As filed with the Securities and Exchange Commission on April 7, 2000
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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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STARWOOD FINANCIAL INC.
(Exact Name of Registrant as Specified in its Charter)
MARYLAND 95-6881527
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
1114 Avenue of the Americas, 27th Floor
New York, New York 10036
(Address of Principal Executive Offices) (Zip Code)
STARWOOD FINANCIAL INC. 1996 LONG-TERM INCENTIVE PLAN
(Full Title of the Plan)
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Jay Sugarman
Starwood Financial Inc.
1114 Avenue of the Americas, 27th Floor
New York, New York 10036
(Address of Principal Executive Offices)
(212) 930-9400
(Telephone Number, Including Area Code, of Agent For Service)
with a copy to:
James B. Carlson
Mayer, Brown & Platt
1675 Broadway
New York, NY 10019
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum Amount of
Title of Securities to be Amount to be Offering Price Aggregate Registration
Registered Registered Per Share (1) Offering Price (1) Fee
- ------------------------------------ ----------------------- ------------------ ------------------ ------------------
Common Stock, $.001 par value 5,426,269 shares(2) $17.625 $95,637,991 $25,248
==================================== ======================= ================== ===================== ==================
(1) Pursuant to Rule 457(h)(1) estimated solely for the purpose of computing
the registration fee on the basis of the average of the high and low prices
reported in the consolidated reporting system for the shares of common
stock on March 31, 2000.
(2) Pursuant to Rule 416 of the Securities Act of 1933, as amended, the
registration statement also covers such additional shares as may be issued
to prevent dilution of the shares covered hereby resulting from stock
splits, stock dividends and similar transactions.
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 3. Incorporation of documents by reference.
The following documents of Starwood Financial Inc. (the "Company") and
its predecessor, Starwood Financial Trust (the "Predecessor") which are on file
with the Securities and Exchange Commission pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), are incorporated by reference
herein and shall be deemed to be a part hereof:
(a) The Company's Annual Report on Form 10-K for the
year ended December 31, 1999;
(b) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A,
File No. 1-15371, dated October 5, 1999.
All documents we subsequently file pursuant to Section 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended, 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, will
be deemed incorporated by reference in this Registration Statement and to be a
part of it from the date of filing those documents.
For purposes of this Registration Statement, any statement contained in
a report, document or appendix incorporated or deemed incorporated by reference
in this Registration Statement will be deemed modified or superseded to the
extent that a statement contained in this Registration Statement or in any
subsequently filed report, document or appendix which also is or is deemed
incorporated by reference modifies or supersedes that statement in that report,
document or appendix. Any statement so modified or superseded will not be
deemed, except as modified or superseded, to constitute a part of this
Registration Statement.
Upon the written or oral request of any person to whom this
Registration Statement has been delivered, we will provide without charge to
that person a copy of any of the information (excluding exhibits unless such
exhibits are specifically incorporated by reference into such information) that
has been incorporated by reference into this Registration Statement but not
delivered with it. Requests should be directed to Investor Relations at the
following address and telephone number:
Starwood Financial Inc., 1114 Avenue of the Americas, 27th Floor, New
York, New York 10036 (212) 930-9400.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
As permitted by the MGCL, Article VII of our Charter (the "Charter")
provides for the limitation of the liability of our directors and officers as
follows:
To the fullest extent permitted by Maryland statutory or
decisional law, as amended or interpreted, no director or
officer of the Corporation shall be personally liable to
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the Corporation or its Stockholders for money damages. No
amendment of the Charter of the Corporation or repeal of any
of its provisions shall limit or eliminate the limitation on
liability provided to directors and officers hereunder with
respect to any act or omission occurring prior to such
amendment or repeal. In addition to any Maryland statute
limiting the liability of directors or officers of a Maryland
corporation, no director or officer of the Corporation shall
be liable to the Corporation or to any director for any act or
omission of any other director, stockholder, officer, or agent
of the Corporation or be held to any personal liability
whatsoever in tort, contract, or otherwise in connection with
the affairs of this Corporation except only that arising from
his own willful violation of the provisions of this Charter or
of the Bylaws which violation is materially against the
interests of the stockholders and results in material harm to
such interests, or gross negligence in the performance of his
or her duties.
