-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RivQUmATmmx08Ve5hDcpN4h9iohKS2Goxla0MeI7xbQYYAntl1NCLye8Oz1GwXxR xV0Z0vqWMVI6aHvG9VvYsw== 0000950131-97-002736.txt : 19970424 0000950131-97-002736.hdr.sgml : 19970424 ACCESSION NUMBER: 0000950131-97-002736 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19970422 EFFECTIVENESS DATE: 19970422 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: EXTENDED STAY AMERICA INC CENTRAL INDEX KEY: 0001002579 STANDARD INDUSTRIAL CLASSIFICATION: HOTELS & MOTELS [7011] IRS NUMBER: 363996573 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-25639 FILM NUMBER: 97585338 BUSINESS ADDRESS: STREET 1: 450 E LAS OLAS BLVD STREET 2: STE 1100 CITY: FORT LAUDERDALE STATE: FL ZIP: 33301 BUSINESS PHONE: 9547131600 MAIL ADDRESS: STREET 1: 450 E LAS OLAS BLVD STREET 2: STE 1100 CITY: FORT LAUDERDALE STATE: FL ZIP: 33301 S-8 1 FORM S-8 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 22, 1997 REGISTRATION NO. 333- - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------- EXTENDED STAY AMERICA, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 36-3996573 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION INCORPORATION OR ORGANIZATION) NUMBER) 450 EAST LAS OLAS BOULEVARD FT. LAUDERDALE, FLORIDA 33301 (ADDRESS OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) ---------------- STUDIO PLUS HOTELS, INC. 1995 STOCK INCENTIVE PLAN; AND STUDIO PLUS HOTELS, INC. 1995 NON-EMPLOYEE DIRECTORS' STOCK INCENTIVE PLAN (FULL TITLE OF THE PLANS) ---------------- COPIES TO: ROBERT A. BRANNON D. MARK MCMILLAN, ESQ. SENIOR VICE PRESIDENT, CHIEF FINANCIAL BELL, BOYD & LLOYD OFFICER, SECRETARY AND TREASURER 70 WEST MADISON STREET EXTENDED STAY AMERICA, INC. CHICAGO, ILLINOIS 60602 450 EAST LAS OLAS BOULEVARD (312) 372-1121 FT. LAUDERDALE, FLORIDA 33301 (954) 713-1600 (NAME, ADDRESS, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ---------------- CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------- - -------------------------------------------------------------------------------
PROPOSED PROPOSED AMOUNT MAXIMUM MAXIMUM AMOUNT OF TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION SECURITIES TO BE REGISTERED REGISTERED (1) PER UNIT (2) OFFERING PRICE FEE - ---------------------------------------------------------------------------------------------- Common Stock, par value $.01 per 1,316,252 share........................... Shares $10.96 $14,426,121.92 $4,371.56 - ----------------------------------------------------------------------------------------------
(1) This registration statement also covers an indeterminate number of shares of Common Stock which may be issuable under the antidilution and other adjustment provisions of the respective plans pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the "Securities Act"). (2) This amount reflects an aggregate of 1,316,252 shares of Common Stock which are issuable pursuant to options granted at a weighted average exercise price of $10.96 per share under the following plans: the Studio Plus Hotels, Inc. 1995 Stock Incentive Plan -- 1,242,620 shares; the Studio Plus Hotels, Inc. 1995 Non-Employee Directors' Stock Incentive Plan -- 73,632 shares. - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS ITEM 1. PLAN INFORMATION. Not required to be included herewith. ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. Not required to be included herewith. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. DOCUMENTS INCORPORATED BY REFERENCE. This registration statement on Form S-8 relates to the registration of shares of common stock of Extended Stay America, Inc. (the "Company"), par value $.01 per share (the "Common Stock"). The Company incorporates herein by reference the following documents heretofore filed by the Company with the Securities and Exchange Commission: (1) The Company's Annual Report on Form 10-K for the year ended December 31, 1996; (2) The Company's Current Reports on Form 8-K dated January 16, 1997 (as amended on Form 8-K/A dated January 16, 1997) and February 5, 1997; and (3) The description of the Company's Common Stock set forth under the caption "Description of Capital Stock" in the Company's registration statement on Form S-1 (Reg. No. 33-98452), which description is incorporated by reference in the Company's registration statement on Form 8-A filed on December 8, 1995 for the registration of the Common Stock under Section 12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), including all amendments thereto. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a post- effective amendment to this registration statement which indicates that all of the securities offered hereby have been sold or which deregisters all of such securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. Any statement, including financial statements, 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 4. DESCRIPTION OF SECURITIES. Inapplicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Inapplicable. 2 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the General Corporation Law of Delaware authorizes the Company to indemnify its directors and officers under specified circumstances. The Restated Certificate of Incorporation and Bylaws of the Company provide that the Company shall indemnify, to the extent permitted by Delaware law, its directors and officers (and may indemnify its employees and agents) against liabilities (including expenses, judgments, and settlements) incurred by them in connection with any actual or threatened action, suit, or proceeding to which they are or may become parties and which arises out of their status as directors, officers, or employees. The Company's Restated Certificate of Incorporation and Bylaws eliminate, to the fullest extent permitted by Delaware law, liability of a director to the Company or its stockholders for monetary damages for a breach of such director's fiduciary duty of care except for liability where a director (a) breaches his or her duty of loyalty to the Company or its stockholders, (b) fails to act in good faith or engages in intentional misconduct or knowing violation of law, (c) authorizes payment of an illegal dividend or stock repurchase, or (d) obtains an improper personal benefit. While liability for monetary damages has been eliminated, equitable remedies such as injunctive relief or rescission remain available. In addition, a director is not relieved of his or her responsibilities under any other law, including the federal securities laws. The directors and officers of the Company are insured within the limits and subject to the limitations of the policies, against certain expenses in connection with the defense of actions, suits, or proceedings and certain liabilities which might be imposed as a result of such actions, suits, or proceedings, to which they are parties by reason of being or having been such directors or officers. Insofar as indemnification by the Company for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling persons of the Company pursuant to the foregoing provisions, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore unenforceable. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Inapplicable. ITEM 8. EXHIBITS The exhibits to this registration statement are listed in the Exhibit Index, which appears elsewhere herein and is hereby incorporated by reference. ITEM 9. UNDERTAKINGS (a) The Company hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; 3 (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Company pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this 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 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)-(g) Inapplicable. (h) 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 Securities and Exchange 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. (i)-(j) Inapplicable. 4 SIGNATURES PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE COMPANY 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 FT. LAUDERDALE, STATE OF FLORIDA, ON APRIL 18, 1997. Extended Stay America, Inc. /s/ George D. Johnson, Jr. By: _________________________________ George D. Johnson, Jr. President and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below hereby appoints George D. Johnson, Jr. and Robert A. Brannon, and each of them severally, acting alone and without the other, his true and lawful attorney-in-fact with authority to execute in the name of each such person and to file with the Securities and Exchange Commission, together with any exhibits thereto and other documents therewith, any and all amendments (including post-effective amendments) to this registration statement necessary or advisable to enable the Registrant to comply with the Securities Act of 1933, as amended, and any rules, regulations, and requirements of the Securities and Exchange Commission in respect thereof, which amendments may make such other changes in the registration statement as the aforesaid attorney-in-fact executing the same deems appropriate. PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED ON APRIL 18, 1997.
SIGNATURE TITLE --------- ----- PRINCIPAL EXECUTIVE OFFICER: /s/ George D. Johnson, Jr. President and Chief Executive Officer ___________________________________________ George D. Johnson, Jr. PRINCIPAL FINANCIAL OFFICER: /s/ Robert A. Brannon Senior Vice President, Chief Financial ___________________________________________ Officer, Secretary, and Treasurer Robert A. Brannon PRINCIPAL ACCOUNTING OFFICER: /s/ Gregory R. Moxley Vice President and Controller ___________________________________________ Gregory R. Moxley
5
SIGNATURE TITLE --------- ----- A MAJORITY OF THE DIRECTORS: /s/ H. Wayne Huizenga Director ___________________________________________ H. Wayne Huizenga Director ___________________________________________ Donald F. Flynn /s/ George D. Johnson, Jr. Director ___________________________________________ George D. Johnson, Jr. /s/ Stewart H. Johnson Director ___________________________________________ Stewart H. Johnson /s/ John J. Melk Director ___________________________________________ John J. Melk /s/ Peer Pedersen Director ___________________________________________ Peer Pedersen
6 EXTENDED STAY AMERICA, INC. EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT ------- ---------------------- 4.1 Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Company's Registration Statement on Form S-1, Registration No. 33-98452) 4.2 Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Company's Registration Statement on Form S-1, Registration No. 33-98452) 4.3 Specimen certificate representing shares of Common Stock (incorporated by reference to Exhibit 4.1 to the Company's Registration Statement on Form S-1, Registration No. 33-98452) 4.4 Studio Plus Hotels, Inc. 1995 Stock Incentive Plan (incorporated by reference to Exhibit 4.3 to Studio Plus Hotels, Inc.'s ("Studio Plus") Registration Statement on Form S-8, Registration No. 333-09907) 4.5 Studio Plus Hotels, Inc. 1995 Non-Employee Directors' Stock Incentive Plan (incorporated by reference to Exhibit 4.3 to Studio Plus' Registration Statement on Form S-8, Registration No. 333-09923) 4.6 Form of Option Notice and Assumption Agreement between the Company, Studio Plus, and approximately 35 option holders (the "Studio Plus Option Holders") entered into in April 1997 4.7(a) Form of Stock Option Agreement between the Company and certain of the Studio Plus Option Holders 4.7(b) Form of Incentive Stock Option Agreement between the Company and certain of the Studio Plus Option Holders 4.7(c) Form of Non-Employee Director Stock Option Agreement between the Company and certain of the Studio Plus Option Holders 5.1 Opinion of Bell, Boyd & Lloyd 23.1 Consent of Coopers & Lybrand L.L.P. 23.2 Consent of Bell, Boyd & Lloyd (contained in Exhibit 5.1) 24.1 Power of Attorney (included on the signature page of this registration statement)
