As filed with the Securities and Exchange Commission on May 19, 2005
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LaSalle Hotel Properties
(Exact name of registrant as specified in its charter)
Maryland | 6798 | 36-4219376 | ||
(State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. employer identification number) |
3 Bethesda Metro Center, Suite 1200
Bethesda, Maryland 20814
(301) 941-1500
(Address, including zip code, and telephone number, including area code, of the registrants principal executive offices)
LASALLE HOTEL PROPERTIES 1998 SHARE OPTION AND INCENTIVE PLAN
(Full title of the plan)
Jon E. Bortz
President and Chief Executive Officer
LaSalle Hotel Properties
3 Bethesda Metro Center, Suite 1200
Bethesda, Maryland 20814
(301) 941-1500
(Name, address, including zip code and telephone number, including area code, of agent for service)
Copies to:
Brad S. Markoff, Esq.
Jeffrey M. Sullivan, Esq.
DLA Piper Rudnick Gray Cary US LLP
4700 Six Forks Road, Suite 200
Raleigh, NC 27609
Phone: (919) 786-2000
Facsimile: (919) 786-2200
CALCULATION OF REGISTRATION FEE
|
||||||||
Title of Shares To Be Registered |
Amount
To Be Registered |
Proposed
Aggregate
|
Proposed
Maximum Offering Price Per Share (2) |
Amount of
Registration Fee (2) |
||||
Common Shares of Beneficial Interest, par value $0.01 per share |
900,000(1) | $30.85 | $27,765,000 | $3,268 | ||||
|
(1) | Plus such additional number of shares as may be required by reason of the anti-dilution provisions of the LaSalle Hotel Properties 1998 Share Option and Incentive Plan. An aggregate of 2,800,000 shares of common stock may be offered or issued pursuant to the LaSalle Hotel Properties 1998 Share Option and Incentive Plan, 757,000 of which were previously registered on Form S-8 (File No. 333-72265), 743,000 of which were previously registered on Form S-8 (File No. 333-86911), 400,000 of which were previously registered on Form S-8 (File No. 333-104056) and 900,000 of which are registered on this Form S-8. |
(2) | Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(c) and (h) of the Securities Act of 1933. The proposed maximum offering price per share, proposed maximum aggregate offering price and the amount of the registration fee are based on the average of the high and low prices of LaSalle Hotel Properties common stock as reported on the New York Stock Exchange on May 13, 2005. |
INCORPORATION BY REFERENCE
This registration statement on Form S-8 registers additional securities of the same class as other securities of LaSalle Hotel Properties (the Registrant) for which registration statements, also filed on Form S-8 by the Registrant and relating to LaSalle Hotel Properties 1998 Share Option and Incentive Plan (the Plan), are effective. In accordance with General Instruction E to Form S-8, the contents of the registration statements filed by LaSalle Hotel Properties with the Securities and Exchange Commission (the Commission) on February 12, 1999, September 10, 1999 and March 27, 2003 (File Nos. 333-72265, 333-86911 and 333-104056), with respect to securities offered pursuant to the Plan are hereby incorporated by reference. After giving effect to this filing, an aggregate of 2,800,000 shares of the Registrants common shares of beneficial interest, par value $.01 per share, have been registered for issuance pursuant to the Registrants Plan.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date of this registration statement and prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities remaining unsold, shall be deemed to be incorporated by reference into this registration statement and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
ITEM 8. | EXHIBITS |
4.1 | Articles of Amendment and Restatement of Declaration of Trust of the Registrant (incorporated by reference from Exhibit 3.1 of the Registrants Form 10-Q filed with the Commission on August 14, 1998) (File No. 001-14045) | |
4.2 | Articles Supplementary Establishing and Fixing the Rights and Preferences of 10.25% Series A Cumulative Redeemable Preferred Shares, $0.01 Par Value Per Share (incorporated by reference from Exhibit 3.2 of the Registrants Form 8-A filed with the Commission on March 5, 2002) (File No. 001-14045) | |
4.3 | Articles Supplementary Establishing and Fixing the Rights and Preferences of 8.375% Series B Cumulative Redeemable Preferred Shares, $0.01 Par Value Per Share (incorporated by reference from Exhibit 3.2 of the Registrants Form 8-A filed with the Commission on September 29, 2003) (File No. 001-14045) | |
4.4 | Amended and Restated Bylaws of the Registrant (incorporated by reference from Exhibit 3.1 of the Registrants Form S-3 filed with the Commission on March 27, 2003) (No. 333-104054) | |
4.5 | LaSalle Hotel Properties 1998 Share Option and Incentive Plan, as amended through April 21, 2005 |
5 | Opinion of DLA Piper Rudnick Gray Cary US LLP | |
23(a) | Consent of DLA Piper Rudnick Gray Cary US LLP (included as part of Exhibit 5) | |
23(b) | Consent of Independent Registered Public Accounting Firm KPMG LLP | |
23(c) | Consent of Independent Registered Public Accounting Firm Ernst & Young LLP | |
23(d) | Consent of Independent Registered Public Accounting Firm Crowe Chizek and Company LLC | |
24 | Power of Attorney (included on the signature page of this Registration Statement) |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Bethesda, State of Maryland, on the 19 th day of May, 2005.
