1
Registration No. 33-
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 of (I.R.S. Employer
incorporation or organization) Identification Number)
700 Route 46 East
Fairfield, New Jersey 07004
- ---------------------------------------- -------------
(Address of principal executive offices) (Zip Code)
Prime Hospitality Corp.
1992 Performance Incentive Plan
-------------------------------
(Full Title of Plan)
Joseph Bernadino
Secretary
Prime Hospitality Corp.
700 Route 46 East
Fairfield, New Jersey 07004
(201) 882-1010
--------------------------------------------------------------
(Name and address, including zip code, of agent for service)
(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, New York 10022
(212) 935-8000
The Exhibit Index is located on page 12.
Page 1 of 28 Pages
2
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Amount maximum maximum Amount
Securities to be offering aggregate of reg-
to be regis- price offering istration
registered tered (1) per share (2) price (2) fee
- ----------------------------------------------------------------------------------------------------------------------------------
Common Stock 330,000 $7.5625 $2,495,625 $860.56
par value
$0.01 per
share
- --------------------------
(1) This Registration Statement covers the 330,000 shares authorized to be
issued under the 1992 Performance Incentive Plan.
(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").
Page 2 of 28 Pages
3
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 latest Annual Report on Form 10-K
for the period ended December 31, 1993, filed
pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
(b) The Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1994, filed pursuant to
the Exchange Act.
(c) The description of the Company's Common Stock par
value $0.01 per share (the "Common Stock")
included in the Company's Application for
Registration on Form 8-A, dated June 5, 1992, as
amended in the Company's Amendments to Application
or Report on Form 8, filed pursuant to the
Exchange Act on July 9, 1992 and December 23,
1992.
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.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable.
Page 3 of 28 Pages
4
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 director of the company.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
A. The Company is incorporated under the laws of Delaware.
The general effect of Section 145 of the Delaware General Corporation Law is to
empower a corporation organized thereunder to indemnify its officers and
directors against expenses (including attorneys' fees), and in non-derivative
suits against judgments, fines and amounts paid in settlement resulting from
actions, suits or proceedings arising by reason of the fact of such officership
or directorship and to require indemnification for expenses (including
attorneys' fees) where such officer or director has been successful on the
merits in the defense of such action. Among the limitations imposed by this
statute are that the party to be indemnified has 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 that absent a court determination of fair and reasonable
entitlement, no indemnification may be made to him in respect of any claim by
or in the right of the Company itself if he is adjudged liable for negligence
or misconduct. The indemnification provided for by the statute is not
exclusive of any other rights to which those seeking indemnification may be
entitled under any by-laws, agreement, vote of stockholders or disinterested
directors or otherwise.
B. Article Eighth of the Company's Restated Certificate of
Incorporation reads as follows:
(a) The Corporation 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 Corporation, or is or was
serving at the request of the Corporation as a
director, officer, trustee, employee or agent of
or in any other capacity with
Page 4 of 28 Pages
5
another corporation, partnership, joint venture,
trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and
amount 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
Corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to
believe his conduct was unlawful.
(b) 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 Corporation) or may (in the case of any
action, suit or proceeding against an officer,
trustee, employee or agent) be paid by the
Corporation in advance of the final disposition of
such action, suit or proceeding as authorized by
the Board 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
Corporation as authorized in this Article Eighth.
(c) The indemnification and other rights set forth in
this Article Eighth shall not be exclusive of any
provisions with respect thereto in the Bylaws or
any other contract or agreement between the
Corporation and any officer, director, employee or
agent of the Corporation.
(d) Neither the amendment nor repeal of subparagraphs
(a), (b) or (c) of this Article Eighth, nor the
adoption of any provision of this Restated
Certificate of Incorporation inconsistent with
subparagraphs (a), (b) or (c) of this Article
Eighth, shall eliminate or reduce the effect of
subparagraphs (a), (b) and (c) of this Article
Eighth in respect of any matter occurring before
such amendment, repeal or adoption of an
inconsistent provision or
Page 5 of 28 Pages
6
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 subparagraph (a), (b)
or (c) of this Article Eighth, if such provision
had not been so amended or repealed or if a
provision inconsistent therewith had not been so
adopted.