7 EX-4.6 2 FORM OF OPTION NOTICE & ASSUMPTION AGREEMENT EXHIBIT 4.6 OPTION NOTICE AND ASSUMPTION AGREEMENT -------------------------------------- THIS OPTION NOTICE AND ASSUMPTION AGREEMENT (this "Agreement") is made and entered into as of this ____ day of ___________, 1997, by and among Extended Stay America, Inc., a Delaware corporation ("Purchaser"), Studio Plus Hotels, Inc., a Virginia corporation ("Target"), and each of the Option Holders of Target listed on Exhibit A hereto (each, an "Option Holder" and collectively, the "Option Holders"). W I T N E S S E T H ------------------- WHEREAS, Purchaser, ESA Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Purchaser ("Sub"), and Target have entered into that certain Agreement and Plan of Merger, dated as of January 16, 1997 (the "Merger Agreement"); WHEREAS, pursuant to the Merger Agreement, Purchaser will acquire Target through the merger of Target with and into Sub (the "Merger"); WHEREAS, immediately prior to the Merger, each of the Option Holders was an employee or director of Target; WHEREAS, Target previously granted to each Option Holder stock options (the "Old Options") to purchase shares of common stock, $.01 par value per share, of Target ("Target Common Stock") which are evidenced, as applicable, by an Option Agreement, in the form attached hereto as Exhibit B (the "Old Option Agreements"); WHEREAS, pursuant to the Merger Agreement, Purchaser will assume at the Effective Time all of Target's rights and obligations under each of the Old Option Agreements and shall substitute therefor stock options (the "New Options") to purchase shares of common stock, par value $.01 per share, of Purchaser (the "Purchaser Common Stock"); WHEREAS, the New Options shall be evidenced by, and shall be subject to the terms and conditions of, the option agreement in the form of Exhibit C hereto (the "New Option Agreement"); WHEREAS, in accordance with the terms of the Merger Agreement, Purchaser wishes to issue the New Options to Option Holders in substitution for the Old Options at the Effective Time; and WHEREAS, in connection with the Merger and to induce Purchaser to consummate the transactions contemplated by the Merger Agreement and to grant to each of the Option Holders the New Options, each of the Option Holders wishes to exchange the Old Options for the New Options at the Effective Time in accordance with the terms hereof. NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows: Section 1. Definitions. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement. Section 2. Exchange of Options; Termination. 2.1. Exchange. On the Effective Time or as soon thereafter as is reasonably practicable, Purchaser shall issue, execute and deliver to each of the Option Holders a New Option Agreement and each of the Option Holders shall deliver to Purchaser the Old Option Agreement in exchange therefor. Target and each of the Option Holders hereby agrees with Purchaser that following such exchange the Old Option Agreement, the Old Options granted thereunder and any and all other options, warrants and rights of such Option Holder to acquire Target capital stock or other securities of Target shall terminate and be of no further force or effect and no party thereto or beneficiary thereunder shall therefor have any further rights or obligations of any nature whatsoever thereunder or in respect thereto. 2.2. Termination. Each Option Holder hereby acknowledges and agrees that the receipt of the New Options and the New Option Agreement on the Effective Time in accordance with the provisions hereof shall constitute full satisfaction and discharge of all rights of each Option Holder and any obligations whatsoever of Target and Purchaser in respect of the Old Options and the Old Option Agreement. Each Option Holder hereby further acknowledges that (a) he has read this Agreement and all Exhibits hereto, understands the contents hereof and thereof and has signed this Agreement of his own free will, and (b) he understands that Purchaser and Target will rely on this Agreement in connection with the consummation of the transactions contemplated by the Merger Agreement. 2.3. New Option Shares and Exercise Price. Each Option Holder hereby acknowledges that the New Options shall evidence the right to purchase the number of shares of Purchaser Common Stock equal to the product (rounded up to the next whole number) of (a) the number of shares of Target Common Stock covered by the Old Options immediately prior to the Effective Time, multiplied by (b) the Exchange Ratio. Each Option Holder hereby further acknowledges that the exercise price of such New Options shall be equal to the quotient obtained by dividing (a) the per share exercise price for shares of Target Common Stock subject to the Old Options immediately prior to the Effective Time, by (b) the Exchange Ratio. Section 3. Representations and Warranties of Purchaser. Purchaser represents and warrants to Option Holder as follows: 3.1. Corporate Existence and Power. Purchaser is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has full corporate power and authority to execute, deliver and perform this Agreement and the New Option Agreement and to issue the New Options. 3.2. Authority. The execution, delivery and performance of this Agreement and the New Option Agreement and the issuance and delivery of the New Options have been duly and validly authorized by all necessary corporate action. 3.3. Binding Effect. This Agreement has been, and upon execution thereof in accordance with the terms and provisions hereof the New Option Agreement will be, duly executed and delivered by Purchaser and constitute the valid and binding agreements of Purchaser, enforceable against Purchaser in accordance with their respective terms, subject to applicable bankruptcy, insolvency and other similar laws affecting the enforceability of creditors' rights generally, general equitable principles and the discretion of courts in granting equitable remedies. 3.4. Registration. Purchaser shall, within thirty days following the Effective Time, cause the shares of Purchaser Common Stock issuable upon exercise of the New Options to be covered by a Registration Statement on Form S- 8 filed with the Securities and Exchange Commission and to be registered or exempted from the registration requirements of all applicable state securities laws, rules and regulations. Section 4. Representations and Warranties of Option Holder. Option Holder represents and warrants to Purchaser as follows: 4.1. Authority. Option Holder has full right, power, authority and capacity to enter into this Agreement and to relinquish all of his rights in respect of the Old Options and under the Old Option Agreement in accordance with the terms and provisions hereof. 