<PAGE> 1
As filed with the Securities and Exchange Commission on August 13, 1997
File No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EQUITY OFFICE PROPERTIES TRUST
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
Maryland 36-4151656
(State or other jurisdiction of Incorporation of Organization) (I.R.S. Employer Identification No.)
</TABLE>
Two North Riverside Plaza, Suite 2200, Chicago, Illinois 60606 (312) 474-1300
(Address of Principal Executive Offices)
EQUITY OFFICE PROPERTIES TRUST
1997 NON-QUALIFIED EMPLOYEE SHARE PURCHASE PLAN
(Full Title of the Plan)
Stanley M. Stevens
Chief Legal Counsel
Two North Riverside Plaza, Suite 2200
Chicago, Illinois 60606
(Name and Address of Agent for Service)
(312) 466-3300
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Ruth Pinkham Haring, Esq.
Rosenberg & Liebentritt, P.C.
Two North Riverside Plaza, Suite 1600
Chicago, Illinois 60606
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Amount to be Aggregate Price Aggregate Amount of
Title of Securities to be Registered Registered Per Share (1) Offering Price (1) Registration Fee
<S> <C> <C> <C> <C>
Common Shares of Beneficial Interest,
$.01 par value....................... 2,000,000 $30.41 $60,820,000 $18,431
</TABLE>
(1) Estimated solely for purposes of calculating the amount of the
registration fee based upon the average high and low prices reported for
such shares on the New York Stock Exchange on August 6, 1997, pursuant to
Rule 457(h)(1).
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have heretofore been filed by the
Registrant with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), and
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference in this Registration Statement and shall be deemed to
be a part hereof:
(a) Report on Form 8-A dated June 19, 1997 (File No. 1-13115).
All documents subsequently filed by the Registrant with the Commission
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act 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 herein by reference and shall be
deemed a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Sheli Z. Rosenberg, a principal of Rosenberg & Liebentritt, P.C., is a
trustee of Equity Office Properties Trust (the "Company"). Rosenberg &
Liebentritt, P.C. received legal fees from predecessors of the Company of
approximately $273,400, $827,100, $3,480,500 and $3,230,100 for the three
months ended March 31, 1997 and 1996 and the years ended December 31, 1996 and
1995, respectively. Attorneys for Rosenberg & Liebentritt, P.C. beneficially
own less than 1% of the outstanding Common Shares of Beneficial Interest, par
value $.01 per share, of the Company, either directly or upon the exercise of
options.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's officers and trustees are and will be indemnified under
Maryland and Delaware law, the Declaration of Trust and Bylaws of the Company
and the Partnership Agreement of the Operating Partnership against certain
liabilities. The Declaration of Trust of the Company requires it to indemnify
its trustees and officers to the fullest extent permitted from time to time
under Maryland law.
The Declaration of Trust of the Company authorizes it, to the maximum
extent permitted by Maryland law, to obligate itself to indemnify and to pay or
reimburse reasonable expenses in advance of final disposition of a proceeding
to (a) any present or former trustee or officer or (b) any individual who,
while a trustee of the Company and at the request of the Company, serves or has
served as a director, officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or any
other enterprise from and against any claim or liability to which such person
may become subject or which such person may incur by reason of his or her
status as a present or former trustee or officer of the Company. The Bylaws of
the Company obligate it, to the maximum extent permitted by Maryland law, to
indemnify and to pay or reimburse reasonable expenses in advance of final
disposition of a proceeding to (a) any present or former trustee or officer who
is made party to the proceeding by reason of his service in that capacity or
(b) any individual who, while a trustee or officer of the Company and at the
request of the Company, serves or has served another real estate investment
trust, corporation, partnership, joint venture, trust, employee benefit plan or
any other enterprise as a trustee, director, officer or partner of such real
estate investment trust, corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise and who is made a party to the
proceeding by reason of his service in that capacity, against any claim or
liability to which he may become subject by reason of such status. The
Declaration of Trust and Bylaws also permit the Company to indemnify and
advance expenses to any person who served a predecessor of the Company in any
of the capacities described above and to any employee or agent of the Company
or a predecessor of the Company. The Bylaws require the Company to indemnify a
trustee or officer who has been successful, on the merits or otherwise, in the
defense of any proceeding to which he is made a party by reason of his service
in that capacity.
