<PAGE> 1
As filed with the Securities and Exchange Commission on April 16, 1999.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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BOYKIN LODGING COMPANY
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
OHIO 34-1824586
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
</TABLE>
GUILDHALL BUILDING
45 WEST PROSPECT AVENUE
SUITE 1500
CLEVELAND, OHIO 44115
(216) 430-1200
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
------------------------
ROBERT W. BOYKIN
GUILDHALL BUILDING
45 WEST PROSPECT AVENUE
SUITE 1500
CLEVELAND, OHIO 44115
(216) 430-1200
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
------------------------
WITH A COPY TO:
ROBERT A. WEIBLE, ESQ.
BAKER & HOSTETLER LLP
3200 NATIONAL CITY CENTER
1900 EAST NINTH STREET
CLEVELAND, OHIO 44114-3485
(216) 621-0200
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED
MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SHARES AMOUNT TO BE AGGREGATE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PRICE PER SHARE(1) OFFERING PRICE(1) FEE(1)
<S> <C> <C> <C> <C>
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Common Shares, Without Par Value... 2,500,000 Shares $12.56 31,400,000 $8,730
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</TABLE>
(1) The registration fee has been calculated pursuant to Rule 457(c) based on
the average of the high and low sale prices on April 12, 1999, of the
Registrant's Common Shares as reported on the New York Stock Exchange.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE> 2
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
Subject to Completion, April 12, 1999
Prospectus
___, 1999
Boykin Lodging Company
2,500,000 Common Shares
[LOGO] BOYKIN LODGING COMPANY
DIVIDEND REINVESTMENT
AND OPTIONAL SHARE PURCHASE PLAN
Plan Highlights:
------------------------------------------------------------------------
* AUTOMATICALLY REINVEST QUARTERLY CASH DIVIDENDS
* INCREASE OWNERSHIP THROUGH MONTHLY CASH
PURCHASES
* PURCHASE BOYKIN LODGING COMPANY COMMON SHARES
AT A DISCOUNT
* NO BROKERAGE COMMISSIONS ON PURCHASES
* OWN COMMON SHARES WITHOUT RECEIVING
CERTIFICATES
* SIMPLE AND CONVENIENT
Boykin Lodging Company is a public company with a large amount of
public information available. Our Common Shares are traded on the New
York Stock Exchange under the symbol "BOY" The closing price of the
Common Shares on April 12, 1999, was $12.56 per share.
INVESTING IN THE COMMON SHARES INVOLVES CERTAIN RISKS. SEE "RISK
FACTORS" BEGINNING ON PAGE 3.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this Prospectus. Any representation to
the contrary is a criminal offense.
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<PAGE> 3
TABLE OF CONTENTS
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SUMMARY .......................................................... 1
INFORMATION ABOUT BOYKIN LODGING COMPANY ........................ 1
PLAN FEATURES AND BENEFITS ...................................... 2
RISK FACTORS ..................................................... 3
QUESTIONS AND ANSWERS ABOUT THE PLAN ............................. 6
LEGAL MATTERS ................................................... 16
EXPERTS ......................................................... 16
WHERE TO GO FOR MORE INFORMATION ................................ 16
FORWARD-LOOKING STATEMENTS ...................................... 17
PLAN SERVICE FEES
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Enrollment fee for new investors No charge
Purchase of Common Shares
Direct issue from Boykin Lodging Company No charge
Open market purchase fee No charge
Sale of Common Shares
Open market sale fee $5 transaction fee plus
brokerage commission
Reinvestment of dividends No charge
Optional cash purchase No charge
Gift or transfer of Common Shares No charge
Safekeeping of share certificates No charge
Certificate issuance No charge
Duplicate statements No charge
You should rely only on the information incorporated by reference or
provided in the Plan, this Prospectus or any prospectus supplement. We
have not authorized anyone to provide you with different information.
Neither the delivery of this Prospectus nor any sale made through its
use implies that there has been no change in our affairs since the date
of this Prospectus.
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<PAGE> 4
SUMMARY
INFORMATION ABOUT BOYKIN LODGING COMPANY
Boykin Lodging Company is a real estate investment trust, headquartered
in Cleveland, Ohio. As of the date of this Prospectus, we own 31
full-service, upscale commercial and resort hotels containing 8,689
guest rooms located in California, Colorado, Florida, Idaho, Indiana,
Maryland, Minnesota, Missouri, Nebraska, New York, New Jersey, North
Carolina, Ohio, Oregon, Tennessee, and Washington.
Our hotels are leased to five different independent hotel operating
companies. We refer to this as our "multi-tenant" strategy. Our hotels
generally operate under franchise agreements with premier nationally
recognized hotel chains, including DoubleTree, Marriott, Radisson,
Holiday Inn, Hilton, Quality Suites and Hampton Inns. We focus on
owning hotels associated with brands that will lead the hotel industry
in revenue per available room.
Our primary business strategies are:
* acquiring upscale full-service commercial and resort hotels that will
increase our cash flow and are purchased at a discount to their
replacement cost
* developing strategic alliances and relationships with a network of
high quality lessees and franchisors of the hotel industry's premier
brands
* maximizing revenue growth in our hotels through selective renovation
and our lessees' strong management performance
We completed our initial public offering in November 1996 in order to
continue and expand the hotel ownership activities of our predecessor,
the Boykin Group. In combination with our predecessor, we have been in
the hotel business for 40 years. Following our initial offering, we
have more than tripled the number of hotels in our portfolio, from 9 to
31.
For information, or copies of our annual report to shareholders, proxy
statement, 10-Q or 10-K reports, or other documents incorporated by
reference in this Prospectus, please contact:
Investor Relations
Boykin Lodging Company
Guildhall Building
45 West Prospect Avenue, Suite 1500
Cleveland, Ohio 44115
Telephone (216) 430-1200
Facsimile (216) 430-1201
1
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<PAGE> 5
PLAN FEATURES AND BENEFITS
PLAN FEATURES BENEFITS TO YOU
- You may purchase our Common - You purchase Common Shares
Shares by completing an directly through National City
authorization card and sending without a broker, even if you
a check or money order to are not a current shareholder.
National City. The authorization card is
designed to guide you in
setting up your Plan account.
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- If you are a participant in the - You conveniently add to your
Plan, you can make voluntary investment over time and
cash investments each month for purchase Common Shares at a
a minimum of $50 up to a discount.
maximum of $5,000. You purchase
Common Shares at 97% of the
market price (subject to
change). You may make larger
voluntary cash investments with
our prior approval.
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- If you are not a participant in - You begin with a relatively
the Plan, you must invest at small amount invested. In
least $2,000 initially. If you addition, you can move Common
own Common Shares in an account Shares from your brokerage
with a stockbroker, you can ask account into your Plan account,
your broker to issue you a or the reverse, at any time
certificate for your Common without fees being charged by
Shares which you can deposit us.
with National City.
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- You can have all or some of - You enjoy the full
your dividends automatically reinvestment of your dividends.
reinvested in our Common Your investment continues to
Shares. The Common Shares you build with additional purchases
purchase with reinvested of Common Shares at a discount.
dividends are purchased at 97% When you decide to withdraw
of the market price (subject to from the Plan, your dividends
change). are mailed to you.
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- You receive a statement - You can easily monitor your
detailing your account activity investment.
each time you invest.
