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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 16, 1998
REGISTRATION NO. 33
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HUDSON HOTELS CORPORATION
(Exact name of registrant as specified in its charter)
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<TABLE>
<S> <C> <C>
NEW YORK 16-1312167
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification No.
incorporation or organization) Classification Code Number)
</TABLE>
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E. ANTHONY WILSON, CHAIRMAN
HUDSON HOTELS CORPORATION
300 BAUSCH & LOMB PLACE
ROCHESTER, NY 14604
(716) 454-3400
(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)
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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
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
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If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
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If any of the securities being registered on this Form are to be 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. / / ________________
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. / / ________________
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................................ 200,000 $2.09 $418,750 $144.40
</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 National Market on
November 11, 1998.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL REGISTRANT SHALL
FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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PROSPECTUS
HUDSON HOTELS CORPORATION
200,000 SHARES OF COMMON STOCK
There are hereby offered 200,000 shares of common stock, $.001 par value per
share ("Common Stock") of Hudson Hotels Corporation (the "Company"). The Common
Stock is sometimes hereinafter collectively referred to as the "Securities."
All of the 200,000 shares of Common Stock are being offered by one selling
shareholder (the "Selling Shareholder"). See "SELLING SHAREHOLDER" . The Company
will not receive any of the proceeds from the sale of the shares being offered
by the Selling Shareholder. Such sales may be made in any one or more
transactions (which may involve block transactions) in the over-the-counter
market, on NASDAQ, and any exchange on which the Common Shares may then be
listed, or otherwise in negotiated transactions or a combination of such methods
of sale, at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices. The Selling Shareholder
may effect such transactions by selling Shares to or through broker-dealers, and
such broker-dealers may sell the shares as agent or may purchase such Shares as
principal and resell them for their own account pursuant to this Prospectus. Any
such participating broker-dealers may be deemed to be "underwriters" under the
Securities Act. Such broker-dealers may receive compensation in the form of
underwriting discounts, concessions or commissions from the Selling Shareholder
and/or purchasers of Shares from whom they may act as agent (which compensation
may be in excess of customary commission).
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THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS" AT PAGE
4.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is November 16, 1998
<PAGE>
AVAILABLE INFORMATION
The Company is a reporting company under the Securities Exchange Act of
1934. The reports and other information filed by the Company may be inspected
and copied at the public reference facilities of the Securities Exchange
Commission in Washington, D.C., and copies of such material can be obtained from
the Public Reference Room of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. The public may obtain information on
the operation of the Public Reference Room by calling the Commission at
1-800-SEC-0330. The Commission also maintains an Internet site that contains
reports, proxy and information statements and other information regarding
issuers (including the Company) that file electronically with the Commission.
The address of the Commission's Internet site is http://www.sec.gov. The Company
also maintains an Internet site at http://www.hudsonhotels.com.
The Company's common stock is listed on the NASDAQ National Market; reports
and other information concerning the Company can be inspected at the offices of
NASD, 1735 K Street, N.W., Washington, D.C.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company are
incorporated as of their respective dates in the Prospectus by reference:
(a) The Company's Form 10-KSB for the fiscal year end December 31, 1997,
filed pursuant to Section 13(a) of the Securities Exchange Act of 1934, as
amended ("Exchange Act");
(b) The Company's Form 10-KSB/A, amending Form 10-KSB for the fiscal year
ended December 31, 1997, filed July 10, 1998 pursuant to Section 13(a) of the
Exchange Act;
(c) All other reports, if any, filed by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the fiscal year ended
December 31, 1997; including
(i) The Company's Form 10-QSB for the period ended March 31, 1998;
(ii) The Company's Form 10-QSB for the period ended June 30, 1998;
(iii) The Company's Form 10-QSB for the period ended September 30, 1998;
(iii) The Company's Notice of Annual Meeting, Proxy Statement and Form of
Proxy dated May 15, 1998.
(d) The description of the Company's Common Stock contained in the
Registration Statement on Form S-18 filed with the Commission and declared
effective on April 7, 1989, under Section 8 of the Securities Act, including any
amendment or description filed for the purpose of updating such description.
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 a 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 Accounting Officer,
Hudson Hotels Corporation, 300 Bausch & Lomb Place, Rochester, NY 14604, (716)
454-3400.
