As filed with the Securities and Exchange Commission on October 28, 2014
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
EQUITY COMMONWEALTH
(Exact name of registrant as specified in its charter)
|
Maryland
|
|
04-6558834
|
|
(State or other jurisdiction of incorporation or organization)
|
|
(IRS Employer Identification No.)
|
|
|
|
|
|
Two North Riverside Plaza, Suite 600
Chicago, IL
|
|
60606
|
|
(Address of principal executive offices)
|
|
(Zip code)
|
Equity Commonwealth 2012 Equity Compensation Plan
(Full title of the Plan)
David A. Helfand
President and Chief Executive Officer
Equity Commonwealth
Two North Riverside Plaza
Suite 600
Chicago, IL 60606
(Name and address of agent for service)
(312) 646-2800
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
|
Large accelerated filer
x
|
|
Accelerated filer
o
|
|
Non-accelerated filer
o
|
|
Smaller reporting company
o
|
|
|
|
|
|
(do not check if a smaller reporting
company)
|
|
|
CALCULATION OF REGISTRATION FEE
|
|
|
Title of securities to be registered
|
|
Amount to be
Registered (1)
|
|
Proposed
maximum
offering price
per share (2)
|
|
Proposed
maximum
aggregate
offering
price (2)
|
|
Amount of
registration
fee (2)
|
|
|
Common Shares of Beneficial Interest, par value $0.01 per share
|
|
2,829,533
|
|
$
|
26.00
|
|
$
|
73,567,858
|
|
$
|
8,548.59
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
Represents 2,829,533 of the common shares of beneficial interest, par value $0.01 per share (the “Common Shares”), of Equity Commonwealth (the “Company”), remaining available for issuance under the CommonWealth REIT 2012 Equity Compensation Plan, as amended and renamed the Equity Commonwealth 2012 Equity Compensation Plan (the “Plan”). Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers an additional indeterminate number of Common Shares to be offered or sold pursuant to the Plan and shares that may become issuable under the Plan to prevent dilution resulting from any stock dividend, stock split, recapitalization or similar transaction.
(2)
Pursuant to Rule 457(c) and (h) under the Securities Act, the registration fee has been calculated on the basis of $26.00 per Common Share, which is the average of the high and low sales prices of the registrant’s Common Shares on October 27, 2014, as reported by the New York Stock Exchange.
EXPLANATORY NOTE
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8 will be sent or given to the persons participating in the Plan, as specified by Rule 428(b)(1) under the Securities Act. In accordance with the instructions to Part I of Form S-8, such documents will not be filed with the Securities and Exchange Commission (“SEC”) either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference pursuant to Item 3 of Part II of this registration statement, taken together, constitute the prospectus as required by Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been previously filed with the SEC, are incorporated by reference in this registration statement:
a.
the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2013 filed with the SEC on February 28, 2014, as amended by Amendment No. 1 filed with the SEC on April 30, 2014;
b.
the Company’s Quarterly Reports on Form 10-Q for the quarterly period ended March 31, 2014, filed with the SEC on May 8, 2014, and for the quarterly period ended June 30, 2014, filed with the SEC on August 7, 2014;
c.
the Company’s Current Reports on Forms 8-K and 8-K/A filed with the SEC on January 9, 2014, January 31, 2014, February 20, 2014, March 10, 2014, March 24, 2014, March 26, 2014, March 31, 2014, April 14, 2014, May 5, 2014, May 12, 2014, May 15, 2014, May 27, 2014, June 3, 2014, June 10, 2014, June 12, 2014, June 17, 2014, June 18, 2014, July 9, 2014, July 15, 2014, July 23, 2014, August 1, 2014, September 8, 2014, September 30, 2014 and October 1, 2014; and
d.
The description of our Common Shares included in our registration statement on Form 8-A filed with the SEC on November 8, 1986 under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and including any additional amendment or report filed for the purpose of updating such description.
The Company also incorporates by reference into this registration statement additional documents that it may file with the SEC under Section 13(a), 13(c), 14 and 15(d) of the Exchange Act from the date of this registration statement until the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold, except that the Company is not incorporating any information furnished under either Item 2.02 or Item 7.01 of any current report on Form 8-K or any other document or information deemed to have been furnished and not filed with the SEC.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein will be deemed 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 superseded such statement. Any such statement so modified or superseded will 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.
1
Item 6. Indemnification of Directors and Officers.
