As filed with the Securities and Exchange Commission on August 19, 1996
Registration Statement No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
Beacon Properties Corporation
(Exact name of Registrant as Specified in Its Charter)
Maryland 04-3224258
(State of Incorporation) 50 Rowes Wharf (I.R.S. Employer Identification #)
Boston, MA 02110
(617) 330-1400
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
AMENDED AND RESTATED
1994 STOCK OPTION AND INCENTIVE PLAN
(Full Title of the Plan)
-------------------------------
ALAN M. LEVENTHAL
President
BEACON PROPERTIES CORPORATION
50 Rowes Wharf
Boston, MA 02110
(617) 330-1400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------------------
With copies to:
Gilbert G. Menna, P.C.
Kathryn I. Murtagh, Esq.
Goodwin, Procter & Hoar LLP
Exchange Place
53 State Street
Boston, Massachusetts 02109-2881
(617) 570-1000
----------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
======================================================================================================
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
Being Registered Registered (1) Offering Price Per Aggregate Offering Registration
Share (2) Price Fee
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock........ 141,086 shares $ 25.50 $ 3,597,693 $ 1,241
. . 200,000 shares $ 25.875 $ 5,175,000 $ 1,785
25,000 shares $ 26.00 $ 650,000 $ 225
12,000 shares $ 24.625 $ 295,500 $ 102
1,243,399 shares $ 26.25 $32,639,224 $11,255
--------- ---------- ------
1,621,485 shares $42,357,417 $14,608
</TABLE>
================================================================================
================================================================================
(1) Plus such additional number of shares as may be required pursuant to the
Amended and Restated 1994 Stock Option and Incentive Plan in the event of a
stock dividend, reverse stock split, split-up, recapitalization, forfeiture
of stock under the Plan or other similar event.
(2) This estimate is made pursuant to Rule 457(c) and (h) under the Securities
Act of 1933, as amended (the ASecurities Act") solely for purposes of
determining the registration fee and is based upon exercise price of
outstanding options and the market value of outstanding shares of Beacon
Properties Corporation Common Stock, par value $.01 per share, on August 14,
1996, utilizing the average of the high and low sale prices reported on the
New York Stock Exchange for that date.
================================================================================
<PAGE>
The contents of the registrant's Registration Statement on Form S-8
(File No. 33-84242) are incorporated herein by reference.
Item 8. Exhibits.
The following is a complete list of exhibits filed as part of this
registration statement.
Exhibit
4.1 Amended and Restated 1994 Stock Option and Incentive Plan.
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1).
23.2 Consent of Coopers & Lybrand L.L.P.
24.1 Powers of Attorney (contained on signature page of this
registration statement).
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Beacon
Properties Corporation 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 Boston, Commonwealth of Massachusetts, on this
15th day of August, 1996.
BEACON PROPERTIES CORPORATION
By: /s/ Alan M. Leventhal
-----------------------------
Alan M. Leventhal, President
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Beacon Properties Corporation hereby severally constitute Alan M.
Leventhal and Lionel P. Fortin and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us and
in our names in the capacities indicated below, the Registration Statement filed
herewith and any and all amendments to said Registration Statement, and
generally to do all such things in our names and in our capacities as officers
and directors to enable Beacon Properties Corporation to comply with the
provisions of the Securities Act of 1933, and all requirements of the Securities
and Exchange Commission, hereby ratifying and confirming our signatures as they
may be signed by our said attorneys, or any of them, to said Registration
Statement and any and all amendments thereto.
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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- -----
<S> <C> <C>
/s/ Alan M. Leventhal President, Chief Executive Officer, August 15, 1996
- -------------------------- and Director (Principal Executive Officer)
Alan M. Leventhal
/s/ Edwin N. Sidman Chairman of the Board August 15, 1996
- -------------------------- of Directors
Edwin N. Sidman
/s/ Lionel P. Fortin Senior Vice President and Chief Operating August 15, 1996
- -------------------------- Officer
Lionel P. Fortin
/s/ Robert J. Perriello Senior Vice President and Chief Financial August 15, 1996
- -------------------------- Officer (Principal Financial Officer and
Robert J. Perriello Principal Accounting Officer)
/s/ Norman B. Leventhal Director August 15, 1996
- --------------------------
Norman B. Leventhal
/s/ Graham O. Harrison Director August 15, 1996
- --------------------------
Graham O. Harrison
/s/ William F. McCall, Jr. Director August 15, 1996
- --------------------------
William F. McCall, Jr.
<PAGE>
/s/ Steven Shulman Director August 15, 1996
- --------------------------
Steven Shulman
/s/ Scott M. Sperling Director August 15, 1996
- --------------------------
Scott M. Sperling
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
4.1 Amended and Restated 1994 Stock Option and Incentive Plan.
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of
the securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (included in
Exhibit 5.1 hereto).
23.2 Consent of Coopers & Lybrand L.L.P.
Exhibit 4.1
BEACON PROPERTIES CORPORATION
AMENDED AND RESTATED
1994 STOCK OPTION AND INCENTIVE PLAN
SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITIONS
----------------------------------------
The name of the plan is the Beacon Properties Corporation 1994 Stock
Option and Incentive Plan (the "Plan"). The purpose of the Plan is to encourage
and enable the officers, employees and Directors of the Beacon Properties
Corporation (the "Company") and its Subsidiaries upon whose judgment, initiative
and efforts the Company largely depends for the successful conduct of its
business to acquire a proprietary interest in the Company. It is anticipated
that providing such persons with a direct stake in the Company's welfare will
assure a closer identification of their interests with those of the Company,
thereby stimulating their efforts on the Company's behalf and strengthening
their desire to remain with the Company.
The following terms shall be defined as set forth below:
"Act" means the Securities Exchange Act of 1934, as amended.
"Award" or "Awards," except where referring to a particular category of
grant under the Plan, shall include Incentive Stock Options, Non-Qualified Stock
Options, Restricted Stock Awards, and Unrestricted Stock Awards.
"Board" means the Board of Directors of the Company.
