As filed with the Securities and Exchange Commission on February 9, 2005
Registration Statement No. 333- ________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
____________________
HERSHA HOSPITALITY TRUST
(Exact name of registrant as specified in its charter)
MARYLAND 251811499
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
148 SHERATON DRIVE, BOX A
NEW CUMBERLAND, PENNSYLVANIA 17070
(717) 770-2405
(Address of principal executive offices, including zip code)
HERSHA HOSPITALITY TRUST
2004 EQUITY INCENTIVE PLAN
(Full title of the plan)
____________________
ASHISH R. PARIKH
CHIEF FINANCIAL OFFICER
HERSHA HOSPITALITY TRUST
148 SHERATON DRIVE, BOX A
NEW CUMBERLAND, PENNSYLVANIA 17070
(717) 770-2405
(Name, address and telephone number, including area code, of agent for service)
With copies to:
CAMERON N. COSBY, ESQ.
RANDALL S. PARKS, ESQ.
HUNTON & WILLIAMS LLP
951 EAST BYRD STREET
RICHMOND, VIRGINIA 23219
(804) 788-8200
(804) 788-8218 (FAX)
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CALCULATION OF REGISTRATION FEE
----------------------------------- ------------- ------------------ ------------------ --------------------
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered(1) offering price aggregate registration fee(3)
per share(2) offering price(2)
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Common Shares of Beneficial 1,500,000 $ 11.13 $ 16,695,000 $ 1,965
Interest, $0.01 par value per share shares
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(1) Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended, the number of Common
Shares of Beneficial Interest registered hereunder includes such indeterminate number of additional Common
Shares of Beneficial Interest as may be offered or issued in the future to prevent dilution resulting from stock
splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of computing the registration fee. This amount was calculated pursuant
to Rule 457(h) under the Securities Act of 1933, as amended, on the basis of $11.13 per share, which was the
average of the high and low prices of the Common Shares of Beneficial Interest on the American Stock Exchange on
February 7, 2005.
(3) Calculated by multiplying the estimated aggregate offering price of securities to be registered by .0001177.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in this Part I will be
sent or given to employees as specified by Rule 428(b)(1) under the Securities
Act of 1933. Such documents need not be filed with the Securities and Exchange
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 under the Securities Act. Those
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Form, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Hersha Hospitality Trust (the "Company" or the "Registrant") hereby
incorporates by reference into this registration statement the following
documents:
a. The Company's Annual Report, as amended, on Form 10-K/A for the fiscal
year ended December 31, 2003, as filed on July 1, 2004;
b. The Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 2004, as filed on May 17, 2004; June 30, 2004, as
filed August 16, 2004; and September 30, 2004, as filed on November
15, 2004.
c. The Company's Current Reports on Form 8-K filed April 22, 2004,
September 22, 2004 and January 26, 2005.
d. The description of the Company's Common Shares of Beneficial Interest,
$0.01 par value per share, contained in the Company's registration
statement on Form S-3 as filed on March 2, 2004, and any amendment or
report filed subsequent thereto for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the "1934
Act") and prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing such
documents. Any statement contained in this registration statement shall be
deemed to be modified or superseded to the extent that a statement contained in
a subsequently filed document which is, or is deemed to be, incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement. Any statement contained in
a document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this registration
statement to the extent that a statement contained in any other subsequently
filed document that is or is deemed to be incorporated by reference herein,
modifies or supersedes such statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Declaration of Trust and Bylaws of the Registrant provide that the
Registrant shall indemnify its directors, officers and certain other parties to
the fullest extent permitted from time to time by the Maryland General
Corporation Law (the "MGCL"). The MGCL permits a corporation to indemnify its
directors, officers and certain other parties against judgments, penalties,
fines, settlements and reasonable expenses actually incurred by them in
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connection with any proceeding to which they may be made a party by reason of
their service to or at the request of the Registrant, unless it is established
that the act or omission of the indemnified party was material to the matter
giving rise to the proceeding and (i) the act or omission was committed in bad
faith or was the result of active and deliberate dishonesty, or (ii) in the case
of any criminal proceeding, the indemnified party had reasonable cause to
believe that the act or omission was unlawful.
