[LETTERHEAD OF VENABLE LLP]
August 1, 2023
Equity Commonwealth
Two Riverside Plaza, Suite 2100
Chicago, Illinois 60606
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have served as Maryland counsel to Equity Commonwealth, a Maryland real estate investment trust (the “Company”), in connection with certain matters of Maryland law arising out of the registration of an additional 1,650,000 shares (the “Shares”) of common shares of beneficial interest, $0.01 par value per share (the “Common Shares”), of the Company pursuant to the Equity Commonwealth 2015 Omnibus Incentive Plan, as amended by Amendment No. 1, Amendment No. 2 and Amendment No. 3 (the “Plan”), 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”).
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 Declaration of Trust of the Company (the “Declaration”), certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
3. The Fourth Amended and Restated Bylaws of the Company, certified as of the date hereof by an officer of the Company;
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 Trustees of the Company relating to, among other matters, the approval of the Plan and the issuance of the Shares (the “Resolutions”), certified as of the date hereof by an officer of the Company;
6. The Plan;
Equity Commonwealth
August 1, 2023
Page 2
7. A certificate executed by an officer of the Company, dated as of the date hereof; and
8. 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 another 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 Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, 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 or transferred in violation of any restriction or limitation on ownership and transfer contained in Article VI of the Declaration or in the Plan. Upon the issuance of any Shares, the total number of Common Shares issued and outstanding will not exceed the total number of Common Shares that the Company is then authorized to issue under the Declaration.
6.Each option, restricted share unit, award, right or other security or other arrangement that provides for the potential issuance of a Share pursuant to the Plan (each, an “Award”) will be duly authorized and validly granted in accordance with the Plan, and any Share issued pursuant to any such Award will be issued in accordance with the terms of the Plan and such Award, including any agreement entered into in connection therewith.
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
1.The Company is a real estate investment trust duly formed and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.
Equity Commonwealth
August 1, 2023
Page 3
2.The issuance of the Shares pursuant to the Plan has been duly authorized and, when and to the extent issued and delivered by the Company in accordance with the Registration Statement, the Plan and the Resolutions, the Shares will be 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 federal law or the laws of any other jurisdiction. We express no opinion as to the applicability or effect of federal or state securities laws, including the securities laws of the State of Maryland, federal or state laws regarding fraudulent transfers or the laws, codes or regulations of any municipality or other jurisdiction. To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. The opinion expressed herein is subject to the effect of any judicial decision which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.
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.
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 and to the use of the name of our firm therein. 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,
/s/ Venable LLP
Venable LLP
Exhibit 24.1
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints William H. Griffiths and Orrin Shifrin and each of them (with full power to act without the others), the true and lawful attorneys-in-fact and agents for and on behalf of the undersigned, and in the undersigned’s name, place and stead, in the undersigned’s capacity as an officer of Equity Commonwealth (the “Registrant”) to sign one or more registration statements and any amendments thereto to be filed by the Registrant with the Securities and Exchange Commission to register shares of the Registrant’s common shares of beneficial interest ($0.01 par value) under the Securities Act of 1933, not to exceed 1,650,000 additional shares of the Registrant’s common shares of beneficial interest ($0.01 par value), to be offered and sold under the Registrant’s 2015 Omnibus Incentive Plan, as amended.
IN WITNESS WHEREOF, the undersigned has executed this instrument this 12th day of July 2023.
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| /s/ David A. Helfand |
| David A. Helfand |
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints David A. Helfand and Orrin Shifrin and each of them (with full power to act without the others), the true and lawful attorneys-in-fact and agents for and on behalf of the undersigned, and in the undersigned’s name, place and stead, in the undersigned’s capacity as an officer of Equity Commonwealth (the “Registrant”) to sign one or more registration statements and any amendments thereto to be filed by the Registrant with the Securities and Exchange Commission to register shares of the Registrant’s common shares of beneficial interest ($0.01 par value) under the Securities Act of 1933, not to exceed 1,650,000 additional shares of the Registrant’s common shares of beneficial interest ($0.01 par value), to be offered and sold under the Registrant’s 2015 Omnibus Incentive Plan, as amended.
IN WITNESS WHEREOF, the undersigned has executed this instrument this 11th day of July 2023.
| | |
| /s/ William H. Griffiths |
| William H. Griffiths |
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints David Helfand, William H. Griffiths and Orrin Shifrin and each of them (with full power to act without the others), the true and lawful attorneys-in-fact and agents for and on behalf of the undersigned, and in the undersigned’s name, place and stead, in the undersigned’s capacity as an officer of Equity Commonwealth (the “Registrant”) to sign one or more registration statements and any amendments thereto to be filed by the Registrant with the Securities and Exchange Commission to register shares of the Registrant’s common shares of beneficial interest ($0.01 par value) under the Securities Act of 1933, not to exceed 1,650,000 additional shares of the Registrant’s common shares of beneficial interest ($0.01 par value), to be offered and sold under the Registrant’s 2015 Omnibus Incentive Plan, as amended.
IN WITNESS WHEREOF, the undersigned has executed this instrument this 11th day of July 2023.
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| /s/ Andrew M. Levy |
| Andrew M. Levy |
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints David Helfand, William H. Griffiths and Orrin Shifrin and each of them (with full power to act without the others), the true and lawful attorneys-in-fact and agents for and on behalf of the undersigned, and in the undersigned’s name, place and stead, in the undersigned’s capacity as Trustee of Equity Commonwealth (the “Registrant”) to sign one or more registration statements and any amendments thereto to be filed by the Registrant with the Securities and Exchange Commission to register under the Securities Act of 1933, not to exceed 1,650,000 additional shares of the Registrant’s common shares of beneficial interest ($0.01 par value), to be offered and sold under the Registrant’s 2015 Omnibus Incentive Plan, as amended.
