<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 23, 1997
REGISTRATION NO. 333-22635
- --------------------------------------------------------------------------------
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
AMENDMENT NO. 1
HUDSON HOTELS CORPORATION
(Exact name of registrant as specified in its charter)
------------------------------
<TABLE>
<S> <C> <C>
NEW YORK 16-1312167
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification No.
incorporation Classification
or organization) Code Number)
</TABLE>
E. ANTHONY WILSON, PRESIDENT
HUDSON HOTELS CORPORATION
ONE AIRPORT WAY, SUITE 200
ROCHESTER, NY 14624
(716) 436-6000
(Address, including zip code, and telephone number, including area code, of
registrant's
principal executive offices and name, address and telephone number of agent for
service)
------------------------------
Copies to:
ALAN S. LOCKWOOD, ESQ.
BOYLAN, BROWN, CODE, FOWLER,
VIGDOR & WILSON, L.L.P.
2400 CHASE SQUARE
ROCHESTER, NEW YORK 14604
(716) 232-5300
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement
--------------------------
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
--------------------------
If any of the securities being registered on this Form are to offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. /X/ 333-22635
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. /X/ 333-22635
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
TITLE OF EACH CLASS AMOUNT PROPOSED MAXIMUM MAXIMUM AMOUNT OF
OF SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE(1) PRICE FEE
<S> <C> <C> <C> <C>
Common Stock, par value $.001 per share..... 145,000 $4.50 $652,500 $197.73
Common Stock, par value $.001 per share,
representing stock issuable upon
conversion of debentures.................. 315,000(2) $4.50 $1,417,500 $429.55
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(c), on the basis of the average high and low prices of the
Registrant Common Stock as reported on the Nasdaq Small Cap issues on May 20,
1997.
(2) The number of shares of Common Stock specified above is the number which may
be acquired upon exercise of certain of the Company's warrants described in
the Prospectus forming a part of this Registration Statement (the
"Warrants"). This Registration Statement covers, pursuant to Rule 416, in
addition, such indeterminable number of shares of Common Stock as may be
issued on exercise of the Warrants by reason of adjustments in the number of
shares of Common Stock issuable pursuant to antidilution provisions
contained in the Warrants. Since such additional Common Stock will, if
issued, be issued for no additional consideration, no registration fee is
required.
--------------------------
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<PAGE>
INCORPORATION OF EARLIER REGISTRATION STATEMENT BY REFERENCE
The contents of the Company's earlier registration statement, File number
333-22635 declared effective by the Securities and Exchange Commission on March
31, 1997, are hereby incorporated in this registration statement and amendment
by reference thereto.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act after the date hereof and prior to the termination of
the offering of the shares offered hereby, shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of filing of
such documents.
The Company will provide without charge to each person, including any
beneficial owner, to whom as copy of this Prospectus is delivered, upon the
written or oral request of such person, a copy of any or all documents
incorporated herein by reference (not including the exhibits to such documents
unless such exhibits are incorporated by reference in such documents). Requests
for such copies should be directed to Taras M. Kolcio, Chief Financial Officer,
Hudson Hotels Corporation, One Airport Way, Suite 200, Rochester, NY 14624,
(716) 436-6000.
SELLING SHAREHOLDERS
This section of the Prospectus entitled Selling Shareholders is hereby
amended by adding thereto the following:
All of the additional securities being offered hereunder are being offered
by the following Selling Shareholders. These holders fall into three categories:
Gulf Atlantic Publishing, Inc. (GAP), 1801 Lee Road, Suite 301, Winter Park,
Florida 32789, is offering 15,000 shares which it received as payment for
services rendered to the Company pursuant to the Advertising Insert Agreement
between GAP and the Company dated April 7, 1997. Prior to the execution of the
Agreement, GAP had no material relationship with the Company. Following the
completion of the offering, GAP will not own any shares of the Company's stock.
