As filed with the Securities and Exchange Commission on October 15, 2019

Registration No. 333-            

 

 

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Cushman & Wakefield plc

(Exact Name of Registrant as Specified in Its Charter)

 

 

 

England and Wales   98-1193584
(State or Other Jurisdiction of
Incorporation or Organization)
 

(I.R.S. Employer

Identification Number)

125 Old Broad Street

London, United Kingdom, EC2N 1AR

Telephone: +44 20 3296 3000

(Address of Principal Executive Offices) (Zip Code)

CUSHMAN & WAKEFIELD PLC EXECUTIVE DEFERRED COMPENSATION PLAN

(Full Title of the Plan)

 

 

Brett Soloway

Cushman & Wakefield

225 West Wacker Drive

Chicago, Illinois 60606

Telephone: (312) 470-1800

(Name and address and telephone number, including area code, of agent for service)

 

 

Copies to:

Robert M. Hayward

Ana Sempertegui

Kirkland & Ellis LLP

300 North LaSalle

Chicago, Illinois

(312) 862-2000

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer      Accelerated filer  
Non-accelerated filer      Smaller reporting company  
     Emerging Growth Company  

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 7(a)(2)(B) of the Securities Act.  ☐

 

 

CALCULATION OF REGISTRATION FEE

 

 

 

Title of Securities
to be Registered
 

Amount

to Be

Registered

 

Proposed

Maximum

Offering Price

Per Share

 

Proposed

Maximum
Aggregate

Offering Price

  Amount of
Registration Fee

Ordinary shares, $0.10 nominal value(1)(2)

  400,000 shares   $17.07   $6,828,000(4)   $886.27

Deferred Compensation Obligations(3)

  $7,000,000   100%   $7,000,000(5)   $908.60

Total

              $1,794.87

 

 

(1)

Represents ordinary shares, nominal value $0.10 per share (the “Ordinary Shares”) of Cushman & Wakefield plc (the “Registrant”) issuable in connection with the future settlement of deferred compensation obligations in accordance with the terms of the Cushman & Wakefield plc Executive Deferred Compensation Plan (the “Plan”).

(2)

Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional Ordinary Shares that become issuable under the Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction affected without the receipt of consideration that increases the number of the Registrant’s outstanding Ordinary Shares.

(3)

The deferred compensation obligations are unsecured obligations of the Registrant to pay deferred compensation in the future in accordance with the terms of the Plan.

(4)

Estimated solely for the purposes of calculating the registration fee pursuant to Rule 457(c) under the Securities Act, based on the average of the high and low prices of the Ordinary Shares of the Registrant as reported on the New York Stock Exchange on October 9, 2019, which was $17.07 per share.

(5)

Estimated solely for the purposes of calculating the registration fee pursuant to Rule 457(h) under the Securities Act, based upon an estimate of the amount of compensation participants may defer under the Plan.

 

 

 


PART I

INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS

The information specified in Items 1 and 2 of Part I of the Form S-8 is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the introductory note to Part I of the Form S-8. The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participants in the Cushman & Wakefield plc Executive Deferred Compensation Plan (the “Plan”) as required by Rule 428 under the Securities Act. Such documents are not being filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of 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 previously have been filed by Cushman & Wakefield plc (the “Registrant”) with the Commission, are incorporated herein by reference and made a part hereof:

 

  1.

The description of the Ordinary Shares contained in the Registrant’s Registration Statement on Form 8-A (File No. 001-38611), filed with the Commission on July 30, 2018;

 

  2.

The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2018, filed with the Commission on February  28, 2019, as amended by Amendment No. 1 to Form 10-K, filed with the Commission on April 30, 2019;

 

  3.

The Registrant’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2019 and June 30, 2019, filed with the Commission on May 8, 2019 and August 2, 2019, respectively; and

 

  4.

Each of the Registrant’s Current Reports on Form 8-K filed with the Commission since December 31, 2018, other than documents, or portions thereof, not deemed to be filed; and

All other reports and other documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) (other than Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 of Form 8-K, including any exhibits included with such information that are related to such items) after the date of this Registration Statement, but prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this Registration Statement from the date of the filing of such reports and documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference into this Registration Statement.


For purposes of this Registration Statement, any document or any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded to the extent that a subsequently filed document or a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated herein by reference modifies or supersedes such document or such statement in such document. Any 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.

The Plan is an unfunded plan and is intended to be a “top hat” plan for the purpose of providing deferred compensation to a select group of management or highly compensated employees within the meaning of the Employee Retirement Income Security Act of 1974. Under the Plan, select, highly-compensated senior executives of the Registrant or its designated subsidiaries have the opportunity to defer payment of a portion of their salary, bonus, commissions, and/or equity-based compensation. The amount to be deferred by each participant in the Plan is determined in accordance with the Plan based on elections by the participant. Amounts deferred by a participant under the Plan are credited to a bookkeeping account denominated in Ordinary Shares for the participant. Under the Plan, the obligations of the Registrant to pay any deferred amounts to participants constitute unsecured and unsubordinated indebtedness of the Registrant that ranks pari passu with other unsecured, unsubordinated indebtedness of the Registrant from time to time outstanding.

Amounts deferred under the Plan are payable on the earlier of (i) a participant’s separation from service from the Registrant or (ii) the specified date selected by the participant in their deferral election, which shall not be later than the 20th year following the year to which such election relates. The notional Ordinary Shares in a participant’s bookkeeping account will be settled in Ordinary Shares either in a lump sum or in equal annual installments over a five or 10 year period. If a change in control (as defined in the Plan) occurs, all amounts deferred by a participant under the Plan will be distributed in a lump sum no later than five days following the change in control unless such distribution would violate Section 409A of the Internal Revenue Code of 1986, as amended. All distributions with respect to deferred restricted stock units will be distributed pursuant to, and count against the number of shares reserved for issuance under the Cushman & Wakefield plc 2018 Omnibus Management Share and Cash Incentive Plan or other plan governing such restricted stock units. Distributions with respect to accumulated dividends will be settled in cash unless the Compensation Committee of the Board of Directors of the Registrant determines otherwise.

Amounts deferred under the Plan are not subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or charge and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, or charge the same will be void. The Registrant is entitled to recoup compensation of whatever kind paid under the Plan to the extent permitted or required by applicable law, the policy of the Registrant and/or requirements of an exchange on which the Ordinary Shares are listed for trading.

The Plan administrator may amend, modify or terminate the Plan at any time, except that no amendment, modification or termination shall reduce the account balance of a participant or accelerate the timing of payments due under the Plan. The Plan will remain in effect until it is terminated. Further amounts of deferred compensation obligations and Ordinary Shares may be registered and issued as new or existing participants of the Plan elect to defer portions of their compensation in subsequent years.


Item 5. Interests of Named Experts and Counsel.

None.

Item 6. Indemnification of Directors and Officers.

The Registrant’s articles of association provide that, subject to the U.K. Companies Act 2006, the Registrant shall indemnify, out of its assets, any director of the Registrant or any associated company against all losses, liabilities and expenditures which he or she may sustain or incur in the execution of the duties of his or her office or otherwise in relation thereto.

The relevant provisions under the U.K. Companies Act 2006 are Sections 205, 206, 232, 233, 234, 235, 236, 237, 238 and 1157.