LASALLE HOTEL PROPERTIES |
||
By: | /s/ H ANS S. W EGER | |
Hans S. Weger | ||
Executive Vice President and Chief Financial Officer |
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and trustees of LaSalle Hotel Properties hereby severally constitute Jon E. Bortz, Michael D. Barnello and Hans S. Weger, and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the registration statement filed herewith and any and all amendments to said registration statement, and generally to do all such things in our names and in our capacities as officers and trustees to enable LaSalle Hotel Properties to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them to said registration statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Date |
Signature |
|||
May 19, 2005 |
/s/ J ON E. B ORTZ Jon E. Bortz |
Chairman, President and Chief Executive Officer (Principal Executive Officer) | ||
May 19, 2005 |
/s/ D ARRYL H ARTLEY -L EONARD Darryl Hartley-Leonard |
Trustee |
||
May 19, 2005 |
/s/ K ELLY L. K UHN Kelly L. Kuhn |
Trustee |
May 19, 2005 |
/s/ W ILLIAM S. M C C ALMONT William S. McCalmont |
Trustee |
||
May 19, 2005 |
/s/ D ONALD S. P ERKINS Donald S. Perkins |
Trustee |
||
May 19, 2005 |
/s/ S TUART L. S COTT Stuart L. Scott |
Trustee |
||
May 19, 2005 |
/s/ D ONALD A. W ASHBURN Donald A. Washburn |
Trustee |
||
May 19, 2005 |
/s/ H ANS S. W EGER Hans S. Weger |
Executive Vice President, Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
EXHIBIT INDEX
Exhibit No.
|
Description |
|
4.1 | Articles of Amendment and Restatement of Declaration of Trust of the Registrant (incorporated by reference from Exhibit 3.1 of the Registrants Form 10-Q filed with the Commission on August 14, 1998) (File No. 001-14045) | |
4.2 | Articles Supplementary Establishing and Fixing the Rights and Preferences of 10.25% Series A Cumulative Redeemable Preferred Shares, $0.01 Par Value Per Share (incorporated by reference from Exhibit 3.2 of the Registrants Form 8-A filed with the Commission on March 5, 2002) (File No. 001-14045) | |
4.3 | Articles Supplementary Establishing and Fixing the Rights and Preferences of 8.375% Series B Cumulative Redeemable Preferred Shares, $0.01 Par Value Per Share (incorporated by reference from Exhibit 3.2 of the Registrants Form 8-A filed with the Commission on September 29, 2003) (File No. 001-14045) | |
4.4 | Amended and Restated Bylaws of the Registrant (incorporated by reference from Exhibit 3.1 of the Registrants Form S-3 filed with the Commission on March 27, 2003) (No. 333-104054) | |
4.5 | LaSalle Hotel Properties 1998 Share Option and Incentive Plan, as amended through April 21, 2005 | |
5 | Opinion of DLA Piper Rudnick Gray Cary US LLP | |
23(a) | Consent of DLA Piper Rudnick Gray Cary US LLP (included as part of Exhibit 5) | |
23(b) | Consent of Independent Registered Public Accounting Firm KPMG LLP | |
23(c) | Consent of Independent Registered Public Accounting Firm Ernst & Young LLP | |
23(d) | Consent of Independent Registered Public Accounting Firm Crowe Chizek and Company LLC | |
24 | Power of Attorney (included on the signature page of this Registration Statement) |
Exhibit 4.5
LASALLE HOTEL PROPERTIES
1998 SHARE OPTION AND INCENTIVE PLAN
As Amended Through April 21, 2005
1. Purpose. The purpose of this Plan is to attract and retain qualified key employees of, and consultants and other service providers to, LaSalle Hotel Properties (the Company) and its Subsidiaries (if any), to provide such persons with appropriate incentives, and to provide an interest in the Company to certain members of the Board. The Company has adopted the Plan effective as of April 22, 1998 and approved by the Companys shareholders, and unless extended by amendment in accordance with the terms of the Plan, no Option Rights, Appreciation Rights or Restricted Shares will be granted hereunder after the tenth anniversary of such effective date.
