<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 23, 1997
Registration No. 333-
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------
KILROY REALTY CORPORATION
(Exact name of registrant as specified in its charter)
MARYLAND 95-4598246
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2250 EAST IMPERIAL HIGHWAY
EL SEGUNDO, CALIFORNIA 90245
(Address of principal executive offices) (Zip Code)
--------------
THE 1997 STOCK OPTION AND INCENTIVE PLAN
(Full Title of the Plan)
--------------
RICHARD E. MORAN JR.
EXECUTIVE VICE PRESIDENT,
CHIEF FINANCIAL OFFICER AND SECRETARY
KILROY REALTY CORPORATION
2250 EAST IMPERIAL HIGHWAY
EL SEGUNDO, CALIFORNIA 90245
(310) 563-5500
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
--------------
Copies to:
Edward Sonnenschein, Jr., Esq.
J. Scott Hodgkins, Esq.
Latham & Watkins
633 West Fifth Street, Suite 4000
Los Angeles, California 90071
(213) 485-1234
--------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------
Proposed
Amount Proposed Maximum
of Shares Maximum Aggregate Amount of
Title of Each Class of to be Offering Price Offering Registration
Securities to be Registered Registered (1) Per Share (2) Price (2) Fee
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,500,000 $ 23.00 $34,070,375 $10,051
$.01 par value $ 25.00
$25.3125
$ 27.25
$ .01
$27.3125
=================================================================================================
</TABLE>
(1) The 1997 Stock Option and Incentive Plan (the "Plan") authorizes the
issuance of a maximum of 1,500,000 shares of common stock (the "Common
Stock") of Kilroy Realty Corporation (the "Company"). Of such shares of
Common Stock, 100,000 shares have been issued as restricted shares of Common
Stock and 1,185,000 shares of Common Stock are subject to presently
outstanding options granted under the Plan as of the date hereof.
(2) Pursuant to Rule 457(h), the Proposed Maximum Offering Price Per Share is
based upon (a)(i) the exercise price per share ($23.00) of presently
outstanding options to purchase 815,000 shares of Common Stock, (ii) the
exercise price per share ($25.00) of presently outstanding options to
purchase 250,000 shares of Common Stock, (iii) the exercise price per share
($25.3125) of presently outstanding options to purchase 35,000 shares of
Common Stock, (iv) the exercise price per share ($27.25) of presently
outstanding options to purchase 85,000 shares of Common Stock, and (v) the
price per share ($.01) for 100,000 presently outstanding restricted shares
of Common Stock, and (b) for the remaining 215,000 shares of Common Stock,
the average of the high and low sales prices per share ($27.3125) of the
Company's Common Stock on the New York Stock Exchange as of December 18,
1997.
Page 1 of 7 pages
Exhibit Index appears on page 7
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
(plan information and registrant information) will be sent or given to plan
participants as specified by Rule 428(b)(1) of the Securities Act of 1933, as
amended (the "Securities Act"). 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 of the
Securities Act. These documents, which include the statement of availability
required by Item 2 of Form S-8, and the documents incorporated by reference in
this Registration Statement pursuant to Item 3 of Form S-8 (Part II hereof),
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.
The registrant, Kilroy Realty Corporation, a Maryland corporation (the
"Company"), hereby incorporates by reference the following documents in this
Registration Statement by reference:
(a) Description of the Company's Common Stock contained in the
Registration Statement on Form S-11 filed with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities
Act on July 28, 1997 (Registration No. 333-32261), as amended by
Amendment No. 1 thereto filed with the Commission on August 4, 1997,
and as amended by Amendment No. 2 thereto filed with the Commission
on August 14, 1997;
(b) The Company's Prospectus dated August 14, 1997 filed in connection
with the Registration Statement referred to in item 3(a) above
pursuant to Rule 424(b) under the Securities Act;
(c) The Company's quarterly reports on Form 10-Q for the quarters ended
March 31, 1997, June 30, 1997 and September 30, 1997; and
(d) The Company's current reports on Form 8-K filed October 29, 1997 and
November 7, 1997, and the Company's amended current report on Form
8-K/A filed December 19, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), 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, are incorporated by reference in this Registration Statement
and are a part hereof from the date of filing such documents. 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 herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
The Company's Common Stock is registered pursuant to Section 12 of the
Exchange Act and, therefore, the description of securities is omitted.