Section 205 provides that a company can provide a director with the funds to meet expenditures incurred or to be incurred in defending any criminal or civil proceedings or in connection with any application under sections 661(3) and 661(4) (acquisition of shares by innocent nominee) or section 1157 (described below). Such financial assistance must be repaid if the director is convicted, judgment is found against such director or the court refuses to grant the relief on the application.

Section 206 provides that a company can provide a director with the funds to meet expenditures incurred or to be incurred by him or her in defending in an investigation by a regulatory authority, or against action proposed to be taken by a regulatory authority, in connection with any alleged negligence, default, breach of duty or breach of trust by him or her in relation to the company or an associated company.

Section 232 provides that any provision to exempt to any extent a director from liability from negligence, default, breach of duty or trust by him or her in relation to the company is void. Any provision by which a company directly or indirectly provides (to any extent) an indemnity for a director of the company or an associated company against any such liability is also void unless it is a qualifying third party indemnity provision.

Section 233 permits liability insurance, commonly known as directors’ and officers’ liability insurance, purchased and maintained by a company against liability for negligence, default, breach of duty or breach of trust in relation to the company.

Pursuant to Section 234, an indemnity is a qualifying third party indemnity as long as it does not provide: (i) any indemnity against any liability incurred by the director to the company or to any associated company; (ii) any indemnity against any liability incurred by the director to pay a fine imposed in criminal proceedings or a sum payable to a regulatory authority by way of a penalty in respect of non-compliance with any requirement of a regulatory nature; and (iii) any indemnity against any liability incurred by the director in defending criminal proceedings in which he or she is convicted, civil proceedings brought by the company or an associated company in which judgment is given against such director or where the court refuses to grant such director relief under an application under sections 661(3) and 661(4) (acquisition of shares by innocent nominee) or its power under section 1157 (described below).


Section 235 allows a company to provide an indemnity to a director if the company is a trustee of an occupational pension scheme, with such indemnity to protect against liability incurred in connection with the company’s activities as trustee of the scheme.

Any indemnity provided under Section 234 or Section 235 in force for the benefit of one or more directors of the company or an associated company must be disclosed in the directors’ annual report in accordance with Section 236 and copies of such indemnification provisions made available for inspection in accordance with Section 237 (and every shareholder has a right to inspect and request such copies under Section 238).

Section 1157 provides that in proceedings against an officer of a company for negligence, default, breach of duty or breach of trust, the court may relieve such officer from liability if it appears to the court that such officer may be liable but acted honestly and reasonably and that having regard to all the circumstances of the case, such officer ought fairly to be excused. Further, an officer who has reason to apprehend that a claim of negligence, default, breach of duty or breach of trust will or might be made against him or her, such officer may apply to the court for relief, and the court will have the same power to relieve such officer as it would if the proceedings had actually been brought.

A court has wide discretion in granting relief, and may authorize civil proceedings to be brought in the name of the company by a shareholder on terms that the court directs. Except in these limited circumstances, English law does not generally permit class action lawsuits by shareholders on behalf of the company or on behalf of other shareholders.

The Registrant has entered into deeds of indemnification with each of its directors and executive officers. Pursuant to these agreements, the Registrant has agreed to indemnify these individuals to the fullest extent permissible under English law against liabilities arising out of, or in connection with, the actual or purported exercise of, or failure to exercise, any of his or her powers, duties or responsibilities as a director or officer, and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified. The Registrant has also agreed to use all reasonable endeavors to provide and maintain appropriate directors’ and officers’ liability insurance (including ensuring that premiums are properly paid) for their benefit for so long as any claims may lawfully be brought against them.

The Registrant has obtained and expects to continue to maintain insurance policies under which its directors and officers are insured, within the limits and subject to the limitations of those policies, against certain expenses in connection with the defense of, and certain liabilities that might be imposed as a result of, actions, suits or proceedings to which they are parties by reason of being or having been directors or officers. The coverage provided by these policies may apply whether or not the Registrant would have the power to indemnify such person against such liability under the provisions of English law.

Item 7. Exemption From Registration Claimed.

Not applicable.


Item 8. Exhibits.

The following exhibits are filed with or incorporated by reference into this Registration Statement:

 

Exhibit

Number

  

Description

  

Method of Filing

  3.1    Articles of Association of the Registrant    Incorporated by reference to Exhibit 3.1 to the Registrant’s Registration Statement on Form S-1/A filed on July 23, 2018.
  4.1    Form of Ordinary Shares Certificate    Incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1/A filed on July 25, 2018.
  5.1    Opinion of Kirkland & Ellis International LLP with respect to the validity of the ordinary shares    Filed herewith.
  5.2    Opinion of Kirkland & Ellis LLP with respect to the validity of the deferred compensation obligations    Filed herewith.
10.1    Cushman & Wakefield plc Executive Deferred Compensation Plan    Filed herewith.
23.1    Consent of KPMG LLP, Independent Registered Public Accounting Firm    Filed herewith.
23.2    Consent of Kirkland & Ellis International LLP    Included in Exhibit 5.1.
23.3    Consent of Kirkland & Ellis LLP    Included in Exhibit 5.2.
24.1    Powers of Attorney    Included on signature page.

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;

(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;

(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 Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.


(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of the employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.


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 October 15, 2019.

 

CUSHMAN & WAKEFIELD plc
By:   /s/ Brett White
Name:   Brett White
Title:   Director, Executive Chairman and Chief Executive Officer

POWERS OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each officer and director of Cushman & Wakefield plc whose signature appears below constitutes and appoints Brett White and Duncan Palmer, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him or her and in his or her name, place and stead, in any and all capacities, to execute any or all amendments including any post-effective amendments and supplements to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent 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 attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated:

 

Name    Title   Date

/s/ Brett White

Brett White

  

Director, Executive Chairman and Chief Executive Officer (Principal Executive Officer and Authorized Representative in the United States)

  October 15, 2019

/s/ Duncan Palmer

Duncan Palmer

  

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

  October 15, 2019

/s/ Qi Chen

Qi Chen

  

Director

  October 15, 2019

/s/ Jonathan Coslet

Jonathan Coslet

  

Director

  October 15, 2019

/s/ Timothy Dattels

Timothy Dattels

  

Director

  October 15, 2019


/s/ Richard A. McGinn

Richard A. McGinn

  

Director

   October 15, 2019

/s/ Michelle MacKay

Michelle MacKay

  

Director

   October 15, 2019

/s/ Jodie McLean

Jodie McLean

  

Director

   October 15, 2019

/s/ Lincoln Pan

Lincoln Pan

  

Director

   October 15, 2019

/s/ Rajeev Ruparelia

Rajeev Ruparelia

  

Director

   October 15, 2019

/s/ Billie Williamson

Billie Williamson

  

Director

   October 15, 2019

Exhibit 5.1

 

LOGO

 

 

30 St Mary Axe

London, EC3A 8AF

United Kingdom

 

Telephone: +44 20 7469 2000

   Facsimile:
+44 20 7469 2001

www.kirkland.com

15 October 2019

SIGNED PDF BY EMAIL AND

ORIGINAL BY POST

Cushman & Wakefield plc

125 Old Broad Street

London

United Kingdom

Dear Sirs,

Cushman & Wakefield plc Registration Statement on Form S-8

We refer to the Registration Statement (as defined below) filed in connection with the proposed issuance from time to time by Cushman & Wakefield plc, a public limited company incorporated under the laws of England and Wales (the “Company”) of up to 400,000 ordinary shares of $0.10 per share in the capital of the Company (the “Shares”) and the proposed issuance from time to time by the Company of up to US$7,000,000 of deferred compensation obligations (the “Deferred Compensation Obligations”), which represent unsecured obligations of the Company to pay deferred compensation in the future, in each case, pursuant to the Cushman & Wakefield plc Executive Deferred Compensation Plan (the “Plan”). We have acted as legal adviser as regards matters of English law to the Company and have taken instructions only from the Company.

