As filed with the Securities and Exchange Commission on November 18, 2011
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EQUITY RESIDENTIAL
(Exact name of registrant as specified in its charter)
Maryland | 13-3675988 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
Two North Riverside Plaza, Suite 400
Chicago, Illinois 60606
(312) 474-1300
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
David J. Neithercut
President and Chief Executive Officer
Two North Riverside Plaza, Suite 400
Chicago, Illinois 60606
(312) 474-1300
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Gregory W. Hayes, Esq.
DLA Piper LLP (US)
203 North LaSalle Street, Suite 1900
Chicago, Illinois 60601
(312) 368-2155
Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer | x | Accelerated filer | ¨ | |||
Non-accelerated filer | ¨ (do not check if smaller reporting company) | Smaller reporting company | ¨ |
CALCULATION OF REGISTRATION FEE
| ||||||||
Title of each class of securities to be registered |
Amount to be registered |
Proposed maximum offering price per unit (1) |
Proposed maximum aggregate offering |
Amount of registration fee | ||||
Common Shares of Beneficial Interest, $0.01 par value per share |
35,171 | $58.23 | $2,048,008.00 | $235.00 | ||||
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(1) | Estimated solely for the purpose of computing the registration fee in accordance with Rule 457(c) based on the average of the high and low reported sales prices on the New York Stock Exchange on November 14, 2011. |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement relating to these securities has been declared effective by the Securities and Exchange Commission. This prospectus is neither an offer to sell nor a solicitation of an offer to buy these securities in any jurisdiction where such offer or sale is unlawful.
Subject to Completion
Dated November 18, 2011
PROSPECTUS
35,171 Shares
EQUITY RESIDENTIAL
Common Shares of Beneficial Interest
This prospectus relates solely to the offer and sale from time to time of up to 35,171 of our common shares of beneficial interest (Common Shares) by the persons listed below, who are, or may become, shareholders of Equity Residential. In this prospectus we refer to these persons as the Selling Shareholders. We may issue such Common Shares to the Selling Shareholders, upon their request, in exchange for their units of limited partnership interest in ERP Operating Limited Partnership, our operating partnership.
The Selling Shareholders may offer their common shares through public or private transactions, on or off the New York Stock Exchange, at prevailing market prices, or at privately negotiated prices. The Selling Shareholders may sell their Common Shares directly or through agents or broker-dealers acting as principal or agent, or in a distribution by underwriters.
We are registering the Common Shares to permit the holders to sell without restriction in the open market or otherwise, but the registration of these Common Shares does not necessarily mean that any holders will elect to exchange their units of limited partnership interest in our operating partnership or offer or sell any of these Common Shares. Also, we may elect to pay cash for the units of our operating partnership tendered rather than issue Common Shares. Although we will incur expenses in connection with the registration of the 35,171 Common Shares, we will not receive any cash proceeds upon their issuance.
The Common Shares are listed on the New York Stock Exchange under the symbol EQR.
Investing in our securities involves risk. Before buying our securities, you should read and consider the risk factors included in our periodic reports and in other information that we file with the Securities and Exchange Commission. See Special Note Regarding Forward-Looking Statements.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2011.
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No dealer, salesperson or other individual has been authorized to give any information or to make any representations not contained or incorporated by reference in this prospectus in connection with the offering covered by this prospectus. If given or made, such information or representations must not be relied upon as having been authorized by us. This prospectus does not constitute an offer to sell, or a solicitation of an offer to buy, the common share, in any jurisdiction where, or to any person to whom, it is unlawful to make any such offer or solicitation. Neither the delivery of this prospectus nor any offer or sale made hereunder shall, under any circumstances, create an implication that there has not been any change in the facts set forth in this prospectus or in our affairs since the date hereof.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Information contained in or incorporated by reference into this prospectus and any accompanying prospectus supplement contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the Securities Act). We intend the forward-looking statements to be covered by the safe harbor provisions for forward-looking statements contained in that section. These forward-looking statements relate to, without limitation, our anticipated future economic performance, our plans and objectives for future operations and projections of revenue and other financial items, which can be identified by the use of forward-looking words such as may, will, should, expect, anticipate, estimate or continue or the negative thereof or other variations thereon or comparable terms. The cautionary statements under the caption Risk Factors contained in our Annual Report on Form 10-K for the year ended December 31, 2010, which is incorporated herein by reference, and other similar statements contained in this prospectus or any accompanying prospectus supplement identify important factors with respect to forward-looking statements, including certain risks and uncertainties, that could cause actual results to differ materially from those in such forward-looking statements.
