<PAGE> 1
As filed with the Securities and Exchange Commission on October 23, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------------------
FELCOR LODGING TRUST INCORPORATED
(formerly FelCor Suite Hotels, Inc.)
(Exact name of registrant as specified in its charter)
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<S> <C> <C> <C>
MARYLAND 545 E. JOHN CARPENTER FRWY. , SUITE 1300 75-2541756
(State or other jurisdiction of IRVING, TEXAS 75062 (I.R.S. Employer
incorporation or organization) (972) 444-4900 Identification No.)
</TABLE>
(Address, including ZIP Code, and
telephone number, including area code,
of registrant's principal executive
offices)
FELCOR SUITE HOTELS, INC. 1998 RESTRICTED STOCK AND STOCK OPTION PLAN
(Full title of the plan)
-----------------------
LAWRENCE D. ROBINSON
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
FELCOR LODGING TRUST INCORPORATED
545 E. JOHN CARPENTER FRWY., SUITE 1300
IRVING, TEXAS 75062
(Name and address of agent for service)
(972) 444-4900
(Telephone number, including area code, of agent for service)
-----------------------
Copy to:
ROBERT W. DOCKERY
JENKENS & GILCHRIST
A PROFESSIONAL CORPORATION
1445 ROSS AVENUE, SUITE 3200
DALLAS, TEXAS 75202-2799
-----------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1)(2) PER SHARE (3)(4) PRICE (3)(4) REGISTRATION FEE (4)
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<S> <C> <C> <C> <C>
Common Stock, $0.01
par value per share 1,000,000 Shares $25.463 $25,463,020 $7,079
===================================================================================================================================
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(1) The securities to be registered consist of an aggregate of 1,000,000
shares reserved for issuance under the FelCor Suite Hotels, Inc. 1998
Restricted Stock and Stock Option Plan (the "Plan").
(2) Pursuant to Rule 416, this registration statement also covers such
additional shares as may hereinafter be offered or issued to prevent
dilution resulting from stock splits, stock dividends, recapitalizations
or certain other capital adjustments.
(3) Estimated solely for the purpose of calculating the registration fee.
(4) Calculated pursuant to Rules 457(c) and 457(h)(1) under the Securities
Act of 1933. Accordingly, the price per share of the Common Stock offered
hereunder pursuant to the Plan is based on (i)712,000 shares reserved for
issuance under the Plan at a price per share of $21.4375, which is the
average of the high and low prices of the Common Stock reported on the
New York Stock Exchange as of October 19, 1998, which is a date within
five business days prior to the date of filing this Registration
Statement, and (ii) 288,000 shares of Common Stock reserved for issuance
under the Plan and subject to options already granted thereunder at a
price of $35.415 per share, which is the weighted average exercise price
per share under such outstanding options.
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PART I
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
*Information required by Part I of Form S-8 (Items 1 and 2) to be
contained in the Section 10(a) prospectus is omitted from this Registration
Statement in accordance with Rule 428 under the Securities Act of 1933, as
amended (the "Securities Act"), and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
FelCor Lodging Trust Incorporated, formerly known as FelCor Suites
Hotels, Inc. (the "Company"), hereby incorporates by reference in this
registration statement the following documents previously filed by the Company
with the Securities and Exchange Commission (the "Commission"):
(1) The Company's Annual Report on Form 10-K and Forms 10-K/A for the
year ended December 31, 1997.
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998.
(3) The Company's Quarterly Report on Form 10-Q filed for the quarter
ended June 30, 1998.
(4) The Company's Current Report on Form 8-K dated June 30, 1997 and
filed with the Commission on July 11, 1997 and amended on August 14, 1997.
(5) The Company's Current Report on Form 8-K dated March 24, 1998 and
filed with the Commission on April 23, 1998.
(6) The Company's Current Report on Form 8-K dated May 7, 1998 and
filed with the Commission on May 29, 1998.
(7) The Company's Current Report on Form 8-K dated July 27, 1998 and
filed with the Commission on August 10, 1998.
(8) The description of the Company's common stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission,
including any amendment or report filed for the purpose of updating such
description.
All documents filed by the registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this Registration
Statement shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until such time as
there shall have been filed a post-effective amendment that indicates that all
securities offered hereby have been sold or that deregisters all securities
remaining unsold at the time of such amendment.
