AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 8, 1999
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 or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2180 Sand Hill Road
Menlo Park, California 94025
(Address of Principal Executive Offices)
-------------------------
SPIEKER PROPERTIES, INC. RESTRICTED STOCK AGREEMENT
(Full title of the plan)
-------------------------
Copy to:
Craig G. Vought
Co-Chief Executive Officer
2180 Sand Hill Road
Menlo Park, California 94025
(650) 854-5600
(Name, address and telephone number,
including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed Maximum Proposed Maximum
Offering Price Aggregate Offering Amount of
Amount to be Per Share* Price* Registration Fee
Title of Securities to be Registered Registered
====================================================================================================================================
<S> <C> <C> <C> <C>
Common Stock, par value $0.0001 per share 2,963,325 $34.875 $103,345,960 $28,731
- ------------------------------------------------------------------------------------------------------------------------------------
<FN>
* Estimated solely for the purpose of calculating the registration fee pursuant
to Rule 457(c) and (h), based on the average of the high and low prices of the
Common Stock of Spieker Properties Inc. (the "Company") as reported on The New
York Stock Exchange on October 1, 1999.
</FN>
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents previously filed by Spieker Properties, Inc.
(the "Registrant") with the Securities and Exchange Commission (the
"Commission") are incorporated herein by reference.
(a) The Registrant's Annual Report on Form 10-K for the Fiscal Year ended
December 31, 1998 as filed with the Commission on March 31, 1999;
(b) The Registrant's Quarterly Report on Form 10-Q for the Fiscal Quarter ended
March 31, 1999, as filed with the Commission on May 13, 1999;
(c) The Registrant's Quarterly Report on Form 10-Q for the Fiscal Quarter ended
June 30, 1999, as filed with the Commission on August 16, 1999;
(d) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") since the date of the Form 10-Q filed
on August 16, 1999; and
(e) The description of the Registrant's Common Stock contained in the Company's
Registration Statement on Form 8-A (File No. 1-12528), including any amendments
or reports updating such description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement, and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Charter of the Registrant contains a provision which limits the
liability of a director or officer of the Registrant to the Registrant or its
stockholders for money damages to the full extent permitted by Maryland law. No
amendment of the Charter of the Registrant shall limit or eliminate this
provision with respect to acts or omissions occurring prior to such amendment or
repeal. Maryland law permits the Registrant to limit the liability of its
directors or officers of the Registrant to the Registrant or its stockholders
for money damages, except to the extent (i) that it is proved that such person
received an improper benefit or profit in money, property or services (to the
extent such benefit or profit was received) or (ii) that a judgment or other
final adjudication adverse to such person is entered in a proceeding based on a
finding in the proceeding that such person's action, or failure to act, was the
result of active and deliberate dishonesty and was material to the cause of
action adjudicated in the proceeding. The provision has no effect on the
availability of equitable remedies such as an injunction or recission.
2
<PAGE>
The Charter of the Registrant contains a provision which provides
indemnification for a director or officer of the Registrant to the full extent
permitted by Maryland law. No amendment of the Charter of the Registrant shall
limit or eliminate the right to indemnification provided with respect to acts or
omissions occurring prior to such amendment or repeal. The Bylaws of the
Registrant contain provisions which implement the indemnification provisions of
the Charter. Maryland law permits (and in part requires) the Registrant to
indemnify a director who is, or is threatened to be, made a party to any
threatened pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of service in that capacity
with the Registrant or at the request of the Registrant as an officer, director,
trustee, partner, employee or agent of another corporation, enterprise or
employee benefit plan. The indemnification may be against judgments, penalties,
fines, settlements and reasonable expenses (including attorneys' fees) actually
incurred by such person in connection with such action, suit or proceeding
unless (i) the act or omission of such person was material to the matter giving
rise to the proceeding and (x) was committed in bad faith or (y) was the result
of active and deliberate dishonesty, (ii) such person actually received an
improper personal benefit in money, property or services or (iii) with respect
to any criminal proceeding, such person had reasonable cause to believe that his
conduct was unlawful. Maryland law permits the Registrant to indemnify to an
officer to the same extent as a director.
In addition, the Registrant has entered into indemnification agreements
with each director and executive officer of the Registrant that require the
Registrant, among other things, to indemnify them against certain liabilities,
including derivative claims, which may be asserted against them by reason of
their status or service as directors or officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits are as set forth in the Exhibit Index on page 7.
