As filed with the Securities and Exchange Commission on April 2, 2003
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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LODGIAN, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 52-2093696
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
3445 PEACHTREE ROAD, N.E. - SUITE 700
ATLANTA, GA 30326
(404) 364-9400
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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DAVID E. HAWTHORNE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
LODGIAN, INC.
3445 PEACHTREE ROAD, N.E. - SUITE 700
ATLANTA, GA 30326
(404) 364-9400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
Michael C. Ryan, Esq.
Cadwalader, Wickersham & Taft LLP
100 Maiden Lane
New York, New York 10038
(212) 504-6000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement.
If the only securities to be offered on this Form are being offered
pursuant to dividend or reinvestment plans, please check the following box. [_]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES REGISTERED AMOUNT TO PRICE PER AGGREGATE OFFERING AMOUNT OF
AND SOLD BY SELLING STOCKHOLDER BE REGISTERED(2) SHARE (1) PRICE (1) REGISTRATION FEE
- ------------------------------- ---------------- --------- --------- ----------------
Common Stock, par 3,848,804.00 $3.22 $12,393,148.88 $1,002.61
value $0.01 per
share (3)
Series A Preferred 2,108,659.00 $19.25 $40,591,666.50 $3,283.87
Stock, par value
$0.01 per share
Class A Warrants (3) 714,897.00 (3) (3) (3)
Class B Warrants (3) 142,580.00 (3) (3) (3)
Subtotal....................... $52,984,815.38 $4,286.48
=================================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act based on (a) the average
of the high and low sales prices per share of common stock as reported on
the American Stock Exchange on March 28, 2003 and (b) the previous closing
price of the preferred stock as reported on the American Stock Exchange on
March 20, 2003, as there have been no reported trading prices on the
preferred stock since that date.
(2) In the event of a stock split, stock dividend or similar transaction
involving the registrant's common stock, preferred stock, Class A Warrants
or Class B Warrants, in order to prevent dilution, the number of shares of
such securities registered shall automatically increase to cover the
additional shares in accordance with Rule 416 under the Securities Act.
(3) Pursuant to Rule 457(g) under the Securities Act, no separate registration
fee is required for the securities to be issued upon the exercise of the
Class A Warrants and Class B Warrants.
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 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
2
THE INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
YOU SHOULD ONLY RELY ON THE INFORMATION PROVIDED IN THIS PROSPECTUS OR
INCORPORATED BY REFERENCE HEREIN OR IN ANY SUPPLEMENT TO THIS PROSPECTUS. THE
COMPANY HAS NOT AUTHORIZED ANYONE ELSE TO PROVIDE YOU WITH DIFFERENT
INFORMATION. THESE SECURITIES ARE NOT BEING OFFERED IN ANY STATE WHERE THE OFFER
IS NOT PERMITTED. YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS
OR ANY SUPPLEMENT TO THIS PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER THAN THE
DATE ON THE FRONT OF THOSE DOCUMENTS.
SUBJECT TO COMPLETION, DATED APRIL 2, 2003
PROSPECTUS
LODGIAN, INC.
3,848,804.00 SHARES OF COMMON STOCK
2,108,659.00 SHARES OF SERIES A PREFERRED STOCK
714,897.00 CLASS A WARRANTS
142,580.00 CLASS B WARRANTS
The stockholders identified (the "Selling Stockholders") in this
prospectus (the "Prospectus") are offering to sell (a) up to 2,991,327.00 shares
of common stock (the "Common Stock") of Lodgian, Inc. (the "Company"), (b) up to
2,108,659.00 shares of Series A Preferred Stock of the Company (the "Preferred
Stock"), (c) up to 714,897.00 Class A Warrants of the Company (the "Class A
Warrants"), (d) up to 142,580.00 Class B Warrants of the Company (the "Class B
Warrants") and (e) up to 857,477.00 shares of Common Stock, which may be
purchased by the Selling Stockholders upon exercise of the Class A Warrants and
Class B Warrants (also "Common Stock" and, together with the Preferred Stock,
Class A Warrants and Class B Warrants, the "Securities"). The Selling
Stockholders acquired the Securities (with the exception of 857,477.00 shares of
Common Stock, which represent the number of shares of Common Stock which may be
acquired upon exercise of the Class A Warrants and Class B Warrants) on or after
November 25, 2002 in connection with the consummation of the Joint Plan of
Reorganization. Pursuant to a Registration Rights Agreement between the Company
and the Selling Stockholders, dated November 25, 2002 (the "Registration Rights
Agreement"), the Company agreed to register the Securities acquired by the
Selling Stockholders in connection with the Joint Plan of Reorganization.
The Selling Stockholders may sell the Securities from time to time in
public transactions or in privately negotiated transactions and, without
limitation, through any means described in the section hereof entitled "Plan of
Distribution", at market prices prevailing at the time of sale or at negotiated
prices. The timing and amount of any sale are within the sole discretion of the
Selling Stockholders.
The Selling Stockholders will receive all of the net proceeds from the
sales of the Securities. These stockholders will pay all underwriting discounts
and selling commissions, if any, applicable to the sale of the Securities. The
Company will not receive any proceeds from the sale of the Securities.
The Selling Stockholders and participating brokers or dealers may be
deemed to be "underwriters" within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"), in which event any profit on the sale of the
Securities by those Selling Stockholders and any commissions or discounts
received by those brokers or dealers may be deemed to be underwriting
compensation under the Securities Act.
Lodgian, Inc.'s common stock and Series A Preferred Stock are listed on
the American Stock Exchange under the symbols "LGN" and "LGN.PR", respectively.
The closing price of the Company's common stock as reported on the American
Stock Exchange on March 28, 2003 was $3.21 and the closing price of the
Company's Series A Preferred Stock as reported on the American Stock Exchange on
March 21, 2003 was $19.25. The Class A Warrants and Class B Warrants are not
currently traded on any market.
