<PAGE> 1
As filed with the Securities and Exchange Commission on July 29, 1998
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WINSTON HOTELS, INC.
(Exact name of registrant as specified in its charter)
North Carolina 56-1624289
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2209 Century Drive, Suite 300
Raleigh, North Carolina 27612
(Address of Principal Executive Offices) (Zip Code)
Winston Hotels, Inc. Stock Incentive Plan
(Full title of the plan)
Robert W. Winston, III
President and Chief Executive Officer
2209 Century Drive, Suite 300
Raleigh, North Carolina 27612
(Name and address of agent for service)
(919) 510-6010
(Telephone number, including area code, of agent for service)
Copy to:
Byron B. Kirkland, Esq.
SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.
Post Office Box 2611
Raleigh, North Carolina 27602
(919) 821-1220
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------
Title of securities Amount to Proposed maximum Proposed maximum Amount of
to be registered be registered(1) offering price per aggregate offering registration fee
share(2) price(2)
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 900,000 shares $11.15625 $10,040,625 $2,961.98
$.01 par value
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Plus such additional number of shares as may hereafter become issuable
pursuant to the Winston Hotels, Inc. Stock Incentive Plan in the event
of a stock dividend, stock split, recapitalization or other similar
transaction without receipt of consideration which results in an
increase in the number of shares outstanding.
(2) Estimated solely for the purpose of determining the amount of the
registration fee. Such estimates have been calculated in accordance
with Rule 457(h) under the Securities Act of 1933, as amended, and are
based on the average of the high and low price per share of the
Registrant's Common Stock as reported on The New York Stock Exchange on
July 23, 1998.
- --------------------------------------------------------------------------------
<PAGE> 2
Pursuant to General Instruction E of Form S-8, this registration
statement is filed to register 900,000 additional shares of Common Stock of
Winston Hotels, Inc. (the "Company") for issuance pursuant to the Winston
Hotels, Inc. Stock Incentive Plan (the "Plan") (as amended and restated in May
1998). A registration statement on Form S-8 relating to the Plan, Registration
No. 333-19197, was previously filed with the Securities and Exchange Commission
(the "Commission"), and the content of such registration statement is
incorporated in this registration statement by reference. In accordance with
General Instruction E, this registration statement contains only such
information required by Form S-8 that is not otherwise included in Registration
Statement No. 333-19197.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been filed by the Company with the
Commission and are incorporated herein by reference:
(a) the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997;
(b) the Company's Quarterly Report on Form 10-Q for the
three months ended March 31, 1998; and
(c) the Company's Registration Statement on Form 8-A
filed with the Commission on March 23, 1994,
containing a description of the Common Stock of the
Company.
All documents filed by the Company subsequent to the date hereof
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act
of 1934, prior to the filing of a post-effective amendment which indicates that
all securities offered under the Plan have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this registration statement and to be a part hereof from the date
of filing of such documents.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<S> <C>
4.1(1) Amended and Restated Articles of Incorporation of the Company
4.2(2) Articles of Amendment to the Amended and Restated Articles of Incorporation,
effective June 14, 1995
4.3(3) Articles of Amendment to the Amended and Restated Articles of Incorporation,
effective September 10, 1997
4.4(1) Amended and Restated Bylaws
4.5 Winston Hotels, Inc. Stock Incentive Plan (as amended May 1998)
5 Opinion of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.
23.1 Consent of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P. is
contained in the opinion submitted as Exhibit 5 hereto
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of KPMG Peat Marwick LLP
</TABLE>
2
<PAGE> 3
<TABLE>
<S> <C>
24 Power of Attorney (included on the signature page hereto)
</TABLE>
- --------------------
(1) Exhibits to the Company's Registration Statement on Form S-11 as filed
with the Commission (Registration No. 33-76602) effective May 25, 1994
and incorporated by reference herein.
(2) Exhibit to the Company's Quarterly Report on Form 10-Q as filed with
the Commission on August 11, 1995 and incorporated by reference herein.
(3) Exhibit to the Company's Annual Report on Form 10-K as filed with the
Commission on March 27, 1998 and amended on April 1, 1998 and
incorporated by reference herein.
3
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Raleigh, State of North Carolina, on the 29th day of
July, 1998.
WINSTON HOTELS, INC.