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THE COMPANY
Hudson Hotels Corporation (the "Company") was organized as Microtel
Franchise and Development Corporation to develop and franchise a national chain
of economy limited service lodging facilities ("Microtels"), using the service
mark "MICROTEL", which offers downsized rooms with higher quality furnishings at
rates below those available at competing national lodging chains. The Company
was incorporated in New York State on June 5, 1987.
On October 5, 1995, the Company entered into an agreement with US Franchise
Systems, Inc. ("USFS") pursuant to which USFS purchased worldwide franchising
and administration for the Microtel hotel chain (the "USFS Agreement").
Following this transaction, the Company ceased its franchising activities.
Although the agreement was entitled Joint Venture Agreement, the transaction was
structured as an outright sale of the Company's franchising rights.
As a result of the sale of its franchising system pursuant to the USFS
Agreement, the Company has focused its efforts on developing, building and
managing various hotel projects, including Microtel Inns. Also, during 1996,
1997 and 1998, the Company has pursued a significant expansion and development
program, which included several acquisitions and the development of five (5)
Microtel Inns through a joint venture partnership.
As of September 30, 1998, the Company managed forty-three (43) hotel
properties located primarily in the Northeast and Southeast United States, of
which, twenty-eight (28) are owned directly by the Company. The properties range
from super budget "Microtel Inns" to full-service hotels. The Company competes
for management contracts with other hotel management companies.
The address and telephone number of the Company's principal executive
offices are 300 Bausch & Lomb Place, Rochester, NY 14604, (716) 454-3400.
RECENT DEVELOPMENTS
In August, 1998, the Company sponsored the organization of a Virginia
limited partnership, HH Bridge, L.P., to acquire three properties. The Company
contributed $3,643,000 to the capital of the Partnership for a 1% general
partnership interest and a 41.2% limited partnership interest; M,L,R&R, an
investment partnership, contributed $5,000,000 for a 57.8% limited partnership
interest. Under the Partnership Agreement, M,L,R&R receives a 20% preferred
return on its investment, payable quarterly. The Company receives all income of
the Partnership in excess of that preferred return. M,L,R&R has the right to put
its partnership interest to the Company on August 14, 1999 for $6,000,000. The
Company has the right at any time to purchase the partnership interest of
M,L,R&R for a purchase price fixed at $6,000,000 through November 13, 1999 and
thereafter increasing at $66,666.67 per month. If not sooner purchased, the
Company is required to purchase M,L,R&R's interest on August 13, 2003 for
$9,000,000.
The Partnership utilized its capital to acquire, on August 14, 1998, the
following three hotel properties for an aggregate purchase price of
approximately $26,600,000:
HOLIDAY INN, CLEVELAND, OHIO: A 146 room full service hotel located just off
Interstate 71, approximately two miles northeast of the Cleveland Hopkins
International Airport.
HAMPTON INN, CHEEKTOWAGA (METROPOLITAN BUFFALO), NEW YORK: A 135 room
limited service hotel located just off Exit 52W of Interstate 90.
COMFORT SUITES, CHEEKTOWAGA (METROPOLITAN BUFFALO), NEW YORK: A 100 suite (1
and 2 bedrooms with separate living, sleeping and kitchen areas) hotel
located adjacent to the Greater Buffalo International Airport, near the
intersection of Interstate 90 and State Route 33.
The purchase price was determined by arms-length negotiation after analysis
and valuation by the Company based upon historic and projected operating results
of the hotels. In addition to the capital contributions set out
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above, the Partnership placed an $18,300,000 mortgage loan on the acquired
properties with Capital Company of America LLC, as Lender. There were no
material relationships between the Company or the Partnership on one side and
the Seller on the other side prior to the acquisition.
During September, the Company negotiated a settlement of its long-standing
litigation with Ladenburg, Thalmann & Co., Inc. In exchange for the payment of
$100,000 in cash and the issuance of 200,000 shares of its common stock to
Ladenburg, the plaintiff executed a Stipulation of Discontinuance of the action
with prejudice. On September 29, 1998, the Company issued 200,000 shares to
Ladenburg to fulfill its obligations under the Settlement Agreement. The Company
has agreed to register these shares for sale by the holders thereof.
RISK FACTORS
IN ADDITION TO THE OTHER INFORMATION IN THIS PROSPECTUS, THE FOLLOWING RISK
FACTORS SHOULD BE CONSIDERED CAREFULLY IN EVALUATING THE COMPANY AND ITS
BUSINESS BEFORE PURCHASING THE SHARES OFFERED HEREBY.