YOU SHOULD READ THIS PROSPECTUS AND ANY SUPPLEMENTS CAREFULLY BEFORE YOU
INVEST. THE COMPANY STRONGLY RECOMMENDS THAT YOU READ CAREFULLY THE RISKS IT
DESCRIBES IN THIS PROSPECTUS AS WELL AS ANY ACCOMPANYING PROSPECTUS SUPPLEMENTS,
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AS WELL AS THE RISK FACTORS IN ITS MOST CURRENT REPORTS TO THE SECURITIES AND
EXCHANGE COMMISSION, FOR A FULLER UNDERSTANDING OF THE RISKS AND UNCERTAINTIES
THAT THE COMPANY FACES. SEE THE "RISK FACTORS" SECTION OF THIS PROSPECTUS
BEGINNING ON PAGE 3.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS APRIL 2, 2003
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THE INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
YOU SHOULD ONLY RELY ON THE INFORMATION PROVIDED IN THIS PROSPECTUS OR
INCORPORATED BY REFERENCE HEREIN OR IN ANY SUPPLEMENT TO THIS PROSPECTUS. THE
COMPANY HAS NOT AUTHORIZED ANYONE ELSE TO PROVIDE YOU WITH DIFFERENT
INFORMATION. THESE SECURITIES ARE NOT BEING OFFERED IN ANY STATE WHERE THE OFFER
IS NOT PERMITTED. YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS
OR ANY SUPPLEMENT TO THIS PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER THAN THE
DATE ON THE FRONT OF THOSE DOCUMENTS.
TABLE OF CONTENTS
About This Prospectus........................................................1
Where You Can Find More Information..........................................1
Forward-Looking Information..................................................1
The Company..................................................................2
Recent Events................................................................2
Risk Factors.................................................................2
Ratio Information............................................................5
Use of Proceeds..............................................................6
Selling Stockholders.........................................................7
Plan of Distribution.........................................................8
Legal Matters................................................................9
Experts.....................................................................10
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ABOUT THIS PROSPECTUS
This Prospectus is part of a registration statement (the "Registration
Statement") that the Company filed with the Securities and Exchange Commission
("SEC") utilizing a "shelf" registration process. You should read both this
Prospectus and any prospectus supplement together with additional information
described immediately below under the heading "Where You Can Find More
Information."
WHERE YOU CAN FIND MORE INFORMATION
The Company files annual, quarterly and other reports, proxy statements
and other documents with the SEC. You may read and copy any document the Company
files at the SEC's public reference room at Judiciary Plaza Building, 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549. You should call 1-800-SEC-0330
for more information on the public reference room. The Company's SEC filings are
also available to you on the SEC's Web site at http://www.sec.gov.
This Prospectus is part of the Registration Statement and does not contain
all of the information included in the Registration Statement. Whenever a
reference is made in this Prospectus to any contract or other document of the
Company's, you should refer to the exhibits that are a part of the Registration
Statement or the prospectus supplement for a copy of the referenced contract or
document.
The SEC allows the Company to "incorporate by reference" into this
Prospectus information that the Company files with the SEC in other documents.
This means that the Company can disclose important information to you by
referring to other documents that contain that information. The information
incorporated by reference is an important part of this Prospectus, and
information that the Company files with the SEC in the future and incorporates
by reference will automatically update and may supersede the information
contained in this Prospectus. The Company incorporates by reference the
following documents:
o The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2002;
o The Company's Current Report on Form 8-K filed with the SEC on
January 28, 2003; and
o The description of the Company's common stock, Series A
Preferred Stock, Class A Warrants and Class B Warrants
contained in its registration statement on Form 8-A filed with
the SEC on November 26, 2002, including any amendments or
reports filed for the purpose of updating such descriptions.
All documents that the Company will file with the SEC under the provisions
of Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") after the date of this Prospectus and prior to the
termination of any offering of Securities under this Prospectus shall be deemed
to be incorporated by reference and to be a part of this Prospectus from the
date such documents are filed.
The Company will provide to you without charge, a copy of any or all
documents incorporated by reference into this Prospectus except the exhibits to
those documents (unless they are specifically incorporated by reference in those
documents). You may request copies by contacting: Daniel E. Ellis, Lodgian,
Inc., 3445 Peachtree Road, N.E.-Suite 700, Atlanta, Georgia 30326, telephone
number (404) 364-9400.
FORWARD-LOOKING INFORMATION
This Prospectus contains a number of statements about the future. These
statements are "forward-looking statements" within the meaning of Section 27A of
the Securities Act of 1933 and Section 21E of the Exchange Act. These include
managements' expectations, statements that describe anticipated revenues,
capital expenditures and other financial items, statements that describe the
Company's business plans and objectives, and statements that describe the
expected impact of competition, government regulation, litigation and other
factors on the Company's future financial condition and results of operations.
The words "may", "should", "expect", "believe", "anticipate", "project",
"estimate", and similar expressions are intended to identify forward-looking
statements. Certain factors
are not within the Company's control and hence readers are cautioned not to put
undue reliance on forward looking statements.
THE COMPANY
The Company (also referred to herein as "Lodgian") is one of the largest
owners and operators of full-service hotels in the United States. At March 24,
2003, Lodgian managed a portfolio of 97 hotels (18,265 rooms located in 30
states and Canada). The portfolio included 92 hotels which were wholly-owned,
four in which the Company had a 50% or greater equity interest and one in which
the Company had a minority equity interest. All of the hotels are owned in
separate operating subsidiaries or other legal entities.
Lodgian's hotels are primarily full-service properties which offer food
and beverage services, meeting space and banquet facilities and compete in the
mid-price and upscale segments of the lodging industry. Lodgian believes that
these segments have more consistent demand generators than other segments of the
lodging industry and have recently experienced less development of new
properties than other lodging segments, such as limited service, economy and
budget segments.
Of the Company's 97 hotel portfolio, 82 are Crowne Plaza, Holiday Inn and
Marriott brand hotels while eight are affiliated with four other nationally
recognized hospitality franchises. The Company's strong brand affiliations bring
many benefits in terms of guest loyalty and market share premiums.
