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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): February 15, 2024
PEBBLEBROOK HOTEL TRUST
(Exact name of registrant as specified in its charter)
| | | | | | | | | | | | | | |
| Maryland | | 001-34571 | | 27-1055421 |
| (State or other jurisdiction | | (Commission | | (I.R.S. Employer |
| of incorporation) | | File Number) | | Identification No.) |
| | | | | | | | | | | |
| | |
4747 Bethesda Avenue, Suite 1100, Bethesda, Maryland | | 20814 |
| (Address of principal executive offices) | | (Zip Code) |
Registrant’s telephone number, including area code: (240) 507-1300
| | |
| Not Applicable |
| Former name or former address, if changed since last report |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
| | | | | | | | | | | | | | |
| Securities registered pursuant to Section 12(b) of the Act: | | | | |
| Title of each class | | Trading Symbol(s) | | Name of each exchange on which registered |
| Common Shares, $0.01 par value per share | | PEB | | New York Stock Exchange |
| Series E Cumulative Redeemable Preferred Shares, $0.01 par value | | PEB-PE | | New York Stock Exchange |
| Series F Cumulative Redeemable Preferred Shares, $0.01 par value | | PEB-PF | | New York Stock Exchange |
| Series G Cumulative Redeemable Preferred Shares, $0.01 par value | | PEB-PG | | New York Stock Exchange |
| Series H Cumulative Redeemable Preferred Shares, $0.01 par value | | PEB-PH | | New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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. ☐
Item 1.01. Entry into a Material Definitive Agreement.
The information regarding the LTIP Class B Unit Vesting Agreements, the Restricted Share Unit Award Agreements and the Performance Unit Award Agreements set forth under Item 5.02 of this Current Report on Form 8-K is hereby incorporated by reference under this Item 1.01. Copies of the forms of such agreements are filed as Exhibits 10.1, 10.2 and 10.3, respectively, to this Current Report on Form 8-K and incorporated by reference herein.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On February 15, 2024, the Board approved, as recommended by the Compensation Committee, compensatory arrangements in which the executive officers of the Company will participate for 2024. The structure of the compensatory arrangements is substantially the same as it was for 2023's compensatory arrangements.
For 2024, the Compensation Committee and the Board determined that compensation for each executive will consist of: (i) an annual cash base salary; (ii) an annual cash bonus incentive award under the Company’s 2009 Equity Incentive Plan, as amended and restated effective July 10, 2012, as amended through May 16, 2022 (the “Plan”); and (iii) regular awards of long-term equity-based compensation under the Plan.
Of the awards of long-term equity-based compensation:
•40% is subject to time-based vesting in one-third increments on January 1, 2025, 2026 and 2027 ("Time-Based Grants") and consists of Restricted Share Units (which, at vesting, will be settled in the form of common shares of beneficial interest of the Company, $0.01 par value per share (“Common Shares”)), or LTIP Class B Units of the Company’s operating partnership ("LTIP Units"); and
•60% is subject to performance-based cliff vesting following a three-year measurement period ending December 31, 2026 only if and to the extent that certain enumerated performance objectives are achieved and consists of performance units. If they become vested, the performance units will be settled in the form of Common Shares (or, at the sole discretion of the Company, cash), pursuant to the Plan.
The following table shows each of the three components of target total compensation as a percentage of target total compensation for 2024 as determined by the Compensation Committee and the Board.
| | | | | | | | | | | | | | | | | | | | |
| | 2024 Target Compensation Components |
| | As A Percentage of Target Total Compensation (1) |
| | Base Salary | | Target Cash Incentive Bonus | | Target Equity-Based Compensation (2) |
| | | | | | |
| Jon E. Bortz | | 14% | | 24% | | 62% |
| | | | | | |
| Raymond D. Martz | | 21% | | 22% | | 57% |
| | | | | | |
| Thomas C. Fisher | | 21% | | 22% | | 57% |
______________________
(1) Target total compensation includes base salary, target cash incentive bonus, the Time-Based Grant and the target amount of performance units, as discussed below.
(2) Target equity-based compensation includes the Time-Based Grant and the target amount of performance units, as discussed below.
Base Salary and Annual Cash Incentive Bonus
The Compensation Committee and the Board approved the following cash compensation arrangements for 2024 for each of the executive officers:
| | | | | | | | | | | | | | | | | | | | | | | |
| | | | | Target Cash Incentive Bonus As A % of |
| Base Salary | | Target Cash Incentive Bonus | | Base Salary | | Target Total Compensation(1) |
| | | | | | | |
| Jon E. Bortz | $817,000 | | $1,345,000 | | 165% | | 24% |
| | | | | | | |
| Raymond D. Martz | $543,000 | | $570,000 | | 105% | | 22% |
| | | | | | | |
| Thomas C. Fisher | $543,000 | | $570,000 | | 105% | | 22% |
______________________
(1) Target total compensation includes base salary, target cash incentive bonus, the Time-Based Grant and the target amount of performance units, as discussed below.
For each executive, the target cash incentive bonus is contingent on the Company meeting the target level of performance overall for the five management objectives and goals established by the Board (the “2024 Annual Objectives”), which are designed to align the interests of the executives and the Company’s other officers and employees with the interests of the Company’s shareholders.
The 2024 Annual Objectives are as follows:
•Adjusted FFO per Share Objective – 25% (up to a maximum of 62.5%) of the target cash amount may be earned based on the Company's adjusted funds from operations ("Adjusted FFO") per Common Share for 2024;
•Completed Dispositions Objective – 20% (up to a maximum of 50%) of the target cash amount may earned based on the aggregate sales price of the dispositions the Company completes during 2024, pending market conditions;
•Same-Property Hotel EBITDA per Key vs. Peers' Objective – 10% (up to a maximum of 25%) of the target cash amount may be earned based on the year-over-year growth over 2023 of same-property hotel earnings before interest, taxes, depreciation and amortization per key for the Company compared to that same metric for certain publicly listed hospitality REITs;
•Portfolio RevPAR Penetration Index Improvement Objective – 15% (up to a maximum of 37.5%) of the target cash amount may be earned based on the year-over-year improvement over 2023 of the Company's hotel portfolio's RevPAR penetration index;
•Balance Sheet Objective – 15% (up to a maximum of 37.5%) of the target cash amount may be earned based on developing plans to address 2025 term loan maturity;
•ESG Goals Objective – 10% (up to a maximum of 25%) of the target cash amount may be earned based on the Company's achieving 13 goals under its Environmental, Social and Governance program in 2024; and
•Corporate Compliance Objective – 5% (only) of the target cash amount may be earned if the Company is not determined to have a material weakness in its financial controls for 2023.
Performance results against each 2024 Annual Objective will be measured relative to threshold, target and maximum levels. Subject to a maximum payout of 200% of the target cash incentive bonus, the payout for each objective will be a minimum of 0% (if less than the threshold level of performance is met), 100% (if target performance is met) and up to a maximum of 250% (if the maximum performance level is achieved), with payout levels for results between threshold and target, or between target and maximum, being interpolated. Regardless of actual performance against any particular 2024 Annual Objective, no executive officer will be entitled to receive more than a maximum of 200% of his target cash incentive bonus. In addition, if the Company is determined to have a material weakness in its financial controls for 2024, no executive officer will be entitled to receive more than 100% of his target cash incentive bonus.
Long-Term Equity Incentive Awards
Long-term equity incentive awards are intended to provide grantees with an incentive to promote the long-term success of the Company in line with the interests of the Company’s shareholders. The Compensation Committee and the Board approved long-term equity incentive awards to each executive officer for 2024, consisting of a Time-Based Grant subject to vesting in one-third increments over three years and performance units subject to performance-based vesting following completion of a three-year measurement period.
Award of Time-Based Grants
For 2024, the Board awarded Time-Based Grants, which will vest in one-third increments on January 1, 2025, 2026 and 2027, provided that the recipient remains employed by the Company through the applicable vesting date or as otherwise described below, to Messrs. Bortz, Martz and Fisher as follows:
•Mr. Bortz - 95,747 LTIP Units;
•Mr. Martz - 40,606 LTIP Units; and
•Mr. Fisher - 40,606 Restricted Share Units.
The Time-Based Grants also provide that upon termination of the executive’s employment with the Company for cause, the unvested units are forfeited and that unvested awards vest under the following scenarios:
•upon a change in control of the Company;
•upon termination of the executive’s employment with the Company because of his death or disability;
•upon resignation of the executive for good reason (which must be in connection with or within one year after a change in control);
•upon termination of the executive’s employment with the Company without cause; and
•upon the executive's retirement (participant's age plus years of service must be at least 70; participant must be at least 55 years old, must have been employed by the Company for at least seven years, must provide at least nine months' notice, and must enter into a restricted covenants agreement).
Except as described above, any awards that are unvested at the time the executive terminates his employment with the Company are forfeited.
