<PAGE> 1
As filed with the Securities and Exchange Commission on October 24, 1996.
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------------------------------------
SPIEKER PROPERTIES, INC.
(Exact name of Registrant as specified in its charter)
------------------------------------------------------------
MARYLAND 94-3185802
(State of Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
2180 SAND HILL ROAD
MENLO PARK, CALIFORNIA 94025
(415) 854-5600
(Address of Principal Executive Offices)
SPIEKER PROPERTIES, INC. AMENDED AND RESTATED 1993 DIRECTORS' STOCK OPTION PLAN
SPIEKER PROPERTIES, INC. AMENDED AND RESTATED 1993 STOCK INCENTIVE PLAN
(Full Title of Plans)
-----------------------------------------------------
CRAIG G. VOUGHT
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
2180 SAND HILL ROAD
MENLO PARK, CALIFORNIA 94025
(Name and Address of Agent for Service)
(415) 854-5600
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
STEPHEN J. SCHRADER, ESQ.
JUSTIN L. BASTIAN, ESQ.
MORRISON & FOERSTER LLP
755 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304
(415) 813-5600
--------------------------------------------------
CALCULATION OF REGISTRATION FEE
===============================================================================
<TABLE>
<CAPTION>
Amount Maximum Proposed Maximum Proposed Amount of
Title of Securities to be Offering Price Aggregate offering Registration
to be Registered Registered Per Share (1) Price (1) Fee
---------------- ---------- ------------- --------- ---
<S> <C> <C> <C> <C>
Common Stock, $.0001
par value per share 2,605,097 $29.25 $76,199,087.25 $23,090.63
</TABLE>
===============================================================================
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(h) and (c) under the Securities Act of 1933,
based upon an average of the high and low prices of Spieker Properties,
Inc. common stock reported on the New York Stock Exchange on October 21,
1996.
===============================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
INCORPORATION BY REFERENCE TO PRIOR FORM S-8.
In accordance with General Instruction E to Form S-8, the contents of the
Registrant's Registration Statements on Form S-8, Commission File No. 33-74736,
including exhibits thereto, are hereby incorporated by reference into this
Registration Statement, except as the same may be modified by the information
set forth herein.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Spieker Properties, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference herein:
(a) The Registrant's Annual Reports on Form 10-K and Form 10-K/A
(Amendment No. 1) for the Fiscal Year ended December 31, 1995, each as filed
with the Commission;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996 and Quarterly Report on Form 10-Q for the quarter ended June 30,
1996, each as filed with the Commission;
(c) The Registrant's Current Report on Form 8-K dated July 15, 1996, the
Registrant's Current Report on Form 8-K dated June 18, 1996, the Registrant's
Current Report on Form 8-K dated February 26, 1996 and the Registrant's Current
Report on Form 8-K dated January 24, 1996, each filed with the Commission; and
(d) The description of the Registrant's Common Stock contained in the
Company's Registration Statement on Form 8-A (File No. 1-12528), filed with the
Commission under the Exchange Act and including any amendment or report filed
for the purposes of updating such description.
All documents filed by the Registrant with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, and prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference into this Registration Statement and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document 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 statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 8. EXHIBITS.
4.1 Articles of Incorporation, as amended, of the Registrant
(incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-11 (File No. 33-67906))
II-1
<PAGE> 3
4.2 Articles Supplementary of Spieker Properties, Inc. for Series
A Preferred Stock (incorporated by reference to Exhibit 4.2 to
Spieker Properties, Inc.'s Report on Form 10-Q for the quarter
ended March 31, 1994)
4.3 Articles Supplementary of Spieker Properties, Inc. for Class B
Common Stock (incorporated by reference to Exhibit 4.2 to
Spieker Properties, Inc.'s Report on Form 10-Q for the quarter
ended March 31, 1995)
4.4 Articles Supplementary of Spieker Properties, Inc. for the
Series B Preferred Stock (incorporated by reference to Exhibit
3.5 to Spieker Properties, Inc.'s Report on Form 10-K for the
Fiscal Year ended December 31, 1995)
4.5 Articles Supplementary of Spieker Properties, Inc. for the
Class C Common Stock (incorporated by reference to Exhibit 3.6
to Spieker Properties, Inc.'s Report on Form 10-K for the
Fiscal Year ended December 31, 1995)
4.6 Articles of Amendment of Spieker Properties, Inc.
(incorporated by reference to Exhibit 3.2 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended June 30,
1996)
4.7 By-laws of the Registrant (incorporated by reference to
Exhibit 3.2 to Registrant's shelf registration statement filed
with the Commission on August 2, 1996)
4.8 Spieker Properties, Inc. Amended and Restated 1993 Directors'
Stock Option Plan
4.9 Spieker Properties, Inc. Amended and Restated 1993 Stock
Incentive Plan
5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Morrison & Foerster LLP (Included in Exhibit 5.1
hereto)
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney (See page II-3)
II-2
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Spieker Properties, Inc. 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 Menlo Park, State of California, on
October 24, 1996.
SPIEKER PROPERTIES, INC.
By: /s/ Craig G. Vought
-------------------------------
Craig G. Vought
Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Warren
E. Spieker, Dennis E. Singleton, John K. French and Craig G. Vought, and each of
them, as attorneys-in-fact, each with the power of substitution, for him in any
and all capacities, to sign any amendment to this Registration Statement and to
file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting to said
attorneys-in-fact, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith, 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 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, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Warren E. Spieker, Jr. Chairman of the Board, October 24, 1996
- ----------------------------------------------- Director and
Warren E. Spieker, Jr. Chief Executive Officer
(Principal Executive Officer)
/s/ John K. French Executive Vice President, October 24, 1996
- ----------------------------------------------- Chief Operating Officer
John K. French and Director
/s/ Dennis E. Singleton Executive Vice President, October 24, 1996
- ----------------------------------------------- Chief Investment Officer
Dennis E. Singleton and Director
</TABLE>
II-3
<PAGE> 5
<TABLE>
<S> <C> <C>
/s/ Elke Strunka Vice President and October 24, 1996
- ----------------------------------------------- Principal Accounting Officer
Elke Strunka (Principal Accounting Officer)
/s/ Craig G. Vought Executive Vice President October 24, 1996
- ----------------------------------------------- and Chief Financial Officer
Craig G. Vought (Principal Financial Officer)
/s/ Richard J. Bertero Director October 24, 1996
- -----------------------------------------------
Richard J. Bertero
/s/ Harold M. Messmer Director October 24, 1996
- -----------------------------------------------
Harold M. Messmer
/s/ David M. Petrone Director October 24, 1996
- -----------------------------------------------
David M. Petrone
/s/ William S. Thompson, Jr. Director October 24, 1996
- -----------------------------------------------
William S. Thompson, Jr.
