<PAGE>
As filed with the Securities and Exchange Commission on July 25, 1996
Registration No. 333-
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN GENERAL HOSPITALITY CORPORATION
(Exact name of registrant as specified in its charter)
Maryland 75-2648842
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3860 West Northwest Highway
Suite 300
Dallas, Texas 75220
(Address of principal executive offices) (Zip Code)
American General Hospitality Corporation 1996 Incentive Plan
(Full title of the plan)
Steven D. Jorns
3860 West Northwest Highway
Suite 300
Dallas, Texas 75220
(Name and address of agent for service)
(214) 904-2000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================
Title of securities to be registered Amount to Proposed Proposed Amount of
be maximum maximum registration
registered offering aggregate fee
price(1) offering
price(1)
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 900,000 $19.75 $17,775,000 $6,129
=============================================================================================
</TABLE>
(1) The shares are to be offered at prices not presently determinable. The
offering price of such shares is estimated solely for the purpose of
determining the registration fee and is based on the maximum offering price
per share estimated solely for the purpose of calculating the registration
fee in connection with the Registrant's Registration Statement on Form S-11
(Registration No. 333-4568).
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The documents containing the information specified in this Item will be
sent or given to individuals who have been awarded options or shares of Common
Stock under the American General Hospitality Corporation 1996 Incentive Plan
(the "Plan"), and are not being filed with, or included in, this Registration
Statement on Form S-8 (the "Registration Statement") in accordance with the
rules and regulations of the Securities and Exchange Commission (the
"Commission").
Item 2. Registrant Information and Employee Plan Annual Information
The documents containing the information specified in this Item will be
sent or given to individuals who have been awarded options or shares of Common
Stock under the Plan and are not being filed with, or included in, this
Registration Statement in accordance with the rules and regulations of the
Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by American General Hospitality Corporation
(the "Company" or "Registrant") with the Commission are incorporated herein by
reference:
(1) The prospectus (the "Prospectus") relating to the offering by the
Registrant of 7,500,000 shares of its Common Stock, par value $0.01
per share (the "Common Stock"), filed with the Commission on May 3,
1996 pursuant to Rule 424(b)(1) under the Securities Act of 1933, as
amended (the "Securities Act"), which Prospectus is included in the
Registrant's Registration Statement on Form S-11 (File No. 333-4568)
(the "S-11 Registration Statement"), as amended, and as declared
effective by the Commission on July 25, 1996, which contains the
audited financial statements of the Registrant and its predecessors
for the period as of April 12, 1996 and the year ended December 31,
1995; and
(2) The Registrant's Registration Statement on Form 8-A, filed with
the Commission on July 5, 1996 pursuant to Section 12(b) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
which incorporates by reference the description of the Common Stock
contained in the Registrant's Prospectus, and any amendment or report
filed with the Commission for purposes of updating such description.
All documents subsequently filed by the Company pursuant to Section 13, 14
or 15(d) of 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 herein
by reference and to be a part hereof from the date of filing of such documents.
-2-
<PAGE>
Item 4. Description of Securities
Not Applicable.
Item 5. Interest of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
The Maryland General Corporation Law ("MGCL") permits a Maryland
corporation to include in its charter a provision limiting the liability of its
directors and officers to the corporation and its stockholders for money damages
except for liability resulting from (a) actual receipt of an improper benefit or
profit in money, property or services or (b) active and deliberate dishonesty
established by a final judgment as being material to the cause of action. The
Charter of the Company contains such a provision which eliminates such liability
to the maximum extent permitted by Maryland law.
The Charter of the Company obligates it, to the maximum extent permitted by
Maryland law, to indemnify and to pay or reimburse reasonable expenses in
advance of final disposition of a proceeding to any person (or the estate of any
person) who is or was a party to, or is threatened to be made a party to, any
threatened, pending or completed action, suit or proceeding whether or not by or
in the right of the Company, and whether civil, criminal, administrative,
investigative or otherwise, by reason of the fact that such person is or was a
director or officer of the Company, or is or was serving at the request of the
Company as a director, officer, trustee, partner, member, agent or employee of
another corporation, partnership, limited liability company, association, joint
venture, trust or other enterprise. The Charter also permits the Company to
indemnify and advance expenses to any person who served a predecessor of the
Company in any of the capacities described above and to any employee or agent of
the Company or a predecessor of the Company.
The MGCL requires a Maryland corporation (unless its charter provides
otherwise, which the Company's Charter does not) to indemnify a director or
officer who has been successful, on the merits or otherwise, in the defense of
any Maryland proceeding to which he is made a party by reason of his service in
that capacity. The MGCL permits a corporation to indemnify its present and
former directors and officers, among others, against judgments, penalties,
fines, settlements and reasonable expenses actually incurred by them in
connection with any proceeding to which they may be made a party by reason of
their service in those or other capacities unless it is established that (a) the
act or omission of the director or officer was material to the matter giving
rise to the proceeding and (i) was committed in bad faith or (ii) was the result
of active and deliberate dishonesty, (b) the director or officer actually
received an improper personal benefit in money, property or services or (c) in
the case of any criminal proceeding, the director or officer had reasonable
cause to believe that the act or omission was unlawful. However, a Maryland
corporation may not indemnify for an adverse judgment in a suit by or in the
right of the corporation. In addition, the MGCL requires the Company, as a
condition to advancing expenses, to obtain (a) a written affirmation by the
director or officer of his good faith belief that he has met the standard of
conduct necessary for indemnification by the Company as authorized by the Bylaws
and (b) a written statement by or on his behalf to repay the amount paid or
reimbursed by the Company if it shall ultimately be determined that the standard
of conduct was not met.