We are subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the Exchange Act), and, in accordance therewith, we are required to file reports, proxy statements and other information with the Securities and Exchange Commission (the Commission). You may read and copy these reports, proxy statements and other information at the Public Reference Room of the Commission, 100 F Street, N.E., Washington, D.C. 20549. You may also obtain copies of the reports, proxy and information statements and other information regarding issuers that file electronically with the Commission by accessing the Commissions World Wide Web site at http://www.sec.gov. You may obtain information on the operation of the Public Reference Room by calling the Commission at 1-800-SEC-0330.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We have filed the documents listed below with the Commission under the Exchange Act and these documents are incorporated into this prospectus by reference (other than information furnished pursuant to Items 2.02 and 7.01 of Form 8-K and any related exhibits):
a. | Annual Report on Form 10-K for the year ended December 31, 2010 (File No. 001-12252). |
b. | Quarterly Reports on Form 10-Q for the quarters ended March 31, 2011, June 30, 2011 and September 30, 2011 (File No. 001-12252). |
c. | Current Reports on Form 8-K filed on February 3, 2011 (two reports), April 8, 2011, May 23, 2011, June 22, 2011, July 12, 2011, July 14, 2011, July 18, 2011, September 27, 2011 and November 10, 2011 (File No. 001-12252). |
d. | Description of our common shares contained in our registration statement on Form 8-A/A dated August 10, 1993. |
All documents filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (i) on or after the date of the initial filing of the registration statement containing this prospectus and prior to the effectiveness of this registration statement and (ii) on or after the date of this prospectus and prior to the termination of the offering of all Common Shares under this prospectus will also be deemed to be incorporated by reference in this prospectus and to be a part hereof from the date of filing those documents. We are not, however, incorporating by reference any documents or portions thereof, whether specifically listed above or filed in the future, that are not deemed filed with the Commission, including, but not limited to, any information furnished pursuant to Items 2.02 or 7.01 of Form 8-K or any exhibits furnished pursuant to Item 9.01 of Form 8-K.
Any statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference herein will be modified or superseded by inconsistent statements in any document we file in the future that will be deemed incorporated by reference herein, including any prospectus supplement that supplements this prospectus. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus or any accompanying prospectus supplement. Subject to the foregoing, all information appearing in this prospectus and each
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accompanying prospectus supplement is qualified in its entirety by the information appearing in the documents incorporated by reference.
We will provide, without charge, copies of all documents that are incorporated herein by reference (not including the exhibits to such information, unless such exhibits are specifically incorporated by reference in such information) to each person, including any beneficial owner, to whom this prospectus is delivered upon written or oral request. Requests should be directed to Equity Residential, Two North Riverside Plaza, Suite 400, Chicago, Illinois 60606, Attention: Martin McKenna (telephone number: (312) 474-1300).
Unless otherwise indicated, when used herein, the terms we and us refer to Equity Residential, a Maryland real estate investment trust, and its subsidiaries, including ERP Operating Limited Partnership, its operating partnership.
We are a Maryland real estate investment trust (REIT) formed in March 1993 and are an S&P 500 company focused on the acquisition, development and management of high quality apartment properties in top United States growth markets. We have elected to be taxed as a REIT. Our corporate headquarters are located in Chicago, Illinois and we also operate property management offices in each of our markets.
Our executive offices are located at Two North Riverside Plaza, Suite 400, Chicago, Illinois 60606, and our telephone number is (312) 474-1300.
We will not receive any of the proceeds from the sale of Common Shares by Selling Shareholders. We will pay all of the costs and expenses incurred in connection with the registration under the Securities Act of the offering made hereby. Notwithstanding the previous sentence, any brokerage fees and commissions, fees and disbursements of legal counsel for the Selling Shareholders and share transfer and other taxes attributable to the issuance by us of the Common Shares will be paid by the Selling Shareholders.
We may issue up to 35,171 Common Shares to the Selling Shareholders if and to the extent that the Selling Shareholders who currently hold units of limited partnership interest in our operating partnership (Units) exchange their Units and we issue Common Shares to them in exchange therefor. Following our issuance of any of the offered Common Shares, the Selling Shareholders may resell the Common Shares covered by this prospectus as provided under the Plan of Distribution section of this prospectus or as described in an applicable prospectus supplement.
The following table sets forth the name of each Selling Shareholder and the maximum number of Common Shares to be owned upon exchange of Units, all of which may be offered by such Selling Shareholders pursuant to this prospectus. The number of Common Shares set forth in the following table is also the number of Common Shares beneficially owned by each selling shareholder prior to the offering, except as otherwise set forth therein. Because the Selling Shareholders may sell all or some of their offered Common Shares, no estimate can be made of the number of offered Common Shares that will be sold by the Selling Shareholders or that will be owned by the Selling Shareholders upon completion of the offering. We cannot assure you that the Selling Shareholders will sell any of the offered Common Shares. In addition, we may elect to pay cash for any Units exchanged, rather than exchanging those Units for Common Shares. The Common Shares covered by this prospectus represent less than one percent of the total Common Shares outstanding as of September 30, 2011.
Name of Selling Shareholder |
Number of Common Shares Beneficially Owned and Offered Hereby |
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Wynequity Limited Partnership |
19,104 | |||
Greenlaw Grupe, Jr. Operating Company |
14,746 | |||
3 Greene Investments |
401 | |||
Diane E. Unruh, Trustee of the Douglas and Diane Unruh Trust |
401 |
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Name of Selling Shareholder |
Number of Common Shares Beneficially Owned and Offered Hereby |
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John S. Dinkel |
200 | |||
Carla McGinley |
200 | |||
Jeanne Dreyfuss-Archer |
119 | |||
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Total |
35,171 | |||
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ADDITIONAL FEDERAL INCOME TAX CONSIDERATIONS
The following discussion supplements the discussion under the heading Federal Income Tax Considerations in our annual report on Form 10-K for the year ended December 31, 2010, which has been incorporated into this prospectus by reference. The following discussion summarizes the material federal income tax considerations that may be relevant to a Selling Shareholder who desires to have its Units exchanged for Common Shares.
