UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CHARTWELL LEISURE INC.
(Exact name of registrant as specified in its charter)
Delaware 22-3326054
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
605 Third Avenue, 23rd Floor
New York, New York 10158
(Address of principal executive offices) (Zip Code)
Chartwell Leisure Inc. 1994 Stock Option Plan
(Full title of the plan)
Richard L. Fisher
Chairman of the Board
and Chief Executive officer
605 Third Avenue, 23rd Floor
New York, New York 10158
(Name and address of agent for service)
(212) 692-1400
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================
Proposed maximum Proposed maximum Amount of
Amount to offering price per aggregate offering registration
Title of securities to be registered be registered share(1) price(1) fee(1)
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Common Stock, par value $.01 per share 60,000 $16.75 $1,005,000 $304.55
------------------------------------------------------------------------
90,000 9.875 888,750 269.32
------------------------------------------------------------------------
310,000 10.625 3,293,750 998.11
------------------------------------------------------------------------
975,000 13.25 12,918,750 3,914.77
------------------------------------------------------------------------
30,000 16.875 506,250 153.41
------------------------------------------------------------------------
200,000 16.00 3,200,000 969.70
------------------------------------------------------------------------
335,000 14.8125 4,962,187.50 1,503.69
- ----------------------------------------------------------------------------------------------------------------
Total 2,000,000 $8,113.55
================================================================================================================
</TABLE>
(1) Of the shares being registered, 60,000 shares are to be offered at a
price of $16.75, 90,000 shares are to be offered at a price of $9.875,
310,000 shares are to be offered at a price of $10.625, 975,000 shares
are to be offered at a price of $13.25, 30,000 shares are to be
offered at a price of $16.875, 200,000 shares are to be offered at a
price of $16.00 and 335,000 shares are to be offered at prices not
presently determinable. Pursuant to paragraphs (c) and (h) of Rule 457
of the Securities Act of 1933, as amended (the "Securities Act"), the
proposed maximum offering price per share of such 335,000 shares is
estimated solely for the purpose of determining the registration fee
and is based upon the average of the high and low prices per share of
the Registrant's Common Stock reported on The Nasdaq National Market
on October 29, 1996, within five business days prior to the date of
filing of this Registration Statement.
421311.2
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The documents containing the information specified in this Item
will be sent or given to employees who have been awarded options under the
Chartwell Leisure Inc. 1994 Stock Option Plan (the "Plan"), and are not being
filed with, or included in, this Registration Statement on Form S-8 (the
"Registration Statement") in accordance with the rules and regulations of the
Securities and Exchange Commission (the "Commission").
Item 2. Registration Information and Employee Plan Annual Information
The documents containing the information specified in this Item
will be sent or given to employees who have been awarded options under the Plan
and are not being filed with, or included in, this Registration Statement in
accordance with the rules and regulations of the Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents, which have been heretofore filed with the
Commission by CHARTWELL LEISURE INC., a Delaware corporation formerly known as
National Lodging Corp. formerly known as National Gaming Corp. (the
"Registrant"), are incorporated by reference in this Registration Statement:
(a) The Registrant's annual report on Form 10-K for the fiscal year
ended December 31, 1995 (File Number 0-24794) filed with the Commission on
April 1, 1996, as amended by the Registrant's annual report on Form 10-K/A
filed with the Commission on May 24, 1996, as amended by the Registrant's
annual report on Form 10-K/A filed with the Commission on July 3, 1996.
(b) (i) The Registrant's quarterly report on Form 10-Q for the
fiscal quarter ended March 31, 1996 filed with the Commission on May 15, 1996.
(ii) The Registrant's quarterly report on Form 10-Q for the
fiscal quarter ended June 30, 1996 filed with the Commission on August 8, 1996,
as amended by the Registrant's quarterly report on Form 10-Q/A filed with the
Commission on August 9, 1996.
(c) (i) The Registrant's current report on Form 8-K, dated January
23, 1996, filed with the Commission on February 7, 1996, as amended by the
Registrant's current report on Form 8-K/A filed with the Commission on April 2,
1996, as amended by the Registrant's current report on Form 8-K/A filed with
the Commission on July 3, 1996, as amended by the Registrant's current report
on Form 8-K/A filed with the Commission on July 9, 1996.
(ii) The Registrant's current report on Form 8-K, dated October
1, 1996, filed with the Commission on October 15, 1996.
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421311.2
<PAGE>
(d) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 10 filed with the Commission on
September 12, 1994 (File Number 0-24794) pursuant to Section 12(b) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as amended by
the Registrant's Amendment No. 1 to Registration Statement on Form 10/A filed
with the Commission on October 21, 1994, as amended by the Registrant's
Amendment No. 2 to Registration Statement on Form 10/A filed with the
Commission on November 2, 1994.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all such securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be part hereof from the
date of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is incorporated or deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Mr. Martin L. Edelman, President and a Director of the Registrant,
is also of Counsel to the law firm of Battle Fowler LLP which is rendering the
opinion regarding the legality of the securities being registered in this
Registration Statement. Mr. Edelman is an optionee under the Plan.