Arrow Marketing, Inc., 1801 Lee Road, Suite 306, Winter Park, Florida 32789,
is offering 15,000 shares which it received as payment for services pursuant to
the Creative Development Agreement between Arrow and the Company dated April 7,
1997. Prior to execution of the Agreement, Arrow had no material relationship
with the Company. Following the completion of the offering, Arrow will not own
any shares of the Company's stock.
Corporate Relations Group, Inc. (CRG), 1801 Lee Road, Suite 301, Winter
Park, Florida 32789, is offering 115,000 shares, and 315,000 shares issuable
upon exercise of a certain Warrant, all of which shares and Warrant shares it
received as payment for services rendered to the Company pursuant to the Lead
Generation/Corporate Relations Agreement between CRG and the Company dated April
7, 1997. The Warrant is exercisable by CRG until May 1, 1998, at the exercise
price of $5.00 for the first 105,000 shares, $6.00 for the second 105,000 shares
and $7.00 for the third 105,000 shares. In addition to the shares and the
Warrant, CRG received a second warrant for an additional 210,000 shares,
exercisable through May 1, 1999. Prior to the execution of the Agreement, CRG
had no material relationship with the Company. Following the completion of the
offering, CRG will be entitled to receive the 210,000 shares issuable upon
exercise of the second warrant; CRG will not own any other shares of the
Company's stock.
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The section entitled Selling Shareholders is further amended to correct the
number of shares being offered by two shareholders, as follows:
<TABLE>
<S> <C>
Louise J. Miller Living Trust u/a dated March 7, 1986, as....... 16,369
amended in its entirety October 7, 1994, FBO Louise J. Miller
David C. and Jean B. Mitchell................................... 39,032
</TABLE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENTS SCHEDULES
(a) THE FOLLOWING EXHIBITS ARE FILED AS PART OF THIS REGISTRATION STATEMENT:
<TABLE>
<CAPTION>
EXHIBIT NUMBER
- -----------------
<C> <S>
4.3 Form of Warrant
5.1 Opinion of Boylan, Brown, Code, Fowler, Vigdor & Wilson, LLP
23.1 Independent Auditors' Consent--Bonadio & Co., LLP
23.2 Independent Auditors' Consent--Coopers & Lybrand, LLP
23.3 Consent of Boylan, Brown, Code, Fowler, Vigdor & Wilson is included in its Opinion filed as
Exhibit 5.1
</TABLE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Hudson Hotels Corporation., a corporation organized and existing under the laws
of the State of New York certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Rochester, State of New York, on the
22nd day of May, 1997.
HUDSON HOTELS CORPORATION
BY: /S/ E. ANTHONY WILSON
-----------------------------------------
E. Anthony Wilson, CHAIRMAN OF THE BOARD
PRESIDENT AND CHIEF EXECUTIVE OFFICER, AND
DIRECTOR
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints E. Anthony Wilson and Bruce A. Sahs, or either of
them, as true and lawful attorney-in-fact, with full power and authority to act
as such without the other, and with full power of substitution, for him and in
any and all capacities, to sign any amendments to this Registration Statement,
and to file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, the undersigned hereby
ratifying and confirming all that said attorney-in-fact, or his substitute or
substitutes, shall do or cause to be done by virtue hereof.