As permitted by the MGCL, our Charter provides for indemnification of
our directors and officers as follows:
The Corporation shall indemnify (i) its directors and
officers, whether serving the Corporation or, at its request,
any other entity, to the full extent required or permitted by
the General Laws of the State of Maryland now or hereafter in
force, including the advance or reimbursement of reasonable
expenses as incurred (including reasonable attorneys fees)
under the procedures and to the full extent permitted by law
and (ii) other employees and agents to such extent as shall be
authorized by the Board or the Corporation's Bylaws and be
permitted by law. The foregoing rights of indemnification
shall not be exclusive of any other rights to which those
seeking indemnification may be entitled. The Board may take
such action as is necessary to carry out these indemnification
provisions and is expressly empowered to adopt, approve and
amend from time to time such Bylaws, resolutions or contracts
implementing such provisions or such further indemnification
arrangements as may be permitted by law. No amendment of the
Charter or repeal of any of its provisions shall limit or
eliminate the right to indemnification provided hereunder with
respect to acts or omissions occurring prior to such amendment
or repeal.
Section 12.1 of our Bylaws implements the Indemnification provisions of
our Charter. The Bylaws state that, to the maximum extent permitted by Maryland
law, as amended from time to time, the Company shall indemnify and hold
harmless, and pay or reimburse reasonable expenses in advance of final
disposition of a proceeding, to each director and officer.
Section 2-418 of the MGCL permits the charter of a Maryland corporation
to include a provision limiting the liability of directors and officers to the
corporation and its stockholders for money damages, except when it is
established that (i) the act or omission was material to the matter giving rise
to the proceeding and either (a) was committed in bad faith, or (b) was the
result of active and deliberate dishonesty, (ii) the person actually received an
improper benefit or profit in money, property or services, or (iii) in the case
of any criminal proceeding, the trustee has reasonable cause to believe that the
omission was unlawful.
As permitted under Section 2-418 of the MGCL, we have purchased and
maintain insurance on behalf of our directors and officers against any liability
asserted against such directors and officers in their capacities as such,
whether or not we would have the power to indemnify such persons under the
provisions of Maryland law governing indemnification.
We have also entered into indemnification agreements with each of our
directors and executive officers. The indemnification agreements provide that we
will indemnify the directors and executive officers to the fullest extent
permitted under law against certain liabilities (including settlements) and
expenses actually and reasonably incurred by them in connection with any
threatened or pending legal action, proceeding or investigation to which any of
them is, or is threatened to be, made a party by reason of their status as a
director, officer or agent of Starwood Financial, or by reason of their serving
at our request; provided that the director or executive officer acted in a
manner determined in good faith to be within the scope of his authority and to
be in our best interest and so long as the director or executive officer was not
guilty of gross negligence, misconduct or a breach of his fiduciary obligation
in the act or failure to act. We will not indemnify the director and executive
officer to the extent prohibited by our Charter or Section 2.418 of the MGCL. If
an amendment to the Charter or Section 2.418 of the MGCL with respect to removal
of
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limitations on indemnification is approved, the indemnification agreements will
be amended accordingly. We are not required to indemnify any director or
executive officer for liabilities: (1) for which he receives payment under an
insurance policy, except for the excess beyond payment under such insurance, or
which could have been claimed under an expired insurance policy; (2) based upon
or attributable to his gaining in fact any personal profit or advantage to which
he is not legally entitled; (3) resulting from an accounting of profits under
Section 16(b) of the Securities Exchange Act of 1934; (4) brought about or
contributed to by his dishonesty, willful misconduct or bad faith unless a
judgment or other final adjudication adverse to the director or executive
officer establishes that he was not guilty of the claimed conduct and that the
conduct was not material to the course of the action so adjudicated.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
See Index to Exhibits.
Item 9. Undertakings.
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;
(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 registration
statement is on Form S-3 or Form S-8, and 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 Securities Exchange Act of 1934
that are incorporated by reference 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 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.
