registered(1) price per share(2) offering price(2) fee(2)
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 18,000 shares $1.875 $33,750 $278.00
==============================================================================================
</TABLE>
(1) The number of shares being registered is the maximum aggregate number
of shares presently issuable under the Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457, based on the closing sale price reported by
NASDAQ on August 31, 1999.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
----------------
On August 12, 1999, the Registrant entered into a written agreement
with Lambert, Edwards & Associates, Inc. ("LE&A") of Grand Rapids, Michigan
to provide public and investor relations services. The services include,
but are not limited to, drafting and disseminating news releases, annual
report, fact sheets and other related material, media relations, account
coordination and other agreed on services. None of the above services
rendered by LE&A are in connection with, or the furtherance of, the offer
or sale of securities in any capital-raising transaction.
The required Plan Information is included in a written services
agreement dated August 12, 1999 and such other documents being maintained
and delivered by the Registrant as required by Rule 428 of the Securities
Act of 1933, as amended (the "Act").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
-----------------------------------------------------------
The Registrant shall provide to the participants a written statement
advising them of the availability, without charge, upon written or oral
request, of documents incorporated by reference in item 3 of Part II hereof
and of documents required to be delivered pursuant to Rule 428(b) under the
Act. The statement will include the address listing the title or
department and telephone number to which the request is to be directed.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
---------------------------------------
The following documents filed with the Commission by the Registrant
are incorporated into this Registration Statement by this reference:
1. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999; and
2. The Registrant's Definitive Proxy Materials dated June 10, 1999;
and
3. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999; and
4. The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998; and
5. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998.
All documents filed by the Registrant pursuant to Sections 12(a),
12(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to
the filing of a post-effective amendment which indicates that all shares
offered hereunder have been sold or which de-registers 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 such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
-------------------------
No description of the class of securities to be offered is required
under this Item because of the class of securities to be offered is
registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
The Company's Restated Certificate of Incorporation and amendments
thereto (the "Restated Certificate") and Bylaws provides that the Company
shall indemnify each person who is or was a director, officer or employee
of the Company to the fullest extent permitted under Section 145 of the
Delaware General Corporation Law. Section 145 of the Delaware General
Corporation Law empowers a Delaware corporation to indemnify any person who
was or is a
II-1
<PAGE>
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
such corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of such corporation, or is or was
serving at the request of such corporation as a director, officer, employee
or agent of another corporation or enterprise. A corporation may indemnify
such person against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if he acted in
good faith and in a manner 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, had no reasonable cause to believe his conduct was
unlawful. A corporation may, in advance of the final disposition of any
civil, criminal, administrative or investigative action, suit or
proceeding, pay the expenses (including attorneys' fees) incurred by any
officer or director in defending such action, provided that the director or
officer undertakes to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the corporation.
A Delaware corporation may indemnify officers and directors in an
action by or in the right of the corporation to procure a judgment in its
favor under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged
to be liable to the corporation. Where an officer or director is
successful on the merits or otherwise in the defense of any action referred
to above, the corporation must indemnify him against the expenses
(including attorneys' fees) which he actually and reasonably incurred in
connection therewith. The indemnification provided is not deemed to be
exclusive of any other rights to which an officer or director may be
entitled under any corporation's bylaw, agreement, vote or otherwise.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, 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
Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act of 1933, as amended, and is
therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not applicable.
ITEM 8. EXHIBITS.
--------
The following is a complete list of exhibits filed as a part of this
Registration Statement, which Exhibits are incorporated herein.
5.1 Opinion of Berenbaum, Weinshienk & Eason, P.C., Attorneys at Law
10.2 Services Agreement between the Registrant and Lambert, Edwards &
Associates, Inc.
II-2
<PAGE>
24.1 Consent of Berenbaum, Weinshienk & Eason, P.C., Attorneys at Law
- (Included in Exhibit 5.1)
24.2 Consent of Perrin Fordree & Company, P.C.
ITEM 9. UNDERTAKINGS.
