-----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, Ubxh/iuGjrKTiRcd9D4niq5dNYeQ+L6dBZjn1QLGIO2TFNMrNY3l7r+r4zE5VXmV FFYRTbyOTwB+LmiH3/NtnQ== 0000950144-01-506357.txt : 20010827 0000950144-01-506357.hdr.sgml : 20010827 ACCESSION NUMBER: 0000950144-01-506357 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010824 EFFECTIVENESS DATE: 20010824 FILER: COMPANY DATA: COMPANY CONFORMED NAME: RFS HOTEL INVESTORS INC CENTRAL INDEX KEY: 0000906408 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 621534743 STATE OF INCORPORATION: TN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-68234 FILM NUMBER: 1722187 BUSINESS ADDRESS: STREET 1: 850 RIDGE LAKE BLVD STE 220 CITY: MEMPHIS STATE: TN ZIP: 38120 BUSINESS PHONE: 9017677005 MAIL ADDRESS: STREET 1: 850 RIDGE LAKE BLVD STE 220 CITY: MEMPHIS STATE: TN ZIP: 38120 S-8 1 g71412s-8.txt RFS HOTEL INVESTORS, INC. 1 As filed with the Securities and Exchange Commission on August 24, 2001 REGISTRATION NO. 333-_________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------ RFS Hotel Investors, Inc. (Exact name of registrant as specified in its charter) TENNESSEE Issuer: 62-1534743 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 850 Ridge Lake Boulevard, Suite 200 Memphis, Tennessee 38120 (Address of principal executive offices) ------------ RFS Hotel Investors, Inc. Employee Stock Purchase Plan (Full title of the plan) ------------ Randall L. Churchey RFS Hotel Investors, Inc. 850 Ridge Lake Boulevard, Suite 200 Memphis, Tennessee 38120 (901) 767-7005 (Name, address, including zip code, and telephone number, including area code, of agent for service) With a copy to: David C. Wright Hunton & Williams Riverfront Plaza, East Tower 951 East Byrd Street Richmond, Virginia 23219 (804) 788-8200 ------------------------------- CALCULATION OF REGISTRATION FEE
========================================================================================================= Proposed maximum Proposed maximum Title of securities Amount to be offering price aggregate Amount of to be registered registered per share offering price registration fee - --------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 500,000 Shares $14.50* $7,250,000* $1,812.50* per share =========================================================================================================
(*) Calculated pursuant to Rule 457(c) of the Securities Act of 1933, as amended (the "Securities Act"), based on the average of the high and low prices of RFS Hotel Investors, Inc. common stock (the "Common Stock") on The New York Stock Exchange on August 21, 2001. ================================================================================ 2 PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS ITEM 1. PLAN INFORMATION. Not required to be filed with the Securities and Exchange Commission (the "Commission"). ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. Not required to be filed with the Commission. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed by RFS Hotel Investors, Inc. (the "Company") with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are hereby incorporated by reference into this Registration Statement: (a) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2000. (b) The Company's Quarterly Report on Form 10-Q for each of the quarter ended March 31, 2001 and the quarter ended June 30, 2001. (c) The Company's reports on Form 8-K filed as of August 3, 2001, May 3, 2001, January 16, 2001, January 31, 2001 and May 12, 1999 and the Company's report on Form 8-K-A filed as of March 20, 2001. (d) The Company's definitive proxy statement dated March 22, 2001 in connection with the annual meeting of shareholders held on May 3, 2001. (e) The description of the Company's common stock on Form 8-A dated August 1, 1996. In addition to the foregoing, all documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities registered hereunder have been issued or which deregisters all securities offered then remaining unsold, shall be deemed incorporated by reference in this Registration Statement and to be a part hereof from the date of the 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. The Company will provide on request and without charge to each person to whom this prospectus is delivered a copy (without exhibits) of any or all documents incorporated by reference into this Registration Statement. Requests for such copies should be directed to RFS Hotel Investors, Inc., 850 Ridge Lake Boulevard, Suite 200, Memphis, Tennessee 38120; Attention: Secretary (telephone: 901-767-7005). ITEM 4. DESCRIPTION OF SECURITIES. Not Applicable. 