-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Q2d847EP2r9pRNse2QNZLKI7UPMUoWnabc1zNKJuBxWbOfZp5LWQgCZGBs2K5wj3 pnrIcmEDqaAARFtb+L5zow== 0000950142-98-000642.txt : 19980819 0000950142-98-000642.hdr.sgml : 19980819 ACCESSION NUMBER: 0000950142-98-000642 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19980818 EFFECTIVENESS DATE: 19980818 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: MERISTAR HOTELS & RESORTS INC CENTRAL INDEX KEY: 0001059341 STANDARD INDUSTRIAL CLASSIFICATION: HOTELS & MOTELS [7011] IRS NUMBER: 510379982 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-61731 FILM NUMBER: 98693616 BUSINESS ADDRESS: STREET 1: 1010 WISCONSIN AVE NW CITY: WASHINGTON STATE: DC ZIP: 20007 BUSINESS PHONE: 2029654455 MAIL ADDRESS: STREET 1: 1010 WISCONSIN AVE N W CITY: WASHINGTON STATE: DC ZIP: 20007 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on August 18, 1998 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------------- MERISTAR HOTELS & RESORTS, INC. (Exact name of registrant as specified in its charter) DELAWARE 51-0379982 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 1010 WISCONSIN AVENUE, N.W. WASHINGTON, D.C. 20007 (202) 965-4455 (Address and telephone number of Principal Executive Offices) MERISTAR HOTELS & RESORTS, INC. EMPLOYEE STOCK PURCHASE PLAN (Full title of the plan) PAUL W. WHETSELL CHAIRMAN AND CHIEF EXECUTIVE OFFICER MERISTAR HOTELS & RESORTS, INC. 1010 WISCONSIN AVENUE, N.W. WASHINGTON, D.C. 20007 (Name and address of agent for service) --------------------------- (202) 965-4455 (Telephone number, including area code, of agent for service) --------------------------- COPY TO: RICHARD S. BORISOFF, ESQ. PAUL, WEISS, RIFKIND, WHARTON & GARRISON 1285 AVENUE OF THE AMERICAS NEW YORK, NEW YORK 10019-6064 (212) 373-3000 --------------------------- (COVER CONTINUED ON NEXT PAGE)
CALCULATION OF REGISTRATION FEE PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) REGISTRATION FEE ======================================= ================== =================== ========================= ====================== Common Stock, $.01 par value........... 1,500,000(2) $2.75 $4,125,000 $1,217 ======================================= ================== =================== ========================= ======================
(1) An estimate, based on the average of the high and low prices as of August 17, 1998 as determined in accordance with Rule 457(c) and (h) under the Securities Act of 1933, has been made solely for the purpose of calculating the registration fee relating to the 1,500,000 shares of Common Stock to be registered hereunder and subsequently offered at prices computed upon the basis of fluctuating market prices. (2) Represents 1,500,000 shares of Common Stock issuable pursuant to the MeriStar Hotels & Resorts, Inc. Employee Stock Purchase Plan. This registration statement also relates to such indeterminate number of additional shares of Common Stock of MeriStar Hotels & Resorts, Inc. as may be issuable as a result of stock splits, stock dividends or additional similar transactions. ================================================================================ PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Item 1. Plan information The documents containing the information specified in this Item will be sent or given to individuals who have been awarded options or shares of Common Stock under the MeriStar Hotels & Resorts, Inc. Incentive Plan (the "Plan"), and are not being filed with, or included in, this Registration Statement on Form S-8 (the "Registration Statement") in accordance with the rules and regulations of the Securities and Exchange Commission (the "Commission"). Item 2. Registrant Information and Employee Plan Annual Information The documents containing the information specified in this Item will be sent or given to individuals who have been awarded options or shares of Common Stock under the Plan and are not being filed with, or included in, this Registration Statement in accordance with the rules and regulations of the Commission. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed by MeriStar Resorts & Hotels, Inc. (the "Company") with the Securities and Exchange Commission (the "Commission") are incorporated herein by reference into this Registration Statement: 1. The Company's Registration Statement on Form S-1 filed with the Commission on April 10, 1998 (Registration No. 333-49881), as amended. 2. The Company's Registration Statement on From 8-A, dated July 22, 1998, filed pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended, which contains a description of the Company's Common Stock, par value $.01 per share. All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, subsequent to the date hereof and prior to the termination of the offering of the securities registered pursuant to this Registration Statement shall be deemed to be incorporated by reference into this Registration Statement and to be part hereof from the date of 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 herein or in any other subsequently filed documents 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 hereof. 2 Item 4. DESCRIPTION OF SECURITIES Not applicable. Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 102(b)(7) of the Delaware General Corporation Law (the "Delaware Law") permits a provision in the certificate of incorporation of each corporation organized thereunder, eliminating or limiting, with certain exceptions, the personal liability of a director to the corporation or its stockholders for monetary damages for certain breaches of fiduciary duty as a director. The Certificate of Incorporation of the Company, as restated, integrated and amended (the "Charter"), eliminates the personal liability of directors to the fullest extent permitted by the Delaware Law. Section 145 of the Delaware Law ("Section 145"), in summary, empowers a Delaware corporation, within certain limitations, to indemnify its officers, directors, employees and agents against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement, actually and reasonably incurred by them in connection with any suit or proceeding other than by or on behalf of the corporation, if they acted in good faith and in a manner reasonably believed to be in or not opposed to the best interest of the corporation, and, with respect to a criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. With respect to actions by or on behalf of the corporation, Section 145 permits a corporation to indemnify its officers, directors, employees and agents against expenses (including attorneys' fees) actually and reasonably incurred in connection with the defense or settlement of such action or suit, provided such person meets the standard of conduct described in the preceding paragraph, except that no indemnification is permitted in respect of any claim where such person has been found liable to the corporation, unless the Court of Chancery or the court in which such action or suit was brought approves such indemnification and determines that such person is fairly and reasonably entitled to be indemnified. Article Six of the Charter provides for the indemnification of officers and directors and certain other parties (the "Indemnitees") of the Company to the fullest extent permitted under the Delaware Law; PROVIDED, that except in the case of proceedings to enforce rights to indemnification, the Company shall indemnify such Indemnitee in connection with a proceeding initiated by such Indemnitee only if such proceeding was authorized by the Board of Directors of the Company. The Charter also provides that the Company may reimburse or advance an Indemnitee funds necessary for payment of expenses, including reasonable attorneys' fees and disbursements incurred in connection with any proceeding, in advance of the final disposition of such proceeding. 3 Each of the employment agreements to be entered into with each of the following directors and officers: Paul W. Whetsell, Steven D. Jorns, David E. McCaslin, James A. Calder and John E. Plunket, contains provisions entitling the executive to indemnification for losses incurred in the course of service to the Company or its subsidiaries, under certain circumstances. Item 7. EXEMPTION FROM REGISTRATION CLAIMED Not Applicable. Item 8. Exhibits 5.1 -- Opinion of Paul, Weiss, Rifkind, Wharton & Garrison as to the legality of shares of Common Stock being registered 23.1 -- Consent of KPMG Peat Marwick LLP 23.2.1 -- Consent of PricewaterhouseCoopers LLP (Dallas office) 23.2.2 -- Consent of PricewaterhouseCoopers LLP (Raleigh office) 23.3 -- Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in their opinion filed as Exhibit 5.1) 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 to include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this 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 bonafide offering thereof; and (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 (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 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. 4 (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 (the "Act") may be permitted to directors, officers and controlling persons of the registrant pursuant to the registrant's Restated Certificate of Incorporation, by contract, 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. 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Washington, District of Columbia, on August 18, 1998. MERISTAR HOTELS & RESORTS, INC. By: /s/ Paul W. Whetsell ------------------------ Name: Paul W. Whetsell Title: Chairman and Chief Executive Officer and confirm our signatures as they may be signed by our said attorneys to any and all such amendments. 