As filed with the Securities and Exchange Commission on August 27, 2002
Registration No. 333-98207
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HOST MARRIOTT CORPORATION
(Exact name of registrant as specified in its governing instrument)
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Maryland 53-0085950
(State of Incorporation) (I.R.S. Employer
Identification Number)
6903 Rockledge Drive, Suite 1500
Bethesda, Maryland 20817
240-744-1000
(Address and telephone number of principal executive offices)
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Robert E. Parsons, Jr.
Executive Vice President and Chief Financial Officer
6903 Rockledge Drive, Suite 1500
Bethesda, Maryland 20817
240-744-1000
(Name, address and telephone number of agent for service)
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Copies to:
Elizabeth A. Abdoo, Esq. J. Warren Gorrell, Jr.,
Senior Vice President and Esq.
General Counsel Eve N. Howard, Esq.
HOST MARRIOTT CORPORATION HOGAN & HARTSON L.L.P.
6903 Rockledge Drive, 555 Thirteenth Street,
Suite 1500 N.W.
Bethesda, Maryland 20817 Washington, D.C.
(240) 744-1000 20004-1109
(202) 637-5600
Approximate date of commencement of proposed sale to the public: From time
to time after this registration statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
Subject to Completion, dated August 27, 2002
PRELIMINARY PROSPECTUS
6,875,844 Shares
Host Marriott Corporation
Common Stock
This prospectus relates to up to 6,875,844 shares of our common stock that
may be sold by Douglas F. Manchester, Landmark Hospitality Services, Inc.,
Interhotel Company, Ltd. and Summit Resources, Ltd., who we refer to as the
"selling shareholders."
We will not receive any proceeds upon the sale of the common stock covered
by this prospectus, but we will incur expenses in connection with the filing of
the registration statement of which this prospectus forms a part.
Our common stock is listed on the New York Stock Exchange under the trading
symbol "HMT."
Consider carefully the risk factor set forth on page 1 of this prospectus,
the risk factors incorporated by reference from our Form 10-Q dated July 29,
2002 and the discussion of material federal income tax consequences
incorporated by reference from our Form 8-K dated February 8, 2002 for factors
relevant to an investment in the common stock.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
August , 2002
You should only rely on the information provided in or incorporated by
reference into this prospectus. We have not authorized any person to make a
statement that differs from what is in this prospectus or incorporated by
reference into this prospectus. If any person does make a statement that
differs from what is in this prospectus or incorporated by reference into this
prospectus, you should not rely on it. We are not making an offer to sell, nor
an offer to buy, the common stock in any state where the offer or sale is not
permitted. The information in this prospectus is complete and accurate as of
the date on the front cover, but the information may change after that date.
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TABLE OF CONTENTS
Page
----
RISK FACTOR........................ 3
FORWARD-LOOKING STATEMENTS......... 4
THE COMPANY........................ 5
THE OFFERING....................... 6
NO PROCEEDS TO THE COMPANY......... 6
TAX STATUS OF THE COMPANY.......... 6
SELLING SHAREHOLDERS............... 7
PLAN OF DISTRIBUTION............... 8
LEGAL MATTERS...................... 10
EXPERTS............................ 10
ABOUT THIS PROSPECTUS.............. 10
WHERE YOU CAN FIND MORE INFORMATION 11
2
To understand this common stock offering, you should read the entire
prospectus and the information incorporated by reference into this prospectus
carefully, including the risk factors incorporated by reference from our Form
10-Q dated July 29, 2002 and the material federal income tax consequences
incorporated by reference from our Form 8-K dated February 8, 2002.
On December 29, 1998, we reincorporated in Maryland in connection with our
conversion to a real estate investment trust, or "REIT". As used in this
prospectus, references to "we", "our", the "company" and "Host Marriott" and
similar references are to Host Marriott Corporation, a Maryland corporation,
and its consolidated subsidiaries (including the Operating Partnership, as
defined below) from and after December 29, 1998, and to Host Marriott
Corporation, a Delaware corporation, and its consolidated subsidiaries before
December 29, 1998, unless otherwise expressly stated or the context otherwise
requires. References to the "Operating Partnership" are to Host Marriott, L.P.
RISK FACTOR
Prospective investors should carefully consider, among other factors, the
material risk described below. Prospective investors should also carefully
consider the risk factors incorporated by reference from our Form 10-Q dated
July 29, 2002.