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 Act;
(b) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement;
(c) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
Provided, however that paragraphs (1)(a) and (1)(b) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
3
<PAGE>
(2) That, for the purpose of determining any liability under the 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.
(4) That, for purposes of determining any liability under the 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.
(5) That, insofar as indemnification for liabilities arising under the
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 6 above, or otherwise,
the Registrant has been advised that in the opinion of the 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 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 of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant, 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 this 30th day of September, 1999.
SPIEKER PROPERTIES, INC.
By: /s/ Craig G. Vought
-----------------------------
Craig G. Vought
Co-Chief Executive Officer
We, the undersigned officers and directors of Spieker Properties, Inc.,
do hereby constitute and appoint Warren E. Spieker, Jr., Dennis E. Singleton,
Craig G. Vought and Sara R. Steppe, and each of them, our true and lawful
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for each of us and in each of our names, places and stead, in
any and all capacities, to sign any and all amendments 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 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 requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as each of us might
or could do in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his/her substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Warren E. Spieker, Jr. Chairman of the Board, September 30, 1999
- ---------------------------- Director and Co-Chief
Warren E. Spieker, Jr. Executive Officer
/s/ John A. Foster Executive Vice President and September 30, 1999
- ---------------------------- Chief Investment Officer
John A. Foster
/s/ John K. French Director, Executive Vice September 30, 1999
- ---------------------------- President and
John K. French Vice Chairman
5
<PAGE>
/s/ Dennis E. Singleton Vice Chairman of the Board September 30, 1999
- ----------------------------
Dennis E. Singleton
/s/ Elke Strunka Vice President and Principal September 30, 1999
- ---------------------------- Accounting Officer
Elke Strunka (Principal Accounting Officer)
/s/ Craig G. Vought Co-Chief Executive Officer September 30, 1999
- ----------------------------
Craig G. Vought
/s/ Richard J. Bertero Director September 30, 1999
- ----------------------------
Richard J. Bertero
/s/ Harold M. Messmer, Jr. Director September 30, 1999
- ----------------------------
Harold M. Messmer, Jr.
/s/ David M. Petrone Director September 30, 1999
- ----------------------------
David M. Petrone
/s/ William S. Thompson, Jr. Director September 30, 1999
- ----------------------------
William S. Thompson, Jr.
6
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Sequential
- ----------- ----------- Page Number
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4 Restricted Stock Agreement.
5 Opinion of Piper & Marbury L.L.P. as to the
validity of the Common Stock.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Counsel (included in Exhibit 5).
24 Power of Attorney (included on signature page).
7
SPIEKER PROPERTIES, INC.
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is entered into as of the ____ day of __________,
between Spieker Properties, Inc. (the "COMPANY") and [Name] ("RECIPIENT").
W I T N E S S E T H :
WHEREAS, the Company regards Recipient as a valuable contributor to the
Company, and has determined that it would be in the interest of the Company and
its shareholders to grant the Stock provided for in this Agreement to the
Recipient as a reward for past efforts and an incentive for continued service
with the Company, its Affiliates, Spieker Properties, L.P. or Spieker Northwest,
Inc. and for increased achievements in the future by Recipient;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth, the parties to this Agreement hereby agree as follows:
1. Definitions. As used herein, the following definitions shall apply:
(a) "Affiliate" means any Parent, Subsidiary and any business,
corporation, partnership, limited liability company or other entity in which the
Company, a Parent or a Subsidiary holds an ownership interest, directly or
indirectly, including but not limited to Spieker Northwest, Inc. and Spieker
Properties, L.P.
(b) "Board" means the Board of Directors of the Company.
(c) "Change in Control" means a change in ownership or control of the
Company effected through either of the following transactions:
(i) the direct or indirect acquisition by any person or related
group of person (other than an acquisition from or by the Company or by a
Company-sponsored employee benefit plan or by a person that directly or
indirectly controls, is controlled by or is under common control with, the
Company) or beneficial ownership (within the meaning of Rule 13d-3 of the
Exchange Act) of securities possessing more than twenty percent (20%) of the
total combined voting power of the Company's outstanding securities, or
(ii) 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
(rounded up to the next whole number) ceases, by reason of one or more contested
elections for Board membership, to be comprised of individuals who are
Continuing Directors.