SUBSTANTIAL LEVERAGE. The Company has incurred substantial indebtedness in
connection with the acquisition of its properties, including: (i) $35 million in
Senior Debt, (ii) an aggregate of $103 million in Mortgage Debt; and (iii) $7
million in other long-term debt. At September 30, 1998, the Company's long-term
indebtedness was $157,359,000 and the Company had a shareholders' investment of
$11,131,000. The degree to which the Company is leveraged could have important
consequences to the holders of the Shares, including the following: (i) the
Company's ability to obtain additional financing in the future for working
capital, capital expenditures, acquisitions or general corporate purposes may be
impaired; (ii) a substantial portion of the Company's cash flow from operations
must be dedicated to the payment of interest on the indebtedness, thereby
reducing the funds available to the Company for other purposes; (iii) the
agreements governing the Company's long-term indebtedness contain certain
restrictive financial and operating covenants; (iv) the Senior Debt is at
variable rates of interest, which would cause the Company to be vulnerable to
increases in interest rates; (v) all of the indebtedness outstanding under the
Senior Debt is secured by substantially all the assets of the Company; (vi) the
Company is substantially more leveraged than certain of its competitors, which
might place the Company at a competitive disadvantage; (vii) the Company may be
hindered in its ability to adjust rapidly to changing market conditions; and
(viii) the Company's substantial degree of leverage could make it more
vulnerable in the event of a downturn in general economic conditions or its
business.
DEBT SERVICE; NO LIMITATION ON FUTURE DEBT. As a result of the indebtedness
incurred in connection with its various acquisitions, a substantial portion of
the Company's cash flow will be devoted to debt service. The ability of the
Company to continue making payments of principal and interest will be largely
dependent upon its future performance. Many factors, some of which will be
beyond the Company's control, such as prevailing economic conditions, will
affect its performance. There can be no assurance that the Company will be able
to generate sufficient cash flow to cover required interest and principal
payments. If the Company is unable to meet interest and principal payments in
the future, it may, depending upon the circumstances which then exist, seek
additional equity or debt financing, attempt to refinance its existing
indebtedness or sell all or part of its business or assets to raise funds to
repay its indebtedness. There can be no assurance that sufficient equity or debt
financing will be available, or, if available, that it will be on terms
acceptable to the Company, that the Company will be able to refinance its
existing indebtedness or that sufficient funds could be raised through asset
sales. In addition, the ability of the Company to raise funds by selling assets
is restricted by the Senior Debt.
Neither the Company's Certificate of Incorporation nor its By-laws limit the
amount of indebtedness that the Company may incur. Subject to limitations in its
debt instruments, including those expected to be included in the
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Senior Debt and its various mortgages, the Company expects to incur additional
debt in the future to finance acquisitions and development. The Company's
continuing substantial indebtedness could increase its vulnerability to general
economic and lodging industry conditions (including increases in interest rates)
and could impair the Company's ability to obtain additional financing in the
future and to take advantage of significant business opportunities that may
arise. The Company's indebtedness is, and will likely continue to be, secured by
mortgages on its hotel properties, a general security interest in the Company's
other assets, and by the equity of certain subsidiaries of the Company. There
can be no assurances that the Company will be able to meet its debt service
obligations; to the extent that it cannot, the Company risks the loss of some or
all of its assets to foreclosure. Adverse economic conditions could cause the
terms on which borrowings become available to be unfavorable. In such
circumstances, if the Company is in need of capital to repay indebtedness in
accordance with its terms or otherwise, it could be required to liquidate one or
more investments in hotels at times which may not permit realization of the
maximum return on such investments.
LIQUIDITY. The Company's principal sources of liquidity are existing cash
balances and cash flow from operations. As a result of the Company's
non-recurring charge incurred in the third quarter of 1998, the Company may
require additional capital to continue its operations. Strategies which the
Company is considering to increase liquidity will include extending payables or
obtaining a line of credit. There is no assurance such strategies or financing
will work or be available in amounts required or on terms satisfactory to the
Company. There is no assurance that the Company will be successful in these
efforts.