Any statement contained herein, or in any document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document that 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 of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Charter of the Company generally limits the liability of the
Company's directors and officers to the Company and the stockholders for money
damages to the fullest extent permitted from time to time by the laws of the
state of Maryland. The Charter also provides generally for the indemnification
of directors and officers, among others, against judgments, settlements,
penalties, fines, 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 except in connection with any
proceeding by or in the right of the Company in which the director was adjudged
liable to the Company or in connection with any other proceeding, whether or
not involving action in his official capacity, in which he was adjudged liable
on the basis that personal benefit was improperly received by him. Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to directors and officers of the Company pursuant to the foregoing
provisions or otherwise, the Company has been advised that, in the opinion of
the Commission, such indemnification is against public policy as expressed in
the Securities Act, and is, therefore, unenforceable.
The Company may purchase director and officer liability insurance for
the purpose of providing a source of funds to pay any indemnification
described above.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
(a) Exhibits.
The following documents are filed as a part of this
registration statement.
Exhibit Description of Exhibit
------- ----------------------
3.1 Articles of Amendment and Restatement dated June 22, 1995,
amending and restating the Charter of the Company, as
amended or supplemented by Articles of Merger dated June
23, 1995, Articles Supplementary dated April 30, 1996,
Articles of Amendment dated August 8, 1996, Articles of
Amendment dated June 16, 1997, Articles of Amendment dated
October 30, 1997 and Articles of Merger and attached
Articles of Amendment dated July 27, 1998 (filed as Exhibit
3.1 to the Company's Form 8-K dated July 27, 1998 and
incorporated herein by reference).
3.2 Bylaws of the Company, as amended (filed as Exhibit 3.2 to
the Company's Registration Statement on Form S-11 (File No.
33-98332) and incorporated herein by reference).
4.1 Form of Share Certificate for Common Stock (filed as
Exhibit 4.1 to the Company's Form 10-Q for the quarter
ended June 30, 1996 and incorporated herein by reference).
4.2 FelCor Suite Hotels, Inc. 1998 Restricted Stock and Stock
Option Plan
5.1 Opinion of Jenkens & Gilchrist, a Professional Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional Corporation
(included in opinion filed as Exhibit 5.1 hereto)
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of Arthur Andersen LLP
24 Power of Attorney (included with signature page of this
Registration Statement)
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ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 Section 15(d) of the 1934 Act
that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the 1934 Act) that is incorporated
by reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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 foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dallas, State of Texas, on October 22, 1998:
FELCOR LODGING TRUST INCORPORATED
a Maryland corporation
By: /s/ Lawrence D. Robinson
-----------------------------------
Lawrence D. Robinson
Senior Vice-President and General Counsel
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below hereby constitutes and appoints Randall L. Churchey and Lawrence
D. Robinson, and each of them, with full power to act without the other, his
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this Registration Statement, and to file the same with all exhibits thereto
and other documents in connection therewith, with the Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as he might or could do in
person hereby ratifying and confirming that said attorney-in-fact and agent or
his substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates included:
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SIGNATURE CAPACITY DATE
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<S> <C> <C>
/s/ Donald J. McNamara Chairman of the Board and Director October 22, 1998
- -----------------------------
Donald J. McNamara
/s/ Thomas J. Corcoran, Jr. President and Chief Executive October 22, 1998
- ----------------------------- Officer and Director
Thomas J. Corcoran, Jr.
/s/ Randall L. Churchey Senior Vice President and Chief October 22, 1998
- ----------------------------- Financial Officer
Randall L. Churchey
/s/ Lester C. Johnson Vice President and Controller October 22, 1998
- ----------------------------- (Principal Accounting Officer)
Lester C. Johnson
- ----------------------------- Director October ___, 1998
Richard S. Ellwood
/s/ Richard O. Jacobson Director October 22, 1998
- -----------------------------
Richard O. Jacobson
/s/ Charles A. Ledsinger, Jr. Director October 22, 1998
- -----------------------------
Charles A. Ledsinger, Jr.
/s/ Robert H. Lutz, Jr. Director October 22, 1998
- -----------------------------
Robert H. Lutz, Jr.