You may not be able to seek remedies or recover against Arthur Andersen
LLP. Our consolidated financial statements as of and for each of the three
years in the period ended December 31, 2001 were audited by Arthur Andersen
LLP. On March 14, 2002, Andersen was indicted on federal obstruction of justice
charges arising from the government's investigation of Enron Corporation. On
June 15, 2002, a jury in Houston, Texas found Arthur Andersen LLP guilty of
federal obstruction of justice charges arising from the federal government's
investigation of Enron Corp. In light of the jury verdict and the underlying
events, Arthur Andersen LLP has informed the Securities and Exchange Commission
that it will cease practicing before the SEC by August 31, 2002, unless the SEC
determines another date is appropriate. A substantial number of Arthur Andersen
LLP's personnel have already left the firm, and substantially all remaining
personnel are expected to do so in the near future.
In reliance on Rule 437a under the Securities Act, we have not filed a
consent of Arthur Andersen LLP to the incorporation by reference in this
prospectus of their report regarding our financial statements. Because Arthur
Andersen LLP has not consented to the incorporation by reference of their
report in this prospectus, you will not be able to recover against Arthur
Andersen LLP under Section 11 of the Securities Act for any untrue statements
of material fact contained in the financial statements audited by Arthur
Andersen LLP or any omissions to state a material fact required to be stated
therein. Furthermore, relief in connection with claims that may be available to
stockholders under the federal securities laws against auditing firms may not
be available to stockholders as a practical matter against Arthur Andersen LLP
as a result of the significant decline in their size and the possibility that
they will cease to operate.
3
FORWARD-LOOKING STATEMENTS
This prospectus and the information incorporated by reference into this
prospectus contain forward-looking statements within the meaning of Section 27A
of the Securities Act and Section 21E of the Securities Exchange Act. Such
statements include statements regarding our expectations, hopes or intentions
regarding the future, including our strategy, competition, financing,
indebtedness, revenues, operators, regulations and compliance with applicable
laws. We identify forward-looking statements in this prospectus and the
information incorporated by reference into this prospectus by using words or
phrases such as "anticipate", "believe", "estimate", "expect", "intend", "may
be", "objective", "plan", "predict", "project", and "will be" and similar words
or phrases, or the negative thereof.
Forward-looking statements are subject to numerous assumptions, risks and
uncertainties. Factors which may cause our actual results, performance or
achievements to be materially different from any future results, performance or
achievements expressed or implied by us in those statements include, among
others, the following:
. national and local economic and business conditions, including the
continuing effect of the terrorist attacks of September 11, 2001 on
travel, that will affect, among other things, demand for products and
services at our hotels, the level of room rates and occupancy that can be
achieved by such properties and the availability and terms of financing
and our liquidity;
. our ability to maintain the properties in a first-class manner, including
meeting capital expenditure requirements;
. our ability to compete effectively in areas such as access, location,
quality of accommodations and room rate structures;
. our degree of leverage which may affect our ability to obtain financing
in the future;
. our degree of compliance with current debt covenants;
. our ability to acquire or develop additional properties and the risk that
potential acquisitions or developments may not perform in accordance with
expectations;
. changes in travel patterns, taxes and government regulations which
influence or determine wages, prices, construction procedures and costs;
. government approvals, actions and initiatives, including the need for
compliance with environmental and safety requirements, and changes in
laws and regulations or the interpretation thereof;
. the effects of tax legislative action, including specified provisions of
the REIT Modernization Act;
. our ability to satisfy complex rules in order for us to qualify as a REIT
for federal income tax purposes, the Operating Partnership's ability to
satisfy the rules in order for it to qualify as a partnership for federal
income tax purposes, and the ability of certain of our subsidiaries to
qualify as taxable REIT subsidiaries for federal income tax purposes, and
our ability and the ability of our subsidiaries to operate effectively
within the limitations imposed by these rules; and
. other factors discussed under the heading "Risk Factor" in this
prospectus and in our other filings with the SEC.
All forward-looking statements in this prospectus and the information
incorporated by reference into this prospectus are made as of the date hereof
or thereof, and we caution you not to rely on these statements without also
considering the risks and uncertainties associated with these statements and
our business that are addressed in this prospectus and the information
incorporated by reference into this prospectus. Moreover, although we believe
the expectations reflected in our forward-looking statements are based upon
reasonable assumptions, we can give no assurance that we will attain these
expectations or that any deviations will not be material. Except as otherwise
required by the federal securities laws, we disclaim any obligations or
undertaking to disseminate to you any updates or revisions to any
forward-looking statement contained in this prospectus or any information
incorporated by reference into this prospectus.
