sv11za
As filed with the Securities
and Exchange Commission on July 21, 2010
Registration
No. 333-168078
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Amendment No. 2
to
Form S-11
FOR REGISTRATION
UNDER
THE SECURITIES ACT OF 1933
OF SECURITIES
OF CERTAIN REAL ESTATE COMPANIES
PEBBLEBROOK HOTEL
TRUST
(Exact name of registrant as
specified in governing instruments)
2 Bethesda Metro Center,
Suite 1530
Bethesda, MD 20814
(240) 507-1300
(Address, including
zip code, and telephone number, including area code, of
registrant’s principal executive offices)
Jon E. Bortz
Chairman, President and Chief Executive Officer
2 Bethesda Metro Center, Suite 1530
Bethesda, MD 20814
(240) 507-1300
(Name, address,
including zip code, and telephone number, including area code,
of agent for service)
Copies to:
| |
|
|
David C. Wright
Hunton & Williams LLP
Riverfront Plaza, East Tower
951 E. Byrd Street
Richmond, Virginia
23219-4074
(804) 788-8200
(804) 788-8218
(Telecopy)
|
|
James O’Connor
Bartholomew A. Sheehan
Sidley Austin LLP
787 Seventh Avenue
New York, New York 10019
(212) 839-5300
(212) 839-5599 (Telecopy)
|
Approximate date of commencement of proposed sale to the
public: As soon as practicable after the effective date of
this Registration Statement.
If any of the Securities registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act, check the following
box: o
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) 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. o
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. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) 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. o
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box.
o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
“large accelerated filer,” “accelerated
filer” and “smaller reporting company” in Rule
12b-2 of the
Exchange Act. (Check one):
|
|
|
|
| Large
accelerated
filer o
|
Accelerated
filer o
|
Non-accelerated
filer þ
|
Smaller reporting
company o
|
(Do not check if a smaller
reporting company)
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.
Explanatory
Note
This Amendment No. 2 is being filed solely to file certain
exhibits hereto. No changes have been made to the preliminary
prospectus constituting Part I of the Registration
Statement.
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
|
|
|
Item 31.
|
Other
Expenses of Issuance and Distribution.
|
The following table sets forth the costs and expenses of the
sale and distribution of the securities being registered, all of
which are being borne by the Registrant.
| |
|
|
|
|
|
SEC registration fee
|
|
$
|
25,118
|
|
|
FINRA filing fee
|
|
|
35,500
|
|
|
NYSE fees
|
|
|
79,200
|
|
|
Printing and engraving fees
|
|
|
100,000
|
|
|
Legal fees and expenses
|
|
|
350,000
|
|
|
Accounting fees and expenses
|
|
|
100,000
|
|
|
Blue Sky fees and expenses (including legal fees)
|
|
|
10,000
|
|
|
Miscellaneous expenses
|
|
|
100,182
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
800,000
|
|
|
|
|
|
|
|
All expenses, except the SEC registration fee and FINRA filing
fee, are estimated.
|
|
|
Item 32.
|
Sales
to Special Parties.
|
On October 6, 2009, we issued 1,000 common shares to
Mr. Bortz in connection with the formation and initial
capitalization of our company for an aggregate purchase price of
$1,000. We redeemed the shares from Mr. Bortz for $1,000
upon completion of our initial public offering.
|
|
|
Item 33.
|
Recent
Sales of Unregistered Securities.
|
We have issued the following securities that were not registered
under the Securities Act of 1933, as amended (the
“Securities Act”):
On October 6, 2009, we issued 1,000 common shares to
Mr. Bortz in connection with the formation and initial
capitalization of our company for an aggregate purchase price of
$1,000. We redeemed the shares from Mr. Bortz for $1,000
upon completion of our initial public offering.
The shares were issued in reliance on the exemption set forth in
Section 4(2) of the Securities Act and Rule 506 of
Regulation D thereunder. Mr. Bortz is our Chairman,
President and Chief Executive Officer and has represented to us
that he is an “accredited investor” as defined in
Rule 501 under the Securities Act.
