As filed with the Securities and Exchange Commission on July 10, 2020
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
THE SECURITIES ACT OF 1933
DOUGLAS EMMETT, INC.
(Exact name of registrant as specified in its charter)
|(State or other jurisdiction of incorporation or organization)||(I.R.S. Employer Identification No.)|
1299 Ocean Avenue, Suite 1000
Santa Monica, California 90401
(Address of Principal Office and Zip Code)
DOUGLAS EMMETT, INC. 2016 OMNIBUS STOCK INCENTIVE PLAN
(As Amended May 28, 2020)
(Full title of the plan)
Peter D. Seymour
Chief Financial Officer
1299 Ocean Avenue, Suite 1000
Santa Monica, California 90401
(Name and address of agent for service)
(Telephone number, including area code, of agent for service)
Ben D. Orlanski
Proskauer Rose LLP
2029 Century Park East, Suite 2400
Los Angeles, California 90067
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See definitions of "large accelerated filer", "accelerated filer", "smaller reporting company" and "emerging growth company" in Rule 12b-2 of the Exchange Act.
|Large accelerated filer||x||Accelerated filer||¨|
|Non-accelerated filer||¨||Smaller reporting company||¨|
|Emerging growth company||¨|
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
CALCULATION OF REGISTRATION FEE
|Title of Securities to be|
|Amount to be|
Offering Price Per
|Amount of |
|Common Stock, $0.01 par value per share||9,500,000 shares||$29.26||$277,970,000.00||$36,080.51|
|Represents additional shares of common stock, par value $0.01 per share, that are available to be delivered under the Douglas Emmett, Inc. 2016 Omnibus Stock Incentive Plan (amended May 28, 2020), as approved by the registrant’s stockholders at its Annual Meeting of Stockholders on May 28, 2020. In addition, pursuant to Rule 416(a) under the Securities Act of 1933, this registration statement also covers any additional securities to be offered or issued in connection with a stock split, stock dividend or similar transaction.|
|(2)||Estimated pursuant to Rule 457(c) and (h) under the Securities Act of 1933 solely for purposes of calculating the amount of registration fee, based upon the average of the high and low prices of the registrant’s common stock reported on July 9 2020, as reported on the New York Stock Exchange.|
This registration statement on Form S-8 is filed pursuant to General Instruction E of Form S-8. On May 28, 2020, the stockholders of Douglas Emmett, Inc. approved an amendment to the Douglas Emmett, Inc. 2016 Omnibus Stock Incentive Plan (the “2016 Plan”) to, among other things, increase by 9,500,000 the number of common shares, par value $0.01 per share, with respect to which the registrant may make awards under the 2016 Plan. The contents of the registrant’s registration statement on Form S-8 filed on June 20, 2016 (File No. 333-212129) relating to the 2016 Plan are incorporated herein by reference and made a part hereof.
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I of Form S-8 to be contained in a prospectus meeting the requirements of Section 10(a) of the Securities Act of 1933, as amended, is not required to be filed with the Securities and Exchange Commission, or SEC, and is omitted from this registration statement in accordance with the explanatory note to Part I of Form S-8 and Rule 428 under the Securities Act.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The SEC allows us to “incorporate by reference” information into this registration statement, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is deemed to be part of this registration statement, except for any information superseded by information in this registration statement.
The following documents filed by our company with the SEC are incorporated herein by reference:
· Our Annual Report on Form 10-K filed on February 14, 2020 (including information specifically incorporated by reference into our Annual Report on Form 10-K from our Definitive Proxy Statement on Schedule 14A for our 2020 annual meeting of stockholders filed on April 17, 2020);
· Our Quarterly Report on Form 10-Q filed on May 8, 2020;
· Current Reports on Form 8-K filed on May 29, 2020, May 1, 2020, and March 23, 2020;
· All other reports (other than portions of Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 of Form 8-K, unless otherwise indicated therein) filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) since December 31, 2019; and
· The description of our common stock included in our registration statement on Form 8-A (File No. 001-33106), filed on October 23, 2006, including any amendment or report filed for the purpose of updating such description.
All reports (other than portions of Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 of Form 8-K, unless otherwise indicated therein) filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, or the Exchange Act, after the date of this registration statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which de-registers all securities then remaining unsold shall be deemed to be incorporated by reference into this registration statement and to be a part hereof from the date of filing such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement.
