UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of Earliest Event Reported):

May 9, 2019

 

QTS Realty Trust, Inc.

(Exact name of registrant as specified in its charter)

 

Maryland

 

001-36109

 

46-2809094

(State or other jurisdiction
of incorporation)

 

(Commission
File No.)

 

(I.R.S. Employer
Identification No.)

 

12851 Foster Street
Overland Park, KS

 

66213

(Address of principal executive offices)

 

(Zip Code)

 

(913) 814-9988

Registrant’s telephone number, including area code:

 

Not Applicable

(Former name or former address, if changed since last report.)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

o    Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o    Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o    Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o    Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company  o

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  o

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class:

 

Trading Symbol

 

Name of each exchange on which registered:

Class A common stock, $.01 par value

 

QTS

 

New York Stock Exchange

 

 

 

 

 

Preferred Stock, 7.125% Series A Cumulative Redeemable Perpetual, $0.01 par value

 

QTS PR A

 

New York Stock Exchange

 

 

 

 

 

Preferred Stock, 6.50% Series B Cumulative Convertible Perpetual, $0.01 par value

 

QTS PR B

 

New York Stock Exchange

 

 

 


 

Item 5.02                                            Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

On May 9, 2019, QTS Realty Trust, Inc. (the “Company”) held its 2019 Annual Meeting of Stockholders (the “Annual Meeting”) at which the Company’s stockholders approved an amendment (the “Plan Amendment”) to the QTS Realty Trust, Inc. 2013 Equity Incentive Plan (the “2013 Plan”) to (A) increase the total number of shares of Class A common stock reserved for issuance under the 2013 Plan by 1,110,000 shares, (B) provide that the maximum number of shares that may be issued under the 2013 Plan to any person, other than a non-employee director, pursuant to a performance-based award is 750,000 shares in any single calendar year, (C) provide that the maximum number of shares that may be issued under the 2013 Plan to any person, other than a non-employee director, in the year they are first employed by the Company or any company affiliated with the Company, pursuant to an option or stock appreciation right (“SAR”), an award other than an option or SAR, or a performance award, shall, in each case, be three times the number of shares otherwise specified in the 2013 Plan for such award type, and (D) provide that the amount of total compensation, in the form of equity awards, valued at their grant date fair value, and cash, that can be paid to any non-employee director in a single calendar year shall not exceed $750,000, or, in the year they are first serving as a non-employee director, $1,000,000.

 

A copy of the Plan Amendment is attached to this Current Report on Form 8-K as Exhibit 10.1 and incorporated herein by reference. The summary set forth above is qualified in its entirety by reference to Exhibit 10.1.

 

Item 5.03                                            Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

 

On May 9, 2019, at the Company’s Annual Meeting, the stockholders approved an amendment (the “Articles of Amendment”) to the Company’s Articles of Amendment and Restatement (the “Charter”) to permit the Company to opt out of Section 3-804(c) of the Maryland General Corporation Law (the “MGCL”), which is a provision of the Maryland Unsolicited Takeovers Act (“MUTA”) giving the board of directors exclusive control over filling vacancies on the board.  This approval permits the Company to complete its previously announced full opt-out of MUTA.  Also on May 9, 2019, following approval at the Annual Meeting, the Company filed the Articles of Amendment with the State Department of Assessments and Taxation of Maryland. With the stockholders’ approval of the opt-out of Section 3-804(c) and the filing of the Articles of Amendment, the Company has now fully opted out of MUTA and may not opt into any of the provision of MUTA without approval by the affirmative vote of stockholders holding a majority of the votes cast on the matter

 

The full text of the Articles of Amendment is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference.

 

Item 5.07                                            Submission of Matters to a Vote of Security Holders.

 

At the Annual Meeting, (i) ten directors were elected, (ii) the compensation paid to the Company’s named executive officers was approved in an advisory vote, (iii) the appointment of Ernst & Young LLP (“Ernst & Young”) as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2019 was ratified, (iv) the Articles of Amendment to permit the Company to opt out of Section 3-804(c) of the MCGL were approved, and (v) the Plan Amendment was approved. The proposals are described in detail in the Company’s Definitive Proxy Statement on Schedule 14A for the Annual Meeting, which was filed with the Securities and Exchange Commission on March 20, 2019.  The final voting results for each proposal are set forth below.

