SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
- --------------------------------------------------------------------------------
LODGIAN, INC.
(Exact name of registrant as specified in its charter)
- --------------------------------------------------------------------------------
DELAWARE 52-2093696
(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification No.)
- --------------------------------------------------------------------------------
3445 PEACHTREE ROAD, N.E. SUITE 700
ATLANTA, GEORGIA 30326
(Address of Principal Executive Offices) (Zip Code)
- --------------------------------------------------------------------------------
LODGIAN 1998 SHORT-TERM INCENTIVE COMPENSATION PLAN
AND
LODGIAN 1998 STOCK INCENTIVE PLAN
AND
LODGIAN NON-EMPLOYEE DIRECTORS' STOCK PLAN
(Full title of the plans)
- --------------------------------------------------------------------------------
ROBERT S. COLE
CHIEF EXECUTIVE OFFICER
LODGIAN, INC.
3445 PEACHTREE ROAD, N.E. SUITE 700
ATLANTA, GEORGIA 30326
(404) 364-9400
(Name, address and telephone number, including area code, of agent for service)
With a Copy To:
DENNIS J. BLOCK, ESQ.
CADWALADER, WICKERSHAM & TAFT
100 MAIDEN LANE
NEW YORK, NEW YORK 10038
(212) 504-6000
- --------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of Amount to be offering price aggregate Amount of
securities registered (1) per share (2) offering price registration fee
to be registered (2) (2)
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 4,005,000 shares $ 4.9375 $ 19,774,687.50 $ 5,932.41
value $0.01 per
share
- ---------------------------------------------------------------------------------------------
</TABLE>
Notes:
(1) Represents shares authorized for issuance under the Lodgian 1998 Short-Term
Incentive Compensation Plan (1,000,000 shares), the Lodgian 1998 Stock
Incentive Plan (3,000,000 shares) and the Lodgian Non-Employee Directors'
Stock Plan (5,000 shares).
(2) Estimated solely for purposes of calculating the registration fee, in
accordance with Rules 457(h) and 457(c), based on fluctuating market prices
of securities of the same class by computing the average of the high and
low prices reported by the New York Stock Exchange for Lodgian, Inc. Common
Stock as of market close on Friday, January 15, 1999.
<PAGE>
PART I
ITEM 1. PLAN INFORMATION.
The documents containing the information specified in this Item will be
sent or given to employees who are eligible for awards under the Lodgian 1998
Short-Term Incentive Compensation Plan (the "Short-Term Plan), the Lodgian 1998
Stock Incentive Plan (the "Stock Plan") and the Lodgian Non-Employee Directors'
Stock Plan (the "Non-Employee Plan," and together with the Short-Term Plan and
the Stock Plan, the "Plans") of Lodgian, Inc., a Delaware corporation (the
"Registrant"), and are not being filed with, or included in, this Registration
Statement on Form S-8 (the "Registration Statement") in accordance with the
rules and regulations of the Securities and Exchange Commission (the
"Commission"). These documents and the documents incorporated by reference in
the Registration Statement pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Upon written or oral request, the Registrant shall furnish, without
charge, the documents incorporated by reference to Item 3 of Part II of this
Registration Statement. These documents are incorporated by reference in the
Section 10(a) Prospectus. Upon written or oral request, the Registrant shall
also furnish, without charge, other documents required to be delivered to
employees pursuant to Rule 428(b) of the Securities Act of 1933, as amended (the
"Securities Act"). Requests should be directed to Lodgian, Inc. 3445 Peachtree
Road, N.E., Suite 700, Atlanta, Georgia 30326, Attention: Chief Financial
Officer (tel. (404) 364-9400).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by the Registrant with the
Commission are hereby incorporated by reference into this Registration
Statement:
(a) The description of the Registrant's Common Stock set forth in
the Registrant's Registration Statement on Form S-4, filed July 17, 1998
(SEC file number 333-59315), which in turn is incorporated by reference in
the Registrant's Form 8-A, filed September 30, 1998 (SEC file number
001-14537) pursuant to Section 12 of the Securities Exchange Act of 1934
(the "Exchange Act"), together with all amendments and reports filed with
the Commission for the purposes of updating that description; and
(b) All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15 of the Exchange Act prior to the filing of
a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of the filing
of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference into this Registration Statement will be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in this Registration Statement or any other
subsequently filed document which also is or is deemed to be incorporated by
reference into this Registration Statement modifies or supersedes that
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
A description of the shares of Common Stock, par value $0.01 per share, is
contained in the Registrant's Registration Statement on Form S-4, SEC File No.