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The Maryland REIT Law permits a Maryland real estate investment trust
to indemnify and advance expenses to its trustees, officers, employees and
agents to the same extent as permitted by the MGCL for directors and officers
of Maryland corporations. The MGCL permits a corporation to indemnify its
present and former directors and officers, among others, against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by them
in connection with any proceeding to which they may be made a party by reason
of their service in those or other capacities unless it is established that (a)
the act of omission of the director or officer was material to the matter
giving rise to the proceeding and (i) was committed in bad faith or (ii) was
the result of active and deliberate dishonesty, (b) the director or officer
actually received an improper personal benefit in money, property or services
or (c) 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 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.
Under the MGCL, as a condition to advancing expenses, as required by the
Bylaws, the Company must first receive (a) a written affirmation by the trustee
or officer of his good faith belief that he has met the standard of conduct
necessary for indemnification by the Company and (b) a written statement by or
on his behalf to repay the amount paid or reimbursed by the Company if it shall
ultimately be determined that the standard of conduct was not met.
The Company has entered into indemnification agreements with each of its
trustees and executive officers. The indemnification agreements require, among
other things, that the Company indemnify its trustees and executive officers to
the fullest extent permitted by law and advance to the trustees and executive
officers all related expenses, subject to reimbursement if it subsequently
determined that indemnification is not permitted. Under these agreements, the
Company must also indemnify and advance all expenses incurred by trustees and
executive officers seeking to enforce their rights under the indemnification
agreements and may cover trustees and executive officers under the Company's
trustees and officers' liability insurance. Although the form of
indemnification agreement offers substantially the same scope of coverage
afforded by law, as a traditional form of contract it may provide greater
assurance to trustees and executive officers that indemnification will be
available.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index which is incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
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 of 1933;
(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 this registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of Offered Shares (if the total dollar
value of Offered Shares 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 the prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in this registration statement;
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provided, however, that subparagraphs (i) and (ii) above do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in the periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities and Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the Offered
Shares offered herein, and the offering of such Offered Shares 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 Offered Shares being registered which remain
unsold at the termination of the offering.
The undersigned Registrant hereby further undertakes that, for the
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in this registration statement shall be deemed to be a new registration
statement relating to the Offered Shares offered herein, and the offering of
such Offered Shares at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to existing provisions or arrangements whereby the
registrant may indemnify a trustee, officer or controlling person of the
registrant against liabilities arising under the Securities Act of 1933, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the 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 trustee, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such trustee, 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 Act and
will be governed by the final adjudication of such issue.
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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 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 August 13, 1997.
EQUITY OFFICE PROPERTIES TRUST
By: /s/ Timothy H. Callahan
-------------------------------------------------------
Timothy H. Callahan, President, Chief Executive Officer
and Trustee
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below, hereby constitutes and appoints Timothy H. Callahan and Sheli Z.
Rosenberg, or either of them, his attorneys-in-fact and agents, with full power
of substitution and resubstitution for him in any and all capacities, to sign
any or all amendments or post-effective amendments to this Registration
Statement, and to file the same, with all exhibits thereto and other documents
in connection therewith or in connection with the registration of the
Securities under the Exchange Act, with the Securities and Exchange Commission,
granting unto each of such attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and
necessary in connection with such matters as fully to all intents and purposes
as he might or could do in person, hereby ratifying and confirming all that
each of such attorneys-in-fact and agents or his 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:
<TABLE>
<CAPTION>
Name Title Date
- ---- ----- ----
<S> <C> <C>
/s/ Samuel Zell
- --------------- Chairman of the Board of Trustees August 13, 1997
Samuel Zell
/s/ Timothy H. Callahan
- ----------------------- President, Chief Executive Officer and Trustee August 13, 1997
Timothy H. Callahan
/s/ Richard Kincaid Chief Financial Officer (principal financial
- ------------------- officer and principal accounting officer) August 13, 1997
Richard Kincaid
/s/ Sheli Z. Rosenberg
- ---------------------- Trustee August 13, 1997
Sheli Z. Rosenberg
/s/ James D. Harper, Jr.
- ------------------------ Trustee August 13, 1997
James D. Harper, Jr.