Item 6. Indemnification of Directors and Officers
The Registrant is a Delaware corporation. Reference is made to
Section 145 of the Delaware General Corporation Law, as amended (the "DGCL"),
which provides that a corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of such corporation),
by reason of the fact that such person is or was a director, officer, employee
or agent of the corporation, or is or was serving at its request in such
capacity of another corporation or business organization, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that such person's conduct was unlawful. A Delaware
corporation may indemnify officers and directors in an action by or in the
right of a corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action,
suit or proceeding referred to above, the corporation must indemnify against
the expenses (including attorneys' fees) that such officer or director actually
and reasonably incurred in connection therewith.
Reference is also made to Section 102(b)(7) of the DGCL, which
permits a corporation to provide in its certificate of incorporation that a
director of the corporation shall not be personally liable to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of
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421311.2
<PAGE>
the director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for any
transaction from which the director derived an improper personal benefit.
Articles Ninth and Tenth of the Registrant's Restated Certificate
of Incorporation provide for (i) the elimination of personal liability of a
director for breach of fiduciary duty to the fullest extent permitted by
Section 102(b)(7) of the DGCL, and (ii) the Registrant to indemnify its
directors and officers to the fullest extent permitted by Section 145 of the
DGCL.
Article Eight of the Registrant's Amended and Restated By-Laws
provides for indemnification of officers and directors for actions, suits, or
proceedings against such individuals by reason of the fact that such
individuals were directors or officers of the Registrant, or were directors or
officers of the Registrant serving at the request of the Registrant as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise. Furthermore, such
officers and directors shall be indemnified by the Registrant for any claim,
issue or matter to which such officers and directors have been adjudged to be
liable to the Registrant to the extent that a proper court has determined that
in view of the circumstances of the case, such officer or director is
reasonably entitled to indemnity.
The Registrant maintains, at its expense, a policy of insurance
which insures its directors and officers, subject to certain exclusions and
deductions as are customary in such insurance policies, against certain
liabilities which may be incurred in those capacities.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Chartwell Leisure Inc. 1994 Stock Option Plan
5.1 Opinion of Battle Fowler LLP regarding the legality of the
securities being registered
23.1(a) Consent of Deloitte & Touche LLP
23.1(b) Consent of Deloitte & Touche LLP
23.2 Consent of Battle Fowler LLP (contained in Exhibit 5.1)
23.3 Consent of Price Waterhouse LLP
24.1 Power of Attorney (contained in the signature pages hereto)
Item 9. Undertakings.
(a) The Registrant hereby undertakes:
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421311.2
<PAGE>
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
iii) 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(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 by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at 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 hereby which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
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421311.2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on this 31st day
of October, 1996.
CHARTWELL LEISURE INC.
By: /s/ Richard L. Fisher
Richard L. Fisher
Chairman of the Board and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard L. Fisher and Martin L. Edelman
his true and lawful attorney-in-fact and agents, each acting alone, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any or all amendments to this
Registration Statement, including post-effective amendments, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, and hereby ratifies and
confirms all his said attorneys-in-fact and agents, each acting alone, or his
substitute or substitutes may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
- -------------------------------------------------------------------------------
Name Title Date
- -------------------------------------------------------------------------------
/s/ Richard L. Fisher Chairman of the Board and October 31, 1996
- ---------------------
Richard L. Fisher Chief Executive Officer
(principal executive officer)
- -------------------------------------------------------------------------------
/s/ Martin L. Edelman Director and President October 31, 1996
- ---------------------
Martin L. Edelman
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421311.2
<PAGE>
- ------------------------------------------------------------------------------
Name Title Date
- ------------------------------------------------------------------------------
/s/ Kenneth Weber Chief Financial Officer October 31, 1996
- ---------------------- (principal financial
Kenneth Weber and accounting officer)
- ------------------------------------------------------------------------------
/s/ Henry R. Silverman Director October 31, 1996
- ----------------------
Henry R. Silverman
- ------------------------------------------------------------------------------
/s/ Guido Goldman Director October 31, 1996
- ----------------------
Guido Goldman
- ------------------------------------------------------------------------------
/s/ Stephen P. Holmes Director October 31, 1996
- ---------------------
Stephen P. Holmes
- ------------------------------------------------------------------------------
/s/ Michael J. Kennedy Director October 31, 1996
- ----------------------
Michael J. Kennedy
- ------------------------------------------------------------------------------
/s/ Rachel Robinson Director October 31, 1996
- ----------------------
Rachel Robinson
- ------------------------------------------------------------------------------
/s/ Marc E. Leland Director October 31, 1996
- ------------------
Marc E. Leland
- ------------------------------------------------------------------------------
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421311.2
<PAGE>
EXHIBIT INDEX
- ----------------------------------------------------------------------------
Exhibits
- ----------------------------------------------------------------------------
4.1 Chartwell Leisure Inc. 1994 Stock Option Plan
- ----------------------------------------------------------------------------
5.1 Opinion of Battle Fowler LLP regarding the legality of the
securities being registered
- ----------------------------------------------------------------------------
23.1(a) Consent of Deloitte & Touche LLP
- ----------------------------------------------------------------------------
23.1(b) Consent of Deloitte & Touche LLP
- ----------------------------------------------------------------------------
23.2 Consent of Battle Fowler LLP (contained in Exhibit 5.1)
- ----------------------------------------------------------------------------
23.3 Consent of Price Waterhouse LLP
- ----------------------------------------------------------------------------
24.1 Power of Attorney (contained in the signature page hereof)
- ----------------------------------------------------------------------------
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421311.2
EXHIBIT 4.1
CHARTWELL LEISURE INC.
