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As filed with the Securities and Exchange Commission on September 29, 2000
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MALAN REALTY INVESTORS, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
Michigan 38-1841410
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number)
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30200 Telegraph Road
Suite 105
Bingham Farms, Michigan 48025-4503
(Address of principal executive offices)
EMPLOYMENT AGREEMENT
(Full title of the plan)
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Copies to:
Michael K. Kaline Kenneth H. Gold, Esq.
Malan Realty Investors, Inc. Miro Weiner & Kramer
30200 Telegraph Road, Suite 105 Suite 100
Bingham Farms, Michigan 48025-4503 38500 North Woodward Avenue
(248) 644-7110 Bloomfield Hills, Michigan 48304
(Name, Address of Agent for Service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Securities to Amount to be Offering Price Per Aggregate Amount of
be Registered Registered Share (1) Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, par
value .01 per share 6,550 $13.25 $86,787.50 $22.91
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(1) Pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, the
proposed maximum offering price per share and the proposed maximum
aggregate offering price are estimated solely for the purpose of
calculating the registration free and are based upon the average of the
high and low prices for the Registrant's common stock on September 26,
2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below have been filed with the Securities and
Exchange Commission (the "Commission") and are incorporated herein by reference:
(a) the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1999;
(b) the Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2000;
(c) the Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 2000; and
(d) the Registrant's Current Report on Form 8-K dated July 24, 2000.
(e) the description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form S-2 filed with the
Commission on March 31, 1998, as amended by a Post Effective Amendment
No. 1 filed on June 25, 1998, and any other amendments or reports
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference into this Registration Statement and to
be a part hereof from the date of the 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 in any other
subsequently filed document which also is or is 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.
The validity of the shares offered pursuant to this Registration Statement
will be passed upon for the Registrant by Miro Weiner & Kramer, 38500 Woodward
Avenue, Suite 100, Bloomfield Hills, Michigan 48304. Kenneth H. Gold, a senior
member of Miro Weiner & Kramer, is the secretary of the Registrant.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Amended and Restated Articles of Incorporation ("Articles
of Incorporation") provide that a director of the Registrant shall not be liable
to the Registrant or its shareholders for monetary damages for breach of the
director's fiduciary duty. Under Michigan law, however, a director remains
liable to the Registrant or its shareholders for any of the following:
(i) the amount of a financial benefit received by a director to which he
or she is not entitled;
(ii) intentional infliction of harm on the corporation or its shareholders;
(iii) a violation of Section 551(1) of the Michigan Business Corporation
Act (relating to unlawful payments of dividends); and
(iv) any intentional criminal act.
The Registrant's Articles of Incorporation provide for mandatory
indemnification by the Registrant of its directors (including directors of
subsidiaries) to the fullest extent permitted or not prohibited by existing law
or to such greater extent as may be permitted or not prohibited under succeeding
provisions of law. The Registrant's Articles of Incorporation provide that the
Registrant shall pay the expenses incurred by a director of the Registrant
(including a director of a subsidiary) in defending a civil or criminal action,
suit, or proceeding involving such person's acts or omissions as a director of
the Registrant (or of a subsidiary).
The Registrant's Articles of Incorporation authorize the Registrant to
indemnify any officer of the Registrant (or of a subsidiary), if such person
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the Registrant or its shareholders and,
with respect to a criminal action or proceeding, if the person had no reasonable
cause to believe his or her conduct was unlawful. Unless ordered by a court,
indemnification of an officer shall be made by the Registrant only as authorized
in a specific case upon the determination that indemnification of the officer is
proper in the circumstances because he or she has met the applicable standard of
conduct. Such determination shall be made (i) by majority vote of the directors
of the Registrant who are not parties to the action, suit or proceeding, (ii) by
independent legal counsel in a written opinion, or (iii) by the shareholders of
the Registrant. The Registrant's Articles of Incorporation authorize the
Registrant to pay the expenses incurred by an officer in defending a civil or
criminal action, suit, or proceeding in advance of the final disposition
thereof, upon receipt of an undertaking by or on behalf of such officer to repay
the expenses if it is ultimately determined that the person is not entitled to
be indemnified by the Registrant. Such undertaking shall be by unlimited general
obligation of the person on whose behalf advances are made but need not be
secured.
The Registrant has the power to purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee, or agent of the
Registrant or is liable as a director of the Registrant, or is or was serving,
at the request of the Registrant, as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise,
against any liability asserted against him and incurred by him in any such
capacity or arising out of his status as such, regardless of whether the
Registrant would have the power to indemnify him against such liability.
The Registrant has purchased a policy of directors' and officers' insurance
that insures both
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the Registrant and its officers and directors against expenses and liabilities
of the type normally insured against under such policies, including the expense
of the indemnifications described above.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Please see the Exhibit Index immediately following the signature pages of
this Registration Statement.
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 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 the 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; and
(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 (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and 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 and 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.
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(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 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.
(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.
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 Bingham Farms, Michigan, on the 29th day of September
2000.
MALAN REALTY INVESTORS, INC.
By: /s/ Michael K. Kaline
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Michael K. Kaline, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
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/s/ Michael K. Kaline President September 29, 2000
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Michael K. Kaline
/s/ Elliott J. Broderick Chief Accounting Officer September 29, 2000
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Elliott J. Broderick
/s/ Paul Gray II Director September 29, 2000
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Paul Gray II
Director September 29, 2000
/s/ Jill Holup
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Jill Holup
/s/ John P. Kramer Director September 29, 2000
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John P. Kramer
/s/ Jeffrey D. Lewis Director September 29, 2000
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Jeffrey D. Lewis
/s/ Andrew Miller Director September 29, 2000
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Andrew Miller
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Elliott J. Broderick hereby signs this Registration Statement on Form S-8 on
September 29th, 2000 on behalf of each of the indicated persons for whom he is
attorney-in-fact pursuant to a power of attorney filed herein.
*By: /s/ Elliott J. Broderick
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Elliott J. Broderick
Attorney-in-Fact
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MALAN REALTY INVESTORS, INC.
EXHIBIT INDEX
Exhibit Title of Exhibit
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5 Opinion of Miro Weiner & Kramer, counsel to the Registrant, as to
the legality of the shares.
23(a) Consent of Deloitte & Touche LLP.
23(b) Consent of Miro Weiner & Kramer (included in Exhibit 5).
24(a)-(e) Powers of Attorney.
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