The Company intends to purchase director and officer liability insurance
for the purpose of providing a source of funds to pay any indemnification
described above.
-3-
<PAGE>
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
4.1 American General Hospitality Corporation 1996 Incentive Plan.
5 Opinion of Ballard Spahr Andrews & Ingersoll regarding the legality of
securities being registered.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Ballard Spahr Andrews & Ingersoll (contained in its
opinion filed as Exhibit 5 hereto).
24 Powers of Attorney (contained in the signature pages hereto).
Item 9. Undertakings
The Company 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.
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.
4. 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 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.
5. 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
Securities Act and is, therefore, unenforceable. In the event that a claim or
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person in the successful defense of any action, suit or proceedings) is asserted
by such director, officer or controlling person in connection with the
securities being registered, the Registrant
-4-
<PAGE>
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-
<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 registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, on July 25, 1996.
AMERICAN GENERAL HOSPITALITY
CORPORATION
By: /s/ Steven D. Jorns
----------------------------------------
Steven D. Jorns
Chairman of the Board, Chief Executive
Officer and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Steven D. Jorns and Kenneth E. Barr, and
each or either of them, 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 (until revoked in writing), to sign any and
all amendments (including post-effective amendments) to this Registration
Statement and to cause the same to be filed, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby granting to said attorneys-in-fact and agents, and each of them or their
substitutes, full power and authority to do and perform each and every act and
thing whatsoever requisite or desirable to be done, as fully to all intents and
purposes as the undersigned might or could do in person, hereby ratifying and
confirming all acts and things that said attorneys-in-fact and agents, or either
of them, or their substitutes or substitute 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 indicated on July 25, 1996.
<TABLE>
<CAPTION>
Signature Title Date
- ---------------------- --------------------------------- -------------
<S> <C> <C>
/s/ Steven D. Jorns Chairman of the Board, Chief July 25, 1996
- ---------------------- Executive Officer and President
Steven D. Jorns
/s/ Kenneth E. Barr Executive Vice President, Chief July 25, 1996
- ---------------------- Financial Officer and Principal
Kenneth E. Barr Accounting Officer
</TABLE>
-6-
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
- --------------------------- -------- --------------
<S> <C> <C>
/s/ Henry Cabot Lodge III Director July 25, 1996
- ---------------------------
H. Cabot Lodge III
/s/ James R. Worms Director July 25, 1996
- ---------------------------
James R. Worms
/s/ James McCurry Director July 25, 1996
- ---------------------------
James McCurry
/s/ Kent R. Hance Director July 25, 1996
- ---------------------------
Kent R. Hance
</TABLE>
-7-
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
4.1 American General Hospitality Corporation 1996 Incentive Plan.
5 Opinion of Ballard Spahr Andrews & Ingersoll regarding the legality of
securities being registered.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Ballard Spahr Andrews & Ingersoll (contained in its
opinion filed as Exhibit 5 hereto).
24 Powers of Attorney (contained in the signature pages hereto).
-8-
<PAGE>
EXHIBIT 4.1
ARTICLE I
DEFINITIONS
-----------
1.1 Affiliate means any "subsidiary" or "parent" corporation (within
---------
the meaning of Section 424 of the Code) of the Company.
1.2 AGHI means American General Hospitality, Inc., a [Delaware]
----
corporation.
1.3 Agreement means a written agreement (including any amendment or
---------
supplement thereto) between the Company and a Participant specifying the terms
and conditions of a Stock Award, an award of Performance Shares or an Option or
Incentive Award granted to such Participant.
1.4 Board means the Board of Directors of the Company.
-----
1.5 Code means the Internal Revenue Code of 1986, and any amendments
----
thereto.
1.6 Committee means the Compensation Committee of the Board or a
---------
subcommittee thereof comprised of at least two (2) directors each of whom is
disinterested within the meaning of Securities and Exchange Commission Rule 16b-
3. Prior to the date that the registration statement relating to the Company's
initial public offering of Common Stock is declared effective by the Securities
and Exchange Commission, references in the Plan to the Committee shall be deemed
to be references to the Board. References to the Committee shall include any
delegate appointed in accordance with Article III of this Plan.
1.7 Common Stock means the common stock, $0.01 par value, of the
------------
Company.
<PAGE>
1.8 Company means American General Hospitality Corporation, a Maryland
-------
corporation.
1.9 Exchange Act means the Securities Exchange Act of 1934, as
------------
amended and as in effect on the effective date of this Plan.
1.10 Fair Market Value means, on any given date, the current fair
-----------------
market value of the shares of Common Stock as determined pursuant to subsection
(a) or (b) below.
(a) While the Company is a Non-Public Company, Fair Market Value
shall be determined by the Board using any reasonable method in good faith.
(b) While the Company is a Public Company, Fair Market Value shall be
determined as follows: if the Common Stock is not listed on an established
stock exchange, the Fair Market Value shall be the average of the final bid and
asked quotations on the over-the-counter market in which the Common Stock is
traded or, if applicable, the reported "closing" price of a share of Common
Stock in the New York over-the-counter market as reported by the National
Association of Securities Dealers, Inc. If the Common Stock is listed on one or
more established stock exchanges, Fair Market Value shall be deemed to be the
highest closing price of a share of Common Stock reported on any such exchange.