2 3 ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Company's Charter obligates the Company to indemnify and advance expenses to present and former directors and officers to the maximum extent permitted by Tennessee law. The Tennessee Business Corporation Act ("TBCA") permits a corporation to indemnify its present and former directors and officers, among others, against judgments, settlements, penalties, fines or reasonable expenses incurred with respect to a proceeding to which they may be made a party by reason of their service in those or other capacities if (i) such persons conducted themselves in good faith, (ii) they reasonably believed, in the case of conduct in their official capacities with the corporation, that their conduct was in its best interests and, in all other cases, that their conduct was at least not opposed to its best interests, and (iii) in the case of any criminal proceeding, they had no reasonable cause to believe that their conduct was unlawful. The Company has entered into indemnification agreements with its executive officers and directors providing for indemnification by the Company of its executive officers and directors to the fullest extent permitted by applicable law. Any indemnification by the Company pursuant to the provisions of the Charter or indemnification agreements described above shall be paid out of the assets of the Company and shall not be recoverable from the shareholders. To the extent that the foregoing indemnification provisions purport to include indemnification for liabilities arising under the Securities Act, in the opinion of the Commission such indemnification is contrary to public policy and is, therefore, unenforceable. The TBCA permits the charter of a Tennessee corporation to include a provision eliminating or limiting the personal liability of its directors to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except that such provision cannot eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, without violating the TBCA or the corporation's charter. The Company's Charter contains a provision eliminating the personal liability of its directors or officers to the Company or its shareholders for money damages to the maximum extent permitted by Tennessee law from time to time. The Fifth Amended and Restated Agreement of Limited Partnership of RFS Partnership, L.P. (the "Partnership"), as amended, provides, generally, for the indemnification of an "indemnitee" against losses, claims, damages, liabilities, judgments, fines, settlements and other amounts (including reasonable expenses) that relate to the operations of the Partnership unless it is established that (i) the act or omission of the Indemnitee was material and either was committed in bad faith or pursuant to active and deliberate dishonesty, (ii) the Indemnitee actually received an improper personal benefit in money, property or services, or (iii) in the case of any criminal proceeding, the Indemnitee had reasonable cause to believe that the act or omission was unlawful. For this purpose, the term "Indemnitee" includes any person made a party to a proceeding by reason of his status as a director or officer of the Partnership, or the Company, and such other persons (including affiliates of the Company or the Partnership) as the Company, may designate from time to time in its discretion. Any such indemnification will be made only out of assets of the Partnership, and in no event may an Indemnitee subject the limited partners of the Partnership to personal liability by reason of the indemnification provisions in the Partnership Agreement. Insofar as indemnification for liabilities arising under the Securities Act of 1933 (the "Securities Act") may be permitted pursuant to the foregoing provisions or otherwise, the Partnership has been advised that, in the opinion of the Commission, such indemnification is against public policy and, therefore, unenforceable. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. 3 4 ITEM 8. EXHIBITS. The following exhibits are filed as part of this Registration Statement:
EXHIBIT NO. ----------- 3.1 Second Restated Charter of the Company (previously filed as Exhibit 4.1 to the Company's Registration Statement on Form S-3, (Registration Statement No. 333-3307) and incorporated by reference hereto). 3.1(a) Articles of Amendment to the Second Amended and Restated Charter of the Company (previously filed as Exhibit 3.1 to the Company's current report on Form 8-K dated January 16, 2001 and incorporated by reference hereto). 3.2 Bylaws of the Company (previously filed as Exhibit 3.2 to the Company's Registration Statement on Form S-11 (Registration No. 33-63696) and incorporated by reference hereto). 4.1 RFS Hotel Investors, Inc. Employee Stock Purchase Plan. 5.1 Opinion of Hunton & Williams as to the legality of the securities being registered. 23.1 Consent of PricewaterhouseCoopers LLP. 23.2 Consent of Hunton & Williams (included in the opinion filed as Exhibit 5.1 to this Registration Statement on Form S-8). 24.1 Powers of Attorney (located on the signature pages of this Registration Statement).