</TABLE>
II-4
<PAGE> 6
EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION
-------------- -----------
4.1 Articles of Incorporation, as amended, of the Registrant
(incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-11 (File No. 33-67906))
4.2 Articles Supplementary of Spieker Properties, Inc. for Series
A Preferred Stock (incorporated by reference to Exhibit 4.2 to
Spieker Properties, Inc.'s Report on Form 10-Q for the quarter
ended March 31, 1994)
4.3 Articles Supplementary of Spieker Properties, Inc. for Class B
Common Stock (incorporated by reference to Exhibit 4.2 to
Spieker Properties, Inc.'s Report on Form 10-Q for the quarter
ended March 31, 1995)
4.4 Articles Supplementary of Spieker Properties, Inc. for the
Series B Preferred Stock (incorporated by reference to Exhibit
3.5 to Spieker Properties, Inc.'s Report on Form 10-K for the
Fiscal Year ended December 31, 1995)
4.5 Articles Supplementary of Spieker Properties, Inc. for the
Class C Common Stock (incorporated by reference to Exhibit 3.6
to Spieker Properties, Inc.'s Report on Form 10-K for the
Fiscal Year ended December 31, 1995)
4.6 Articles of Amendment of Spieker Properties, Inc.
(incorporated by reference to Exhibit 3.2 to Spieker
Properties, Inc.'s Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996)
4.7 By-laws of the Registrant (incorporated by reference to
Exhibit 3.2 to Registrant's Registration Statement on Form
S-11 (File No. 33-67906))
4.8 Spieker Properties, Inc. Amended and Restated 1993 Directors'
Stock Option Plan
4.9 Spieker Properties, Inc. Amended and Restated 1993 Stock
Incentive Plan
5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Morrison & Foerster LLP (Included in Exhibit 5.1
hereto)
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney (See page II-3)
II-5
<PAGE> 1
EXHIBIT 4.8
SPIEKER PROPERTIES, INC.
AMENDED AND RESTATED 1993 DIRECTORS' STOCK OPTION PLAN
(as of March 20, 1996)
Establishment and Purpose.
There is hereby adopted the 1993 Directors' Stock Option Plan
(the "Plan") of Spieker Properties, Inc. (the "Company"). The Plan is intended
to provide a means whereby eligible members of the Board of Directors of the
Company (the "Board") may be given an opportunity to purchase shares of common
stock of the Company ("Stock") pursuant to options which are not intended to
qualify as incentive stock options under Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code").
The purpose of the Plan is to enable the Company to attract
and retain the best available individuals for service as members of the Board,
to provide additional incentive to such individuals while serving as directors,
and to encourage their continued service on the Board.
Definitions.
As used herein, the following definitions shall apply:
"Continuous Status as a Director" shall mean the absence of
any interruption or termination of service as a Director.
"Director" shall mean a member of the Board.
"Employee" shall mean any person, including officers and
Directors, who is an employee of the Company, or any Subsidiary of the Company,
for purposes of tax withholding under the Code. The payment of a director's fee
by the Company shall not be sufficient in and of itself to constitute
"employment" by the Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Fair Market Value" shall mean, as of any date, the last
reported sale price of the Stock of the Company on the New York Stock Exchange
or, if no such reported sale takes place on any such day, the average of the
closing bid and asked prices. If the foregoing is not applicable, then the Fair
Market Value of a share of Stock shall be determined in good faith by the Board
in its discretion.
"Option" shall mean an option to purchase shares of Stock
granted pursuant to the Plan.
"Optionee" shall mean an Outside Director who receives an
Option.
"Outside Director" shall mean a Director who is not an
Employee.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
Stock Subject to the Plan.
An aggregate of not more than 150,000 shares shall be
available for the grant of stock options under the Plan. If an Option expires or
becomes unexercisable for any reason and has not been exercised in full, the
Stock subject to such Options shall become available for future grant under the
Plan. If Stock which was acquired upon exercise of an Option is subsequently
repurchased by the Company, such Stock shall not become available for future
grant under the Plan.
1
<PAGE> 2
Administration of the Plan.
The Plan is intended to be self-executing pursuant to the
terms hereof. However, any questions concerning interpretation or execution of
the Plan or grants hereunder shall be determined by the Board.
Subject to the provisions and restrictions of the Plan, the
Board shall have the authority, in its discretion, to: (i) interpret the Plan;
(ii) authorize any person to execute on behalf of the Company any agreements or
other documents in connection with the grant of an Option under the Plan
consistent with the terms of the Plan; (iii) approve forms of agreement for use
under the Plan consistent with the terms of the Plan; and (iv) make all other
determinations deemed necessary or advisable for the administration of the Plan.
Subject to the foregoing all decisions, determinations and
interpretations of the Board shall be final and binding on all holders of any
Options granted under the Plan.
Option Grants.
All grants of Options hereunder shall be automatic and
nondiscretionary and shall be made strictly in accordance with the provisions of
this Section 5. No person shall have any discretion to select which Outside
Directors shall be granted Options or to determine the number of shares of Stock
to be covered by Options granted to Outside Directors, the timing of such Option
grants or the exercise price thereof.
Each individual who becomes an Outside Director, as of the
date on which such person becomes an Outside Director, shall be granted
automatically an Option to purchase 2,500 shares of Stock.
On December 31, 1994 and December 31, 1995, each Outside
Director shall be granted automatically an Option to purchase 500 shares of
Stock, provided that on such date the Outside Director has served on the Board
for more than one year. Thereafter, on December 31 of each year, commencing on
December 31, 1996, each Outside Director who has served on the Board for more
than one year as of such date shall be granted automatically an Option to
purchase 4,000 shares of Stock.
Limitations.