2. Definitions. As used in this Plan,
Appreciation Right means a right granted pursuant to Section 5 of this Plan, including a Free-standing Appreciation Right and a Tandem Appreciation Right.
Base Price means the price to be used as the basis for determining the Spread upon the exercise of a Free-standing Appreciation Right.
Board means the Board of Trustees of the Company.
Code means the Internal Revenue Code of 1986, as amended from time to time.
Committee means the Compensation Committee of the Board of Trustees, as described in Section 12(a) of this Plan, or, in the absence of a Compensation Committee, the full Board.
Common Shares means (i) Common Shares of Beneficial Interest, par value $.01 per share, of the Company and (ii) any security into which Common Shares may be converted by reason of any transaction or event of the type referred to in Section 8 of this Plan.
Date of Grant means the date specified by the Committee on which a grant of Option Rights or Appreciation Rights or a grant or sale of Restricted Shares shall become effective, which shall not be earlier than the date on which the Committee takes action with respect thereto.
Free-standing Appreciation Right means an Appreciation Right granted pursuant to Section 5 of this Plan that is not granted in tandem with an Option Right or similar right.
Incentive Stock Option means an Option Right that is intended to qualify as an incentive stock option under Section 422 of the Code or any successor provision thereto.
Market Value per Share means the fair market value of the Common Shares as determined by the Committee from time to time.
Nonqualified Option means an Option Right that is not intended to qualify as a Tax-qualified Option.
Optionee means the person so designated in an agreement evidencing an outstanding Option Right.
Option Price means the purchase price payable upon the exercise of an Option Right.
Option Right means the right to purchase Common Shares from the Company upon the exercise of a Nonqualified Option or a Tax-qualified Option granted pursuant to Section 4 of this Plan.
Participant means a person who is selected by the Committee (or its delegate) to receive benefits under this Plan and (i) is at that time a key employee of, or consultant or service provider to, the Company or any Subsidiary, or (ii) has agreed to commence serving in any such capacity.
Reload Option Rights means additional Option Rights automatically granted to an Optionee upon the exercise of Option Rights pursuant to Section 4(f) of this Plan.
Restricted Shares means Common Shares granted or sold pursuant to Section 6 of this Plan as to which neither the substantial risk of forfeiture nor the restrictions on transfer referred to in Section 6 hereof has expired.
Rule 16b-3 means Rule 16b-3, as promulgated and amended from time to time by the Securities and Exchange Commission under the Securities Exchange Act of 1934, or any successor rule to the same effect.
Spread means, in the case of a Free-standing Appreciation Right, the amount by which the Market Value per Share on the date when the Appreciation Right is exercised exceeds the Base Price specified therein or, in the case of a Tandem Appreciation Right, the amount by which the Market Value per Share on the date when the Appreciation Right is exercised exceeds the Option Price specified in the related Option Right.
Subsidiary means a corporation, partnership, limited liability company, joint venture, unincorporated association or other entity in which the Company has a direct or indirect ownership or other equity interest; provided, however, that for purposes of determining whether any person may be a Participant for purposes of any grant of Incentive Stock Options, Subsidiary means
2
any corporation, partnership, limited liability company, joint venture, unincorporated association or other entity in which the Company owns or controls directly or indirectly more than 50% of the total combined voting power represented by all classes of stock issued by such corporation, partnership, limited liability company, joint venture, unincorporated association or other entity at the time of the grant.
Tandem Appreciation Right means an Appreciation Right granted pursuant to Section 5 of this Plan that is granted in tandem with an Option Right or any similar right granted under any other plan of the Company.
Tax-qualified Option means an Option Right that is intended to qualify under particular provisions of the Code, including without limitation an Incentive Stock Option.
3. Shares Available under the Plan.
(a) Subject to adjustment as provided in Section 8 of this Plan, the number of Common Shares which may be (i) issued or transferred upon the exercise of Option Rights or Appreciation Rights, or (ii) awarded as Restricted Shares and released from substantial risk of forfeiture thereof, shall not in the aggregate exceed 2.8 million Common Shares, which may be Common Shares of original issuance or Common Shares held in treasury or a combination thereof. For the purposes of this Section 3(a):
(i) Upon payment in cash of the benefit provided by any award granted under this Plan, any Common Shares that were covered by that award shall again be available for issuance or transfer hereunder.
