AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 13, 2002
REGISTRATION NO. 333- 89740
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
ON FORM S-8
TO REGISTRATION STATEMENT
ON FORM S-4
UNDER
THE SECURITIES ACT OF 1933*
INTERSTATE HOTELS & RESORTS, INC.
(Exact name of registrant as specified in its charter)
Delaware 52-2101815
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1010 Wisconsin Avenue, N.W.
Washington, D.C. 20007
(Address, including zip code, of Principal Executive Offices)
Interstate Hotels & Resorts, Inc. 1999 Employee Stock Option Plan**
(Full title of the plan)
Christopher L. Bennett
Senior Vice President and General Counsel
Interstate Hotels & Resorts, Inc.
1010 Wisconsin Avenue, N.W.
Washington, D.C. 20007
(Telephone number, including area code, of agent for service)
(202) 295-1000
(Telephone number, including area code, of agent for service)
Copy to:
Richard S. Borisoff, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
(212) 373-3000
* Filed as a Post-Effective Amendment on Form S-8 to such Registration
Statement pursuant to the provisions of Rule 401(e) under the Securities Act of
1933 and the procedure described herein. See "Introductory Statement Not Forming
Part of Prospectus" following this cover page.
** The Interstate Hotels & Resorts, Inc. Employee Stock Option Plan was
assumed by Interstate Hotels & Resorts, Inc. (formerly known as "MeriStar Hotels
& Resorts, Inc.") pursuant to the Agreement and Plan of Merger, dated May 1.
2002 and amended on June 3, 2002, by and between Interstate Hotels Corporation
and MeriStar Hotels & Resorts, Inc.
INTRODUCTORY STATEMENT NOT FORMING PART OF THE PROSPECTUS
Interstate Hotels & Resorts, Inc. (formerly known as "MeriStar Hotels &
Resorts, Inc.") (the "Registrant") hereby amends its Registration Statement on
Form S-4 (No. 333-89740) (the "Registration Statement"), by filing this
Post-Effective Amendment No. 1 on Form S-8. The issuance of a total of
66,500,000 shares of Common Stock, par value $0.01 per share ("Common Stock") of
the Registrant were registered on the Registration Statement. The Registration
Statement was filed in connection with the Agreement and Plan of Merger by and
between Interstate Hotels Corporation, a Maryland corporation ("Interstate"),
and the Registrant, dated May 1, 2002 and amended on June 3, 2002 (as amended,
the "Merger Agreement").
On July 31, 2002, after receiving the required stockholder approvals,
pursuant to the Merger Agreement, the Registrant and Interstate Hotels
Corporation, a Maryland corporation ("Interstate"), completed a merger of
Interstate into the Registrant (the "Merger), in which the Registrant was the
surviving corporation and changed its name to "Interstate Hotels & Resorts,
Inc." Upon consummation of the Merger, pursuant to the Merger Agreement, each
outstanding share of Interstate common stock, par value $0.01 per share (the
"Interstate Common Stock"), was converted into 4.6 shares of the Registrant's
common stock, $0.01 par value per share (the "Common Stock"). Under the Merger
Agreement, the Registrant assumed all options previously granted under the
Interstate Hotels & Resorts, Inc. 1999 Employee Stock Option Plan (formerly
known as the "Interstate Hotels Corporation 1999 Employee Stock Option Plan)
(the "Plan"), and each outstanding and unexercised option to purchase one share
of Interstate Common Stock was converted into an option to purchase 4.6 shares
of Common Stock.
Under a Rights Agreement between the Registrant and Continental Stock
Transfer & Trust Company, dated as of July 23, 1998 and amended from time to
time (as amended, the "Rights Agreement"), one right (a "Right") to purchase
Series A junior participating preferred stock, par value $0.01 per share, of the
Registrant was attached to the Common Stock.
On July 31, 2002, immediately after the effective time of the Merger,
the Registrant also effected a one-for-five reverse split of the Common Stock
(the "Reverse Stock Split"). As a result of the Reverse Stock Split, pursuant to
adjustment provisions in the Rights Agreement, five Rights are now attached to
each share of Common Stock.