(e) No director shall be personally liable to the
Corporation or to any stockholder for monetary
damages for breach of fiduciary duty as a
director, except for any matter in respect of
which such director (a) shall be liable under
Section 174 of the DGCL or any amendment thereto
or successor provision thereto, or (b) shall be
liable by reason that, in addition to any and all
other requirements for liability, he:
(i) shall have breached his duty of loyalty to
the Corporation or its stockholders;
(ii) shall not have acted in good faith or, in
failing to act, shall not have acted
in good faith;
(iii) shall have acted in a manner involving
intentional misconduct or a knowing
violation of law or, in failing to act,
shall have acted in a manner involving
intentional misconduct or a knowing
violation of law; or
(iv) shall have derived an improper personal
benefit.
If the DGCL is amended after the date of incorporation to
authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of
a director of the Corporation shall be eliminated or
limited to the fullest extent permitted by the DGCL, as so
amended.
C. Section 8 of Article VIII of the Company's Bylaws reads as
follows: Indemnification of Officers and Directors. The
Corporation will indemnify any and all of its Directors or
officers, including former Directors or officers, and any
employee, who shall serve as an officer or director of any
corporation at the request of the Corporation, to
Page 6 of 28 Pages
7
the fullest extent permitted under and in accordance with
the laws of the State of Delaware.
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 Number 1-6869, dated June 5, 1992,
Exhibit 1(a))
4.2 Copy of the Company's Restated Certificate of Incorporation
(incorporated by reference to the Company's Annual Report on Form
10-K for the fiscal year ended June 30, 1992, Exhibit (3)(e))
4.3 Copy of the Company's Restated Bylaws (incorporated by reference to
the Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1992, Exhibit (3)(f)
5.1 Opinion of Willkie Farr & Gallagher, counsel to the Company, as to
the legality of the shares being registered
23.1 Consent of Arthur Andersen & Co., Inc.
23.2 Consent of J. H. Cohn & Company
23.3 Consent of Willkie Farr & Gallagher (contained in Exhibit 5)
99.1 Copy of Prime Hospitality Corp. 1992 Performance Incentive Plan
Item 9. UNDERTAKINGS
1. The Company hereby undertakes:
(a) To file, during any period in which offers or
sales are being made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of
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
Page 7 of 28 Pages
8
Registration Statement;
(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 Company 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,
Page 8 of 28 Pages
9
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.
Page 9 of 28 Pages
10
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 Township of Fairfield, State of New Jersey, on the 5th day
of August, 1994.
PRIME HOSPITALITY CORP.
By:/s/ David A. Simon
---------------------------------------------
David A. Simon, Chairman
of the Board of Directors
Page 10 of 28 Pages
11
SIGNATURES
Pursuant to the requirements of the Securities Act this Registration
Statement has been signed below by the following persons in the capacities
indicated on August 5, 1994.
Signature Title
- --------- -----
/s/David A. Simon Chairman of the Board of Directors,
- ---------------------------------------------------------------- President, Chief Executive Officer and
David A. Simon Director (Principal Executive Officer)
/s/John Elwood Director, Executive Vice President, Chief
- ---------------------------------------------------------------- Financial Officer (Principal Financial and
John Elwood Accounting Officer)
Director
- ----------------------------------------------------------------
Allen J. Ostroff
/s/Herbert Lust, II Director
- ----------------------------------------------------------------
Herbert Lust, II
/s/A. F. Petrocelli Director
- ----------------------------------------------------------------
A.F. Petrocelli
/s/Jack H. Nusbaum Director
- --------------------------------------------------------------
Jack H. Nusbaum
/s/Howard M. Lorber Director
- -------------------------------------------------------------
Howard M. Lorber
Page 11 of 28 Pages
12
INDEX TO EXHIBITS
EXHIBIT NO. PAGE
- ----------- ----
5.1 Opinion of Willkie Farr & Gallagher
counsel to the Company 14
23.1 Consent of Arthur Andersen & Co., Inc. 16
23.2 Consent of J. H. Cohn & Co., Inc. 18
23.3 Consent of Willkie Farr & Gallagher 20
(contained in Exhibit 5.1)
99.1 Copy of Prime Hospitality Corp. 1992 22
Performance Incentive Plan
Page 12 of 28 Pages