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Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Lodgian, Inc.
(Exact name of registrant as specified in its charter)
Delaware 65-0350241
(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification No.)
3445 Peachtree Road NE., Suite 700
Atlanta, GA 30326
(Address of principal executive offices, including zip code)
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Lodgian, Inc., 401(k) Plan
(Full title of Plan)
Karyn A. Gutierrez
Executive Vice President and Chief Operating Officer
Lodgian, Inc.
3445 Peachtree Road NE., Suite 700
Atlanta, GA 30326
404-364-9400
(Name, address and telephone number,
including area code of agent for service)
With a Copy To:
Michael C. Ryan, Esq.
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum Amount of
Title of securities to be Amount to be offering price aggregate registration
registered(1) registered per share(2) offering price fee
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Common Stock, par
value $.01 per share 1,500,000 shares $0.45 $675,000 $168.75
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(1) In addition, pursuant to Rule 416 (c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(2) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(h) on the basis of the average of the high and low prices
of the Common Stock as reported on the New York Stock Exchange on August 20,
2001.
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PART I
INFORMATION REQUIRED IN THE SECTION 10 (A) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 will be sent or given to participating officers and employees as specified
by Rule 428 (b) (1) of the Securities Act of 1933, as amended (the "Securities
Act"). The documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II below, taken together,
constitute a prospectus that meets the requirements of Section 10 (a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Lodgian, Inc. (the "Registrant") with
the Securities and Exchange Commission (the "SEC") are incorporated herein by
this reference:
1. The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 2000.
2. The Registrant's Annual Report of Employee Stock
Purchase Plans on Form 11-K for the fiscal year ended
December 31, 2000.
3. The Registrant's Quarterly Reports on Form 10-Q for
the quarters ended March 31, 2001 and June 30, 2001.
4. The Registrant's Report on Form 8-K, dated August 31,
2000.
5. The description of the Registrant's common stock,
$.01 par value per share, contained in the
Registrant's Form 8-A, dated September 29, 1998.
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, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered 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
The Registrant'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 Registrant 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 Registrant 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 Registrant, 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 Registrant 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
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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 Registrant 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 Registrant 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.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits(1)
4.1 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Appendix G of the Registrant's
Registration Statement on Form S-4, filed July 17, 1998, as
amended.)
4.2 Restated Bylaws of the Registrant (incorporated by reference
to Appendix H of the Registrant's Registration Statement on
Form S-4, filed July 17, 1998, as amended).
4.3 Registration Rights Agreement among Lodgian Capital Trust
Inc., Servico, Inc., and NationsBanc Montgomery Securities,
LLC (incorporated by reference to exhibits and appendices to
the Registrant's Registration Statement on Form S-4, as
amended, filed on July 17, 1998).
4.4 Registration and Rights Agreement between Lodgian, Inc., and
certain unitholders of Impac Hotel Group, LLC (incorporated by
reference to exhibits and appendices to the Registrant's
Registration Statement on Form S-4, as amended, filed on July
17, 1998).
4.5 Registration of Rights Agreement to purchase participating
Preferred Stock between the Registrant and First Union - as
Rights Agent (incorporated by reference to the Registrant's
Form 8 A dated April 1, 1999).
4.6 Lodgian, Inc., 401(k) Plan
23.1 Consent of Independent Certified Public Accountants.
24.1 Powers of Attorney (included as part of the Signature Page of
this Registration Statement).
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(1) In lieu of an opinion of counsel concerning compliance with the requirements
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
and that the Plan is qualified under Section 401 of the Internal Revenue Code of
1986, as amended (the "Code"), the Registrant hereby undertakes that it has
submitted the Plan and any amendments thereto to the Internal Revenue Service
("IRS") in a timely manner and it has made all changes as required by the IRS in
order to qualify the Plan.
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Item 9. Undertakings
(a) The 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;
(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.
Notwithstanding the foregoing, any
increase or decrease in 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
Commission pursuant to Rule 424 (b)
if, in the aggregate, the changes
in volume and price represent no
more than a 20% change in the
maximum aggregate offering price
set forth in the "Calculation of
Registration Fee" table in the
effective 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) (1)
(i) and (a) (1) (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 registrant pursuant to Section 13 or
Section 15 (d) of the Exchange Act that are
incorporated by reference in the
Registration Statement.
(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) That, for purposes of determining any liability under
the Securities Act, each filing of the Registrant's
annual report pursuant to Section 13 (a) or Section
15 (d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual
report pursuant to 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.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to
directors, officers, and controlling persons of the
Registrant pursuant to
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any provision or arrangement whereby the Registrant
may indemnify a director, officer or controlling
person of the Registrant against liabilities arising
under the Securities Act, or otherwise, the
Registrant 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 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 Securities Act and will be governed
by the final adjudication of such issue.
(d) The Registrant undertakes that it will submit and it
has submitted the Lodgian, Inc., 401(k) Plan (the
"Plan") and any restatement thereof, or amendments
thereto to the IRS in a timely manner and has made
and will make all changes required by the IRS in
order to qualify the Plan under Section 401 of the
Internal Revenue Code of 1986, as amended.
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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 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 Atlanta, State of Georgia, on the 24th day of August,
2001.
Lodgian, Inc.
By: /s/ Karyn A. Gutierrez
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Name: Karyn A. Gutierrez
Title: Executive Vice President
and Chief Operating Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THEE PRESENTS, that each person whose signature appears
below constitutes and appoints Karyn A. Gutierrez, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments, including post-effective amendments, to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that the said attorney-in-fact and agent, 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, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
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/s/ Joseph C. Calabro
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Joseph C. Calabro Director and Chairman of the August 24, 2001
Board
/s/ Thomas Arasi
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Thomas Arasi Director, President and August 24, 2001
Chief Executive Officer
/s/ Charles E. Miller, Jr.
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Charles E. Miller, Jr. Chief Accounting Officer and August 24, 2001
Corporate Controller
/s/ Karyn A. Gutierrez
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Karyn A. Gutierrez Executive Vice President August 24, 2001
and Chief Operating Officer
/s/ Robert Cole
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Robert Cole Director August 24, 2001
/s/ John M. Lang
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John M. Lang Director August 24, 2001
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/s/ Peter R. Tyson
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Peter R. Tyson Director August 24, 2001
/s/ Richard H. Weiner
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Richard H. Weiner Director August 24, 2001
Pursuant to the requirements of the Securities Act of 1933, the trustee
of the Lodgian, Inc., 401(k) Plan has duly caused this Registration Statement to
be signed on its behalf by the undersigned, thereto duly authorized, in the city
of Atlanta, State of Georgia, on August 24, 2001.
LODGIAN, INC., 401(k) PLAN
/s/ Karyn A. Gutierrez
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KARYN A. GUTIERREZ
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INDEX TO EXHIBITS
Sequentially
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Exhibit No. Description Numbered Page
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4.3 Lodgian, Inc., 401(k) Plan 10
23.2 (1) Consent of Arthur Andersen, LLP
23.2 (2) Consent of Ernst & Young, LLP
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