In any case, if no sale of Common Stock is made on any stock exchange or over-
the-counter market on that date, then Fair Market Value shall be determined as
of the next preceding day on which there was a sale. For purposes of this
definition, the term "Public Company" means a corporation that has sold
securities pursuant to an effective registration statement on Form S-1 or Form
S-11 filed pursuant to the Securities Act of 1933, as
2
<PAGE>
amended, and the term "Non-Public Company" means a corporation that has never
sold securities pursuant to an effective registration statement on Form S-1 or
Form S-11 filed pursuant to the Securities Act of 1933, as amended.
Notwithstanding the foregoing, Fair Market Value shall mean with respect to the
initial awards to be made in connection with, and as described in the
registration statement relating to, the Company's initial public offering of
Common Stock, the initial public offering price of such Common Stock.
1.11 Incentive Award means an award which, subject to such terms and
---------------
conditions as may be prescribed by the Administrator, entitles the Participant
to receive a cash payment from the Company or an Affiliate.
1.12 Lessee means AGH Leasing, L.P., a Delaware limited partnership.
------
1.13 Option means a stock option that entitles the holder to purchase
------
from the Company a stated number of shares of Common Stock at the price set
forth in an Agreement.
1.14 Participant means an employee of the Company or an Affiliate,
-----------
including an employee who is a member of the Board, or an individual whose
efforts contribute to the performance or success of the Company or an Affiliate,
who satisfies the requirements of Article IV and is selected by the Committee to
receive a Stock Award, an Option, an Incentive Award, an award of Performance
Shares or a combination thereof.
1.15 Performance Shares means an award, in the amount determined by
------------------
the Committee and specified in an Agreement, stated with reference to a
specified number of shares of Common Stock, that entitles the holder to receive
a payment for each specified share equal to the Fair Market Value of Common
Stock on the date of payment.
3
<PAGE>
1.16 Plan means the American General Hospitality Corporation 1996
----
Incentive Plan.
1.17 Stock Award means Common Stock awarded to a Participant under
-----------
Article VIII.
1.18 Ten Percent Shareholder means any individual owning more than ten
-----------------------
percent (10%) of the total combined voting power of all classes of stock of the
Company or of an Affiliate. An individual shall be considered to own any voting
stock owned (directly or indirectly) by or for his brothers, sisters, spouse,
ancestors or lineal descendants and shall be considered to own proportionately
any voting stock owned (directly or indirectly) by or for a corporation,
partnership, estate or trust of which such individual is a shareholder, partner
or beneficiary.
ARTICLE II
PURPOSES
--------
The Plan is intended to assist the Company and its Affiliates in
recruiting and retaining individuals with ability and initiative by enabling
such persons to participate in the future success of the Company and its
Affiliates and to associate their interests with those of the Company and its
stockholders. The Plan is intended to permit the grant of both Options
qualifying under Section 422 of the Code ("incentive stock options") and Options
not so qualifying, and the grant of Stock Awards, Performance Shares and
Incentive Awards. No Option that is intended to be an incentive stock option
shall be invalid for failure to qualify as
4
<PAGE>
an incentive stock option. The proceeds received by the Company from the sale
of Common Stock pursuant to this Plan shall be used for general corporate
purposes.
ARTICLE III
ADMINISTRATION
--------------
The Plan shall be administered by the Committee. The Committee shall
have authority to grant Stock Awards, Performance Shares, Incentive Awards and
Options upon such terms (not inconsistent with the provisions of this Plan) as
the Committee may consider appropriate. Such terms may include conditions (in
addition to those contained in this Plan) on the exercisability of all or any
part of an Option or on the transferability or forfeitability of a Stock Award,
Incentive Award or Performance Shares. Notwithstanding any such conditions, the
Committee may, in its discretion, accelerate the time at which any Option may be
exercised, or the time at which a Stock Award may become transferable or
nonforfeitable or the time at which an Incentive Award or Performance Shares may
be settled. In addition, the Committee shall have complete authority to
interpret all provisions of this Plan; to prescribe the form of Agreements; to
adopt, amend, and rescind rules and regulations pertaining to the administration
of the Plan; and to make all other determinations necessary or advisable for the
administration of this Plan. The express grant in the Plan of any specific
power to the Committee shall not be construed as limiting any power or authority
of the Committee. Any decision made, or action taken, by the Committee or in
connection with the administration of this Plan shall be final and conclusive.
Neither the Committee nor any
5
<PAGE>
member of the Committee shall be liable for any act done in good faith with
respect to this Plan or any Agreement, Option, Stock Award, Incentive Award or
award of Performance Shares. All expenses of administering this Plan shall be
borne by the Company.
The Committee, in its discretion, may delegate to one or more officers
of the Company all or part of the Committee's authority and duties with respect
to grants and awards to individuals who are not subject to the reporting and
other provisions of Section 16 of the Exchange Act; provided, however, the
Committee shall not delegate its authority (i) to appoint delegates or its
authority to amend or revoke any delegation, (ii) under Articles X and XI hereof
and (iii) to accelerate the exercisability of Options, the transferability of
Stock Awards or the time at which Incentive Awards or awards of Performance
Shares may be settled. The Committee may revoke or amend the terms of a
delegation at any time but such action shall not invalidate any prior actions of
the Committee's delegate or delegates that were consistent with the terms of the
Plan.
