<PAGE> 1
As filed with the Securities and Exchange Commission on November 22, 1996.
Registration Statement No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
--------------------
STUDIO PLUS HOTELS, INC.
----------------------------------------------------
(Exact name of Registrant as specified in Its Charter)
Virginia 61-1273532
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1999 Richmond Road, Suite 4
Lexington, Kentucky 40502
(606) 269-1999
(Address of principal executive office, including zip code)
STUDIO PLUS HOTELS, INC.
------------------------
TOP HAT SAVINGS PLAN
---------------------
(Full title of the Plan)
-----------------
Norwood Cowgill, Jr.
1999 Richmond Road, Suite 4
Lexington, Kentucky 40502
(606) 269-1999
(Name, address, including zip code, and telephone number including area code,
of agent for service)
With copies to:
David C. Wright, Esquire
Hunton & Williams
2000 Riverview Tower
900 South Gay Street
Knoxville, Tennessee 37902
(423) 549-7700
-----------------
CALCULATION OF REGISTRATION FEES
<TABLE>
<CAPTION>
=============================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered Per Share Offering Price Registration Fee
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 150,000 shares $15.375(*) $2,306,250 $699
=============================================================================================================
</TABLE>
(*) Estimated solely for the purpose of computing the registration fee.
This amount was calculated pursuant to Rules 457(c) and 457(h)(1) on the
basis of $15.375 per share, which was the average of the high and low prices of
the Common Stock on The Nasdaq Stock Market on November 20, 1996, as reported
in The Wall Street Journal. In addition, pursuant to Rule 416(c) under the
Securities Act of 1933, this registration statement also covers an
indeterminate number of interests to be offered or sold pursuant to the
employee benefit plan described below.
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with the Securities and Exchange Commission
(the "Commission").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with the Commission.
I-1
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Studio Plus Hotels, Inc. (the
"Company") with the Commission (File No. 0-25340) are incorporated herein by
reference and made a part hereof: (i) the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1995; (ii) the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1996; (iii) the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1996; (iv) the
Company's Quarterly Report on Form 10-Q for the quarter ended September 30,
1996; (v) the Company's Prospectus, dated March 27, 1996, filed pursuant to
Rule 424(b) under the Securities Act of 1933, as amended (the "Securities
Act"); (vi) the Company's Current Report on Form 8-K dated February 27, 1996;
(vii) the Company's Current Report on Form 8-K dated June 13, 1996; (viii) the
Company's Current Report on Form 8-K dated August 13, 1996; and (ix) the
Company's Form 8-A-A, dated June 6, 1995, containing a description of the
Common Stock.
All documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of the Prospectus and prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in the Prospectus and
to be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes of the Prospectus to the extent that a
statement contained herein or in any other subsequently filed document that is
incorporated by reference herein modifies or supersedes such earlier statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of the Prospectus.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to the Virginia Stock Corporation Act, each director of the
Company is required to discharge his duties in accordance with his good faith
business judgment of the best interest of the Company. In addition, Virginia
law provides that a transaction with the Company in which a director or officer
of the Company has a direct or indirect interest is not voidable by the Company
solely because of the director's or officer's interest in the transaction if
(i) the material facts of the transaction and interest are disclosed to or
known by the directors and the transaction is authorized, approved or ratified
by the disinterested directors, (ii) the material facts of the transaction and
interest are disclosed to or known by the shareholders and the transaction is
authorized, approved or ratified by the disinterested shareholders, or (iii)
the transaction is established to have been fair to the Company.
The Articles of Incorporation of the Company contain a provision which
eliminates the liability of a director or officer to the Company or its
shareholders for monetary damages for any breach of duty as a director or
officer. This provision does not eliminate such liability to the extent that
it is proved that the director or officer engaged in willful misconduct or a
knowing violation of criminal law or of any federal or state securities law.
II-1
<PAGE> 4
The Articles of Incorporation also contain provisions which require
the Company to indemnify an officer or director against liability incurred in
any proceeding to which he is a party because he is an officer or director if
(i) he conducted himself in good faith, (ii) he believed (A) in the case of
conduct in his official capacity with the Company, that his conduct was in its
best interests, or (B) in all other cases, that his conduct was at least not
opposed to its best interests, and (iii) in the case of any criminal
proceeding, he had no reasonable cause to believe that his conduct was
unlawful.
To the extent that the Board of Directors or the shareholders of the
Company may in the future wish to limit or repeal the ability of the Company to
provide indemnification as set forth in the Company's Articles of
Incorporation, such repeal or limitation may not be effective as to directors
and officers who are parties to the Indemnification Agreements, because their
rights to full protection would be contractually assured by the Indemnification
Agreements. It is anticipated that similar contracts may be entered into, from
time to time, with future officers or directors of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No.
- -----------
<S> <C>
4.1 Articles of Incorporation of the Company (previously filed as Exhibit
3.1 to the Company's Registration Statement on Form S-1 (Registration
No. 33-87836) and incorporated by reference hereto).
