As filed with the Securities and Exchange Commission on May 7, 1999
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF
1933
Universal Heights, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 65-0231984
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2875 N.E. 191 Street
Suite 400A
Miami, Florida 33180
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(Address of principal executive offices) (zip code)
Options to Purchase 43,000 Shares of Common Stock
-------------------------------------------------
(Full title of plan)
Bradley I. Meier
Universal Heights, Inc.
2875 N.E. 191 Street, Suite 400A
Miami, Florida 33180
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(Name and address of agent for service)
(305) 792-4200
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(Telephone number, including area code, of agent for service)
Copy to:
Sidney R. Smith, Esq.
Kirkpatrick & Lockhart LLP
1800 Massachusetts Avenue, N.W.
Washington, D.C. 20036
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=================================================================================================================
<S> <C> <C> <C> <C>
Proposed Proposed
maximum maximum Amount of
Title of securities Amount to offering price aggregate offering registration
to be registered be registered per share price fee
- -----------------------------------------------------------------------------------------------------------------
Common stock, par value 43,000 shares $3.50(2) $150,500(2) $41.84
$.01 per share(1)
- -----------------------------------------------------------------------------------------------------------------
Total 43,000 shares $3.50(2) $150,500(2) $41.84
=================================================================================================================
</TABLE>
- --------------------
(1) Represents 43,000 shares of Common Stock issuable in the aggregate upon
exercise of options granted to John D. Walker and Larry Martin
("Options"). The exercise price of the Options is $3.50 per share.
(2) As the purchase price of the shares granted under the Options has
already been determined, the maximum offering price per share and the
maximum aggregate offering price are calculated based on the purchase
price of the shares in accordance with Rule 457(h).
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Universal Heights, Inc. ("Company")
are incorporated by reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-KSB for the year ended
December 31, 1998;
(b) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended
("Exchange Act"), since December 31, 1998; and
(c) The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A (Registration No. 0-20848),
filed with the Securities and Exchange Commission ("SEC") on
November 13, 1992, including any amendments or reports filed for
the purpose of updating such description.
All documents subsequently filed by the Company with the SEC pursuant
to Sections 12, 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of
this Registration Statement, but prior to the filing of a post-effective
amendment to this Registration Statement that indicates that all securities
offered by this Registration Statement have been sold or that deregisters all
such securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement. Each document incorporated by
reference into this Registration Statement shall be deemed to be a part of this
Registration Statement from the date of the filing of such document with the SEC
until the information contained therein is superseded or updated by any
subsequently filed document that is incorporated by reference into this
Registration Statement or by any document that constitutes part of the
prospectus relating to the Options that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended ("Securities Act").
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, as amended
("DGCL"), provides that a corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
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<PAGE>
completed action, suit or proceeding, whether civil, criminal or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that the person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding, 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, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. Section 145 further provides that a corporation
similarly may indemnify any such person serving in any such capacity who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor, against expenses actually and reasonably incurred in
connection with the defense or settlement of such action or suit 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 and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or the court
in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses that the Court of Chancery or such other court shall deem proper.
Section 102(b)(7) of the DGCL permits a corporation to include in its
certificate of incorporation a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
shall not eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL (relating to
unlawful payment of dividends and unlawful stock purchases and redemptions) or
(iv) for any transaction from which the director derived an improper personal
benefit. Article Seven of the Company's Amended and Restated Certificate of
Incorporation ("Certificate") contains a provision that so eliminates the
personal liability of the Company's directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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<PAGE>
ITEM 8. EXHIBITS.
The following are filed herewith as part of this Registration
Statement:
Exhibit No. Exhibit
----------- -------
5.1 Opinion of Kirkpatrick & Lockhart LLP as to the
legality of the securities being registered
23.1 Consent of Millward & Co. CPAs
23.2 Consent of Deloitte & Touche LLP
23.3 The consent of Kirkpatrick & Lockhart LLP to the
use of their opinion as an exhibit to this
Registration Statement is included in their opinion
filed herewith as Exhibit 5.1
24 Power of Attorney (see page 7)
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 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 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;
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<PAGE>
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and 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 Securities
Exchange Act of 1934 that are incorporated by reference 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.
(b) 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 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 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 of Miami, State of Florida, on this 31st day of March,
1999.
UNIVERSAL HEIGHTS, INC.