Item 8. Exhibits.
|4.1||Articles of Amendment and Restatement of Douglas Emmett, Inc. (incorporated by reference to our Registration Statement on Amendment No. 6 to Form S-11 (Registration No. 333-135082) filed October 19, 2006).|
|4.2||Amended and Restated Bylaws of Douglas Emmett, Inc. (incorporated by reference to our Current Report on Form 8-K filed on September 6, 2013).|
|4.3||Certificate of Correction to Articles of Amendment and Restatement of Douglas Emmett, Inc. (incorporated by reference to our Current Report on Form 8-K filed October 30, 2006).|
|4.4||Bylaws Amendment (incorporated by reference to our Current Report on Form 8-K filed on April 9, 2018).|
|4.5||Form of Certificate of Common Stock of Douglas Emmett, Inc. (incorporated by reference to our Registration Statement on Amendment No. 3 to the Form S-11 (Registration No. 333-135082) filed on October 3, 2006).|
|5.1||Opinion of Venable LLP.|
|23.1||Consent of Venable LLP (included in Exhibit 5.1).|
|23.2||Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm.|
|24.1||Power of Attorney (included in signature page).|
|99.1||Douglas Emmett, Inc. 2016 Omnibus Stock Incentive Plan (as amended May 28, 2020) (incorporated by reference to Exhibit 4.2 of our Proxy Statement on Form DEF 14A filed April 17, 2020).|
|99.2||Form of Douglas Emmett, Inc. 2016 Omnibus Stock Incentive Plan Non-Qualified Stock Option Agreement. (incorporated by reference to Exhibit 99.2 of our Registration Statement on Form S-8 filed on June 20, 2016).|
|99.3||Amended Form of Douglas Emmett, Inc. 2016 Omnibus Stock Incentive Plan LTIP Unit Award Agreement.|
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Santa Monica, State of California, on this 10th day of July, 2020.
|DOUGLAS EMMETT, INC.|
|/s/ Jordan L. Kaplan|
|Name:||Jordan L. Kaplan|
|Title:||President and CEO|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Dan A. Emmett and Jordan L. Kaplan, and each of them, his or her true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement (and to any registration statement filed pursuant to Rule 462 under the Securities Act of 1933), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, 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 below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
|/s/ Jordan L. Kaplan||President, CEO and Director (Principal Executive Officer)||July 10, 2020|
|Jordan L. Kaplan|
|/s/ Peter D. Seymour||Chief Financial Officer (Principal Financial and Accounting Officer)||July 10, 2020|
|Peter D. Seymour|
|/s/ Dan A. Emmett||Chairman of the Board of Directors||July 10, 2020|
|Dan A. Emmett|
|/s/ Kenneth M. Panzer||Chief Operating Officer and Director||July 10, 2020|
|Kenneth M. Panzer|
|/s/ Christopher H. Anderson||Director||July 10, 2020|
|Christopher H. Anderson|
|/s/ Leslie E. Bider||Director||July 10, 2020|
|Leslie E. Bider|
|/s/ Dr. David T. Feinberg||Director||July 10, 2020|
|Dr. David T. Feinberg|
|/s/ Thomas E. O’Hern||Director||July 10, 2020|
|Thomas E. O’Hern|
|/s/ William E. Simon, Jr.||Director||July 10, 2020|
|William E. Simon, Jr.|
|/s/ Virginia A. McFerran||Director||July 10, 2020|
|Virginia A. McFerran|
|/s/ Johnese M. Spisso||Director||July 10, 2020|
|Johnese M. Spisso|
July 10, 2020
Douglas Emmett, Inc.
1299 Ocean Avenue, Suite 1000
Santa Monica, California 90401
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have served as Maryland counsel to Douglas Emmett, Inc., a Maryland corporation (the “Company”), in connection with certain matters of Maryland law relating to the registration and issuance by the Company of up to 9,500,000 shares (the “Shares”) of the Company’s common stock, $0.01 par value per share (the “Common Stock”), that the Company may issue pursuant to the Plan (as defined below), covered by the above-referenced Registration Statement, and all amendments thereto (the “Registration Statement”), filed by the Company with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), on or about the date hereof.
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the “Documents”):
1. The Registration Statement;
2. The charter of the Company (the “Charter”), certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
3. The Bylaws of the Company, as amended, certified as of the date hereof by an officer of the Company;
4. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
5. The Douglas Emmett, Inc. 2016 Omnibus Stock Incentive Plan (the “2016 Plan”), as amended by the Douglas Emmett, Inc. 2016 Omnibus Stock Incentive Plan Amendment No. 1 (the “Plan Amendment” and, together with the 2016 Plan, the “Plan”);
6. Resolutions (the “Resolutions”) adopted by the Board of Directors of the Company, relating to the issuance of the Shares and the approval of the Plan, certified as of the date hereof by an officer of the Company;
7. The Agreement of Limited Partnership of Douglas Emmett Properties, LP, a Delaware limited partnership (the “Operating Partnership”), as amended through the date hereof (the “Partnership Agreement”), certified as of the date hereof by an officer of the Company;
Douglas Emmett, Inc.
July 10, 2020
8. The Company’s Current Report on Form 8-K filed with the Commission on May 29, 2020;
9. A certificate executed by an officer of the Company, dated as of the date hereof; and
10. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of such individual or 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 party’s obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.
