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As Filed with the Securities and Exchange Commission on October 31, 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
CANDLEWOOD HOTEL COMPANY, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 48-1188025
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
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LAKEPOINT OFFICE PARK
9342 EAST CENTRAL
WICHITA, KANSAS 67206
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1996 EQUITY PARTICIPATION PLAN
OF CANDLEWOOD HOTEL COMPANY, INC.
(FULL TITLE OF THE PLAN)
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WARREN D. FIX COPY TO:
EXECUTIVE VICE PRESIDENT, CHARLES K. RUCK, ESQ.
CHIEF FINANCIAL OFFICER AND SECRETARY LATHAM & WATKINS
LAKEPOINT OFFICE PARK 650 TOWN CENTER DRIVE, TWENTIETH FLOOR
9342 EAST CENTRAL COSTA MESA, CALIFORNIA 92626
WICHITA, KANSAS 67206 (714) 540-1235
(316) 631-1300
(NAME AND ADDRESS, INCLUDING ZIP CODE,
AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE (1) PRICE (1) FEE
<S> <C> <C> <C> <C>
Common Stock......................... 900,000 $8.90 $8,014,300 $2,429
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h). The Proposed Maximum Aggregate Offering Price is
the sum of (i) the product of the number of options previously granted
(598,750) and the weighted average of the exercise prices of the options
previously granted ($9.36), and (ii) the product of the remaining options
available for future grants under the plan (301,250) and the average of the
high and low prices of the common stock as reported on the Nasdaq National
Market, on October 27, 1997 (which were $ 8 3/8 and $ 7 5/8, respectively.)
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PROPOSED SALE TO TAKE PLACE AS SOON AFTER THE EFFECTIVE DATE OF THE
REGISTRATION STATEMENT AS OPTIONS GRANTED UNDER THE OPTION PLAN ARE EXERCISED.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 is not being prepared
with or included in this Form S-8 (by incorporation by reference or otherwise)
in accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission are incorporated
herein by reference:
(a) Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, filed by Candlewood Hotel Company, Inc. (the
"Company") with the Commission.
(b) Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1997, filed by the Company with the Commission.
(c) Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1997, filed by the Company with the Commission.
(d) Current Report on Form 8-K, filed by the Company with
the Commission on September 23, 1997.
(e) Current Report on Form 8-K, filed by the Company with
the Commission on October 20, 1997.
(f) The description of the Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission
on October 18, 1996, including any subsequently filed amendments and
reports updating such description.
All documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), after the date of this Registration Statement and prior to the filing of
a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part of it from the respective dates of filing 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 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
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The consolidated financial statements of the Company appearing
in the Company's Annual Report on Form 10-K for the year ended December 31,
1996 have been audited by KPMG Peat Marwick LLP, independent auditors, as set
forth in their report thereon included therein and incorporated herein by
reference. Such consolidated
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financial statements are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Delaware General Corporation Law ("DGCL"), the
Certificate of Incorporation of the Company eliminates the liability of
Directors to the Company or to its stockholders for monetary damages for breach
of fiduciary duty as a Director, except to the extent otherwise required by the
DGCL.
The Certificate of Incorporation provides that the Company indemnify
each person who was or is made a party to any proceeding by reason of the fact
that such person is or was a Director or Officer of the Company all expense,
liability and loss reasonably incurred or suffered by such person in connection
therewith to the fullest extent authorized by DGCL.
The Company has also entered into indemnification agreements with
certain of its Directors and Officers that require the Company to indemnify
such Directors and Officers to the fullest extent permitted by applicable
provisions of the DGCL, provided that any settlement of a third party against a
Director or Officer is approved by the Company, and subject to limitations for
actions initiated by the Director or Officer, penalties paid by insurance, and
violations of Section 16(b) of the Securities Exchange Act of 1934 and similar
laws.
The inclusion of the above provisions in the Certificate of
Incorporation may have the effect of reducing the likelihood of shareholder
derivative suits against directors and may discourage or deter shareholders or
management from bringing a lawsuit against directors for breach of their duty
of care, even though such an action, if successful, might otherwise have
benefitted the Company and its shareholders.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See Index to Exhibits on page 6.
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, as
amended (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. 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 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% change
in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in this
Registration Statement; and
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(iii) 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; 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 by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") that are
incorporated by reference in the Registration
Statement.
(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 termination of the offering.
(b) The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities Act, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section 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 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.
(c) Insofar as indemnification for liabilities arising
under the Securities Act 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
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
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 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 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 Wichita, State of Kansas, on this 31st day of
October, 1997.