The time-based restricted LTIP Units and Restricted Share Units were awarded pursuant to award agreements in the forms filed as Exhibits 10.1 (LTIP Class B Unit Vesting Agreement) and 10.2 (Restricted Share Unit Award Agreement), respectively, to this Current Report on Form 8-K. The preceding descriptions of such agreements are not complete and are qualified in their entirety by reference to the full text of such forms of agreement, which are hereby incorporated herein by reference.
Award of Performance Units
For 2024, the Board awarded performance units to each of the Company’s executive officers. The performance units will vest after a three-year measurement period only if, and to the degree that, the performance criteria established by the Board (the "2024-26 Long-Term Objectives") are met and the recipient remains employed by the Company or as otherwise described below. Performance results against each 2024-26 Long-Term Objective will be measured relative to threshold, target and maximum levels. Vesting of the units for each objective will vary by performance results against that objective, from a minimum of 0% if less than the threshold performance level is met up to a maximum of 200% if the maximum performance level is achieved (and vesting for results between threshold and target, or between target and maximum, will be interpolated).
As summarized in the table below, there are two 2024-26 Long-Term Objectives for the three-year measurement period ending December 31, 2026:
•70% (up to a maximum of 140%) of the target number of performance units may vest based on the Company’s total shareholder return (common share price appreciation/depreciation plus paid dividends) (“TSR”) compared to the TSR of certain publicly listed hospitality REITs with a market capitalization greater than $500 million as of January 1, 2024 (the "Relative TSR Objective"); and
•30% (up to a maximum of 60%) of the target number of performance units may vest based on the Company’s TSR (the "Absolute TSR Objective").
| | | | | | | | | | | | | | |
| 2024-26 Long-Term Objective /Weighting | | Threshold | Target | Maximum |
| Relative TSR (70%) | Performance Level | Percentile rank = 25 | Percentile rank = 55 | Percentile rank ≥ 75 |
| Payout % of Target | 50% | 100% | 200% |
| | | | |
| Absolute TSR (30%) | Performance Level | 5.0% | 8.0% | ≥ 10.0% |
| Payout % of Target | 50% | 100% | 200% |
| | | | |
| Cap on payout if result of Absolute TSR Objective is < 0% | 100% |
In addition, if the Company’s TSR is less than 0% for the measurement period, then the maximum percentage of the target number of performance units that may vest will be capped at 100%, regardless of the degree of the Company’s out-performance, if any, against the Relative TSR Objective.
The numbers of performance units subject to vesting for the Company’s three executive officers are as follows, based on the performance level achieved against the 2024-26 Long-Term Objectives:
| | | | | | | | | | | | | | | | | | | | | | | |
| Minimum | | Threshold | | Target | | Maximum |
| Jon E. Bortz | — | | 71,810 | | 143,620 | | 287,240 |
| Raymond D. Martz | — | | 30,454 | | 60,908 | | 121,816 |
| Thomas C. Fisher | — | | 30,454 | | 60,908 | | 121,816 |
For each executive, the actual amount of performance units that will vest (and be settled in the form of Common Shares, or, at the discretion of the Company, cash) after the end of each measurement period will depend on the Company’s performance against the 2024-26 Long-Term Objectives as determined by the Compensation Committee and requires that the recipient remains employed by the Company through the end of the measurement period or as otherwise described below. The performance units will, prior to vesting, not be entitled either to receive dividends or to be voted, but dividends will, in effect, accrue on the performance units and will be paid if, but only if, and to the extent the performance units vest.
The vesting-related terms of the performance units granted to each of Messrs. Bortz, Martz and Fisher also provide that, prior to December 31, 2026, upon termination of the executive’s employment with the Company: (i) for cause, the unvested units are forfeited; and (ii) under the following scenarios, the number of units that shall vest will be up to the greater of (x) the target number of units and (y) the number of units determined by the performance provisions:
•upon a change in control of the Company;
•upon termination of the executive’s employment with the Company because of his death or disability;
•upon resignation of the executive for good reason (which must be in connection with or within one year after a change in control);
•upon termination of the executive’s employment with the Company without cause; and
•upon the executive’s retirement (as described above).
The performance units were awarded pursuant to award agreements in the form filed as Exhibit 10.3 (Performance Unit Award Agreement) to this Current Report on Form 8-K. The preceding description of such agreements is not complete and is qualified in its entirety by reference to the full text of such form of agreement, which is hereby incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
| | | | | | | | |
| Exhibit No. | | Description |
| | Form of LTIP Class B Unit Vesting Agreement (time-based vesting) for Executive Officers |
| | Form of Restricted Share Unit Award Agreement (time-based vesting) for Executive Officers |
| | Form of Performance Unit Award Agreement for Executive Officers |
| 104 | | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
* Management agreement or compensatory plan or arrangement
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| | | | | | | | | | | |
| | PEBBLEBROOK HOTEL TRUST |
| | |
| February 22, 2024 | By: | /s/ Raymond D. Martz |
| | Name: | Raymond D. Martz |
| | | Title: | Co-President, Chief Financial Officer, Treasurer and Secretary |
LTIP CLASS B UNIT VESTING AGREEMENT
Under the Pebblebrook Hotel Trust
2009 Equity Incentive Plan, as amended and restated
(Officers and Employees)
| | | | | | | | |
| Name of Grantee: | | (the “Grantee”) |
| No. of LTIP Units: | | |
| Grant Date: | | |
| Final Acceptance Date: | | |
Pursuant to the Pebblebrook Hotel Trust 2009 Equity Incentive Plan, as amended and restated (the “Plan”), and the Second Amended and Restated Agreement of Limited Partnership, dated December 13, 2013, as amended (the “Partnership Agreement”), of Pebblebrook Hotel, L.P., a Delaware limited partnership (the “Partnership”), Pebblebrook Hotel Trust, a Maryland real estate investment trust and the general partner of the Partnership (the “Company”), and for the provision of services to or for the benefit of the Partnership in a partner capacity or in anticipation of being a partner, hereby grants to the Grantee named above an Other Equity-Based Award (as defined in the Plan) (an “Award”) in the form of, and by causing the Partnership to issue to the Grantee named above, a number of LTIP Class B Units (as defined in the Partnership Agreement) specified above 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 Partnership Agreement. Upon acceptance of this LTIP Class B Unit Vesting Agreement (this “Agreement”), the Grantee shall receive, effective as of the Grant Date, the number of LTIP Class B Units specified above, subject to the restrictions and conditions set forth herein and in the Partnership Agreement.
1. Acceptance of Agreement. The Grantee shall have no rights with respect to this Agreement unless he or she shall have accepted this Agreement prior to the close of business on the Final Acceptance Date specified above by signing and delivering to the Partnership a copy of this Agreement. Upon acceptance of this Agreement by the Grantee, the Partnership Agreement shall be amended to reflect the issuance to the Grantee of the LTIP Class B Units so accepted, effective as of the Grant Date. Thereupon, the Grantee shall have all the rights of a Limited Partner of the Partnership with respect to the number of LTIP Class B Units specified above, as set forth in the Partnership Agreement, subject, however, to the restrictions and conditions specified in Section 2 below.
2. Restrictions and Conditions.
(a) The records of the Partnership evidencing the LTIP Class B Units granted herein shall bear an appropriate legend, as determined by the Partnership in its sole discretion, to the effect that such LTIP Class B Units are subject to restrictions as set forth herein and in the Partnership Agreement.
(b) LTIP Class B Units granted herein may not be sold, transferred, pledged, exchanged, hypothecated or otherwise disposed of by the Grantee prior to vesting.
(c) Subject to the provisions of Section 4, any LTIP Class B Units subject to this Award that have not become vested on or before the date that the Grantee’s employment with the Company and its Affiliates terminates shall be forfeited as of the date that such employment terminates.
3. Vesting of LTIP Class B Units. The restrictions and conditions in Section 2 of this Agreement shall lapse with respect to the numbers of LTIP Class B Units specified below on the Vesting Dates specified below, so long as the Grantee remains an employee of the Company or an Affiliate (as defined in the Plan) from the Grant Date until the applicable Vesting Date.
| | | | | |
Number of LTIP
Class B Units | Vesting Date |
| January 1, 2025 |
| January 1, 2026 |
| January 1, 2027 |
Subsequent to each Vesting Date, the LTIP Class B Units on which all restrictions and conditions have lapsed shall no longer be deemed restricted.
