AMENDED AND RESTATED SHARE REDEMPTION PROGRAM
Effective as of September 12, 2019
General
While you should view your investment in our common stock as long term with limited liquidity, we have adopted a share redemption program, whereby on a quarterly basis, stockholders may request that we redeem all or any portion of their shares of our common stock. Due to the illiquid nature of investments in real estate, we may not have sufficient liquid resources to fund redemption requests. In addition, we have established limitations on the amount of funds we may use for redemptions during any calendar quarter. See "Redemption Limitations" below. Further, our board of directors has the right to modify or suspend the share redemption program upon 30 days’ notice at any time if it deems such action to be in our best interest. Any such modification or suspension will be communicated to stockholders through our filings with the SEC. You may request that we redeem shares of our common stock through your financial advisor or directly with our transfer agent. Under our share redemption program, we will only redeem shares as of the closing of the last business day of that quarter (a "Redemption Date"). To have your shares redeemed, your redemption request and required documentation must be received in good order by 4:00 p.m. (Eastern time) on the second to last business day of the applicable quarter. Redemption requests received and processed by our transfer agent will be effected at a redemption price equal to the NAV per share for the applicable class generally on the 13th
of the month prior to quarter end (unless the 13th is not at least ten business days prior to the second to last business day of the applicable quarter, in which case the redemption price will be equal to the NAV per share on a date that is at least ten business days prior to the second to last business day of such quarter) (the "Redemption NAV"). If a redemption request is received after such time, the redemption order will be carried forward to the next quarter's Redemption Date at the NAV per share applicable to that quarter’s redemption, unless such request is withdrawn prior to that Redemption Date. Investors will have at least 20 business days (from the last business day of the previous quarter to the second to last business day of the current quarter) during which to decide whether to request a redemption of their shares as of the end of the current quarter. Investors may withdraw their redemption requests before they have been processed by notifying a customer service representative available on our toll-free information line by 4:00 p.m. Eastern time on the last business day of the applicable quarter. Settlements of share redemptions generally will be made within seven business days after the Redemption Date.
Minimum Account Redemptions
In the event that any stockholder fails to maintain the minimum balance of $2,500 of shares of our common stock, we may redeem all of the shares held by that stockholder at the redemption price in effect on the date we determine that the stockholder has failed to meet the minimum balance. Minimum account redemptions will apply even in the event that the failure to meet the minimum balance is caused solely by a decline in our NAV.
Sources of Funds for Redemptions
We may, after taking the interests of our company as a whole and the interests of our remaining stockholders into consideration, use proceeds from any available sources at our disposal to satisfy redemption requests, subject to the limitation on the amount of funds we may use described below under "—Redemption Limitations." Potential sources of funding redemptions include, but are not limited to, cash on hand, cash available from borrowings, cash from the sale of shares of our common stock and cash from liquidations of investments, to the extent that such funds are not otherwise dedicated to a particular
use, such as working capital, cash distributions to stockholders, purchases of real property, or debt-related or other investments. Our board of directors has no obligation to use other sources to redeem shares of our common stock in any circumstances.
Redemption Limitations
Under our share redemption program, shares are not eligible for redemption for the first year after purchase except upon death or qualifying disability of a stockholder; provided, however, shares issued pursuant to our DRP are not subject to the one-year holding period. Only those stockholders who purchased their shares from us or received their shares from us (directly or indirectly) through one or more non-cash transactions may be able to participate in the share redemption program. In other words, once our shares are transferred for value by a stockholder, the transferee and all subsequent holders of the shares are not eligible to participate in the share redemption program
.
In addition, our share redemption program generally imposes a quarterly cap on aggregate redemptions of our shares equal to a value of up to 5% of the aggregate NAV of the outstanding shares as of the last business day of the previous quarter; provided, however, that every quarter each class of our common stock will be allocated capacity within such aggregate limit to allow stockholders in such class to redeem shares equal to at least 5% of the aggregate NAV of such share class as of the last calendar day of the previous quarter.