RECENT EVENTS
Lodgian is a successor to Servico, Inc. ("Servico") as a result of
Servico's merger (the "Merger") with Impac Hotel Group, LLC ("Impac"), a
privately-owned management and development company. Servico was incorporated in
1956 under the laws of the State of Delaware. The Merger was completed on
December 11, 1998 and was accounted for under the purchase method of accounting.
At the time of the Merger, the Company's portfolio included 142 owned
hotels. At the end of 1999, the Company adopted a strategic plan to reduce the
size of its hotel portfolio and, in 2000, adopted a strategic plan to reduce the
Company's debt. As a result of these strategies, at the end of December 31,
2000, the Company's portfolio of owned hotels stood at 112.
The Company's heavy debt load, the weaker U.S. economy, the decline in
travel in the aftermath of the terrorist attacks on September 11, 2001 and
impaired availability of funds for maintaining the quality of the Company's
hotels combined to place adverse pressure on the Company's cash flows and
liquidity. As a result, on December 20, 2001, the Company and substantially all
of its subsidiaries which owned hotel properties filed for voluntary
reorganization under Chapter 11 of the Bankruptcy Code. At the time of the
filing, the Company's portfolio included 106 hotel properties.
Less than one year later, at a Confirmation Hearing held on November 5,
2002, the Bankruptcy Court confirmed the Company's First Amended Joint Plan of
Reorganization (the "Joint Plan of Reorganization") and, on November 25, 2002,
the Company and entities owning 78 hotels officially emerged from Chapter 11.
Pursuant to the terms of the Joint Plan of Reorganization, eight other
wholly-owned hotels were returned to the lenders in January 2003 in satisfaction
of outstanding debt obligations and one hotel was returned to the lessor of a
capital lease.
Of the Company's 97 hotel portfolio, 18 hotels are owned by two
subsidiaries (the "Impac Debtors") which were not part of the Joint Plan of
Reorganization and remain in Chapter 11 (the "Impac Hotels"). The Impac Hotels
represent approximately 19% of the Company's total hotel properties, and 14% of
the Company's total hotel rooms as of March 24, 2003. The Impac Hotels
contributed approximately 11.7% of the revenues from the 105 properties
comprising the Company's 2002 revenues. All of the Impac Hotels received
financing prior to the bankruptcy filing from one lender which has a claim of
$109.0 million against the Impac Debtors secured by the Impac Hotels. The
Company and the Impac Debtors have reached an agreement with such lender which
provides for a release of the hotel collateral in exchange for the payment by
the Impac Debtors of an agreed amount (the "Impac Settlement Amount") by a date
no later than May 31, 2003. If the agreed amount is not paid by May 31, 2003,
the Impac
2
Hotels will be returned to the lender in satisfaction of outstanding mortgage
obligations. On March 3, 2003, the Impac Debtors filed a separate plan of
reorganization (the "Impac Plan of Reorganization") pursuant to the terms of
which the Company and the Impac Debtors, through 18 newly-formed subsidiaries,
would obtain financing from Lehman Brothers Holdings Inc. (the "Lehman
Financing"), which would be used to pay the Impac Settlement Amount. Although
there can be no assurance, the Company is hopeful that the Impac Plan of
Reorganization will be approved and the Lehman Financing successfully completed
and, accordingly, that the Company will be able to retain the Impac Hotels.
RISK FACTORS
THE VALUE OF HOTELS AND THE SUCCESSFUL REPAYMENT OF MORTGAGE LOANS ARE DEPENDENT
UPON THE SUCCESSFUL OPERATION OF THE HOTELS.
The value of hotels is heavily dependent on the cash flows generated by
the hotels. If cash flow declines, the hotel values could suffer impairment and
the ability to repay the related debt could also be adversely impacted. Factors
affecting the performance of hotels include, but are not limited to,
construction of a competing hotel, loss of franchise affiliations, the need for
renovations, deterioration in hotel management, changes in travel patterns and
adverse economic conditions.
THE COMPANY'S REVENUE GENERATING CAPABILITIES ARE DEPENDENT ON ITS ABILITY TO
RETAIN ITS FRANCHISE AFFILIATIONS.
Management believes that Lodgian's strong brand affiliations bring many
benefits in terms of guest loyalty and market share premiums. With 80% of the
Company's portfolio comprised of Crowne Plaza, Holiday Inn and Marriott brand
hotels, the Company is able to take advantage of superior brand equity, quality
standards and reservation contributions. The Company's hotels also benefit from
franchisors' central reservation offices, their global distribution systems and
brand internet booking sites. These together contribute approximately 30% of the
Company's total reservations for these brands.
The Company is subject to certain property maintenance and quality
standard compliance requirements under its franchise agreements. The Company
periodically receives notifications from its franchisors of events of
noncompliance with such agreements. In selected situations, as warranted, based
on economic evaluations, management may elect to not comply with the franchisor
requirements. In such situations, the Company will either select an alternative
franchisor or operate the property independent of any franchisor.
INTEREST RATE INCREASES WILL INCREASE THE COST OF CURRENT AND FUTURE DEBT.
A significant portion of the Company's indebtedness is subject to
adjustable interest rates and is secured by a substantial number of its
operating assets. The Company anticipates that its future borrowings will be at
interest rates which adjust with certain indices. Therefore, the cost of
financing will vary subject to events which are beyond the Company's control.
While interest rates have declined markedly in the past year, changes in
economic conditions could result in higher interest rates which could increase
debt service requirements on floating rate debt and could reduce cash available
for distribution. Adverse economic conditions could also cause the terms on
which borrowings are available to be unfavorable. In those circumstances, if the
Company needed capital to repay indebtedness, it could be required to sell one
or more of its hotels which could result in lower than optimum return on its
investments.
ENVIRONMENTAL, STATE AND FEDERAL REGULATIONS COULD ADVERSELY AFFECT THE
COMPANY'S OPERATIONS.