 

1

Scope and purpose

 

1.1

This letter is being delivered in connection with the registration statement (the “Registration Statement”) on Form S-8 as filed by the Company with the U.S. Securities and Exchange Commission on the date hereof pursuant to the U.S. Securities Act of 1933 and the rules and regulations promulgated thereunder, each as amended from time to time.

 

1.2

This letter is limited to English law in force at the date of this letter as currently applied and interpreted by the English courts. You should read references to “English law” and to the “laws of England” accordingly.

KIRKLAND & ELLIS INTERNATIONAL LLP IS A MULTINATIONAL PRACTICE, THE PARTNERS OF WHICH ARE SOLICITORS OR REGISTERED FOREIGN LAWYERS (ADMITTED IN THE U.S. AND OTHER JURISDICTIONS), AND IS AUTHORIZED AND REGULATED BY THE SOLICITORS REGULATION AUTHORITY (SRA NUMBER 349107). A LIST OF THE PARTNERS, GIVING EACH PARTNER’S PROFESSIONAL QUALIFICATION AND JURISDICTION OF QUALIFICATION IS OPEN TO INSPECTION AT THE ADDRESS ABOVE.

ASSOCIATED OFFICES

Beijing Boston Chicago Dallas Hong Kong Houston Los Angeles Munich New York Palo Alto Paris San Francisco Shanghai Washington, D.C.


LOGO

Cushman & Wakefield plc

15 October 2019

Page 2

 

1.3

This letter, each opinion expressed in it (each an “opinion statement”) and any non-contractual obligations arising out of or in connection with it (and/or any opinion statement) is governed by and construed in accordance with English law.

 

1.4

We have not investigated the laws of any country or jurisdiction other than England (a “foreign jurisdiction”). We assume that no law or regulation of a foreign jurisdiction (a “foreign law”) affects any of the opinion statements. We make no opinion statement in relation to any foreign law (including to the extent it may affect matters of English law) or the application or interpretation of English law or any foreign law by any court of a foreign jurisdiction (a “foreign court”). We make no opinion statement in relation to the enforceability of any judgement of a foreign court. In relation to any agreement governed by a foreign law referred to in this letter, to the extent relevant to any of our opinion statements, we assume that words and phrases in that agreement have the same meaning they would have if the agreement was governed by English law.

 

1.5

This letter only applies to those facts and circumstances which exist at the date of this letter. You expressly agree and acknowledge that we do not have and do not assume any obligation to provide you with any opinion or advice, or to update this letter in any respect, after the date of this letter.

 

1.6

The opinion statements are based on the documents and records that we have examined and our review of the Searches that have been carried out (each as described in this letter) and are subject to the assumptions set out in Schedule 1 (Assumptions), the qualifications and reservations set out in Schedule 2 (Qualifications) and to any matters not disclosed to us. Each opinion statement is strictly limited to the matters stated below and does not extend, by implication or otherwise, to any other matters. Each provision in this letter which has the effect of limiting an opinion statement is independent of any other such provision and is not to be read or implied as restricted by it.

 

2

Defined terms and headings

 

2.1

In this letter:

 

  (a)

Search” means a Company Search or a Winding-Up Enquiry.

 

2.2

The headings in this letter do not affect its interpretation. In particular, headings are included in Schedule 1 (Assumptions) and Schedule 2 (Qualifications) for convenience only and should not be read or construed as limiting the applicability of the assumptions, qualifications or reservations set out in those schedules to a particular opinion statement unless expressly noted therein.


LOGO

Cushman & Wakefield plc

15 October 2019

Page 3

 

3

Legal review

 

3.1

For the purposes of issuing this letter, we have examined a copy of each of the following:

 

  (a)

the Registration Statement;

 

  (b)

the Plan;

 

  (c)

resolutions of the directors of the Company or a committee thereof passed on 13 June 2018, 19 June 2018, 10 July 2018, 18 July 2018, 31 July 2018, 11 October 2018, 19 November 2018, 18 December 2018, 31 January 2019, 26 February 2019, 15 March 2019, 17 March 2019, 19 March 2019, 26 March 2019, 5 April 2019, 17 April 2019, 16 May 2019, 17 June 2019, 24 June 2019, 2 July 2019, 6 August 2019, 1 September 2019, 6 September 2019, 13 September 2019, 30 September 2019, 1 October 2019 and 14 October 2019 (the “Board Approvals”);

 

  (d)

resolutions of the member(s) of the Company dated 19 June 2018, 11 July 2018 and 18 July 2018 and resolutions of the partners of DTZ Investment Holdings GenPar LLP or a committee thereof dated 19 June 2018 (the “Member Approvals” and, together with the Board Approvals, the “Corporate Approvals”);

 

  (e)

the Company’s certificate of incorporation (and any certificate of incorporation on change of its name) and its articles of association (and, if applicable, its memorandum of incorporation);

 

  (f)

the register of shareholders of the Company as emailed to us by Computershare at 4:09 pm (London time) on 15 October 2019 and dated 14 October 2019 (the “Register”); and

 

  (g)

the results disclosed in the searches of the publicly available records relating to the Company at Companies House conducted by Company Registrations Online Limited (“CRO Info”) on 15 October 2019 (each a “Company Search”).

 

3.2

We have also reviewed the results of searches made by CRO Info on 15 October 2019, in respect of the Company at (i) the Central Registry of Winding-up Petitions at the Insolvency and Companies List (formerly known as the Companies Court) in London, (ii) the Gazette, and (iii) Companies House (each a “Winding-Up Enquiry”).


LOGO

Cushman & Wakefield plc

15 October 2019

Page 4

 

3.3

We have not reviewed or examined any other document or record, or made any other enquiry, in connection with the giving of this letter. We have assumed that the documents described in this paragraph 3 are in full force and effect without any amendment (however described) and contain all the relevant information which is material for the purposes of the opinion statements and that there is no other document, agreement, instrument, undertaking, obligation, representation or warranty (oral or written) and no other arrangement (whether legally binding or not) made by or between all or any of the parties to those documents or any other matter which renders such information inaccurate, incomplete or misleading or which affects the conclusions stated in this letter.

 

4

Opinion statements

 

4.1

The Shares to be issued and allotted by the Company under the Plan and registered pursuant to the Registration Statement, when issued, will be duly authorised, validly issued and will be fully paid, and no further contributions in respect thereof will be required to be made to the Company by the holders thereof by reason solely of their being such holders.

 

4.2

The Deferred Compensation Obligations, when issued, will be duly authorised.

 

5

Consent

 

5.1

We hereby consent to the filing of this opinion with the U.S. Securities and Exchange Commission as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the U.S. Securities and Exchange Commission.