In the event that we determine to redeem some but not all of the shares submitted for redemption during any quarter, whether due to the quarterly cap or otherwise, shares submitted for redemption during such quarter will be redeemed on a pro rata basis. With respect to any pro rata treatment, redemption requests following the death or qualifying disability of a stockholder will be considered first, as a group, followed by requests where pro rata redemption would result in a stockholder owning less than the minimum balance of $2,500 of shares of our common stock, which will be redeemed in full to the extent there are available funds, with any remaining available funds allocated pro rata among all other redemption requests. All unsatisfied redemption requests (or portion thereof) will be treated as a request for redemption the following quarter, unless such request is withdrawn prior to such following quarter’s Redemption Date.
In order for a disability to be considered a "qualifying disability," (1) the stockholder must receive a determination of disability based upon a physical or mental condition or impairment arising after the date the stockholder acquired the shares to be redeemed, and (2) such determination of disability must be made by the governmental agency responsible for reviewing the disability retirement benefits that the stockholder could be eligible to receive. The "applicable governmental agencies" are limited to the following: (1) the Social Security Administration; (2) the U.S. Office of Personnel Management; or (3) the Veteran's Benefits Administration.
Disability determinations by governmental agencies for purposes other than those listed above, including but not limited to worker’s compensation insurance, administration or enforcement of the Rehabilitation Act or Americans with Disabilities Act, or waiver of insurance premiums, will not entitle a stockholder to the special redemption terms applicable to stockholders with a “qualifying disability” unless otherwise permitted by us. Redemption requests following an award by the applicable governmental agency of disability benefits must be accompanied by: (1) the investor’s initial application for disability benefits and (2) a Social Security Administration Notice of Award, a U.S. Office of Personnel Management determination of disability, a Veteran’s Benefits Administration record of disability-related discharge or such other documentation issued by the applicable governmental agency that we deem acceptable and demonstrates an award of the disability benefits.
The following disabilities do not entitle a worker to Social Security disability benefits:
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disabilities occurring after the legal retirement age;
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temporary disabilities; and
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disabilities that do not render a worker incapable of performing substantial gainful activity.
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Should redemption requests, in the business judgment of our board of directors, place an undue burden on our liquidity, adversely affect our operations or risk having an adverse impact on us as a whole, or should we otherwise determine that investing our liquid assets in real properties or other illiquid investments rather than redeeming our shares is in the best interests of us as a whole, we may choose to redeem fewer shares in any particular quarter than have been requested to be redeemed, or none at all. Further, our board of directors may modify, suspend or terminate our share redemption program if it deems such action to be in our best interest. Material modifications, including any amendment to the 5% quarterly limitation on redemptions, to and suspensions of the share redemption program will be promptly disclosed to stockholders in a prospectus supplement (or post-effective amendment if required by the Securities Act) or special or periodic report filed by us. In addition, we may determine to suspend the share redemption program due to regulatory changes, changes in law or if we become aware of undisclosed material information that we believe should be publicly disclosed before shares are redeemed. Once the share redemption program is suspended, our board of directors must affirmatively authorize the recommencement of the plan before stockholder requests will be considered again.
IRS regulations require us to determine and disclose on Form 1099-B the adjusted cost basis for shares of our stock sold or redeemed. Although there are several available methods for determining the adjusted cost basis, unless you elect otherwise, which you may do by checking the appropriate box on the subscription agreement or calling our customer service number at 1-888-926-2688, we will utilize the first-in-first-out method.
The shares we redeem under our share redemption program will be canceled and return to the status of authorized but unissued shares. We do not intend to resell such shares to the public unless they are first registered with the SEC under the Securities Act and under appropriate state securities laws or otherwise sold in compliance with such laws.
GRIFFIN CAPITAL ESSENTIAL ASSET REIT, INC.
CODE OF ETHICS AND BUSINESS CONDUCT
Amended and Restated As of August 8, 2019
I.
Covered Persons/Purpose of the Code
This Code of Ethics and Business Conduct (the “
Code
”) for Griffin Capital Essential Asset REIT, Inc. (the “
Company
”) has been adopted by the Company’s Board of Directors (the “
Board
” or “
Board of Directors
”).
