As filed with the Securities and Exchange Commission August 3, 1998
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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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MERISTAR HOTELS & RESORTS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 51-0379982
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1010 WISCONSIN AVENUE, N.W.
WASHINGTON, D.C. 20007
(202) 965-4455
(Address and telephone number of Principal Executive Offices)
MERISTAR HOTELS & RESORTS, INC. INCENTIVE PLAN
(Full title of the plan)
PAUL W. WHETSELL
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
MERISTAR HOTELS & RESORTS, INC.
1010 WISCONSIN AVENUE, N.W.
WASHINGTON, D.C. 20007
(Name and address of agent for service)
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(202) 965-4455
(Telephone number, including area code, of agent for service)
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COPY TO:
RICHARD S. BORISOFF, ESQ.
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
1285 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019-6064
(212) 373-3000
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(COVER CONTINUED ON NEXT PAGE)
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) REGISTRATION FEE
=========================================== ============== ======================= ===================== ======================
<S> <C> <C> <C> <C>
Common Stock, $.01 par value............... 4,000,000(2) $2.38 $9,520,000 $2,808
=========================================== ============== ======================= ===================== ======================
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(1) An estimate, based on the pro forma book value per share as of March 31,
1998 as determined in accordance with Rule 457(c) and (h) under the
Securities Act of 1933, has been made solely for the purpose of calculating
the registration fee relating to the 4,000,000 shares of Common Stock to be
registered hereunder and subsequently offered at prices computed upon the
basis of fluctuating market prices.
(2) Represents 4,000,000 shares of Common Stock issuable pursuant to the
MeriStar Hotels & Resorts, Inc. Incentive Plan. This registration statement
also relates to such indeterminate number of additional shares of Common
Stock of MeriStar Hotels & Resorts, Inc. as may be issuable as a result of
stock splits, stock dividends or additional similar transactions.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan information
The documents containing the information specified in this Item will be
sent or given to individuals who have been awarded options or shares of Common
Stock under the MeriStar Hotels & Resorts, Inc. Incentive Plan (the "Plan"), and
are not being filed with, or included in, this Registration Statement on Form
S-8 (the "Registration Statement") in accordance with the rules and regulations
of the Securities and Exchange Commission (the "Commission").
Item 2. Registrant Information and Employee Plan Annual Information
The documents containing the information specified in this Item will be
sent or given to individuals who have been awarded options or shares of Common
Stock under the Plan and are not being filed with, or included in, this
Registration Statement in accordance with the rules and regulations of the
Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by MeriStar Resorts & Hotels, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference into this Registration Statement:
1. The Company's Registration Statement on Form S-1 filed with the
Commission on April 10, 1998 (Registration No. 333-49881), as amended.
2. The Company's Registration Statement on Form 8-A, dated July 22,
1998, filed pursuant to Section 12(b) of the Securities Exchange Act of 1934, as
amended, which contains a description of the Company's Common Stock, par value
$.01 per share.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, subsequent to the date hereof
and prior to the termination of the offering of the securities registered
pursuant to this Registration Statement shall be deemed to be incorporated by
reference into this Registration Statement and to be 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 documents 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 hereof.
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Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102(b)(7) of the Delaware General Corporation Law (the
"Delaware Law") permits a provision in the certificate of incorporation of each
corporation organized thereunder, eliminating or limiting, with certain
exceptions, the personal liability of a director to the corporation or its
stockholders for monetary damages for certain breaches of fiduciary duty as a
director. The Certificate of Incorporation of the Company, as restated,
integrated and amended (the "Charter"), eliminates the personal liability of
directors to the fullest extent permitted by the Delaware Law.
Section 145 of the Delaware Law ("Section 145"), in summary, empowers a
Delaware corporation, within certain limitations, to indemnify its officers,
directors, employees and agents against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement, actually and reasonably
incurred by them in connection with any suit or proceeding other than by or on
behalf of the corporation, if they acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interest of the
corporation, and, with respect to a criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful.