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- You can deposit certificates - You eliminate worry over lost
for Common Shares with National or stolen certificates. Making
City for safekeeping at no gifts of or transferring your
cost. Common Shares is easier.
Please see additional details on the following pages.
2
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<PAGE> 6
RISK FACTORS
An investment in our Common Shares involves certain risks that you
should consider before investing.
OPERATING RISKS. Our hotels are subject to operating risks that can
affect our revenues, the value of our properties and our cash flow.
These risks include:
* competition from other hotels
* adverse effects on occupancy and room rates from overbuilding in the
hotel industry
* increases in our operating costs (or those of our lessees)
attributable to inflation and other factors
* significant dependence on business travelers and tourism
* the seasonality of hotel revenues, especially in resorts
* the impact of weather on hotel occupancies
* the failure to meet any franchisor quality standards
DEPENDENCE ON LESSEES AND MANAGERS. Real estate investment trust rules
require us to lease our hotels to independent hotel operating
companies. The risks of this requirement include:
* we are particularly dependent on Boykin Management Company and its
affiliates, which lease about 80% of our hotels
* other activities of our lessees may impair their ability to pay us
rent
* we may not be able to re-lease a property on favorable terms if we
terminate its lease for a default
* our revenue stream could be interrupted if a lessee declares
bankruptcy
REAL ESTATE RISKS. As a real estate company, we face risks that affect
the value of our properties, our ability to finance them and our cash
flow. These risks include:
* costs of periodic renovation of our hotels and the periodic
replacement of furniture and equipment in order to stay competitive
* costs of uninsured and underinsured losses, such as hurricanes or
earthquakes
* the illiquid nature of our real estate investments
3
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<PAGE> 7
REAL ESTATE FINANCING RISKS. We regularly finance acquisitions through
debt financing. The risks normally associated with debt financing
include the risks that:
* cash flow will be insufficient to meet required debt payments
* an inability to refinance indebtedness when it matures
* the terms of a refinancing will not be as favorable as the terms of
the existing debt
* necessary capital expenditures cannot be financed on favorable terms,
if at all
* the potential for a forced sale of properties at potentially
distressed prices
* an increase in interest rates would increase the amount payable under
our variable rate debt
CONFLICTS OF INTEREST. In order to meet real estate investment trust
tax rules, we must lease our hotel properties to independent hotel
operating companies. Boykin Management Company and its affiliates lease
about 80% of our hotels. Our chairman and chief executive officer,
Robert Boykin, and his brother John, control Boykin Management Company.
This presents potential conflicts of interest, including that:
* Mr. Boykin may be motivated to cause Boykin Management Company to
operate our hotels in a manner that maximizes Boykin Management
Company's profits and not necessarily ours
* Mr. Boykin could have conflicts of interest in the structuring and
enforcement of our leases with Boykin Management Company
Also, our hotels are owned by Boykin Hotel Properties, L.P. We own a
92% stake in Boykin Hotel Properties, L.P. and we control its affairs.
Mr. Boykin and his family own about 7% of Boykin Hotel Properties,
L.P., which they obtained at the time of our initial public offering by
contributing their interests in nine hotels. Mr. Boykin may be
motivated to influence us not to sell one of these nine hotels because
of adverse tax consequences to him or his family.
Because of these potential conflicts of interest, our charter documents
require that the independent members of our board of directors approve
all decisions regarding our transactions with Mr. Boykin, Boykin
Management Company or their respective affiliates.
4
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<PAGE> 8
FAILURE TO QUALIFY AS A REAL ESTATE INVESTMENT TRUST. We have operated
as a real estate investment trust under the Internal Revenue Code (the
"Code") since 1996. Qualification as a real estate investment trust
involves the application of technical and complex provisions of the
Code for which there are only limited guidelines. Circumstances not
entirely within our control may affect our ability to qualify as a real
estate investment trust. If we were to fail to qualify as a real estate
investment trust, we would incur a significant income tax liability.
Unless we were entitled to relief under the Code, we would also be
disqualified from treatment as a real estate investment trust for the
next four years. As a result, our cash available for distribution to
shareholders could be reduced or eliminated for each of the years
involved. Although we currently intend to operate in a manner designed
to qualify us as a real estate investment trust, it is possible that
future economic, market, legal, tax or other considerations may cause
our Board of Directors, with the consent of the majority of our
shareholders, to revoke our real estate investment trust election.
LIMITATIONS ON OWNERSHIP OF COMMON SHARES. In order for us to maintain
our qualification as a real estate investment trust, not more than 50%
in value of the outstanding Common Shares may be owned, directly or
indirectly, by five or fewer individuals. Accordingly, we prohibit
ownership of more than 9% of the outstanding Common Shares by any
single shareholder, with certain exceptions.
NO LIMITATION ON DEBT; ABILITY TO ISSUE PREFERRED SHARES. Although we
have followed a conservative debt policy, there is no contractual limit
to the amount of debt we can take on. If our policy were to change or
be eliminated, we could become more highly leveraged, which could
adversely affect our ability to make distributions to shareholders.
There could also be an increased risk of default on our obligations.
Our organizational documents authorize our Board of Directors to issue
up to 10 million preferred shares, and to establish certain preferences
and rights of any such shares issued. If we issue preferred shares with
preferential dividend rights, this could diminish the cash available
for distribution to the holders of Common Shares. In addition, the
issuance of such shares could have the effect of delaying or preventing
a change in control of our company, even if a change in control were in
the shareholders' interest.
5
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<PAGE> 9
QUESTIONS AND ANSWERS ABOUT THE PLAN
What is the purpose of the Plan?
- --------------------------------------------------------------------------------
We established the Plan to promote long-term ownership in Boykin
Lodging Company by providing shareholders of record with a simple,
convenient and economical way to invest their cash dividends in
additional Common Shares or to make voluntary cash investments in
Common Shares. We also designed the Plan to enable us to raise capital
efficiently to the extent Common Shares are purchased directly from us
and not in open market transactions. We intend to use any proceeds we
receive from sales of Common Shares for general corporate purposes,
which may include general working capital requirements, repayment of
certain indebtedness under our credit facility, acquisition of
properties as suitable opportunities arise and improvement of some of
the properties in our portfolio. We are unable to estimate the amount
of proceeds that will be devoted to any specific purpose. We will not
receive any proceeds when Common Shares acquired in the open market are
sold under the Plan.
Who runs the Plan?
- --------------------------------------------------------------------------------
National City Bank administers the Plan, acts as your agent, keeps
records, mails account statements, purchases and holds Common Shares
for you and performs other duties imposed by the Plan. National City
will not be liable for any act done in good faith or for any good faith
omission to act. National City is not responsible for the value of
Common Shares acquired under the Plan. National City also acts as
dividend disbursement agent, transfer agent and registrar for the
Common Shares.
We may appoint a successor bank or agent to administer the Plan.
All communications regarding the Plan or your account should be
directed to National City. The address and telephone number of National
City for information about the Plan are:
6
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<PAGE> 10
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FOR INFORMATION ABOUT THE PLAN
CALL WRITE
National City Bank toll free: National City Bank
1-800-622-6757 Reinvestment Services
(Monday through Friday P.O. Box 94946
8 a.m.-5 p.m., Eastern Time) Cleveland, Ohio 44101-4946
All correspondence concerning the Plan, as well as voluntary cash
investments with checks or money orders payable to "National City
Bank," should be mailed to the above address.