Yours faithfully,

/s/ Kirkland & Ellis International LLP

Kirkland & Ellis International LLP


LOGO

Cushman & Wakefield plc

15 October 2019

Page 5

 

SCHEDULE 1

ASSUMPTIONS

Status

 

1

That, except insofar as such matters are on public record and are discoverable by the Searches, the Company has not taken any corporate or other action nor have any steps been taken or legal proceedings been started against it for its administration, liquidation, winding up, dissolution, reorganisation or bankruptcy or for the appointment of a liquidator, receiver, trustee, administrator, administrative receiver or similar officer in respect of it or all or any part of its undertaking, property or assets.

Capacity and Authority

 

2

That the Board Approvals and Member Approvals were validly passed at meetings properly convened and conducted and remain in full force and effect.

Documents

 

3

That all signatures, stamps, seals and markings on all documents submitted to us are genuine and were applied to a complete and final version of the relevant document, that those documents are authentic and complete and remain accurate and up-to-date at the date of this letter, that all signatures which purport to have been attested were made in the presence of the purported witness and that all factual statements contained in those documents (including any factual matter represented by a party to a document) are correct, complete and fair.

 

4

That each document submitted to us as a certified, electronic, photostatic or facsimile copy conforms to the original of that document and the same assumptions made in the previous paragraph are correct in respect of the original.

 

5

That the Corporate Approvals have not been amended, revoked or suspended.

 

6

That the actions carried out pursuant to the Board Approvals by the Company and the exercise of its rights and performance of its obligations thereunder materially benefited the Company, and that the directors of the Company acted in good faith and in the interests of the Company in approving each of the Board Approvals and the transactions contemplated thereby.

 

7

That the Plan was validly adopted by the Company, has not been amended, and remains in full force and effect.


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Cushman & Wakefield plc

15 October 2019

Page 6

 

Searches

 

8

That the Searches were accurate, complete and up-to-date when carried out (and remain so at the date of this letter) and disclose all information which is necessary or material for the purposes of this letter.

 

9

That there has been no alteration in the status, position or condition of the Company (however described) revealed in the Searches and, to the extent that any Search is dated prior to the date of this letter, no additional matters would have been disclosed by that Search if it had been carried out at a later time.

 

10

All documents, forms and notices which should have been delivered to Companies House on behalf of or relating to the Company have been so delivered and the file of records maintained at Companies House concerning it, and reproduced for public inspection, was complete, accurate and up-to-date at the time of the Searches and the copies of its articles of association (and memorandum, if any) examined by us are complete and up-to-date and would, if issued today, comply with Section 36 of the Companies Act 2006 and that the version of the Register reviewed by us on 15 October 2019 was correct, complete and up-to-date, has not been amended prior to the date of this letter, has been maintained in accordance with the Companies Act 2006, and that there is no basis upon which a person may apply for rectification of the Register pursuant to section 125 of the Companies Act 2006.

 

11

That the Shares are not admitted to trading on any market or exchange, or otherwise listed, in the United Kingdom.

Issue and allotment of Shares pursuant to the Registration Statement

 

12

That the board of directors of the Company or a committee thereof (as applicable) has carried out and will carry out the functions assigned to it by the relevant Corporate Approvals in connection with the allotment and issuance of Shares pursuant to the Registration Statement in accordance with the requirements of those Corporate Approvals (including, without limitation, the limits on the number of Shares that may be allotted and/or issued by the board of directors of the Company or a committee thereof (as applicable)).

 

13

That as at the date of each issue and allotment of Shares by the Company pursuant to the Registration Statement, all rights of pre-emption howsoever arising have been, and remain validly, waived in respect of those Shares.

 

14

That as at the date of each issue and allotment of Shares by the Company pursuant to the Registration Statement, the Company has received all of the proceeds (whether in cash or non-cash consideration) in respect of the subscription monies payable for those Shares, and the amount of those proceeds is of an amount not less than the aggregate nominal value for those Shares.


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Cushman & Wakefield plc

15 October 2019

Page 7

 

15

That the statutory books of the Company have been or will be validly updated in accordance with the Companies Act 2006 and any other relevant legislation to reflect the issue and allotment of the Shares by the Company pursuant to the Registration Statement.

 

16

That all documents, forms and notices which should have been delivered to Companies House on behalf of the Company in respect of the issue and allotment of the Shares by the Company pursuant to the Registration Statement have been so delivered in accordance with the Companies Act 2006 and any other relevant legislation, and the file of records maintained at Companies House concerning it, and reproduced for public inspection, is or will be complete, accurate and up-to-date.

Deferred Compensation Obligations pursuant to the Plan

 

17

That the board of directors of the Company, a committee thereof, or an authorized officer (as applicable) has carried out and will carry out the functions assigned to it by the relevant Corporate Approvals in connection with the issue of the Deferred Compensation Obligations pursuant to the Plan in accordance with the requirements of those Corporate Approvals.

 

18

That all documents, forms and notices which should have been delivered by the Company to any participant in the Plan, or by the relevant participant to the Company, in each case in respect of the Deferred Compensation Obligations pursuant to the Plan, have been or will be so delivered in accordance with the Plan and any relevant legislation.


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Cushman & Wakefield plc

15 October 2019

Page 8

 

SCHEDULE 2

QUALIFICATIONS

 

1

The Searches are not capable of revealing definitively whether or not (a) a winding-up order or administration order has been made, (b) a receiver, administrative receiver, administrator or liquidator has been appointed, (c) a petition for winding-up or a petition, application or notice for the appointment of a receiver, administrative receiver, administrator or liquidator has been presented or filed at court, (d) a company voluntary arrangement has been proposed or approved, (e) a resolution for winding-up has been passed or (f) whether any other insolvency proceeding has been commenced.

 

2

In relation to a Winding-Up Enquiry at the Insolvency and Companies List, it is made at the Central Registry of Winding-up Petitions which relates to compulsory winding-up and administration in the High Court of England in London only. Those enquiries will not reveal winding-up or administration proceedings commenced in a District Registry of the High Court of England. It is not possible to carry out a search for winding-up or administration proceedings in the District Registries unless an application is made to each relevant District Judge and a fee is paid. We have not made any such application.

 

3

The Searches will not reveal if the Company is subject to insolvency proceedings in a foreign jurisdiction, including another Member State.

Exhibit 5.2

 

LOGO

300 North LaSalle

Chicago, IL 60654

United States

 

  +1 312 862 2000  

Facsimile:

+1 312 862 2200

www.kirkland.com

October 15, 2019

Cushman & Wakefield plc

125 Old Broad Street

London

United Kingdom

 

  Re:

Registration Statement on Form S-8

Ladies and Gentlemen:

We are acting as special counsel to Cushman & Wakefield plc, a public limited company incorporated under the laws of England and Wales (the “Company”), in connection with the filing by the Company of a Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”), with the Securities and Exchange Commission (the “Commission”) covering the offer of up to $7,000,000 of deferred compensation obligations (the “Deferred Compensation Obligations”), which represent unsecured obligations of the Company to pay deferred compensation in the future pursuant to the Cushman & Wakefield plc Executive Deferred Compensation Plan (the “Deferred Compensation Plan”) and up to 400,000 ordinary shares of the Company with a nominal value of $0.10 per share.