/s/ Charles N. Mathewson Director October 20, 1998
- -----------------------------
Charles N. Mathewson
- ----------------------------- Director October ___, 1998
Thomas A. McChristy
/s/ Richard C. North Director October 21, 1998
- -----------------------------
Richard C. North
/s/ Michael D. Rose Director October 20, 1998
- -----------------------------
Michael D. Rose
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INDEX TO EXHIBITS
Exhibit Description of Exhibit
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3.1 Articles of Amendment and Restatement dated June 22,
1995, amending and restating the Charter of the
Company, as amended or supplemented by Articles of
Merger dated June 23, 1995, Articles Supplementary
dated April 30, 1996, Articles of Amendment dated
August 8, 1996, Articles of Amendment dated June 16,
1997, Articles of Amendment dated October 30, 1997
and Articles of Merger and attached Articles of
Amendment dated July 27, 1998 (filed as Exhibit 3.1
to the Company's Form 8-K dated July 27, 1998 and
incorporated herein by reference).
3.2 Bylaws of the Company, as amended (filed as Exhibit
3.2 to the Company's Registration Statement on Form
S-11 (File No. 33-98332) and incorporated herein by
reference).
4.1 Form of Share Certificate for Common Stock (filed as
Exhibit 4.1 to the Company's Form 10-Q for the
quarter ended June 30, 1996 and incorporated herein
by reference).
4.2 FelCor Suite Hotels, Inc. 1998 Restricted Stock and
Stock Option Plan
5.1 Opinion of Jenkens & Gilchrist, a Professional
Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional
Corporation (included in opinion filed as Exhibit 5.1
hereto)
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of Arthur Andersen LLP
24 Power of Attorney (included with signature page of
this Registration Statement)
<PAGE> 1
EXHIBIT 4.2
FELCOR SUITE HOTELS, INC.
1998 RESTRICTED STOCK AND STOCK OPTION PLAN
<PAGE> 2
FELCOR SUITE HOTELS, INC.
1998 RESTRICTED STOCK AND STOCK OPTION PLAN
TABLE OF CONTENTS
<TABLE>
<S> <C>
SECTION 1. Establishment, Purpose, and Effective Date of
Plan................................................ 1
1.1 Establishment....................................... 1
1.2 Purpose............................................. 1
1.3 Effective Date...................................... 1
SECTION 2. Definitions..................................... 1
2.1 Definitions......................................... 1
2.2 Gender and Number................................... 2
SECTION 3. Eligibility and Participation................... 2
3.1 Eligibility and Participation....................... 2
SECTION 4. Administration.................................. 2
4.1 Administration...................................... 2
SECTION 5. Stock Subject to Plan........................... 2
5.1 Number.............................................. 2
5.2 Lapsed Awards....................................... 2
5.3 Adjustment in Capitalization........................ 2
SECTION 6. Shareholder Approval and Duration of Plan....... 3
6.1 Shareholder Approval................................ 3
6.2 Duration of Plan.................................... 3
SECTION 7. Stock Options................................... 3
7.1 Grant of Options.................................... 3
7.2 Option Agreement.................................... 3
7.3 Option Price........................................ 3
7.4 Duration of Options................................. 3
7.5 Exercise of Options................................. 3
7.6 Payment............................................. 4
7.7 Restrictions on Stock Transferability............... 4
7.8 Termination of Employment Due to Death or
Disability.......................................... 4
7.9 Termination of Employment Other than for Death or
Disability.......................................... 4
7.10 Nontransferability of Options....................... 4
SECTION 8. Restricted Stock................................ 4
8.1 Grant of Restricted Stock........................... 4
8.2 Transferability..................................... 4
8.3 Other Restrictions.................................. 4
8.4 Voting Rights....................................... 4
8.5 Dividends and Other Distributions................... 4
8.6 Termination of Employment........................... 4
SECTION 9. Rights of Employees............................. 5
9.1 Employment.......................................... 5
9.2 Participation....................................... 5
SECTION 10. Amendment, Modification, and Termination of
Plan................................................ 5
10.1 Amendment, Modification, and Termination of Plan.... 5
SECTION 11. Miscellaneous Provisions....................... 5
11.1 Tax Withholding..................................... 5
11.2 Stock Withholding Elections......................... 5
</TABLE>
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SECTION 12. Indemnification................................ 5
12.1 Indemnification..................................... 5
SECTION 13. Requirements of Law............................ 6
13.1 Requirements of Law................................. 6
13.2 Governing Law....................................... 6
</TABLE>
ii
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FELCOR SUITE HOTELS, INC.