333-59315, as amended, under the caption of "Description of Lodgian Capital
Stock." Such information is incorporated herein by reference to such section of
the Registration Statement on Form S-4.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Restated Certificate of Incorporation and Restated Bylaws
provide for the indemnification of, and advancement of expenses to, the
directors, officers, employees, and agents of the Registrant to the fullest
extent permitted by Delaware law from time to time and the Bylaws provide for
various procedures relating thereto. Under Delaware law, directors, officers,
employees and agents of the Registrant may be indemnified against amounts paid
in judgments, settlements, penalties, fines and expenses actually and reasonably
incurred with respect to proceedings (other than an action by or in the right of
the Registrant, such, a "derivative action") if they acted in good faith and in
a manner reasonably believed to be in, or not opposed to, the best interests of
the Registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard of
care is applied in the case of a derivative action, except that indemnification
only extends to expenses (including attorney's fees) incurred in connection with
the defense or settlement of such an action. However, court approval is required
before there can be any indemnification of expenses where the person seeking
indemnification has been found liable to the Registrant.
Under Delaware law, expenses incurred by an officer or director in
defending a civil or criminal proceeding shall be paid by the Registrant upon
receipt of an undertaking by or on behalf of such director or officer to repay
such amount if it shall be determined that the officer or director is not
entitled to indemnification.
Indemnification and advancement of expenses continues as to a person who
has ceased to be a director, officer, employee, or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
The Registrant may purchase and maintain an insurance policy insuring its
directors, officers, employees and agents against any liability for certain acts
and omissions while acting in their official capacity.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
<PAGE>
ITEM 8. EXHIBITS.
EXHIBIT
NO. IDENTIFICATION
4.1 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Appendix G of the Registrant's
Registration Statement on Form S-4, filed July 17, 1998, as
amended).
4.2 Restated Bylaws of the Registrant (incorporated by reference to
Appendix H of the Registrant's Registration Statement on Form
S-4, filed July 17, 1998, as amended).
5.1 Opinion of Cadwalader, Wickersham & Taft.
10.1 The Lodgian 1998 Short-Term Incentive Compensation Plan
(incorporated by reference to Appendix D of the Registrant's
Registration Statement on Form S-4, filed July 17, 1998, as
amended).
10.2 The Lodgian 1998 Stock Incentive Plan (incorporated by reference
to Appendix E of the Registrant's Registration Statement on Form
S-4, filed July 17, 1998, as amended).
10.3 The Lodgian Non-Employee Directors' Stock Plan (incorporated by
reference to Appendix F of the Registrant's Registration
Statement on Form S-4, filed July 17, 1998, as amended).
23.1 Consent of Cadwalader, Wickersham & Taft (included in its opinion
filed as Exhibit 5.1 to this Registration Statement).
23.2 Consent of Ernst & Young LLP.
23.3 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney (included as part of the signature page of this
registration statement).
ITEM 9. UNDERTAKINGS.
The Registrant hereby undertakes:
(a) (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.
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration Statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at the 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) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to any provision or arrangement whereby the
Registrant may indemnify a director, officer or controlling person of the
Registrant against liabilities arising under the Securities Act, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authored, in the City of Atlanta, State of Georgia, on
January 21, 1999
LODGIAN, INC.