Please include your account number, if you are presently a participant,
on all correspondence, checks or money orders, together with a
telephone number where you can be reached during business hours.
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Who may participate?
- --------------------------------------------------------------------------------
Any shareholder of record of Boykin Lodging Company is eligible to
participate in the Plan. A shareholder of record may participate in the
Plan by completing an authorization card and returning it to National
City. A beneficial owner of Common Shares (a person whose Common Shares
are held on his or her behalf by a nominee; for example, in the name of
a bank or brokerage firm) can become a shareholder of record by
transferring one or more Common Shares into his or her name on our
shareholder books and records.
In addition, a beneficial owner or a nonshareholder can become a Plan
participant by returning a completed authorization card to National
City and making an initial purchase of Common Shares through a
voluntary cash investment.
7
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<PAGE> 11
What investment options do I have?
- --------------------------------------------------------------------------------
You may buy Common Shares either through dividend reinvestments or
optional cash purchases.
How do I elect to reinvest my dividends?
- --------------------------------------------------------------------------------
You may elect to have the dividends paid on all or some of your Common
Shares automatically reinvested by National City in additional Common
Shares.
You must give National City authorization for dividend reinvestment at
least one day prior to the dividend record date for Common Shares;
otherwise, the authorization will not be effective until the investment
date following the next dividend record date. You give National City
authorization by completing and returning to National City an
authorization card. You may obtain an authorization card by contacting
National City.
Will I receive a discount by buying through the Plan?
- --------------------------------------------------------------------------------
You will receive a 3% discount by buying through the Plan. The amount
of the discount is subject to change. Your reinvested dividends will be
used to purchase whole and fractional Common Shares (computed to three
decimal places) for your account on the dividend payment date. The
purchase price to you per share for Common Shares purchased with
reinvested dividends will be 97% of the market price. The market price
is the price per share at which National City acquires the Common
Shares for the Plan in the open market or from us.
How do I make voluntary cash investments?
- --------------------------------------------------------------------------------
You may make voluntary cash investments of up to $5,000 per month in
Common Shares. The minimum voluntary cash investment is $50 for
participants and $2,000 for new participants. Participants may purchase
whole and fractional Common Shares (computed to three decimal places)
for 97% (subject to change) of the market price on the investment date.
Persons making their initial investment in Common Shares may purchase
whole and fractional Common Shares (computed to three decimal points)
for 100% of the market price on the investment date.
8
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<PAGE> 12
Your voluntary cash investment must be received by National City before
the five-day pricing period begins in order for your funds to be
invested on the applicable investment date. The pricing period is the
five-business-day period immediately preceding the applicable
investment date (see below). You will not receive interest on funds
held by National City prior to investment. Your voluntary cash
investment will be returned to you upon written request received by
National City at least four business days before the applicable
investment date.
You may change your investment option at any time by requesting a new
authorization card and returning it to National City.
Can you change the 3% discount?
- --------------------------------------------------------------------------------
Yes, we may change the per share discount. However, the discount will
not vary from the range of 0% to 5%. National City will provide Plan
participants with a written notice of any change in the discount.
The combined discount and brokerage fees or commissions per share for
any purchase of Common Shares cannot exceed 5% of the average of the
high and low trading prices for the Common Shares on the investment
date. National City is authorized to adjust the discount you receive on
any purchase of Common Shares, whether by a dividend reinvestment or
voluntary cash investment, in order to ensure that this limitation is
not exceeded.
Who pays the costs of the Plan?
- --------------------------------------------------------------------------------
We will pay all costs of administration of the Plan. In addition, we
will pay any and all brokerage fees or commissions and related expenses
incurred in connection with the purchase of Common Shares in the open
market.
May I make voluntary cash investments of more than $5,000 per month?
- --------------------------------------------------------------------------------
You may make voluntary cash investments in excess of $5,000 only with
our prior approval of your written request to make such an investment.
You may make a written request by submitting a Waiver Purchase Form to
us. We have the discretion to grant or deny a Waiver Purchase Form
request. Our decision will be based on various corporate factors and
market conditions.
At our discretion, voluntary cash investments pursuant to a waiver
purchase form request may be made at a discount from 0% to 3% of the
market price. We may review and adjust the discount relating to such
investments at any time. The waiver purchase form may require you to
represent, among other things, that you are not purchasing the Common
Shares to engage in arbitrage activities and will not sell Common
Shares during the applicable five-day pricing period.
9
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<PAGE> 13
We may establish for each investment date a threshold price that
applies to voluntary cash purchases in excess of $5,000. Those
purchases will not be made unless the market price equals or exceeds
the threshold price for the investment date. If those purchases are not
made, your voluntary cash investment will be returned to you without
interest.
If you decide to make a voluntary cash investment and want to purchase
Common Shares at a price of more than $5,000:
* Contact National City with your request. Ask for that month's
Threshold Price and Waiver Purchase Form.
* Complete the Waiver Purchase Form and return it to us.
* If your Waiver Purchase Form request is approved, send your voluntary
cash investment to National City before the five-day pricing period
begins.
How do I make a voluntary cash investment?
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You make a voluntary cash investment by sending to National City a
check or money order payable to National City. Do not send cash to
National City. Always write our New York Stock Exchange symbol (BOY) on
your check or money order. Voluntary cash investments in the form of a
check or money order must be accompanied by a properly executed
remittance form, which is attached to each statement you receive.
Where do the Common Shares come from?
- --------------------------------------------------------------------------------
Common Shares purchased under the Plan will either be issued directly
from our authorized but unissued Common Shares or purchased by National
City in the open market or in negotiated transactions. A maximum of
2,500,000 Common Shares is available for issuance by us pursuant to the
Plan. We designate the source of Common Shares, but we cannot change
the source more than once in any three-month period.
10
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<PAGE> 14
How is the market price of the Common Shares determined?
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The market price of Common Shares purchased under the Plan will be
calculated differently depending on whether we issue new Common Shares
or National City purchases the Common Shares in the open market. The
market price for Company-issued Common Shares will be the average of
the daily high and low sale prices of Common Shares traded on the New
York Stock Exchange for the five trading days immediately preceding the
applicable investment date. The market price for open market purchases
of Common Shares will be the weighted average price for all Common
Shares purchased under the Plan with respect to the applicable
investment date.
When will Common Shares be acquired?
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* The investment date for the reinvestment of dividends is the dividend
payment date.
* The investment date for voluntary cash investments is the dividend
payment date for any month in which we pay a cash dividend; in any
month in which we do not pay a cash dividend, the investment date is
the tenth day of the month or the next business day if the tenth day
is not a business day.
* National City will purchase Common Shares on or as promptly as
practicable after the applicable investment date.
* In the unlikely event that National City is unable to invest
dividends or voluntary cash investments within 30 days after the
dividend payment date or after voluntary cash investments are
received, the funds will be returned.
How will I track my investment?
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You will receive a statement confirming the purchase of Common Shares
for your account. The statement also will show your previous investment
and reinvestment activity for the calendar year.
Please notify National City in writing if the address on your account
changes.
Remember to save your account statements, along with this Prospectus
and other pertinent tax information related to the Plan, to establish
the cost basis of your Common Shares purchased under the Plan.
11
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<PAGE> 15
Will I receive share certificates?
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You will not receive a certificate for Common Shares purchased under
the Plan unless you request one in writing. You do receive a statement
detailing the status of your holdings each time Common Shares are
purchased for your account. Common Shares purchased under the Plan are
registered in the name of a nominee and shown on your account. Common
Shares credited to your account under the Plan may not be pledged or
assigned. If you want to pledge or assign these shares, you must
request a certificate for them to be issued in your name.