<PAGE>
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Common Stock" means the common stock of the Company.
(f) "Consultant" means any person who is engaged by the Company or any
Affiliate to render consulting or advisory services as an independent contractor
and is compensated for such services.
(g) "Continuing Directors" means members of the Board who either (i)
have been Board members continuously for a period of at least thirty-six (36)
months or (ii) have been Board members for less than thirty-six (36) months and
were elected or nominated for election as Board members by at least a majority
of the Board members described in clause (i) who were still in office at the
time such election or nomination was approved by the Board.
(h) "Continuous Status as an Employee, Director or Consultant" means
that the provision of services to the Company or an Affiliate in any capacity or
Employee, Director or Consultant, is not interrupted or terminated. Continuous
Status as an Employee, Director of Consultant shall not be considered
interrupted in the case of (i) any approved leave of absence or (ii) transfers
between locations of the Company or among the Company, an Affiliate, or any
successor in any capacity of Employee, Director or Consultant. An approved leave
of absence shall include sick leave, military leave, or any other authorized
personal leave.
(i) "Corporate Transaction" means any of the following
stockholder-approved transactions to which the Company is a party:
(i) 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;
(ii) 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) in connection with the complete
liquidation or dissolution of the Company; or
(iii) any reverse merger in which the Company is the surviving
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.
(j) "Director" means a member of the Board.
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<PAGE>
(k) "Employee" means any person, including an Officer or Director, who
is an employee of the Company or any Affiliate of the Company for purposes of
Section 422 of the Code.
(l) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(m) "Parent" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(n) "Subsidiary" means a subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
(o) "Subsidiary Disposition" means the disposition by the Company of
its equity holdings in any subsidiary corporation effected by a merger or
consolidation involving that subsidiary corporation, the sale of all or
substantially all of the assets of that subsidiary corporation or the Company's
sale or distribution of substantially all of the outstanding capital stock of
such subsidiary corporation.
2. Restricted Stock Bonus. Contemporaneously with the execution of this
Agreement, the Company will issue to Recipient [Shares] shares of Common Stock
of the Company (the "STOCK"). Stock certificates evidencing the Stock will be
retained by the Company, accompanied by blank stock powers executed by Recipient
for the period during which the Stock constitutes Restricted Stock pursuant to
the terms of Sections 3 and 4, below. All shares of the Stock issued hereunder
shall be deemed issued to Recipient as fully paid and nonassessable shares, and
Recipient (or any Transferee, if Recipient transfers such Stock pursuant to
Section 3(b), below) shall have all rights of a stockholder with respect
thereto, including the right to vote, receive dividends (including stock
dividends), participate in stock splits or other recapitalizations, and exchange
such shares in a merger, consolidation or other reorganization. The Company
shall pay any applicable stock transfer taxes resulting from the issuance of the
Stock to Recipient pursuant to this Agreement. The term "Stock" refers not only
to the Stock granted hereunder, but also to all securities received in
replacement of the Stock, as a stock dividend or as a result of any stock split,
recapitalization, merger, reorganization, exchange or the like, and all other
new, substituted or additional securities or other properties to which Recipient
or Transferee is entitled by reason of Recipient's or Transferee's ownership of
the Stock.
3. Restrictions.
(a) The Stock issued to Recipient hereunder shall constitute
"Restricted Stock" for purposes of this Agreement until the date when Recipient
becomes vested in the Stock pursuant to Section 4, below (or, if Recipient
transfers the Stock pursuant to subsection (b), below, the date Recipient would
have become vested in the Stock had Recipient not transferred it).
-3-
<PAGE>
(b) If Recipient sells, transfers by gift, pledges, hypothecates, or
otherwise transfers or disposes of the Restricted Stock prior to the date when
Recipient becomes vested in such Stock pursuant to Section 4, below, the
Restricted Stock so transferred shall constitute Restricted Stock in the hands
of the transferee or any person to whom such transferee transfers in any manner
such Restricted Stock (both the initial transferee and any subsequent transferee
are referred to herein as ("TRANSFEREE") fully subject to all of the provisions
of this Agreement, until the date Recipient would have become vested in the
Restricted Stock if Recipient had not transferred it. Recipient or Transferee,
as appropriate, must notify the Company of any transfer of Restricted Stock as
provided in Section 10, below. Upon such transfer, Transferee must execute and
provide the Company with blank stock powers for the period during which the
Stock constitutes Restricted Stock.
