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As filed with the Securities and Exchange Commission on January 6, 1997
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
FINE HOST CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 06-1156070
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
3 Greenwich Office Park
Greenwich, Connecticut 06831
(203) 629-4320
(Address, including zip code, and
telephone number, including area
code, of principal executive offices)
Fine Host Corporation Stock Option Agreement
(Full title of the plan)
Richard E. Kerley
President
Fine Host Corporation
3 Greenwich Office Park
Greenwich, Connecticut 06831
(203) 629-4320
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------- ---------------------- ------------------------- --------------------- ----------------------
Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered registered(1) share (2) price (2) registration fee
- ----------------------- ---------------------- ------------------------- --------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01
par value per share 27,944 $20.375 $569,359 $172.53
<FN>
- ------------------------
(1) This Registration Statement covers 27,944 shares authorized to be
sold under the Fine Host Corporation Stock Option Agreement (the
"Agreement"), between Fine Host Corporation (the "Company") and
Gerald Moses.
(2) Estimated solely for calculating the amount of the registration
fee, pursuant to Rule 457(h) under the Securities Act of 1933
(the "Securities Act").
</TABLE>
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and Exchange
Commission (the "Commission") by the Company, are incorporated herein by
reference:
(a) The Company's Prospectus filed in connection with its
Registration Statement on Form S-1 (Registration No. 333-2906), filed
on March 29, 1996, as amended by Amendment Nos. 1, 2 and 3 filed on
May 7, 1996, June 3, 1996 and June 19, 1996, respectively, pursuant to
the Securities Act (the "Form S-1").
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended June 26, 1996 and September 25, 1996, filed pursuant to the
Exchange Act.
(c) The description of the common stock of the Company, par value
$0.01 per share (the "Common Stock"), incorporated by reference into
the Company's Registration Statement on Form 8-A (Registration No.
111715) filed on May 8, 1996 pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act") and contained in the Form
S-1.
In addition, all documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all the securities offered hereby
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated herein by reference and to be a part hereof from
the date of the filing of such documents with the Commission.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby is being
passed upon for the Company by Ellen Keats, Esq. Ms. Keats is the General
Counsel of the Company and an officer of the Company. As of the date of this
Registration Statement Ms. Keats has options to purchase 5,000 shares of Common
Stock.
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Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Restated Certificate of Incorporation (the "Restated
Certificate") provides that the Company shall indemnify each person who is or
was a director, officer or employee of the Company to the fullest extent
permitted under Section 145 of the Delaware General Corporation Law. Section
145 of the Delaware General Corporation Law empowers a Delaware corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of such corporation) by reason of the fact that such person is or was
a director, officer, employee or agent of such corporation, or is or was
serving at the request of such corporation as a director, officer, employee or
agent of another corporation or enterprise. A corporation may indemnify such
person against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if he acted in good faith and
in a manner he 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 his conduct was unlawful. A
corporation may, in advance of the final disposition of any civil, criminal,
administrative or investigative action, suit or proceeding, pay the expenses
(including attorneys' fees) incurred by any officer or director in defending
such action, provided that the director or officer undertakes to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation.
A Delaware corporation may indemnify officers and directors in an
action by or in the right of the corporation to procure a judgment in its favor
under the same conditions, except that no indemnification is permitted without
judicial approval if the officer or director is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him against the expenses (including attorneys' fees) which he
actually and reasonably incurred in connection therewith. The indemnification
provided is not deemed to be exclusive of any other rights to which an officer
or director may be entitled under any corporation's bylaw, agreement, vote or
otherwise.
The Company's Restated Certificate of Incorporation (the "Restated
Certificate") provides that a director of the Company will not be personally
liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional
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misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, which concerns unlawful payments of
dividends, stock purchases or redemption, or (iv) for any transaction from
which the director derived an improper personal benefit.
While the Restated Certificate provides directors with protection from
awards for monetary damages for breaches of their duty of care, it does not
eliminate such duty. Accordingly, the Restated Certificate will have no effect
on the availability of equitable remedies such as an injunction or rescission
based on a director's breach of his or her duty of care. The provisions of the
Restated Certificate described above apply to an officer of the Company only if
he or she is a director of the Company and is acting in his or her capacity as
director, and do not apply to officers of the Company who are not directors.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable
Item 8. EXHIBITS
Exhibit No.