"Cause" means the occurrence of one or more of the following: (i)
employee or Independent Director is convicted of, pleads guilty to, or confesses
to any felony or any act of fraud, misappropriation or embezzlement which has an
immediate and materially adverse effect on the Company or any Subsidiary, as
determined by the Board in good faith in its sole discretion, (ii) employee or
Independent Director engages in a fraudulent act to the material damage or
prejudice of the Company or any Subsidiary or in conduct or activities
materially damaging to the property, business or reputation of the Company or
any Subsidiary, all as determined by the Board in good faith in its sole
discretion, (iii) any material act or omission by employee or Independent
Director involving malfeasance or negligence in the performance of employee's or
Independent Director's duties to the Company or any Subsidiary to the material
detriment of the Company or any Subsidiary, as determined by the Board in good
faith in its sole discretion, which has not been corrected by employee or
Independent Director within 30 days after written notice from the Company of any
such act or omission, (iv) failure by employee to comply in any material respect
with the terms of his employment agreement, if any, or any written policies or
directives of the Board as determined by the Board in good faith in its sole
discretion, which has not been corrected by employee within 30 days after
written notice from the Company of such failure, or (v) material breach by
employee of his noncompetition agreement with the Company, if any, as determined
by the Board in good faith in its sole discretion.
"Change of Control" is defined in Section 12.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor Code, and related rules, regulations and interpretations.
"Committee" means the Board or any Committee of the Board referred to
in Section 2.
<PAGE>
"Disability" means an employee's inability to perform his normal
required services for the Company and its Subsidiaries for a period of six
consecutive months by reason of the employee's mental or physical disability, as
determined by the Committee in good faith in its sole discretion.
"Disinterested Person" means a non-employee Director who qualifies as
such under Rule 16b-3(c)(2)(i) promulgated under the Act, or any successor
definition under said Rule.
"Effective Date" means the date on which the Plan is approved by
stockholders as set forth in Section 14.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the related rules, regulations and interpretations.
"Fair Market Value" on any given date means the last reported sale price
at which Stock is traded on such date or, if no Stock is traded on such date,
the most recent date on which Stock was traded, as reflected on the New York
Stock Exchange or, if applicable, any other national stock exchange on which the
Stock is traded. Notwithstanding the foregoing, the Fair Market Value on the
first day of the Company's initial public offering shall mean the initial public
price.
"Incentive Stock Option" means any Stock Option designated and qualified
as an "incentive stock option" as defined in Section 422 of the Code.
"Independent Director" means a member of the Board who is not also an
employee of the Company or any Subsidiary or any affiliate of The Beacon
Companies.
"Non-Qualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
"Option" or "Stock Option" means any option to purchase shares of Stock
granted pursuant to Section 5.
"Restricted Stock Award" means Awards granted pursuant to Section 6.
"Retirement" means the employee's termination of employment with the
Company and its Subsidiaries after attainment of the age and service
requirements to qualify for early or normal retirement under the Company's or a
Subsidiary's qualified retirement plan.
"Stock" means the Common Stock, par value $.01 per share, of the
Company, subject to adjustments pursuant to Section 3.
"Subsidiary" means Beacon Properties, L.P., Beacon Property Management
Corporation, Beacon Property Management, L.P., Beacon Construction Company,
Inc., Beacon Design Corporation, Beacon Design, L.P., BCN Management, Inc., BCN
Crystal, Inc., Rowes Wharf Holding, L.P., and any corporation or other entity
(other than the Company) in any unbroken chain of corporations or other
entities, beginning with the Company if each of the corporations or entities
(other than the last corporation or entity in the unbroken chain) owns stock or
other interests possessing 50% or more of the economic interest or the total
combined voting power of all classes of stock or other interests in one of the
other corporations or entities in the chain.
"Unrestricted Stock Award" means Awards granted pursuant to Section 7.
2
<PAGE>
SECTION 2. ADMINISTRATION OF PLAN; COMMITTEE AUTHORITY TO SELECT
-----------------------------------------------------
PARTICIPANTS AND DETERMINE AWARDS
---------------------------------
(a) Committee. The Plan shall be administered by all of the non-employee
Director members of the Compensation Committee of the Board, or any other
committee of not less than two non-employee Directors performing similar
functions, as appointed by the Board from time to time. Each member of the
Committee shall be a Disinterested Person. Effective May 22, 1996, each member
of the Committee shall be an "outside director" within the meaning of Section
162(m) of the Code and the regulations promulgated thereunder. Effective August
15, 1996, each member of the Committee shall be a "non-employee director" within
the meaning of Rule 16b-3 of the Act.
(b) Powers of Committee. The Committee shall have the power and
authority to grant Awards consistent with the terms of the Plan, including the
power and authority:
(i) to select the officers and other employees of the Company and
its Subsidiaries to whom Awards may from time to time be granted;
(ii) to determine the time or times of grant, and the extent, if
any, of Incentive Stock Options, Non-Qualified Stock Options, Restricted
Stock Awards, and Unrestricted Stock Awards, or any combination of the
foregoing, granted to any one or more participants;
(iii) to determine the number of shares of Stock to be covered by
any Award;
(iv) to determine and modify the terms and conditions, including
restrictions, not inconsistent with the terms of the Plan, of any Award,
which terms and conditions may differ among individual Awards and
participants, and to approve the form of written instruments evidencing
the Awards;
(v) to accelerate the exercisability or vesting of all or any
portion of any Award;
(vi) subject to the provisions of Section 5(a)(iii), to extend
the period in which Stock Options may be exercised;
(vii) to determine whether, to what extent, and under what
circumstances Stock and other amounts payable with respect to an Award
shall be deferred either automatically or at the election of the
participant and whether and to what extent the Company shall pay or
credit amounts constituting interest (at rates determined by the
Committee) or dividends or deemed dividends on such deferrals; and
(viii) to adopt, alter and repeal such rules, guidelines and
practices for administration of the Plan and for its own acts and
proceedings as it shall deem advisable; to interpret the terms and
provisions of the Plan and any Award (including related written
instruments); to make all determinations it deems advisable for the
administration of the Plan; to decide all disputes arising in connection
with the Plan; and to otherwise supervise the administration of the
Plan.