3
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- -------------------
Chairman of the Board
/s/ E. ANTHONY WILSON President and Chief
- ------------------------------ Executive May 22, 1997
E. Anthony Wilson Officer, and Director.
Executive Vice President,
/s/ BRUCE A. SAHS Chief Operating Officer
- ------------------------------ and May 22, 1997
Bruce A. Sahs Director
/s/ TARAS KOLCIO Chief Financial Officer,
- ------------------------------ Chief Accounting Officer May 22, 1997
Taras Kolcio and Controller
/s/ RALPH L. PEEK Vice President and Director
- ------------------------------ May 22, 1997
Ralph L. Peek
/s/ ROBERT FAGENSON Director
- ------------------------------
Robert Fagenson May 22, 1997
by E. Anthony Wilson
Attorney-in-Fact
/s/ MICHAEL CAHILL Director
- ------------------------------
Michael Cahill May 22, 1997
by E. Anthony Wilson
Attorney-in-Fact
/s/ JOHN P. BUZA Director
- ------------------------------
John P. Buza May 22, 1997
by E. Anthony Wilson
Attorney-in-Fact
EXHIBIT 4.3
Agreement and Warrant to Purchase 315,000 Common Shares
HUDSON HOTELS CORPORATION
This certifies that, for value received, Corporate Relations Group, Inc.,
the registered holder hereof (the "Warrantholder") is entitled to purchase from
Hudson Hotels Corporation, a New York corporation with its principal office at
One Airport Way, Suite 200, Rochester, New York 14624 (the "Company") Three
Hundred Fifteen Thousand (315,000) shares of common stock of the Company (the
"Shares") at or before 5:00 p.m. Eastern Standard Time on May 1, 1998 at the
purchase price per share of $5.00 for the first 105,000 shares, $6.00 for the
second 105,000 shares, and $7.00 for the third 105,000 shares (the "Warrant
Price"), subject to the following terms and conditions. The number of Shares
purchasable upon exercise of this Warrant and the Warrant Price per Share shall
be subject to adjustment from time to time as set forth herein.
4
<PAGE>
1. CONSIDERATION FOR WARRANT.
This Warrant is granted in connection with provision of certain consulting
and stock promotion services pursuant to the Lead Generation/Corporate Relation
Agreement, dated April , 1997 between the Company and the Warrantholder.
2. EXERCISE.
This Warrant may be exercised in whole or in part at any time by
presentation of this Warrant with the Purchase Form as attached hereto duly
completed and executed, together with payment of the Warrant Price at the
principal office of the Company. Payment of the Warrant Price may be made in
cash, by wire transfer or by check. Upon surrender of the Warrant and payment of
such Warrant Price as aforesaid, the Company shall issue and cause to be
delivered with all reasonable dispatch to or upon the written order of the
Warrantholder and in such name or names as the Warrantholder may designate a
certificate or certificates for the number of full Shares so purchased upon the
exercise of the Warrant, together with Fractional Warrants, as provided in
Section 8 hereof, in respect of any fractional Shares otherwise issuable upon
such surrender. Such certificate or certificates shall be deemed to have been
issued and any person so designated to be named therein shall be deemed to have
become a holder of record of such Shares as of the date of the surrender of the
Warrant and the payment of the Warrant Price, as aforesaid, notwithstanding that
the certificates representing the Shares shall not actually have been delivered
or that the stock transfer books of the Company shall then be closed. The
Warrant shall be exercisable, at the election of the Warrantholder, either in
full or from time to time in part and, in the event that a certificate
evidencing the Warrant is exercised in respect of less than all of the Shares
specified therein at any time prior to the Termination Date, a new certificate
evidencing the remaining Warrant will be issued by the Company.
3. RESERVATION OF SHARES.
There has been reserved, and the Company shall at all times keep reserved so
long as the Warrant remains outstanding, out of its authorized Common Shares,
such number of Shares as shall be subject to purchase under the Warrant. Every
transfer agent for the Common Shares and other securities of the Company
issuable upon the exercise of the Warrant will be irrevocably authorized and
directed at all times to reserve such number of authorized Shares and other
securities as shall be requisite for such purpose. The Company will keep a copy
of this Warrant on file with every transfer agent for the Common Shares and
other securities of the Company issuable upon the exercise of the Warrant. The
Company will supply such transfer agent with duly executed stock and other
certificates for such purpose.
