As filed with the Securities and Exchange Commission on January 6, 2004
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-8
Registration Statement
Under The Securities Act of 1933
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Arlington Hospitality, Inc.
(Exact name of Registrant as specified in its charter)
Delaware 36-3312434
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
2355 S. Arlington Heights Road,
Suite 400, Arlington Heights, Illinois 60005
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(Address of Principal Executive Offices) (Zip Code)
Arlington Hospitality, Inc. 2003 Non-Employee Director Restricted Stock Plan
Arlington Hospitality, Inc. 2003 Long-Term Incentive Plan
(Full Title of the Plan)
Jerry H. Herman, President and Chief Executive Officer
Arlington Hospitality, Inc.
2355 S. Arlington Heights Road, Suite 400
Arlington Heights, Illinois 60005
With a copy to:
Michael J. Choate, Esq.
Mitchell D. Goldsmith, Esq.
Shefsky & Froelich Ltd.
444 N. Michigan, Suite 2500
Chicago, Illinois 60611
(Name and Address of Agent for Service)
(847) 228-5401
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Aggregate Offering Registration Fee
Per Share Price
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Common Stock, par 750,000 (1) $3.695 (2) $2,771,250 (2) $224.20
value $.005
(1) Issuable upon the vesting of restricted stock awards under the
Arlington Hospitality, Inc. 2003 Non-Employee Director Restricted Stock
Plan; the exercise of options, the vesting of restricted stock awards
or the vesting of certain other awards under the Arlington Hospitality,
Inc. 2003 Long-Term Incentive Plan. Pursuant to Rule 416, this
Registration Statement also includes an indeterminable number of
additional shares that may become issuable pursuant to the
anti-dilution provisions of the 2003 Long-Term Incentive Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h) of Regulation C, on the basis of
the average of the high and low prices of the shares of common stock of
the Registrant on the Nasdaq National Market on January 2, 2004.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of this
registration statement on Form S-8 (this "Registration Statement") of Arlington
Hospitality, Inc. (the "Registrant") will be sent or given to the Registrant's
officers, employees, consultants and directors, as specified by Rule 428(b)(1)
promulgated under the Securities Act of 1933, as amended (the "Securities Act").
Such documents need not be filed with the Securities and Exchange Commission
(the "SEC") either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 promulgated under the Securities
Act. These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken
together, constitute a prospectus that meets the requirement of Section 10(a) of
the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below are hereby incorporated by reference into
this Registration Statement:
1. The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 2002.
2. The Registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31, June 30 and September 30, 2003.
3. The Registrant's Proxy Statement dated September 26, 2003 for
its 2003 Annual Meeting of Shareholders.
4. The Registrant's Reports on Form 8-K dated March 18, 2003, May
16, 2003, July 15, 2003, July 16, 2003, August 15, 2003,
October 30, 2003, November 17, 2003, December 4, 2003 and
December 19, 2003.
5. The description of the Registrant's common stock contained in
Amendment No. 3 to its Registration Statement on Form S-2
filed with the Commission on October 22, 1996.
6. All documents which the Registrant filed subsequently to the
foregoing pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities registered have
been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference into
this Registration Statement and to be a part hereof from the
date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware authorizes
indemnification of directors, officers and employees of Delaware corporations.
Article Eight of the Registrant's certificate of incorporation provides that the
Registrant will provide indemnification to the fullest extent permitted by
Delaware law to all persons it is permitted to indemnify. The Registrant's
by-laws provide that the Registrant: (i) will indemnify directors and officers
to the fullest extent authorized by the General Corporation Law of Delaware,
including in a suit initiated by the officer or director if the suit authorized
by the Registrant's board of directors, (ii) will advance expenses to
indemnified parties for defending any proceedings for which indemnification is
allowed, if the indemnified party undertakes to repay amounts advanced if it is
determined that the party is not entitled to indemnification, (iii) may
indemnify employees or agents, other than officers and directors, and (iv) may
maintain insurance policies to protect any of its directors, officers, employees
or agents, whether or not the Registrant would have the power to indemnify these
persons under Delaware law. The Registrant currently maintains policies of
insurance under which the directors and officers of the Registrant are insured,
within the limits and subject to the limitations of the policies, against
certain expenses in connection with the defense of actions, suits or
proceedings, and certain liabilities which might be imposed as a result of such
actions, suits or proceedings, to which they are parties by reason of being or
having been such directors or officers.