(ii) Upon the full or partial payment of any Option Price by the transfer to the Company of Common Shares or upon satisfaction of tax withholding obligations in connection with any such exercise or any other payment made or benefit realized under this Plan by the transfer or relinquishment of Common Shares, there shall be deemed to have been issued or transferred under this Plan only the net number of Common Shares actually issued or transferred by the Company less the number of Common Shares so transferred or relinquished.
(b) Notwithstanding anything in Section 3(a) hereof, or elsewhere in this Plan, to the contrary, the aggregate number of Common Shares actually issued or transferred by the Company upon the exercise of Incentive Stock Options shall not exceed the total number of Common Shares first specified in Section 3(a) hereof.
(c) Notwithstanding any other provision of this Plan to the contrary, no Participant shall be granted Option Rights and Appreciation Rights, in the aggregate, for more than 500,000 Common Shares during any calendar year, subject to adjustment as provided in Section 8 of this Plan.
(d) Notwithstanding any other provision of this Plan to the contrary, no Participant shall be granted Restricted Shares for more than 500,000 Common Shares during any calendar year, subject to adjustment as provided in Section 8 of this Plan.
3
4. Option Rights. The Committee may from time to time authorize grants to Participants of options to purchase Common Shares upon such terms and conditions as the Committee may determine in accordance with the following provisions:
(a) Each grant shall specify the number of Common Shares to which it pertains.
(b) Each grant shall specify an Option Price per Common Share, which may not be less than the Market Value per Share on the Date of Grant.
(c) Each grant shall specify the form of consideration to be paid in satisfaction of the Option Price and the manner of payment of such consideration, which may include (i) cash in the form of currency or check or other cash equivalent acceptable to the Company, (ii) nonforfeitable, unrestricted Common Shares, which are already owned by the Optionee, (iii) any other legal consideration that the Committee may deem appropriate, including without limitation any form of consideration authorized under Section 4(d) below, on such basis as the Committee may determine in accordance with this Plan and (iv) any combination of the foregoing.
(d) Any grant of a Nonqualified Option may provide that payment of the Option Price may also be made in whole or in part in the form of Restricted Shares or other Common Shares that are subject to risk of forfeiture or restrictions on transfer. Unless otherwise determined by the Committee on or after the Date of Grant, whenever any Option Price is paid in whole or in part by means of any of the forms of consideration specified in this Section 4(d), the Common Shares received by the Optionee upon the exercise of the Nonqualified Option shall be subject to the same risks of forfeiture or restrictions on transfer as those that applied to the consideration surrendered by the Optionee; provided, however, that such risks of forfeiture and restrictions on transfer shall apply only to the same number of Common Shares received by the Optionee as applied to the forfeitable or restricted Common Shares surrendered by the Optionee.
(e) Any grant may, if there is then a public market for the Common Shares, provide for deferred payment of the Option Price from the proceeds of sale through a broker of some or all of the Common Shares to which the exercise relates.
(f) Any grant may provide for the automatic grant to the Optionee of Reload Option Rights upon the exercise of Option Rights, including Reload Option Rights, for Common Shares or any other noncash consideration authorized under Sections 4(c) and (d) above; provided, however, that the term of any Reload Option Right shall not extend beyond the term of the Option Right originally exercised.
(g) Successive grants may be made to the same Optionee regardless of whether any Option Rights previously granted to the Optionee remain unexercised.
(h) Each grant shall specify the period or periods of continuous employment of, or continuous performance of services by, the Optionee that are necessary before the Option Rights or installments thereof shall become exercisable, and any grant may provide for the earlier exercise of the Option Rights in the event of a change in control of the Company or other similar transaction or event.
4
(i) Option Rights granted pursuant to this Section 4 may be Nonqualified Options or Tax-qualified Options or combinations thereof.
(j) Any grant of an Option Right may provide for the payment to the Optionee of dividend equivalents thereon in cash or Common Shares on a current, deferred or contingent basis, or the Committee may provide that any dividend equivalents shall be credited against the Option Price.
(k) No Option Right granted pursuant to this Section 4 may be exercised more than 10 years from the Date of Grant.
(l) Each grant shall be evidenced by an agreement, which shall be executed on behalf of the Company by any officer thereof and delivered to and accepted by the Optionee and shall contain such terms and provisions as the Committee may determine consistent with this Plan.