4
THE COMPANY
We are a self-managed and self-administered REIT owning full-service hotel
properties. Through our subsidiaries, we currently own or hold controlling
interests in 123 hotels, containing approximately 59,000 rooms located
throughout the United States, in Toronto and Calgary, Canada and in Mexico
City, Mexico. Our hotels are generally operated under the Marriott,
Ritz-Carlton, Four Seasons, Hyatt, Hilton and Swissotel brand names. These
brands are among the most respected and widely recognized names in the lodging
industry.
We were formed as a Maryland corporation in 1998. As part of our efforts to
reorganize our business operations to qualify as a REIT for federal income tax
purposes, on December 29, 1998 we succeeded by merger to the hotel ownership
business formerly conducted by Host Marriott Corporation, a Delaware
corporation. We conduct our business as an umbrella partnership REIT, or
UPREIT, through the Operating Partnership, which is a Delaware limited
partnership of which we are the sole general partner and in which we currently
hold approximately 90% of the partnership interests. The Operating Partnership
leases substantially all of our full-service hotels to HMT Lessee, a wholly
owned subsidiary of it that is taxed as a corporation.
Our principal executive offices are located at 6903 Rockledge Drive, Suite
1500, Bethesda, Maryland 20817, and our telephone number is (240) 744-1000.
5
THE OFFERING
This prospectus relates to the resale by the selling shareholders of up to
6,875,844 shares of our common stock that we may issue to the selling
shareholders upon tender for redemption of up to 6,875,844 OP Units owned by
the selling shareholders. The selling shareholders received these OP Units upon
the exchange of a portion of their limited partnership interests in our
subsidiary, Pacific Gateway, Ltd., pursuant to an agreement among the Operating
Partnership, Pacific Gateway, the selling shareholders and affiliates of the
selling shareholders that are also limited partners of Pacific Gateway.
NO PROCEEDS TO THE COMPANY
We will not receive any proceeds upon the sale of the common stock covered
by this prospectus, but we will incur expenses in connection with the filing of
the registration statement of which this prospectus forms a part.
TAX STATUS OF THE COMPANY
We believe that we have been organized and have operated in such a manner so
as to qualify as a REIT under the Internal Revenue Code, commencing with our
taxable year beginning January 1, 1999. A REIT generally is not taxed at the
corporate level on income it currently distributes to its shareholders as long
as it distributes currently at least 90% of its taxable income (excluding net
capital gain). No assurance can be provided that we will qualify as a REIT or
that new legislation, Treasury Regulations, administrative interpretations or
court decisions will not significantly change the tax laws with respect to our
qualification as a REIT or the federal income tax consequences of such
qualification. Even if we qualify as a REIT, we will be subject to corporate
level taxes on specified gains that we recognize prior to January 1, 2009,
including significant deferred tax gains that are likely to be recognized
during that period without our receipt of any cash. In addition, some of our
subsidiaries, including HMT Lessee, are subject to corporate income taxes. See
"Material Federal Income Tax Consequences," incorporated by reference to our
Form 8-K dated February 8, 2002, for a more detailed explanation.
6
SELLING SHAREHOLDERS
All of the 6,875,844 shares of common stock offered by the selling
shareholders under this prospectus represent shares of common stock that may be
issued by us upon the redemption of up to 6,875,844 OP Units held by the
selling shareholders. The selling shareholders do not currently own any shares
of common stock. The following table provides the name of each selling
shareholder and the number of shares of common stock to be offered under this
prospectus upon redemption of a corresponding number of OP Units held by such
selling shareholder. Since each selling shareholder may sell all, some or none
of the shares of common stock covered by this prospectus, no estimate can be
made of the number of shares of common stock that will be sold by the selling
shareholders or that will be owned by the selling shareholders upon completion
of the offering.