All decisions and interpretations of the Committee shall be binding on
all persons, including the Company and Plan participants.
3
<PAGE>
SECTION 3. STOCK ISSUABLE UNDER THE PLAN; RECAPITALIZATIONS: MERGERS;
----------------------------------------------------------
SUBSTITUTE AWARDS
-----------------
(a) Stock Issuable. The maximum number of shares of Stock reserved and
available for issuance under the Plan shall be 2,723,565 shares. For purposes of
this limitation, the shares of Stock underlying any Awards which are forfeited,
cancelled, reacquired by the Company, satisfied without the issuance of Stock or
otherwise terminated (other than by exercise) shall be added back to the shares
of Stock available for issuance under the Plan so long as the participants to
whom such Awards had been previously granted received no benefits of ownership
of the underlying shares of Stock to which the Award related. Subject to such
overall limitation, shares of Stock may be issued up to such maximum number
pursuant to any type or types of Award; provided, however, that Stock Options
with respect to no more than 500,000 shares of Stock may be granted to any one
individual participant during any one calendar year period. The shares available
for issuance under the Plan may be authorized but unissued shares of Stock or
shares of Stock reacquired by the Company.
(b) Recapitalizations. If, through or as a result of any merger,
consolidation, sale of all or substantially all of the assets of the Company,
reorganization, recapitalization, reclassification, stock dividend, stock split,
reverse stock split or other similar transaction, the outstanding shares of
Stock are increased or decreased or are exchanged for a different number or kind
of shares or other securities of the Company, or additional shares or new or
different shares or other securities of the Company or other non-cash assets are
distributed with respect to such shares of Stock or other securities, the
Committee shall make an appropriate or proportionate adjustment in (i) the
maximum number and kind of shares reserved for issuance under the Plan, (ii) the
number and kind of shares or other securities subject to any then outstanding
Awards under the Plan, and (iii) the price for each share subject to any then
outstanding Stock Options under the Plan, without changing the aggregate
exercise price as to which such Stock Options remain exercisable. The adjustment
by the Committee shall be final, binding and conclusive. No fractional shares of
Stock shall be issued under the Plan resulting from any such adjustment, but the
Committee in its discretion may make a cash payment in lieu of fractional
shares.
(c) Mergers. In the event a consolidation or merger or sale of all or
substantially all of the assets of the Company in which outstanding shares of
Stock are exchanged for securities, cash or other property of any other
corporation or business entity or in the event of a liquidation of the Company,
the Board, or the board of directors of any corporation assuming the obligations
of the Company, may, in its discretion, take any one or more of the following
actions, as to outstanding Stock Options: (i) provide that such Stock Options
shall be assumed, or equivalent options shall be substituted, by the acquiring
or succeeding corporation (or an affiliate thereof), (ii) upon written notice to
the optionees, provide that all unexercised Stock Options will terminate
immediately prior to the consummation of such transaction unless exercised by
the optionee within a specified period following the date of such notice, and/or
(iii) in the event of a business combination under the terms of which holders of
the Stock of the Company will receive upon consummation thereof a payment for
each share surrendered in the business combination (the "Merger Price"), make or
provide for a cash payment to the optionees equal to the difference between (A)
the Merger Price times the number of shares of Stock subject to such outstanding
Stock Options (to the extent then exercisable at prices not in excess of the
Merger Price) and (B) the aggregate exercise price of all such outstanding
options in exchange for the termination of such options.
(d) Substitute Awards. The Committee may grant Awards under the Plan in
substitution for stock and stock based awards held by employees of another
corporation who concurrently become employees of the Company or a Subsidiary as
the result of a merger or consolidation of the employing corporation with the
Company or a Subsidiary or the acquisition by the Company or a Subsidiary of
property or stock of the employing corporation. The Committee may direct that
the substitute awards be granted on such terms and conditions as the Committee
considers appropriate in the circumstances.
4
<PAGE>
SECTION 4. ELIGIBILITY
-----------
Participants in the Plan will be such full or part-time officers and
other employees of the Company and its Subsidiaries who are responsible for or
contribute to the management, growth or profitability of the Company and its
Subsidiaries and who are selected from time to time by the Committee, in its
sole discretion. Independent Directors are also eligible to participate in the
Plan but only to the extent provided in Section 5(b) and (c) and Section 7
below.
SECTION 5. STOCK OPTIONS
-------------
Any Stock Option granted under the Plan shall be in such form as the
Committee may from time to time approve.
Stock Options granted under the Plan may be either Incentive Stock
Options or Non-Qualified Stock Options. To the extent that any Option does not
qualify as an Incentive Stock Option, it shall constitute a Non-Qualified Stock
Option.
No Incentive Stock Option shall be granted under the Plan after February
19, 2006.
(a) Stock Options Granted to Employees. The Committee in its discretion
may grant Stock Options to eligible employees of the Company or any Subsidiary.
Stock Options granted to employees pursuant to this Section 5(a) shall be
subject to the following terms and conditions and shall contain such additional
terms and conditions, not inconsistent with the terms of the Plan, as the
Committee shall deem desirable:
(i) Exercise Price. The exercise price per share for the Stock
covered by a Stock Option granted pursuant to this Section 5(a) shall be
determined by the Committee at the time of grant but shall not be less
than 100% of the Fair Market Value on the date of grant in the case of
Incentive Stock Options. Notwithstanding the foregoing, with respect to
Non-Qualified Stock Options which are granted in lieu of cash bonus, the
exercise price per share shall not be less than 50% of the Fair Market
Value on the date of grant. If an employee owns or is deemed to own (by
reason of the attribution rules applicable under Section 424(d) of the
Code) more than 10% of the combined voting power of all classes of stock
of the Company or any Subsidiary or parent corporation and an Incentive
Stock Option is granted to such employee, the option price of such
Incentive Stock Option shall be not less than 110% of the Fair Market
Value on the grant date.