ARTICLE IV
ELIGIBILITY
-----------
Any employee of the Company or an Affiliate (including a corporation
that becomes an Affiliate after the adoption of this Plan) or a person whose
efforts contribute to the performance or success of the Company or an Affiliate
(including a corporation that becomes an Affiliate after the adoption of this
Plan) (other than a Board member or an employee of the Lessee or AGHI, in each
case, who is not also an employee of the Company
6
<PAGE>
or an Affiliate) is eligible to participate in this Plan if the Committee, in
its sole discretion, determines that such person has contributed significantly
or can be expected to contribute significantly to the profits or growth of the
Company or an Affiliate. Directors of the Company who are employees of the
Company or an Affiliate may be selected to participate in this Plan. A member
of the Committee may not participate in this Plan during the time that his
participation would prevent the Committee from being "disinterested" for
purposes of Securities and Exchange Commission Rule 16b-3 as in effect from time
to time.
ARTICLE V
STOCK SUBJECT TO PLAN
---------------------
5.1 Shares Issued. Upon the award of shares of Common Stock pursuant
-------------
to a Stock Award or the settlement of a Performance Share award, the Company may
issue shares of Common Stock from its authorized but unissued Common Stock.
Upon the exercise of an Option, the Company may deliver to the Participant (or
the Participant's broker if the Participant so directs), shares of Common Stock
from its authorized but unissued Common Stock.
5.2 Aggregate Limit. The maximum aggregate number of shares of Common
---------------
Stock that may be issued under this Plan is 900,000 shares. The maximum
aggregate number of shares that may be issued under this Plan shall be subject
to adjustment as provided in Article X.
7
<PAGE>
5.3 Reallocation of Shares. If an Option is terminated, in whole or
----------------------
in part, for any reason other than its exercise, the number of shares of Common
Stock allocated to the Option or portion thereof may be reallocated to other
Options, Stock Awards and Performance Share awards to be granted under this
Plan. If an award of Performance Shares is forfeited, in whole or in part, the
number of shares of Common Stock allocated to the Performance Share award or
portion thereof may be reallocated to other Options and Stock Awards and
Performance Share awards to be granted under this Plan.
ARTICLE VI
OPTIONS
-------
6.1 Award. In accordance with the provisions of Article IV, the
-----
Committee will designate each individual to whom an Option is to be granted and
will specify the number of shares of Common Stock covered by such awards;
provided, however, that no individual may be granted Options in any calendar
year covering more than 250,000 shares of Common Stock.
6.2 Option Price. The price per share for Common Stock purchased on
------------
the exercise of an Option shall be determined by the Committee on the date of
grant; provided, however, that the price per share for Common Stock purchased on
the exercise of any Option shall not be less than the Fair Market Value on the
date of grant or, with respect to Options granted in connection with the initial
employment of an individual following the effective date of the registration
statement relating to the Company's initial public offering of Common
8
<PAGE>
Stock, eighty-five (85%) percent of the Fair Market Value on the date the Option
is granted. Notwithstanding the preceding sentence, the price per share for
Common Stock purchased on the exercise of any Option that is an incentive stock
option shall not be less than the Fair Market Value on the date the Option is
granted or, in the case of an incentive stock option granted to an individual
who is a Ten Percent Shareholder on the date such option is granted, shall not
be less than one hundred ten (110%) percent of the Fair Market Value on the date
the Option is granted.
6.3 Maximum Option Period. The maximum period in which an Option may
---------------------
be exercised shall be determined by the Committee on the date of grant, except
that no Option that is an incentive stock option shall be exercisable after the
expiration of ten years from the date such Option was granted. In the case of
an incentive stock option that is granted to a Participant who is a Ten Percent
Shareholder on the date of grant, such Option shall not be exercisable after the
expiration of five years from the date of grant. The terms of any Option that
is an incentive stock option may provide that it is exercisable for a period
less than such maximum period.
6.4 Nontransferability. Except as provided in Section 6.5, each
------------------
Option granted under this Plan shall be nontransferable except by will or by the
laws of descent and distribution. During the lifetime of the Participant to
whom the option is granted, the Option may be exercised only by the Participant.
No right or interest of a Participant in any Option shall be liable for, or
subject to, any lien, obligation, or liability of such Participant.
9
<PAGE>
6.5 Transferable Options. Section 6.4 to the contrary
--------------------
notwithstanding, if the Agreement provides, an Option that is not an incentive
stock option may be transferred by a Participant to the Participant's children,
grandchildren, spouse, one or more trusts for the benefit of such family members
or a partnership in which such family members are the only partners; provided,
however, that the Participant may not receive any consideration for the
transfer. In addition to transfers described in the preceding sentence, the
Committee may grant Options that are not incentive stock options that are
transferable on other terms and conditions as may be permitted under Securities
Exchange Commission Rule 16b-3 as in effect from time to time. The holder of an
Option transferred pursuant to this section shall be bound by the same terms and
conditions that governed the Option during the period that it was held by the
Participant.