Number of
Common Shares
Selling Shareholders Offered Hereby
-------------------- --------------
Douglas F. Manchester.............. 236,317
Landmark Hospitality Services, Inc. 4,107,006
Interhotel Company, Ltd............ 2,241,742
Summit Resources, Ltd.............. 290,779
As a result of the transactions described in "Plan of Distribution" below,
Bear, Stearns International Limited may also be deemed to be a selling
shareholder with respect to 5,607,006 of the 6,875,844 shares of our common
stock offered hereby. Bear Stearns International currently owns no shares of
our common stock for its own account. Since Bear Stearns International, as a
selling shareholder, may sell all, some or none of such 5,607,006 shares of our
common stock, no estimate can be made of the number of shares of common stock
that will be sold by Bear Stearns International or that will be owned by Bear
Stearns International upon completion of the offering.
The shares of common stock covered by this prospectus represent
approximately 2.6% of the total shares of common stock outstanding as of the
date hereof.
7
PLAN OF DISTRIBUTION
Each selling shareholder and its pledgees, donees, transferees and other
successors in interest may from time to time, in one or more transactions, sell
all or a portion of the shares of common stock covered by this prospectus on
the New York Stock Exchange, in the over-the-counter market, on any other
national securities exchange on which the common stock is listed or traded, in
negotiated transactions or otherwise, at prices then prevailing or related to
the then current market price or at negotiated prices. The offering price of
the shares of common stock covered by this prospectus will be determined from
time to time by the selling shareholder or any such pledgee, donee, transferee
or other successor in interest and, at the time of such determination, may be
higher or lower than the market price of the common stock on the New York Stock
Exchange. The shares of common stock may be sold directly or through
broker-dealers acting as principal or agent. The methods by which the offered
shares may be sold include:
. block trade in which a broker-dealer will attempt to sell the shares of
common stock as agent but may position and resell a portion of the block
as principal to facilitate the transaction;
. purchases by a broker-dealer as principal and resale by the broker-dealer
for its account pursuant to this prospectus;
. ordinary brokerage transactions and transactions in which the broker
solicits purchasers;
. an exchange distribution in accordance with the rules of the New York
Stock Exchange; and
. privately negotiated transactions.
Each selling shareholder may also undertake one or more of the following
transactions in connection with the distribution of the shares of common stock
or otherwise:
. enter into hedging transactions with broker-dealers who, in connection
with such transactions, may engage in short sales of the shares of common
stock covered by this prospectus in the course of hedging the positions
they assume with the selling shareholder;
. sell shares of common stock covered by this prospectus short and
redeliver the shares to close out such short positions;
. enter into option or other transactions with broker-dealers which require
the selling shareholder to deliver the shares of common stock covered by
this prospectus to the broker-dealer, so that the broker-dealer may
resell or otherwise transfer the shares of common stock covered by this
prospectus; or
. loan or pledge the shares of common stock covered by this prospectus to a
broker-dealer, who in turn may:
(1) sell the shares of common stock so loaned under this prospectus; or
(2) upon a default, sell the shares of common stock so pledged, under
this prospectus.
Each selling shareholder and any broker-dealers or agents participating in
the distribution of the offered shares may be deemed to be "underwriters"
within the meaning of the Securities Act, and any profit on the sale of the
offered shares by any selling shareholder and any commissions received by any
such broker-dealers may be deemed to be underwriting commissions under the
Securities Act.
In order to comply with the securities laws of certain states, if
applicable, the shares of common stock covered by this prospectus may be sold
only through registered or licensed brokers or dealers. In addition, in certain
states, the shares of common stock may not be sold unless they have been
registered or qualified for sale in such state or an exemption from such
registration or qualification requirement is available and is complied with.
8
We have agreed to pay costs and expenses incurred in connection with the
filing of the registration statement of which this prospectus forms a part,
including registration and filing fees, printing expenses and fees and expenses
of our accountants. With respect to costs and expenses of our legal counsel, we
have agreed to pay one-half of such costs and expenses. The selling
shareholders will pay any brokerage fees and commissions, fees and
disbursements of legal counsel for themselves and stock transfer and other
taxes attributable to the sale of their shares of common stock covered by this
prospectus and the other half of the costs and expenses of our legal counsel
referred to in the preceding sentence.
We understand that two of the selling shareholders, Landmark Hospitality
Services, Inc. and Interhotel Company, Ltd., have entered into separate option
transactions with Bear, Stearns International Limited pursuant to which they
may be required to deliver up to 4,107,006 and 1,500,000 shares of our common
stock covered by this prospectus, respectively, to Bear Stearns International.