By: /s/ Robert W. Winston, III
------------------------------
Robert W. Winston, III
President and
Chief Executive Officer
4
<PAGE> 5
POWER OF ATTORNEY
Each of the undersigned directors and officers of WINSTON HOTELS, INC.,
a North Carolina corporation (the "Company"), hereby appoints Robert W. Winston,
III and James D. Rosenberg, each with full power to act without the other, as
his true and lawful attorney-in-fact and agent, with full power of substitution,
to act in his name, place and stead, in any and all capacities, to sign any and
all amendments to this Registration Statement on Form S-8 concerning the Winston
Hotels, Inc. Stock Incentive Plan, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, and grants unto said attorneys-in-fact and agents full
power and authority to do any and all acts and things and to execute any and all
instruments for him and in his name in the capacity which said attorneys-in-fact
and agents, or either of them, may deem necessary or advisable to enable the
Company to comply with the provisions of the Securities Act of 1933 and any
rules, regulations, and requirements of the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on July 29, 1998.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
/s/ Charles M. Winston
- ------------------------------ Chairman of the Board
Charles M. Winston (Principal Executive Officer)
/s/ Robert W. Winston, III
- ------------------------------ President, Chief Executive Officer
Robert W. Winston, III and Director
/s/ James D. Rosenberg
- ------------------------------ Chief Financial Officer and Chief
James D. Rosenberg Operating Officer (Principal Financial Officer)
/s/ Brent V. West
- ------------------------------ Vice President and Controller
Brent V. West (Principal Accounting Officer)
/s/ James H. Winston
- ------------------------------ Director
James H. Winston
/s/ Thomas F. Darden, II
- ------------------------------ Director
Thomas F. Darden, II
/s/ Richard L. Daugherty
- ------------------------------ Director
Richard L. Daugherty
/s/ Edwin B. Borden
- ------------------------------ Director
Edwin B. Borden
/s/ David C. Sullivan
- ------------------------------ Director
David C. Sullivan
</TABLE>
5
<PAGE> 6
WINSTON HOTELS, INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<S> <C>
4.1(1) Amended and Restated Articles of Incorporation of the Company
4.2(2) Articles of Amendment to the Amended and Restated Articles of Incorporation,
effective June 14, 1995
4.3(3) Articles of Amendment to the Amended and Restated Articles of Incorporation,
effective September 10, 1997
4.4(1) Amended and Restated Bylaws
4.5 Winston Hotels, Inc. Stock Incentive Plan (as amended May 1998)
5 Opinion of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.
23.1 Consent of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P. is
contained in the opinion submitted as Exhibit 5 hereto
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of KPMG Peat Marwick LLP
24 Power of Attorney (included on the signature page hereto)
</TABLE>
- --------------------
(1) Exhibits to the Company's Registration Statement on Form S-11 as filed
with the Commission (Registration No. 33-76602) effective May 25, 1994
and incorporated by reference herein.
(2) Exhibit to the Company's Quarterly Report on Form 10-Q as filed with
the Commission on August 11, 1995 and incorporated by reference herein.
(3) Exhibit to the Company's Annual Report on Form 10-K as filed with the
Commission on March 27, 1998 and amended on April 1, 1998 and
incorporated by reference herein.
<PAGE> 1
EXHIBIT 4.5
WINSTON HOTELS, INC.
STOCK INCENTIVE PLAN
(As Amended May 1998)
<PAGE> 2
WINSTON HOTELS, INC.
STOCK INCENTIVE PLAN
(As Amended May 1998)
ARTICLE 1
DEFINITIONS
1.01. Acquiring Person means that (a) a Person, considered alone or together
with all Control Affiliates and Associates of that Person, becomes directly or
indirectly the beneficial owner of securities representing at least twenty
percent (20%) of the Company's outstanding securities entitled to vote generally
in the election of the Board, or (b) a person enters into an agreement that
would result in that Person satisfying the conditions in subsection (a) or that
would result in a Related Entity's failure to be a Related Entity.
1.02. Administrator means the Committee and any delegate of the Committee that
is appointed in accordance with Article III.
1.03. Agreement means a written agreement (including any amendment or supplement
thereto) between the Company and a Participant specifying the terms and
conditions of an award of Performance Shares or a Stock Award, Option or SAR
granted to such Participant.
1.04. Associate, with respect to any Person, is defined in Rule 12b-2 of the
General Rules and Regulations under the Exchange Act. An Associate does not
include the Company or a majority-owned subsidiary of the Company.
1.05. Board means the Board of Directors of the Company.
1.06. Change in Control means that (a) the Company enters into any agreement
with a Person that involves the transfer of ownership of the Company or of more
than fifty percent (50%) of the
<PAGE> 3
Company's total assets or earnings power on a consolidated basis, as reported in
the Company's consolidated financial statements filed with the Securities and
Exchange Commission (including an agreement for the acquisition of the Company
by merger, consolidation, or statutory share exchange - regardless of whether
the Company is intended to be the surviving or resulting entity after the
merger, consolidation, or statutory share exchange - or for the sale of
substantially all of the Company's assets to that Person), (b) any Person is or
becomes an Acquiring Person, or (c) during any period of two consecutive
calendar years, the Continuing Directors cease for any reason to constitute a
majority of the Board; provided, however, that the initial public offering of
the Company in 1994 shall not constitute a Change in Control. For purposes of
the preceding sentence, "Continuing Director" means any member of the Board,
while a member of the Board and (a) who was a member of the Board prior to the
adoption of the Plan or (b) whose subsequent nomination for election or election
to the Board was recommended or approved by a majority of the Continuing
Directors.
1.07. Code means the Internal Revenue Code of 1986, as amended and as in effect
from time to time.