6.6 Employee Status. For purposes of determining the applicability of
---------------
Section 422 of the Code (relating to incentive stock options), or in the event
that the terms of any Option provide that it may be exercised only during
employment or within a specified period of time after termination of employment,
the Committee may decide to what extent leaves of absence for governmental or
military service, illness, temporary disability, or other reasons, shall not be
deemed interruptions of continuous employment.
6.7 Exercise. Subject to the provisions of this Plan and the
--------
applicable Agreement, an Option shall become exercisable in such installments
(which need not be equal) and at such times as may be designated by the
Committee and set forth in the Agreement; provided, however, that incentive
stock options (granted under the Plan and all
10
<PAGE>
plans of the Company and its Affiliates) may not be first exercisable in a
calendar year for stock having a Fair Market Value (determined as of the date an
option is granted) exceeding $100,000. To the extent not exercised,
installments shall accumulate and be exercisable, in whole or in part, at any
time after becoming exercisable, but not later than the date the Option expires
in accordance with Section 6.3 hereof. An Option granted under this Plan may be
exercised with respect to any number of whole shares less than the full number
for which the Option could be exercised. A partial exercise of an Option shall
not affect the right to exercise the Option from time to time in accordance with
this Plan and the applicable Agreement with respect to the remaining shares
subject to the Option.
6.8 Payment. Unless otherwise provided by the Agreement, payment of
-------
the Option price shall be made in cash or a cash equivalent acceptable to the
Committee. If the Agreement provides, payment of all or part of the Option
price may be made by surrendering shares of Common Stock to the Company. If
Common stock is used to pay all or part of the Option price, the sum of the cash
and cash equivalent and the Fair Market Value (determined as of the day
preceding the date of exercise) of the shares surrendered must not be less than
the Option price of the shares for which the Option is being exercised.
6.9 Shareholder Rights. No Participant shall have any rights as a
------------------
shareholder with respect to shares subject to his Option until the date of
exercise of such Option.
6.10 Disposition of Stock. A Participant shall notify the Company of
--------------------
any sale or other disposition of Common Stock acquired pursuant to an Option
that was an incentive stock option if such sale or disposition occurs:
11
<PAGE>
(i) within two years of the grant of an Option or
(ii) within one year of the issuance of the Common Stock to the
Participant.
Such notice shall be in writing and directed to the Secretary of the Company.
ARTICLE VII
STOCK AWARDS
------------
7.1 Award. In accordance with the provisions of Article IV, the
-----
Committee will designate each individual to whom a Stock Award is to be made and
will specify the number of shares of Common Stock covered by such awards;
provided, however, that no more than 50,000 shares of Common Stock may be issued
in respect of Stock Awards pursuant to the Plan and no Individual may receive
Stock Awards with respect to more than 30,000 shares of Common Stock in any
calendar year.
7.2 Vesting. The Committee, on the date of the award, may prescribe
-------
that a Participant's rights in the Stock Award shall be forfeitable or otherwise
restricted for a period of time or subject to such conditions as may be set
forth in the Agreement. Except with respect to Stock Awards any portion of
which are immediately vested, the period of restriction shall be at least three
years; provided, however, that the minimum period of restriction shall be at
least one year in the case of (i) the restricted portion of a Stock Award with
an immediately vested portion and (ii) a Stock Award that will become
transferable and nonforfeitable on account of the satisfaction of performance
objectives prescribed by the Committee.
12
<PAGE>
7.3 Performance Objectives. In accordance with Section 7.2, the
----------------------
Committee may prescribe that Stock Awards will be vested immediately upon grant
or will become vested or transferable or both based on objectives stated with
respect to the Company's, an Affiliate's or an operating unit's return on
equity, earnings per share, total earnings, earnings growth, return on capital,
return on assets, funds from operations or Fair Market Value. If the Committee,
on the date of award, prescribes that a Stock Award shall become nonforfeitable
and transferable only upon the attainment of performance objectives stated with
respect to one or more of the foregoing criteria, the shares subject to such
Stock Award shall become nonforfeitable and transferable only to the extent that
the Committee certifies that such objectives have been achieved.
7.4 Employee Status. In the event that the terms of any Stock Award
---------------
provide that shares may become transferable and nonforfeitable thereunder only
after completion of a specified period of employment, the Committee may decide
in each case to what extent leaves of absence for governmental or military
service, illness, temporary disability, or other reasons shall not be deemed
interruptions of continuous employment.
7.5 Shareholder Rights. Prior to their forfeiture (in accordance with
------------------
the applicable Agreement and while the shares of Common Stock granted pursuant
to the Stock Award may be forfeited or are nontransferable), a Participant will
have all rights of a shareholder with respect to a Stock Award, including the
right to receive dividends and vote the shares; provided, however, that during
such period (i) a Participant may not sell, transfer, pledge, exchange,
hypothecate, or otherwise dispose of shares of Common Stock granted
13
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pursuant to a Stock Award, (ii) the Company shall retain custody of the
certificates evidencing shares of Common Stock granted pursuant to a Stock
Award, and (iii) the Participant will deliver to the Company a stock power,
endorsed in blank, with respect to each Stock Award. The limitations set forth
in the preceding sentence shall not apply after the shares of Common Stock
granted under the Stock Award are transferable and are no longer forfeitable.
ARTICLE VIII
PERFORMANCE SHARE AWARDS
------------------------
8.1 Award. In accordance with the provisions of Article IV, the
-----
Committee will designate each individual to whom an award of Performance Shares
is to be made and will specify the number of shares of Common Stock covered by
such awards; provided, however, that no Participant may receive an award of
Performance Shares in any calendar year for more than 12,500 shares of Common
Stock.