Tax Treatment of an Exchange of Units. If a Selling Shareholder exchanges Units of limited partnership interest in our operating partnership for Common Shares, the exchange will be a taxable event and, as a result, the Selling Shareholder will recognize gain or loss. The determination of the amount of gain or loss that will be recognized by a Selling Shareholder will be based on the difference between the amount realized for tax purposes and the tax basis in the Selling Shareholders Units. See Basis of Units below. The amount realized will be equal to the product of (i) the number of Units exchanged, multiplied by the price of the Common Shares received on the date of the exchange plus (ii) the portion of our operating partnerships liabilities allocable to the Units exchanged. To the extent that this amount exceeds the Selling Shareholders tax basis in the Units exchanged, the Selling Shareholder will recognize gain. The amount of gain the Selling Shareholder recognizes could exceed the value of the Common Shares that the Selling Shareholder receives if the Selling Shareholder has a negative tax capital account. It is even possible that the tax liability resulting from this gain could exceed the value of the Common Shares that the Selling Shareholder receives.
Except as described below, any gain recognized upon a sale or other disposition of Units, which includes the exchange of Units for Common Shares, will be treated as gain attributable to the sale or disposition of a capital asset. To the extent, however, that the amount realized by a Selling Shareholder in an exchange of Units for Common Shares attributable to a Selling Shareholders share of unrealized receivables of our operating partnership exceeds the Selling Shareholders basis attributable to the unrealized receivables, the excess will be treated as ordinary income. Unrealized receivables include, to the extent not previously included in our operating partnerships income, any rights to payments for services rendered or to be rendered. Unrealized receivables also include amounts that would be subject to recapture as ordinary income if our operating partnership had sold its assets at their fair market value at the time of the transfer of the Units.
For individuals, trusts and estates, net capital gain from the sale of an asset held 12 months or less is subject to tax at the applicable rate for ordinary income. For these taxpayers, the maximum rate of tax on the net capital gain from a sale or exchange of an asset held for more than 12 months generally is 15%. An exception to the general 15% rule applies, however, to net capital gains attributable to the sale of depreciable real property. Under the exception, gain attributable to prior depreciation deductions not otherwise recaptured as ordinary income under other depreciation recapture rules is subject to a rate of tax of 25%. The Internal Revenue Service has issued final Treasury regulations providing that the 25% rate applies to sales or exchanges of interests in partnerships that hold depreciable real property. Consequently, any gain on the sale or exchange of a unit held for more than 12 months could be treated partly as gain from the sale of depreciable real property subject to the 25% rate, partly as gain from the sale of a long-term capital asset subject to a 15% tax rate, and to the extent that the gain is attributable to unrealized receivables, partly as ordinary income.
For taxable years beginning after December 31, 2012, the 15% capital gains tax rate is currently scheduled to increase to 20% and the rate applicable to dividends will increase to the tax rate then applicable to ordinary income. In addition, Selling Shareholders that are U.S. domestic corporations may be required to treat up to 20% of some capital gain dividends as ordinary income. Selling Shareholders should consult their own tax advisors regarding the effect, if any, of these changes to tax rates scheduled to occur beginning in 2013.
Tax Treatment of a Redemption of Units. We have the right to pay to a Selling Shareholder cash in lieu of issuing Common Shares in exchange for Units. If we elect to redeem Units for cash, the tax consequences to a Selling Shareholder
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would depend on whether or not the redemption is a redemption of all of a Selling Shareholders Units. If the redemption is a redemption of all of a Selling Shareholders Units, the Selling Shareholder would recognize taxable gain only to the extent that the cash, plus the share of our operating partnerships liabilities allocable to the redeemed Units, exceeded the Selling Shareholders tax basis in all of the Selling Shareholders Units immediately before the redemption. On the other hand, the Selling Shareholder would recognize taxable loss only to the extent that the Selling Shareholders tax basis in all of the Selling Shareholders Units immediately before the redemption exceeded the cash, plus the share of our operating partnerships liabilities allocable to the redeemed Units. If the redemption is a redemption of less than all of the Selling Shareholders Units, the Selling Shareholder would not be permitted to recognize any loss occurring on the transaction and would recognize taxable gain only to the extent that the cash, plus the share of our operating partnerships liabilities allocable to the redeemed Units, exceeded the Selling Shareholders tax basis in all of the Selling Shareholders Units immediately before the redemption.
Basis of Units. In general, a Selling Shareholder who originally received Units in exchange for a contribution of property to our operating partnership had an initial tax basis in the Units equal to the Selling Shareholders basis in the contributed property. A Selling Shareholders tax basis in the Units generally is increased by the Selling Shareholders share of our operating partnerships taxable income and increases in the Selling Shareholders share of liabilities of our operating partnership allocated to such Selling Shareholder. If the Selling Shareholder is an obligated partner under a deficit restoration obligation or has guaranteed partnership indebtedness, the Selling Shareholders basis may also include additional liabilities. A Selling Shareholders initial tax basis in the Units generally is decreased, but not below zero, by the Selling Shareholders share of our operating partnerships distributions, decreases in the Selling Shareholders liabilities in our operating partnership allocated to such Selling Shareholder, the amount of any Selling Shareholder liabilities assumed by the operating partnership, the Selling Shareholders share of losses of our operating partnership, and the Selling Shareholders share of nondeductible expenditures of our operating partnership that are not chargeable to capital.
