<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 13, 1998.
Registration No. 333-59315
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------
POST-EFFECTIVE
AMENDMENT NO. 1
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
LODGIAN, INC.
----------------
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C>
DELAWARE 7011 52-2093696
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
1601 BELVEDERE ROAD
WEST PALM BEACH, FLORIDA 33406
(561) 689-9970
--------------------------
(Address, including Zip Code, and telephone
number, including area code, of registrant's
principal executive offices)
1601 BELVEDERE ROAD
WEST PALM BEACH, FLORIDA 33406
(561) 689-9970
--------------
(Name, address, including Zip Code,
and telephone number,
including area code, of agent for service)
Please send copies of all communications to:
ALISON W. MILLER, ESQ. KEN HARRIGAN, ESQ.
STEVEN D. RUBIN, ESQ. POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
STEARNS WEAVER MILLER WEISSLER 191 PEACHTREE STREET, N.E., SUITE 1600
ALHADEFF & SITTERSON, P.A. ATLANTA, GEORGIA, 30303
150 WEST FLAGLER STREET, SUITE 2200 (404) 572-6744
MIAMI, FLORIDA 33130
(305) 789-3200
Approximate date of commencement of proposed sale and the public: As
soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are being
offered in connection with the formation of a holding company and there is
compliance with General Instruction G, check the following box / /.
================================================================================
<PAGE> 2
SUPPLEMENT DATED NOVEMBER ___, 1998
TO JOINT PROXY STATEMENT/PROSPECTUS
DATED JULY 23, 1998
On September 16, 1998, Servico, Inc. and Impac Hotel Group, L.L.C.
amended their Amended and Restated Agreement and Plan of Merger, dated July 22,
1998. The original agreement provided for the issuance of 6 million shares of
Lodgian Common Stock to Impac unitholders, or 0.519 shares for each Impac Unit
owned, subject to adjustment if the average price of the Servico Common Stock
over the ten-day period prior to the satisfaction of the last condition to
consummation of the Merger was less than $14.00 per share or greater than $25.00
per share, plus up to an additional 1.4 million shares of Lodgian Common Stock
as certain development hotels are opened. As amended, the Agreement fixes the
number of shares of Lodgian Common Stock to be issued to Impac unitholders at
9.4 million (which continues to include 1.4 million shares to be paid as certain
development hotels are opened) without any further adjustment based on the
average price of the Servico Common Stock and adds a one-time cash payment to
the Impac unitholders in the aggregate amount of $15 million. The number of
shares to be issued to Impac unitholders was fixed based upon the closing prices
for Servico common stock during the ten day period prior to September 15, 1998.
The amendment to the Merger Agreement is attached as Appendix A.
OPPORTUNITY TO CHANGE YOUR VOTE
Servico's shareholders voted to approve the Merger Agreement at
Servico's Annual Meeting held in West Palm Beach, Florida on September 18, 1998.
However, due to the proximity of the amendment of the Merger Agreement to the
date of Servico's Annual Meeting, Servico's shareholders are being given the
opportunity to change their vote with respect to the Merger.
The holders of a majority of Impac's outstanding Units submitted
consents in favor of the Merger and received notice of the amendment. However,
Impac members may also withdraw their consent to the Merger.
WHAT DO I NEED TO DO NOW?
First, carefully read this Supplement. If you DO NOT want to change
your vote or revoke your consent with respect to the Merger, you do not need to
do anything. Your original proxy card or consent form is still valid. If you DO
want to change your vote or revoke your consent with respect to the Merger, you
must do the following:
IF YOU ARE A SERVICO SHAREHOLDER, you may change your vote by
completing, signing and mailing the enclosed vote revocation card to the
Secretary of Servico in the enclosed postage prepaid return envelope by November
___, 1998 [10 days from mailing]. If you hold your shares in "street name" or
through a nominee or broker, you must follow directions received from your
broker to change your vote.
IF YOU ARE AN IMPAC UNITHOLDER, you may revoke your consent at any time
prior to November ___, 1998 [10 days from mailing] by submitting the enclosed
written notification stating that you would like to revoke your consent. You
should send your notice of revocation to the Secretary of Impac in the enclosed
postage prepaid return envelope by November ___, 1998.
THE AMENDMENT
There has been significant volatility over the past several months in
the market prices for equity securities, including securities of companies
engaged in the ownership or management of hotels. This volatility has been
reflected in the trading price of the Servico Common Stock. For the 52-week
period ended November 5, 1998, the closing sale price per share of Servico
Common Stock as reported on the New York Stock Exchange ranged from a high of
$22-1/2 to a low of $2-1/4. The last sale price of Servico on (i) March 20,
1998, the last full trading day prior to Servico's and Impac's public
announcement of the execution of the Merger Agreement, was $17.75 per share,
(ii) on July 22, 1998, the last full trading day prior to the date of the Joint
Proxy Statement/Prospectus, was $15.00 per share and (iii) on September 15,
1998, the last full trading day prior to Servico's announcement that it had
reached agreement with Impac to amend the Merger Agreement, was $8.00 per share.
The trading prices for Servico Common Stock during the ten days prior to
September 15, 1998 were as follows:
Date Per Share Price
---- ---------------
August 31, 1998 $9.75
September 1, 1998 $9.50
September 2, 1998 $10.25
September 3, 1998 $ 9.875
<PAGE> 3
Date Per Share Price
---- ---------------
September 4, 1998 $ 9.875
September 8, 1998 $10.3125
September 9, 1998 $10.0625
September 10, 1998 $ 8.6875
September 11, 1998 $ 8.3125
September 14, 1998 $ 8.00
As described above, the Merger Agreement originally provided that the
number of shares of Lodgian Common Stock to be issued to Impac unitholders would
be based upon the average closing price of the Servico Common Stock over the ten
consecutive trading-days preceding the date on which all conditions precedent to
the Merger had been satisfied. Because of the uncertainty in the marketplace
regarding when the trading period calculation would commence and the overall
volatility in the equity markets, there was uncertainty and confusion over the
number of shares which would ultimately be issued to Impac's unitholders in the
Merger. Accordingly, as announced on September 16, 1998, Impac and Servico
agreed to amend the Merger Agreement to fix the Merger consideration based upon
the ten consecutive trading-days preceding September 15, 1998, the date on which
Servico's Board approved the amendment to the Merger Agreement. Additionally,
the parties agreed that $15 million of the Merger consideration issuable to
Impac unitholders would be payable in cash rather than shares of Lodgian Common
Stock. As a result, unitholders of Impac will now initially receive an aggregate
of 8 million shares of Lodgian Common Stock, or 0.692 shares for each unit
owned, and cash, without interest, in the amount of approximately $1.30 per
Impac Unit. Impac unitholders will also continue to be entitled to receive up to
the additional 1.4 million shares of Lodgian Common Stock, representing an
additional 0.121 shares of Lodgian Common Stock for each Impac Unit, as five of
Impac's hotels that are currently under development are opened. Information
regarding these hotels is set forth in the Joint Proxy Statement/Prospectus that
was previously provided to you. The Servico Exchange Ratio is unchanged and
Servico shareholders will continue to receive Lodgian Common Stock on a
one-for-one basis. As a result of the Merger, Servico shareholders and Impac
unitholders will own approximately 68% and 32%, respectively, of the outstanding
Lodgian Common Stock.
The number of shares of Lodgian Common Stock to be issued to the
unitholders or shareholders, as the case may be, of Impac and each of the Impac
Affiliated Companies in the Merger is set forth below:
<TABLE>
<CAPTION>
APPROXIMATE
APPROXIMATE NUMBER OF
NUMBER OF ADDITIONAL SHARES OF
SHARES OF LODGIAN COMMON
LODGIAN APPROXIMATE STOCK TO BE RECEIVED
PERCENTAGE OF COMMON STOCK AMOUNT OF CASH UPON OPENING OF
OUTSTANDING INITIALLY RECEIVED TO BE RECEIVED IN HOTELS UNDER
COMPANY IMPAC UNITS IN THE MERGER (1) THE MERGER(1) DEVELOPMENT (1)
--------- ------------ ----------------- --------------- ---------------
<S> <C> <C> <C> <C> <C>
Impac Hotel Group, L.L.C.(2) 82.42% 6,593,889 $12,363,543 1,153,931
P-Burg Lodging Associates, Inc.(3) 1.83 146,573 274,825 25,650
Hazard Lodging Associates, Inc.(3) 0.96 77,145 144,646 13,500
Memphis Lodging Associates, Inc.(3) 1.33 106,360 199,424 18,613
Delk Lodging Associates, Inc.(3) 0.64 50,808 95,265 8,891
Impac Hotel Development, Inc.(3) 11.09 887,204 1,663,508 155,261
Impac Design and Construction, Inc.(3) 0.65 51,758 97,046 9,058
Impac Hotel Group, Inc.(3) 1.08 86,263 161,743 15,096
-------- ----------- ------------- ---------
TOTAL: 100.00% 8,000,000 $15,000,000 1,400,000
======== =========== ============= =========
</TABLE>
- -----------------------
(1) Does not provide for the issuance of cash in lieu of fractional shares.
(2) Each Impac unitholder will receive 0.692 shares of Lodgian Common Stock
and cash, without interest, in the amount of $1.30 for each of his
Impac units plus an additional 0.121 shares of Lodgian Common Stock
upon opening of the hotels under development.
(3) Each shareholder of the indicated company will receive his or her pro
rata portion of the cash and Lodgian Common Stock to be delivered to
that company.
-2-
<PAGE> 4
STATUS OF THE MERGER
Completion of the Merger continues to depend upon the satisfaction or
waiver of the conditions to the Merger. On November 9, 1998, Servico announced
that it had obtained a $265 million financing commitment from Lehman Brothers
Holdings Inc. in connection with the consummation of the Merger including
approximately $31.5 million due as a result of two interest rate swap
transactions that were entered into by Servico in an effort to manage the
interest rate risk associated with financing the Merger. The financing
commitment is subject to the satisfaction of customary conditions. Servico also
announced that David Buddemeyer, Chairman of the Board and Chief Executive
Officer of Servico, will resign from all of his positions with Servico and that
upon consummation of the Merger, Robert S. Cole, currently the President of
Impac, will become Chief Executive Officer of Lodgian. Lodgian will also
establish an Office of the Chairman composed of directors Joseph C. Calabro,
John Lang and Michael A. Leven with Joseph C. Calabro serving as acting chairman
of the Office of the Chairman.
MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES
The tax consequences of the Merger will generally remain the same as
those described in the Joint Proxy Statement/Prospectus. The tax consequences of
the Merger to Servico's shareholders will not be altered as a result of the
amendment to the Merger Agreement. Please see Appendix B attached to this
Supplement for an explanation of the material tax effects of the amended terms
of the Merger to unitholders of Impac and shareholders of the Impac Affiliated
Companies.