Can I use the Plan as a safekeeping service for my Common Shares?
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Any shareholder may use the Plan's safekeeping service for share
certificates. Safekeeping is beneficial because you do not bear the
risk and cost associated with the loss, theft or destruction of share
certificates. With safekeeping, you retain the option to receive cash
dividends or reinvest your dividends.
To deposit Common Shares in the Plan's safekeeping service, send the
share certificates to National City by registered mail with written
instructions to deposit them in safekeeping. Do not endorse or assign
your certificates.
How do I obtain share certificates?
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You can withdraw Common Shares from your account in certificate form
without charge by writing to National City. National City issues
certificates in the name registered on the account, unless you
otherwise instruct National City. In order for a certificate to be
issued in a name other than the name of the Plan account, you must so
indicate in a written request to National City with your signature
guaranteed by a commercial bank or broker. Contact your bank or broker
for more information regarding this guarantee.
Certificates will be issued only for whole Common Shares. You will
receive a check for the value of any fractional Common Share.
12
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<PAGE> 16
How do I sell Common Shares in my account?
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You can sell full Common Shares in your account by making a written
request to National City. National City will sell your Common Shares at
your request, deduct brokerage fees or commissions, transfer taxes (if
any) and a service charge, and deliver the remaining proceeds to you.
How do I close my account?
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You may stop participating in the Plan at any time by notifying
National City in writing.
When you close your account, you may request:
* A certificate for full Common Shares in your account, and cash for
any remaining fractional Common Share
* A certificate for part of the full Common Shares in your account, and
cash from the sale of any remaining full and fractional Common Share
* Cash from the sale of all full and fractional Common Shares in your
account
All sale proceeds are less brokerage fees or commissions, transfer
taxes (if any) and a service charge.
If you dispose of all Common Shares registered in your name on our
books and records, you will remain a participant in the Plan with
respect to any Common Shares held in your account under the Plan unless
you provide written notice of termination to National City.
Is there a limit to the number of Common Shares I may acquire?
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You may not acquire more than 9% of our outstanding Common Shares.
Will I be able to vote the Common Shares in my account?
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You may vote all Common Shares credited to your account. You will be
sent proxy materials and a proxy covering Common Shares credited to
your account.
13
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<PAGE> 17
What about share dividends or share splits?
- --------------------------------------------------------------------------------
Any share dividend or share split distributed on your Common Shares
held by National City will be credited to your account. If we make
available to our shareholders rights to purchase additional Common
Shares or other securities, National City will send you appropriate
instructions in connection with all such rights in order to permit you
to determine what action to take.
Can you change the Plan?
- --------------------------------------------------------------------------------
Yes, we may amend or supplement the Plan at any time. Except when
necessary to comply with the law or with respect to modifications or
amendments that do not materially affect your rights, an amendment or
supplement will be effective upon our mailing written notice to you at
least 30 days prior to the effective date of the amendment or
supplement. The amendment or supplement will be considered to be
accepted by you unless National City receives written notice of the
termination of your account prior to the effective date of the
amendment.
Can you suspend or terminate the Plan?
- --------------------------------------------------------------------------------
Yes, we have the right to suspend or terminate the Plan at any time. If
your participation in the Plan or an increase in the number of Common
Shares held by you would jeopardize our status as a real estate
investment trust, we may suspend, terminate or refuse your
participation in the Plan. In addition, we have the right to refuse
voluntary cash investments from any person who is attempting to
circumvent the interests of the Plan by making excessive voluntary cash
investments through multiple accounts or by engaging in arbitrage
activities.
If the Plan is terminated, National City will return any uninvested
voluntary cash investment, issue a certificate for whole Common Shares
in your account and pay you cash for any fractional Common Share in
your account.
What are the federal income tax consequences of the Plan to me?
- --------------------------------------------------------------------------------
The reinvestment of dividends does not relieve you of any income tax
that may be payable on dividends. If you elect to have your dividends
reinvested, you will be treated as having received a taxable
distribution of the dividends that are reinvested. A portion of your
dividends may be considered taxable income in the year you receive
them, and a portion of your dividends may be considered a return of
capital. You will receive an annual statement from National City
indicating the amount of dividends reported as taxable dividend income
to the IRS on Form 1099.
14
- --------------------------------------------------------------------------------
<PAGE> 18
In addition to any taxable income you receive with respect to your
dividends, you will be treated as having received taxable income with
respect to (i) brokerage fees or commissions paid by us to acquire
Common Shares for you and (ii) the dollar value of the discount amount
applicable to your acquisitions. The tax basis of the Common Shares
purchased with your dividends will equal the purchase price on the date
your dividends are reinvested plus the dollar value of the discount
amount for your acquisition and any brokerage fees or commissions paid
by us.
In the case of both foreign participants who elect to have their
dividends reinvested and whose dividends are subject to United States
income tax withholding and participants who elect to have their
dividends reinvested and are subject to "backup" withholding under the
Code, National City will invest in Common Shares in an amount equal to
the dividends of the participants less the amount of tax required to be
withheld.
If you are currently a participant and you make a voluntary cash
investment, your taxable income will be the dollar value of the
discount amount applicable to your acquisition if Common Shares are
purchased from us. However, if Common Shares are purchased in the open
market and you are currently a participant, you will be treated as
having taxable income in the amount of brokerage fees or commissions
paid by us plus the dollar value of the discount amount applicable to
the acquisition. The tax basis of the Common Shares will equal the
purchase price on the date of the purchase plus the dollar value of the
discount amount applicable to the acquisition and, in the case of
purchases in the open market, any brokerage fees or commissions paid by
us.
You do not realize a gain or loss for U.S. federal income tax purposes
when you transfer Common Shares into the Plan or when you withdraw full
Common Shares from the Plan. However, you realize gain or loss when you
sell Common Shares held in your account. You also realize gain or loss
when you receive cash from the sale of a fractional share. The amount
of the gain or loss will be the difference between the amount that you
receive for the Common Shares, or fraction of a Common Share, and the
tax basis of the Common Shares, or fraction of a Common Share. This
gain or loss must be reported on your federal income tax return.
What law governs the Plan?
- --------------------------------------------------------------------------------
Ohio law governs the Plan, the authorization card, the account
statements and other documents relating to the Plan. The federal
securities laws also govern the Plan.
15
- --------------------------------------------------------------------------------
<PAGE> 19
LEGAL MATTERS
The validity of the Common Shares offered hereby has been passed upon
by Baker & Hostetler LLP, Cleveland, Ohio. Baker & Hostetler LLP
provides legal services to us and to certain of our affiliates. Albert
T. Adams, one of our directors, is a partner of Baker & Hostetler LLP.
EXPERTS
The audited financial statements and schedules incorporated by
reference in this Prospectus and elsewhere in the Registration
Statement to the extent and for the periods indicated in their
reports have been audited by Arthur Andersen LLP, independent public
accountants, and are incorporated by reference in this Prospectus and
elsewhere in the Registration Statement in reliance upon the authority
of Arthur Andersen LLP as experts in giving such reports.