Page 2 of 7 pages
<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 2-418 of the Maryland General Corporation Law ("MGCL") permits
a corporation to indemnify its directors and officers and certain other parties
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 (i) the act or omission of the director or officer was
material to the matter giving rise to the proceeding and (a) was committed in
bad faith or (b) was the result of active and deliberate dishonesty; (ii) the
director or officer actually received an improper personal benefit in money,
property or services; or (iii) in the case of any criminal proceeding, the
director or officer had reasonable cause to believe that the act or omission was
unlawful. Indemnification may be made against judgments, penalties, fines,
settlements and reasonable expenses actually incurred by the director or officer
in connection with the proceeding; provided, however, that if the proceeding is
one by or in the right of the corporation, indemnification may not be made with
respect to any proceeding in which the director or officer has been adjudged to
be liable to the corporation. In addition, a director or officer may not be
indemnified with respect to any proceeding charging improper personal benefit to
the director or officer, whether or not involving action in the director's or
officer's official capacity, in which the director or officer was adjudged to be
liable on the basis that personal benefit was received. The termination of any
proceeding by conviction, or upon a plea of nolo contendere or its equivalent,
or an entry of any order of probation prior to judgment, creates a rebuttable
presumption that the director or officer did not meet the requisite standard of
conduct required for indemnification to be permitted.
In addition, Section 2-418 of the MGCL requires that, unless prohibited
by its charter, a corporation may indemnify any director or officer who is made
a party to any proceeding by reason of service in that capacity against
reasonable expenses incurred by the director or officer in connection with the
proceeding, in the event that the director or officer is successful, on the
merits or otherwise, in the defense of the proceeding.
The Company's Charter and Bylaws provide in effect for the
indemnification by the Company of the directors and officers of the Company to
the fullest extent permitted by applicable law. The Company has purchased
directors' and officers' liability insurance for the benefit of its directors
and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Page 3 of 7 pages
<PAGE>
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<C> <S>
3.1 Articles of Amendment and Restatement of the Company (filed as Exhibit 3.1
to the Company's Registration Statement on Form S-11 (Registration No.
333-15553) and incorporated herein by reference).
3.2 Amended and Restated Bylaws of the Company (filed as Exhibit 3.2 to the
Company's Registration Statement on Form S-11 (Registration No. 333-15553)
and incorporated herein by reference).
4.1 Specimen of Common Stock certificate of the Company (filed as Exhibit 3.3 to
the Company's Registration Statement on Form S-11 (Registration No.
333-15553) and incorporated herein by reference).
4.2 1997 Stock Option and Incentive Plan (filed as Exhibit 10.6 to the Company's
Registration Statement on Form S-11 (Registration No. 333-15553) and
incorporated herein by reference).
*5.1 Opinion of Ballard Spahr Andrews & Ingersoll as to the legality of the
securities being registered hereby.
*23.1 Consent of Deloitte & Touche LLP.
*23.2 Consent of Ballard Spahr Andrews & Ingersoll (included in Exhibit 5.1
hereto).
*24.1 Power of Attorney (included on page 6).
</TABLE>
_______________________
* Filed herewith
ITEM 9. UNDERTAKINGS.
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:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) 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
the Registration Statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
Page 4 of 7 pages
<PAGE>
(c) 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 (1)(a) and (1)(b) shall not apply to
information 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 this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
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 Section 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 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.
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 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 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.
Page 5 of 7 pages
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 El Segundo, State of California, on this 22nd
day of December 1997.
KILROY REALTY CORPORATION
By: /s/ John B. Kilroy, Jr.
--------------------------------
John B. Kilroy, Jr.
