EXECUTIVE TIME-BASED PROFITS INTEREST UNIT AGREEMENT (US)
Exhibit 10.60
EXECUTIVE TIME-BASED PROFITS INTEREST UNIT AGREEMENT (US)
This Profits Interest Unit Agreement (this “Agreement”), dated as of #GrantDate# (the “Grant Date”), is made by and between Digital Realty Trust, L.P., a Maryland limited partnership (the “Partnership”) and #ParticipantName# (the “Participant”).
WHEREAS, Digital Realty Trust, Inc., a Maryland corporation (the “Company”) and the Partnership maintain the Digital Realty Trust, Inc., Digital Services, Inc. and Digital Realty Trust, L.P. 2014 Incentive Award Plan (as amended from time to time, the “Plan”);
WHEREAS, the Company and the Partnership wish to carry out the Plan (the terms of which are hereby incorporated by reference and made a part of this Agreement);
WHEREAS, Section 9.7 of the Plan provides for the issuance of Profits Interest Units to Eligible Individuals for the performance of services to or for the benefit of the Partnership in the Eligible Individual’s capacity as a partner of the Partnership;
WHEREAS, the Committee, appointed to administer the Plan, has determined that it would be to the advantage and in the best interest of the Company and its stockholders to issue the Award (as defined below) to the Participant as an inducement to enter into or remain in the service of the Company, the Partnership, the Services Company or any Subsidiary, and as an additional incentive during such service, and has advised the Company thereof; and
WHEREAS, the Company and the Participant desire to reflect that the Award constitutes sufficient consideration for the Participant’s entry into the Employee Confidentiality and Covenant Agreement (as more fully set forth below).
NOW, THEREFORE, in consideration of the mutual covenants herein contained and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto do hereby agree as follows:
Exhibit 10.60
Exhibit 10.60
Exhibit 10.60
Exhibit 10.60
Exhibit 10.60
Exhibit 10.60
“The offering and sale of the securities represented hereby have not been registered under the Securities Act of 1933, as amended (the “Securities Act”). Any transfer of such securities will be invalid unless a Registration Statement under the Securities Act is in effect as to such transfer or in the opinion of counsel for the Partnership such registration is unnecessary in order for such transfer to comply with the Securities Act.”
“The securities represented hereby are subject to forfeiture, transferability and other restrictions as set forth in (i) a written agreement with the Partnership, (ii) the Digital Realty Trust, Inc., Digital Services, Inc. and Digital Realty Trust, L.P. 2014 Incentive Award Plan and (iii) the Amended and Restated Agreement of Limited Partnership of Digital Realty Trust, L.P., in each case, as has been and as may in the future be amended (or amended and restated) from time to time, and such securities may not be sold or otherwise transferred except pursuant to the provisions of such documents.”
Exhibit 10.60
Exhibit 10.60
Exhibit 10.60
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.
a Maryland limited partnership
By: Digital Realty Trust, Inc., a Maryland corporation
Its: General Partner
By: /s/ Xxxxxxx Xxx
Name:Xxxxxxx Xxx
Title: Executive Vice President, General Counsel and Secretary
The Participant hereby accepts and agrees to be bound by all of the terms and conditions of this Agreement.
#ParticipantName#
Doc Control No: [__]
Exhibit 10.60
Exhibit A
Vesting Schedule and Notice Address
Vesting Schedule
#VestingDateandQuantity#
Partnership Address
0000 Xxxxxxxxx Xxxxxxx
Building 0, Xxxxx 000
Austin, TX 78735
Exhibit 10.60
Exhibit B
FORM OF SECTION 83(b) ELECTION AND INSTRUCTIONS
These instructions are provided to assist you if you choose to make an election under Section 83(b) of the Internal Revenue Code, as amended, with respect to the Profits Interest Units of Digital Realty Trust, L.P. transferred to you. Please consult with your personal tax advisor as to whether an election of this nature will be in your best interests in light of your personal tax situation.
The executed original of the Section 83(b) election must be filed with the Internal Revenue Service not later than 30 days after the grant date. PLEASE NOTE: There is no remedy for failure to file on time. Follow the steps outlined below to ensure that the election is mailed and filed correctly and in a timely manner. ALSO, PLEASE NOTE: If you make the Section 83(b) election, the election is irrevocable.
Complete all of the Section 83(b) election steps below:
| 1. | Complete the Section 83(b) election form (sample form next page) and make three (3) copies of the signed election form. (Your spouse, if any, should also sign the Section 83(b) election form.) |
| 2. | Prepare a cover letter to the Internal Revenue Service (sample letter included, following election form). |
| 3. | Send the cover letter with the originally executed Section 83(b) election form and one (1) copy via certified mail, return receipt requested to the Internal Revenue Service at the address of the Internal Revenue Service where you file your personal tax returns. |
| ● | It is advisable that you have the package date-stamped at the post office. The post office will provide you with a white certified receipt that includes a dated postmark. Enclose a self-addressed, stamped envelope so that the Internal Revenue Service may return a date-stamped copy to you. However, your postmarked receipt is your proof of having timely filed the Section 83(b) election if you do not receive confirmation from the Internal Revenue Service. |
| 4. | One (1) copy must be sent to Digital Realty Trust, L.P.’s legal department for its records. |
| 5. | Retain the Internal Revenue Service file stamped copy (when returned) for your records. |
Please consult your personal tax advisor for the address of the office of the Internal Revenue Service to which you should mail your election form.