MANAGEMENT OF GROWTH. The Company is experiencing a period of rapid growth
that could place a significant strain on its resources. A component of the
Company's business strategy is to complement internal growth with strategic
acquisitions. To successfully implement its acquisition strategy, the Company
must be able to continue to successfully integrate new hotels into its existing
operations. The consolidation of functions and integration of departments,
systems and procedures of the new hotels with the Company's existing operations
presents a significant management challenge, and the failure to integrate new
hotels into the Company's management and operating structures could have a
material adverse effect on the results of operations and financial condition of
the Company. There can be no assurance that the Company will be able to operate
acquired properties profitably. The Company's ability to manage its growth and
integrate its newly-acquired properties will require it to continue to improve
its operations and its financial and management information systems, and to
motivate and effectively manage its employees. If the Company's management is
unable to manage such growth effectively, the quality of the Company's services,
its ability to identify, hire and retain key personnel and its results of
operations could be materially adversely affected.
OPERATING RISKS. The Company's business is subject to all of the operating
risk inherent in the lodging industry. These risks include the following:
changes in general and local economic conditions; cyclical overbuilding in the
lodging industry; varying levels of demand for rooms and related services;
competition from other hotels, motels and recreational properties; changes in
travel patterns; the recurring need for renovations, refurbishment and
improvements of hotel properties; changes in governmental regulations that
influence or determine wages, prices and construction and maintenance costs; and
changes in interest rates and the availability of credit. Demographic,
geographic or other changes in one or more of the Company's markets could impact
the convenience or desirability of the sites of certain hotels, which would in
turn affect the operations of those hotels. In addition, due to the level of
fixed costs required to operate full-service hotels, certain significant
expenditures necessary for the operation of hotels generally cannot be reduced
when circumstances cause a reduction in revenue.
COMPETITION IN THE LODGING INDUSTRY. The lodging industry is highly
competitive. There is no single competitor or small number of
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competitors of the Company that are dominant in the industry. The Company's
hotel properties operate in areas that contain numerous competitors, many of
which have substantially greater resources than the Company. Competition in the
lodging industry is based generally on location, room rates and range and
quality of services and guest amenities offered. In theory, the Company's
properties compete against all hotel products in any given market for patron
market share. In practice, the hotel industry is highly segmented, ranging from
luxury destination resorts to small "mom and pop" properties. The Company's
properties compete directly against other national and regional chains of hotels
in each geographical market in which the Company hotels are located. New or
existing competitors could significantly lower rates or offer greater
conveniences, services or amenities or significantly expand, improve or
introduce new facilities in markets in which the Hotels compete, thereby
adversely affecting the Company's operations. The Company also competes with
other regional and national hotel companies for development and management
contracts.
SEASONALITY. The lodging industry is seasonal in nature: Generally, hotel
revenues are greater in the second and third quarters than in the first and
fourth quarters. This seasonality can be expected to cause quarterly
fluctuations in the revenues of the Company. Quarterly earnings also may be
adversely affected by events beyond the Company's control, such as extreme
weather conditions, economic factors and other considerations affecting travel.
FRANCHISE AGREEMENTS. All but four of the Company's hotel properties are
operated pursuant to existing franchise or license agreements (the "Franchise
Agreements"). The Franchise Agreements generally contain specific standards for,
and restrictions and limitations on, the operation and maintenance of a hotel in
order to maintain uniformity within the franchisor system. Those limitations may
conflict with the Company's philosophy of creating specific business plans
tailored to each Company's hotel properties and to each market. Such standards
are often subject to change over time, in some cases at the discretion of the
franchisor, and may restrict a franchisee's ability to make improvements or
modifications to a hotel without the consent of the franchisor. In addition,
compliance with such standards could require a franchisee to incur significant
expenses or capital expenditures. The Franchise Agreements covering the hotels
expire or terminate, without specified renewal rights, at various times and have
differing remaining terms. As a condition of renewal, the Franchise Agreements
frequently contemplate a renewal application process, which may require
substantial capital improvements to be made to the hotel.
RISKS ASSOCIATED WITH OWNING REAL ESTATE. The Company currently owns 28
hotels and anticipates that it will develop or acquire additional hotel
properties. Accordingly, the Company will be subject to various degrees of risk
generally incident to the ownership of real estate. These risks include, among
other things, changes in national, regional and local economic conditions,
changes in local real estate market conditions, changes in interest rates and in
the availability, cost and terms of financing, the potential for uninsured
casualty and other losses, the impact of present or future environmental
legislation and adverse changes in zoning laws and other regulations. Many of
these risks are beyond the control of the Company. In addition, real estate
investments are relatively illiquid, resulting in a limited ability of the
Company to vary its portfolio of hotels in response to changes in economic and
other conditions.