4.2. Binding Effect. This Agreement has been duly executed and delivered by Option Holder, and, upon consummation of the transactions contemplated hereby, Option Holder shall have relinquished all of his rights in respect of the Old Options and under the Old Option Agreement, and this Agreement constitutes the valid and binding agreement of Option Holder, enforceable against Option Holder in accordance with its terms, subject to applicable bankruptcy, insolvency and other similar laws affecting the enforceability of creditors' rights generally, general equitable principles and the discretion of courts in granting equitable remedies. Section 5. Miscellaneous. 5.1. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to Delaware's conflict of law rules. 5.2. Binding Effect. This Agreement shall be binding on and inure to the benefit of Purchaser, Target and the Option Holders and their respective successors, assigns, heirs, executors and legal representatives. 5.3. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. This Agreement shall be valid, binding and enforceable against each Option Holder who shall have executed this Agreement. 5.4. Entire Agreement. This Agreement is intended by the parties hereto to be their complete agreement with respect to the subject matter hereof, and this Agreement supersedes any prior agreements or understandings (oral or written) with respect to the subject matter hereof between the parties hereto. 5.5. Specific Performance. The parties hereto each acknowledge that the rights of each party to performance of the covenants and agreements herein are special, unique and of extraordinary character, and that, in the event that any party violates or fails or refuses to perform any covenant or agreement made by it herein, the non-breaching party may be without an adequate remedy at law. The parties each agree, therefore, that in the event that either party violates or fails or refuses to perform any covenant or agreement made by such party herein, the non-breaching party or parties may, subject to the terms of this Agreement and in addition to any remedies at law for damages or other relief, institute and prosecute an action in any court of competent jurisdiction to enforce specific performance of such covenant or agreement or seek any other equitable relief. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. EXTENDED STAY AMERICA, INC. By:..................................... Title:.................................. STUDIO PLUS HOTELS, INC. By:..................................... Title:.................................. OPTION HOLDERS: ..................................... ..................................... ..................................... ..................................... ..................................... ..................................... ..................................... EX-4.7(A) 3 FORM OF STOCK OPTION AGREEMENT EXHIBIT 4.7(a) EXTENDED STAY AMERICA, INC. STOCK OPTION AGREEMENT (covering shares previously granted by Studio Plus Hotels, Inc.) No. of shares subject to Option: ((Field1)) THIS AGREEMENT dated this ___ day of __________, 1997, between EXTENDED STAY AMERICA, INC., a Delaware corporation (the "Company"), and ((Field2)) ("Participant"), is made pursuant and subject to the provisions of the 1995 Stock Incentive Plan (the "Plan") of Studio Plus Hotels, Inc. ("Studio Plus"), a copy of which is attached. All terms used herein that are defined in the Plan have the same meaning given them in the Plan. 1. Grant of Option. Pursuant to the Plan, Studio Plus (which was merged (the "Merger") with and into ESA Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of the Company ("Merger Sub") pursuant to an Agreement and Plan of Merger dated as of January 16, 1997 by and among the Company, Merger Sub, and Studio Plus (the "Merger Agreement")), on ((Field3)) (the "Date of Grant") granted to Participant, subject to the terms and conditions of the Plan and subject further to the terms and conditions set forth in a Stock Option Agreement between Studio Plus and the Participant, the right and option (the "Studio Plus Option") to purchase from Studio Plus all or any part of an aggregate of ((Field4)) shares of common stock, par value $.01 per share of Studio Plus at the option price of ((Field5)) per share, being not less than the Fair Market Value of such shares on the Date of Grant. The Studio Plus Option was not intended to be an "incentive stock option" within the meaning of Section 422 of the Code. The Company Option (as defined below) is exercisable as hereinafter provided and the Company Option is also not intended to be an incentive stock option within the meaning of Section 422 of the Code. 2. Conversion of Option. Pursuant to the terms of the Option Notice and Assumption Agreement by and among the Company, Studio Plus, and each of the participants in the Plan, as of the Effective Time (as defined in the Merger Agreement), each outstanding Studio Plus Option shall be assumed by the Company in such manner that each such Studio Plus Option shall be converted (the "Conversion") into an option (the "Company Option") to purchase shares of common stock, par value $.01 per share, of the Company ("Company Common Stock"). At the Effective Time, the Participant's Studio Plus Option will be converted into a Company Option to purchase ((Field1)) shares of Company Common Stock (the "Company Shares") at the option price of ((Field6)) (the "Company Option Price") and such Company Option shall be immediately and fully exercisable, subject to the terms and conditions herein, for all of the Company Shares at the Company Option Price. 