On December 14, 2009, we sold 125,000 common shares to
Mr. Bortz and 10,000 common shares to Mr. Martz, our
Executive Vice President and Chief Financial Officer, in a
private placement concurrently with the closing of our initial
public offering at a price per share of $20.00, which was equal
to the public offering price in that offering. The shares were
sold to Messrs. Bortz and Martz in reliance on the
exemption set forth in Section 4(2) of the Securities Act
and Rule 506 of Regulation D thereunder. Each of
Mr. Bortz and Mr. Martz has represented to us that he
is an “accredited investor” as defined in
Rule 501 under the Securities Act.
II-1
|
|
|
Item 34.
|
Indemnification
of Trustees and Officers.
|
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 real estate
investment 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 or deliberate dishonesty established by a final
judgment as being material to the cause of action. Our
declaration of trust contains a provision which limits the
liability of our trustees and officers to the maximum extent
permitted by Maryland law.
Our declaration of trust permits us and our bylaws obligate us,
to the maximum extent permitted by Maryland law, to indemnify
and to pay or reimburse reasonable expenses in advance of final
disposition of a proceeding to (a) any present or former
trustee or officer or (b) any individual who, while a
trustee or officer and at our request, serves or has served
another real estate investment trust, corporation, partnership,
limited liability company, joint venture, trust, employee
benefit plan or any other enterprise as a director, trustee,
officer, member, manager or partner and who is made or is
threatened to be made a party to the proceeding by reason of his
or her service in any such capacity, from and against any claim
or liability to which that individual may become subject or
which that individual may incur by reason of his or her service
in any such capacity and to pay or reimburse his or her
reasonable expenses in advance of final disposition of a
proceeding. Our declaration of trust and bylaws also permit us
to indemnify and advance expenses to any person who served a
predecessor of our company in any of the capacities described
above and to any employee or agent of our company or a
predecessor of our company. Maryland law requires us to
indemnify a trustee or officer who has been successful, on the
merits or otherwise, in the defense of any proceeding to which
he is made a party by reason of his service in that capacity.
The Maryland General Corporation 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.
The MGCL 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 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 a 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 has reasonable cause to believe that the act or omission
was unlawful. However, a Maryland corporation may not indemnify
for an adverse judgment in a suit by or in the right if the
corporation or if the director or officer was adjudged to be
liable for an improper personal benefit, unless in either case a
court orders indemnification and then only for expenses. In
accordance with the Maryland General Corporation Law and our
bylaws, our bylaws require us, as a condition to advancing
expenses, to obtain (a) a written affirmation by the
trustee or officer of his or her good faith belief that he or
she has met the standard of conduct necessary for
indemnification and (b) a written statement by or on his or
her behalf to repay the amount paid or reimbursed by us if it
shall ultimately be determined that the standard of conduct was
not met.
We have entered into indemnification agreements with our
trustees and our executive officers providing for procedures for
indemnification by us to the fullest extent permitted by law and
advancements by us of certain expenses and costs relating to
claims, suits or proceedings arising from their service to us.
II-2
We have obtained an insurance policy under which our trustees
and executive officers will be insured, subject to the limits of
the policy, against certain losses arising from claims made
against such trustees and officers by reason of any acts or
omissions covered under such policy in their respective
capacities as trustees or officers, including certain
liabilities under the Securities Act of 1933.
We have been advised that the SEC has expressed the opinion that
indemnification of trustees, officers or persons otherwise
controlling a company for liabilities arising under the
Securities Act of 1933 is against public policy and is therefore
unenforceable.
|
|
|
Item 35.
|
Treatment
of Proceeds from Shares Being Registered.
|
None of the net proceeds will be credited to an account other
than the appropriate capital share account.
|
|
|
Item 36.
|
Financial
Statements and Exhibits.
|
(a) Financial statements. See
page F-1
for an index of the financial statements included in the
Registration Statement.
(b) Exhibits. The following exhibits are filed
as part of, or incorporated by reference into, this registration
statement on
Form S-11:
| |
|
|
|
|
Exhibit
|
|
|
|
Number
|
|
Exhibit Description
|
|
|
|
|
1
|
.1**
|
|
Form of Underwriting Agreement by and among Pebblebrook Hotel
Trust, Pebblebrook Hotel, L.P. and the Underwriters named herein
|
|
|
3
|
.1*
|
|
Articles of Amendment and Restatement of Pebblebrook Hotel Trust
|
|
|
3
|
.2*
|
|
Bylaws of Pebblebrook Hotel Trust
|
|
|
3
|
.3
|
|
First Amended and Restated Agreement of Limited Partnership of
Pebblebrook Hotel,
L.P.(1)
|
|
|
5
|
.1*
|
|
Opinion of Venable LLP
|
|
|
8
|
.1*
|
|
Tax opinion of Hunton & Williams LLP
|
|
|
10
|
.1*
|
|
Pebblebrook Hotel Trust 2009 Equity Incentive Plan
|
|
|
10
|
.2
|
|
Change in Control Severance Agreement between Pebblebrook Hotel
Trust and Jon E.