RECOMMENDATIONS
The Servico Board and the Manager of Impac continue to believe that the
terms of the Merger, as amended, are fair to, and in the best interests of their
respective companies, shareholders and unitholders.
QUESTIONS
If you have any questions about the transaction, you should call
Georgeson & Company Inc. at 1-800-223-2064.
THE JOINT PROXY STATEMENT/PROSPECTUS OF IMPAC AND SERVICO, DATED JULY
23, 1998, PROVIDING DETAILED INFORMATION CONCERNING THE MERGER WAS MAILED TO YOU
IN LATE JULY, 1998. THIS SUPPLEMENT IS NOT COMPLETE WITHOUT THE JOINT PROXY
STATEMENT/PROSPECTUS AND THE DOCUMENTS FILED BY SERVICO WITH THE SEC SINCE JULY
23, 1998, INCLUDING SERVICO'S CURRENT REPORT ON FORM 8-K, DATED SEPTEMBER 16,
1998, AND SERVICO'S QUARTERLY REPORTS ON FORM 10-Q FOR THE QUARTERS ENDED JUNE
30, 1998 AND SEPTEMBER 30, 1998. SPECIFIC ATTENTION SHOULD BE PAID TO:
o THE RESIGNATION OF DAVID BUDDEMEYER, CHIEF EXECUTIVE OFFICER OF
SERVICO,
o THE FACT THAT SERVICO WILL BE REQUIRED TO OFFER TO REPURCHASE $175
MILLION OF OUTSTANDING CRESTS IN THE EVENT THE IMPAC MERGER IS NOT
CONSUMMATED PRIOR TO DECEMBER 31, 1998, AND
o THE COMPANY'S $265 MILLION FINANCING COMMITMENT IS CONDITIONED ON
CONSUMMATION OF THE MERGER.
PLEASE GIVE ALL OF THIS INFORMATION YOUR CAREFUL ATTENTION. ALL
CAPITALIZED TERMS USED BUT NOT DEFINED IN THIS SUPPLEMENT HAVE THE MEANINGS
GIVEN TO THEM IN THE JOINT PROXY STATEMENT/PROSPECTUS.
-3-
<PAGE> 5
APPENDIX A
AMENDMENT TO AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
This Amendment (the "AMENDMENT") is entered into as of the 16th day of
September, 1998, by and among SERVICO, INC., a Florida corporation ("Servico"),
LODGIAN, INC., a Delaware corporation and a wholly-owned subsidiary of Servico
("SHG"), SHG-S SUB, INC., a Florida corporation and a wholly-owned subsidiary of
SHG ("Servico Merger Sub"), IMPAC HOTEL GROUP, L.L.C., a Georgia limited
liability company ("Impac"), SHG-I SUB, L.L.C., a Georgia limited liability
company and a wholly-owned subsidiary of SHG ("Impac Merger Sub"), P-BURG
LODGING ASSOCIATES, INC., a Kentucky corporation ("P-Burg"), SHG-II SUB, INC., a
Kentucky corporation and a wholly-owned subsidiary of SHG ("P-Burg Merger Sub"),
HAZARD LODGING ASSOCIATES, INC., a Kentucky corporation ("Hazard"), SHG-III SUB,
INC., a Kentucky corporation and a wholly-owned subsidiary of SHG ("Hazard
Merger Sub"), MEMPHIS LODGING ASSOCIATES, INC., a Florida corporation
("Memphis"), SHG-IV SUB, INC., a Florida corporation and a wholly-owned
subsidiary of SHG ("Memphis Merger Sub"), DELK LODGING ASSOCIATES, INC., a
Delaware corporation ("Delk"), SHG-V SUB, INC., a Delaware corporation and a
wholly-owned subsidiary of SHG ("Delk Merger Sub"), IMPAC HOTEL DEVELOPMENT,
INC., a Delaware corporation ("IHD"), SHG-VI SUB, INC., a Delaware corporation
and a wholly-owned subsidiary of SHG ("IHD Merger Sub"), IMPAC DESIGN AND
CONSTRUCTION, INC., a Delaware corporation ("IDC"), SHG-VII SUB, INC., a
Delaware corporation and a wholly-owned subsidiary of SHG ("IDC Merger Sub"),
IMPAC HOTEL GROUP, INC., a Florida corporation ("IHG"), SHG-VIII SUB, INC., a
Florida corporation and a wholly-owned subsidiary of SHG ("IHG Merger Sub"),
IHG, P-Burg, Hazard, Memphis, Delk, IHD and IDC are sometimes collectively
referred to as the "Impac Affiliated Companies", P-Burg Merger Sub, Hazard
Merger Sub, Memphis Merger Sub, Delk Merger Sub, IHD Merger Sub, IDC Merger Sub
and IHG Merger Sub, are sometimes collectively referred to as the "Impac
Affiliated Merger Subs".
PRELIMINARY STATEMENTS
WHEREAS, Servico, Impac, the Impac Affiliated Companies, Servico Merger
Sub, Impac Merger Sub and the Impac Affiliated Merger Subs entered into that
certain Amended and Restated Agreement and Plan of Merger, dated as of July 22,
1998 (the "AGREEMENT"), pursuant to which, among other things, Servico, Impac
and the Impac Affiliated Companies will combine their respective businesses in a
merger transaction (the "Merger"); and
WHEREAS, due to market conditions and the uncertainty created by the
recent volatility in Servico's common stock, the parties hereto have agreed to
fix the number of shares of SHG common stock which will be issued in the Merger;
and
WHEREAS, the parties hereto desire to amend the Agreement.
NOW, THEREFORE, in consideration of the premises and mutual terms,
covenants and agreements set forth herein and in the Agreement, and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. AMENDMENT OF SECOND RECITAL. The parties agree that the second
recital of the Agreement is hereby deleted in its entirety and replaced with the
following:
WHEREAS, upon the terms and subject to the conditions of this
Agreement and in accordance with the Business Corporation Act of the
State of Florida (the "FBCA"), the Delaware General Corporation Law
("DGCL"), the Kentucky
<PAGE> 6
Business Corporation Act ("KBCA"), and the Georgia Limited Liability
Company Act (the "GLLCA"), SHG will acquire all of the common stock of
Servico and each of the Impac Affiliated Companies and all of the
membership interests of Impac through the merger of Servico Merger Sub
with and into Servico (the "Servico Merger"), the merger of P-Burg with
and into P-Burg Merger Sub (the "P-Burg Merger"), the merger of Hazard
with and into Hazard Merger Sub (the "Hazard Merger"), the merger of
Memphis with and into Memphis Merger Sub (the "Memphis Merger"), the
merger of Delk with and into Delk Merger Sub (the "Delk Merger"), the
merger of IHD Merger Sub with and into IHD (the "IHD Merger"), the
merger of IDC with and into IDC Merger Sub (the "IDC Merger"), and the
merger of IHG with and into IHG Merger Sub (the "IHG Merger", and,
collectively with the P-Burg Merger, the Hazard Merger, the Memphis
Merger, the Delk Merger, the IHD Merger and the IDC Merger, the "Impac
Affiliated Mergers"), and the merger of Impac Merger Sub with and into
Impac (the "Impac Merger") and the shareholders and members of Servico
and Impac, respectively, will receive shares of common stock, par value
$.01 per share, of SHG ("SHG Common Stock") as set forth herein;
2. AMENDMENT TO SECTION 1.2. The parties agree that Section 1.2 of the
Agreement is hereby deleted in its entirety and replaced with the following:
1.2 THE MERGERS.
(a) Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the FBCA, at the
Effective Time (as defined herein), Servico Merger Sub shall be merged
with and into Servico. As a result of the Servico Merger, the separate
corporate existence of Servico Merger Sub shall cease and Servico shall
continue as the surviving corporation of the Servico Merger as a
wholly-owned subsidiary of SHG (the "Servico Surviving Corporation").
(b) Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the KBCA, at the
Effective Time, P-Burg shall be merged with and into P-Burg Merger Sub.
As a result of the P-Burg Merger, the separate corporate existence of
P-Burg shall cease and P-Burg Merger Sub shall continue as the
surviving corporation of the P-Burg Merger as a wholly-owned subsidiary
of SHG (the "P-Burg Surviving Corporation"). If upon the advice of
counsel, it is determined that a merger of P-Burg Merger Sub with and
into P-Burg, with P-Burg as the survivor will qualify as a
reorganization within the meaning of Code Section 368(a)(1)(A) and
(a)(2)(E), then the parties may reverse the form of the P-Burg Merger
and P-Burg shall continue as the surviving corporation of the P-Burg
Merger as a wholly-owned subsidiary of SHG and be the "P-Burg Surviving
Corporation".
(c) Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the KBCA, at the
Effective Time, Hazard shall be merged with and into Hazard Merger Sub.
As a result of the Hazard Merger, the separate corporate existence of
Hazard shall cease and Hazard Merger Sub shall continue as the
surviving corporation of the Hazard Merger as a wholly-owned subsidiary
of SHG (the "Hazard Surviving Corporation"). If upon the advice of
counsel, it is determined that a merger of Hazard Merger Sub with and
into Hazard, with Hazard as the survivor will qualify as a
reorganization within the meaning of Code Section 368(a)(1)(A) and
(a)(2)(E), then the parties may reverse
- 2 -
<PAGE> 7
the form of the Hazard Merger and Hazard shall continue as the
surviving corporation of the Hazard Merger as a wholly-owned subsidiary
of SHG and be the "Hazard Surviving Corporation".
(d) Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the FBCA, at the
Effective Time, Memphis shall be merged with and into Memphis Merger
Sub. As a result of the Memphis Merger, the separate corporate
existence of Memphis shall cease and Memphis Merger Sub shall continue
as the surviving corporation of the Memphis Merger as a wholly-owned
subsidiary of SHG (the "Memphis Surviving Corporation"). If upon the
advice of counsel, it is determined that a merger of Memphis Merger Sub
with and into Memphis, with Memphis as the survivor will qualify as a
reorganization within the meaning of Code Section 368(a)(1)(A) and
(a)(2)(E), then the parties may reverse the form of the Memphis Merger
and Memphis shall continue as the surviving corporation of the Memphis
Merger as a wholly-owned subsidiary of SHG and be the "Memphis
Surviving Corporation".
(e) Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the DGCL, at the
Effective Time, Delk shall be merged with and into Delk Merger Sub. As
a result of the Delk Merger, the separate corporate existence of Delk
shall cease and Delk Merger Sub shall continue as the surviving
corporation of the Delk Merger as a wholly-owned subsidiary of SHG (the
"Delk Surviving Corporation"). If upon the advice of counsel, it is
determined that a merger of Delk Merger Sub with and into Delk, with
Delk as the survivor will qualify as a reorganization within the
meaning of Code Section 368(a)(1)(A) and (a)(2)(E), then the parties
may reverse the form of the Delk Merger and Delk shall continue as the
surviving corporation of the Delk Merger as a wholly-owned subsidiary
of SHG and be the "Delk Surviving Corporation".
