As filed with the Securities and Exchange Commision on September 10, 1999
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
------------------------
LASALLE HOTEL PROPERTIES
(Exact name of registrant as specified in its charter)
Maryland 36-4219376
- ------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1401 Eye Street, NW
Suite 900
Washington, D.C. 20005
(202) 222-2600
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
------------------------
LaSalle Hotel Properties 1998 Share Option and Incentive Plan
(Full title of the plan)
-----------------------
Jon E. Bortz
President and Chief Executive Officer
LaSalle Hotel Properties
1401 Eye Street, NW
Suite 900
Washington, D.C. 20005
(202) 222-2600
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------ ---------------------- ------------------------- ------------------------ =========================
Proposed maximum
Title of Securities Amount to Proposed maximum aggregate offering Amount of registration
to be registered be registered offering price per unit price fee
- ------------------------------ ---------------------- ------------------------- ------------------------ =========================
- ------------------------------ ---------------------- ------------------------- ------------------------ =========================
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share............... 743,000 (1) $13.88 (2) $ 10,312,840 (3) $ 2,867 (4)
- ------------------------------ ---------------------- ------------------------- ------------------------ =========================
</TABLE>
(1) Plus such additional number of shares as may be required by reason of the
anti-dilution provisions of the LaSalle Hotel Properties 1998 Share
Option and Incentive Plan.
(2) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act").
(3) Calculated pursuant to Rule 457(c) and (h) under the Securities Act based
on the average of the high and low prices for the Common Stock reported
on the New York Stock Exchange on September 7, 1999.
(4) In accordance with Rule 457(h), the filing fee is based on the maximum
number of the registrant's securities issuable under the LaSalle Hotel
Properties 1998 Share Option and Incentive Plan that are covered by this
Registration Statement.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of
Form S-8 will be sent or given to plan participants as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
Such documents and the documents incorporated by reference herein pursuant to
Item 3 of Part II hereof, taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
LaSalle Hotel Properties (the "Company") hereby incorporates by
reference the documents listed in (a), (b) and (c) below which have previously
been filed with the Securities and Exchange Commission.
(a) The Annual Report filed on Form 10-K for the fiscal year ended
December 31, 1998.
(b) The Quarterly Reports on Form 10-Q for the quarters ended March
31, 1999 and June 30, 1999.
(c) The description of the Company's common shares contained in the
section captioned "Shares of Beneficial Interest" in the
Company's prospectus filed pursuant to Rule 424(b)(4) of the
Securities Act as of April 24, 1998 as part of the Company's
Registration Statement on Form S-11 (No. 333-45647).
In addition, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof
and prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities
remaining unsold shall be deemed to be incorporated by reference herein and to
be part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF EXPERTS AND COUNSEL.
None.
<PAGE>
ITEM 6. INDEMNIFICATION OF TRUSTEES AND OFFICERS.
The Company's officers and trustees are and will be indemnified under
Maryland and Delaware law, the Declaration of Trust and Bylaws of the Company
and the Partnership Agreement of the Operating Partnership against certain
liabilities. The Declaration of the Trust of the Company requires it to
indemnify its trustees and officers to the fullest extent permitted from time
to time under Maryland law.
The Declaration of Trust of the Company authorizes it, to the maximum
extent permitted by Maryland law, to obligate itself to indemnify and to pay
or reimburse reasonable expenses in advance of final disposition of a
proceeding to (a) any present or former trustee or officer or (b) any
individual who, while a trustee of the Company and at the request of the
Company, serves or has served as a director, officer, partner, trustee,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or any other enterprise from and against any claim or
liability to which such person may become subject or which such person may
incur by reason of his or her status as a present or former trustee or officer
of the Company. The Bylaws of the Company obligate 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 (a) any present or
former trustee or officer who is made party to the proceeding by reason of his
service in that capacity or (b) any individual who, while a trustee or officer
of the Company and at the request of the Company, serves or has served another
real estate investment trust, corporation, partnership, joint venture, trust,
employee benefit plan or any other enterprise as a trustee, director, officer
or partner of such real estate investment trust, corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise and who is
made party to the proceeding by reason of his service in that capacity,
against any claim or liability to which he may become subject by reason of
such status. The Declaration of Trust and Bylaws also permit the Company to
indemnify and advance expenses to any person who served as 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 Bylaws require the
Company to indemnify a trustee or officer who has been successful, on the
merits or otherwise, in the defense of any proceeding to which he is made a
party by reason of his service in that capacity.