5. Appreciation Rights. The Committee may also authorize grants to Participants of Appreciation Rights. An Appreciation Right shall be a right of the Participant to receive from the Company an amount, which shall be determined by the Committee and shall be expressed as a percentage (not exceeding 100%) of the Spread at the time of the exercise of an Appreciation Right. Any grant of Appreciation Rights under this Plan shall be upon such terms and conditions as the Committee may determine in accordance with the following provisions:
(a) Any grant shall specify that the amount payable upon the exercise of an Appreciation Right must be paid by the Company in Common Shares only.
(b) Any grant may specify that the amount payable upon the exercise of an Appreciation Right shall not exceed a maximum specified by the Committee on the Date of Grant.
(c) Any grant may specify (i) a waiting period or periods before Appreciation Rights shall become exercisable and (ii) permissible dates or periods on or during which Appreciation Rights shall be exercisable.
(d) Any grant may specify that an Appreciation Right may be exercised only in the event of a change in control of the Company or other similar transaction or event.
(e) Any grant may provide for the payment to the Participant of dividend equivalents thereon in cash or Common Shares on a current, deferred or contingent basis.
(f) Each grant shall be evidenced by an agreement, which shall be executed on behalf of the Company by any officer thereof and delivered to and accepted by the Optionee and shall describe the subject Appreciation Rights, identify any related Option Rights, state that the Appreciation Rights are subject to all of the terms and conditions of this Plan and contain such other terms and provisions as the Committee may determine consistent with this Plan.
(g) Regarding Tandem Appreciation Rights only: Each grant shall provide that a Tandem Appreciation Right may be exercised only (i) at a time when the related Option Right (or any
5
similar right granted under any other plan of the Company) is also exercisable and the Spread is positive and (ii) by surrender of the related Option Right (or such other right) for cancellation.
(h) Regarding Free-standing Appreciation Rights only:
(i) Each grant shall specify in respect of each Free-standing Appreciation Right a Base Price per Common Share, which shall be equal to or greater than the Market Value per Share on the Date of Grant;
(ii) Successive grants may be made to the same Participant regardless of whether any Free-standing Appreciation Rights previously granted to the Participant remain unexercised;
(iii) Each grant shall specify the period or periods of continuous employment of, or continuous performance of services by, the Participant that are necessary before the Free-standing Appreciation Rights or installments thereof shall become exercisable; and any grant may provide for the earlier exercise of the Free-standing Appreciation Rights in the event of a change in control of the Company or other similar transaction or event; and
(iv) No Free-standing Appreciation Right granted under this Plan may be exercised more than 10 years from the Date of Grant.
6. Restricted Shares. The Committee may also authorize grants or sales to Participants of Restricted Shares upon such terms and conditions as the Committee may determine in accordance with the following provisions:
(a) Each grant or sale shall constitute an immediate transfer of the ownership of Common Shares to the Participant in consideration of the performance of services, entitling such Participant to dividend, voting and other ownership rights, subject to the substantial risk of forfeiture and restrictions on transfer hereinafter referred to.
(b) Each grant or sale may be made without additional consideration from the Participant or in consideration of a payment by the Participant that is less than the Market Value per Share on the Date of Grant.
(c) Each grant or sale shall provide that the Restricted Shares covered thereby shall be subject to a substantial risk of forfeiture within the meaning of Section 83 of the Code for a period to be determined by the Committee on the Date of Grant, and any grant or sale may provide for the earlier termination of such period in the event of a change in control of the Company or other similar transaction or event.
(d) Each grant or sale shall provide that, during the period for which such substantial risk of forfeiture is to continue, the transferability of the Restricted Shares shall be prohibited or restricted in the manner and to the extent prescribed by the Committee on the Date of Grant. Such restrictions may include without limitation rights of repurchase or first refusal in the
6
Company or provisions subjecting the Restricted Shares to a continuing substantial risk of forfeiture in the hands of any transferee.
(e) Any grant or sale may require that any or all dividends or other distributions paid on the Restricted Shares during the period of such restrictions be automatically sequestered and reinvested on an immediate or deferred basis in additional Common Shares, which may be subject to the same restrictions as the underlying award or such other restrictions as the Committee may determine.
