As filed with the Securities and Exchange Commission on December 21, 2004.
File No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MHI HOSPITALITY CORPORATION
(Exact Name of Issuer as Specified in its Charter)
| Maryland | 20-1531029 | |
(State or Other Jurisdiction of Incorporation or Organization) | (I.R.S. Employer Identification Number) |
814 Capitol Landing Road
Williamsburg, Virginia 23185
Telephone: (757) 229-5648
(Address, including zip code, and telephone number of Principal Executive Offices)
MHI Hospitality Corporation 2004 Long-Term Incentive Plan
(Full Title of the Plan)
The Corporation Trust Incorporated 300 East Lombard Street Baltimore, MD 21202 (410) 539-2837 (Name, address, including zip code, and telephone number, including area code, of agent for service) | Copy to: Thomas J. Egan, Jr. Esq. Baker & McKenzie LLP 815 Connecticut Avenue, NW Washington, DC 20006 (202) 452-7000 (202) 452-7074 (Telecopy) |
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered | Amount to be Registered | Proposed Maximum Offering Price Per Share | Proposed Maximum Aggregate Offering Price | Amount of Registration | ||||||||||
Common Stock, $0.01 par value | 350,000 | (1) | $ | 10.00 | (2) | $ | 3,500,000.00 | (2) | $ | 411.95 | ||||
| (1) | Includes an aggregate of 350,000 shares to be issued pursuant to the grant or exercise of awards under the MHI Hospitality 2004 Long-Term Incentive Plan (the “Plan”), including additional shares that may become issuable in accordance with the adjustment and anti-dilution provisions of such plan. |
| (2) | Estimated solely for the purpose of determining the registration fee pursuant to Rule 457(h), based upon an assumed price of $10.00 per share, which was the initial public offering price of the Company’s stock on December 17, 2004. |
PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
(a) The documents constituting Part I of this Registration Statement will be sent or given to participants in the Plan as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”).
(b) Upon written or oral request, the Company will provide, without charge, the documents incorporated by reference in Item 3 of Part II of this Registration Statement. The documents are incorporated by reference in the Section 10(a) prospectus. The Company will also provide, without charge, upon written or oral request, other documents required to be delivered to employees pursuant to Rule 428(b). Requests for the above-mentioned information should be directed to Andrew M. Sims at the address and telephone number on the cover of this Registration Statement.
PART II. INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”) are incorporated herein by reference and are deemed to be a part hereof from the date of the filing of such documents:
(1) The Company’s Prospectus dated December 16, 2004 and filed pursuant to Rule 424(b) under the Securities Act with the Commission on December 17, 2004;
(2) All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act since December 17, 2004;
(3) The description of Common Stock contained in the Company’s Registration Statement filed under Section 12 of the Exchange Act, including all amendments or reports filed for the purpose of updating such description;
(4) All other documents subsequently filed by the Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities that remain unsold.
Any statement contained in a document incorporated or deemed incorporated herein by reference shall be deemed to be modified or superseded for the purpose of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is, or is deemed to be, incorporated herein by reference 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.Not applicable.
Item 6. Indemnification of Directors and Officers.
Our charter limits the liability of our directors and officers for money damages to the maximum extent permitted by Maryland law.
Our charter authorizes us to obligate ourselves and our bylaws require us, to the maximum extent permitted by Maryland law, to indemnify, and to pay or reimburse reasonable expenses to, any of our present or former directors or officers or any individual who, while a director or officer and at our request, serves or has served another entity, employee benefit plan or any other enterprise as a trustee, director, officer, partner or otherwise. The indemnification covers any claim or liability against the person by reason of his or her status as a present or former director or officer.
Maryland law permits us to indemnify our present and former directors and officers against liabilities and reasonable expenses actually incurred by them in any proceeding unless it is established that:
| • | the act or omission of the director or officer was material to the matter giving rise to the proceeding; and |
| • | was committed in bad faith; or |
| • | was the result of active and deliberate dishonest; or |
| • | the director or officer actually received an improper personal benefit in money, property or services; or |
| • | in a criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. |
However, Maryland law prohibits us from indemnifying our present and former directors and officers for an adverse judgment in a derivative action. Maryland law requires us, as a condition to advancing expenses in certain circumstances, to obtain:
| • | a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification; and |
| • | a written undertaking by or on behalf of the director or officer to repay the amount reimbursed if the standard of conduct is not met. |
We have entered into indemnification agreements with our directors and executive officers that provide for indemnification of such persons to the fullest extent permitted under Maryland law.
The partnership agreement of our operating partnership provides for indemnification of officers, directors and employees of our operating partnership, as well as our indemnification, along with our employees, officers and directors.
Insofar as the foregoing provisions permit indemnification of directors, officers or persons controlling us for liability arising under the Securities Act, we have been informed that, in the opinion of the SEC, this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
We maintain a policy of directors and officers liability insurance covering certain liabilities incurred by its directors and officers in connection with the performance of their duties.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the registrant pursuant to the foregoing provisions, the registrant has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed. Not applicable.
Item 8. Exhibits.
See Exhibit Index, which is incorporated here by reference.
Item 9. Undertakings.
(a) The undersigned Company 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 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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum
offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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 in such information in the registration statement.
Provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) above do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(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 initialbona 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.
(b) The undersigned issuer hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (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 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 initialbona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Company pursuant to Item 6 of this Part II, 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 of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
(signatures on following page)
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 as amended, the Company 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 Williamsburg, Commonwealth of Virginia, on the 20th day of December, 2004.
| MHI Hospitality Corporation | ||
| By: | /s/ Andrew M. Sims | |
Andrew M. Sims President and Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated:
Signature | Title | Date | ||
/s/ Andrew M. Sims Andrew M. Sims | President, Chief Executive Officer and Director (Principal Executive Officer) | December 20, 2004 | ||
/s/ William J. Zaiser William J. Zaiser | Chief Financial Officer (Principal Financial and Principal Accounting Officer) | December 20, 2004 | ||
/s/ J. Paul Carey J. Paul Carey | Director | December 20, 2004 | ||
EXHIBIT INDEX
TO
FORM S-8
| 3.1 | Amended and Restated Articles of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Company’s Amendment No. 1 to Form S-11, Registration Number 333-118873) | |
| 4.2 | Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Company’s Form S-11, Registration Number 333-115213) | |
| 5 | Opinion of Venable LLP | |
| 23.1 | Consent of Venable LLP (included in Exhibit 5) | |
| 23.2 | Consent of Witt Mares & Company | |
| 99.1 | MHI Hospitality Corporation. 2004 Long-Term Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company’s Amendment No. 5 to Form S-11, Registration Number 333-118873) | |