Title 8 of the Corporations and Associations Article of the Annotated
Code of Maryland ("Title 8") permits a Maryland real estate investment trust
to indemnify and advance expenses to its trustees, officer, employees and
agents to the same extent as permitted by the Maryland General Corporation
Law, as amended from time to time (the "MGCL"), for directors and officers of
Maryland corporations. 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,
under the MGCL, a Maryland corporation may not indemnify for an adverse
judgment in a suit by or in the right of the corporation. In accordance with
the MGCL, the Bylaws of the Company require it, as a condition to advance
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.
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS
4(a)* Articles of Amendment and Restatement of Declaration of Trust of the
Company.
4(b)* Bylaws of the Company.
4(c) LaSalle Hotel Properties 1998 Share Option and Incentive Plan, as
amended through September 9, 1999.
5 Opinion of Brown & Wood LLP.
23(a) Consent of Brown & Wood LLP (included as part of Exhibit 5).
23(b) Consent of KPMG LLP.
24 Power of Attorney (included on page 6).
* Previously filed as an exhibit to Registration Statement on Form S-11
(No. 333-45647) and incorporated herein by reference.
ITEM 9. UNDERTAKINGS
The undersigned registrants hereby undertake:
(a)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at 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.
(b) 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 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this registration statement shall be deemed to be
a new registration statement relating to the securities offered herein, and
the offering of such securities at the time shall be deemed to be the initial
bona fide offering thereof.
(c) 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 referred to in Item 6 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 the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding ) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, LaSalle
Hotel Properties certifies that is 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 District of Columbia, on the 9th day of
September, 1999.
LASALLE HOTEL PROPERTIES
By: /s/ Hans S. Weger
------------------------
Hans S. Weger
Executive Vice President, Treasurer and
Chief Financial Officer (Authorized Officer
and Principal Financial and Accounting
Officer)
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that we, the undersigned officers
and directors of LaSalle Hotel Properties hereby severally constitute Jon E.
Bortz, Hans S. Weger and Stuart L. Scott, and each of them singly, our true
and lawful attorneys with full power to them, and each of them singly, to sign
for us and in our names in the capacities indicated below, the Registration
Statement filed herewith and any and all amendments to said Registration
Statement, and generally to do all such things in our names and in our
capacities as officers and directors to enable LaSalle Hotel Properties to
comply with the provisions of the Securities Act of 1933, and all requirements
of the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys, or any of them, to
said Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Jon E. Bortz President, Chief Executive Officer and Trustee
- ---------------------------
Jon E. Bortz (Principal Executive Officer) September 9, 1999
/s/ Hans S. Weger Executive Vice President, Treasurer and Chief Financial Officer
- ---------------------------
Hans S. Weger (Authorized Officer and Principal Financial and Accounting Officer) September 9, 1999
/s/ Stuart L. Scott
- ---------------------------
Stuart L. Scott Chairman of the Board of Trustees September 9, 1999
/s/ Darryl Hartley-Leonard
- ---------------------------
Darryl Hartley-Leonard Trustee September 9, 1999
/s/ George F. Little, II
- ------------------------
George F. Little, II Trustee September 9, 1999
/s/ Donald S. Perkins
- ---------------------------
Donald S. Perkins Trustee September 9, 1999
/s/ Shimon Topor
- ------------------
Shimon Topor Trustee September 9, 1999
- ---------------------------
Donald A. Washburn Trustee
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Page
<S> <C> <C>
4(a)* Articles of Amendment and Restatement of Declaration
of Trust of the Company.
4(b)* Bylaws of the Company.
4(c) LaSalle Hotel Properties 1998
Share Option and Incentive Plan,
as amended through September 9, 1999. 8
5 Opinion of Brown & Wood LLP. 18
23(a) Consent of Brown & Wood LLP (included as part of
Exhibit 5).
23(b) Consent of KPMG LLP. 19
24 Power of Attorney (included on page 6).
</TABLE>
* Previously filed as an exhibit to Registration Statement on Form S-11
(No. 333-45647) and incorporated herein by reference.