The Company's hotels are subject to certain federal, state and local
regulations which require the Company to obtain and maintain various licenses
and permits. All such licenses and permits must be periodically renewed and may
be revoked or suspended for cause at any time. Certain of these licenses and
permits are material to the Company's business and the loss of such licenses
could have a material adverse effect on the Company's financial condition and
results of operations.
3
Lodgian is also subject to certain federal and state labor laws and
regulations such as minimum wage requirements, regulations relating to working
conditions, laws restricting the employment of illegal aliens and the Americans
with Disabilities Act. As a provider of restaurant services, the Company is also
subject to certain federal, state and local health laws and regulations. Lodgian
is also subject in certain states to dramshop statutes, which may give an
injured person the right to recover damages from any establishment which
wrongfully served alcoholic beverages to a person who, while intoxicated, caused
the injury.
Federal and state environmental regulations potentially impose cleanup
costs for hazardous waste contamination on property owners. If any material
hazardous waste contamination problems do exist on any of the Company's
properties, the Company may be exposed to liability for the costs associated
with the cleanup of such sites.
THE SELLING STOCKHOLDERS COULD EXERCISE SIGNIFICANT CONTROL OVER THE COMPANY AND
COULD SELL LARGE BLOCKS OF SECURITIES UNDER THIS PROSPECTUS.
The Selling Stockholders own, in the aggregate 44.76% of the Company's
outstanding common stock as of March 21, 2003. If the Selling Stockholders act
as a group, they could be in a position to significantly influence corporate
actions requiring shareholder approval including election of directors.
In addition, if the Selling Stockholders elect to sell large blocks of
Common Stock and Preferred Stock, this could have an adverse effect on the stock
price of these Securities.
THE PUBLIC MARKET FOR THE COMPANY'S NEW SECURITIES HAS EXISTED FOR A SHORT
TIME.
The public market for the new common and preferred stock was initiated by
listing on the American Stock Exchange ("AMEX") on January 28, 2003. There can
be no assurance that an active market will develop for the common and preferred
stock or that these market prices will be sustained.
THE COMPANY'S COMMON STOCK AND/ OR PREFERRED STOCK COULD BE DE-LISTED FROM THE
AMERICAN STOCK EXCHANGE IF THE LISTING STANDARDS ARE NOT MAINTAINED.
The rules of the AMEX allow the AMEX to de-list securities if it
determines that a company's securities fail to meet certain guidelines in
respect of corporate net worth, public float, number of shareholders, aggregate
market value of shares or price per share. The Company cannot assure purchasers
of the Common Stock and Preferred Stock that it will continue to meet these
requirements.
THE COMPANY DOES NOT HAVE EMPLOYMENT AGREEMENTS WITH ALL OF ITS KEY
MANAGEMENT.
The Company depends on the continuing efforts of its executives and senior
management. The departure of these individuals could adversely affect the
Company's business, particularly if the Company is not able to attract qualified
replacements.
4
A PROLONGED ECONOMIC DOWNTURN COULD HAVE AN ADVERSE EFFECT ON THE COMPANY
A weakening economy could continue to affect travel and lodging demand
which could adversely impact the Company's revenues and ultimately the value of
its properties.
THE COMPANY IS SELF INSURED IN RESPECT FOR CERTAIN TYPES OF INSURANCE.
The Company is self insured up to certain limits (deductibles) with
respect to employee medical, employee dental, property insurance, general
liability insurance, personal injury claims, workers' compensation and auto
liability. Should unanticipated events cause these claims to escalate beyond
normal expectations, the Company's financial condition and results of operations
could be adversely affected.
THE COMPANY MAY NOT BE ABLE TO RETAIN ALL OF THE HOTELS OWNED BY THE IMPAC
DEBTORS.
The Impac Debtors own 18 hotels of the Company's portfolio. All of the 18
properties owned by the Impac Debtors received financing from one lender prior
to the bankruptcy filing, and the Company and the Impac Debtors have reached an
agreement with such lender which provides for a release of the hotel collateral
in exchange for the payment by the Impac Settlement Amount by a date no later
than May 31, 2003. If the agreed amount is not paid by May 31, 2003, the 18
hotel properties will be returned to the lender in satisfaction of outstanding
mortgage obligations. If the Company is not able to retain these properties, the
Company may lose valuable assets and have fewer properties to contribute to
overhead.
COMPETITION IN THE LODGING INDUSTRY COULD HAVE A MATERIAL ADVERSE EFFECT ON THE
COMPANY'S BUSINESS AND RESULTS OF OPERATIONS.
The lodging industry is highly competitive. Competitive factors within the
industry include: room rates, quality of accommodations, name recognition,
service levels, reputation, amenities, reservation systems, convenience of
location, and the supply and availability of alternative lodging. Levels of
demand are dependent upon many factors including general and local economic
conditions and changes in levels of tourism and business-related travel. The
hotels depend upon both commercial and tourist travelers for revenues.
Generally, the hotels operate in areas that contain numerous other competitive
lodging facilities, including hotels associated with franchisors which may have
more extensive reservation systems.
Competition within the lodging market has increased substantially and may
increase in the foreseeable future. The Company cannot guarantee that new or
existing competitors will not significantly reduce their rates or offer greater
convenience, services or amenities or significantly expand or improve hotels in
the markets in which the Company currently or may subsequently compete, thereby
materially and adversely affecting the Company's business and results of
operations.
THE SHORT OPERATING HISTORY SINCE THE COMPANY'S EMERGENCE FROM CHAPTER 11 MAY BE
INSUFFICIENT TO EVALUATE THE COMPANY'S FINANCIAL CONDITION BASED ON THE
COMPANY'S FINANCIAL STATEMENTS.
The Company emerged from Chapter 11 protection on November 25, 2002 and
applied fresh start reporting effective November 22, 2002. The Successor's
financial statements included in the Form 10-K span the period November 23,
2002, to December 31, 2002. This short operating history may be insufficient to
evaluate the Company's financial condition and results of operations.
THE ONSET OF WAR AND TERRORIST ACTIVITY COULD HAVE A MATERIAL ADVERSE AFFECT ON
THE COMPANY'S FINANCIAL CONDITION AND RESULTS OF OPERATIONS.