In connection therewith, we have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments as we have deemed necessary for the purposes of this opinion, including (i) the organizational documents of the Company, including the Articles of Association of the Company in effect as of the date hereof, (ii) minutes and records of the corporate proceedings of the Company and its compensation committee, (iii) the Deferred Compensation Plan, and (v) the Registration Statement and the exhibits thereto.

For purposes of this opinion, we have assumed the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as copies and the authenticity of the originals of all documents submitted to us as copies. We have also assumed the legal capacity of all natural persons, the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered, the authority of such persons signing on behalf of the parties thereto and the due authorization, execution and delivery of all documents by the parties thereto. We have not independently established or verified any facts relevant to the opinion expressed herein, but have relied upon statements and representations of officers and other representatives of the Company and others.

Based upon and subject to the foregoing qualifications, assumptions and limitations and the further limitations set forth below, we advise you that, assuming the due authorization and delivery of the Deferred Compensation Plan and the Deferred Compensation Obligations, when the Deferred Compensation Obligations are issued in accordance with the terms of the Deferred Compensation Plan and the Registration Statement becomes effective under the Act, the Deferred Compensation Obligations will be valid and binding obligations of the Company, enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other laws of general applicability relating to or affecting enforcement of creditors’ rights or by general equity principles.

 

Beijing Boston Dallas Hong Kong Houston London Los Angeles Munich New York Palo Alto Paris San Francisco Shanghai Washington, D.C.


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Cushman & Wakefield plc

October 15, 2019

Page 2

 

Our opinion expressed above is subject to the qualifications that we express no opinion as to the applicability of, compliance with, or effect of any laws except the internal law of the State of Delaware. We note that the Company is incorporated under the laws of England and Wales. We are not licensed to practice in England and Wales and we have made no investigation of, and do not express or imply any opinion on, the laws of England and Wales.

We hereby consent to the filing of this opinion with the Commission as Exhibit 5.2 to the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.

We do not find it necessary for the purposes of this opinion, and accordingly we do not purport to cover herein, the application of the securities or “Blue Sky” laws of the various states with respect to the offering of the Deferred Compensation Obligations.

This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein. We assume no obligation to revise or supplement this opinion should the laws of the State of Delaware be changed by legislative action, judicial decision or otherwise after the date hereof. This opinion is furnished to you in connection with the filing of the Registration Statement, and is not to be used, circulated, quoted or otherwise relied upon for any other purposes.

 

Sincerely,
/s/ Kirkland & Ellis LLP
KIRKLAND & ELLIS LLP

Exhibit 10.1

CUSHMAN & WAKEFIELD PLC

EXECUTIVE DEFERRED COMPENSATION PLAN

SECTION I.

Establishment and Purpose

Cushman & Wakefield plc (the “Company”) hereby establishes this Executive Deferred Compensation Plan (the “Plan”) effective as of January 1, 2019 (the “Effective Date”). The purpose of the Plan is to provide select, highly-compensated senior executives of the Company or its designated subsidiaries with an opportunity to defer payment of a portion of their salary, bonus, commissions, and/or equity-based compensation on the terms and conditions set forth herein.

SECTION II.

Definitions

For the purposes of the Plan, the following capitalized words will have the meanings set forth below:

“Administrator” means the Chief Human Resources Officer of the Company, and/or such other position delegated authority to administer the Plan by the Committee.

“Beneficiary” or “Beneficiaries” means an individual or entity designated by a Participant to receive Deferred Benefits in the event of the Participant’s death; provided, however, that, if no such individual or entity is designated or if no such designated individual is alive at the time of the Participant’s death, Beneficiary will mean the Participant’s estate.

“Beneficiary Designation Form” means a document, in a form approved by the Administrator to be used by Participants to name their respective Beneficiaries. No Beneficiary Designation Form will be effective unless it is signed by the Participant and received by the Administrator prior to the date of death of the Participant. In the event a Participant timely and properly delivers multiple signed Beneficiary Designation Forms, the Beneficiary Designation Form with the most recent date shall be the effective Beneficiary Designation Form and shall supersede all prior Beneficiary Designation Forms.

“Board” means the Board of Directors of the Company.

“Change in Control” means a “Change in the Ownership or Effective Control of a Corporation or in the Ownership of a Substantial Portion of the Assets of a Corporation” under Treasury Department Final Regulation 1.409A-3(j)(5), or any successor thereto.

“Code” means the Internal Revenue Code of 1986, as amended from time to time, and all regulations, interpretations, and administrative guidance issued thereunder.

“Committee” means the Compensation Committee of the Board.


“Common Stock” means the Company’s ordinary shares of $0.10 nominal value, or any other security into which the ordinary shares shall be changed pursuant to Section 6.2 hereof, or depositary receipts or instruments representing the same.

“Company” means Cushman & Wakefield plc, or any successor to substantially all of its business.

“Compensation” means up to (i) fifty percent (50%) of any base salary payable in a Plan Year, (ii) any annual bonus payable with respect to performance in a Plan Year, (iii) amounts payable upon vesting with respect to RSUs granted in a Plan Year, if any, and (iv) commissions earned in a Plan Year, in each case only to the extent such Compensation may be deferred without penalty under Section 409A of the Code; provided, that the Administrator may in its sole discretion determine with respect to any Plan Year what constitutes Compensation.

“Deferral Election” means an election with respect to a Plan Year by an Employee to defer Compensation to the Payment Date and with a payout over a specified schedule pursuant to a validly submitted Deferral Election Form, subject to the terms of this Plan. Subject to the requirements of the Plan, an Employee may elect to defer one or more of the various types of Compensation to a specified date; provided, that the specified date applicable to an election to defer RSUs must be to a specified date that is no earlier than the first anniversary of the last date a tranche of RSUs may vest under the terms applicable to the award; provided, further, that the specified schedule for the payout shall, unless the Administrator provides otherwise in the Deferral Election Form, and in any event subject to the terms of this Plan, be one of (i) lump sum within sixty (60) days of the Payment Date, (ii) in five substantially equal annual installments, with the first installment occurring within sixty (60) days following the Payment Date and the remaining four (4) installments occurring within sixty (60) days following the first four (4) anniversaries of the Payment Date, or (iii) in ten substantially equal annual installments, with the first installment occurring within sixty (60) days following the Payment Date and the remaining nine (9) installments occurring within sixty (60) days following the first nine (9) anniversaries of the Payment Date; and provided, further, a Deferral Election must comply with Section 409A of the Code.

“Deferral Election Form” means the election form, in such form and with such procedures as shall be determined by the Administrator in its sole discretion, pursuant to which an Employee may make a Deferral Election.

“Deferred Stock Account” means a notional, bookkeeping account denominated in Common Stock and established under the Plan for a Participant to track the shares of Common Stock credited thereto in respect of a Participant’s Deferral Elections.

“Election Date” means, except as otherwise determined by the Administrator, no later than the December 31st immediately preceding the commencement of a Plan Year. Notwithstanding the foregoing, if an Employee first becomes eligible to participate in the Plan on or after the start of a Plan Year, the Administrator may in its sole discretion permit such Employee to complete, execute and return a Deferral Election Form within thirty days following such initial participation date provided that such a Deferral Election will only apply with respect to services to be performed after the Deferral Election Form is accepted by the Administrator, and such date shall be the Election Date in respect of such Employee.

 

2


“Employee” means a person who is an service provider to any Employer and eligible to participate in the Plan with respect to a Plan Year, as determined by the Administrator in its sole discretion.

