As Filed with the Securities and Exchange Commission on July 20, 2005
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EXTRA SPACE STORAGE INC.
(Exact name of registrant as specified in its charter)
Maryland
(State or Other Jurisdiction of Incorporation or Organization)
20-1076777
(I.R.S. Employer Identification No.)
2795 East Cottonwood Parkway, Suite 400, Salt Lake City, UT 84121
(Address of Principal Executive Offices) (Zip Code)
2004 Non-Employee Directors’ Share Plan
2004 Long Term Incentive Compensation Plan
(Full Titles of the Plans)
Kenneth M. Woolley
Extra Space Storage Inc.
2795 East Cottonwood Parkway, Suite 400
Salt Lake City, Utah 84121
(Name and Address of Agent For Service)
(801) 562-5556
(Telephone Number, Including Area Code, of Agent For Service)
Copies to:
Jay L. Bernstein, Esq.
Andrew S. Epstein, Esq.
Clifford Chance US LLP
31 West 52nd Street
New York, New York 10019
(212) 878-8000
CALCULATION OF REGISTRATION FEE
| Title of Each Class of Securities To Be Registered |
Amount To Be |
Proposed Maximum Offering Price Per Share(2) |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee(2) | ||||||
| Common Stock, $0.01 par value per share |
8,000,000 | $15.55 | $ | 124,400,000 | $ | 14,641.88 | ||||
| Common Stock, $0.01 par value per share |
800,000 | $15.55 | $ | 12,440,000 | $ | 1,464.19 | ||||
| (1) | Pursuant to Rule 416 under the Securities Act of 1933, as amended, this registration statement also covers additional shares that may become issuable under the plans by reason of certain corporate transactions or events, including any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the registrant’s outstanding shares of common stock. |
| (2) | Computed in accordance with Rule 457(h) under the Securities Act by averaging the high and low sales prices of Extra Space Storage Inc.’s common stock as reported by the NYSE on July 18, 2005. |
EXPLANATORY NOTE
In accordance with the instructional Note to Part I of Form S-8 as promulgated by the Securities and Exchange Commission (the “SEC”), the information specified by Part I of Form S-8 has been omitted from this Registration Statement. This Registration Statement has been prepared in accordance with the requirements of Form S-8 under the Securities Act of 1933, as amended, to register offers of common stock of Extra Space Storage Inc. pursuant to the Extra Space Storage Inc. 2004 Long Term Incentive Compensation Plan and the Extra Space Storage Inc. 2004 Non-Employee Directors’ Share Plan (the “Plans”).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents filed by the Company with the Securities and Exchange Commission under the Securities Exchange Act of 1934 are incorporated by reference:
| (a) | The description of the Company’s common stock contained in the Company’s Registration Statement on Form 8-A filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on August 4, 2004. |
| (b) | The Company’s Annual Report on Form 10-K filed on March 15, 2005. |
| (c) | The Company’s Quarterly Report on Form 10-Q filed on May 10, 2005. |
| (d) | The Company’s Current Reports on Form 8-K filed on February 23, 2005, April 22, 2005, May 11, 2005, May 31, 2005 and June 24, 2005. |
All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this registration statement which indicates that all of the shares of the Company’s common stock offered have been sold or which deregisters all such shares 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. Any statement contained in a document incorporated or deemed incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company’s charter and the partnership agreement of Extra Space Storage LP provide for indemnification of the Company’s officers and directors against liabilities to the fullest extent permitted by the Maryland General Corporation Law, as amended from time to time (the “MGCL”).
The MGCL permits a Maryland corporation to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from actual receipt of an improper benefit or profit in money, property or services or active and deliberate dishonesty established by a final judgment as being material to the cause of action. The Company’s charter contains such a provision which eliminates such liability to the maximum extent permitted by Maryland law.