1.08. Committee means the Compensation Committee of the Board which shall be
comprised of two or more individuals who allow the Committee to satisfy the
requirements of Securities and Exchange Commission Rule 16b-3(c)(2)(i). The
Committee shall be appointed by the Board.
1.09. Common Stock means the Common Stock of the Company.
1.10. Company means Winston Hotels, Inc.
1.11. Control Affiliate, with respect to any Person, means an affiliate as
defined in Rule 12b-2 of the General Rules and Regulations under the Exchange
Act.
2
<PAGE> 4
1.12. Control Change Date means the date on which a Change in Control occurs. If
a Change in Control occurs on account of a series of transactions, the Control
Change Date is the date of the last of such transactions.
1.13. Corresponding SAR means an SAR that is granted in relation to a particular
Option and that can be exercised only upon the surrender to the Company,
unexercised, of that portion of the Option to which the SAR relates.
1.14. Exchange Act means the Securities Exchange Act of 1934, as amended and as
in effect from time to time.
1.15. Fair Market Value means, on any given date, the current fair market value
of the shares of Common Stock as determined pursuant to subsection (a) or (b)
below.
(a) While the Company is a Non-Public Company, Fair Market
Value shall be determined by the Board using any reasonable method in good
faith.
(b) While the Company is a Public Company, Fair Market Value
shall be determined as follows: if the Common Stock is not listed on an
established stock exchange, the Fair Market Value shall be the reported
"closing" price of shares of Common Stock in the New York over-the-counter
market as reported by the National Association of Securities Dealers, Inc. If
the Common Stock is listed on an established stock exchange or exchanges, Fair
Market Value shall be deemed to be the highest closing price of shares of Common
Stock reported on that stock exchange or exchanges or, if no sale of Common
Stock shall be made on any stock exchange on that day, then the next preceding
day on which there was a sale. For purposes of this definition, the term "Public
Company" means a corporation that has sold securities pursuant to an effective
registration statement on Form S-1 filed pursuant to the Securities Act of 1933,
as amended and the term "Non-Public Company" means a corporation that has never
sold securities pursuant to
3
<PAGE> 5
an effective registration statement on Form S-1 filed pursuant to the Securities
Act of 1933, as amended.
1.16. Initial Value means, with respect to a Corresponding SAR, the option price
per share of the related Option and, with respect to an SAR granted
independently of an Option, the Fair Market Value of one share of Common Stock
on the date of grant.
1.17. Option means a stock option that entitles the holder to purchase from the
Company a stated number of shares of Common Stock at the price set forth in an
Agreement.
1.18. Participant means an employee of the Company or a Related Entity,
including an employee who is a member of the Board and who satisfies the
requirements of Article IV or an individual who provides services to the Company
or a Related Entity and who satisfies the requirements of Article IV and is
selected by the Administrator to receive an award of Performance Shares, a Stock
Award, an Option, an SAR, or a combination thereof.
1.19. Performance Shares means an award which, in accordance with, and subject
to, an Agreement, will entitle the Participant, or his estate or beneficiary in
the event of the Participant's death, to receive cash or a Stock Award or a
combination thereof.
1.20. Plan means the Winston Hotels, Inc. Stock Incentive Plan.
1.21. Related Entity means any "parent" or "subsidiary" corporation in the
controlled group that includes the Company which shall be any corporation in an
unbroken chain of corporations beginning or ending with the Company that, at the
time of an award of Performance Shares or the granting of a Stock Award, an
Option or an SAR, each of the corporations (other than the Company or the last
corporation in the unbroken chain of corporations) owns stock constituting at
least fifty percent (50%) or more of the value of one of the other corporations
in such chain or
4
<PAGE> 6
at least fifty percent (50%) or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain.
1.22. Restricted Stock means Common Stock awarded to a Participant under Article
IX and that is nontransferable or subject to a substantial risk of forfeiture,
or both. Shares of Common Stock shall cease to be Restricted Stock when, in
accordance with the terms of the applicable Agreement, they become transferable
and free of substantial risks of forfeiture.
1.23. SAR means a stock appreciation right that entitles the holder to receive,
with respect to each share of Common Stock encompassed by the exercise of such
SAR, the amount determined by the Administrator and specified in an Agreement.
In the absence of such a determination, the holder shall be entitled to receive,
with respect to each share of Common Stock encompassed by the exercise of such
SAR, the excess of the Fair Market Value on the date of exercise over the
Initial Value. References to "SARs" include both Corresponding SARs and SARs
granted independently of Options, unless the context requires otherwise.
1.24. Stock Award means Common Stock awarded to a Participant under Article IX,
including shares that are Restricted Stock, or in accordance with an award of
Performance Shares.
1.25. Ten Percent Shareholder means any individual owning more than ten percent
(10%) of the total combined voting power of all classes of stock of the Company
or a Related Entity. A Participant shall be considered to own any voting stock
owned (directly or indirectly) by or for his brothers, sisters, spouse,
ancestors or lineal descendants and an individual shall be considered to own
proportionately any voting stock owned (directly or indirectly) by or for a
corporation, partnership, estate or trust of which such individual is a
shareholder, partner or beneficiary.
