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As filed with the Securities and Exchange Commission on September 30, 1997
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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CHOICE HOTELS FRANCHISING, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Delaware 52-1209792
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification Number)
10750 Columbia Pike 20901
Silver Spring, MD (Zip Code)
(Address of Principal Executive Offices)
</TABLE>
CHOICE HOTELS FRANCHISING, INC. 1997 LONG-TERM INCENTIVE PLAN
CHOICE HOTELS FRANCHISING EMPLOYEE STOCK PURCHASE PLAN
Michael J. DeSantis
Senior Vice President, General Counsel and Secretary
10750 Columbia Pike
Silver Spring, Maryland 20901
(Name and address of agent for service)
(301) 979-5000
(Telephone number, including area code, of agent for service)
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Copy to:
Bruce E. Rosenblum
Latham & Watkins
1001 Pennsylvania Avenue, N.W. Suite 1300
Washington, D.C. 20004-2505
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Title of Each Proposed Maximum Proposed Maximum Amount of
Class of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share Price Fee
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share 7,600,000 shares $ .70(1) $5,320,000 $1,612(1)
=================================================================================================================
</TABLE>
(1) For purposes of computing the registration fee only. Pursuant to Rule
457(h) under the Securities Act of 1933, the Proposed Maximum Offering
Price Per Share is based upon (i) the book value of $.70 per share of
7,100,000 shares of Common Stock to be issued under the Choice Hotels
Franchising, Inc. 1997 Long-Term Incentive Plan (the "1997 Plan"); and
(ii) the book value of $.70 per share of 500,000 shares of Common Stock
to be issued under the Choice Hotels Franchising, Inc. Employee Stock
Purchase Plan.
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PART I
Item 1. Plan Information.
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Choice Hotels Franchising, Inc., a Delaware
Corporation, (the "Company") are incorporated as of their respective dates in
this Registration Statement on Form S-8 (the "Registration Statement") by
reference:
1. The Company's Registration Statement on Form 10 (the "Form 10")
filed on September 18, 1997.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of 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 are deemed incorporated by reference in
this Registration Statement and are a part hereof from the date of filing of
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.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Pursuant to authority conferred by Delaware General Corporation Law
Section 102, the Franchising Certificate provides that no director of
Franchising shall be liable to Franchising or its stockholders for monetary
damages for breach of fiduciary duty as a director except for breach of the
director's duty of loyalty to Franchising or the stockholders, for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, for unlawful payment of dividends, unlawful stock redemptions
or repurchases and for any transaction from which the director derived an
improper personal benefit. This provision is intended to eliminate the risk that
a director might incur personal liability to Franchising or its stockholders for
breach of the duty of care. The Franchising Certificate also provides that if
Delaware law is amended to further limit the liability of directors, then the
liability of a director of the Company shall be further limited to the fullest
extent permitted by Delaware law as so amended.
Delaware General Corporation Law Section 145 contains provisions
permitting and, in some situations, requiring Delaware corporations, such as
Franchising, to provide indemnification to their officers and directors for
losses and litigation expense incurred in connection with their service to the
corporation in those capacities. The Restated Certificate contains provisions
requiring indemnification by Franchising of its directors and officers
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to the fullest extent permitted by law. Among other things, the Franchising
Certificate provides indemnification for officers and directors against
liabilities for judgments in and settlements of lawsuits and other proceedings
and for the advancement and payment of fees and expenses reasonably incurred by
the director or officer in defense of any such lawsuit or proceeding.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a list of exhibits filed as part of this Registration
Statement, which are incorporated herein:
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
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<C> <S>
4.01 Form of Restated Certificate of Incorporation of
Choice Hotels Franchising, Inc. (incorporated by
reference to Annex A of Exhibit 99.02 to the Form
10)
4.02 Form of Amended and Restated Bylaws of Choice
Hotels Franchising, Inc. (incorporated by reference
to Annex B to Exhibit 99.02 to the Form 10)
4.03 Form of Common Stock certificate (incorporated by
reference to Exhibit 4.01 to the Company's
Registration Statement on Form 10)
4.04 Choice Hotels Franchising, Inc. 1997 Long-Term
Incentive Plan (incorporated by reference to Annex
C-I to Exhibit 99.02 to the Form 10)
4.05 Choice Hotels Franchising Employee Stock Purchase
Plan (incorporated by reference to Annex C-II to
Exhibit 99.02 to the Form 10)
*5.01 Opinion of Michael J. DeSantis
*23.01 Consent of Michael J. DeSantis (included as part of
the opinion attached as Exhibit 5.01 hereto)
*23.02 Consent of Arthur Andersen LLP
*25.01 Power of Attorney (included on page 5 hereto)
</TABLE>
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* Filed herewith.