The Maryland statute governing a real estate investment trust, or REIT, formed under the laws of Maryland, or the Maryland REIT law, permits a Maryland REIT to include in its declaration of trust a provision limiting the liability of its trustees and officers to the trust and its shareholders for money damages except for (a) liability resulting from actual receipt of an improper benefit or profit in money, property or services or (b) active and deliberate dishonesty established in a judgment or other final adjudication as being material to the cause of action. Our declaration of trust contains such a provision that allows us to eliminate the liability of our trustees and officers to the maximum extent permitted by Maryland law.
The Maryland REIT Law permits a Maryland REIT to indemnify and advance expenses to its trustees, officers, employees and agents to the same extent as permitted by the Maryland General Corporation Law for directors and officers of Maryland corporations. 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 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 (1) was committed in bad faith or (2) 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 a director or officer for an adverse judgment in a suit by or in the right of the corporation or if the director or officer was adjudged to be liable to the corporation nor may a director be indemnified in circumstances in which the director is found liable for an improper personal benefit, 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 officer 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.
Our declaration of trust and bylaws obligate us, to the fullest extent permitted by Maryland law in effect from time to time, to indemnify and to pay, reimburse or advance reasonable expenses to:
·
any present or former trustee 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 trustee or officer of our company and at our request, serves or has served as a trustee, officer or partner of another corporation, REIT, limited liability company, partnership, joint venture, trust, employee benefit plan or any 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.
Our declaration of trust and bylaws also permit us, with the approval of our board of trustees, to indemnify and advance expenses to any person who served a predecessor of ours in any of the capacities described above and to any employee or agent of our company or a predecessor of our company. Our bylaws specify that any indemnification or payment or reimbursement of the expenses as described above will be made in accordance with the procedures provided by the MGCL for directors of Maryland corporations.
2
Item 8. Exhibits.
|
Exhibit
No.
|
|
Description
|
|
4.1
|
|
Articles of Amendment and Restatement of Declaration of Trust of the Company, dated July 1, 1994, as amended to date (incorporated by reference to the Company’s Current Report on Form 8-K dated July 31, 2014)
|
|
|
|
|
|
4.2
|
|
Second Amended and Restated Bylaws of the Company, adopted July 31, 2014 (incorporated by reference to the Company’s Current Report on Form 8-K dated July 31, 2014)
|
|
|
|
|
|
4.3
|
|
Form of Common Share Certificate (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the period ended June 30, 2014, filed with the SEC on August 7, 2014)
|
|
|
|
|
|
5.1
|
|
Opinion of Hogan Lovells US LLP regarding the validity of the Common Shares registered hereby
|
|
|
|
|
|
10.1
|
|
CommonWealth REIT 2012 Equity Compensation Plan (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on May 11, 2012)
|
|
|
|
|
|
10.2
|
|
Amendment No. 1 to CommonWealth REIT 2012 Equity Compensation Plan, renamed as the Equity Commonwealth 2012 Equity Compensation Plan
|
|
|
|
|
|
23.1
|
|
Consent of Ernst & Young LLP
|
|
|
|
|
|
23.2
|
|
Consent of Hogan Lovells US LLP (included in Exhibit 5.1)
|
|
|
|
|
|
24.1
|
|
Power of Attorney (included on signature page hereto)
|
Item 9. Undertakings
.
(a)
The 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;
(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 SEC pursuant to 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;
(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) do not apply if 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 SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this 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.
(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 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 Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(h)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to existing provisions or arrangements whereby the registrant may indemnify a
3
director, officer or controlling person of the registrant against liabilities arising under the Securities Act, or otherwise, the registrant has been advised that, in the opinion of the SEC, 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 for 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
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 Chicago, State of Illinois on this 28th day of October, 2014.
|
|
EQUITY COMMONWEALTH
|
|
|
By:
|
/s/ David A. Helfand
|
|
|
|
David A. Helfand
|
|
|
|
President and Chief Executive Officer
|
Each person whose signature appears below hereby constitutes and appoints David A. Helfand and Orrin S. Shifrin, and each of them, as his or her true and lawful attorney-in-fact and agent, with 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 amendments to this registration statement, and to file the same, with all exhibits and other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents, and full power and authority to do and perform each and every act and thing requisite and necessary in connection with such matters, 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, his or her substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities indicated on this 28th day of October, 2014:
|
Signature
|
|
Title
|
|
|
|
|
|
/s/ David A. Helfand
|
|
President, Chief Executive Officer and Trustee
|
|
David A. Helfand
|
|
(Principal Executive Officer)
|
|
|
|
|
|
|
|
|
|
/s/ Adam S. Markman
|
|
Executive Vice President, Chief Financial Officer and Treasurer
|
|
Adam S. Markman
|
|
(Principal Financial Officer)
|
|
|
|
|
|
|
|
|
|
/s/ Jeffrey D. Brown
|
|
Chief Accounting Officer
|
|
Jeffrey D. Brown
|
|
(Principal Accounting Officer)
|
|
|
|
|
|
|
|
|
|
/s/ Sam Zell
|
|
Chairman of the Board of Trustees
|
|
Sam Zell
|
|
|
|
|
|
|
|
|
|
|
|
/s/ James S. Corl
|
|
Trustee
|
|
James S. Corl
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Martin L. Edelman
|
|
Trustee
|
|
Martin L. Edelman
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Edward A. Glickman
|
|
Trustee
|
|
Edward A. Glickman
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Peter Linneman
|
|
Trustee
|
|
Peter Linneman
|
|
|
5
|
/s/ James L. Lozier, Jr.