Notwithstanding the provisions of Sections 5(b) and
5(c) hereof, in the event that a sufficient number of shares of Stock
is not available under the Plan, the remaining shares shall be prorated
based upon the number of shares each Director was entitled to receive
under this Plan. Any further grants shall then be deferred until such
time, if any, as additional shares become available for grant under the
Plan. Subject to the terms of Section 13 hereof, the Board shall have
the authority at any time to make additional shares available for grant
under the Plan, subject to obtaining stockholder approval of such
increase to the extent required under Section 13(a) hereof.
Notwithstanding the provisions of Sections 5(b) and
(c) hereof, any grant of an Option made before the Company has obtained
stockholder approval of the Plan and any grant of an Option made after
amendment of the Plan where such amendment of the Plan requires
stockholder approval under Section 13(a) hereof shall be conditioned
upon obtaining such stockholder approval.
Terms and Conditions of Options.
Each Option granted pursuant to this Plan shall be evidenced
by a written stock option agreement ("Directors' Stock Option Agreement")
executed by the Company and the Outside Director containing such terms and
conditions that are consistent with this Plan and as otherwise determined by the
Board.
Subject to adjustment to the extent provided in Section 12
hereof, the exercise price per share shall be 100% of the Fair Market Value per
share on the date of grant of the Option.
2
<PAGE> 3
The Option shall vest and become exercisable at the rate of
twenty-five percent (25%) of the total number of shares of Stock covered by the
Option on each anniversary of the date of grant, beginning on the first
anniversary of the date of grant.
The term of each Option shall be ten (10) years from the date
of grant, unless a shorter period is required to comply with any applicable law,
in which case such shorter period will apply.
Eligibility.
Options may be granted only to Outside Directors. The Plan
shall not confer upon any Outside Director any right with respect to
continuation of service as a Director or nomination to serve as a Director, nor
shall it interfere in any way with any rights which the Director or the Company
may have to terminate his or her directorship at any time.
Term of Plan; Effective Date.
The Plan shall become effective upon adoption by the Board of
the Company. Options may be granted under this Plan at any time on or before
October 11, 2003.
Payment Upon Exercise.
Payment of the exercise price upon exercise of any Option may
be made (i) in cash; (ii) by delivery on a form prescribed by the Board of an
irrevocable direction to a securities broker approved by the Board to sell
shares and deliver all or a portion of the proceeds to the Company in payment
for the Stock; (iii) by delivery of the Optionee's promissory note with such
recourse, interest, security and redemption provisions as the Board in its
discretion determines appropriate; or (iv) any combination of the foregoing.
Exercise of Option.
An Option shall be deemed to be exercised when written notice
of such exercise has been given to the Company in accordance with the terms of
the Option agreement by the person entitled to exercise the Option and full
payment for the Stock has been received by the Company in accordance with
Section 9 hereof. An Option may not be exercised for a fraction of a share.
Notwithstanding the exercise of the Option, until the issuance
(as evidenced by the appropriate entry on the books of a duly authorized
transfer agent of the Company) of the certificate evidencing such Stock, no
right to vote or receive dividends or any other rights as a stockholder shall
exist with respect to the Stock. A stock certificate for the number of shares so
acquired shall be issued to the Optionee as soon as practicable after exercise
of the Option. No adjustment will be made for a dividend or other right if the
record date is prior to the date the stock certificate is issued.
If an Outside Director ceases to serve as a Director, he or
she may, but only within three (3) months after the date he or she ceases to be
a Director of the Company, exercise his or her Option to the extent that he or
she was entitled to exercise it at the date of such termination. Notwithstanding
the foregoing, in no event may the Option be exercised after its term set forth
in Section 6 has expired. To the extent that such Outside Director was not
entitled to exercise an Option at the date of such termination, or does not
exercise such Option (which he or she was entitled to exercise) within the time
specified herein, the Option shall terminate.
Notwithstanding the provisions of Section 10(c) above, in the
event an Outside Director is unable to continue his service as a Director with
the Company as a result of his total and permanent disability (as defined in
Section 22(e)(3) of the Code), he may, within six months from the date of such
termination, exercise his Option to the extent he was entitled to exercise it at
the date of such termination. Notwithstanding the foregoing, in no event may the
Option be exercised after the expiration of the term set forth in Section 6. To
the extent that Optionee
3
<PAGE> 4
was not entitled to exercise the Option at the date of termination, or if
Optionee does not exercise such Option (which he was entitled to exercise)
within the time specified herein, the Option shall terminate.
In the event of the death of an Outside Director:
If the Outside Director dies during the term of the
Option, is a Director at the time of his death and has been in
Continuous Status as a Director since the date of grant of the Option,
the Option may be exercised at any time within six (6) months following
the date of death by the Outside Director's estate or by a person who
acquired the right to exercise the Option by bequest or inheritance,
but only to the extent the Outside Director was entitled to exercise
the Option at the time of death. Notwithstanding the foregoing, in no
event may the Option be exercised after the expiration of the term set
forth in Section 6.
If the Outside Director dies within three (3) months
after the termination of Continuous Status as a Director, the Option
may be exercised at any time within six (6) months following the date
of death by the Optionee's estate or by a person who acquired the right
to exercise the Option by bequest or inheritance, but only to the
extent the Outside Director was entitled to exercise the Option at the
date of termination. Notwithstanding the foregoing, in no event may the
Option be exercised more than ten (10) years after its date of grant.
Nontransferability of Options.
No Option may be sold, pledged, assigned, hypothecated,
transferred, or disposed of in any manner other than by will or by the laws of
descent or distribution. The designation of a beneficiary by an Optionee does
not constitute a transfer. An Option may be exercised during the lifetime of an
Optionee only by the Optionee.
Adjustment Upon Changes in Capitalization.
In the event that the number of outstanding shares of Stock of the
Company is changed by a stock dividend, stock split, reverse stock split,
combination, reclassification or similar change in the capital structure of the
Company without consideration, the number of shares of Stock available under
this Plan, the number of shares of Stock deliverable in connection with any
Option and the exercise price per share of such Options shall be proportionately
adjusted, subject to any required action by the Board or stockholders of the
Company and compliance with applicable securities laws; provided however, that
no certificate or scrip representing fractional shares shall be issued and any
resulting fractions of a share shall be ignored.
Amendment and Termination of the Plan.