4. FURTHER OBLIGATIONS OF COMPANY.
4.1 The Company covenants and agrees that all Shares which may be
delivered upon exercise of this Warrant shall, upon delivery, be fully paid
and non-assessable, and be free from all taxes, liens and charges with
respect to the purchase thereof hereunder, and without limiting the
generality of the foregoing, the Company covenants and agrees that it shall
from time to time take all such action as may be necessary to assure that
the par value per share of the Common Shares is at all times equal to or
less than the then current Warrant Price per share of the Common Shares
issuable pursuant to this Warrant.
4.2 If the Warrantholder claims that this Warrant has been mutilated,
lost, destroyed or wrongfully taken, the Company shall issue and deliver to
the Warrantholder a replacement Warrant provided that the requirements of
Section 8-405 of the New York Uniform Commercial Code has been met and, if
this Warrant has been mutilated, that it is surrendered to the Company.
5
<PAGE>
5. REGISTRATION AND TRANSFER.
The Warrant shall be registered on the books of the Company when issued and
shall be transferable only on the books of the Company maintained at its
principal office in Rochester, New York, or wherever its principal executive
offices may then be located, upon delivery thereof duly endorsed by the
Warrantholder or its duly authorized attorney or representative, or accompanied
by proper evidence of succession, assignment or authority to transfer. Upon any
registration or transfer, the Company shall execute and deliver a new Warrant to
the person entitled thereto.
6. EXCHANGE OF WARRANT CERTIFICATE.
This Warrant certificate may be exchanged for another certificate or
certificates entitling the Warrantholder to purchase a like aggregate number of
Shares as the certificate or certificates surrendered then entitled the
Warrantholder to purchase. The Warrantholder desiring to exchange a Warrant
certificate shall make such request in writing delivered to the Company, and
shall surrender, properly endorsed, the certificate evidencing the Warrant to be
so exchanged. Thereupon, the Company shall execute and deliver to the person
entitled thereto a new Warrant certificate as so requested.
7. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES.
7.1. GENERAL. The number of Shares purchasable upon the exercise of the
Warrant and the Warrant Price shall be subject to adjustment from time to
time upon the happening of certain events, as follows:
7.1.1. In case the Company shall, with regard to its Common Shares
(or securities convertible into or exchangeable for Common Shares) (A)
pay a dividend in Common Shares or make a distribution in Common Shares,
(B) subdivide its outstanding Common Shares into a greater number of
Shares, (C) combine its outstanding Common Shares into a smaller number
of Common Shares, or (D) issue by reclassification of its Common Shares
other securities of the Company, the number of Shares purchasable upon
exercise of the Warrant immediately prior thereto shall be adjusted so
that the Warrantholder shall be entitled to receive the kind and number
of Shares or other securities of the Company which it would have owned or
would have been entitled to receive after the happening of any of the
events described above, had the Warrant been exercised immediately prior
to the happening of such event or any record date with respect thereto.
Any adjustment made pursuant to this subsection shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
7.1.2. No adjustment in the number of Shares purchasable hereunder
shall be required unless such adjustment would require an increase or
decrease of at least one percent in the aggregate number of Shares then
purchasable upon the exercise of the Warrant; provided however, that any
adjustments which by reason of this Section 7.1.2 are not required to be
made immediately shall be carried forward and taken into account in any
subsequent adjustment.
7.1.3. Whenever the number of Shares purchasable upon the exercise of
the Warrant is adjusted as herein provided, the Warrant Price payable
upon exercise of the Warrant shall be adjusted by multiplying such
Warrant Price immediately prior to such adjustment by a fraction, of
which the numerator shall be the number of Shares purchasable upon the
exercise of the Warrant immediately prior to such adjustment, and of
which the denominator shall be the number of shares so purchasable
immediately thereafter.