4.2 Bylaws of the Company (previously filed as Exhibit 3.1 to the
Company's Registration Statement on Form S-1 (Registration No.
33-87836) and incorporated by reference hereto).
4.3 Studio Plus Hotels, Inc. Top Hat Savings Plan.
4.4 Studio Plus Hotels, Inc. Rabbi Trust Agreement, dated as of May 31,
1996 between the Company and Fifth Third Bank of Kentucky.
5.1 Opinion of Hunton & Williams as to the legality of the securities
being registered.
15.1 Letter from Coopers & Lybrand L.L.P. regarding its review of financial
information for the periods ended March 31, 1996 and June 30, 1996.
23.1 Consent of Hunton & Williams (included in the opinion filed as
Exhibit 5.1 to the Registration Statement).
23.2 Consent of Coopers & Lybrand L.L.P.
</TABLE>
ITEM 9. UNDERTAKINGS
(a) The Company hereby undertakes:
1. To file, during any period in which offers or sales
are made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
II-2
<PAGE> 5
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change in such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the Company pursuant to Section 13(a) or Section
15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
2. That, for the purpose of determining any liability
under the Securities Act, 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 Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Company's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange 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 may be permitted to directors, officers and controlling persons
of the Company pursuant to the provisions described under Item 6 above, 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. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of
the Company 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 Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
II-3
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Lexington, Commonwealth of Kentucky, on this 22nd
day of November, 1996.
STUDIO PLUS HOTELS, INC.,
a Virginia corporation
(Registrant)
By: /s/ Norwood Cowgill, Jr.
-----------------------------------
Norwood Cowgill, Jr.,
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Norwood Cowgill, Jr. and William E. Anderson, II, or either of them,
his true and lawful attorney-in-fact with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement or any related registration
statement filed pursuant to Rule 462(b) of the Securities Act of 1933 and to
cause the same to be filed, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
granting to said attorneys-in-fact and agent, full power and authority to do
and perform each and every act and thing whatsoever requisite or desirable to
be done in and about the premises, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
acts and things that said attorneys-in-fact and agents, or their substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities indicated
on this 22nd day of November, 1996.
Signature Title
/s/ Norwood Cowgill, Jr. Chairman of the Board and a Director
- --------------------------- (Principal Executive Officer)
Norwood Cowgill, Jr.
/s/ Richard W. Furst Director
- ---------------------------
Richard W. Furst
/s/ Thomas P. Dupree Director
- ---------------------------
Thomas P. Dupree
II-4
<PAGE> 7
/s/ Warren W. Rosenthal Director
- ---------------------------
Warren W. Rosenthal
/s/ Daniel W. Daniele Director
- ---------------------------
Daniel W. Daniele
/s/ Michael J. Moriarty Director, President and Chief
- --------------------------- Operating Officer (Principal
Michael J. Moriarty Operating Officer)
/s/ William E. Anderson, II Director, Executive Vice President,
- --------------------------- Secretary and General Counsel
William E. Anderson, II
/s/ James C. Baughman, Jr. Chief Financial Officer and Treasurer
- --------------------------- (Principal Financial Officer)
James C. Baughman, Jr.
/s/ Donald F. Vittitow Director of Corporate Reporting
- --------------------------- (Principal Accounting Officer)
Donald F. Vittitow
II-5
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
- -------
No. Description
- --- -----------
<S> <C>
4.1 Articles of Incorporation of the Company (previously filed as
Exhibit 3.1 to the Company's Registration Statement on Form
S-1 (Registration No. 33-87836) and incorporated by reference
hereto).
4.2 Bylaws of the Company (previously filed as Exhibit 3.1 to the
Company's Registration Statement on Form S-1 (Registration No.
33-87836) and incorporated by reference hereto).
4.3 Studio Plus Hotels, Inc. Top Hat Savings Plan.
4.4 Studio Plus Hotels, Inc. Rabbi Trust Agreement, dated as of
May 31, 1996 between the Company and Fifth Third Bank of
Kentucky.
5.1 Opinion of Hunton & Williams as to the legality of the
securities being registered.
15.1 Letter from Coopers & Lybrand L.L.P. regarding its review of
financial information for the periods ended March 31, 1996
and June 30, 1996.
23.1 Consent of Hunton & Williams (included in the opinion filed
as Exhibit 5.1 to the Registration Statement).
23.2 Consent of Coopers & Lybrand L.L.P.
</TABLE>
II-6
<PAGE> 1
EXHIBIT 4.3
STUDIO PLUS HOTELS, INC.
TOP HAT SAVINGS PLAN
PREAMBLE
Studio Plus Hotels, Inc. (the "Employer"), a Virginia corporation,
hereby adopts the Studio Plus Hotels, Inc. Top Hat Savings Plan (the "Plan")
effective as of April 15, 1996. This Plan is an unfunded deferred compensation
arrangement for a select group of management or highly compensated employees
who are rendering services to the Employer.