4. Acceleration of Vesting in Special Circumstances. All restrictions on all LTIP Class B Units subject to this Award shall be deemed waived by the Committee (as defined in the Plan) and all LTIP Class B Units granted hereby shall automatically become fully vested on the date specified below if the Grantee remains in the continuous employ of the Company or an Affiliate from the Grant Date until such date:
(a) the date that the Grantee’s employment with the Company and its Affiliates ends on account of the Grantee’s termination of employment by the Company without Cause (as defined below);
(b) the date that the Grantee’s employment with the Company and its Affiliates ends on account of the Grantee’s death or total and permanent disability (as defined in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended (the “Code”));
(c) a Control Change Date (as defined in the Plan);
(d) the date of the acquittal described below, if the Grantee’s employment with the Company and its Affiliates was ended on account of the Grantee’s termination of employment by the Company for Cause (as defined below) solely on the basis of the Grantee having been charged by the United States or a State or political subdivision thereof with conduct which is a felony under the laws of the United States or any State or political subdivision thereof and the Grantee is subsequently acquitted of the act or acts referred to in such charge; i.e., to the effect that the Grantee shall be deemed for purposes of this Agreement to have been terminated without Cause if the Grantee is subsequently acquitted of a felony charge following termination of employment based on that charge notwithstanding that the LTIP Class B Units may have been previously forfeited due to the termination of the Grantee’s employment for Cause based on such charge; or
(e) the date that the Grantee’s employment with the Company and its Affiliates ends on account of the Grantee’s termination of employment by the Grantee for Good Reason (as defined in, and in accordance with the terms of, that certain Change-in-Control Severance Agreement entered into as of [___________, 20__] by and between the Company and the Grantee).
(f) the date of that the Grantee’s employment by the Company and its Affiliates ends on account of a termination of the Grantee’s employment by the Grantee due to the Grantee’s Retirement. For this purpose, a termination of the Grantee’s employment shall constitute a “Retirement” if the Grantee terminates employment after satisfying all of the following: (i) the Grantee has attained at least 55 years of age; (ii) the Grantee has attained at least seven years of continuous employment with the Company or its Affiliates; (iii) the Grantee’s age set forth in subsection (c)(i), combined with the Grantee’s years of continuous employment in subsection (c)(ii), must equal or exceed 70; (iv) the Grantee has provided the [Company/CEO/Board] with at least 274 days’ advance written notice of his or her intent to retire (with such notice containing his or her last day of employment) and the Grantee remains in good standing with the Company (as determined by the Company) throughout such notice period; and (v) the Grantee has timely filed the Restrictive Covenants Agreement, substantially in the form attached hereto as Exhibit A.
For purposes of the Award, the term “Cause” means that the Board concludes, in good faith and after reasonable investigation, that (i) the Grantee has been charged by the United States or a State or political subdivision thereof with conduct which is a felony under the laws of the United States or any State or political subdivision thereof; (ii) the Grantee engaged in conduct relating to the Company constituting material breach of fiduciary duty, willful misconduct (including acts of employment discrimination or sexual harassment) or fraud; (iii) the Grantee breached the Grantee’s obligations or covenants under Section 4 of the Grantee’s Change in Control Severance Agreement in any material respect; or (iv) the Grantee materially failed to follow a proper directive of the Board within the scope of the Grantee’s duties (which shall be capable of being performed by the Grantee with reasonable effort) after written notice from the Board specifying the performance required and the Grantee’s failure to perform within thirty days after such notice. No act or failure to act on the Grantee’s part shall be deemed “willful” unless done, or omitted to be done, by the Grantee not in good faith or if the result thereof would be unethical or illegal.
5. Merger-Related Action. In contemplation of and subject to the consummation of a consolidation or merger or sale of all or substantially all of the assets of the Company in which outstanding common shares are exchanged for securities, cash, or other property of an unrelated corporation or business entity or in the event of a liquidation of the Company (in each case, a “Transaction”), the Board of Trustees of the Company, or the board of trustees or directors of any corporation assuming the obligations of the Company (the “Acquiror”), may, in its discretion, take any one or more of the following actions, as to the outstanding LTIP Class B Units subject to this Award: (i) provide that such LTIP Class B Units shall be assumed or equivalent awards shall be substituted, by the acquiring or succeeding entity (or an affiliate thereof), and/or (ii) upon prior written notice to the LTIP Class B Unitholders (as defined in the Partnership Agreement) of not less than 30 days, provide that such LTIP Class B Units shall terminate immediately prior to the consummation of the Transaction. The right to take such actions (each, a “Merger-Related Action”) shall be subject to the following limitations and qualifications:
(a) if all LTIP Class B Units awarded to the Grantee hereunder are eligible, as of the time of the Merger-Related Action, for conversion into Common Units (as defined and in accordance with the Partnership Agreement) and the Grantee is afforded the opportunity to effect such conversion and receive, (A) in consideration for the Common Units into which the Grantee’s LTIP Class B Units shall have been converted, the same kind and amount of consideration as other holders of Common Units in connection with the Transaction, or (B) the kind and amount of consideration payable to holders of the number of common shares into which such Common Units could be exchanged (including the right to make elections as to the type of consideration), then Merger-Related Action of the kind specified in (i) or (ii) of the first paragraph of Section 5 above shall be permitted and available to the Company and the Acquiror;
(b) if some or all of the LTIP Class B Units awarded to the Grantee hereunder are not, as of the time of the Merger-Related Action, so eligible for conversion into Common Units (in accordance with the Partnership Agreement), and the acquiring or succeeding entity is itself, or has a subsidiary which is organized as a partnership or limited liability company (consisting of a so-called “UPREIT” or other structure substantially similar in purpose or effect to that of the Company and the Partnership), then Merger-Related Action of the kind specified in clause (i) of this Section 5 above must be taken by the Acquiror with respect to all LTIP Class B Units subject to this Award which are not so convertible at the time, whereby all such LTIP Class B Units covered by this Award shall be assumed by the acquiring or succeeding entity, or equivalent awards shall be substituted by the acquiring or succeeding entity, and the acquiring or succeeding entity shall preserve with respect to the assumed LTIP Class B Units or any securities to be substituted for such LTIP Class B Units, as far as reasonably possible under the circumstances, the distribution, special allocation, conversion and other rights set forth in the Partnership Agreement for the benefit of the LTIP Class B Unitholders; and
(c) if some or all of the LTIP Class B Units awarded to the Grantee hereunder are not, as of the time of the Merger-Related Action, so eligible for conversion into Common Units (in accordance with the Partnership Agreement), and after exercise of reasonable commercial efforts the Company or the Acquiror is unable to treat the LTIP Class B Units in accordance with Section 5(b), then Merger-Related Action of the kind specified in clause (ii) of this Section 5 above must be taken by the Company or the Acquiror, in which case such action shall be subject to a provision that the settlement of the terminated award of LTIP Class B Units which are not convertible into Common Units requires a payment of the same kind and amount of consideration payable in connection with the Transaction to a holder of the number of Common Units into which the LTIP Class B Units to be terminated could be converted or, if greater, the consideration payable to holders of the number of common shares into which such Common Units could be exchanged (including the right to make elections as to the type of consideration) if the Transaction were of a nature that permitted a revaluation of the Grantee’s capital account balance under the terms of the Partnership Agreement, as determined by the Committee in good faith in accordance with the Plan.
6. Distributions. Distributions on the LTIP Class B Units shall be paid currently to the Grantee in accordance with the terms of the Partnership Agreement. The right to distributions set forth in this Section 6 shall be deemed a Dividend Equivalent Right for purposes of the Plan.
7. Incorporation of Plan. Notwithstanding anything herein to the contrary, this Agreement shall be subject to and governed by all the terms and conditions of the Plan. Capitalized terms used in this Agreement shall have the meaning specified in the Plan, unless a different meaning is specified herein.
8. Covenants. The Grantee hereby covenants as follows:
(a) So long as the Grantee holds any LTIP Class B Units, the Grantee shall disclose to the Partnership in writing such information as may be reasonably requested with respect to ownership of LTIP Class B Units as the Partnership may deem reasonably necessary to ascertain and to establish compliance with provisions of the Code applicable to the Partnership or to comply with requirements of any other appropriate taxing authority.
(b) [reserved]
(c) The Grantee hereby agrees that it does not have the current intention to dispose of the LTIP Class B Units subject to this Award within two years of receipt of such LTIP Class B Units. The Partnership and the Grantee hereby agree to treat the Grantee as the owner of the LTIP Class B Units from the Grant Date. The Grantee hereby agrees to take into account the distributive share of Partnership income, gain, loss, deduction, and credit associated with the LTIP Class B Units in computing the Grantee’s income tax liability for the entire period during which the Grantee has the LTIP Class B Units.
(d) The Grantee hereby recognizes that the IRS has proposed regulations under Sections 83 and 704 of the Code that may affect the proper treatment of the LTIP Class B Units for federal tax purposes. In the event that those proposed regulations are finalized, the Grantee hereby agrees to cooperate with the Partnership in amending this Agreement and the Partnership Agreement, and to take such other action as may be required, to conform to such regulations.
(e) The Grantee hereby recognizes that the federal tax consequences of owning and disposing of LTIP Class B Units could change in the future, either as a result of statutory changes or enactments or by regulation or administrative action or interpretations.