The onset of war could further weaken the Company's financial condition
and results of operations which have already been weakened as a result of the
terrorist attacks that occurred on September 11, 2001 and the weakening in the
U.S. economy.
THE COMPANY WILL HAVE SIGNIFICANT POST-REORGANIZATION DEBT OBLIGATIONS.
Although the Company is substantially less leveraged as a result of the
voluntary reorganization, the Company cannot provide assurances that its
operating cash flows will be adequate to pay the principal and interest
5
payments under the post reorganization indebtedness when due, as well as to fund
all contemplated capital expenditures. The failure to make necessary capital
expenditures could have a material adverse effect on the ability of the Company
to remain competitive.
THE COMPANY WILL HAVE LIMITED ACCESS TO WORKING CAPITAL.
The Company is expected to require certain amounts of working capital.
While the Company anticipates that sufficient funds to meet its working capital
needs for the foreseeable future will be available from the cash generated by
the businesses of the reorganized Company and from the exit financing facility,
the ability of the Company to gain access to additional working capital, if
needed, cannot be assured, particularly in view of competitive factors, industry
conditions and the restrictive terms of the exit financing facility.
THE COMPANY MAY NOT BE ABLE TO MEET CERTAIN REQUIREMENTS IMPOSED BY ITS
FRANCHISORS AND THEREFORE COULD LOSE THE RIGHT TO OPERATE ONE OR MORE HOTELS
UNDER A NATIONAL FLAG.
The terms of the Company's franchise agreements require each hotel to meet
certain quality and guest satisfaction standards. In addition, as part of the
reorganization process, the Company entered into stipulations with each of its
major franchisors setting forth a timeline as to completion of certain capital
expenditures. There can be no assurance that the Company will have sufficient
liquidity to be able to meet its capital expenditure or other requirements and
could lose the right to operate certain hotels under nationally recognized brand
names. Furthermore, the termination of one or more franchise agreements could
trigger a default under certain loan agreements as well as obligations to pay
liquidated damages under the franchise agreements.
As of March 24, 2003, the Company was not in strict compliance with the terms of
eighteen of its franchise agreements and has received termination notices from
franchisors with respect to six of these eighteen properties. There can be no
assurance that the Company will be able to complete its action plans to cure the
alleged defaults prior to the specified termination dates or be granted
additional time in which to cure any defaults.
RATIO INFORMATION
The following table sets forth the historical ratios of earnings to fixed
charges for the periods indicated. The ratio of earnings to fixed charges has
been computed by dividing earnings before income taxes and preferred stock
dividends plus fixed charges before preferred stock dividends by the fixed
charges. This ratio includes the earnings and fixed charges of the Company and
its consolidated subsidiaries; fixed charges consist of interest and related
charges on debt, preferred stock dividends, and the portion of rentals for real
and personal properties in an amount considered to be representative of the
interest factor.
SUCCESSOR PREDECESSOR
------------ ----------------------------------------------------------
Nov 23 TO Jan 1 to
Dec 31, 2002 Nov 22, 2002 2001 2000 1999 1998
------------ ------------ ---- ---- ---- ----
Ratio of earnings to fixed charges -- 1.3 -- -- -- --
For the years ended December 31, 1998, 1999, 2000 and 2001 and for the period
November 23 to December 31, 2002, the Company's earnings were insufficient to
cover its combined fixed charges and preferred stock dividends by approximately
$7,903,000, $81,465,000, $117,425,000, $140,796,000 and $10,953,000,
respectively.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Securities offered in this Prospectus. All of the proceeds from the sale of the
Securities will be paid directly to the Selling Stockholders.
6
SELLING STOCKHOLDERS
The following table sets forth information with respect to the Selling
Stockholders whose Securities are covered by this Prospectus. The information
provided in the table below has been furnished to the Company by the Selling
Stockholders and other sources which the Company has not verified. The Company
calculated beneficial ownership according to Rule 13d-3 of the Exchange Act as
of the date of this Prospectus. The Company may update, amend or supplement this
Prospectus from time to time to update the disclosure in this section.
In connection with the Joint Plan of Reorganization, and due to the fact
that each of the Selling Stockholders may be deemed an "underwriter" (as defined
under Section 2(11) of the Securities Act) of the Company based on the
percentage of securities of the Company acquired through the Joint Plan of
Reorganization, the Company entered into the Registration Rights Agreement.
Pursuant to the Registration Rights Agreement, the Company agreed to file the
Registration Statement, of which this Prospectus is a part, in order to simplify
the process by which the Selling Stockholders may resell the Securities.
The Selling Stockholders may from time to time offer and sell any or all
of their Securities under this Prospectus. Due to the fact that the Selling
Stockholders are not obligated to sell their Securities, and because the Selling
Stockholders may also acquire the Company's publicly traded securities, the
Company cannot estimate how many Securities the Selling Stockholders will
beneficially own after this offering. If the Selling Stockholders sell all of
the Securities under this Prospectus and do not acquire any other of the
Company's securities, they will not own any substantial amount of the Company's
equity securities.
AMOUNT OF COMMON AMOUNT OF PREFERRED AMOUNT OF CLASS A AMOUNT OF CLASS B
STOCK BENEFICIALLY STOCK BENEFICIALLY WARRANTS WARRANTS
NAME OF SELLING OWNED PRIOR TO OWNED PRIOR TO BENEFICIALLY OWNED BENEFICIALLY OWNED
STOCKHOLDER OFFERING (1) OFFERING (1) PRIOR TO OFFERING (1) PRIOR TO OFFERING (1)
- ----------- ------------ ------------ --------------------- --------------------
OCM Real Estate Opportunities Fund II, L.P. (2) 1,578,611.00 1,332,365.00 0 0
- ------------------------------------------------------------------------------------------------------------------------------------
General Motors Trust Company (2) 86,141.42 72,704.30 0 0
- ------------------------------------------------------------------------------------------------------------------------------------
BRE/HY Funding, L.L.C. (3) 833,626.65 703,590.00 0 0
- ------------------------------------------------------------------------------------------------------------------------------------
Third Avenue Value Fund 439,629.60 0 637,571.80 127,159.30
- ------------------------------------------------------------------------------------------------------------------------------------
Third Avenue Real Estate Value Fund 31,000.00 0 44,957.70 8,966.50
- ------------------------------------------------------------------------------------------------------------------------------------
Third Avenue Portfolio of the 22,320.00 0 32,369.50 6,455.90
Aegon/Transamerica Series Fund, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL 2,991,328.67 2,108,659.30 714,899.00 142,581.70
- ------------------------------------------------------------------------------------------------------------------------------------
(1) The information contained in this table reflects "beneficial ownership" as
defined in Rule 13d-3 under the Securities Exchange Act of 1934.