This Code applies to (i) officers of the Company, (ii) all members of the Company’s Board of Directors, and (iii) employees of the Company (collectively, the “
Covered Persons
” and each a “
Covered Person
”) for the purpose of promoting:
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honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships;
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avoidance of conflicts of interest, including disclosure to an appropriate person or committee of any material transaction or relationship that reasonably could be expected to give rise to such a conflict;
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full, fair, accurate, timely and understandable disclosure in reports and documents that the Company files with, or submits to, the Securities and Exchange Commission (“SEC”) and in other public communications made by the Company;
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compliance with applicable laws and governmental rules and regulations;
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the prompt internal reporting of violations of the Code to an appropriate person or persons identified in the Code;
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accountability for adherence to the Code; and
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guidance to Covered Persons to help them recognize and deal with ethical issues.
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For purposes of Section 406 of the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder, this Code shall be the code of ethics that applies to the Company’s principal executive officer, principal financial officer, principal accounting officer or controller or persons performing similar functions.
II.
Conflicts of Interest
Covered Persons should be scrupulous in avoiding conflicts of interest with regard to the interests of the Company. A “conflict of interest” occurs when a Covered Person’s private interest or other business interest interferes in any way - or even appears to interfere - with the interests of, or his or her service to, the Company. For example, a conflict of interest would arise if a Covered
Person, or a member of his or her family, receives improper personal benefits as a result of his or her position with the Company.
The following list provides examples of prohibited conflicts of interest under this Code, but Covered Persons should keep in mind that these examples are not exhaustive. Each Covered Person must:
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not use his or her personal influence or personal relationships improperly to influence business decisions or financial reporting by the Company whereby the Covered Person would benefit personally to the detriment of the Company;
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not cause the Company to take action, or fail to take action, for the individual personal benefit of the Covered Person to the detriment of the Company;
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not receive personal benefits from somebody other than the Company as a result of his or her position with the Company which are not generally available to other Covered Persons of the Company;
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not take actions or have interests that may make it difficult for the Covered Person to perform his or her work with the Company objectively and effectively;
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not use non-public Company, tenant or vendor information for his or her personal gain or the personal gain of his or her relatives or friends;
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report at least annually any affiliations or other relationships related to conflicts of interest; and
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not engage in any activity that is competitive with the business activities and operations conducted from time to time by the Company.
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The overarching principle is that the personal interest of a Covered Person should not be placed improperly before the interest of the Company. Additionally, federal securities laws prohibit personal loans to directors and executive officers by the Company.
In order to avoid situations in which a conflict of interest involving a Covered Person may result in an improper benefit, all transactions involving a conflict of interest must be brought to the attention of the Chairman of the Nominating and Corporate Governance Committee for review and approval. Upon the approval of the Nominating and Corporate Governance Committee, the actual or potential conflict of interest transaction in question must be approved by a majority of the Board of Directors (including a majority of the Independent Directors) not otherwise interested in the transaction as fair and reasonable to the Company and on terms not less favorable to the Company than those available from unaffiliated third parties. Conflicts of interest may not always be clear-cut, so if a Covered Person has a question, he or she shall promptly bring it to the attention of the Chairman of the Nominating and Corporate Governance Committee of the Board of Directors of the Company. Examples of potential conflicts of interest include:
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service as a director on the board of any other business organization;
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the receipt of non-nominal gifts;
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the receipt of entertainment from any company with which the Company has current or prospective business dealings, including investments in such companies, unless such entertainment is business-related, reasonable in cost, appropriate as to time and place, and not so frequent as to raise any questions of impropriety; or
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any ownership interest in, or any consulting or employment relationship with, any of the Company’s unaffiliated service providers.
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The Company encourages civic, charitable, educational and political activities as long as they do not interfere with the performance of the duties of an officer or director of the Company. Each officer or director of the Company shall contact the Chairman of the Nominating and Corporate Governance Committee of the Board of Directors before agreeing to participate in any civic or political activities that are likely to unduly interfere with the performance of his or her duties as an officer or director of the Company.
III.
