As filed with the Securities and Exchange Commission on May 27, 2022.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Claros Mortgage Trust, Inc.
(Exact name of registrant as specified in its charter)
Maryland | 47-4074900 | |
(State or other jurisdiction of | (I.R.S. Employer | |
incorporation or organization) | Identification Number) |
c/o Mack Real Estate Credit Strategies, L.P.
60 Columbus Circle, 20th Floor,
New York, NY 10023
Tel: (212) 484-0050
(Address of Principal Executive Offices)
Claros Mortgage Trust, Inc. 2016 Incentive Award Plan
(Full title of the plan)
J.D. Siegel, Esq.
c/o Mack Real Estate Credit Strategies, L.P.
60 Columbus Circle, 20th Floor,
New York, NY 10023
Tel: (212) 484-0050
(Name and address and telephone number, including area code, of agent for service)
With a copy to:
William J. Cernius, Esq.
Brent Epstein, Esq.
Latham & Watkin LLP
650 Town Center Drive, 20th Floor
Costa Mesa, CA 92626
Tel: (714) 755-8172
Fax: (714) 755-8290
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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. ☐
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Items 1 and 2 of Part I of this Form S-8 registration statement (this Registration Statement) is omitted from this Registration Statement 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 Form S-8. The documents containing the information specified in Part I will be delivered to the participants in the Claros Mortgage Trust, Inc. 2016 Incentive Award Plan (the Plan) covered by this Registration Statement as required by Rule 428(b)(1) under the Securities Act. Such documents are not required to be, and are not, filed with the Securities and Exchange Commission (the Commission) either as part of this Registration Statement or as a prospectus or prospectus supplement pursuant to Rule 424 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by Claros Mortgage Trust, Inc. (the Registrant or the Company) pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the Exchange Act), are hereby incorporated by reference in this Registration Statement:
(a) | The Companys Annual Report on Form 10-K for the year ended December 31, 2021 filed with the Commission on March 16, 2022 (File No. 001-40993), which contains the Companys audited financial statements as of December 31, 2021 and 2020 and for the years ended December 31, 2021 and 2020; |
(b) | The Companys Quarterly Report on Form 10-Q for the quarter ended March 31, 2022 filed with the Commission on May 10, 2022 (File No. 001-40993); |
(c) | The Companys Current Reports on Form 8-K filed with the Commission on January 21, 2022, February 25, 2022 and March 10, 2022, (each with File No. 001-40993) (except for any portions of such Current Reports on Form 8-K furnished pursuant to Item 2.02 and/or Item 7.01 thereof and any corresponding exhibits thereto not filed with the Commission); and |
(d) | The Companys registration statement on Form 8-A12B filed with the Commission on November 1, 2021 (File No. 001-40993) pursuant to Section 12(b) of the Securities Act, relating to the Companys common stock, $0.01 par value per share, and any amendment or report filed for the purpose of updating such description. |
All documents that the Company subsequently files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement (except for any portions of the Companys Current Reports on Form 8-K furnished pursuant to Item 2.02 and/or Item 7.01 thereof and any corresponding exhibits thereto not filed with the Commission) and prior to the filing of a post-effective amendment to this Registration Statement indicating that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Maryland law permits a Maryland corporation to include in its charter a provision eliminating the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from (1) actual receipt of an improper benefit or profit in money, property or services or (2) active and deliberate dishonesty that was established by a final judgment and was material to the cause of action. Our charter contains a provision that eliminates the liability of our directors and officers to us and our stockholders to the maximum extent permitted by Maryland law.
The Maryland General Corporation Law (MGCL) requires us (unless our charter provides otherwise, which our charter does not) to indemnify each of our directors or officers who has been successful, on the merits or otherwise, in the defense of any proceeding to which he or she is made a party by reason of his or her service in that capacity. The MGCL permits us to indemnify our present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to or in which they may be made or threatened to be made a party or witness by reason of their service in those or other capacities unless it is established that:
| the act or omission of the director or officer was material to the matter giving rise to the proceeding and (1) was committed in bad faith or (2) was the result of active and deliberate dishonesty; |
| the director or officer actually received an improper personal benefit in money, property or services; or |
| in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. |
However, under the MGCL, a Maryland corporation may not indemnify a director or officer for an adverse judgment in a suit by or in the right of the corporation or for a judgment of liability on the basis that a personal benefit was improperly received, unless in either case a court orders indemnification, and then only for expenses.