The Board may amend the Plan from time to time in such
respects as the Board may deem advisable; provided that, to the extent necessary
to comply with Rule 16b-3 under the Exchange Act (or any other applicable law or
regulation), the Company shall obtain approval of the Company's stockholders to
amend the Plan to the extent and in the manner required by such law or
regulation. Notwithstanding the foregoing, the provisions set forth in Sections
5 and 6 of this Plan (and any other Sections of this Plan that affect the
formula award terms required to be specified in this Plan by Rule 16b-3) shall
not be amended more than once every six months, other than to comport with
changes in the Code, the Employee Retirement Income Security Act of 1974, as
amended, or the rules thereunder.
The Board, without further approval of the stockholders, may
at any time terminate or suspend the Plan. Except as otherwise provided herein,
any such termination or suspension of the Plan shall not affect Options already
granted hereunder and such Options shall remain in full force and effect as if
the Plan had not been terminated or suspended.
Except as otherwise provided herein, rights and obligations
under any outstanding Option shall not be altered or impaired by amendment,
suspension or termination of the Plan, except with the consent of the person to
whom the Option was granted.
4
<PAGE> 5
Conditions Upon Issuance of Stock.
Stock shall not be issued pursuant to the exercise of an
Option unless the exercise of such Option and the issuance and delivery of such
Stock pursuant thereto shall comply with all relevant provisions of law,
including, without limitation, the Securities Act, the Exchange Act, the rules
and regulations promulgated thereunder, state securities laws, and the
requirements of any stock exchange upon which the Stock may then be listed, and
shall be further subject to the approval of counsel for the Company with respect
to such compliance.
As a condition to the exercise of an Option, the Company may
require the person exercising such Option to represent and warrant at the time
of any such exercise that the Stock is being purchased only for investment and
without any present intention to sell or distribute such Stock, if, in the
opinion of counsel for the Company, such a representation is required by any of
the relevant provisions of law.
Inability of the Company to obtain authority from any
regulatory body having jurisdictional authority deemed by the Company's counsel
to be necessary for the lawful issuance and sale of any Stock hereunder shall
relieve the Company of any liability for failure to issue or sell such Stock.
Reservation of Stock.
The Company, during the term of this Plan, will at all times
reserve and keep available such number of shares of Stock as shall be sufficient
to satisfy the requirements of the Plan.
Change in Control.
For purposes of this Section 15, a "Change in Control" shall
be deemed to occur if:
any acquisition by shareholders acting as a group
(other than an acquisition from the Company or by the Company, the
management of the Company or a Company-sponsored employee benefit
plan) of 20% or more of the outstanding Stock;
a change in the composition of the Board over a
period of thirty-six (36) months or less such that a majority of the
Board members cease, by reason of one or more contested elections for
Board membership or by one or more actions by written consent of
shareholders, to be comprised of individuals who either (a) have been
Board members continuously since the beginning of such period or (b)
have been elected or nominated for election as Board members during
such period by at least a majority of the Board members described in
clause (a) who were still in office at the time such election or
nomination was approved by the Board;
approval by the Company's shareholders of a merger or
consolidation in which the Company is not the surviving entity, except
for a transaction the principal purpose of which is to change the
state in which the Company is incorporated;
approval by the Company's shareholders of (x) the
sale, transfer or other disposition of all or substantially all of the
assets of the Company (including the capital stock of the Company's
subsidiary corporations) or (y) the complete liquidation or
dissolution of the Company; or
approval by the Company's shareholders of any reverse
merger in which the Company survives as an entity but in which
securities possessing more than fifty percent (50%) of the total
combined voting power of the Company's outstanding securities are
transferred to a person or persons different from those who held such
securities immediately prior to such merger.
5
<PAGE> 6
In the event of a Change in Control, any Option shall be fully
vested, nonforfeitable and become exercisable immediately prior to the specified
effective date of the Change in Control.
Stockholder Approval.
This Plan became effective when adopted by the Board on
December 15, 1993 and was approved by the stockholders of the Company on May 25,
1994. On March 20, 1996, the Board adopted and approved an amendment to the Plan
to provide for accelerated vesting of Options in the event of a Change in
Control and an increase in the number of shares of Stock subject to annual
Option grants received by eligible Outside Directors on each December 31 by
3,500 shares to 4,000 shares commencing on December 31, 1996, subject to
stockholder approval within twelve (12) months of the date of approval by the
Board. Such Options may be granted prior to approval by the stockholders of the
Company, but no part of the automatic annual Option grant in excess of the
Option to purchase 500 shares of stock shall become exercisable unless and until
stockholder approval shall have been obtained. If such stockholder approval is
not obtained within twelve (12) months after the date of the Board's adoption of
the Plan amendment, then the 3,500-share portion of the automatic annual Option
grant shall terminate, the accelerated Change in Control vesting provision shall
be null and void, and the automatic annual Option grants shall thereafter be an
Option to purchase 500 shares of Stock as provided prior to the Plan amendment
adopted and approved by the Board on March 20, 1996.
Additional Restrictions of Rule 16b-3.
The terms and conditions of options granted hereunder to
persons subject to Section 16 of the Exchange Act shall comply with the
applicable provisions of Rule 16b-3. This Plan and the options granted hereunder
shall be deemed to contain such additional conditions and restrictions as may be
required for this Plan to qualify as a "formula plan" under Rule 16b-3, as then
applicable to the Company, and to qualify for the maximum exemptions from
Section 16 of the Exchange Act with respect to Plan transactions.
6
<PAGE> 1
EXHIBIT 4.9
SPIEKER PROPERTIES, INC.
AMENDED AND RESTATED 1993 STOCK INCENTIVE PLAN
(as of March 20, 1996)
Establishment, Purpose and Definitions.
There is hereby adopted by Spieker Properties, Inc. (the
"Company"), Spieker Northwest, Inc., and Spieker Properties, L.P. of which the
Company is the General Partner the Spieker Properties, Inc. 1993 Stock Incentive
Plan (the "Plan").
