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As filed with the Securities and Exchange Commission on August 15, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
EXTENDED STAY AMERICA, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 36-3996573
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
500 EAST BROWARD BOULEVARD
FT. LAUDERDALE, FLORIDA 33394
(Address of Registrant's Principal Executive Offices)
__________________
EXTENDED STAY AMERICA, INC. AMENDED AND RESTATED 1995 STOCK OPTION PLAN;
EXTENDED STAY AMERICA, INC. 1995 STOCK OPTION PLAN FOR
NON-EMPLOYEE DIRECTORS;
EXTENDED STAY AMERICA, INC. AMENDED AND RESTATED 1996 STOCK OPTION PLAN;
AND
HAROLD E. WRIGHT EMPLOYMENT AGREEMENT
(Full Title of the Plans)
ROBERT A. BRANNON COPIES TO:
SENIOR VICE PRESIDENT, CHIEF FINANCIAL AND D. MARK MCMILLAN, ESQ.
OFFICER, SECRETARY AND TREASURER BELL, BOYD & LLOYD
EXTENDED STAY AMERICA, INC. 70 WEST MADISON STREET
500 EAST BROWARD BOULEVARD CHICAGO, ILLINOIS 60602
FT. LAUDERDALE, FLORIDA 33394 (312) 372-1121
(954) 713-1600
(Name, Address, and Telephone Number,
Including Area Code, of Agent For Service)
__________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT OFFERING PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share (2) 5,363,656 Shares $8.72 $46,771,080.32 $16,127.96
- -----------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 per share (3) 3,610,464 Shares $15.375(4) $55,510,884(4) $19,141.68
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</TABLE>
(1) This registration statement also covers an indeterminate number of shares
of Common Stock which may be issuable under the antidilution and other
adjustment provisions of the respective plans pursuant to Rule 416(a) of
the Securities Act of 1933, as amended (the "Securities Act").
(2) This amount reflects an aggregate of 5,363,656 shares of Common Stock
which are issuable pursuant to options granted at a weighted average
exercise price of $8.72 per share under the following plans: the Extended
Stay America, Inc. Amended and Restated 1995 Stock Option Plan (the "1995
Plan") -- 3,347,478 shares; the Extended Stay America, Inc. Amended and
Restated 1996 Stock Option Plan (the "1996 Plan") -- 1,856,178 shares; and
the Extended Stay America, Inc. 1995 Stock Option Plan for Non-Employee
Directors (the "Directors' Plan") -- 160,000 shares.
(3) This amount reflects an aggregate of 3,610,464 shares of Common Stock
which are issuable under the following plans: the 1995 Plan -- 6,642
shares; the 1996 Plan -- 3,143,822 shares; the Directors' Plan -- 320,000
shares; and the Employment Agreement dated as of March 18, 1996 between
ESA Development, Inc. and Harold E. Wright (the "Wright Agreement") --
140,000 shares.
(4) Estimated in accordance with Rule 457(h) solely for purposes of
calculating the registration fee and based upon the average of the high
and low sale prices of the Common Stock on the Nasdaq National Market on
August 13, 1996, as reported in The Wall Street Journal.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be included herewith.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be included herewith.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. DOCUMENTS INCORPORATED BY REFERENCE.
This registration statement on Form S-8 relates to the registration of
shares of common stock of Extended Stay America, Inc. (the "Company"), $.01 par
value per share (the "Common Stock").
The Company incorporates herein by reference the following documents
heretofore filed by the Company with the Securities and Exchange Commission:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995, dated February 29, 1996;
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the
end of the fiscal year covered by the annual report referred to in (1)
above; and
(3) The description of the Company's Common Stock set forth under the
caption "Description of Capital Stock" in the Company's registration
statement on Form S-1 (Reg. No. 33-98452), which description is
incorporated by reference in the Company's registration statement on Form
8-A filed on December 8, 1995 for the registration of the Common Stock
under Section 12(g) of the Exchange Act, including all amendments thereto.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment to this registration statement which indicates that all of
the securities offered hereby have been sold or which deregisters all of such
securities then remaining unsold, shall be deemed to be incorporated by
reference in this registration statement and to be a part hereof from the date
of filing of such documents. Any statement, including financial statements,
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 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 this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Inapplicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware authorizes the
Company to indemnify its directors and officers under specified circumstances.
The Restated Certificate of Incorporation and Bylaws of the Company provide that
the Company shall indemnify, to the extent permitted by Delaware law, its
directors and officers (and may indemnify its employees and agents) against
liabilities (including expenses, judgments, and settlements) incurred by them in
connection with any actual or threatened action, suit, or proceeding to which
they are or may become parties and which arises out of their status as
directors, officers, or employees.