WHERE TO GO FOR MORE INFORMATION
We file annual, quarterly and special reports, proxy and other
information statements and other information with the SEC. You may read
and copy any reports, proxy or other information statements or other
information that we file with the SEC at the SEC's Public Reference
Room at 450 Fifth Street, N.W., Washington, D.C. 20549. You may obtain
information on the operation of the Public Reference Room by calling
the SEC at 1-800-SEC-0330. The SEC maintains an Internet site at
http://www.sec.gov. that contains reports, proxy and information
statements, and other information regarding issuers like us that file
electronically with the SEC.
We have filed with the SEC a Registration Statement on Form S-3 under
the Securities Act of 1933, as amended. This Prospectus is part of the
Registration Statement. This Prospectus does not contain all of the
information set forth in the Registration Statement, some parts of
which have been omitted in accordance with the rules and regulations of
the SEC. For further information regarding Boykin Lodging Company and
the Common Shares offered hereby, reference is made to the Registration
Statement, which may be obtained from the SEC as provided above.
The documents that we are incorporating by reference are:
* Annual Report on Form 10-K for the fiscal year ended December 31,
1998;
* The description of our Common Shares contained in our Registration
Statement on Form 8-A/A filed with the SEC on October 23, 1996; and
* All documents filed by us pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior
to the termination of this offering.
16
- --------------------------------------------------------------------------------
<PAGE> 20
We will provide to each person, including any beneficial owner, to whom
a Prospectus is delivered, a copy of any or all of the information that
has been incorporated by reference in the Prospectus but not delivered
with the Prospectus, including any exhibits that are specifically
incorporated by reference. This information will be provided to you at
no cost upon written request. Requests for information should be sent
to Investor Relations, Boykin Lodging Company, Guildhall Building, 45
West Prospect Avenue, Suite 1500, Cleveland, Ohio 44115, telephone
number (216) 430-1200, facsimile number (216) 430-1201.
FORWARD-LOOKING STATEMENTS
This Prospectus (including information incorporated by reference
herein) contains some forward-looking statements. Those statements
include statements regarding our and our directors' or officers'
intent, plans, objectives, beliefs or current expectations with respect
to (i) the leasing, management or performance of our hotels and other
hotels to be acquired; (ii) the adequacy of reserves for renovation and
refurbishment; (iii) potential acquisitions by us; (iv) our financing
plans; (v) our policies regarding investments, dispositions,
financings, conflicts of interest and other matters; and (vi) trends
affecting us.
Prospective investors are cautioned that any such forward-looking
statement is not a guarantee of future performance and involves risks
and uncertainties, and that actual results may differ materially from
those in the forward-looking statement as a result of various factors,
including those identified in "Risk Factors." The information contained
in this Prospectus and in the documents incorporated by reference
herein identifies important factors that could cause such differences.
With respect to any such forward-looking statement that includes a
statement of its underlying assumptions or bases, we caution that,
while we believe these assumptions or bases to be reasonable and have
formed them in good faith, assumed facts or bases almost always vary
from actual results, and the differences between assumed facts or bases
and actual results can be material depending on the circumstances.
When, in any forward-looking statement, we or our management express an
expectation or belief as to future results, that expectation or belief
is expressed in good faith and is believed to have a reasonable basis,
but there can be no assurance that the stated expectation or belief
will result or be achieved or accomplished.
17
- --------------------------------------------------------------------------------
<PAGE> 21
[LOGO] BOYKIN LODGING COMPANY
Boykin Lodging Company
Guildhall Building
45 West Prospect Avenue, Suite 1500
Cleveland, Ohio 44115
Telephone 216-430-1200 Facsimile 216-430-1201
- --------------------------------------------------------------------------------
<PAGE> 22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the fees and expenses in connection with the
issuance and distribution of Common Shares other than discounts and commissions.
Except for the SEC registration fees, all amounts are estimates.
<TABLE>
<S> <C>
SEC Registration Fee........................................ $ 8,730
NYSE Listing Fee............................................ 1,500
Accounting Fees and Expenses................................ 500
Legal Fees and Expenses..................................... 25,000
Printing Expenses........................................... 5,000
Miscellaneous Expenses...................................... 1,270
-------
Total............................................. $42,000
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Ohio Revised Code (the "Ohio Code") authorizes Ohio corporations to
indemnify an officer or director from liability if the officer or director acted
in good faith and in a manner reasonably believed by the officer or director to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal actions, if the officer or director had no reason to believe his
action was unlawful. In the case of an action by or on behalf of a corporation,
indemnification may not be made (i) if the person seeking indemnification is
adjudged liable for negligence or misconduct, unless the court in which such
action was brought determines such person is fairly and reasonably entitled to
indemnification, or (ii) if liability asserted against such person concerns
certain unlawful distributions. The indemnification provisions of the Ohio Code
require indemnification if a director or officer has been successful on the
merits or otherwise in defense of any action, suit or proceeding that he was a
party to by reason of the fact that he is or was a director or officer of the
corporation. The indemnification authorized under Ohio law is not exclusive and
is in addition to any other rights granted to officers and directors under the
articles of incorporation or code of regulations of the corporation or any
agreement between officers and directors and the corporation. A corporation may
purchase and maintain insurance or furnish similar protection on behalf of any
officer or director against any liability asserted against him and incurred by
him in his capacity, or arising out of his status, as an officer or director,
whether or not the corporation would have the power to indemnify him against
such liability under the Ohio Code.
The Registrant's Code of Regulations provides for the indemnification of a
director or officer of the Registrant to the maximum extent permitted by Ohio
law as authorized by the Board of Directors of the Registrant and for the
advancement of expenses incurred in connection with the defense of any action,
suit or proceeding that he was a party to by reason of the fact that he is or
was a director or officer of the Registrant upon the receipt of an undertaking
to repay such amount unless it is ultimately determined that the director or
officer is entitled to indemnification.
The Registrant maintains a directors' and officers' insurance policy which
insures the directors and officers of the Registrant from claims arising out of
an alleged wrongful act by such persons in their respective capacities as
directors and officers of the Registrant, subject to certain exceptions.
II-1
<PAGE> 23
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
- -------------- ----------------------
<S> <C>
4.1 Amended and Restated Articles of Incorporation, as
amended(1)
4.2 Code of Regulations(2)
4.3 Specimen Certificate for Common Shares(2)
4.4 Boykin Lodging Company Dividend Reinvestment and Optional
Share Purchase Plan
5 Opinion of Baker & Hostetler LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Baker & Hostetler LLP (included in Exhibit 5)
24 Power of Attorney (included on signature page)
</TABLE>
- ---------------
(1) Incorporated by reference from Boykin Lodging Company's Form 10-K for the
fiscal year ended December 31, 1998.
(2) Incorporated by reference from Amendment No. 3 to Boykin Lodging Company's
Registration Statement on Form S-11 (Registration Statement No. 333-6341)
(the "Form S-11") filed on October 24, 1996. The Code of Regulations and the
Specimen Share Certificate were filed as Exhibits 3.2 and 4.1, respectively,
to the Form S-11.
ITEM 17. 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 this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
provided, however, that subparagraphs (i) and (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 Securities Exchange Act of 1934 that are
incorporated by reference in this 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
herein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof; and
(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 further undertakes that, for the 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 this
Registration
II-2
<PAGE> 24
Statement shall be deemed to be a new Registration Statement relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
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 described under Item 15 of this
Registration Statement, 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 such 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 such Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE> 25
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cleveland, State of Ohio, on the 16th day of April,
1999.