In addition, the MGCL permits us to advance reasonable expenses to a director or officer upon our receipt of:
| a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by us; and |
| a written undertaking by the director or officer or on the directors or officers behalf to repay the amount paid or reimbursed by us if it is ultimately determined that the director or officer did not meet the standard of conduct. |
Our charter obligates us, to the maximum extent permitted by Maryland law in effect from time to time, to indemnify and, without requiring a preliminary determination of the ultimate entitlement to indemnification, pay or reimburse reasonable expenses in advance of final disposition of a proceeding to:
| any present or former director or officer who is made or threatened to be made a party to, or a witness in, the proceeding by reason of his or her service in that capacity; or |
| any individual who, while a director or officer of our company and at our request, serves or has served as a director, officer, partner, member, manager, trustee, employee or agent of another corporation, real estate investment trust, partnership, limited liability company, joint venture, trust, employee benefit plan or any other enterprise and who is made or threatened to be made a party to, or witness in, the proceeding by reason of his or her service in such capacity. |
Our charter also permits us to indemnify and advance expenses to any person who served a predecessor of ours in any of the capacities described above and to any employee or agent of us or a predecessor of ours. The rights to indemnification and advancement of expenses provided by our charter and bylaws shall vest immediately upon an individuals election as a director or officer of ours.
We have entered into indemnification agreements with each of our directors and certain officers that provide for indemnification to the maximum extent permitted by Maryland law.
Insofar as the foregoing provisions permit indemnification of directors, officers or persons controlling us for liability arising under the Securities Act, we have been informed that, in the opinion of the SEC, this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement:
* | Filed herewith. |
Item 9. Undertakings.
(a) | The undersigned Registrant hereby undertakes: |
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement; |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; |
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 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 Registrants annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans 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. |
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 New York, State of New York, on May 27, 2022.
CLAROS MORTGAGE TRUST, INC. | ||
By: | /s/ Richard J. Mack | |
Name: Richard J. Mack | ||
Title: Chief Executive Officer |
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears below hereby constitutes and appoints Richard J. Mack and Jai Agarwal, and each of them, either of whom may act without joinder of the other, the individuals true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for the person and in his or her name, place and stead, in any and all capacities, to sign this Registration Statement and any or all amendments, including post-effective amendments to the Registration Statement, and all other documents in connection therewith to be filed with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in- fact and agents or either of them, or their 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 and power of attorney have been signed by the following persons in the capacities and on the date indicated.
Signature |
Title |
Date | ||
/s/ Richard J. Mack |
Chief Executive Officer and Chairman of the Board of Directors | May 27, 2022 | ||
Richard J. Mack | (Principal Executive Officer) | |||
/s/ Jai Agarwal |
Chief Financial Officer | May 27, 2022 | ||
Jai Agarwal | (Principal Financial and Accounting Officer) | |||
/s/ J. Michael McGillis |
President and Director | May 27, 2022 | ||
J. Michael McGillis | ||||
/s/ Derrick D. Cephas |
Director | May 27, 2022 | ||
Derrick D. Cephas | ||||
/s/ Mary Haggerty |
Director | May 27, 2022 | ||
Mary Haggerty | ||||
/s/ Pamela Liebman |
Director | May 27, 2022 | ||
Pamela Liebman | ||||
/s/ Steven L. Richman |
Director | May 27, 2022 | ||
Steven L. Richman | ||||
/s/ Andrew Silberstein |
Director | May 27, 2022 | ||
Andrew Silberstein | ||||
/s/ Vincent Tese |
Director | May 27, 2022 | ||
Vincent Tese | ||||
/s/ W. Edward Walter III |
Director | May 27, 2022 | ||
W. Edward Walter III |
8
Exhibit 5.1
![]() |
![]() |
May 27, 2022
Claros Mortgage Trust, Inc.
60 Columbus Circle, 20th Floor
New York, New York 10023
Re: | Registration Statement on Form S-8 |
Ladies and Gentlemen:
We have served as Maryland counsel to Claros Mortgage Trust, Inc., a Maryland corporation (the Company), in connection with certain matters of Maryland law arising out of the registration of the offering and sale of 8,281,594 shares (the Shares) of the Companys common stock, $0.01 par value per share (the Common Stock), issuable under the Claros Mortgage Trust, Inc. 2016 Incentive Award Plan (the Incentive Plan), covered by the above-referenced Registration Statement, and all amendments thereto (the Registration Statement), filed by the Company with the United States Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended (the Securities Act).
