1
As filed with the Securities and Exchange Commission on August 24, 2001
REGISTRATION NO. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
RFS Hotel Investors, Inc.
(Exact name of registrant as specified in its charter)
TENNESSEE Issuer: 62-1534743
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
850 Ridge Lake Boulevard, Suite 200
Memphis, Tennessee 38120
(Address of principal executive offices)
------------
RFS Hotel Investors, Inc. Employee Stock Purchase Plan
(Full title of the plan)
------------
Randall L. Churchey
RFS Hotel Investors, Inc.
850 Ridge Lake Boulevard, Suite 200
Memphis, Tennessee 38120
(901) 767-7005
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
David C. Wright
Hunton & Williams
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, Virginia 23219
(804) 788-8200
-------------------------------
CALCULATION OF REGISTRATION FEE
=========================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered per share offering price registration fee
- ---------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 500,000 Shares $14.50* $7,250,000* $1,812.50*
per share
=========================================================================================================
(*) Calculated pursuant to Rule 457(c) of the Securities Act of 1933, as amended
(the "Securities Act"), based on the average of the high and low prices of RFS
Hotel Investors, Inc. common stock (the "Common Stock") on The New York Stock
Exchange on August 21, 2001.
================================================================================
2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with the Securities and Exchange Commission
(the "Commission").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with the Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by RFS Hotel Investors, Inc. (the
"Company") with the Commission pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), are hereby incorporated by reference into this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000.
(b) The Company's Quarterly Report on Form 10-Q for each of the
quarter ended March 31, 2001 and the quarter ended June 30, 2001.
(c) The Company's reports on Form 8-K filed as of August 3, 2001, May
3, 2001, January 16, 2001, January 31, 2001 and May 12, 1999 and
the Company's report on Form 8-K-A filed as of March 20, 2001.
(d) The Company's definitive proxy statement dated March 22, 2001 in
connection with the annual meeting of shareholders held on May 3,
2001.
(e) The description of the Company's common stock on Form 8-A dated
August 1, 1996.
In addition to the foregoing, all documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that all
securities registered hereunder have been issued or which deregisters all
securities offered then remaining unsold, shall be deemed incorporated by
reference in this Registration Statement and to be a part hereof from the date
of the filing of such documents. Any statement, including financial statements,
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 document 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 of this Registration Statement.
The Company will provide on request and without charge to each person
to whom this prospectus is delivered a copy (without exhibits) of any or all
documents incorporated by reference into this Registration Statement. Requests
for such copies should be directed to RFS Hotel Investors, Inc., 850 Ridge Lake
Boulevard, Suite 200, Memphis, Tennessee 38120; Attention: Secretary (telephone:
901-767-7005).
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
2
3
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Charter obligates the Company to indemnify and advance
expenses to present and former directors and officers to the maximum extent
permitted by Tennessee law. The Tennessee Business Corporation Act ("TBCA")
permits a corporation to indemnify its present and former directors and
officers, among others, against judgments, settlements, penalties, fines or
reasonable expenses incurred with respect to a proceeding to which they may be
made a party by reason of their service in those or other capacities if (i) such
persons conducted themselves in good faith, (ii) they reasonably believed, in
the case of conduct in their official capacities with the corporation, that
their conduct was in its best interests and, in all other cases, that their
conduct was at least not opposed to its best interests, and (iii) in the case of
any criminal proceeding, they had no reasonable cause to believe that their
conduct was unlawful. The Company has entered into indemnification agreements
with its executive officers and directors providing for indemnification by the
Company of its executive officers and directors to the fullest extent permitted
by applicable law.
Any indemnification by the Company pursuant to the provisions of the
Charter or indemnification agreements described above shall be paid out of the
assets of the Company and shall not be recoverable from the shareholders. To the
extent that the foregoing indemnification provisions purport to include
indemnification for liabilities arising under the Securities Act, in the opinion
of the Commission such indemnification is contrary to public policy and is,
therefore, unenforceable.
The TBCA permits the charter of a Tennessee corporation to include a
provision eliminating or limiting the personal liability of its directors to the
corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, except that such provision cannot eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its shareholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of the law,
without violating the TBCA or the corporation's charter. The Company's Charter
contains a provision eliminating the personal liability of its directors or
officers to the Company or its shareholders for money damages to the maximum
extent permitted by Tennessee law from time to time.
The Fifth Amended and Restated Agreement of Limited Partnership of RFS
Partnership, L.P. (the "Partnership"), as amended, provides, generally, for the
indemnification of an "indemnitee" against losses, claims, damages, liabilities,
judgments, fines, settlements and other amounts (including reasonable expenses)
that relate to the operations of the Partnership unless it is established that
(i) the act or omission of the Indemnitee was material and either was committed
in bad faith or pursuant to active and deliberate dishonesty, (ii) the
Indemnitee actually received an improper personal benefit in money, property or
services, or (iii) in the case of any criminal proceeding, the Indemnitee had
reasonable cause to believe that the act or omission was unlawful. For this
purpose, the term "Indemnitee" includes any person made a party to a proceeding
by reason of his status as a director or officer of the Partnership, or the
Company, and such other persons (including affiliates of the Company or the
Partnership) as the Company, may designate from time to time in its discretion.