(f) Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the DGCL, at the
Effective Time, IHD Merger Sub shall be merged with and into IHD. As a
result of the IHD Merger, the separate corporate existence of IHD
Merger Sub shall cease and IHD shall continue as the surviving
corporation of the IHD Merger as a wholly-owned subsidiary of SHG (the
"IHD Surviving Corporation").
(g) Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the DGCL, at the
Effective Time, IDC shall be merged with and into IDC Merger Sub. As a
result of the IDC Merger, the separate corporate existence of IDC shall
cease and IDC Merger Sub shall continue as the surviving corporation of
the IDC Merger as a wholly-owned subsidiary of SHG (the "IDC Surviving
Corporation"). If upon the advice of counsel, it is determined that a
merger of IDC Merger Sub with and into IDC, with IDC as the survivor
will qualify as a reorganization within the meaning of Code Section
368(a)(1)(A) and (a)(2)(E), then the parties may reverse the form of
the IDC Merger and IDC shall continue as the surviving corporation of
the IDC Merger as a wholly-owned subsidiary of SHG and be the "IDC
Surviving Corporation".
(h) Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the DGCL, at the
Effective Time, IHG shall be merged with and into IHG Merger Sub. As a
result of the IHG Merger, the
- 3 -
<PAGE> 8
separate corporate existence of IHG shall cease and IHG Merger Sub
shall continue as the surviving corporation of the IHG Merger as a
wholly-owned subsidiary of SHG (the "IHG Surviving Corporation"). If
upon the advice of counsel, it is determined that a merger of IHG
Merger Sub with and into IHG, with IHG as the survivor will qualify as
a reorganization within the meaning of Code Section 368(a)(1)(A) and
(a)(2)(E), then the parties may reverse the form of the IHG Merger and
IHG shall continue as the surviving corporation of the IHG Merger as a
wholly-owned subsidiary of SHG and be the "IHG Surviving Corporation".
(i) Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the GLLCA, at the
Effective Time, Impac Merger Sub shall be merged with and into Impac.
As a result of the Impac Merger, the separate corporate existence of
Impac Merger Sub shall cease and Impac shall continue as the surviving
corporation of the Impac Merger as a wholly owned subsidiary of SHG
(the "Impac Surviving Corporation"; any of Servico Surviving
Corporation, P-Burg Surviving Corporation, Hazard Surviving
Corporation, Memphis Surviving Corporation, Delk Surviving Corporation,
IHD Surviving Corporation, IDC Surviving Corporation, IHG Surviving
Corporation, or Impac Surviving Corporation being separately referred
to as a "Surviving Corporation" and collectively referred to as the
"Surviving Corporations").
3. AMENDMENT TO SECTION 1.5. The parties agree that Section 1.5 of the
Agreement is hereby deleted in its entirety and replaced with the following:
1.5. EFFECT OF THE MERGERS. At the Effective Time, the effect
of the Servico Merger, the Memphis Merger and the IHG Merger shall be
as provided in the applicable provisions of the FBCA, the effect of the
P-Burg Merger and the Hazard Merger shall be as provided in the
applicable provisions of the KBCA, the effect of the Delk Merger, the
IHD Merger and the IDC Merger shall be as provided in the applicable
provisions of the DGCL, and the effect of the Impac Merger shall be as
provided in the applicable provisions of the GLLCA. Without limiting
the generality of the foregoing, and subject thereto, at the Effective
Time, except as otherwise provided herein, (a) all the property,
rights, privileges, powers and franchises of Servico and Servico Merger
Sub shall vest in Servico as the Servico Surviving Corporation, and all
debts, liabilities and duties of Servico and Servico Merger Sub shall
become the debts, liabilities and duties of Servico as the Servico
Surviving Corporation, (b) all the property, rights, privileges, powers
and franchises of P-Burg and P-Burg Merger Sub shall vest in P-Burg
Merger Sub as the P-Burg Surviving Corporation, and all debts,
liabilities and duties of P-Burg and P-Burg Merger Sub shall become the
debts, liabilities and duties of P-Burg Merger Sub as the P-Burg
Surviving Corporation, (c) all the property, rights, privileges, powers
and franchises of Hazard and Hazard Merger Sub shall vest in Hazard
Merger Sub as the Hazard Surviving Corporation, and all debts,
liabilities and duties of Hazard and Hazard Surviving Corporation shall
become the debts, liabilities and duties of Hazard Merger Sub as the
Hazard Surviving Corporation, (d) all the property, rights, privileges,
powers and franchises of Memphis and Memphis Merger Sub shall vest in
Memphis Merger Sub as the Memphis Surviving Corporation, and all debts,
liabilities and duties of Memphis and Memphis Merger Sub shall become
the debts, liabilities and duties of Memphis Merger Sub as the Memphis
Surviving Corporation, (e) all the property, rights, privileges, powers
and franchises of Delk and Delk Merger Sub shall vest in Delk Merger
Sub as the Delk Surviving Corporation, and all debts, liabilities and
duties of Delk and Delk
- 4 -
<PAGE> 9
Merger Sub shall become the debts, liabilities and duties of Delk
Merger Sub as the Delk Surviving Corporation, (f) all the property,
rights, privileges, powers and franchises of IHD and IHD Merger Sub
shall vest in IHD as the IHD Surviving Corporation, and all debts,
liabilities and duties of IHD and IHD Merger Sub shall become the
debts, liabilities and duties of IHD as the IHD Surviving Corporation,
(g) all the property, rights, privileges, powers and franchises of IDC
and IDC Merger Sub shall vest in IDC Merger Sub as the IDC Surviving
Corporation, and all debts, liabilities and duties of IDC and IDC
Merger Sub shall become the debts, liabilities and duties of IDC Merger
Sub as the IDC Surviving Corporation, (h) all the property, rights,
privileges, powers and franchises of IHG and IHG Merger Sub shall vest
in IHG Merger Sub as the IHG Surviving Corporation, and all debts,
liabilities and duties of IHD and IHD Merger Sub shall become the
debts, liabilities and duties of IHD Merger Sub as the IHD Surviving
Corporation, and (i) all the property, rights, privileges, powers and
franchises of Impac and Impac Merger Sub shall vest in Impac as the
Impac Surviving Corporation, and all debts, liabilities and duties of
Impac and Impac Merger Sub shall become the debts, liabilities and
duties of Impac as the Impac Surviving Corporation. As of the Effective
Time, each of the Surviving Corporations shall be a wholly-owned
subsidiary of SHG.
4. AMENDMENT OF SECTION 2.2. The parties agree that Section 2.2 of the
Agreement is hereby deleted in its entirety and replaced with the following:
2.2 CONVERSION OF SHARES.
(a) Each share of Servico Common Stock issued and
outstanding immediately before the Effective Time (excluding those
owned by Impac or any wholly owned subsidiary of Servico or Impac) and
all rights in respect thereof, shall, at the Effective Time, without
any action on the part of any holder thereof, forthwith cease to exist
and be converted into and become exchangeable for 1.000 shares of SHG
Common Stock; such ratio of shares of Servico Common Stock to shares of
SHG Common Stock being referred to as the "Servico Exchange Ratio").
(b) Each share of P-Burg Common Stock, no par value
per share (the "P-Burg Common Stock"), issued and outstanding
immediately before the Effective Time and all rights in respect
thereof, shall, at the Effective Time, without any action on the part
of any holder thereof, forthwith cease to exist and be converted into
and become exchangeable for cash, without interest, and a number of
shares of SHG Common Stock as determined below (the ratio of shares of
P-Burg Common Stock to shares of SHG Common Stock being referred to as
the "P-Burg Exchange Ratio"). For purposes hereof, the P-Burg Exchange
Ratio shall be equal to the quotient of (i) the difference between
172,223.56 and 25,650.32 divided by (ii) the number of outstanding
shares of P-Burg Common Stock. The amount of cash which each share of
P-Burg Common Stock shall be converted into and exchangeable for shall
equal $274,824.86 divided by the number of outstanding shares of P-Burg
Common Stock.
(c) Each share of Hazard Common Stock, no par value
per share (the "Hazard Common Stock"), issued and outstanding
immediately before the Effective Time and all rights in respect
thereof, shall, at the Effective Time, without any action on the part
of any holder thereof, forthwith cease to exist and be converted into
and become exchangeable for cash, without interest, and a number of
shares of SHG Common Stock as determined below (the ratio of shares
- 5 -
<PAGE> 10
of Hazard Common Stock to shares of SHG Common Stock being referred to
as the "Hazard Exchange Ratio"). For purposes hereof, the Hazard
Exchange Ratio shall be equal to the quotient of (i) the difference
between 90,644.87 and 13,500.30 divided by (ii) the number of
outstanding shares of Hazard Common Stock. The amount of cash which
each share of Hazard Common Stock shall be converted into and
exchangeable for shall equal $144,646.07 divided by the number of
outstanding shares of Hazard Common Stock.
(d) Each share of Memphis Common Stock, par value
$.01 per share (the "Memphis Common Stock"), issued and outstanding
immediately before the Effective Time and all rights in respect
thereof, shall, at the Effective Time, without any action on the part
of any holder thereof, forthwith cease to exist and be converted into
and become exchangeable for cash, without interest, and a number of
shares of SHG Common Stock as determined below (the ratio of shares of
Memphis Common Stock to shares of SHG Common Stock being referred to as
the "Memphis Exchange Ratio"). For purposes hereof, the Memphis
Exchange Ratio shall be equal to the quotient of (i) the difference
between 124,972.73 and 18,612.96 divided by (ii) the number of
outstanding shares of Memphis Common Stock. The amount of cash which
each share of Memphis Common Stock shall be converted into and
exchangeable for shall equal $199,424.57 divided by the number of
outstanding shares of Memphis Common Stock.
(e) Each share of Delk Common Stock, no par value per
share (the "Delk Common Stock"), issued and outstanding immediately
before the Effective Time and all rights in respect thereof, shall, at
the Effective Time, without any action on the part of any holder
thereof, forthwith cease to exist and be converted into and become
exchangeable for cash, without interest, and a number of shares of SHG
Common Stock as determined below (the ratio of shares of Delk Common
Stock to shares of SHG Common Stock being referred to as the "Delk
Exchange Ratio"). For purposes hereof, the Delk Exchange Ratio shall be
equal to the quotient of (i) the difference between 59,699.73 and
8,891.45 divided by (ii) the number of outstanding shares of Delk
Common Stock. The amount of cash which each share of Delk Common Stock
shall be converted into and exchangeable for shall equal $95,265.53
divided by the number of outstanding shares of Delk Common Stock.
