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As filed with the Securities and Exchange Commission on May 8, 1996
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PRIME HOSPITALITY CORP.
(Exact name of registrant as specified in its charter)
Delaware 22-2640625
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
700 Route 46 East
Fairfield, New Jersey 07004
(Address of principal executive offices) (zip code)
PRIME HOSPITALITY CORP.
1995 EMPLOYEE STOCK OPTION PLAN
PRIME HOSPITALITY CORP. 1995
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
Joseph Bernadino
Senior Vice President, Secretary
and General Counsel
Prime Hospitality Corp.
700 Route 46 East
Fairfield, New Jersey 07004
(201) 882-1010
(Name, address and telephone number,
including area code, of agent for service)
-------------------
COPY TO:
William N. Dye, Esq.
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, NY 10022
(212) 821-8000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered(1) per share (2) price (2) fee
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$0.01 par
value per
share 1,500,000 $15.125 $22,687,500 $7,823.28
</TABLE>
- ----------
(1) This Registration Statement covers the 1,200,000 shares
authorized to be sold under the Prime Hospitality Corp. 1995
Employee Stock Option Plan and the 300,000 shares authorized
to be sold under the Prime Hospitality Corp. 1995 Non-Employee
Director Stock Option Plan (collectively, the "Plans").
(2) Estimated solely for calculating the amount of the registration
fee, pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act").
(ii)
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and Exchange
Commission (the "Commission") by Prime Hospitality Corp., a Delaware corporation
("Company"), are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995, pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
(b) The Company's Current Report on Form 8-K filed on March
21, 1996, pursuant to the Exchange Act.
(c) The description of the common stock of the Company, $0.01
par value per share (the "Common Stock") included in the Company's
Application for Registration on Form 8-A, dated June 5, 1992, as
amended by the Company's Amendments to Application or report on Form 8,
dated July 9, 1992 and December 23, 1992, respectively, pursuant to the
Exchange Act.
In addition, all documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all the securities offered hereby
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated herein by reference and to be a part hereof from
the date of the filing of such documents with the Commission.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby is being
passed upon for the Company by Willkie Farr & Gallagher. As of the date of this
Registration Statement, Jack H. Nusbaum, a partner of Willkie Farr & Gallagher,
is a non-employee director of the Company and is the beneficial owner of 40,000
shares of Common Stock. Mr. Nusbaum will participate in the Prime Hospitality
Corp. 1995 Non-Employee Director Stock Option Plan to the same degree as other
non-employee directors of the Company.
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Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL")
empowers a Delaware corporation to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. A
corporation may, in advance of the final disposition of any civil, criminal,
administrative or investigative action, suit or proceeding, pay the expenses
(including attorneys' fees) incurred by any officer, director, employee or agent
in defending such action, provided that the director or officer undertake to
repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the corporation. A corporation may indemnify such
person against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
A Delaware corporation may indemnify officers and directors in an
action by or in the right of the corporation to procure a judgment in its favor
under the same conditions, except that no indemnification is permitted without
judicial approval if the officer or director is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him or her against the expenses (including attorneys' fees) which he
or she actually and reasonably incurred in connection therewith. The
indemnification provided is not deemed to be exclusive of any other rights to
which an officer or director may be entitled under any corporation's by-law,
agreement, vote or otherwise.
In accordance with Section 145 of the DGCL, Article 8 of the Company's
Restated Certificate of Incorporation (the "Restated Certificate") and the
Company's By-Laws (the "By-Laws") provide that the Company shall indemnify to
the fullest extent permitted under and in accordance with the laws of the State
of Delaware any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative by reason of the fact that he
is or was a director, officer, employee or agent of the Company, or is or was
serving at the request of the Company as director, officer, trustee, employee or
agent of or in any other capacity with another
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corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The indemnification
provided by the Restated Certificate and the By-Laws shall not be deemed
exclusive of any other rights to which any of those seeking indemnification or
advancement of expenses may be entitled under any other contract or agreement
between the Company and any officer, director, employee or agent of the Company.
Expenses incurred in defending a civil or criminal action, suit or proceeding
shall (in the case of any action, suit or proceeding against a director of the
Company) or may (in the case of any action, suit or proceeding against an
officer, trustee, employee or agent) be paid by the Company in advance of the
final disposition of such action, suit or proceeding as authorized by the Board
of Directors of the Company upon receipt of an undertaking by or on behalf of
the indemnified person to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Company. Subparagraph (d) of
Article 8 of the Restated Certificate provides that neither the amendment or
repeal of, nor the adoption of any provision inconsistent with, the
above-referenced provisions of the Restated Certificate shall eliminate or
reduce the effect of such provisions in respect of any matter occurring before
such amendment, repeal or adoption of an inconsistent provision or in respect of
any cause of action, suit or claim relating to any such matter which would have
given rise to a right of indemnification or right to receive expenses pursuant
to such provisions if any such provision had not been so amended or repealed or
if a provision inconsistent therewith had not been so adopted. Subparagraph (e)
of Article 8 of the Restated Certificate provides that a director of the Company
shall not be personally liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL or
any amendment thereto or successor provision thereto, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
DGCL is amended to authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of a director of the
Company shall be eliminated or limited to the fullest extent permitted by the
DGCL as so amended.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable
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Item 8. EXHIBITS
Exhibit No.