(c) Restricted Stock shall be subject to forfeiture in favor of the
Company. In the event of the voluntary or involuntary termination of Recipient's
Continuous Status as an Employee, Director or Consultant for any reason, with or
without cause, other than death, total and permanent disability or retirement at
normal retirement age, at a time when Recipient or Transferee holds any
Restricted Stock, such Restricted Stock shall be deemed reconveyed to the
Company without payment of any consideration by the Company, and Company shall
thereafter be the legal and beneficial owner of the Restricted Stock and shall
have all rights and interest in or related thereto without further action by
Recipient or Transferee, as appropriate, or any person receiving the Restricted
Stock by operation of law.
(d) Any attempt to transfer Stock in violation of this Section 3 shall
be null and void and shall be disregarded by the Company.
4. Vesting. For purposes of this Agreement, the term "vest" shall mean with
respect to any share of the Stock that such share is no longer subject to the
restrictions on transfer set forth in Section 3, above, and that such share is
released from the forfeiture provision of that Section. If Recipient or
Transferee has transferred Restricted Stock, such Stock shall vest at the rate
provided below (on a pro rata basis if Recipient transfers less than all of the
Restricted Stock he owns) on the date the Recipient would have become vested in
the Restricted Stock had Recipient not transferred it. If Recipient would become
vested in any fraction of a share of Stock on any date, such fractional share
shall not vest and shall remain Restricted Stock until the Recipient becomes
vested in the entire share (or, if Recipient or Transferee transfers the
Restricted Stock, until Recipient would have become vested in the entire share
had Recipient not transferred it). The Stock subject to this Agreement shall
vest:
(a) As to twenty-five percent (25%) of the number of shares covered by
this Agreement, one year from date of this Agreement;
(b) As to each additional twenty-five percent (25%) of the number of
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<PAGE>
shares covered by this Agreement, on each anniversary of the date of this
Agreement thereafter until all shares covered by this Agreement have become
vested.
(c) Notwithstanding the foregoing, all Restricted Stock granted under
this Agreement shall be fully vested, nonforfeitable and released from any
restrictions on transfer and the forfeiture provision under Section 3 in the
event of a Corporate Transaction, a Change in Control, or a Subsidiary
Disposition.
5. Withholding of Taxes. Recipient shall provide the Company with a copy of
any timely election made pursuant to Section 83(b) of the Code or similar
provision of state law (collectively, an "83(B) ELECTION"). If Recipient makes a
timely 83(b) Election, Recipient shall immediately pay the Company (or the
Affiliate or Spieker Properties, L.P. or Spieker Northwest, Inc.) the amount
necessary to satisfy any applicable federal, state, and local income and
employment tax withholding requirements. If Recipient does not make a timely
83(b) Election, Recipient shall, either at the time that the restrictions lapse
under this Agreement or at the time withholding is otherwise required by any
applicable law, pay the Company (or the Affiliate or Spieker Properties, L.P. or
Spieker Northwest, Inc.) the amount necessary to satisfy any applicable federal,
state, and local income and employment tax withholding requirements.
6. Additional Securities. Any securities received as the result of
ownership of Restricted Stock (hereinafter called "ADDITIONAL SECURITIES"),
including, but not by way of limitation, warrants, options and securities
received as a stock dividend or stock split, or as a result of a
recapitalization or reorganization, shall be retained by the Company in the same
manner and subject to the same conditions as the Restricted Stock with respect
to which they were issued. Recipient (or Transferee, if Recipient transfers the
Restricted Stock) shall be entitled to direct the Company to exercise any
warrant or option received as Additional Securities upon supplying the funds
necessary to do so, in which event the securities so purchased shall constitute
Additional Securities, but the Recipient or Transferee, as appropriate, may not
direct Company to sell any such warrant or option. If Additional Securities
consist of a convertible security, Recipient (or Transferee, if Recipient
transfers the Restricted Stock) may exercise any conversion right, and any
securities so acquired shall be deemed Additional Securities. Additional
Securities shall be subject to the provisions of Sections 2 and 3, above in the
same manner as the Restricted Stock.