“Employer” means, as applicable, the Company or any of its subsidiaries listed on Schedule A attached hereto, as the same may be amended by the Committee, in its sole discretion, from time to time.

“Equity Plan” means the Cushman & Wakefield plc 2018 Omnibus Management Share and Cash Incentive Plan, as it may be amended from time to time, and the award agreement evidencing an award of RSUs thereunder.

“ERISA” means the Employee Retirement Income Security Act of 1974, as it may be amended from time to time.

Fair Market Value” of a share of Common Stock on a given date will be based upon either (i) if the Common Stock is listed on a national securities exchange or quoted in an interdealer quotation system, the closing price on the relevant date or, if unavailable, the average of the closing bid and asked prices per share of Common Stock on such date (or, if there was no trading or quotation in the Common Stock on such date, on the next preceding date on which there was trading or quotation) as provided by one of such organizations or (ii) if the Common Stock is not listed on a national securities exchange or quoted in an interdealer quotation system, the price will be equal to the Company’s fair market value, as determined by the Board in good faith based upon the best available facts and circumstances at the time.

“Participant” means any Employee (i) who elects to participate in the Plan, (ii) who signs the applicable Deferral Election Form, (iii) whose signed Deferral Election Form is accepted by the Administrator, (iv) who commences participation in the Plan and (v) whose participation in the Plan has not been terminated. A spouse or former spouse of a Participant will not be treated as a Participant in the Plan or have an account balance under the Plan, even if he or she has an interest in the Participant’s benefits under the Plan as a result of applicable law or property settlements resulting from legal separation or divorce.

“Payment Date” means, subject to the terms of this Plan, the earlier of (i) a Participant’s Termination of Service for any reason, and (ii) the specified date selected by the Participant in the Deferral Election Form.

“Plan Year” means the period beginning on January 1 of each year and ending on December 31 of such year.

“RSU” means a restricted stock unit representing one share of Common Stock granted to the Participant on or after January 1, 2019 under the Equity Plan or, if applicable, any successor plan, including any dividend equivalents that may be earned thereon pursuant to the terms thereof.

 

3


Specified Employee” has the meaning set forth in Section 409A(a)(2)(B)(i) of the Code and Treas. Reg. Section 1.409A-1(i).

“Termination of Service” means a separation from service as defined under Section 409A of the Code.

SECTION III.

Administration

(a) The Plan will be administered by the Committee and the Administrator as set forth herein. The Administrator and Members of the Committee may be Participants in the Plan. The Committee will be authorized to interpret the Plan, to establish, amend and rescind any rules and regulations relating to the Plan, to make factual determinations in connection with the administration or interpretation of the Plan, and to make any other determinations that it believes are necessary or advisable for the administration of the Plan. The Administrator has the sole authority to accept or reject, in whole or in part, any Deferral Election and to select Employees who may participate in the Plan. Eligibility to become a Participant in one Plan Year does not guarantee eligibility to become a Participant in any other Plan Year. The Administrator may correct any defect or supply any omission or reconcile any inconsistency in the Plan or in any Deferral Election Form to the extent the Administrator deems desirable to carry the Plan into effect. Any decision of the Committee and the Administrator in the administration of the Plan, as described herein, will be final and conclusive. The Committee may act only by a majority of its members, except that the members thereof may authorize any one or more of the Committee members to execute and deliver documents on behalf of the Committee. In addition, in the administration of the Plan, the Committee and the Administrator may, from time to time, employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel who may be counsel to the Company.

(b) The Committee and the Administrator will be entitled to rely in good faith upon any report or other information furnished to it by any officer or employee of the Companies or from the financial, accounting, legal or other advisers of the Companies. Each member of the Committee, the Administrator and each other individual designated by the Committee to administer the Plan and each other person acting at the direction of or on behalf of the Committee will not be liable for any determination or anything done or omitted to be done by him or by any other member of the Committee or any other such individual in connection with the Plan, except for his own willful misconduct or as expressly provided by statute, and to the extent permitted by law and the bylaws of the Company, will be fully indemnified and protected by the Company with respect to such determination, act or omission.

 

4


SECTION IV.

Elective Deferral of RSU Grants

 

4.1

Elective Deferrals Generally

(a) Deferral Elections. The Administrator will have sole discretion to determine the terms and conditions applicable to a Deferral Election pursuant to the Plan. To the extent permitted by the Administrator and subject to the terms and conditions provided by the Administrator, a Participant for a given Plan Year may make a Deferral Election. The Participant’s election must be evidenced by a Deferral Election Form completed and timely submitted to the Administrator in accordance with the procedures and time frames as may be established by the Administrator in its sole discretion.

(b) Deferred Stock Accounts. The Administrator will establish a Deferred Stock Account for each Participant and such separate sub-Accounts as it deems necessary and appropriate to track a Participant’s Deferral Elections and the notional shares of Common Stock credited to the Participant with respect thereto.

 

4.2

Crediting of Deferrals; Certain Limitations

(a) Crediting of Deferrals to the Deferred Stock Account. With respect to Compensation subject to an effective Deferral Election Form other than Compensation relating to RSUs, the amounts will be credited to the Participant’s Deferred Stock Account on the date that such Compensation would otherwise have been paid absent a Deferral Election, and the number of notional shares of Common Stock so credited shall be determined based on the Fair Market Value of the Common Stock on such date. With respect to RSUs that are subject to an effective Deferral Election Form, the RSUs will continue to be subject to the terms of the Equity Plan and the number of shares of Common Stock underlying the RSUs will be credited to the Participant’s Deferred Stock Account only upon vesting of the RSU, if applicable. Notwithstanding anything to the contrary in the Plan or any Deferral Election Form, to the extent any Common Stock credited to a Participant’s Deferred Stock Account relates to Compensation that is forfeited, reduced or otherwise recouped, such Common Stock shall cease to be credited to the Participant’s Deferred Stock Account and Participant shall cease to have any rights with respect thereto, as determined by the Committee in its sole discretion.

(b) Maximum Deferrals. In respect of any Plan Year, the Deferral Election Form may specify a date that is no later than the 20th year following the Plan Year to which the Deferral Election relates.

 

4.3

Dividend Equivalents

Unless otherwise determined by the Administrator, a Participant’s Deferred Stock Account will, from time to time after crediting but prior to settlement, be credited with additional notional shares of Common Stock, the number of which will be equal to the quotient determined by dividing (a) the product determined by multiplying (i) one hundred percent (100%) of each dividend declared and paid by the Company to its shareholders on its Common Stock on a per share basis by (ii) the number of notional shares of Common Stock recorded in the Participant’s Deferred Stock Account on the record date for the payment of any such dividend, by (b) the Fair Market Value of a share of Common Stock on the dividend payment date for such dividend, in each case, with fractions computed to three decimal places, it being understood that no fractional shares will be credited to a Participant’s Deferred Stock Account, and will instead be rounded down to the nearest whole share (such notional shares, the “DEQ Shares”); provided, that in no event will DEQ Shares be credited to a Participant’s Deferred Stock Account to the extent such a crediting would result in duplication, as determined by the Committee in its sole discretion.

 

5


4.4

Statements of Account

The Company will provide each Participant with access to a summary setting forth the total number of notional shares of Common Stock credited to the Participant’s Deferred Stock Account as of the end of each Plan Year.

