As filed with the Securities and Exchange Commission on April 9, 1999.
Registration No. 333-____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Incorporated MERITAGE HOSPITALITY GROUP INC. I.R.S. Employer
Under the Laws 40 PEARL STREET, N.W., SUITE 900 Identification No.
of Michigan GRAND RAPIDS, MICHIGAN 49503 38-2730460
(616)776-2600
1999 DIRECTORS' COMPENSATION PLAN
Gary P. Kreider, Esq.
Keating, Muething & Klekamp, P.L.L.
One East Fourth Street
Cincinnati, Ohio 45202
(513) 579-6411
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(Agent for Service of Process)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities To Be Price Offering Registration
To Be Registered Registered(1) Per Share(2) Price(2) Fee(3)
- ------------------ -------------- ------------ ----------- -------------
Common Stock, 60,000 Shares $1.695 $101,700.00 $28.27
No par value
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(1) This Registration Statement is filed for up to 60,000 shares, granted
pursuant to the 1999 Directors' Compensation Plan.
(2) Estimated to calculate registration fee.
(3) Calculated pursuant to Rule 457(h) based on the average of the high and low
prices of the Common Stock on the OTC Bulletin Board on April 6, 1999 of
$1.695 per share.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Meritage Hospitality Group Inc., with
the Securities and Exchange Commission are incorporated herein by reference and
made a part hereof:
1. The Company's Annual Report on Form 10-K for the Fiscal Year ended
November 30, 1998.
2. The description of the Common Stock contained in the Registration
Statement on Form 8-A filed by the Company with the Commission on June
24, 1996.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, prior to the filing of a post-effective amendment which indicates that
all Common Stock offered has been sold or which deregisters all Common Stock
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 such
documents.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
The legality of the Common Stock offered hereby will be passed upon for
the Company by Keating, Muething & Klekamp, P.L.L., 1400 Provident Tower, One
East Fourth Street, Cincinnati, Ohio 45202. Attorneys of Keating, Muething &
Klekamp, P.L.L. participating in matters relating to this Form S-8 own
approximately 1,670 shares of the Company's Common Stock.
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Item 6. Liability; Indemnification
Section 450.1561 of the Michigan Business Corporation Act ("MBCA")
provides generally and in pertinent part that a Michigan corporation may
indemnify its directors and officers against expenses, including judgments,
penalties, fines, attorneys' fees and amounts paid in settlement actually and
reasonably incurred by them in connection with any civil or criminal suit or
action, other than actions by or in the right of the corporation, if the person
acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the corporation or its shareholders, and
with respect to any criminal suit or proceedings, if the person had no
reasonable cause to believe his conduct was unlawful. Section 450.1562 provides
that, in connection with the defense or settlement of any action by or in the
right of the corporation, a Michigan corporation may indemnify its directors and
officers against expenses actually and reasonably incurred by them in connection
with the matters in issue, if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation or its shareholders. The right to indemnification is mandatory in
the case of a director or officer who is successful on the merits or otherwise
and if the expenses are reasonable and actually incurred. Permissive
indemnification is to be made by a court of competent jurisdiction, the majority
vote of a quorum of disinterested directors, the written opinion of independent
legal counsel, by all independent directors who are not parties to or threatened
to be made parties to the action or suit or by the disinterested shareholders or
a committee designated by the Board and consisting of directors who are not
parties to, or threatened to be made parties to, the proceedings.
Meritage, through its Bylaws and by way of contracts of
indemnification, provides that its officers and directors shall be indemnified
to the fullest extent authorized or permitted by law.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits*
Exhibit 4 1999 Directors' Compensation Plan (incorporated by reference
to the Company's Form 10-K filed on February 27, 1999)
Exhibit 5 Opinion of Keating, Muething & Klekamp, P.L.L.
Exhibit 23.1 Consent of Grant Thornton LLP
Exhibit 23.2 Consent of Keating, Muething & Klekamp, P.L.L.
(included in Exhibit 5)
Exhibit 24 Power of Attorney (contained on the signature page)
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*All Exhibits filed herewith.