Bortz(2)
|
|
|
10
|
.3
|
|
Change in Control Severance Agreement between Pebblebrook Hotel
Trust and Raymond D.
Martz(2)
|
|
|
10
|
.4
|
|
Change in Control Severance Agreement between Pebblebrook Hotel
Trust and Thomas C.
Fisher(2)
|
|
|
10
|
.5
|
|
Form of Indemnification Agreement between Pebblebrook Hotel
Trust and its officers and
trustees(3)
|
|
|
10
|
.6
|
|
Form of Share Award Agreement for officers and
employees(4)
|
|
|
10
|
.7
|
|
Form of Share Award Agreement for
trustees(4)
|
|
|
10
|
.8
|
|
Form of LTIP Unit Vesting
Agreement(5)
|
|
|
10
|
.9
|
|
Form of Subscription
Agreement(5)
|
|
|
10
|
.10
|
|
Credit Agreement (senior secured revolving credit
facility)(6)
|
|
|
10
|
.11*
|
|
Purchase and Sale Agreement (Hotel Monaco Washington DC)
|
|
|
10
|
.12
|
|
Purchase and Sale Agreement (Doubletree Bethesda Hotel and
Executive Meeting
Center)(7)
|
II-3
| |
|
|
|
|
Exhibit
|
|
|
|
Number
|
|
Exhibit Description
|
|
|
|
|
10
|
.13
|
|
Purchase and Sale Agreement (Sir Francis Drake
Hotel)(7)
|
|
|
10
|
.14
|
|
Purchase and Sale Agreement (InterContinental Buckhead
Hotel)(7)
|
|
|
10
|
.15
|
|
LTIP Unit Vesting Agreement between Pebblebrook Hotel Trust and
Jon E.
Bortz(2)
|
|
|
10
|
.16
|
|
LTIP Unit Vesting Agreement between Pebblebrook Hotel Trust and
Raymond D.
Martz(2)
|
|
|
10
|
.17
|
|
LTIP Unit Vesting Agreement between Pebblebrook Hotel Trust and
Thomas C.
Fisher(2)
|
|
|
10
|
.18
|
|
Share Award Agreement between Pebblebrook Hotel Trust and Jon E.
Bortz(8)
|
|
|
10
|
.19
|
|
Share Award Agreement between Pebblebrook Hotel Trust and
Raymond D.
Martz(8)
|
|
|
10
|
.20
|
|
Share Award Agreement between Pebblebrook Hotel Trust and Thomas
C.
Fisher(8)
|
|
|
21
|
.1*
|
|
List of Subsidiaries of Pebblebrook Hotel Trust
|
|
|
23
|
.1*
|
|
KPMG LLP Consent
|
|
|
23
|
.2*
|
|
Venable LLP Consent (included in Exhibit 5.1)
|
|
|
23
|
.3*
|
|
Hunton & Williams LLP Consent (included in
Exhibit 8.1)
|
|
|
24
|
.1*
|
|
Power of Attorney (included on signature page)
|
|
|
|
|
*
|
|
Previously filed.
|
| |
|
**
|
|
Filed herewith.
|
|
|
|
|
(1)
|
|
Incorporated by reference to the
Registrant’s Quarterly Report on
Form 10-Q
filed with the SEC on May 7, 2010
(File No. 001-34571).
|
|
|
|
|
(2)
|
|
Incorporated by reference to the
Registrant’s Annual Report on
Form 10-K
filed with the SEC on March 24, 2010 (File No.