1994 STOCK OPTION PLAN
1. Purpose. The purpose of the Plan is to provide additional incentive
to those officers, key employees, independent contractors and Non-Employee
Directors of the Company and its Subsidiaries whose substantial contributions
are essential to the growth and success of the Company's business in order to
strengthen their commitment to the Company and its Subsidiaries, and to attract
and retain competent and dedicated individuals whose efforts will result in the
long-term growth and profitability of the Company and to align the interests of
such officers, key employees, independent contractors and Non-Employee
Directors with the interests of stockholders of the Company. To accomplish such
purposes, the Plan provides that the Company may grant Incentive Stock Options
or Nonqualified Stock Options.
2. Definitions. For purposes of this Plan:
(a) "Agreement" means the written agreement between the Company
and an Optionee evidencing the grant of an Option, and setting forth the terms
and conditions thereof.
(b) "Board" means the Board of Directors of the Company.
(c) "Cause" means (i) the willful failure by the Optionee
substantially to perform his duties as an employee of the Company or a
Subsidiary (other than any such failure resulting from the Optionee's
incapacity due to physical or mental illness); (ii) any act of fraud,
misappropriation, dishonesty, embezzlement or similar conduct against the
Company or a Subsidiary; (iii) conviction of a felony or any crime involving
moral turpitude (which conviction, due to the passage of time or otherwise, is
not subject to further appeal); or (iv) cross negligence by the Optionee in the
performance of his duties. The Optionee's employment shall not be deemed to
have been terminated for Cause unless the Company or a Subsidiary shall have
given or delivered to the Optionee a notice of termination stating that, in the
good faith opinion of not less than a majority of the entire membership of the
Board or the Subsidiary's board of directors, the Optionee was guilty of the
conduct set forth in clause (i), (ii) or (iv) of the preceding definition of
Cause.
(d) "Change in Capitalization" means any increase, reduction, or
change or exchange of Shares for a different number or kind of shares or other
securities of the Company by reason of a reclassification, recapitalization,
merger, consolidation, reorganization, issuance of warrants or rights, dividend
or other distribution (whether in the form of cash, stock or other property),
stock split or reverse stock split, spin-off,
414769.1
<PAGE>
combination or exchange of shares, repurchase of shares, change
in corporate structure or otherwise.
(e) "Change-of-Control Transaction" means any transaction or
series of transactions pursuant to or as a result of which (i) during any
period of not more than 24 months, individuals who at the beginning of such
period constituted the Board, together with any new directors (other than
directors designated by a third party who has entered into an agreement to
effect a transaction of the type described in clause (ii), (iii) or (iv) of
this paragraph (e)) whose election by the Board or nomination for such election
was approved by a vote of at least a majority of the directors then still in
office who were directors at the beginning of such period or whose election or
nomination for election was previously so approved (other than approval given
in connection with an actual or threatened proxy or election contest), cease
for any reason to constitute at least a majority of the members of the Board;
(ii) beneficial ownership of 50% or more of the Shares (or other securities
having generally the right to vote for the election of members of the Board)
shall be acquired by, or sold, assigned or otherwise transferred to, directly
or indirectly (other than pursuant to a public offering), any third party or
Group, whether by sale or issuance of Shares or otherwise; (iii) the Company or
any Subsidiary shall sell, assign or otherwise transfer to any third party or
Group, directly or indirectly, assets (including stock or other securities of
Subsidiaries) having a fair market value, book value or earning power of 50% or
more of the assets of the Company and its Subsidiaries (taken as a whole); or
(iv) control of 50% or more of the business of the Company shall be acquired
by, or sold, assigned or otherwise transferred to, directly or indirectly, any
third party or Group.
(f) "Code" means the Internal Revenue Code of 1986, as amended.
(g) "Committee" means the Compensation Committee of the Board or
such other committee appointed by the Board to administer the Plan and to
perform the functions set forth herein.
(h) "Company" means Chartwell Leisure Inc., a Delaware
corporation.
(i) "Disability" means the inability, due to illness or injury,
to engage in any gainful occupation of which the individual is suited by
education, training or experience, which condition continues for at least six
(6) months.
(j) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(k) "Fair Market Value" means the fair market value of the
Shares as determined by the Committee in its sole discretion; provided,
however, that (i) if the Shares are admitted to trading on a national
securities exchange, Fair Market Value on any date shall be the last sale price
reported for the Shares on such exchange on such date or on the last date
preceding such date on which a sale was reported; (ii) if the Shares are
admitted to
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414769.1
<PAGE>
quotation on the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") or other comparable quotation system and have been designated
as a National Market System ("NMS") security, Fair Market Value on any date
shall be the last sale price reported for the Shares on such system on such
date or on the last day preceding such date on which a sale was reported; or
(iii) if the Shares are admitted to quotation on NASDAQ and have not been
designated a NMS security, Fair Market Value on any date shall be the average
of the highest bid and lowest asked prices of the Shares on such system on such
date.