- ------------------------
Thomas E. Dobrowski Trustee August , 1997
/s/ Peter Linneman
- ------------------ Trustee August 13, 1997
Peter Linneman
/s/ Jerry M. Reinsdorf
- ---------------------- Trustee August 13, 1997
Jerry M. Reinsdorf
- ----------------------
William M. Goodyear Trustee August , 1997
/s/ David K. McKown
- ------------------- Trustee August 13, 1997
David K. McKown
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Exhibit Exhibit Numbered
Number Description Page
- ------- ----------- ------------
<S> <C> <C> <C>
4.1 * Articles of Amendment and Restatement
of Declaration of Trust
4.2 * Bylaws
4.3 Equity Office Properties Trust 1997
Non-Qualified Employee Share Purchase
Plan
5 Opinion of Rosenberg & Liebentritt, P.C.
23.1 Consent of Rosenberg & Liebentritt,
P.C. (included in Exhibit 5)
24 Power of Attorney (filed as part of the
signature page to the Registration
Statement)
</TABLE>
- -------------
* Included as an exhibit to the Registrant's Current Report on Form 8-K
dated August 5, 1997, and incorporated herein by reference.
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<PAGE> 1
Exhibit 4.3
EQUITY OFFICE PROPERTIES TRUST
1997 NON-QUALIFIED EMPLOYEE SHARE PURCHASE PLAN
<PAGE> 2
1. Purpose
The primary purpose of this Plan is to encourage Share ownership by each
Eligible Employee and each Eligible Trustee in the belief that such Share
ownership will increase his or her interest in the success of Equity Office
Properties Trust ("Equity").
2. Definitions
2.1 The term "Account" shall mean the separate bookkeeping account
established and maintained by the Plan Administrator for each Participant for
each Purchase Period to record the contributions made on his or her behalf to
purchase Shares under this Plan.
2.2 The term "Beneficiary" shall mean the person designated as such in
accordance with Section 8.
2.3 The term "Board" shall mean the Board of Trustees of Equity.
2.4 The term "Closing Price" (a) for the first business day of any
Purchase Period shall mean the closing price for a Share as reported for such
day in The Wall Street Journal or in any successor to The Wall Street Journal
or, if there is no such successor, in any publication selected by the Committee
or, if no such closing price is so reported for such day, the first such
closing price which is so reported after such day or, if no such closing price
is so reported during the two week period which begins on the first day of such
Purchase Period, the fair market value of a Share as determined as of the first
day of such Purchase Period by the Committee and (b) for the last business day
of a Purchase Period shall mean the closing price for a Share as reported for
such day in The Wall Street Journal or in any successor to The Wall Street
Journal or, if there is no such successor, in any publication selected by the
Committee or, if no such closing price is so reported for such day, the last
such closing price which is so reported before such day or, if no such closing
price is so reported during the two week period which ends on the last day of
such Purchase Period, the fair market value of a Share as determined as of the
last day of such Purchase Period by the Committee.
2.5 The term "Committee" shall mean the Compensation Committee of the
Board.
2.6 The term "Election Form" shall mean the form which an Eligible
Employee or Eligible Trustee shall be required to properly complete in writing
and timely file at least 15 days prior to the commencement of any Purchase
Period in order to make any of the elections available to an Eligible Employee
or Eligible Trustee under this Plan.
2.7 The term "Eligible Employee" shall mean each officer or employee of a
Participating Employer:
(a) who is shown on the payroll records of a Participating Employer as a
"benefits eligible" employee (i.e., whose customary employment is 20 hours
or more per week), and
(b) who has completed at least six full calendar months of employment with
a Participating Employer.
2.8 The term "Eligible Trustee" shall mean a person who is a member of the
Board.
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2.9 The term "Equity" shall mean Equity Office Properties Trust, a
Maryland real estate investment trust, and any successor to Equity.
2.10 The term "Participant" shall mean (a) for each Purchase Period an
Eligible Trustee or Eligible Employee who has elected to purchase Shares in
accordance with Section 4 in such Purchase Period and (b) any person for whom a
Share is held pending delivery under Section 7.
2.11 The term "Participating Employer" shall mean Equity, Equity Office
Properties Management Corp., Equity Capital Holdings LP and any affiliated
company which is designated as such by the Committee.