8.2 Earning the Award. The Committee, on the date of the grant of an
-----------------
award, may prescribe that the Performance Shares, or portion thereof, will be
earned, and the Participant will be entitled to receive payment pursuant to the
award of Performance Shares only upon the satisfaction of certain requirements
or the attainment of certain objectives. By way of example and not of
limitation, the restrictions may provide that Performance Shares will be
forfeited without payment if the Participant separates from the service of the
Company and its Affiliates before the expiration of a stated term or unless the
Company, an Affiliate or
14
<PAGE>
an operating unit achieves objectives stated with reference to the Company's, an
Affiliate's or an operating unit's return on equity, earnings per share, total
earnings, earnings growth, return on capital, return on assets, funds from
operations or Fair Market Value. If the Committee, on the date of award,
prescribes that no payments will be made with respect to Performance Shares
unless performance objectives stated with respect to the foregoing criteria are
attained, no such payment will be made unless, and then only to the extent that,
the Committee certifies that such objectives have been achieved.
8.3 Payment. In the discretion of the Committee, the amount payable
-------
when an award of Performance Shares is earned may be settled in cash, by the
issuance of Common Stock or a combination of cash and Common Stock. A
fractional share shall not be deliverable when an award of Performance Shares is
earned, but a cash payment will be made in lieu thereof.
8.4 Shareholder Rights. No Participant shall, as a result of
------------------
receiving an award of Performance Shares, have any rights as a shareholder until
and to the extent that the award of Performance Shares is earned and settled by
the issuance of Common Stock. After an award of Performance Shares is earned,
if settled completely or partially in Common Stock, a Participant will have all
the rights of a shareholder with respect to such Common Stock.
8.5 Nontransferability. Except as provided in Section 8.6,
------------------
Performance Shares granted under this Plan shall be nontransferable except by
will or by the laws of descent and distribution. No right or interest of a
Participant in any Performance Shares shall be liable for, or subject to, any
lien, obligation, or liability of such Participant.
15
<PAGE>
8.6 Transferable Performance Shares. Section 8.5 to the contrary
-------------------------------
notwithstanding, the Committee may grant transferable Performance Shares to the
extent that, and on such terms and conditions as may be permitted by, Securities
Exchange Commission Rule 16b-3 as in effect from time to time. The holder of
Performance Shares transferred pursuant to this section shall be bound by the
same terms and conditions that governed the Performance Shares during the period
that they were held by the Participant.
8.7 Employee Status. In the event that the terms of any Performance
---------------
Share award provide that no payment will be made unless the Participant
completes a stated period of employment, the Committee may decide to what extent
leaves of absence for government or military service, illness, temporary
disability, or other reasons shall not be deemed interruptions of continuous
employment.
ARTICLE IX
INCENTIVE AWARDS
----------------
9.1 Award. In accordance with the provisions of Article IV, the
-----
Committee shall designate Participants to whom Incentive Awards are made. All
Incentive Awards shall be finally determined exclusively by the Committee under
the procedures established by the Committee; provided, however, that no
Participant may receive an Incentive Award payment in any calendar year that
exceeds the lesser of (i) one hundred (100%) percent of the Participant's base
salary (prior to any salary reduction or deferral elections) as of the date of
grant of the Incentive Award or (ii) $250,000.
16
<PAGE>
9.2 Terms and Conditions. The Committee, at the time an Incentive
--------------------
Award is made, shall specify the terms and conditions which govern the award.
Such terms and conditions shall prescribe that the Incentive Award shall be
earned only to the extent that the Company, an Affiliate or an operating unit,
during a performance period of at least one year, achieves objectives stated
with respect to the Company's, an Affiliate's or an operating unit's return on
equity, earnings per share, total earnings, earnings growth, return on capital,
return on assets, funds from operations or Fair Market Value. Such terms and
conditions also may include other limitations on the payment of Incentive Awards
including, by way of example and not of limitation, requirements that the
Participant complete a specified period of employment with the Company or an
Affiliate or that the Company, an Affiliate, or the Participant attain stated
objectives or goals (in addition to those prescribed in accordance with the
preceding sentence) as a prerequisite to payment under an Incentive Award. The
Committee, at the time an Incentive Award is made, shall also specify when
amounts shall be payable under the Incentive Award and whether amounts shall be
payable in the event of the Participant's death, disability, or retirement. No
payment shall be made under an Incentive Award except to the extent that the
Committee certifies that the objectives governing such award have been achieved.
9.3 Nontransferability. Except as provided in Section 9.4, Incentive
------------------
Awards granted under this Plan shall be nontransferable except by will or by the
laws of descent and distribution. No right or interest of a Participant in an
Incentive Award shall be liable for, or subject to, any lien, obligation, or
liability of such Participant.
17
<PAGE>
9.4 Transferable Incentive Awards. Section 9.3 to the contrary
-----------------------------
notwithstanding, the Committee may grant transferable Incentive Awards to the
extent that, and on such terms and conditions as may be permitted by, Securities
Exchange Commission Rule 16b-3 as in effect from time to time. The holder of an
Incentive Award transferred pursuant to this section shall be bound by the same
terms and conditions that governed the Incentive Award during the period that it
was held by the Participant.