9. Transferability. 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, without the prior written consent of the Company.
10. Amendment. The Grantee acknowledges that the Plan may be amended or terminated in accordance with Article XV thereof and that this Agreement may be amended or canceled by the Committee, on behalf of the Partnership, for the purpose of satisfying changes in law or for any other lawful purpose, provided that no such action shall adversely affect the Grantee’s rights under this Agreement without the Grantee’s written consent. The provisions of Section 5 of this Agreement applicable to the termination of the LTIP Class B Units covered by this Award in connection with a Transaction (as defined in Section 5 of this Agreement) shall apply, mutatis mutandi, to amendments, discontinuance or cancellation pursuant to this Section 10 or the Plan.
11. No Obligation to Continue Employment. Neither the Company nor any affiliate of the Company is obligated by or as a result of the Plan or this Agreement 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 affiliate of the Company to terminate the employment of the Grantee at any time.
12. 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.
13. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, applied without regard to conflict of law principles. The parties agree that any action or proceeding arising directly, indirectly or otherwise in connection with, out of, related to or from this Agreement, any breach hereof or any action covered hereby, shall be resolved within the State of Delaware and the parties hereto consent and submit to the jurisdiction of the federal and state courts located within the District of Delaware. The parties hereto further agree that any such action or proceeding brought by either party to enforce any right, assert any claim, obtain any relief whatsoever in connection with this Agreement shall be brought by such party exclusively in federal or state courts located within the District of Delaware.
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The foregoing LTIP Class B Unit Vesting Agreement is hereby agreed to by the Company, the Partnership and the Grantee on the date shown below.
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| Date: | | | PEBBLEBROOK HOTEL TRUST |
| | | | a Maryland real estate investment trust |
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| | | PEBBLEBROOK HOTEL, L.P. |
| | | | a Delaware limited partnership |
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| | | | | By: | PEBBLEBROOK HOTEL TRUST |
| | | | | | | general partner |
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PEBBLEBROOK HOTEL TRUST
2009 EQUITY INCENTIVE PLAN
NOTICE OF RESTRICTED SHARE UNIT AWARD
Subject to the terms and conditions of this Notice of Restricted Share Unit Award (this “Notice”), the Restricted Share Unit Award Agreement attached hereto (the “Award Agreement”), and the Pebblebrook Hotel Trust 2009 Equity Incentive Plan (the “Plan”), the below individual (the “Participant”) is hereby granted the below number of Restricted Share Units (the “RSUs”) by Pebblebrook Hotel Trust, a Maryland real estate investment trust (the “Company”). Unless otherwise specifically indicated, all terms used in this Notice have the meanings set forth in the Award Agreement or the Plan.
Identifying Information:
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| Participant Name | | Date of Grant: | |
| and Address: | | Vesting Commencement Date: | |
| | Number of RSUs: | |
Vesting Schedule:
Subject to the Participant’s continuous status as an employee, trustee of the Board or a consultant, the RSUs will vest over a 3-year period in accordance with the following vesting schedule (the “Vesting Schedule”):
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| Vesting Date | | Nonforfeitable Number of RSUs |
| January 1, [____] | | [___________] |
| January 1, [____] | | [___________] |
| January 1, [____] | | [___________] |
Notwithstanding the foregoing, the RSUs will automatically become fully vested upon the earlier of: (i) the Participant’s death or “Disability” (as defined in Section 409(a)(2)(C) of the Code), (ii) immediately prior to a Change in Control of the Company, (iii) the Participant terminating the Participant’s status as an employee for Good Reason, (iv) the Company terminating the Participant’s employment without Cause, and (v) the Participant’s separation from service with the Company due to the Participant’s Retirement. For this purpose:
(a)The term “Cause” means that the Board concludes, in good faith and after reasonable investigation, that (i) the Participant has been charged by the United States or a State or political subdivision thereof with conduct which is a felony under the laws of the United States or any State or political subdivision thereof; (ii) the Participant engaged in conduct relating to the Company constituting material breach of fiduciary duty, willful misconduct (including acts of employment discrimination or sexual harassment) or fraud; (iii) the Participant breached the Participant’s obligations or covenants restricting the recruitment of Company or Affiliate employees to work for another employer set forth in an agreement with the Company in any material respect; or (iv) the Participant materially failed to follow a proper directive of the Board within the scope of the Participant’s duties (which shall be capable of being performed by the Participant with reasonable effort) after written notice from the Board specifying the performance required and the Participant’s failure to perform within 30 days after such notice. For this purpose, no act, or failure to act, on the Participant’s part shall be deemed “willful” unless done, or omitted to be done, by the Participant not in good faith or if the result thereof would be unethical or illegal;
(b)The term “Good Reason” means as defined within, and in accordance with, that certain Change-in-Control Severance Agreement entered into as of [____________ __, 20__] by and between the Company and the Participant; and
(c)The term “Retirement” means all of the following are satisfied: (i) the Participant has attained at least 55 years of age; (ii) the Participant has attained at least seven years of continuous employment with the Company; (iii) the Participant’s age set forth in subsection (c)(i), combined with the Participant’s years of continuous employment with the Company in subsection (c)(ii), must equal or exceed 70; (iv) the Participant has provided the [Company/CEO/Board] with at least 274 days’ advance written notice of the Participant’s intent to retire (with such notice containing the Participant’s last day of employment) and the Participant remains in good standing with the Company (as determined by the Company) throughout such notice period; and (v) the Participant has timely filed the Restrictive Covenants Agreement, substantially in the form attached to the Award Agreement as Exhibit A.
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Representations and Agreements of the Participant:
The Participant has reviewed this Notice, the Award Agreement and the Plan in their entirety, has had an opportunity to have them reviewed by the Participant’s legal and tax advisers, and hereby represents that the Participant is relying solely on such advisors and not on any statements or representations of the Company or any of its agents or affiliates. The Participant represents to the Company that he or she is familiar with the terms of this Notice, the Award Agreement and the Plan, and hereby accepts the RSUs subject to all of their terms. The Participant hereby agrees that all questions of interpretation and administration relating to this Notice, the Award Agreement and the Plan will be resolved solely by the Administrator.
Electronic Signature:
This Notice may be executed by the Participant and the Company by means of electronic or digital signatures, which will have the same force and effect as manual signatures. The Participant agrees that clicking “I Accept” (or a tab of similar intent) in connection with or response to any electronic communication or other medium has the effect of affixing the Participant’s electronic signature to this Notice. If required to be executed by electronic or digital signature, this Award of RSUs will be forfeited if the Participant does not so execute this Notice prior to the deadline set forth in the electronic transmission of this Notice and the Award Agreement.
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| PEBBLEBROOK HOTEL TRUST | | PARTICIPANT |
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PEBBLEBROOK HOTEL TRUST
2009 EQUITY INCENTIVE PLAN
RESTRICTED SHARE UNIT AWARD AGREEMENT
Subject to the terms and conditions of the Notice of Restricted Share Unit Award (the “Notice”), this Restricted Share Unit Award Agreement (this “Award Agreement”), and the Pebblebrook Hotel Trust 2009 Equity Incentive Plan (the “Plan”), Pebblebrook Hotel Trust, a Maryland real estate investment trust (the “Company”), hereby grants the individual set forth in the Notice (the “Participant”) Restricted Share Units (the “RSUs”) identified therein, which otherwise qualify under the Plan as an Other Equity-Based Award or any other permissible award under the Plan. Unless otherwise specifically indicated, all terms used in this Award Agreement have the meanings set forth in the Notice or the Plan.
1.Grant of an RSU. The principal features of the RSU, including the number of RSUs subject to the Award, are set forth in the Notice.
2.Vesting Schedule and Risk of Forfeiture.
(a)Vesting Schedule. Except as otherwise set forth in this Section 2 or the Plan, subject to the Participant’s continuous service as an employee, member of the Board or consultant, and any other limitations set forth in the Notice, the Plan and this Award Agreement, the RSUs will vest in accordance with the Vesting Schedule provided in the Notice (the “Vesting Schedule”). Unless and until the RSUs have vested in accordance with the Vesting Schedule, the Participant will have no right to receive any dividends or other distribution with respect to the RSUs. In the event of the termination of the Participant’s continuous service as an employee, member of the Board or consultant, prior to the vesting of all of the RSUs (but after giving effect to any accelerated vesting pursuant to this Section 2 and the Plan), any unvested RSUs (and all rights arising from such RSUs and from being a holder thereof) will terminate automatically without any further action by the Company and will be forfeited without further notice and at no cost to the Company.