ITEM 9. UNDERTAKINGS. A. SUBSEQUENT DISCLOSURE. The Company hereby undertakes: (1)To file, during any period in which offers or sales are being made of the securities registered hereby, 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 this 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 this Registration Statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that the undertakings set forth in paragraphs (A)(1)(i) and (ii) above 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 Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. 4 5 (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. INCORPORATION BY REFERENCE. 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 Section 15(d) of the Exchange Act, and, where applicable, each filing on an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act, that is incorporated by reference in this 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. COMMISSION POSITION ON INDEMNIFICATION. 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 foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. 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. 5 6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, 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 Memphis, State of Tennessee, on the 22nd day of August, 2001. RFS HOTEL INVESTORS, INC. (Registrant) BY: /s/ Randall L. Churchey ---------------------------------------- Randall L. Churchey President and Chief Operating Officer POWER OF ATTORNEY 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 date indicated. Each of the undersigned, in his capacity as officer or director, or both, as the case may be, of RFS Hotel Investors, Inc. does hereby appoint Randall L. Churchey and Kevin M. Luebbers, and each of them severally, his true and lawful attorneys or attorney to execute in his name, place and stead, in his capacity as director or officer, or both, as the case may be, this Registration Statement and any and all amendments and post-effective amendments thereto, and all instruments necessary or incidental in connection therewith and to file the same with the Securities and Exchange Commission. Each of said attorneys shall have power to act hereunder with or without the other attorney and shall have full power and authority to do and perform in the name and on behalf of each of said directors or officers, or both as the case may be, every act whatsoever requisite or necessary to be done in the premises, as fully and to all intents and purposes as which each of said officers or directors, or both, as the case may be, might or could do in person, hereby ratifying and confirming all that said attorneys or attorney may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ Robert M. Solmson Chief Executive Officer and August 22, 2001 - ------------------------------------ Chairman of the Board (Principal Robert M. Solmson Executive Officer) /s/ Randall L. Churchey President, Chief Operating August 22, 2001 - ------------------------------------ Officer and Director Randall L. Churchey /s/ Kevin M. Luebbers Executive Vice President, August 22, 2001 - ------------------------------------ Secretary, Treasurer and Chief Kevin M. Luebbers Financial Officer (Principal Financial and Accounting Officer) /s/ Bruce E. Campbell Director August 22, 2001 - ------------------------------------ Bruce E. Campbell /s/ H. Lance Forsdick Director August 22, 2001 - ------------------------------------ H. Lance Forsdick /s/ R. Lee Jenkins Director August 20, 2001 - ------------------------------------ R. Lee Jenkins
6 7 /s/ Richard Reiss, Jr. Director August 21, 2001 - ------------------------------------ Richard Reiss, Jr. /s/ Michael S. Starnes Director August 22, 2001 - ------------------------------------ Michael S. Starnes /s/ John W. Stokes, Jr. Director August 21, 2001 - ------------------------------------ John W. Stokes, Jr. /s/ Karl L. Matthies Director August 22, 2001 - ------------------------------------ Karl L. Matthies
7 8 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION ----------- ----------- 3.1 Second Restated Charter of the Company (previously filed as Exhibit 4.1 to the Company's Registration Statement on Form S-3, (Registration Statement No. 333-3307) and incorporated by reference hereto). 3.1(a) Articles of Amendment to the Second Amended and Restated Charter of the Company (previously filed as Exhibit 3.1 to the Company's current report on Form 8-K dated January 16, 2001 and incorporated by reference hereto). 3.2 Bylaws of the Company (previously filed as Exhibit 3.2 to the Company's Registration Statement on Form S-11 (Registration No. 33-63696) and incorporated by reference hereto). 4.1 RFS Hotel Investors, Inc. Employee Stock Purchase Plan. 5.1 Opinion of Hunton & Williams as to the legality of the securities being registered. 23.1 Consent of PricewaterhouseCoopers LLP. 23.2 Consent of Hunton & Williams (included in the opinion filed as Exhibit 5.1 to this Registration Statement on Form S-8). 24.1 Powers of Attorney (located on the signature pages of this Registration Statement).