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The MGCL requires a corporation (unless its charter provides otherwise, which the Company’s charter does not) to indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he or she is made a party by reason of his or her service in that capacity. The MGCL permits a corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made a party by reason of their service in those or other capacities unless it is established that:
| • | the act or omission of the director or officer was material to the matter giving rise to the proceeding and: |
| • | was committed in bad faith or |
| • | was the result of active and deliberate dishonesty; |
| • | the director or officer actually received an improper personal benefit in money, property or services; or |
| • | in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. |
However, under the MGCL, a Maryland corporation may not indemnify for an adverse judgment in a suit by or in the right of the corporation or for a judgment of liability on the basis that personal benefit was improperly received, unless in either case a court orders indemnification and then only for expenses. In addition, the MGCL permits a corporation to advance reasonable expenses to a director or officer upon the corporation’s receipt of:
| • | a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation; and |
| • | a written undertaking by the director or office or on the director’s or officer’s behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the director or officer did not meet the standard of conduct. |
The Company’s charter authorizes the Company to obligate itself and the Company’s bylaws obligate the Company, to the fullest extent permitted by Maryland law in effect from time to time, to indemnify and, without requiring a preliminary determination of the ultimate entitlement to indemnification, pay or reimburse reasonable expenses in advance of final disposition of a proceeding to:
| • | any present or former director or officer who is made or threatened to be made a party to the proceeding by reason of his or her service in that capacity; or |
| • | any individual who, while a director or officer of the Company and at the Company’s request, serves or has served another corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan or any other enterprise as a director, officer, partner or trustee of such corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan or other enterprise and who is made or threatened to be made a party to the proceeding by reason of his or her service in that capacity. |
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The Company’s charter and bylaws also permit it to indemnify and advance expenses to any person who served a predecessor of the Company in any of the capacities described above and to any employee or agent of the Company or a predecessor of the Company.
The partnership agreement of Extra Space Storage LP provides that the Company, as general partner, and its officers and directors are indemnified to the fullest extent permitted by law.
Insofar as the foregoing provisions permit indemnification of directors, officers or persons controlling the Company for liability arising under the Securities Act, the Company has been informed that in the opinion of the SEC, this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a list of exhibits to this registration statement:
| Number |
Description | |
| 4.1 | Company’s Articles of Amendment and Restatement (incorporated by reference to Exhibit 3.1 of the Company’s Registration Statement on Form S-11 (Registration No. 333-115436)). | |
| 4.2 | Company’s Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 of the Company’s Registration Statement on Form S-11 (Registration Statement 333-115436)). | |
| 4.3 | Extra Space Storage Inc. 2004 Long Term Incentive Compensation Plan (incorporated by reference to Exhibit 10.9 of the Company’s Registration Statement on Form S-11 (Registration Statement 333-115436)). | |
| 4.4 | Extra Space Storage Inc. 2004 Non-Employee Directors’ Share Plan (incorporated by reference to Exhibit 10.31 of the Company’s Registration Statement on Form S-11 (Registration Statement 333-115436)). | |
| 5.1* | Opinion of Venable LLP as to the legality of the securities being registered | |
| 23.1* | Consent of Venable LLP (included in Exhibit 5.1) | |
| 23.2* | Consent of PricewaterhouseCoopers LLP | |
| 24.1* | Power of Attorney (included on signature page) | |
| * | Filed herewith. |
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 of 1933;
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(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 volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(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) of this section do not apply if the registration statement is on Form S-3 or Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) 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 of 1933 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 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 Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Extra Space Storage Inc. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Salt Lake City, State of Utah, on this 20 day of July, 2005.
| EXTRA SPACE STORAGE INC. | ||
| By: |
/s/ Charles L. Allen | |
| Charles L. Allen | ||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Kenneth M. Woolley, Kent W. Christensen and Charles L. Allen and each of them, his or her true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement and to file the same with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. This power of attorney may be executed in counterparts.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Name |
Title |
Date | ||
| /s/ Kenneth M. Wooley Kenneth M. Wooley |
Chairman and Chief Executive Officer | July 20, 2005 | ||
| /s/ Kent W. Christensen Kent W. Christensen |
Senior Vice President and Chief Financial Officer | July 20, 2005 | ||
| /s/ Anthony Fanticola Anthony Fanticola |
Director | July 20, 2005 | ||
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| Name |
Title |
Date | ||
|
/s/ Hugh W. Horne Hugh W. Horne |
Director | July 20, 2005 | ||
| /s/ Joseph D. Margolis Joseph D. Margolis |
Director | July 20, 2005 | ||
| /s/ Spencer F. Kirk Spencer F. Kirk |
Director | July 20, 2005 | ||
| /s/ Roger B. Porter Roger B. Porter |
Director | July 20, 2005 | ||
| /s/ K. Fred Skousen K. Fred Skousen |
Director | July 20, 2005 | ||
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EXHIBIT INDEX
| Number |
Description | |
| 4.1 | Company’s Articles of Amendment and Restatement (incorporated by reference to Exhibit 3.1 of the Company’s Registration Statement on Form S-11 (Registration No. 333-115436)). | |
| 4.2 | Company’s Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 of the Company’s Registration Statement on Form S-11 (Registration Statement 333-115436)). | |
| 4.3 | Extra Space Storage Inc. 2004 Long Term Incentive Compensation Plan (incorporated by reference to Exhibit 10.9 of the Company’s Registration Statement on Form S-11 (Registration Statement 333-115436)). | |
| 4.4 | Extra Space Storage Inc. 2004 Non-Employee Directors’ Share Plan (incorporated by reference to Exhibit 10.31 of the Company’s Registration Statement on Form S-11 (Registration Statement 333-115436)). | |
| 5.1* | Opinion of Venable LLP as to the legality of the securities being registered | |
| 23.1* | Consent of Venable US LLP (included in Exhibit 5.1) | |
| 23.2* | Consent of PricewaterhouseCoopers LLP | |
| 24.1* | Power of Attorney (included on signature page) | |
| * | Filed herewith. |
Exhibit 5.1
|
|
Two Hopkins Plaza, Suite 1800 Baltimore, Maryland 21201-2978 |
Telephone 410-244-7400 Facsimile 410-244-7742 |
www.venable.com
|
July 20, 2005
Extra Space Storage Inc.