To secure their respective obligations under these transactions, Landmark and
Interhotel have pledged 4,107,006 and 1,500,000 OP Units, respectively, to Bear
Stearns International. The OP Units are redeemable for cash or, at our
election, shares of our common stock on a one-for-one basis. If Landmark and/or
Interhotel delivers shares of our common stock to Bear Stearns International or
defaults under its respective option transaction with Bear Stearns
International, Bear Stearns International may resell such shares of common
stock as a selling shareholder or pledgee, as the case may be.
9
LEGAL MATTERS
In connection with this prospectus, Hogan & Hartson L.L.P. has provided its
opinion as to the validity of the issuance of the common stock offered by this
prospectus and as to our qualification as a REIT for federal income tax
purposes.
EXPERTS
The audited financial statements and schedules incorporated by reference in
this prospectus and elsewhere in this registration statement have been audited
by Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are included therein in reliance upon the
authority of said firm as experts in giving said reports.
After reasonable efforts, we have not been able to obtain the consent of
Arthur Andersen LLP to the incorporation by reference of their report in this
prospectus. As a result, in reliance upon Rule 437a under the Securities Act of
1933, we have not filed a consent of Arthur Andersen LLP. Because Arthur
Andersen LLP has not consented to the incorporation by reference of their
report in this prospectus, you will not be able to recover against Arthur
Andersen LLP under Section 11 of the Securities Act for any untrue statements
of a material fact contained in the financial statements audited by Arthur
Andersen LLP or any omissions to state a material fact required to be stated
therein. See also "Risk Factor--You may not be able to seek remedies or recover
against Arthur Andersen LLP" above and "Risk Factors--Our former independent
public accountant Arthur Andersen LLP is likely to cease operating after having
been found guilty of federal obstruction of justice charges arising from the
government's investigation of Enron Corporation and, as a result, it is
unlikely that you will be able to exercise effective remedies against them in
any future legal action" incorporated by reference from our Form 10-Q dated
July 29, 2002.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC under the Securities Act of 1933.
This prospectus does not contain all of the information included in the
registration statement. We have omitted parts of the registration statement in
accordance with the rules and regulations of the SEC. For further information,
we refer you to the registration statement on Form S-3, including its exhibits.
Statements contained in this prospectus about the provisions or contents of any
agreement or other document are not necessarily complete. If the SEC rules and
regulations require that such agreement or document be filed as an exhibit to
the registration statement, please see such agreement or document for a
complete description of these matters. This prospectus may be accompanied by a
prospectus supplement. You should not assume that the information in this
prospectus or any prospectus supplement is accurate as of any date other than
the date on the front cover of this prospectus or such prospectus supplement.
You should read this prospectus together with additional information described
under the heading "Where You Can Find More Information."
10
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy materials that we have filed
with the SEC, including the registration statement, at the following SEC public
reference rooms:
450 Fifth Street, N.W. 500 West Madison Street
Room 1024 Suite 1400
Washington, D.C. 20549 Chicago, Illinois 60661
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms.
Our SEC filings can also be read at the following address:
New York Stock Exchange
20 Broad Street
New York, New York 10005
Our SEC filings are also available to the public on the SEC's Web Site at
http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below. In addition, any future
filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 until we have sold all of the offered
securities to which this prospectus relates or the offering is otherwise
terminated will be deemed to be incorporated by reference into this prospectus.
1. Quarterly Report on Form 10-Q for the quarter ended June 14, 2002 (filed
with the SEC on July 29, 2002).
2. Current Report on Form 8-K (filed with the SEC on June 14, 2002).
3. Current Report on Form 8-K (filed with the SEC on May 24, 2002).
4. Quarterly Report on Form 10-Q for the quarter ended March 22, 2002
(filed with the SEC on May 6, 2002).
5. Annual Report on Form 10-K for the fiscal year ended December 31, 2001
(filed with the SEC on March 29, 2002).
6. Current Report on Form 8-K (filed with the SEC on February 8, 2002).
7. Description of our common stock included in a Registration Statement on
Form 8-A (filed with the SEC on November 18, 1998) (as amended on
December 28, 1998).
8. Description of our Rights included in a Registration Statement on Form
8-A (filed with the SEC on December 11, 1998) (as amended on December
24, 1998).
Additional federal income tax consequences that are reasonably anticipated
to be material to prospective holders in connection with the purchase,
ownership and disposition of our securities are described in our Current Report
on Form 8-K, filed with the SEC on February 8, 2002 (together with any
amendments to such filing), which filing is incorporated by reference herein,
as indicated above.