(l) "Group" means two or more persons who agree to act together
for purposes of holding or acquiring securities, assets or control of NGC;
provided, however, that the shareholders of a publicly-held company that is
merged with or into NGC (or a subsidiary thereof) in a transaction approved by
the Board shall not be a Group with respect to any NGC securities received by
such shareholders in connection with such transaction.
(m) "Incentive Stock Option" means an Option within the meaning
of Section 422 of the Code.
(n) "Initial Director" means a Non-Employee Director of the
Company who is a member of the Board on the Effective Date (the "Effective
Date") of the transaction described in the Company's Registration Statement on
Form 10 pursuant to which the Shares are to be registered under Section 12(g)
of the Exchange Act.
(o) "Non-Employee Director" means a member of the Board who is
not also an officer or employee of the Company or its Subsidiaries.
(p) "Nonqualified Stock Option" means an Option which is not an
Incentive Stock Option.
(q) "Option" means an Incentive Stock Option, a Nonqualified
Stock Option, or either or both of them, as the context requires.
(r) "Optionee" means a person to whom an Option has been granted
under the Plan.
(s) "Parent" means any corporation in an unbroken chain of
corporations ending with the Company, if each of the corporations other than
the Company owns stock possessing 50% or more of the total combined voting
power of all classes of stock of one of the other corporations in such chain.
(t) "Participant" means any officer, key employee or independent
contractor of the Company or a Subsidiary designated by the Committee as
eligible to receive Options subject to the conditions set forth herein, and
shall also mean any Non-Employee Director.
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414769.1
<PAGE>
(u) "Plan" means the Chartwell Leisure Inc. 1994 Stock Option
Plan, as amended from time to time.
(v) "Rule 16b-3" means Rule 16b-3 promulgated under the Exchange
Act, or any successor thereto.
(w) "Securities Act" means the Securities Act of 1993, as
amended.
(x) "Shares" means the common stock, par value $.01 per share,
of the Company (including any new, additional or different stock or securities
resulting from a Change in Capitalization).
(y) "Subsequent Director" means a Non-Employee Director of the
Company who becomes a member of the Board (or with respect to directors who are
also employees of the Company, a director who becomes a Non-Employee Director)
subsequent to the Effective Date.
(z) "Subsidiary" means any corporation in an unbroken chain of
corporations, beginning with the Company, if each of the corporations other
than the last corporation in the unbroken chain owns stock possessing 50% or
more of the total combined voting power of all classes of stock in one of the
other corporations in such chain.
(aa) "Ten-Percent Stockholder" means a Participant, who, at the
time an Incentive Stock Option is to be granted to such Participant, owns
(within the meaning of Section 422(b)(6) of the Code) stock possessing more
than ten percent (10%) of the total combined voting power of all classes of
stock of the Company, a Parent or a Subsidiary within the meaning of Sections
422(e) and 422(f), respectively, of the Code.
3. Administration.
(a) The Plan shall be administered by the Committee which shall
hold meetings at such times as may be necessary for the proper administration
of the Plan. The Committee shall keep minutes of its meetings. A majority of
the Committee shall constitute a quorum and a majority of a quorum may
authorize any action. Any decision reduced to writing and signed by a majority
of the members of the Committee shall be fully effective as if it has been made
at a meeting duly held. No member of the Committee shall be personally liable
for any action, determination or interpretation made in good faith with respect
to the Plan or Options, and all members of the Committee shall be fully
indemnified by the Company with respect to any such action, determination or
interpretation. The Company shall pay all expenses incurred in the
administration of the Plan.
(b) Subject to the express terms and conditions set forth
herein, the Committee shall have the power from time to time:
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414769.1
<PAGE>
(i) to determine, with respect to Participants who are not
Non- Employee Directors, those Participants to whom Options shall be granted
under the Plan and the number of Nonqualified Options and/or Incentive Stock
Options to be granted to each Participant and to prescribe the terms and
conditions (which need not be identical) of each Option, including the purchase
price per share of each Option;
(ii) to construe and interpret the Plan and the Options
granted hereunder and to establish, amend and revoke rules and regulations for
the administration of the Plan, including, but not limited to, correcting any
defect or supplying any omission, or reconciling any inconsistency in the Plan
or in any Agreement, in the manner and to the extent it shall deem necessary or
advisable to make the Plan fully effective, and all decisions and
determinations by the Committee in the exercise of this power shall be final
and binding upon the Company or a Subsidiary, and the Optionees, as the case
may be;
(iii) to determine the duration and purposes for leaves of
absence which may be granted to an Optionee without constituting a termination
of employment or service for purposes of the Plan; and
(iv) generally, to exercise such powers and to perform such
acts as are deemed necessary or advisable to promote the best interests of the
Company with respect to the Plan; provided, however, that in no case, with
respect to Participants who are also Non-Employee Directors, may the Committee
take any action which would have the effect of deeming such Non-Employee
Directors to no longer be "disinterested persons" within the meaning of Rule
16b-3 under the Exchange Act.
4. Stock Subject to Plan.
(a) The maximum number of Shares that may be issued pursuant to
Options is 2,000,000 (or the number and kind of shares of stock or other
securities which are substituted for those Shares or to which those Shares are
adjusted upon a Change in Capitalization), and the Company shall reserve for
the purposes of the Plan, out of its authorized but unissued Shares or out of
Shares held in the Company's treasury, or partly out of each, such number of
Shares as shall be determined by the Board.