EXHIBIT 4(c)
LASALLE HOTEL PROPERTIES
1998 SHARE OPTION AND INCENTIVE PLAN
As Amended Through September 9, 1999
1. Purpose. The purpose of this Plan is to attract and retain
qualified key employees of, and consultants and other service providers to,
LaSalle Hotel Properties (the "Company"), its Subsidiaries (if any) and its
Advisors, to provide such persons with appropriate incentives, and to provide
an interest in the Company to certain members of the Board of Trustees of the
Company. The Company has adopted the Plan effective as of April 22, 1998,
subject to the approval of the Company's shareholders, and unless extended by
amendment in accordance with the terms of the Plan, no Option Rights,
Appreciation Rights or Restricted Shares will be granted hereunder after the
tenth anniversary of such effective date.
2. Definitions. As used in this Plan,
"Advisor" means LaSalle Hotel Advisors, Inc. and any successor
or other entity that provides asset management and advisory services to the
Company for a fee.
"Appreciation Right" means a right granted pursuant to Section 5
of this Plan, including a Free-standing Appreciation Right and a Tandem
Appreciation Right.
"Base Price" means the price to be used as the basis for
determining the Spread upon the exercise of a Free-standing Appreciation
Right.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Committee" means the Compensation Committee of the Board of
Directors, as described in Section 12(a) of this Plan, or, in the absence of a
Compensation Committee, the full Board.
"Common Shares" means (i) shares of the Common Shares of
Beneficial Interest of the Company and (ii) any security into which Common
Shares may be converted by reason of any transaction or event of the type
referred to in Section 8 of this Plan.
"Date of Grant" means the date specified by the Committee on
which a grant of Option Rights or Appreciation Rights or a grant or sale of
Restricted Shares shall become effective, which shall not be earlier than the
date on which the Committee takes action with respect thereto.
"Free-standing Appreciation Right" means an Appreciation Right
granted pursuant to Section 5 of this Plan that is not granted in tandem with
an Option Right or similar right.
"Incentive Stock Option" means an Option Right that is intended
to qualify as an "incentive stock option" under Section 422 of the Code or any
successor provision thereto.
"Market Value per Share" means the fair market value of the
Common Shares as determined by the Committee from time to time.
"Nonqualified Option" means an Option Right that is not intended
to qualify as a Tax-qualified Option.
"Optionee" means the person so designated in an agreement
evidencing an outstanding Option Right.
"Option Price" means the purchase price payable upon the
exercise of an Option Right.
"Option Right" means the right to purchase Common Shares from
the Company upon the exercise of a Nonqualified Option or a Tax-qualified
Option granted pursuant to Section 4 of this Plan.
"Participant" means a person who is selected by the Committee
(or its delegate) to receive benefits under this Plan and (i) is at that time
a key employee of, or a consultant or service provider to, the Company, any
Subsidiary or any Advisor, or (ii) has agreed to commence serving in any such
capacity.
"Reload Option Rights" means additional Option Rights
automatically granted to an Optionee upon the exercise of Option Rights
pursuant to Section 4(f) of this Plan.
"Restricted Shares" means Common Shares granted or sold pursuant
to Section 6 of this Plan as to which neither the substantial risk of
forfeiture nor the restrictions on transfer referred to in Section 6 hereof
has expired.
"Rule 16b-3" means Rule 16b-3, as promulgated and amended from
time to time by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, or any successor rule to the same effect.
"Spread" means, in the case of a Free-standing Appreciation
Right, the amount by which the Market Value per Share on the date when the
Appreciation Right is exercised exceeds the Base Price specified therein or,
in the case of a Tandem Appreciation Right, the amount by which the Market
Value per Share on the date when the Appreciation Right is exercised exceeds
the Option Price specified in the related Option Right.
"Subsidiary" means a corporation, partnership, joint venture,
unincorporated association or other entity in which the Company has a direct
or indirect ownership or other equity interest; provided, however, that for
purposes of determining whether any person may be a Participant for purposes
of any grant of Incentive Stock Options, "Subsidiary" means any corporation in
which the Company owns or controls directly or indirectly more than 50% of the
total combined voting power represented by all classes of stock issued by such
corporation at the time of the grant.
"Tandem Appreciation Right" means an Appreciation Right granted
pursuant to Section 5 of this Plan that is granted in tandem with an Option
Right or any similar right granted under any other plan of the Company.
"Tax-qualified Option" means an Option Right that is intended to
qualify under particular provisions of the Code, including without limitation
an Incentive Stock Option.