You may request a copy of any filing incorporated by reference into this
prospectus, at no cost, by writing us at the following address or contacting us
by telephone at (240) 744-1000 between the hours of 9:00 a.m. and 4:00 p.m.,
Eastern Time:
Corporate Secretary
Host Marriott Corporation
6903 Rockledge Drive
Suite 1500
Bethesda, Maryland 20817
11
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth those expenses for distribution to be
incurred in connection with the issuance and distribution of the securities
being registered.
Registration Fee................. $ 6,098
Printing and Duplicating Expenses $ 5,000
Legal Fees and Expenses.......... $50,000
Accounting Fees and Expenses..... $10,000
Miscellaneous.................... $ 5,000
-------
Total............................ $76,098
=======
Item 15. Indemnification of Directors and Officers
The Maryland General Corporation Law, as amended (the "MGCL"), permits a
Maryland corporation to indemnify and advance expenses to its directors,
officers, employees and agents, and 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 the MGCL, a Maryland corporation may not indemnify a director or officer
in a suit by or in the right of the corporation if such director or officer has
been adjudged to be liable to the corporation.
Host Marriott's Articles of Amendment and Restatement of Articles of
Incorporation (the "Articles of Incorporation") require it to indemnify its
directors and officers, whether serving Host Marriott or at Host Marriott's
request any other entity, to the full extent permitted by Maryland law,
including the advance of expenses to the full extent permitted by law. The
Articles of Incorporation permits Host Marriott to indemnify other employees
and agents of Host Marriott to such extent as shall be authorized by the Board
of Directors or Host Marriott's Bylaws (the "Bylaws") and be permitted by law.
The Bylaws require Host Marriott, to the maximum extent permitted by
Maryland law, to indemnify (i) any director or officer of Host Marriott or
former director or officer of Host Marriott (including any individual who,
while a director or officer of Host Marriott and at the express request of Host
Marriott, serves or has served another corporation, partnership, joint venture,
trust, employee benefit plan or any other enterprise as a director, officer,
partner or trustee of such entity) who has been successful, on the merits or
otherwise, in the defense of a proceeding to which the individual was made a
party by reason of service in such capacity, against reasonable expenses
incurred by him in connection with the proceeding, and (ii) any director or
officer or any former director or officer against any claim or liability to
which he or she may become subject by reason of such status unless it is
established that (a) his act or omission was material to the matter giving rise
to the proceeding and was committed in bad faith or was the result or active
and deliberate dishonesty, (b) he or she actually received an improper personal
benefit in money, property or services or (c) in the case of a criminal
proceeding, he or she had reasonable cause to believe that his act or omission
was unlawful.
Host Marriott's Bylaws obligate it to indemnify and to pay or reimburse
reasonable expenses in advance of final disposition of a proceeding to any
present or former director or officer who is made a party to the proceeding by
reason of his service in that capacity, provided that, in the case of a
director or officer, Host Marriott shall have received (a) a written
affirmation by the director or officer of the officer's good faith belief that
he or she has met the applicable standard of conduct necessary for
indemnification by Host Marriott as
II-1
authorized by the Bylaws and (ii) a written undertaking by or on his or her
behalf to repay the amount paid or reimbursed by Host Marriott if it shall
ultimately be determined that the applicable standard of conduct was not met.
The Amended and Restated Agreement of Limited Partnership of the Operating
Partnership also provides for indemnification of Host Marriott and its officers
and directors to the same extent that indemnification is provided to officers
and directors of Host Marriott in its Articles of Incorporation, and limits the
liability of Host Marriott and its officers and directors to the Operating
Partnership and its respective partners to the same extent that the liability
of the officers and directors of Host Marriott to the Company and its
stockholders is limited under Host Marriott's Articles of Incorporation.
Item 16. Exhibits
Exhibit Index
Exhibit
No. Description
------- -----------
2.1 Agreement and Plan of Merger by and among Host Marriott Corporation, HMC Merger
Corporation and Host Marriott L.P. (incorporated by reference to Host Marriott Corporation
Registration Statement No. 333-64793).
3.1* Bylaws of Host Marriott Corporation as amended effective August 1, 2002.
4.1 Form of Common Stock Certificate of Host Marriott Corporation (incorporated by reference to
Host Marriott Corporation Registration Statement No. 333-55807).
