REITs Executive Compensation Guide

SEC Filings

Form S-8

(the “ Securities Act ”). There are several different approaches that companies take to meet these prospectus delivery requirements. One approach is preparation of an integrated prospectus document that the company delivers to all plan participants. The most common alternative to this approach is to deliver a series of different documents that, taken together, satisfy all of the requirements for a prospectus. The prospectus must be delivered to plan participants on a timely basis (i.e., generally before the offer and sale of securities under the plan to the participant). If more than one document is used to convey the required prospectus information, each document must be distributed to plan participants on a timely basis. For an equity plan, this generally means that employees who are eligible to participate in the plan should receive the required prospectus documents at the time they join the company or first become eligible to participate in the plan through receipt of an award.

Unless an exemption is available, companies are required to register securities offerings with the SEC. Form S-8 is a simplified, short-form registration statement used by public companies to register offers and sales of securities under an employee benefit plan to employees and certain other service providers. 13 Companies typically file Form S-8s for equity plans, employee stock purchase plans and certain types of 401(k) plans. To be eligible to use Form S-8, a company must be subject to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), and must have filed all required Exchange Act reports due during the 12 months immediately preceding the filing of the Form S-8 (or such shorter period in which the company was required to file such reports and materials). When securities issuable in connection with an employee benefit plan are registered on Form S-8, the company is required to provide to each person eligible to participate in the plan (or selected by the company to participate in the plan, in the case of a plan with selective participation) certain information and documents, which, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act of 1933, as amended

13 Form S-8 allows the registration of grants of awards to consultants and other advisors as long as (i) the awards are made to natural persons (i.e., not entities), (ii) the consultant or advisor provides bona fide services to the company and (iii) the bona fide services provided by the consultant or advisor are not in connection with capital-raising activities. As a result, awards cannot be granted under the Form S-8 to entities that perform services for the REIT or to persons who promote or maintain a market for the REIT’s securities.

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