CANDLEWOOD HOTEL COMPANY, INC.
a Delaware corporation
By: /s/ WARREN D. FIX
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Warren D. Fix
Director, Executive Vice President,
Chief Financial Officer and Secretary
(Principal Financial and Accounting Officer)
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes
and appoints Jack P. DeBoer and Warren D. Fix, or either one of them, as
attorneys-in-fact and agents, each acting alone, with full powers of
substitution to sign on his or her behalf, individually and in the capacities
stated below, and to file any and all amendments, including post-effective
amendments, to this Registration Statement and other documents in connection
therewith, with the Securities and Exchange Commission, granting to said
attorneys-in-fact and agents full power and authority to perform any other act
on behalf of the undersigned required to be done in the premises.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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/s/ JACK P. DEBOER President, Chief Executive Officer and October 31, 1997
---------------------------------- Chairman of the Board (Principal
Jack P. DeBoer Executive Officer)
/s/ GARY E. COSTLEY Director October 31, 1997
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Dr. Gary E. Costley
/s/ ROBERT J. CRESCI Director October 31, 1997
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Robert J. Cresci
/s/ RICHARD J. FERRIS Director October 31, 1997
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Richard J. Ferris
/s/ ROBERT S. MORRIS Director October 31, 1997
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Robert S. Morris
/s/ FRANK PADOS, JR. Director October 31, 1997
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Frank Pados, Jr.
/s/ WILLIAM L. PEROCCHI Director October 31, 1997
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William L. Perocchi
/s/ TONY M. SALAZAR Director October 31, 1997
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Tony M. Salazar
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INDEX TO EXHIBITS
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EXHIBIT PAGE
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5.1 Opinion of Latham & Watkins. 6
10.1 The 1996 Equity Participation Plan of Candlewood Hotel Company __
Inc.*
23.1 Consent of Latham & Watkins (included in Exhibit 5.1). 6
23.2 Consent of KPMG Peat Marwick LLP. 7
24.1 Power of Attorney (included on the signature page to this 4
Registration Statement).
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* Incorporated by reference from the Company's
Registration Statement on Form S-1, Registration No. 333-12021.
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[LATHAM & WATKINS LETTERHEAD]
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EXHIBIT 5.1
October 31, 1997
Board of Directors
Candlewood Hotel Company, Inc.
Lakepoint Office Park
9342 East Central
Wichita, Kansas 67206
Re: Registration Statement on Form S-8
Gentlemen:
At your request we have examined the Registration Statement on
Form S-8 (the "Registration Statement") to be filed by you with the Securities
and Exchange Commission in connection with the registration under the
Securities Act of 1933, as amended, of 900,000 shares (the "Shares") of common
stock, $.01 par value, of Candlewood Hotel Company, Inc. (the "Company"), none
of which are issued and outstanding as of the date hereof, but which are
issuable upon exercise of options previously granted and to be granted in the
future under the 1996 Equity Participation Plan of Candlewood Hotel Company,
Inc. (the "Plan").
We have examined such matters of fact and questions of law as
we have considered appropriate for purposes of rendering the opinions expressed
below.
We are opining herein as to the effect on the subject
transaction of only the General Corporation Law of the State of Delaware and we
assume no responsibility as to the application to the subject transaction, or
the effect thereon, of any other laws, of the laws of any other jurisdiction or
as to any matters of municipal law or the laws of any other local agencies
within any other state.
Subject to the foregoing and in reliance thereon, we are of
the opinion that, upon the exercise of options granted pursuant to the Plan and
the issuance and sale of the Shares, each in the manner contemplated by the
Registration Statement and each in accordance with the terms of the Plan, and
subject to the Company completing all action and proceedings required on its
part to be taken prior to the issuance of the Shares pursuant to the terms of
the Plan and the Registration Statement, including, without limitation,
collection of required payment for the Shares, the Shares will be legally and
validly issued, fully paid and nonassessable securities of the Company.
We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very Truly Yours,
/s/ Latham & Watkins
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EXHIBIT 23.2
INDEPENDENT AUDITOR'S CONSENT
The Board of Directors
Candlewood Hotel Company, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Candlewood Hotel Company, Inc. of our report dated February 21, 1997,
relating to the consolidated balance sheets of Candlewood Hotel Company, Inc.
and subsidiaries as of December 31, 1996 and 1995, and the related consolidated
statements of operations, stockholders' equity and cash flows for the year
ended December 31, 1996, and the period from October 1, 1995 (date of
inception) to December 31, 1995, which report appears in the December 31, 1996,
annual report on Form 10-K of Candlewood Hotel Company, Inc. and the reference
to our firm under the heading "Interests of Named Experts and Counsel" in the
registration statement.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Wichita, Kansas
October 30, 1997