------------
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are
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;
(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 paragraph (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in an amendment by those
paragraphs is included in periodic reports filed by the Registration
pursuant to Section 12 or 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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) For purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to
Section 12(a) or 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.
(c) 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
II-3
<PAGE>
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 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 Act and
will be governed by the final adjudication of such issue.
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<PAGE>
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 and County of St. Claire, State of
Michigan on August 31, 1999.
MARGATE INDUSTRIES, INC.
Registrant
By /s/ WILLIAM H. HOPTON
--------------------------------------
William H. Hopton, President
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.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ William H. Hopton President, Chief Financial August 31, 1999
- ------------------------- Officer, Treasurer and Director
William H. Hopton
/s/ David A. Widlak Vice President, Secretary and August 31, 1999
- ------------------------- Director
David A. Widlak
/s/ Delbert W. Mullens Director August 31, 1999
- -------------------------
Delbert W. Mullens
/s/ Dennis R. Ledue Director August 31, 1999
- -------------------------
Dennis R. Ledue
II-5
BERENBAUM, WEINSHIENK & EASON, P.C.
[LETTERHEAD]
August 30, 1999
Board of Directors
Margate Industries, Inc.
129 N. Main Street
Yale, Michigan 48097
RE: MARGATE INDUSTRIES, INC.
REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
I have acted as counsel to Margate Industries, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing
with the U.S. Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Act"), of the Company's
Registration Statement on Form S-8 (the "Registration Statement"). This
Registration Statement relates to the registration under the Act of 18,000
shares of the Company's common stock, $.001 par value (the "Common Stock")
which may be issued to Lambert, Edwards 7 Associates, Inc., the financial
consultant to the Company.
In rendering this opinion, we have reviewed the Registration
Statement, as well as a copy of the Company's certificate of incorporation
and bylaws, each as amended to date. We have also reviewed such documents
and such statutes, rules and judicial precedents as we have deemed
necessary for the opinions expressed herein.
In rendering this opinion, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of
documents submitted to us as originals, the conformity to original
documents of documents submitted to us as certified or photostatic copies,
and the authenticity of originals of such photostatic copies.
Based upon and in reliance upon the foregoing, and subject to the
qualifications and limitations herein set forth, we are of the opinion that
the shares of Common Stock issuable to Lambert, Edwards & Associates, Inc.,
have been duly and validly authorized and, when issued and sold and by the
Registration Statement, will be validly issued, fully paid and
nonassessable.
<PAGE>
Board of Directors
Margate Industries, Inc.
August 30, 1999
Page 2
We consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement.
This opinion may not be used, circulated, quoted or otherwise referred
to for any other purpose without prior written consent and may not be
relied upon by any person or entity other than the Company and its
successors and assigns. This opinion is based upon our knowledge of law
and facts as of this date. We assume no duty to communicate to you with
respect to any matter which comes to our attention hereafter.
Very truly yours,
BERENBAUM, WEINSHIENK & EASON, P.C.
By: John B. Wills
JBW/db
EXHIBIT 10.2
LE&A
Lambert, Edwards & Associates, Inc.
Public and Investor Relations
190 Monroe N.W.
4th Floor
Grand Rapids
Michigan 49503
P: 616-293-0500
F: 616-293-0800
E: [email protected]
August 12, 1999
Mr. William Hopton
President and CEO
Margate Industries, Inc.
129 M. Main St.
Yale, MI 48097
Dear Bill:
You have asked Lambert, Edwards & Associates, Inc. ("LE&A") to provide
public and investor relations services to Margate Industries, Inc.
("Margate"). This letter outlines the terms of the agreement between your
firm and ours.
Margate has asked LE&A to provide professional services in relation to its
ongoing investor relations needs. These services shall include, but not be
limited to, writing and dissemination of news releases, annual report, fact
sheets and other related material; introduction to investors, including
market makers, fund managers, brokerage firm analysts, investment
representatives and individual investors; media relations; account
coordination and other services as mutually agreed upon.