4. All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.
5. None of the Shares will be issued in violation of any restriction or limitation contained in the Charter. Upon any issuance of Shares, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Charter.
Douglas Emmett, Inc.
July 10, 2020
6. Each option, award, right or other security exercisable or exchangeable for a Share pursuant to the Plan (each, an “Award”) will be duly authorized and validly granted in accordance with the Plan, and each Award will be exercised or exchanged in accordance with the terms of the Plan and such Award, including any option or award agreement entered into in connection therewith.
7. Any units of limited partnership interest in the Operating Partnership issued pursuant to the Plan will have been duly authorized and validly issued by the Operating Partnership in accordance with the Plan and will be exchanged for Shares in accordance with the Partnership Agreement.
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.
2. The issuance of the Shares has been duly authorized and, when and if issued and delivered by the Company pursuant to the Resolutions and the Plan, the Shares will be validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning any federal law or the laws of any other jurisdiction. We express no opinion as to the applicability or effect of federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers. To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter.
The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
Douglas Emmett, Inc.
July 10, 2020
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. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act.
|Very truly yours,|
|/s/ Venable LLP|
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2016 Omnibus Stock Incentive Plan (amended May 28, 2020) of Douglas Emmett, Inc. of our reports dated February 14, 2020, with respect to the consolidated financial statements of Douglas Emmett, Inc. and the effectiveness of internal control over financial reporting of Douglas Emmett, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2019, filed with the Securities and Exchange Commission.
|/s/ Ernst & Young LLP|
|Los Angeles, California|
|July 10, 2020|
DOUGLAS EMMETT, INC.
2016 OMNIBUS STOCK INCENTIVE PLAN
LTIP UNIT AWARD AGREEMENT
|Name of the Grantee:||_______________________ (the “Grantee”)|
|No. of 2016 LTIP Units Awarded:||________________|
|Grant Effective Date:|
|Minimum Increase:||2% of Gross Asset Values (Stock price hurdle of $___ per share)|
|Vesting Date||Number of Award LTIP Units Becoming Vested||Cumulative Percentage Vested|
A. The Grantee is an employee of Douglas Emmett, Inc. (the “Company”) and its subsidiary Douglas Emmett Properties LP, through which the Company conducts substantially all of its operations (the “Partnership”).
B. Pursuant to the Company’s 2016 Omnibus Stock Incentive Plan (as amended and supplemented from time to time, the “Plan”) and the Limited Partnership Agreement (the “LP Agreement”) of the Partnership, the Company hereby grants to the Grantee an Other Stock-Based Award (as defined in the Plan, referred to herein as an “Award”) in the form of, and by causing the Partnership to issue to the Grantee, the number of 2016 LTIP Units (as defined in the LP Agreement) set forth above (the “Award LTIP Units”) having the rights, voting powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption and conversion set forth herein and in the LP Agreement. Upon the close of business on the Grant Effective Date pursuant to this 2016 LTIP Unit Award Agreement (this “Agreement”), the Grantee shall receive the Award LTIP Units, subject to the restrictions and conditions set forth herein, in the Plan and in the LP Agreement. Unless otherwise indicated, capitalized terms used herein but not defined shall have the meanings given to those terms in the Plan or the Partnership Unit Designation for the 2016 LTIP Units (the “LTIP Unit Designation”).
NOW, THEREFORE, the Company, the Partnership and the Grantee agree as follows:
1. Effectiveness of Award. Any Grantee who has not previously been admitted as a partner of the Partnership shall be admitted with beneficial ownership of the Award LTIP Units as of the Grant Effective Date by (i) signing and delivering to the Partnership a copy of this Agreement and (ii) signing, as a Limited Partner, and delivering to the Partnership a counterpart signature page to the LP Agreement (attached hereto as Exhibit A). Upon execution of this Agreement by the Grantee, the Partnership and the Company, the LP Agreement shall be amended to reflect the issuance to the Grantee of the Award LTIP Units. Thereupon, the Grantee shall have all the rights of a Limited Partner of the Partnership with respect to a number of 2016 LTIP Units equal to the Award LTIP Units, as set forth in the LP Agreement, subject, however, to the restrictions and conditions specified in Section 2 below.
Employee LTIP Award Form
2. Vesting of Award LTIP Units.
(i) Except as otherwise provided in Sections 2(iii) and 2(iv) below, the Award LTIP Units shall become vested in the amounts and at the times set forth in the table above, provided that except as set forth below the Continuous Service (as defined below) of the Grantee continues through and on the applicable Vesting Date or Dates.
(ii) There shall be no proportionate or partial vesting of Award LTIP Units in or during the months, days or periods prior to each Vesting Date, and all vesting of Award LTIP Units shall occur only on the applicable Vesting Date. Upon the termination or cessation of the Grantee’s Continuous Service, other than as provided in Section 2(iii), any portion of the Award LTIP Units which is not yet then vested shall automatically and without notice or payment of any consideration by the Company or the Partnership terminate, be forfeited and be and become null and void and neither the Grantee nor any of his successors, heirs, assigns, or personal representatives will thereafter have any further rights or interests in the Award LTIP Units.