2.12 The term "Pay" means (i) in the case of an Eligible Employee, all
cash compensation paid to him or her for services to Equity or an affiliated
company, including regular straight time earnings or draw, overtime,
commissions, and bonuses, but excluding amounts paid as living allowance or
reimbursement of expenses and other similar payments; and (ii) in the case of
an Eligible Trustee, all retainers and meeting and other service fees paid to
him or her by Equity or an affiliated company.
2.13 The term "Pay Day" means the day as of which Pay is paid to a
Participant.
2.14 The term "Plan" shall mean this Equity Office Properties Trust 1997
Non-Qualified Employee Share Purchase Plan, effective as of July 1, 1997, and
as thereafter amended from time to time.
2.15 The term "Plan Administrator" shall mean Equity or Equity's delegate.
2.16 The term "Purchase Period" shall mean a period set by the Committee.
Unless changed by the Committee, each Purchase Period shall begin and end on
the following business days on or immediately following these dates:
August 15 - February 14
February 15 - August 14
The first Purchase Period shall commence on August 15, 1997 and terminate
on February 14, 1997.
2.17 The term "Purchase Price" for each Purchase Period shall mean 85% of
the lesser of: (a) the Closing Price for a Share on the last day of such
Purchase Period; and (b) the greater of: (i) the Closing Price for a Share on
the first day of such Purchase Period; and (ii) the average Closing Price for a
Share for all of the business days in the Purchase Period.
2.18 The term "Rule 16b-3" shall mean Rule 16b-3 promulgated under Section
16(b) of the Securities Exchange Act of 1934, as amended, or any successor to
such rule.
2.19 The term "Share" shall mean a $.01 par value per common share of
beneficial interest of Equity. The aggregate number of Shares available for
grant under this Plan shall not exceed 2,000,000, subject to adjustment
pursuant to Section 17 hereof. Shares subject to the
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Plan may be either authorized but unissued Shares, Shares now held in the
treasury of Equity, or Shares hereafter acquired by Equity.
3. Administration
Except for the exercise of those powers expressly granted to the Committee
to determine the Closing Price, who is a Participating Employer and to set the
Purchase Period, the Plan Administrator shall be responsible for the
administration of this Plan and shall have the power in connection with such
administration to interpret the Plan and to take such other action in
connection with such administration as the Plan Administrator deems necessary
or equitable under the circumstances. The Plan Administrator also shall have
the power to delegate the duty to perform such administrative functions as the
Plan Administrator deems appropriate under the circumstances. Any person to
whom the duty to perform an administrative function is delegated shall act on
behalf of and shall be responsible to the Plan Administrator for such function.
Any action or inaction by or on behalf of the Plan Administrator under this
Plan shall be final and binding on each Eligible Employee, each Eligible
Trustee, each Participant and on each other person who makes a claim under this
Plan based on the rights, if any, of any such Eligible Employee, Eligible
Trustee or Participant under this Plan.
4. Participation
Each person who is an Eligible Employee or an Eligible Trustee as of the
beginning of a Purchase Period shall be a Participant in this Plan for the
Purchase Period if he or she properly completes and timely files an Election
Form with the Plan Administrator to elect to participate in this Plan. An
Election Form may require an Eligible Employee or Eligible Trustee to provide
such information and to agree to take such action (in addition to the action
required under Section 5) as the Plan Administrator deems necessary or
appropriate in light of the purpose of this Plan or for the orderly
administration of this Plan.
5. Contributions
(a) Initial Contributions. Each Participant's Election Form under Section
4 shall specify the contributions that he or she proposes to make for the
related Purchase Period. Such contributions shall be expressed as a specific
dollar amount that Participant proposes to contribute in cash or a percentage
of the Participant's Pay that his or her Participating Employer is authorized
to deduct from his or her Pay each Pay Day during the Purchase Period (or as a
combination of such cash and such payroll deduction contributions), provided,
however:
(1) the minimum payroll deduction for a Participant for each Pay Day for
purposes under this Plan shall be $10.00, and
(2) the maximum contribution which a Participant may make for purposes
under this Plan for any calendar year shall be $100,000.00.