Suite 400
2795 East Cottonwood Parkway
Salt Lake City, Utah 84121
| Re: | Registration Statement on Form S-8 |
Ladies and Gentlemen:
We have served as Maryland counsel to Extra Space Storage Inc., a Maryland corporation (the “Company”), in connection with certain matters of Maryland law arising out of the registration of up to 8,800,000 shares (the “Shares”) of common stock, $.01 par value per share, of the Company (the “Common Stock”), including (a) 8,000,000 shares of Common Stock (the “Incentive Plan Shares”) issuable under the Company’s 2004 Long-Term Incentive Compensation Plan (the “Incentive Plan”) and (b) 800,000 shares of Common Stock (the “Director Plan Shares”) issuable under the Company’s 2004 Non-Employee Directors’ Share Plan (the “Director Plan” and, together with the Incentive Plan, the “Plans”). The Shares are covered by the above-referenced Registration Statement, and all amendments thereto (the “Registration Statement”), filed by the Company with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”). Unless otherwise defined herein, capitalized terms used herein shall have the meanings assigned to them in the Registration Statement.
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the “Documents”):
1. The Registration Statement;
2. The charter of the Company (the “Charter”), certified as of a recent date by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
3. The Amended and Restated Bylaws of the Company, certified as of the date hereof by an officer of the Company;
Extra Space Storage Inc.
July 20, 2005
Page 2
4. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
5. Resolutions adopted by the Board of Directors of the Company relating to, among other matters, the adoption of the Plans and the registration and issuance of the Shares (the “Board Resolutions”), certified as of the date hereof by an officer of the Company;
6. Resolutions adopted by the sole stockholder of the Company relating to, among other matters, the approval of the Plans (the “Stockholder Resolutions” and, together with the Board Resolutions, the “Resolutions”), certified as of the date hereof by an officer of the Company;
7. The Plans, certified as of the date hereof by an officer of the Company;
8. A certificate executed by an officer of the Company, dated as of the date hereof; and
9. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of such individual or any other person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.
4. All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all such Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties,
Extra Space Storage Inc.
July 20, 2005
Page 3
statements and information contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.
5. The Shares will not be issued in violation of any restriction or limitation contained in the Charter or the Plans.
6. Each option, restricted stock unit, right or other security exercisable or exchangeable for a Share pursuant to the Incentive Plan or the Director Plan (each, an “Option”) will be duly authorized and validly granted in accordance with the Incentive Plan or the Director Plan, as the case may be, and exercised or exchanged in accordance with the terms of the Incentive Plan or the Director Plan, as the case may be, including any option agreement entered into in connection therewith, at the time of any exercise or exchange of such Option.
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.
2. The issuance of the Shares has been duly authorized and, when and to the extent issued in accordance with the Registration Statement, the Resolutions, the Incentive Plan or the Director Plan, as the case may be, and any stock option or restricted stock agreement utilized under the Incentive Plan or the Director Plan, as the case may be, the Shares will be (assuming that, upon issuance, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Charter) validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the laws of the State of Maryland, and we do not express any opinion herein concerning any other law. We express no opinion as to the applicability or effect of any federal or state securities laws, including the securities laws of the State of Maryland. To the extent that any matter as to which our opinion is expressed herein would be governed by any jurisdiction other than the State of Maryland, we do not express any opinion on such matter.
The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
Extra Space Storage Inc.
July 20, 2005
Page 4
This opinion is being furnished to you for submission to the Commission as an exhibit to the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.
| Very truly yours, |
 |
43502/214476
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 10, 2005 relating to the financial statements and financial statement schedule of Extra Space Storage, Inc., which appears in Extra Space Storage, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2004.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Salt Lake City, Utah
July 14, 2005