5
<PAGE> 7
ARTICLE II
PURPOSES
The Plan is intended to assist the Company and Related Entities in
recruiting and retaining key employees and service providers by enabling such
persons to participate in the future success of the Company and the Related
Entities and to associate their interests with those of the Company and its
shareholders. The Plan is intended to permit the award of Performance Shares,
the grant of Stock Awards, SARs and the grant of both Options qualifying under
Section 422 of the Code ("incentive stock options") and Options not so
qualifying. No Option that is intended to be an incentive stock option shall be
invalid for failure to qualify as an incentive stock option. The proceeds
received by the Company from the sale of Common Stock pursuant to this Plan
shall be used for general corporate purposes.
ARTICLE III
ADMINISTRATION
The Plan shall be administered by the Administrator. The Administrator
shall have authority to award Performance Shares and to grant Stock Awards,
Options and SARs upon such terms (not inconsistent with the provisions of this
Plan) as the Administrator may consider appropriate. Such terms may include
conditions (in addition to those contained in this Plan) on the exercisability
of all or any part of an Option or SAR or on the transferability or
forfeitability of a Stock Award or Performance Shares. Notwithstanding any such
conditions, the Administrator may, in its discretion, accelerate the time at
which any Option or SAR may be exercised, or the time at which a Stock Award may
become transferable or nonforfeitable or the time at which Performance Shares
have been earned. In addition, the Administrator shall have complete authority
to interpret all provisions of this Plan; to prescribe the form of Agreements;
to
6
<PAGE> 8
adopt, amend, and rescind rules and regulations pertaining to the administration
of the Plan; and to make all other determinations necessary or advisable for the
administration of this Plan. The express grant in the Plan of any specific power
to the Administrator shall not be construed as limiting any power or authority
of the Administrator. Any decision made, or action taken, by the Administrator
or in connection with the administration of this Plan shall be final and
conclusive. Neither the Administrator nor any member of the Committee shall be
liable for any act done in good faith with respect to this Plan or any
Agreement, Option, SAR, Stock Award, or an award of Performance Shares. All
expenses of administering this Plan shall be borne by the Company.
The Committee, in its discretion, may delegate to one or more officers
of the Company all or part of the Committee's authority and duties with respect
to grants and awards to individuals who are not subject to the reporting and
other provisions of Section 16 of the Exchange Act. The Committee may revoke or
amend the terms of a delegation at any time but such action shall not invalidate
any prior actions of the Committee's delegate or delegates that were consistent
with the terms of the Plan.
ARTICLE IV
ELIGIBILITY
4.01. General. Any employee of the Company or a Related Entity (including a
corporation that becomes a Related Entity after the adoption of this Plan), or
an individual who provides services to the Company or a Related Entity
(including a corporation that becomes a Related Entity after the adoption of
this Plan) is eligible to participate in this Plan if the Administrator, in its
sole discretion, determines that such person has contributed significantly or
can be expected to contribute significantly to the profits or growth of the
Company or a Related Entity. Directors of the Company or a Related Entity may be
selected to participate in this Plan. A Director of the
7
<PAGE> 9
Company or a member of the Committee may not participate in this Plan during his
service on the Committee or during the period thereafter if his participation
would prevent the Committee from being "disinterested" for purposes of
Securities and Exchange Commission Rule 16b-3 as in effect from time to time.
4.02. Grants. The Administrator will designate individuals to whom an award of
Performance Shares are to be granted and to whom Stock Awards, Options and SARs
are to be granted and will specify the number of shares of Common Stock subject
to each award or grant. An Option may be granted with or without a related SAR.
An SAR may be granted with or without a related Option. Each award of
Performance Shares and all Stock Awards, Options and SARs granted under this
Plan shall be evidenced by Agreements which shall be subject to the applicable
provisions of this Plan and to such other provisions as the Administrator may
adopt. No Participant may be granted incentive stock options or related SARs
(under all incentive stock option plans of the Company or a Related Entity)
which are first exercisable in any calendar year for stock having an aggregate
Fair Market Value (determined as of the date an Option is granted) that exceeds
$100,000. The preceding annual limitation shall not apply with respect to
Options that are not incentive stock options.
ARTICLE V
STOCK SUBJECT TO PLAN
Upon the award of shares of Common Stock pursuant to a Stock Award, the
Company may issue shares of Common Stock from its authorized but unissued Common
Stock. Upon the exercise of any Option or SAR, the Company may deliver to the
Participant (or the Participant's broker if the Participant so directs), shares
of Common Stock from its authorized but unissued Common Stock.