(b) Changes in Contributions and Withdrawals. A Participant shall have
the right to amend his or her Election Form at any time to reduce or to stop
his or her contributions, and such election shall be effective immediately for
cash contributions and as soon as practicable after the Plan Administrator
actually receives such amended Election Form for payroll deductions. A
Participant also shall have the right at any time on or before 5 days prior to
the last day of a
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<PAGE> 5
Purchase Period to withdraw (without interest) all or any part of the
contributions credited to his or her Account for such purchase. A withdrawal
shall be deducted from the participant's Account as of the date the Plan
Administrator receives such amended Election Form, and the actual withdrawal
shall be effected by the Plan Administrator as soon as practicable after such
date.
(c) Account Credits, General Assets and Taxes. All payroll deductions
made for a Participant shall be credited to his or her Account as of the Pay
Day as of which the deduction is made. All contributions made by a Participant
under this Plan, whether in cash or through payroll deductions, shall be held
by Equity or by such Participant's Participating Employer, as agent for Equity.
All such contributions shall be held as part of the general assets of Equity
and shall not be held in trust or otherwise segregated from Equity's general
assets. No interest shall be paid or accrued on any such contributions. Each
Participant's right to the contributions credited to his or her Account shall
be that of a general and unsecured creditor of Equity. Each Participating
Employer shall have the right to make such provisions as it deems necessary or
appropriate to satisfy any tax laws with respect to purchases of Shares made
under this Plan.
(d) Automatic Refunds. The balance credited to the Account of an Eligible
Employee automatically shall be refunded in full (without interest) if his or
her status as an employee of all Participating Employers terminates for any
reason whatsoever during a Purchase Period and the balance credited to the
Account of an Eligible Trustee automatically shall be refunded in full (without
interest) if his or her status as a member of the Board terminates for any
reason whatsoever during a Purchase Period. Such refunds shall be made as soon
as practicable after the Plan Administrator has actual notice of any such
termination.
6. Purchase of Shares
(a) If a Participant is an Eligible Employee or an Eligible Trustee
through the end of a Purchase Period, the balance which remains credited to his
or her Account at the end of such Purchase Period automatically shall be
applied to purchase Shares at the Purchase Price for such Shares for such
Purchase Period. Such Shares shall be purchased on behalf of the Participant
by operation of this Plan in whole shares and in any fraction of a whole Share
(computed to the number of decimal places set by the Plan Administrator) which
can be purchased with the balance credited to the Participant's Account,
subject to the limitation referenced above.
(b) Except as specifically provided herein, all Eligible Employees shall
have the same rights and privileges under the Plan. All rules and
determinations of the Board in the administration of the Plan shall be
uniformly and consistently applied to all persons in similar circumstances.
(c) If the total Shares to be purchased on any date in accordance with
Section 6(a) exceeds the Shares then available under the Plan (after deduction
of all Shares that have been purchased under Section 6(a)), the Plan
Administrator shall make a pro rata allocation of the Shares remaining
available in as nearly a uniform manner as shall be practical and as it shall
determine to be equitable.
7. Delivery
A book-entry record of the Shares purchased by each Participant shall be
maintained by Equity's Share transfer agent and no certificates shall be issued
for such Shares except to the
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<PAGE> 6
extent that a Participant specifically so requests. Notwithstanding the
foregoing, when a refund is made to a Participant pursuant to Section 5(d),
certificates shall be delivered to him or her for all Shares then held for the
Participant under the Plan. A Share certificate delivered to a Participant
shall be registered in his or her name or, if the Participant so elects and if
permissible under applicable law, in the names of the Participant and one such
other person as may be designated by the Participant, as joint tenants with
rights of survivorship. However, (a) no Share certificate representing a
fractional Share shall be delivered to a Participant or to a Participant and
any other person, (b) cash which the Plan Administrator deems representative of
the value of a Participant's fractional share shall be distributed (when a
Participant requests a distribution of certificates for all of the Shares held
for him or her) in lieu of such fractional share unless a Participant in light
of Rule 16b-3 waives his or her right to such cash payment, and (c) the Plan
Administrator shall have the right to charge a Participant for registering
Shares in the name of the Participant and any other person. No Participant (or
any person who makes a claim for, on behalf of, or in place of a Participant)
shall have any interest in any Shares under this Plan until they have been
reflected in the book-entry record maintained by the Share transfer agent or
the certificate for such Shares has been delivered to such person.