As a result of the Merger and the Reverse Stock Split, each outstanding
and unexercised option to purchase one share of Interstate Common Stock was
converted into an option to purchase 0.92 of a share of Common Stock and 4.6
Rights.
In the Merger, 12,537,195 shares of post-split Common Stock were
issued. Therefore, this Registration Statement relates to 762,805 shares of
Common Stock (along with the attached 3,814,025 Rights) issuable pursuant to
currently outstanding stock options granted under the Plan. The registration fee
for the shares of Common Stock and Rights to be issued under the Plan was paid
at the time of the original filing of the Registration Statement on June 4,
2002. The Registration Statement also relates to an indeterminate number of
shares of Common Stock and Rights that may be issued upon stock splits, stock
dividends or similar transactions in accordance with Rule 416 under the
Securities Act.
The Section 10(a) prospectus being delivered by the Registrant to
participants in the Plan, as required by Rule 428 under the Securities Act, has
been prepared in accordance with the requirements of Form S-8 under the
Securities Act and relates to shares of the Common Stock and the associated
Rights reserved for issuance pursuant to the Plan. The information related to
the Plan required in the Section 10(a) prospectus is included in documents being
maintained and delivered by the Registrant as required by Rule 428 under the
Securities Act. The Registrant will provide to participants in the Plan a
written statement advising them of the availability, without charge, upon
written or oral request, of documents incorporated by reference herein, as is
required by Item 2 of Part I of Form S-8.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
Not required to be filed in the Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required to be filed in the Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Registrant with the SEC are
incorporated by reference in this Registration Statement:
(1) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 2001, as amended;
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2001;
(3) The Registrant's Current Reports on Form 8-K dated August 9,
2002, August 8, 2002, August 7, 2002, July 2, 2002, May 7, 2002 and May
3, 2002;
(4) The description of the Common Stock contained in the
Registrant's Registration Statement on Form 8-A, dated July 22, 1998,
as amended on December 12, 2000, May 3, 2002 and August 2, 2002; and
(5) The description of the Rights contained in the Registrant's
Registration Statement on Form 8-A, dated July 22, 1998, as amended on
December 12, 2000, May 3, 2002 and August 2, 2002.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which deregisters all
such securities then remaining unsold, shall be deemed to be
incorporated by reference in and to be a part hereof from the date of
filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any
other subsequently filed documents which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part hereof.
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 Delaware General Corporation Law authorizes a
corporation to indemnify its directors, officers, employees and agents against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement reasonably incurred, including liabilities under the Securities Act,
provided they act in good faith and in a manner reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal proceeding, had no reasonable cause to believe their conduct was
unlawful, although in the case of proceedings brought by or on behalf of the
corporation, such indemnification is limited to expenses and is not permitted if
the individual is adjudged liable to the corporation (unless the Delaware Court
of Chancery or the court in which such proceeding was brought determines
otherwise in accordance with the Delaware General Corporation Law). Section 102
of the Delaware General Corporation Law authorizes a corporation to limit or
eliminate its directors' liability to the corporation or its stockholders for
monetary damages for breaches of fiduciary duties, other than for (i) breaches
of the duty of loyalty, (ii) acts or omissions not in good faith or that involve
intentional misconduct or knowing violations of law, (iii) unlawful payments of
dividends, stock purchases or redemptions, or (iv) transactions from which a
director derives an improper personal benefit. The Registrant's certificate of
incorporation contains such a provision.
The Registrant's bylaws provide that it will indemnify each director
and each of the President, the Treasurer and the Secretary against all claims
and expenses resulting from the fact that he or she was an officer, director or
employee of the registrant. In addition, the Registrant's board of directors
may, at its option, indemnify any other employee. A claimant is eligible for
indemnification if the claimant (i) acted in good faith and in a manner that, in
the claimant's reasonable belief, was in or not opposed to the best interests of
the registrant, or (ii) in the case of a criminal proceeding, had no reasonable
cause to believe his or her conduct was unlawful.