8
<PAGE> 10
The maximum aggregate number of shares of Common Stock that may be issued under
this Plan is One Million Six Hundred Thousand (1,600,000) shares, plus an annual
increase to be added as of January 1 of each year, beginning January 1, 1999,
equal to the lesser of (i) Five Hundred Thousand (500,000) shares, (ii) Eight
and One-Half percent (8.5%) of any increase in the number of authorized and
issued shares (on a fully diluted basis) since the immediately preceding January
1; or (iii) a lesser number determined by the Board. The maximum aggregate
number of shares of Common Stock that may be issued under this Plan shall be
subject to adjustment as provided in Article XI. If an Option is terminated, in
whole or in part, for any reason other than its exercise or the exercise of a
Corresponding SAR, the number of shares of Common Stock allocated to the Option
or portion thereof may be reallocated to other Options, SARs, Stock Awards and
Performance Shares to be granted under this Plan. If an SAR is terminated, in
whole or in part, for any reason other than its exercise or the exercise of a
related Option, the number of shares of Common Stock allocated to the SAR or
portion thereof may be reallocated to other Options, SARs, Stock Awards and
awards of Performance Shares to be granted under this Plan. To the extent that
an award of Performance Shares is forfeited, in whole or in part, without the
issuance of a Stock Award, the number of shares of Common Stock allocated to the
portion of the forfeited Performance Share Award may be reallocated to other
Options, SARs, Stock Awards and awards of Performance Shares to be granted under
this Plan.
ARTICLE VI
OPTION PRICE
The price per share for Common Stock purchased on the exercise of an
Option shall be determined by the Administrator on the date of grant; provided,
however, that the price per share for Common Stock purchased on the exercise of
an Option that is an incentive stock option shall
9
<PAGE> 11
not be less than the Fair Market Value on the date of the Option is granted and
provided, further, however, that the price per share shall not be less than 110%
of such Fair Market Value in the case of an incentive stock option granted to a
Participant who is a Ten Percent Shareholder on the date such incentive stock
option is granted.
ARTICLE VII
EXERCISE OF OPTIONS AND SARS
7.01. Maximum Option or SAR Period. The maximum period in which an Option or SAR
may be exercised shall be determined by the Administrator on the date of grant,
except that no Option that is an incentive stock option or its Corresponding SAR
shall be exercisable after the expiration of ten years from the date such Option
or Corresponding SAR was granted. In the case of an incentive stock option or
its Corresponding SAR granted to a Participant who is a Ten Percent Shareholder,
such Option and Corresponding SAR shall not be exercisable after the expiration
of five years from the date of grant. The terms of any Option that is an
incentive stock option or Corresponding SAR may provide that it is exercisable
for a period less than such maximum periods.
7.02. Nontransferability. Any Option or SAR granted under this Plan shall be
nontransferable except by will or by the laws of descent and distribution. In
the event of any such transfer, the Option and any Corresponding SAR that
relates to such Option must be transferred to the same person or person(s).
During the lifetime of the Participant to whom the Option or SAR is granted, the
Option or SAR may be exercised only by the Participant. No right or interest of
a Participant in any Option or SAR shall be liable for, or subject to, any lien,
obligation, or liability of such Participant.
10
<PAGE> 12
7.03. Change in Control. After a Control Change Date each Option or SAR shall be
fully exercisable, in whole or in part, thereafter in accordance with the terms
of the applicable Agreement.
ARTICLE VIII
METHOD OF EXERCISE
8.01. Exercise. Subject to the provisions of Articles VII and XII, an Option or
SAR may be exercised in whole at any time or in part from time to time at such
times and in compliance with such requirements as the Administrator shall
determine; provided, however, that a Corresponding SAR that is related to an
incentive stock option may be exercised only to the extent that the related
Option is exercisable and when the Fair Market Value exceeds the option price of
the related Option. An Option or SAR granted under this Plan may be exercised
with respect to any number of whole shares less than the full number for which
the Option or SAR could be exercised. A partial exercise of an Option or SAR
shall not affect the right to exercise the Option or SAR from time to time in
accordance with this Plan and the applicable Agreement with respect to the
remaining shares subject to the Option or related to the SAR. The exercise of
either an Option or Corresponding SAR shall result in the termination of the
other to the extent of the number of shares with respect to which the Option or
Corresponding SAR is exercised.
8.02. Payment. Unless otherwise provided by the Agreement, payment of the Option
price shall be made in cash or a cash equivalent acceptable to the
Administrator. If the Agreement provides, payment of all or part of the Option
price may be made by surrendering shares of Common Stock to the Company. If
Common Stock is used to pay all or part of the Option price, the cash, cash
equivalent and any shares surrendered must have a Fair Market Value (determined
11
<PAGE> 13
as of the day preceding the date of exercise) that is not less than the Option
price for the number of shares for which the Option is being exercised.
8.03. Determination of Payment of Cash and/or Common Stock Upon Exercise of SAR.
At the Administrator's discretion, the amount payable as a result of the
exercise of an SAR may be settled in cash, Common Stock, or a combination of
cash and Common Stock. A fractional share shall not be deliverable upon the
exercise of an SAR but a cash payment will be made in lieu thereof.
8.04. Shareholder Rights. No Participant shall have any rights as a stockholder
with respect to shares subject to his Option or SAR until the date of exercise
of such Option or SAR.