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the Documents):
1. The Registration Statement;
2. The charter of the Company (the Charter), certified by the State Department of Assessments and Taxation of Maryland (the SDAT);
3. The Amended and Restated Bylaws of the Company, certified as of the date hereof by an officer of the Company;
4. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
5. Resolutions adopted by the Board of Directors of the Company relating to, among other matters, the Incentive Plan and the issuance of the Shares (the Resolutions), certified as of the date hereof by an officer of the Company;
6. Action by the sole stockholder of the Company relating to, among other matters, the approval of the Incentive Plan, certified as of the date hereof by an officer of the Company;
Claros Mortgage Trust, Inc.
May 27, 2022
Page 2
7. The Incentive Plan, certified as of the date hereof by an officer of the Company;
8. A certificate executed by an officer of the Company, dated as of the date hereof; and
9. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of such individual or any other person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such partys obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.
4. All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all such Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.
5. The Shares will not be issued in violation of any restriction or limitation contained in Article VII of the Charter or in the Incentive Plan.
6. Upon the issuance of any Shares, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Charter.
Claros Mortgage Trust, Inc.
May 27, 2022
Page 3
7. Each option, restricted stock award, performance bonus award, dividend equivalent award, stock payment award, restricted stock unit, performance shares award, other incentive award, stock appreciation right or other security granted under the Incentive Plan pursuant to which Shares may be issued upon exercise, exchange, or settlement or otherwise (each, an Award) will be duly authorized and validly granted in accordance with the Incentive Plan, and any such Shares will be so issued in accordance with the terms of the Incentive Plan and any applicable written notice, agreement contract or other instrument or document entered into in connection with the grant of such Award (each, an Award Agreement).
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.
2. The issuance of the Shares has been duly authorized and, when and if delivered against payment therefor in accordance with the Registration Statement, the Resolutions, the Incentive Plan and any applicable Award Agreement, the Shares will be validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the laws of the State of Maryland, and we do not express any opinion herein concerning any U.S. federal law or the laws of any other jurisdiction. We express no opinion as to the applicability or effect of any federal or state securities laws, including the securities laws of the State of Maryland. To the extent that any matter as to which our opinion is expressed herein would be governed by any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. The opinion expressed herein is subject to the effect of judicial decisions which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.
The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
Claros Mortgage Trust, Inc.
May 27, 2022
Page 4
This opinion is being furnished to you for submission to the Commission as an exhibit to the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act.
Very truly yours, |
/s/ Venable LLP |
Exhibit 10.2
CLAROS MORTGAGE TRUST, INC.
DEFERRED COMPENSATION PLAN
Effective as of May 24, 2022
TABLE OF CONTENTS
Page(s) | ||||
ARTICLE I. DEFINITIONS |
1 | |||
ARTICLE II. PURPOSE; DEFERRAL ELECTIONS |
4 | |||
ARTICLE III. DEFERRED COMPENSATION ACCOUNTS |
5 | |||
ARTICLE IV. PAYMENT OF DEFERRED COMPENSATION |
5 | |||
ARTICLE V. ADMINISTRATION; EFFECTIVENESS, AMENDMENT AND TERMINATION OF PLAN |
7 | |||
ARTICLE VI. MISCELLANEOUS |
7 |
i
CLAROS MORTGAGE TRUST, INC.
DEFERRED COMPENSATION PLAN
ARTICLE I.
DEFINITIONS
1.1 Administrator shall mean the Board or a Committee to the extent that the Boards powers or authority under the Plan have been delegated to such Committee.
1.2 Affiliate shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such Person where control shall have the meaning given such term under Rule 405 of the Securities Act.
1.3 Board shall mean the Board of Directors of the Company.
1.4 Cash Fee shall mean the quarterly cash retainer payable to a Director pursuant to the Compensation Program for services as a member of the Board, including any retainers payable under the Compensation Program solely for serving as Lead Independent Director and/or for serving on one or more committees of the Board.
1.5 Change in Control shall mean the occurrence of any of the following events:
(a) A transaction or series of transactions (other than an offering of Common Stock to the general public through a registration statement filed with the Securities and Exchange Commission) whereby any person or related group of persons (as such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) (other than the Company, any Parent or any Subsidiary, an employee benefit plan maintained by any of the foregoing entities or a person that, prior to such transaction, directly or indirectly controls, is controlled by, or is under common control with, the Company) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of securities of the Company possessing more than fifty percent (50%) of the total combined voting power of the Companys securities outstanding immediately after such acquisition;
(b) During any period of two (2) consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in Section 1.5(a) or Section 1.5(c) hereof) whose election by the Board or nomination for election by the Companys stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the two (2)-year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof;
(c) The consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination, (y) a sale or other disposition of all or substantially all of the Companys assets in any single transaction or series of related transactions or (z) the acquisition of assets or stock of another entity, in each case, other than a transaction:
(i) Which results in the Companys voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Companys assets or otherwise succeeds to the business of the Company (the Company or such person, the Successor Entity)) directly or indirectly, at least a majority of the combined voting power of the Successor Entitys outstanding voting securities immediately after the transaction, and
(ii) After which no person or group beneficially owns voting securities representing fifty percent (50%) or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this Section 1.5(c)(ii) as beneficially owning fifty percent (50%) or more of the combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or
(d) Approval by the Companys stockholders of a liquidation or dissolution of the Company.