9.5 Employee Status. If the terms of an Incentive Award provide that
---------------
a payment will be made thereunder only if the Participant completes a stated
period of employment, the Committee may decide to what extent leaves of absence
for governmental or military service, illness, temporary disability or other
reasons shall not be deemed interruptions of continuous employment.
9.6 Shareholder Rights. No Participant shall, as a result of
------------------
receiving an Incentive Award, have any rights as a shareholder of the Company or
any Affiliate on account of such award.
ARTICLE X
ADJUSTMENT UPON CHANGE IN COMMON STOCK
--------------------------------------
The maximum number of shares as to which Options, Stock Awards and
Performance Shares may be granted under this Plan, the terms of outstanding
Stock Awards, Options, Performance Share awards and Incentive Awards, and the
per individual limitations on the number of shares for which Options, Stock
Awards and Performance Shares may be
18
<PAGE>
granted, shall be adjusted as the Committee shall determine to be equitably
required in the event that there is an increase or reduction in the number of
shares of Common Stock, or any change (including, but not limited to, a change
in value) in the shares of Common Stock or exchange of shares of Common Stock
for a different number or kind of shares or other securities of the Company by
reason of a reclassification, recapitalization, merger, consolidation,
reorganization, spin-off, split-up, subdivision or consolidation of shares,
extraordinary dividend, change in corporate structure or otherwise. Any
determination made under this Article X by the Committee shall be final and
conclusive.
The issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, for cash or property,
or for labor or services, either upon direct sale or upon the exercise of rights
or warrants to subscribe therefor, or upon conversion of shares or obligations
of the Company convertible into such shares or other securities, shall not
affect, and no adjustment by reason thereof shall be made with respect to, the
maximum number of shares as to which Options, Stock Awards and Performance
Shares may be granted, the per individual limitations on the number of shares
for which Options, Stock Awards and Performance Shares may be granted or the
terms of outstanding Stock Awards, Options, Incentive Awards or Performance
Shares.
The Committee may make Stock Awards and may grant Options, Incentive
Awards and Performance Shares in substitution for performance shares, phantom
shares, stock awards, stock options, stock appreciation rights, or similar
awards held by an individual who becomes an employee of the Company or an
Affiliate in connection with a transaction
19
<PAGE>
described in the first paragraph of this Article X. Notwithstanding any
provision of the Plan (other than the limitation of Section 5.2), the terms of
such substituted Stock Awards, Option, Incentive Awards or Performance Share
grants shall be as the Committee, in its discretion, determines is appropriate.
ARTICLE XI
COMPLIANCE WITH LAW AND
APPROVAL OF REGULATORY BODIES; GOVERNING LAW
--------------------------------------------
No Option shall be exercisable, no Common Stock shall be issued, no
certificates for shares of Common Stock shall be delivered, and no payment shall
be made under this Plan except in compliance with all applicable federal and
state laws and regulations (including, without limitation, withholding tax
requirements), any listing agreement to which the Company is a party, and the
rules of all domestic stock exchanges on which the Company's shares may be
listed. The Company shall have the right to rely on an opinion of its counsel
as to such compliance. Any share certificate issued to evidence Common Stock
when a Stock Award is granted or for which an option is exercised or a
Performance Share settled may bear such legends and statements as the Committee
may deem advisable to assure compliance with federal and state laws and
regulations. No Option shall be exercisable, no Stock Award shall be granted,
no Common Stock shall be issued, no certificate for shares shall be delivered,
and no payment shall be made under this Plan until the Company has obtained such
consent or approval as the Committee may deem advisable from regulatory bodies
having jurisdiction over such matters. Except as to matters of federal law,
this Plan
20
<PAGE>
and the rights of all persons claiming hereunder shall be construed and
determined in accordance with the laws of the State of Texas without giving
effect to conflicts of law principles.
ARTICLE XII
GENERAL PROVISIONS
------------------
12.1 Effect on Employment and Service. Neither the adoption of this
--------------------------------
Plan, its operation, nor any documents describing or referring to this Plan (or
any part thereof) shall confer upon any individual any right to continue in the
employ or service of the Company or an Affiliate or in any way affect any right
and power of the Company or an Affiliate to terminate the employment or service
of any individual at any time with or without assigning a reason therefor.
12.2 Unfunded Plan. The Plan, insofar as it provides for grants,
-------------
shall be unfunded, and the Company shall not be required to segregate any assets
that may at any time be represented by grants under this Plan. Any liability of
the Company to any person with respect to any grant under this Plan shall be
based solely upon any contractual obligations that may be created pursuant to
this Plan. No such obligation of the Company shall be deemed to be secured by
any pledge of, or other encumbrance on, any property of the Company.
12.3 Rules of Construction. Headings are given to the articles and
---------------------
sections of this Plan solely as a convenience to facilitate reference. The
reference to any statute,
21
<PAGE>
regulation, or other provision of law shall be construed to refer to any
amendment to or successor of such provision of law.
ARTICLE XIII
AMENDMENT
---------
The Board may amend or terminate this Plan from time to time; provided,
however, that no amendment may become effective until shareholder approval is
obtained if the amendment materially (i) increases the aggregate number of
shares of Common Stock that may be issued under the Plan, (ii) changes the class
of individuals eligible to become Participants or (iii) increases the benefits
that may be provided under the Plan. No amendment shall, without a
Participant's consent, adversely affect any rights of such Participant under any
outstanding Stock Award, Option, Incentive Award or Performance Share award
outstanding at the time such amendment is made.