(ii) Grant of Discount Options in Lieu of Cash Bonus. Upon the
request of an eligible employee and with the consent of the Committee,
such employee may elect each calendar year to receive a Non-Qualified
Stock Option in lieu of cash bonus to which he may become entitled
during the following calendar year pursuant to any other plan of the
Company, but only if such employee makes an irrevocable election to
waive receipt of all or a portion of such cash bonus. Such election
shall be made on or before the date set by the Committee. A
Non-Qualified Stock Option shall be granted to each employee who made
such an irrevocable election on the date the waived cash bonus would
otherwise be paid; provided, however, that with respect to an employee
who is subject to Section 16 of the Act, if such grant date is not at
least six months and one day from the date of the election, the grant
shall be delayed until the date which is six months and one day from the
date of the election (or the next following business day, if such date
is not a business day) to the extent necessary to conform to the
requirements for exempt purchases under Rule 16b-3 of the Act. The
exercise price per share shall be determined by the Committee but shall
not be less than 50% of the Fair Market Value of the Stock on the date
the Stock Option is granted. The number of shares of Stock subject to
the Stock Option shall be determined by dividing the amount of the
waived cash bonus by the difference
5
<PAGE>
between the Fair Market Value of the Stock on the date the Stock Option
is granted and the exercise price per Stock Option. The Stock Option
shall be granted for whole number of shares so determined; the value of
any fractional share shall be paid in cash.
(iii) Option Term. The term of each Stock Option shall be fixed
by the Committee, but no Incentive Stock Option shall be exercisable
more than ten years after the date the option is granted. If an employee
owns or is deemed to own (by reason of the attribution rules of Section
424(d) of the Code) more than 10% of the combined voting power of all
classes of stock of the Company or any Subsidiary or parent corporation
and an Incentive Stock Option is granted to such employee, the term of
such option shall be no more than five years from the date of grant.
(iv) Exercisability; Rights of a Stockholder. Stock Options shall
become vested and exercisable at such time or times, whether or not in
installments, as shall be determined by the Committee at or after the
grant date; provided, however, that Stock Options granted in lieu of
cash bonus shall be exercisable immediately. The Committee may at any
time accelerate the exercisability of all or any portion of any Stock
Option. An optionee shall have the rights of a stockholder only as to
shares acquired upon the exercise of a Stock Option and not as to
unexercised Stock Options.
(v) Method of Exercise. Stock Options may be exercised in whole
or in part by giving written notice of exercise to the Company,
specifying the number of shares to be purchased. Payment of the purchase
price may be made by one or more of the following methods:
(A) In cash, by certified or bank check or other
instrument acceptable to the Committee;
(B) In the form of shares of Stock that are not then
subject to restrictions under any Company plan and that have been
held by the optionee for at least six months, if permitted by the
Committee in its discretion. Such surrendered shares shall be
valued at Fair Market Value on the exercise date; or
(C) By the optionee delivering to the Company a properly
executed exercise notice together with irrevocable instructions
to a broker to promptly deliver to the Company cash or a check
payable and acceptable to the Company to pay the purchase price;
provided that in the event the optionee chooses to pay the
purchase price as so provided, the optionee and the broker shall
comply with such procedures and enter into such agreements of
indemnity and other agreements as the Committee shall prescribe
as a condition of such payment procedure.
Payment instruments will be received subject to collection. The delivery
of certificates representing the shares of Stock to be purchased
pursuant to the exercise of a Stock Option will be contingent upon
receipt from the optionee (or a purchaser acting in his stead in
accordance with the provisions of the Stock Option) by the Company of
the full purchase price for such shares and the fulfillment of any other
requirements contained in the Stock Option or applicable provisions of
laws.
(vi) Non-transferability of Options. Except as otherwise
permitted by the Committee, no Stock Option shall be transferable by the
optionee otherwise than by will or by the laws of descent and
distribution and all Stock Options shall be exercisable, during the
optionee's lifetime, only by the optionee.
(vii) Termination by Reason of Death. Any Stock Option held by an
optionee whose employment by the Company and its Subsidiaries is
terminated by reason of death become fully
6
<PAGE>
exercisable and may thereafter be exercised by the legal representative
or legatee of the optionee, for a period of twelve months (or such
longer period as the Committee shall specify at any time) from the date
of death, or until the expiration of the stated term of the Option, if
earlier.
(viii) Termination by Reason of Disability.
(A) Any Stock Option held by an optionee whose employment
by the Company and its Subsidiaries is terminated by reason of
Disability shall become fully exercisable and may thereafter be
exercised, for a period of twelve months (or such longer period
as the Committee shall specify at any time) from the date of such
termination of employment, or until the expiration of the stated
term of the Option, if earlier.
(B) The Committee shall have sole authority and discretion
to determine whether a participant's employment has been
terminated by reason of Disability.
(C) Except as otherwise provided by the Committee, the
death of an optionee during a period provided in this Section
5(a)(viii) for the exercise of a Stock Option shall extend such
period for six months from the date of death, subject to
termination on the expiration of the stated term of the Option,
if earlier.
(ix) Termination by Reason of Retirement.
(A) Any Stock Option held by an optionee whose employment
by the Company and its Subsidiaries is terminated by reason of
Retirement may thereafter be exercised, to the extent it was
exercisable at the time of such termination, for a period of
twelve months (or such longer period as the Committee shall
specify at any time) from the date of such termination of
employment, or until the expiration of the stated term of the
Option, if earlier.
(B) Except as otherwise provided by the Committee, the
death of an optionee during a period provided in this Section
5(a)(ix) for the exercise of a Stock Option shall extend such
period for six months from the date of death, subject to
termination on the expiration of the stated term of the Option,
if earlier.
(x) Termination for Cause. If any optionee's employment by the
Company and its Subsidiaries has been terminated for Cause, any Stock
Option held by such optionee, including any Stock Option that is
exercisable at the time of such termination, shall immediately terminate
and be of no further force and effect; provided, however, that the
Committee may, in its sole discretion, provide that such Stock Option
can be exercised for a period of up to 30 days from the date of
termination of employment or until the expiration of the stated term of
the Option, if earlier.
