-----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, Gj2ikkBL5ZfBRDb+uaq/GTJ9D8a+HjdBuRKMAAPjCNy2liE9iSFD86k2DhxEUfIB MbXc2Xm2qmz3bQ3Gr3tQYQ== 0000950137-04-000037.txt : 20040106 0000950137-04-000037.hdr.sgml : 20040106 20040106162441 ACCESSION NUMBER: 0000950137-04-000037 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20040106 EFFECTIVENESS DATE: 20040106 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARLINGTON HOSPITALITY INC CENTRAL INDEX KEY: 0000778423 STANDARD INDUSTRIAL CLASSIFICATION: HOTELS & MOTELS [7011] IRS NUMBER: 363312434 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111724 FILM NUMBER: 04510493 BUSINESS ADDRESS: STREET 1: 2355 SOUTH ARLINGTON HEIGHTS ROAD STREET 2: SUITE 400 CITY: ARLINGTON HEIGHTS STATE: IL ZIP: 60005 BUSINESS PHONE: 8472285400 MAIL ADDRESS: STREET 1: 2355 SOUTH ARLINGTON HEIGHTS ROAD STREET 2: SUITE 400 CITY: ARLINGTON HEIGHTS STATE: IL ZIP: 60005 FORMER COMPANY: FORMER CONFORMED NAME: AMERIHOST PROPERTIES INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: AMERICA POP INC DATE OF NAME CHANGE: 19871111 S-8 1 c81843sv8.txt REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on January 6, 2004 Registration No. 333-_____ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------- Form S-8 Registration Statement Under The Securities Act of 1933 --------------- Arlington Hospitality, Inc. (Exact name of Registrant as specified in its charter) Delaware 36-3312434 - -------------------------------------------------------------------------------- (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) 2355 S. Arlington Heights Road, Suite 400, Arlington Heights, Illinois 60005 - -------------------------------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) Arlington Hospitality, Inc. 2003 Non-Employee Director Restricted Stock Plan Arlington Hospitality, Inc. 2003 Long-Term Incentive Plan (Full Title of the Plan) Jerry H. Herman, President and Chief Executive Officer Arlington Hospitality, Inc. 2355 S. Arlington Heights Road, Suite 400 Arlington Heights, Illinois 60005 With a copy to: Michael J. Choate, Esq. Mitchell D. Goldsmith, Esq. Shefsky & Froelich Ltd. 444 N. Michigan, Suite 2500 Chicago, Illinois 60611 (Name and Address of Agent for Service) (847) 228-5401 (Telephone Number, Including Area Code, of Agent for Service) CALCULATION OF REGISTRATION FEE
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of to be Registered Registered Offering Price Aggregate Offering Registration Fee Per Share Price - ---------------------- ---------------- ------------------- ---------------------- -------------------- Common Stock, par 750,000 (1) $3.695 (2) $2,771,250 (2) $224.20 value $.005
(1) Issuable upon the vesting of restricted stock awards under the Arlington Hospitality, Inc. 2003 Non-Employee Director Restricted Stock Plan; the exercise of options, the vesting of restricted stock awards or the vesting of certain other awards under the Arlington Hospitality, Inc. 2003 Long-Term Incentive Plan. Pursuant to Rule 416, this Registration Statement also includes an indeterminable number of additional shares that may become issuable pursuant to the anti-dilution provisions of the 2003 Long-Term Incentive Plan. (2) Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of Regulation C, on the basis of the average of the high and low prices of the shares of common stock of the Registrant on the Nasdaq National Market on January 2, 2004. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The documents containing the information specified in Part I of this registration statement on Form S-8 (this "Registration Statement") of Arlington Hospitality, Inc. (the "Registrant") will be sent or given to the Registrant's officers, employees, consultants and directors, as specified by Rule 428(b)(1) promulgated under the Securities Act of 1933, as amended (the "Securities Act"). Such documents need not be filed with the Securities and Exchange Commission (the "SEC") either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 promulgated under the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken together, constitute a prospectus that meets the requirement of Section 10(a) of the Securities Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The documents listed below are hereby incorporated by reference into this Registration Statement: 1. The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2002. 2. The Registrant's Quarterly Reports on Form 10-Q for the quarters ended March 31, June 30 and September 30, 2003. 3. The Registrant's Proxy Statement dated September 26, 2003 for its 2003 Annual Meeting of Shareholders. 4. The Registrant's Reports on Form 8-K dated March 18, 2003, May 16, 2003, July 15, 2003, July 16, 2003, August 15, 2003, October 30, 2003, November 17, 2003, December 4, 2003 and December 19, 2003. 5. The description of the Registrant's common stock contained in Amendment No. 3 to its Registration Statement on Form S-2 filed with the Commission on October 22, 1996. 6. All documents which the Registrant filed subsequently to the foregoing 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 registered 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 filing of such documents. 