3. Terms and Conditions. The Company Option is subject to the following terms and conditions: (a) Expiration Date. The Company Option shall expire ten years from the Date of Grant of the Studio Plus Option (the "Expiration Date"). (b) Exercise of Option. The Company Option shall be exercisable at the Effective Time with respect to all of the shares of Company Common Stock subject to this Company Option if Participant is employed by the Company or an Affiliate on that date. The Company Option shall continue to be exercisable until the termination of Participant's rights hereunder pursuant to paragraph 4, 5, or 6 or until the Expiration Date. A partial exercise of the Company Option shall not affect Participant's right to exercise this Option with respect to the remaining shares, subject to the conditions of the Plan and this Agreement. (c) Method of Exercising Option and Payment for Shares. The Company Option shall be exercised by written notice delivered to the attention of the Company's Secretary at the Company's principal office in Ft. Lauderdale, Florida. The exercise date shall be (i) in the case of notice by mail, the date of postmark, or (ii) if delivered in person, the date of delivery. Such notice shall be accompanied by (i) payment of the option price in full, in cash or cash equivalent acceptable to the Company, or by the surrender of shares of Company Common Stock with an aggregate Fair Market Value (determined as of the day preceding the exercise date) which, together with any cash or cash equivalent paid, is not less than the option price for the number of shares for which the Company Option is being exercised and (ii) payment of any income and employment tax withholding obligation resulting from the Option's exercise, in cash or cash equivalent acceptable to the Company. (d) Nontransferability. The Company Option may not be transferred, except by will or by the laws of descent and distribution. During Participant's lifetime, this Option may be exercised only by Participant. 4. Exercise in the Event of Death. Participant's estate or such persons may exercise the Company Option within one year of Participant's death or during the remainder of the period preceding the Expiration Date, whichever is shorter. 5. Exercise in the Event of Permanent and Total Disability. In the event Participant becomes permanently and totally disabled within the meaning of Section 22(e)(3) of the Code ("Permanently and Totally Disabled") before the Expiration Date, the Participant may exercise the Company Option within one year of the date he or she ceases to be employed by the Company or an Affiliate as a result of his or her becoming Permanently and Totally Disabled or during the period preceding the Expiration Date, whichever is shorter. 6. Exercise After Termination of Employment. Upon the termination of Participant's employment with the Company or an Affiliate (except under circumstances described in paragraphs 4 and 5), the Participant may exercise the Company Option within six months following the date of his or her termination of employment with the Company or an Affiliate or during the remainder of the period preceding the Expiration Date, whichever is shorter. 2 7. Employment with Successors. For purposes of this Agreement, employment with a successor of the Company or an Affiliate shall be deemed employment with the Company or an Affiliate, respectively. 8. Notice. Any notice or other communication given pursuant to this Agreement shall be in writing and shall be personally delivered or mailed by United States registered or certified mail, postage prepaid, return receipt requested, to the following addresses: If to the Company: Extended Stay America, Inc. 450 E. Las Olas Boulevard, Suite 1100 Ft. Lauderdale, Florida 33301 If to Participant: ((Field2)) ((Field7)) Any such notice shall be deemed to have been given (a) on the date of postmark, in the case of notice by mail, or (b) on the date of delivery, if delivered in person. 9. Fractional Shares. Fractional shares shall not be issuable hereunder, and when any provision hereof may entitle Participant to a fractional share, such fraction shall be disregarded. 10. No Right to Continued Employment. The Company Option does not confer upon Participant any right to continue in the employ of the Company or an Affiliate, nor shall it interfere in any way with the right of the Company or an Affiliate to terminate such employment at any time. 11. Change in Capital Structure. The terms of the Company Option shall be adjusted as the Company determines is equitably required in the event the Company effects one or more stock dividends, stock splits, subdivisions or consolidations of shares or other similar changes in capitalization. 12. Governing Law. This Agreement shall be governed by the laws of the State of Delaware. 13. Conflicts. In the event of any conflict between the provisions of the Plan as in effect on the date hereof (including, without limitation, the provisions of the Plan dealing with exercisability of options upon a Change in Control) and the provisions of this Agreement, the provisions of the Plan shall govern. All references herein to the Plan shall mean the Plan as in effect at the Effective Time. 14. Participant Bound by Plan. Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof. 3 15. Binding Effect. Subject to the limitations stated above and in the Plan, this Agreement shall be binding upon and inure to the benefit of the legatees, distributees, and personal representatives of Participant and the successors of the Company. IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by a duly authorized officer, and Participant has affixed his or her signature hereto. EXTENDED STAY AMERICA, INC. By:____________________________________ _______________________________________ ((Field2)), Participant 4 EX-4.7(B) 4 FORM OF INCENTIVE STOCK OPTION AGREEMENT EXHIBIT 4.7(b) EXTENDED STAY AMERICA, INC. INCENTIVE STOCK OPTION AGREEMENT (covering shares previously granted by Studio Plus Hotels, Inc.) No. of shares subject to Option: ((Field1)) THIS AGREEMENT dated this ___ day of __________, 1997, between EXTENDED STAY AMERICA, INC., a Delaware corporation (the "Company''), and ((Field2)) ("Participant"), is made pursuant and subject to the provisions of the 1995 Stock Incentive Plan (the "Plan") of Studio Plus Hotels, Inc. ("Studio Plus"), a copy of which is attached. All terms used herein that are defined in the Plan have the same meaning given them in the Plan. 1. Grant of Option. Pursuant to the Plan, Studio Plus (which was merged (the "Merger") with and into ESA Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of the Company ("Merger Sub") pursuant to an Agreement and Plan of Merger dated as of January 16, 1997 by and among the Company, Merger Sub, and Studio Plus (the "Merger Agreement")), on ((Field3)) (the "Date of Grant") granted to Participant, subject to the terms and conditions of the Plan and subject further to the terms and conditions set forth in an Incentive Stock Option Agreement