IN WITNESS WHEREOF, the undersigned has executed this instrument this 13th day of June 2023.
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| /s/ Ellen-Blair Chube |
| Ellen-Blair Chube |
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| /s/ Martin L. Edelman |
| Martin L. Edelman |
|
| /s/ Peter Linneman |
| Peter Linneman |
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| /s/ Mary Jane Robertson |
| Mary Jane Robertson |
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| /s/ Gerald A. Spector |
| Gerald A. Spector |
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| /s/ James A. Star |
| James A. Star |
EQUITY COMMONWEALTH
RESOLUTIONS OF THE BOARD OF TRUSTEES
June 13, 2023
9.Form S-8 Registration Statement
WHEREAS, the [Board of Trustees (the “Board”) of Equity Commonwealth, a Maryland real estate investment trust (the “Company”)] previously approved an amendment of the Equity Commonwealth 2015 Omnibus Incentive Plan (as amended, the “2015 Incentive Plan”) to increase the number of shares authorized for issuance by 1,650,000 to 7,400,000 (the “Plan Amendment”) and submission of the Plan Amendment to the Company’s shareholders for approval;
WHEREAS, the Board also previously authorized, upon receipt of shareholder approval of the Plan Amendment, the [Company’s executive officers, or any person authorized by such executive officers (the “Authorized Officers”)], or any one or more of them, to execute and cause to be filed with the SEC a registration statement on Form S-8 for the purpose of registering under the Securities Act of 1933, as amended, the additional common share issuable under the 2015 Incentive Plan following the Plan Amendment (the “Form S-8 Registration Statement”); and
WHEREAS, to facilitate the filing of the Form S-8 Registration Statement, the Board desires to authorize the execution of a power of attorney by any officer, trustee or employee of the Company who may be required to execute the Form S-8 Registration Statement.
NOW, THEREFORE, BE IT RESOLVED, that each officer, trustee or employee of the Company who may be required to execute such Form S-8 Registration Statement or any amendments thereto (whether on behalf of the Company, or as an officer or trustee thereof, or otherwise), be and hereby is authorized to execute a power of attorney appointing one or more Authorized Officers, and each of them acting singly, his or her true and lawful attorney or attorneys to execute in his or her name, place and stead (in any such capacity) Form S-8 Registration Statements, and any and all amendments thereto and any and all exhibits and other documents necessary or incidental in connection therewith, and to file the same with the SEC, each of said attorneys to have power to act with or without the other and to have full power and authority to do and perform in the name and on behalf of each of said officers, trustees and employees, or any of them, as the case may be, every act whatsoever necessary or advisable to be done in connection therewith as fully and to all intents and purposes as any such officer, trustee or employee might or could do in person.
* * *
13.General Authorization and Ratification
RESOLVED, that the Authorized Officers, or any one or more of them, hereby are authorized and directed to take such action and to execute and deliver such documents and to perform such acts in the name and on behalf of the Company as they deem necessary or appropriate in effecting all or any of the foregoing resolutions (such determination to be conclusively, but not exclusively, evidenced by the taking of such actions or the execution, delivery and filing of such documents by any Authorized Officer without any further action or approval by the Board);
RESOLVED FURTHER, that the Authorized Officers, or any one or more of them, hereby are authorized to pay all such fees, costs, expenses and taxes incurred by or on behalf of the Company as the Authorized Officers, or any one or more of them, may determine to be necessary or advisable in connection with the actions contemplated by the foregoing resolutions (such determination to be conclusively, but not exclusively, evidenced by such payment without any further action or approval by the Board); and
RESOLVED FURTHER, that any and all actions heretofore or hereafter taken by the Authorized Officers, or any one or more of them, or by any of the other officers of the Company in furtherance of the foregoing resolutions hereby are ratified and confirmed as the act and deed of the Company.
* * * * *
Amendment No. 3
To The
Equity Commonwealth 2015 Omnibus Incentive Plan
Pursuant to Section 5.2 of the Equity Commonwealth 2015 Omnibus Incentive Plan, as amended from time to time (the “Plan”), the Board of Trustees of Equity Commonwealth (the “Board”), at a meeting of the Board held on March 14, 2023, has duly adopted a resolution approving this Amendment No. 3 to the Plan (this “Amendment”) to amend the Plan as set forth below, subject to approval of this Amendment by the Company’s stockholders. Unless otherwise defined herein, capitalized terms used in this Amendment shall have the meaning given to them in the Plan.
1.Section 4.1. The first sentence of Section 4.1 of the Plan is hereby amended to read in its entirety as follows:
Subject to such additional shares of Stock as shall be available for issuance under the Plan pursuant to Section 4.2, and subject to adjustment pursuant to Section 18, the maximum number of shares of Stock available for issuance under the Plan shall be seven million four hundred thousand (7,400,000) shares of Stock.
2.This Amendment shall be and is hereby incorporated into and forms a part of the Plan.
3.Except as modified by the Amendment, the terms of the Plan remain unmodified and in full force and effect.
IN WITNESS WHEREOF, this Amendment is made effective as of June 13, 2023.
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| EQUITY COMMONWEALTH |
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| By: | /s/ William H. Griffiths |
| | William H. Griffiths |
| | Executive Vice President, CFO and Treasurer |
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