The purpose of the Plan is to provide a means whereby eligible
individuals (as defined in Section 4, below) can acquire Common Stock of the
Company ("Stock"). The Plan provides employees (including officers and directors
who are employees) of the Company and of its Affiliates an opportunity to
purchase shares of Stock pursuant to options which may qualify as incentive
stock options (referred to as "incentive stock options") under Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code"), and employees,
officers, directors, independent contractors, and consultants of the Company,
its Affiliates, Spieker Properties, L.P. and Spieker Northwest, Inc. an
opportunity to purchase shares of Stock pursuant to options which are not
described in Sections 422 or 423 of the Code (referred to as "nonqualified stock
options"). The Plan also provides for the sale or bonus of Stock and the grant
of performance stock units to eligible individuals in connection with the
performance of services for the Company, its Affiliates, Spieker Properties,
L.P. or Spieker Northwest, Inc. Finally, the Plan authorizes the grant of
dividend equivalent rights ("DERs") in tandem with options and performance stock
units, entitling holders to compensation measured by the dividends paid by the
Company with respect to all or a portion of the number of shares of Stock
subject to an option or a performance stock unit.
The term "Affiliates" as used in the Plan means parent or
subsidiary corporations of the Company, as defined in Sections 424(e) and (f) of
the Code (but substituting "the Company" for "employer corporation"), including
parents or subsidiaries of the Company which become such after adoption of the
Plan.
Administration of the Plan.
The Plan shall be administered by the Board of Directors of
the Company (the "Board"). The Board may delegate the responsibility for
administering the Plan to a committee, under such terms and conditions as the
Board shall determine (the "Committee"). The Committee shall consist of two or
more members of the Board or such lesser number of members of the Board as
permitted by Rule 16b-3 promulgated under the Securities Exchange Act of 1934,
as amended ("Rule 16b-3"). None of the members of the Committee shall receive,
while serving on the Committee, or during the one-year period preceding
appointment to the Committee, a grant or award of equity securities under (i)
the Plan or (ii) any other plan of the Company, its Affiliates, Spieker
Properties, L.P. or Spieker Northwest, Inc. under which the participants are
entitled to acquire Stock (including restricted stock), stock options, stock
bonuses, performance stock units, DERs, or related rights of the Company, its
Affiliates or Spieker Northwest, Inc., other than pursuant to transactions in
any such other plan which do not disqualify a director from being a
disinterested person under Rule 16b-3. The limitations set forth in this Section
2(a) shall automatically incorporate any additional requirements that may in the
future be necessary for the Plan to comply with Rule 16b-3. Members of the
Committee shall serve at the pleasure of the Board. The Committee shall select
one of its members as chair of the Committee, and shall hold meetings at such
times and places as it may determine. A majority of the Committee shall
constitute a quorum and acts of the Committee at which a quorum is present, or
acts reduced to or approved in writing by all the members of the Committee,
shall be the valid acts of the Committee. The Board may delegate the
responsibility for administering the Plan with respect to individuals not
subject to Section 16 of the Securities Exchange Act of 1934 to another
committee (the "Non-Executive Stock Incentive Plan Committee"), under such terms
and conditions and with such members as the Board shall determine. For purposes
of grants to
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such individuals, references in the Plan to the "Committee" shall be deemed to
be references to the Non-Executive Stock Incentive Plan Committee. If the Board
does not delegate administration of the Plan to the Committee, then each
reference in this Plan to the "Committee" shall be construed to refer to the
Board.
The Committee shall determine which eligible individuals (as
defined in Section 4, below) shall be granted options and DERs under the Plan,
the timing of such grants, the terms thereof (including any restrictions on the
Stock), and the number of shares or performance stock units subject to such
options or DERs. Individuals authorized before the date of the Company's initial
public offering to be granted options under the Plan and the number of shares
that are subject to such options are set forth in Exhibit A.
The Committee may amend the terms of any outstanding option or
DER granted under this Plan, but any amendment which would adversely affect the
holder's rights under an outstanding option or DER shall not be made without the
holder's written consent. The Committee may, with the holder's written consent,
cancel any outstanding stock option or DER or accept any outstanding stock
option or DER in exchange for a new option or DER.
The Committee shall also determine which eligible individuals
(as defined in Section 4, below) shall be granted or issued Stock or performance
stock units under the Plan, the timing of such grants or issuances, the terms
thereof (including any restrictions), and the number of shares or performance
stock units to be granted. The Stock or performance stock units shall be issued
for such consideration (if any) as the Committee deems appropriate. Stock issued
subject to restrictions and performance stock units shall be evidenced by a
written agreement (the "Restricted Stock Purchase Agreement," the "Restricted
Stock Bonus Agreement", or the "Performance Stock Unit Agreement"). The
Committee may amend any Restricted Stock Purchase Agreement, Restricted Stock
Bonus Agreement or Performance Stock Unit Agreement, but any amendment which
would adversely affect the holder's rights to the Stock or performance stock
unit shall not be made without his or her written consent.
The Committee shall have the sole authority, in its absolute
discretion to adopt, amend, and rescind such rules and regulations as, in its
opinion, may be advisable for the administration of the Plan, to construe and
interpret the Plan, the rules and the regulations, and the instruments
evidencing options, Stock, performance stock units, or DERs granted under the
Plan and to make all other determinations deemed necessary or advisable for the
administration of the Plan. All decisions, determinations and interpretations of
the Committee shall be binding on all participants.
Notwithstanding the foregoing provisions of this Section 2, if
the Committee at any time is not composed solely of two or more outside
directors (as defined below), then any grant of Stock, an option, a performance
stock unit, or a DER to a Named Executive (as defined below) shall be made only
by a separate committee or subcommittee of the Committee which shall be so
composed (the "Subcommittee"). A "Named Executive" shall mean, for each taxable
year of the Company, the Chief Executive Officer of the Company as of the close
of such taxable year and each Employee whose total compensation is required to
be reported to shareholders under the Securities Exchange Act of 1934 by reason
of such Employee being among the four (4) highest compensated Employees for such
taxable year. Any actions taken by the Committee under this Section 2 shall
apply to options or DERs granted to a Named Executive or restricted stock or
performance stock units issued to a Named Executive only if also authorized by
the Subcommittee. Solely for purposes of this Section 2(f), "outside directors"
means directors other than (i) current employees of the Company or any of its
subsidiaries, (ii) former employees of the Company or any of its subsidiaries
who are currently receiving compensation for prior services (other than benefits
under a tax-qualified pension plan), (iii) current or former officers of the
Company or any of its subsidiaries, and (iv) persons currently receiving
remuneration directly or indirectly as set forth in Treasury Regulations
pursuant to Internal Revenue Code Section 162(m). If the Subcommittee has not
been formed pursuant to this Section 2(f), then all references to the
Subcommittee herein shall be treated as references to the Committee.
