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As filed with the Securities and Exchange Commission on April 16, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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EXECUSTAY CORPORATION
(Exact name of registrant as specified in its charter)
Maryland 52-2042280
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
7595 Rickenbacker Drive
Gaithersburg, Maryland 20879
(Address of Principal Executive Offices) (Zip Code)
EXECUSTAY CORPORATION
1997 INCENTIVE AND STOCK OPTION PLAN
(Full title of the plan)
Copy to:
Gary R. Abrahams John T. Kramer, Esq.
ExecuStay Corporation Dorsey & Whitney LLP
7595 Rickenbacker Drive Pillsbury Center South
Gaithersburg, Maryland 20879 220 South Sixth Street
(Name and address of agent for service) Minneapolis, Minnesota 55402
(301) 948-4888
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed maximum Proposed maximum Amount of
Title of securities to be Amount to be offering price per aggregate offering registration
registered registered share(1) price(1) fee
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value, to be 700,000 shares $ 12.75 $ 8,384,019 $ 2474
issued pursuant to the Company's 1997
Incentive and Stock Option Plan
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</TABLE>
(1) Of the 700,000 shares registered hereunder, as of the date
hereof, options with respect to 195,300 previously unregistered
shares have been granted (at a weighted average exercise price of
$9.98 per share). The proposed maximum offering price has been
determined pursuant to Rule 457(h)(1) and represents the sum of (i)
the aggregate exercise price of the options for the previously
unregistered shares granted under the Plan and (ii) the product of
the remaining 504,700 shares multiplied by a per share price of
$12.75, the average of the high and low sale prices of the Common
Stock as reported on the Nasdaq National Market System on April 13,
1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents that have been filed by ExecuStay Corporation
(the "Company") with the Securities and Exchange Commission are incorporated by
reference in this Registration Statement, as of their respective dates:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997; and
(b) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1, Registration No.
333-10831, and any amendment or reports filed for the purpose
of 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, subsequent to 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 into this Registration Statement and to be a part
hereof from the respective dates of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
The description of the Company's capital stock to be offered pursuant
to this Registration Statement has been incorporated by reference into this
Registration Statement as described in Item 3 of this Part II.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Incorporation and Bylaws provide for the
indemnification of the Company's directors and officers to the fullest extent
permitted by the Maryland General Corporation Law, as amended (the "Maryland
Law"). The Maryland Law provides that a corporation may indemnify a director or
officer with respect to proceedings instituted against such officer or director
by reason of his or her service in that capacity, unless the act or omission in
question was material and was committed in bad faith or was the result of active
and deliberate dishonesty, or unless the director or officer received an
improper personal benefit or the director or officer had reasonable cause to
believe that the act or omission was unlawful.
The Company's Articles of Incorporation include a provision limiting
the liability of its directors and officers to the corporation and its
stockholders for money damages, subject to specified restrictions. Maryland Law
does not, however, permit the liability of directors and officers to the
corporation or its stockholders to be limited to the extent that (1) it is
proved that the person actually received an improper benefit or profit in money,
property or services (to the extent such benefit or profit was received) or (2)
judgment or other final adjudication adverse to such person is entered in a
proceeding based on a finding that the person's action, or failure to act, was
the result of active and deliberate dishonesty and was material to the cause of
action adjudicated in the proceeding.
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The Company maintains a standard policy of officers' and directors'
liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit
Number Description
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4.1 Amended and Restated Articles of
Incorporation of the Company (incorporated
by reference to Exhibit 3.1 to Amendment No.
2 of the Company's Registration Statement on
Form S-1, Registration No. 333-10831 (the
"S-1 Registration Statement")).
4.2 Bylaws of the Company (incorporated by reference to
Exhibit 3.2 to the S-1 Registration Statement).
4.3 ExecuStay Corporation 1997 Incentive and
Stock Option Plan (incorporated by reference
to Exhibit 10.1 to the S-1 Registration
Statement).
5.1 Opinion of Dorsey & Whitney LLP.
23.1 Consent of Dorsey & Whitney LLP (included in Exhibit 5.1).
23.2 Consent of Grant Thornton, LLP Independent Public
Accountants.
24.1 Power of Attorney.
ITEM 9. UNDERTAKINGS
A. Post-Effective Amendments
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;
(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) under the Securities Act of 1933 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 the effective registration statement;
and
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(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 (1)(i) and (1)(ii) of this
section 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 with or furnished to the Commission by the
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining liability under the Securities
Act of 1933, 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 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. Subsequent Documents Incorporated by Reference
The registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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. Claims for Indemnification
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 the
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.
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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 Gaithersburg, State of Maryland, on April 16, 1998.
EXECUSTAY CORPORATION
By /s/ Gary R. Abrahams
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Gary R. Abrahams
President, Chief Executive
Officer and Director
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.