3. Shares Available under the Plan.
(a) Subject to adjustment as provided in Section 8 of this
Plan, the number of Common Shares which may be (i) issued or transferred upon
the exercise of Option Rights or Appreciation Rights, or (ii) awarded as
Restricted Shares and released from substantial risk of forfeiture thereof,
shall not in the aggregate exceed 1.5 million Common Shares, which may be
Common Shares of original issuance or Common Shares held in treasury or a
combination thereof. For the purposes of this Section 3(a):
(i) Upon payment in cash of the benefit provided by any
award granted under this Plan, any Common Shares that were covered by
that award shall again be available for issuance or transfer
hereunder.
(ii) Upon the full or partial payment of any Option Price
by the transfer to the Company of Common Shares or upon satisfaction
of tax withholding obligations in connection with any such exercise
or any other payment made or benefit realized under this Plan by the
transfer or relinquishment of Common Shares, there shall be deemed to
have been issued or transferred under this Plan only the net number
of Common Shares actually issued or transferred by the Company less
the number of Common Shares so transferred or relinquished.
(b) Notwithstanding anything in Section 3(a) hereof, or
elsewhere in this Plan, to the contrary, the aggregate number of Common Shares
actually issued or transferred by the Company upon the exercise of Incentive
Stock Options shall not exceed the total number of Common Shares first
specified in Section 3(a) hereof.
(c) Notwithstanding any other provision of this Plan to the
contrary, no Participant shall be granted Option Rights and Appreciation
Rights, in the aggregate, for more than 100,000 Common Shares during any
calendar year, subject to adjustment as provided in Section 8 of this Plan.
(d) Notwithstanding any other provision of this Plan to the
contrary, no Participant shall be granted Restricted Shares for more than
100,000 Common Shares during any calendar year, subject to adjustment as
provided in Section 8 of this Plan.
4. Option Rights. The Committee may from time to time authorize grants
to Participants of options to purchase Common Shares upon such terms and
conditions as the Committee may determine in accordance with the following
provisions:
(a) Each grant shall specify the number of Common Shares to
which it pertains.
(b) Each grant shall specify an Option Price per Common
Share, which may be equal to or greater or less than the Market Value per
Share on the Date of Grant.
(c) Each grant shall specify the form of consideration to be
paid in satisfaction of the Option Price and the manner of payment of such
consideration, which may include (i) cash in the form of currency or check or
other cash equivalent acceptable to the Company, (ii) nonforfeitable,
unrestricted Common Shares, which are already owned by the Optionee, (iii) any
other legal consideration that the Committee may deem appropriate, including
without limitation any form of consideration authorized under Section 4(d)
below, on such basis as the Committee may determine in accordance with this
Plan and (iv) any combination of the foregoing.
(d) Any grant of a Nonqualified Option may provide that
payment of the Option Price may also be made in whole or in part in the form
of Restricted Shares or other Common Shares that are subject to risk of
forfeiture or restrictions on transfer. Unless otherwise determined by the
Committee on or after the Date of Grant, whenever any Option Price is paid in
whole or in part by means of any of the forms of consideration specified in
this Section 4(d), the Common Shares received by the Optionee upon the
exercise of the Nonqualified Option shall be subject to the same risks of
forfeiture or restrictions on transfer as those that applied to the
consideration surrendered by the Optionee; provided, however, that such risks
of forfeiture and restrictions on transfer shall apply only to the same number
of Common Shares received by the Optionee as applied to the forfeitable or
restricted Common Shares surrendered by the Optionee.
(e) Any grant may, if there is then a public market for the
Common Shares, provide for deferred payment of the Option Price from the
proceeds of sale through a broker of some or all of the Common Shares to which
the exercise relates.
(f) Any grant may provide for the automatic grant to the
Optionee of Reload Option Rights upon the exercise of Option Rights, including
Reload Option Rights, for Common Shares or any other noncash consideration
authorized under Sections 4(c) and (d) above; provided, however, that the term
of any Reload Option Right shall not extend beyond the term of the Option
Right originally exercised.
(g) Notwithstanding any provision of this Plan to the
contrary, when granting Option Rights with respect to the employees of, or
consultants to, an Advisor, the Committee may (i) make individual grants to
each such employee and consultant, and/or (ii) make aggregate grants to such
Advisor and delegate to the compensation committee, board of directors,
general partner or other appropriate management representative of the Advisor
the authority to determine the specific allocation and recipients of such
grants.
(h) Successive grants may be made to the same Optionee
regardless of whether any Option Rights previously granted to the Optionee
remain unexercised.