8. Designation of Beneficiary
A Participant may designate on his or her Election Form a Beneficiary (a)
who shall receive the balance credited to his or her Account if the Participant
dies before the end of a Purchase Period and (b) who shall receive the Shares,
if any, purchased for the Participant under this Plan if the Participant dies
after the end of a Purchase Period but before either the certificate
representing such Shares has been delivered to the Participant or before such
Shares have been credited to a brokerage account maintained for the
Participant. Such designation may be revised in writing at any time by the
Participant by filing an amended Election Form, and his or her revised
designation shall be effective at such time as the Plan Administrator receives
such amended Election Form. If a deceased Participant fails to designate a
Beneficiary or, if no person so designated survives a Participant or, if after
checking his or her last known mailing address, the whereabouts of the person
so designated are unknown, then the Participant's estate shall be treated as
his or her designated Beneficiary under this Section 8.
9. Transferability and Dispositions
(a) Neither the balance credited to a Participant's Account nor any rights
to receive Shares under this Plan may be assigned, encumbered, alienated,
transferred, pledged, or otherwise disposed of in any way by a participant
during his or her lifetime or by his or her Beneficiary or by any other person
during his or her lifetime, and any attempt to do so shall be without effect.
Notwithstanding the foregoing, a Participant who is also a participant in the
Equity Office Properties Trust Supplemental Retirement Savings Plan (the
"Retirement Plan") may assign his or her rights to purchase Shares hereunder to
the Retirement Plan, subject to and in accordance with such procedures as are
established by the Plan Administrator.
(b) Except as provided in the last sentence of this Section or in Section
7, no sale, transfer or other disposition may be made of any Shares purchased
under the Plan until the first anniversary of such purchase. If a Participant
violates the foregoing restriction, he or she shall remit to Equity an amount
of cash equal to the difference between the amount he or she paid for such
Shares and the Closing Price of such Shares on the date they were purchased.
The amount to be remitted for purposes of the foregoing shall be computed by
the Plan Administrator, in its
5
<PAGE> 7
discretion, using a Last-In-First-Out basis of accounting in the event that
Shares from more than one Purchase Period are involved. Notwithstanding the
foregoing, if a Participant who owns Shares subject to the foregoing
restriction is determined by the Plan Administrator in its discretion to have a
serious financial need for the proceeds of the sale of such Shares, then upon
application made by the Participant, the Plan Administrator shall consent to a
sale of such Shares to the extent necessary to satisfy the serious financial
need, and the Participant will not be required to make the remittance to Equity
described in this subsection (b).
10. Securities Registration
If Equity shall deem it necessary to register under the Securities Act of
1933, as amended, or any other applicable statutes any Shares purchased under
this Plan or to qualify any such Shares for an exemption from any such
statutes, Equity shall take such action at its own expense. If Shares are
listed on any national securities exchange at the time any Shares are purchased
hereunder, Equity shall make prompt application for the listing on such
national Share exchange of such Shares, at its own expense. Purchases of
Shares hereunder shall be postponed as necessary pending any such action.
11. Compliance with Rule 16b-3
All elections and transactions under this Plan by persons subject to Rule
16b-3 are intended to comply with at least one of the exemptive conditions
under Rule 16b-3. The Plan Administrator shall establish such administrative
guidelines to facilitate compliance with at least one such exemptive condition
under Rule 16b-3 as the Plan Administrator may deem necessary or appropriate.
If any provision of this Plan or such administrative guidelines or any act or
omission with respect to this Plan (including any act or omission by an
Eligible Employee or an Eligible Trustee) fails to satisfy such exemptive
condition under Rule 16b-3 or otherwise is inconsistent with such condition,
such provision, guidelines or act or omission shall be deemed null and void.
12. Amendment or Termination
This Plan may be amended by the Board from time to time to the extent that
the Board deems necessary or appropriate, and any such amendment shall be
subject to the approval of Equity's shareholders to the extent such approval is
required under the laws of the State of Maryland or to the extent such approval
is required to meet the security holder approval requirements under Rule 16b-3;
provided, however, no amendment shall be retroactive unless the Board in its
discretion determines that such amendment is in the best interest of Equity or
such amendment is required by applicable law to be retroactive. The Board also
may terminate this Plan and any Purchase Period at any time (together with any
related contribution election) or may terminate any Purchase Period (together
with any related contribution elections) at any time; provided, however, no
such termination shall be retroactive unless the Board determines that
applicable law requires a retroactive termination.