Notwithstanding the foregoing, for purposes of the Plan, in no event will a Change in Control be deemed to have occurred if such transaction or event does not constitute a change in control event, as defined in Treasury Regulation Section 1.409A-3(i)(5).
1.6 Code shall mean the Internal Revenue Code of 1986, as amended and any successor statute thereto.
1.7 Committee shall mean one or more committees or subcommittees of the Board, which may include one or more members of the Board or executive officers of the Company, to the extent permitted by applicable laws and Rule 16b-3 promulgated under the Exchange Act.
1.8 Common Stock shall mean the common stock of the Company, par value $0.01 per share.
1.9 Company shall mean Claros Mortgage Trust, Inc. and any corporate successors.
1.10 Compensation Program shall mean the Claros Mortgage Trust, Inc. Non-Employee Director Compensation Program, as the same may be amended and/or amended and restated from time to time.
1.11 Consultant shall mean any consultant or advisor of the Company or any Parent, Subsidiary or Affiliate of the Company.
1.12 Deferred Compensation Account shall mean an account maintained for each Participant who makes a Deferral Election as described in Articles II and III.
1.13 Deferred Stock Unit shall mean a notional unit representing the right to receive one share of Common Stock, that is received by a Participant pursuant to this Plan and provides for the deferred receipt of Eligible Compensation.
1.14 Director shall mean a member of the board of directors (or similar governing body) of the Company, the Manager or any Parent, Subsidiary or Affiliate of the Company or the Manager, in each case, who is also not an Employee of the Company, the Manager, or any Parent, Subsidiary or Affiliate of the Company or the Manager, as applicable.
1.15 Effective Date shall mean May 24, 2022.
1.16 Eligible Compensation shall mean, with respect to any Year, with respect to a Director, any Cash Fee earned or any Equity Award granted during such Year, and with respect to any Employee or Consultant, any Equity Award granted during such Year.
1.17 Eligible Person shall mean any Employee, Consultant or Director, as determined by the Administrator.
2
1.18 Employee shall mean any officer or other employee (within the meaning of Section 3401(c) of the Code) of the Company, the Manager or any Parent, Subsidiary or Affiliate of the Company or the Manager.
1.19 Equity Awards shall mean any equity-based compensation award granted to an Eligible Person pursuant to the Incentive Plan.
1.20 Equity Restructuring shall mean, as determined by the Administrator, a non-reciprocal transaction between the Company and its stockholders, such as a stock dividend, stock split, spin-off or recapitalization through a large, nonrecurring cash dividend, or other large, nonrecurring cash dividend, that affects the shares of Common Stock (or other securities of the Company) or the share price of Common Stock (or other securities of the Company) and causes a change in the per share value of the Common Stock underlying outstanding Deferred Stock Units.
1.21 Exchange Act shall mean the Securities Exchange Act of 1934, as amended.
1.22 Fair Market Value shall mean, as of any date, the value of a share of Common Stock determined as follows: (a) if the Common Stock is listed on any established stock exchange, its Fair Market Value will be the closing sales price for such Common Stock as quoted on such exchange for such date, or if no sale occurred on such date, the last day preceding such date during which a sale occurred, as reported in The Wall Street Journal or another source the Administrator deems reliable; (b) if the Common Stock is not traded on a stock exchange but is quoted on a national market or other quotation system, the closing sales price on such date, or if no sales occurred on such date, then on the last date preceding such date during which a sale occurred, as reported in The Wall Street Journal or another source the Administrator deems reliable; or (c) without an established market for the Common Stock, the Administrator will determine the Fair Market Value in its discretion.
1.23 Incentive Plan shall mean the Claros Mortgage Trust, Inc. 2016 Incentive Award Plan, or any other applicable Company equity incentive plan then-maintained by the Company, in each case, as may be amended and/or amended and restated from time to time.