By: /s/ Bradley I. Meier
--------------------------
Bradley I. Meier
President
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Bradley I. Meier his attorney-in-fact,
with power of substitution, for him in any and all capacities, to sign any
amendments to this Registration Statement on Form S-8, and to file same, with
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorney-in-fact, or his substitute or substitutes, may 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 on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Bradley I. Meir
- --------------------- President March 31, 1999
Bradley I. Meier
/s/ James M. Lynch
- --------------------- Chief Financial Officer March 31, 1999
James M. Lynch
/s/ Norman M. Meier
- --------------------- Director March 31, 1999
Norman M. Meier
/s/ Joel M. Wilentz
- --------------------- Director March 31, 1999
Joel M. Wilentz
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<PAGE>
Signature Title Date
- --------- ----- ----
/s/ Irwin I. Kellner
- --------------------- Director March 31, 1999
Irwin I. Kellner
/s/ Reed J. Slogoff
- --------------------- Director March 31, 1999
Reed J. Slogoff
-8-
<PAGE>
EXHIBIT INDEX
The following exhibits are filed herewith as part of this Registration
Statement:
Exhibit No. Description
- ----------- -----------
5.1 Opinion of Kirkpatrick & Lockhart LLP as to the legality
of the securities being registered
23.1 Consent of Millward & Co. CPAs
23.2 Consent of Deloitte & Touche LLP
23.3 The consent of Kirkpatrick & Lockhart LLP to the use of
their opinion as an exhibit to this Registration Statement
is included in their opinion filed herewith as Exhibit 5.1
24 Power of Attorney (see page 7)
Exhibit 23.1
Consent of Independent Accountants
We consent to the incorporation by reference in this Registration Statement of
Universal Heights, Inc. ("Company") on Form S-8 of our report dated March 6,
1998, on our audits of the financial statements of the Company for the eight
months ended December 31, 1997 and for the year ended April 30, 1997, which
report is included in the Company's Annual Report on Form 10-KSB for the year
ended December 31, 1998.
/s/ Millward & Co. CPAS
-----------------------
Millward & Co. CPAs
May 7, 1999
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Universal Heights, Inc. on Form S-8 of our report dated April 9, 1999, appearing
in and incorporated by reference in the Annual Report on Form 10-KSB of
Universal Heights, Inc. for the year ended December 31, 1998.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Miami, Florida
May 7, 1999
Exhibit 5.1 and 23.3
May 7, 1999
Universal Heights, Inc.
2875 N.E. 191 Street
Suite 400A
Miami, Florida 33180
Re: Universal Heights, Inc.
Registration Statement on Form S-8
----------------------------------
Ladies/Gentlemen:
We have acted as securities counsel to Universal Heights, Inc., a
Delaware corporation ("Corporation"), in connection with the preparation and
filing of the above-captioned Registration Statement on Form S-8 ("Registration
Statement") under the Securities Act of 1933, as amended, covering 43,000 shares
of common stock, $0.01 par value per share ("Common Stock"), of the Corporation
issuable on exercise of options granted to John D. Walker and Larry Martin on
June 5, 1995 ("Options").
We have participated in the preparation of the Registration Statement
and, in connection therewith, have examined and relied upon the originals or
copies of such records, agreements, documents and other instruments, including
the Certificate of Incorporation and Bylaws of the Corporation, the minutes of
the meetings of the Board of Directors to date relating to the authorization and
issuance of the Options and have made such inquiries of such officers and
representatives as we have deemed relevant and necessary as the basis for the
opinion hereinafter set forth. In such examination, we have assumed, without
independent verification, the genuineness of all signatures (whether original or
photostatic), the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, and the conformity to authentic original
documents of all documents submitted to us as certified or photostatic copies.
We have assumed, without independent verification, the accuracy of the relevant
facts stated therein.
As to any other facts material to the opinion expressed herein that
were not independently established or verified, we have relied upon statements
and representations of officers and employees of the Corporation.
<PAGE>
Universal Heights, Inc.
May 7, 1999
Page 2
Based on the foregoing, we are of the opinion that the 43,000 shares of
Common Stock, when issued in accordance with the terms of the Options, will be
duly and validly issued by the Corporation, fully paid and non-assessable.
We hereby consent to the filing of a copy of this opinion as an exhibit
to the above referenced Registration Statement filed with the Securities and
Exchange Commission on May 7, 1999.
Very truly yours,
/s/ Kirkpatrick & Lockhart LLP
KIRKPATRICK & LOCKHART LLP