between Studio Plus and the Participant, the right and option (the "Studio Plus Option") to purchase from Studio Plus all or any part of an aggregate of ((Field4)) shares of common stock, par value $.01 per share of Studio Plus at the option price of ((Field5)) per share, being not less than the Fair Market Value of such shares on the Date of Grant. The Studio Plus Option was intended to be an "incentive stock option" within the meaning of Section 422 of the Code. The Company Option (as defined below) is exercisable as hereinafter provided and the Company Option is also intended to be an incentive stock option within the meaning of Section 422 of the Code. 2. Conversion of Option. Pursuant to the terms of the Merger Agreement and the Option Notice and Assumption Agreement by and among the Company, Studio Plus, and each of the participants in the Plan, as of the Effective Time (as defined in the Merger Agreement), each outstanding Studio Plus Option shall be assumed by the Company in such manner that each such Studio Plus Option shall be converted into an option (the "Company Option") to purchase shares of common stock, par value $.01 per share, of the Company ("Company Common Stock"). At the Effective Time, the Participant's Studio Plus Option will be converted into a Company Option to purchase ((Field1)) shares of Company Common Stock (the "Company Shares") at the option price of ((Field6)) (the "Company Option Price") and such Company Option shall be immediately and fully exercisable, subject to the terms and conditions herein, for all of the Company Shares at the Company Option Price. 3. Terms and Conditions. The Company Option is subject to the following terms and conditions: (a) Expiration Date. The Company Option shall expire ten years from the Date of Grant of the Studio Plus Option (the "Expiration Date"). (b) Exercise of Option. The Company Option shall be exercisable at the Effective Time with respect to all of the shares of Company Common Stock subject to this Company Option if Participant is employed by the Company or an Affiliate on that date. The Company Option shall continue to be exercisable until the termination of Participant's rights hereunder pursuant to paragraph 4, 5, or 6 or until the Expiration Date. A partial exercise of the Company Option shall not affect Participant's right to exercise this Option with respect to the remaining shares, subject to the conditions of the Plan and this Agreement. (c) Method of Exercising Option and Payment for Shares. The Company Option shall be exercised by written notice delivered to the attention of the Company's Secretary at the Company's principal office in Ft. Lauderdale, Florida. The exercise date shall be (i) in the case of notice by mail, the date of postmark, or (ii) if delivered in person, the date of delivery. Such notice shall be accompanied by payment of the option price in full, in cash or cash equivalent acceptable to the Company, or by the surrender of shares of Company Common Stock with an aggregate Fair Market Value (determined as of the day preceding the exercise date) which, together with any cash or cash equivalent paid, is not less than the option price for the number of shares for which the Company Option is being exercised. (d) Nontransferability. The Company Option may not be transferred, except by will or by the laws of descent and distribution. During Participant's lifetime, this Option may be exercised only by Participant. 4. Exercise in the Event of Death. Participant's estate or such persons may exercise the Company Option within one year of Participant's death or during the remainder of the period preceding the Expiration Date, whichever is shorter. 5. Exercise in the Event of Permanent and Total Disability. In the event Participant becomes permanently and totally disabled within the meaning of Section 22(e)(3) of the Code ("Permanently and Totally Disabled") before the Expiration Date, the Participant may exercise the Company Option within one year of the date he or she ceases to be employed by the Company or an Affiliate as a result of his or her becoming Permanently and Totally Disabled or during the period preceding the Expiration Date, whichever is shorter. 6. Exercise After Termination of Employment. Upon the termination of Participant's employment with the Company or an Affiliate (except under circumstances described in paragraphs 4 and 5), the Participant may exercise the Company Option within six months following the date of his or her termination of employment with the Company or an Affiliate or during the remainder of the period preceding the Expiration Date, whichever is shorter; provided, however, that if Participant exercises this Option more than three months after termination of employment (other than under circumstances described in paragraphs 4 and 5) this Option's intended status as an "incentive stock option" within the meaning of Code section 422 may be lost. 2 7. Employment with Successors. For purposes of this Agreement, employment with a successor of the Company or an Affiliate shall be deemed employment with the Company or an Affiliate, respectively. 8. Notice. Any notice or other communication given pursuant to this Agreement shall be in writing and shall be personally delivered or mailed by United States registered or certified mail, postage prepaid, return receipt requested, to the following addresses: If to the Company: Extended Stay America, Inc. 450 E. Las Olas Boulevard, Suite 1100 Ft. Lauderdale, Florida 33301 If to Participant: ((Field2)) ((Field7)) Any such notice shall be deemed to have been given (a) on the date of postmark, in the case of notice by mail, or (b) on the date of delivery, if delivered in person. 9. Fractional Shares. Fractional shares shall not be issuable hereunder, and when any provision hereof may entitle Participant to a fractional share, such fraction shall be disregarded. 10. No Right to Continued Employment. The Company Option does not confer upon Participant any right to continue in the employ of the Company or an Affiliate, nor shall it interfere in any way with the right of the Company or an Affiliate to terminate such employment at any time. 11. Change in Capital Structure. The terms of the Company Option shall be adjusted as the Company determines is equitably required in the event the Company effects one or more stock dividends, stock splits, subdivisions, or consolidations of shares or other similar changes in capitalization. 