ARTICLE IX
STOCK AWARDS
9.01. Awards. In accordance with the provisions of Article IV, the Administrator
will designate each individual to whom a Stock Award is to be made and will
specify the number of shares of Common Stock covered by such awards.
9.02. Vesting. The Administrator, on the date of the award, may, but shall not
be required to, prescribe that a Participant's rights in the Stock Award shall
be forfeitable or otherwise restricted for a period of time set forth in the
Agreement. By way of example and not of limitation, the restrictions may
postpone transferability of the shares or may provide that the shares will be
forfeited if the Participant ceases to be employed by the Company or a Related
Entity or ceases to provide services to the Company or a Related Entity before
the expiration of a stated term or if the Company, the Company and its Related
Entities or the Participant fail to achieve stated objectives.
12
<PAGE> 14
9.03. Change in Control. If not sooner transferable and nonforfeitable, after a
Control Change Date each Stock Award will become transferable and nonforfeitable
thereafter in accordance with the terms of the applicable Agreement.
9.04. Shareholder Rights. In accordance with the terms of the Agreement, a
Participant will have all rights of a shareholder with respect to a Stock Award
(including an award of Restricted Stock), including the right to receive
dividends and vote the shares; provided, however, that (a) a Participant may not
sell, transfer, pledge, exchange, hypothecate, or otherwise dispose of shares of
Restricted Stock, (b) the Company shall retain custody of the certificates
evidencing shares of Restricted Stock, and (c) the Participant will deliver to
the Company a stock power, endorsed in blank, with respect to each award of
Restricted Stock. The limitations set forth in the preceding sentence shall not
apply after the shares of Common Stock granted cease to be Restricted Stock.
ARTICLE X
PERFORMANCE SHARE AWARDS
10.01. Award. In accordance with the provisions of Article IV, the Administrator
will designate individuals to whom an award of Performance Shares is to be
granted and will specify the number of shares of Common Stock covered by the
award.
10.02. Earning the Award. The Administrator, on the date of the grant of a
Performance Share award, may prescribe that the Performance Shares, or portion
thereof, will be earned, and the Participant will be entitled to receive Common
Stock pursuant to a Stock Award only upon the satisfaction of certain
requirements or the attainment of certain objectives. The Administrator shall
have discretion to set these performance standards. By way of example and not of
limitation, the restrictions may provide that Performance Shares will be
forfeited without the issuance of a Stock Award if the Participant ceases to be
employed by the Company or a Related
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Entity or ceases to provide services to the Company or a Related Entity before
the expiration of a stated term or if the Company, the Company and its Related
Entities, or the Participant fail to achieve stated objectives.
10.03. Payment. In the discretion of the Administrator, the amount payable when
an award of Performance Shares is earned may be settled in cash, by the grant of
a Stock Award or a combination of cash and a Stock Award. A fractional share
shall not be deliverable when an award of Performance Shares is earned, but a
cash payment will be made in lieu thereof.
10.04. Change in Control. Section 10.02 to the contrary notwithstanding, each
Performance Share shall be earned in its entirety and converted into a Stock
Award as of a Control Change Date. Each such Stock Award will become
transferable and nonforfeitable thereafter as described in Plan section 9.03 in
accordance with the terms of the applicable Agreement.
10.05. Shareholder Rights. No Participant shall, as a result of receiving an
award of Performance Shares, have any rights as a shareholder until and to the
extent that the award of Performance Shares is earned and a Stock Award is made.
If the Agreement so provides, a Participant may receive a cash payment equal to
the dividends that are payable with respect to the number of shares of Common
Stock covered by the award between the date the Performance Shares are awarded
and the date a Stock Award is made pursuant to the Performance Share award. A
Participant may not sell, transfer, pledge, exchange, hypothecate, or otherwise
dispose of a Performance Share award or the right to receive Common Stock
thereunder other than by will or the laws of descent and distribution. After an
award of Performance Shares is earned and a Stock Award is made, a Participant
will have all the rights of a shareholder as described in Plan section 9.04.
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ARTICLE XI
ADJUSTMENT UPON CHANGE IN COMMON STOCK
The maximum number of shares as to which Options, SARs, Stock Awards
and Performance Shares may be granted under this Plan shall be proportionately
adjusted, and the terms of outstanding awards of Performance Shares, Stock
Awards, Options, and SARs shall be adjusted, as the Committee shall determine to
be equitably required in the event that (a) the Company (i) effects one or more
stock dividends, stock split-ups, subdivisions or consolidations of shares or
(ii) engages in a transaction to which Section 424 of the Code applies or (b)
there occurs any other event which, in the judgment of the Committee,
necessitates such action. Any determination made under this Article XI by the
Committee shall be final and conclusive.
The issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, for cash or property,
or for labor or services, either upon direct sale or upon the exercise of rights
or warrants to subscribe therefor, or upon conversion of shares or obligations
of the Company convertible into such shares or other securities, shall not
affect, and no adjustment by reason thereof shall be made with respect to,
outstanding awards of Performance Shares, Stock Awards, Options or SARs.