(2) The Securities beneficially owned by OCM Real Estate Opportunities Fund
II, L.P. (the "OCM Fund") and General Motors Trust Company (the "Trust"),
which together represent 24.9% of the common stock of the Company (based
on a total of 6,682,667 shares outstanding as of March 27,2003) and 28.1%
of the Series A Preferred Stock of the Company (based on a total of
5,000,000 shares that became available for issuance under the Joint Plan
of Reorganization, substantially all of which are issued and outstanding
as of the date hereof), were acquired in connection with the Joint Plan of
Reorganization, pursuant to the claims of the OCM Fund and the Trust, as
beneficial owner of 12.25% Senior Subordinated Notes due 2009 issued by
Lodgian Financing Corp., and guaranteed by the Company and certain
affiliates of the Company that were debtors and debtors-in-possession in
Chapter 11 cases under the Bankruptcy Code. The general
7
partner of the OCM Fund, Oaktree Capital Management, LLC ("Oaktree") also
serves as the investment manager for the Trust.
Russel S. Bernard, a Principal of Oaktree and Sean Armstrong, a Managing
Director of Oaktree, serve as directors of the Company. Messrs. Bernard
and Armstrong disclaim beneficial ownership of any shares reported herein
by the OCM Fund or the Trust, except to the extent of any pecuniary
interests therein. Additionally, although Oaktree may be deemed to
beneficially own the shares reported by the OCM Fund or the Trust, by
virtue of Oaktree acting in the capacity as the general partner of the OCM
Fund and the investment manager of the Trust, Oaktree disclaims any
beneficial ownership of such shares, except to the extent of any pecuniary
interests therein.
(3) The Securities beneficially owned by BRE/HY Funding, L.L.C. ("BRE/HY"),
which represents 12.47% of common stock of the Company (based on a total
of 6,682,667 shares outstanding as of March 27,2003) and 14.07% of the
Series A Preferred Stock of the Company (based on a total of 5,000,000
shares that became available for issuance under the Joint Plan of
Reorganization, substantially all of which are issued and outstanding as
of the date hereof), were acquired in connection with the Joint Plan of
Reorganization, pursuant to its claim as beneficial owner of 12.25% Senior
Subordinated Notes due 2009 issued by Lodgian Financing Corp., and
guaranteed by the Company and certain affiliates of the Company that were
debtors and debtors-in-possession in Chapter 11 cases under the Bankruptcy
Code.
In addition to the acquisition of the Securities by BRE/HY, Jonathan D.
Gray, a Senior Managing Director of The Blackstone Group L.P. ("TBG") and
Kenneth A. Caplan, a Principal of TBG both serve as directors of the
Company.
PLAN OF DISTRIBUTION
The Company is registering the Securities on behalf of the Selling
Stockholders. As used herein, "Selling Stockholders" includes donees, pledgees,
transferees or other successors in interest selling Securities received from a
Selling Stockholder after the date of this Prospectus. The Company will receive
no proceeds from this offering.
Any Selling Stockholder may offer any of its Securities at various times
in one or more of the following transactions (which may include block
transactions): (i) in one or more exchanges or over-the-counter market
transactions; (ii) in private transactions other than exchange or
over-the-counter market transactions; (iii) through short sales, put and call
option or other derivative transactions, although neither the Company nor any of
the Selling Stockholders concedes that any such transactions would constitute a
sale of the Securities for purposes of the Securities Act; (iv) through
underwriters, brokers or dealers (who may act as agent or principal) who may
receive compensation in the form of underwriting discounts, concessions or
commissions from the Selling Stockholders and/or the purchasers of Securities
for whom they may act as agent or to whom they sell as principal, or both (which
compensation as to a particular underwriter, dealer or agent might be in excess
of customary commissions); (v) directly to one or more purchasers; (vi) through
agents; (vii) through distribution by a Selling Stockholder or its successor in
interest to its members, partners or shareholders; (viii) in negotiated
transactions; (ix) by pledge to secure debts and other obligations; or (x) in a
combination of such methods.
A Selling Stockholder also may resell all or a portion of its Securities
in open market transactions in reliance upon Rule 144 under the Securities Act
provided it meets the criteria and conforms to the requirements of Rule 144.
A Selling Stockholder may enter into hedging transactions with
broker-dealers or other financial institutions. In connection with such
transactions, broker-dealers or other financial institutions may engage in short
sales of the Securities in the course of hedging the positions they assume with
a Selling Stockholder. A Selling Stockholder may also enter into options or
other transactions with broker-dealers or other financial institutions which
require the delivery to such broker-dealer or their financial institution of the
Securities offered hereby, which Securities such broker-dealer or their
financial institution may resell pursuant to this prospectus (as supplemented or
amended to reflect such transaction).
8
A Selling Stockholder may offer and sell Securities other than for cash.
In such event, any required details of the transaction will be set forth in a
prospectus supplement.
The Selling Stockholders and any underwriters, dealers or agents that
participate in the distribution of Securities may be deemed to be underwriters,
and any profit on the sale of Securities by them and any discounts, commissions
or concessions received by any such underwriters, dealers or agents might be
deemed to be underwriting discounts and commissions under the Securities Act. If
the Company is advised that an underwriter has been engaged with respect to the
sale of any Securities offered hereby, or in the event of any other material
change in the plan of distribution, the Company will cause appropriate
amendments to the Registration Statement of which this Prospectus forms a part
to be filed with the SEC reflecting such engagement or other change. See "Where
You Can Find More Information."