8 EX-4.1 3 g71412ex4-1.txt EMPLOYEE STOCK PURCHASE PLAN 1 EXHIBIT 4.1 RFS HOTEL INVESTORS, INC. EMPLOYEE STOCK PURCHASE PLAN EFFECTIVE SEPTEMBER 1, 2001 2 RFS HOTEL INVESTORS, INC. EMPLOYEE STOCK PURCHASE PLAN EFFECTIVE SEPTEMBER 1, 2001 TABLE OF CONTENTS ARTICLE I DEFINITIONS......................................................1 1.01 Administrator................................................1 1.02 Affiliate....................................................1 1.03 Beneficiary..................................................1 1.04 Board........................................................1 1.05 Code.........................................................1 1.06 Committee....................................................1 1.07 Common Stock.................................................1 1.08 Company......................................................1 1.09 Compensation.................................................1 1.10 Date of Exercise.............................................2 1.11 Date of Grant................................................2 1.12 Election Date................................................2 1.13 Election Form................................................2 1.14 Employee.....................................................2 1.15 Fair Market Value............................................2 1.16 Five Percent Shareholder.....................................2 1.17 Option.......................................................2 1.18 Participant..................................................2 1.19 Plan.........................................................3 ARTICLE II PURPOSES........................................................3 ARTICLE III ADMINISTRATION.................................................3 ARTICLE IV ELIGIBILITY.....................................................3 ARTICLE V COMPENSATION DEDUCTIONS..........................................3 5.01 Amount of Deduction..........................................3 5.02 Participant's Account........................................4 5.03 Changes in Payroll Deductions................................4 ARTICLE VI OPTION GRANTS...................................................4 6.01 Number of Shares.............................................4 6.02 Option Price.................................................4 ARTICLE VII EXERCISE OF OPTION.............................................4
3 RFS HOTEL INVESTORS, INC. EMPLOYEE STOCK PURCHASE PLAN EFFECTIVE SEPTEMBER 1, 2001 TABLE OF CONTENTS (CONTINUED) 7.01 Automatic Exercise...........................................4 7.02 Fractional Shares............................................4 7.03 Nontransferability...........................................5 7.04 Employee Status..............................................5 7.05 Delivery of Stock............................................5 7.06 Vesting, Transferability.....................................5 ARTICLE VIII WITHDRAWAL AND TERMINATION OF EMPLOYMENT......................5 8.01 Generally....................................................5 8.02 Subsequent Participation.....................................5 8.03 Termination of Employment....................................5 8.04 Death of Participant.........................................6 ARTICLE IX STOCK SUBJECT TO PLAN...........................................6 9.01 Shares Issued or Delivered...................................6 9.02 Aggregate Limit..............................................6 9.03 Reallocation of Shares.......................................6 ARTICLE X ADJUSTMENT UPON CHANGE IN COMMON STOCK...........................6 ARTICLE XI COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES...........7 ARTICLE XII GENERAL PROVISIONS.............................................7 12.01 Effect on Employment and Service............................7 12.02 Unfunded Plan...............................................7 12.03 Rules of Construction.......................................7 12.04 Plan Fiscal Year............................................7 ARTICLE XIII AMENDMENT.....................................................7 ARTICLE XIV DURATION OF PLAN...............................................8 ARTICLE XV EFFECTIVE DATE OF PLAN..........................................8
4 RFS HOTEL INVESTORS, INC. EMPLOYEE STOCK PURCHASE PLAN EFFECTIVE SEPTEMBER 1, 2001 ARTICLE I DEFINITIONS 1.01 Administrator. Administrator means the Committee and any delegate of the Committee that is appointed in accordance with Article III. 1.02 Affiliate. Affiliate means any "parent corporation" or "subsidiary corporation" (within the meaning of Section 424 of the Code) of the Company, including a corporation that becomes an Affiliate after the adoption of this Plan, that the Board designates as a participating employer in the Plan. 1.03 Beneficiary. Beneficiary means the person or entity designated by a Participant on a form prescribed by the Administrator, to receive any amount payable under the Plan following a Participant's death. A Participant may change his Beneficiary from time to time by filing a subsequent designation form and the change will be effective when received by the Administrator. If a designated Beneficiary fails to survive the Participant or be in existence on the date of his death or if the Participant fails to designate a Beneficiary, the Participant's Beneficiary shall be determined as follows: the Participant's surviving spouse (i.e., the person to whom the Participant is legally married on the date of his death) or, if none, the Participant's surviving children or, if none, the Participant's estate. 