By /s/ Gary R. Abrahams Dated: April 16, 1998
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Gary R. Abrahams
President, Chief Executive Officer
and Director
(Principal Executive Officer)
By *
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Marc B. Kaplan
Treasurer, Chief Financial Officer
and Director
(Principal Accounting and Financial Officer)
By /s/ Robert W. Zaugg
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Robert W. Zaugg
Secretary, Chief Operating Officer
and Director
By *
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David S. Santee
Director
By *
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Stuart C. Siegel
Director
* By /s/ Robert W. Zaugg Dated: April 16, 1998
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Robert W. Zaugg
Attorney-in-Fact
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EXHIBIT INDEX
Exhibit
Number Description
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4.1
Amended and Restated Articles of Incorporation of the
Company (incorporated by reference to Exhibit 3.1 to
Amendment No. 2 of the Company's Registration Statement on
Form S-1, Registration No. 333-10831 (the "S-1
Registration Statement")).
4.2 Bylaws of the Company (incorporated by reference to Exhibit
3.2 to the S-1 Registration Statement).
4.3 ExecuStay Corporation 1997 Incentive and
Stock Option Plan (incorporated by reference
to Exhibit 10.1 to the S-1 Registration
Statement).
5.1 Opinion of Dorsey & Whitney LLP.
23.1 Consent of Dorsey & Whitney LLP (included in Exhibit 5.1).
23.2 Consent of Grant Thornton, LLP Independent Public Accountants.
24.1 Power of Attorney.
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Exhibit 5.1
[Letterhead of Dorsey & Whitney LLP]
April 16, 1998
ExecuStay Corporation
7595 Rickenbacker Drive
Gaithersburg, Maryland, 20879
Ladies and Gentlemen:
We have acted as counsel to ExecuStay Corporation, a Maryland
corporation (the "Company"), in connection with a Registration Statement on Form
S-8 relating to the sale by the Company from time to time of up to 700,000
shares of Common Stock, $.01 par value per share, of the Company (the "Shares"),
issuable pursuant to awards granted under the Company's 1997 Incentive and Stock
Option Plan (the "Plan").
We have examined such documents and have reviewed such questions of
law as we have considered necessary and appropriate for the purposes of the
opinions set forth below.
In rendering our opinions set forth below, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures and the conformity to authentic originals of all documents
submitted to us as copies. We have also assumed the legal capacity for all
purposes relevant hereto of all natural persons and, with respect to all parties
to agreements or instruments relevant hereto other than the Company, that such
parties had the requisite power and authority (corporate or otherwise) to
execute, deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action
(corporate or otherwise), executed and delivered by such parties and that such
agreements or instruments are the valid, binding and enforceable obligations of
such parties. As to questions of fact material to our opinions, we have relied
upon certificates of officers of the Company and of public officials.
Based on the foregoing, we are of the opinion that the Shares have
been duly authorized and, upon issuance, delivery and payment therefor in
accordance with the terms of the Plan, will be validly issued, fully paid and
nonassessable.
Our opinions expressed above are limited to the laws of the State of
Maryland.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Dorsey & Whitney LLP
JTK
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Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We have issued our reports dated February 27, 1998, accompanying the
consolidated financial statements and schedules included in the Annual Report of
ExecuStay Corporation and Subsidiaries on Form 10-K for the year ended December
31, 1997. We hereby consent to the incorporation by reference of said reports in
the Registration Statement of ExecuStay Corporation and Subsidiaries on Form S-8
(to be filed April 16, 1998).
/s/Grant Thornton LLP
Grant Thornton LLP
Vienna, Virginia
April 14, 1998
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Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Gary R. Abrahams and Robert W.
Zaugg, 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 (including his capacity as a director
and/or officer of ExecuStay Corporation), to sign a registration statement, and
any or all amendments (including post-effective amendments) thereto, on Form S-8
for the sale of shares of ExecuStay Corporation Common Stock pursuant to the
ExecuStay Corporation 1997 Incentive and Stock Option Plan, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, 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
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 any of them, or their or his substitutes, may lawfully do or cause to
be done by virtue hereof.
Signature Date
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By /s/ Gary R. Abrahams Dated: April 16, 1998
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Gary R. Abrahams
President, Chief Executive Officer
and Director
By /s/ Robert W. Zaugg Dated: April 16, 1998
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Robert W. Zaugg
Secretary, Chief Operating Officer
and Director
By /s/ Marc B. Kaplan Dated: April 16, 1998
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Marc B. Kaplan
Treasurer, Chief Financial Officer
and Director
By /s/ David S. Santee Dated: April 16, 1998
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David S. Santee
Director
By /s/ Stuart C. Siegel Dated: April 16, 1998
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Stuart C. Siegel
Director