|
|
Trustee
|
|
James L. Lozier, Jr.
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Mary Jane Robertson
|
|
Trustee
|
|
Mary Jane Robertson
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Kenneth Shea
|
|
Trustee
|
|
Kenneth Shea
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Gerald A. Spector
|
|
Trustee
|
|
Gerald A. Spector
|
|
|
|
|
|
|
|
|
|
|
|
/s/ James A. Star
|
|
Trustee
|
|
James A. Star
|
|
|
6
EXHIBIT INDEX
|
Exhibit
No.
|
|
Description
|
|
4.1
|
|
Articles of Amendment and Restatement of Declaration of Trust of the Company, dated July 1, 1994, as amended to date (incorporated by reference to the Company’s Current Report on Form 8-K dated July 31, 2014)
|
|
|
|
|
|
4.2
|
|
Second Amended and Restated Bylaws of the Company, adopted July 31, 2014 (incorporated by reference to the Company’s Current Report on Form 8-K dated July 31, 2014)
|
|
|
|
|
|
4.3
|
|
Form of Common Share Certificate (incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the period ended June 30, 2014, filed with the SEC on August 7, 2014)
|
|
|
|
|
|
5.1
|
|
Opinion of Hogan Lovells US LLP regarding the validity of the Common Shares registered hereby
|
|
|
|
|
|
10.1
|
|
CommonWealth REIT 2012 Equity Compensation Plan (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on May 11, 2012)
|
|
|
|
|
|
10.2
|
|
Amendment No. 1 to CommonWealth REIT 2012 Equity Compensation Plan, renamed as the Equity Commonwealth 2012 Equity Compensation Plan
|
|
|
|
|
|
23.1
|
|
Consent of Ernst & Young LLP
|
|
|
|
|
|
23.2
|
|
Consent of Hogan Lovells US LLP (included in Exhibit 5.1)
|
|
|
|
|
|
24.1
|
|
Power of Attorney (included on signature page hereto)
|
7
Exhibit 5.1
|
|
Hogan Lovells US LLP
Columbia Square
555 Thirteenth Street, NW
Washington, DC 20004
T +1 202 637 5600
F +1 202 637 5910
www.hoganlovells.com
|
October 28, 2014
Board of Trustees
Equity Commonwealth
Two North Riverside Plaza
Suite 600
Chicago, IL 60606
Ladies and Gentlemen:
We are acting as counsel to Equity Commonwealth, a Maryland real estate investment trust (the “
Company
”), in connection with its registration statement on Form S-8 (the “
Registration Statement
”), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “
Securities Act
”), relating to the proposed offering of up to 2,829,533 newly issued common shares of beneficial interest, par value $0.01 per share, of the Company (the “
Shares
”), all of which Shares are issuable pursuant to the Company’s 2012 Equity Compensation Plan (the “
Plan
”). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies of such agreements, instruments and documents as we have deemed an appropriate basis on which to render the opinions hereinafter expressed. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies). We also have assumed that the Shares will not be issued in violation of the ownership limit contained in the Company’s Fourth Amendment and Restatement of Declaration of Trust. As to all matters of fact, we have relied on the representations and statements of fact made in the documents so reviewed, and we have not independently established the facts so relied on. This opinion letter is given, and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on the applicable provisions of Title 8 of the Corporations and Associations Article of the Annotated Code of Maryland, as amended, currently in effect. We express no opinion herein as to any other laws, statutes, ordinances, rules, or regulations.