7.1.4. Whenever the number of Shares purchasable upon the exercise of
this Warrant or the Warrant Price is adjusted as herein provided, the
Company shall cause to be promptly mailed to the Warrantholder in
accordance with the provisions of Section 11 hereof, notice of such
adjustment or adjustments and a certificate of a firm of independent
public accountants selected
6
<PAGE>
by the Board of Directors of the Company (who may be the regular
accountants employed by the Company) setting forth the number of Shares
purchasable upon the exercise of the Warrant and the Warrant Price after
such adjustment, a brief statement of the facts requiring such
adjustment, and the computation by which such adjustment was made.
7.1.5. For the purpose of this Section 7.1, the term "Common Shares"
shall mean (A) the class of shares designated as the Common Shares of the
Company at the date of this Agreement, or (B) any other class of shares
resulting from successive changes or reclassifications of such Common
Shares including changes in par value, or from par value to no par value,
or from no par value to par value. In the event that at any time, as a
result of an adjustment made pursuant to this Section 7, the
Warrantholder shall become entitled to purchase any shares of the Company
other than Common Shares, thereafter the number of such other shares so
purchasable upon exercise of the Warrant and the Warrant Price of such
shares shall be subject to adjustment from time to time in a manner and
on terms as nearly equivalent as practicable to the provisions with
respect to the Shares contained in this Section 7.
7.2. NO ADJUSTMENT OF DIVIDENDS. Except as provided in Section 7.1, no
adjustment in respect of dividends shall be made during the term of the
Warrant or upon the exercise of the Warrant.
7.3. PRESERVATION OF PURCHASE RIGHTS UPON REORGANIZATION,
RECLASSIFICATION, CONSOLIDATION, MERGER, ETC. In case of any capital
reorganization or reclassification of the Common Shares of the Company, or
in case of any consolidation of the Company with or merger of the Company
into another corporation or in case of any sale or conveyance to another
person of the property, assets or business of the Company as an entirety or
substantially as an entirety, the Company or such successor or purchaser, as
the case may be, shall execute with the Warrantholder an agreement that the
Warrantholder shall have the right thereafter upon payment of the Warrant
Price in effect immediately prior to such action to purchase upon exercise
of the Warrant the kind and amount of shares and other securities and
property which it would have owned or have been entitled to receive after
the happening of such reorganization or reclassification, consolidation,
merger, sale or conveyance had the Warrant been exercised immediately prior
to such action. In the event of a merger described in Section 368(a)(2)(E)
of the Internal Revenue Code of 1986, as amended, in which the Company is
the surviving corporation, the right to purchase Shares under the Warrant
shall terminate on the date of such merger and thereupon the Warrant shall
become null and void but only if the controlling corporation shall agree to
substitute for the Warrant its warrant which entitles the holder thereof to
purchase upon its exercise the kind and amount of shares and other
securities and property which it would have owned or had been entitled to
receive had the Warrant been exercised immediately prior to such merger. The
adjustments required by this Section 7.3 shall be effected in a manner which
shall be as nearly equivalent as may be practicable to the adjustments
provided for elsewhere in this Section 7. The provisions of this Section 7.3
shall similarly apply to successive consolidations, mergers, sales or
conveyances.
7.4. STATEMENT ON WARRANTS. Irrespective of any adjustments in the
Warrant Price or the number or kind of Shares purchasable upon the exercise
of the Warrant, the Warrant certificate or certificates theretofore or
thereafter issued may continue to express the same price and number and kind
of Shares as are stated in this initially issued Warrant.
8. FRACTIONAL SHARES.
The Company shall not be required to issue fractional Shares on the exercise
of the Warrant. If any fraction of a Share would, except for the provisions of
this Section 8, be issuable on the exercise of the Warrant (or specified portion
thereof), the Company shall issue to the Warrantholder a fractional Warrant
entitling Warrantholder, upon surrender with other fractional Warrants
aggregating one or more full
7
<PAGE>
Shares, to purchase such full Shares. If fractional Warrants do not aggregate a
full Share, their value (over and above their exercise price) shall be paid in
full in cash upon exercise to the exercising Warrantholder.