DEPENDENCE ON KEY PERSONNEL. The Company's future success depends in large
part on the continued service of E. Anthony Wilson, Chairman of the Board and
Chief Executive Officer, Michael George, President and Chief Operating Officer,
and John M. Sabin, Executive Vice President and Chief Financial Officer as well
as on its other key technical and management personnel. The Company is also
dependent on its ability to continue to attract additional qualified employees.
The competition for such skilled personnel is intense and the loss of key
employees could have a material adverse effect on the Company's results of
operations.
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VOLATILITY OF STOCK PRICE. The Company's Common Shares have experienced
substantial price volatility and such volatility may occur in the future,
particularly as a result of quarter-to-quarter variations in the actual or
anticipated financial results of the Company, its competitors and other
companies in the hotel industry. In addition, the stock market has experienced
significant price and volume fluctuations that have affected the market price of
many small hotel companies and have often been unrelated to the operating
performance of these companies. Broad market fluctuations, as well as general
economic and political conditions, may adversely affect the market price of the
Common Shares.
NEED FOR ADDITIONAL FINANCING TO DEVELOP VACANT HOTEL SITES. The Company
currently owns seven vacant parcels of land in various locations for the
development of hotel properties. The Company will require additional sources of
debt and equity financing in order to be able to develop these properties. The
Company currently has no commitments for such financing. If the Company is
unable to obtain such financing, it will be unable to develop these properties,
and its performance may be negatively impacted.
LACK OF DIVIDENDS. The Company has not paid dividends on its Common Stock
since its inception and does not intend to pay any dividends on its Common Stock
in the foreseeable future.
USE OF PROCEEDS
All of the shares being offered hereunder are being offered by the Selling
Shareholder. The Company will incur certain expenses in connection with this
offering; however, it will not receive any of the proceeds hereof. All proceeds
will go to the Selling Shareholder to be used for its own purposes.
SELLING SHAREHOLDERS
All of the securities being offered hereunder are being offered by the
Selling Shareholder, Ladenburg, Thalman & Co, Inc. The Selling Shareholder has
had no material relationship with the Company within the past three years. To
the best knowledge of the Company, the Selling Shareholder currently owns
200,000 shares of the Company's common stock, par value $.001, all of which are
being offered hereunder. After the offering is complete, the Selling Shareholder
will own no shares of the Company's common stock.
PLAN OF DISTRIBUTION
The Shares may be sold from time to time by the Selling Shareholder or by
pledgees, donees, transferees or other successors in interest. Such sales may be
made in any one or more transactions (which may involve block transactions) in
the over-the-counter market, on NASDAQ, and any exchange in which the Common
Shares may then be listed, or otherwise in negotiated transactions or a
combination of such methods of sale, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices. The Selling Shareholder may effect such transactions by selling Shares
to or through broker-dealers, and such broker-dealers may sell the shares as
agent or may purchase such Shares as principal and resell them for their own
account pursuant to this Prospectus. Any such participating broker-dealers may
be deemed to be "underwriters" under the Securities Act. Such broker-dealers may
receive compensation in the form of underwriting discounts, concessions or
commissions from the Selling Shareholder and/or purchasers of Shares from whom
they may act as agent (which compensation may be in excess of customary
commission).
The Company has informed the Selling Shareholder that the anti-manipulative
rules under the Securities Exchange Act of 1934 (Rules 10b-6 and 10b-7) may
apply to their sales of Shares in the Market. Also, the Company has informed the
Selling Shareholder of the need for delivery of copies of the Prospectus in
connection with any sale of securities registered hereunder in accordance with
applicable prospectus delivery requirements.
In connection with such sales, the Selling Shareholder and any participating
brokers and dealers may be deemed to be "underwriters" as defined in the
Securities Act. In addition, any of
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the Shares that qualify for sale pursuant to Rule 144 may be sold under Rule 144
rather than pursuant to this Prospectus.
In order to comply with certain state securities laws, if applicable, the
Common Shares will not be sold in a particular state unless such securities have
been registered or qualified for sale in such state or an exemption from
registration or qualification is available and complied with.
LEGAL MATTERS
The legality of the shares of Common Stock offered hereby will be passed
upon for the Company and the Selling Shareholder by the law firm of Boylan,
Brown, Code, Fowler, Vigdor &Wilson, LLP, 2400 Chase Square, Rochester, New York
14604.