The Company hereby agrees to furnish supplementally a copy of any
omitted schedule or exhibit to the Commission upon request.
Item 9. Undertakings.
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.
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;
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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)(1)(i) and (a)(1)(ii) do not
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apply if the information required to be included in a post-
effective amendment by these paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or Section
15(d) of the Securities and Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any 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 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.
The undersigned 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 that is incorporated by reference in the Registration
Statement shall be deemed to be a new Registration Statement relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
---- ----
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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 Silver Spring, Maryland, on September 29, 1997.
CHOICE HOTELS FRANCHISING, INC.
By: /s/ William R. Floyd
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William R. Floyd
Chief Executive Officer and Director
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints William
R. Floyd and Michael J. DeSantis as his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for such person and
in his name, place and stead, in any and all capacities, to sign any or all
further amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission granting
unto said attorney-in-fact and agent, 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 attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
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<S> <C> <C>
/s/ William R. Floyd Chief Executive Officer and Director September 30, 1997
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William R. Floyd
/s/ James A. MacCutcheon Executive Vice President, Chief September 30, 1997
- --------------------------- Financial Officer and Director
James A. MacCutcheon
/s/ Joseph M. Squeri Vice President, Finance and Controller September 30, 1997
- ---------------------------
Joseph M. Squeri
/s/ Donald J. Landry Director September 30, 1997
- ---------------------------
Donald J. Landry
</TABLE>
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Exhibit 23.01
September 30, 1997
SEC
Re: Choice Hotels Franchising, Inc.; Common Stock., par value $.01
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per share
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Gentlemen:
I am General Counsel of Choice Hotels Franchising, Inc. (the "Company") and
I have examined the Registration Statement on Form S-8 (the "Registration
Statement"), to be filed with the Securities and Exchange Commission in
connection with the registration under the Securities Act of 1993, as amended,
of (i) 7,100,000 shares of Common Stock, par value $.01 per share (the "1997
Plan Shares"), to be issued by the Company under the Choice Hotels Franchising,
Inc. 1997 Long-Term Incentive Plan (the "1997 Plan"); and up to 500,000 shares
of Common Stock, par value $.01 per share (the "Employee Plan Shares"), to be
issued by the Company under the Choice Hotels Franchising, Inc. Employee Stock
Purchase Plan (the "Employee Plan").
I am familiar with the proceedings undertaken in connection with the
authorization of the 1997 Plan Shares under the 1997 Plan and the authorization
of the Employee Plan Shares under the Employee Plan. Additionally, I have
examined such questions of law and fact as I have considered necessary or
appropriate for purposes of this opinion.
I am opining herein as to the effect on the subject transaction of only the
General Corporation Law of the State of Delaware and I express no opinion with
respect to the applicability thereto or the effect thereon of any other laws or
as to any matters of municipal law or any other local agencies within any state.
Subject to the foregoing and in reliance thereon, it is my opinion that:
(i) Upon the exercise of options granted pursuant to the 1997 Plan and
subject to the Company completing all actions and proceedings required on its
part to be taken prior to the issuance of the 1997 Plan Shares pursuant to the
terms of the 1997 Plan and the Registration Statement, including, without
limitation, collection of required payment for such shares, the 1997 Plan Shares
will be validly issued, fully paid and non-assessable securities of the Company;
and
(ii) Upon the issuance of the Employee Plan Shares pursuant to the
Employee Plan and subject to the Company completing all actions and proceedings
required on its part to be taken prior to the issuance of the Employee Plan
Shares pursuant to the terms of the Employee Plan and the Registration
Statement, including, without limitation, collection of required payment for
such shares, the Employee Plan Shares will be validly issued, fully paid and
non-assessable securities of the Company.
7
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I consent to your opinion as an exhibit to the Registration Statement and
to the reference to this opinion centered under the heading "Legal Matters."
Very truly yours,
8
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Exhibit 23.02
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated June 24, 1997
included in Choice Hotels Franchising, Inc.'s Form 10 filed on September 18,
1997 and to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Washington, D.C.
September 30, 1997