At the time a particular offer of Securities is made, to the extent
required, a prospectus supplement will be provided by the Company and
distributed by the relevant Selling Stockholder which will set forth the
aggregate amount and type of the Securities being offered and the terms of the
offering, including the name or names of any underwriters, dealers or agents,
any discounts, commissions and other items constituting compensation from the
Selling Stockholders and any discount, commissions or concessions allowed or
reallowed or paid to dealers.
The Securities may be sold from time to time in one or more transactions
at a fixed offering price, which may be changed, or at market prices prevailing
at the time of the sale, at varying prices determined at the time of sale or at
negotiated prices. Such prices will be determined by the Selling Stockholders or
by agreement between the Selling Stockholders and underwriters or dealers.
Under applicable rules and regulations under the Exchange Act, any person
engaged in a distribution of Securities may not simultaneously engage in
market-making activities with respect to such Securities for a period of nine
business days prior to the commencement of such distribution and ending upon the
completion of such distribution. In addition to and without limiting the
foregoing, each Selling Stockholder will be subject to applicable provisions of
the Exchange Act and the rules and regulations thereunder, including without
limitation Regulation M, which provisions may limit the timing of purchases and
sales of any of the Securities by the Selling Stockholders. All of the foregoing
may affect the marketability of the Securities and the ability of any person or
entity to engage in market-making activities with respect to the Securities.
Pursuant to the Registration Rights Agreement, the Company is obligated to
pay all of the expenses incident to its performance of or compliance with the
terms of the Registration Rights Agreement, including, without limitation: (i)
all registration, filing and National Association of Securities Dealers fees and
expenses; (ii) all fees and expenses associated with compliance with federal
securities and state Blue Sky or securities laws; (iii) all expenses of printing
(including printing of certificates for the Common Stock, Preferred Stock, Class
A Warrants, Class B Warrants and the prospectuses), messenger and delivery
services and telephone; (iv) all fees and disbursements of counsel for the
Company and the Selling Stockholders, except to the extent otherwise provided in
the Registration Rights Agreement; (v) all application and filing fees in
connection with listing the Securities on a securities exchange pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company (including the expenses associated
with preparing any special audit and comfort letters required by or incident to
such performance or compliance). The Selling Stockholders will be responsible
for the expense of any broker's commission, agency fee or underwriter's discount
or commission in connection with the sale of the Securities.
The Selling Stockholders, and any underwriter they may utilize, and their
respective controlling person are entitled to be indemnified by the Company
against certain liabilities, including liabilities under the Securities Act.
LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon for the
Company by Cadwalader, Wickersham & Taft LLP.
9
EXPERTS
The consolidated financial statements as of December 31, 2002 (Successor
Company balance sheet), and for the period November 23, 2002 to December 31,
2002 (Successor Company operations), and the period January 1, 2002 to November
22, 2002, (Predecessor Company operations) incorporated in this Prospectus by
reference from the Company's Annual Report on Form 10-K for the year ended
December 31, 2002 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report, which is incorporated herein by reference,
and have been so incorporated in reliance upon the report of such firm, given
upon their authority as experts in accounting and auditing.
The consolidated financial statements incorporated by reference in this
Prospectus for fiscal 2001 and 2000 have been audited by Arthur Andersen LLP.
The Company has not been able to obtain, after reasonable efforts, the written
consent of Arthur Andersen LLP to its naming it as an expert and as having
audited the financial statements for fiscal 2001 and 2000 incorporated by
reference in this Prospectus. You may have no effective remedy against Arthur
Andersen LLP in connection with a material misstatement or omission in the
Company's 2001 or 2000 financial statements, particularly in the event that
Arthur Andersen LLP ceases to exist or becomes insolvent.
10
================================================================================
LODGIAN, INC.
----------
PROSPECTUS
----------
APRIL 2, 2003
================================================================================
11
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following statement sets forth the estimated expenses in connection
with the offering described in the Registration Statement (all of which will be
borne by us).
Securities and Exchange Commission Fee $4,286.48
Accountants' Fees and Expenses* 2,000.00
Legal Fees and Expenses* 10,000.00
TOTAL* $16,286.48
- ------------
* Estimated. Does not include fees that may be payable to an underwriter.
Item 15. Indemnification of Directors and Officers
The Company's Restated Certificate of Incorporation and Restated Bylaws
provide for the indemnification of, and the advancement of expenses to, the
directors, officers, employees and agents of the Company to the fullest extent
permitted by Delaware law from time to time and the Bylaws provide for various
procedures relating thereto. Under Delaware law, directors, officers, employees
and agents of the Company may be indemnified against amounts paid in judgements,
settlements, penalties, fines and expenses actually and reasonably incurred with
respect to proceedings (other than an action by or in the right of the Company,
such as a "derivative action") if they acted in good faith and in a manner they
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 their conduct was unlawful. A similar standard of
care is applied in the case of a derivative action, except that indemnification
only extends to expenses (including attorney's fees) incurred in connection with
the defense or settlement of such an action. However, court approval is required
before there can be any indemnification of expenses where the person seeking
indemnification has been found liable to the Company.
Under Delaware law, expenses incurred by an officer or a director in
defending a civil or criminal proceeding may be paid by the Company upon receipt
of an undertaking by or on behalf of such director or officer to repay such
amount if it shall be determined that the officer or director is not entitled to
indemnification.
Indemnification and advancement of expenses continues as to a person who
has ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
The Company may purchase and maintain an insurance policy insuring its
directors, officers, employees and agents against liability for certain acts and
omissions while acting in their official capacity.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to the Company's directors, officers and controlling
persons 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.