1.24 Manager shall mean Claros REIT Management LP.
1.25 Parent, with respect to an entity (the Subject Entity), shall mean any other entity, whether domestic or foreign, in an unbroken chain of entities ending with the Subject Entity if each of the entities other than the Subject Entity beneficially owns, at the time of the determination, securities or interests representing more than fifty percent (50%) of the total combined voting power of all classes of securities or interests in one of the other entities in such chain.
1.26 Participant shall mean a person who has made a Deferral Election pursuant to the Plan.
1.27 Person shall mean an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority or other entity of whatever nature.
1.28 Plan shall mean this Deferred Compensation Plan, as it may be amended and/or amended and restated from time to time.
1.29 Section 409A shall mean Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder.
3
1.30 Separation from Service shall mean a separation from service (within the meaning of Section 409A).
1.31 Subsidiary, with respect to an entity (the Subject Entity), shall mean (a) a corporation, association or other business entity of which fifty percent (50%) or more of the total combined voting power of all classes of capital stock is owned, directly or indirectly, by the Subject Entity and/or by one or more Subsidiaries, (b) any partnership or limited liability company of which fifty percent (50%) or more of the equity interests are owned, directly or indirectly, by the Subject Entity and/or by one or more Subsidiaries, and (c) any other entity not described in clauses (a) or (b) above of which fifty percent (50%) or more of the ownership and the power (whether voting interests or otherwise), pursuant to a written contract or agreement, to direct the policies and management or the financial and the other affairs thereof, are owned or controlled by the Subject Entity and/or by one or more Subsidiaries.
1.32 Year shall mean any calendar year.
ARTICLE II.
PURPOSE; DEFERRAL ELECTIONS
2.1 Purpose. The purpose of this Plan is to provide Eligible Persons with an opportunity to defer payment of all or a portion of their Eligible Compensation, as set forth herein.
2.2 Deferral Elections. An Eligible Person may elect to defer payment of all or a specified portion of any Eligible Compensation by filing a written election with the Company on a form prescribed by the Company as follows (such an election, a Deferral Election):
(a) On or before December 31 of any Year, an Eligible Person may elect to defer all or any portion of any Eligible Compensation earned by or granted to (as applicable) such Eligible Person during any Year following the Year in which the Deferral Election was made, subject to Sections 2.2(b) and (c) below.
(b) Notwithstanding Section 2.2(a), with respect to any Year in which a Director is initially elected or appointed to serve on the Board, or in which an Employee or Consultant is determined to be an Eligible Person, such Eligible Person may elect no later than 30 days after the commencement of such services or such determination, as applicable, to defer all or any portion of any Eligible Compensation earned by or granted to (as applicable) such Eligible Person following the later of (i) the date of the commencement of services or such determination, as applicable and (ii) the date such Eligible Persons irrevocable Deferral Election is filed with the Company.
(c) Notwithstanding Section 2.2(a), any Eligible Person who is first eligible to participate in this Plan on the Effective Date may make an initial Deferral Election no later than 30 days after the Effective Date to defer all or any portion of any Eligible Compensation earned by or granted to (as applicable) such Eligible Person following the later of (i) the Effective Date and (ii) the date such Eligible Persons irrevocable Deferral Election is filed with the Company.
(d) In each applicable Deferral Election form, the Eligible Person shall specify, as applicable, (i) with respect to each participating Directors Cash Fees, the portion of any such Cash Fees which will be subject to deferral hereunder, (ii) with respect to each participating Eligible Persons Equity Award(s), whether all or none of any such Equity Award(s) will be subject to deferral hereunder and (iii) with respect to any dividend equivalents in respect of any Deferred Stock Units granted under the Plan, whether such dividend equivalents will be subject to deferral hereunder (any such deferred compensation, together, the Deferred Compensation).
4
2.3 Duration of Deferral Elections. Each Deferral Election shall continue in effect from Year to Year unless otherwise terminated in accordance with Article V or by the Participant by delivery of a written notice to the Administrator prior to January 1 of the Year in which such termination is first to become effective.
ARTICLE III.
DEFERRED COMPENSATION ACCOUNTS
3.1 Deferred Compensation Accounts. The Company shall maintain a bookkeeping Deferred Compensation Account for the Deferred Compensation of each Participant. With respect to any Deferred Compensation deferred by a Participant hereunder, such Deferred Compensation shall be denominated in Deferred Stock Units.