ARTICLE I - DEFINITIONS
1.1 "Beneficiary" shall mean the person or persons entitled to receive
the distributions, if any, payable under the Plan upon or after a
Participant's death, to such person or persons as such
Participant's Beneficiary. Each Participant may designate a
Beneficiary by filing the proper form with the Committee. A
Participant may designate one or more contingent Beneficiaries to
receive any distributions after the death of a prior Beneficiary.
A designation shall be effective upon said filing, provided that it
is so filed during such Participant's lifetime, and may be changed
from time to time by the Participant.
1.2 "Committee" shall mean the Plan Administration Committee of Studio
Plus Hotels, Inc. which is responsible for the administration of
this Plan in accordance with the provisions of the Plan as set
forth in this document.
1.3 "Compensation" shall mean the total amount of earnings, including
salary and bonus, paid by the Employer to an Executive or which
would otherwise be paid but for a deferral election hereunder or a
salary reduction election under any Section 401(k) or 125 plan.
1.4 "Deferred Compensation Account" shall mean the separate account to
be established by the Employer as a book reserve to reflect the
amounts deferred by a Participant under Paragraph 2.1, and matched
by the Employer pursuant to Paragraph 2.5, as adjusted by earnings
under Article V and as reduced by distributions or transfers under
Articles III, VI and VII.
1.5 "Effective Date" shall mean April 15, 1996.
1.6 "Employer" shall mean Studio Plus Hotels, Inc., any subsidiary of
Studio Plus Hotels, Inc. which has adopted the Plan with the
consent of Studio Plus Hotels, Inc., or any successor or assignee
of any of them.
<PAGE> 2
1.7 "Executive" shall mean any employee designated by the Employer
Compensation Committee of the Board of Directors of Employer as a
member of the group of management or highly compensated employees
eligible for participation in this Plan.
1.8 "Participant" shall mean any Executive who has a right to a benefit
under the Plan and a person who was such at the time of his death
or termination of service and who retains, or whose Beneficiary
retains, a benefit under the Plan which has not been distributed.
1.9 "Plan" shall mean the Studio Plus Hotels, Inc. Top Hat Savings Plan
as described in this instrument, effective April 15, 1996, and as
may be amended thereafter.
1.10 "Plan Year" shall mean the 12-consecutive month period beginning
each January 1 and ending each December 31.
1.11 "Tax Qualified 401(k) Plan" shall mean the Studio Plus Hotels, Inc.
RetirementPLUS Savings Plan as currently effective, and as may be
amended in the future.
ARTICLE II - ELECTION FOR PARTICIPATION,
DEFERRALS AND MATCHING CONTRIBUTIONS
2.1 Subject to Paragraph 2.2, each Participant may elect to have up to
100% of his Compensation (in whole percentages) for a Plan Year
deferred and credited with earnings in accordance with the terms
and conditions of the Plan. Deferrals of Compensation may be made
solely from regular salary, solely from bonuses, or from both
regular salary and bonuses, at the Participant's election.
2.2 Any Participant desiring to exercise an election under Paragraph
2.1 shall notify the Committee of his deferral election. Such
notice must be in writing, on a form provided by the Committee, and
delivered to the Committee by such date as the Committee shall
specify, but in no event later than the first day of the Plan Year
quarter to which such election is to apply.
2.3 A deferral election shall be effective with respect to the entire
Plan Year quarter to which it relates and may not be modified or
terminated for that Plan Year quarter. If a Participant makes a
deferral election for a Plan Year quarter and does not make a
deferral election for the remaining Plan Year quarters, the
deferral election in effect shall continue to be effective for the
remaining Plan Year quarters.
2.4 Subject to Paragraphs 2.1 and 2.2, the Compensation otherwise
payable to the Participant during the Plan Year shall be reduced by
the amount of the
2
<PAGE> 3
Participant's election under this Article H. Such amounts shall be
credited to the Participant's Deferred Compensation Account.
2.5 The Employer shall be authorized to make matching contributions to
the Deferred Compensation Account of those Participants who make
deferrals of Compensation pursuant to Paragraph 2.2. The
Employer's annual matching contribution to the Plan shall be an
amount equal to such percentage of the Participant's elective
deferrals hereunder for the Plan year as may be properly determined
by the Compensation Committee of the Board of Directors of the
Employer for such Plan Year and applied uniformly with respect to
those Participants entitled to receive this type of matching
contribution.
ARTICLE III - TRANSFER OF DEFERRALS AND MATCHING
CONTRIBUTIONS TO TAX-QUALIFIED SAVINGS PLAN
3.1 Each Plan Year, the plan administrator of the Tax-Qualified 401(k)
Plan will make a determination as to the amount of deferrals
allowable under that plan. Such determination shall be made as
soon as practicable but in no event later than January 31 of the
following calendar year.
3.2 Each Participant who has a deferral election in effect under this
Plan may elect to have his maximum allowable amount, as determined
under Paragraph 3.1, (not exceeding his deferrals under this Plan
for the year) be transferred to the Tax-Qualified 401(k) Plan as
an elective contribution. In no event will amounts constituting
earnings be transferred to the Tax-Qualified 401(k) Plan.