President, Chief Executive Officer and
Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints John B. Kilroy, Jr., Jeffrey C. Hawken, Richard
E. Moran Jr., Tyler H. Rose, Ann Marie Whitney, and each of them, with full
power to act without the other, such person's true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign this Registration
Statement, and any and all amendments thereto (including post-effective
amendments), and to file the same, with exhibits and schedules thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
necessary or desirable to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ John B. Kilroy, Sr. Chairman of the Board and December 22, 1997
- --------------------------------------- Director
John B. Kilroy, Sr.
/s/ John B. Kilroy, Jr. President, Chief Executive December 22, 1997
- --------------------------------------- Officer and Director
John B. Kilroy, Jr. (Principal Executive Officer)
/s/ Richard E. Moran Jr. Executive Vice President, Chief December 22, 1997
- --------------------------------------- Financial Officer and Secretary
Richard E. Moran Jr. (Principal Financial Officer)
/s/ William P. Dickey Director December 22, 1997
- ---------------------------------------
William P. Dickey
/s/ Matthew J. Hart Director December 22, 1997
- ---------------------------------------
Matthew J. Hart
/s/ Dale F. Kinsella Director December 22, 1997
- ---------------------------------------
Dale F. Kinsella
/s/ Richard S. Allen Director December 22, 1997
- ---------------------------------------
Richard S. Allen
/s/ John R. D'Eathe Director December 22, 1997
- ---------------------------------------
John R. D'Eathe
/s/ Ann Marie Whitney Vice President and Controller December 22, 1997
- --------------------------------------- (Principal Accounting Officer)
Ann Marie Whitney
</TABLE>
Page 6 of 7 pages
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
3.1 Articles of Amendment and Restatement of the Company (filed as Exhibit 3.1
to the Company's Registration Statement on Form S-11 (Registration No.
333-15553) and incorporated herein by reference).
3.2 Amended and Restated Bylaws of the Company (filed as Exhibit 3.2 to the
Company's Registration Statement on Form S-11 (Registration No. 333-15553)
and incorporated herein by reference).
4.1 Specimen of Common Stock certificate of the Company (filed as Exhibit 3.3 to
the Company's Registration Statement on Form S-11 (Registration No.
333-15553) and incorporated herein by reference).
4.2 1997 Stock Option and Incentive Plan (filed as Exhibit 10.6 to the Company's
Registration Statement on Form S-11 (Registration No. 333-15553) and
incorporated herein by reference).
*5.1 Opinion of Ballard Spahr Andrews & Ingersoll as to the legality of the
securities being registered hereby.
*23.1 Consent of Deloitte & Touche LLP.
*23.2 Consent of Ballard Spahr Andrews & Ingersoll (included in Exhibit 5.1
hereto).
*24.2 Power of Attorney (included on page 6).
</TABLE>
_______________________
* Filed herewith
Page 7 of 7 pages
<PAGE>
Exhibit 5.1
[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL]
December 23, 1997
Kilroy Realty Corporation
2250 East Imperial Highway
El Segundo, California 90245
Re: Kilroy Realty Corporation, a Maryland corporation, (the "Company") -
Registration Statement on Form S-8 (the "Registration Statement")
pertaining to One Million Five Hundred Thousand (1,500,000) shares
(the "Plan Shares") of common stock, par value one cent ($.01) per
share ("Common Stock"), to be issued pursuant to the 1997 Stock Option
and Incentive Plan for Key Employees of the Company, Kilroy Realty,
L.P. and Kilroy Services, Inc. (the "Plan")
----------------------------------------------------------------------
Ladies and Gentlemen:
In connection with the registration of the Plan Shares under the Securities
Act of 1933, as amended (the "Act") by the Company on Form S-8 to be filed with
the Securities and Exchange Commission on or about December 23, 1997, (the
"Registration Statement"), you have requested our opinion with respect to the
matters set forth below.
