As filed with the Securities and Exchange Commission on January 10, 1997
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) (I.R.S. Employer Identification No.)
50 Rowes Wharf 02110
Boston, MA (Zip Code)
(Address of principal executive offices)
BEACON PROPERTIES CORPORATION
1996 NON-QUALIFIED STOCK OPTION 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
----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
Title of Securities Being Amount to be Proposed Maximum Offering Proposed Maximum Amount of
Registered Registered (1) Price Per Share Aggregate Offering Price Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock . . . . . . . . 574,500 shares $29.63 $17,022,435 $5,158.31
5,000 $32.25 $161,250 $48.86
2,000 $31.00 $62,000 $18.79
2,000 $31.50 $63,000 $19.09
166,500 $35.06 (2) $5,837,490 $1,768.94
------- ---------
Total . . . . . . . . . . . 750,000 $7,013.99
====================================================================================================================================
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to
the 1996 Non-Qualified Stock Option 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 solely for purposes of determining the registration fee
and is based upon the market value of outstanding shares of Beacon
Properties Corporation Common Stock, par value $.01 per share, on
January 8, 1997 utilizing the average of the high and low sale prices
reported on the New York Stock Exchange for that date.
===============================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
------------------------------------------------
Beacon Properties Corporation (the "Company") hereby incorporates by
reference the documents listed in (a), (b) and (c) below, which have previously
been filed with the Securities and Exchange Commission (the "Commission").
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995, filed with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange
Act");
(b) The Company's Quarterly Reports on From 10-Q for the periods
ended March 31, 1996, June 30, 1996, and September 30, 1996,
filed with the Commission pursuant to the Exchange Act;
(c) The Company's Current Reports on Form 8-K dated January 5,
1996, February 20, 1996, July 23, 1996, October 18, 1996,
December 18, 1996 and January 6, 1997 each filed with the
Commission pursuant to the Exchange Act, including all
amendments thereto.
(d) The description of the Company's Common Stock contained in its
registration statement on Form 8-A, filed with the Commission
pursuant to the Exchange Act and any amendments or reports
filed for the purpose of updating such description.
In addition, all documents subsequently filed with the Commission by
the Company pursuant to Sections 13(a) and 13(c), Section 14 and Section 15(d)
of the Exchange Act prior to the filing of a post-effective amendment hereto
that indicates that all securities offered hereunder have been sold or that
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. Interests of Named Experts and Counsel.
--------------------------------------
Certain legal matters will be passed upon for the Company by Goodwin,
Procter & Hoar LLP, Boston, Massachusetts, a limited liability partnership
including professional corporations, as corporate, securities and tax counsel to
the Company. Gilbert G. Menna, whose professional corporation is a partner of
Goodwin, Procter & Hoar LLP, is an assistant secretary of the Company and owns
1,000 shares of the Company's Common Stock.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Company's Articles of Incorporation, as amended, limit the
liability of the Company's Directors and officers to the Company and its
stockholders to the fullest extent permitted from time to time by Maryland law.
Maryland law presently permits the liability of Directors and officers to a
corporation or its stockholders for money damages to be limited, except (i) to
the extent that it is proved that the Director or officer actually received an
improper benefit or profit, or (ii) if a judgment or other final adjudication is
entered in a proceeding based on a finding that the Director's or officer's
action, or failure to act, was the result of active and deliberate
2
<PAGE>
dishonesty and was material to the cause of action adjudicated in the
proceeding. This provision does not limit the ability of the Company or its
stockholders to obtain other relief, such as an injunction or rescission.
The Company's Bylaws, as amended, require the Company to indemnify its
Directors, officers and certain other parties to the fullest extent permitted
from time to time by Maryland law. The Maryland General Corporation Law permits
a corporation to indemnify its Directors, officers and certain other parties
against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by them in connection with any proceeding to which they may be
made a party by reason of their service to or at the request of the corporation,
unless it is established that the act or omission of the indemnified party was
material to the matter giving rise to the proceeding and (i) was committed in
bad faith or was the result of active and deliberate dishonesty, (ii) the
indemnified party actually received an improper personal benefit, or (iii) in
the case of any criminal proceeding, the indemnified party had reasonable cause
to believe that the act or omission was unlawful.