(iii) Notwithstanding any other term or provision of this Agreement, if the principal class of securities for which the Award LTIP Units may be exchanged are no longer publicly traded following a Change of Control, then the unvested Award LTIP Units subject to this Agreement that have not been previously forfeited shall immediately vest as of the date of cessation of trading. The vesting of the Award LTIP Units subject to this Agreement shall not otherwise accelerate on a Sale Event except as provided in this Agreement or with the consent of the Committee. Notwithstanding any other term or provision of this Agreement, if the Grantee’s Continuous Service is terminated as a result of the death of the Grantee, then the unvested Award LTIP Units subject to this Agreement that have not been previously forfeited and which are scheduled to vest during the same calendar year shall immediately vest as of the date of death.
(iv) The right to redemption pursuant to Section 15.1 of the Agreement of Limited Partnership of the Partnership shall not be exercisable with respect to any Partnership Common Unit issued upon conversion of the Award LTIP Units until on or after the Transferable Date, provided however, that the foregoing restriction shall not apply if the redemption right is exercised in connection with a “Change of Control”.
(v) For purposes of this Agreement, the following terms shall have the meanings indicated:
“Change of Control” shall be deemed to have occurred (A) if the Grantee is a party to a Service Agreement, and “change of control” is defined therein, as provided in such definition, or (B) if the Grantee is not party to a Service Agreement or the Grantee’s Service Agreement does not define “change of control”, if
(i) there shall be consummated (a) any consolidation or merger of the Company, other than a merger or consolidation of the Company in which (1) the holders of the Company's common stock immediately prior to the merger or consolidation have at least fifty one percent (51%) ownership of the total voting power of the surviving entity immediately after the merger or consolidation, and (2) no person (other than an Exempted Holder as defined below) beneficially owns (as such term is defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), directly or indirectly, twenty percent (20%) or more of the total voting power of the surviving entity or (b) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the Company, or
Employee LTIP Award Form
(ii) the shareholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company, or
(iii) any person (as such term is used in Sections 13(d) and 14(d)(2) of the Exchange Act) other than an Exempted Holder (as defined below) shall become the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of twenty percent (20%) or more of the Company's Common Stock. “Exempted Holder” means (a) the Company or any majority-owned Subsidiary (provided that this exclusion applies solely to the ownership levels of the Company or the majority-owned Subsidiary); (b) any trustee, fiduciary or other person or entity holding securities under any employee benefit plan or trust sponsored or maintained by the Company or any Subsidiary; (c) any underwriter temporarily holding securities pursuant to an offering of such securities; or (d) Dan Emmett, Jordan Kaplan or Ken Panzer, their immediate family members and family trusts or family-only partnerships and any charitable foundations, any entities in which they and their families beneficially own a majority of the voting interests, and any “group” (as described in Rule 13d-5(b)(i) under the Exchange Act) including them. However, a Change in Control shall not be deemed to have occurred if a person’s percentage interest increases over twenty (20%) solely as a result of a decrease in the outstanding stock because of an acquisition of securities by the Company; provided, however, that a “Change in Control” shall be deemed to have occurred on any subsequent acquisitions of the Company's Common Stock by that person (other than pursuant to a stock split, stock dividend, or similar transaction) at a time when that person beneficially owns twenty percent (20%) or more of the Company's outstanding Common Stock, or
(iv) the Board shall cease for any reason to have a majority of Uncontested Directors. “Uncontested Directors” means directors who were initially elected or initially nominated (i) by a vote of at least two-thirds of the then Uncontested Directors and (ii) not as a result of an actual or threatened election contest with respect to directors or as a result of any other actual or threatened solicitation of proxies or consents by or on behalf of any person other than the Board, including by reason of agreement intended to avoid or settle any such actual or threatened contest or solicitation.
“Continuous Service” shall be defined (1) if the Grantee is a party to a Service Agreement, and “continuous service” or its equivalent is defined therein, as provided in such definition, or (2) if the Grantee is not party to a Service Agreement or the Grantee’s Service Agreement does not define “continuous service” or its equivalent, as the continuous service to the Company and any Subsidiary, without interruption or termination, in any capacity of employee, member of the Board or, with the written permission of the Company, consultant. Continuous Service shall not be considered interrupted in the case of (A) any approved leave of absence, (B) transfers among the Company and any Subsidiary, or any successor, in any capacity of employee, member of the Board or consultant, or (C) any change in status as long as the individual remains in the service of the Company and any Subsidiary in any capacity of employee, member of the Board or (if the Company specifically agrees in writing that the Continuous Service is not uninterrupted) a consultant. An approved leave of absence shall include sick leave, military leave, or any other authorized personal leave.