4.2(i) Guarantee Agreement, dated December 2, 1996, between Host Marriott Corporation and IBJ
Schroeder Bank & Trust Company, as Guarantee Trustee (incorporated by reference to Exhibit
4.6 of Host Marriott Corporation Registration Statement No. 333-19923).
4.2(ii) Amendment No. 1, dated December 29, 1998, to Guarantee Agreement, dated December 2, 1996
(incorporated by reference to Exhibit 4.2 to Host Marriott Corporation Current Report on Form
8-K, dated December 30, 1998).
4.3(i) Rights Agreement between Host Marriott Corporation and The Bank of New York, as Rights
Agent, dated as of November 23, 1998 (incorporated by reference to Exhibit 4.1 to Host Marriott
Corporation Registration Statement on Form 8-A dated December 11, 1998).
4.3(ii) Amendment No. 1 to Rights Agreement between Host Marriott Corporation and The Bank of New
York, as Rights Agent, dated as of December 18, 1998 (incorporated by reference to Exhibit 4.2
to Host Marriott Corporation Amendment to Registration Statement on Form 8-A/A dated
December 24, 1998).
4.3(iii)* Amendment No. 2 to Rights Agreement between Host Marriott Corporation and The Bank of New
York, as Rights Agent, dated as of August 21, 2002.
4.4 Amended and Restated Indenture dated as of August 5, 1998, by and among HMH Properties, Inc., as
Issuer, and the Subsidiary Guarantors named therein, and Marine Midland Bank, as Trustee
(incorporated by reference to Host Marriott Corporation Current Report on Form 8-K dated August
6, 1998).
4.5 First Supplemental Indenture to Amended and Restated Indenture dated as of August 5, 1998 among
HMH Properties, Inc., the Guarantors and Subsidiary Guarantors named in the Amended and
Restated Indenture, dated as of August 5, 1998, and Marine Midland Bank, as Trustee (the "Trustee")
(incorporated by reference to Host Marriott Corporation Current Report on Form 8-K dated August 6,
1998).
4.6 Second Supplemental Indenture, dated as of December 11, 1998, among HMH Properties, Inc., a
Delaware corporation (the "Company"), the Guarantors and Subsidiary Guarantors named in the
Amended and Restated Indenture, dated as of August 5, 1998 (the "Indenture"), and Marine
Midland Bank, as Trustee (incorporated by reference to Host Marriott Corporation Current
Report on Form 8-K dated December 11, 1998).
II-2
Exhibit
No. Description
------- -----------
4.7 Third Supplemental Indenture, dated as of December 14, 1998, by and among HMH Properties Inc.,
Host Marriott, L.P., the entities identified as New Subsidiary Guarantors and Marine Midland
Band, as Trustee, to Amended and Restated Indenture, dated as of August 5, 1998, among the
Company, the Guarantors named therein and Subsidiary Guarantors named therein and the
Trustee (incorporated by reference to Exhibit 4.3 of Host Marriott, L.P.'s Registration Statement
No. 333-55807).
4.8 Fourth Supplemental Indenture, dated as of February 25, 1999, among Host Marriott, L.P. the
Subsidiary Guarantors signatory to the Fourth Supplemental Indenture and Marine Midland Bank
as Trustee to the Amended and Restated Indenture, dated as of August 5, 1998, as amended and
supplemented through the date of the Fourth Supplemental Indenture (incorporated by reference
to Exhibit 4.2 of Host Marriott, L.P.'s Registration Statement No. 333-79275).
4.9 Sixth Supplemental Indenture, dated as of October 6, 2000, among Host Marriott, L.P., the
Subsidiary Guarantors signatory to the Sixth Supplemental Indenture and HSBC Bank USA
(formerly Marine Midland Bank), as Trustee to the Amended and Restated Indenture, dated as of
August 5, 1998, as amended and supplemented through the date of the Sixth Supplemental
Indenture (incorporated by reference to Exhibit 4.2 of Host Marriott, L.P.'s Registration
Statement No. 333-51944).
4.10 Ninth Supplemental Indenture, dated as of December 14, 2001, among Host Marriott, L.P. the
Subsidiary Guarantors signatory to the Ninth Supplemental Indenture and HSBC Bank USA
(formerly Marine Midland Bank), as Trustee to the Amended and Restated Indenture, dated as of
August 5, 1998, as amended and supplemented through the date of the Ninth Supplemental
Indenture (incorporated by reference to Exhibit 4.2 of Host Marriott, L.P.'s Registration
Statement No.333-76550).