Based upon, subject to and limited by the foregoing, we are of the opinion that following (i) effectiveness of the Registration Statement, (ii) issuance of the Shares in the manner and on the terms described in the Plan, and (iii) receipt by the Company of the consideration for the Shares
Hogan Lovells US LLP is a limited liability partnership registered in the District of Columbia. “Hogan Lovells” is an international legal practice that includes Hogan Lovells US LLP and Hogan Lovells International LLP, with offices in: Alicante Amsterdam Baltimore Beijing Berlin Brussels Caracas Colorado Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Houston London Los Angeles Madrid Miami Milan Moscow Munich New York Northern Virginia Paris Philadelphia Prague Rome San Francisco Shanghai Silicon Valley Singapore Tokyo Ulaanbaatar Warsaw Washington DC Associated offices: Budapest Jakarta Jeddah Riyadh Zagreb. For more information see www.hoganlovells.com
specified in the Plan and the resolutions of the Board of Trustees or a duly authorized committee, the Shares will be validly issued, fully paid, and nonassessable.
This opinion letter has been prepared for use in connection with the Registration Statement. We assume no obligation to advise you of any changes in the foregoing subsequent to the effective date of the Registration Statement.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are an “expert” within the meaning of the Securities Act.
Very truly yours,
/s/ Hogan Lovells US LLP
HOGAN LOVELLS US LLP
2
Exhibit 10.2
Amendment No. 1
To The
CommonWealth REIT 2012 Equity Compensation Plan
Pursuant to Article VIII of the CommonWealth REIT 2012 Equity Compensation Plan (the “Plan”), the Board of Directors of Equity Commonwealth (the “Board”), at a meeting of the Board held on October 28, 2014, has duly adopted a resolution approving this Amendment No. 1 to the Plan (this “Amendment”) to amend the Plan as set forth below. Unless otherwise defined herein, capitalized terms used in this Amendment shall have the meaning given to them in the Plan.
1.
All references in the Plan to “CommonWealth REIT 2012 Equity Compensation Plan” are hereby amended to read “Equity Commonwealth 2012 Equity Compensation Plan.”
2.
Article I
. Article I of the Plan is hereby amended to read in its entirety as follows:
“I.
PURPOSE
The Plan is intended to advance the interests of the Company and its subsidiaries by providing a means of rewarding selected employees, officers and Trustees of the Company, employees of the Manager, and others rendering valuable services to the Company, its subsidiaries or to the Manager, through grants of the Company’s Shares and RSUs.”
3.
Article II
. Article II, subsections (b), (f) and (j) of the Plan are hereby amended to read in their entirety as follows:
“(b) “Company” means Equity Commonwealth, a Maryland real estate investment trust.”
“(f) “Participant” means a person to whom Shares or RSUs have been granted, or any other person who becomes owner of the Shares or RSUs by reason of such person’s death or incapacity.”
“(j) “Share Agreement” means an agreement between the Company and a Participant regarding Shares issued or RSUs granted to the Participant pursuant to the Plan.”
4.
Article II
. A new subsection (l) is hereby added to Article II of the Plan and shall read as follows:
“(l) “RSU” means a restricted share unit of the Company, which represents the right to receive a Share (or a cash payment equal to the fair market value of a Share, as determined by the Board) at a future date.
1
5.
Article III
. Article III of the Plan is hereby amended to read in its entirety as follows:
“Subject to the provisions of Article VII, the maximum number of Shares which may be issued under the Plan following the Effective Date, including Shares issued in settlement of RSUs, is 3,000,000, subject to adjustment as set forth herein. If any Shares subject to an award under the Plan are forfeited, cancelled or surrendered, the Shares with respect to such award shall, to the extent of any such forfeiture, cancellation or surrender, again be available for awards under the Plan.
Subject to the terms of any Share Agreement, a holder of Shares granted under the Plan, whether or not vested, shall have all of the rights of a shareholder of the Company, including the right to vote the Shares and the right to receive any distributions, unless the Board shall otherwise determine. Certificates representing Shares may be imprinted with a legend to the effect that the Shares represented may not be sold, exchanged, transferred, pledged, hypothecated or otherwise disposed of except in accordance with the terms of the Securities Act and the applicable Share Agreement, if any. In addition, the Company may hold the certificates representing Shares pending lapse of any applicable vesting, forfeiture, transfer or similar restrictions.”
6.
Article IV
. Article IV of the Plan is hereby amended to read in its entirety as follows:
“IV.