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Stock Subject to the Plan.
The aggregate number of shares of Stock available for issuance
under the Plan initially shall be 2,000,000 shares, and commencing with January
2, 1996 and the first business day of each fiscal quarter of the Company
thereafter, such maximum number of shares of Stock reserved for issuance
hereunder shall be the number of shares equal to 9.9% of the number of shares of
Stock outstanding as of the last day of the immediately preceding quarter
reduced by the number of shares of Stock reserved for issuance under other stock
compensation plans of the Company, including but not limited to, the Company's
1993 Directors' Stock Option Plan, as amended; provided that the maximum number
of shares of Stock available for issuance hereunder shall not be reduced in any
quarter that the number of outstanding shares of Stock on the last day of the
immediately preceding fiscal quarter is less than the number of outstanding
shares of Stock on the last day of. any previous fiscal quarter. For purposes of
calculating the number of outstanding shares of Stock, all classes of securities
of the Company (including partnership units of Spieker Properties, L.P., the
Company's Series A preferred stock, Class B common stock, Class C common stock,
and all classes of securities of the Company that may be issued in the future)
that are convertible presently or in the future by the security holder into
shares of Stock shall be deemed to be outstanding shares of Stock equal to the
number of shares of Stock into which the securities are convertible presently or
in the future. Notwithstanding the foregoing, the aggregate number of shares of
Stock available for the grant of incentive stock options shall be 3,450,000
shares, and such number shall not be subject to quarterly adjustment. If an
option is surrendered (except surrender for shares of Stock) or for any other
reason ceases to be exercisable in whole or in part, the shares which were
subject to such option but as to which the option had not been exercised shall
continue to be available under the Plan. Any Stock which is retained by the
Company upon exercise of an option in order to satisfy the exercise price for
such option or any withholding taxes due with respect to such exercise of an
option shall be treated as issued to the optionee and will thereafter not be
available under the Plan, except as provided in Sections 13 and 14.
If there is any change in the Stock subject to either the
Plan, an option agreement, a DER, a Restricted Stock Purchase Agreement, a
Restricted Stock Bonus Agreement, or a Performance Stock Unit Agreement through
merger, consolidation, reorganization, recapitalization, reincorporation, stock
split, stock dividend, or other change in the capital structure of the Company,
appropriate adjustments shall be made by the Committee in order to preserve but
not to increase the benefits to the individual, including adjustments to the
aggregate number, kind of shares, and price per share subject to either the
Plan, an option agreement, a DER, a Restricted Stock Purchase Agreement, a
Restricted Stock Bonus Agreement, or a Performance Stock Unit Agreement.
Eligible Individuals.
Individuals who shall be eligible to have granted to them the
options, the Stock, the performance stock units, or the DERs provided for by the
Plan shall be such employees, officers, directors, independent contractors and
consultants of the Company, an Affiliate, Spieker Properties, L.P. or Spieker
Northwest, Inc. as the Committee, in its discretion, shall designate from time
to time. Notwithstanding the foregoing, only employees of the Company or an
Affiliate (including officers and directors who are bona fide employees) shall
be eligible to receive incentive stock options.
The number of shares with respect to which options may be
granted or restricted stock or performance stock units issued to any employee in
any calendar year shall be limited to 200,000. The exercise price of any option
or purchase price for any share of restricted stock with respect to a Named
Executive shall not be less than the fair market value of the Stock on the date
of grant of an option or date of issuance of restricted stock.
The Option Price. The exercise price of the Stock covered by each
incentive stock option and each nonqualified stock option shall be not less than
the per share fair market value of such Stock on the date the option is granted.
Notwithstanding the foregoing, in the case of an incentive stock option granted
to a person possessing more than 10 percent of the combined voting power of the
Company or an Affiliate, the exercise price shall be not less than 110 percent
of the fair market value of the Stock on the date the option is granted. The
exercise price of an
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option shall be subject to adjustment only to the extent provided in Section
3(b), above, and the exercise price of an option may not otherwise be reduced.
Terms and Conditions of Options.
Each option granted pursuant to the Plan will be evidenced by
a written stock option agreement executed by the Company and the person to whom
such option is granted.
The Committee shall determine the term of each option granted
under the Plan; provided, however, that the term of an incentive stock option
shall not be for more than 10 years and that, in the case of an incentive stock
option granted to a person possessing more than 10 percent of the combined
voting power of the Company or an Affiliate, the term shall be for no more than
five years.
In the case of incentive stock options, the aggregate fair
market value (determined as of the time such option is granted) of the Stock
with respect to which incentive stock options are exercisable for the first time
by an eligible employee in any calendar year (under this Plan and any other
plans of the Company or its Affiliates) shall not exceed $100,000. If the
aggregate fair market value of Stock with respect to which incentive stock
options are exercisable by an optionee for the first time during any calendar
year exceeds $100,000, such options shall be treated as nonqualified stock
options to the extent required by Section 422 of the Code. The rule set forth in
the preceding sentence shall be applied by taking options into account in the
order in which they were granted.
The stock option agreement may contain such other terms,
provisions and conditions consistent with this Plan as may be determined by the
Committee. If an option, or any part thereof is intended to qualify as an
incentive stock option, the stock option agreement shall contain those terms and
conditions which are necessary to so qualify it.
Terms and Conditions of Stock Purchases and Bonuses.
Each sale or grant of Stock pursuant to the Plan will be
evidenced by a written Restricted Stock Purchase Agreement or Restricted Stock
Bonus Agreement executed by the Company and the person to whom such Stock is
sold or granted.
The Restricted Stock Purchase Agreement or Restricted Stock
Bonus Agreement may contain such other terms, provisions and conditions
consistent with this Plan as may be determined by the Committee, including not
by way of limitation, restrictions on transfer, forfeiture provisions,
repurchase provisions, vesting provisions, and satisfaction of any performance
criteria.