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 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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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 provisions of the registrant's
articles of incorporation or by-laws 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 Securities Act of
1933 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 of 1933 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 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 New York, State of New York, on the 7th day of
April, 2000.
STARWOOD FINANCIAL INC.
By: /s/ Jay Sugarman
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Name: Jay Sugarman
Title: Chief Executive Officer and
President
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POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Jay Sugarman and Spencer B. Haber and each of them, the true and lawful
attorneys-in-fact and agents of the undersigned, with full power of substitution
and resubstitution, for and in the name, place and stead of the undersigned, 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, and hereby grants to such attorneys-in-fact
and agents, and each of them, 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 the undersigned 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.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in their
respective capacities on the 7th day of April, 2000.
Name Title Date
---- ----- ----
/s/ Barry S. Sternlicht Chairman of the Board of Directors April 7, 2000
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Barry S. Sternlicht
/s/ Jay Sugarman Chief Executive Officer and President April 7, 2000
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Jay Sugarman
/s/ Spencer B. Haber Executive Vice President - Finance and April 7, 2000
- --------------------------------------- Chief Financial Officer, Director
Spencer B. Haber
/s/ Willis Andersen, Jr. Director April 7, 2000
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Willis Andersen, Jr.
/s/ Jeffrey G. Dishner Director April 7, 2000
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Jeffrey G. Dishner
/s/ Jonathan D. Eilian Director April 7, 2000
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Jonathan D. Eilian
/s/ Madison F. Grose Director April 7, 2000
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Madison F. Grose
/s/ Robert W. Holman, Jr. Director April 7, 2000
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Robert W. Holman, Jr.
/s/ Robin Josephs Director April 7, 2000
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Robin Josephs
/s/ Merrick R. Kleeman Director April 7, 2000
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Merrick R. Kleeman
/s/ William M. Matthes Director April 7, 2000
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William M. Matthes
/s/ John G. McDonald Director April 7, 2000
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John G. McDonald
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Name Title Date
---- ----- ----
/s/ Michael G. Medzigian Director April 7, 2000
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Michael G. Medzigian
/s/ Stephen B. Oresman Director April 7, 2000
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Stephen B. Oresman
/s/ George R. Puskar Director April 7, 2000
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George R. Puskar
/s/ Kneeland C. Youngblood Director April 7, 2000
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Kneeland C. Youngblood
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INDEX TO EXHIBITS
Exhibit
Number Description of Exhibit
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5 Opinion of Ballard Spahr Andrews & Ingersoll, LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Ballard Spahr Andrews & Ingersoll, LLP
(included in its opinion filed as Exhibit 5 hereto)
25 Powers of Attorney (included on the signature page of the
registration statement)
EXHIBIT 5
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[BSAI LETTERHEAD]
[DRAFT]
FILE NUMBER
877882
April 7, 2000
Starwood Financial Inc.
27th Floor
1114 Avenue of the Americas
New York, New York 10036
Re: Starwood Financial Inc.: Registration
Statement on Form S-8
--------------------------------------
Ladies and Gentlemen:
We have served as Maryland counsel to Starwood Financial Inc., a
Maryland corporation (the "Company"), in connection with certain matters of
Maryland law arising out of the registration of 5,426,269 shares (the "Shares")
of common stock, $.001 par value per share, of the Company ("Common Stock")
covered by the above-referenced Registration Statement, and all amendments
thereto (the "Registration Statement"), filed on or about the date hereof with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "1933 Act"). The Shares are issuable by the Company
upon the exercise of options (the "Options") to be granted by the Company
pursuant to the Company's 1996 Long-Term Incentive Plan (the "Plan").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Registration Statement.
In connection with our representation of the Company, and as a basis
for the opinion hereinafter set forth, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the following
documents (hereinafter collectively referred to as the "Documents"):
1. The Registration Statement, including the form of the Plan
included therein;
2. The charter of the Company (the "Charter"), certified as of
a recent date by the State Department of Assessments and Taxation
of Maryland (the "SDAT");
Starwood Financial Inc.