(b) No Participant may receive Options relating to Shares which
in the aggregate exceed 85% of the total number of Shares granted pursuant to
the Plan in any year.
(c) Whenever any outstanding Option or portion thereof expires,
is cancelled or is otherwise terminated (other than by exercise of the Option),
the Shares allocable to the unexercised portion of such Option may again be the
subject of Options hereunder.
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<PAGE>
5. Eligibility. Subject to the provisions of the Plan and with respect
to Participants who are not Non-Employee Directors, the Committee shall have
full and final authority to select those Participants who will receive Options;
provided, however, that no such Participant shall receive any Incentive Stock
Options unless such Participant is an employee of the Company or a Subsidiary
at the time the Incentive Stock Option is granted. Non-Employee Directors shall
be eligible for Options in accordance with Section 7 hereof.
6. Options. The Committee, pursuant to this Section 6, may grant
Options to Participants who are not Non-Employee Directors, the terms and
conditions of which shall be set forth in an Agreement. Each Option and
Agreement shall be subject to the following conditions:
(a) Purchase Price. The purchase price or the manner in which
the purchase price is to be determined for Shares under each Option shall be
set forth in the Agreement, provided that the purchase price per Share under
each Option shall not be less than 100% of the Fair Market Value of a Share at
the time the Option is granted (110% in the case of an Incentive Stock Option
granted to a Ten-Percent Stockholder).
(b) Duration. Options granted hereunder shall be for a ten (10)
year term or for such term as the Committee shall determine, provided that no
Option shall be exercisable after the expiration of ten (10) years from the
date it is granted (five (5) years in the case of an Incentive Stock Option
granted to a Ten-Percent Stockholder). The Committee may, subsequent to the
granting of any Option, extend the term thereof but in no event shall the term
as so extended exceed the maximum term provided for in the preceding sentence.
(c) Non-transferability. Except as otherwise permitted under
Rule 16b-3, no Option granted hereunder shall be transferable by the Optionee
to whom granted otherwise than by will or the laws of descent and distribution,
and an Option may be exercised during the lifetime of such Optionee only by the
Optionee or such Optionee's guardian or legal representative. The terms of such
Option shall be binding upon the beneficiaries, executors, administrators,
heirs and successors of the Optionee.
(d) Vesting. Subject to Section 6(e) hereof, unless otherwise
set forth in the Agreement, each Option shall become exercisable as to
one-third of the Shares covered by the Option on the first anniversary of the
date the Option was granted and as to an additional one-third of the Shares
covered by the Option on each of the following two (2) anniversaries of such
date of grant. To the extent not exercised, installments shall accumulate and
be exercisable, in whole or in part, at any time after becoming exercisable,
but not later than the date the Option expires. The Committee may accelerate
the exercisability of any Option or portion thereof at any time. Any portion of
an Option not exercisable upon termination of employment shall be forfeited
unless set forth herein or in an Optionee's Agreement.
-6-
414769.1
<PAGE>
(e) Accelerated Vesting. Notwithstanding the provisions of
subsection (d) above, each Option granted to an Optionee shall become
immediately exercisable in fall upon a Change-of-Control Transaction.
(f) Duration. Each Option shall be exercisable (to the extent
vested) in whole or in part from time to time during the term of the Option,
but shall, unless the Agreement provides otherwise, terminate upon the
following date if earlier than the term of the Option:
(i) the second anniversary of the termination of the Optionee's
employment by the Company or a Subsidiary (or service as an independent
contractor) as a result of the Optionee's death, Disability or retirement; or
(ii) the first anniversary of the termination of the Optionee's
employment by the Company or a Subsidiary (or service as an independent
contractor) for any reason other than the Optionee's death, Disability or
retirement.
Notwithstanding the foregoing, the Committee may provide, either
at the time an Option is granted or thereafter, that the Option may be
exercised after the periods provided for in this Section 6(f), but in no event
beyond the original term of the Option.
(g) Method of Exercise. The exercise of an Option shall be made
only by a written notice delivered in person or by mail to the Secretary of the
Company at the Company's principal executive office, specifying the number of
Shares to be purchased and accompanied by payment therefor and otherwise in
accordance with the Agreement pursuant to which the Option was granted. The
purchase price for any Shares purchased pursuant to the exercise of an Option
shall be paid in full upon such exercise in cash, by check, by a cashless
exercise procedure acceptable to the Secretary of the Company or by
transferring Shares to the Company on terms and conditions acceptable to the
Secretary of the Company. Any Shares transferred to the Company as payment of
the purchase price under an Option shall be valued at their Fair Market Value
on the day preceding the date of exercise of such Option. If requested by the
Committee, the Optionee shall deliver the Agreement evidencing the Option to
the Secretary of the Company who shall endorse thereon a notation of such
exercise and return such Agreement to the Optionee. Not less than 100 Shares
may be purchased at any time upon the exercise of an Option unless the number
of Shares so purchased constitutes the total number of Shares then purchasable
under the Option.