(b)Risk of Forfeiture. The RSUs will be subject to a risk of forfeiture until such time as the RSUs vest in accordance with the Vesting Schedule. Notwithstanding anything in the Notice or this Award Agreement to the contrary, the vested and unvested RSUs will automatically and immediately be forfeited upon the termination of the Participant’s status as an employee, member of the Board or consultancy for Cause; provided, however, that in the event the Participant’s employment is terminated by the Company for Cause and it is later determined that the Participant is acquitted of the act or acts giving rise to the purported Cause determination, then such employment termination shall immediately and automatically be retroactively recharacterized as a termination by the Company without Cause and the accelerated vesting provisions set forth in the Vesting Schedule shall retroactively and automatically apply. The Company may implement any forfeiture under this Section 2(b) in a unilateral manner, without the Participant’s consent, and with no payment to the Participant, cash or otherwise, for the forfeited RSUs.
3.Settlement of RSUs. Subject to the terms of this Award Agreement, and as soon as administratively practicable, the vested RSUs shall be converted to Shares and distributed to the Participant in accordance with the Vesting Schedule (and irrespective of whether the Participant has attained Retirement eligibility).Any fractional RSU that becomes vested hereunder shall be rounded down at the time Shares are issued in settlement of such RSU. No fractional Shares, nor the cash value of any fractional Shares, will be issuable or payable to the Participant pursuant to this Award Agreement. All Shares issued hereunder, if any, shall be delivered either by delivering one or more certificates for such Shares to the Participant or by entering such Shares in book-entry form, as determined by the Administrator in its sole discretion. The value of the Shares shall not bear any interest owing to the passage of time. Neither this Section 3 nor any action taken pursuant to or in accordance with this Award Agreement shall be construed to create a trust or a funded or secured obligation of any kind.
4.Dividend Equivalents. The Participant shall be entitled to any Dividend Equivalents with respect to the RSUs to reflect any dividends payable on Shares. Dividend Equivalents shall be subject to the same vesting and forfeiture restrictions as the RSUs to which they are attributable and shall be paid on the same date that the RSUs to which they are attributable are settled in accordance with Section 3 hereof. Dividend Equivalents may be accumulated and deemed reinvested in additional Restricted Share Units or may be accumulated in cash, as determined by the Administrator in its discretion.
5.Taxes. The Participant hereby acknowledges and understands that the Participant may suffer adverse tax consequences as a result of the Participant’s receipt of, vesting in, or disposition of, the RSUs.
(a)Representations. The Participant has reviewed with the Participant’s tax advisors the tax consequences of the Notice, this Award Agreement and the RSUs granted hereunder, including any federal, state, local or foreign tax laws. The Participant is relying solely on such advisors and not on any statements or representations of the Administrator, the Company, any Affiliate or any of their respective agents (including, without limitation, attorneys, accountants, consultants, bankers, lenders, prospective lenders and financial representatives) for tax advice. The Participant hereby acknowledges and understands that the Participant (and not the Company nor any Affiliate) will be responsible for the Participant’s tax liability that may arise as a result of the Participant receiving this Award Agreement and the RSUs granted hereunder.
(b)Payment of Withholding Taxes. To the extent that the receipt, vesting or settlement of the RSUs results in compensation income or wages to the Participant for federal, state, local or foreign tax purposes, the Participant will make appropriate arrangements with the Company or any Affiliate for the satisfaction of all withholding requirements and other tax obligations applicable to any RSUs that vest and are settled in Shares in accordance with Section 3, which arrangements may include, at the Administrator’s election, the delivery of cash or cash equivalents, Shares (including previously owned Shares, net settlement, a broker- assisted sale, or other cashless withholding or reduction of the amount of cash or Shares otherwise issuable or delivered pursuant to this Award), other property, or any other legal consideration the Administrator deems appropriate. If such tax obligations are satisfied through the withholding of Shares that are otherwise issuable to the Participant pursuant to this Award (or through the surrender of previously owned Shares by the Participant to the Company), the maximum number of Shares of that may be so withheld (or surrendered) shall be the number of Shares that have an aggregate Fair Market Value on the date of withholding or surrender equal to the minimum withholding rate for federal, state, local and foreign tax purposes, including payroll taxes, that may be utilized without creating adverse accounting treatment for the Company with respect to this Award, as determined by the Administrator. The Participant hereby acknowledges the Company’s and any Affiliate’s obligations under this Award Agreement are fully contingent on the Participant first satisfying this Section 5(b). Therefore, a failure of the Participant to reasonably satisfy this Section 5 in accordance with the Administrator’s sole and absolute discretion will result in the automatic termination and expiration of this Award Agreement and the Company’s obligations hereunder. The Participant hereby agrees that a breach of this Section 5(b) will be deemed to be a material breach of this Award Agreement.
(c)Section 409A. Notwithstanding anything herein or in the Plan to the contrary, the RSUs granted pursuant to this Award Agreement are intended to be exempt from the limitations and requirements of Section 409A of the Code, as amended from time to time, including the guidance and regulations promulgated thereunder and successor provisions, guidance and regulations thereto (“Section 409A”) and shall be limited, construed and interpreted in accordance with such intent. Nevertheless, to the extent that the Administrator determines that the RSUs may not be exempt from Section 409A, then, if the Participant is deemed to be a “specified employee” within the meaning of Section 409A, as determined by the Administrator, at a time when the Participant becomes eligible for settlement of the RSUs upon the Participant’s “separation from service” within the meaning of Section 409A, then to the extent necessary to prevent any accelerated or additional tax under Section 409A, such settlement will be delayed until the earlier of: (a) the date that is six months following the Participant’s separation from service and (b) the Participant’s death. Notwithstanding the foregoing, the Company and the Affiliates make no representations that the RSUs provided under this Award Agreement are exempt from or compliant with Section 409A and in no event shall the Company or any Affiliate be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Participant on account of non-compliance with Section 409A.
6.Non-Transferability of RSUs. The RSUs may not be transferred in any manner other than by will or by the laws of descent and distribution. Notwithstanding the foregoing, the Participant may designate one or more beneficiaries of the Participant’s RSUs in the event of the Participant’s death on a beneficiary designation form provided by the Administrator. The terms of this Award Agreement are binding upon the executors, administrators, heirs, successors and transferees of the Participant.
7.No Rights as a Shareholder of the Company. The Participant’s receipt of the grant of RSUs pursuant to the Notice and this Award Agreement will not provide or confer rights or status as a shareholder of the Company until such time the RSUs are settled in Shares in accordance with Section 3 of this Award Agreement.
8.Legality of Initial Issuance. No Shares will be issued in accordance with Section 3 of this Award Agreement unless and until the Administrator has determined that: (a) the Company and the Participant have taken all actions required to register the Shares under the Securities Act or to perfect an exemption from the registration requirements thereof, if applicable; (b) all applicable listing requirements of any stock exchange or other securities market on which the Shares are listed, if any, have been satisfied; and (c) any other applicable provision of any Applicable Laws has been satisfied.
9.Notice. Any notice required by the terms of this Award Agreement must be given in writing and will be deemed to be effective upon the earlier of personal delivery and the fifth business day after deposit with the United States Postal Service, by registered or certified mail, with postage and fees prepaid. Notice must be addressed to the Company at its principal executive office and to the Participant at the address that the Participant he or she most recently provided to the Company or an Affiliate.
10.Successors and Assigns. Except as provided herein to the contrary, the Notice, this Award Agreement and the Plan are binding upon and will inure to the benefit of the parties to the Notice and this Award Agreement, their respective permitted successors and assigns.
11.No Assignment. Except as otherwise provided in this Award Agreement, the Participant may not assign any of the Participant’s rights under the Notice, this Award Agreement or the Plan without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company is permitted to assign its rights or obligations under the Notice, this Award Agreement and the Plan.
12.Construction; Severability. The captions and headings used in this Award Agreement are inserted for convenience and are not to be deemed to be a part of this Award Agreement for construction or interpretation. Except where otherwise indicated by the context, the singular form includes the plural form and the plural form includes the singular form. Use of the term “or” is not intended to be exclusive, unless the context clearly requires otherwise. The term “include” or “including” does not denote or imply any limitation. The term “business day” means any Monday through Friday other than such a day on which banks are authorized to be closed in the State of Maryland. The validity, legality or enforceability of the remainder of the Notice and this Award Agreement will not be affected even if one or more of the provisions of the Notice or this Award Agreement are held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect.
13.Consent to Electronic Delivery; Electronic Signature. In lieu of receiving documents in paper format, the Participant agrees, to the fullest extent permitted by Applicable Laws, to accept electronic delivery of any documents that the Company may be required to deliver (including, but not limited to, grant or award notifications and agreements, account statements, reports, and all other forms of communications) in connection with this and any other Award made or offered by the Company. Electronic delivery may be via a Company electronic mail system or by reference to a location on a Company intranet to which the Participant has access. The Participant hereby consents to any and all procedures the Company has established or may establish for an electronic signature system for delivery and acceptance of any such documents that the Company may be required to deliver, and agrees that the Participant’s electronic signature is the same as, and have the same force and effect as, the Participant’s manual signature.