3.3 To the extent the Employer makes matching contributions under
Paragraph 2.5 of this Plan and to the extent the Tax-Qualified
401(k) Plan also provides for a matching contribution, a maximum
allowable matching contribution amount, if any, shall be
transferred from this Plan (if any) to the Tax-Qualified 401(k)
Plan, to the extent permitted under the law and applicable
regulations. Such amounts Any matching contributions not so
transferred shall remain as part of the general assets under this
Plan.
3.4 At the time a Participant makes his deferral election under Article
II for a Plan Year, he also shall make the election referred to in
Paragraph 3.2.
ARTICLE IV - PARTICIPANT'S INTEREST
No Participant or his designated Beneficiary shall acquire any property
interest in his Deferred Compensation Account or any other assets of the
Employer, their rights being limited to receiving from the Employer a deferred
payment as set forth in this Plan and these rights being limited to receiving
from the Employer a deferred payment as set forth in this Plan and these rights
are conditioned upon continued compliance with the terms and
3
<PAGE> 4
conditions of this Plan. To the extent that any Participant or Beneficiary
acquires a right to receive benefits under this Plan, such right shall be no
greater than the fight of any unsecured general creditor of the Employer.
ARTICLE V - CREDITING OF EARNINGS
5.1 There shall be credited to the Deferred Compensation Account of
each Participant an additional amount of earnings (or losses)
determined under this Article V.
5.2 Each Participant shall elect (in whole percentages) to have
earnings (or losses) credited to his Deferred Compensation Account
under one or more of the following investment elections:
a) Fountain Square Balanced Fund election;
b) Fountain Square U.S. Treasury Obligations Fund election;
c) Fidelity Growth Opportunities Fund election;
d) Fidelity Advisor Intermediate Term Bond Fund election;
e) Vanguard Index 500 Fund election;
f) Heartland Value Fund election; or
g) Studio Plus Hotels, Inc. Common Stock.
Such an election must be in writing, on a form provided by the
Committee, and delivered to the Committee prior to the beginning of
a Plan Year quarter by such date as the Committee shall determine.
An investment election shall be effective for the entire Plan Year
quarter to which it relates and may not be modified or terminated
for that Plan Year quarter. In the event that an investment
election form is not received by the Committee by the date
specified for elections for a particular Plan Year quarter for a
Participant, the last investment election received by the Committee
from the Participant shall remain in effect for that Plan Year
quarter.
ARTICLE VI - PLAN BENEFITS
6.1 A Participant's rights to amounts deferred to his Deferred
Compensation Account shall be nonforfeitable at all times, subject
to the provisions of the Studio Plus Hotels, Inc. Rabbi Trust
Agreement. A Participant's rights to matching contributions under
this Plan shall become nonforfeitable in such manner and at
4
<PAGE> 5
such time as is provided for matching contributions under the Tax
Qualified 401(k) Plan.
6.2 (a) At the time a Participant makes his first deferral election
under Article II of the Plan, he shall also elect to have the
amounts represented by his Deferred Compensation Account paid in
one of the following two forms commencing as soon as
administratively feasible upon termination of his service with the
Employer:
(1) single lump sum payment, or
(2) approximately equal monthly installments to last not
less than 12 months nor more than 120 months.
If installment payments are in effect, the Participant's Deferred
Compensation Account shall continue to be credited with earnings or
losses under Article V until payment of the final installment and
the Participant may continue to make such elections thereunder as
are available to other Participants.
(b) A Participant may change the election referred to in (a)
above. Payment shall be made in accordance with any such changed
election only if the Participant terminates service with the
Employer at least two years following the date of the election.
Otherwise, the payment shall be made in accordance with the
election (if any) in effect immediately prior to the changed
election.
(c) If a Participant has no election concerning the form of
benefit payment under this Paragraph 6.2 in effect at the time he
terminates service with the Employer, payment shall be made in a
single lump sum payment.
(d) Elections shall be made in writing on a form provided by the
Committee and shall be made in accordance with the rules
established by the Committee.
(e) To the extent that a Participant has earnings (or losses)
credited to his Deferred Compensation Account based on the Studio
Plus Hotels, Inc. stock election, such Participant shall have the
right to receive any benefit payments in the form of whole shares
of such Studio Plus Hotels, Inc. stock. Any fractional shares
shall be paid in cash. Any expenses attributable to an election to
take shares may be deducted from the Participant's Deferred
Compensation Account.
6.3 (a) A Participant may withdraw all or a portion of this Deferred
Compensation Account in the event of a hardship. A request for a
hardship distribution shall be made to the Committee in the form of
a written application. A hardship distribution shall only be made
in the event of an unforeseeable emergency that would result in
severe financial hardship to the Participant if hardship
distributions
5
<PAGE> 6
were not permitted. Withdrawals of amounts because of an
unforeseeable emergency shall only be permitted to the extent
reasonably needed to satisfy the emergency needed.