3.2 Crediting of Director Cash Fees. A participating Directors Cash Fees that are deferred hereunder shall be credited to his or her Deferred Compensation Account in the form of Deferred Stock Units on the date the deferred Cash Fees would otherwise have been paid. On such date, the Company shall credit to the Deferred Compensation Account a number of Deferred Stock Units determined by dividing (i) the portion of the Cash Fees that the participating Director elected to defer, by (ii) the Fair Market Value of a share of Common Stock on such date, rounded down to the nearest whole Deferred Stock Unit. A participating Director will be fully vested in each Deferred Stock Unit that relates to deferred Cash Fees.
3.3 Crediting of Equity Awards. A Participants Equity Awards that are deferred hereunder shall be credited to his or her Deferred Compensation Account in an equal number of Deferred Stock Units. The Deferred Stock Units related to such deferred Equity Award shall be subject to the same vesting or other forfeiture restrictions that would have otherwise applied to such Equity Award. In the event the Participant forfeits Deferred Stock Units in accordance with the foregoing, his or her Deferred Compensation Account shall be debited for the number of Deferred Stock Units forfeited.
3.4 Dividend Equivalents. Each Deferred Stock Unit credited to a Participants Deferred Compensation Account shall carry with it a right to receive dividend equivalent payments upon payment by the Company of dividends on shares of Common Stock in the same form and in an amount equal to the amount of such dividends and may be subject to deferral under the Plan as determined by the Administrator in its sole discretion. A Participants dividend equivalent payments that are deferred hereunder shall be credited to his or her Deferred Compensation Account in the form of Deferred Stock Units on the date the deferred dividend equivalent payments would otherwise have been paid, in an amount equal to, with respect to each related Deferred Stock Unit, a number of Deferred Stock Units equal to (i) the per share value of the dividend so paid divided by (ii) the Fair Market Value per share of Common Stock on the date such dividend was paid. To the extent required by the applicable Award Agreement (as defined in the Incentive Plan) evidencing an Equity Award deferred hereunder, the Deferred Stock Units credited with respect to such dividend equivalent shall be subject to the same vesting or other forfeiture restrictions that would have otherwise applied to such dividend equivalent payments.
3.5 Adjustments. If adjustments are made to the outstanding shares of Common Stock as a result of an Equity Restructuring, an appropriate adjustment also will be made in the number of Deferred Stock Units credited to each Participants Deferred Compensation Account and/or to the number and kind of shares for which such Deferred Stock Units are outstanding.
ARTICLE IV.
PAYMENT OF DEFERRED COMPENSATION
4.1 Payment Events. Subject to Section 4.5, payment of any Deferred Stock Units to a Participant shall become payable on the earliest to occur of the following events (the Payment Event): (i) the date of an In-Service Distribution (if applicable pursuant to the Deferral Election); (ii) the Participants Separation
5
from Service; or (iii) a Change in Control. To the extent included in a Deferral Election, a Deferral Election may permit a Participant to elect to receive payment of the Deferred Stock Units while the Participant is still a Director, Consultant or Employee, as applicable, (an In-Service Distribution) in a lump sum within 45 days following the date that is three, five or ten years following the last day of the applicable Plan Year.
4.2 Timing and Form of Payment.
(a) Amounts contained in a Participants Deferred Compensation Account will, subject to Section 4.5 below, be distributed in a lump sum within 45 days following the applicable Payment Event (in any case, such payment date, the Payment Date), in accordance with the terms and conditions set forth herein. Notwithstanding anything to the contrary contained herein, the exact Payment Date shall be determined by the Company in its sole discretion (and the Participant shall not have the right to designate the time of payment).
(b) Amounts credited to a Deferred Compensation Account shall be paid in the form of one whole share of Common Stock for each Deferred Stock Unit that has vested in accordance with its terms as of the applicable Payment Date; provided, that, (i) the Company may choose in its discretion to pay the Participant cash in lieu of all or a portion of the shares of Common Stock and (ii) no fractional shares of Common Stock shall be issued and the Administrator shall determine, in its sole discretion, whether cash shall be given in lieu of fractional shares of Common Stock or whether such fractional shares of Common Stock shall be rounded up or down. Deferred Stock Units issued to and shares of Common Stock paid to Participants under the Plan shall be issued and paid from the Incentive Plan.
4.3 Designation of Beneficiary. Each Participant shall have the right to designate a beneficiary who is to succeed to his or her right to receive payments hereunder in the event of the Participants death (each, a Designated Beneficiary). Any Designated Beneficiary will receive payments in the same manner as the applicable Participant if he or she had lived. In the event of a Participant failing to designate a beneficiary under this Section 4.3 or upon the death of a Designated Beneficiary without a designated successor, the balance of the amounts contained in the Participants Deferred Compensation Account, if any, shall be payable in accordance with Section 4.2 to the Participants estate in full. No designation of a beneficiary or change in beneficiary shall be valid unless in writing signed by the Participant and filed with the Administrator. A Designated Beneficiary may be changed without the consent of any prior beneficiary.