14.Administration and Interpretation. Any determination by the Administrator in connection with any question or issue arising under the Notice, the Plan or this Award Agreement will be final, conclusive and binding on the Participant, the Company, its Affiliates, and all other persons. Any question or dispute regarding the interpretation of this Award Agreement or the receipt of the RSUs or Shares hereunder must be submitted by the Participant to the Administrator. The resolution of such question or dispute by the Administrator will be final and binding on all parties.
15.Counterparts. The Notice and each of the exhibits to this Award Agreement may be executed in any number of counterparts, any of which may be executed and transmitted by facsimile or portable document format (.pdf), and each of which will be deemed to be an original, but all of which together will be deemed to be one and the same instrument.
16.Entire Agreement; Governing Law; and Amendments. The provisions of the Plan and the Notice are incorporated herein by reference. The Plan, the Notice and this Award Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company, its Affiliates and the Participant with respect to the subject matter hereof, and may not be modified adversely to the Participant’s interest except by means of a writing signed by the Company and the Participant. This Award Agreement is governed by the laws of the State of Maryland applicable to contracts executed in and to be performed in the State of Maryland, without regard to conflicts of laws principles thereof. The Administrator may, in its sole discretion, amend this Award Agreement from time to time in any manner that is not inconsistent with the Plan, including to unilaterally adopt amendments to this Award Agreement or the Plan to the minimum extent necessary or appropriate (as determined by the Administrator in its sole discretion) for the RSUs to comply with Section 409A; provided, however, that except as otherwise provided in the Plan or this Award Agreement, any such amendment that materially reduces the rights of the Participant shall be effective only if it is in writing and signed by both the Participant and an authorized officer of the Company.
17.Venue. The Company, its Affiliates, the Participant and the Participant’s assignees agree that any suit, action or proceeding arising out of or related to the Notice, this Award Agreement or the Plan must be brought in the United States District Court located in or nearest to Bethesda, Maryland (or should such court lack jurisdiction to hear such action, suit or proceeding, in a state court in Maryland) and that all parties submit to the jurisdiction of such court. The parties irrevocably waive, to the fullest extent permitted by law, any objection the party may have to the laying of venue for any such suit, action or proceeding brought in such court. If any one or more provisions of this Section 18 are for any reason held invalid or unenforceable, it is the specific intent of the parties that such provisions be modified to the minimum extent necessary to make it or its application valid and enforceable.
18.No Guarantee of Continuous Service or Awards. THE PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF RSUS PURSUANT TO THE VESTING SCHEDULE IS EARNED ONLY BY CONTINUOUS SERVICE AS AN EMPLOYEE, MEMBER OF THE BOARD OR CONSULTANCY AT THE WILL OF THE COMPANY OR ANY AFFILIATE, AS APPLICABLE (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THE RSUS OR ACQUIRING SHARES HEREUNDER). THE PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT THIS AWARD AGREEMENT, THE RIGHTS GRANTED HEREUNDER, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUOUS SERVICE AS AN EMPLOYEE, MEMBER OF THE BOARD OR CONSULTANCY FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND DO NOT INTERFERE IN ANY WAY WITH THE PARTICIPANT’S RIGHT OR THE RIGHT OF THE COMPANY OR ANY AFFILIATE TO TERMINATE THE PARTICIPANT’S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE. THE GRANT OF THE RSUS IS A ONE-TIME BENEFIT AND DOES NOT CREATE ANY CONTRACTUAL OR OTHER RIGHT TO RECEIVE A GRANT OF AWARDS OR BENEFITS IN LIEU OF AWARDS IN THE FUTURE. ANY FUTURE AWARDS WILL BE GRANTED AT THE SOLE DISCRETION OF THE COMPANY.
19.Clawback. Notwithstanding any provision in the Notice, this Award Agreement or the Plan to the contrary, in consideration for the grant of the Award, the Participant agrees that this Award Agreement is subject to the Company’s Clawback Policy, amended and restated by the Board on July 20, 2023 (as such policy may be amended or amended and restated by the Board from time to time, the “Clawback Policy”), and that all other Agreements between the Company and the Participant are hereby amended such that all of such Agreements shall be subject to the Clawback Policy.
20.Unsecured General Creditor. The Participant has no legal or equitable rights, interests or claims in any property or assets of the Company due to the Notice, this Award Agreement and the grant of RSUs hereunder. For purposes of the payment of benefits under the Notice and this Award Agreement, the Participant has no more rights than those of a general creditor of the Company. The Company’s obligation under the Notice and this Award Agreement will be that of a conditional unfunded and unsecured promise to pay money or property in the future.
21.Waiver. Failure to insist upon strict compliance with any of the terms, covenants, or conditions hereof will not be deemed to be a waiver of such term, covenant, or condition, nor will any waiver or relinquishment of, or failure to insist upon strict compliance with, any right or power hereunder at any one or more times be deemed to be a waiver or relinquishment of such right or power at any other time or times.
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PEBBLEBROOK HOTEL TRUST
Performance Unit Award Agreement for Executive Officers
THIS PERFORMANCE UNIT AWARD AGREEMENT (this “PUA Agreement”) governs the Performance Unit Award granted by PEBBLEBROOK HOTEL TRUST, a Maryland real estate investment trust (the “Company”), to [____________________] (the “Participant”), in accordance with and subject to the provisions of the Company’s 2009 Equity Incentive Plan, as amended and restated effective July 10, 2012, as amended through May 16, 2022 (the “Plan”). A copy of the Plan has been made available to the Participant. All terms used in this PUA Agreement that are defined in the Plan have the same meaning given them in the Plan.
1.Grant of Performance Unit Award. In accordance with the Plan, and effective as of February 15, 2024 (the “Date of Grant”), the Company granted to the Participant, subject to the terms and conditions of the Plan and this PUA Agreement, a Performance Unit Award (the “Award”) with respect to [__________] Performance Units, which are referred to herein as the “Target Performance Units”. The Award represents the right to receive one Common Share for each Performance Unit that is earned in accordance with, and subject to, the terms of this PUA Agreement. Subject to the terms and conditions of this PUA Agreement, more than 100% of the Target Performance Units may be earned but under no circumstances may more than 200% of the Target Performance Units be earned. The Award includes Dividend Equivalent Rights as described in Section 6.
2.Performance Vesting. The Participant shall earn Performance Units, i.e., the Participant’s interest in Performance Units shall become vested and nonforfeitable (“Vested”), to the extent provided in paragraphs 2(a) and 2(b) as determined and certified by the Committee pursuant to Section 5 and as of the date of such certification, provided that the Participant remains employed by the Company or an Affiliate from the Date of Grant through the end of the Measurement Period (as defined below). No more than 200% of the Target Performance Units can become Vested pursuant to the calculations set forth in paragraphs 2(a) and 2(b). This PUA Agreement shall be interpreted in a manner consistent with the examples of the calculations pursuant to paragraphs 2(a) and 2(b) as set forth on Exhibit A attached hereto.
(a)Relative TSR Measurement. The Participant’s interest in a number of Performance Units, not to exceed 140% of the Target Performance Units, shall become Vested based on Company TSR (as defined below) compared to the TSR (as defined below) of each member of the Peer Group (as defined below) as set forth in this paragraph 2(a). The number of Performance Units, if any, which shall become Vested under this paragraph 2(a) shall in no event exceed 140% of the Target Performance Units or be less than zero and shall be determined according to one of the three following scenarios, based on Percent Rank (as defined below), and in each case the result shall be calculated to, and rounded up to, the nearest whole number:
i.if Percent Rank is less than 0.25, then no Performance Units shall become Vested under this paragraph 2(a).
ii.if Percent Rank is greater than or equal to 0.25 and is also less than 0.55, then the number of Performance Units that shall become Vested under this paragraph 2(a) shall be equal to the result of the following formula:
(Target Performance Units * 0.7) * ((5 * Percent Rank + 0.25) / 3).
iii.if Percent Rank is greater than or equal to 0.55, then the number of Performance Units that shall become Vested under this paragraph 2(a) shall be equal to the result of the following formula, subject in all cases to a maximum of 140% of the Target Performance Units:
(Target Performance Units * 0.7) * (5 * Percent Rank – 1.75)
; provided, however, that if Company TSR is less than zero, then the maximum number of Performance Units that shall become Vested under this paragraph 2(a) shall be equal to Target Performance Units, even if the formula set forth immediately above results in an amount that is greater than Target Performance Units.