“Non-Vested LTIP Units” means any portion of the Award LTIP Units subject to this Agreement that has not become vested pursuant to Section 2.
“Service Agreement” means any written employment or other similar service agreement between Grantee and the Company.
“Vested LTIP Units” means any portion of the Award LTIP Units subject to this Agreement that is and has become vested pursuant to Section 2.
Employee LTIP Award Form
3. Distributions. Distributions on the Award LTIP Units shall be paid to the Grantee to the extent provided for in the LP Agreement. The Distribution Participation Date (as defined in the LP Agreement) for the Award LTIP Units shall be the Grant Effective Date.
4. Rights with Respect to Award LTIP Units. Without duplication with the provisions of Section 3 of the Plan, if (i) the Company shall at any time be involved in a merger, consolidation, dissolution, liquidation, reorganization, exchange of shares, sale of all or substantially all of the assets or capital stock of the Company or a transaction similar thereto, (ii) any stock dividend, stock split, reverse stock split, stock combination, reclassification, recapitalization, or other similar change in the capital structure of the Company, or any distribution to holders of Common Stock other than ordinary cash dividends, shall occur or (iii) any other event shall occur which in the judgment of the Committee necessitates action by way of adjusting the terms of the Agreement, then and in that event, the Committee shall take such action as shall be necessary to maintain the Grantee’s rights hereunder so that they are substantially proportionate to the rights existing under this Agreement prior to such event, including, but not limited to, adjustments in the number of Award LTIP Units then subject to this Agreement and substitution of other awards under the Plan or otherwise. The Grantee shall have the right to vote the Award LTIP Units if and when voting is allowed under the LP Agreement, regardless of whether vesting has occurred.
5. Book-Up Hurdle for Conversion. The Award LTIP Units have a Book-Up Hurdle with a Minimum Increase as set forth on the first page of this Agreement, and may not be converted into Partnership Common Units until after the Partnership has recognized such Minimum Increase in Gross Asset Value following the Grant Effective Date.
6. Forfeiture of Award LTIP Units if not Converted before Termination Date. The Award LTIP Units shall be forfeited, and all rights to the Award LTIP Units hereunder shall terminate and be of no further force or effect, in the event that the Conversion Date (as defined in Section 7 of the LTIP Unit Designation) for the Award LTIP Units has not occurred prior to the Termination Date set forth on the first page of this Agreement.
7. Incorporation of Plan. This Agreement is subject in all respects to the terms, conditions, limitations and definitions contained in the Plan. In the event of any discrepancy or inconsistency between this Agreement or any Service Agreement and the Plan, the terms and conditions of the Plan shall control. In the event of any discrepancy or inconsistency between this Agreement and any Service Agreement, the terms and conditions of the Service Agreement shall control.
8. Restrictions on Transfer. None of the Award LTIP Units granted hereunder shall be sold, assigned, transferred, pledged, hypothecated, given away or in any other manner disposed of, encumbered, whether voluntarily or by operation of law (each such action a “Transfer”), or redeemed in accordance with the LP Agreement (i) until the later of the date they become convertible into Partnership Common Units or, except in connection with a Change of Control, the Transferable Date, and (ii) unless such Transfer is in compliance with (a) all applicable securities laws (including, without limitation, the Securities Act of 1933, as amended (the “Securities Act”)), and (b) the applicable terms and conditions of the LP Agreement; provided that, (1) upon the approval of, and subject to the terms and conditions specified by, the Committee, LTIP Units that are then convertible into Partnership Common Units and that have been held for a period of at least two (2) years beginning on the Grant Effective Date may be Transferred to (w) the spouse, children or grandchildren of the Grantee (“Immediate Family Members”), (x) a trust or trusts for the exclusive benefit of the Grantee and such Immediate Family Members, (y) a partnership in which the Grantee and such Immediate Family Members are the only partners, or (z) one or more entities in which the Grantee has a 10% or greater equity interest, provided that the transferee agrees in writing with the Company and the Partnership to be bound by all the terms and conditions of this Agreement and that subsequent transfers of Non-Vested LTIP Units shall be prohibited except those in accordance with this Section 8 and (2) Award LTIP Units may be converted into Partnership Common Units to the extent otherwise permitted hereunder provided that the General Partner approves such conversion and any Partnership Common Units received on conversion may not be transferred or submitted for redemption other than as permitted until transferable under the provisions of clause (i). In connection with any Transfer of Award LTIP Units granted hereunder, the Partnership may require the Grantee to provide an opinion of counsel, satisfactory to the Partnership that such Transfer is in compliance with all federal and state securities laws (including, without limitation, the Securities Act). Any attempted Transfer of Award LTIP Units granted hereunder not in accordance with the terms and conditions of this Section 8 shall be null and void, and the Partnership shall not reflect on its records any change in record ownership of any Award LTIP Units as a result of any such Transfer, shall otherwise refuse to recognize any such Transfer and shall not in any way give effect to any such Transfer of any Award LTIP Units. This Agreement is personal to the Grantee, is non-assignable and is not transferable in any manner, by operation of law or otherwise, other than by will or the laws of descent and distribution.