4.4 Permissible Acceleration. Notwithstanding Sections 4.1 and 4.2, all or a portion of a Participants Deferred Compensation Account may be distributed prior to the applicable Payment Date upon the occurrence of one or more of the events specified in Treasury Regulation Section 1.409A-3(j)(4), as determined by the Administrator.
4.5 Section 409A Delay. Notwithstanding any contrary provision in the Plan, any payment required to be made hereunder to a Participant who is a specified employee (as defined under Section 409A and as the Administrator determines) upon his or her Separation from Service will, to the extent necessary to avoid taxes under Section 409A(a)(2)(B)(i) of the Code, be delayed for the six-month period immediately following such Separation from Service (or, if earlier, until the specified employees death) and will instead be paid (as set forth herein) on the day immediately following such six-month period or death or as soon as administratively practicable thereafter (without interest). Notwithstanding any contrary provision of the Plan, any payment of nonqualified deferred compensation under the Plan that may be made in installments shall be treated as a right to receive a series of separate and distinct payments.
4.6 Election to Further Defer Payment. To the extent all or a portion of a Participants Deferred Compensation is or may become payable on or in connection with an In-Service Distribution, as set forth in the applicable Deferral Election, such Participant may change such In-Service Distribution to a later date by completing and delivering a new, written Deferral Election to the Administrator, subject to the following limitations (a Subsequent Deferral Election):
(a) The Subsequent Deferral Election shall not take effect until at least 12 months after the date on which the Subsequent Deferral Election is made in accordance with Section 409A(a)(4)(C)(i) of the Code and the Treasury Regulations thereunder;
6
(b) The Participants new In-Service Distribution set forth in the Subsequent Deferral Election may not be less than five years from the Payment Date otherwise applicable to the prior In-Service Distribution, as determined in accordance with Section 409A(a)(4)(C)(ii) of the Code and the Treasury Regulations thereunder;
(c) The Subsequent Deferral Election shall not be made less than 12 months prior to the Payment Date otherwise applicable to the prior In-Service Distribution in accordance with Section 409A(a)(4)(C)(iii) of the Code and the Treasury Regulations thereunder; and
(d) The Subsequent Deferral Election shall be made in accordance with Section 409A(a)(4)(C) of the Code and the Treasury Regulations thereunder.
ARTICLE V.
ADMINISTRATION; EFFECTIVENESS, AMENDMENT AND TERMINATION OF PLAN
5.1 Plan Administrator. The Plan will be administered by the Administrator. The books and records to be maintained for the purpose of the Plan shall be maintained by the Company at its expense. All expenses of administering the Plan shall be paid by the Company.
5.2 Effective Date. The Plan was adopted by the Board effective as of the Effective Date.
5.3 Plan Amendment; Termination. The Board may amend, suspend, or terminate the Plan at any time and for any reason. No amendment, suspension, or termination will, without the consent of the Participant, materially impair rights or obligations under any Deferred Stock Units previously awarded to the Participant under the Plan, except as provided below. The Board may terminate the Plan and distribute the Deferred Compensation Accounts to participants in accordance with and subject to the rules of Treasury Regulation Section 1.409A-3(j)(4)(ix), or successor provisions, and any generally applicable guidance issued by the Internal Revenue Service permitting such termination and distribution.
ARTICLE VI.
MISCELLANEOUS
6.1 Limitations on Transferability. Except to the extent required by law, the right of any Participant or any beneficiary thereof to any benefit or to any payment hereunder shall not be subject in any manner to attachment or other legal process for the debts of such Participant or beneficiary; and any such benefit or payment shall not be subject to alienation, sale, transfer, assignment or encumbrance.
6.2 Limitations on Liability. No member of the Board and no Employee or Consultant shall be liable to any person for any action taken or omitted in connection with the administration of the Plan unless attributable to his own fraud or willful misconduct, and the Company, the Manager or any Parent, Subsidiary or Affiliate of the Company or the Manager shall not be liable to any person for any such action unless attributable to fraud or willful misconduct on the part of a member of the Board or Employee or Consultant.