Pursuant to the authority granted in the Company's Articles of
Incorporation and Bylaws, the Company has also entered into indemnification
agreements with the Directors and executive officers which provide for
indemnification to the fullest extent permitted by Maryland law.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
The following is a complete list of exhibits filed or incorporated by
reference as part of this registration statement.
Exhibit
- -------
4.1* Articles of Incorporation.
4.2** Bylaws.
4.3 Beacon Properties Corporation 1996 Non-Qualified Stock Option 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 the signature page of this
registration statement).
- ----------------------------------
* Previously filed as an exhibit to Registrant's June 30, 1994 Form 10-Q
and incorporated herein by reference.
** Previously filed as an exhibit to Registrant's Registration Statement
on Form S-11 (File No. 33-76316) filed with the SEC on May 10, 1994
and incorporated herein by reference.
Item 9. Undertakings.
------------
(a) 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:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
3
<PAGE>
(ii) 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. Notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total
dollar value of the securities offered will not exceed that
which was registered) and any deviation from the low or high
of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to
the Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration
statement; and
(iii) 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 (a)(1)(i) and (a)(1)(ii) herein 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 undersigned registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
the registration statement;
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(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.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
Section 13(a) or 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 the 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.
(c) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-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 10th
day of January, 1997.
BEACON PROPERTIES CORPORATION
By: /s/ Alan M. Leventhal
--------------------------------------
Alan M. Leventhal
President and Chief Executive Officer
POWER OF ATTORNEY
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, as 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 below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ Alan M. Leventhal President, Chief Executive January 10, 1997
- --------------------------------- Officer and Director
Alan M. Leventhal (Principal Executive
Officer)
/s/ Edwin N. Sidman Chairman of the Board January 10, 1997
- --------------------------------- of Directors
Edwin N. Sidman
/s/ Lionel P. Fortin Executive Vice President, January 10, 1997
- --------------------------------- Chief Operating Officer and
Lionel P. Fortin Director
/s/ Robert J. Perriello Senior Vice President and January 10, 1997
- --------------------------------- Chief Financial Officer
Robert J. Perriello (Principal Financial Officer
and Principal Accounting Officer)
/s/ Norman B. Leventhal Director January 10, 1997
- ---------------------------------
Norman B. Leventhal
5
<PAGE>
/s/ Dale F. Frey Director January 10, 1997
- ---------------------------------
Dale F. Frey
/s/ Graham O. Harrison Director January 10, 1997
- ---------------------------------
Graham O. Harrison
/s/ William F. McCall, Jr. Director January 10, 1997
- ---------------------------------
William F. McCall, Jr.
- ---------------------------------
Steven Shulman Director
- ---------------------------------- Director
Scott M. Sperling
</TABLE>
6
<PAGE>
EXHIBIT INDEX
-------------
Exhibit No. Description
- ---------- -----------
4.1* Articles of Incorporation.
4.2** Bylaws, as amended
4.3 Beacon Properties Corporation 1996 Non-Qualified Stock Option 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 the signature page of this
registration statement).
- ------------------
* Previously filed as an exhibit to Registrant's June 30, 1994 Form 10-Q and
incorporated herein by reference.
** Previously filed as an exhibit to Registrant's Registration Statement on
Form S-3 (File No. 333-17237) filed with the SEC on December 4, 1996 and
incorporated herein by reference.
BEACON PROPERTIES CORPORATION
1996 STOCK OPTION PLAN
SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITIONS
----------------------------------------
The name of the plan is the Beacon Properties Corporation 1996 Stock
Option Plan (the "Plan"). The purpose of the Plan is to encourage and enable the
employees 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:
"Award" or "Awards" means a grant of Non-Qualified Stock Options.
"Board" means the Board of Directors of the Company.
"Cause" means the occurrence of one or more of the following: (i)
employee 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 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 involving malfeasance or negligence in the performance of
employee'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 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 9.
<PAGE>
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor Code, and related rules, regulations and interpretations.
"Committee" means the Committee of the Board referred to in Section 2.
"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.
"Effective Date" means the date on which the Plan is approved by the
Board.
"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.
"Non-Qualified Stock Option" means any Stock Option that is not an
"incentive stock option" as defined in Section 422 of the Code.
"Option" or "Stock Option" means any option to purchase shares of Stock
granted pursuant to Section 5.
"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.
SECTION 2. ADMINISTRATION OF PLAN; COMMITTEE AUTHORITY TO SELECT PARTICIPANTS
AND DETERMINE AWARDS
------------------------------------------------------------------
<PAGE>
(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.