(b) For purposes of this Paragraph 6.4, an unforeseeable emergency
is defined as severe financial hardship to the Participant
resulting from a sudden and unexpected illness or accident of the
Participant or a dependent of the Participant, imminent or actual
loss of the Participant's property, or such other similar
extraordinary and unforeseeable circumstances as may arise as a
result of events beyond the control of the Participant. The
circumstances that will constitute an unforeseeable emergency will
depend upon the facts of each case, but, in any case, payment may
not be made to the extent that such hardship is or may be relieved
(i) through reimbursement or compensation by insurance or
otherwise, or (ii) by liquidation of the Participant's assets, to
the extent the liquidation of such assets would not itself cause
severe financial hardship. The Committee shall have the sole and
absolute authority for determining whether a hardship distribution
shall be allowed and, if so, in what amount.
ARTICLE VII - DEATH
Upon the death of a Participant prior to commencement of payment under Article
6, the amounts represented by the Participant's Deferred Compensation Account,
increased by any amounts due to be credited but not yet credited under
Paragraph 2.5, shall be payable to the Participant's Beneficiary as soon as
administratively feasible in a single lump sum distribution. If the
Participant has already commenced receiving the amounts represented by the
Participant's Deferred Compensation Account in the installment payment form,
the installment payments shall continue to be paid to the Participant's
Beneficiary.
ARTICLE VIII - PROHIBITION ON ALIENATION
Except as required by law, no right of the Participant or designated
Beneficiary to receive payments under this Plan shall be subject to
anticipation, commutation, alienation, sale, assignment, encumbrance, charge,
pledge, or hypothecation or to execution, attachment, levy, or similar process
or assignment by operation of law and any attempt, voluntary or involuntary, to
effect any such action shall be null and void and of no effect.
ARTICLE IX - CONSTRUCTION
This Plan shall be construed under the laws of the Commonwealth of Kentucky.
Article headings are for convenience only and shall not be considered as part
of the terms and provisions of the Plan. The Committee shall have full power
and authority to interpret, construe and administer this Plan.
ARTICLE X - CONSOLIDATION OR MERGER
6
<PAGE> 7
In the event that the Employer or any entity (resulting from any merger or
consolidation or which shall be a purchaser or transferee so referred to) shall
at any time be merged or consolidated into or with any other entity or
entities, or in the event that substantially all of the assets of the Employer
or any such entity shall be sold or otherwise transferred to another entity,
the provisions of this Plan shall be binding upon and shall enure to the
benefit of the continuing entity resulting from such merger or consolidation or
the entity to which such assets shall be sold or transferred. Except as
provided in the preceding sentence, this Plan shall not be assignable by the
Employer or by any entity referred to in such preceding sentence.
ARTICLE XI - AMENDMENT OR TERMINATION OF PLAN
The Plan may be terminated at any time or amended in whole or in part from time
to time by the Employer provided that no such termination or amendment may
directly or indirectly reduce a Participant's Deferred Compensation Account
(other than through a complete distribution thereof to the Participant (or his
Beneficiary in the event of his death)); and any such amendment shall be
binding on the Employer, Participant and designated Beneficiary. The Plan
shall also terminate upon a Change in Control, as such term is defined in the
Studio Plus Hotels, Inc. Rabbi Trust Agreement.
ARTICLE XII - MISCELLANEOUS
12.1 Neither this Agreement, nor any action of the Employer or the
Committee, nor any election to defer Compensation and/or bonuses
hereunder shall be held or construed to confer on any person any
legal right to be continued as an employee of the Employer.
12.2 The Employer shall have the right to deduct from all payments any
taxes required by law to be withheld with respect to any payments
made under this Plan.
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IN WITNESS THEREOF, Studio Plus Hotels, Inc. has caused this Plan to be
executed this 31 day of May, 1996.
ATTEST: STUDIO PLUS HOTELS, INC.
/s/ James C. Baughman, Jr. By: William E. Anderson
- --------------------------- --------------------------
Chief Financial Officer Executive Vice President
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EXHIBIT 4.4
STUDIO PLUS HOTELS, INC.
RABBI TRUST AGREEMENT
(a) WHEREAS, Studio Plus Hotels, Inc. (The "Employer") a Virginia
Corporation, has adopted a nonqualified deferred compensation Plan attached
hereto as Appendix A and made part of this Agreement; such plan known as the
Studio Plus Hotels, Inc. Top Hat Savings Plan (the "Plan");
(b) WHEREAS, Employer intends and Fifth Third Bank agrees that Fifth Third
Bank shall act as Trustee as that term is defined in this Agreement
(c) WHEREAS, Employer has incurred or expects to incur liability under the
terms of such Plan with respect to the individuals participating in such Plan;
(d) WHEREAS, Employer wishes to establish a Trust (hereinafter called
"Trust") and to contribute to the Trust assets that shall be held therein,
subject to the clams of Employers creditors in the event of Employer's
Insolvency, as herein defined until paid to Plan participants and their
beneficiaries in such manner and at such times as speeded in the Plan;
(e) WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plan
as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974,
as amended; and
(f) WHEREAS, it is the further intention of the Employer to make
contributions to the Trust to provide itself with a source of funds to assist
it in the meeting of its liabilities under the Plan.