(f) Each grant or sale shall be evidenced by an agreement, which shall be executed on behalf of the Company by an officer thereof and delivered to and accepted by the Participant and shall contain such terms and provisions as the Committee may determine consistent with this Plan. Unless otherwise directed by the Committee, all certificates representing Restricted Shares, together with a stock power that shall be endorsed in blank by the Participant with respect to the Restricted Shares, shall be held in custody by the Company until all restrictions thereon lapse.
7. Transferability.
(a) No Option Right, Appreciation Right or other derivative security (as that term is used in Rule 16b-3) granted under this Plan may be transferred by a Participant except by will or the laws of descent and distribution. Option Rights and Appreciation Rights granted under this Plan may not be exercised during a Participants lifetime except by the Participant or, in the event of the Participants legal incapacity, by his guardian or legal representative acting in a fiduciary capacity on behalf of the Participant under state law and court supervision. Notwithstanding the foregoing, the Committee, in its sole discretion, may provide for the transferability of particular awards under this Plan so long as such provisions will not disqualify the exemption for other awards under Rule 16b-3, if such Rule is then applicable to awards under the Plan.
(b) Any grant made under this Plan may provide that all or any part of the Common Shares that are to be issued or transferred by the Company upon the exercise of Option Rights or Appreciation Rights, or are no longer subject to the substantial risk of forfeiture and restrictions on transfer referred to in Section 6 of this Plan, shall be subject to further restrictions upon transfer.
8. Adjustments.
(a) The Committee may make or provide for such adjustments in the number of Common Shares covered by outstanding Option Rights, Appreciation Rights and Restricted Shares granted hereunder, the Option Prices per Common Share or Base Prices per Common Share applicable to any such Option Rights and Appreciation Rights, and the kind of shares (including shares of another issuer) covered thereby, as the Committee may in good faith determine to be equitably required in order to prevent dilution or expansion of the rights of Participants that otherwise would result from (i) any stock dividend, stock split, combination of shares, recapitalization or similar change in the capital structure of the Company or (ii) any merger, consolidation, spin-off, spin-out, split-off, split-up,
7
reorganization, partial or complete liquidation or other distribution of assets, issuance of warrants or other rights to purchase securities or any other corporate transaction or event having an effect similar to any of the foregoing. In the event of any such transaction or event, the Committee may provide in substitution for any or all outstanding awards under this Plan such alternative consideration as it may in good faith determine to be equitable under the circumstances and may require in connection therewith the surrender of all awards so replaced. Moreover, the Committee may on or after the Date of Grant provide in the agreement evidencing any award under this Plan that the holder of the award may elect to receive an equivalent award in respect of securities of the surviving entity of any merger, consolidation or other transaction or event having a similar effect, or the Committee may provide that the holder will automatically be entitled to receive such an equivalent award. The Committee may also make or provide for such adjustments in the maximum numbers of Common Shares specified in Section 3 of this Plan as the Committee may in good faith determine to be appropriate in order to reflect any transaction or event described in this Section 8.
(b) If another corporation is merged into the Company or the Company otherwise acquires another corporation, the Committee may elect to assume under this Plan any or all outstanding stock options or other awards granted by such corporation under any stock option or other plan adopted by it prior to such acquisition. Such assumptions shall be on such terms and conditions as the Committee may determine; provided, however, that the awards as so assumed do not contain any terms, conditions or rights that are inconsistent with the terms of this Plan. Unless otherwise determined by the Committee, such awards shall not be taken into account for purposes of the limitations contained in Section 3 of this Plan.
9. Fractional Shares. The Company shall not be required to issue any fractional Common Shares pursuant to this Plan. The Committee may provide for the elimination of fractional Common Shares or for the settlement thereof in cash.
10. Withholding Taxes. To the extent that the Company or any Subsidiary is required to withhold federal, state, local or foreign taxes in connection with any payment made or benefit realized by a Participant or other person under this Plan, and the amounts available to the Company or such Subsidiary for the withholding are insufficient, it shall be a condition to the receipt of any such payment or the realization of any such benefit that the Participant or such other person make arrangements satisfactory to the Company or such Subsidiary for payment of the balance of any taxes required to be withheld. At the discretion of the Committee, any such arrangements may without limitation include voluntary or mandatory relinquishment of a portion of any such payment or benefit or the surrender of outstanding Common Shares. The Company or such Subsidiary and any Participant or such other person may also make similar arrangements with respect to the payment of any taxes with respect to which withholding is not required.