(xi) Other Termination. Unless otherwise determined by the
Committee, if an optionee's employment by the Company and its
Subsidiaries terminates for any reason other than death, Disability,
Retirement, or for Cause, any Stock Option held by such optionee may
thereafter be exercised, to the extent it was exercisable on the date of
termination of employment, for three months (or such longer period as
the Committee shall specify at any time) from the date of termination of
employment or until the expiration of the stated term of the Option, if
earlier.
(xii) Annual Limit on Incentive Stock Options. To the extent
required for "incentive stock option" treatment under Section 422 of the
Code, the aggregate Fair Market Value (determined as of the time of
grant) of the shares of Stock with respect to which Incentive Stock
Options granted under
7
<PAGE>
this Plan and any other plan of the Company or its Subsidiaries become
exercisable for the first time by an optionee during any calendar year
shall not exceed $100,000. To the extent that any Stock Option exceeds
this limit, it shall constitute a Non-Qualified Stock Option.
(xiii) Form of Settlement. Shares of Stock issued upon exercise
of a Stock Option shall be free of all restrictions under the Plan,
except as otherwise provided in the Plan.
(b) Stock Options Granted to Independent Directors.
(i) Automatic Grant of Options. Promptly after the closing of the
Company's initial public offering and the appointment of Independent
Directors, each Independent Director shall automatically be granted a
Non-Qualified Stock Option to purchase 5,000 shares of Stock. Each
Independent Director appointed or elected for the first time (other than
in connection with the Company's initial public offering) shall
automatically be granted a Non-Qualified Stock Option to purchase 5,000
shares of Stock on his date of appointment or election. Each Independent
Director who is serving as Director of the Company on the fifth business
day after each annual meeting of shareholders, beginning with the 1995
annual meeting, shall automatically be granted on such day a
Non-Qualified Stock Option to acquire 3,000 shares of Stock; provided,
however, that an Independent Director who is appointed or elected for
the first time shall not be eligible to receive a Non-Qualified Stock
Option pursuant to this sentence for the year of his initial appointment
or election. The exercise price per share for the Stock covered by a
Stock Option granted pursuant to the first sentence hereof shall be
equal to the greater of the initial public offering price or the Fair
Market Value of the Stock on the date the Stock Option is granted. The
exercise price per share for the Stock covered by a Stock Option granted
pursuant to the second and third sentences hereof shall be equal to the
Fair Market Value of the Stock on the date the Stock Option is granted.
(ii) Grant of Discount Options in Lieu of Directors' Fees. Each
Independent Director may elect each calendar year to receive a
Non-Qualified Stock Option in lieu of Directors' fees to which he may
become entitled during the following calendar year, but only if such
Independent Director makes an irrevocable election to waive receipt of
all or a portion of such Directors' fees. Such election shall be made on
or before the date set by the Committee. A Non-Qualified Stock Option
shall be granted to each Independent Director who made such an
irrevocable election on the date the waived Directors' fees would
otherwise be paid provided that such grant date shall be at least six
months and one day from the date of the election (or the next following
business day, if such date is not a business day) to the extent
necessary to conform to the requirements for exempt purchases under Rule
16b-3 of the Act. The exercise price per share shall be 50% of the Fair
Market Value of the Stock on the date the Stock Option is granted. The
number of shares of Stock subject to the Stock Option shall be
determined by dividing the amount of the waived Directors' fees by the
difference between the Fair Market Value of the Stock on the date the
Stock Option is granted and the exercise price per Stock Option. The
Stock Option shall be granted for whole number of shares so determined;
the value of any fractional share shall be paid in cash.
(iii) Exercise; Termination; Non-transferability.
(A) All Options granted under Section 5(b) shall be
immediately exercisable. No Option issued under this Section 5(b)
shall be exercisable after the expiration of ten years from the
date upon which such Option is granted.
(B) The rights of an Independent Director in an Option
granted under Section 5(b) shall terminate six months after such
Director ceases to be a Director of the Company or the
8
<PAGE>
specified expiration date, if earlier; provided, however, that if
the Independent Director ceases to be a Director for Cause, the
rights shall terminate immediately on the date on which he ceases
to be a Director.
(C) Except as otherwise permitted by the Committee, no
Stock Option granted under this Section 5(b) shall be
transferable by the optionee otherwise than by will or by the
laws of descent and distribution, and such Options shall be
exercisable during the optionee's lifetime only by the optionee.
Any Option granted to an Independent Director and outstanding on
the date of his death may be exercised by the legal
representative or legatee of the optionee for a period of six
months from the date of death or until the expiration of the
stated term of the option, if earlier.
(D) Options granted under this Section 5(b) may be
exercised only by written notice to the Company specifying the
number of shares to be purchased. Payment of the full purchase
price of the shares to be purchased may be made by one or more of
the methods specified in Section 5(a)(v). An optionee shall have
the rights of a stockholder only as to shares acquired upon the
exercise of a Stock Option and not as to unexercised Stock
Options.
(iii) Limited to Independent Directors. The provisions of this
Section 5(b) shall apply only to Options granted or to be granted to
Independent Directors, and shall not be deemed to modify, limit or
otherwise apply to any other provision of this Plan or to any Option
issued under this Plan to a participant who is not an Independent
Director of the Company. To the extent inconsistent with the provisions
of any other Section of this Plan, the provisions of this Section 5(b)
shall govern the rights and obligations of the Company and Independent
Directors respecting Options granted or to be granted to Independent
Directors. Prior to August 15, 1996, the provisions of this Section 5(b)
which affect the price, date of exercisability, option period or amount
of shares of Stock under an Option shall not be amended more than once
in any six-month period, other than to comport with changes in the Code
or ERISA.