Employee LTIP Award Form
9. Legend. The records of the Partnership evidencing the Award LTIP Units shall bear an appropriate legend, as determined by the Partnership in its sole discretion, to the effect that such Award LTIP Units are subject to restrictions as set forth herein, in the Plan and in the LP Agreement.
10. Withholding and Taxes. No later than the date as of which an amount first becomes includible in the gross income of the Grantee for income tax purposes or subject to the Federal Insurance Contributions Act withholding with respect to the Award LTIP Units granted hereunder, the Grantee will pay to the Company or, if appropriate, any of its Subsidiaries, or make arrangements satisfactory to the Committee regarding the payment of, any United States federal, state or local or foreign taxes of any kind required by law to be withheld with respect to such amount. The obligations of the Company under this Agreement will be conditional on such payment or arrangements, and the Company and its Subsidiaries shall, to the extent permitted by law, have the right to deduct any such taxes from any payment otherwise due to the Grantee.
11. Amendment, Modification. This Agreement may only be modified or amended in a writing signed by the parties hereto, provided that the Grantee acknowledges that the Plan may be amended or discontinued in accordance with Section 16 thereof and that this Agreement may be amended or canceled by the Committee, on behalf of the Company and the Partnership, for the purpose of satisfying changes in law or for any other lawful purpose, so long as no such action shall impair the Grantee’s rights under this Agreement without the Grantee’s written consent. No promises, assurances, commitments, agreements, undertakings or representations, whether oral, written, electronic or otherwise, and whether express or implied, with respect to the subject matter hereof, have been made by the parties which are not set forth expressly in this Agreement.
12. Complete Agreement. This Agreement (together with those agreements and documents expressly referred to herein, for the purposes referred to herein) embody the complete and entire agreement and understanding between the parties with respect to the subject matter hereof, and supersede any and all prior promises, assurances, commitments, agreements, undertakings or representations, whether oral, written, electronic or otherwise, and whether express or implied, which may relate to the subject matter hereof in any way.
13. Investment Representation; Registration. The Grantee hereby makes the covenants, representations and warranties set forth on Exhibit B attached hereto as of the Grant Effective Date and as of each Vesting Date. All of such covenants, warranties and representations shall survive the execution and delivery of this Agreement by the Grantee. The Grantee shall immediately notify the Partnership upon discovering that any of the representations or warranties set forth on Exhibit B was false when made or have, as a result of changes in circumstances, become false. The Partnership will have no obligation to register under the Securities Act any of the Award LTIP Units or any other securities issued pursuant to this Agreement or upon conversion or exchange of the Award LTIP Units into other limited partnership interests of the Partnership or shares of capital stock of the Company.
Employee LTIP Award Form
14. No Obligation to Continue Employment or Other Service Relationship. Neither the Company nor any Subsidiary is obligated by or as a result of the Plan or this Agreement to continue to have the Grantee provide services to it or to continue the Grantee in employment and neither the Plan nor this Agreement shall interfere in any way with the right of the Company or any Subsidiary to terminate its service relationship with the Grantee or the employment of the Grantee at any time.
15. No Limit on Other Compensation Arrangements. Nothing contained in this Agreement shall preclude the Company from adopting or continuing in effect other or additional compensation plans, agreements or arrangements, and any such plans, agreements and arrangements may be either generally applicable or applicable only in specific cases or to specific persons.
16. Status of Award LTIP Units under the Plan. The Award LTIP Units are both issued as equity securities of the Partnership and granted as “Other Stock-Based Awards” under the Plan. The Company will have the right at its option, as set forth in the LP Agreement, to issue Stock in exchange for partnership units into which Vested LTIP Units may have been converted pursuant to the LP Agreement, subject to certain limitations set forth in the LP Agreement, and such Stock, if issued, will be issued under the Plan. The Grantee acknowledges that the Grantee will have no right to approve or disapprove such election by the Company.
17. Severability. If any term or provision of this Agreement is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction or under any applicable law, rule or regulation, then such provision shall be construed or deemed amended to conform to applicable law (or if such provision cannot be so construed or deemed amended without materially altering the purpose or intent of this Agreement and the grant of Award LTIP Units hereunder, such provision shall be stricken as to such jurisdiction and the remainder of this Agreement and the award hereunder shall remain in full force and effect).