1.04 Board. Board means the Board of Directors of the Company. 1.05 Code. Code means the Internal Revenue Code of 1986, and any amendments thereto. 1.06 Committee. Committee means the Compensation Committee of the Board. 1.07 Common Stock. Common Stock means the common stock of the Company. 1.08 Company. Company means RFS Hotel Investors, Inc. 1.09 Compensation. Compensation means an Employee's total earnings, including without limitation salary, overtime, and any bonuses or special payment. 1 5 RFS HOTEL INVESTORS, INC. EMPLOYEE STOCK PURCHASE PLAN EFFECTIVE SEPTEMBER 1, 2001 1.10 Date of Exercise. Date of Exercise means each March 31 next following the January 2 Date of Grant, each June 30 next following the April 1 Date of Grant, each September 30 next following the July 1 Date of Grant, and each December 31 next following the October 1 Date of Grant. 1.11 Date of Grant. Date of Grant means each January 2, April 1, July 1, and October 1 during the term of the Plan. 1.12 Election Date. Election Date means each December 15 immediately preceding the January 2 Date of Grant, each March 15 immediately preceding the April 1 Date of Grant, each June 15 immediately preceding the July 1 Date of Grant, and each September 15 immediately preceding the October 1 Date of Grant. 1.13 Election Form. Election Form means the form, prescribed by the Administrator, that a Participant uses to authorize a deduction from his Compensation in accordance with Article V. 1.14 Employee. Employee means any employee of the Company or an Affiliate, other than a Five Percent Shareholder. 1.15 Fair Market Value. Fair Market Value means, on any given date, the last sale price of a share of Common Stock on the primary national securities exchange on which shares of the Common Stock are listed. If, on any given date, no share of Common Stock is traded on such exchange, then Fair Market Value shall be determined with reference to the next preceding day that the Common Stock was so traded. 1.16 Five Percent Shareholder. Five Percent Shareholder means any individual who, immediately after the grant of an Option owns more than five percent of the total combined voting power or value of all classes of stock of the Company or of an Affiliate. For this purpose, (i) an individual shall be considered to own any stock owned (directly or indirectly) by or for his brothers, sisters, spouse, ancestors or lineal descendants and shall be considered to own proportionately any stock owned (directly or indirectly) by or for a corporation, partnership, estate or trust of which such individual is a shareholder, partner or beneficiary, and (ii) stock of the Company or an Affiliate that an individual may purchase under outstanding options (whether or not granted under this Plan) shall be treated as stock owned by the individual. 1.17 Option. Option means a stock option that entitles the holder to purchase from the Company a stated number of shares of Common Stock on the terms and conditions prescribed by the Plan. 1.18 Participant. Participant means an Employee, including an Employee who is a member of the Board, who satisfies the requirements of Article IV and who elects to receive an Option. 2 6 RFS HOTEL INVESTORS, INC. EMPLOYEE STOCK PURCHASE PLAN EFFECTIVE SEPTEMBER 1, 2001 1.19 Plan. Plan means the RFS Hotel Investors, Inc. Employee Stock Purchase Plan. ARTICLE II PURPOSES The Plan is intended to assist the Company and its Affiliates in recruiting and retaining individuals with ability and initiative by enabling such persons to participate in the future success of the Company and its Affiliates and to associate their interests with those of the Company and its shareholders. The Plan is intended to permit the grant of Options qualifying under Section 423 of the Code. No Option shall be invalid for failure to qualify under Section 423 of the Code. The proceeds received by the Company from the sale of Common Stock pursuant to this Plan shall be used for general corporate purposes. ARTICLE III ADMINISTRATION The Plan shall be administered by the Administrator. The Administrator shall have complete authority to interpret all provisions of this Plan; to adopt, amend, and rescind rules and regulations pertaining to the administration of the Plan; and to make all other determinations necessary or advisable for the administration of this Plan. The express grant in the Plan of any specific power to the Administrator shall not be construed as limiting any power or authority of the Administrator. Any decision made, or action taken, by the Administrator or in connection with the administration of this Plan shall be final and conclusive. Neither the Administrator nor any member of the Committee shall be liable for any act done in good faith with respect to this Plan or any Option. All expenses of administering this Plan shall be borne by the Company. The Committee, in its discretion, may delegate to one or more persons or entities all or part of the Committee's authority and duties with respect to grants and awards under this Plan. The Committee may revoke or amend the terms of a delegation at any time but such action