(b)Absolute TSR Measurement. The Participant’s interest in a number of Performance Units, not to exceed 60% of the Target Performance Units, shall become Vested based on Company TSR as set forth in this paragraph 2(b). The number of Performance Units, if any, which shall become Vested under this paragraph 2(b) shall in no event exceed 60% of the Target Performance Units or be less than zero and shall be determined according to one of the three following scenarios, based on Company TSR, and in each case the result shall be calculated to, and rounded up to, the nearest whole number:
i.if Company TSR is less than 5%, then no Performance Units shall become Vested under this paragraph 2(b).
ii.if Company TSR is greater than or equal to 5% and is also less than 8%, then the number of Performance Units that shall become Vested under this paragraph 2(b) shall be equal to the result of the following formula:
(Target Performance Units * 0.3) * (50 * (Company TSR – 2%) / 3)
iii.if Company TSR is greater than or equal to 8%, then the number of Performance Units that shall become Vested under this paragraph 2(b) shall be equal to the result of the following formula, subject in all cases to a maximum of 60% of the Target Performance Units:
(Target Performance Units * 0.3) * (50 * Company TSR – 300%).
3.Termination of Employment. Except as provided in paragraphs 3(a), 3(b), 3(c), 3(d), 3(e) and 3(f), the Participant’s interest in all of the Performance Units that have not Vested on or before the date on which the Participant’s employment with the Company or an Affiliate terminates or is terminated will be forfeited on the date of such termination.
(a)Change in Control. If a Control Change Date occurs before January 1, 2027, and if the Participant remains in the continuous employ of the Company or an Affiliate from the Date of Grant until the Control Change Date, the Participant’s interest shall become Vested in the greater of (i) 100% of the Target Performance Units and (ii) the number of Performance Units (which may exceed 100% of the Target Performance Units) that become Vested in accordance with paragraphs 2(a) and 2(b). If the Participant’s interest in any Performance Units becomes Vested under this paragraph 3(a), then the Participant’s interest in no other Performance Units shall become Vested under this PUA Agreement.
(b)Death or Disability. If the Participant’s employment by the Company or its Affiliates terminates before January 1, 2027, on account of death or disability (as defined in Code section 22(e)(3)) and if the Participant remains in the continuous employ of the Company or an Affiliate from the Date of Grant until the date of such termination, the Participant’s interest shall become Vested in the greater of (i) 100% of the Target Performance Units and (ii) the number of Performance Units (which may exceed 100% of the Target Performance Units) that become Vested in accordance with paragraphs 2(a) and 2(b). If the Participant’s interest in any Performance Units becomes Vested under this paragraph 3(b), then the Participant’s interest in no other Performance Units shall become Vested under this PUA Agreement.
(c)Termination of Employment Without Cause. If the Participant’s employment by the Company or its Affiliates ends before January 1, 2027, on account of a termination of the Participant’s employment by the Company or an Affiliate without Cause (as defined below) and if the Participant remains in the continuous employ of the Company or an Affiliate from the Date of Grant until the date of such termination, the Participant’s interest shall become Vested in:
(i)if the date of such termination is before January 1, 2025, then (A) the greater of (x) one-third of the Target Performance Units and (y) one-third of the number of Performance Units that become Vested in accordance with paragraphs 2(a) and 2(b); plus (B) two-thirds of the Target Performance Units;
(ii)if the date of such termination is after December 31, 2024 but before January 1, 2026, then (A) the greater of (x) two-thirds of the Target Performance Units and (y) two-thirds of the number of Performance Units that become Vested in accordance with paragraphs 2(a) and 2(b); plus (B) one-third of the Target Performance Units; or
(iii)if the date of such termination is after December 31, 2025, then the greater of (i) 100% of the Target Performance Units and (ii) the number of Performance Units (which may exceed 100% of the Target Performance Units) that become Vested in accordance with paragraphs 2(a) and 2(b).
If the Participant’s interest in any Performance Units becomes Vested under this paragraph 3(c), then the Participant’s interest in no other Performance Units shall become Vested under this PUA Agreement.
(d)Termination of Employment for Cause. If the Participant’s employment by the Company or its Affiliates ends before January 1, 2027, on account of a termination of the Participant’s employment by the Company or an Affiliate for Cause and if the Participant remains in the continuous employ of the Company or an Affiliate from the Date of Grant until the date of such termination, the Participant’s interest in all of the Performance Units that have not earlier Vested shall be forfeited; provided, however, that in the event the Participant is terminated for Cause as defined in paragraph (7)(a)(i) and the Participant is subsequently acquitted of the act or acts referred to therein, then the Participant shall be deemed for purposes of this PUA Agreement to have been terminated without Cause as of the date of the termination and the Participant’s interest shall become Vested in the number of Performance Units determined in accordance with paragraph 3(c) notwithstanding that a number of Performance Units may have been previously forfeited due to the termination of the Participant’s employment for Cause based on such charge.
(e)Termination of Employment by the Participant for Good Reason. If the Participant’s employment by the Company or its Affiliates ends before January 1, 2027, on account of a termination of the Participant’s employment by the Participant for Good Reason (as defined in, and in accordance with the terms of, that certain Change-in-Control Severance Agreement entered into as of [______________ 20__] by and between the Company and the Participant) and if the Participant remains in the continuous employ of the Company or an Affiliate from the Date of Grant until the date of such termination, the Participant’s interest shall become Vested in the greater of (i) 100% of the Target Performance Units and (ii) the number of Performance Units (which may exceed 100% of the Target Performance Units) that become Vested in accordance with paragraphs 2(a) and 2(b). If the Participant’s interest in any Performance Units becomes Vested under this paragraph 3(e), then the Participant’s interest in no other Performance Units shall become Vested under this PUA Agreement.
(f)Termination of Employment by the Participant Due to Retirement. If the Participant’s employment by the Company or its Affiliates ends before January 1, 2027, on account of a termination of the Participant’s employment by the Participant due to his Retirement, then the Participant’s interest shall become Vested in the greater of (i) 100% of the Target Performance Units and (ii) the number of Performance Units (which may exceed 100% of the Target Performance Units) that become Vested in accordance with paragraphs 2(a) and 2(b). If the Participant’s interest in any Performance Units becomes Vested under this paragraph 3(e), then the Participant’s interest in no other Performance Units shall become Vested under this PUA Agreement. For this purpose, a termination of the Participant’s employment with the Company shall constitute a “Retirement” if the Participant terminates employment after satisfying all of the following: (i) the Participant has attained at least 55 years of age; (ii) the Participant has attained at least seven years of continuous employment with the Company; (iii) the Participant’s age set forth in subsection (c)(i), combined with the Participant’s years of continuous employment with the Company in subsection (c)(ii), must equal or exceed 70; (iv) the Participant has provided the [Company/CEO/Board] with at least 274 days’ advance written notice of his or her intent to retire (with such notice containing his or her last day of employment) and the Participant remains in good standing with the Company (as determined by the Company) throughout such notice period; and (v) the Participant has timely filed the Restrictive Covenants Agreement, substantially in the form attached hereto as Exhibit B.
4.Transferability. The Performance Units evidenced by this PUA Agreement cannot be transferred; provided, however, that, subject to the requirements of applicable securities laws, the Participant’s rights in the Performance Units evidenced by this PUA Agreement may be transferred by will or the laws of descent and distribution.
5.Settlement of Performance Units. As soon as practicable after the end of the Measurement Period, but in all events not later than March 15 of the year following the end of the Measurement Period, the Committee shall determine and certify the extent to which the performance objectives described herein have been achieved and the number of Performance Units that have become Vested (which may be greater than 100% of the Target Performance Units but in no event shall be greater than 200% of the Target Performance Units). As soon as practicable after the Committee’s certification in accordance with the preceding sentence, but in all events no later than March 15 of the year following the end of the Measurement Period, the Company shall issue to the Participant, in the Company’s sole discretion, either (a) Common Shares in a number equal to the number of Performance Units that the Committee certified have become Vested or (b) a single sum cash payment equal to the Fair Market Value of the number of Common Shares described in clause (a) of this sentence.
6.Dividend Equivalent Rights. As soon as practicable after the issuance of Common Shares as described in Section 5, the Company shall make a single sum cash payment to the Participant equal to the cumulative amount of dividends paid during the Measurement Period on the number of Common Shares equal to the number of Performance Units that the Committee certified have become Vested. No cash amount will be paid as Dividend Equivalent Rights with respect to Performance Units that do not become Vested.
7.Definitions. For purposes of this PUA Agreement, the terms Cause, Company TSR, Measurement Period, Peer Group and TSR shall have the following meanings:
(a)“Cause” means that the Board concludes, in good faith and after reasonable investigation, that: (i) the Participant has been charged by the United States or a State or political subdivision thereof with conduct which is a felony under the laws of the United States or any State or political subdivision thereof; (ii) the Participant engaged in conduct relating to the Company constituting material breach of fiduciary duty, willful misconduct (including acts of employment discrimination or sexual harassment) or fraud; (iii) the Participant breached in any material respect the Participant’s obligations or covenants, if any, restricting the recruitment of employees of the Company or an Affiliate to work for another employer set forth in an agreement with the Company; or (iv) the Participant materially failed to follow a proper directive of the Board within the scope of the Participant’s duties (which shall be capable of being performed by the Participant with reasonable effort) after written notice from the Board specifying the performance required and the Participant’s failure to perform within 30 days after such notice. For this purpose, no act, or failure to act, on the Participant’s part shall be deemed “willful” unless done, or omitted to be done, by the Participant not in good faith or if the result thereof would be unethical or illegal.