(h) Rights of Optionees. No Optionee shall be deemed for any
purpose to be the owner of any Shares subject to any Option unless and until
(1) the Option shall have been exercised pursuant to the terms thereof; (ii)
the Company shall have issued and delivered the Shares to the Optionee; and
(iii) the Optionee's name shall have been entered as a stockholder of record on
the books of the Company. Thereupon, the Optionee shall have full voting,
dividend and other ownership rights with respect to such Shares.
Notwithstanding anything in this Plan to the contrary, the Agreement evidencing
the Option
-7-
414769.1
<PAGE>
may contain such restrictions on the transfer of Shares received by an Optionee
pursuant to any exercise of such Option (or received in respect of Shares so
purchased) as may be determined by the Committee.
7. Non-Employee Directors' Formula Options. The provisions of this
Section 7 shall apply only to grants of Options to Non-Employee Directors. The
provisions of Section 6 shall also apply to grants of Options to Non-Employee
Directors to the extent not inconsistent with this Section 7. For purposes of
interpreting this Section 7, a NonEmployee Director's service as a member of
the Board shall be deemed to be employment with the Company.
(a) General. Non-Employee Directors shall receive Nonqualified
Stock Options under the Plan. The exercise price per share of Stock purchasable
under Options granted to Non-Employee Directors shall be the Fair Market Value
of a Share on the date of grant. No Option granted to a Non-Employee Director
may be subject to a discretionary acceleration of exercisability except upon a
Change-of-Control Transaction as defined in Section 2(f) hereof.
(b) Initial Grants to Initial Directors. On the Effective Date,
each Initial Director shall be granted automatically an Option to purchase
15,000 Shares.
(c) Initial Grants To Subsequent Directors. Each Subsequent
Director shall, on the date such director is elected or appointed as a member
of the Board, be granted automatically an Option to purchase 15,000 Shares.
(d) Subsequent Grants To Directors. On the first anniversary of
the date of their initial grant of Options, each Initial Director who shall
continue as a NonEmployee Director shall be granted automatically an Option to
purchase an additional 15,000 Shares. On the first anniversary of the election
or appointment of each Subsequent Director as a member of the Board, provided
such Subsequent Director continues as a Non-Employee Director, such Subsequent
Director shall be granted automatically an Option to purchase an additional
15,000 Shares.
(e) Exercisability. Each Option granted under this Section 7
shall be exercisable as to one-third of the Shares covered by the Option on
each of the first, second and third anniversaries of the date the Option is
granted. To the extent not exercised, installments shall accumulate and be
exercisable, in whole or in part, at any time after becoming exercisable, but
not later than the date the Option expires.
8. Adjustment Upon Changes in Capitalization.
(a) In the event of a Change in Capitalization, the Committee
shall conclusively determine the appropriate adjustments, if any, to the
maximum number and class of shares of stock with respect to which Options may
be granted under the Plan, the
-8-
414769.1
<PAGE>
number and class of shares of stock as to which Options have been granted under
the Plan, and the purchase price therefor, if applicable.
(b) Any such adjustment in the Shares or other securities
subject to outstanding Incentive Stock Options (including any adjustments in
the purchase price) shall be made in such manner as not to constitute a
modification as defined by Section 424(h)(3) of the Code and only to the extent
otherwise permitted by Sections 422 and 424 of the Code.
9. Release of Financial Information. A copy of the Company's annual
report to stockholders shall be delivered to each Optionee at the time such
report is distributed to the Company's stockholders. Upon request by any
Optionee, the Company shall furnish to such Optionee a copy of its most recent
annual report and each quarterly report and current report filed under the
Exchange Act, since the end of the Company's prior fiscal year.
10. Termination and Amendment of the Plan. The Plan shall terminate on
the tenth anniversary of the effective date of the Plan, as provided in Section
15 herein, except with respect to Options outstanding on such date, and no
Options may be granted thereafter. The Board may sooner terminate or amend the
Plan at any time, and from time to time; provided, however, that, except as
provided in Section 8 hereof, no amendment shall be effective unless approved
by the stockholders of the Company, where stockholder approval of such
amendment is required to comply with Rule 16b-3 or to comply with any other
law, regulation or stock exchange rule.
Except as provided in Section 8 hereof, rights and obligations under
any Option granted before any amendment of the Plan shall not be adversely
altered or impaired by such amendment, except with the consent of the Optionee.
11. Non-Exclusivity of the Plan. The adoption of the Plan by the Board
shall not be construed as amending, modifying or rescinding any previously
approved incentive arrangement or as creating any limitations on the power of
the Board to adopt such other incentive arrangements as it may deem desirable,
including, without limitation, the granting of stock options otherwise than
under the Plan, and such arrangements may be either applicable generally or
only in specific cases.
12. Limitation of Liability. As illustrative of the limitations of
liability of the Company, but not intended to be exhaustive thereof, nothing in
the Plan shall be construed to:
(a) give any person any right to be granted an Option other than
at the sole discretion of the Committee;
(b) give any person any rights whatsoever with respect to Shares
except as specifically provided in the Plan;
-9-
414769.1
<PAGE>
(c) limit in any way the right of the Company or its
Subsidiaries to terminate the employment of any person at any time; or
(d) be evidence of any agreement or understanding, expressed or
implied, that the Company or its Subsidiaries will employ any person in any
particular position, at any particular rate of compensation or for any
particular period of time.