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 145 of the General Corporation Law of Delaware authorizes indemnification of directors, officers and employees of Delaware corporations. Article Eight of the Registrant's certificate of incorporation provides that the Registrant will provide indemnification to the fullest extent permitted by Delaware law to all persons it is permitted to indemnify. The Registrant's by-laws provide that the Registrant: (i) will indemnify directors and officers to the fullest extent authorized by the General Corporation Law of Delaware, including in a suit initiated by the officer or director if the suit authorized by the Registrant's board of directors, (ii) will advance expenses to indemnified parties for defending any proceedings for which indemnification is allowed, if the indemnified party undertakes to repay amounts advanced if it is determined that the party is not entitled to indemnification, (iii) may indemnify employees or agents, other than officers and directors, and (iv) may maintain insurance policies to protect any of its directors, officers, employees or agents, whether or not the Registrant would have the power to indemnify these persons under Delaware law. The Registrant currently maintains policies of insurance under which the directors and officers of the Registrant are insured, within the limits and subject to the limitations of the policies, against certain expenses in connection with the defense of actions, suits or proceedings, and certain liabilities which might be imposed as a result of such actions, suits or proceedings, to which they are parties by reason of being or having been such directors or officers. Additionally, the Registrant has entered into an indemnification agreement with each independent director. Each agreement provides that the Registrant will indemnify the director against any expenses (including attorneys' fees), judgments, fines and amounts paid in settlement reasonably incurred by the director in connection with any suit (threatened or actual), proceeding or any alternative dispute resolution mechanism, wither civil, criminal, administrative or investigative, brought by a third party against the director by reason of having been a director of the Registrant (or any subsidiary of the Registrant) or serving in a position at the request of the Registrant and so long as the director acted in good faith and in a manner the director reasonably believed to be in or not opposed to the best interests of the Registrant (and with respect to any criminal action, the director had no reasonable cause to believe the director's conduct was unlawful). Each agreement also provides that the Registrant will indemnify the director with respect to any action or suit brought by the Registrant (or any subsidiary) by reason of having been a director of the Registrant or serving in any position at the request of the Registrant, except to the extent that the director shall have been adjudged to be liable to the Registrant. Each indemnification agreement requires the Registrant to make a good faith determination as to whether it is practicable for the Registrant to obtain and maintain a policy of insurance providing the director with coverage for losses from wrongful acts, or to ensure the Registrant's performance of its indemnification obligations under the agreement. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. Exhibit No. - ----------- 5 Opinion of Shefsky & Froelich Ltd. re: legality 23(a) Consent of Shefsky & Froelich Ltd. (see Exhibit 5) 23(b) Consent of KPMG LLP 24 Power of Attorney (see the Signature Page to this Registration Statement) Item 9. Undertakings. The undersigned Registrant hereby undertakes: 2 1. To file, during any period in which it offers or sells securities, 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; and (iii) to include any additional or changed material information on the plan of distribution; Provided, however, that paragraphs (1)(i) and (ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in a periodic report filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference into this Registration Statement. 2. For determining liability under the Securities Act of 1933, to treat each such post-effective amendment as a new Registration Statement of securities offered, and the offering of the securities at that time to be the initial public offering thereof. 3. To file a post-effective amendment to remove from registration any of the securities that remain unsold at the end of the offering. 4. 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 such 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. 3 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 of 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 Arlington Heights, State of Illinois, on January 6, 2004. ARLINGTON HOSPITALITY, INC. By: /s/ Jerry H. Herman -------------------------------------- Jerry H. Herman President and Chief Executive Officer By: /s/ James B. Dale -------------------------------------- James B. Dale Chief Financial Officer 4 GRANT OF POWER OF ATTORNEY Each person whose signature appears below as a Director and/or officer of Arlington Hospitality, Inc. hereby constitutes and appoints Jerry H. Herman and James B. Dale his true and lawful attorney-in-fact and agent, with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all subsequent amendments (including post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorneys-in-fact and agents, 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, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that such attorneys-in-fact and agents, or either of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