13. Notices
All Election Forms and other communications from a Participant to the Plan
Administrator under, or in connection with, this Plan shall be deemed to have
been filed with the Plan Administrator when actually received in the form
specified by the Plan Administrator at the
6
<PAGE> 8
location, or by the person, designated by the Plan Administrator for the
receipt of any such Election Form and communications.
14. Employment
The right to elect to participate in this Plan shall not constitute an
offer of employment or membership on the Board, and no election to participate
in this Plan shall constitute an employment agreement for an Eligible Employee
or an agreement with respect to Board membership for an Eligible Trustee. Any
such right or election shall have no bearing whatsoever on the employment
relationship between an Eligible Employee and any other person or on an
Eligible Trustee's status as a member of the Board. Finally, no Eligible
Employee or Eligible Trustee shall be induced to participate in this Plan, or
shall participate in this Plan, with the expectation that such participation
will lead to employment or continued employment, and no Eligible Trustee shall
be induced to participate in this Plan, or shall participate in this Plan, with
the expectation that such participation will lead to continued membership on
the Board.
15. Employment Transfers
No Eligible Employee's employment shall be treated as terminated under
this Plan as a result of a transfer between, or among, Equity or any other
Participating Employer.
16. Approval of Shareholders
The Plan shall not take effect until approved by the holders of a majority
of the shares of the Trust present, or represented, and entitled to vote at a
meeting of the shareholders of the Trust.
17. Changes in Capital Structure.
(a) In the event that the outstanding Shares of Equity are hereafter
increased or decreased or changed into or exchanged for a different number or
kind of shares or other securities of Equity or of another corporation, by
reason of any reorganization, merger, consolidation, recapitalization,
reclassification, share split-up, combination of shares, or dividend payable in
shares, appropriate adjustment shall be made by the Board in the number or kind
of shares as to which a right to purchase is granted under this Plan shall be
exercisable, to the end that such right holder's proportionate interest shall
be maintained as before the occurrence of such event. Any such adjustment made
by the Board shall be conclusive.
(b) If Equity is not the surviving or resulting corporation in any
reorganization, merger, consolidation or recapitalization, this Plan, and
Equity's rights, duties and obligations hereunder, shall be assumed by the
surviving or resulting corporation and the rights of a Participant to purchase
Shares shall continue in full force and effect.
18. Headings, References and Construction
The headings to sections in this Plan have been included for convenience
of reference only. This Plan shall be interpreted and construed in accordance
with the laws of the State of Maryland.
7
<PAGE> 1
Exhibit 5
[Rosenberg & Liebentritt, P.C. Letterhead]
August 13, 1997
Board of Trustees
Equity Office Properties Trust
Two North Riverside Plaza
Suite 2200
Chicago, Illinois 60606
Ladies and Gentlemen:
We have acted as counsel for Equity Office Properties Trust, a Maryland
real estate investment trust (the "Company"), in connection with the proposed
issuance by the Company of 2,000,000 common shares of beneficial interest of
the Company, $0.01 par value per share (the "Common Shares"), in connection
with the adoption by the Company of the Equity Office Properties Trust 1997
Non-Qualified Employee Share Purchase Plan (the "Plan"), all of which Common
Shares are being registered pursuant to the filing of a Registration Statement
on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as
amended, with the Securities and Exchange Commission. This opinion letter is
furnished to you at your request to enable the Company to fulfill the
requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. Section
229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
2. The Articles of Amendment and Restatement of Declaration of Trust of
the Company.
3. The Bylaws of the Company.
4. The Plan.
5. Certain minutes or unanimous written consents of the Board of Trustees
and the shareholders of the Company relating to the Plan.
6. Such other records, certificates, documents and matters of law as we
have deemed necessary to render this opinion.
<PAGE> 2
Board of Trustees
Equity Office Properties Trust
August 13, 1997
Page 2
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity, accuracy and completeness of all document submitted to us, the
authenticity of all original documents and the conformity to authentic original
documents of all documents submitted to us as copies (including telecopies).