1998 RESTRICTED STOCK AND STOCK OPTION PLAN
SECTION 1. Establishment, Purpose, and
Effective Date of Plan
1.1 Establishment. FelCor Suite Hotels, Inc., a Maryland corporation,
hereby establishes the "FELCOR SUITE HOTELS, INC. 1998 RESTRICTED STOCK AND
STOCK OPTION PLAN" (THE "PLAN") for Independent Directors, executive officers
and key employees. The Plan permits the grant of stock options and restricted
stock as a payout media for payments under the plan.
1.2 Purpose. The purpose of the Plan is to advance the interests of the
Company, by encouraging and providing for the acquisition of an equity interest
in the success of the Company by Independent Directors, executive officers and
key employees, by providing additional incentives and motivation toward superior
performance of the Company, and by enabling the Company to attract and retain
the services of Independent Directors, executive officers and key employees upon
whose judgment, interest, and special effort the successful conduct of its
operations is largely dependent.
1.3 Effective Date. The Plan shall become effective immediately upon its
adoption by the Board of Directors of the Company ("Effective Date"), although
it is subject to shareholder approval as provided in Section 6.1.
SECTION 2. Definitions
2.1 Definitions. Whenever used herein, the following terms shall have
their respective meanings set forth below:
(a) "Award" means any Stock Option or Restricted Stock granted under
this Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Committee" means the Compensation Committee of the Board;
provided, however, that for any grant to an Independent Director, the
remaining members of the Board shall serve as the Compensation Committee
with respect to such grant, including, but not limited to, the approval of
the grant. The Board, as a whole, may take any action which the Committee
is authorized to take hereunder.
(e) "Company" means FelCor Suite Hotels, Inc., a Maryland corporation.
(f) "Disability" means an individual who is unable to engage in any
substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or
which has lasted, or can be expected to last, for a continuous period of
not less than twelve (12) months.
(g) "Employee" means an employee (including officers and directors who
are also employees) of the Company or its subsidiaries, affiliates
(including partnerships) or any branch or division thereof.
(h) "Fair Market Value" of a share of Stock means the reported closing
sales price of the Stock on the New York Stock Exchange Composite Tape on
that date, or if no closing price is reported on that date, on the last
preceding date on which such closing price of the Stock was so reported. If
the Stock is not traded on the New York Stock Exchange at the time a
determination of its Fair Market Value is required to be made hereunder,
its Fair Market Value shall be deemed to be equal to the average between
the closing bid and asked prices of the Stock on the most recent date on
which the Stock was publicly traded. In the event the Stock is not publicly
traded at the time a determination of its value is required to be made
hereunder, the determination of its Fair Market Value shall be made by the
Committee in such manner as it deems appropriate.
<PAGE> 5
(i) "Independent Director" means a director of the Company who is not
an officer or employee of the Company, any affiliate of an officer or
employee or any affiliate of (i) any advisor to the Company under an
advisory agreement, (ii) any lessee of any property of the Company, (iii)
any subsidiary of the Company or (iv) any partnership which is an affiliate
of the Company.
(j) "Option" means the right to purchase Stock at a stated price for a
specified period of time. For purposes of the Plan, an Option may be either
(i) an "incentive stock option" within the meaning of Section 422 of the
Code or (ii) a "nonstatutory stock option."
(k) "Participant" means any Employee or Independent Director
designated by the Committee to participate in the Plan.
(l) "Period of Restriction" means the period during which the transfer
of shares of Restricted Stock is restricted pursuant to Section 8 of the
Plan.
(m) "Restricted Stock" means Stock granted to a Participant pursuant
to Section 8 of the Plan.
(n) "Stock" means the common stock of the Company, par value of $.01.
2.2 Gender and Number. Except when otherwise indicated by the context,
words in the masculine gender when used in the Plan shall include the feminine
gender, the singular shall include the plural, and the plural shall include the
singular.
SECTION 3. Eligibility and Participation
3.1 Eligibility and Participation. Participants in the Plan shall be
selected by the Committee from among the independent Directors and Employees
who, in the opinion of the Committee, are in a position to contribute materially
to the Company's continued growth and development and to its long-term financial
success.
SECTION 4. Administration
4.1 Administration. The Committee shall be responsible for the
administration of the Plan. The Committee, by majority action thereof, is
authorized to interpret the Plan, to prescribe, amend, and rescind rules and
regulations relating to the Plan, to provide for conditions and assurances
deemed necessary or advisable to protect the interests of the Company, and to
make all other determinations necessary or advisable for the administration of
the Plan. Determinations, interpretations, or other actions made or taken by the
Committee pursuant to the provisions of the Plan shall be final and binding and
conclusive for all purposes and upon all persons whomsoever.