9. REGISTRATION.
9.1. The Company agrees that it will immediately prepare and file a
registration statement under the Securities Act of 1933 (the "Act") covering all
of the Shares and will use its best efforts to cause such registration statement
to become effective as soon as practicable and to remain effective and current,
and take all other action necessary under any Federal or state law or regulation
of any governmental authority, including but not limited to the filing of post
effective amendments, if necessary, to permit all Warrant Shares to be sold or
otherwise disposed of and will maintain such compliance with each such Federal
and state law and regulation of any governmental authority for the period
necessary for the Holder and such Holders to effect the sale or disposition
thereof.
9.2. To the extent not registered under Section 9.1 above, if at any time
before May 1, 2002, the Company proposes to register or qualify any of its
securities under the Act or any other applicable federal or state law or
regulation of governmental authority, it will each such time give written notice
to all the then holders of this Warrant, if this Warrant has not yet expired,
and to all holders of Shares acquired by reason of exercise of this Warrant, of
its intention to do so and, upon the written request of any such holder given
within thirty (30) days after receipt of any such notice (which request shall
specify the number of Shares intended to be sold or disposed of and describe the
nature of any proposed sale or other disposition thereof), the Company will use
its best efforts to cause such Shares so specified to be registered or qualified
under such laws or regulations, to the extent requisite to permit the sale or
other disposition thereof (in accordance with the method described by such
holder, provided such method is in accordance with law). The Company will keep
effective and maintain any registration or qualification specified in this
Section 9.2 for a period of not less than six months.
9.3. Whenever the Company is required by the provisions of Section 9.1 or
9.2 of this Section 9 to effect a registration or qualification of any Shares,
the Company will furnish to each holder whose Shares are the subject of such
registration or qualification such number of copies of any prospectus (including
any preliminary or summary prospectus) or other like document as such holder may
reasonably request in order to effect the sale of the securities to be sold by
such holder, and will use its best efforts to qualify such securities under such
state securities or Blue Sky laws as may be requisite for such purpose. All
expenses incurred by the Company in connection with any registration or
qualification, including registration or filing fees, printing expenses and
fees, compensation of regular employees of the Company and disbursements of
counsel and of independent accountants of the Company shall be borne by the
Company. Underwriters' commissions (if any) and the fees of counsel for any
holder of Shares subject to such registration or qualification shall be borne
(in such respective amounts as shall be determined by them) by the person or
persons requesting such registration or qualification pursuant to this Section
9.
9.4. Each holder whose securities are the subject of registration or
qualification under this Section 9 agrees to furnish to the Company such
information concerning such holder as may be requested by the Company which is
necessary in connection with any such registration or qualification.
9.5. In the event that the Company shall be obligated to use its best
efforts to effect any registration or qualification under either Section 9.1 or
9.2:
9.5.1. The Company will indemnify and hold harmless each holder whose
securities are the subject of a registration or qualification under this
Section 9 and each underwriter of the securities so registered or qualified
(including any broker or dealer through whom such securities may be sold)
and each person, if any, who controls any such holder or any such
underwriter within the meaning of Section 15 of the Act, from and against
any and all losses, claims, damages, expenses or liabilities, joint or
several, to which they or any of them may become subject under the Act or
under any other
8
<PAGE>
statute or at common law or otherwise, and except as hereinafter provided,
will reimburse each such holder and each of the underwriters and each such
controlling person, if any, for any legal or other expenses reasonably
incurred by them or any of them in connection with investigating or
defending any actions, whether or not resulting in any liability, insofar as
such losses, claims, damages, expenses, liabilities or actions arise out of
or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement, in any preliminary or
amended preliminary prospectus or in the prospectus (or the registration
statement or prospectus as from time to time amended or supplemented by the
Company), or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
in order to make the statements therein not misleading, unless such untrue
statement or omission was made in such registration statement, preliminary
or amended preliminary prospectus or prospectus in reliance upon and in
conformity with information furnished in writing to the Company in