4.1 Restated Certificate (incorporated by reference to the Form
S-1, Exhibit 3.1).
4.2 By-Laws of the Company (incorporated by reference to the Form
S-1, Exhibit 3.3).
5 Opinion of Ellen Keats, Esq. as to the validity of the shares
to be issued.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Ellen Keats, Esq. (contained in Exhibit 5).
24 Powers of Attorney (reference is made to the signature page
herein).
Item 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to the Registration Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act;
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(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)(i) and (a)(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 by the Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(b) 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.
(c) 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.
2. The undersigned registrant 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 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.
3. 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 foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the 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
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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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Greenwich, State of Connecticut, on the 6th day of
January, 1997.
FINE HOST CORPORATION
By: /s/ Richard E. Kerley
Richard E. Kerley
President and
Chief Executive Officer
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Each of the undersigned officers and directors of the Company hereby
severally constitutes and appoints Richard E. Kerley, Randy B. Spector and
Nelson A. Barber, and each of them, as the true and lawful attorneys-in-fact
for the undersigned, in any and all capacities, with full power of
substitution, to sign any and all amendments to this Registration Statement
(including post-effective amendments), and to file the same with exhibits
thereto and other documents in connection therewith, with the Commission,
granting unto said attorneys-in-fact, and each of them, 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 said attorneys-in-fact, or either of them, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Richard E. Kerley President and Chief Executive Officer and January 6, 1997
Richard E. Kerley Director (Principal Executive Officer)
/s/ Nelson A. Barber Senior Vice President and Chief Financial Officer January 6, 1997
Nelson A. Barber (Principal Financial and Accounting Officer)
/s/ Randall K. Ziegler Executive Vice President and Director January 6, 1997
Randall K. Ziegler
/s/ William R. Berkley Chairman of the Board of Directors January 6, 1997
William R. Berkley
/s/ Andrew M. Bursky Director January 6, 1997
Andrew M. Bursky
/s/ Catherine B. James Director January 6, 1997
Catherine B. James
/s/ Joshua A. Polan Director January 6, 1997
Joshua A. Polan
__________________________ Director January _, 1997
Jack H. Nusbaum
</TABLE>
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INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
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5 Opinion of Ellen Keats, Esq. as to the validity of the
shares to be issued.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Ellen Keats, Esq. (contained in Exhibit 5).
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January 6, 1997
Fine Host Corporation
3 Greenwich Office Park
Greenwich, Connecticut 06831
Ladies and Gentlemen:
I am General Counsel of Fine Host Corporation (the "Company"), a corporation
organized under the laws of the State of Delaware. I submit this opinion to you
in connection with the Company's Registration Statement on Form S-8 (the
"Registration Statement") to be filed by the Company with the Securities and
Exchange Commission on or about January 6, 1997, with respect to the
registration under the Securities Act of 1933, as amended by the Company of an
aggregate of 27,944 shares (the "Shares") of Common Stock, par value $0.01 per
share (the "Common Stock").
As counsel for the Company, I have examined, among other things, such federal
and state laws and originals and/or copies (certified or otherwise identified
to my satisfaction) of such documents, certificates and records as I deemed
necessary and appropriate for the purpose of preparing this opinion.
Based on the foregoing, I am of the opinion that the Shares have been duly and
validly authorized for issuance and, when issued, will be validly issued, fully
paid, and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
I am a member of the Bar of the State of Connecticut and do not purport to be
an expert in the laws of jurisdictions other than the State of Connecticut, the
General Corporation Law of the State of Delaware and the Federal laws of the
United States of America.
Very truly yours,
/s/ Ellen Keats
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of Fine Host Corporation of our report dated July 29, 1994, appearing
in Fine Host Corporation's Prospectus filed in connection with its Registration
Statement on Form S-1 (Registration No. 333-2906), filed on March 29, 1996, as
amended by Amendment Nos. 1, 2, and 3 filed on May 7, 1996, June 3, 1996, and
June 19, 1996.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Cleveland, Ohio
January 3, 1997
