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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 2, 1997
REGISTRATION NO. 333-28849
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
RFS HOTEL INVESTORS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
TENNESSEE 62-1534743
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
</TABLE>
850 RIDGE LAKE BOULEVARD, SUITE 220
MEMPHIS, TENNESSEE 38120
(901) 767-7005
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
ROBERT M. SOLMSON
RFS HOTEL INVESTORS, INC.
850 RIDGE LAKE BOULEVARD, SUITE 220
MEMPHIS, TENNESSEE 38120
(901) 767-7005
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPY TO:
DAVID C. WRIGHT, ESQ.
HUNTON & WILLIAMS
2000 RIVERVIEW TOWER
900 S. GAY STREET
KNOXVILLE, TENNESSEE 37902
(423) 549-7700
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC; FROM TIME TO
TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT AS DETERMINED BY
MARKET CONDITIONS AND OTHER FACTORS.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(a), MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the offering are as follows:
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<S> <C>
Securities and Exchange Commission registration fee...........$ 13,772.73
Accounting fees and expenses.................................. 5,000.00
Legal fees and expenses....................................... 10,000.00
Printing...................................................... 3,000.00
Miscellaneous................................................. 6,227.27
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TOTAL............................................$ 40,000.00
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</TABLE>
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The Charter of the Company, generally, limits the liability of the
Company's directors and officers to the Company or its shareholders for money
damages to the fullest extent permitted from time to time by the laws of
Tennessee. The Charter also provides, generally, for the indemnification of
directors and officers, among others, against judgments, settlements, penalties,
fines, and reasonable expense actually incurred by them in connection with any
proceeding to which they may be made a party by reason of their service in those
or other capacities except in connection with a proceeding by or in the right of
the Company in which the director was adjudged liable to the Company or in
connection with any other proceeding, whether or not involving action in his
official capacity, in which he was adjudged liable on the basis that personal
benefit was improperly received by him. Insofar as indemnification for
liabilities arising under the Securities Act of 1933 (the "Securities Act") may
be permitted to directors and officers of the Company pursuant to the foregoing
provisions or otherwise, the Company has been advised that, in the opinion of
the Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act, and is, therefore, unenforceable.
The Company currently purchases director and officer liability insurance
for the purpose of providing a source of funds to pay any indemnification
described above.
ITEM 16. EXHIBITS.
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<S> <C> <C>
3.1 - Specimen Common Stock Certificate (filed as Exhibit 4.1 to the Company's Registration Statement on Form S-11
(Registration No. 33-63696) and incorporated by reference herein)
3.2 - Charter of RFS Hotel Investors, Inc. (filed as Exhibit 4.1 to the Company's Registration Statement on Form S-3
(Registration No. 333-3307) and incorporated by reference herein)
3.3 - Bylaws of RFS Hotel Investors, Inc. (filed as Exhibit 4.2 to the Company's Registration Statement
on Form S-3 (Registration No. 333-3307) and incorporated by reference herein)
4.1 - Fourth Amended and Restated Agreement of Limited Partnership of RFS Partnership, L.P. (filed as Exhibit 3.3(b)
to the Company's Annual Report on Form 10-K for the year ended December 31, 1996 (Registration No. 34-0-
22164) filed with the Commission on March 31, 1997 and incorporated by reference herein)
5.1* - Opinion of Hunton & Williams
8.1** - Opinion of Hunton & Williams as to certain tax matters
23.1* - Consent of Coopers & Lybrand, LLP
23.2* - Consent of KPMG Peat Marwick LLP
23.3* - Consent of Hunton & Williams (included in Exhibit 5.1)
24.1 - Power of Attorney (located on the signature page of this Registration Statement)
</TABLE>
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* Previously filed
** Filed herewith
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ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, a post-effective amendment to this
registration statement (i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any
facts or events arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in
the registration statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; provided, however, that the undertakings set forth in subparagraphs
(i) and (ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this registration statement;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
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 this registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof; and
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 under Item 15 above or
otherwise, the registrant has been advised that the in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted against the registrant by such director, officer
or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in the form of
prospectus filed by
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the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as of the time it
was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 2 to the Registration Statement on Form S-3
to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Memphis, State of Tennessee, on the 2nd day of July, 1997.