We have acted as special Maryland corporate counsel for the Company in
connection with the matters described herein. In our capacity as special
Maryland corporate counsel to the Company, we have reviewed and are familiar
with proceedings taken and proposed to be taken by the Company in connection
with the authorization, issuance and sale of the Plan Shares, and for purposes
of this opinion have assumed such proceedings will be timely completed in the
manner presently proposed. In addition, we have relied upon certificates and
advice from the officers of the Company upon which
<PAGE>
BALLARD SPAHR ANDREWS & INGERSOLL
Kilroy Realty Corporation
December 23, 1997
Page 2
we believe we are justified in relying and on various certificates from, and
documents recorded with, the State Department of Assessments and Taxation of
Maryland (the "SDAT"), including the charter of the Company (the "Charter"),
consisting of Articles of Incorporation filed with the SDAT on September 13,
1996 and Articles of Amendment and Restatement filed with the SDAT on January
21, 1997. We have also examined the Amended and Restated Bylaws of the Company,
adopted as of January 26, 1997, (the "Bylaws"), resolutions of the Board of
Directors of the Company adopted on December 8, 1996 and January 27, 1997 and in
full force and effect on the date hereof, the Plan, and such other laws,
records, documents, certificates, opinions and instruments as we have deemed
necessary to render this opinion.
We have assumed the genuineness of all signatures and the authenticity of
all documents submitted to us as originals and the conformity to the originals
of all documents submitted to us as certified, photostatic or conformed copies.
In addition, we have assumed that each person executing any instrument, document
or certificate referred to herein on behalf of any party is duly authorized to
do so. We have also assumed that none of the Plan Shares have been or will be
issued or transferred in violation of the restrictions on ownership and transfer
of stock contained in the Charter of the Company under the caption "Restrictions
on Ownership and Transfer to Preserve Tax Benefits".
Based on the foregoing, and subject to the assumptions and qualifications
set forth herein, it is our opinion that, as of the date of this letter: (i) the
Plan Shares have been duly reserved and duly authorized for issuance by the
Company as direct stock awards or upon the exercise of options granted under the
Plan, and when such Plan Shares are issued and delivered by the Company as
direct stock awards or upon the exercise of options granted under the Plan and
the consideration for such Plan Shares has been received in full by the Company,
all in accordance with the Plan and any such options, such Plan Shares will be
validly issued, fully paid and non-assessable; and (ii) of the Plan Shares,
100,000 shares have been issued to Richard E. Moran, Jr. (the "Moran Shares"),
and the Moran Shares are validly issued, fully paid and non-assessable.
We consent to your filing this opinion as an exhibit to the Registration
Statement, and further consent to the filing of this opinion as an exhibit to
the applications to securities commissioners for the various states of the
United States for registration of the Shares. We also consent to the
identification of our firm as Maryland counsel to the Company in the section of
<PAGE>
BALLARD SPAHR ANDREWS & INGERSOLL
Kilroy Realty Corporation
December 23, 1997
Page 3
the Prospectus (which is part of the Registration Statement) entitled "Legal
Matters."
The opinions expressed herein are limited to the laws of the State of
Maryland and we express no opinion concerning any laws other than the laws of
the State of Maryland. Furthermore, the opinions presented in this letter are
limited to the matters specifically set forth herein and no other opinion shall
be inferred beyond the matters expressly stated.
Very truly yours,
/s/ Ballard Spahr Andrews & Ingersoll
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
To the Board of Directors of Kilroy Realty Corporation:
We consent to the incorporation by reference in this Registration Statement
of Kilroy Realty Corporation of Form S-8 of our reports on the Combined
Financial Statements of Kilroy Group dated March 21, 1997 (July 11, 1997 as to
Note 12), the Acquired Properties and Pending Acquisitions dated July 31, 1997,
the Post IPO Acquisitions Through June 30, 1997, dated July 31, 1997, and the
Acquisition Properties dated July 11, 1997, appearing in the Registration
Statement on Form S-11 dated August 14, 1997, and our reports on the Eight
Acquired Properties dated September 12, 1997 and the Four Acquired Properties
dated November 26, 1997, appearing in the Current Report on Form 8-K/A dated
December 19, 1997.
/s/ Deloitte & Touche LLP
Los Angeles, California
December 19, 1997
