As filed with the Securities and Exchange Commission on ____________, 1999
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
HUDSON HOTELS CORPORATION
(Exact name of Registrant as specified in its charter)
NEW YORK 16-1312167
(State or other jurisdiction of (IRS Employer Identification Number)
incorporation or organization)
300 BAUSCH & LOMB PLACE, ROCHESTER, NY 14604
(716) 454-3400
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive office)
HUDSON HOTELS CORPORATION
RETIREMENT AND SAVINGS PLAN
(Full title of plan)
E. ANTHONY WILSON, CHAIRMAN
HUDSON HOTELS CORPORATION
300 BAUSCH & LOMB PLACE
ROCHESTER, NY 14604
TELEPHONE: (716) 454-3400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
ALAN S. LOCKWOOD, ESQ.
BOYLAN, BROWN, CODE, FOWLER, VIGDOR & WILSON, LLP
2400 CHASE SQUARE
ROCHESTER, NY 14604
Page 1 of 9 Pages
Exhibit Index at Page 9
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Offering Aggregate
Securities to Amount to be Price Per Offering Amount of
Be Registered Registered (1) Share (2) Price (2) Registration Fee
- ------------- --------------- ------------- -------------- ----------------
Common Shares, 31,740 shares $1.125 $35,707.50 $9.93
$.001 par value
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(1) These shares represent the Company's contribution to the Retirement
and Savings Plan (the "Plan") to match 25% of its employees' contributions. In
addition, pursuant to Rule 416(c) under the Securities Act, this Registration
Statement covers an indeterminate number of shares to be offered or sold
pursuant to the Plan described herein.
(2) Estimated solely for the purpose of calculating the registration
fee pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933 and
based upon the average of the high and low sales prices of the Registrant's
Common Shares as reported on the Nasdaq National Market on July 20, 1999.
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") by Hudson Hotels Corporation (the
"Registrant") are incorporated by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998.
(b) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1999.
(c) The description of the Registrant's Common Shares
contained in the Registrant's Registration Statement on Form S-18 filed by the
Registrant with the Securities and Exchange Commission on January 27, 1989,
including any amendment or report filed for the purpose of updating such
description.
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 to this
Registration Statement which indicates that all securities offered hereby have
been sold or which deregisters all securities remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents (such documents, and the
documents enumerated above, being hereafter referred to as "Incorporated
Documents").
Any statement contained in an Incorporated Document 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
Incorporated Document modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Inapplicable. The class of securities to be offered is registered under
Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Legal matters in connection with the Common Shares issuable under the
Plan will be passed upon by Messrs. Boylan, Brown, Code, Fowler, Vigdor &
Wilson, LLP, 2400 Chase Square, Rochester, NY 14604. Alan S. Lockwood, a partner
of this firm, is a
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Director and Secretary of the Registrant. He owns and has options to purchase
Common Shares of the Registrant. He is not eligible to participate in the Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Restated Certificate of Incorporation of the Registrant (the
"Restated Certificate"), provides in relevant part that
To the fullest extent now or hereafter provided for or
permitted by law, directors shall not be liable to the Corporation or
to its shareholders for damages for any breach of duty in their
capacity as directors.
Sections 721 through 726 of the Business Corporation Law of the State
of New York (the "BCL") provide the statutory basis for the indemnification by a
corporation of its officers and directors when such officers and directors have
acted in good faith, for a purpose reasonably believed to be in the best
interests of the corporation, and subject to specified limitations set forth in
the BCL.
The BCL was also amended in 1986 to allow corporations to provide for
indemnification of corporate directors and officers on a broader basis than had
previously been permissible. Pursuant to this statutory authority, and as
authorized by Article V of the Registrant's By-Laws, directors and officers of
the Registrant, and certain Registrant employees, have been availed of the
broadest scope of permissible indemnification coverage consistent with the BCL
changes.
Article V of the Registrant's By-Laws provide as follows:
5.1 INDEMNIFICATION. The Corporation shall indemnify (a) any
person made or threatened to be made a party to any action or
proceeding by reason of the fact that he, his testator or intestate, is
or was a director or officer of the Corporation and (b) any director or
officer of the Corporation who served any other company in any capacity
at the request of the Corporation, in the manner and to the maximum
extent permitted by the Business Corporation Law of New York, as
amended from time to time; and the Corporation may, in the discretion
of the Board of Directors, indemnify all other corporate personnel to
the extent permitted by law.
5.2 AUTHORIZATION. The provisions for indemnification set
forth in Section 5.1 hereof shall not be deemed to be exclusive. The
Corporation is hereby authorized to further indemnify its directors or
officers in the manner and to the extent set forth in (i) a resolution
of the shareholders,(ii) a resolution of
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the directors, or (iii) an agreement providing for such
indemnification, so long as such indemnification shall not be expressly
prohibited by the provisions of the Business Corporation Law of New
York.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
ITEM 8. EXHIBITS.
See Exhibit Index.
ITEM 9. UNDERTAKINGS.
(a) RULE 415 OFFERING
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:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933 (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
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 with or furnished to the Commission 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.
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(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) INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE
The undersigned Registrant hereby undertakes 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 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) INDEMNIFICATION FOR LIABILITIES ARISING UNDER THE
SECURITIES ACT OF 1933
Insofar as indemnification by the Registrant for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the provisions
described in Item 6, 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.
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SIGNATURES
Pursuant to the requirement 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 had duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Rochester, State of New York on July 23, 1999.
Hudson Hotels Corporation
By: /s/ E. Anthony Wilson
------------------------------------------
E. Anthony Wilson
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints each of E. Anthony Wilson and John M. Sabin,
acting alone or together, as such person's true and lawful attorney-in-fact and
agent with full powers of substitution and revocation, for such person and in
such person's 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, acting alone, 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 such person might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent, acting
alone, 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 below by the following persons in the
capacities indicated on July 23, 1999.
Signature Title
--------- -----
/s/ E. Anthony Wilson
---------------------------------- Director, Chairman and
E. Anthony Wilson Chief Executive Officer (Principal
Executive Officer)
/s/ John M. Sabin
---------------------------------- Chief Financial Officer and
John M. Sabin Executive Vice President (Principal
Financial Officer)
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/s/ Taras M. Kolcio
---------------------------------- Chief Accounting Officer and
Taras M. Kolcio Vice President (Principal Accounting
Officer)
/s/ Ralph L. Peek
---------------------------------- Vice President, Treasurer
Ralph L. Peek and Director
/s/ Michael T. George
---------------------------------- President, Chief Operating Officer
Michael T. George and Director
/s/ Richard C. Fox
---------------------------------- Director
Richard C. Fox
/s/ Alan S. Lockwood
---------------------------------- Director
Alan S. Lockwood
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EXHIBIT INDEX
Exhibit
Number Description Location
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4.1 Hudson Hotels Corporation *
Retirement and Savings Plan and
Adoption Agreement
5.1 Opinion and consent of Boylan, *
Brown, Code, Fowler, Vigdor &
Wilson, LLP, counsel for the
Registrant as to the legality of
the Common Shares being registered
23.1 Consent of Bonadio & Co., LLP, *
Independent Public Accountants
23.2 Consent of PricewaterhouseCoopers, LLP, *
Independent Public Accountants
23.3 Consent of Boylan, Brown, Code, Included in Exhibit
Fowler, Vigdor & Wilson, LLP 5.1 to this Registra-
tion Statement
* Included as part of the electronic submission of this Registration
Statement.
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