7. Legends; Stop Transfer.
(a) All certificates for shares of the Stock shall bear the following
legends:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY THE TERMS
OF THAT CERTAIN RESTRICTED STOCK AGREEMENT BETWEEN THE COMPANY AND
[NAME] DATED [DATE]. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE
TRANSFERRED ONLY IN
-5-
<PAGE>
ACCORDANCE WITH SUCH AGREEMENT, A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY.
(b) The certificates for shares of the Stock also shall bear any legend
required by any applicable state securities law.
8. NO EFFECT ON TERMS OF EMPLOYMENT. THIS AGREEMENT SHALL NOT CONFER UPON
RECIPIENT ANY RIGHT WITH RESPECT TO CONTINUATION OF HIS EMPLOYMENT WITH THE
COMPANY OR ANY OF ITS AFFILIATES OR ANY OTHER EMPLOYER, NOR SHALL IT INTERFERE
IN ANY WAY WITH THE RIGHT OF RECIPIENT OR THE COMPANY OR ITS AFFILIATES OR ANY
OTHER EMPLOYER TO TERMINATE RECIPIENT'S EMPLOYMENT WITH SUCH EMPLOYER AT ANY
TIME FOR ANY REASON WITH OR WITHOUT CAUSE OR TO CHANGE THE TERMS OF EMPLOYMENT
OF RECIPIENT.
9. Section 83(b) Election. Recipient hereby represents that he understands
(a) the contents and requirements of the 83(b) Election, (b) the application of
Section 83(b) to the receipt of the Stock by Recipient pursuant to this
Agreement, (c) the nature of the election to be made by Recipient under Section
83(b), and (d) the effect and requirements of the 83(b) Election under relevant
state and local tax laws. Recipient further represents that he does not intend
to file an election pursuant to Section 83(b) with the Internal Revenue Service
within thirty (30) days following receipt of the Stock hereunder, and submit a
copy of such election with his federal tax return for the calendar year in which
the date of this Agreement falls. Recipient is a resident of the State of
California. Recipient covenants to inform the Company of any change in
Recipient's state of residency.
10. Notice of Transfer. Recipient and any Transferee covenants to inform
the Company of any sale, transfer by gift, pledge, or other transfer or
disposition of Restricted Stock owned by him within 10 days of such transfer,
and within such period, to provide the Company with written proof of the amount
realized upon such transfer and the name, address, and taxpayer identification
number of the Transferee.
11. Distributions. Company shall disburse to Recipient (or to Transferee if
Recipient transfers Restricted Stock) all dividends, interest and other
distributions paid or made in cash or property (other than Additional
Securities) with respect to Restricted Stock and Additional Securities, less any
applicable federal or state withholding taxes.
12. Successors. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors, assigns and Transferees.
13. Notice. Any notice or other document required to be given or sent
pursuant to the terms of this Agreement shall be sufficiently given or served
hereunder to any party
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<PAGE>
when transmitted by registered or certified mail, postage prepaid, addressed to
the party to be served as follows:
Company: Spieker Properties, Inc.
2180 Sand Hill Road, Suite 200
Menlo Park, California 94025
Recipient: [Name]
[Address1]
[Address2]
[City], [State] [Zip]
Any party may designate another address for receipt of notices so long as notice
is given in accordance with this Section.
14. Board Decisions Conclusive. All decisions of the Board made with
respect to this Agreement shall be conclusive.
15. California Law. The interpretation, performance and enforcement of this
Agreement shall be governed by the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Restricted Stock Agreement as of the date first above written.
COMPANY:
Spieker Properties, Inc., a Maryland corporation
- ----------------------------------
Craig G. Vought
Co-Chief Executive Officer
RECIPIENT:
- ---------------------------------
[Name]
[Address1]
[Address2]
[City], [State] [Zip]
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<PAGE>
ATTACHMENT A
------------
CONSENT OF SPOUSE
I, [SpouseName], spouse of [Name], have read and approved the
foregoing Restricted Stock Agreement. In consideration of granting to my spouse
the right to receive shares of Spieker Properties, Inc., as set forth in the
Agreement, I hereby appoint my spouse as my attorney-in-fact in respect to the
exercise of any rights of the Agreement insofar as I may have any rights under
such community property laws of the State of California or similar laws relating
to marital property in effect in the state of our residence as of the date of
the signing of the foregoing Agreement.
Dated: ____________________ By:__________________________
[SpouseName]
-8-
EXHIBIT 5
PIPER & MARBURY
L.L.P.