11. Certain Terminations of Employment or Service, Hardship, and Approved Leaves of Absence. Notwithstanding any other provision of this Plan to the contrary, in the event of the termination of employment or service by reason of death, disability or retirement, termination of employment or service to enter public or military service with the consent of the Company or any Subsidiary, or leave of absence approved by the Company or such Subsidiary, or in the event of the
8
hardship or other special circumstances, of a Participant who holds an Option Right or Appreciation Right that is not immediately and fully exercisable, or any Restricted Shares as to which the substantial risk of forfeiture or the prohibition or restriction on transfer has not lapsed, the Committee may take any action that it deems to be equitable under the circumstances or in the best interests of the Company or such Subsidiary, including without limitation waiving or modifying any limitation or requirement with respect to any award under this Plan.
12. Administration of the Plan.
(a) This Plan shall be administered by the Committee which shall be composed of not less than two members of the Board, or, in the absence of the Committee, by the full Board. At any time that awards under the Plan are subject to Rule 16b-3, each member of the Committee shall be a non-employee director within the meaning of Rule 16b-3. In addition, at any time that the Company is subject to Section 162(m) of the Code, each member of the Committee shall be an outside director within the meaning of Section 162(m) of the Code. A majority of the Committee shall constitute a quorum, and the acts of the members of the Committee who are present at any meeting thereof at which a quorum is present, or acts unanimously approved by the members of the Committee in writing, shall be the acts of the Committee.
(b) The interpretation and construction by the Committee of any provision of this Plan or any agreement, notification or document evidencing the grant of Option Rights, Appreciation Rights or Restricted Shares, and any determination by the Committee pursuant to any provision of this Plan or any such agreement, notification or document, shall be final and conclusive. No member of the Committee shall be liable for any such action taken or determination made in good faith.
13. Amendments and Other Matters.
(a) This Plan may be amended from time to time by the Committee; provided, however, that except as expressly authorized by this Plan, no such amendment shall cause this Plan to cease to satisfy any applicable condition of Rule 16b-3 or cause any award under the Plan to cease to qualify for any applicable exception to Section 162(m) of the Code, without the further approval of the stockholders of the Company.
(b) With the concurrence of the affected Participant, the Committee may cancel any agreement evidencing Option Rights or any other award granted under this Plan. In the event of any such cancellation, the Committee may authorize the granting of new Option Rights or other awards hereunder, which may or may not cover the same number of Common Shares as had been covered by the cancelled Option Rights or other award, at such Option Price, in such manner and subject to such other terms, conditions and discretion as would have been permitted under this Plan had the cancelled Option Rights or other award not been granted.
(c) The Committee may condition the grant of any award or combination of awards authorized under this Plan on the surrender or deferral by the Participant of his or her right to
9
receive a cash bonus or other compensation otherwise payable by the Company, any Subsidiary or any Advisor to the Participant.
(d) This Plan shall not confer upon any Participant any right with respect to continuance of employment or other service with the Company or any Subsidiary and shall not interfere in any way with any right that the Company or such Subsidiary would otherwise have to terminate any Participants employment or other service at any time.
(e) To the extent that any provision of this Plan would prevent any Option Right that was intended to qualify as a Tax-qualified Option from so qualifying, any such provision shall be null and void with respect to any such Option Right; provided, however, that any such provision shall remain in effect with respect to other Option Rights, and there shall be no further effect on any provision of this Plan.
(f) Any award that may be made pursuant to an amendment to this Plan that shall have been adopted without the approval of the stockholders of the Company shall be null and void if it is subsequently determined that such approval was required under the terms of the Plan or applicable law.
(g) Unless otherwise determined by the Committee, this Plan is intended to comply with Rule 16b-3 at all times that awards hereunder are subject to such Rule.
(h) Notwithstanding any provision of the Plan to the contrary, no amendment may be made to an award of Option Rights to adjust the Option Price per Common Share, unless such adjustment occurs pursuant to the adjustment provisions of Section 8, and no award of Option Rights may be cancelled and re-granted to effect a re-pricing.
10
Exhibit 5
DLA Piper Rudnick Gray Cary US LLP
4700 Six Forks Road, Suite 200
Raleigh, North Carolina 27609
May 19, 2005
LaSalle Hotel Properties
3 Bethesda Metro Center, Suite 1200
Bethesda, Maryland 20814
Re: Form S-8 Registration Statement 1998 Share Option and Incentive Plan
Ladies and Gentlemen:
We, as counsel to LaSalle Hotel Properties, a Maryland real estate investment trust (the Company), hereby provide this opinion in connection with the preparation and filing on May 19, 2005, with the Securities and Exchange Commission (the Commission) of a registration statement on Form S-8 (the Registration Statement) registering 900,000 shares of common stock, par value $0.01 per share (the Shares), all of which are issuable pursuant to the exercise of options and other awards granted under the LaSalle Hotel Properties 1998 Share Option and Incentive Plan (the Plan). This opinion letter is rendered pursuant to Item 8 of Form S-8 and Item 601(b)(5) of Regulation S-K.