Maryland law permits a Maryland real estate investment trust to include in
its Declaration of Trust a provision limiting the liability of its trustees and
officers to the trust and its shareholders for money damages except for
liability resulting from (a) actual receipt of an improper benefit or profit in
money, property or services or (b) active and deliberate dishonesty established
by a final judgment and which is material to the cause of action. Our
Declaration of Trust contains such a provision which eliminates trustees' and
officers' liability to the maximum extent permitted by Maryland law.
Our Declaration of Trust authorizes us, to the maximum extent permitted by
Maryland law, to indemnify any present or former trustee or officer or any
individual who, while a trustee of the Trust and at the request of the Trust,
serves or has served another trust, real estate investment trust, partnership,
joint venture, trust, employee benefit plan or any other enterprise as a
trustee, officer, partner or trustee, from and against any claim or liability
to which that person may become subject or which that person may incur by
reason of his or her status as a present or former trustee or officer of the
Trust and to pay or reimburse their reasonable expenses in advance of final
disposition of a proceeding. Our Bylaws obligate us, to the maximum extent
permitted by Maryland law, to indemnify any present or former trustee or
officer or any individual who, while a trustee of the Trust and at the request
of the Trust, serves or has served another corporation, real estate investment
trust, partnership, joint venture, trust, employee benefit plan or other
enterprise as a trustee, officer, partner or trustee and who is made a party to
the proceeding by reason of his service in that capacity from and against any
claim or liability to which that person may become subject or which that person
may incur by reason of his or her status as a present or former trustee or
officer of the Trust and to pay or reimburse their reasonable expenses in
advance of final disposition of a proceeding. The Declaration of Trust and
Bylaws also permit the Trust to indemnify and advance expenses to any person
who served a predecessor of the Trust in any of the capacities described above
and any employee or agent of the Trust or a predecessor of the Trust.
Maryland law permits a Maryland real estate investment trust to indemnify
and advance expenses to its trustees, officers, employees and agents to the
same extent as permitted for directors and officers of Maryland corporations.
Maryland law permits a corporation to indemnify its present and former
directors and officers, among others, against judgments, penalties, fines,
settlements and reasonable expenses actually incurred by them in connection
with any proceeding to which they may be made a party by reason of their
service in those or other capacities unless it is established that (a) the act
or omission of the director or officer was material to the matter giving rise
to the proceeding and (i) was committed in bad faith or (ii) was the result of
active and deliberate dishonesty, (b) the director or officer actually received
an improper personal benefit in money, property or services or (c) in the case
of any criminal proceeding, the director or officer had reasonable cause to
believe that the act or omission was unlawful. However, under Maryland law, a
Maryland corporation may not indemnify for an adverse judgment in a suit by or
in the right of the corporation or for a judgment of liability on the basis
that personal benefit was improperly received, unless in either case a court
orders indemnification and then only for expenses. In accordance with Maryland
law, our Bylaws require us, as a condition to advancing expenses, to obtain (a)
a written affirmation by the trustee or officer of his good faith belief that
he has met the standard of conduct necessary for indemnification and (b) a
written undertaking by him or on his behalf to repay the amount paid or
reimbursed if it is ultimately determined that the standard of conduct was not
met.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
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4.1 Amended and Restated Declaration of Trust of the Registrant (filed as
an exhibit to the registration statement on Form S-2 (Registration
No. 333-109100) filed on September 25, 2003, and incorporated herein
by reference).
4.2 Articles Supplementary of Hersha Hospitality Trust which classify and
designate 350,000 preferred shares of beneficial interest as Series A
Preferred Shares of beneficial interest, par value
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$.01 per share (filed as an exhibit to Form 8-K filed on April 23,
2003, and incorporated herein by reference).
4.3 Bylaws of the Registrant (filed as an exhibit to the registration
statement on Form S-11, as amended, (Registration No. 333-56087)
filed on June 5, 1998, and incorporated herein by reference).
