As filed with the Securities and Exchange Commission on January 15, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Prime Hospitality Corp.
(Exact name of registrant as specified in its charter)
Delaware 22-2640625
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
700 Route 46 East
Fairfield, New Jersey 07004
(973) 882-1010
(Address, including zip code, and
telephone number, including area code,
of principal executive offices)
Prime Hospitality Corp.
1995 Employee Stock Option Plan
Prime Hospitality Corp. 1995
Non-Employee Director Stock Option Plan
Homegate Hospitality, Inc. 1996
Long-Term Incentive Plan
(Full title of the plans)
Joseph Bernadino, Esq.
Senior Vice President, Secretary
and General Counsel
Prime Hospitality Corp.
700 Route 46 East
Fairfield, New Jersey 07004
(973) 882-1010
(Name, address and telephone number,
including area code, of agent for service)
COPY TO:
William N. Dye, Esq.
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, NY 10022
(212) 821-8000
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be regis- price offering registration
registered tered (1) per share (2) price (2) fee
- --------------------------------------------------------------------------------
Common Stock,
$0.01 par
value per share 2,384,431 $17.9375 $42,770,731.06 $12,617.37
(1) This Registration Statement covers the 1,895,000 additional shares
authorized to be issued under the Prime Hospitality Corp. 1995 Employee
Stock Option Plan, the 100,000 additional shares authorized to be issued
under the Prime Hospitality Corp. 1995 Non-Employee Director Stock Option
Plan, and 389,431 shares authorized to be issued pursuant to the exercise
of outstanding options under the Homegate Hospitality, Inc. 1996
Long-Term Incentive Plan (collectively, the "Plans").
(2) Estimated solely for calculating the amount of the registration fee,
pursuant to Rule 457(h) under the Securities Act of 1933, as amended
(the "Securities Act").
PART I
INFORMATION NOT REQUIRED
IN THE REGISTRATION STATEMENT
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and Exchange
Commission (the "Commission") by Prime Hospitality Corp., a Delaware corporation
(the "Company"), are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act");
(b) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1997, June 30, 1997 and September 30,
1997, pursuant to the Exchange Act;
(c) The Company's Current Reports on Form 8-K, filed on July 25,
1997, December 16, 1997 and December 24, 1997, pursuant to the
Exchange Act; and
(d) The description of the common stock of the Company, $0.01
par value per share (the "Common Stock") included in the
Company's Application for Registration on Form 8-A, dated June
5, 1992, as amended by the Company's Amendments to Application
or report on Form 8, dated July 9, 1992 and December 23, 1992,
respectively, pursuant to the Exchange Act.
In addition, all documents filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
subsequent to the date of this Registration Statement and prior to the filing of
a post-effective amendment which indicates that all the securities offered
hereby have been sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated herein by reference and to be a part hereof
from the date of the filing of such documents with the Commission.
2
Item 4. DESCRIPTION OF SECURITIES
Inapplicable
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby is
being passed upon for the Company by Willkie Farr & Gallagher. As of the date of
this Registration Statement, Jack H. Nusbaum, a partner of Willkie Farr &
Gallagher, is a non-employee director of the Company and is the beneficial owner
of 85,000 shares of Common Stock. Mr. Nusbaum will participate in the Prime
Hospitality Corp. 1995 Non-Employee Director Stock Option Plan to the same
degree as other non-employee directors of the Company.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL")
empowers a Delaware corporation to 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 such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. A
corporation may, in advance of the final action of any civil, criminal,
administrative or investigative action, suit or proceeding, pay the expenses
(including attorneys' fees) incurred by any officer, director, employee or agent
in defending such action, provided that the director or officer undertakes to
repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the corporation. A corporation may indemnify such
person 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 he or she acted in good faith
and in a manner he or she 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 his or her conduct was unlawful.
A Delaware corporation may indemnify officers and directors in an
action by or in the right of the corporation to procure a judgment in its favor
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 referred to above, the corporation must
indemnify him or her against the expenses (including attorneys' fees) which he
or she actually and reasonably incurred in connection therewith. The
indemnification provided is not deemed to be exclusive of any other rights to
which an officer or director may be entitled under any corporation's by-law,
agreement, vote or otherwise.