BOYKIN LODGING COMPANY
By: /s/ ROBERT W. BOYKIN
--------------------------------------
Robert W. Boykin, Chairman,
President and Chief Executive
Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert W. Boykin, Paul A. O'Neil and Albert T.
Adams, or any one of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all pre-or
post-effective amendments to this Registration Statement (including any
subsequent registration statement for the same offering that may be filed under
Rule 462(b) under the Securities Act of 1933, as amended), and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said 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 in and about the
premises, as fully to all intents and purposes as he 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 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 on April 16, 1999, by the following
persons in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ ROBERT W. BOYKIN Chairman, President, Chief Executive Officer and
- ------------------------------------------------ Director (Principal Executive Officer)
Robert W. Boykin
/s/ PAUL A. O'NEIL Chief Financial Officer and Treasurer (Principal
- ------------------------------------------------ Financial and Accounting Officer)
Paul A. O'Neil
/s/ RAYMOND P. HEITLAND Director
- ------------------------------------------------
Raymond P. Heitland
/s/ IVAN J. WINFIELD Director
- ------------------------------------------------
Ivan J. Winfield
/s/ LEE C. HOWLEY, JR. Director
- ------------------------------------------------
Lee C. Howley, Jr.
/s/ FRANK E. MOSIER Director
- ------------------------------------------------
Frank E. Mosier
/s/ WILLIAM H. SCHECTER Director
- ------------------------------------------------
William H. Schecter
/s/ ALBERT T. ADAMS Director
- ------------------------------------------------
Albert T. Adams
</TABLE>
II-4
<PAGE> 26
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
- -------------- ----------------------
<S> <C>
4.1 Amended and Restated Articles of Incorporation, as
amended(1)
4.2 Code of Regulations(2)
4.3 Specimen Certificate for Common Shares(2)
4.4 Boykin Lodging Company Dividend Reinvestment and Optional
Share Purchase Plan
5 Opinion of Baker & Hostetler LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Baker & Hostetler LLP (included in Exhibit 5)
24 Power of Attorney (included on signature page)
</TABLE>
- ---------------
(1) Incorporated by reference from Boykin Lodging Company's Form 10-K for the
fiscal year ended December 31, 1998.
(2) Incorporated by reference from Amendment No. 3 to Boykin Lodging Company's
Registration Statement on Form S-11 (Registration Statement No. 333-6341)
(the "Form S-11") filed on October 24, 1996. The Code of Regulations and the
Specimen Share Certificate were filed as Exhibits 3.2 and 4.1, respectively,
to the Form S-11.
<PAGE> 1
Exhibit 4.4
BOYKIN LODGING COMPANY
DIVIDEND REINVESTMENT AND OPTIONAL SHARE PURCHASE PLAN
1. PURPOSE AND ADMINISTRATION.
This Dividend Reinvestment and Optional Share Purchase Plan (the
"Plan") provides the shareholders of Boykin Lodging Company (the "Company") an
opportunity to automatically invest their cash dividends on their Common Shares,
without par value, of the Company ("Common Shares") in additional Common Shares,
and to make monthly or other voluntary cash investments in Common Shares. The
Company will pay the cost of the administration of the Plan. Persons who are not
already shareholders of the Company may purchase Common Shares under the Plan
through voluntary cash investments. The Company may issue not more than
2,500,000 Common Shares under the Plan. The Plan will be administered by
National City Bank, transfer agent for the Company. National City Bank or any
successor administrator of the Plan is referred to as the "Agent."
2. ELIGIBILITY.
Except as otherwise provided in this Section 2, only shareholders of
record of the Company ("Record Holders") who complete and return an
Authorization Card to the Agent are eligible to become participants
("Participants") in the Plan. Beneficial owners of Common Shares (i.e., persons
whose Common Shares are held on their behalf by a nominee, such as a bank or a
brokerage firm) are not Record Holders and must have one or more Common Shares
transferred into their names on the share records of the Company in order to
become Participants. Other persons may become Participants by completing and
returning an Authorization Card to the Agent and making an initial purchase of
Common Shares through a voluntary cash investment.
3. PURCHASE OF COMMON SHARES.
The Agent's purchases of Common Shares for the Plan may be made, at the
Company's option, either (i) from the Company out of its authorized but unissued
Common Shares, or (ii) in the open market (on the New York Stock Exchange or any
securities exchange where the Common Shares are then traded, in the
over-the-counter market or in negotiated transactions). The Company may change
its designation as to whether Common Shares will be purchased from the Company
or in the open market only once in any three-month period. The Company will pay
the brokerage fees or commissions related to the Agent's purchases of Common
Shares in the open market.
In making purchases of Common Shares, the Agent may commingle the
Participants' funds. The Agent will purchase Common Shares to be purchased in
the open market on or as promptly as practicable after the applicable Investment
Date (defined below), consistent with any applicable securities laws and market
conditions, and, in any event, dividends and voluntary cash investments will be
invested within 30 days after receipt by the Agent except when applicable laws
or regulations require otherwise. The exact timing of open market purchases,
including
<PAGE> 2
determining the number of Common Shares, if any, to be purchased on any day or
at any time of day, the prices paid for such shares, the markets on which such
purchases are made, and the persons (including brokers and dealers) from or
through whom such purchases are made will be determined by the Agent or the
broker selected by it for that purpose. The Agent may purchase Common Shares in
advance of an Investment Date for settlement on or after such date. No interest
will be paid on funds held by the Agent pending investment. The Agent may hold
Common Shares of all Participants on deposit in its name or in the name of its
nominee. The Agent is not responsible for the value of Common Shares acquired
for the Participant's account.
If the Agent is unable to invest dividend payments or funds received
for voluntary cash investments in accordance with the guidelines of the Plan,
voluntary cash investments will be returned within 35 days after receipt by the
Agent and dividend payments will be returned within 35 days after the applicable
dividend payment date. The Agent has no liability for conditions that prevent
the purchase of Common Shares or interfere with the timing of purchases.
4. DIVIDEND REINVESTMENT.
As the Participant's agent, the Agent will receive, on or before each
dividend payment date, cash from the Company equal to the dividend on the
participating Common Shares, including any fractional Common Share (computed to
three decimal places) held by the Participant. The Agent will apply such funds
(subject to tax withholding requirements, as described in Section 9) toward the
purchase of Common Shares for the Participant's account. A Participant may
direct the Agent to reinvest dividends on some but not all of his or her Common
Shares. The purchase price per share to the Participant for Common Shares
purchased by the Agent for the Plan with reinvested dividends will be 97%
(subject to change) of the Market Price for the applicable Investment Date. The
number of Common Shares credited to a Participant's account on each purchase of
Common Shares with reinvested dividends will be the number (computed to three
decimal places) resulting from dividing the Participant's aggregate dividends
invested by 97% (subject to change) of the Market Price for the applicable
Investment Date.
The "Market Price" will be, (a) with respect to Common Shares purchased
from the Company, the average of the daily high and low sale prices of Common
Shares on the New York Stock Exchange for the five trading days immediately
preceding the applicable Investment Date, and (b) with respect to Common Shares
purchased in the open market or in negotiated transactions, the weighted average
price of all Common Shares purchased under the Plan on the applicable Investment
Date.