Corporate Opportunities
Covered Persons owe a duty to the Company to advance the Company’s legitimate interests when the opportunity to do so arises. Covered Persons are prohibited from (i) taking for themselves personally opportunities that are discovered through the use of corporate property, information or position; (ii) using corporate property, information or position for personal gain; and (iii) competing with the Company. Competing with the Company may involve engaging in the same line of business as the Company or any situation where the officer or director takes away from the Company opportunities for sales or purchases of products, properties, services or other interests.
IV.
Confidentiality
Covered Persons shall maintain the confidentiality of confidential information entrusted to them by the Company or parties with whom the Company transacts business, except when disclosure is authorized by the Chairman of the Audit Committee, Executive Chairman, Chief Executive Officer, Chief Financial Officer or Chief Legal Officer of the Company or required by laws, regulations or legal proceedings. Whenever feasible, Covered Persons should consult with the Compliance Officer (as set forth in Section XV) or the Chairman of the Audit Committee if they believe they have a legal obligation to disclose confidential information. Confidential information includes all non-public information concerning the Company, including its business, marketing, properties, rent rolls, business strategies, financial information, forecasts, designs, databases, personnel information, tenant and supplier lists and data and similar types of information provided by tenants, suppliers and business partners, and all other information the disclosure of which might be harmful to the Company or parties with which the Company transacts business, including, without limitation, information that could (i) be of use to competitors of the Company, (ii) have an adverse
effect on the Company’s business relationships or otherwise adversely affect the reputation or perception of the Company in the business, financial, investment or real estate community, (iii) impair the value of any of the Company’s assets, or (iv) expose the Company to legal claims, regulatory actions or other forms of liability. Covered Persons shall not share confidential information with anyone outside of the Company, including family and friends who do not need to know the information to carry out their duties to the Company. Covered Persons remain under an obligation to keep all information confidential even if their relationship with the Company ends. All public and media communications involving the Company shall be handled exclusively by the Executive Chairman, Chief Executive Officer, Chief Financial Officer or Chief Legal Officer of the Company.
All reports and records prepared or maintained pursuant to this Code will be considered confidential and shall be maintained and protected accordingly. Except as otherwise required by law or regulation or this Code, such matters shall not be disclosed to anyone other than the Board, the Audit Committee and legal advisers.
This obligation of confidentiality does not prohibit any Covered Person from reporting any possible violation of law or regulation to any government agency or entity during or following such Covered Person’s employment, without providing notice to (or obtaining the consent of) the Company.
V.
Honest and Ethical Conduct
The Company’s policy is to promote high standards of integrity by conducting its affairs honestly and ethically. Each Covered Person must act with integrity and observe the highest ethical standards of business conduct in his or her dealings with the Company’s tenants, vendors, suppliers, partners, service providers, competitors, employees and anyone else with whom he or she has contact in the course of performing his or her job.
VI.
Insider Trading
Covered Persons are prohibited from buying or selling the Company’s securities while the Covered Person is aware of material nonpublic information relating to the Company. Material information is any information that a reasonable investor would consider important in making a decision to buy, hold or sell securities. In addition, a Covered Person may not directly or through family members or other persons or entities, (a) buy or sell securities of the Company or engage in any other action to take personal advantage of that information, or (b) pass that information on to others outside the Company, including family and friends. Trading in securities of a company doing business with the Company is subject to the same restrictions. Covered Persons are subject to the terms and conditions of the Company’s Insider Trading Policy Statement, dated July 21, 2014, as amended, which contains important additional information regarding trading in the Company’s securities.
VII.
Recordkeeping
All of the Company’s books, records, accounts and financial statements must be maintained in reasonable detail, must appropriately reflect the Company’s transactions and must conform both to applicable legal requirements and to the Company’s system of internal controls. Unrecorded or “off the books” funds or assets should not be maintained unless permitted by applicable law or regulation and authorized by the Audit Committee of the Board of Directors. Records should always be retained or destroyed according to the Company’s record retention policies.
VIII.