RFS HOTEL INVESTORS, INC.
a Tennessee corporation
(Registrant)
By: *
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Robert M. Solmson
Chairman of the Board and
Chief Executive Officer
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 2 to the Registration Statement has been signed on the 2nd day of
July, 1997 by the following persons in the capacities indicated.
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<CAPTION>
Signature Title
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<S> <C>
* Chairman of the Board and Chief Executive Officer
---------------------------- (Principal Executive Officer)
Robert M. Solmson
* President and Director
----------------------------
Minor W. Perkins
/s/ Michael J. Pascal Secretary and Treasurer (Principal Financial
---------------------------- Officer and Principal Accounting Officer)
Michael J. Pascal
* Director
----------------------------
Bruce E. Campbell
</TABLE>
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<TABLE>
<S> <C>
* Director
----------------------------
H. Lance Forsdick
* Director
----------------------------
R. Lee Jenkins
Director
----------------------------
Harry J. Phillips, Sr.
* Director
----------------------------
Michael S. Starnes
* Director
----------------------------
John W. Stokes, Jr.
By: /s/ Michael J. Pascal
----------------------------
Michael J. Pascal
(attorney-in-fact for
the persons indicated)
</TABLE>
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EXHIBIT INDEX
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<S> <C> <C>
3.1 - Specimen Common Stock Certificate (filed as Exhibit 4.1 to the Company's Registration Statement on Form S-11
(Registration No. 33-63696) and incorporated by reference herein)
3.2 - Charter of RFS Hotel Investors, Inc. (filed as Exhibit 4.1 to the Company's Registration Statement on Form S-3
(Registration No. 333-3307) and incorporated by reference herein)
3.3 - Bylaws of RFS Hotel Investors, Inc. (filed as Exhibit 4.2 to the Company's Registration Statement
on Form S-3 (Registration No. 333-3307) and incorporated by reference herein)
4.1 - Fourth Amended and Restated Agreement of Limited Partnership of RFS Partnership, L.P. (filed as Exhibit 3.3(b)
to the Company's Annual Report on Form 10-K for the year ended December 31, 1996 (Registration No. 34-0-
22164) filed with the Commission on March 31, 1997 and incorporated by reference herein)
5.1* - Opinion of Hunton & Williams
8.1** - Opinion of Hunton & Williams as to certain tax matters
23.1* - Consent of Coopers & Lybrand, L.L.P.
23.2* - Consent of KPMG Peat Marwick L.L.P.
23.3* - Consent of Hunton & Williams (included in Exhibit 5.1)
24.1* - Power of Attorney (located on the signature page of this Registration Statement)
</TABLE>
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* Previously filed.
** Filed herewith.
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July 2, 1997
RFS Hotel Investors, Inc.
850 Ridge Lake Boulevard, Suite 220
Memphis, Tennessee 38120
Ladies and Gentlemen:
We have acted as counsel to RFS Hotel Investors, Inc., a Tennessee
corporation (the "Company"), in connection with the preparation of a Form S-3
registration statement filed with the Securities and Exchange Commission ("SEC")
on June 10, 1997 (No. 333-28849), as amended through the date hereof (the
"Registration Statement"), with respect to (i) the possible issuance by the
Company of up to 2,244,934 shares ("Redemption Shares") of common stock, par
value $0.01 per share, of the Company (the "Common Stock") if, and to the extent
that, the current holders of 2,244,934 units of limited partnership interest
("Units") in RFS Partnership, L.P., a Tennessee limited partnership (the
"Operating Partnership"), tender such Units for redemption and the Company
elects to redeem the Units for shares of Common Stock, and (ii) the offer and
sale from time to time by certain shareholders named in the Registration
Statement (the "Selling Shareholders") of up to 324,675 shares ("Secondary
Shares") of Common Stock that may be issued to the Selling Shareholders upon the
redemption of their Units. You have requested our opinion regarding certain U.S.
federal income tax matters.
In connection with the opinions rendered below, we have examined the
following:
1. the Company's Second Restated Charter, as filed with the Secretary of
State of the State of Tennessee on January 31, 1995, as amended on June 27,
1996;
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RFS Hotel Investors, Inc.