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 AUGUST 18, 1998. Signatures Title ---------- ----- /s/ Paul W. Whetsell Chief Executive Officer and -------------------- Chairman of the Board Paul W. Whetsell /s/ James A. Calder Chief Financial Officer (Principal ------------------- Financial and Accounting James A. Calder Officer) /s/ David E. McCaslin President and Director --------------------- David E. McCaslin 6 INDEX TO EXHIBITS ----------------- Sequential Page Exhibits Number - -------- --------------- 5.1 -- Opinion of Paul, Weiss, Rifkind, Wharton & Garrison as to the legality of shares of Common Stock being registered 23.1 -- Consent of KPMG Peat Marwick LLP 23.2.1 -- Consent of PricewaterhouseCoopers LLP (Dallas office) 23.2.2 -- Consent of PricewaterhouseCoopers LLP (Raleigh office) 23.3 -- Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in their opinion filed as Exhibit 5.1) 7 EX-5.1 2 EXHIBIT 5.1 Exhibit 5.1 August 18, 1998 MeriStar Hotels & Resorts, Inc. 1010 Wisconsin Avenue, N.W. Washington, DC 20027 MeriStar Hotels & Resorts, Inc. Registration Statement on Form S-8 ---------------------------------- Ladies and Gentlemen: In connection with the above-referenced Registration Statement on Form S-8 (the "Registration Statement") filed by MeriStar Hotels & Resorts, Inc., a Delaware corporation (the "Company"), with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the "Act"), and the rules and regulations promulgated thereunder (the "Rules"), we have been requested to render our opinion as to the legality of the shares of Common Stock, par value $.01 per share (the "Common Stock"), of the Company to be registered thereunder. The shares to be registered under the Registration Statement consist of [3,200,000] shares (the "Shares") of Common Stock to be issued pursuant to the MeriStar Hotels & Resorts, Inc. Incentive Plan (the "Plan"). In connection with this opinion, we have examined (i) an original, photocopy or conformed copy of the Registration Statement (including the exhibits thereto), (ii) an original, photocopy or conformed copy of the Plan, (iii) the Restated Certificate of Incorporation and Bylaws of the Company, each as amended to date, and (iv) records of certain of the Company's corporate proceedings. In addition, we have made such other examinations of law and fact as we have considered necessary in order to form a basis for the opinion hereinafter expressed. In our examination of documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as photostatic, reproduced or conformed copies, the authenticity of all such latter documents and the legal capacity of all individuals who have executed any of the documents. As to certain matters of fact, we have relied on representations, statements or certificates of officers of the Company. Based on the foregoing, we are of the opinion that the Shares have been duly authorized for issuance and that the Shares, when issued and delivered by the Company and paid 8 for in accordance with the terms and provisions of the Plan, will be validly issued, fully paid and nonassessable. The foregoing opinion is limited to the federal laws of the United States and the General Corporation Law of the State of Delaware. Our opinion is rendered only with respect to the laws and the rules, regulations and orders thereunder, which are currently in effect. Please be advised that no member of this firm is admitted to practice in the State of Delaware. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required by the Act or the Rules. Very truly yours, /s/ PAUL, WEISS, RIFKIND, WHARTON & GARRISON -------------------------------------------- 9 EX-23.1 3 EXHIBIT 23.1 Exhibit 23.1 ACCOUNTANTS' CONSENT The Board of Directors CapStar Hotel Company: We consent to the use of our report dated May 19, 1998 related to the balance sheet of MeriStar Hotels & Resorts, Inc. as of March 31, 1998 and the use of our report dated March 30, 1998 related to the combined balance sheets of the management and leasing business of CapStar Hotel Company and subsidiaries ("OpCo") as of December 31, 1997 and 1996 and the related combined statements of operations, owners' equity and cash flows for each of the years in the three-year period ended December 31, 1997, incorporated by reference on Form S-8 of MeriStar Hotels & Resorts, Inc. /s/ KPMG PEAT MARWICK LLP ------------------------- Washington, DC August 18, 1998 10 EX-23.2.1 4 EXHIBIT 23.2.1 Exhibit 23.2.1 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in the Registration Statement on Form S-8 and Prospectus of MeriStar Hotels & Resorts, Inc. and the inclusion in the Registration Statement of MeriStar Hotels & Resorts, Inc. on Form S-1 (File No. 333-49881) of our report dated January 30, 1998, except for Note 6, as to which the date is March 16, 1998, on our audits of the financial statements of AGH Leasing, L.P. and our report dated April 1, 1998, on our audits of the financial statements of American General Hospitality, Inc., included in the Report on Form 8-K dated and filed on April 17, 1998 and the Form 8-K/A filed on May 22, 1998. /s/ PRICEWATERHOUSECOOPERS LLP ------------------------------ Dallas, Texas August 18, 1998 11 EX-23.2.2 5 EXHIBIT 23.2.2 Exhibit 23.2.2 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in the Registration Statement on Form S-8 and Prospectus of MeriStar Hotels & Resorts, Inc. and the inclusion in the Registration Statement of MeriStar Hotels & Resorts, Inc. on Form S-1 (File No. 333-49881) of our report dated February 6, 1998 on our audits of the financial statements of Winston Hospitality, Inc. as of October 31, 1997 and December 31, 1996 and for the ten months ended October 31, 1997 and the years ended December 31, 1996 and 1995. /s/ PRICEWATERHOUSECOOPERS LLP ------------------------------ Raleigh, North Carolina August 18, 1998 12 -----END PRIVACY-ENHANCED MESSAGE-----