(c) Dividend Equivalent Rights. At the discretion of the Committee at
the time of the grant, each Non-Qualified Stock Option granted under Section
5(a) or 5(b) may also generate Dividend Equivalent Rights ("DERs") which shall
entitle the optionee to receive an additional share of Stock for each DER
received upon the exercise of the Non-Qualified Stock Option, at no additional
cost, based on the formula set forth herein. If so granted by the Committee, as
of the last business day of each calendar quarter, the amount of dividends paid
by the Company on each share of Stock with respect to that quarter shall be
divided by the Fair Market Value per share to determine the actual number of
DERs accruing on each share subject to the Non-Qualified Stock Option. Such
amount of DERs shall be applied against the number of shares covered by the
Non-Qualified Stock Option to determine the number of DERs which accrued during
such quarter.
For example. Assume that an optionee holds a Non-Qualified Stock Option
to purchase 600 shares of Stock. Further assume that the dividend per share for
the first quarter was $0.10, and that the Fair Market Value per share on the
last business day of the quarter was $20. Therefore, .005 DER would accrue per
Share for that quarter and such optionee would receive three DERs for that
quarter (600 X .005). For purposes of determining how many DERs would accrue
during the second quarter, the Non-Qualified Stock Option would be considered to
be for 603 shares of Stock.
SECTION 6. RESTRICTED STOCK AWARDS
-----------------------
(a) Nature of Restricted Stock Awards. The Committee may grant
Restricted Stock Awards to any employee of the Company or any Subsidiary. A
Restricted Stock Award is an Award entitling the recipient to
9
<PAGE>
acquire, at no cost or for a purchase price determined by the Committee, shares
of Stock subject to such restrictions and conditions as the Committee may
determine at the time of grant ("Restricted Stock"). Conditions may be based on
continuing employment and/or achievement of pre-established performance goals
and objectives.
(b) Acceptance of Award. A participant who is granted a Restricted Stock
Award shall have no rights with respect to such Award unless the participant
shall have accepted the Award within 60 days (or such shorter date as the
Committee may specify) following the award date by making payment to the
Company, if required, by certified or bank check or other instrument or form of
payment acceptable to the Committee in an amount equal to the specified purchase
price, if any, of the shares covered by the Award and by executing and
delivering to the Company a written instrument that sets forth the terms and
conditions of the Restricted Stock Award in such form as the Committee shall
determine.
(c) Rights as a Stockholder. Upon complying with Section 6(b) above, a
participant shall have the rights of a stockholder with respect to the voting of
the Restricted Stock, subject to such other conditions contained in the written
instrument evidencing the Restricted Stock Award. Unless the Committee shall
otherwise determine, certificates evidencing the Restricted Stock shall remain
in the possession of the Company until such Stock is vested as provided in
Section 6(e) below.
(d) Restrictions. Restricted Stock may not be sold, assigned,
transferred, pledged or otherwise encumbered or disposed of except as
specifically provided herein. In the event of termination of employment by the
Company and its Subsidiaries for any reason other than death or Disability, the
Company shall have the right, at the discretion of the Committee, to repurchase
Restricted Stock with respect to which conditions have not lapsed at their
purchase price, or to require forfeiture of such shares to the Company if
acquired at no cost, from the participant or the participant's legal
representative. The Company must exercise such right of repurchase or forfeiture
not later than the 90th day following such termination of employment (unless
otherwise specified in the written instrument evidencing the Restricted Stock
Award).
(e) Vesting of Restricted Stock. The Committee at the time of grant
shall specify the date or dates and/or the attainment of pre-established
performance goals, objectives and other conditions on which the
non-transferability of the Restricted Stock and the Company's right of
repurchase or forfeiture shall lapse. Subsequent to such date or dates and/or
the attainment of such pre-established performance goals, objectives and other
conditions, the shares on which all restrictions have lapsed shall no longer be
Restricted Stock and shall be deemed "vested." A participant shall also become
vested in his Restricted Stock upon his termination of employment for reason of
death or Disability.
(f) Waiver, Deferral and Reinvestment of Dividends. The written
instrument evidencing the Restricted Stock Award may require or permit the
immediate payment, waiver, deferral or investment of dividends paid on the
Restricted Stock.
SECTION 7. UNRESTRICTED STOCK AWARDS
-------------------------
(a) Grants to Employees. The Committee may, in its sole discretion,
grant (or sell at a purchase price determined by the Committee) an Unrestricted
Stock Award to any employee of the Company or any Subsidiary pursuant to which
such employee may receive shares of Stock free of any restrictions under the
Plan in lieu of any cash compensation to such employee.
(b) Elections to Receive Unrestricted Stock in Lieu of Director Fees.
Each Independent Director may, pursuant to an irrevocable written election
delivered to the Company, receive all or a portion of such Independent
Director's cash director fees in shares of Unrestricted Stock (valued at Fair
Market Value on
10
<PAGE>
the date or dates that the director fees would otherwise be paid
in cash). Such election shall conform to the requirements for exempt purchases
under Rule 16b-3 of the Act.
(c) Deferral of Awards. Each Independent Director who has made an
election to receive shares of Unrestricted Stock under Section 7(b) above will
have the right to defer receipt of up to 100% of such shares of Unrestricted
Stock payable to such Independent Director in accordance with such rules and
procedures as may from time to time be established by the Company for that
purpose, and any such election shall conform to the requirements for exempt
purchases under Rule 16b-3 of the Act. The deferred Unrestricted Stock shall be
entitled to receive dividend equivalent rights settled in shares of Stock.
(d) Restrictions on Transfers. The right to receive Unrestricted Stock
on a deferred basis may not be sold, assigned, transferred, pledged or otherwise
encumbered, other than by will or the laws of descent and distribution.
SECTION 8. TAX WITHHOLDING
---------------
(a) Payment by Participant. Each participant shall, no later than the
date as of which the value of an Award or of any Stock or other amounts received
thereunder first becomes includable in the gross income of the participant for
Federal income tax purposes, pay to the Company, or make arrangements
satisfactory to the Committee regarding payment of any Federal, state, or local
taxes of any kind required by law to be withheld with respect to such income.
The Company and its Subsidiaries shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to the
participant.