(f) Each share of IHD Common Stock, no par value per
share (the "IHD Common Stock"), issued and outstanding immediately
before the Effective Time and all rights in respect thereof, shall, at
the Effective Time, without any action on the part of any holder
thereof, forthwith cease to exist and be converted into and become
exchangeable for cash, without interest, and a number of shares of SHG
Common Stock as determined below (the ratio of shares of IHD Common
Stock to shares of SHG Common Stock being referred to as the "IHD
Exchange Ratio"). For purposes hereof, the IHD Exchange Ratio shall be
equal to the quotient of (i) the difference between 1,042,464.77 and
155,260.71 divided by (ii) the number of outstanding shares of IHD
Common Stock. The amount of cash which each share of IHD Common Stock
shall be converted into and exchangeable for shall equal $1,663,507.61
divided by the number of outstanding shares of IHD Common Stock.
(g) Each share of IDC Common Stock, no par value per
share (the "IDC Common Stock"), issued and outstanding immediately
before the
- 6 -
<PAGE> 11
Effective Time and all rights in respect thereof, shall, at the
Effective Time, without any action on the part of any holder thereof,
forthwith cease to exist and be converted into and become exchangeable
for cash, without interest, and a number of shares of SHG Common Stock
as determined below (the ratio of shares of IDC Common Stock to shares
of SHG Common Stock being referred to as the "IDC Exchange Ratio"). For
purposes hereof, the IDC Exchange Ratio shall be equal to the quotient
of (i) the difference between 60,815.31 and 9,057.60 divided by (ii)
the number of outstanding shares of IDC Common Stock. The amount of
cash which each share of IDC Common Stock shall be converted into and
exchangeable for shall equal $97,045.70 divided by the number of
outstanding shares of IDC Common Stock.
(h) Each share of IHG Common Stock, par value $1.00
per share (the "IHG Common Stock"), issued and outstanding immediately
before the Effective Time and all rights in respect thereof, shall, at
the Effective Time, without any action on the part of any holder
thereof, forthwith cease to exist and be converted into and become
exchangeable for cash, without interest, and a number of shares of SHG
Common Stock as determined below (the ratio of shares of IHG Common
Stock to shares of SHG Common Stock being referred to as the "IHG
Exchange Ratio"). For purposes hereof, the IHG Exchange Ratio shall be
equal to the quotient of (i) the difference between 101,358.86 and
15,096.00 divided by (ii) the number of outstanding shares of IHG
Common Stock. The amount of cash which each share of IHG Common Stock
shall be converted into and exchangeable for shall equal $161,742.86
divided by the number of outstanding shares of IHG Common Stock.
(i) Except as provided in Section 2.3(c) below, each
Class A Ordinary Membership Interest of Impac (an "Impac Unit") issued
and outstanding immediately before the Effective Time and all rights in
respect thereof, shall, at the Effective Time, without any action on
the part of any holder thereof, forthwith cease to exist and be
converted into and become exchangeable for cash, without interest, and
a number of shares of SHG Common Stock as determined below (the ratio
of shares of Impac Units to shares of SHG Common Stock being referred
to as the "Impac Exchange Ratio"). For purposes hereof, the Impac
Exchange Ratio shall be equal to the quotient of (i) the difference
between 7,747,820.17 and 1,153,930.66, divided by (ii) the number of
outstanding Impac Units minus the number of Impac Units owned by
P-Burg, Hazard, Delk, Memphis, IHD, IDC and IHG. The amount of cash
which each Impac Unit shall be converted into and exchangeable for
shall equal $12,363,542.80 divided by the number of outstanding Impac
Units minus the number of Impac Units owned by P-Burg, Hazard, Delk,
Memphis, IHD, IDC and IHG.
(j) Upon satisfaction of the conditions and
milestones set forth on SCHEDULE 2.2(c), an aggregate of an additional
1,400,000 shares of SHG Common Stock (the "Additional Shares") shall be
issuable to the holders of P-Burg Common Stock, Hazard Common Stock,
Memphis Common Stock, Delk Common Stock, IHD Common Stock, IDC Common
Stock, IHG Common Stock and Impac Units (collectively, the "Additional
Shareholders") in accordance with the methodology set forth on SCHEDULE
2.2(c). Certificates representing the Additional Shares shall be
delivered at the Closing to the Exchange Agent (as hereinafter
defined), as Escrow Agent, to be held and delivered to the Additional
Shareholders upon satisfaction of the conditions and milestones set
forth on SCHEDULE 2.2(c) in
- 7 -
<PAGE> 12
accordance with an Escrow Agreement substantially in the form attached
hereto as Exhibit 2.2(c). The Escrow Agreement will provide for the
Additional Shares to be released from escrow from time to time upon
satisfaction of such conditions and milestones (each of such milestone
dates being hereafter referred to as a "Milestone Date"). The parties
agree and acknowledge that the Additional Shares will be held in escrow
pending solely the satisfaction of the milestones and conditions set
forth on SCHEDULE 2.2(c) and any breach of any representation, warranty
or covenant by Impac contained in this Agreement will have no effect on
SHG's obligation to issue the Additional Shares to the Additional
Shareholders. The parties hereto hereby agree and acknowledge that the
parties have been advised that the Additional Shares will not be
treated as outstanding for purposes of calculating earnings per share
under applicable accounting rules and guidelines as applied by the SEC
or otherwise.
(k) At the Effective Time, each Class B Ordinary
Membership Interest of Impac shall be canceled and retired and no
shares of stock or other securities of SHG or either of the Surviving
Corporations or any other person shall be issuable, and no payment or
other calculation shall be made with respect thereto.
(l) Commencing immediately after the Effective Time,
each certificate which, immediately prior to the Effective Time,
represented issued and outstanding shares of Servico Common Stock
("Servico Shares"), P-Burg Common Stock ("P-Burg Shares"), Hazard
Common Stock ("Hazard Shares"), Memphis Common Stock ("Memphis
Shares"), Delk Common Stock ("Delk Shares"), IHD Common Stock ("IHD
Shares"), IDC Common Stock ("IDC Shares"), IHG Common Stock, ("IHG
Shares"), Impac Units (Impac Units, together with P-Burg Shares, Hazard
Shares, Memphis Shares, Delk Shares, IHD Shares, IDC Shares, IHG
Shares, and Servico Shares, the "Shares"), shall evidence ownership of
SHG Common Stock on the basis hereinbefore set forth, but subject to
the limitations set forth in Sections 2.3, 2.5, 2.7, 2.8 and 2.9
hereof.
(m) For all purposes of this Agreement, unless
otherwise specified, all shares held by employee benefit plans of
Servico (i) shall be deemed to be issued and outstanding, (ii) shall
not be deemed to be held in the treasury of Servico, and (iii) shall be
converted into shares of SHG Common Stock in accordance with the
Servico Exchange Ratio.
5. AMENDMENT OF SECTIONS 2.5 AND 2.6. The parties agree that Sections
2.5 and 2.6 of the Agreement shall be deleted in their entirety and replaced
with the following:
2.5 EXCHANGE OF SHARES OTHER THAN TREASURY SHARES. Subject to
the terms and conditions hereof, at or prior to the Effective Time, SHG
shall appoint an exchange agent to effect the exchange of Shares for
SHG Common Stock and cash in accordance with the provisions of this
Article II (the "Exchange Agent"). From time to time after the
Effective Time, SHG shall deposit, or cause to be deposited, cash and
certificates representing SHG Common Stock for conversion of Shares in
accordance with the provisions of Section 2.2 hereof (such cash and
certificates, together with any dividends or distributions with respect
thereto, being herein referred to as the "Exchange Fund"). Commencing
immediately after the Effective Time and until the appointment of the
Exchange Agent shall be terminated, each holder of a certificate or
certificates theretofore representing Shares may surrender the same to
the Exchange Agent, and, after the appointment
- 8 -
<PAGE> 13
of the Exchange Agent shall be terminated, any such holder may
surrender any such certificate to SHG. Such holder shall be entitled
upon such surrender to receive in exchange therefor (a) a certificate
or certificates representing the number of full shares of SHG Common
Stock into which the Shares theretofore represented by the certificate
or certificates so surrendered shall have been converted in accordance
with the provisions of Section 2.2 hereof, (b) cash which such holder
is entitled to receive in accordance with Section 2.2 hereof and (c)
cash in lieu of fractional shares, if any, in accordance with Section
2.7 hereof, and all such shares of SHG Common Stock shall be deemed to
have been issued at the Effective Time, it being agreed and
acknowledged, however, that the Additional Shares shall not be deemed
to be issued or outstanding until issuable on the applicable Milestone
Date in accordance with the provisions of SCHEDULE 2.2(c). The shares
of SHG Common Stock and cash described in the preceding sentence are
sometimes collectively referred to herein as the "Merger
Consideration." Until so surrendered and exchanged, each outstanding
certificate which, prior to the Effective Time, represented issued and
outstanding Shares shall be deemed for all corporate purposes of SHG,
other than the payment of dividends and other distributions, if any, to
evidence only the right to receive upon such surrender the Merger
Consideration. Unless and until any such certificate theretofore
representing Shares is so surrendered, no dividend or other
distribution, if any, payable to the holders of record of SHG Common
Stock as of any date subsequent to the Effective Time shall be paid to
the holder of such certificate in respect thereof. Upon the surrender
of any such certificate theretofore representing Shares, however, the
record holder of the certificate or certificates representing shares of
SHG Common Stock issued in exchange therefor shall receive from the
Exchange Agent or from SHG, as the case may be, payment of the amount
of dividends and other distributions, if any, which as of any date
subsequent to the Effective Time (or, with respect to the Additional
Shares, subsequent to the Milestone Date) and until such surrender
shall have become payable with respect to such number of shares of SHG
Common Stock ("Presurrender Dividends"). No interest shall be payable
with respect to the Merger Consideration or the payment of Presurrender
Dividends upon the surrender of certificates theretofore representing
Shares. After the appointment of the Exchange Agent shall have been
terminated, such holders of SHG Common Stock who have not received
payment of the Merger Consideration or the Presurrender Dividends shall
look only to SHG for payment thereof. Notwithstanding the foregoing
provisions of this Section 2.5, risk of loss and title to such
certificates representing Shares shall pass only upon proper delivery
of such certificates to the Exchange Agent, and neither the Exchange
Agent nor any party hereto shall be liable to a holder of Shares for
any SHG Common Stock, cash or dividends or distributions thereon
delivered to a public official pursuant to any applicable abandoned
property, escheat or similar law or to a transferee pursuant to Section
2.6 hereof.