NOW, THEREFORE, BE IT RESOLVED THAT Employer does hereby establish the Trust
and Fifth Third Bank agrees to be Trustee of such Trust, and said Trust shall
be comprised, held and disposed of as follows:
<PAGE> 2
SECTION 1. ESTABLISHMENT OF TRUST
(a) Trust hereby established shall be irrevocable
(b) The Trust is intended to be a grantor Trust of which Employer is the
grantor within the meaning of subpart E, part I, subchapter L chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
(c) The principal of the Trust and any earnings thereon shall be held
separate and apart from other funds of Employer and shall be used exclusively
for the uses and purposes of Plan participants and general creditors as herein
set forth. Plan participants and their beneficiaries shall have no preferred
claim on, or any beneficial ownership interest in, any assets of the Trust. Any
rights created under the Plan and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their beneficiaries against
Employer. Any assets held by the Trust will be subject to the claims of
Employer's general creditors under federal and state law in the event of
Insolvency, as defined in Section 3(a) herein.
(d) The Employer in its sole discretion, may at any time, or from time to
time, make additional deposits of cash or other property in Trust with Trustee
to augment the principal to be held, administered and disposed of by Trustee as
provided in this Trust Agreement. Neither Trustee nor any Plan participant or
beneficiary shall have any right to compel such additional deposits.
(e) Upon a Change in Control, Employer shall, in its discretion and as
soon as possible but in no event longer than thirty (30) days following the
Change in Control, as defined herein, make an irrevocable contribution to the
Trust up to the amount that is sufficient to pay each Plan participant or
beneficiary the benefits to which Plan participant or their beneficiaries would
be entitled to receive pursuant to the terms of the Plan as if the Change in
Control had never occurred. The Employer, in its discretion, shall consult with
an actuary as to the amount oL. contribution that could be made to satisfy the
obligations created under the Plan by reason of the Change in Control.
SECTION 2. PAYMENTS TO PLAN PARTICIPANT AND THEIR BENEFICIARIES
(a) Employer shall deliver to Trustee a schedule (the "Payment Schedule")
that indicates the amount payable in respect of each Plan participant (and his
or her beneficiaries), that provides a formula or other instructions
acceptable to Trustee for determining the amounts so payable, the form in which
such amount is to be paid (as provided for or available under the Plan), and
the time of commencement for payment of such amounts. Except as otherwise
provided herein, Trustee shall make payments to the Plan participants and their
beneficiaries in accordance with such Payment Schedule. The Trustee shall make
provision for the reporting and withholding of
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any federal, state or local taxes that may be required to be withheld with
respect to the payment of benefits pursuant to the terms of the Plan and shall
pay amounts withheld to the appropriate taxing authorities or determine that
such amounts have been reported, withheld and paid by Employer.
SECTION 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST BENEFICIARY
WHEN EMPLOYER IS INSOLVENT
(a) Trustee shall cease payment of benefits to Plan participants and their
beneficiaries if the Employer is Insolvent. Employer shall be considered
"Insolvent" for purposes of this Trust Agreement if (i) Employer is unable to
pay its debts as they become due, or (ii) Employer is subject to a pending
proceeding as a debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall be subject to
claims of general creditors of Employer under federal and state law as set
forth below.
(1) The Chief Executive Officer and the Chief Financial Officer of
employer shall have the duty to inform Trustee in writing of Employer's
Insolvency. If a person claiming to be a creditor of Employer alleges in
writing to Trustee that Employer has become Insolvent, Trustee shall
discontinue payment of benefits to Plan participants or their beneficiaries.
(2) Unless Trustee has actual knowledge of Employer's Insolvency,
or has received notice from Employer or a person claiming to be a creditor
alleging that Employer is Insolvent, Trustee shall have no duty to inquire
whether Employer is Insolvent. Trustee may in all events rely on such evidence
concerning Employer's solvency as may be furnished to Trustee and that provides
Trustee with a reasonable basis for making a determination concerning
Employer's solvency.
(3) If at any time Trustee has determined that Employer is
Insolvent, Trustee shall discontinue payments to Plan participants or their
beneficiaries and shall hold the assets of the Trust for the benefit of
Employer's general creditors. Nothing in this Trust Agreement shall in any way
diminish any rights of Plan participants or their beneficiaries to pursue their
rights as general creditors of Employer with respect to benefits due under the
Plan or otherwise.
(4) Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with Section 2 of this Trust
Agreement only after Trustee has determined that Employer is not or is no
longer Insolvent.
(c) Provided that there are sufficient assets, if Trustee discontinues the
payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plan for the period
of such
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discontinuance, less the aggregate amount of any payments made to Plan
participants or their beneficiaries by Employer in lieu of the payments
provided for hereunder during any such period of discontinuance.
SECTION 4. INVESTMENT AUTHORITY
Trustee may invest in securities (including stock or rights to acquire stock)
or obligations issued by Employer. All rights associated within assets of the
Trust shall be exercised by Trustee or the person designated by Trustee, and
shall in no event be exercisable by or rest with Plan participants.
SECTION 5. DISPOSITION OF INCOME.