13. Regulations and Other Approvals, Governing Law.
(a) This Plan and the rights of all persons claiming hereunder
shall be construed and determined in accordance with the laws of the State of
Delaware without giving effect to the choice of law principles thereof, except
to the extent that such law is preempted by Federal law.
(b) The obligation of the Company to sell or deliver Shares with
respect to Options granted under the Plan shall be subject to all applicable
laws, rules and regulations, including all applicable Federal and state
securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Committee.
(c) This Plan is intended to comply with the provisions of Rule
16b-3 and any provisions of the Plan inconsistent with Rule 16b-3 shall be
inoperative and shall not affect the validity of the Plan.
(d) Except as otherwise provided in Section 10, the Board may
make such changes as may be necessary or appropriate to comply with the rules
and regulations of any government authority or to obtain for Optionees granted
Incentive Stock Options, the tax benefits under the applicable provisions of
the Code and regulations promulgated thereunder.
(e) Each Option is subject to the requirement that, if at any
time the Committee determines, in its absolute discretion, that the listing,
registration or qualification of Shares issuable pursuant to the Plan is
required by any securities exchange or under any state or Federal law, or the
consent or approval of any governmental regulatory body is necessary or
desirable as a condition of, or in connection with, the grant of an Option or
the issuance of Shares, no Options shall be granted or payment made or Shares
issued, in whole or in part, unless listing registration, qualification,
consent or approval has been effected or obtained free of any conditions as
acceptable to the Committee.
(f) In the event that the disposition of Shares acquired
pursuant to the Plan is not covered by a then current registration statement
under the Securities Act and is not otherwise exempt from such registration,
such Shares shall be restricted against transfer to the extent required by the
Securities Act or regulations thereunder, and the Committee may require an
Optionee receiving Shares pursuant to the Plan, as a condition precedent to
-10-
414769.1
<PAGE>
receipt of such Shares, to represent to the Company in writing that the Shares
acquired by such Optionee are acquired for investment only and not with a view
to distribution.
14. Miscellaneous.
(a) Multiple Agreements. With respect to Participants who are
not also Non-Employee Directors, the terms of each Option may differ from other
Options granted under the Plan at the same time, or at any other time. With
respect to Participants who are not also Non-Employee Directors, the Committee
may grant more than one Option to a given Optionee during the term of the Plan,
either in addition to, or in substitution for, one or more Options previously
granted to that Optionee. The grant of multiple Options may be evidenced by a
single Agreement or multiple Agreements, as determined by the Committee.
(b) Withholding of Taxes. The Company shall have the right to
deduct from any payment of cash to any Optionee an amount equal to the Federal,
state and local income taxes and other amounts required by law to be withheld
with respect to any Option. Notwithstanding anything to the contrary contained
herein, if an Optionee is entitled to receive Shares upon exercise of an
Option, the Company shall have the right to require such Optionee, prior to the
delivery of such Shares, to pay to the Company the amount of any Federal, state
or local income taxes and other amounts which the Company is required by law to
withhold. To the extent provided in the applicable Agreement, such payment may
be made in cash, or in Shares (whether previously owned by the Optionee or
issuable upon the exercise of such Option) having a Fair Market Value equal to
such taxes, or in a combination of cash and Shares. The Agreement evidencing
any Incentive Stock Options granted under this Plan shall provide that if the
Optionee makes a disposition, within the meaning of Section 424(c) of the Code
and regulations promulgated thereunder, of any Share or Shares issued to such
Optionee pursuant to such Optionee's exercise of the Incentive Stock Option,
and such disposition occurs within the two-year period commencing on the day
after the date of grant of such Option or within the one-year period commencing
on the day after the date of transfer of the Share or Shares to the Optionee
pursuant to the exercise of such Option, such Optionee shall, within ten (10)
days of such disposition, notify the Company thereof and thereafter immediately
deliver to the Company any amount of Federal, state or local income taxes and
other amounts which the Company informs the Optionee the Company is required to
withhold.
(c) Designation of Beneficiary. Each Optionee may, with the
consent of the Committee, designate a person or persons to receive in the event
of such Optionee's death, any Option or any amount of Shares payable pursuant
thereto, to which such Optionee would then be entitled. Such designation will
be made upon forms supplied by and delivered to the Company and may be revoked
or changed in writing. In the event of the death of an Optionee and in the
absence of a beneficiary validly designated under the Plan who is living at the
time of such Optionee's death, the Company shall deliver such Options, and/or
amounts payable to the executor or administrator of the estate of the Optionee,
or if no such executor or administrator has been appointed (to the knowledge of
the Company), the
-11-
414769.1
<PAGE>
Company, in its discretion, may deliver such Options and/or amounts payable to
the spouse or to any one or more dependents or relatives of the Optionee, or if
no spouse, dependent or relative is known to the Company, then to such other
person as the Company may designate.
15. Effective Date. The effective date of the Plan shall be the
Effective Date.
-12-
414769.1
EXHIBIT 5.1
Opinion of Battle Fowler LLP regarding
the legality of the securities being registered
BATTLE FOWLER LLP
A LIMITED LIABILITY PARTNERSHIP
75 East 55th Street
New York, New York 10022
(212) 856-7000
October 31, 1996
Chartwell Leisure Inc.