001-34571).
|
| |
|
(3)
|
|
Incorporated by reference to the
Registrant’s Registration Statement on
Form S-11
filed with the SEC on November 10, 2009 (File
No. 333-162412).
|
| |
|
(4)
|
|
Incorporated by reference to the
Registrant’s Registration Statement on
Form S-11
filed with the SEC on November 25, 2009 (File
No. 333-162412).
|
| |
|
(5)
|
|
Incorporated by reference to the
Registrant’s Registration Statement on
Form S-11
filed with the SEC on December 3, 2009 (File
No. 333-162412).
|
| |
|
(6)
|
|
Incorporated by reference to the
Registrant’s Current Report on
Form 8-K
filed with the SEC on July 9, 2010
(File No. 001-34571).
|
| |
|
|
|
|
|
|
|
|
(7)
|
|
Incorporated by reference to the
Registrant’s Current Report on
Form 8-K/A
filed with the SEC on July 12, 2010 (File No.
001-34571).
|
| |
|
|
|
|
| |
|
(8)
|
|
Incorporated by reference to the
Registrant’s Current Report on
Form 8-K
filed with the SEC on March 16, 2010 (File No.
001-34571).
|
(a) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
trustees, officers or controlling persons of the registrant
pursuant to the foregoing provisions, 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 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 trustee, officer or
controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such trustee,
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
II-4
indemnification by it is against public policy as expressed in
the Act, and will be governed by the final adjudication of such
issue.
(b) The undersigned Registrant hereby further undertakes
that:
|
|
|
| |
(1)
|
For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance under
Rule 430A and contained in a form of prospectus filed by
the Registrant pursuant to Rule 424(b)(1) or (4), or 497(h)
under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
|
| |
| |
(2)
|
For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus 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.
|
II-5
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-11
and has duly caused this Amendment No. 2 to the Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Bethesda, State of
Maryland on the 21st day of July, 2010.
PEBBLEBROOK HOTEL TRUST
Jon E. Bortz
Chairman of the Board, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 2 to
Form S-11
has been signed below by the following persons in the capacities
and on the dates indicated.
| |
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
|
|
/s/ Jon
E. Bortz
Jon
E. Bortz
|
|
Chairman of the Board, President, Chief Executive Officer and
Trustee (Principal Executive Officer)
|
|
July 21, 2010
|
|
|
|
|
|
|
|
/s/ Raymond
D. Martz
Raymond
D. Martz
|
|
Executive Vice President, Chief Financial Officer, Treasurer and
Secretary (Principal Financial Officer and Principal Accounting
Officer)
|
|
July 21, 2010
|
|
|
|
|
|
|
|
*
Cydney
C. Donnell
|
|
Trustee
|
|
July 21, 2010
|
|
|
|
|
|
|
|
*
Ron
E. Jackson
|
|
Trustee
|
|
July 21, 2010
|
|
|
|
|
|
|
|
*
Michael
J. Schall
|
|
Trustee
|
|
July 21, 2010
|
|
|
|
|
|
|
|
*
Earl
E. Webb
|
|
Trustee
|
|
July 21, 2010
|
|
|
|
|
|
|
|
*
Laura
H. Wright
|
|
Trustee
|
|
July 21, 2010
|
|
|
|
|
|
|
*By: /s/ Jon
E. Bortz
Jon
E. Bortz
As Attorney-in-Fact
|
|
|
|
|
II-6
EXHIBIT INDEX
| |
|
|
|
|
Exhibit
|
|
|
|
Number
|
|
Exhibit Description
|
|
|
|
|
1
|
.1**
|
|
Form of Underwriting Agreement by and among Pebblebrook Hotel
Trust, Pebblebrook Hotel, L.P. and the Underwriters named herein
|
|
|
3
|
.1*
|
|
Articles of Amendment and Restatement of Pebblebrook Hotel Trust
|
|
|
3
|
.2*
|
|
Bylaws of Pebblebrook Hotel Trust
|
|
|
3
|
.3
|
|
First Amended and Restated Agreement of Limited Partnership of
Pebblebrook Hotel,
L.P.(1)
|
|
|
5
|
.1*
|
|
Opinion of Venable LLP
|
|
|
8
|
.1*
|
|
Tax opinion of Hunton & Williams LLP
|
|
|
10
|
.1*
|
|
Pebblebrook Hotel Trust 2009 Equity Incentive Plan
|
|
|
10
|
.2
|
|
Change in Control Severance Agreement between Pebblebrook Hotel
Trust and Jon E.
Bortz(2)
|
|
|
10
|
.3
|
|
Change in Control Severance Agreement between Pebblebrook Hotel
Trust and Raymond D.