3
In accordance with Section 145 of the DGCL, Article 8 of the
Company's Restated Certificate of Incorporation (the "Restated Certificate") and
the Company's Restated By-Laws (the "By-Laws") provide that the Company shall
indemnify to the fullest extent permitted under and in accordance with the laws
of the State of Delaware 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 by reason of the fact
that he is or was a director, officer, employee or agent of the Company, or is
or was serving at the request of the Company as director, officer, trustee,
employee or agent of or in any other capacity with another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in, or not opposed to, the best interests of the Company, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The indemnification provided by the Restated Certificate
and the Restated By-Laws shall not be deemed exclusive of any other rights to
which any of those seeking indemnification or advancement of expenses may be
entitled under any other contract or agreement between the Company and any
officer, director, employee or agent of the Company. Expenses incurred in
defending a civil or criminal action, suit or proceeding shall (in the case of
any action, suit or proceeding against a director of the Company) or may (in the
case of any action, suit or proceeding against an officer, trustee, employee or
agent) be paid by the Company in advance of the final disposition of such
action, suit or proceeding as authorized by the Board of Directors of the
Company upon receipt of an undertaking by or on behalf of the indemnified person
to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Company. Subparagraph (d) of Article 8 of the
Restated Certificate provides that neither the amendment or repeal of, nor the
adoption of any provision inconsistent with, the above-referenced provisions of
the Restated Certificate shall eliminate or reduce the effect of such provisions
in respect of any matter occurring before such amendment, repeal or adoption of
an inconsistent provision or in respect of any cause of action, suit or claim
relating to any such matter which would have given rise to a right of
indemnification or right to receive expenses pursuant to such provisions if any
such provision had not been so amended or repealed or if a provision
inconsistent therewith had not been so adopted. Subparagraph (e) of Article 8 of
the Restated Certificate provides that a director of the Company shall not be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the Company 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 any amendment
thereto or successor provision thereto, or (iv) for any transaction from which
the director derived an improper personal benefit. If the DGCL is amended to
authorize corporate action further eliminating or limiting the
4
personal liability of directors, then the liability of a director of the Company
shall be eliminated or limited to the fullest extent permitted by the DGCL as so
amended.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable
Item 8. EXHIBITS
Exhibit No.
- -----------
4.1 Specimen certificate for shares of the Common Stock,
(incorporated by reference to the Company's Exchange Act
Registration Statement on Form 8-A, Registration
No. 1-6869, dated June 5, 1992, Exhibit 1(a)).
4.2 Copy of the Company's Certificate of Amendment of Restated
Certificate of Incorporation (incorporated by reference to the
Company's amendment to its Quarterly Report on Form 10-Q for the
quarter ended June 30, 1995, filed on Form 10-Q/A on May 1, 1996,
Exhibit 3.A).
4.3 Copy of the Company's Restated By-Laws (incorporated by reference
to the Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1992, Exhibit 3(f)).
5 Opinion of Willkie Farr & Gallagher, counsel to the Company, as
to the validity of the shares being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit 5).
24 Power of Attorney (reference is made to the signature page).
Item 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to the 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 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;
5
(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 paragraphs (a)(i) and (a)(ii) 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 Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(b) 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.
(c) 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.
2. The undersigned registrant 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
that is incorporated by reference in the Registration Statement shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
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 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 and will be governed by the final adjudication
of such issue.
6
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Fairfield, State of New Jersey, on the 9th day of
January, 1998.
PRIME HOSPITALITY CORP.
By: /s/ David A. Simon
------------------
David A. Simon
Chairman of the Board
President and Chief
Executive Officer
7
Each of the undersigned officers and directors of the Company
hereby constitutes and appoints Joseph Bernadino his true and lawful
attorney-in-fact, in any and all capacities, with full power of substitution, to
sign any further amendments to this Registration Statement (including
post-effective amendments), and to file the same with exhibits thereto and other
documents in connection therewith, with the Commission, granting unto said
attorney-in-fact full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ David A. Simon Chairman of the Board, January 9, 1998
- ------------------ President and Chief
David A. Simon Executive Officer
(principal executive
officer)
/s/ John M. Elwood Chief Financial Officer, January 9, 1998
- ------------------ Executive Vice President
John M. Elwood and Director (principal
financial officer and
principal accounting officer)
- ------------------ Director January __, 1998
Herbert Lust, II
- ------------------ Director January __, 1998
Jack H. Nusbaum
/s/ Allen J. Ostroff Director January 9, 1998
- --------------------
Allen J. Ostroff
/s/ Howard M. Lorber Director January 8, 1998
- --------------------
Howard M. Lorber
/s/ A.F. Petrocelli Director January 9, 1998
- -------------------
A.F. Petrocelli
8
INDEX TO EXHIBITS
Exhibit No.
- -----------
5 Opinion of Willkie Farr & Gallagher,
counsel to the Company, as to the
validity of the shares being
registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit
5).
24 Power of Attorney (reference is made to the signature
page).