18. Section 409A. If any compensation provided by this Agreement may result in the application of Section 409A of the Code, the Company shall, in consultation with the Grantee, modify the Agreement in the least restrictive manner necessary in order to, where applicable, (i) exclude such compensation from the definition of “deferred compensation” within the meaning of such Section 409A or (ii) comply with the provisions of Section 409A, other applicable provision(s) of the Code and/or any rules, regulations or other regulatory guidance issued under such statutory provisions and to make such modifications, in each case, without any diminution in the value of the benefits granted hereby to the Grantee.
19. Law Governing. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Maryland (without reference to the conflict of laws rules or principles thereof).
20. Headings. Section, paragraph and other headings and captions are provided solely as a convenience to facilitate reference. Such headings and captions shall not be deemed in any way material or relevant to the construction, meaning or interpretation of this Agreement or any term or provision hereof.
21. Notices. Notices hereunder shall be mailed or delivered to the Partnership at its principal place of business and shall be mailed or delivered to the Grantee at the address on file with the Partnership or, in either case, at such other address as one party may subsequently furnish to the other party in writing.
22. Counterparts. This Agreement may be executed in two or more separate counterparts, each of which shall be an original, and all of which together shall constitute one and the same agreement.
23. Successors and Assigns. The rights and obligations created hereunder shall be binding on the Grantee and his heirs and legal representatives and on the successors and assigns of the Partnership.
Employee LTIP Award Form
IN WITNESS WHEREOF, the undersigned have caused this Award to be executed as of ________.
|DOUGLAS EMMETT, INC.|
|DOUGLAS EMMETT PROPERTIES LP|
|By: DOUGLAS EMMETT MANAGEMENT, INC.|
|Its: General Partner|
|City, State, Zip|
Employee LTIP Award Form
FORM OF LIMITED PARTNER SIGNATURE PAGE
The Grantee, desiring to become one of the within named Limited Partners of Douglas Emmett Properties LP, hereby becomes a party to the Agreement of Limited Partnership of Douglas Emmett Properties LP, as amended through the date hereof (the “Partnership Agreement”). The Grantee agrees that this signature page may be attached to any counterpart of the Partnership Agreement.
|Signature Line for Limited Partner:|
|Dated as of _____________|
|Address of Limited Partner:|
GRANTEE’S COVENANTS, REPRESENTATIONS AND WARRANTIES
The Grantee hereby represents, warrants and covenants as follows:
1. The Grantee has received and had an opportunity to review the following documents (the “Background Documents”):
|·||The latest Annual Report to Stockholders that has been provided to stockholders;|
|·||The Company’s Proxy Statement for its most recent Annual Meeting of Stockholders;|
|·||The Company’s Report on Form 10-K for the most recent fiscal year ended more than 60 days before the date hereof;|
|·||The Company’s Form 10-Q for the most recently ended quarter if one has been filed by the Company with the Securities and Exchange Commission since the filing of the Form 10-K described in the prior clause;|
|·||Each of the Company’s Current Report(s) on Form 8-K, if any, filed since the end of the fiscal year most recently ended for which a Form 10-K has been filed by the Company;|
|·||The Agreement of Limited Partnership of Douglas Emmett Properties LP;|
|·||The Company’s 2016 Omnibus Stock Incentive Plan; and|
|·||The Company’s Amended and Restated Certificate of Incorporation.|
The Grantee also acknowledges that any delivery of the Background Documents and other information relating to the Company and the Partnership prior to the determination by the Partnership of the suitability of the Grantee as a holder of Award LTIP Units shall not constitute an offer of Award LTIP Units until such determination of suitability shall be made.
2. The Grantee either (A) is an “accredited investor” as defined in Rule 501(a) under the Securities Act of 1933, as amended (the “Securities Act”), or (B) by reason of the business and financial experience of the Grantee, together with the business and financial experience of those persons, if any, retained by the Grantee to represent or advise him or her with respect to the grant to him or her of LTIP Units, the potential conversion of LTIP Units into common units of the Partnership (“Common Units”) and the potential redemption of such Common Units for shares of common stock in the Company (“Shares”), has such knowledge, sophistication and experience in financial and business matters and in making investment decisions of this type that the Grantee (I) is capable of evaluating the merits and risks of an investment in the Partnership and potential investment in the Company and of making an informed investment decision, (II) is capable of protecting his or her own interest or has engaged representatives or advisors to assist him or her in protecting his or her its interests, and (III) is capable of bearing the economic risk of such investment.