EXPERTS
The Consolidated Balance Sheet as of December 31, 1997 and Consolidated
Statements of Operations, Shareholders' Investment and Cash Flows for the year
then ended, incorporated by reference in this prospectus, have been incorporated
herein in reliance on the report of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of that firm as experts in accounting and
auditing.
The Consolidated Balance Sheet as of December 31, 1996 and Consolidated
Statements of Operations, Shareholders' Investment and Cash Flows for the year
then ended, incorporated by reference in this prospectus, have been incorporated
herein in reliance on the report of Bonadio & Company, LLP, independent
accountants, given on the authority of that firm as experts in accounting and
auditing.
The Balance Sheet of HH Properties-I, a wholly owned subsidiary of Hudson
Hotels Corporation, as of December 31, 1996 and Statement of Operations,
Shareholder's Investment and Cash Flows for the period November 15, 1996 through
December 31, 1996, incorporated by reference in this prospectus, have been
incorporated herein in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of that firm as experts in
accounting and auditing.
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission,
Washington, DC 20549, a Registration Statement on Form S-3 under the Act, with
respect to the securities offered hereby. This Prospectus, filed as a part of
the Registration Statement, does not contain certain information set forth in or
annexed as exhibits to the Registration Statement, as permitted by the Rules and
Regulations of the Commission. For further information with respect to the
Company and the securities offered hereby, reference is made to the Registration
Statement and to the Exhibits filed as part thereof, which may be inspected at
the office of the Securities and Exchange Commission without charge, or copies
thereof may be obtained therefrom upon payment of a fee prescribed by the
Securities and Exchange Commission.
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NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED IN CONNECTION
WITH THIS OFFERING TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER
THAN THOSE CONTAINED IN THIS PROSPECTUS. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER OR A SOLICITATION IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL
TO MAKE SUCH AN OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS
NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE CIRCUMSTANCES OF THE COMPANY OR THE FACTS
HEREIN SET FORTH SINCE THE DATE HEREOF.
200,000 SHARES OF COMMON STOCK
HUDSON HOTELS
CORPORATION
OFFERING PRICE
$ PER SHARE
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all expenses, other than selling commissions,
payable by the Registrant in connection with the sale of the shares being
registered. All of the amounts shown are estimates, except for the registration
fee and NASD filing fee.
<TABLE>
<S> <C>
Registration.................................................... $ 144.40
NASD filing..................................................... $2,000.00
Blue Sky fees and expenses...................................... -0-
Legal fees and expenses......................................... $ 5,000
Accounting fees and expenses.................................... $ 5,000
Miscellaneous................................................... $1,000.00
TOTAL......................................................... $13,144.40
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Restated Certificate of Incorporation of the Registrant, filed November
25, 1988 (the "Restated Certificate"), provides in relevant part at paragraph 7,
that
Every officer or director hereafter made or threatened to be made a
party to any action or proceeding by reason of the fact that he or his
testator or intestate is or was a director or officer of this
corporation or of any other corporation which he served in any capacity
at the request of this corporation shall be indemnified against the
reasonable expenses including attorneys' fees actually and necessarily
incurred or paid by him in connection with the defense of any such
action or proceeding or in connection with any appeal therein, provided
that the director or officer be wholly successful on the merits or
otherwise in the defense of the action or proceeding.
Sections 721 through 726 of the Business Corporation Law of the State of New
York (the "BCL") provide the statutory basis for the indemnification by a
corporation of its officers and directors when such officers and directors have
acted in good faith, for a purpose reasonably believed to be in the best
interests of the corporation, and subject to specified limitations set forth in
the BCL.
The BCL was also amended in 1986 to allow corporations to provide for
indemnification of corporate directors and officers on a broader basis than had
previously been permissible. Pursuant to this statutory authority, and as
authorized by Article V of the Registrant's By-Laws, directors and officers of
the Registrant, and certain Registrant employees, have been availed of the
broadest scope of permissible indemnification coverage consistent with the BCL
changes.
Article V of the Registrant's By-Laws provide as follows:
5.1 INDEMNIFICATION. The Corporation shall indemnify (a) any person
made or threatened to be made a party to any action or proceeding by reason
of the fact that he, his testator or intestate, is or was a director or
officer of the Corporation and (b) any director or officer of the
Corporation who served any other company in any capacity at the request of
the Corporation, in the manner and to the maximum extent permitted by the
Business Corporation Law of New York, as amended from time to time; and the
Corporation may, in the discretion of the Board of Directors, indemnify all
other corporate personnel to the extent permitted by laws.