605 Third Avenue, 23 Floor
New York, N.Y. 10158
Re: Chartwell Leisure Inc.
Registration Statement on Form S-8
Filed in Connection with the 1994 Stock Option Plan
Ladies and Gentlemen:
We have acted as counsel for Chartwell Leisure Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing of a
registration statement on Form S-8 (the "S-8 Registration Statement"), pursuant
to which the Company proposes to offer and sell up to 2,000,000 shares
("Employee Shares") of its common stock, par value $0.01 per share (the "Common
Stock"). You have requested that we furnish our opinion as to the matters
hereinafter set forth.
In this connection we have examined the following documents:
1. A copy of the Restated Certificate of Incorporation of the
Company, as certified by the Secretary of State of the
State of Delaware on September 26, 1996;
2. The By-Laws of the Company, as certified by the Secretary
of the Company;
3. The minute books of the Company, including the resolutions
of the Board of Directors of the Company (the "Board"),
dated November 18, 1994, (i) approving the adoption of the
Company's 1994 Stock Option Plan (the "Plan"), (ii)
reserving the Employee Shares for future issuance pursuant
to the Plan and (iii) authorizing, among other things, the
issuance of the
407175.1
<PAGE>
2
Chartwell Leisure Inc. October 31, 1996
Employee Shares pursuant to the Plan and the filing of the
S-8 Registration Statement;
4. The Plan;
5. The S-8 Registration Statement; and
6. Certificates or telegrams of public officials as to matters
set forth therein and certificates of representatives of
the Company as to matters set forth therein.
In rendering this opinion, we have assumed the capacity to sign
and the genuineness of all signatures of all persons executing agreements,
instruments or documents examined or relied upon by us, the authenticity of all
agreements, instruments or documents submitted to us as originals and the
conformity with the original agreements, instruments or documents of all
agreements, instruments or documents submitted to us as copies.
With respect to matters of fact, we have relied upon the written
statements and certificates of officers of the Company and certificates of
public officials. We have not independently verified the accuracy of the
matters set forth in the written statements or certificates upon which we have
relied, including the organization, existence, good standing, assets, business
or affairs of the Company, nor have we undertaken any lien, intellectual
property, suit or judgment searches or searches of court dockets in any
jurisdiction.
We are not admitted to the practice of law in any jurisdiction
but the State of New York, and we do not express any opinion as to the laws of
other states or jurisdictions other than the federal law of the United States
and the General Corporation Law of the State of Delaware. No opinion is
expressed as to the effect that the law of any other jurisdiction may have upon
the subject matter of the opinion expressed herein under conflicts of law
principles, rules and regulations or otherwise.
Except for the opinions set forth in the immediately following
paragraph, we express no opinions and no opinions should be implied.
Based upon and subject to the foregoing, we are of the opinion
that the Employee Shares have been duly authorized for issuance pursuant to the
Plan and, when issued and delivered against
407175.1
<PAGE>
3
Chartwell Leisure Inc. October 31, 1996
payment therefor and otherwise in the manner described in the Plan and in the
resolutions of the Board authorizing the same, will be validly issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to
the S-8 Registration Statement and to the use of the name of our firm therein.
In giving this consent, we do not admit that we are within the category of
persons whose consent is required by Section 7 of the Securities Act of 1933,
as amended.
Very truly yours,
/s/ BATTLE FOWLER LLP
Battle Fowler LLP
407175.1
EXHIBIT 23.1(a)
Consent of Deloitte & Touche LLP
INDEPENDENT AUDITORS' CONSENT
To the Board of Directors and
Shareholders of Chartwell Leisure Inc.
We consent to the incorporation by reference in this Registration Statement of
Chartwell Leisure Inc. (formerly National Lodging Corp.) on Form S-8 of our
report dated March 11, 1996 appearing in the Annual Report on Form 10-K of
Chartwell Leisure Inc. for the year ended December 31, 1995.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Parsippany, New Jersey
October 31, 1996
421195.1
EXHIBIT 23.1(b)
Consent of Deloitte & Touche LLP
INDEPENDENT AUDITORS' CONSENT
To the Board of Directors and
Shareholders of Chartwell Leisure Inc.
We consent to the incorporation by reference in this Registration Statement of
Chartwell Leisure Inc. (formerly National Lodging Corp.) on Form S-8 of our
report dated April 19, 1996 appearing in the Report on Form 8-K/A of Chartwell
Leisure Inc. on the financial statements of Travelodge/Thriftlodge for the
period from February 1, 1995 to January 23, 1996.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Parsippany, New Jersey
October 31, 1996
421085.1
EXHIBIT 23.3
Consent of Price Waterhouse LLP
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Chartwell Leisure Inc. (formerly National Lodging
Corp.) of our report dated February 20, 1996 relating to the financial
statements of the Acquired Business as of and for each of the two years in the
period ended January 31, 1995, which appears on page 8 of the Current Report on
Form 8-K/A of Chartwell Leisure Inc. (formerly National Lodging Corp.) dated
January 23, 1996, as amended, filed with the Securities and Exchange Commission
on July 9, 1996.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
San Diego, California
October 31, 1996
421454.1