Any such indemnification will be made only out of assets of the Partnership, and
in no event may an Indemnitee subject the limited partners of the Partnership to
personal liability by reason of the indemnification provisions in the
Partnership Agreement. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 (the "Securities Act") may be permitted pursuant to
the foregoing provisions or otherwise, the Partnership has been advised that, in
the opinion of the Commission, such indemnification is against public policy
and, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
3
4
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration
Statement:
EXHIBIT NO.
-----------
3.1 Second Restated Charter of the Company (previously filed as
Exhibit 4.1 to the Company's Registration Statement on Form
S-3, (Registration Statement No. 333-3307) and incorporated by
reference hereto).
3.1(a) Articles of Amendment to the Second Amended and Restated
Charter of the Company (previously filed as Exhibit 3.1 to the
Company's current report on Form 8-K dated January 16, 2001
and incorporated by reference hereto).
3.2 Bylaws of the Company (previously filed as Exhibit 3.2 to the
Company's Registration Statement on Form S-11 (Registration
No. 33-63696) and incorporated by reference hereto).
4.1 RFS Hotel Investors, Inc. Employee Stock Purchase Plan.
5.1 Opinion of Hunton & Williams as to the legality of the
securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Hunton & Williams (included in the opinion filed as
Exhibit 5.1 to this Registration Statement on Form S-8).
24.1 Powers of Attorney (located on the signature pages of this
Registration Statement).
ITEM 9. UNDERTAKINGS.
A. SUBSEQUENT DISCLOSURE.
The Company hereby undertakes:
(1)To file, during any period in which offers or sales are being made of
the securities registered hereby, 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 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 material information with respect to the plan
of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that the undertakings set forth in paragraphs
(A)(1)(i) and (ii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the Commission by the
Company, pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement.
4
5
(2)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.
(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. INCORPORATION BY REFERENCE.
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, and, where
applicable, each filing on an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act, that is incorporated by reference in this
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.
C. COMMISSION POSITION ON INDEMNIFICATION.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
5
6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Memphis, State of Tennessee, on the 22nd day of
August, 2001.
RFS HOTEL INVESTORS, INC.
(Registrant)
BY: /s/ Randall L. Churchey
----------------------------------------
Randall L. Churchey
President and Chief Operating Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated. Each of the undersigned, in his capacity
as officer or director, or both, as the case may be, of RFS Hotel Investors,
Inc. does hereby appoint Randall L. Churchey and Kevin M. Luebbers, and each of
them severally, his true and lawful attorneys or attorney to execute in his
name, place and stead, in his capacity as director or officer, or both, as the
case may be, this Registration Statement and any and all amendments and
post-effective amendments thereto, and all instruments necessary or incidental
in connection therewith and to file the same with the Securities and Exchange
Commission. Each of said attorneys shall have power to act hereunder with or
without the other attorney and shall have full power and authority to do and
perform in the name and on behalf of each of said directors or officers, or both
as the case may be, every act whatsoever requisite or necessary to be done in
the premises, as fully and to all intents and purposes as which each of said
officers or directors, or both, as the case may be, might or could do in person,
hereby ratifying and confirming all that said attorneys or attorney may lawfully
do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Robert M. Solmson Chief Executive Officer and August 22, 2001
- ------------------------------------ Chairman of the Board (Principal
Robert M. Solmson Executive Officer)
/s/ Randall L. Churchey President, Chief Operating August 22, 2001
- ------------------------------------ Officer and Director
Randall L. Churchey
/s/ Kevin M. Luebbers Executive Vice President, August 22, 2001
- ------------------------------------ Secretary, Treasurer and Chief
Kevin M. Luebbers Financial Officer (Principal
Financial and Accounting Officer)
/s/ Bruce E. Campbell Director August 22, 2001
- ------------------------------------
Bruce E. Campbell
/s/ H. Lance Forsdick Director August 22, 2001
- ------------------------------------
H. Lance Forsdick
/s/ R. Lee Jenkins Director August 20, 2001
- ------------------------------------
R. Lee Jenkins
6
7
/s/ Richard Reiss, Jr. Director August 21, 2001
- ------------------------------------
Richard Reiss, Jr.
/s/ Michael S. Starnes Director August 22, 2001
- ------------------------------------
Michael S. Starnes
/s/ John W. Stokes, Jr. Director August 21, 2001
- ------------------------------------
John W. Stokes, Jr.
/s/ Karl L. Matthies Director August 22, 2001
- ------------------------------------
Karl L. Matthies
7
8
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
----------- -----------
3.1 Second Restated Charter of the Company (previously filed as
Exhibit 4.1 to the Company's Registration Statement on Form
S-3, (Registration Statement No. 333-3307) and incorporated by
reference hereto).
3.1(a) Articles of Amendment to the Second Amended and Restated
Charter of the Company (previously filed as Exhibit 3.1 to the
Company's current report on Form 8-K dated January 16, 2001
and incorporated by reference hereto).
3.2 Bylaws of the Company (previously filed as Exhibit 3.2 to the
Company's Registration Statement on Form S-11 (Registration
No. 33-63696) and incorporated by reference hereto).
4.1 RFS Hotel Investors, Inc. Employee Stock Purchase Plan.
5.1 Opinion of Hunton & Williams as to the legality of the
securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Hunton & Williams (included in the opinion filed as
Exhibit 5.1 to this Registration Statement on Form S-8).
24.1 Powers of Attorney (located on the signature pages of this
Registration Statement).
8