This opinion letter is given and all statements herein are made, in the context
of the foregoing.
We call your attention to the fact that our firm only requires lawyers to
be qualified to practice law in the State of Illinois and, in rendering the
opinions set forth herein, we express no opinion with respect to any laws
relevant to this opinion other than the laws and regulations identified herein.
With respect to the opinion below that relates to the laws of the State of
Maryland, with your consent, we rely solely on the opinion of Hogan & Hartson
L.L.P., a copy of which is attached hereto as Exhibit A.
Based upon, subject to and limited by the foregoing, we are of the opinion
that, when issued in accordance with the terms of the Plan, the Common Shares
will be validly issued, fully paid and nonassessable under Title 8 of the
Corporations and Associations Article of the Annotated Code of Maryland.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has
been prepared solely for your use in connection with the filing of the
Registration Statement on the date of this opinion letter and should not be
quoted in whole or in part or otherwise be referred to, nor filed with or
furnished to any governmental agency or other person or entity, without the
prior written consent of this firm.
We hereby consent to the filing of this opinion letter as Exhibit 5 to the
Registration Statement. In giving this consent, we do not thereby admit that
we are an "expert" within the meaning of the Securities Act of 1933, as
amended.
Very truly yours,
ROSENBERG & LIEBENTRITT, P.C.
/s/ Ruth Pinkham Haring
---------------------------------
Vice President
<PAGE> 3
EXHIBIT A
Hogan & Hartson L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
August 13, 1997
Rosenberg & Liebentritt, P.C.
Two North Riverside Plaza
Suite 1600
Chicago, Illinois 60606
Ladies and Gentlemen:
We are acting as special Maryland counsel to Equity Office Properties
Trust, a Maryland real estate investment trust (the "Company"), in connection
with its registration statement on Form S-8 (the "Registration Statement"),
filed with the Securities and Exchange Commission relating to 2,000,000 shares
of the Company's common shares of beneficial interest, par value $.01 per share
(the "Shares"), issuable in connection with the Company's 1997 Non-Qualified
Employee Share Purchase Plan (the "1997 Purchase Plan"). This opinion letter
is furnished to you at your request to enable the Company to fulfill the
requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. Section
229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. A copy of the Registration Statement.
2. The Amendment and Restatement of Declaration of Trust of the
Company (the "Declaration of Trust"), as certified by the Maryland
State Department of Assessments and Taxation on July 9, 1997 and
the Assistant Secretary of the Company on the date hereof as being
complete, accurate and in effect.
3. The Bylaws of the Company, as certified by the Assistant Secretary
of the Company on the date hereof as being complete, accurate and
in effect.
<PAGE> 4
Rosenberg & Liebentritt, P.C.
August 13, 1997
Page 2
4. Resolutions of the Board of Trustees of the Company dated May
5, 1997 and consent of the sole shareholder dated June 12,
1997, as certified by the Assistant Secretary of the Company on
the date hereof as being complete, accurate and in effect,
approving and adopting the 1997 Purchase Plan.
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity, accuracy and completeness of all documents submitted to us, the
authenticity of all original documents and the conformity to authentic original
documents of all documents submitted to us as copies (including telecopies).
This opinion letter is given, and all statements herein are made, in the
context of the foregoing.
This opinion letter is based as to matters of law solely on Title 8 of
the Corporations and Associations Article of the Annotated Code of Maryland (the
"Maryland REIT Statute"). We express no opinion herein as to any other laws,
statutes, regulations, or ordinances.
Based upon, subject to and limited by the foregoing, we are of the
opinion that, when issued in accordance with the terms of the 1997 Purchase
Plan, the Shares will be validly issued, fully paid and nonassessable under the
Maryland REIT Statute.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has
been prepared solely for your use in connection with the filing of the
Registration Statement on the date of this opinion letter and should not be
quoted in whole or in part or otherwise be referred to, nor filed with or
furnished to any governmental agency or other person or entity, without the
prior written consent of this firm.
We hereby consent to the filing of this opinion letter as Exhibit 5 to
the Registration Statement. In giving this consent, we do not thereby admit
that we are an "expert" within the meaning of the Securities Act of 1933, as
amended.
Very truly yours,
HOGAN & HARTSON L.L.P.
