As filed with the Securities and Exchange Commission on November 17, 1999.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
United Investors Realty Trust
(Exact name of registrant as specified in its charter)
Texas 74-1464203
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
5847 San Felipe, Suite 850
Houston, Texas 77057
(Address, including zip code, of Principal Executive Offices)
United Investors Realty Trust
1999 Open Market Purchase Program
(Full title of the plan)
R. Steven Hamner
Vice President and Chief Financial Officer
5847 San Felipe, Suite 850
Houston, Texas 77057
(713) 781-2860
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
copy to:
Robert V. Jewell, Esq.
Andrew & Kurth L.L.P.
600 Travis, Suite 4200
Houston, Texas 77002
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
CALCULATION OF REGISTRATION FEE
============================================= -------------------- ----------------- -------------- ----------------
Proposed
Proposed Maximum
Amount Maximum Aggregate Amount of
to be Offering Price Offering Registration
Title of Securities to be Registered registered (1)(2) Per Share (3) Price (3) Fee
============================================= ==================== ================= ============== ================
Common Shares of Beneficial Interest, 250,000 Shares $6.375 $1,593,750 $444
no par value
============================================= ==================== ================= ============== ================
</TABLE>
(1) The number of shares of Common Stock registered hereby is subject to
adjustment to prevent dilution resulting from stock splits, stock dividends or
similar transactions.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended (the "Securities Act"), this Registration Statement also covers an
indeterminate amount of plan interests to be offered or sold pursuant to the
Plan. In accordance with Rule 457(h)(2), no separate fee calculations are made
for plan interests.
(3) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) under the Securities Act, based upon
the average of the high and low price per share of the Registrant's Common Stock
on the Nasdaq National Market as reported in the Wall Street Journal on
November 12, 1999.
<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act"). These documents and
the documents incorporated herein by reference pursuant to 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 (the "Prospectus").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
United Investors Realty Trust (the "Company") incorporates herein by
reference the following documents as of their respective dates as filed with the
Securities and Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1998;
(b) The Company's Current Report on Form 8-K/A filed with the Commission
on March 16, 1999;
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999;
(d) The Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1999;
(e) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999; and
(f) The description of the Company's common shares of beneficial interest,
no par value (the "Common Shares"), contained in the Company's
Registration Statement on Form 8-A filed with the Commission on
February 27, 1998, pursuant to Section 12 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
All documents filed by the Company pursuant to Section13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
subsequent to the date of this Registration Statement and prior to the
termination of the offering made hereby shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated herein by reference shall be deemed to be modified or
superseded for purposes of the Registration Statement and the Prospectus to the
extent that a statement contained herein or in any subsequently filed document
which also is, or is deemed to be, incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of the
Registration Statement or the Prospectus.
Item 4. Description of Securities.
The information required by Item 4 is not applicable to this Registration
Statement since 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.
Subsection (B) of Section 9.20 of the Texas Real Estate Investment Trust
Act, as amended (the "Act"), empowers a real estate investment trust to
indemnify any person who was, is, or is threatened to made a named defendant or
respondent in any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, arbitrative, or investigative, any
appeal in such an action, suit, or proceeding, or any inquiry or investigation
that can lead to such an action, suit or proceeding because the person is or was
a trust manager, officer, employee or agent of the real estate investment trust
or is or was serving at the request of the real estate investment trust as a
trust manager, director, officer, partner, venturer, proprietor, trustee,
employee, agent, or similar functionary of another real estate investment trust,
corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan, or other enterprise against expenses (including court costs and
attorney fees), judgments, penalties, fines and settlements if he conducted
himself in good faith and reasonably believed his conduct was in or not opposed
to the best interests of the real estate investment trust and, in the case of
any criminal proceeding, had no reasonable cause to believe that his conduct was
unlawful.
The Act further provides that, except to the extent otherwise permitted by
the Act, a person may not be indemnified in respect of a proceeding in which the
person is found liable on the basis that personal benefit was improperly
received by him or in which the person is found liable to the real estate
investment trust. Indemnification pursuant to Subsection (B) of Section 9.20 of
the Act is limited to reasonable expenses actually incurred and may not be made
in respect of any proceeding in which the person has been found liable for
willful or intentional misconduct in the performance of his duty to the real
estate investment trust.
Subsection (C) of Section 15.10 of the Act provides that a trust manager
shall not be liable for any claims or damages that may result from his acts in
the discharge of any duty imposed or power conferred upon him by the real estate
investment trust, if, in the exercise of ordinary care, he acted in good faith
and in reliance upon information, opinions, reports, or statements, including
financial statements and other financial data, concerning the real estate
investment trust, that were prepared or presented by officers or employees of
the real estate investment trust, legal counsel, public accountants, investment
bankers, or certain other professionals, or a committee of trust manager of
which the trust manager is not a member. In addition, no trust manager shall be
liable to the real estate investment trust for any act, omission, loss, damage,
or expense arising from the performance of his duty to a real estate investment
trust, save only for his own willful misfeasance, willful malfeasance or gross
negligence.