Section 145 of the Delaware General Corporation Law authorizes a
corporation to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the corporation against any
liability asserted against
him or her and incurred by him or her in any such capacity, or arising out of
his or her status as such. The Registrant's certificate of incorporation and
bylaws contain no specific provisions regarding such insurance. The Registrant
has obtained liability insurance covering its directors and officers for claims
asserted against them or incurred by them in such capacity, including claims
brought under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following exhibits are filed herewith or incorporated by reference
herein as part of this Post-Effective Amendment No. 1 to the Registration
Statement:
EXHIBIT DESCRIPTION
- ------- -----------
3.1 Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to the
Registrant's Form S-1/A filed on July 23, 1998 (Registration
No. 333-49881)).
3.1.1 Certificate of Amendment of the Restated Certificate of
Incorporation, dated June 30, 2001 (incorporated by reference
to Exhibit 3.1.1 to the Registrant's Form 10-K for the year
ended December 31, 2001).
3.1.2 Certificate of Merger, dated July 31, 2002 (incorporated by
reference to Exhibit 3.1.2 to the Registrant's Amendment to
Registration Statement on Form 8-A/A filed on August 2, 2002).
3.1.3 Certificate of Amendment of the Restated Certificate of
Incorporation, dated July 31, 2002 (incorporated by reference
to Exhibit 3.1.3 to the Registrant's Amendment to Registration
Statement on Form 8-A/A filed on August 2, 2002).
3.2 By-laws of the Registrant (incorporated by reference to
Exhibit 3.2 to the Registrant's Form S-1/A filed on July 23,
1998 (Registration No. 333-49881)).
3.3 Amendment to the By-laws of the Registrant (incorporated by
reference to Exhibit 3.3 to the Registrant's Amendment to
Registration Statement on Form 8-A/A filed on August 2, 2002).
4.1 Form of Common Stock Certificate (incorporated by reference to
Exhibit 4.1 to the Registrant's Amendment to Registration
Statement on Form 8-A/A filed on August 2, 2002).
4.2 Rights Agreement, dated July 23, 1998, between the Registrant
and the Rights Agent (incorporated by reference to Exhibit 4.4
to the Registrant's Form S-1/A filed on July 23, 1998
(Registration No. 333-49881)).
4.2.1 Form of Rights Certificate (incorporated by reference to
Exhibit 4.3 to the Registrant's Form S-1/A filed on July 23,
1998 (Registration No. 333-49881)).
4.2.2 Amendment to Rights Agreement, dated December 8, 2000, between
the Registrant and the Rights Agent (incorporated by reference
to Exhibit 4.1 to the Registrant's Current Report on Form 8-K
filed on December 12, 2000).
4.2.3 Second Amendment to Rights Agreement, dated May 1, 2002,
between the Registrant and the Rights Agent (incorporated by
reference to Exhibit 4.1 to the Registrant's Current Report on
Form 8-K filed on May 3, 2002).
5.1* Opinion of Paul, Weiss, Rifkind, Wharton & Garrison regarding
legality.
23.1* Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included
in Exhibit 5.1).
23.2 Consent of KPMG LLP.
24 Power of Attorney (included on signature page).
* Previously filed.
ITEM 9. UNDERTAKINGS
(a) 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 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;
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at the time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 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 herein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the 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 the 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.
[SIGNATURES ON FOLLOWING PAGE]
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-8, and has duly caused this
Post-Effective Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized in Washington, D.C., on
this the 13th day of August, 2002.
INTERSTATE HOTELS & RESORTS, INC.
By: /s/ Christopher L. Bennett
----------------------------------------
Christopher L. Bennett
Senior Vice President and General Counsel
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Paul W. Whetsell and Christopher L.
Bennett such person's true and lawful attorneys-in-fact and agents, with full
power of substitution and revocation, for such person and in such person's name,
place and stead, in any and all capacities (until revoked in writing), to sign
any and all amendments (including post-effective amendments) to this
registration statement (including those filed pursuant to Rule 462 under the
Securities Act of 1933), and to file the same with all exhibits thereto, and the
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and things
requisite and necessary to be done, as fully to all intents and purposes as such
person might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof (in each case,
other than those individuals who have already appointed Messrs. Whetsell and
Bennett as their attorneys-in-fact and agents with respect to this registration
statement and amendments thereto).