SECTION 5. Stock Subject to Plan
5.1 Number. The total number of shares of Stock subject to Awards under
the Plan may not exceed 1,000,000, subject to adjustment upon the occurrence of
any of the events indicated in Section 5.3 hereof. Of this total number, not
more than 50,000 shares of Stock may be issued as Restricted Stock. The shares
to be delivered under the Plan may consist, in whole or in part, of authorized
but unissued Stock or treasury Stock, not reserved for any other purpose.
Notwithstanding any other provision hereof to the contrary, no Participant shall
be eligible to receive Awards pursuant to this Plan in excess of 250,000 shares
of Common Stock in any fiscal year (the "Section 162(m) Maximum").
5.2 Lapsed Awards. If any Award granted under the Plan terminates, expires
or lapses for any reason, any shares subject to such Award again shall be
available for the grant of an Award hereunder.
5.3 Adjustment in Capitalization. In the event of any change in the
outstanding shares of Stock that occurs after the Effective Date by reason of a
Stock dividend or split, recapitalization, merger, consolidation, combination,
exchange of shares, or other similar corporate change, the aggregate number of
shares of Stock
2
<PAGE> 6
subject to the Plan and to each Award hereunder, and to the stated Option price
of each Award, shall be adjusted appropriately by the Committee or the Board,
whose determination shall be conclusive; provided, however, that fractional
shares shall be rounded to the nearest whole share. In such event, the Committee
or the Board also shall have discretion to make appropriate adjustments in the
number and type of shares subject to an Award of Restricted Stock under the Plan
pursuant to the terms of such an Award.
SECTION 6. Shareholder Approval and Duration of Plan
6.1 Shareholder Approval. All Awards granted under this Plan are subject
to, and may not be exercised before, and will be rescinded and become void in
the absence of, the approval of this Plan by a majority of the shareholders
voting thereon at a meeting of shareholders, at which a quorum is present, held
prior to the first anniversary date of the board meeting held to approve this
Plan.
6.2 Duration of Plan. The Plan shall remain in effect, subject to the
Board's right to earlier terminate pursuant to Section 10 hereof, until all
Stock subject to it shall have been purchased or acquired pursuant to the
provisions hereof. Notwithstanding the foregoing, no Option may be granted under
the Plan on or after November 1, 2007.
SECTION 7. Stock Options
7.1 Grant of Options. Subject to the provisions of Section 5 and 6,
Options may be granted to Participants at any time and from time to time as
shall be determined by the Committee. The Committee shall have complete
discretion in determining the number of Options granted to each Participant. The
Committee may grant any type of Option to purchase Stock that is permitted by
law at the time of grant; provided however, that the aggregate Fair Market Value
(determined at the time the Option is granted) of the Stock, with respect to
which all incentive stock options granted under any plan of the Company are
exercisable for the first time by a Participant during any calendar year, may
not exceed $100,000. Nothing in this Section 7 of the Plan shall be deemed to
prevent the grant of nonstatutory stock options in amounts that exceed the
maximum established by Section 422 of the Code.
7.2 Option Agreement. Each Option shall be evidenced by an Option
agreement that shall specify the type of Option granted, the Option price, the
duration of the Option, the number of shares of Stock to which the Option
pertains, and such other provisions as the Committee shall determine.
7.3 Option Price. The Option price of each share of Stock subject to each
Option granted pursuant to this Plan shall be determined by the Committee at the
time the Option is granted and, in the case of incentive stock options, shall
not be less then 100% of the Fair Market Value of a share of Stock on the date
the Option is granted, as determined by the Committee. In the case of incentive
stock options granted to any person who owns, directly or indirectly, Stock
possessing more than ten percent (10%) of the total combined voting power of all
classes of Stock ("Ten Percent Owner"), the Option price shall not be less than
110% of the Fair Market Value of a share of Stock on the date the Option is
granted. The Option price of each share of Stock subject to a nonstatutory stock
option under this Plan shall be determined by the Committee, in its sole
discretion, prior to granting the Option.