(b)“Company TSR” means the TSR of the Company over the term of the Measurement Period. If, before January 1, 2027, (A) a Change in Control occurs, (B) the Participant’s employment by the Company or its Affiliates terminates on account of death or disability or (C) the Participant’s employment by the Company or its Affiliates terminates without Cause as contemplated by paragraph 3(c), the TSR of the Company for the period from the then-most recent fiscal year end to the end of the Measurement Period shall be annualized for purposes of calculating Company TSR.
(c)“Measurement Period” means the period beginning on January 1, 2024 and ending on December 31, 2026; provided, however, that in the event that during such period (A) a Change in Control occurs, (B) the Participant’s employment by the Company or its Affiliates terminates on account of death or disability or (C) the Participant’s employment by the Company or its Affiliates terminates without Cause as contemplated by paragraph 3(c), the Measurement Period shall end on the date of the event described in clause (A), (B) or (C) above for purposes of calculating Company TSR and the TSR of each member of the Peer Group.
(d)“Peer Group” means the following ten companies: Apple Hospitality REIT, Inc., Chatham Lodging Trust, DiamondRock Hospitality Company, Host Hotels & Resorts, Inc., Park Hotels & Resorts Inc., RLJ Lodging Trust, Ryman Hospitality Properties, Inc., Summit Hotel Properties, Inc., Sunstone Hotel Investors, Inc. and Xenia Hotels & Resorts, Inc. If the common shares (or shares of common stock, as applicable) of any member of the Peer Group cease permanently to be publicly traded during the Measurement Period, the TSR of such member of the Peer Group shall be excluded from the calculations set forth in paragraph 2(a) for any year or quarter during the Measurement Period in which such shares are not publicly traded. If, before January 1, 2027, (A) a Change in Control occurs, (B) the Participant’s employment by the Company or its Affiliates terminates on account of death or disability or (C) the Participant’s employment by the Company or its Affiliates terminates without Cause as contemplated by paragraph 3(c), the arithmetic average of the TSR of each member of the Peer Group for the period from the then-most recent fiscal year end to the end of the Measurement Period shall be annualized for purposes of the calculations set forth in paragraph 2(a).
(e)“Percent Rank” for any given period means Company TSR’s percentile rank relative to the TSRs of the members of the Peer Group and shall be calculated using the Microsoft Excel formula
=IF(Y>MAX(X),1,IF(Y<MIN(X),0,IFERROR(PERCENTRANK(X,Y),0)))
, in which “X” shall be a list of the TSRs of each member of the Peer Group for such period, and “Y” shall be Company TSR for such period.
(f)“TSR” means the average annual total shareholder or stockholder (as applicable) return during a given period (i.e., the price appreciation/depreciation per common share or share of common stock (as applicable) during a given period plus dividends paid on such shares during the same period) of a given entity, expressed as a percentage, as determined using data provided by Bloomberg. For purposes of calculating price appreciation/depreciation per common share (or share of common stock, as applicable), the per-share prices for the beginning and end of the Measurement Period are to be determined by averaging the closing prices for such shares as reported on the New York Stock Exchange (the “NYSE”) or other applicable principal securities exchange in which the given entity’s shares are traded for each of the trading days during the last 30 calendar days preceding the start or end, as applicable, of the Measurement Period. For purposes of calculating TSR, dividends for the given period shall be treated as reinvested.
8.Shareholder Rights. Participant shall not have any rights as a shareholder of the Company with respect to the Performance Units. Upon the issuance of Common Shares in settlement of Performance Units that have become Vested, the Participant shall have all of the rights of a shareholder of the Company with respect to those shares, including the right to vote the shares and to receive dividends on the shares.
9.No Right to Continued Employment. The grant of the Performance Unit Award pursuant to this PUA Agreement does not give the Participant any rights with respect to continued employment by the Company or an Affiliate.
10.Governing Law. This PUA Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of Maryland without reference to principles of conflict of laws.
11.Conflicts. The Participant agrees that in the event of any conflict between the provisions of the Plan as in effect on the Date of Grant and this PUA Agreement, the provisions of the Plan shall govern. All references herein to the Plan shall mean the Plan as in effect on the Date of Grant.
12.Participant Bound by Plan. The Participant hereby acknowledges that a copy of the Plan has been made available to the Participant and the Participant agrees to be bound by all the terms and provisions of the Plan.
13.Recoupment. In consideration for the grant of the Award, the Participant agrees that this PUA Agreement is subject to the Company’s Clawback Policy, amended and restated by the Board on July 20, 2024 (as such policy may be amended or amended and restated by the Board from time to time, the “Clawback Policy”), and that all other Agreements between the Company and the Participant are hereby amended such that all of such Agreements shall be subject to the Clawback Policy.
14.Binding Effect. Subject to the limitations stated above and in the Plan, this PUA Agreement shall be binding upon the Participant and the Participant’s successors in interest and the Company and any successors of the Company.
[Signatures appear on following page.]
IN WITNESS WHEREOF, the Company and the Participant have executed this PUA Agreement effective as of the Date of Grant.
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EXHIBIT A - ILLUSTRATIVE EXAMPLES
assuming an award of 50 Target Performance Units (“TPUs”)
I. Relative TSR Measurement (paragraph 2(a))
Example A: In which Percent Rank = .85 (i.e., the percentile rank of Company TSR relative to the TSRs of the members of the Peer Group is 85%), and Company TSR ≥ 0%.
= (TPUs x 0.7) x (5 x Percent Rank – 1.75)
= 35 x (4.25 – 1.75 )
= 87.5 70 Performance Units (capped at 200% of 70% of TPUs) 70 Common Shares
Example B: Same as Example A, except that Company TSR is < 0%.
= 87.5 35 Performance Units (capped at 100% of 70% of TPUs) 35 Common Shares
Example C: In which Percent Rank = 0.60 (i.e., the percentile rank of Company TSR relative to the TSRs of the members of the Peer Group is 60%), and Company TSR ≥ 0%.
= (TPUs x 0.7) x (5 x Percent Rank – 1.75)
= 35 x (3 – 1.75 )
= 43.75 44 Performance Units 44 Common Shares
Example D: In which Percent Rank = 0.25 (i.e., the percentile rank of Company TSR relative to the TSRs of the members of the Peer Group is 25%), and Company TSR ≥ 0%.
= (TPUs x 0.7) x (5 x Percent Rank + 0.25) / 3
= 35 x (1.25 + 0.25 ) / 3
= 17.5 18 Performance Units 18 Common Shares
Example E: In which Percent Rank = 0.20 (i.e., the percentile rank of Company TSR relative to the TSRs of the members of the Peer Group is 20%), and Company TSR ≥ 0%.
= 0, because 0.20 is below the Threshold level of 0.25.
| | | | | | | | |
| Relative TSR (paragraph 2(a)) |
| Percent | Number of Performance Units Vested If Company TSR Is: |
| Rank | ≥ 0% | < 0% |
< 25% | 0 | 0 |
25% | 18 | 18 |
30% | 21 | 21 |
35% | 24 | 24 |
40% | 27 | 27 |
45% | 30 | 30 |
50% | 33 | 33 |
55% | 35 | 35 |
60% | 44 | 35 |
65% | 53 | 35 |
70% | 62 | 35 |
75% | 70 | 35 |
> 75% | 70 | 35 |
II. Absolute TSR Measurement (paragraph 2(b))
Example A: In which Company TSR = 11%
= (TPUs x 0.3) x (50 x Company TSR – 300%)
= 15 x (550% -- 300%)
= 15 x 250%
= 37.5 30 Performance Units (capped at 200% of 30% of TPUs) 30 Common Shares
Example B: In which Company TSR = 9%
= (TPUs x 0.3) x (50 x Company TSR – 300%)
= 15 x (450% -- 300%)
= 15 x 150%
= 22.5 23 Performance Units 23 Common Shares
Example B: In which Company TSR = 6%
= (TPUs x 0.3) x (50 x (Company TSR – 2%) / 3)
= 15 x (50 x 4%) / 3
= 15 x 200% / 3
= 10 10 Performance Units 10 Common Shares
Example C: In which Company TSR = 4%
= 0, because 4% is below the threshold level of 5%.
| | | | | |
| Absolute TSR (paragraph 2(b)) |
Company
TSR | Number of
Performance
Units Vested |
< 5.0% | 0 |
5.0% | 8 |
5.5% | 9 |
6.0% | 10 |
6.5% | 12 |
7.0% | 13 |
7.5% | 14 |
8.0% | 15 |
8.5% | 19 |
9.0% | 23 |
9.5% | 27 |
10.0% | 30 |
> 10.0% | 30 |
v3.24.0.1
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