Fair Dealing
Each Covered Person shall deal fairly with the Company’s tenants, vendors, service providers, suppliers, competitors, officers and employees. No Covered Person should take unfair advantage of anyone through manipulation, concealment, abuse of privileged information, misrepresentation of material facts or any other unfair dealing or practice. The Company seeks competitive advantages through superior client service, never through unethical or illegal business practices. Stealing proprietary information, possessing trade secret information that was obtained without the owner’s consent, or inducing such disclosures by past or present employees of other companies is prohibited. Covered Persons must disclose, prior to or at their time of hire, the existence of any employment agreement, non-compete or non-solicitation agreement, confidentiality agreement or similar agreement with a former employer that may in any way restrict or prohibit the performance of any duties or responsibilities of their positions with the Company. Copies of such agreements should be provided to the Chief Executive Officer of the Company to permit evaluation of the agreement in light of the Covered Person’s position. In no event shall a Covered Person use any trade secrets, proprietary information or other similar property, acquired in the course of his or her employment with another employer, in the performance of his or her duties for or on behalf of the Company. Whenever the ethical or legal requirements of a situation are unclear, Covered Persons should contact their supervisors or the Compliance Officer.
IX.
Protection and Proper Use of Company Assets
All Covered Persons shall protect the Company’s assets and ensure their efficient and proper use. Theft, carelessness, and waste have a direct impact on the Company’s profitability. All assets of the Company should be used for legitimate business purposes. The Company’s assets may not be used for personal benefit, sold, loaned, given away or disposed of without proper authorization. Permitting the Company property to be damaged, lost or used in an unauthorized manner is strictly prohibited. Covered Persons shall not use corporate or other official stationary for personal purposes.
X.
Foreign Corrupt Practices Act
The United States Foreign Corrupt Practices Act prohibits giving anything of value, directly or indirectly, to foreign government officials or foreign political candidates in order to obtain, retain or direct business. Accordingly, corporate funds, property or anything of value may not be, directly or indirectly, offered or given by a Covered Person or an agent acting on his/her behalf, to a foreign
official, foreign political party or official thereof or any candidate for a foreign political office for the purpose of influencing any act or decision of such foreign person or inducing such person to use his influence or in order to assist in obtaining or retaining business for, or directing business to, any person.
Covered Persons are also prohibited from offering or paying anything of value to any foreign person if it is known or it should have been known that all or part of such payment will be used for the above-described prohibited actions. This provision includes situations when intermediaries, such as affiliates or agents, are used to channel payoffs to foreign officials.
XI.
Disclosure and Compliance
It is the Company’s policy that only senior managers and senior executives of the Company are permitted to disclose material information concerning the Company to the public. This policy is intended to (among other things) avoid inappropriate publicity and ensure that all such information is communicated in a way that is reasonably designed to provide broad, non-exclusionary distribution of information to the public.
Each Covered Person shall be required to:
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familiarize himself with the disclosure requirements generally applicable to the Company;
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not knowingly misrepresent, or cause others to misrepresent, facts about the Company to others, whether within or outside the Company, including to the
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Company’s directors and auditors, and to governmental regulators and self-regulatory organizations;
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to the extent appropriate within his or her area of responsibility, consult with other officers and employees of the Company, with the goal of promoting full, fair, accurate, timely and understandable disclosure in the reports and documents the Company files with, or submits to, the SEC and in other public communications made by the Company;
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promote compliance with the standards and restrictions imposed by applicable laws, rules and regulations;
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comply with the Company’s insider trading policy; and
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comply with any Regulation FD policy of the Company.
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XII.
Accountability
Each officer and director of the Company must:
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upon adoption of the Code (or thereafter as applicable, upon becoming a Covered Person), affirm in writing to the Board that he or she has received, read, and understands the Code; and
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annually thereafter affirm in writing to the Board that he or she has complied with the requirements of the Code.
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Each Covered Person must:
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not retaliate against any other Covered Person or any employees of the Company for reports of potential violations that are made in good faith; and
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notify the Chairman of the Audit Committee or the Compliance Officer promptly if he or she knows of any material violation of this Code.
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Strict adherence to the Code is required. Any violation of this Code or other policies of the Company may result in disciplinary action, up to and including termination of employment.
XIII.