(i) Each grant shall specify the period or periods of
continuous employment of, or continuous performance of services by, the
Optionee that are necessary before the Option Rights or installments thereof
shall become exercisable, and any grant may provide for the earlier exercise
of the Option Rights in the event of a change in control of the Company or
other similar transaction or event.
(j) Option Rights granted pursuant to this Section 4 may be
Nonqualified Options or Tax-qualified Options or combinations thereof.
(k) Any grant of an Option Right may provide for the payment
to the Optionee of dividend equivalents thereon in cash or Common Shares on a
current, deferred or contingent basis, or the Committee may provide that any
dividend equivalents shall be credited against the Option Price.
(l) No Option Right granted pursuant to this Section 4 may be
exercised more than 10 years from the Date of Grant.
(m) Each grant shall be evidenced by an agreement, which
shall be executed on behalf of the Company by any officer thereof and
delivered to and accepted by the Optionee and shall contain such terms and
provisions as the Committee may determine consistent with this Plan.
5. Appreciation Rights. The Committee may also authorize grants to
Participants of Appreciation Rights. An Appreciation Right shall be a right of
the Participant to receive from the Company an amount, which shall be determined
by the Committee and shall be expressed as a percentage (not exceeding 100%) of
the Spread at the time of the exercise of an Appreciation Right. Any grant of
Appreciation Rights under this Plan shall be upon such terms and conditions as
the Committee may determine in accordance with the following provisions:
(a) Any grant may specify that the amount payable upon the
exercise of an Appreciation Right may be paid by the Company in cash, Common
Shares or any combination thereof and may either (i) grant to the Participant
or reserve to the Committee the right to elect among those alternatives or
(ii) preclude the right of the Participant to receive and the Company to issue
Common Shares or other equity securities in lieu of cash.
(b) Any grant may specify that the amount payable upon the
exercise of an Appreciation Right shall not exceed a maximum specified by the
Committee on the Date of Grant.
(c) Any grant may specify (i) a waiting period or periods
before Appreciation Rights shall become exercisable and (ii) permissible dates
or periods on or during which Appreciation Rights shall be exercisable.
(d) Notwithstanding any provision of this Plan to the
contrary, when granting Appreciation Rights with respect to the employees of,
or consultants to, an Advisor, the Committee may (i) make individual grants to
each such employee and consultant, and/or (ii) make aggregate grants to such
Advisor and delegate to the compensation committee, board of directors,
general partner or other appropriate management representative of the Advisor
the authority to determine the specific allocation and recipients of such
grants.
(e) Any grant may specify that an Appreciation Right may be
exercised only in the event of a change in control of the Company or other
similar transaction or event.
(f) Any grant may provide for the payment to the Participant
of dividend equivalents thereon in cash or Common Shares on a current,
deferred or contingent basis.
(g) Each grant shall be evidenced by an agreement, which
shall be executed on behalf of the Company by any officer thereof and
delivered to and accepted by the Optionee and shall describe the subject
Appreciation Rights, identify any related Option Rights, state that the
Appreciation Rights are subject to all of the terms and conditions of this
Plan and contain such other terms and provisions as the Committee may
determine consistent with this Plan.
(h) Regarding Tandem Appreciation Rights only: Each grant
shall provide that a Tandem Appreciation Right may be exercised only (i) at a
time when the related Option Right (or any similar right granted under any
other plan of the Company) is also exercisable and the Spread is positive and
(ii) by surrender of the related Option Right (or such other right) for
cancellation.
(i) Regarding Free-standing Appreciation Rights only:
(i) Each grant shall specify in respect of each
Free-standing Appreciation Right a Base Price per Common Share, which
shall be equal to or greater than the Market Value per Share on the
Date of Grant;
(ii) Successive grants may be made to the same
Participant regardless of whether any Free-standing Appreciation
Rights previously granted to the Participant remain unexercised;
(iii) Each grant shall specify the period or periods of
continuous employment of, or continuous performance of services by,
the Participant that are necessary before the Free-standing
Appreciation Rights or installments thereof shall become exercisable;
and any grant may provide for the earlier exercise of the
Free-standing Appreciation Rights in the event of a change in control
of the Company or other similar transaction or event; and
(iv) No Free-standing Appreciation Right granted under
this Plan may be exercised more than 10 years from the Date of Grant.