The Company's Restated Certificate of Incorporation and Bylaws eliminate,
to the fullest extent permitted by Delaware law, liability of a director to the
Company or its stockholders for monetary damages for a breach of such director's
fiduciary duty of care except for liability where a director (a) breaches his or
her duty of loyalty to the Company or its stockholders, (b) fails to act in good
faith or engages in intentional misconduct or knowing violation of law, (c)
authorizes payment of an illegal dividend or stock repurchase, or (d) obtains an
improper personal benefit. While liability for monetary damages has been
eliminated, equitable remedies such as injunctive relief or rescission remain
available. In addition, a director is not relieved of his or her
responsibilities under any other law, including the federal securities laws.
The directors and officers of the Company 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.
Insofar as indemnification by the Company for liabilities arising under the
Securities Act of 1933, as amended (the "Securities Act") may be permitted to
directors, officers, and controlling persons of the Company pursuant to the
foregoing provisions, the Company has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
ITEM 8. EXHIBITS
The exhibits to this registration statement are listed in the Exhibit Index
which appears elsewhere herein and is hereby incorporated by reference.
ITEM 9. UNDERTAKINGS
(a) The Company 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;
(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
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 Company pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in this registration statement.
3
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(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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or 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 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)-(g) Inapplicable.
(h) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
Company pursuant to the provisions described under Item 6 above or otherwise,
the Company has been advised that in the opinion of the Securities and Exchange
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 Company
of expenses incurred or paid by a director, officer, or controlling person of
the Company 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 Company 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.
(i)-(j) Inapplicable.
4
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Company 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 Ft. Lauderdale, State of Florida, on August 14, 1996.
EXTENDED STAY AMERICA, INC.
/s/ George D. Johnson, Jr.
By: _____________________________________
George D. Johnson, Jr.
President and Chief Executive Officer
POWER OF ATTORNEY
EACH PERSON WHOSE SIGNATURE APPEARS BELOW HEREBY APPOINTS GEORGE D.
JOHNSON, JR. AND ROBERT A. BRANNON, AND EACH OF THEM SEVERALLY, ACTING ALONE AND
WITHOUT THE OTHER, HIS TRUE AND LAWFUL ATTORNEY-IN-FACT WITH AUTHORITY TO
EXECUTE IN THE NAME OF EACH SUCH PERSON AND TO FILE WITH THE SECURITIES AND
EXCHANGE COMMISSION, TOGETHER WITH ANY EXHIBITS THERETO AND OTHER DOCUMENTS
THEREWITH, ANY AND ALL AMENDMENTS (INCLUDING POST-EFFECTIVE AMENDMENTS) TO THIS
REGISTRATION STATEMENT NECESSARY OR ADVISABLE TO ENABLE THE REGISTRANT TO COMPLY
WITH THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY RULES, REGULATIONS, AND
REQUIREMENTS OF THE SECURITIES AND EXCHANGE COMMISSION IN RESPECT THEREOF, WHICH
AMENDMENTS MAY MAKE SUCH OTHER CHANGES IN THE REGISTRATION STATEMENT AS THE
AFORESAID ATTORNEY-IN-FACT EXECUTING THE SAME DEEMS APPROPRIATE.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities indicated on August 14, 1996.
SIGNATURE TITLE
--------- -----
PRINCIPAL EXECUTIVE OFFICER:
/s/ George D. Johnson, Jr. President and Chief Executive Officer
______________________________
George D. Johnson, Jr.
PRINCIPAL FINANCIAL OFFICER:
/s/ Robert A. Brannon Senior Vice President, Chief Financial Officer,
------------------------ Secretary, and Treasurer
Robert A. Brannon
PRINCIPAL ACCOUNTING OFFICER:
/s/ Gregory R. Moxley Vice President and Controller
------------------------
Gregory R. Moxley
5
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SIGNATURE TITLE
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A MAJORITY OF THE DIRECTORS:
/s/ H. Wayne Huizenga Director
-------------------------
H. Wayne Huizenga
/s/ Donald F. Flynn Director
-------------------------
Donald F. Flynn
/s/ George D. Johnson, Jr. Director
--------------------------
George D. Johnson, Jr.
Director
--------------------------
Stewart H. Johnson
/s/ John J. Melk Director
--------------------------
John J. Melk
/s/ Peer Pedersen Director
--------------------------
Peer Pedersen
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EXTENDED STAY AMERICA, INC.
EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------ ----------------------
4.1 Restated Certificate of Incorporation of the Company (incorporated
by reference to Exhibit 3.1 to the Company's registration
statement on Form S-1, Registration No. 33-98452)
4.2 Amended and Restated Bylaws of the Company (incorporated by
reference to Exhibit 3.2 to the Company's registration
statement on Form S-1, Registration No. 33-98452)
4.3 Specimen certificate representing shares of Common Stock
(incorporated by reference to Exhibit 4.1 to the Company's
registration statement on Form S-1, Registration No. 33-98452)
5.1 Opinion of Bell, Boyd & Lloyd
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Bell, Boyd & Lloyd (contained in Exhibit 5.1)
24.1 Power of Attorney (included on the signature page of this
registration statement)
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EXHIBIT 5.1
[LETTERHEAD OF BELL, BOYD & LLOYD]
August 12, 1996
Extended Stay America, Inc.