7
6.3 Rights as a Stockholder. Deferred Stock Units shall not entitle any Participant or other person to rights of a stockholder of the Company or any of its Affiliates with respect to such Deferred Stock Units unless and until any shares of Common Stock have been issued to the holder thereof in respect of such Deferred Stock Units pursuant to Article IV hereof.
6.4 Limitation on Participants Rights.
(a) The Company shall not be required to acquire, reserve, segregate or otherwise set aside any shares of its Common Stock for the payment of its obligations under the Plan, but shall make available as and when required a sufficient number of shares of its Common Stock to meet the needs of the Plan, subject to the terms and conditions of the Incentive Plan.
(b) Nothing contained herein shall be deemed to create a trust of any kind or any fiduciary relationship. To the extent that any person acquires a right to receive payments from the Company under the Plan, such right shall be no greater than the right of any unsecured general creditor of the Company.
6.5 Severability. If any portion of the Plan or any action taken under it is held illegal or invalid for any reason, the illegality or invalidity will not affect the remaining parts of the Plan, and the Plan will be construed and enforced as if the illegal or invalid provisions had been excluded, and the illegal or invalid action will be null and void.
6.6 Governing Documents. If any contradiction occurs between the Plan and any applicable Deferral Election form or other written agreement between a Participant and the Company that the Administrator has approved, the Plan will govern, unless it is expressly specified in such agreement or other written document that a specific provision of the Plan will not apply.
6.7 Governing Law. The Plan will be governed by and interpreted in accordance with the laws of the State of Maryland, disregarding any states choice-of-law principles requiring the application of a jurisdictions laws other than the State of Maryland. The Plan is intended to be construed so that participation in the Plan will be exempt from Section 16(b) of the Securities Exchange Act of 1934, as amended, pursuant to regulations and interpretations issued from time to time by the Securities and Exchange Commission.
6.8 Titles and Headings. The titles and headings in the Plan are for convenience of reference only and, if any conflict, the Plans text, rather than such titles or headings, will control.
6.9 Conformity to Securities Laws. Each Participant acknowledges that the Plan is intended to conform to the extent necessary with applicable laws. Notwithstanding anything herein to the contrary, the Plan will be administered only in conformance with applicable laws. To the extent applicable laws permit, the Plan will be deemed amended as necessary to conform to applicable laws (subject to Section 409A).
6.10 Relationship to Other Benefits. No payment under the Plan will be taken into account in determining any benefits under any pension, retirement, savings, profit sharing, group insurance, welfare or other benefit plan of the Company except as expressly provided in writing in such other plan or an agreement thereunder.
8
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Claros Mortgage Trust, Inc. of our report dated March 15, 2022 relating to the financial statements and financial statement schedules, which appears in Claros Mortgage Trust, Inc.s Annual Report on Form 10-K for the year ended December 31, 2021.
/s/ PricewaterhouseCoopers LLP
Boston, MA
May 27, 2022
Exhibit 107.1
CALCULATION OF FILING FEE TABLE
Form S-8
(Form Type)
Claros Mortgage Trust, Inc.
(Exact name of registrant as specified in its charter)
Table 1: Newly Registered Securities
Security Type | Security Class Title |
Fee Calculation Rule |
Amount to be Registered (1) |
Proposed Maximum Offering Price Per Share |
Proposed Maximum Aggregate Offering Price |
Fee Rate |
Amount of Registration Fee | |||||||
Equity | Common Stock, $0.01 par value per share | Rule 457(c) and Rule 457(h) | 8,281,594 (2) | $20.50 (3) | $169,938,308.88 (3) | $92.70 per $1,000,000 | $15,753.29 | |||||||
Total Offering Amounts | $169,938,308.88 | $15,753.29 | ||||||||||||
Total Fee Offsets (4) | $0 | |||||||||||||
Net Fee Due | $15,753.29 |
(1) | Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the Securities Act), this Registration Statement shall also cover any additional shares of Common Stock, par value $0.01 (Common Stock), of Claros Mortgage Trust, Inc. (the Registrant) that become issuable under the Registrants Claros Mortgage Trust, Inc. 2016 Incentive Award Plan (the Plan) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of Common Stock. |
(2) | Represents 8,281,594 shares of Common Stock authorized for future issuance under the Plan. |
(3) | Estimated in accordance with Rule 457(c) and Rule 457(h) under the Securities Act solely for the purpose of calculating the registration fee. The maximum price per share and maximum aggregate offering price are based upon the average of the high and low prices of the Common Stock as reported on the New York Stock Exchange on May 23, 2022, which date is within five business days prior to filing this Registration Statement. |
(4) | The Registrant does not have any fee offsets. |