7.4 Duration of Options. Each Option shall expire at such time as the
Committee shall determine at the time it is granted, provided, however, that no
incentive stock option shall be exercisable later than ten (10) years from the
date of its grant, and no incentive stock option granted to a Ten Percent Owner
shall be exercisable later than five (5) years from the date of its grant.
7.5 Exercise of Options. Options granted under the Plan shall be
exercisable at such times and be subject to such restrictions and conditions as
the Committee shall in each instance approve, which need not be the same for all
Participants. No Option may be exercised within six (6) months after the date of
grant. Each Option that is intended to qualify as an incentive stock option
pursuant to Section 422 of the Code shall comply with the applicable provisions
of the Code pertaining to such Options.
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7.6 Payment. The Option price of Stock acquired upon exercise of any
Option shall be paid in full on the date of exercise, by certified or cashier's
check, by wire transfer, by money order, with Stock (but with Stock only if
expressly permitted by the terms of the Option), or by a combination of the
above. If the Option price is permitted to be, and is, paid in whole or in part
with Stock, the value of the Stock surrendered shall be its Fair Market Value on
the date surrendered. The proceeds from payment of Option prices shall be added
to the general funds of the Company and shall be used for general corporate
purposes.
7.7 Restrictions on Stock Transferability. The Committee shall impose such
restrictions on any shares of Stock acquired pursuant to the exercise of an
Option under the Plan as it may deem advisable, including, without limitation,
restrictions under applicable federal securities law, under the requirements of
any stock exchange upon which such shares of Stock are then listed, and under
any blue sky or state securities laws applicable to such shares.
7.8 Termination of Employment Due to Death or Disability. Unless otherwise
expressly provided in the Option, if the employment of a Participant is
terminated by reason of death or Disability, the rights under any then
outstanding Option shall terminate upon the first to occur of (i) the expiration
date of the Option or (ii) the first anniversary of such date of termination of
employment.
7.9 Termination of Employment Other than for Death or Disability. Unless
otherwise expressly provided in the Option, if the employment of the Participant
shall terminate for any reason other than death or Disability, the rights under
any then outstanding Option shall terminate upon the first to occur of (i) the
expiration date of the Option or (ii) ninety (90) days after such date of
termination of employment.
7.10 Nontransferability of Options. No Option granted under the Plan may
be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated,
otherwise than by will or by the laws of descent and distribution. Further, all
Options granted to a Participant under the Plan shall be exercisable during his
lifetime only by such Participant.
SECTION 8. Restricted Stock
8.1 Grant of Restricted Stock. Subject to the provisions of Sections 5 and
6, the Committee, at any time and from time to time, may grant shares of
Restricted Stock under the Plan to such Participants and in such amounts as it
shall determine. Each grant of Restricted Stock shall be evidenced by a
Restricted Stock agreement.
8.2 Transferability. Except as provided in Sections 8.6 and 8.7 hereof,
the shares of Restricted Stock granted hereunder may not be sold, transferred,
pledged, assigned, or otherwise alienated or hypothecated for such period of
time as shall be determined by the Committee and shall be specified in the
Restricted Stock agreement, or upon earlier satisfaction of other conditions as
specified by the Committee in its sole discretion and set forth in the
Restricted Stock agreement.
8.3 Other Restrictions. The Committee may impose such other restrictions
on any shares of Restricted Stock granted pursuant to the Plan as it may deem
advisable including, without limitation, restrictions under applicable federal
or state securities laws, and may legend the certificates representing
Restricted Stock to give appropriate notice of such restrictions.
8.4 Voting Rights. Participants holding shares of Restricted Stock granted
hereunder may exercise full voting rights with respect to those shares during
the Period of Restriction.
8.5 Dividends and Other Distributions. During the Period of Restriction,
Participants holding shares of Restricted Stock granted hereunder shall be
entitled to receive all cash dividends distributed with respect to those shares
while they are so held.
8.6 Termination of Employment. Except as provided by the Committee at the
time of grant, in the event that a Participant terminates his employment with
the Company for any reason during the Period of Restriction (including death),
then any shares of Restricted Stock still subject to restrictions at the date of
such termination automatically shall be forfeited and shall again be available
for issuance under the Plan.
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SECTION 9. Rights of Employees
9.1 Employment. Nothing in the Plan shall interfere with or limit in any
way the right of the Company to terminate any Participant's employment at any
time, nor confer upon any Participant any right to continue in the employ of the
Company.