Employee LTIP Award Form
3. The Grantee understands that (A) the Grantee is responsible for consulting his or her own tax advisors with respect to the application of the U.S. federal income tax laws, and the tax laws of any state, local or other taxing jurisdiction to which the Grantee is or by reason of the award of LTIP Units may become subject, to his or her particular situation; (B) the Grantee has not received or relied upon business or tax advice from the Company, the Partnership or any of their respective employees, agents, consultants or advisors, in their capacity as such; (C) the Grantee provides or will provide services to the Partnership on a regular basis and in such capacity has access to such information, and has such experience of and involvement in the business and operations of the Partnership, as the Grantee believes to be necessary and appropriate to make an informed decision to accept this Award of LTIP Units; and (D) an investment in the Partnership and/or the Company involves substantial risks. The Grantee has been given the opportunity to make a thorough investigation of matters relevant to the LTIP Units and has been furnished with, and has reviewed and understands, materials relating to the Partnership and the Company and their respective activities (including, but not limited to, the Background Documents). The Grantee has been afforded the opportunity to obtain any additional information (including any exhibits to the Background Documents) deemed necessary by the Grantee to verify the accuracy of information conveyed to the Grantee. The Grantee confirms that all documents, records, and books pertaining to his or her receipt of LTIP Units which were requested by the Grantee have been made available or delivered to the Grantee. The Grantee has had an opportunity to ask questions of and receive answers from the Partnership and the Company, or from a person or persons acting on their behalf, concerning the terms and conditions of the LTIP Units. The Grantee has relied upon, and is making its decision solely upon, the Background Documents and other written information provided to the Grantee by the Partnership or the Company. The Grantee did not receive any tax, legal or financial advice from the Partnership or the Company and, to the extent it deemed necessary, has consulted with its own advisors in connection with its evaluation of the Background Documents and this Agreement and the Grantee’s receipt of LTIP Units.
4. The LTIP Units to be issued, the Common Units issuable upon conversion of the LTIP Units and any Shares issued in connection with the redemption of any such Common Units will be acquired for the account of the Grantee for investment only and not with a current view to, or with any intention of, a distribution or resale thereof, in whole or in part, or the grant of any participation therein, without prejudice, however, to the Grantee’s right (subject to the terms of the LTIP Units, the Plan and this Agreement) at all times to sell or otherwise dispose of all or any part of his or her LTIP Units, Common Units or Shares in compliance with the Securities Act, and applicable state securities laws, and subject, nevertheless, to the disposition of his or her assets being at all times within his or her control.
5. The Grantee acknowledges that (A) neither the LTIP Units to be issued, nor the Common Units issuable upon conversion of the LTIP Units, have been registered under the Securities Act or state securities laws by reason of a specific exemption or exemptions from registration under the Securities Act and applicable state securities laws and, if such LTIP Units or Common Units are represented by certificates, such certificates will bear a legend to such effect, (B) the reliance by the Partnership and the Company on such exemptions is predicated in part on the accuracy and completeness of the representations and warranties of the Grantee contained herein, (C) such LTIP Units, or Common Units, therefore, cannot be resold unless registered under the Securities Act and applicable state securities laws, or unless an exemption from registration is available, (D) there is no public market for such LTIP Units and Common Units and (E) neither the Partnership nor the Company has any obligation or intention to register such LTIP Units or the Common Units issuable upon conversion of the LTIP Units under the Securities Act or any state securities laws or to take any action that would make available any exemption from the registration requirements of such laws, except, that, upon the redemption of the Common Units for Shares, the Company currently intends to issue such Shares under the Plan and pursuant to a Registration Statement on Form S-8 under the Securities Act, to the extent that (I) the Grantee is eligible to receive such Shares under the Plan at the time of such issuance and (II) the Company has filed an effective Form S-8 Registration Statement with the Securities and Exchange Commission registering the issuance of such Shares. The Grantee hereby acknowledges that because of the restrictions on transfer or assignment of such LTIP Units acquired hereby and the Common Units issuable upon conversion of the LTIP Units which are set forth in the Partnership Agreement and this Agreement, the Grantee may have to bear the economic risk of his or her ownership of the LTIP Units acquired hereby and the Common Units issuable upon conversion of the LTIP Units for an indefinite period of time.
Employee LTIP Award Form
6. The Grantee has determined that the LTIP Units are a suitable investment for the Grantee.
7. No representations or warranties have been made to the Grantee by the Partnership or the Company, or any officer, director, shareholder, agent, or affiliate of any of them, and the Grantee has received no information relating to an investment in the Partnership or the LTIP Units except the information specified in this Paragraph (b).
8. So long as the Grantee holds any LTIP Units, the Grantee shall disclose to the Partnership in writing such information as may be reasonably requested with respect to ownership of LTIP Units as the Partnership may deem reasonably necessary to ascertain and to establish compliance with provisions of the Internal Revenue Code of 1986, as amended (the “Code”), applicable to the Partnership or to comply with requirements of any other appropriate taxing authority.
9. The address set forth on the signature page of this Agreement is the business address of the Grantee who is a resident of the country and state in which such address is sited. The Grantee has no present intention of becoming a resident of any other country, state or jurisdiction.
10. The representations of the Grantee as set forth above are true and complete to the best of the information and belief of the Grantee, and the Grantee shall promptly notify the Partnership of any changes in the foregoing representations.
Employee LTIP Award Form