The "Investment Date," with respect to all funds received as cash
dividends from the Company, will be the dividend payment date declared by the
Company for those payments from time to time. The Investment Date, with respect
to voluntary cash investments, will be once per month on (i) the dividend
payment date for any month in which the Company pays a cash dividend and (ii)
for any month in which no cash dividend is paid, the tenth day of that month or
the next business day if the tenth day is not a business day. A business day is
any day on which both the Agent and the New York Stock Exchange are open.
The Agent must receive authorization for any reinvestment of dividends
at least one day prior to the record date for payment of those dividends;
otherwise, such authorization will not be effective until the Investment Date
following the next dividend record date.
2
<PAGE> 3
5. VOLUNTARY CASH INVESTMENT.
As the Participant's agent, the Agent may receive monthly or other (as
determined by the Participant) voluntary cash investments. The Agent will apply
such funds toward the purchase of Common Shares for the Participant's account.
Voluntary cash investments received by the Agent at least six business days
prior to an applicable Investment Date will be invested on or as promptly as
practicable after the applicable Investment Date. The purchase price per share
to the Participant for Common Shares purchased by the Agent for the Plan with
voluntary cash investments will be 97% (subject to change) of the Market Price
for the applicable Investment Date, and the purchase price per share to a person
making an initial purchase of Common Shares pursuant to the Plan for Common
Shares purchased by the Agent for the Plan will be 100% of the Market Price for
the applicable Investment Date. The number of Common Shares credited to a
Participant's account on each purchase of Common Shares with voluntary cash
investments will be the number (computed to three decimal places) resulting from
dividing the Participant's voluntary cash investment by 97% (subject to change)
of the Market Price for the applicable Investment Date. The number of Common
Shares credited to the account of a person making an initial purchase of Common
Shares pursuant to the Plan will be the number (computed to three decimal
places) resulting from dividing that person's voluntary cash investment by 100%
of the Market Price for the applicable Investment Date.
Subject to Section 7 below, any voluntary cash investment by a
Participant may not be less than $50 nor more than $5,000 in the aggregate in
any month, and any voluntary cash investment by a person making an initial
purchase of Common Shares pursuant to the Plan may not be less than $2,000 nor
more than $5,000 in the aggregate. No interest will be paid on funds held by the
Agent prior to investment. Voluntary cash investments received by the Agent will
be returned to the Participant (or first-time purchasers) upon written request
received by the Agent at least four business days prior to the applicable
Investment Date.
6. DISCOUNTS AND COMMISSIONS.
The discount per share from the Market Price for either a dividend
reinvestment or a voluntary cash investment is subject to change (but will not
vary from the range of 0% to 5%) from time to time at the Company's sole
discretion after a review of current market conditions, the level of
participation in the Plan and the Company's current and projected capital needs.
The Agent will provide Participants with prompt written notice of any change in
the discount.
In no event may the combined discount from the Market Price and
brokerage fees or commissions per share for Common Shares credited to a
Participant's account exceed 5% of the Market Price on the applicable Investment
Date, and the Agent is authorized to adjust the discount from the Market Price
to ensure that that limit is not exceeded.
For each Investment Date for which the Agent is directed to purchase
Common Shares in the open market, the Company will pay the Agent an amount equal
to the amount of the aggregate discounts per share (if any) from the Market
Price.
3
<PAGE> 4
7. PERMITTED PAYMENTS IN EXCESS OF LIMITS.
Voluntary cash investments in excess of $5,000 may be made by a
Participant only upon the prior approval by the Company of a waiver purchase
form (a "Waiver Purchase Form") from such Participant. At the Company's sole
discretion, voluntary cash investments pursuant to a Waiver Purchase Form
request may be made at a discount of from 0% to 3% of the Market Price. The
Company reserves the right to review and adjust the discount relating to Waiver
Purchase Form requests at any time. The Waiver Purchase Form may require the
requesting Participant to represent, among other things, that the Participant is
not purchasing the Common Shares to engage in arbitrage activities and will not
sell Common Shares during any applicable five-day pricing period. No maximum
limit applies to voluntary cash investments that may be made pursuant to a
Waiver Purchase Form request. Notwithstanding the above, no Participant may
acquire more than 9% of the outstanding Common Shares.
A Waiver Purchase Form request will be considered on the basis of a
variety of factors, including: the Company's current and projected capital
requirements, the alternatives available to the Company to meet those
requirements, prevailing market prices for Common Shares, general economic and
market conditions, expected aberrations in the price or trading volume of Common
Shares, the number of Common Shares held by the Participant submitting the
Waiver Purchase Form, the aggregate amount of voluntary cash investments for
which such Waiver Purchase Forms have been submitted, and the administrative
constraints associated with granting such Waiver Purchase Form request. Any
grant of permission to purchase Common Shares in excess of $5,000 per month will
be made in the sole discretion of the Company.
The Company may establish for each Investment Date a threshold Common
Share purchase price (the "Threshold Price") which applies only to voluntary
cash investments made pursuant to a Waiver Purchase Form request. The Threshold
Price will be a stated dollar amount that the Market Price of the Common Shares
for the respective Investment Date must equal or exceed in order for the Agent
to make any purchases pursuant to a Waiver Purchase Form request. The Threshold
Price will initially be established by the Company at least five business days
prior to the applicable Investment Date; however, the Company reserves the right
to change the Threshold Price at any time. The Threshold Price will be
determined in the Company's sole discretion after a review of current market
conditions and other relevant factors. If the Threshold Price is not met for the
applicable Investment Date, each Participant's voluntary cash investments made
pursuant to a Waiver Purchase Form for that Investment Date will be returned,
without interest, to the Participant. Setting a Threshold Price for an
Investment Date will not affect the setting of a Threshold Price for any
subsequent Investment Date.
8. ACCOUNTS.
As soon as practicable after the purchase of Common Shares on any
Investment Date, the Agent will send to each Participant a statement of account
confirming that Participant's transactions and itemizing that Participant's
investment and reinvestment activity for the calendar year. Common Shares
credited to a Participant's account may not be pledged or assigned, and any
attempted pledge or assignment is void. A Participant who wishes to pledge or
assign Common Shares credited to the Participant's account must first withdraw
the Common Shares from the account.
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9. INCOME TAX.
The reinvestment of dividends does not relieve a Participant of any
income tax which may be payable on the dividends. In the case of both foreign
Participants who elect to have their dividends reinvested (and whose dividends
are subject to United States income tax withholding) and other Participants who
elect to have their dividends reinvested (and who are subject to "backup"
withholding under Section 3406(a)(1) of the Internal Revenue Code of 1986, as
amended, (the "Code")), the Agent will invest in Common Shares in an amount
equal to the dividends of the Participants, less the amount of tax required to
be withheld. To the extent required under federal tax law, Participants will be
treated as having received a distribution to which Section 301 of the Code
applies with respect to (i) brokerage fees or commissions paid by the Company to
acquire Common Shares for the Participant and (ii) the dollar value of the
discount applicable to such acquisitions.
10. VOTING.
The Participant may vote all Common Shares credited to a Participant's
account under the Plan. If on the record date for a meeting of shareholders
there are Common Shares credited to the account of a Participant, the Agent will
send to that Participant the proxy material for the meeting and a proxy covering
the Participant's shares credited to the Participant's account.