6. Restricted Shares. The Committee may also authorize grants or
sales to Participants of Restricted Shares upon such terms and
conditions as the Committee may determine in accordance with the
following provisions:
(a) Each grant or sale shall constitute an immediate transfer
of the ownership of Common Shares to the Participant in consideration of the
performance of services, entitling such Participant to dividend, voting and
other ownership rights, subject to the substantial risk of forfeiture and
restrictions on transfer hereinafter referred to.
(b) Each grant or sale may be made without additional
consideration from the Participant or in consideration of a payment by the
Participant that is less than the Market Value per Share on the Date of Grant.
(c) Each grant or sale shall provide that the Restricted
Shares covered thereby shall be subject to a "substantial risk of forfeiture"
within the meaning of Section 83 of the Code for a period to be determined by
the Committee on the Date of Grant, and any grant or sale may provide for the
earlier termination of such period in the event of a change in control of the
Company or other similar transaction or event.
(d) Each grant or sale shall provide that, during the period
for which such substantial risk of forfeiture is to continue, the
transferability of the Restricted Shares shall be prohibited or restricted in
the manner and to the extent prescribed by the Committee on the Date of Grant.
Such restrictions may include without limitation rights of repurchase or first
refusal in the Company or provisions subjecting the Restricted Shares to a
continuing substantial risk of forfeiture in the hands of any transferee.
(e) Notwithstanding any provision of this Plan to the
contrary, when granting or offering sales of Restricted Shares with respect to
the employees of, or consultants to, an Advisor, the Committee may (i) make
individual grants or offers to each such employee and consultant, and/or (ii)
make aggregate grants or offers to such Advisor and delegate to the
compensation committee, board of directors, general partner or other
appropriate management representative of the Advisor the authority to
determine the specific allocation and recipients of such grants or offers.
(f) Any grant or sale may require that any or all dividends
or other distributions paid on the Restricted Shares during the period of such
restrictions be automatically sequestered and reinvested on an immediate or
deferred basis in additional Common Shares, which may be subject to the same
restrictions as the underlying award or such other restrictions as the
Committee may determine.
(g) Each grant or sale shall be evidenced by an agreement,
which shall be executed on behalf of the Company by an officer thereof and
delivered to and accepted by the Participant and shall contain such terms and
provisions as the Committee may determine consistent with this Plan. Unless
otherwise directed by the Committee, all certificates representing Restricted
Shares, together with a stock power that shall be endorsed in blank by the
Participant with respect to the Restricted Shares, shall be held in custody by
the Company until all restrictions thereon lapse.
7. Transferability.
(a) No Option Right, Appreciation Right or other derivative
security (as that term is used in Rule 16b-3) granted under this Plan may be
transferred by a Participant except by will or the laws of descent and
distribution. Option Rights and Appreciation Rights granted under this Plan
may not be exercised during a Participant's lifetime except by the Participant
or, in the event of the Participant's legal incapacity, by his guardian or
legal representative acting in a fiduciary capacity on behalf of the
Participant under state law and court supervision. Notwithstanding the
foregoing, the Committee, in its sole discretion, may provide for the
transferability of particular awards under this Plan so long as such
provisions will not disqualify the exemption for other awards under Rule
16b-3, if such Rule is then applicable to awards under the Plan.
(b) Any grant made under this Plan may provide that all or
any part of the Common Shares that are to be issued or transferred by the
Company upon the exercise of Option Rights or Appreciation Rights, or are no
longer subject to the substantial risk of forfeiture and restrictions on
transfer referred to in Section 6 of this Plan, shall be subject to further
restrictions upon transfer.
8. Adjustments.
(a) The Committee may make or provide for such adjustments in
the number of Common Shares covered by outstanding Option Rights, Appreciation
Rights and Restricted Shares granted hereunder, the Option Prices per Common
Share or Base Prices per Common Share applicable to any such Option Rights and
Appreciation Rights, and the kind of shares (including shares of another
issuer) covered thereby, as the Committee may in good faith determine to be
equitably required in order to prevent dilution or expansion of the rights of
Participants that otherwise would result from (i) any stock dividend, stock
split, combination of shares, recapitalization or similar change in the
capital structure of the Company or (ii) any merger, consolidation, spin-off,
spin-out, split-off, split-up, reorganization, partial or complete liquidation
or other distribution of assets, issuance of warrants or other rights to
purchase securities or any other corporate transaction or event having an
effect similar to any of the foregoing. In the event of any such transaction
or event, the Committee may provide in substitution for any or all outstanding
awards under this Plan such alternative consideration as it may in good faith
determine to be equitable under the circumstances and may require in
connection therewith the surrender of all awards so replaced. Moreover, the
Committee may on or after the Date of Grant provide in the agreement
evidencing any award under this Plan that the holder of the award may elect to
receive an equivalent award in respect of securities of the surviving entity
of any merger, consolidation or other transaction or event having a similar
effect, or the Committee may provide that the holder will automatically be
entitled to receive such an equivalent award. The Committee may also make or
provide for such adjustments in the maximum numbers of Common Shares specified
in Section 3 of this Plan as the Committee may in good faith determine to be
appropriate in order to reflect any transaction or event described in this
Section 8.