Potential Application of the Disguised Sale Rules to a Redemption of Units. There is a risk that if a Unit is redeemed, particularly if it is redeemed within two years of when it was issued, the IRS might contend that the original transaction pursuant to which the Units were issued should be treated as a disguised sale of property. Under the disguised sale rules, unless an exception applies, a partners contribution of property to a partnership and a simultaneous or subsequent transfer of money or other consideration, including the assumption of or taking subject to a liability, from the partnership to the partner may be treated as a sale, in whole or in part, of the property by the partner to the partnership. If money or other consideration is transferred by a partnership to a partner within two years of the partners contribution of property, the transactions are presumed to be a sale of the contributed property unless the facts and circumstances clearly establish that the transfers do not constitute a sale. If two years have passed between the transfer of money or other consideration and the contribution of property, the transactions will not be presumed to be a sale unless the facts and circumstances clearly establish that the transfers constitute a sale.
You are advised to consult with your own tax advisors regarding the specific tax consequences of the exchange or redemption of Units, including the federal, state, local, foreign or other tax consequences relating thereto.
Any of the Selling Shareholders may from time to time, in one or more transactions, sell all or a portion of the offered Common Shares on the New York Stock Exchange, in the over-the-counter market, on any other national securities exchange on which the Common Shares are listed or traded, in negotiated transactions, in underwritten transactions or otherwise, at prices then prevailing or related to the then current market price or at negotiated prices. The offering price of the offered Common Shares from time to time will be determined by the Selling Shareholders and, at the time of such determination, may be higher or lower than the market price of the Common Shares on the New York Stock Exchange. In connection with an underwritten offering, underwriters or agents may receive compensation in the form of discounts, concessions or commissions from a Selling Shareholder or from purchasers of offered Common Shares for whom they may act as agents, and underwriters may sell offered Common Shares to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agents. Under agreements that may be entered into by us, underwriters, dealers and agents who participate in the distribution of offered Common Shares may be entitled to indemnification by us against certain liabilities, including liabilities under the Securities Act, or to contribution with respect to payments which such underwriters, dealers or agents may be required to make in respect thereof. The offered Common Shares may be sold directly or through broker-dealers acting as principal or agent, or pursuant to a distribution by one or more underwriters on a firm commitment or best-efforts basis. The methods by which the offered Common Shares may be sold include: (a) a block trade in which the
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broker-dealer so engaged will attempt to sell the offered Common Shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; (b) purchases by a broker-dealer as principal and resale by such broker-dealer for its account pursuant to this prospectus; (c) ordinary brokerage transactions and transactions in which the broker solicits purchasers; (d) an exchange distribution in accordance with the rules of the New York Stock Exchange; (e) privately negotiated transactions; and (f) underwritten transactions. The selling shareholders and any underwriters, dealers or agents participating in the distribution of the offered Common Shares may be deemed to be underwriters within the meaning of the Securities Act, and any profit on the sale of the offered Common Shares by the Selling Shareholders and any commissions received by any such broker-dealers may be deemed to be underwriting commissions under the Securities Act.
When a Selling Shareholder elects to make a particular offer of Common Shares, a prospectus supplement, if required, will be distributed which will identify any underwriters, dealers or agents and any discounts, commissions and other terms constituting compensation from such Selling Shareholder and any other required information will be identified in a prospectus supplement.
In order to comply with the securities laws of certain states, if applicable, the Common Shares may be sold only through registered or licensed brokers or dealers. In addition, in certain states, the Common Shares may not be sold unless they have been registered or qualified for sale in such state or an exemption from such registration or qualification requirement is available and is complied with.
We have agreed to pay all costs and expenses incurred in connection with the registration under the Securities Act of the Common Shares registered hereunder, including, without limitation, all registration and filing fees, printing expenses and fees and disbursements of our counsel and accountants. In addition, the Selling Shareholders will pay any brokerage fees and commissions, fees and disbursements of their legal counsel and share transfer and other taxes attributable to the sale of the Common Shares.
The consolidated financial statements and schedule of Equity Residential appearing in Equity Residentials Annual Report (Form 10-K) for the year ended December 31, 2010, as amended by our Current Report on Form 8-K dated November 10, 2011, and the effectiveness of Equity Residentials internal control over financial reporting as of December 31, 2010 also included in the Form 10-K, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon included therein, and incorporated herein by reference. Such consolidated financial statements and schedule are incorporated herein by reference, in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
The legality of the offered Common Shares has been passed upon for us by the law firm of DLA Piper LLP (US). Certain tax matters have been passed upon for us by DLA Piper LLP (US), Chicago, Illinois, our special tax counsel.
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35,171 Shares
EQUITY RESIDENTIAL
Common Shares of Beneficial Interest
PROSPECTUS
, 2011
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. | OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION |
The following table sets forth those expenses for distribution to be incurred in connection with the issuance and distribution of the securities being registered.