Item 16. Exhibits
EXHIBIT NO. DESCRIPTION
----------- ------------------------------------------------------------
2 First Amended Joint Plan of Reorganization of Lodgian, Inc.,
et al., dated November 1, 2002.(a)
3.1 Restated Certificate of Incorporation of Lodgian, Inc.(b)
3.2 Amended Restated Bylaws of Lodgian, Inc.(c)
4.1 Certificate of Designation for Series A Preferred Stock of
Lodgian, Inc.(d)
4.2 Class A Warrant Agreement between Lodgian, Inc. and Wachovia
Bank, N.A.(d)
4.3 Class B Warrant Agreement between Lodgian, Inc. and Wachovia
Bank, N.A.(d)
4.4 Registration Rights Agreement between Lodgian, Inc. and the
Selling Stockholders.(d)
5 Opinion of Cadwalader, Wickersham & Taft LLP.
12 Computation of Ratios.
23 Consent of Deloitte & Touche LLP.
24 Powers of Attorney (included on signature page of this
registration statement).
(a) This exhibit is incorporated by reference to the Company's Form 8-K filed
on November 20, 2002 (SEC File No. 001-14537)
(b) This exhibit is incorporated by reference to exhibits and appendices to
the Company's Registration Statement on Form S-4, as amended, filed on
July 17, 1998. (SEC File No. 333-59315)
(c) This exhibit is incorporated by reference to the Company's Form 8-K dated
March 9, 2000, filed on March 9, 2000. (SEC File No. 001-14537)
(d) This exhibit is incorporated by reference to the Company's Form 8-A filed
on November 26, 2002 (SEC File No. 000-50108)
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any 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 the 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 end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Securities and
Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20% change in the
maximum aggregate offering price set forth in the "Calculations 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 to the information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of the securities in the post-effective amendment at that time shall be
deemed to be the initial bona fide offering thereof.
2
(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.
(4) That, for the purpose of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of the
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been informed that in the opinion of the Securities and
Exchange Commission this type of indemnification is against public policy as
expressed in the Act and is, therefore unenforceable. In the event that a claim
for indemnification against liabilities arising under the Securities Act of 1933
(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 by any 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 the
submitted issue.
3
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-3 and has duly caused the Registration
Statement of which this Prospectus is a part to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta and the State of
Georgia on the 2nd day of April, 2003.
LODGIAN, INC.
By: /s/ David E. Hawthorne
-------------------------------------
Name: David E. Hawthorne
Title: Chief Executive Officer and
President
4
SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors of Lodgian, Inc., hereby
severally constitute and appoint David E. Hawthorne as our true and lawful
attorney with full power to him to sign for us and in our names in the
capacities indicated below the registration statement on Form S-3 filed herewith
and any and all pre-effective and post-effective amendments to said registration
statement, and any subsequent registration statement for the same offering or
for any additional offerings (as contemplated by the registration statement
filed herewith) which may be filed under Rule 415 or Rule 462, and generally to
do all that is necessary in our name and on our behalf in our capacities as
officers and directors to enable Lodgian, Inc. to comply with the provisions of
the Securities Act of 1933, as amended, and all requirements of the Securities
and Exchange Commission, hereby ratifying and confirming our signatures as they
may be signed by our said attorney to said registration statement and any and
all amendments thereto or to any subsequent registration statement for the same
offering or for any additional offerings (as contemplated by the registration
statement of which this prospectus is a part filed herewith) which may be filed
under Rule 415 or Rule 462.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on April 2, 2003.
Signature Title
- ------------------------------ -------------------------------------
Chief Executive Officer and President
/s/ David E. Hawthorne (Principal Executive Officer)
- ------------------------------
David E. Hawthorne
Executive Vice President and Chief
/s/ Richard Cartoon Financial Officer
- ------------------------------
Richard Cartoon
/s/ Manuel E. Artime Chief Accounting Officer
- ------------------------------
Manuel E. Artime
/s/ Russel S. Bernard Chairman of the Board of Directors
- ------------------------------
Russel S. Bernard
/s/ Sean Armstrong Director
- ------------------------------
Sean Armstrong
/s/ Stewart J. Brown Director
- ------------------------------
Stewart J. Brown
/s/ Kenneth A. Caplan Director
- ------------------------------
Kenneth A. Caplan
/s/ Stephen P. Grathwohl Director
- ------------------------------
Stephen P. Grathwohl
/s/ Jonathan D. Gray Director
- ------------------------------
Jonathan D. Gray
/s/ Kevin C. McTavish Director
- ------------------------------
Kevin C. McTavish
/s/ W. Thomas Parrington Director
- ------------------------------
W. Thomas Parrington
5
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
----------- ------------------------------------------------------------
2 First Amended Joint Plan of Reorganization of Lodgian, Inc.,
et al., dated November 1, 2002.(a)
3.1 Restated Certificate of Incorporation of Lodgian, Inc.(b)
3.2 Amended Restated Bylaws of Lodgian, Inc.(c)
4.1 Certificate of Designation for Series A Preferred Stock of
Lodgian, Inc.(d)
4.2 Class A Warrant Agreement between Lodgian, Inc. and Wachovia
Bank, N.A.(d)
4.3 Class B Warrant Agreement between Lodgian, Inc. and Wachovia
Bank, N.A.(d)
4.4 Registration Rights Agreement between Lodgian, Inc. and the
Selling Stockholders.(d)
5 Opinion of Cadwalader, Wickersham & Taft LLP.
12 Computation of Ratios.
23 Consent of Deloitte & Touche LLP.
24 Powers of Attorney (included on signature page of this
registration statement).
(a) This exhibit is incorporated by reference to the Company's Form 8-K filed
on November 20, 2002 (SEC File No. 001-14537)
(b) This exhibit is incorporated by reference to exhibits and appendices to
the Company's Registration Statement on Form S-4, as amended, filed on
July 17, 1998. (SEC File No. 333-59315)
(c) This exhibit is incorporated by reference to the Company's Form 8-K dated
March 9, 2000, filed on March 9, 2000. (SEC File No. 001-14537)
(d) This exhibit is incorporated by reference to the Company's Form 8-A filed
on November 26, 2002 (SEC File No. 000-50108)
6