connection therewith by such holder or any underwriter expressly for use
therein. Promptly after receipt by any holder or any underwriter or any
person controlling such holder or such underwriter of notice of the
commencement of any action in respect of which indemnity may be sought
against the Company, such holder or such underwriter, as the case may be,
will notify the Company in writing of the commencement thereof, and subject
to the provisions hereinafter stated, the Company shall assume the defense
of such action (including the employment of counsel, who shall be counsel
satisfactory to such holder or such underwriter or such person, as the case
may be), and the payment of expenses insofar as such action shall relate to
any alleged liability in respect of which indemnity may be sought against
the Company. Each holder or any underwriter or any such controlling person
shall have the right to employ separate counsel in any such action and to
participate in the defense thereof but the fees and expenses of such counsel
shall not be at the expense of the Company unless the employment of such
counsel has been specifically authorized by the Company. The Company shall
not be liable to indemnify any person for any settlement of any such action
effected without the Company's consent; and
9.5.2. each holder will indemnify and hold harmless the Company, each of
its directors, each of its officers who has signed the registration
statement and each person, if any, who controls the Company within the
meaning of Section 15 of the Act from and against any and all losses,
claims, damages, expenses or liabilities, joint or several, to which they or
any of them may become subject under the Act or under any other statute or
at common law or otherwise, and except as hereinafter provided, will
reimburse the Company and each such director, officer or controlling person
for any legal or other expenses reasonably incurred by them or any of them
in connection with investigating or defending any actions whether or not
resulting in any liability, insofar as such losses, claims, damages,
expenses, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement, in any preliminary or amended preliminary prospectus
or in the prospectus (or the registration statement or prospectus as from
time to time amended or supplemented) or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, but only insofar as any such statement or omission was made in
reliance upon and in conformity with information furnished in writing to the
Company in connection therewith by such holder expressly for use therein.
Promptly after receipt of notice of the commencement of any action in
respect of which indemnity may be sought against any holder, the Company
will notify such holder in writing of the commencement thereof, and such
holder, the Company will notify such holder in writing of the commencement
thereof, and such holder shall, subject to the provisions hereinafter
stated, assume the defense of such action (including the employment of
counsel, who shall be counsel satisfactory to the Company) and the payment
of expenses insofar as such action shall relate to an alleged liability in
respect of which indemnity may be sought against such holder. The Company
and each such director, officer or controlling person shall have the right
to employ separate counsel in any such action and to participate in the
defense thereof but the fees and expenses of such
9
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counsel shall not be at such holder's expense unless the employment of such
counsel has been specifically authorized by such holder. Such holder shall
not be liable to indemnify any person for any settlement of any such action
effected without such holder's consent.
10. NO RIGHTS AS SHAREHOLDER; NOTICES TO WARRANTHOLDER.
Nothing contained in this Agreement or in any of the Warrants shall be
construed as conferring upon the Warrantholder or its transferees any rights as
a shareholder of the Company, including the right to vote, receive dividends, or
consent as a shareholder in respect of any meeting of shareholders for the
election of directors of the Company or any other matter. However, the Company
shall be required to give notice in writing to the Warrantholder of any meeting
of shareholders of the Company or any proposed consent of the shareholders as
provided in Section 11 hereof at least twenty (20) days prior to the date fixed
as a record date or the date of closing the transfer books for the determination
of the shareholders entitled to any relevant dividend, distribution,
subscription rights or other rights or for the determination of shareholders
entitled to vote at any such meeting or as to which any consent is requested.
Such notice shall specify such record date or the date of closing the transfer
books, as the case may be.
11. NOTICES.
Any notice pursuant to this Agreement by the Company or by the Warrantholder
shall be in writing and shall be deemed to have been duly given if delivered by
hand or if mailed by certified mail, return receipt requested, postage prepaid,
addressed as follows:
11.1. If to the Warrantholder--addressed to Corporate Relations Group,
Inc., 1801 Lee Road, Suite 301, Winter park, Florida 32789, Attn: Roberto E.