April 7, 2000
Page 2
3. The Bylaws of the Company, certified as of the date hereof
by an officer of the Company;
4. A certificate of the SDAT as to the good standing of the
Company, dated as of a recent date;
5. Resolutions adopted by the Board of Directors of the Company
(the "Resolutions"), certified as of the date hereof by an officer
of the Company;
6. A certificate executed by an officer of the Company, dated
the date hereof; and
7. Such other documents and matters as we have deemed
necessary or appropriate to express the opinion set forth below,
subject to the assumptions, limitations and qualifications stated
herein.
In expressing the opinion set forth below, we have assumed the
following:
1. Each individual executing any of the Documents, whether on
behalf of such individual or another person, is legally competent to
do so.
2. Each individual executing any of the Documents on behalf of
a party (other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any
of the Documents has duly and validly executed and delivered each of
the Documents to which such party is a signatory, and such party's
obligations set forth therein are legal, valid and binding and are
enforceable in accordance with all stated terms.
4. Any Documents submitted to us as originals are authentic.
The form and content of any Documents submitted to us as unexecuted
drafts do not differ in any respect relevant to this opinion from the
form and content of such Documents as executed and delivered. Any
Documents submitted to us as certified or photostatic copies conform to
the original documents. All signatures on all such Documents are
genuine. All public records reviewed or relied upon by us or on our
behalf are true and complete. All statements and information contained
in the Documents are true and complete. There has been no oral or
written modification of or amendment to any of the Documents, and there
has been no waiver of any provision of any of the Documents, by action
or omission of the parties or otherwise.
Starwood Financial Inc.
April 7, 2000
Page 3
5. Upon issuance of any of the Shares, the total number of
shares of Common Stock issued and outstanding will not exceed the
total number of shares of Common Stock that the Company is then
authorized to issue and the Shares will not be issued or transferred
in violation of any restriction or limitation contained in the Charter.
6. The issuance of the Options and the Shares will be duly
authorized by the Board of Directors of the Company (the "Board") at
a duly called meeting, at which a quorum is present and acting
throughout, or by unanimous written consent of the Board (the
"Corporate Proceedings").
7. Each Option will be duly authorized and validly granted in
accordance with the Plan and exercised in accordance with its terms
at the time of any exercise of such Option.
Based upon the foregoing, and subject to the assumptions, limitations
and qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing
under and by virtue of the laws of the State of Maryland and is in good
standing with the SDAT.
2. Upon completion of the Corporate Proceedings, the Shares
will be duly authorized for issuance and, when and if issued and
delivered against payment therefor in accordance with the Charter, the
resolutions authorizing their issuance and the Plan, will be validly
issued, fully paid and nonassessable.
The foregoing opinion is limited to the substantive laws of the State
of Maryland and we do not express any opinion herein concerning any other law.
We express no opinion as to compliance with any federal or state securities
laws, including the securities laws of the State of Maryland, or as to federal
or state laws regarding fraudulent transfers. We assume no obligation to
supplement this opinion if any applicable law changes after the date hereof or
if we become aware of any fact that might change the opinion expressed herein
after the date hereof.
Starwood Financial Inc.
April 7, 2000
Page 4
This opinion is being furnished to you for submission to the Commission
as an exhibit to the Registration Statement and, accordingly, may not be relied
upon by, quoted in any manner to, or delivered to any other person or entity
(except Mayer, Brown & Platt, counsel to the Company, in connection with any
opinion rendered by it on the date hereof relating to the Shares) without, in
each instance, our prior written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of the name of our firm therein. In giving
this consent, we do not admit that we are within the category of persons whose
consent is required by Section 7 of the 1933 Act.
Very truly yours,
Ballard Spahr Andrews & Ingersoll
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
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We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 6, 2000 relating to the
financial statements and financial statement schedules of Starwood Financial
Inc., which appears in Starwood Financial Inc.'s Annual Report on Form 10-K for
the year ended December 31, 1999.
PricewaterhouseCoopers LLP
New York, NY
April 4, 2000