11. CERTIFICATES.
Common Shares purchased under the Plan are registered in the name of a
nominee and shown on each Participant's account. However, a Participant may
request in writing a certificate for any of the whole Common Shares that have
accumulated in the Participant's account. Each certificate issued is registered
in the name or names in which the account is maintained, unless the Participant
otherwise instructs the Agent in writing. If the certificate is to be issued in
a name other than the name of the Plan account, the Participant or Participants
must have his, her or their signatures guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee medallion program)
pursuant to Rule 17Ad-15 of the Securities Act of 1933, as amended. Certificates
for fractional shares will not be issued. Dividends will be paid on the
cumulative holdings of both full and fractional Common Shares remaining in the
Participant's account and will be reinvested in accordance with the elections
made by the Participant in accordance with the Plan. Participants may deposit
certificates for Common Shares registered in their names with the Agent for
credit under the Plan. There is no charge for such deposits.
12. TERMINATION OF PARTICIPATION.
A Participant may terminate his or her account at any time by notifying
the Agent in writing. Unless the Agent receives the termination notice at least
five days prior to any dividend record date, it will not be processed until
after purchases made from the dividends paid with respect to that record date
have been completed and credited to the Participant's account. All dividends
with a record date after timely receipt of notice for termination will be sent
directly to the Participant. In addition, upon instructions from the Company,
the Agent may terminate the account of any Participant by written notice mailed
to the Participant. Within 14 days after mailing the termination notice, the
Agent will issue to the Participant, without charge, a
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certificate for the full Common Shares held in the Participant's account or, if
the Participant so requests the Agent in writing or by telephone before the
Agent's issuance of a certificate, the Agent will sell the full Common Shares
held in the Participant's account, deduct brokerage commissions, transfer taxes
(if any) and a service charge, and deliver the proceeds to the Participant. In
every case of termination, the Participant's interest in any fractional Common
Share will be paid in cash at the market value of the Company's Common Shares
existing on the date the termination becomes effective as determined by the
Agent. A Participant will also be entitled to the uninvested portion of any
voluntary investment if notice of termination is received at least two business
days prior to the date when the Agent becomes obligated to pay for Common Shares
purchased with respect to that investment.
If a Participant disposes of all of the Common Shares registered in his
or her name on the books and records of the Company, the Participant will remain
in the Plan with respect to any Common Shares held in the Participant's account
under the Plan unless the Participant provides written notice of termination to
the Agent.
13. SHARE DIVIDENDS.
Any share dividends or share splits distributed by the Company on the
Common Shares held by the Agent for the Participant will be credited to the
Participant's account. If the Company makes available to its shareholders rights
to purchase additional Common Shares or other securities, the Agent will send to
the Participant appropriate instructions in connection with all such rights in
order to permit the Participant to determine what action he or she desires to
take.
14. RESPONSIBILITY OF AGENT.
The Agent is not liable hereunder for any act done in good faith, or
for any good faith omission to act, including, without limitation, for: (i) any
failure to terminate any Participant's account upon the Participant's death
prior to receipt of notice in writing of his or her death, and (ii) the prices
and times at which it purchases or sells Common Shares for any Participant's
account.
15. AMENDMENT OF PLAN.
The Company may amend or supplement the Plan at any time, but, except
when necessary or appropriate to comply with law or the rules or regulations of
the Securities and Exchange Commission (the "Commission"), the Internal Revenue
Service or other regulatory authority or with respect to any modification or
amendment that does not materially affect the rights of Participants, any
amendment or supplement will be effective only upon the mailing of written
notice thereof at least 30 days prior to the effective date thereof to each
Participant. The amendment or supplement will be considered to be accepted by
the Participant unless, prior to the effective date thereof, the Agent receives
written notice of the termination of the Participant's account. Any such
amendment may include an appointment by the Company of a successor Agent, in
which event the Company is authorized to pay the successor Agent for the account
of the Participant all dividends and distributions payable on Common Shares held
by the Participant for application by the successor Agent as provided in the
Plan.
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16. SUSPENSION, TERMINATION AND COMPANY DISCRETION.
The Company reserves the right to suspend or terminate the Plan at any
time, and reserves the right to refuse voluntary cash investments from any
person who, in the sole judgment of the Company, is attempting to circumvent the
interests of the Plan by making excessive voluntary cash investments through
multiple accounts or by engaging in arbitrage activities. The Company may also
suspend, terminate or refuse participation in the Plan to any person if
participation or any increase in the number of Common Shares held by such person
would, in the sole judgment of the Company, jeopardize the status of the Company
as a real estate investment trust.
17. COMPLIANCE WITH APPLICABLE LAW AND REGULATIONS.
(a) The Company's obligation to offer or sell Common Shares hereunder
is subject to the Company's obtaining any necessary approval, authorization or
consent from any regulatory authority having jurisdiction over that offer and
sale. The Company may elect not to offer or sell Common Shares hereunder to
persons residing in any jurisdiction where, in the sole judgment of the Company,
the burden or expense of compliance with applicable blue sky or securities laws
makes that offer or sale impracticable or inadvisable.
(b) To the extent required to comply with law or the rules and
regulations of the Commission, neither the Company nor any "affiliated"
purchaser (as defined under the Securities Exchange Act of 1934, as amended)
shall purchase any Common Shares on any day on which the market price of the
Common Shares will be a factor in determining the Market Price as provided in
Section 4 of the Plan.
18. INTERPRETATION.
The Company will determine any questions of interpretation arising
under the Plan, and that determination will be final. The Company may adopt
rules and regulations to facilitate the administration of the Plan. The terms
and conditions of the Plan will be governed by the laws of the State of Ohio.
19. EFFECTIVE DATE.
The effective date of the Plan is March 2, 1999. All correspondence and
questions regarding the Plan and any Participant's account should be directed
to: National City Bank, Reinvestment Services, P.O. Box 94946, Cleveland, Ohio
44101-4946, telephone number: 800-622-6757, or such other address or telephone
number of which notice is given to Participants in writing.
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Exhibit 5
April 16, 1999
Boykin Lodging Company
Guildhall Building
45 West Prospect Avenue
Suite 1500
Cleveland, OH 44115
Ladies and Gentlemen:
As counsel for Boykin Lodging Company, an Ohio corporation (the
"Company"), we are familiar with the Company's Registration Statement on Form
S-3 (the "Registration Statement") filed with the Securities and Exchange
Commission on April 16, 1999 under the Securities Act of 1933, as amended, in
connection with a proposed offering and sale of up to 2,500,000 Common Shares,
without par value (the "Shares"), of the Company pursuant to the Company's
Dividend Reinvestment and Optional Share Purchase Plan (the "Plan").
In connection with the foregoing, we have examined (a) the Amended and
Restated Articles of Incorporation, as amended, of the Company (b) the Code of
Regulations of the Company, (c) the Registration Statement, (d) the Plan, (e)
such records of the corporate proceedings of the Company, and (f) other
documents and such matters of law as we deemed necessary to render this
opinion.
Based upon such examination, we are of the opinion that the Shares are
duly authorized, and when issued and sold pursuant to the Plan and in the manner
contemplated by the Registration Statement, will be legally issued, fully paid
and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and the reference to Baker & Hostetler LLP under the
caption "Legal Matters" in the Prospectus that is a part of the Registration
Statement.
Very truly yours,
/s/ Baker & Hostetler LLP
<PAGE> 1
Exhibit 23.1
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 12, 1999
and February 25, 1997 included in Boykin Lodging Company's Form 10-K for the
year ended December 31, 1998, and to all references to our Firm included in
this registration statement.
Cleveland, Ohio
April 16, 1999 /s/ Arthur Andersen LLP