II-1
<PAGE>
5.2 AUTHORIZATION. The provisions for indemnification set forth in
Section 5.1 hereof shall not be deemed to be exclusive. The Corporation is
hereby authorized to further indemnify its directors or officers in the
manner and to the extent set forth in (i) a resolution of the shareholders,
(ii) a resolution of the directors, or (iii) an agreement providing for such
indemnification, so long as such indemnification shall not be expressly
prohibited by the provisions of the Business Corporation Law of New York.
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>
4.1(1) Specimen Common Stock Certificate
5.1 Opinion of Boylan, Brown, Code, Fowler, Vigdor & Wilson, L.L.P.
23.1 Independent Auditors' Consent--Bonadio & Co., L.L.P.
23.2 Independent Auditors' Consent--PricewaterhouseCoopers LLP
23.2 Consent of Boylan, Brown, Code, Fowler, Vigdor & Wilson is included in its Opinion
filed as Exhibit 5.1
24.1 Power of Attorney (included on page 18)
</TABLE>
- ------------------------
(1) Previously filed as Exhibit 3.1 to the Company's Registration Statement on
Form S-18, effective April 7, 1989 and incorporated herein by reference.
The remaining schedules have been omitted, either because they are not
applicable to the Registrant or because the information required has been shown
in the Financial Statements or in the notes thereto without making such
statement unclear or confusing.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the provisions described in Item 14 or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, unit 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 by the Act and will be governed by the final adjudication of
such issue.
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 material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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.
II-2
<PAGE>
(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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in 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.
II-3
<PAGE>
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 12th day of
November, 1998.
<TABLE>
<S> <C> <C>
HUDSON HOTELS CORPORATION
By: /s/ E. ANTHONY WILSON
-----------------------------------------
E. Anthony Wilson
CHAIRMAN OF THE BOARD, CHIEF EXECUTIVE
OFFICER, AND DIRECTOR
</TABLE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints E. Anthony Wilson and John M. Sabin, 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.
<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.
<TABLE>
<CAPTION>
NAME TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
/s/ E. ANTHONY WILSON Chairman of the Board,
- ------------------------------ Chief Executive Officer, November 12, 1998
E. Anthony Wilson and Director.
/s/ JOHN M. SABIN Executive Vice President
- ------------------------------ and Chief Financial November 12, 1998
John M. Sabin Officer
/s/ TARAS KOLCIO
- ------------------------------ Chief Accounting Officer November 12, 1998
Taras Kolcio and Controller
/s/ MICHAEL GEORGE
- ------------------------------ President and Director November 12, 1998
Michael George
/s/ RALPH L. PEEK
- ------------------------------ Vice President and November 12, 1998
Ralph L. Peek Director
/s/ ROBERT FAGENSON
- ------------------------------ Director November 12, 1998
Robert Fagenson
/s/ MICHAEL CAHILL
- ------------------------------ Director November 12, 1998
Michael Cahill
/s/ JOHN P. BUZA
- ------------------------------ Director November 12, 1998
John P. Buza
</TABLE>
<PAGE>
EXHIBIT 5.1
November 12, 1998
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 200,000 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
Alan S. Lockwood
ASL/slc
<PAGE>
EXHIBIT 23.1
We consent to the incorporation by reference in this Registration Statement on
Form S-3 (Registration No. 333 ) of our report dated March 28, 1997, on our
audit of the consolidated financial statements of Hudson Hotels Corporation as
of December 31, 1996, which report is included in the Form 10-KSB of Hudson
Hotels Corporation for the year ended December 31, 1997 and to the reference to
our firm under the caption "Experts."
/s/ BONADIO & CO., LLP
Rochester, New York
November 12, 1998
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
of Hudson Hotels Corporation on Form S-3 of our report dated February 27,
1998, of Hudson Hotels Corporation as of and for the year ended December 31,
1997 and our report dated March 22, 1997 on our audit of the financial
statements of HH Properties - I, a wholly-owned subsidiary of Hudson Hotel
Property Corporation as of December 31, 1996, and for the period November 15,
1996 through December 31, 1996, which reports are included in the Form 10K/A
of Hudson Hotels Corporation. We also consent to the reference of our firm
under the caption "Experts."
/s/ PricewaterhouseCoopers LLP
------------------------------
PRICEWATERHOUSECOOPERS LLP
Rochester, New York
November 13, 1998