SIGNATURES TITLE DATE - ---------- ----- ---- /s/ Jerry H. Herman Director, President and Chief Executive January 6, 2004 - ------------------- Officer Jerry H. Herman /s/ Steven J. Belmonte Director January 6, 2004 - ---------------------- Steven J. Belmonte /s/ Salomon J. Dayan Director January 6, 2004 - -------------------- Salomon J. Dayan /s/ Kenneth M. Fell Director January 6, 2004 - ------------------- Kenneth M. Fell /s/ Gerald T. LaFlamme Director January 6, 2004 - ---------------------- Gerald T. LaFlamme /s/ Thomas J. Romano Director January 6, 2004 - --------------------- Thomas J. Romano /s/ Andrew E. Shapiro Director January 6, 2004 - ---------------------- Andrew E. Shapiro /s/ James B. Dale Chief Financial Officer, Secretary and January 6, 2004 - ----------------- Treasurer (Principal Accounting Officer and James B. Dale Principal Financial Officer)
5 EXHIBITS Exhibit No. - ----------- 5 Opinion of Shefsky & Froelich Ltd. re: legality 23(a) Consent of Shefsky & Froelich Ltd. (see Exhibit 5) 23(b) Consent of KPMG LLP 24 Power of Attorney (see the Signature Page to this Registration Statement) EX-5 3 c81843exv5.txt OPINION OF SHEFSKY & FROELICH LTD. LAW OFFICES SHEFSKY & FROELICH LTD. 444 NORTH MICHIGAN AVENUE CHICAGO, ILLINOIS 60611 IN REFERENCE TO: TELEPHONE (312) 527-4000 FACSIMILE (312) 527-5921 029160-0001 E-MAIL SFLTD@SHEFSKYLAW.COM January 6, 2004 Arlington Hospitality, Inc. 2355 South Arlington Heights Road Arlington Heights, Illinois 60005 RE: ARLINGTON HOSPITALITY, INC. REGISTRATION ON FORM S-8 Ladies and Gentlemen: We have acted as counsel to Arlington Hospitality, Inc., a Delaware corporation (the "Company"), in connection with the preparation and filing of the registration statement on Form S-8 (the "Registration Statement") with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act") and relating to the registration of 750,000 shares of common stock, par value $0.005 per share (the "Shares"). All of the Shares will be issued by the Company upon (i) the vesting of restricted stock awards under the Arlington Hospitality, Inc. 2003 Non-Employee Director Restricted Stock Plan (the "RSP"); and (ii) the exercise of options, the vesting of restricted stock awards or the vesting of certain other awards under the Arlington Hospitality, Inc. 2003 Long-Term Incentive Plan (the "LTIP" and together with the RSP, the "Plans" and each a "Plan"). For purposes of this opinion, we have reviewed the Registration Statement and have examined the originals or copies certified or otherwise identified to our satisfaction of: (i) the Company's Certificate of Incorporation, as amended to date; (ii) the Bylaws of the Company, as amended to date; (iii) records of the corporate proceedings of the Company as we deemed necessary or appropriate as a basis for the opinions set forth herein; and (iv) those matters of law as we have deemed necessary or appropriate as a basis for the opinions set forth herein. We have not made any independent review or investigation of the organization, existence, good standing, assets, business or affairs of the Company, or of any other matters. In rendering our opinion, we have assumed without inquiry the legal capacity of all natural persons, 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 certified or photostatic copies and the authenticity of the originals of these documents submitted to us as copies. We have not undertaken any independent investigation to determine facts bearing on this opinion, and no inference as to the best of our knowledge of facts based on an independent investigation should be drawn from this representation. Further, our opinion, as hereinafter expressed, are subject to the following exceptions, limitations and qualifications: (i) the effect of bankruptcy, insolvency, fraudulent conveyance, reorganization, arrangement, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of creditors; and (ii) the effect of general principles of equity whether enforcement is considered in a proceeding in equity or at law and the discretion of the court before which any proceeding therefore may be brought. We are admitted to the practice of law only in the State of Illinois and, accordingly, we do not purport to be experts on the laws of any other jurisdiction nor do we express an opinion as to the laws of jurisdictions other than the laws of the State of Illinois and the General Corporation Law of the State of Delaware, as currently in effect. On the basis of, and in reliance upon, the foregoing, and subject to the qualifications contained herein, we are of the opinion that the Shares, when issued in accordance with the Plans for the consideration set forth therein, will be validly issued, fully-paid and non-assessable. We hereby consent to your filing this opinion as an exhibit to the Registration Statement and to the reference to our firm contained under the heading "Legal Matters." Very truly yours, /s/ Shefsky & Froelich Ltd. --------------------------------- SHEFSKY & FROELICH LTD. JXS/lzc Enclosure EX-23.(B) 4 c81843exv23wxby.txt CONSENT OF KPMG LLP Independent Auditors' Consent The Board of Directors Arlington Hospitality, Inc.: We consent to the incorporation by reference in this registration statement on Form S-8 of Arlington Hospitality, Inc. of our report dated March 24, 2003, with respect to the consolidated balance sheets of Arlington Hospitality, Inc. as of December 31, 2002 and 2001, and the related consolidated statements of operations, shareholders' equity, and cash flows for each of the years in the three-year period ended December 31, 2002, and all related financial statement schedules, which report appears in the December 31, 2002, annual report on Form 10-K of Arlington Hospitality, Inc. /s/ KPMG LLP Chicago, Illinois January 6, 2004 -----END PRIVACY-ENHANCED MESSAGE-----