Registration Fee |
$ | 235 | ||
Legal Fees and Expenses* |
30,000 | |||
Accounting Fees and Expenses* |
10,000 | |||
Printing and Duplicating Expenses* |
5,000 | |||
Miscellaneous* |
5,000 | |||
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Total* |
$ | 50,235 | ||
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* | Estimated |
Item 15. | INDEMNIFICATION OF TRUSTEES AND OFFICERS |
Under Maryland law, a real estate investment trust formed in Maryland is permitted to eliminate, by provision in its Declaration of Trust, the liability of trustees and officers to the trust and its shareholders for money damages except for liability resulting from (a) actual receipt of an improper benefit or profit in money, property or services or (b) acts or omissions established by a final judgment as involving active and deliberate dishonesty and being material to the matter giving rise to the proceeding. The Registrants Declaration of Trust includes such a provision eliminating such liability to the maximum extent permitted by Maryland law.
To the maximum extent permitted by Maryland law in effect from time to time, the Registrants bylaws require the Registrant 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 (a) any individual (including the individuals spouse, children, heirs, estate, executors, or personal or legal representatives for claims arising out of the status of such spouse, children, heirs, estate, executors or personal or legal representatives of such individual (collectively, the Other Individuals)) who is a present or former trustee or officer of the Registrant and who is made or threatened to be made a party to the proceeding by reason of his or her service in that capacity or (b) any individual (including Other Individuals) who, while a trustee or officer of the Registrant and at the request of the Registrant, serves or has served as a trustee, officer, partner or trustee of another corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan or other enterprise and who is made or threatened to be made a party to the proceeding by reason of his or her service in that capacity. The Registrant may, with the approval of its Board of Trustees, provide such indemnification and advance for expenses to an individual (including Other Individuals) who served a predecessor of the Registrant in any of the capacities described in (a) or (b) above and to any employee or agent of the Registrant or a predecessor of the Registrant. The indemnification and payment or reimbursement of expenses shall not be deemed exclusive of or limit in any way other rights to which any person seeking indemnification or payment or reimbursement of expenses may be or may become entitled under any bylaw, regulation, insurance, agreement or otherwise.
No amendment or repeal of Registrants bylaws or Declaration of Trust inconsistent with the foregoing right to indemnification, shall apply to any act or failure to act which occurred prior to such amendment, repeal or adoption. Any indemnification or payment or reimbursement of the expenses permitted by the Registrants bylaws shall be furnished in accordance with the procedures provided for indemnification or payment or reimbursement of expenses, as the case may be, under Section 2-418 of the Maryland General Corporation Law (the MGCL) for directors of Maryland corporations. The Registrant may provide to trustees and officers such other and further indemnification or payment or reimbursement of expenses, as the case may be, to the fullest extent permitted by the MGCL, as in effect from time to time, for directors of Maryland corporations.
The Registrant has entered into indemnification agreements with each of its trustees and executive officers. The indemnification agreements require, among other things, that the Registrant 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 is subsequently determined that indemnification is not permitted. Under these agreements, the Registrant 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 Registrants 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.
II-1
The partnership agreements of ERP Operating Limited Partnership and its management subsidiaries also provide for indemnification of the Registrant and its officers and trustees to the same extent that indemnification is provided to officers and trustees of the Registrant in its Declaration of Trust, and limit the liability of the Registrant and its officers and trustees to the Operating Partnership and the Management Partnerships and their respective partners to the same extent that the liability of the officers and trustees of the Registrant to the Registrant and its shareholders is limited under the Registrants Declaration of Trust.
ITEM 16. | Exhibits |
4.1* | - | Articles of Restatement of Declaration of Trust of Equity Residential | ||
4.2** | - | Seventh Amended and Restated Bylaws of Equity Residential | ||
5 | - | Opinion of DLA Piper LLP (US) | ||
8 | - | Opinion of DLA Piper LLP (US) | ||
23.1 | - | Consent of Ernst & Young LLP | ||
23.2 | - | Consent of DLA Piper LLP (US) (included in Exhibit 5) | ||
23.3 | - | Consent of DLA Piper LLP (US) (included in Exhibit 8) | ||
24 | - | Power of Attorney (filed as part of the signature page to the Registration Statement) |
* | Included as Exhibit 3.1 to Equity Residentials Annual Report on Form 10-K for the year ended December 31, 2004. |
** | Included as Exhibit 3.1 to Equity Residentials Form 8-K filed on December 14, 2010. |
ITEM 17. | 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 Securities (if the total dollar value of Securities would not exceed that which was registered) and a 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 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;
Provided, however, That paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports field with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus that is filed pursuant to Rule 424(b) that is part of the 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 Securities offered herein, 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.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) (A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement;
II-2
and (B) each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(l)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; or
(ii) Each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(5) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans annual report pursuant to 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 Securities offered herein, and the offering of such Securities at that time shall be deemed to be the initial bona fide offering thereof.
(6) 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, 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 of the requirements for filing on Form S-3 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 November 18, 2011.