12. Governing Law. This Agreement shall be governed by the laws of the State of Delaware. 13. Conflicts. In the event of any conflict between the provisions of the Plan as in effect on the date hereof (including, without limitation, the provisions of the Plan dealing with exercisability of options upon a Change in Control) and the provisions of this Agreement, the provisions of the Plan shall govern. All references herein to the Plan shall mean the Plan as in effect at the Effective Time. 14. Participant Bound by Plan. Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof. 3 15. Binding Effect. Subject to the limitations stated above and in the Plan, this Agreement shall be binding upon and inure to the benefit of the legatees, distributees, and personal representatives of Participant and the successors of the Company. IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by a duly authorized officer, and Participant has affixed his or her signature hereto. EXTENDED STAY AMERICA, INC. BY:____________________________________ _______________________________________ ((Field2)), Participant 4 EX-4.7(C) 5 FORM OF NON-EMPLOYEE DIRECTOR STOCK OPTION AGREEMT EXHIBIT 4.7(c) EXTENDED STAY AMERICA, INC. NON-EMPLOYEE DIRECTOR STOCK OPTION AGREEMENT (covering shares previously granted by Studio Plus Hotels, Inc.) No. of shares subject to Option: ((Field1)) THIS AGREEMENT dated this ___ day of __________, 1997, between EXTENDED STAY AMERICA, INC., a Delaware corporation (the "Company"), and ((Field2)) ("Participant"), is made pursuant and subject to the provisions of the 1995 Non- Employee Directors' Stock Incentive Plan (the "Directors' Plan") of Studio Plus Hotels, Inc. ("Studio Plus"), a copy of which is attached. All terms used herein that are defined in the Directors' Plan have the same meaning given them in the Directors' Plan. 1. Grant of Option. Pursuant to the Directors' Plan, Studio Plus (which was merged (the "Merger") with and into ESA Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of the Company ("Merger Sub") pursuant to an Agreement and Plan of Merger dated as of January 16, 1997 by and among the Company, Merger Sub, and Studio Plus (the "Merger Agreement")), on ((Field3)) (the "Date of Grant") granted to Participant, subject to the terms and conditions of the Directors' Plan and subject further to the terms and conditions set forth in a Non-Employee Director Stock Option Agreement between Studio Plus and the Participant, the right and option (the "Studio Plus Option") to purchase from Studio Plus all or any part of an aggregate of ((Field4)) shares of common stock, par value $.01 per share of Studio Plus at the option price of ((Field5)) per share, being not less than the Fair Market Value of such shares on the Date of Grant. The Studio Plus Option was not intended to be an "incentive stock option" within the meaning of Section 422 of the Code. The Company Option (as defined below) is exercisable as hereinafter provided and the Company Option is also not intended to be an incentive stock option within the meaning of Section 422 of the Code. 2. Conversion of Option. Pursuant to the terms of the Merger Agreement and the Option Notice and Assumption Agreement by and among the Company, Studio Plus, and each of the participants in the Plan, as of the Effective Time (as defined in the Merger Agreement), each outstanding Studio Plus Option shall be assumed by the Company in such manner that each such Studio Plus Option shall be converted into an option (the "Company Option") to purchase shares of common stock, par value $.01 per share, of the Company ("Company Common Stock"). At the Effective Time, the Participant's Studio Plus Option will be converted into a Company Option to purchase ((Field1)) shares of Company Common Stock (the "Company Shares") at the option price of ((Field6)) (the "Company Option Price") and such Company Option shall be immediately and fully exercisable, subject to the terms and conditions herein, for all of the Company Shares at the Company Option Price. 3. Terms and Conditions. The Company Option is subject to the following terms and conditions: (a) Expiration Date. The Company Option shall expire ten years from the Date of Grant of the Studio Plus Option (the "Expiration Date"). (b) Exercise of Option. The Company Option shall be exercisable at the Effective Time with respect to all of the shares of Company Common Stock subject to this Company Option if Participant is employed by the Company or an Affiliate on that date. The Company Option shall continue to be exercisable until the termination of Participant's rights hereunder pursuant to paragraph 4, 5, or 6 or until the Expiration Date. A partial exercise of the Company Option shall not affect Participant's right to exercise this Option with respect to the remaining shares, subject to the conditions of the Directors' Plan and this Agreement. (c) Method of Exercising Option and Payment for Shares. The Company Option shall be exercised by written notice delivered to the attention of the Company's Secretary at the Company's principal office in Ft. Lauderdale, Florida. The exercise date shall be (i) in the case of notice by mail, the date of postmark, or (ii) if delivered in person, the date of delivery. Such notice shall be accompanied by payment of the option price in full, in cash or cash equivalent acceptable to the Company, or by the surrender of shares of Company Common Stock with an aggregate Fair Market Value (determined as of the day preceding the exercise date) which, together with any cash or cash equivalent paid, is not less than the option price for the number of shares for which the Company Option is being exercised. (d) Nontransferability. The Company Option may not be transferred, except by will or by the laws of descent and distribution. During Participant's lifetime, this Option may be exercised only by Participant. 4. Exercise in the Event of Death. Participant's estate or such persons may exercise the Company Option during the remainder of the period preceding the Expiration Date or, if longer, within one year of Participant's death. 