(b) Payment in Stock. A participant may elect to have such tax
withholding obligation satisfied, in whole or in part, by (i) authorizing the
Company to withhold from shares of Stock to be issued pursuant to any Award a
number of shares with an aggregate Fair Market Value (as of the date the
withholding is effected) that would satisfy the withholding amount due, or (ii)
transferring to the Company shares of Stock owned by the participant with an
aggregate Fair Market Value (as of the date the withholding is effected) that
would satisfy the withholding amount due. With respect to any participant who is
subject to Section 16 of the Act, the following additional restrictions shall
apply on or before August 14, 1996:
(A) the election to satisfy tax withholding obligations relating
to an Award in the manner permitted by this Section 8(b) shall be made
either (1) during the period beginning on the third business day
following the date of release of quarterly or annual summary statements
of sales and earnings of the Company and ending on the twelfth business
day following such date, or (2) at least six months prior to the date as
of which the receipt of such an Award first becomes a taxable event for
Federal income tax purposes;
(B) such election shall be irrevocable;
(C) such election shall be subject to the consent or disapproval
of the Committee; and
(D) the Stock withheld to satisfy tax withholding must pertain to
an Award which has been held by the participant for at least six months
from the date of grant of the Award.
Notwithstanding the foregoing, the first sentence of Section 8(b)(A) shall not
be applicable until the Company has been subject to the reporting requirements
of Section 13(a) of the Act for at least a year prior to the election and has
filed all reports and statements required to be filed pursuant to that Section
for that year.
11
<PAGE>
SECTION 9. TRANSFER, LEAVE OF ABSENCE, ETC
-------------------------------
For purposes of the Plan, the following events shall not be deemed a
termination of employment:
(a) a transfer to the employment of the Company from a Subsidiary
or from the Company to a Subsidiary, or from one Subsidiary to another; or
(b) an approved leave of absence for military service or sickness, or
for any other purpose approved by the Company, if the employee's right to
re-employment is guaranteed either by a statute or by contract or under the
policy pursuant to which the leave of absence was granted or if the Committee
otherwise so provides in writing.
SECTION 10. AMENDMENTS AND TERMINATION
--------------------------
The Board may, at any time, amend or discontinue the Plan and the
Committee may, at any time, amend or cancel any outstanding Award (or provide
substitute Awards at the same or reduced exercise or purchase price or with no
exercise or purchase price, but such price, if any, must satisfy the
requirements which would apply to the substitute or amended Award if it were
then initially granted under this Plan) for the purpose of satisfying changes in
law or for any other lawful purpose, but no such action shall adversely affect
rights under any outstanding Award without the holder's consent. If and to the
extent required by the Act to ensure that Awards granted under the Plan are
exempt under Rule 16b-3 promulgated under the Act, Plan amendments shall be
subject to approval by the Company's stockholders.
SECTION 11. STATUS OF PLAN
--------------
With respect to the portion of any Award which has not been exercised
and any payments in cash, Stock or other consideration not received by a
participant, a participant shall have no rights greater than those of a general
creditor of the Company unless the Committee shall otherwise expressly determine
in connection with any Award or Awards. In its sole discretion, the Committee
may authorize the creation of trusts or other arrangements to meet the Company's
obligations to deliver Stock or make payments with respect to Awards hereunder,
provided that the existence of such trusts or other arrangements is consistent
with the foregoing sentence.
SECTION 12. CHANGE OF CONTROL PROVISIONS
----------------------------
Upon the occurrence of a Change of Control as defined in this Section
14:
(a) Each outstanding Stock Option shall automatically become fully
exercisable notwithstanding any provision to the contrary herein.
(b) Restrictions and conditions on Restricted Stock Awards shall
automatically be deemed waived, and the recipients of such Awards shall become
entitled to receipt of the shares of Stock subject to such Awards unless the
Committee shall otherwise expressly provide.
(c) "Change of Control" shall mean the occurrence of any one of the
following events:
(i) any "person," as such term is used in Sections 13(d) and
14(d) of the Act (other than the Company, any of its Subsidiaries, any
trustee, fiduciary or other person or entity holding securities under
any employee benefit plan or trust of the Company or any of its
Subsidiaries), together with all "affiliates" and "associates" (as such
terms are defined in Rule 12b-2 under the Act) of such person,
12
<PAGE>
shall become the "beneficial owner" (as such term is defined in Rule
13d-3 under the Act), directly or indirectly, of securities of the
Company representing 40% or more of either (A) the combined voting power
of the Company's then outstanding securities having the right to vote in
an election of the Company's Board of Directors ("Voting Securities") or
(B) the then outstanding shares of Stock of the Company (in either such
case other than as a result of acquisition of securities directly from
the Company); or
(ii) persons who, as of the date of the closing of the Company's
initial public offering, constitute the Company's Board of Directors
(the "Incumbent Directors") cease for any reason, including, without
limitation, as a result of a tender offer, proxy contest, merger or
similar transaction, to constitute at least a majority of the Board,
provided that any person becoming a director of the Company subsequent
to the closing of the Company's initial public offering whose election
or nomination for election was approved by a vote of at least a majority
of the Incumbent Directors shall, for purposes of this Plan, be
considered an Incumbent Director; or
(iii) the stockholders of the Company shall approve (A) any
consolidation or merger of the Company or any Subsidiary where the
shareholders of the Company, immediately prior to the consolidation or
merger, would not, immediately after the consolidation or merger,
beneficially own (as such term is defined in Rule 13d-3 under the Act),
directly or indirectly, shares representing in the aggregate 50% of the
voting shares of the corporation issuing cash or securities in the
consolidation or merger (or of its ultimate parent corporation, if any),
(B) any sale, lease, exchange or other transfer (in one transaction or a
series of transactions contemplated or arranged by any party as a single
plan) of all or substantially all of the assets of the Company or (C)
any plan or proposal for the liquidation or dissolution of the Company;
Notwithstanding the foregoing, a "Change of Control" shall not be deemed
to have occurred for purposes of the foregoing clause (i) solely as the result
of an acquisition of securities by the Company which, by reducing the number of
shares of Stock or other Voting Securities outstanding, increases (x) the
proportionate number of shares of Stock beneficially owned by any person to 40%
or more of the shares of Stock then outstanding or (y) the proportionate voting
power represented by the Voting Securities beneficially owned by any person to
40% or more of the combined voting power of all then outstanding Voting
Securities; provided, however, that if any person referred to in clause (x) or
(y) of this sentence shall thereafter become the beneficial owner of any
additional Stock or other Voting Securities (other than pursuant to a share
split, stock dividend, or similar transaction), then a "Change of Control" shall
be deemed to have occurred for purposes of the foregoing clause (i).