Martz(2)
|
|
|
10
|
.4
|
|
Change in Control Severance Agreement between Pebblebrook Hotel
Trust and Thomas C.
Fisher(2)
|
|
|
10
|
.5
|
|
Form of Indemnification Agreement between Pebblebrook Hotel
Trust and its officers and
trustees(3)
|
|
|
10
|
.6
|
|
Form of Share Award Agreement for officers and
employees(4)
|
|
|
10
|
.7
|
|
Form of Share Award Agreement for
trustees(4)
|
|
|
10
|
.8
|
|
Form of LTIP Unit Vesting
Agreement(5)
|
|
|
10
|
.9
|
|
Form of Subscription
Agreement(5)
|
|
|
10
|
.10
|
|
Credit Agreement (senior secured revolving credit
facility)(6)
|
|
|
10
|
.11*
|
|
Purchase and Sale Agreement (Hotel Monaco Washington DC)
|
|
|
10
|
.12
|
|
Purchase and Sale Agreement (Doubletree Bethesda Hotel and
Executive Meeting
Center)(7)
|
|
|
10
|
.13
|
|
Purchase and Sale Agreement (Sir Francis Drake
Hotel)(7)
|
|
|
10
|
.14
|
|
Purchase and Sale Agreement (InterContinental Buckhead
Hotel)(7)
|
|
|
10
|
.15
|
|
LTIP Unit Vesting Agreement between Pebblebrook Hotel Trust and
Jon E.
Bortz(2)
|
|
|
10
|
.16
|
|
LTIP Unit Vesting Agreement between Pebblebrook Hotel Trust and
Raymond
D. Martz(2)
|
|
|
10
|
.17
|
|
LTIP Unit Vesting Agreement between Pebblebrook Hotel Trust and
Thomas
C. Fisher(2)
|
|
|
10
|
.18
|
|
Share Award Agreement between Pebblebrook Hotel Trust and Jon E.
Bortz(8)
|
|
|
10
|
.19
|
|
Share Award Agreement between Pebblebrook Hotel Trust and
Raymond D.
Martz(8)
|
|
|
10
|
.20
|
|
Share Award Agreement between Pebblebrook Hotel Trust and Thomas
C.
Fisher(8)
|
|
|
21
|
.1*
|
|
List of Subsidiaries of Pebblebrook Hotel Trust
|
|
|
23
|
.1*
|
|
KPMG LLP Consent
|
|
|
23
|
.2*
|
|
Venable LLP Consent (included in Exhibit 5.1)
|
|
|
23
|
.3*
|
|
Hunton & Williams LLP Consent (included in
Exhibit 8.1)
|
|
|
24
|
.1*
|
|
Power of Attorney (included on signature page)
|
|
|
|
|
*
|
|
Previously filed.
|
| |
|
**
|
|
Filed herewith.
|
|
|
|
|
(1)
|
|
Incorporated by reference to the
Registrant’s Quarterly Report on
Form 10-Q
filed with the SEC on May 7, 2010
(File No. 001-34571).
|
|
|
|
|
(2)
|
|
Incorporated by reference to the
Registrant’s Annual Report on
Form 10-K
filed with the SEC on March 24, 2010 (File
No. 001-34571).
|
II-7
|
|
|
|
(3)
|
|
Incorporated by reference to the
Registrant’s Registration Statement on
Form S-11
filed with the SEC on November 10, 2009 (File
No. 333-162412).
|
| |
|
(4)
|
|
Incorporated by reference to the
Registrant’s Registration Statement on
Form S-11
filed with the SEC on November 25, 2009 (File
No. 333-162412).
|
| |
|
(5)
|
|
Incorporated by reference to the
Registrant’s Registration Statement on
Form S-11
filed with the SEC on December 3, 2009 (File
No. 333-162412).
|
| |
|
(6)
|
|
Incorporated by reference to the
Registrant’s Current Report on
Form 8-K
filed with the SEC on July 9, 2010
(File No. 001-34571).
|
| |
|
(7)
|
|
Incorporated by reference to the
Registrant’s Current Report on
Form 8-K/A
filed with the SEC on July 12, 2010
(File No. 001-34571).
|
| |
|
(8)
|
|
Incorporated by reference to the
Registrant’s Current Report on
Form 8-K
filed with the SEC on March 16, 2010
(File No. 001-34571).
|
II-8