 

4.5

Manner, Timing and Form of Payment of Deferred Stock Accounts

(a) Payment of Deferred Stock Account. Except (i) as otherwise provided in the Plan or (ii) to the extent payment on the Payment Date would result in a penalty under Section 409A of the Code, in which case payment shall occur at the earliest time payment can be made without such a penalty, the notional shares of Common Stock in a Participant’s Deferred Stock Account will be settled in shares of Common Stock on the Payment Date and in any event pursuant to the Participant’s Deferral Election. All distributions made in the form of Common Stock with respect to RSUs will be distributed pursuant to, and count against the number of shares reserved for issuance under, the Equity Plan or such other plan, program, agreement or arrangement under which the shares of Common Stock or right to acquire or receive shares of Common Stock were initially awarded. Shares of Common Stock actually delivered in settlement of a Participant’s Stock Account may be originally issued shares or treasury shares, in the sole discretion of the Committee. Notwithstanding anything to the contrary herein, DEQ Shares will be settled in cash unless the Committee determines in its sole discretion to settle the DEQ Shares in shares of Common Stock.

(b) Timing of Payments to Specified Employees. Notwithstanding anything in the Plan to the contrary, if a Participant is a Specified Employee as of the date of his or her Termination of Service, then no distribution of such Participant’s Deferred Stock Account shall be made to the extent triggered by such Participant’s Termination of Service or otherwise to the extent necessary to avoid any penalties under Section 409A of the Code until the first day of the seventh month following the Participant’s Termination of Service (or, if earlier, upon the date of the Participant’s death).

(c) Restrictions on Transfer. The Company will pay any amounts payable under the Plan only to the Participant or Beneficiary designated under the Plan to receive such amounts. Neither a Participant nor his Beneficiary will have any right to anticipate, alienate, sell, transfer, assign, pledge, encumber or change any benefits to which he may become entitled under the Plan, and any attempt to do so will be void. Amounts payable under the Plan will not be subject to attachment, execution by levy, garnishment, or other legal or equitable process for a Participant’s or Beneficiary’s debts or other obligations.

SECTION V.

Designation of Beneficiary

Each Participant may designate a Beneficiary to receive any amounts due under the Plan on the Participant’s death by executing a Beneficiary Designation Form. A Participant may change an earlier Beneficiary designation by executing a later Beneficiary Designation Form and delivering it to the Administrator. The execution of a Beneficiary Designation Form and its receipt by the Administrator revokes and rescinds any prior Beneficiary Designation Form.

 

6


SECTION VI.

Recapitalization or Reorganization

 

6.1

Authority of the Company and Stockholders

The existence of the Plan will not affect or restrict in any way the right or power of the Company or the stockholders of the Company to make or authorize any adjustment, recapitalization, reorganization or other change in the Company’s capital structure or its business, any merger or consolidation of the Company, any issue of stock or of options, warrants or rights to purchase stock or of bonds, debentures, preferred or prior preference stocks having rights superior to or affecting the Common Stock or the rights thereof or which are convertible into or exchangeable for Common Stock, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.

 

6.2

Change in Capitalization

In the event of any change in the capitalization of the Company or other corporate change, the Committee shall make such adjustments to the notional Common Stock credited to a Participant’s Deferred Stock Account as it shall consider appropriate in its sole discretion. Notwithstanding any other provision of the Plan, in the event of the occurrence of any action referenced in Section 9 of the Equity Plan (or the appropriate section of any amended, updated, replacement or successor Equity Plan): (i) the Committee will effectuate any actions taken under the Equity Plan in respect of the RSUs credited to a Participant’s Deferred Stock Account and (ii) the Committee may make such other adjustments, consistent with the foregoing, as it deems appropriate in its sole discretion. Notwithstanding the foregoing, the Committee will not make any adjustments hereunder that would require approval of the shareholders of the Company without first obtaining such approval.

SECTION VII.

Records; Claims Procedure

 

7.1

Records of Administration

The Administrator will keep or designate another party to keep records reflecting the administration of this Plan which will be subject to audit by the Company.

 

7.2

Expenses

The expenses of administering this Plan will be borne by the Company.

 

7


7.3

Claims Review Procedures

The following claim procedures will apply:

(a) Denial of Claim. If a claim for benefits is wholly or partially denied, the claimant will be given notice in writing of the denial within a reasonable time after the receipt of the claim, but not later than ninety (90) days after the receipt of the claim. However, if special circumstances require an extension, written notice of the extension will be furnished to the claimant before the termination of the 90-day period. In no event will the extension exceed a period of ninety (90) days after the expiration of the initial 90-day period. The notice of the denial will contain the following information written in a manner that may be understood by a claimant:

(i) The specific reasons for the denial;

(ii) Specific reference to pertinent Plan provisions on which the denial is based;

(iii) A description of any additional material or information necessary for the claimant to perfect his claim and an explanation of why such material or information is necessary;

(iv) An explanation that a full and fair review by the Administrator of the denial may be requested by the claimant or his authorized representative by filing a written request for a review with the Administrator within sixty (60) days after the notice of the denial is received; and

(v) If a request for review is filed, the claimant or his authorized representative may review pertinent documents and submit issues and comments in writing within the 60-day period described above.

(b) Decisions after Review. The decision of the Administrator with respect to the review of the denial will be made promptly and in writing, but not later than sixty (60) days after the Administrator receives the request for the review. However, if special circumstances require an extension of time, a decision will be rendered not later than one hundred twenty (120) days after the receipt of the request for review. A written notice of the extension will be furnished to the claimant prior to the expiration of the initial 60-day period. The claimant will be given a copy of the decision, which will state, in a manner calculated to be understood by the claimant, the specific reasons for the decision and specific references to the pertinent Plan provisions on which the decision is based.

(c) Other Procedures. Notwithstanding the foregoing, the Administrator may, in its sole discretion, adopt different procedures for different claims without being bound by past actions. Any procedures adopted, however, will be designed to afford a claimant a full and fair review of the claimant’s claim and will comply with any applicable regulations under ERISA.

 

7.4

Finality of Determinations; Exhaustion of Remedies

To the extent permitted by law, decisions reached under the claims procedures set forth in Section 7 will be final and binding on all parties. No legal action for benefits under this Plan will be brought unless and until the claimant has exhausted the claimant’s remedies under Section 7. In any such legal action, the claimant may only present evidence and theories which the claimant

 

8


presented during the claims procedure. Any claims which the claimant does not in good faith pursue through the review stage of the procedure will be treated as having been irrevocably waived. Judicial review of a claimant’s denied claim will be limited to a determination of whether the denial was arbitrary, capricious or an abuse of discretion based on the evidence and theories the claimant presented during the claims procedure.

SECTION VIII.

General Provisions

 

8.1

Restrictions on Alienation of Benefits

No right or benefit under this Plan will be subject to anticipation, alienation, sale, assignment, pledge, encumbrance, or charge, and any attempt to anticipate, alienate, sell, assign, pledge, encumber, or charge the same will be void. No right or benefit hereunder will in any manner be liable for or subject to the debts, contracts, liabilities, or torts of the person entitled to such benefit. If any Participant or the Participant’s Beneficiary under this Plan should become bankrupt or attempt to anticipate, alienate, sell, assign, pledge, encumber, or charge any right to a benefit hereunder, then, such right or benefit will cease and terminate.