 

2


 

Election of Directors

 

At the Annual Meeting, stockholders elected ten directors of the Company to serve until the 2020 Annual Meeting of Stockholders and until their successors have been duly elected and qualified. The table below sets forth the voting results for each director nominee:

 

Nominee

 

Votes For

 

Votes Withheld

 

Broker Non-Votes

 

Chad L. Williams

 

51,614,791

 

2,591,317

 

2,962,093

 

John W. Barter

 

53,851,129

 

354,979

 

2,962,093

 

William O. Grabe

 

52,969,055

 

1,237,053

 

2,962,093

 

Catherine R. Kinney

 

52,607,016

 

1,599,092

 

2,962,093

 

Peter A. Marino

 

52,766,433

 

1,439,665

 

2,962,093

 

Scott D. Miller

 

53,315,072

 

891,036

 

2,962,093

 

Mazen Rawashdeh

 

54,054,701

 

151,407

 

2,962,093

 

Wayne M. Rehberger

 

53,983,414

 

222,694

 

2,962,093

 

Philip P. Trahanas

 

53,422,753

 

783,355

 

2,962,093

 

Stephen E. Westhead

 

52,433,905

 

1,772,203

 

2,962,093

 

 

Advisory Vote to Approve Named Executive Officer Compensation

 

At the Annual Meeting, the Company’s stockholders voted on a non-binding resolution to approve the compensation of the Company’s named executive officers. The table below sets forth the voting results for this proposal:

 

Votes For

 

Votes Against

 

Abstentions

 

Broker Non-Votes

 

41,763,034

 

12,414,706

 

28,368

 

2,962,093

 

 

Ratification of Ernst & Young as the Company’s Independent Registered Public Accounting Firm

 

At the Annual Meeting, the Company’s stockholders ratified the appointment of Ernst & Young as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2019. The table below sets forth the voting results for this proposal:

 

Votes For

 

Votes Against

 

Abstentions

 

56,823,963

 

282,615

 

61,623

 

 

Amendment of the Company’s Charter to Opt Out of Section 3-804(c) of the MGCL

 

At the Annual Meeting, the Company’s stockholders approved the Articles of Amendment to permit the Company to opt out of Section 3-804(c) of the MGCL. The table below sets forth the voting results for this proposal:

 

Votes For

 

Votes Against

 

Abstentions

 

Broker Non-Votes

 

54,090,549

 

88,104

 

27,455

 

2,962,093

 

 

Amendment of the 2013 Plan

 

At the Annual Meeting, the Company’s stockholders approved the Plan Amendment. The table below sets forth the voting results for this proposal:

 

Votes For

 

Votes Against

 

Abstentions

 

Broker Non-Votes

 

51,217,288

 

2,955,313

 

33,507

 

2,962,093

 

 

Item 9.01                                            Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit
Number

 

Exhibit Description

 

 

 

3.1

 

Articles of Amendment to the Articles of Amendment and Restatement of QTS Realty Trust, Inc.

 

 

 

10.1

 

Amendment No. 3 to QTS Realty Trust, Inc. 2013 Equity Incentive Plan

 

3


 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

QTS Realty Trust, Inc.

 

 

 

 

 

By:

/s/ Shirley E. Goza

 

 

Shirley E. Goza

 

 

Secretary, Vice President and General Counsel

 

May 9, 2019

 

4


Exhibit 3.1

 

QTS REALTY TRUST, INC.

 

ARTICLES OF AMENDMENT

 

QTS REALTY TRUST, INC., a Maryland corporation (the “ Company ”), hereby certifies to the State Department of Assessments and Taxation of Maryland that:

 

FIRST :  Section 4.2 of Article IV of the Articles of Amendment and Restatement, as amended, of the Company filed on October 7, 2013 (the “ Charter ”) hereby is amended by deleting such Section 4.2 and replacing it in its entirety with the following:

 

*******

 

“Section 4.2 Number of Directors .  The number of directors constituting the entire Board of Directors is currently set at ten (10), but may hereafter be increased or decreased by the Board of Directors in accordance with the provisions set forth in the Bylaws, but shall never be fewer than the minimum number required by the Maryland General Corporation Law (the “ MGCL ”) nor more than fifteen (15).

 

It shall not be necessary to list in this Charter the names of any directors hereinafter elected.

 

Except as may be provided by the Board of Directors in setting the terms of any class or series of stock, any and all vacancies on the Board of Directors may be filled by the affirmative vote of a majority of the remaining directors in office, even if the remaining directors do not constitute a quorum, and any director elected to fill a vacancy shall serve for the remainder of the full term of the directorship in which such vacancy occurred and until a successor is elected and qualifies.”

 

*******

 

SECOND :  The amendment to the Charter as set forth above has been duly approved and advised by the Board of Directors of the Company and approved by the stockholders of the Company as required by law.

 

THIRD :  There has been no increase in the authorized stock of the Company effected by the amendment to the Charter as set forth above.

 

FOURTH :  The preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications and terms and conditions of redemption were not changed by the foregoing amendment.

 

FIFTH :  The undersigned officer acknowledges these Articles of Amendment to be the corporate act of the Company and as to all matters of facts required to be verified under oath, the undersigned officer acknowledges that to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties of perjury.