5. Exercise in the Event of Disability. In the event Participant ceases to be a member of the Board as a result of a Disability, the Participant may exercise the Company Option during the period preceding the Expiration Date or, if longer, within one year of the date he ceases to be a member of the Board as a result of his Disability. 6. Exercise After Termination of Board Membership. If Participant ceases to be a member of the Board for any reason other than his death or Disability, the Participant may exercise the Company Option within one year following the last date of his Board membership or during the remainder of the period preceding the Expiration Date. 7. Board Membership with Successors. For purposes of this Agreement, membership on the Board of Directors of a successor of the Company shall be deemed membership on the Board. 2 8. Notice. Any notice or other communication given pursuant to this Agreement shall be in writing and shall be personally delivered or mailed by United States registered or certified mail, postage prepaid, return receipt requested, to the following addresses: If to the Company: Extended Stay America, Inc. 450 E. Las Olas Boulevard, Suite 1100 Ft. Lauderdale, Florida 33301 If to Participant: ((Field2)) ((Field7)) Any such notice shall be deemed to have been given (a) on the date of postmark, in the case of notice by mail, or (b) on the date of delivery, if delivered in person. 9. Fractional Shares. Fractional shares shall not be issuable hereunder, and when any provision hereof may entitle Participant to a fractional share, such fraction shall be disregarded. 10. No Right to Board Membership. The Company Option does not confer upon Participant any right to continue as a member of the Board. 11. Change in Capital Structure. The terms of the Company Option shall be adjusted as the Company determines is equitably required in the event the Company effects one or more stock dividends, stock splits, subdivisions or consolidations of shares or other similar changes in capitalization. 12. Governing Law. This Agreement shall be governed by the laws of the State of Delaware. 13. Conflicts. In the event of any conflict between the provisions of the Directors' Plan as in effect on the date hereof (including, without limitation, the provisions of the Directors' Plan dealing with exercisability of options upon a Change in Control) and the provisions of this Agreement, the provisions of the Directors' Plan shall govern. All references herein to the Directors Plan shall mean the Directors' Plan as in effect at the Effective Time. 14. Participant Bound by Directors' Plan. Participant hereby acknowledges receipt of a copy of the Directors' Plan and agrees to be bound by all the terms and provisions thereof. 15. Binding Effect. Subject to the limitations stated above and in the Directors' Plan, this Agreement shall be binding upon and inure to the benefit of the legatees, distributees, and personal representatives of Participant and the successors of the Company. 3 IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by a duly authorized officer, and Participant has affixed his signature hereto. EXTENDED STAY AMERICA, INC. By:____________________________________ _______________________________________ ((Field2)) 4 EX-5.1 6 OPINION OF BELL,BOYD & LLOYD EXHIBIT 5.1 [LETTERHEAD OF BELL, BOYD & LLOYD] April 18, 1997 Extended Stay America, Inc. 450 East Las Olas Boulevard Suite 1100 Ft. Lauderdale, Florida 33301 Extended Stay America, Inc. Studio Plus Hotels, Inc. 1995 Stock Incentive Plan, Studio Plus Hotels, Inc. 1995 Non-Employee Directors' Stock Incentive Plan, Registration Statement on Form S-8 Ladies and Gentlemen: We have acted as counsel to Extended Stay America, Inc., a Delaware corporation (the "Company"), in connection with the preparation, execution, and filing of the registration statement on Form S-8 of the Company (the "Registration Statement"), which covers 1,316,252 shares (the "Shares") of common stock, par value $.01 per share (the "Common Stock"), of the Company offered under the Studio Plus Hotels, Inc. 1995 Stock Incentive Plan and the Studio Plus Hotels, Inc. 1995 Non-Employee Directors' Stock Incentive Plan (collectively, the "Plans"). We have examined originals, or copies certified or otherwise identified to our satisfaction, of the Plans and such other documents, corporate and other records, certificates, and other papers as we deemed it necessary to examine for the purposes of this opinion. Based upon the foregoing, we are of the opinion that: 1. The Company is a corporation duly organized and legally existing under the laws of the State of Delaware. 2. The Company has taken all action necessary to authorize (i) the assumption by the Company of the Plans, (ii) the assumption by the Company of options granted pursuant to the Plans, and (iii) the issuance of shares of its Common Stock in accordance with the Plans and upon the exercise of options granted pursuant to the Plans. 3. The Shares, when issued and paid for in accordance with the Plans and upon the exercise of options granted pursuant to the Plans will, upon such issuance, constitute legally issued, fully paid, and nonassessable shares of Common Stock. We hereby consent to the filing of this Opinion Letter as an exhibit to the Registration Statement for the registration of the Shares under the Securities Act of 1933, as amended. In Extended Stay America, Inc. April 18, 1997 Page 2 giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act of 1933, as amended. Very truly yours, /s/ Bell, Boyd & Lloyd EX-23.1 7 CONSENT OF COOPERS & LYBRAND L.L.P. CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference is this Registration Statement of Extended Stay America, Inc. on Form S-8 of our report dated February 6, 1997, on our audits of the consolidated financial statements of Extended Stay America, Inc. as of December 31, 1996 and 1995, and for the year ended December 31, 1996 and for the period from January 9, 1995 (inception) through December 31, 1995, which report and financial statements are incorporated by reference to the Company's 1996 Annual Report on Form 10-K. Coopers & Lybrand L.L.P. Spartanburg, South Carolina April 17, 1997 -----END PRIVACY-ENHANCED MESSAGE-----