2.6 STOCK TRANSFER BOOKS. At the Effective Time, the stock
transfer books of Servico with respect to Servico Shares, the stock
transfer books of P-Burg with respect to P-Burg Shares, the stock
transfer books of Hazard with respect to Hazard Shares, the stock
transfer books of Memphis with respect to Memphis Shares, the stock
transfer books of Delk with respect to Delk Shares, the stock transfer
books of IHD with respect to IHD Shares, the stock transfer books of
IDC with respect to IDC Shares, the stock transfer books of IHG with
respect to IHG Shares and the transfer books of Impac with respect to
Impac Units shall each be closed, and there shall be no further
registration of transfers of Shares thereafter
- 9 -
<PAGE> 14
on the records of any such transfer books. In the event of a transfer
of ownership of Shares that is not registered in the transfer records
of Servico, P-Burg, Hazard, Memphis, Delk, IHD, IDC, IHG or Impac, as
the case may be, at the Effective Time (a) a certificate or
certificates representing the number of full shares of SHG Common Stock
into which such Shares shall have been converted in accordance with
Section 2.2 hereof, (b) cash into which such Shares shall have been
converted in accordance with Section 2.2 hereof and (c) cash in lieu of
fractional shares, if any, in accordance with Section 2.7 hereof, shall
be issued to the transferee, together with a cash payment in the amount
of Presurrender Dividends, if any, in accordance with Section 2.5
hereof, if the certificate or certificates representing such Shares is
or are surrendered as provided in Section 2.5 hereof, accompanied by
all documents required to evidence and effect such transfer and by
evidence of payment of any applicable transfer tax.
6. AMENDMENT OF SECTION 2.7. The parties agree that Section 2.7 of the
Agreement shall be amended to add a new subsection (g) as follows:
(g) SHG shall be entitled to deduct and withhold from the
consideration otherwise payable pursuant to this Agreement to any
holder of Shares, such amounts as SHG is required to deduct and
withhold with respect to the making of such payment under the Code, or
any provision of state, local or foreign tax law. To the extent that
amounts are so withheld by SHG, such withheld amounts shall be treated
for all purposes of this Agreement as having been paid to the holder of
the Shares in respect of which such deduction and withholding was made
by SHG.
7. AMENDMENT TO SECTION 2.9(a). The parties agree that Section 2.9(a)
shall be amended to delete the reference to "shares of Servico Common Stock" and
replace it with "Impac Units".
8. AMENDMENT TO SECTION 5.14(b). The parties agree that the second
sentence of Section 5.14(b) of the Agreement shall be deleted in its entirety
and replaced with the following:
Further, SHG shall reserve for issuance under a stock option plan
approved by the Board of Directors of SHG, 555,000 shares of SHG Common
Stock, such options to be granted to certain employees of Impac or any
Impac Subsidiary.
9. AMENDMENT OF SECTION 7.2. The parties agree that Section 7.2 of the
Agreement shall be amended to delete Sections 7.2(g) and 7.2(h) in their
entirety and such sections shall be replaced with the following new Sections
7.2(g) and 7.2(h) and to add a new Section 7.2(i) as follows:
(g) DEBT RESTRUCTURING. Impac and Servico shall have received
(i) a commitment, effective as of the Closing, to restructure the
indebtedness of Impac and the Impac Subsidiaries substantially in
accordance with the terms described on Schedule 7.2(g) or (ii)
appropriate authorizations, consents, waivers or approvals permitting
the indebtedness of Impac and the Impac Subsidiaries to remain in place
after consummation of the transactions contemplated hereby on the same
economic terms as presently in effect, without the imposition of any
material adverse terms or conditions and without the imposition of any
significant costs; provided, however, that if necessary in order to
obtain such authorizations, consents, waivers or approvals, Lodgian
will assume or be joined on any guaranty obligations of Impac (subject
to the terms, conditions and limitations thereof existing on the date
- 10 -
<PAGE> 15
hereof) with respect to such indebtedness and will cause any affiliate
of Lodgian which replaces Impac Hotel Management LLC as manager of
Hotels owned or leased by the Impac Subsidiaries to subordinate its
interest in its management agreements to the obligations owed to the
existing lenders for such hotels.
(h) IMPAC AFFILIATED COMPANIES' FINANCIAL STATEMENTS. Servico
shall have received an audited balance sheet for each of the Impac
Affiliated Companies (other than IHD) as of December 31, 1997,
certified without qualification, by PricewaterhouseCoopers LLP,
pursuant to their audit of the financial records of such Impac
Affiliated Companies and an unaudited balance sheet for each of the
Impac Affiliated Companies (other than IHD) as of June 30, 1998,
reviewed by PricewaterhouseCoopers LLP. Such balance sheets shall
present fairly, in all material respects, the financial condition,
assets, liabilities and equity of each of such Impac Affiliated
Companies at the address specified in those statements, and shall
reflect that none of such Impac Affiliated Companies have any
liabilities, commitments or obligations of any nature whatsoever,
whether accrued, contingent or otherwise.
(i) INDEMNIFICATION AGREEMENTS. SHG shall have received from
each of the shareholders of IHD an indemnification agreement, in form
and substance reasonably satisfactory to SHG and Servico, indemnifying
and holding each of the Indemnified Parties, SHG and its directors,
officers and agents harmless against any costs or expenses (including
attorneys' fees), judgments, fines, losses, claims, damages,
liabilities or amounts paid in settlement incurred in connection with
any claim, action, suit or proceeding or investigation, whether civil,
criminal, administrative or investigative relating to the conduct of
business, ownership of operation or IHD at or prior to the Effective
Time.
10. AMENDMENTS TO ELIMINATE REFERENCES TO IMPAC SPECIAL MEETING. The
parties agree and acknowledge that no Impac Special Meeting is being held and
that Impac has instead solicited consents to the approval of the Agreement and
the Mergers from its Members. Accordingly, all references to Impac Special
Meeting in the Agreement are hereby deleted.
11. EFFECT OF THIS AMENDMENT. The parties hereto agree and acknowledge
that except as specifically amended herein, the Agreement shall remain in full
force and effect and is hereby ratified and confirmed in all respects. The
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver by any of the parties hereto of any other right or remedy any of them may
have pursuant to the Agreement. Without limiting the generality of the
foregoing, the parties reconfirm and agree that the representations, warranties,
covenants and agreements of the Agreement shall not be affected or diminished in
any way by any investigation (or failure to investigate) at any time by or on
behalf of Servico or by virtue of the execution of this Amendment. Additionally,
the parties acknowledge that the obligations of the parties to consummate the
transactions contemplated by the Agreement remain subject to the satisfaction of
all of the conditions precedent set forth in Article VI of the Agreement.
12. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
- 11 -
<PAGE> 16
IN WITNESS WHEREOF, the parties hereto have each executed and
delivered this Amendment as of the day and year first above written.
SERVICO, INC., a Florida
corporation
By: /s/ David A. Buddemeyer
--------------------------------
Name: David A. Buddemeyer
Title: President and Chief Executive
Officer
Address: 1601 Belvedere Road
West Palm Beach, Florida 33406
LODGIAN, INC.,
a Delaware corporation
By: /s/ David A. Buddemeyer
--------------------------------
Name: David A. Buddemeyer
Title: Chief Executive Officer
Address: 1601 Belvedere Road
West Palm Beach, Florida 33406
IMPAC HOTEL GROUP, L.L.C.,
a Georgia limited liability company
By: /s/ Robert S. Cole
--------------------------------
Name: Robert S. Cole
Title: President and Manager
Address: 3445 Peachtree Road, N.E.
Suite 7800
Atlanta, Georgia 30326
SHG-S SUB, INC.,
a Florida corporation
By: /s/ David A. Buddemeyer
--------------------------------
Name: David A. Buddemeyer
Title: President
Address: 1601 Belvedere Road
West Palm Beach, Florida 33406
- 12 -
<PAGE> 17
SHG-I SUB, L.L.C.,
a Georgia limited liability company
By: /s/ David A. Buddemeyer
--------------------------------
Name: David A. Buddemeyer
Title: Manager
Address: 1601 Belvedere Road
West Palm Beach, Florida 33406
P-BURG LODGING ASSOCIATES, INC.,
a Kentucky corporation
By: /s/ Robert S. Cole
--------------------------------
Name:
Title:
Address:
SHG-II SUB, INC., a Kentucky corporation
By: /s/ David A. Buddemeyer
--------------------------------
Name: David A. Buddemeyer
Title: President
Address: 1601 Belvedere Road
West Palm Beach, FL 33406
HAZARD LODGING ASSOCIATES, INC.,
a Kentucky corporation
By: /s/ Robert S. Cole
--------------------------------
Name:
Title:
Address:
SHG-III SUB, INC., a Kentucky corporation
By: /s/ David A. Buddemeyer
--------------------------------
Name: David A. Buddemeyer
Title: President
Address: 1601 Belvedere Road
West Palm Beach, FL 33406
- 13 -
<PAGE> 18
MEMPHIS LODGING ASSOCIATES, INC.,
a Florida corporation
By: /s/ Robert S. Cole
--------------------------------
Name:
Title:
Address:
SHG-IV SUB, INC., a Florida corporation
By: /s/ David A. Buddemeyer
--------------------------------
Name: David A. Buddemeyer
Title: President
Address: 1601 Belvedere Road
West Palm Beach, FL 33406
DELK LODGING ASSOCIATES, INC.,
a Delaware corporation
By: /s/ Robert S. Cole
--------------------------------
Name:
Title:
Address:
SHG-V SUB, INC., a Delaware corporation
By: /s/ David A. Buddemeyer
--------------------------------
Name: David A. Buddemeyer
Title: President
Address: 1601 Belvedere Road
West Palm Beach
IMPAC HOTEL DEVELOPMENT, INC.,
a Delaware corporation
By: /s/ Robert S. Cole
--------------------------------
Name:
Title:
Address:
- 14 -
<PAGE> 19
SHG-VI SUB, INC., a Delaware corporation
By: /s/ David A. Buddemeyer
--------------------------------
Name: David A. Buddemeyer
Title: President
Address: 1601 Belvedere Road
West Palm Beach, FL 33406
IMPAC DESIGN AND
CONSTRUCTION, INC.,
a Delaware corporation
By: /s/ Robert S. Cole
--------------------------------
Name:
Title:
Address:
SHG-VII SUB, INC., a Delaware corporation
By: /s/ David A. Buddemeyer
--------------------------------
Name: David A. Buddemeyer
Title: President
Address: 1601 Belvedere Road
West Palm Beach, FL 33406
IMPAC HOTEL GROUP, INC.,
a Florida corporation
By: /s/ Robert S. Cole
--------------------------------
Name:
Title:
Address:
SHG-VIII SUB, INC., a Florida corporation
By: /s/ David A. Buddemeyer
--------------------------------
Name: David A. Buddemeyer
Title: President
Address: 1601 Belvedere Road
West Palm Beach, FL 33406
- 15 -
<PAGE> 20
APPENDIX B
Federal Income Tax Consequences of the Merger
The tax consequences of the change in character of the consideration
generally will remain the same as set forth in the Joint Proxy
Statement/Prospectus dated July 23, 1998 (the "Joint Proxy Statement"), except
as set forth below. In the opinion of Powell, Goldstein, Frazer & Murphy LLP
("Powell Goldstein"), counsel to Impac and the Impac Affiliated Companies, each
of the Impac Affiliated Mergers will be considered part of an integrated plan
that includes the Impac Merger and the Servico Merger and, as such, the exchange
of the stock of an Impac Affiliated Company by a shareholder of an Impac
Affiliated Company for Lodgian Common Stock pursuant to one of the Impac
Affiliated Mergers will either (a) be considered to be a transfer to a
controlled corporation within the meaning of Section 351(a) of the Code, or (b)
qualify as a "tax-free" reorganization within the meaning of Section 368(a) of
the Code. In addition, as set forth in the Joint Proxy Statement, Powell
Goldstein will also issue its provisions that the Impac Merger and the IHD
Merger will be considered to be transfers to a controlled corporation within the
meaning of Section 351(a) of the Code. Accordingly, no gain or loss will be
recognized by a shareholder of an Impac Affiliated Company or an Impac
unitholder, except to the extent of any cash received in the Mergers, including
cash in lieu of fractional shares, and to the extent that an Impac unitholder's
allocable share of Impac indebtedness exceeds such unitholder's adjusted basis
in his Impac Units at the time of the Merger.