EQUITY RESIDENTIAL | ||
By: | /s/ DAVID J. NEITHERCUT | |
David J. Neithercut, President and Chief Executive Officer |
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POWER OF ATTORNEY
KNOW ALL MEN AND WOMEN BY THESE PRESENTS, that each person whose signature appears below, hereby constitutes and appoints David J. Neithercut, Mark J. Parrell and Ian S. Kaufman, or any of them, his or her attorneys-in-fact and agents, with full power of substitution and resubstitution for him or her 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 or she might or could do in person, hereby ratifying and confirming all that each of such attorneys-in-fact and agents or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities set forth below and on the dates indicated:
Name |
Title |
Date | ||
/s/ DAVID J. NEITHERCUT David J. Neithercut |
President, Chief Executive Officer and Trustee |
November 18, 2011 | ||
/s/ MARK J. PARRELL Mark J. Parrell |
Executive Vice President and Chief Financial Officer |
November 18, 2011 | ||
/s/ IAN S. KAUFMAN Ian S. Kaufman |
Senior Vice President and Chief Accounting Officer |
November 18, 2011 | ||
/s/ JOHN W. ALEXANDER John W. Alexander |
Trustee |
November 18, 2011 | ||
/s/ CHARLES L. ATWOOD Charles L. Atwood |
Trustee |
November 18, 2011 | ||
/s/ LINDA WALKER BYNOE Linda Walker Bynoe |
Trustee |
November 18, 2011 | ||
/s/ MARY KAY HABEN Mary Kay Haben |
Trustee |
November 18, 2011 | ||
/s/ BRADLEY A. KEYWELL Bradley A. Keywell |
Trustee |
November 18, 2011 | ||
/s/ JOHN E. NEAL John E. Neal |
Trustee |
November 18, 2011 | ||
/s/ MARK S. SHAPIRO Mark S. Shapiro |
Trustee |
November 18, 2011 | ||
/s/ B. JOSEPH WHITE B. Joseph White |
Trustee |
November 18, 2011 | ||
/s/ GERALD A. SPECTOR Gerald A. Spector |
Vice Chairman of the Board of Trustees |
November 18, 2011 | ||
/s/ SAMUEL ZELL Samuel Zell |
Chairman of the Board of Trustees |
November 18, 2011 |
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EXHIBIT INDEX
Exhibit Number |
Exhibit Description | |
4.1* | Articles of Restatement of Declaration of Trust of Equity Residential | |
4.2** | Seventh Amended and Restated Bylaws of Equity Residential | |
5 | Opinion of DLA Piper LLP (US) | |
8 | Opinion of DLA Piper LLP (US) | |
23.1 | Consent of Ernst & Young LLP | |
23.2 | Consent of DLA Piper LLP (US) (included in Exhibit 5) | |
23.3 | Consent of DLA Piper LLP (US) (included in Exhibit 8) | |
24 | Power of Attorney (filed as part of the signature page to the Registration Statement) |
* | Included as Exhibit 3.1 to Equity Residentials Annual Report on Form 10-K for the year ended December 31, 2004. |
** | Included as Exhibit 3.1 to Equity Residentials Form 8-K filed on December 14, 2010. |
Exhibit 5
DLA Piper LLP (US) The Marbury Building 6225 Smith Avenue Baltimore, Maryland 21209-3600 T 410.580.3000 F 410.580.3001
W www.dlapiper.com |
November 18, 2011
EQUITY RESIDENTIAL
Two North Riverside Plaza, Suite 400
Chicago, Illinois 60606
Re: | Registration Statement on Form S-3 |
Ladies and Gentlemen:
We serve as special Maryland counsel to Equity Residential, a Maryland real estate investment trust (the Company), in connection with the registration under the Securities Act of 1933, as amended (the Act), on Form S-3 filed by the Company (the Registration Statement) with the U.S. Securities and Exchange Commission (the Commission) of 35,171 (the Shares) common shares of beneficial interest, $0.01 par value per share, of the Company (Common Shares), which may be offered and sold from time to time by certain selling shareholders of the Company listed in the Registration Statement after issuance by the Company upon the exchange of units of limited partnership interest in ERP Operating Limited Partnership, an Illinois limited partnership (the Operating Partnership). This opinion is being provided at your request in connection with the filing of the Registration Statement.
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 (collectively, the Documents):
1. The Registration Statement and the related form of prospectus included therein, in the form in which it was transmitted to the Commission under the Act;
2. The Articles of Restatement of the Company, as amended, supplemented and restated (the Declaration), certified as of the date hereof by the Secretary of the Company;
3. The Seventh Amended and Restated Bylaws of the Company (the Bylaws), certified as of the date hereof by the Secretary of the Company;
EQUITY RESIDENTIAL
November 18, 2011
Page 2
4. Resolutions adopted by the Board of Trustees of the Company relating to the registration, sale and issuance of the Shares (the Board Resolutions), certified as of the date hereof by the Secretary of the Company;
5. A certificate of the State Department of Assessments and Taxation of Maryland (the SDAT) as to the good standing of the Company, dated as of the date hereof;
6. The Sixth Amended and Restated Agreement of Limited Partnership of the Operating Partnership, dated as of March 12, 2009 (the Partnership Agreement), certified as of the date hereof by an officer of the Company; and
7. A certificate executed by an officer of the Company, dated as of the date hereof.
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 another 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 (including the Companys) obligations set forth therein are legal, valid and binding.
4. All Documents submitted to us as originals are authentic. 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 statements and information contained in the Documents are true and complete. There has been no oral or written modification or amendment to the Documents, or waiver of any provision of the Documents, by action or omission of the parties or otherwise.
5. The Company will issue the Shares in accordance with the Board Resolutions and the Partnership Agreement, and, prior to the issuance of any of the Shares, the Company will have available for issuance, under the Declaration, the requisite number of authorized but unissued Common Shares.