9.2 Participation. No Committee shall have a right to be selected as a
Participant, or, having been so selected, to be selected again as a Participant.
SECTION 10. Amendment, Modification,
and Termination of Plan
10.1 Amendment, Modification, and Termination of Plan. The Board at any
time may terminate, and from time to time may amend or modify the Plan, and may
amend or modify Awards hereunder; provided, however, that no amendment of the
Plan or of any Award hereunder, without approval of the shareholders within one
year after the adoption of such amendment, may:
(a) increase the aggregate number of shares of Stock that may be
issued under the Plan;
(b) extend the term of the Plan;
(c) effect a repricing of previously granted Options, whether directly
or indirectly through the cancellation of outstanding Options and the
concurrent reissuance of Options for a like number of shares but at a
lesser exercise price;
(d) extend the period during which Awards may be granted; or
(e) materially modify the requirements as to eligibility to receive
Awards under the Plan.
No amendment, modification, or termination of the Plan shall in any manner
adversely affect any Award theretofore granted under the Plan, without the
consent of the Participant.
SECTION 11. Miscellaneous Provisions
11.1 Tax Withholding. The Company shall have the power to withhold, or
require a Participant to remit to the Company, an amount sufficient to satisfy
federal, state, and local withholding tax requirements on any Award under the
Plan.
11.2 Stock Withholding Elections. Subject to the consent of the Committee,
due to the (i) exercise of a nonstatutory stock option or (ii) lapse of
restrictions on a Restricted Stock Award, a Participant may make an irrevocable
election to (a) have shares of Stock otherwise issuable thereunder withheld or
(b) tender to the Company shares of Stock then held by the Participant (whether
received pursuant to (i) or (ii) or in any other transaction) having an
aggregate Fair Market Value sufficient to satisfy all or part of the
Participant's estimated total federal, state and local tax obligations
associated with the transaction. Such elections must be made by a Participant on
or prior to the tax date.
SECTION 12. Indemnification
12.1 Indemnification. Each person who is or shall have been a member of
the Committee or of the Board shall be indemnified and held harmless by the
Company against and from any loss, cost, liability or expense that may be
imposed upon or reasonably incurred by him in connection with or resulting from
any claim, action, suit or proceeding to which he may be a party or in which he
may be involved by reason of any action taken or failure to act under the Plan
made in good faith and against and from any and all amounts paid by him in
settlement thereof, with the Company's approval, or paid by him in satisfaction
of any judgment in any such action, suit or proceeding against him, provided he
shall give the Company an opportunity, at its own expense, to handle and defend
the same before he undertakes to handle and defend it on his own behalf. The
foregoing right of indemnification shall not apply to any acts of willful
misconduct by any member of the
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<PAGE> 9
Committee or the Board. The foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which such persons may be
entitled under the Company's Charter or Bylaws, as a matter of law, or
otherwise, or any power that the Company may have to indemnify them or hold them
harmless.
SECTION 13. Requirements of Law
13.1 Requirements of Law. The granting of Awards and the issuance of
shares of Stock upon the exercise of an Option shall be subject to all
applicable laws, rules and regulations, and to such approvals by any
governmental agencies or national securities exchanges as may be required.
13.2 Governing Law. The Plan, and all agreements hereunder, shall be
construed in accordance with and governed by the laws of the State of Maryland.
FELCOR SUITE HOTELS, INC.
By: /s/ LAWRENCE D. ROBINSON
------------------------------------
Name: Lawrence D. Robinson
Title: Senior Vice President and
General Counsel
ATTEST:
/s/ LESTER C. JOHNSON
- ------------------------------------
Lester C. Johnson, Vice President
6
<PAGE> 1
EXHIBIT 5.1
[JENKENS & GILCHRIST LETTERHEAD]
A PROFESSIONAL CORPORATION
October 23, 1998
FelCor Lodging Trust Incorporated
545 E. John Carpenter Freeway
Suite 1300
Irving, Texas 75062
Re: FelCor Lodging Trust Incorporated -- Form S-8 Registration
Statement
Gentlemen:
We have acted as counsel to FelCor Lodging Trust Incorporated, a
Maryland corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission on or about October 23, 1998, under
the Securities Act of 1933, as amended (the"Securities Act"), relating to
1,000,000 shares (the "Shares") of the $0.01 par value common stock (the "Common
Stock") of the Company that may be issued by the Company under the FelCor Suite
Hotels, Inc. 1998 Restricted Stock and Stock Option Plan, as amended, for the
Company (the "Plan").