Terms and Conditions of Dividend Equivalent Rights. The Committee may,
under such terms and conditions as it deems appropriate, authorize the issuance
of DERs evidenced by a written DER agreement (which may be a part of the option
agreement or Performance Stock Unit Agreement to which the DER relates) executed
by the Company and the person to whom such DER is granted. In respect of an
option or a Performance Stock Unit Agreement that is outstanding on the dividend
record date for Stock, a DER shall entitle the holder to be credited with an
amount equal to the cash or stock dividends or other distributions that would
have been paid on the shares of Stock subject to the option or the Performance
Stock Unit Agreement had such shares of Stock been issued and outstanding of
such dividend record date. The Committee shall establish such terms, conditions,
rules and procedures governing the grant of DERs, including the timing, form of
payment and payment contingencies, as it deems are appropriate.
Terms and Conditions of Performance Stock Units. The Committee may,
under such terms and conditions as it deems appropriate, authorize the issuance
of performance stock units evidenced by a written Performance Stock Unit
Agreement executed by the Company and the person to whom the performance stock
units is granted. The Performance Stock Unit Agreement shall specify the term
for the performance stock units covered thereby, the cash amount payable or
securities issuable upon exercise of the performance stock unit. The Committee
shall
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establish such terms, conditions, rules and procedures governing the issuance of
performance stock units, including any performance criteria that must be
satisfied as a condition to payment.
Use of Proceeds. Cash proceeds realized from the issuance of Stock
under the Plan shall constitute general funds of the Company.
Amendment, Suspension or Termination of the Plan.
The Board may at any time amend, suspend or terminate the
Plan as it deems advisable; provided, however, that such amendment, suspension
or termination complies with all applicable requirements of state and federal
law, including any applicable requirement that the Plan or an amendment to the
Plan be approved by the Company's shareholders, and provided further that,
except as provided in Section 3(b), above, the Board shall in no event amend the
Plan in the following respects without the consent of shareholders then
sufficient to approve the Plan in the first instance:
To materially increase the benefits accruing to
participants under the Plan;
To materially increase the number of shares of
Stock available under the Plan; or
To materially modify the eligibility requirements
for participation in the Plan.
No option, performance stock unit, or DER may be granted nor
any Stock issued under the Plan during any suspension or after the termination
of the Plan, and no amendment, suspension or termination of the Plan shall,
without the affected individual's consent, alter or impair any rights or
obligations under any option, performance stock unit, or DER previously granted
under the Plan. The Plan shall terminate with respect to the grant of incentive
stock options on the tenth anniversary of the date this Plan was adopted unless
previously terminated by the Board pursuant to this Section 11.
Assignability. Each option, performance stock unit, or DER granted
pursuant to this Plan shall, during the holder's lifetime, be exercisable only
by him, and each option, performance stock unit, and DER shall not be
transferable by the holder by operation of law or otherwise other than by will
or the laws of descent and distribution. Stock subject to a Restricted Stock
Purchase Agreement or a Restricted Stock Bonus Agreement shall be transferable
only as provided in such agreement.
Payment Upon Exercise of Options.
Payment of the purchase price upon exercise of any option
granted under this Plan shall be made in cash; provided, however, that the
Committee, in its sole discretion, may permit an optionee to pay the option
price in whole or in part (i) with shares of Stock owned by the optionee (or in
the case of a nonqualified stock option, with shares of restricted stock issued
under the Plan); (ii) by delivery on a form prescribed by the Committee of an
irrevocable direction to a securities broker approved by the Committee to sell
shares and deliver all or a portion of the proceeds to the Company in payment
for the Stock; (iii) by delivery of the optionee's promissory note with such
recourse, interest, security and redemption provisions as the Committee in its
discretion determines appropriate; or (iv) in any combination of the foregoing.
If payment of the purchase price of a nonqualified stock option is made in whole
or in part with shares of restricted stock, the number of shares of Stock to be
received upon such exercise equal to the number of shares of restricted stock
used for payment of the purchase price shall be subject to the same restrictions
on transfer, forfeiture provisions, repurchase provisions, vesting provisions,
and performance criteria to which such restricted stock was subject, unless
otherwise determined by the Committee. Any Stock used to exercise options shall
be valued at its fair market value on the date of the exercise of the option;
provided that the fair market value of restricted stock shall be determined
without regard to the restrictions thereon. In addition, the Committee, in its
sole discretion, may authorize the surrender by an optionee of all or part of an
unexercised option and authorize a payment in consideration thereof of an amount
equal to the difference between the aggregate fair market value of the Stock
subject to such option and the aggregate option price of such Stock. In
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the Committee's discretion, such payment may be made in cash, shares of Stock
with a fair market value on the date of surrender equal to the payment amount,
or some combination thereof.
In the event that the exercise price is satisfied by the
Committee retaining from the shares of Stock otherwise to be issued to optionee
shares of Stock having a value equal to the exercise price, the Committee may
issue optionee an additional option, with terms identical to such option
agreement, entitling optionee to purchase additional Stock in an amount equal to
the number of shares so retained.
Withholding Taxes.
No Stock shall be granted or sold under the Plan, and no
compensation shall be paid with respect to a DER or a performance stock unit, to
any individual until the individual has made arrangements acceptable to the
Committee for the satisfaction of federal, state, and local income and
employment tax withholding obligations, including without limitation obligations
incident to the receipt of Stock under the Plan, the lapsing of restrictions
applicable to such Stock, the failure to satisfy the conditions for treatment as
incentive stock options under applicable tax law, or the receipt of cash
payments. Upon the exercise of a stock option or a performance stock unit or the
lapsing of a restriction on Stock issued under the Plan, the Company or the
optionee's or holder's employer may satisfy its withholding obligations by
withholding from the optionee or requiring the holder to surrender shares of the
Company's stock sufficient to satisfy federal, state and local income and
employment tax withholding obligations.
In the event that such withholding is satisfied by the
Company or the optionee's or holder's employer retaining from the shares of
Stock otherwise to be issued to optionee shares of Stock having a value equal to
such withheld income or employment tax, the Committee may issue optionee an
additional option, with terms identical to the option agreement under which the
option was received, entitling optionee to purchase additional Stock in an
amount equal to the number of shares so retained.
Restrictions on Transfer of Shares. The Stock acquired pursuant to the
Plan shall be subject to such restrictions and agreements regarding sale,
assignment, encumbrances or other transfer as are in effect among the
shareholders of the Company at the time such Stock is acquired, as well as to
such other restrictions as the Committee shall deem appropriate.