4.1 Specimen certificate for shares of the Common Stock,
(incorporated by reference to the Company's Exchange Act
Registration Statement on Form 8-A, Registration No. 1-6869,
dated June 5, 1992, Exhibit 1(a)).
4.2 Copy of the Company's Certificate of Amendment of Restated
Certificate of Incorporation (incorporated by reference to the
Company's amendment to its Quarterly Report on Form 10-Q for
the quarter ended June 30, 1995, filed on Form 10-Q/A on May
1, 1996, Exhibit 3.A).
4.3 Copy of the Company's Restated By-Laws (incorporated by
reference to the Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1992, Exhibit 3(f)).
5 Opinion of Willkie Farr & Gallagher, counsel to the
Company.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Willkie Farr & Gallagher (contained in
Exhibit 5).
Item 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or
sales are being made, a post-effective amendment to the
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 the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth in
the Registration Statement;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
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provided, however, that paragraphs (a)(i) and (a)(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 Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(b) 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 that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
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.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fairfield, State of New Jersey, on the 30th day of
April, 1996.
PRIME HOSPITALITY CORP.
By: /s/ David A. Simon
------------------
David A. Simon
Chairman of the Board,
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act, 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/ David A. Simon Chairman of the Board, April 30, 1996
- ----------------------- President and Chief
David A. Simon Executive Officer
(principal executive
officer)
/s/ John M. Elwood Chief Financial Officer, April 30, 1996
- ----------------------- Executive Vice President
John M. Elwood and Director (principal
financial officer and
principal accounting officer)
/s/ Herbert Lust, II Director April 30, 1996
- ------------------------
Herbert Lust, II
/s/ Jack H. Nusbaum Director April 30, 1996
- -----------------------
Jack H. Nusbaum
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Allen J. Ostroff Director April 30, 1996
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Allen J. Ostroff
/s/ Howard M. Lorber Director April 30, 1996
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Howard M. Lorber
/s/ A.F. Petrocelli Director April 30, 1996
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A.F. Petrocelli
</TABLE>
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INDEX TO EXHIBITS
Exhibit No. Page
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5 Opinion of Willkie Farr & Gallagher,
counsel to the Company.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Willkie Farr & Gallagher
(contained in Exhibit 5).
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May 6, 1996
Prime Hospitality Corp.
700 Route 46 East
Fairfield New Jersey 07004
Re: Registration Statement on Form S-8
Dear Sirs:
We have acted as counsel for Prime Hospitality Corp., a Delaware corporation
(the "Company"), in connection with the registration pursuant to the Securities
Act of 1933, as amended (the "Act"), of 1,500,000 shares of common stock,
par value $.01 per share, of the Company (the "Common Stock") to be issued
pursuant to the terms of the Company's 1995 Employee Stock Option Plan and
1995 Non-Employee Director Stock Option Plan (collectively, the "Plans").
In connection therewith, we have participated in the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") relating to
the Common Stock to be filed with the Securities and Exchange Commission on May
7, 1996, and we are familiar with the corporate proceedings taken to date in
connection with the authorization and issuance of the Common Stock.
As counsel for the Company, we have examined, among other things, such federal
and state laws and originals and/or copies (certified or otherwise identified to
our satisfaction) of such documents, certificates and records as we deemed
necessary and appropriate for the purpose of preparing this opinion.
Based on the foregoing and assuming that the Common Stock will be issued and
sold pursuant to the terms of the Plans, we are of the opinion that the shares
of Common Stock to be sold by the Company, pursuant to the Registration
Statement have been duly authorized by all requisite corporate action and, upon
issuance, delivery and payment therefor, will be validly issued, fully paid and
nonassessable.
No person or entity other than you may rely or claim reliance upon this opinion.
This opinion is limited to the matters stated herein and no opinion is implied
or may be inferred beyond the matters expressly stated. We call to your
attention that we are not admitted to practice, do not purport to be experts in
the laws of, and, accordingly, do not express an opinion as to matters arising
under the laws
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of any jurisdiction, other than the laws of the State of
New York, the Delaware General Corporation Law and the
Federal laws of the United States.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Willkie Farr & Gallagher
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ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors and
Stockholders of Prime Hospitality Corp.
As independent public accountants, we hereby consent to the
incorporation by reference of our reports included in the Company's Form 10-k
for the year ended December 31, 1995, into this Registration Statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Roseland, New Jersey
April 26, 1996