Additionally, the Registrant has entered into an indemnification
agreement with each independent director. Each agreement provides that the
Registrant will indemnify the director against any expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement reasonably
incurred by the director in connection with any suit (threatened or actual),
proceeding or any alternative dispute resolution mechanism, wither civil,
criminal, administrative or investigative, brought by a third party against the
director by reason of having been a director of the Registrant (or any
subsidiary of the Registrant) or serving in a position at the request of the
Registrant and so long as the director acted in good faith and in a manner the
director reasonably believed to be in or not opposed to the best interests of
the Registrant (and with respect to any criminal action, the director had no
reasonable cause to believe the director's conduct was unlawful). Each agreement
also provides that the Registrant will indemnify the director with respect to
any action or suit brought by the Registrant (or any subsidiary) by reason of
having been a director of the Registrant or serving in any position at the
request of the Registrant, except to the extent that the director shall have
been adjudged to be liable to the Registrant. Each indemnification agreement
requires the Registrant to make a good faith determination as to whether it is
practicable for the Registrant to obtain and maintain a policy of insurance
providing the director with coverage for losses from wrongful acts, or to ensure
the Registrant's performance of its indemnification obligations under the
agreement.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No.
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5 Opinion of Shefsky & Froelich Ltd. re: legality
23(a) Consent of Shefsky & Froelich Ltd. (see Exhibit 5)
23(b) Consent of KPMG LLP
24 Power of Attorney (see the Signature Page to this Registration
Statement)
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
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1. To file, during any period in which it offers or sells securities, 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 this Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement; and
(iii) to include any additional or changed material
information on the plan of distribution;
Provided, however, that paragraphs (1)(i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in a periodic report filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference into this Registration Statement.
2. For determining liability under the Securities Act of 1933, to treat
each such post-effective amendment as a new Registration Statement of securities
offered, and the offering of the securities at that time to be the initial
public offering thereof.
3. To file a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
4. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in such Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (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 such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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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 of 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 Arlington Heights, State of Illinois, on January 6,
2004.
ARLINGTON HOSPITALITY, INC.
By: /s/ Jerry H. Herman
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Jerry H. Herman
President and Chief Executive Officer
By: /s/ James B. Dale
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James B. Dale
Chief Financial Officer
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GRANT OF POWER OF ATTORNEY
Each person whose signature appears below as a Director and/or officer
of Arlington Hospitality, Inc. hereby constitutes and appoints Jerry H. Herman
and James B. Dale his true and lawful attorney-in-fact and agent, with full
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all subsequent amendments (including post-effective
amendments) to this Registration Statement, and to file the same with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto such attorneys-in-fact and agents, full
power and authority to do and perform each and every act and thing requisite and
necessary to be done 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 such attorneys-in-fact and agents, or either of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
SIGNATURES TITLE DATE
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/s/ Jerry H. Herman Director, President and Chief Executive January 6, 2004
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Jerry H. Herman
/s/ Steven J. Belmonte Director January 6, 2004
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Steven J. Belmonte
/s/ Salomon J. Dayan Director January 6, 2004
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Salomon J. Dayan
/s/ Kenneth M. Fell Director January 6, 2004
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Kenneth M. Fell
/s/ Gerald T. LaFlamme Director January 6, 2004
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Gerald T. LaFlamme
/s/ Thomas J. Romano Director January 6, 2004
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Thomas J. Romano
/s/ Andrew E. Shapiro Director January 6, 2004
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Andrew E. Shapiro
/s/ James B. Dale Chief Financial Officer, Secretary and January 6, 2004
- ----------------- Treasurer (Principal Accounting Officer and
James B. Dale Principal Financial Officer)
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EXHIBITS
Exhibit No.
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5 Opinion of Shefsky & Froelich Ltd. re: legality
23(a) Consent of Shefsky & Froelich Ltd. (see Exhibit 5)
23(b) Consent of KPMG LLP
24 Power of Attorney (see the Signature Page to this Registration
Statement)