METHOD OF GRANTING SHARES AND RSUS
Grants of Shares or RSUs to any Key Person shall be made by action of the Board, which shall have the sole discretion to select persons to whom Shares or RSUs are to be granted, the amount and timing of each such grant, the extent, if any, to which vesting restrictions or other conditions (which may include forfeiture restrictions) shall apply to the award and all other terms and conditions of any award (which terms and conditions need not be the same as between recipients or awards). If a person to whom such a grant of Shares or RSUs has been made fails to execute and deliver to the Company a Share Agreement within ten (10) days after it is submitted to him or her, the grant of Shares or RSUs related to such Share Agreement may be cancelled by the Company, acting by the Board, at its option and in its discretion without further notice to the Participant. No Trustee or officer of the Company may be granted more than 1,000,000 Shares, including Shares underlying grants of RSUs, under the Plan after the Effective Date. Nothing in this Article IV shall prevent the Board from delegating its authority to make grants to a committee pursuant to Article V.
Unless otherwise provided in a Share Agreement, holders of RSUs shall have no rights as shareholders of the Company (for example, the right to direct the voting of the Shares subject to such RSUs). Notwithstanding the foregoing, the Board may provide in a Share Agreement evidencing a grant of RSUs that the holder of such
2
RSUs shall be entitled to receive a payment for each such RSU which is equal to the per-share amount of any dividend paid in respect of the outstanding Shares, which may be paid currently or upon the vesting of such RSUs. Dividends paid on RSUs which vest or are earned based upon the achievement of performance goals shall not vest unless such performance goals for such RSUs are achieved, and if such performance goals are not achieved, the holder of such RSUs shall forfeit the right to receive such dividend payments. A holder of RSUs shall have no rights other than those of a general unsecured creditor of the Company.”
7.
Article V
. Article V of the Plan is hereby amended to read in its entirety as follows:
“V.
ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Board or, in the discretion of the Board, a committee designated by the Board and composed of at least two (2) members of the Board. All references in the Plan to the Board shall be understood to refer to such committee or the Board, whichever shall be administering the Plan from time to time. All questions of interpretation and application of the Plan and of grants of Shares or RSUs shall be determined by the Board in its sole discretion and the Board shall have the authority to do all things necessary to carry out the purposes of the Plan, and its determinations shall be final and binding upon all persons, including the Company and all Participants. Without limiting the generality of the foregoing, the Board is authorized to (i) adopt and approve from time to time the forms and, subject to the terms of the Plan, the terms and conditions of any Share Agreement; (ii) make adjustments to awards in response to changes in applicable laws, regulations, or accounting principles; and (iii) prescribe, amend and rescind rules and regulations relating to the Plan. If it determines to do so, the Board may grant Shares or RSUs under this Plan which are not subject to vesting, forfeiture and transfer restrictions.”
8.
Article VI
. Article VI of the Plan is hereby amended to read in its entirety as follows:
“VI.
ELIGIBLE PERSONS
The persons eligible to receive grants of Shares or RSUs shall be those persons selected by the Board in its discretion from among Key Persons who contribute to the business of the Company and its subsidiaries.”
9.
Article VIII
. The second sentence of Article VIII of the Plan is hereby amended to read in its entirety as follows:
“Shares and RSUs may be granted under the Plan from time to time until the close of business on the tenth anniversary of the Effective Date.”
3
10.
Article IX
. Article IX, subsections A, B and C of the Plan are hereby amended to read in its entirety as follows:
“A. Nonassignability of Shares and RSUs. Shares and RSUs subject to a Share Agreement shall not be assignable or transferable by a Participant except in accordance with the terms of the applicable Share Agreement or as may be permitted by the Board.”
“B. No Guarantee of Employment. Neither the award of Shares or RSUs nor a Share Agreement shall give any person the right to continue in the employment or service of, or to continue to act as an officer or, Trustee of, or to serve in any other capacity with, the Company, any subsidiary or the Manager.”
“C. Tax Withholding; Section 409A. To the extent required by law, the Company shall withhold or cause to be withheld income and other taxes incurred by a Participant by reason of a grant of Shares or RSUs, and as a condition to the receipt of any grant such a Participant shall agree that if the amount payable to him by the Company in the ordinary course is insufficient to pay such taxes, he or she shall upon request of the Company pay to the Company an amount sufficient to satisfy its tax withholding obligations. It is intended that awards granted under the Plan be exempt from the application Section 409A of the Internal Revenue Code of 1986 and the Plan and such awards shall be construed in accordance with that intention.”
11.
This Amendment shall be and is hereby incorporated into and forms a part of the Plan.
12.
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 this 28th day of October, 2014.
|
|
EQUITY COMMONWEALTH
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Orrin S. Shifrin
|
|
|
|
Name: Orrin S. Shifrin
|
|
|
|
Title: Executive Vice President, General Counsel and Secretary
|
4