During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
SECTION 6. ACCOUNTING BY TRUSTEE.
Trustees shall keep accurate and detailed records of all investments, receipts,
disbursements, and all other transactions required to be made, including such
specific records as shall be agreed upon in writing between Employer and
Trustee. Within sixty (60) days following the close of each calendar year and
within sixty (60) days after removal or resignation of Trustee, Trustee shall
deliver to Employer a written account of its administration of the Trust during
such year or during the period from the close of the last preceding year to the
date of such removal or resignation, setting forth all investments, receipts,
disbursements and other transactions affected by it, including a description of
all securities and investments purchased and sold with the cost or net proceeds
of such purchases or sales (accrued interest paid or receivable being shown
separately), and showing all cash, securities and other property held in the
Trust at the end of such year or as of the date of such removal or resignation,
as the case may be.
SECTION 7. RESPONSIBILITY OF TRUSTEE
(a) Trustee shall act with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent person acting in like capacity
and familiar with such matters would use in the conduct of an enterprise of a
like character and with like aims, provided, however, that Trustee shall incur
no liability to any person for any action taken pursuant to a direction,
request or approval given by Employer which is contemplated by, and in
conformity with, the terms of the Plan or this Trust and is given in writing by
Employer. In the event of a dispute between Employer and a party, Trustee may
apply to a court of competent jurisdiction to resolve the dispute.
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(b) If Trustee undertakes or defends any litigation arising in connection
with this Trust, Employer agrees to indemnify Trustee against Trustee's
reasonable costs, expenses and liabilities (including, without limitation,
reasonable attorney's fees and expenses) relating thereto and to be primarily
liable for such payments. If Employer does not pay such costs, expenses and
liabilities in a reasonably timely manner, Trustee may obtain payment from the
Trust.
(c) Trustee may consult with legal counsel (who may also be counsel for
Employer generally) with respect to any of its duties or obligations hereunder.
(d) Trustee may hire agents, accountants, actuaries, investment advisors,
financial consultant or other professionals to assist it in performing any of
its duties or obligations hereunder.
(e) Trustee shall have, without exclusion, all powers conferred on
Trustees by applicable law, unless expressly provided otherwise herein,
provided, however, that if an insurance policy is held as an asset of the
Trust, Trustee shall have no power to name a beneficiary of the policy other
than the Trust, to assign the policy (as distinct from conversion of the policy
to a different form) other than to a successor Trustee, or to loan to any
person the proceeds of an borrowing against such policy.
(f) However, notwithstanding the provisions of Section 8(e) above, Trustee
may loan to Employer the proceeds of any borrowing against an insurance policy
held as an asset of the Trust.
(g) Notwithstanding any powers granted to Trustee pursuant to this Trust
Agreement or to applicable law, Trustee shall not have any power that could
give this Trust the objective of carrying on a business and dividing the gains
therefrom, within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
SECTION 8. COMPENSATION AND EXPENSE OF TRUSTEE
Employer shall pay all reasonable administrative and Trustee's fees and
expenses. If not so paid, the fees and expenses shall be paid from the Trust.
SECTION 9. RESIGNATION AND REMOVAL OF TRUSTEE
(a) Trustee may resign at any time by written notice to Employer, which
shall be effective sixty (60) days after receipt of such notice unless Employer
and Trustee agree otherwise.
(b) Trustee may be removed by Employer on sixty (60) days notice or upon
shorter notice accepted by Trustee.
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(c) Upon a Change in Control, as defined herein, Trustee may not be
removed by Employer until all of the assets of the Trust have been used to
provide benefits to Plan participants and beneficiaries under the terms of this
Plan and Trust determined as of the date of a Change in Control.
(d) If Trustee resigns or is removed, as defined herein, Employer shall
select a successor Trustee in accordance with the provisions of Section 11(a)
herein prior to the effective date of Trustee's resignation or removal.
(e) Upon resignation or removal or Trustee and appointment of a successor
Trustee, all assets shall subsequently be transferred to the successor Trustee.
The transfer shall be completed within sixty (60) days after receipt of notice
of resignation, removal or transfer, unless Employer extends the time limit.
(f) If Trustee resigns or is removed pursuant to the terms of this Trust
Agreement, a successor shall be appointed, in accordance with Section 11
hereof, by the effective date of resignation or removal under Sections 10(a)
[or 10(b)] of this Section. If no such appointment has been made, Trustee may
apply to a court of competent jurisdiction for appointment of a successor for
instructions. All reasonable expenses of Trustee in connection with the
proceeding shall be allowed as administrative expenses of the Trust.
SECTION 10. APPOINTMENT OF SUCCESSOR
(a) If Trustee resigns or is removed in accordance with Section 10 hereof,
Employer may appoint any third party, such as a bank Trust department or other
party that may be granted corporate Trustee powers under state law, as a
successor to replace Trustee upon resignation or removal. The appointment
shall be effective when accepted in writing by the new Trustee, who shall have
all of the rights and powers of the former Trustee, including ownership rights
in the Trust assets. The former Trustee shall execute any instrument necessary
or reasonably requested by Employer or the successor Trustee to evidence the
transfer.