With respect to actions by or on behalf of the corporation, Section 145
permits a corporation to indemnify its officers, directors, employees and agents
against expenses (including attorneys' fees) actually and reasonably incurred in
connection with the defense or settlement of such action or suit, provided such
person meets the standard of conduct described in the preceding paragraph,
except that no indemnification is permitted in respect of any claim where such
person has been found liable to the corporation, unless the Court of Chancery or
the court in which such action or suit was brought approves such indemnification
and determines that such person is fairly and reasonably entitled to be
indemnified.
Article Six of the Charter provides for the indemnification of officers
and directors and certain other parties (the "Indemnitees") of the Company to
the fullest extent permitted under the Delaware Law; PROVIDED, that except in
the case of proceedings to enforce rights to indemnification, the Company shall
indemnify such Indemnitee in connection with a proceeding initiated by such
Indemnitee only if such proceeding was authorized by the Board of Directors of
the Company. The Charter also provides that the Company may reimburse or advance
an Indemnitee funds necessary for payment of expenses, including reasonable
attorneys' fees and disbursements incurred in connection with any proceeding, in
advance of the final disposition of such proceeding.
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Each of the employment agreements to be entered into with each of the
following directors and officers: Paul W. Whetsell, Steven D. Jorns, David E.
McCaslin, James A. Calder and John E. Plunket, contains provisions entitling the
executive to indemnification for losses incurred in the course of service to the
Company or its subsidiaries, under certain circumstances.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. Exhibits
5.1 -- Opinion of Paul, Weiss, Rifkind, Wharton & Garrison as to the
legality of shares of Common Stock being registered
23.1 -- Consent of KPMG Peat Marwick LLP
23.2.1 -- Consent of PricewaterhouseCoopers LLP (Dallas office)
23.2.2 -- Consent of PricewaterhouseCoopers LLP (Raleigh office)
23.3 -- Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in
their opinion filed as Exhibit 5.1)
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 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;
(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; and
(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 of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 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 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.
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(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers and
controlling persons of the registrant pursuant to the registrant's Restated
Certificate of Incorporation, by contract, 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, as amended,
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 Washington, District of Columbia, on August 3,
1998.
MERISTAR HOTELS & RESORTS, INC.
By: /s/ Paul W. Whetsell
------------------------
Name: Paul W. Whetsell
Title: Chairman and Chief Executive Officer
and confirm our signatures as they may be signed by our said attorneys to any
and all such amendments.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON AUGUST 3, 1998.
Signatures Title
---------- -----
/s/ Paul W. Whetsell Chief Executive Officer and
-------------------- Chairman of the Board
Paul W. Whetsell
/s/ James A. Calder Chief Financial Officer (Principal
------------------- Financial and Accounting
James A. Calder Officer)
/s/ David E. McCaslin President and Director
---------------------
David E. McCaslin
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INDEX TO EXHIBITS
Sequential Page
Exhibits Number
- -------- ------
5.1 -- Opinion of Paul, Weiss, Rifkind, Wharton & Garrison as to the
legality of shares of Common Stock being registered.
23.1 -- KPMG Peat Marwick LLP
23.2.1 -- PricewaterhouseCoopers LLP (Dallas office)
23.2.2 -- PricewaterhouseCoopers LLP (Raleigh office)
23.3 -- Consent of Paul, Weiss, Rifkind, Wharton & Garrison
(included in their opinion filed as Exhibit 5.1).
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Exhibit 5.1
August 3, 1998
MeriStar Hotels & Resorts, Inc.
1010 Wisconsin Avenue, N.W.
Washington, DC 20027
MeriStar Hotels & Resorts, Inc.