July 2, 1997
Page 2
2. the Company's Bylaws;
3. the Fourth Amended and Restated Agreement of Limited Partnership of the
Operating Partnership, dated as of January 3, 1997 (the "Operating Partnership
Agreement"), among the Company, as general partner, and several limited
partners;
4. the Limited Partnership Agreement of RFS Financing Partnership, L.P., a
Tennessee limited partnership (the "Subsidiary Partnership"), dated October 4,
1996 (the "Subsidiary Partnership Agreement"), between RFS Financing
Corporation, as general partner, and the Operating Partnership, as limited
partner; and
5. the prospectus contained as a part of the Registration Statement (the
"Prospectus").
In connection with the opinions rendered below, we have assumed, with your
consent, generally that:
1. each of the documents referred to above has been duly authorized,
executed, and delivered; is authentic, if an original, or is accurate, if a
copy; and has not been amended;
2. during its taxable year ending December 31, 1997 and subsequent taxable
years, the Company has operated and will continue to operate in such a manner
that makes and will continue to make the representations contained in a
certificate, dated the date hereof and executed by a duly appointed officer of
the Company (the "Officer's Certificate"), true for such years;
3. the Company will not make any amendments to its organizational
documents, the Operating Partnership Agreement, or the Subsidiary Partnership
Agreement after the date of this opinion that would affect its qualification as
a real estate investment trust (a "REIT") for any taxable year;
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RFS Hotel Investors, Inc.
July 2, 1997
Page 3
4. each partner of the Operating Partnership and the Subsidiary Partnership
(each, a "Partner") that is a corporation or other entity has a valid legal
existence;
5. each Partner has full power, authority, and legal right to enter into
and to perform the terms of the Operating Partnership Agreement and the
Subsidiary Partnership Agreement and the transactions contemplated thereby;
6. no action will be taken by the Company, the Operating Partnership, the
Subsidiary Partnership, or the Partners after the date hereof that would have
the effect of altering the facts upon which the opinions set forth below are
based; and
7. each of the leases that the Company, the Operating Partnership, or the
Subsidiary Partnership has entered into, or will enter into, will be treated as
a true lease for U.S. federal income tax purposes.
In connection with the opinions rendered below, we also have relied upon
the correctness of the representations contained in the Officer's Certificate.
Based on the factual matters in the documents and assumptions set forth
above, the representations set forth in the Officer's Certificate, the
discussions in the Prospectus under the caption "Federal Income Tax
Considerations" (which are incorporated herein by reference), and without
further investigation as to such factual matters, we are of the opinion that:
(a) the Company qualified to be taxed as a REIT pursuant to sections 856
through 860 of the Internal Revenue Code of 1986, as amended (the "Code"),
for its taxable years ended December 31, 1993 through December 31, 1996,
and the Company's organization and current and proposed method of operation
will enable it to continue to qualify as a REIT for its taxable year ended
December 31, 1997, and in the future; and
(b) the descriptions of the law contained in the Prospectus under the
caption "Federal Income Tax Considerations" are correct in all material
respects, and the discussions thereunder fairly summarize the federal
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RFS Hotel Investors, Inc.
July 2, 1997
Page 4
income tax considerations that are likely to be material to a holder of the
Redemption Shares or Secondary Shares.
We have performed no due diligence and have made no efforts to verify the
accuracy and genuineness of the documents and assumptions set forth above, and
the representations set forth in the Officer's Certificate. We will not review
on a continuing basis the Company's compliance with such documents, assumptions
or representations. Accordingly, no assurance can be given that the actual
results of the Company's operations will satisfy the requirements for
qualification and taxation as a REIT.
The foregoing opinions are based on current provisions of the Code and the
Treasury regulations thereunder, published administrative interpretations
thereof, and published court decisions. The Internal Revenue Service has not
issued regulations or administrative interpretations with respect to various
provisions of the Code relating to REIT qualification. No assurance can be given
that the law will not change in a way that will prevent the Company from
qualifying as a REIT.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we are in
the category of persons whose consent is required by Section 7 of the Securities
Act of 1933, as amended, or the rules and regulations promulgated thereunder by
the SEC.
The foregoing opinions are limited to the U.S. federal income tax matters
addressed herein, and no other opinions are rendered with respect to other
federal tax or other matters or to any issues arising under the tax laws of any
other country, or any state or locality. We undertake no obligation to update
the opinions expressed herein after the date of this letter. This opinion letter
is solely for the information and use of the addressee, and it may not be
distributed, relied upon for any purpose by any other person, quoted in whole or
in part or otherwise reproduced in any document, or filed with any governmental
agency without our express written consent.
Very truly yours,
Hunton & Williams