6. The Shares will not be issued or transferred in violation of any restriction or limitation on transfer or ownership of Shares (as defined in the Declaration) contained in Article VII of the Declaration.
EQUITY RESIDENTIAL
November 18, 2011
Page 3
7. Appropriate certificates representing the Shares will be executed and delivered upon issuance and sale of any of the Shares, and will comply with the Declaration, the Bylaws and applicable law.
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that, upon issuance and delivery of the Shares as contemplated by the Board Resolutions and, if and when issued and delivered in exchange for units of limited partnership interest in the Operating Partnership in accordance with the Partnership Agreement and the Board Resolutions, the Shares will be duly authorized, validly issued, fully paid and non-assessable.
The foregoing opinion is limited to the substantive laws of the State of Maryland and we do not express any opinion herein concerning any other law. We express no opinion as to compliance with the securities (or blue sky) laws of the State of Maryland. 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.
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.
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 and to the use of the name of our firm therein under the heading Legal Matters. 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 Act.
Very truly yours, |
DLA PIPER LLP (US) |
/s/ DLA PIPER LLP (US) |
Exhibit 8
Page 1
DLA Piper LLP (US) 203 North LaSalle Street, Suite 1900 Chicago, Illinois 60601-1293 T 312.368.4000 F 312.236.7516 W www.dlapiper.com |
November 18, 2011
Board of Trustees
Equity Residential
Two North Riverside Plaza, Suite 400
Chicago, Illinois 60606
Re: | Tax Opinion - REIT Status |
Ladies and Gentlemen:
We are acting as special tax counsel to Equity Residential, a Maryland real estate investment trust (EQR), in connection with EQRs registration statement on Form S-3, as amended (Registration Statement), under the Securities Act of 1933, as amended (Securities Act), relating to the registration of 35,171 common shares of beneficial interest, $0.01 par value per share (Shares) which are to be issued from time to time by EQR upon the exchange of units of limited partnership interest in ERP Operating Limited Partnership, an Illinois limited partnership (Operating Partnership), as filed with the Securities and Exchange Commission on November 18, 2011. This opinion letter is furnished to you at your request to enable EQR to fulfill the requirements of Item 601(b)(8) of Regulation S-K, 17 C.F.R. § 229.601(b)(8), in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies of the following documents: (i) an executed copy of the Registration Statement; (ii) the Articles of Restatement of EQR (Declaration of Trust), as certified by an officer of the Company on the date hereof as then being complete, accurate, and in effect; (iii) the Seventh Amended and Restated Bylaws of EQR (Bylaws), as certified by an officer of the Company on the date hereof as then being complete, accurate, and in effect; (iv) the Sixth Amended and Restated Agreement of Limited Partnership of Operating Partnership (ERP LP Agreement); (v) resolutions of the Board of Trustees of EQR or a duly authorized committee thereof that authorizes and otherwise relates to the issuance of the Shares (Resolutions); and (vii) such other materials and matters as we have deemed necessary for the issuance of this opinion.
In addition, we have relied upon the factual representations and covenants of EQR and, to the extent set forth in the Officers Certificate (as hereinafter defined), of Multifamily Portfolio
Page 2
Partners, Inc., a Delaware corporation, EQR-District Holding, LLC, a Delaware limited liability company, and BEL Residential Properties Trust, a Maryland real estate investment trust (each such entity, along with BEL Multifamily Property Trust, a Maryland real estate investment trust, BEL Communities Property Trust, a Maryland real estate investment trust, and BEL Apartment Properties Trust, a Maryland real estate investment trust, hereinafter referred to as a Subsidiary REIT), contained in EQRs certificate to us, dated as of the date hereof (the Officers Certificate), executed by a duly appointed officer of EQR setting forth certain representations and covenants relating to the organization and operation of EQR, the Operating Partnership, the Subsidiary REITs and their respective subsidiaries.
Although we have made such inquiries and performed such investigations as we have deemed necessary for purposes of our opinion, we have not independently verified all of the facts, statements, representations and covenants set forth in the Officers Certificate or in any other document we reviewed. We consequently have assumed that the information presented in such documents or otherwise furnished to us accurately and completely describes all material facts relevant to our opinion. We are not aware of any facts that are inconsistent with any of the representations made to us in the Officers Certificate. Any representation or statement in any document upon which we rely that is made to the best knowledge of or otherwise similarly qualified is assumed to be true, correct and complete as if made without such qualification as to knowledge or belief. Any alteration or inaccuracy of such facts, statements, representations or covenants may adversely affect our opinions.
For purposes of our opinion, we have assumed that all of the representations and statements of a factual nature set forth in the documents we reviewed are true, correct and complete, and all of the obligations imposed by any such documents on the parties thereto have been and will be performed or satisfied in accordance with their terms. We have also assumed the legal capacity of all natural persons, the genuineness of all signatures, the proper execution of all documents, the authenticity of all documents submitted to us as originals, the conformity to originals of documents submitted to us as copies, and the authenticity of the originals from which any copies were made.