The Committee may make Stock Awards and may grant awards of Performance
Shares, Options, and SARs in substitution for performance shares, stock awards,
stock options, stock appreciation rights, or similar awards held by an
individual who becomes an employee of the Company or a Related Entity in
connection with a transaction described in the first paragraph of this Article
XI. Notwithstanding any provision of the Plan (other than the limitation of
Article V), the terms of such substituted awards of Performance Shares, Stock
Awards, Option or SAR grants shall be as the Committee, in its discretion,
determines is appropriate.
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ARTICLE XII
COMPLIANCE WITH LAW AND
APPROVAL OF REGULATORY BODIES
No Option or SAR shall be exercisable, no Common Stock shall be issued,
no certificates for shares of Common Stock shall be delivered, and no payment
shall be made under this Plan except in compliance with all applicable federal
and state laws and regulations (including, without limitation, withholding tax
requirements), any listing agreement to which the Company is a party, and the
rules of all domestic stock exchanges on which the Company's shares may be
listed. The Company shall have the right to rely on an opinion of its counsel as
to such compliance. Any share certificate issued to evidence Common Stock when a
Stock Award is granted, or for which an Option or SAR is exercised may bear such
legends and statements as the Administrator may deem advisable to assure
compliance with federal and state laws and regulations. No Option or SAR shall
be exercisable, no Stock Award shall be granted, no Common Stock shall be
issued, no certificate for shares shall be delivered, and no payment shall be
made under this Plan until the Company has obtained such consent or approval as
the Administrator may deem advisable from regulatory bodies having jurisdiction
over such matters.
ARTICLE XIII
GENERAL PROVISIONS
13.01. Effect on Employment and Service. Neither the adoption of this Plan, its
operation, nor any documents describing or referring to this Plan (or any part
thereof) shall confer upon any individual any right to continue in the employ or
service of the Company or a Related Entity or in any way affect any right and
power of the Company or a Related Entity to terminate the employment or service
of any individual at any time with or without assigning a reason therefor.
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13.02. Unfunded Plan. The Plan, insofar as it provides for grants, shall be
unfunded, and the Company shall not be required to segregate any assets that may
at any time be represented by grants under this Plan. Any liability of the
Company to any person with respect to any grant under this Plan shall be based
solely upon any contractual obligations that may be created pursuant to this
Plan. No such obligation of the Company shall be deemed to be secured by any
pledge of, or other encumbrance on, any property of the Company.
13.03. Disposition of Stock. A Participant shall notify the Administrator of any
sale or other disposition of Common Stock acquired pursuant to an Option that
was an incentive stock option if such sale or disposition occurs (a) within two
years of the grant of an Option or (b) within one year of the issuance of the
Common Stock to the Participant. Such notice shall be in writing and directed to
the Secretary of the Company.
13.04. Rules of Construction. Headings are given to the articles and sections of
this Plan solely as a convenience to facilitate reference. The reference to any
statute, regulation, or other provision of law shall be construed to refer to
any amendment to or successor of such provision of law.
13.05. Employee Status. For purposes of determining the applicability of Section
422 of the Code (relating to incentive stock options), or in the event that the
terms of any award of Performance Shares, or the grant of any Stock Award,
Option or SAR provide that shares may be issued or become transferable and
nonforfeitable thereunder only after completion of a specified period of
employment or during employment, the Administrator may decide in each case to
what extent leaves of absence for governmental or military service, illness,
temporary disability, or other reasons shall not be deemed interruptions of
continuous employment.
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13.06. Tax Withholding. Each Participant shall be responsible for satisfying any
income and employment tax withholding obligation attributable to participation
in this Plan. Unless otherwise provided by the applicable Agreement, any such
withholding tax obligation may be satisfied in cash (including from any cash
payable in settlement of an award of Performance Shares or an SAR) or a cash
equivalent acceptable to the Administrator. If provided in an Agreement and in
accordance with procedures established by the Administrator, a Participant may
surrender shares of Common Stock in satisfaction of all or part of that tax
withholding obligation.
13.07. Limitation on Awards. Notwithstanding any other provision of the Plan, if
any award under this Plan, either alone or together with payments that a
Participant has the right to receive from the Company or a Related Entity would
constitute a "parachute payment" (as defined in section 280G of the Code), all
such payments shall be reduced to the largest amount that will result in no
portion being subject to the excise tax imposed by section 4999 of the Code.
ARTICLE XIV
AMENDMENT
The Board may amend from time to time or terminate the Plan; provided,
however, that no amendment may become effective until shareholder approval is
obtained if the amendment (i) increases the aggregate number of shares that may
be issued under the Plan (other than an adjustment authorized under Article XI)
or (ii) changes the class of individuals eligible to become Participants. No
amendment shall, without a Participant's consent, adversely affect any rights of
such Participant under any outstanding award of Performance Shares or under any
Stock Award, Option or SAR outstanding at the time such amendment is made.