Registration Statement on Form S-8
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Ladies and Gentlemen:
In connection with the above-referenced Registration Statement on Form
S-8 (the "Registration Statement") filed by MeriStar Hotels & Resorts, Inc., a
Delaware corporation (the "Company"), with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended (the "Act"), and
the rules and regulations promulgated thereunder (the "Rules"), we have been
requested to render our opinion as to the legality of the shares of Common
Stock, par value $.01 per share (the "Common Stock"), of the Company to be
registered thereunder. The shares to be registered under the Registration
Statement consist of 3,200,000 shares (the "Shares") of Common Stock to be
issued pursuant to the MeriStar Hotels & Resorts, Inc. Incentive Plan (the
"Plan").
In connection with this opinion, we have examined (i) an original,
photocopy or conformed copy of the Registration Statement (including the
exhibits thereto), (ii) an original, photocopy or conformed copy of the Plan,
(iii) the Restated Certificate of Incorporation and Bylaws of the Company, each
as amended to date, and (iv) records of certain of the Company's corporate
proceedings. In addition, we have made such other examinations of law and fact
as we have considered necessary in order to form a basis for the opinion
hereinafter expressed. In our examination of documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as photostatic, reproduced or conformed copies, the authenticity of all such
latter documents and the legal capacity of all individuals who have executed any
of the documents. As to certain matters of fact, we have relied on
representations, statements or certificates of officers of the Company.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized for issuance and that the Shares, when issued and delivered by
the Company and paid
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for in accordance with the terms and provisions of the Plan, will be validly
issued, fully paid and nonassessable.
The foregoing opinion is limited to the federal laws of the United
States and the General Corporation Law of the State of Delaware. Our opinion is
rendered only with respect to the laws and the rules, regulations and orders
thereunder, which are currently in effect. Please be advised that no member of
this firm is admitted to practice in the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
are in the category of persons whose consent is required by the Act or the
Rules.
Very truly yours,
/s/ PAUL, WEISS, RIFKIND, WHARTON & GARRISON
--------------------------------------------
9
Exhibit 23.1
ACCOUNTANTS' CONSENT
The Board of Directors
CapStar Hotel Company:
We consent to the use of our report dated May 19, 1998 related to the
balance sheet of MeriStar Hotels & Resorts, Inc. as of March 31, 1998 and the
use of our report dated March 30, 1998 related to the combined balance sheets of
the management and leasing business of CapStar Hotel Company and subsidiaries
("OpCo") as of December 31, 1997 and 1996 and the related combined statements of
operations, owners' equity and cash flows for each of the years in the
three-year period ended December 31, 1997, incorporated by reference on Form S-8
of MeriStar Hotels & Resorts, Inc.
/s/ KPMG PEAT MARWICK LLP
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Washington, DC
August 3, 1998
10
Exhibit 23.2.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 and Prospectus of MeriStar Hotels & Resorts, Inc. and the
inclusion in the Registration Statement of MeriStar Hotels & Resorts, Inc. on
Form S-1 (File No. 333-49881) of our report dated January 30, 1998, except for
Note 6, as to which the date is March 16, 1998, on our audits of the financial
statements of AGH Leasing, L.P. and our report dated April 1, 1998, on our
audits of the financial statements of American General Hospitality, Inc.,
included in the Report on Form 8-K dated and filed on April 17, 1998 and the
Form 8-K/A filed on May 22, 1998.
/s/ PRICEWATERHOUSECOOPERS LLP
------------------------------
Dallas, Texas
August 3, 1998
11
Exhibit 23.2.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 and Prospectus of MeriStar Hotels & Resorts, Inc. and the
inclusion in the Registration Statement of MeriStar Hotels & Resorts, Inc. on
Form S-1 (File No. 333-49881) of our report dated February 6, 1998 on our audits
of the financial statements of Winston Hospitality, Inc. as of October 31, 1997
and December 31, 1996 and for the ten months ended October 31, 1997 and the
years ended December 31, 1996 and 1995.
/s/ PRICEWATERHOUSECOOPERS LLP
------------------------------
Raleigh, North Carolina
August 3, 1998
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