shall not invalidate any prior actions of the Committee's delegate or delegates that were consistent with the terms of the Plan. ARTICLE IV ELIGIBILITY Each Employee of the Company or an Affiliate (including a corporation that becomes an Affiliate after the adoption of this Plan) is eligible to participate in this Plan as of the first Date of Grant that occurs on or after the six-month anniversary of such employee's commencement of employment with the Company or an Affiliate. Directors of the Company who are Employees of the Company or an Affiliate may participate in this Plan on or after the Date of Grant specified in the preceding sentence. An Employee who has satisfied the requirements set forth in the preceding sentences of this Article IV becomes a Participant by completing an Election Form in accordance with Section 5.01 and returning it to the Administrator on or before the Election Date for the first or any subsequent Date of Grant on which an Employee may elect to participate in this plan. ARTICLE V COMPENSATION DEDUCTIONS 5.01 Amount of Deduction. A payroll deduction shall be made from the Compensation of each Participant for each payroll period. The amount of such deduction shall be the percentage specified by the Participant on his Election Form; provided that 3 7 RFS HOTEL INVESTORS, INC. EMPLOYEE STOCK PURCHASE PLAN EFFECTIVE SEPTEMBER 1, 2001 such percentage shall be in multiples of one percent and shall not exceed fifteen percent. A Participant may contribute to the Plan only by payroll deduction. A Participant's Election Form will continue to be effective, and amounts will be deducted from the Participant's Compensation, until the Election Form is changed in accordance with Section 5.03 or the Participant withdraws from the Plan or his participation otherwise ends in accordance with Article VIII. 5.02 Participant's Account. A recordkeeping account shall be established for each Participant. All amounts deducted from a Participant's Compensation shall be credited to his account. No interest will be paid or credited to the account of any Participant. 5.03 Changes in Payroll Deductions. A Participant may discontinue his participation in the Plan as provided in Section 8.01. Except as provided in Section 8.01, a Participant's direction to change the percentage deduction specified on his Election Form shall be effective as of the first Date of Grant following the date that written notice of such change is delivered to the Administrator. ARTICLE VI OPTION GRANTS 6.01 Number of Shares. Each Employee who is a Participant on a Date of Grant shall be granted an Option as of that Date of Grant. The number of shares of Common Stock subject to such Option shall be determined by dividing the option price into the balance credited to the Participant's account as of the Date of Exercise next following the Date of Grant. Notwithstanding the preceding sentence, no Participant will be granted an Option as of any Date of Grant for more than a number of shares of Common Stock determined by dividing $6,250 by the Fair Market Value on the Date of Grant. 6.02 Option Price. The price per share for Common Stock purchased on the exercise of an Option shall be ninety percent of the Fair Market Value on the applicable Date of Exercise, until such time (if any) that the Committee announces a different purchase price per share. Such price per share must, however, be at least equal to the lesser of (i) eighty-five percent of the Fair Market Value on the applicable Date of Grant or (ii) eighty-five percent of the Fair Market Value on the applicable Date of Exercise. ARTICLE VII EXERCISE OF OPTION 7.01 Automatic Exercise. Subject to the provisions of Articles VIII, IX, and XI, each Option shall be exercised automatically as of the Date of Exercise next following the Option's Date of Grant for the number of whole shares of Common Stock that may be purchased at the option price for that Option with the balance credited to the Participant's account. 7.02 Fractional Shares. Fractional shares will not be issued under the Plan. Any amount remaining to the credit of the Participant's account after the exercise of an Option shall remain in the account and be applied to the option price of the 4 8 RFS HOTEL INVESTORS, INC. EMPLOYEE STOCK PURCHASE PLAN EFFECTIVE SEPTEMBER 1, 2001 Option next granted if the Participant continues to participate in the Plan or, if he does not, shall be returned to the Participant. 7.03 Nontransferability. Each Option granted under this Plan shall be nontransferable except by will or by the laws of descent and distribution. During the lifetime of the Participant to whom the Option is granted, the Option may be exercised only by the Participant. No right or interest of a Participant in any Option shall be liable for, or subject to, any lien, obligation, or liability of such Participant. 7.04 Employee Status. For purposes of determining the applicability of Section 423 of the Code, and whether an individual is employed by the Company or an Affiliate, the Administrator may decide to what extent leaves of absence for governmental or military service, illness, temporary disability, or other reasons shall not be deemed interruptions of continuous employment. 7.05 Delivery of Stock. Subject to the provisions of Articles IX, and XI, within thirty (30) days following applicable Date of Exercise, the Company will deliver certificates evidencing the Common Stock purchased upon the Participant's exercise of his Option. 