Exhibit 10.60
ELECTION PURSUANT TO SECTION 83(b) OF THE INTERNAL REVENUE CODE
The undersigned hereby elects pursuant to Section 83(b) of the Internal Revenue Code of 1986, as amended, to include in the undersigned’s gross income for the taxable year in which the property was transferred the excess (if any) of the fair market value of the property described below, over the amount the undersigned paid for such property, if any, and supplies herewith the following information in accordance with the Treasury regulations promulgated under Section 83(b):
NAME: SSN: ADDRESS: | #ParticipantName# [Name of Taxpayer] ____________________ [Taxpayer SSN] _____________________ ____________________ | NAME SSN: ADDRESS: | ____________________ [Name of Spouse or N/A] ____________________ [Spouse SSN] _____________________ |
TAXABLE YEAR: The taxable year with respect to which this election is made is the calendar year in which the property was transferred.
2.The property with respect to which the election is made consists of #QuantityGranted# Profits Interest Units (the “Units”) of Digital Realty Trust, L.P. (the “Company”), representing an interest in the future profits, losses and distributions of the Company.
3.The date on which the above property was transferred to the undersigned was #GrantDate#.
4.The above property is subject to the following restrictions: The Units are subject to cancellation and forfeiture to the extent unvested upon a termination of service with the Company under certain circumstances. These restrictions lapse upon the satisfaction of certain conditions as set forth in an agreement between the taxpayer and the Company. In addition, the Units are subject to certain transfer restrictions pursuant to such agreement and the Amended and Restated Agreement of Limited Partnership of Digital Realty Trust, L.P., as amended (or amended and restated) from time to time, should the taxpayer wish to transfer the Units.
5.The fair market value of the above property at the time of transfer (determined without regard to any restrictions other than those which by their terms will never lapse) was $0.
6.The amount paid for the above property by the undersigned was $0.
7.The undersigned taxpayer will file this election with the Internal Revenue Service office with which taxpayer files his or her annual income tax return not later than 30 days after the date of transfer of the property. A copy of this election will be furnished to the person for whom the services were performed. The undersigned is the person performing the services in connection with which the property was transferred.
Date: _________________ | ____________________________________ #ParticipantName# |
The undersigned spouse of the taxpayer joins in this election. (Complete if applicable.)
Date: _________________ | ____________________________________ [Name of Spouse] |
Exhibit 10.60
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Internal Revenue Service
______________________________________
[Address where taxpayer files returns]
Re: Election under Section 83(b) of the Internal Revenue Code of 1986
Taxpayer: #ParticipantName#
Taxpayer’s Social Security Number: ___________________________
Taxpayer’s Spouse: _________________________________________
Taxpayer’s Spouse’s Social Security Number: ____________________
Ladies and Gentlemen:
Enclosed please find an original and one copy of an Election under Section 83(b) of the Internal Revenue Code of 1986, as amended, being made by the taxpayer referenced above. Please acknowledge receipt of the enclosed materials by stamping the enclosed copy of the Election and returning it to me in the self-addressed stamped envelope provided herewith.
Very truly yours,
___________________________________
#ParticipantName#
Enclosures
cc: Digital Realty Trust, L.P.
Exhibit 10.60
Exhibit C
CONSENT OF SPOUSE
I, ____________________, spouse of #ParticipantName#, have read and approve the foregoing Profits Interest Unit Agreement (the “Agreement”) and all exhibits thereto, the Partnership Agreement and the Plan (each as defined in the Agreement). In consideration of the granting to my spouse of the profits interest units of Digital Realty Trust, L.P. (the “Partnership”) as set forth in the Agreement, I hereby appoint my spouse as my attorney-in-fact in respect to the exercise of any rights and taking of all actions under the Agreement and all exhibits thereto and agree to be bound by the provisions of the Agreement and all exhibits thereto insofar as I may have any rights in said Agreement or any exhibits thereto or any securities issued pursuant thereto under the community property laws or similar laws relating to marital property in effect in the state of our residence as of the date of the signing of the foregoing Agreement and exhibits thereto or otherwise. I understand that this Consent of Spouse may not be altered, amended, modified or revoked other than by a writing signed by me, the Partnership and Digital Realty Trust, Inc.
Grant Date: #GrantDate#
Doc Control No.: EPIUTIM23 (US) – ECCA PA
By: ________________________________
Print name: __________________________
Dated: ______________________________
If applicable, you must print, complete and return this Consent of Spouse to
xxxxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx. Please only print and return this page.