The opinions set forth in this letter are based on relevant provisions of the Internal Revenue Code of 1986, as amended (the Code), the regulations promulgated thereunder by the United States Department of the Treasury (Regulations) (including proposed and temporary Regulations), and interpretations of the foregoing as expressed in court decisions, the legislative history, and existing administrative rulings and practices of the Internal Revenue Service (including its practices and policies in issuing private letter rulings, which are not binding on the Internal Revenue Service (IRS) except with respect to a taxpayer that receives such a ruling), all as of the date hereof.
Page 3
In rendering these opinions, we have assumed that the transactions contemplated by the Reviewed Documents will be consummated in accordance with the terms and provisions of such documents, and that such documents accurately reflect the material facts of such transactions. In addition, the opinions are based on the correctness of the following specific assumptions:
(i) | EQR, the Operating Partnership, the Subsidiary REITs and their respective subsidiaries will each be operated in the manner described in the Declaration of Trust, the ERP LP Agreement, and the other organizational documents of each such entity, as the case may be, and all terms and provisions of such agreements and documents will be complied with by all parties thereto; |
(ii) | EQR is a duly formed real estate investment trust under the laws of the State of Maryland; |
(iii) | The Operating Partnership is a duly organized and validly existing limited partnership under the laws of the State of Illinois; and |
(iv) | There will be no change in the applicable laws of the State of Maryland, the State of Illinois, or in the Code, the Regulations, and the interpretations of the Code and such Regulations by the courts and the IRS, after the date of this letter. |
With respect to the last assumption, it should be noted that statutes, regulations, judicial decisions, and administrative interpretations are subject to change at any time and, in some circumstances, with retroactive effect. A material change that is made after the date hereof in any of the foregoing bases for our opinions could affect our conclusions. Furthermore, if the facts vary from those relied upon (including if any representations, warranties, covenants or assumptions upon which we have relied are inaccurate, incomplete, breached or ineffective), our opinion contained herein could be inapplicable.
The qualification and taxation of EQR as a real estate investment trust (REIT) under the Code will depend upon (i) EQRs meeting, in its actual operations, the applicable asset composition, source of income, shareholder diversification, distribution and other requirements of the Code and Regulations necessary for an entity to qualify as a REIT and (ii) the satisfaction by each of the Subsidiary REITs of the requirements for qualification and taxation as a REIT. We will not review the operations of EQR or any of the Subsidiary REITs, and no assurance can be given that the actual operations of EQR or any Subsidiary REIT will meet these requirements or the representations made to us with respect thereto.
Based upon and subject to the foregoing, it is our opinion that:
(i) | EQR was organized and has operated in conformity with the requirements for qualification as a REIT under the Code for its taxable years ended December 31, 1992 through December 31, 2010, and EQRs organization and proposed method of operation will enable it to continue to satisfy the requirements for qualification |
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and taxation as a REIT under the Code for its taxable years ending after the date of this opinion. |
(ii) | The discussion in each of (1) EQRs Annual Report on Form 10-K for the year ending December 31, 2010, under the heading Federal Income Tax Considerations, which is incorporated by reference into the Prospectus and (2) the Prospectus included as part of the Registration Statement under the heading Additional Federal Income Tax Considerations, to the extent that it constitutes matters of federal income tax law or legal conclusions relating thereto, is accurate in all material respects. |
The foregoing opinion is limited to the matters specifically discussed herein, which are the only matters to which you have requested our opinion. Other than as expressly stated above, we express no opinion on any issue relating to EQR or any investment therein, the Operating Partnership, any Subsidiary REIT, or under any other law.
For a discussion relating the law to the facts and the legal analysis underlying the opinions set forth in this letter, we incorporate by reference the discussion of federal income tax issues, which we assisted in preparing, in the section of EQRs Annual Report on Form 10-K for the year ended December 31, 2010, under the heading Federal Income Tax Considerations. We assume no obligation to advise you of any changes in the foregoing subsequent to the date of this opinion letter, and we are not undertaking to update the opinion letter from time to time. You should be aware that an opinion of counsel represents only counsels best legal judgment, and has no binding effect or official status of any kind, and that no assurance can be given that contrary positions may not be taken by the Internal Revenue Service or that a court considering the issues would not hold otherwise.
This opinion is rendered only to you and may not be quoted in whole or in part or otherwise referred to, nor be filed with, or furnished to, any other person or entity in connection with the Registration Statements. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement under the Securities Act of 1933, as amended, pursuant to Item 601(b)(8) of Regulation S-K, 17 C.F.R § 229.601(b)(8), and the reference to DLA Piper LLP (US) contained under the heading Legal Matters in the Prospectus included as part of the Registration Statement. In giving this consent, we do not admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder.
Very truly yours, |
DLA PIPER LLP (US) |
/s/ DLA PIPER LLP (US) |
EXHIBIT 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption Experts in the Registration Statement (Form S-3) and related Prospectus of Equity Residential for the registration of 35,171 common shares of beneficial interest and to the incorporation by reference therein of our report dated February 24, 2011 (except for Notes 11, 12, 13 and 19, as to which the date is November 10, 2011) with respect to the consolidated financial statements and schedule of Equity Residential included in its November 10, 2011 Current Report on Form 8-K (Form 8-K) and our report dated February 24, 2011 with respect to the effectiveness of internal control over financial reporting of Equity Residential included in its Annual Report (Form 10-K) for the year ended December 31, 2010, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP |
Ernst & Young LLP |
Chicago, Illinois
November 18, 2011