7.06 Vesting, Transferability. Participant's interest in the Common Stock purchased upon the exercise of his Option shall be immediately nonforfeitable and, subject to the provisions of Article XI, shall be transferable on and after the date that is thirty (30) days following the applicable Date of Exercise. ARTICLE VIII WITHDRAWAL AND TERMINATION OF EMPLOYMENT 8.01 Generally. A Participant may withdraw the payroll deductions credited to his account under the Plan by giving written notice to that effect to the Administrator at least thirty (30) days prior to the next Date of Exercise. In that event, all of the payroll deductions credited to his account will be paid to him promptly after receipt of his notice of withdrawal and no further payroll deductions will be made from his Compensation until he submits a new Election Form to the Administrator. A Participant shall be deemed to have elected to withdraw from the Plan in accordance with this Section 8.01 if he ceases to be an Employee. 8.02 Subsequent Participation. A Participant who has withdrawn his account under Section 8.01 may submit a new Election Form to the Administrator and resume participation in the Plan as of any subsequent Date of Grant, provided that the Administrator receives his Election Form before the applicable Election Date. 8.03 Termination of Employment. If a Participant's employment with the Company and its Affiliates terminates for any reason other than death, his participation in the Plan shall cease as of the date of termination. The balance credited to the Participant's account as of the first day of the month following such termination of employment shall be paid to the Participant or, in the case of the Participant's death following his termination of employment, to his Beneficiary, as promptly as possible thereafter. 5 9 RFS HOTEL INVESTORS, INC. EMPLOYEE STOCK PURCHASE PLAN EFFECTIVE SEPTEMBER 1, 2001 8.04 Death of Participant. If a Participant's employment with the Company and its Affiliates terminates on account of the Participant's death, his Beneficiary may elect, by written notice received by the Administrator within thirty days of the Participant's death (but in all events before the Date of Exercise), to either (i) withdraw all of the payroll deductions credited to the Participant's account or (ii) to exercise the Option as of the Date of Exercise and receive whole shares of Common Stock and cash representing the value of a fractional share in accordance with Section 5.02. If the Option is exercised, the number of shares of Common Stock issuable to the Beneficiary shall be determined by dividing the option price into the payroll deductions credited to the Participant's account. If timely written notice of the Beneficiary's election is not received by the Administrator, the Beneficiary shall be deemed to have elected to exercise the Option. ARTICLE IX STOCK SUBJECT TO PLAN 9.01 Shares Issued or Delivered. Upon the exercise of any Option the Company may deliver to the Participant (or the Participant's broker if the Participant so directs) shares of Common Stock from its authorized but unissued Common Stock or outstanding Common Stock acquired by or on behalf of the Company in the name of the Participant. 9.02 Aggregate Limit. The maximum aggregate number of shares of Common Stock that may be issued or delivered under this Plan pursuant to the exercise of Options is 500,000 shares. The maximum aggregate number of shares that may be issued or delivered under this Plan shall be subject to adjustment as provided in Article X. 9.03 Reallocation of Shares. If an Option is terminated, in whole or in part, for any reason other than its exercise, the number of shares of Common Stock allocated to the Option or portion thereof may be reallocated to other Options to be granted under this Plan. ARTICLE X ADJUSTMENT UPON CHANGE IN COMMON STOCK The maximum number of shares as to which Options may be granted under this Plan and the terms of outstanding Options shall be adjusted as the Committee shall determine to be equitably required in the event that (a) the Company (i) effects one or more stock dividends, stock split-ups, subdivisions or consolidations of shares or (ii) engages in a transaction to which Section 424 of the Code applies or (b) there occurs any other event which, in the judgment of the Committee necessitates such action. Any determination made under this Article X by the Committee shall be final and conclusive. The issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, for cash or property, or for labor or services, either upon direct sale or upon the exercise of rights or warrants to subscribe therefor, or upon conversion of shares or obligations of the Company convertible into such shares or other securities, shall not affect, and no adjustment by reason thereof shall be made with respect to, the maximum number of shares as to which Options may be granted or the terms of outstanding Options. 