500 East Broward Boulevard
Ft. Lauderdale, Florida 33394
Extended Stay America, Inc.
Amended and Restated 1995 Employee Stock Option Plan,
Amended and Restated 1996 Employee Stock Option Plan,
1995 Stock Option Plan for Non-Employee Directors, and
Harold E. Wright Employment Agreement
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to Extended Stay America, Inc., a Delaware
corporation (the "Company"), in connection with the preparation, execution, and
filing of the registration statement on Form S-8 of the Company (the
"Registration Statement"), which covers 8,974,120 shares (the "Shares") of
common stock, $.01 par value per share (the "Common Stock") of the Company,
offered under the Company's Amended and Restated 1995 Employee Stock Option
Plan, Amended and Restated 1996 Employee Stock Option Plan, 1995 Stock Option
Plan for Non-Employee Directors, and Harold E. Wright Employment Agreement
(collectively, the "Plans"). We have examined originals, or copies certified or
otherwise identified to our satisfaction, of the Plans and such other documents,
corporate and other records, certificates, and other papers as we deemed it
necessary to examine for the purposes of this opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and legally existing under
the law of the State of Delaware.
2. The Company has taken all action necessary to authorize (i) the Plans,
(ii) the granting of options pursuant to the Plans, and (iii) the
issuance of shares of its Common Stock in accordance with the Plans
and upon the exercise of options granted pursuant to the Plans.
3. The Shares, when issued and paid for in accordance with the Plans and
upon the exercise of options granted pursuant to the Plans will, upon
such issuance, constitute legally issued, fully paid, and
nonassessable shares of Common Stock.
<PAGE>
Extended Stay America, Inc.
August 12, 1996
Page 2
We hereby consent to the filing of this Opinion Letter as an exhibit to the
Registration Statement for the registration of the Shares under the Securities
Act of 1933, as amended. In giving this consent, we do not admit that we are
within the category of persons whose consent is required by Section 7 of the
Securities Act of 1933, as amended.
Very truly yours,
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CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
of Extended Stay America, Inc. on Form S-8 of (i) our report dated January 26,
1996, on our audit of the consolidated financial statements of Extended Stay
America, Inc. as of December 31, 1995, and for the period from January 9, 1995
(inception) through December 31, 1995, which report and financial statements are
incorporated by reference to the Company's 1995 Annual Report on Form 10-K, (ii)
our report dated January 26, 1996, on our audits of the financial statements of
Apartment/Inn, L.P. as of December 31, 1994 and 1995, and for each of the two
years in the period ended December 31, 1995, which report and financial
statements are incorporated by reference to the Company's Report on Form 8-K
dated February 2, 1996, (iii) our report dated February 23, 1996, on our audits
of the combined financial statements of Hometown Inn I, LTD and Hometown Inn II,
LTD as of December 31, 1994 and 1995, and for each of the three years in the
period ended December 31, 1995, which report and financial statements are
incorporated by reference to the Company's Report on Form 8-K dated March 4,
1996, (iv) our report dated October 16, 1995, on our audits of the financial
statements of Welcome Inn America 89-1, L.P. for each of the two years in the
period ended December 31, 1994 and for the period from January 1, 1995 through
August 18, 1995, which report and financial statements are incorporated by
reference to the Company's 1995 Annual Report on Form 10-K, (v) our report dated
May 4, 1996, on our audit of the financial statements of Kipling Hospitality
Enterprise Corporation as of December 31, 1995 and for the year then ended,
which report and financial statements are incorporated by reference to the
Company's Report on Form 8-K dated August 12, 1996, (vi) our report dated June
25, 1996, on our audit of the financial statements of Apartment Inn
Partners/Gwinnett, L.P. as of December 31, 1995, and for the year then ended,
which report and financial statements are incorporated by reference to the
Company's Report on Form 8-K dated July 10, 1996, and (vii) our report dated
June 27, 1996, on our audits of the combined financial statements of Boulder
Manor, Inc., Melrose Suites, Inc., Nicolle Manor and St. Louis Manor, Inc. (the
"M&M Facilities") as of December 31, 1994 and 1995, and for each of the three
years in the period ended December 31, 1995, which report and financial
statements are incorporated by reference to the Company's Report on Form 8-K
dated July 23, 1996.
COOPERS & LYBRAND L.L.P.
/s/ Coopers & Lybrand L.L.P.
Spartanburg, South Carolina
August 14, 1996