ARTICLE XIV
DURATION OF PLAN
----------------
No Stock Award, Option, Incentive Award or Performance Share award may
be granted under this Plan more than ten years after the earlier of the date
this Plan is adopted by the Board or the date this Plan is approved by
stockholders in accordance with Article XV. Stock Awards, Options, Incentive
Awards and Performance Share awards granted before that date shall remain valid
in accordance with their terms.
22
<PAGE>
ARTICLE XV
EFFECTIVE DATE OF PLAN
----------------------
Options, Incentive Awards and Performance Share awards may be granted
under this Plan upon its adoption by the Board, provided that no Option,
Incentive Award or Performance Share award shall be effective or exercisable
unless this Plan is approved by a majority of the votes entitled to be cast by
the Company's stockholders, voting either in person or by proxy, at a duly held
stockholders' meeting or by unanimous consent of the Company's stockholders.
Stock Awards may be granted under this Plan upon the later of its adoption by
the Board or its approval by stockholders in accordance with the preceding
sentence.
23
<PAGE>
EXHIBIT 5
[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL]
FILE NUMBER
800727
July 12, 1996
American General Hospitality Corporation
Attn: Steven D. Jorns, President
Suite 300
3860 West Northwest Highway
Dallas, Texas 75220
Re: American General Hospitality Corporation:
Registration Statement on Form S-8
-----------------------------------------
Ladies and Gentlemen:
We have acted as Maryland counsel to American General Hospitality
Corporation, a Maryland corporation (the "Company"), in connection with certain
matters of Maryland law arising out of the registration of 900,000 shares (the
"Shares") of common stock, $.01 par value per share (the "Common Stock"), by the
Company, covered by the above-referenced Registration Statement (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"1933 Act"). The Shares are to be issued by the Company pursuant to the
American General Hospitality Corporation 1996 Incentive Plan (the "Plan").
Unless otherwise defined herein, capitalized terms used herein shall have the
meanings ascribed 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;
2. A specimen of the certificate representing the Common Stock,
certified as of a recent date by the Secretary of the Company;
3. The charter of the Company, certified as of a recent date by the
State Department of Assessments and Taxation of Maryland (the "SDAT");
<PAGE>
American General Hospitality Corporation
July 12, 1996
Page 2
4. The Bylaws of the Company, certified as of a recent date by its
Secretary;
5. Resolutions adopted by the Board of Directors of the Company
relating to the approval of the Plan and the authorization of the issuance of
the Shares pursuant to the Plan, certified as of a recent date by the Secretary
of the Company;
6. A certificate as of a recent date of the SDAT as to the good
standing of the Company;
7. A certificate executed by Kenneth E. Barr, Secretary of the
Company, dated July 12, 1996;
8. A copy of the Plan, certified as of a recent date by the
Secretary of the Company; and
9. Such other documents and matters as we have deemed necessary or
appropriate to express the opinion set forth in this letter, subject to the
assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed, and so far
as is known to us there are no facts inconsistent with, the following:
1. 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 except as limited (a) by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other laws relating to or affecting the
enforcement of creditors' rights and (b) by general equitable principles,
whether applied in law or in equity.
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 individual executing any of the Documents, whether on behalf
of such individual or another person, is legally competent to do so.
4. All Documents submitted to us as originals are authentic. All
Documents submitted to us as certified or photostatic copies conform to the
original documents. All
<PAGE>
American General Hospitality Corporation
July 12, 1996
Page 3
signatures on all 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 are no oral
or written modifications of or amendments to the Documents, and there has been
no waiver of any of the provisions of the Documents, by action or conduct of the
parties or otherwise.
5. The Shares have not been and will not be issued in violation of
any restriction or limitation contained in Article V, Section 2 of the Charter.
The phrase "known to us" is limited to the actual knowledge, without
independent inquiry, of the lawyers at our firm who have performed legal
services in connection with the issuance of this opinion.
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. The Shares have been duly authorized for issuance under the Plan
and, when issued and delivered against payment therefor and otherwise in the
manner described in the Plan and in such authorization, 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 the securities (or "blue sky") laws
of the State of Maryland.
We assume no obligation to supplement this opinion if any applicable
law changes after the date hereof of or if we become aware of any fact that
might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you solely for your benefit.
Accordingly, it may not be relied upon by, quoted in any manner to, or delivered
to any other person or entity 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
<PAGE>
American General Hospitality Corporation
July 12, 1996
Page 4
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,
/s/ Ballard Spahr
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on Form S-8 (File No. 333-_____ of our reports dated March 29, 1996, on our
audits of the combined financial statements and financial statement schedule of
the AGH Predecessor Hotels; dated April 8, 1996, on our audits of the combined
financial statements and financial statement schedule of the AGH Acquisition
Hotels, dated April 12, 1996, on our audit of the balance sheet of American
General Hospitality Corporation; and dated May 29, 1996 on our audit of the
balance sheet of AGH Leasing L.P., as filed in the Registration Statement on
Form S-11 (File No. 333-4568). We also consent to the reference to our firm
under the caption "Experts."
/s/ Coopers & Lybrand LLP
Dallas, Texas
July 15, 1996