CHARLES CENTER SOUTH
36 SOUTH CHARLES STREET WASHINGTON
BALTIMORE, MARYLAND 21201-3018 NEW YORK
410-539-2530 PHILADELPHIA
FAX: 410-539-0489 RESTON
EASTON
October 6, 1999
SPIEKER PROPERTIES, INC.
2180 Sand Hill Road, Suite 200
Menlo Park, California 94025
Ladies and Gentlemen:
We have acted as special Maryland counsel to Spieker Properties, Inc., a
Maryland corporation (the "Company"), in connection with the registration under
the Securities Act of 1933, as amended (the "Act"), pursuant to a Registration
Statement on Form S-8 of the Company (the "Registration Statement") filed with
the Securities and Exchange Commission (the "Commission") of 2,963,325 shares
(the "Shares") of Common Stock, par value $.0001 per share, of the Company (the
"Common Stock") to be issued pursuant to the Spieker Properties, Inc. Restricted
Stock Agreement (the "Plan"). This opinion is being furnished to you at your
request in connection with the filing of the Registration Statement.
In rendering the opinion expressed herein, we have reviewed originals or
copies, certified or otherwise identified to our satisfaction, of the
Registration Statement, the Charter and By-Laws of the Company, the Plan, the
proceedings of the Board of Directors of the Company or a committee thereof
relating to the organization of the Company and to the authorization and
issuance of the Shares, a short-form good standing certificate for the Company
issued by the Maryland State Department of Assessments and Taxation, a
Certificate of the Assistant Secretary of the Company (the "Certificate"), and
such other statutes, certificates, instruments, and documents relating to the
Company and matters of law as we have deemed necessary to the issuance of this
opinion.
In our examination of the aforesaid documents, we have assumed, without
independent investigation, the genuineness of all signatures, the legal capacity
of all individuals who have executed any of the aforesaid documents, the
authenticity of all documents submitted to us as originals, the conformity with
originals of all documents submitted to us as copies (and the authenticity of
the originals of such copies), and the
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PIPER & MARBURY
L.L.P.
SPIEKER PROPERTIES, INC.
October 6, 1999
Page 2
accuracy and completeness of all public records reviewed by us. In making our
examination of documents executed by parties other than the Company, we have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder, and we have also assumed the due
authorization by all requisite action, corporate or other, and the valid
execution and delivery by such parties of such documents and the validity,
binding effect and enforceability thereof with respect to such parties. As to
any facts materials to this opinion which we did not independently establish or
verify, we have relied solely upon the Certificate.
Based upon the foregoing, having regard for such legal considerations as we
deem relevant, and limited in all respects to applicable Maryland law, we are of
the opinion and advise you that:
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland.
(2) The Shares have been duly authorized, and, upon issuance and
delivery of the Shares in accordance with the terms of the Plan and
issuance and delivery of stock certificates representing the Shares, the
Shares will be validly issued, fully paid, and non-assessable.
In addition to the qualifications set forth above, this opinion is subject
to the qualification that we express no opinion as to the laws of any
jurisdiction other than the State of Maryland. To the extent that any documents
referred to herein are governed by the law of a jurisdiction other than
Maryland, we have assumed that the laws of such jurisdiction are the same as the
laws of the State of Maryland. We assume that the issuance of the Shares will
not cause the Company to issue shares of Common Stock in excess of the number of
such shares authorized by the Company's Charter and that the issuance of the
Shares will not cause any person to violate the Ownership Limit (as defined in
Article Ninth of the Charter of the Company). This opinion concerns only the
effect of the laws (exclusive of the securities or "blue sky" laws and the
principles of conflict of laws) of the State of Maryland as currently in effect.
We assume no obligation to supplement this opinion if any applicable laws change
after the date hereof or if any facts or circumstances come to our attention
after the date hereof that might change this opinion. This opinion is limited to
the matters set forth herein, and no other opinion should be inferred beyond the
matters expressly stated.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving our consent, we do not thereby admit that we
are in the category of
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PIPER & MARBURY
L.L.P.
SPIEKER PROPERTIES, INC.
October 6, 1999
Page 3
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission thereunder.
Very truly yours,
/s/ Piper & Marbury L.L.P.
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
February 2, 1999 included in Spieker Properties, Inc.'s Form 10-K for the year
ended December 31, 1998 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
San Francisco, California
October 5, 1999