4.11(i) Indenture for the 6 3/4% Convertible Debentures, dated December 2, 1996, between Host Marriott
Corporation and IBJ Schroeder Bank & Trust Company, as Indenture Trustee (incorporated by
reference to Exhibit 4.3 of Host Marriott Corporation Registration Statement No. 333-19923).
4.11(ii) First Supplemental Indenture, dated December 29, 1998, to Indenture, dated December 2, 1996, by
and among Host Marriott Corporation, HMC Merger Corporation, Host Marriott, L.P. and IBJ
Schroder Bank & Trust Company (incorportated by reference to Exhibit 4.1 of Host Marriott
Corporation Current report on Form 8-K, dated December 30, 1998).
4.12 Amended and Restated Trust Agreement, dated December 2, 1996, among Host Marriott
Corporation, IBJ Schroeder Bank & Trust Company, as Property Trustee, Delaware Trust Capital
Management, Inc., as Delaware Trustee, and Robert E. Parsons, Jr., Bruce D. Wardinski and
Christopher G. Townsend, as Administrative Trustees (incorporated by reference to Exhibit 4.2
of Host Marriott Corporation Registration Statement No. 333-19923).
4.13 Amended and Restated Trust Agreement, dated as of December 29, 1998, among HMC Merger
Corporation, as Depositor, IBJ Schroder Bank & Trust Company, as Property Trustee, Delaware
Trust Capital Management, Inc., as Delaware Trustee, and Robert E. Parsons, Jr., Ed Walter and
Christopher G. Townsend, as Administrative Trustees (incorporated by reference to Host Marriott
Corporation 1998 Annual Report of Form 10-K filed March 26, 1999).
5.1# Opinion of Hogan & Hartson L.L.P. regarding the legality of the securities being registered.
8.1# Opinion of Hogan & Hartson L.L.P. regarding certain tax matters.
23.1 Consent of Hogan & Hartson L.L.P. (included as part of Exhibit 5.1).
23.2 Consent of Hogan & Hartson L.L.P. (included as part of Exhibit 8.1).
24.1# Power of Attorney (included in signature page).
99.1 Description of Material Federal Income Tax Consequences (incorporated by reference to Exhibit 99.1 of
Host Marriott Corporation's Current Report on Form 8-K filed with the SEC on February 8, 2002).
--------
# Previously filed.
* Filed herewith.
II-3
Item 17. Undertakings
(a) The undersigned Registrant 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 of 1933;
(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 this 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 SEC 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;
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 paragraphs (a)(1)(i) and (a)(1)(ii) above shall 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 SEC by the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
herein, 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 undersigned Registrant hereby further undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to existing provisions or arrangements whereby the
Registrant may indemnify a director, officer or controlling person of the
Registrant against liabilities arising under the Securities Act of 1933, or
otherwise, the Registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act of
1933 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 of 1933 and will be governed by the final adjudication of such
issue.
II-4
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN BETHESDA, MARYLAND, ON THIS 27/TH/ DAY OF AUGUST, 2002.
HOST MARRIOTT CORPORATION
By: /S/ ROBERT E. PARSONS, JR.
-----------------------------
Robert E. Parsons, Jr.
Executive Vice President and
Chief Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED AS OF THE 27/TH/ DAY OF AUGUST, 2002.
Signature Title
--------- -----
* President, Chief Executive
----------------------------- Officer and Director
Christopher J. Nassetta (principal executive
officer)
Executive Vice President and
/s/ ROBERT E. PARSONS, JR. Chief Financial Officer
----------------------------- (principal financial
Robert E. Parsons, Jr. officer)
Senior Vice President and
* Corporate Controller
----------------------------- (principal accounting
Donald D. Olinger officer)
* Chairman of the Board of
----------------------------- Directors
Richard E. Marriott
* Director
-----------------------------
Robert M. Baylis
* Director
-----------------------------
Terence C. Golden
* Director
-----------------------------
Ann McLaughlin Korologos
* Director
-----------------------------
John G. Schreiber
--------
* Pursuant to Power of Attorney
By: /S/ ROBERT E. PARSONS,
JR.
-------------------------
Robert E. Parsons, Jr.
As Attorney-In-Fact
II-5
EXHIBIT INDEX
Item 16 of the accompanying registration statement is incorporated by
reference herein.
II-6