Pursuant to the requirements of the Securities Act of 1933, this
registration statement and the foregoing Power of Attorney have been signed by
the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
* Chief Executive Officer and Chairman August 13, 2002
- ----------------------------- of the board of directors (Principal
Paul W. Whetsell executive officer)
* President, Chief Operating Officer August 13, 2002
- ----------------------------- and Director
John Emery
* Chief Financial Officer (Principal August 13, 2002
- ----------------------------- Financial and Accounting Officer)
James A. Calder
/s/ Karim Alibhai Director August 13, 2002
- -----------------------------
Karim Alibhai
* Director August 13, 2002
- -----------------------------
J. Taylor Crandall
* Director August 13, 2002
- -----------------------------
Leslie R. Doggett
SIGNATURE TITLE DATE
- --------- ----- ----
Director
- -----------------------------
Joseph J. Flannery
/s/ Thomas F. Hewitt Director August 13, 2002
- -----------------------------
Thomas F. Hewitt
* Director August 13, 2002
- -----------------------------
Steven D. Jorns
Director
- -----------------------------
Mahmood Khimji
Director
- -----------------------------
Raymond C. Mikulich
Director
- -----------------------------
John J. Russell, Jr.
Director
- -----------------------------
Sherwood M. Weiser
* By: /s/ Christopher L. Bennett
--------------------------
Christopher L. Bennett
Attorney-in-fact
EXHIBIT INDEX
EXHIBIT DESCRIPTION
- ------- -----------
3.1 Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to the
Registrant's Form S-1/A filed on July 23, 1998 (Registration
No. 333-49881)).
3.1.1 Certificate of Amendment of the Restated Certificate of
Incorporation, dated June 30, 2001 (incorporated by reference
to Exhibit 3.1.1 to the Registrant's Form 10-K for the year
ended December 31, 2001).
3.1.2 Certificate of Merger, dated July 31, 2002 (incorporated by
reference to Exhibit 3.1.2 to the Registrant's Amendment to
Registration Statement on Form 8-A/A filed on August 2, 2002).
3.1.3 Certificate of Amendment of the Restated Certificate of
Incorporation, dated July 31, 2002 (incorporated by reference
to Exhibit 3.1.3 to the Registrant's Amendment to Registration
Statement on Form 8-A/A filed on August 2, 2002).
3.2 By-laws of the Registrant (incorporated by reference to
Exhibit 3.2 to the Registrant's Form S-1/A filed on July 23,
1998 (Registration No. 333-49881)).
3.3 Amendment to the By-laws of the Registrant (incorporated by
reference to Exhibit 3.3 to the Registrant's Amendment to
Registration Statement on Form 8-A/A filed on August 2, 2002).
4.1 Form of Common Stock Certificate (incorporated by reference to
Exhibit 4.1 to the Registrant's Amendment to Registration
Statement on Form 8-A/A filed on August 2, 2002).
4.2 Rights Agreement, dated July 23, 1998, between the Registrant
and the Rights Agent (incorporated by reference to Exhibit 4.4
to the Registrant's Form S-1/A filed on July 23, 1998
(Registration No. 333-49881)).
4.2.1 Form of Rights Certificate (incorporated by reference to
Exhibit 4.3 to the Registrant's Form S-1/A filed on July 23,
1998 (Registration No. 333-49881)).
4.2.2 Amendment to Rights Agreement, dated December 8, 2000, between
the Registrant and the Rights Agent (incorporated by reference
to Exhibit 4.1 to the Registrant's Current Report on Form 8-K
filed on December 12, 2000).
4.2.3 Second Amendment to Rights Agreement, dated May 1, 2002,
between the Registrant and the Rights Agent (incorporated by
reference to Exhibit 4.1 to the Registrant's Current Report on
Form 8-K filed on May 3, 2002).
5.1* Opinion of Paul, Weiss, Rifkind, Wharton & Garrison regarding
legality.
23.1* Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included
in Exhibit 5.1).
23.2 Consent of KPMG LLP.
24 Power of Attorney (included on signature page).
* Previously filed.