The amount of gain recognized by a shareholder of an Impac Affiliated
Company will equal the lesser of (1) the cash received in the Merger by such
shareholder, and (2) the gain realized, if any, by such shareholder as a result
of the exchange of stock of the Impac Affiliated Company for Lodgian Common
Stock. The gain realized by a shareholder of an Impac Affiliated Company will
equal the excess, if any, of the sum of the amount of cash and the fair market
value of the Lodgian Common Stock received by the shareholder of the Impac
Affiliated Company over such shareholder's basis in his stock of the Impac
Affiliated Company. The character of such gain, if any, recognized by a
shareholder of an Impac Affiliated Company generally should be capital gain,
which will be subject to federal income taxation at a maximum rate of 20% so
long as the stock has been held by such shareholder for more than one (1) year.
The amount of gain recognized by an Impac unitholder will equal the lesser of
(1) the cash received in the Merger by such unitholder plus the Impac
unitholder's allocable share of Impac Indebtedness at the time of the Merger,
and (2) the gain realized, if any, by such unitholder as a result of the
exchange of the Impac Unit(s) for Lodgian Common Stock. The gain realized by an
Impac unitholder will equal the excess, if any, of the sum of the amount of cash
and the fair market value of the Lodgian Common Stock received by the
unitholder, plus the Impac unitholder's allocable share of Impac indebtedness at
the time of the Merger, over such shareholder's basis in his stock of the Impac
Affiliated Company. The character of the gain recognized by an Impac unitholder
generally will be the same as that described in the Joint Proxy Statement.
<PAGE> 21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Certificate of Incorporation provides, and its
Restated Certificate of Incorporation (the "Certificate") will provide, that the
Registrant shall indemnify to the fullest extent authorized by the Delaware
General Corporation Law (the "DGCL"), each person who is involved in any
litigation or other proceeding because such person is or was a director or
officer of the Registrant, against all expense, loss or liability reasonably
incurred or suffered in connection therewith. The Registrant's Bylaws provide,
and its Restated Bylaws will provide, that a director or officer may be paid
expenses incurred in defending any proceeding in advance of its final
disposition upon receipt by the Registrant of an undertaking, by or on behalf of
the director or officer, to repay all amounts so advanced if it is ultimately
determined that such director or officer is not entitled to indemnification.
Section 145 of the DGCL permits a corporation to indemnify any director
or officer of the corporation against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with any action, suit or proceeding brought by reason of the fact
that such person is or was a director or officer of the corporation, if such
person acted in good faith and in a manner that he reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, if he had no reason to believe his conduct
was unlawful. In a derivative action, (i.e., one brought by or on behalf of the
corporation), indemnification may be made only for expenses, actually and
reasonably incurred by any director or officer in connection with the defense or
settlement of such an action or suit, if such person acted in good faith and in
a manner that he reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be made if
such person shall have been adjudged to be liable to the corporation, unless and
only to the extent that the court in which the action or suit was brought shall
determine that the defendant is fairly and reasonably entitled to indemnity for
such expenses despite such adjudication of liability.
Pursuant to Section 102(b)(7) of the DGCL, the Certificate will
eliminate the liability of a director to the Registrant or its stockholders for
monetary damages for such breach of fiduciary duty as a director, except for
liabilities arising (a) from any breach of the director's duty of loyalty to the
corporation or its stockholders, (b) from acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (c) under
Section 174 of the DGCL, or (d) from any transaction from which the director
derived an improper personal benefit.
The Registrant has obtained primary and excess insurance policies
insuring the directors and officers of the Registrant and its subsidiaries
against certain liabilities they may incur in their capacity as directors and
officers. Under such policies, the insurer, on behalf of the Registrant, may
also pay amounts for which the Registrant has granted indemnification to the
directors or officers.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS
The following exhibits either are filed herewith or incorporated by
reference to documents previously filed or will be filed by amendment, as
indicated below:
EXHIBIT DESCRIPTION
2.1 Amended and Restated Agreement and Plan of Merger, dated as of
July 22, 1998, by and among the Registrant, Servico, Inc.,
Impac Hotel Group, L.L.C., SHG-S, Sub, Inc., SHG-I Sub,
L.L.C., P-Burg Lodging Associates, Inc., SHG-II Sub, Inc.,
Hazard Lodging Associates, Inc., SHG-III Sub, Inc., Memphis
Lodging Associates, Inc., SHG-IV Sub, Inc., Delk Lodging
Associates, Inc., SHG-V Sub, Inc., SHG-VI Sub, Inc., Impac
Design and Construction, Inc., SHG-VII Sub, Inc., Impac Hotel
Group, Inc. and SHG-VIII Sub, Inc.*
2.2 Amendment to Amended and Restated Agreement and Plan of
Merger, dated as of September 16, 1998, by and among the
Registrant, Servico, Inc., Impac Hotel Group, L.L.C., SHG-S,
Sub, Inc., SHG-I Sub, L.L.C., P-Burg Lodging Associates, Inc.,
SHG-II Sub, Inc., Hazard Lodging Associates, Inc., SHG-III
Sub, Inc., Memphis Lodging Associates, Inc., SHG-IV Sub, Inc.,
Delk Lodging Associates, Inc., SHG-V Sub, Inc., SHG-VI Sub,
Inc., Impac Design and Construction, Inc., SHG-VII Sub, Inc.,
Impac Hotel Group, Inc. and SHG-VIII Sub, Inc. (included as
Appendix A).
3.1 Restated Certificate of Incorporation of the Registrant.*
3.2 Restated Bylaws of the Registrant.*
II-1
<PAGE> 22
5 Opinion of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
regarding the validity of the shares of Lodgian Common Stock being
offered.*
8.1 Opinion of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
regarding certain federal income tax matters.*
8.2 Opinion of Powell, Goldstein, Frazer & Murphy, LLP regarding certain
federal income tax matters.
8.3 Opinion of Powell, Goldstein, Frazer & Murphy, LLP regarding certain
federal income tax matters.
8.4 Opinion of Lehman Brothers.*
8.5 Opinion of Allen & Company.*
10.1 Indenture, dated as of June 17, 1998, between Servico, Inc., the
Registrant and Wilmington Trust Company, as Trustee.*
10.2 First Supplemental Indenture, dated as of June 17, 1998, between
Servico, Inc., the Registrant and Wilmington Trust Company, as
Trustee.*
10.3 Guarantee Agreement, dated as of June 17, 1998, between Servico,
Inc., the Registrant and Wilmington Trust Company, as Guarantee
Trustee.*
10.4 Registration Rights Agreement, dated June 17, 1998, among Lodgian
Capital Trust I, Servico, Inc. and NationsBanc Montgomery Securities,
LLC.*
10.5 Amended and Restated Declaration of Trust of Lodgian Capital Trust I,
dated as of June 17, 1998, between Servico, Inc., as Sponsor, David A.
Buddemeyer, Charles M. Diaz and Phillip Hale, as Regular Trustees, and
Wilmington Trust Company, as Delaware Trustee.*
10.6 Form of Lodgian 1998 Short-Term Incentive Compensation Plan.*
10.7 Form of Lodgian 1998 Stock Incentive Plan.*
10.8 Form of Lodgian Non-Employee Directors' Stock Plan.*
10.9 Form of Employment Agreement between the Registrant and Robert S.
Cole.*
10.10 Form of Registration Rights Agreement between the Registrant and
certain unitholders of Impac Hotel Group, L.L.C.*
21 Subsidiaries of the Registrant.*
23.1 Consent of Lehman Brothers.*
23.2 Consent of Allen & Company.*
23.3 Consent of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.*
23.4 Consent of Powell, Goldstein, Frazer & Murphy, LLP.*
23.5 Consent of Ernst & Young, L.L.P.*
23.6 Consent of PricewaterhouseCoopers, LLP.*
27 Financial Data Schedule.*
99.1 Form of Servico, Inc. Common Stock Vote Revocation Card.
99.2 Form of Revocation of Written Consent for unitholders of Impac Hotel
Group, L.L.C.
99.3 Consent of Peter R. Tyson, as a person named as about to become a
director.*
99.4 Consent of Joseph C. Calabro, as a person named as about to become a
director.*
99.5 Consent of Michael Leven, as a person named as about to become a
director.*
II-2
<PAGE> 23
99.6 Consent of John Lang, as a person named as about to become a director.*
99.7 Consent of Richard H. Weiner, as a person named as about to become a
director.*
99.8 Consent of Robert S. Cole, as a person named as about to become a
director.*
- --------------------
* Previously Filed
(b) FINANCIAL STATEMENT SCHEDULES.
Schedules are omitted because they are either not required, are not
applicable or because equivalent information has been included in the financial
statements, the notes thereto or elsewhere herein.
(c) REPORTS, OPINIONS AND APPRAISALS.
Omitted because they are included as appendices to the Prospectus/Proxy
Statement/Solicitation of Written Consent which is a part of this Registration
Statement.
ITEM 22. 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 (the "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;
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.
(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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, 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, whether 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) The undersigned Registrant hereby undertakes as follows: that prior
to any public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this Registration Statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other Items of the applicable form.
(d) The Registrant hereby undertakes that every prospectus (i) that is
filed pursuant to paragraph (c) immediately preceding or (ii) that purports to
meet the requirements of Section 10(a)(3) of the Act and is used in connection
with an offering of securities subject to Rule 415, will be filed as a part of
an amendment to the Registration Statement and will not be used until such
amendment is effective, and that, for purposes 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.
(e) Insofar as indemnification for liability arising under the
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the
II-3
<PAGE> 24
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.