SECTION 11. AMENDMENT OR TERMINATION
(a) This Trust Agreement may be amended by a written instrument executed
by Trustee and Employer. Notwithstanding the foregoing, no such amendment
shall conflict with the terms of the Plan or shall make the Trust revocable
after it has become irrevocable in accordance with Section 1(a) hereof.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits
pursuant to the terms of the Plan. Upon termination of the Trust any assets
remaining in the Trust shall be returned to Employer.
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SECTION 12. MISCELLANEOUS
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries under
this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment,
garnishment, levy, execution or other legal process.
(c) This Trust Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Kentucky.
(d) For purposes of this Trust, Change in Control shall mean (i) a change
in control of the Employer of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A promulgated under the Securities and
Exchange Act of 1934, as amended (the "Exchange Act"); or (ii) any of the
following events:
(1) any "person" (as such term is used in Section 13(d) and 14(d)
of the Exchange Act), other than Norwood Cowgill, Jr., or one of his
direct heirs, who is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act) directly or indirectly, of
securities of the Employer representing fifteen percent (15%) of the
Employer's then outstanding voting securities;
(2) the Employer's shareholders approve an agreement to merge or
consolidate the Employer with another corporation or entity (other
than a corporation or entity more than fifty percent (50%) of which is
controlled by, or is under common control with the Employer);
(3) Employer, or a wholly owned subsidiary of the Employer, in
either case, together with any employee benefit maintained by the
Employer for the exclusive benefit of the Employer's employees, shall
cease to directly own and control, of record and beneficially, at
least eighty percent (80%) of each class of capital stock of Studio
Plus Properties, Inc., provided, however, that a Change of Control
shall not occur under this subsection (3) upon (I) the merger of
Studio Plus Properties, Inc., into the Employer, or (II) the merger of
Studio Plus Properties, Inc. into another wholly owned subsidiary of
the Employer;
(4) the Employer's shareholder's approve the sale, assignment or
transfer of all or substantially all of the assets of Employer or
Studio Plus Properties, Inc.; or
(5) the Employer's shareholders approve the liquidation or
dissolution of the Employer or Studio Plus Properties, Inc.
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IN WITNESS WHEREOF, the Employer has caused the Agreement to be signed
and adopted this 31st day of May, 1996.
ATTEST: STUDIO PLUS HOTELS, INC.
/s/ James C. Baughman, Jr. By: /s/ William E.Anderson
- ------------------------------- --------------------------
Chief Financial Officer Executive Vice President
ATTEST: FIFTH THIRD BANK
/s/ Holly Thompson By: /s/ James C. Smith
- ------------------------------- -------------------------
Assistant Trust Officer
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EXHIBIT 5.1
November 22, 1996
Studio Plus Hotels, Inc.
1999 Richmond Road
Suite Four
Lexington, Kentucky 40502
Gentlemen:
We have acted as counsel for Studio Plus Hotels, Inc., a Virginia
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement") dated November 22, 1996 and filed under
the Securities Act of 1933, as amended, with respect to 150,000 shares of the
Company's common stock, $.01 par value (the "Plan Shares") which are proposed
to be offered and sold pursuant to the Company's Top Hat Deferred Compensation
Plan (the "Plan") as referenced in the Registration Statement.
In connection therewith, we have relied upon, among other things, our
examination of such documents, records of the Company, certificates of its
officers and public officials, as we have deemed necessary for purposes of the
opinion expressed below.
Based upon the foregoing, and having regard for such legal
considerations as we have deemed relevant, we are of the opinion that:
1. The Company is duly incorporated, validly existing and in good
standing under the laws of the Commonwealth of Virginia; and
2. The Plan Shares covered by the Registration Statement have
been validly authorized and, upon issuance and sale as
described in the Plan, will be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Hunton & Williams
<PAGE> 1
EXHIBIT 15.1
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Studio Plus Hotels, Inc.
Registration on Form S-8
We are aware that our reports dated May 1, 1996 and August 5, 1996 on our
review of interim financial information of Studio Plus Hotels, Inc. for the
period ended March 31, 1996 and June 30, 1996, respectively, and included in
the Company's quarterly report on Form 10-Q for the quarter then ended are
incorporated by reference in this registration statement. Pursuant to Rule
436(c) under the Securities Act of 1933, these reports should not be considered
part of the registration statement prepared or certified by us within the
meaning of Sections 7 and 11 of that Act.
Coopers & Lybrand L.L.P.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement of Studio Plus Hotels, Inc. on Form S-8 of our report dated February
8, 1996, on our audits of the consolidated financial statements of Studio Plus
Hotels, Inc. (the "Company") as of December 31, 1995 and 1994, and for the
years ended December 31, 1995, 1994 and 1993, which report is included in the
Company's Annual Report on Form 10-K for the year ended December 31, 1995, and
in the Company's Prospectus dated March 27, 1996.
Coopers & Lybrand L.L.P.
Cincinnati, Ohio
November 21, 1996
