<PAGE> 1
As Filed With the Securities and Exchange Commission
on May 26, 1999
Registration No. 333-
................................................................................
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
................................................................................
GAYLORD ENTERTAINMENT COMPANY*
(Exact name of Registrant as Specified in its Charter)
DELAWARE 73-0664379
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
GAYLORD ENTERTAINMENT
COMPANY* 37214
ONE GAYLORD DRIVE (Zip Code)
NASHVILLE, TENNESSEE
(Address of Principal Executive Offices)
Gaylord Entertainment Company Employee Stock Purchase Plan
(Full title of the plan)
JOSEPH B. CRACE
ONE GAYLORD DRIVE
NASHVILLE, TENNESSEE 37214
(Name and address of agent for service)
(615) 316-6000
(Telephone number, including area code, of agent for service)
Copy to:
RICHARD H. BARRY, ESQ.
BASS, BERRY & SIMS PLC
2700 FIRST AMERICAN CENTER
NASHVILLE, TENNESSEE 37238
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of securities Amount to offering price aggregate offering Amount of
to be registered be registered per share(1) price(1) registration fee
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.01 per share 500,000 shares $31.8125 $15,906,250 $4,422
==================================================================================================================
</TABLE>
*Formerly known as New Gaylord Entertainment Company.
(1) The offering price is estimated solely for the purpose of determining the
amount of the registration fee. Such estimate has been calculated in accordance
with Rule 457(h) and is based upon the average of the high and low prices per
share of the Registrant's Common Stock as reported on The New York Stock
Exchange on May 19, 1999.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed by the Registrant with the
Commission are incorporated herein by reference:
(a) The Annual Report on Form 10-K, for the fiscal year
ended December 31, 1998 (filed March 30, 1999); and
(b) All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Securities and Exchange
Act of 1934 since the end of the fiscal year covered
by the Annual Report referenced above, including the
Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1999; and
(c) The description of the Registrant's Common Stock
contained in the effective Registration Statement on
Form 10 filed by the Registrant to register the
Common Stock under the Exchange Act, including all
amendments and reports filed for the purpose of
updating such description prior to the termination of
the offering of the Common Stock offered hereby.
All documents and reports subsequently filed by the Registrant pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), prior to the filing of a post-effective amendment
to this Registration Statement which indicates that all shares covered hereby
have been sold or which deregisters all such shares 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 statements
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or replaced for purposes hereof to the
extent that a statement contained herein (or in any other subsequently filed
document which also is incorporated or deemed to be incorporated by reference
herein) modifies or replaces such statement. Any statement so modified or
replaced shall not be deemed, except as so modified or replaced, to constitute a
part hereof.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Delaware General Corporation Law ("DGCL") provides that a
corporation may indemnify any of its directors and officers against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with any threatened, pending, or
completed action, suit or proceeding (civil, criminal, administrative or
investigative) if such person acted in good faith and in a manner that person
reasonably believed to be in or not opposed to the best interests of the
corporation, and, in the case of a criminal proceeding, had no reasonable cause
to believe his or her conduct was unlawful. In actions brought by
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or in the right of the corporation, the DGCL provides that no indemnification
may be made if the director or officer was adjudged to be liable to the
corporation unless and only to the extent that the court in which such action or
suit was brought determines that, despite the adjudication of liability, but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnification for such expenses which such court deems proper.
In cases where the director or officer is successful, on the merits or
otherwise, in the defense of any action, suit or proceeding (or claims or issues
therein), the DGCL mandates that the corporation indemnify the director or
officer against expenses actually and reasonably incurred in the proceeding. In
other cases, the DGCL provides that indemnification shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper as such person has met the
applicable standard of conduct described above. Such determination shall be made
(1) by the board of directors by a majority vote of directors who were not
parties to such action, suit or proceeding, even though less than a quorum, or
(2) by a committee of such directors designated by majority vote of such
directors, even though less than a quorum, or (3) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (4) by the stockholders. Expenses incurred by a director or
officer in such a matter may be paid by the corporation in advance upon receipt
of an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation.
Pursuant to authority conferred by DGCL Section 102(b)(7), the
Registrant's Restated Certificate of Incorporation, as amended, contains a
provision providing that no director of the Registrant shall be liable to it or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent that such exemption from liability or limitation
thereof is not permitted under the DGCL as then in effect or as amended. This
provision is intended to eliminate the risk that a director might incur personal
liability to the Registrant or its stockholders for breach of the duty of care.
The Bylaws of the Registrant contain provisions requiring
indemnification by the Registrant of, and advancement of expenses to, its
directors and officers to the fullest extent permitted by law. Among other
things, these provisions provide indemnification for the Registrant's directors
and officers against liabilities for judgments in and settlements of lawsuits
and other proceedings and for the advance and payment of fees and expenses
reasonably incurred by the director or officer in defense of any such lawsuit or
proceeding.