By: /s/ Robert S. Cole
-------------------
Name: Robert S. Cole
Title: Chief Executive Officer
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Robert S. Cole his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all
amendments, including post-effective amendments, to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that the said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Robert S. Cole
______________________________ Chief Executive Officer and 1/21/99
Robert S. Cole Director
/s/ Karyn Marasco
______________________________ Chief Operating Officer 1/21/99
Karyn Marasco
/s/ Warren M. Knight
______________________________ Vice President Finance (Principal 1/21/99
Warren M. Knight Financial & Accounting Officer)
/s/ Joseph C. Calabro
______________________________ Director and Chairman of the 1/21/99
Joseph C. Calabro Office of the Chairman
/s/ John Lang
______________________________ Director 1/21/99
John Lang
/s/ Michael A. Leven
______________________________ Director 1/21/99
Michael A. Leven
/s/ Peter R. Tyson
______________________________ Director 1/21/99
Peter R. Tyson
/s/ Richard H. Weiner
______________________________ Director 1/21/99
Richard H. Weiner
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description Sequentially Numbered Page
- ----------- ----------- --------------------------
5.1 Opinion of Cadwalader, Wickersham & Taft. 9
23.1 Consent of Cadwalader, Wickersham & Taft
(included in its opinion filed as Exhibit
5.1 to this Registration Statement).
23.2 Consent of Ernst & Young LLP. 10
23.3 Consent of PricewaterhouseCoopers LLP. 11
<PAGE>
Exhibit 5.1
[Cadwalader, Wickersham & Taft Letterhead]
January 19, 1999
Lodgian, Inc.
3445 Peachtree Road, N.E., Suite 700
Atlanta, Georgia 30326
Re: Lodgian, Inc. Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Lodgian, Inc., a Delaware corporation
(the "Company"), in connection with the preparation and filing with the
Securities and Exchange Commission (the "Commission") of the Company's
Registration Statement on Form S-8 (the "Registration Statement"), relating to,
among other things, the offer and sale of up to an aggregate of 4,005,000 shares
(the "Shares") of its Common Stock, par value $.01 per share, issuable pursuant
to the Lodgian 1998 Short-Term Incentive Compensation Plan (the "Short-Term
Plan), the Lodgian 1998 Stock Incentive Plan (the "Stock Plan") and the Lodgian
Non-Employee Directors' Stock Plan (the "Non-Employee Plan," and together with
the Short-Term Plan and the Stock Plan, the "Plans"). The Plans have been filed
as exhibits to the Registration Statement.
In rendering the opinions set forth below, we have examined
originals, or copies certified or otherwise identified to our satisfaction, of
such documents, corporate records and other instruments as we have deemed
necessary or appropriate. Based upon the foregoing and upon such examination of
law as we have deemed necessary, we are of the opinion that (1) the Shares have
been duly authorized under the Company's Certificate of Incorporation and (2)
when issued and paid for as described in the Registration Statement, the Shares
will be validly issued, fully paid and nonassessable.
The opinions expressed herein are limited to the General Corporation
Law of the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby concede that
we are within the category of persons whose consent is required under the
Securities Act of 1933, as amended, or the Rules and Regulations of the
Commission thereunder.
Yours very truly,
/s/ Cadwalader, Wickersham & Taft
Exhibit 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Lodgian, Inc. pertaining to the Lodgian 1998 Short-term Incentive
Compensation Plan, the Lodgian 1998 Stock Incentive Plan and the Lodgian
Non-employee Directors' Stock Plan of our report dated April 20, 1998, with
respect to the balance sheet of Lodgian, Inc. as of April 17, 1998, included in
Lodgian's Amendment No. 1 to its Registration Statement on Form S-4, dated July
22, 1998.
January 19, 1999 /s/ Ernst & Young LLP
West Palm Beach, FL Ernst & Young LLP
<PAGE>
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated April 10, 1998, except for Note 9 as to which the
date is July 7, 1998, of our audit of the consolidated and combined financial
statements of Impac Hotel Group, L.L.C. and its Predecessors and Impac Hotel
Development, Inc.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Atlanta, Georgia
January 20, 1999