(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 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 Non-Qualified Stock Options 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(b), to extend
the period in which Stock Options may be exercised; and
(vii) 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.
SECTION 3. STOCK ISSUABLE UNDER THE PLAN; RECAPITALIZATIONS:
MERGERS; SUBSTITUTE AWARDS
------------------------------------------------
(a) Stock Issuable. The maximum number of shares of Stock
reserved and
<PAGE>
available for issuance under the Plan shall be 750,000 shares. For purposes of
this limitation, the shares of Stock underlying any Awards which are forfeited,
canceled, 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. 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.
<PAGE>
(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.
SECTION 4. ELIGIBILITY
-----------
Participants in the Plan will be such full or part-time 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. No
executive officers shall be eligible to receive any Awards under the Plan.
SECTION 5. STOCK OPTIONS
-------------
Any Stock Option granted under the Plan shall be a Non-Qualified Stock
Option.
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 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:
(a) Exercise Price. The exercise price per share for the Stock covered
by a Stock Option granted pursuant to this Section 5 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.
(b) Option Term. The term of each Stock Option shall be fixed by
the Committee[, but no Stock Option shall be exercisable more than ten years
after the date the option is granted].
(c) 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. 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.
<PAGE>
(d) 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:
(i) In cash, by certified or bank check or other
instrument acceptable to the Committee;
(ii) 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
(iii) 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.
(e) Non-transferability of Options. Except as otherwise permitted by
the Committee, no Stock Option shall be transferable by the optionee other 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.
(f) 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 becomes fully 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.
(g) Termination by Reason of Disability.
(i) Any Stock Option held by an optionee whose employment
by the Company and its Subsidiaries is terminated by reason of
Disability shall become
<PAGE>
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.
(ii) The Committee shall have sole authority and discretion to
determine whether a participant's employment has been terminated by
reason of Disability.
(iii) Except as otherwise provided by the Committee, the death
of an optionee during a period provided in this Section 5(g) 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.
(h) Termination by Reason of Retirement.
(i) 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.
(ii) Except as otherwise provided by the Committee, the death
of an optionee during a period provided in this Section 5(h) 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.
(i) 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.
(j) 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.
(k) Form of Settlement. Shares of Stock issued upon exercise of a
Stock
<PAGE>
Option shall be free of all restrictions under the Plan, except as otherwise
provided in the Plan.
SECTION 6. 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. With the approval of the Committee, 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.
SECTION 7. 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 8. 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
<PAGE>
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.
SECTION 9. CHANGE OF CONTROL PROVISIONS
----------------------------
Upon the occurrence of a Change of Control as defined in this Section 9:
(a) Each outstanding Stock Option shall automatically become
fully exercisable notwithstanding any provision to the contrary herein.
(b) "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, 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
<PAGE>
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 10. 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.
(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.
<PAGE>
SECTION 11. EFFECTIVE DATE OF PLAN
----------------------
The Plan shall become effective upon approval by the Board.
SECTION 12. GOVERNING LAW
-------------
This Plan shall be governed by Maryland law except to the extent such
law is preempted by federal law.
Approved by Board of Directors on October 31, 1996.
January 10, 1997
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 750,000
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 1996 Non-Qualified
Stock Option 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,
/s/ Goodwin, Procter & Hoar LLP
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 750,000 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 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 the Form 8-K of the Company dated February 20, 1996.
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, DC 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 10, 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 the Form 8-K of the Company dated July 23, 1996.
We also consent to the incorporation by reference of our audit report dated
September 27, 1996 on our audit of the statement of excess of revenues over
specific operating expenses of the Rosslyn Acquisitions in Rosslyn, Virginia for
the year ended December 31, 1995, of our report dated March 15, 1996 on our
audit of the statement of excess of revenues over specific operating expenses of
the New England Executive Park in Burlington, Massachusetts for the year ended
December 31, 1995, and of our report dated October 29, 1996 on our audit of the
statement of excess of revenues over specific operating expenses of 10960
Wilshire Boulevard in Westwood, California for the year ended December 31, 1995,
which reports were filed with the Securities and Exchange Commission on the Form
8-K of the Company dated October 18, 1996.
We also consent to the reference to our Firm under the caption "Experts" in such
Registration Statement.
Boston, Massachusetts COOPERS & LYBRAND L.L.P.
January 10, 1997