6 10 RFS HOTEL INVESTORS, INC. EMPLOYEE STOCK PURCHASE PLAN EFFECTIVE SEPTEMBER 1, 2001 ARTICLE XI COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES No Option shall be exercisable, no Common Stock shall be issued, no certificates for shares of Common Stock shall be delivered, and no payment shall be made under this Plan except in compliance with all applicable federal and state laws and regulations (including, without limitation, withholding tax requirements), any listing agreement to which the Company is a party, and the rules of all domestic stock exchanges on which the Company's shares may be listed. The Company shall have the right to rely on an opinion of its counsel as to such compliance. Any share certificate issued to evidence Common Stock for which an Option is exercised may bear such legends and statements as the Administrator may deem advisable to assure compliance with federal and state laws and regulations. No Option shall be exercisable, no Common Stock shall be issued, no certificate for shares shall be delivered, and no payment shall be made under this Plan until the Company has obtained such consent or approval as the Administrator may deem advisable from regulatory bodies having jurisdiction over such matters. ARTICLE XII GENERAL PROVISIONS 12.01 Effect on Employment and Service. Neither the adoption of this Plan, its operation, nor any documents describing or referring to this Plan (or any part thereof) shall confer upon any individual any right to continue in the employ of the Company or an Affiliate or in any way affect any right and power of the Company or an Affiliate to terminate the employment of any individual at any time with or without assigning a reason therefor. 12.02 Unfunded Plan. The Plan, insofar as it provides for grants, shall be unfunded, and the Company shall not be required to segregate any assets that may at any time be represented by grants under this Plan. Any liability of the Company to any person with respect to any grant under this Plan shall be based solely upon any contractual obligations that may be created pursuant to this Plan. No such obligation of the Company shall be deemed to be secured by any pledge of, or other encumbrance on, any property of the Company. 12.03 Rules of Construction. Headings are given to the articles and sections of this Plan solely as a convenience to facilitate reference. The reference to any statute, regulation, or other provision of law shall be construed to refer to any amendment to or successor of such provision of law. 12.04 Plan Fiscal Year. The fiscal year of the Plan shall be the calendar year. ARTICLE XIII AMENDMENT The Board may amend or terminate this Plan from time to time; provided, however, that no amendment or termination shall, without a Participant's consent, adversely affect any rights of such Participant under any Option outstanding at the time such amendment is made or such termination occurs. 7 11 RFS HOTEL INVESTORS, INC. EMPLOYEE STOCK PURCHASE PLAN EFFECTIVE SEPTEMBER 1, 2001 ARTICLE XIV DURATION OF PLAN No Option may be granted under this Plan more than ten years after the date this Plan is adopted by the Board. Options granted before that date shall remain valid in accordance with their terms. ARTICLE XV EFFECTIVE DATE OF PLAN Options may be granted under this Plan as of the first Date of Grant on or after its adoption by the Board. 8 EX-5.1 4 g71412ex5-1.txt OPINION OF HUNTION & WILLIAMS 1 EXHIBIT 5.1 Post Office Box 951 Knoxville, Tennessee 37901 Riverview Tower Suite 2000 900 South Gay Street Knoxville, Tennessee 37902 Tel 865-549-7700 Fax 865-549-7704 August 24, 2001 Board of Directors RFS Hotel Investors, Inc. 850 Ridge Lake Boulevard, Suite 200 Memphis, Tennessee 38120 Re: Registration Statement on Form S-8 RFS Hotel Investors Employee Stock Purchase Plan Ladies and Gentlemen: We are acting as counsel for RFS Hotel Investors, Inc. (the "Company") in connection with its registration under the Securities Act of 1933 of 500,000 shares of its common stock (the "Shares") which are proposed to be offered and sold as described in the Company's Registration Statement on Form S-8 for the RFS Hotel Investors, Inc. Employee Stock Purchase Plan (the "Registration Statement") filed today with the Securities and Exchange Commission (the "Commission"). In rendering this opinion, we have relied upon, among other things, our examination of such records of the Company and certificates of its officers and of public officials as we have deemed necessary. Based upon the foregoing, we are of the opinion that: 1. The Company is a corporation duly incorporated and validly existing under the laws of the State of Tennessee. 2. The Shares have been duly authorized and, when the Shares have been offered and sold as described in the Registration Statement, will be legally issued, fully paid and nonassessable. We hereby consent to the filing of this opinion with the Commission as a Exhibit 5.1 to the Registration Statement. Very truly yours, Hunton & Williams EX-23.1 5 g71412ex23-1.txt CONSENT OF PRICEWATERHOUSECOOPERS LLP 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 24, 2001, except for Note 9 as to which the date is February 20, 2001, relating to the financial statements of RFS Hotel Investors, Inc., which appears in RFS Hotel Investors Inc.'s Annual Report on Form 10-K for the year ended December 31, 2000. We also consent to the incorporation by reference of our report dated January 24, 2001, except for Note 9 as to which the date is February 20, 2001, relating to the financial statement schedules, which appears in such Annual Report on Form 10-K. PricewaterhouseCoopers LLP Dallas, Texas August 22, 2001 -----END PRIVACY-ENHANCED MESSAGE-----