18
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ARTICLE XV
DURATION OF PLAN
No Performance Shares may be awarded and no Stock Award, Option or SAR
may be granted under this Plan more than ten years after the earlier of the date
that the Plan is adopted by the Board or the date that the Plan is approved by
shareholders as provided in Article XVI. Performance Shares awarded, and Stock
Awards, Options and SARs granted before that date shall remain valid in
accordance with their terms.
ARTICLE XVI
EFFECTIVE DATE OF PLAN
Options and SARs may be granted under this Plan upon its adoption by
the Board, provided that no Option or SAR will be effective unless this Plan is
approved by a majority of the votes entitled to be cast by the Company's
shareholders, voting either in person or by proxy, at a duly held shareholders'
meeting or by the unanimous consent of shareholders within twelve months of such
adoption. Performance Shares may be awarded and Stock Awards may be granted
under this Plan after it is approved by the shareholders in accordance with the
preceding sentence.
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<PAGE> 1
Exhibit 5
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.
2500 First Union Capitol Center
Raleigh, North Carolina 27601
Phone: 919-821-1220
Fax: 919-821-6800
July 29, 1998
Winston Hotels, Inc.
2209 Century Drive, Suite 300
Raleigh, North Carolina 27612
Ladies and Gentlemen:
As counsel for Winston Hotels, Inc. (the "Company"), we furnish the
following opinion in connection with the proposed issuance by the Company of up
to 900,000 additional shares of its common stock, $0.01 par value (the "Common
Stock"), pursuant to the Winston Hotels, Inc. Stock Incentive Plan (as amended
May 1998) (the "Plan"). These securities are the subject of a Registration
Statement to be filed by the Company with the Securities and Exchange Commission
on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Act"), to which this opinion is to be attached as an exhibit. This
opinion is furnished pursuant to the requirement of Item 601(b)(5) of Regulation
S-K under the Act.
We have examined the Amended and Restated Articles of Incorporation, as
amended, and Bylaws of the Company, the minutes of meetings of its Board of
Directors, and such other documents and considered such matters of law and fact
as we, in our professional judgment, have deemed relevant for purposes of this
opinion. We also have received a certificate of an officer of the Company, dated
of even date herewith, relating to the issuance of the Common Stock pursuant to
the Plan. Based on such examination and such certificate, it is our opinion that
the 900,000 shares of Common Stock of the Company, which are being registered
pursuant to the Registration Statement, may be legally issued in accordance with
the Company's Amended and Restated Articles of Incorporation, as amended, and
Bylaws, and when so issued and duly delivered against payment therefor pursuant
to the Plan as described in the Registration Statement, such shares will be
legally issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. Such consent shall not be deemed to be an admission that
this firm is within the category of persons whose consent is required under
Section 7 of the Act or the regulations promulgated pursuant to the Act.
This opinion is limited to the laws of the State of North Carolina and
no opinion is expressed as to the laws of any other jurisdiction.
<PAGE> 2
Winston Hotels, Inc.
July 29, 1998
Page 2
Our opinion is as of the date hereof, and we do not undertake to advise
you of matters which might come to our attention subsequent to the date hereof
which may affect our legal opinion expressed herein.
Sincerely yours,
SMITH, ANDERSON, BLOUNT, DORSETT,
MITCHELL & JERNIGAN, L.L.P.
/s/ SMITH, ANDERSON, BLOUNT, DORSETT,
MITCHELL & JERNIGAN, L.L.P.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Winston Hotels, Inc. on Form S-8 of our report dated January 11, 1998, on our
audits of the consolidated financial statements and financial statement schedule
of Winston Hotels, Inc. as of December 31, 1997 and 1996, and for each of the
three years in the period ended December 31, 1997, 1996 and 1995 which report is
included in Winston Hotels, Inc.'s 1997 Annual Report on Form 10-K. We also
consent to the incorporation by reference in this registration statement of our
report dated February 6, 1998, on our audits of the financial statements of
Winston Hospitality, Inc. as of October 31, 1997 and December 31, 1996 and for
the 10 months ended October 31, 1997 and the years ended December 31, 1996 and
1995 which report is included in Winston Hotels, Inc.'s 1997 Annual Report on
Form 10-K.
/s/ PricewaterhouseCoopers LLP
Raleigh, North Carolina
July 29, 1998
<PAGE> 1
EXHIBIT 23.3
ACCOUNTANTS' CONSENT
The Board of Directors
Winston Hotels, Inc.:
We consent to incorporation by reference in this registration statement on Form
S-8 of Winston Hotels, Inc. of our report dated February 20, 1998, relating to
the balance sheet of CapStar Winston Company, L.L.C. as of December 31, 1997,
and the related statements of operations, members' capital and cash flows for
the period from October 15, 1997 through December 31, 1997, which report appears
in the December 31, 1997 annual report on Form 10-K of Winston Hotels, Inc.
/s/ KPMG Peat Marwick LLP
Washington, D.C.
July 29, 1998