(f) The undersigned Registrant hereby undertakes to respond to requests
for information that is incorporated by reference into the prospectus pursuant
to Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the Registration Statement through the
date of responding to the request.
(g) The undersigned Registrant hereby undertakes to supply by means of
a post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
II-4
<PAGE> 25
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Lodgian,
Inc. certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-4 and has duly caused this Amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of West Palm Beach, State of Florida, on the 13th day of November, 1998.
LODGIAN, INC.
By:/s/ Karyn Marasco
-------------------------------------
Karyn Marasco
President and Chief Executive Officer
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/ Karyn Marasco President and Chief Executive Officer and November 13, 1998
- ---------------------------------- Director
Karyn Marasco
/s/ Warren M. Knight Vice President Finance (Principal Financial November 13, 1998
- ---------------------------------- and Accounting Officer)
Warren M. Knight
/s/ Joseph C. Calabro Director November 13, 1998
- ----------------------------------
Joseph C. Calabro
</TABLE>
II-5
<PAGE> 1
EXHIBIT 8.2
<TABLE>
<CAPTION>
November __, 1998
<S> <C>
The Board of Directors The Board of Directors
of Lodgian, Inc. of P-Burg Lodging Associates, Inc.
1601 Belvedere Road Two Live Oak Center
West Palm Beach, Florida 33406 3445 Peachtree Road, N.E., Suite 700
Atlanta, Georgia 30326
The Board of Directors The Board of Directors
of Hazard Lodging Associates, Inc. of Memphis Lodging Associates, Inc.
Two Live Oak Center Two Live Oak Center
3445 Peachtree Road, N.E., Suite 700 3445 Peachtree Road, N.E., Suite 700
Atlanta, Georgia 30326 Atlanta, Georgia 30326
The Board of Directors The Board of Directors
of Delk Lodging Associates, Inc. of Impac Hotel Development, Inc.
Two Live Oak Center Two Live Oak Center
3445 Peachtree Road, N.E., Suite 700 3445 Peachtree Road, N.E., Suite 700
Atlanta, Georgia 30326 Atlanta, Georgia 30326
The Board of Directors The Board of Directors
of Impac Design and Construction, Inc. of Impac Hotel Group, Inc.
Two Live Oak Center Two Live Oak Center
3445 Peachtree Road, N.E., Suite 700 3445 Peachtree Road, N.E., Suite 700
Atlanta, Georgia 30326 Atlanta, Georgia 30326
</TABLE>
Re: Merger of Lodgian Affiliated Subsidiaries with and into Impac
Affiliated Companies.
Ladies and Gentlemen:
You have requested our opinion as to the tax consequences under the
Internal Revenue Code of 1986, as amended (the "Code") of the mergers
(individually, a "Merger" and collectively, the "Mergers") of SHG-II SUB, INC.,
SHG-III SUB, INC., SHG-IV SUB, INC., SHG-V SUB, INC., SHG-VI SUB, INC., SHG-VII
SUB, INC., and SHG-VIII SUB, INC. (collectively, the "Lodgian Affiliated
Subsidiaries"), all the stock of each of which is owned directly by Lodgian,
Inc. ("Lodgian"), with and into P-Burg Lodging Associates, Inc., Hazard Lodging
Associates, Inc., Memphis Lodging Associates, Inc., Delk Lodging Associates,
Inc., Impac Hotel Development, Inc., Impac Design and Construction, Inc., and
Impac Hotel Group, Inc. (individually, an "Impac Affiliated Company" and
collectively, the "Impac Affiliated Companies"), respectively, with each
<PAGE> 2
of the Impac Affiliated Companies as the entities surviving each of the Mergers,
in accordance with the terms of that certain Amendment to the Amended and
Restated Agreement and Plan of Merger, dated as of September 16, 1998, and that
certain Amended and Restated Agreement and Plan of Merger, dated as of July 22,
1998, by and among Servico, Inc., Impac Hotel Group, L.L.C., Lodgian, the Impac
Affiliated Companies, and the Lodgian Affiliated Subsidiaries (collectively, the
"Merger Agreement") copies of which are incorporated herein by reference.
Specifically, you have requested us to opine that the Mergers of the Lodgian
Affiliated Subsidiaries and the Impac Affiliated Companies will be disregarded
for federal income tax purposes and that the shareholders of the Impac
Affiliated Companies will be deemed to have transferred their Impac Affiliated
Companies stock for Lodgian Common Stock and cash in a transaction that
qualifies as a transfer to a controlled corporation within the meaning of
Section 351 of the Code.
In rendering the opinions expressed below, we have examined the
following documents (the "Documents"):
(a) The Merger Agreement;
(b) The certificates containing the Statements of Facts and
Representations of Lodgian and Servico, and of the Impac
Affiliated Companies (the "Tax Representations") attached
hereto as Exhibits A, B, C, D, E, F, G, and H respectively,
and incorporated herein by reference; and,
(c) Such other documents and records as we have deemed necessary
in order to enable us to render the opinions expressed below.
Terms not otherwise defined in this opinion letter have the meaning
given those terms in the Documents.
In rendering the opinions expressed below, we have assumed, without any
independent investigation or verification of any kind, that all of the
information as to factual matters contained in the Documents is true, correct,
and complete. Any inaccuracy with respect to factual matters contained in the
Documents or incompleteness in our understanding of the facts could alter the
conclusion reached in this opinion.
In addition, for purposes of rendering the opinions expressed below, we
have assumed with your permission, that (i) all signatures on all Documents
reviewed by us are genuine, (ii) all Documents submitted to us as originals are
true and correct, (iii) all Documents submitted to us as copies are true and
correct copies of the originals thereof, (iv) each natural person signing any
Document reviewed by us had the legal capacity to do so, and (v) that the
Mergers will be effected in accordance with the terms set forth in the
documents.
In addition, you have not asked us to opine with respect to any tax
considerations under foreign, state, or local laws, or the tax considerations to
certain holders of Impac Affiliated
<PAGE> 3
Companies shares in light of their particular circumstances, specifically,
shareholders who are not United States persons, dealers in securities,
tax-exempt entities, and other shareholders who acquired their interests in any
of the Impac Affiliated Companies pursuant to the exercise of options or
otherwise as compensation. Also, this opinion does not address any tax
considerations associated with the receipt of Lodgian Common Stock by holders of
Impac Affiliated Companies options or warrants in exchange for such options or
warrants.
OPINION
Based upon and subject to the foregoing, it is our opinion that the
Mergers will be disregarded for federal income tax purposes and will be treated
as if the shareholders of Impac Affiliated Companies stock exchanged their stock
directly for Lodgian Common Stock and cash pursuant to the terms of the Merger
Agreement, and that the Mergers, along with the Servico Merger and the Impac
Merger, as set forth in the Merger Agreement, will be considered integral steps
that are part of an overall plan and, as such, the exchange of Impac Affiliated
Companies stock by the holders of that stock for Lodgian Common Stock and cash
will be considered to be a transfer to a controlled corporation within the
meaning of Section 351 of the Code. Accordingly, it is our opinion that:
a. No income, gain, or loss is recognized for federal income tax
purposes by Lodgian, the Lodgian Affiliated Subsidiaries, or
the Impac Affiliated Companies as a result of the Mergers.
Code Sections 361(a) and 1032(a).
No gain or loss is recognized for federal income tax purposes
by a shareholder of an Impac Affiliated Company stock upon the
transfer of such stock for shares of Lodgian Common Stock,
except that gain realized on the transfer (if any), but not
loss, will be recognized by the shareholder but not in excess
of the cash received by the shareholder. Code Section 351(a)
and (b). The amount of gain (if any) realized by a shareholder
of an Impac Affiliated Company stock will be equal to the
excess, if any, of the sum of the fair market value of the
Lodgian Common Stock and the cash received in the Merger over
such shareholder's basis in the Impac Affiliated Company
stock.
c. The basis of the Lodgian Common Stock received in a Merger by
a shareholder of an Impac Affiliated Company stock equals that
shareholder's basis in his Impac Affiliated Company stock
exchanged in the Merger increased by the amount of gain
recognized under paragraph b. and decreased by the amount of
cash received by that shareholder in the Merger. Code Section
358(a).
<PAGE> 4
d. The holding period of the Lodgian Common Stock received in a
Merger by an Impac Affiliated Company shareholder includes the
holding period of such shareholder's Impac Affiliated Company
stock transferred to Lodgian in the Merger, provided the stock
was held as a capital asset by the Impac Affiliated Company
shareholder on the date of the Merger. Code Section 1223(1).
e. The character of any gain recognized, as set forth in
paragraph b. above, by an Impac Affiliated Company shareholder
will be capital gain, assuming that the shareholder holds his
Impac Affiliated Company stock as a capital asset. Code
Section 1221.
* * * * *
Our opinions are based upon the facts as they exist today, the existing
provisions of the Code, Treasury Regulations issued or proposed thereunder,
published Revenue Rulings and releases of the Internal Revenue Service, and
existing federal case law, any of which could be changed at any time. Any such
change may be retroactive in application and could modify or render one or more
of the legal opinions expressed herein null and void.
This opinion letter is being furnished only to the parties to which it
is addressed and is solely for their benefit. No other person shall be entitled
to rely on the opinions without our prior express written consent. This opinion
letter may not be used, circulated, quoted, published, or otherwise referred to
for any purpose without our prior express written consent. Our opinions are
limited to the matters stated herein, and no opinion is implied or may be
inferred beyond the opinions expressly stated herein.
We hereby consent to the filing of this opinion as an exhibit to the
Post-Effective Amendment No. 1 to the Registration Statement on Form S-4 of
Lodgian, Inc. (Regis. No. 333- 59315) and to the reference to our firm in the
aforementioned Registration Statement. In giving such consent, we do not thereby
admit that we are acting within the category of persons whose consent is
required under Section 7 of the Securities Act and the rules and regulations of
the Securities and Exchange Commission thereunder.
Very truly yours,
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
<PAGE> 1
EXHIBIT 8.3
November __, 1998
The Board of Directors The Manager of Impac Hotel Group, L.L.C.
of Lodgian, Inc. Two Live Oak Center
1601 Belvedere Road 3445 Peachtree Road, N.E., Suite 700
West Palm Beach, Florida 33406 Atlanta, Georgia 30326
Re: Merger of SHG-I SUB, L.L.C. with and into Impac Hotel Group, L.L.C.