This agreement does not include special projects related to marketing,
crisis communications or other shareholder issues that may arise during the
course of engagement. These issues may include hostile takeover attempts,
proxy fights, change of control or other events that happen in the normal
course of business.
LE&A will provide professional services for a period of 12 months in
exchange for a monthly fee of $1,500 cash plus 1,500 shares of Margate
Industries common stock. For the cash portion, Margate Industries agrees
to pay LE&A $1,500 plus reimbursable expenses as detailed below, each month
by check.
Additionally, Margate Industries shall reserve and place in escrow, with an
attorney that is agreed upon by both parties, not less than 18,000 shares
of Margate Industries's publicly traded common stock. This stock shall be
registered and unrestricted, free-trading and shall bear no legend. The
stock will be released from escrow to LE&A in 1/12th increments - or 1,500
shares each month - on the 1st day of each month, beginning September 1,
1999. Any dividends or stock splits applicable to common shares of CGUL
stock will be placed in escrow and disbursed to LE&A during the final month
of this agreement. LE&A shall retain all voting rights related to the
shares at all times.
<PAGE>
MARGATE INDUSTRIES AGREEMENT/PAGE 2
Margate Industries agrees to reimburse LE&A, in cash, for any reasonable
out-of-pocket expenses incurred in servicing Margate, including, but not
limited to, mileage, postage, long-distance phone, on-line services,
photocopying, printing, production or other items agreed upon by LE&A and
Margate. Services purchased on behalf of Margate Industries will include
the standard agency mark-up of 17.65%.
LE&A handles all of its clients matters with confidentiality. We are
willing to sign a confidentiality agreement if provided by Margate;
otherwise it should be the understanding of all parties that all matters
and materials shared between the two firms are confidential and private.
LE&A will comply with all applicable laws, including federal, state and
local laws, ordinances and regulations relating to securities and
securities trading, in performing this Agreement. In certain instances and
in line with industry practices, LE&A may disclose information relative to
its engagement with Margate. LE&A shall be entitled to rely upon
information provided by Margate, provided that LE&A exercises reasonable
diligence and professional judgment. Margate Industries agrees to assume
all liability for all claims against LE&A or damages incurred by LE&A.
This includes, without limitation, attorney and related legal fees that may
arise from a lawsuit, claim or other proceeding brought against LE&A based
on work performed or other materials that are created and disseminated on
behalf of Margate. All materials and information disseminated by LE&A on
behalf of Margate Industries will be approved by Margate Industries prior
to distribution.
Work will commence upon LE&A's receipt of the first month's cash fees, a
signed original contract and the placement of 18,000 shares of common stock
in an escrow account. In the future, we will provide an invoice to Margate
Industries within five business days after the 1st of each calendar month,
including a breakdown of hours worked and out-of-pocket expenses. Terms
will be 15 days net.
Please sign this document and return an original copy to Lambert, Edwards
& Associates, Inc. at 190 Monroe NW, 4th Floor, Grand Rapids, Michigan, 49503.
/s/ WILLIAM H. HOPTON /s/ BRIAN EDWARDS
- ----------------------------------- -----------------------------------
Mr. William Hopton Mr. Brian Edwards
President and CEO Secretary/Treasurer
Margate Industries, Inc. Lambert, Edwards & Associates, Inc.
8/14/99 8/12/99
- ---------- ----------
Date Date
EXHIBIT 24.2
Perrin Fordree & Company, P.C.
[LETTERHEAD]
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Margate Industries, Inc. on Form S-8 of our report dated February 10,
1999, incorporated in the Annual Report on Form 10-K of Margate Industries,
Inc. for the year ended December 31, 1998.
/s/ PERRIN FORDREE & COMPANY, P.C.
August 30, 1999