Accounting Complaints
The Company’s policy is to comply with all applicable financial reporting and accounting regulations applicable to the Company. If any Covered Person of the Company has concerns or complaints regarding questionable accounting or auditing matters (including, but not limited to, knowingly providing any false or misleading representation to an auditor) which in any way affects the Company, then he or she is encouraged to submit those concerns or complaints (anonymously, confidentially or otherwise) to the Chairman of the Audit Committee of the Board of Directors in accordance with the Whistleblower Policy of the Company, dated as of August 8, 2019, as amended from time to time.
XIV.
Reporting any Illegal or Unethical Behavior
Covered Persons are encouraged to talk to officers or directors about observed illegal or unethical behavior and, when in doubt, about the best course of action in a particular situation. Employees, officers and directors who are concerned that violations of this Code have occurred or may occur or that other illegal or unethical conduct by other officers, directors or employees of the Company has occurred or may occur should contact (anonymously, confidentially or otherwise) the Compliance Officer of the Code or the Chairman of the Audit Committee of the Board of Directors.
No employee, officer or director will be penalized for making a good-faith report of violations of this Code or other illegal or unethical conduct, nor will the Company permit or tolerate retaliation of any kind against anyone who makes a good-faith report. An employee, officer or director who submits a report in bad-faith, however, may be subject to disciplinary action. If an employee wishes to remain anonymous, he or she may do so.
The Company must ensure prompt and consistent action against violations of this Code. The Company’s enforcement procedures are set forth in the Company’s Whistleblower Policy.
XV.
Administration and Violations of the Code of Ethics and Business Conduct
This Code shall be administered and monitored by the Code’s Compliance Officer. The Compliance Officer shall be the person appointed by the Audit Committee of the Board of Directors to serve as the Whistleblower Officer of the Company. The Compliance Officer will handle the Company’s day-to-day compliance matters, including:
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Receiving, reviewing, investigating and resolving concerns and reports on the matters described in the Code;
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Providing guidance on the meaning and application of the Code; and
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Reporting periodically and as matters arise (if deemed necessary by the Compliance Officer) to management, the disclosure committee of the Company, when established, and the Audit Committee of the Board of Directors on the implementation and effectiveness of the Code and other compliance matters and recommending any updates or amendments to the Code that he or she deems necessary.
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Any questions and further information on this Code should be directed to the Compliance Officer.
Covered Persons are expected to follow this Code at all times. Generally, there should be no waivers of this Code. For members of the Board of Directors and the Company’s executive officers, the Board of Directors shall have the sole and absolute discretionary authority to approve any deviation or waiver from or amendments to this Code. Any such waiver from or amendment to this Code applicable to or directed at the members of the Board of Directors and executive officers shall be disclosed to stockholders as required by the rules promulgated by the SEC under the Securities Exchange Act of 1934, as amended, and other applicable law. No waiver of any provision of the Code with regard to a director or officer will be effective until that waiver has been reported to the person responsible for preparation of the Company’s reports on Form 8-K.
XVI.
Public Company Reporting
As a public company, it is important that the Company’s filings with the SEC and other public disclosures of information be complete, fair, accurate and timely. An officer, director or employee of the Company may be called upon to provide necessary information to ensure that the Company’s public reports are complete, fair, and accurate. The Company expects each officer, director and employee to take this responsibility seriously and to provide prompt, complete, fair and accurate responses to inquiries with respect to the Company’s public disclosure requirements. The Chief Executive Officer, President, Chief Financial Officer, Chief Accounting Officer, people performing similar functions, any of the Company’s directors, other officers, and any employees
who may be participating in the preparation of reports, press releases, forms or other information to be publicly disclosed through filings with the SEC or as mandated by the SEC, are expected to use their diligent efforts to ensure that such reports, press releases, forms or other information are complete, fair, accurate and timely.
XVII.
No Rights Created
This Code is a statement of fundamental principles, policies and procedures that govern Covered Persons in the conduct of Company business. It is not intended to and does not create any legal rights for any customer, tenant, supplier, competitor, stockholder or any other non-employee or entity.
XVIII.
Compliance with Laws, Rules and Regulations
All Covered Persons shall act in accordance with applicable laws, rules and regulations (“
Applicable Laws
”). Many of the Applicable Laws are specifically described herein or in other policies and procedures of the Company.