We have examined copies of the Companys Articles of Amendment and Restatement of Declaration of Trust (the Declaration of Trust), the Companys Amended and Restated Bylaws, the Plan, the corporate action taken by the Company that provides for the issuance or delivery of the Shares to be issued or delivered under the Plan, and such other materials and matters as we have deemed necessary for the issuance of this opinion. In our examination, we have assumed the genuineness of all signatures and the conformity to original documents of all copies submitted to us. As to various questions of fact material to this opinion, we have relied on statements and certificates of officers and representatives of the Company and others.
Based on the foregoing, it is our opinion that the Shares have been duly authorized, and upon the issuance and delivery of the Shares in the manner contemplated by the Plan, and assuming the Company completes all actions and proceedings required on its part to be taken prior to the issuance and delivery of the Shares pursuant to the terms of the Plan, including, without limitation, collection of required payment for the Shares, the Shares will be validly issued, fully paid and nonassessable.
Our opinion set forth above is subject to the following general qualifications and assumptions:
1. | The foregoing opinion is rendered as of the date hereof. We assume no obligation to update or supplement this opinion if any laws change after the date hereof or if any facts or circumstances come to our attention after the date hereof that might change this opinion. |
2. | We have made no investigation as to, and we express no opinion concerning, any laws other than the Maryland REIT Law, applicable provisions of the Constitution of the State of Maryland and reported judicial decisions interpreting such REIT Law and Constitution, and we do not express any opinion herein concerning any other laws. |
3. | We express no opinion as to compliance with the securities or blue sky laws or principles of conflicts of laws of Maryland or any other jurisdiction. |
4. | We assume that the issuance of the Shares, together with any other outstanding common shares, will not cause the Company to issue common shares in excess of the number of such shares authorized by the Declaration of Trust. |
5. | We assume that the Shares will not be issued in violation of any restriction or limitation contained in Article VII of the Declaration of Trust. |
6. | This opinion is limited to the matters set forth herein, and no other opinion should be inferred beyond the matters expressly stated. |
We hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement and to the use of our name wherever appearing in the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ DLA PIPER RUDNICK GRAY CARY US LLP
Exhibit 23(b)
[KPMG LOGO APPEARS HERE]
Consent of Independent Registered Public Accounting Firm
The Shareholders and Board of Trustees
LaSalle Hotel Properties:
We consent to the use of our reports dated February 23, 2005, with respect to the consolidated balance sheets of LaSalle Hotel Properties as of December 31, 2004 and 2003, and the related consolidated statements of operations, shareholders equity, and cash flows for each of the years in the three-year period ended December 31, 2004, and the related financial statement schedule, managements assessment of the effectiveness of internal control over financial reporting as of December 31, 2004, and the effectiveness of internal control over financial reporting as of December 31, 2004, incorporated herein by reference and to the reference to our firm under the heading Experts in the prospectus.
/s/ KPMG LLP
Chicago, Illinois
May 13, 2005
Exhibit 23(c)
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) for the registration of 900,000 common shares of beneficial interest of LaSalle Hotel Properties of our report dated May 6, 2004 with respect to the financial statements of LNR Alexandria Limited Partnership, included in the Form 8-K/A of LaSalle Hotel Properties dated June 30, 2004, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Memphis, Tennessee
May 16, 2005
Exhibit 23(d)
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statements (Form S-3 No. 333-104054, Form S-3 No. 333-51476, Form S-3 No. 333-44872, Form S-3 No. 333-77371, Form S-3 No. 333-76373, the current registration statement on Form S-3, Form S-8 No. 333-104056, Form S-8 No. 333-86911, Form S-8 No. 333-72265 and the current registration statement on Form S-8 of LaSalle Hotel Properties of our report dated January 22, 2004 with respect to the financial statements of Convention Hotel Partners, LLC, included in the Current Report on Form 8-K/A of LaSalle Hotel Properties dated March 3, 2004 and to the reference to our firm under the heading experts in the current registration statement.
/s/ Crowe Chizek and Company LLC
Oakbrook, Illinois
May 18, 2005