SECTION 13. GENERAL PROVISIONS
------------------
(a) No Distribution; Compliance with Legal Requirements. The Committee
may require each person acquiring Stock pursuant to an Award to represent to and
agree with the Company in writing that such person is acquiring the shares
without a view to distribution thereof.
No shares of Stock shall be issued pursuant to an Award until all
applicable securities law and other legal and stock exchange requirements have
been satisfied. The Committee may require the placing of such stop-orders and
restrictive legends on certificates for Stock and Awards as it deems
appropriate.
(b) Delivery of Stock Certificates. Delivery of stock certificates to
participants under this Plan shall be deemed effected for all purposes when the
Company or a stock transfer agent of the Company shall have mailed such
certificates in the United States mail, addressed to the participant, at the
participant's last known address on file with the Company.
13
<PAGE>
(c) Other Compensation Arrangements; No Employment Rights. Nothing
contained in this Plan shall prevent the Board from adopting other or additional
compensation arrangements, including trusts, subject to stockholder approval if
such approval is required; and such arrangements may be either generally
applicable or applicable only in specific cases. The adoption of the Plan and
the grant of Awards do not confer upon any employee any right to continued
employment with the Company or any Subsidiary.
SECTION 14. EFFECTIVE DATE OF PLAN
----------------------
The Plan shall become effective upon approval by the holders of a
majority of the shares of Stock of the Company present or represented and
entitled to vote at a meeting of stockholders. Subject to such approval by the
stockholders, and to the requirement that no Stock may be issued hereunder prior
to such approval, Stock Options and other Awards may be granted hereunder on and
after adoption of the Plan by the Board.
SECTION 15. GOVERNING LAW
-------------
This Plan shall be governed by Maryland law except to the extent such
law is preempted by federal law.
Adopted and approved by Board of Directors and shareholders on March 4, 1994.
Amendment to add 1,621,485 shares and other changes approved by Board of
Directors on February 20, 1996 and approved by shareholders on May 22, 1996.
Amendment to conform to requirements of Rule 16b-3 of the Act approved by Board
of Directors on July 25, 1996.
14
Exhibit 5.1
August 19, 1996
Beacon Properties Corporation
50 Rowes Wharf
Boston, Massachusetts 02110
Ladies and Gentlemen:
This opinion is furnished in connection with the registration, pursuant
to the Securities Act of 1933, as amended (the "Securities Act"), of 1,621,485
shares (the "Shares") of common stock, par value $.01 per share ("Common
Stock"), of Beacon Properties Corporation, a Maryland corporation (the
"Company").
In connection with rendering this opinion, we have examined the Articles
of Incorporation, as amended and the Amended and Restated Bylaws of the Company,
such records of the corporate proceedings of the Company as we deemed material,
a registration statement on Form S-8 under the Securities Act relating to the
Shares (the "Registration Statement"), the Company's Amended and Restated 1994
Stock Option and Incentive Plan (the "Plan"), and such other certificates,
receipts, records and documents as we considered necessary for the purposes of
this opinion.
We are attorneys admitted to practice in the Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdictions
other than the laws of the United States of America, the Commonwealth of
Massachusetts and the Maryland General Corporation Law.
Based upon the foregoing, we are of the opinion that when the Shares
have been issued and paid for in accordance with the terms of the Plan and the
Registration Statement, the Shares will be legally issued, fully paid and
nonassessable shares of the Company's Common Stock.
The foregoing assumes that all requisite steps will be taken to comply
with the requirements of the Securities Act and applicable requirements of state
laws regulating the offer and sale of securities.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
GOODWIN, PROCTER & HOAR LLP
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement, relating to the registration of 1,621,485 shares of common stock of
Beacon Properties Corporation (the "Company") on Form S-8 of our report dated
January 17, 1996 (except for Note 19 for which the date is February 15, 1996),
appearing in the Company's Annual Report on Form 10-K for the year ended
December 31, 1995 on our audits of the consolidated financial position of the
Company as of December 31, 1995 and 1994 and the consolidated results of its
operations and its cash flows for the year ended December 31, 1995 and for the
period May 26, 1994 to December 31, 1994, the combined results of operations and
cash flows of The Beacon Group, predecessor to the Company, for the period
January 1, 1994 to May 25, 1994 and for the year ended December 31, 1993, and
the related financial statement schedules of the Company as of December 31,
1995. We also consent to the incorporation by reference of our report dated
April 19, 1996, on our audit of the statement of excess of revenues over
specific operating expenses of Fairfax County Portfolio in Tysons Corner and
Herndon, Virginia for the year ended December 31, 1995, of our report dated July
3, 1996, on our audit of the statement of excess of revenues over specific
operating expenses of 1333 H Street in Washington, D.C. for the year ended
December 31, 1995, of our report dated July 8, 1996, on our audit of the
statement of excess of revenues over specific operating expenses of AT&T Plaza
in Oak Brook, Illinois for the year ended December 31, 1995, and of our report
dated July 8, 1996, on our audit of the statement of excess of revenues over
specific operating expenses of Tri-State International in Lincolnshire, Illinois
for the year ended December 31, 1995, which reports were filed with the
Securities and Exchange Commission on July 23, 1996, on Form 8-K of the Company.
We also consent to the incorporation by reference of our report dated February
14, 1996, on our audit of the statement of excess of revenues over specified
operating expenses for Perimeter Center, Atlanta, Georgia for the year ended
December 31, 1995, which report was filed with the Securities and Exchange
Commission on February 20, 1996 on Form 8-K of the Company.
COOPERS & LYBRAND, L.L.P.
Boston, Massachusetts
August 19, 1996