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Item 9. Undertakings
9.1 The undersigned registrant hereby undertakes 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 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 the Registration Statement or any
material change to such information in the Registration Statement; provided,
however, that (i) and (ii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic 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 in the Registration Statement.
9.2 The undersigned registrant hereby undertakes 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.
9.3 The undersigned registrant hereby undertakes 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.
9.4 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.
9.5 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 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
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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.
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 Grand Rapids, Michigan, on March 31, 1999.
MERITAGE HOSPITALITY GROUP INC.
By: /s/ Robert E. Schermer, Jr.
--------------------------------
Robert E. Schermer, Jr.
President and Chief Executive
Officer (Principal Executive Officer)
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. Persons whose names are marked with an
asterisk (*) below hereby designate Robert E. Schermer, Jr. and James R.
Saalfeld as their attorney-in-fact to sign all amendments, including any
post-effective amendments, to this Registration Statement.
Signature Capacity Date
--------- -------- ----
*/s/ Robert E. Schermer, Sr.
- ---------------------------- Chairman of the Board March 30, 1999
of Directors
Robert E. Schermer, Sr.
*/s/ Robert E. Schermer, Jr.
- ---------------------------- President, Chief Executive March 31, 1999
Robert E. Schermer, Jr. Officer and Director
(Principal Executive Officer)
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*/s/ Pauline M. Krywanski
- ---------------------------- Vice President, Chief Financial March 31, 1999
Pauline M. Krywanski Officer and Treasurer
(Principal Financial Officer
and Principal Accounting
Officer)
*/s/James P. Bishop
- --------------------------- Director March 31, 1999
James P. Bishop
*/s/ Christopher P. Hendy
- ---------------------------- Director March 30, 1999
Christopher P. Hendy
*/s/ Joseph L. Maggini
- ---------------------------- Director March 31, 1999
Joseph L. Maggini
*/s/ Jerry L. Ruyan
- ---------------------------- Director March 30, 1999
Jerry L. Ruyan
EXHIBIT 5
[KEATING, MUETHING & KLEKAMP, P.L.L. LETTERHEAD]
PAUL V. MUETHING
DIRECT DIAL: (513) 579-6516
FACSIMILE: (513) 579-6956
E-MAIL: PMUETHING@KMKLAWCOM
April 9, 1999
Meritage Hospitality Group Inc.
40 Pearl Street, N.W., Suite 900
Grand Rapids, Michigan 49503
Ladies and Gentlemen:
This firm is general counsel to Meritage Hospitality Group Inc. and as
such, we are familiar with the Company's Articles of Incorporation, Code of
Regulations and corporate proceedings generally. We have reviewed the corporate
records as to the establishment of the Company's 1999 Directors' Compensation
Plan which calls for the issuance of shares of Common Stock to employees of the
Company and its subsidiaries. Based solely upon such examination, we are of the
opinion that:
1. The Company is a duly organized and validly existing corporation under
the laws of the State of Michigan; and
2. The Company has taken all necessary and required corporate actions in
connection with the proposed issuance of 60,000 shares of Common Stock pursuant
to the 1999 Directors' Compensation Plan, and the Common Stock, when issued and
delivered, will be validly issued, fully paid and non-assessable shares of
Common Stock of the Company free of any claim of pre-emptive rights.
We hereby consent to be named in the Registration Statement and the
Prospectus part thereof as the attorneys who have passed upon legal matters in
connection with the issuance of the aforesaid Common Stock and to the filing of
this opinion as an exhibit to the Registration Statement.
Very truly yours,
KEATING, MUETHING & KLEKAMP, P.L.L.
BY: /s/Paul V. Muething
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Paul V. Muething
Exhibit 23.1
Consent of Independent Certified Public Accountants
We have issued our report dated December 19, 1998, accompanying the consolidated
financial statements and schedules incorporated by reference included in the
Annual Report of Meritage Hospitality Group Inc. on Form 10-K for the year ended
December 31, 1998. We hereby consent to the incorporation by reference of said
report in the Registration Statement of Meritage Hospitality Group Inc. on Form
S-8 to be filed on or about April 9, 1999.
/s/ Grant Thornton LLP
Grant Thornton LLP
Southfield, Michigan
April 9, 1999