Veitia, President.
11.2. If to the Company--addressed to Hudson Hotels Corporation, One
Airport Way, Suite 200, Rochester, NY 14624, Attn: E. Anthony Wilson,
President or to such other address as any such party may designate by notice
to the other party. Notices shall be deemed given at the time they are
delivered personally or three days after they are mailed in the manner set
forth above.
12. SUCCESSORS.
All the covenants and provisions of this Agreement by or for the benefit of
the Company or the Warrantholder shall bind and inure to the benefit of their
respective successors and assigns hereunder.
13. MERGER OR CONSOLIDATION OF THE COMPANY.
The Company will not merge or consolidate with or into any other corporation
or sell all or substantially all of its property to another person, unless the
provisions of Section 7.3 are complied with.
14. APPLICABLE LAW.
This Agreement shall be deemed to be a contract made under the laws of the
State of New York and for all purposes shall be construed in accordance with the
laws of said State applicable to contracts made and to be performed entirely
within such State.
15. COUNTERPARTS.
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
16. HEADINGS.
The headings in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement.
10
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its duly authorized officers and the corporate seal hereunto fixed.
HUDSON HOTELS CORPORATION
(corporate seal)
By: /s/ E. ANTHONY WILSON
------------------------------------
<TABLE>
<S> <C>
E. Anthony Wilson
Attest: President
/s/ ALAN S. LOCKWOOD
- ---------------------------------------------
Alan S. Lockwood
Secretary
</TABLE>
11
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EXHIBIT 5.1
May 22, 1997
Hudson Hotels Corporation
One Airport Way, Suite 200
Rochester, NY 14624
RE: Hudson Hotels Corporation--Registration Statement on Form S-3
Gentlemen:
We have acted as counsel to Hudson Hotels Corporation, a New York
corporation (hereinafter called the "Company"), in connection with its
Registration Statement on Form S-3, filed under the Securities Act of 1933,
relating to the proposed resale of up to 460,000 common shares of the Company,
$.001 par value ("Common Shares") by certain Selling Shareholders.
In that connection, we have examined the Certificate of Incorporation of the
Company, as amended, the by-laws of the Company, as amended, the Registration
Statement, and such other documents and corporate records as we have deemed
necessary or appropriate for purposes of this opinion.
Based upon the foregoing, it is our opinion that:
1. The Company has been duly organized and is a validly existing
corporation in good standing under the laws of the State of New York.
2. The Common Shares have been duly authorized and are validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
above-referenced Registration Statement and to the reference made to us under
the caption "Legal Matters" in the Prospectus forming a part of such
Registration Statement.
Very truly yours,
BOYLAN, BROWN, CODE,
FOWLER, VIGDOR & WILSON, LLP
/s/ ALAN S. LOCKWOOD
Alan S. Lockwood
ASL/sjc
<PAGE>
[LETTERHEAD OF BONADIO & CO., LLP]
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 22, 1997
included in Hudson Hotels Corporation's Form 10-KSB for the year ended December
31, 1996, and to all reference to our Firm included in this registration
statement.
/s/ BONADIO & CO., LLP
May 23, 1997
Rochester, New York
<PAGE>
EXHIBIT 23.2
[Letterhead of Coopers & Lybrand, L.L.P.]
We consent to the incorporation by reference in this Registration Statement
of Hudson Hotels Corporation on Form S-3 Amendment No. 1 of our report dated
March 22, 1997, on our audit of the financial statements of HH Properties-I,
Inc. as of December 31, 1997 and for the period November 15, 1996 through
December 31, 1996, which report is included in the Form 10-K of Hudson Hotels
Corporation. We also consent to the reference to our firm under the caption
"Experts."
/s/ COOPERS & LYBRAND, L.L.P.
New York, New York
May 19, 1997