 

[Remainder of page intentionally left blank]

 


 

IN WITNESS WHEREOF , QTS Realty Trust, Inc. has caused these Articles of Amendment to be executed under seal in its name and on its behalf by the undersigned officer, and attested to by its Secretary, on this 9th day of May, 2019.

 

 

 

 

QTS REALTY TRUST, INC.

 

 

 

 

 

 

 

 

 

 

By:

/s/ Chad L. Williams

 

 

 

Chad L. Williams

 

 

 

Chief Executive Officer

 

 

 

 

 

 

 

 

Attest:

/s/ Shirley E. Goza

 

 

 

Shirley E. Goza

 

 

 

General Counsel and Secretary

 

 

 

Return Address:

 

QTS Realty Trust, Inc.

12851 Foster Street

Overland Park, Kansas 66213

 


Exhibit 10.1

 

AMENDMENT #3 TO
QTS REALTY TRUST, INC.

2013 EQUITY INCENTIVE PLAN

 

1.               Section 4.1 of the QTS Realty Trust, Inc. 2013 Equity Incentive Plan (the “Plan”) is hereby amended to delete Section 4.1 in its entirety and replace it with the following:

 

“4.1                         Number of Shares Available for Awards.

 

Subject to adjustment as provided in Section 18 , effective May 9, 2019, the number of Shares available for issuance under the Plan shall be increased by One Million, One Hundred Ten Thousand (1,110,000) Shares to a total of  Five Million, Eight Hundred Sixty Thousand (5,860,000). Subject to adjustment as provided in Section 18 , the number of Shares available for issuance as Incentive Share Options shall be Five Million, Eight Hundred Sixty Thousand (5,860,000). Shares issued or to be issued under the Plan shall be authorized but unissued shares or treasury Shares or any combination of the foregoing, as may be determined from time to time by the Board or by the Committee.”

 

2.               Section 6.2 of the Plan is hereby amended to delete Section 6.2 in its entirety and replace it with the following:

 

6.2                          Limitation on Shares Subject to Awards and Cash Awards.

 

During any time when the Company has a class of equity security registered under Section 12 of the Exchange Act and the transition period under Treasury Regulation Section 1.162-27(f)(2) has lapsed or does not apply:

 

(i)             the maximum number of Shares subject to Options or SARs that can be granted under the Plan to any person eligible for an Award under Section 6 , other than an Outside Director, is four hundred fifty thousand (450,000) Shares in a calendar year;

 

(ii)            the maximum number of Shares that can be granted under the Plan pursuant to an Award subject to time-based vesting, other than pursuant to an Option or SARs, to any person eligible for an Award under Section 6 , other than an Outside Director, is two hundred twenty-five thousand (225,000) Shares in a calendar year;

 

(iii)           the maximum number of Shares that can be granted under the Plan pursuant to any Performance Award to any to any person eligible for an Award under Section 6 , other than an Outside Director, is seven hundred fifty thousand (750,000) Shares in a calendar year;

 

(iv)           notwithstanding the foregoing, the maximum number of Shares subject to Awards that can be granted under the Plan to any person eligible for an Award under Section 6 , other than an Outside Director, in the calendar year that the person is first employed by the Company or its

 


 

Affiliates shall be three times the number set forth in each of paragraphs (i), (ii) and (iii) above;

 

(v)            the total value of the Awards granted during a single calendar year to any Outside Director (calculating the value of any such Awards based on the grant date fair value of such Awards for financial reporting purposes), taken together with any cash retainers paid to such Outside Director during the calendar year, shall not exceed seven hundred fifty thousand Dollars ($750,000); provided, that in any calendar year that an Outside Director is first providing Service as an Outside Director, the foregoing limit shall be one million Dollars ($1,000,000); and

 

(vi)           the maximum amount that may be paid as an Annual Incentive Award in a calendar year to any person eligible for an Award, other than an Outside Director, shall be five million Dollars ($5,000,000) and the maximum amount that may be paid as a cash-settled Performance Award in respect of a performance period by any person eligible for an Award, other than an Outside Director, shall be five million Dollars ($5,000,000).

 

The preceding limitations in this Section 6.2 are subject to adjustment as provided in Section 18 .”

 

3.               This Amendment shall become effective upon receipt of the necessary approval of the stockholders of QTS Realty Trust, Inc. (the “Company”) at the Company’s 2019 Annual Meeting of Stockholders.

 

4.               Except as set forth above, the terms of the Plan shall be unchanged.

 

 

 

QTS Realty Trust, Inc.

 

 

 

 

 

 

By:

/s/ Shirley E. Goza

 

Name:

Shirley E. Goza

 

Title:

Vice President, Secretary and General Counsel