(b) If another corporation is merged into the Company or the
Company otherwise acquires another corporation, the Committee may elect to
assume under this Plan any or all outstanding stock options or other awards
granted by such corporation under any stock option or other plan adopted by it
prior to such acquisition. Such assumptions shall be on such terms and
conditions as the Committee may determine; provided, however, that the awards
as so assumed do not contain any terms, conditions or rights that are
inconsistent with the terms of this Plan. Unless otherwise determined by the
Committee, such awards shall not be taken into account for purposes of the
limitations contained in Section 3 of this Plan.
9. Fractional Shares. The Company shall not be required to issue any
fractional Common Shares pursuant to this Plan. The Committee may provide for
the elimination of fractions or for the settlement thereof in cash.
10. Withholding Taxes. To the extent that the Company, any Subsidiary
or any Advisor is required to withhold federal, state, local or foreign taxes in
connection with any payment made or benefit realized by a Participant or other
person under this Plan, and the amounts available to the Company, such
Subsidiary or such Advisor (as applicable) for the withholding are insufficient,
it shall be a condition to the receipt of any such payment or the realization of
any such benefit that the Participant or such other person make arrangements
satisfactory to the Company, such Subsidiary or such Advisor (as applicable) for
payment of the balance of any taxes required to be withheld. At the discretion
of the Committee, any such arrangements may without limitation include voluntary
or mandatory relinquishment of a portion of any such payment or benefit or the
surrender of outstanding Common Shares. The Company, such Subsidiary or such
Advisor (as applicable) and any Participant or such other person may also make
similar arrangements with respect to the payment of any taxes with respect to
which withholding is not required.
11. Certain Terminations of Employment or Service, Hardship, and
Approved Leaves of Absence. Notwithstanding any other provision of this Plan to
the contrary, in the event of the termination of employment or service by reason
of death, disability or retirement, termination of employment or service to
enter public or military service with the consent of the Company, any Subsidiary
or any Advisor (as applicable), or leave of absence approved by the Company,
such Subsidiary or such Advisor (as applicable), or in the event of the hardship
or other special circumstances, of a Participant who holds an Option Right or
Appreciation Right that is not immediately and fully exercisable, or any
Restricted Shares as to which the substantial risk of forfeiture or the
prohibition or restriction on transfer has not lapsed, the Committee may take
any action that it deems to be equitable under the circumstances or in the best
interests of the Company, such Subsidiary or such Advisor (as applicable),
including without limitation waiving or modifying any limitation or requirement
with respect to any award under this Plan.
12. Administration of the Plan.
(a) This Plan shall be administered by the Compensation
Committee of the Board, which shall be composed of not less than two members
of the Board, or, in the absence of a Compensation Committee, by the full
Board. At any time that awards under the Plan are subject to Rule 16b-3, each
member of the Compensation Committee shall be a "non-employee director" within
the meaning of such Rule. In addition, at any time that the Company is subject
to Section 162(m) of the Code, each member of the Compensation Committee shall
be an "outside director" within the meaning of such Section. A majority of the
Committee shall constitute a quorum, and the acts of the members of the
Committee who are present at any meeting thereof at which a quorum is present,
or acts unanimously approved by the members of the Committee in writing, shall
be the acts of the Committee.
(b) The interpretation and construction by the Committee of
any provision of this Plan or any agreement, notification or document
evidencing the grant of Option Rights, Appreciation Rights or Restricted
Shares, and any determination by the Committee pursuant to any provision of
this Plan or any such agreement, notification or document, shall be final and
conclusive. No member of the Committee shall be liable for any such action
taken or determination made in good faith.