Change in Control.
For purposes of this Section 16, a "Change in Control" shall
be deemed to occur if:
any acquisition by shareholders acting as a group
(other than an acquisition from the Company or by the Company, the
management of the Company or a Company-sponsored employee benefit plan)
of 20% or more of the outstanding Stock;
a change in the composition of the Board over a
period of thirty-six (36) months or less such that a majority of the
Board members cease, by reason of one or more contested elections for
Board membership or by one or more actions by written consent of
shareholders, to be comprised of individuals who either (a) have been
Board members continuously since the beginning of such period or (b)
have been elected or nominated for election as Board members during
such period by at least a majority of the Board members described in
clause (a) who were still in office at the time such election or
nomination was approved by the Board;
approval by the Company's shareholders of a merger
or consolidation in which the Company is not the surviving entity,
except for a transaction the principal purpose of which is to change
the state in which the Company is incorporated;
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approval by the Company's shareholders of (x) the
sale, transfer or other disposition of all or substantially all of the
assets of the Company (including the capital stock of the Company's
subsidiary corporations) or (y) the complete liquidation or dissolution
of the Company; or
approval by the Company's shareholders of any
reverse merger in which the Company survives as an entity but in which
securities possessing more than fifty percent (50%) of the total
combined voting power of the Company's outstanding securities are
transferred to a person or persons different from those who held such
securities immediately prior to such merger.
In the event of any Change in Control, any option, DER,
performance stock unit or restricted stock agreement shall be fully vested,
nonforfeitable and become exercisable, or with respect to restricted stock, be
released from restrictions on transfer and repurchase or forfeiture rights,
immediately prior to the specified effective date of the Change in Control.
Stockholder Approval. The Plan became effective when adopted by the
Board on December 13, 1993, and was approved by the Company's stockholders on
May 25, 1994. On March 20, 1996, the Board adopted and approved an amendment to
the Plan to permit the grant of DERs and performance stock units, to increase
the maximum number of shares of Stock with respect to which options, performance
stock units, or restricted Stock may be granted to any employee in any calendar
year, to permit the payment of the purchase price of nonqualified options with
restricted stock, and to determine the maximum aggregate number of shares of
Stock issuable by a formula intended to increase annually the maximum aggregate
number of shares issuable over the term of the Plan (collectively, the
"Amendments"), subject to stockholder approval of the Amendments within twelve
(12) months of the date of approval by the Board. Options may be granted and
Stock and may be issued in reliance on the formula increase, the per year per
employee maximum share increase, or the increase and in the number of shares of
Stock issuable as incentive stock options prior to approval of such increase by
the Company's stockholders, but no option granted or Stock issued in reliance on
such increases shall become exercisable, or, with respect to restricted stock,
be released from restrictions on transfer and repurchase or forfeiture rights,
in whole or in part, unless and until the Amendments shall have been approved by
the Company's stockholders. DERs and performance stock units may be granted on
reliance of the amendment to the Plan, but no payments shall be made or Stock
issued with respect to a DER or a performance stock unit unless and until the
Amendments shall have been approved by the Company's stockholders. The purchase
price of a nonqualified stock option may not be satisfied with restricted stock
unless and until the Amendments shall have been approved by the Company's
stockholders. If such stockholder approval is not obtained within twelve (12)
months after the date of the Board's approval of the Amendments, then all
options, DERs, and performance stock units, previously granted or Stock
previously issued in reliance on the Amendments shall terminate, or, with
respect to restricted stock, be forfeited to the Company.
Rule 16b-3 Compliance. With respect to persons subject to Section 16 of
the Securities Exchange Act of 1934, transactions under the Plan are intended to
comply with all applicable conditions of Rule 16b-3. To the extent any provision
of the Plan or action by the Committee fails to so comply, it shall be deemed
null and void, to the extent permitted by law and deemed advisable by the
Committee. Moreover, in the event the Plan does not include a provision required
by Rule 16b-3 to be stated therein, such provision (other than one relating to
eligibility requirements or the price and amount of awards) shall be deemed
automatically to be incorporated by reference into the Plan insofar as persons
subject to Section 16 are concerned.
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EXHIBIT 5.1
October 24, 1996
Spieker Properties, Inc.
2180 Sand Hill Road, Suite 200
Menlo Park, CA 94025
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
Spieker Properties, Inc., a Maryland corporation (the "Company"), with the
Securities and Exchange Commission on October 25, 1996 (the "Registration
Statement"), relating to the registration under the Securities Act of 1933, as
amended, of 2,605,097 shares of the Company's Common Stock, $.0001 par value per
share (the "Shares"). The Shares are reserved for issuance under the Spieker
Properties, Inc. Amended and Restated 1993 Directors' Stock Option Plan and the
Spieker Properties, Inc. Amended and Restated 1993 Stock Incentive Plan. As
counsel to the Company, we have examined the proceedings taken by the Company in
connection with the registration of the Shares.
It is our opinion that the Shares, when issued and sold in the manner
described in the Registration Statement and the related Prospectuses, will be
legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us in the Registration
Statement and any amendments thereto.
Very truly yours,
/s/MORRISON & FOERSTER LLP
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference to our report dated
January 25, 1996, with respect to the consolidated financial statement and
schedule of Spieker Properties, Inc. (the "Company"), which report is included
in the Company's Annual Reports on Form 10-K and Form 10-K/A (Amendment No. 1)
for the year ended December 31, 1995 and incorporated by reference in the
Company's Registration Statement on Form S-8 (the "Registration Statement").
We also consent to the incorporation by reference of our report dated
June 14, 1996 on the combined statement of revenues and certain expenses for the
six acquired properties and two investments in mortgages, which report is
included in the Company's Current Report on Form 8-K dated June 18, 1996 and
incorporated by reference in the Registration Statement.
We also consent to the incorporation by reference of our report dated
July 11, 1996 on the combined statements of revenues and certain expenses for
The City Portfolio, which report is included in the Company's Current Reports on
Form 8-K dated July 15, 1996 and incorporated by reference in the Registration
Statement.
San Francisco, California ARTHUR ANDERSEN LLP
October 22, 1996