Ladies and Gentlemen:
You have requested our opinion as to the tax consequences under the
Internal Revenue Code of 1986, as amended (the "Code") of the merger of SHG-I
SUB, L.L.C. ("Subsidiary"), a Georgia limited liability company, all of the
interests in which are owned directly by Lodgian, Inc. ("Lodgian"), with and
into Impac Hotel Group, L.L.C. ("Impac"), with Impac as the entity surviving the
merger (the "Impac Merger"), in accordance with the terms of that certain
Amendment to the Amended and Restated Agreement and Plan of Merger, dated as of
September 16, 1998, and that certain Amended and Restated Agreement and Plan of
Merger, dated as of July 22, 1998, by and among Lodgian, Impac, and the
Subsidiary, among others, (collectively, the "Merger Agreement") copies of which
are incorporated herein by reference. Specifically, you have requested us to
opine that the Impac Merger will be disregarded for federal income tax purposes
and that the holders of Impac units transferred those units for stock and cash
in a transaction that qualifies as a transfer to a controlled corporation within
the meaning of Section 351 of the Code.
In rendering the opinions expressed below, we have examined the
following documents (the "Documents"):
(a) The Merger Agreement;
(b) The certificates containing the Statements of Facts and
Representations of Lodgian and Subsidiary, and of Impac (the
"Tax Representations") attached hereto as Exhibits A and B,
respectively, and incorporated herein by reference; and,
(c) Such other documents and records as we have deemed necessary
in order to enable us to render the opinions expressed below.
Terms not otherwise defined in this opinion letter have the meaning
given those terms in the Documents.
In rendering the opinions expressed below, we have assumed, without any
independent
<PAGE> 2
investigation or verification of any kind, that all of the information as to
factual matters contained in the Documents is true, correct, and complete. Any
inaccuracy with respect to factual matters contained in the Documents or
incompleteness in our understanding of the facts could alter the conclusion
reached in this opinion.
In addition, for purposes of rendering the opinions expressed below, we
have assumed with your permission, that (i) all signatures on all Documents
reviewed by us are genuine, (ii) all Documents submitted to us as originals are
true and correct, (iii) all Documents submitted to us as copies are true and
correct copies of the originals thereof, (iv) each natural person signing any
Document reviewed by us had the legal capacity to do so, and (v) that the Impac
Merger will be effected in accordance with the terms set forth in the documents.
In addition, you have not asked us to opine with respect to any tax
considerations under foreign, state, or local laws, or the tax considerations to
certain holders Impac units in light of their particular circumstances,
specifically, unitholders who are not United States persons, dealers in
securities, tax-exempt entities, and other unitholders who acquired their
interests in Impac pursuant to the exercise of options or otherwise as
compensation. Also, this opinion does not address any tax considerations
associated with the receipt of Lodgian Common Stock by holders of Impac options
or warrants in exchange for such options or warrants.
OPINION
Based upon and subject to the foregoing, it is our opinion that the
Impac Merger will be disregarded for federal income tax purposes and will be
treated as if the holders of Impac units exchanged those units directly for
Lodgian Common Stock and cash pursuant to the terms of the Merger Agreement, and
that the Impac Merger, along with the Servico Merger, the P-Burg Merger, the
Hazard Merger, the Memphis Merger, the Delk Merger, the IHD Merger, the IDC
Merger, and the IHG Merger, as set forth in the Merger Agreement, will be
considered integral steps that are part of an overall plan and, as such, the
exchange of Impac units by the holders of those units for Lodgian Common Stock
and cash will be considered to be a transfer to a controlled corporation within
the meaning of Section 351 of the Code. Accordingly, it is our opinion that:
a. No income, gain, or loss is recognized for federal income tax
purposes by Lodgian, Subsidiary, or Impac as a result of the
Impac Merger. Code Sections 361(a) and 1032(a).
Except as set forth in paragraph e. below, no gain or loss is
recognized for federal income tax purposes by a holder of
Impac units upon the transfer of the units for shares of
Lodgian Common Stock, except that gain realized on the
transfer (if any), but not loss, will be recognized by the
unitholder but not in excess of the cash received by the
unitholder. Code Section 351(a) and (b). The amount of gain
(if any) realized
<PAGE> 3
by a holder of Impac units will be equal to the excess, if
any, of the sum of the fair market value of the Lodgian Common
Stock and the cash received in the Impac Merger over such
holder's basis in the Impac units. The gain realized by a
holder of Impac units upon the transfer of such units will not
include the gain, if any, recognized in paragraph e. below due
to liabilities assumed in excess of basis.
c. The basis of the Lodgian Common Stock received by a holder of
Impac units as a result of the Impac Merger equals that
shareholder's basis in the Impac units exchanged in the Impac
Merger increased by the amount of gain recognized under
paragraph b. and e. and decreased by the sum of the amount of
cash received in the Impac Merger and the unitholder's
allocable share of Impac indebtedness as of the time of the
Impac Merger. Code Section 358(a) and (d).
d. The holding period of the Lodgian Common Stock received in the
Impac Merger by a holder of Impac units includes the holding
period of the units deemed transferred to Lodgian in the Impac
Merger, provided the units were held as a capital asset on the
date of the Impac Merger. Code Section 1223(1).
e. In addition to any gain recognized under paragraph b. above, a
holder of Impac units will recognize gain to the extent that
the unitholder's allocable share of Impac indebtedness as of
the time of the Impac Merger exceeds such unitholder's
adjusted basis in his Impac units at such time. Code Sections
357(c) and 752(d).
f. The character of any gain recognized, as set forth in
paragraphs b. and e. above, by a holder of Impac units will be
capital gain, assuming that the unitholder holds his Impac
units as a capital asset, except to the extent that the gain
is attributable to Impac's unrealized receivables as defined
in Code Section 751(c), including any depreciation recapture
gain Impac would be required to recognize if Impac had sold
its properties at their fair market values and Impac's
inventory items as defined in Code Section 751(d). Code
Section 741 and 751(c).
* * * * *
Our opinions are based upon the facts as they exist today, the existing
provisions of the Code, Treasury Regulations issued or proposed thereunder,
published Revenue Rulings and releases of the Internal Revenue Service, and
existing federal case law, any of which could be changed at any time. Any such
change may be retroactive in application and could modify or render one or more
of the legal opinions expressed herein null and void.
This opinion letter is being furnished only to the parties to which it
is addressed and is solely for their benefit. No other person shall be entitled
to rely on the opinions without our prior express
<PAGE> 4
written consent. This opinion letter may not be used, circulated, quoted,
published, or otherwise referred to for any purpose without our prior express
written consent. Our opinions are limited to the matters stated herein, and no
opinion is implied or may be inferred beyond the opinions expressly stated
herein.
We hereby consent to the filing of this opinion as an exhibit to the
Post-Effective Amendment No. 1 to the Registration Statement on Form S-4 of
Lodgian, Inc. (Regis. No. 333- 59315) and to the reference to our firm in the
aforementioned Registration Statement. In giving such consent, we do not thereby
admit that we are acting within the category of persons whose consent is
required under Section 7 of the Securities Act and the rules and regulations of
the Securities and Exchange Commission thereunder.
Very truly yours,
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
<PAGE> 1
Exhibit 99.1
VOTE REVOCATION
SERVICO, INC.
ANNUAL MEETING OF SHAREHOLDERS - SEPTEMBER 18, 1998
By executing this Vote Revocation, the undersigned shareholder of
Servico, Inc. ("Servico") certifies to Servico that with respect to the vote
taken at the Annual Meeting of Shareholders of Servico held on September 18,
1998 (the "Annual Meeting") on the proposal for the "Approval of the Amended and
Restated Agreement and Plan of Merger pursuant to which Servico, Inc. and Impac
Hotel Group, L.L.C. will become wholly owned subsidiaries of Lodgian, Inc.":
<TABLE>
<CAPTION>
<S> <C> <C>
1. [ ] I did not vote on the proposal at the OR [ ] I voted on the proposal at the Annual
Annual Meeting. Meeting as follows:
[ ] FOR
[ ] AGAINST
[ ] ABSTAIN
2. [ ] I now wish to change my vote on the proposal as follows:
[ ] FOR
[ ] AGAINST
[ ] ABSTAIN
DO NOT SUBMIT THIS VOTE REVOCATION UNLESS YOU WISH TO CHANGE YOUR VOTE.
YOU MAY CHANGE YOUR VOTE ONLY WITH RESPECT TO THE FOREGOING PROPOSAL. CHANGING YOUR VOTE ON THAT PROPOSAL WILL HAVE NO EFFECT ON
THE APPROVAL OF THE OTHER MATTERS CONSIDERED AT THE ANNUAL MEETING.
The undersigned acknowledges receipt of the accompanying Supplement
to Joint Proxy Statement/Prospectus dated November____, 1998.
Dated: ____________________________________, 1998
Signature of Shareholder(s)
Print Name(s)Here
(Please sign exactly as name or names appear hereon. Full title of
one signing in representative capacity should be clearly designated
after signature. Names of all joint holders should be written even
if signed by only one.)
PLEASE COMPLETE, DATE, SIGN AND MAIL THIS VOTE REVOCATION IN THE ENVELOPE PROVIDED
</TABLE>
<PAGE> 1
Exhibit 99.2
CONSENT REVOCATION
IMPAC HOTEL GROUP, L.L.C.
<TABLE>
<S> <C>
By executing this Consent Revocation, the undersigned unitholder of Impac Hotel Group, L.L.C. ("Impac") hereby (i)
certifies to Impac that the undersigned delivered to Impac a duly executed consent card by which the undersigned consented to and
voted "FOR" the adoption of the proposal set forth below and (ii) revokes the undersigned's consent with respect to the proposal
set forth below, to the same extent and with the same power and effect as if the undersigned had withheld consent and voted
"AGAINST" such proposal.
1. Approval of the Amended and Restated Agreement and Plan of Merger pursuant to which Servico, Inc. and Impac Hotel
Group, L.L.C. will become wholly owned subsidiaries of Lodgian, Inc.
DO NOT COMPLETE THIS CONSENT REVOCATION UNLESS YOU VOTED "FOR" THE FOREGOING PROPOSAL AND NOW WISH TO REVOKE YOUR CONSENT AND
CHANGE YOUR VOTE TO A VOTE "AGAINST" THAT PROPOSAL!
YOU MAY REVOKE YOUR CONSENT AND CHANGE YOUR VOTE ONLY WITH RESPECT TO THE FOREGOING PROPOSAL. CHANGING YOUR VOTE ON THAT PROPOSAL
WILL HAVE NO EFFECT ON THE APPROVAL OF THE OTHER MATTERS FOR WHICH YOUR CONSENT WAS SOLICITED.
The undersigned acknowledges receipt of the accompanying Supplement
to Joint Proxy Statement/Prospectus dated November__, 1998.
Dated: , 1998
------------------------------------
-------------------------------------------------------------------
Signature of Unitholder(s)
-------------------------------------------------------------------
Print Name(s)Here
(Please sign exactly as name or names appear hereon. Full title of
one signing in representative capacity should be clearly designated
after signature. Names of all joint holders should be written even
if signed by only one.)
PLEASE COMPLETE, DATE, SIGN AND MAIL THIS CONSENT REVOCATION IN THE ENVELOPE PROVIDED
</TABLE>