4.4 Hersha Hospitality Trust 2004 Equity Incentive Plan (filed as en
exhibit to the proxy statement on Schedule 14A filed on April 22,
2004, and incorporated by reference).
4.5 Form of Common Share Certificate (filed as an exhibit to the
registration statement on Form S-11, as amended, (Registration No.
333-56087) filed on June 5, 1998, and incorporated herein by
reference).
5.1 Opinion of Hunton & Williams LLP as to the legality of the securities
being registered.*
23.1 Consent of Hunton & Williams LLP (included in the opinion filed as
Exhibit 5.1).
23.2 Consent of Reznick Group, P.C.*
23.3 Consent of Moore Stephens, P.C.*
24.1 Powers of Attorney (included on signature page).
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* Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are made,
a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) 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 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change in such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
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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 registrant pursuant to Section 13 or Section 15 (d) of the
Exchange Act that are incorporated by reference in the registration statement.
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
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fide offering thereof.
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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.
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(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
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thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described under Item 6 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act, and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Philadelphia, State of Pennsylvania, on this 9th day
of February, 2005.
HERSHA HOSPITALITY TRUST
By: /s/ Ashish R. Parikh
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Ashish R. Parikh
Chief Financial Officer
(Principal Financial and Accounting Officer)
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Jay H. Shah and Ashish R. Parikh, and each of
them (with full power to act alone) as true and lawful attorneys-in-fact, and
stead, in any and all capacities, to sign any amendments to this registration
statement and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorney-in-fact, or their substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated on February 9, 2005.
By: /s/ Hasu P. Shah By: /s/ Michael A. Leven
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Hasu P. Shah Michael A. Leven
Chairman, Chief Executive Officer and Trustee Trustee
(Principal Executive Officer)
By: /s/ Jay H. Shah By: /s/ William Lehr, Jr.
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Jay H. Shah William Lehr, Jr.
President and Chief Operating Officer Trustee
(Principal Operating Officer)
By: /s/ Ashish R. Parikh By: /s/ Thomas S. Capello
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Ashish R. Parikh Thomas S. Capello
Chief Financial Officer Trustee
(Principal Financial & Accounting Officer)
By: /s/ K. D. Patel By: /s/ Donald J. Landry
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K. D. Patel Donald J. Landry
Trustee Trustee
By: /s/ John M. Sabin
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John M. Sabin
Trustee
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EXHIBIT INDEX
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EXHIBIT NO. DESCRIPTION
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4.1 Amended and Restated Declaration of Trust of the Registrant (filed as
an exhibit to the registration statement on Form S-2 (Registration
No. 333-109100) filed on September 25, 2003, and incorporated herein
by reference).
4.2 Articles Supplementary of Hersha Hospitality Trust which classify and
designate 350,000 preferred shares of beneficial interest as Series A
Preferred Shares of beneficial interest, par value $.01 per share
(filed as an exhibit to Form 8-K filed on April 23, 2003, and
incorporated herein by reference).
4.3 Bylaws of the Registrant (filed as an exhibit to the registration
statement on Form S-11, as amended, (Registration No. 333-56087)
filed on June 5, 1998, and incorporated herein by reference).
4.4 Hersha Hospitality Trust 2004 Equity Incentive Plan (filed as en
exhibit to the proxy statement on Schedule 14A filed on April 22,
2004, and incorporated by reference).
4.5 Form of Common Share Certificate (filed as an exhibit to the
registration statement on Form S-11, as amended, (Registration No.
333-56087) filed on June 5, 1998, and incorporated herein by
reference).
5.1 Opinion of Hunton & Williams LLP as to the legality of the securities
being registered.*
23.1 Consent of Hunton & Williams LLP (included in the opinion filed as
Exhibit 5.1).
23.2 Consent of Reznick Group, P.C.*
23.3 Consent of Moore Stephens, P.C.*
24.1 Powers of Attorney (included on signature page).
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* Filed herewith.
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