You have requested the opinion of this firm with respect to certain
legal aspects of the proposed offering. In connection therewith, we have
examined and relied upon the original, or copies identified to our satisfaction,
of (1) the Articles of Amendment and Restatement of the Company, as further
amended and supplemented (the "Charter"); (2) the Bylaws of the Company, as
amended; (3) minutes and records of the corporate proceedings of the Company
with respect to the establishment of the Plan, the issuance of options to
purchase shares of Common Stock pursuant to the Plan and related matters; (4)
the Registration Statement and exhibits thereto, including the Plan; and (5)
such other documents and instruments as we have deemed necessary for the
expression of opinions herein contained. In making the foregoing examinations,
we have assumed the genuineness of all signatures and the authenticity of all
documents submitted to us as originals, and the conformity to original documents
of all documents submitted to us as certified or photostatic copies. As to
various questions of fact material to this opinion, and as to the content and
form of the Charter, the Bylaws, as amended, minutes, records, resolutions and
other documents or writings of the Company, we have relied, to the extent we
deem reasonably appropriate, upon representations or certificates of officers or
directors of the Company and upon documents, records and instruments furnished
to us by the Company, without independent check or verification of their
accuracy.
<PAGE> 2
FelCor Lodging Trust Incorporated
October 23, 1998
Page 2
Based upon the firm's examination, consideration of, and reliance on
the documents and other matters described above, and subject to the assumptions
noted below, this firm is of the opinion that the Company presently has
available at least 1,000,000 shares of authorized but unissued and/or treasury
shares of Common Stock from which may be issued the Shares proposed to be issued
pursuant to the Plan. Assuming that
(1) the shares of restricted stock and options granted under the Plan
will be duly granted in accordance with the terms of the Plan;
(2) the Company maintains an adequate number of authorized but unissued
shares and/or treasury shares available for issuance to those persons granted
shares of Common Stock under the Plan; and
(3) the consideration for Common Stock issued pursuant to the Plan is
actually received by the Company as provided in the Plan (or agreements executed
in connection with the Plan) and exceeds the par value of such shares;
then the Shares that may be issued in accordance with the terms of the Plan will
be, when and if issued, duly and validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to references to our firm included in or made a part
of the Registration Statement. In giving this consent, we do not admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act or the Rules and Regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
JENKENS & GILCHRIST,
a Professional Corporation
By: /s/ Robert W. Dockery
----------------------------
Robert W. Dockery,
Authorized Signatory
cc: Mr. Lawrence D. Robinson
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors of
FelCor Lodging Trust Incorporated
We consent to the incorporation by reference in this registration statement
on Form S-8 of FelCor Lodging Trust Incorporated of our reports dated (i)
January 20, 1998, except for Note 14 as to which the date is February 17, 1998,
on our audits of the consolidated financial statements and financial statement
schedule of FelCor Suite Hotels, Inc. as of December 31, 1997 and 1996, and for
the years ended December 31, 1997, 1996, and 1995, (ii) March 13, 1998, on our
audits of the consolidated financial statements of DJONT Operations, L.L.C. as
of December 31, 1997 and 1996, and for the years ended December 31, 1997, 1996,
and 1995, (iii) July 25, 1997 on our audit of the combined financial statements
of the Sheraton Acquisition Hotels as of December 31, 1996 and for the year then
ended, (iv) February 23, 1996 on our audits of the consolidated financial
statements of Bristol Hotel Company as of December 31, 1995 and for the eleven
months then ended and the combined financial statements of Harvey Hotel
Companies as of January 31, 1995 and for the one month then ended, which reports
are incorporated by reference herein.
/s/ PricewaterhouseCoopers LLP
Dallas, Texas
October 22, 1998
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
dated February 6, 1998 (except with respect to the matter discussed in Note 20
as to which the date is March 25, 1998), on the consolidated financial
statements of the Bristol Hotel Company and to the use of our report dated
February 6, 1998 (except with respect to the matter discussed in Note 18 as to
which the date is March 25, 1998), on the consolidated financial statements of
the Bristol Hotel Asset Company (and to all references to our Firm),
incorporated by reference into Form S-8 of FelCor Lodging Trust Incorporated.
/s/ ARTHUR ANDERSEN LLP
Dallas, Texas,
October 21, 1998