Article Sixteen of our First Amended and Restated Declaration of Trust
provides that we shall indemnify officers and trust managers, as set forth
below:
(a) We shall indemnify every person who is or was serving as our trust
manager or officer and any person who is or was serving at our request as a
trust manager, officer, partner, venturer, proprietor, trustee, employee, agent
or similar functionary of another real estate investment trust, partnership,
joint venture, sole proprietorship, trust, employee benefit plan or other
enterprise with respect to all costs and expenses incurred by such person as a
result of such person being made or threatened to be made a defendant or
respondent in a proceeding by reason of his holding or having held a position
named above in this paragraph.
(b) If the indemnification provided in paragraph (a) is either (i)
insufficient to cover all costs and expenses incurred by any person named in
such paragraph as a result of such person being made or threatened to be made a
defendant or respondent in a proceeding by reason of his holding or having held
a position named in such paragraph or (ii) not permitted by Texas law, we shall
indemnify, to the fullest extent that indemnification is permitted by Texas law,
every person who is or was serving as our trust manager or officer and any
person who is or was serving at our request as a trust manager, officer,
partner, venturer, proprietor, trustee, employee, agent or similar functionary
of another real estate investment trust, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise with respect to
all costs and expenses incurred by such person as a result of such person being
made or threatened to made a defendant or respondent in a proceeding by reason
of his holding or having held a position named above in this paragraph.
Item 7. Exemption from Registration Claimed.
The information required by Item 7 is not applicable to this
Registration Statement.
Item 8. Exhibits.
Exhibit Number Description
4.1 First Amended and Restated Declaration of Trust
(incorporated by reference to Exhibit 3.1 to our
registration statement on Form S-11, dated March 5, 1998
(File No. 333-29475)).
4.2 First Amended and Restated Bylaws (incorporated by reference
to Exhibit 3.2 to our registration statement on Form S-11,
dated March 5, 1998 (File No. 333-29475)).
4.3 Specimen certificate for common shares (incorporated by
reference to Exhibit 4.2 of our registration statement on
Form S-11, dated March 5, 1998 (File No. 333-29475)).
23.1* Consent of Ernst & Young LLP.
24.1* Power of Attorney (set forth on the signature page
contained in Part II of this Registration Statement).
_______________
* Filed herewith.
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;
(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 Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent 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 paragraphs (1)(i) and (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 with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the 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.
(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 Section 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 directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 6 of this Registration
Statement, 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 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 and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 the 17th day of November,
1999.
UNITED INVESTORS REALTY TRUST
By:/s/ Robert W. Scharar
---------------------
Robert W. Scharar
Chairman of the Board, Chief Executive
Officer and Trust Manager
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Robert W. Scharar and R. Steven Hamner,
and each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him, and on his behalf and in his
name, place and stead, in any and all capacities, to sign, execute and file this
Registration Statement under the Securities Act of 1933, as amended, and any or
all amendments (including, without limitation, post-effective amendments), with
all exhibits and any and all documents required to be filed with respect
thereto, with the Securities and Exchange Commission or any regulatory
authority, granting unto such attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises in order to
effectuate the same, as fully to all intents and purposes as he himself might or
could do if personally present, hereby ratifying and confirming all that such
attorneys-in-fact and agents, or any of them, or their substitute or
substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on November 17, 1999.
Signature Title
/s/ Robert W. Scharar Chairman of the Board, Chief Executive Officer and
- --------------------- Trust Manager (Principal Executive Officer)
Robert W. Scharar
/s/ R. Steven Hamner
- ---------------------
R. Steven Hamner Vice President and Chief Financial Officer (principal
financial and accounting officer)
/s/ William C. Brooks
- ---------------------
William C. Brooks Trust Manager
/s/ Josef C. Hermans
- ---------------------
Josef C. Hermans Trust Manager
/s/ Deborah G. Moffett
- ---------------------
Deborah G. Moffett Trust Manager
<PAGE>
HOU:496202.1
EXHIBIT INDEX
Exhibit Number Description
4.1 First Amended and Restated Declaration of Trust
(incorporated by reference to Exhibit 3.1 to our
registration statement on Form S-11, dated March 5, 1998
(File No. 333-29475)).
4.2 First Amended and Restated Bylaws (incorporated by reference
to Exhibit 3.2 to our registration statement on Form S-11,
dated March 5, 1998 (File No. 333-29475)).
4.3 Specimen certificate for common shares (incorporated by
reference to Exhibit 4.2 of our registration statement on
Form S-11, dated March 5, 1998 (File No. 333-29475)).
23.1* Consent of Ernst & Young LLP.
24.1* Power of Attorney (set forth on the signature page
contained in Part II of this Registration Statement).
_______________
* Filed herewith.
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on Form S-8 pertaining to the 1999 Open Market Purchase Plan of United Investors
Realty Trust of our report dated February 3, 1999 with respect to the
Consolidated Financial Statements and Schedule of United Investors Realty Trust
and Subsidiaries included in its Annual Report on Form 10-K for the year ended
December 31,1998, and our report dated March 12, 1999 with respect to the
Historical Summary of Gross Income and Direct Operating Expenses of the Dallas
Portfolio for the year ended December 31,1998 included in the Current Report on
Form 8-K/A of United Investors Realty Trust dated December 31, 1998 (filed March
16,1999), filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
----------------------
ERNST & YOUNG LLP
Dallas, Texas
November 15, 1999