The Registrant believes that its Charter and Bylaw provisions are
necessary to attract and retain qualified persons as directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable
ITEM 8. EXHIBITS
See Exhibit Index (Page II-6)
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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 hereof) which individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
and
(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 Registration Statement is on Form S-3, Form
S-8, or Form F-3, and 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 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 the 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 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. 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 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 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 of 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 Nashville, State of Tennessee, on the 26th day
of May, 1999.
GAYLORD ENTERTAINMENT COMPANY
By: /s/ Terry E. London
--------------------------------------
Terry E. London
President, Chief Executive Officer and
Director (Principal Executive Officer)
KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears
below hereby constitutes and appoints Edward L. Gaylord and Terry E. London, and
each of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place, and stead,
in any and all capacities, to sign any and all amendments to this Registration
Statement, and to file the same, with the Securities and Exchange Commission,
granting unto said 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 said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Terry E. London President, Chief Executive Officer and May 26, 1999
- ------------------------------------- Director (Principal Executive Officer) -----------------
Terry E. London
/s/ Edward L. Gaylord Chairman Emeritus May 26, 1999
- ------------------------------------- -----------------
Edward L. Gaylord
/s/ E. K. Gaylord II Chairman of the Board May 26, 1999
- ------------------------------------- -----------------
E. K. Gaylord II
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Joseph B. Crace Executive Vice President, Chief Operating May 26, 1999
- ------------------------------------- Officer and Chief Financial Officer (Principal -----------------
Joseph B. Crace Accounting and Financial Officer)
/s/ Martin C. Dickinson Director May 26, 1999
- ------------------------------------- -----------------
Martin C. Dickinson
/s/ Christine Gaylord Everest Director May 26, 1999
- ------------------------------------- -----------------
Christine Gaylord Everest
/s/ Craig L. Leipold Director May 26, 1999
- ------------------------------------- -----------------
Craig L. Leipold
/s/ Joe M. Rodgers Director May 26, 1999
- ------------------------------------- -----------------
Joe M. Rodgers
/s/ Mary Agnes Wilderotter Director May 26, 1999
- ------------------------------------- -----------------
Mary Agnes Wilderotter
/s/ Howard L. Wood Director May 26, 1999
- ------------------------------------- -----------------
Howard L. Wood
</TABLE>
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EXHIBIT INDEX
Exhibit
No. Exhibit Description
------- -----------------------------------------------------------
4 Gaylord Entertainment Company Employee Stock Purchase Plan
(incorporated by reference to Appendix B to the Company's
Definitive Proxy Statement for the 1999 Annual Meeting of
Stockholders, filed on April 1, 1999)
5 Opinion of Bass, Berry & Sims PLC
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Bass, Berry & Sims PLC (included in Exhibit 5)
24 Power of Attorney (included at pages II-4 and II-5)
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EXHIBIT 5
B A S S, B E R R Y & S I M S P L C
A PROFESSIONAL LIMITED LIABILITY COMPANY
ATTORNEYS AT LAW
2700 FIRST AMERICAN CENTER 1700 RIVERVIEW TOWER
NASHVILLE, TENNESSEE 37238-2700 POST OFFICE BOX 1509
TELEPHONE (615) 742-6200 KNOXVILLE, TENNESSEE 37901-1509
TELECOPIER (615) 742-6293 TELEPHONE (423) 521-6200
TELECOPIER (423) 521-6234
May 26, 1999
Gaylord Entertainment Company
One Gaylord Drive
Nashville, Tennessee 37214
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as your counsel in the preparation of a registration
statement on Form S-8 (the "Registration Statement") relating to the Gaylord
Entertainment Company Stock Purchase Plan (the "Plan"), filed by you with the
Securities and Exchange Commission covering 500,000 shares of the Company's
common stock, par value $0.01 per share (the "Shares"), issuable pursuant to the
Plan. In so acting, we have examined and relied upon such records, documents and
other instruments as in our judgment are necessary or appropriate in order to
express the opinion hereinafter set forth and have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals
and the conformity to the original documents of all documents submitted to us as
certified or photostatic copies.
Based upon the foregoing, we are of the opinion that the Shares, when
issued pursuant to and in accordance with the Plan, will be duly and validly
issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Bass, Berry & Sims PLC
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of Gaylord Entertainment
Company of our report dated February 5, 1999 relating to the consolidated
financial statements of Gaylord Entertainment Company included in Gaylord
Entertainment Company's Form 10-K for the year ended December 31, 1998 and to
all references to our Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
Nashville, Tennessee
May 26, 1999