13. Amendments and Other Matters.
(a) This Plan may be amended from time to time by the
Committee; provided, however, that except as expressly authorized by this
Plan, no such amendment shall cause this Plan to cease to satisfy any
applicable condition of Rule 16b-3 or cause any award under the Plan to cease
to qualify for any applicable exception to Section 162(m) of the Code, without
the further approval of the stockholders of the Company.
(b) With the concurrence of the affected Participant, the
Committee may cancel any agreement evidencing Option Rights or any other award
granted under this Plan. In the event of any such cancellation, the Committee
may authorize the granting of new Option Rights or other awards hereunder,
which may or may not cover the same number of Common Shares as had been
covered by the cancelled Option Rights or other award, at such Option Price,
in such manner and subject to such other terms, conditions and discretion as
would have been permitted under this Plan had the cancelled Option Rights or
other award not been granted.
(c) The Committee may condition the grant of any award or
combination of awards authorized under this Plan on the surrender or deferral
by the Participant of his or her right to receive a cash bonus or other
compensation otherwise payable by the Company, any Subsidiary or any Advisor
to the Participant.
(d) This Plan shall not confer upon any Participant any right
with respect to continuance of employment or other service with the Company,
any Subsidiary or any Advisor and shall not interfere in any way with any
right that the Company, such Subsidiary or such Advisor (as applicable) would
otherwise have to terminate any Participant's employment or other service at
any time.
(e) To the extent that any provision of this Plan would
prevent any Option Right that was intended to qualify as a Tax-qualified
Option from so qualifying, any such provision shall be null and void with
respect to any such Option Right; provided, however, that any such provision
shall remain in effect with respect to other Option Rights, and there shall be
no further effect on any provision of this Plan.
(f) Any award that may be made pursuant to an amendment to
this Plan that shall have been adopted without the approval of the
stockholders of the Company shall be null and void if it is subsequently
determined that such approval was required under the terms of the Plan or
applicable law.
(g) Unless otherwise determined by the Committee, this Plan
is intended to comply with Rule 16b-3 at all times that awards hereunder are
subject to such Rule.
EXHIBIT 5
Brown & Wood LLP
One World Trade Center
New York, New York 10048-0557
Telephone: 212-839-5300
Facsimile: 212-839-5599
September 9, 1999
LaSalle Hotel Properties
1401 Eye Street, NW
Suite 900
Washington, D.C. 20005
Dear Sirs:
We have acted as counsel for LaSalle Hotel Properties, a Maryland
real estate investment trust (the "Company"), in connection with the proposed
filing with the Securities and Exchange Commission under the Securities Act of
1933, as amended, of a Registration Statement on Form S-8 (the "Registration
Statement") for the purpose of registering 743,000 common shares, par value
$.01 per share (the "Common Shares ") of LaSalle Hotel Properties. In such
capacity, we have examined the Articles of Amendment and Restatement of the
Declaration of Trust and Bylaws of the Company, the LaSalle Hotel Properties
1998 Share Option and Incentive Plan, as amended through September 9, 1999 (the
"Plan"), and such other documents of the Company as we have deemed necessary
or appropriate for the purposes of the opinion expressed herein.
Based upon the foregoing, we advise you that, in our opinion when the
Common Shares to be issued pursuant to the Plan have been issued and paid for
in accordance with the terms of the Plan and the Registration Statement, such
shares will be legally issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name wherever appearing in the
Registration Statement and any amendment thereto.
Very truly yours,
/s/ Brown & Wood LLP
Exhibit 23(b)
Consent of Independent Accountants
The Board of Trustees
LaSalle Hotel Properties:
We consent to incorporation by reference in this Registration Statement on Form
S-8 of LaSalle Hotel Properties of our report dated January 18, 1999 relating
to the consolidated balance sheet of LaSalle Hotel Properties as of December
31, 1998 and the related consolidated statements of operations, shareholders'
equity, and cash flows for the period from April 29, 1998 (inception) through
December 31, 1998 and the related financial statement schedule and our report
dated March 17, 1999 relating to the balance sheet of LaSalle Hotel Lessee,
Inc. as of December 31, 1998 and the related statements of operations,
stockholders' equity (deficit), and cash flows for the period from April 29,
1998 (inception) through December 31, 1998, which reports appear in the
December 31, 1998 annual report on Form 10-K of LaSalle Hotel Properties.
/s/ KPMG LLP
Chicago, Illinois
September 9, 1999