 

8.2

Unfunded Status of Plan

This Plan is unfunded and is intended to be a “top hat” plan for the purpose of providing deferred compensation to a select group of management or highly compensated employees within the meaning of ERISA. Amounts payable under the Plan will be satisfied out of the general assets of the Company subject to the claims of the Company’s creditors. The Participants and/or their Beneficiaries will be unsecured creditors of the Company, subject to the Company’s “insolvency”, meaning that the Company is unable to pay its debts as they become due, or is subject to a pending proceeding as a debtor under the United States Bankruptcy Code. Benefits will be reflected on the Company’s accounting records but will not be construed to create, or require the creation of, a trust, custodial or escrow account. No Participant will have any right, title or interest whatever in or to any investment reserves, accounts, funds or assets that the Company may purchase, establish or accumulate to aid in providing the benefits described in this Plan. Nothing contained in this Plan, and no action taken pursuant to its provisions, will create or be construed to create a trust or a fiduciary relationship of any kind between the Company and a Participant or any other person. Neither a Participant nor the Beneficiary of a Participant will acquire any interest hereunder greater than that of an unsecured creditor of the Company.

 

8.3

Deemed Investment

By electing to participate in the Plan, each Participant will be deemed to have acknowledged and agreed that the Company is not and will not be required to make any investment in connection with the Plan, nor is it required to follow the Participant’s investment directions in any actual investment it may make or acquire in connection with the Plan.

 

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8.4

Tax Consequences Not Guaranteed

The Company does not warrant that this Plan will have any particular tax consequences for Participants or Beneficiaries and will not be liable to them if tax consequences they anticipate do not actually occur. The Company will have no obligation under any circumstances to indemnify a Participant or Beneficiary for lost tax benefits (or other damage or loss) under the Plan.

 

8.5

Construction

Except when otherwise indicated by the context, the definition of any term in the singular will also include the plural.

 

8.6

Severability

If any of the provisions of the Plan is finally held to be invalid, illegal, or unenforceable (whether in whole or in part), such provision shall be deemed modified to the extent, but only to the extent, of such invalidity, illegality, or unenforceability, and the remaining provisions shall not be affected thereby; provided, that, if any of such provisions is finally held to be invalid, illegal, or unenforceable because it exceeds the maximum scope determined to be acceptable to permit such provision to be enforceable, such provision shall be deemed to be modified to the minimum extent necessary to modify such scope in order to make such provision enforceable hereunder. The Plan and any other agreements or documents designated by the Committee or the Administrator as setting forth the terms of a deferral contain the entire agreement of the parties with respect to the subject matter thereof and supersede all prior agreements, promises, covenants, arrangements, communications, representations, and warranties between them, whether written or oral, with respect to the subject matter thereof.

 

8.7

Articles and Section Titles and Headings

The titles and headings at the beginning of each Article and Section will not be considered in construing the meaning of any provisions in this Plan.

 

8.8

Governing Law

The Plan and the rights of all persons under the Plan shall be construed and administered in accordance with the laws of the State of Delaware without regard to its conflict of law principles.

 

8.9

Amendment and Termination

The Administrator may amend, modify or terminate this Plan at any time and in any manner. No amendment may reduce the Account balance of any Participant at the time of such amendment or accelerate the timing of payments due under this Plan except as provided below, unless such amendment is made to comply with any law or regulation. In the event of a termination of this Plan, no further deferrals will be made under this Plan. Any and all amendments to and any termination of the Plan must be made in compliance with Section 409A of the Code.

 

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8.10

Change in Control

If a Change in Control occurs, a Participant’s Deferred Stock Account in this Plan will be distributed in lump sum no later than five (5) days following the date of the Change in Control in accordance with, and only to the extent it would not result in a penalty under, Section 409A of the Code. Any portion of a Participant’s Deferred Stock Account that is not distributed following a Change in Control shall be distributed in accordance with the terms of this Plan and the applicable Deferral Election.

 

8.11

Termination after Corporate Dissolution

The Administrator may terminate this Plan within twelve (12) months of a corporate dissolution taxed under Section 331 of the Code, or with the approval of a bankruptcy court pursuant to 11 U.S.C. Section 503(b)(1)(A), provided that the amounts deferred under this Plan are distributed to the Participants and included in their taxable income within the time limits specified for such terminations in the Regulations under Section 409A.

 

8.12

Company Decision to Terminate Plan

The Company may terminate this Plan provided that the Company terminates all of its deferral arrangements that would be aggregated with this Plan pursuant to Section 409A of the Code, and further provided that no payments of amounts deferred under the Plan are made within twelve (12) months of the termination other than payments that would otherwise be payable under this Plan if this Plan had not been terminated, and provided further that payments of all remaining amounts deferred under the Plan are made within twenty-four (24) months of the termination, and provided further that the Company does not adopt any new deferral arrangement that would be aggregated with any terminated arrangement at any time within three years following the date of termination.

 

8.13

No Rights as Stockholder

The crediting of Common Stock to a Participant’s Deferred Stock Account will not confer on the Participant any rights as a stockholder of the Company.

 

8.14

Clawback.

Notwithstanding anything in the Plan to the contrary, the Company will be entitled, to the extent permitted or required by applicable law, Company policy and/or the requirements of an exchange on which the Company’s shares of Common Stock are listed for trading, in each case, as in effect from time to time, to recoup compensation of whatever kind paid by the Company or any of its affiliates at any time to a Participant under the Plan.

 

8.15

Withholding.

With respect to any Compensation subject to an effective Deferral Election, the Company shall have the right to reduce the amount credited to the Account and/or withhold a number of shares of Common Stock having a Fair Market Value determined by the Administrator to be sufficient to satisfy the federal, state, local, employment and any other applicable tax and withholding requirements, if any, attributable to such Compensation.

 

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8.16

Section 409A.

The intent of the parties is that payments and benefits under the Plan comply with Section 409A of the Code and the regulations and guidance promulgated thereunder (except to the extent exempt as short-term deferrals or otherwise) and, accordingly, to the maximum extent permitted, the Plan shall be interpreted to be in compliance therewith. A Termination of Service shall not be deemed to have occurred for purposes of any provision of this Plan providing for the payment of any amounts or benefits subject to Section 409A of the Code upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code. The determination of whether and when a separation from service has occurred shall be made in a manner consistent with, and based on the presumptions set forth in, US Treasury Regulation Section 1.409A-1(h) or any successor provision thereto. It is intended that each installment, if any, of the payments and benefits provided hereunder shall be treated as a separate “payment” for purposes of Section 409A of the Code. Neither the Company nor any Participant shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A of the Code.

 

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Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

The Board of Directors

Cushman & Wakefield plc:

We consent to the use of our report dated February 28, 2019, with respect to the consolidated balance sheets of Cushman & Wakefield plc as of December 31, 2018 and 2017 and the related consolidated statements of operations, comprehensive loss, changes in equity, and cash flows for each of the years in the three-year period ended December 31, 2018, and the related notes and financial statement schedule II, incorporated by reference herein.

Our report refers to a change to the method of revenue recognition upon the Company’s adoption of FASB ASC 606, and a change to the straight line attribution method of recognizing stock-based compensation expense.

/s/ KPMG LLP

Chicago, Illinois

October 15, 2019