AMENDED AND RESTATED AGREEMENT
Exhibit 10.1
AMENDED AND RESTATED
AGREEMENT
AGREEMENT
THIS AGREEMENT is entered into as of the 2nd day of February, 2010 by and between
(“Executive”) and Brandywine Realty Trust (the “Company”) and
amends and restates in its entirety the Agreement dated
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(the “Prior Agreement”)
between Executive and Company.
WHEREAS, Executive is currently employed by the Company and/or a Subsidiary (as defined below)
of the Company;
WHEREAS, in order to encourage Executive to remain an employee of the Company and/or a
Subsidiary, the Company is entering into this Agreement with Executive.
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Payment Obligation: Change of Control. The Company agrees that if (i) a Change of
Control of the Company occurs at a time when Executive is then an employee of the Company and/or a
Subsidiary of the Company and (ii) within 730 days following the occurrence of the Change
of Control (a) the Company or the purchaser or successor thereto (the “Purchaser”)
terminates the employment of Executive other than for Cause or (b) Executive resigns for Good
Reason:
a. then the Company or Purchaser will be obligated to pay to Executive an amount equal to the
product of: (x)
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multiplied by (y) the sum of (1) Executive’s annual base salary as in effect
at the time the Change of Control occurs plus (2) the greater of (i) the annual bonus most recently
paid to Executive prior to the date of the occurrence of the Change of Control and (ii) Executive’s
Target Bonus for the calendar year in which the Change of Control occurs, provided that if a Target
Bonus has not been established for the calendar year in which the Change of Control occurs at the
time of such occurrence, then the amount to be used for purposes of this clause (2) shall be the
annual bonus most recently paid to Executive prior to the date of the occurrence of the Change of
Control. Payment of the amounts provided for in this Section 1.a shall be made as soon as
reasonably practicable following Executive’s termination or resignation, but, in any event, not
later than ten (10) days after such termination or resignation.
b. Executive shall be entitled to continuation of medical coverage until the earlier of
(1) the last day of the 730 day period following the date of termination or resignation or (2) the
date on which the Executive is eligible for medical coverage under a plan maintained by a new
employer or under a plan maintained by his spouse’s employer. Coverage shall be generally
comparable to that provided by the Company from time to time to similarly situated active employees
(i.e., as if the Executive had continued in employment during such period). The COBRA health care
continuation coverage period under section 4980B of the Code shall run concurrently with the
foregoing benefit period. In addition, Executive shall be entitled to continuation of all group
term life insurance benefits (but not including any supplemental life insurance benefits provided
to executives), or equivalent coverage if provision of such
continuation of coverage is not possible under the group term life insurance policy, at no
cost to Executive for the 730 day period following the date of Executive’s termination or
resignation.
c. All compensation and benefits will cease at the time Executive’s employment terminates and,
except as otherwise provided in this Section 1, the Company will have no further liability
or obligation by reason of such termination. The benefits described in this Section 1 are
in lieu of, and not in addition to, benefits under any other severance arrangement maintained by
the Company.
2. No Right to Employment. This Agreement shall not confer upon Executive any right
to remain an employee of the Company or a Subsidiary of the Company, and shall only entitle
Executive to the payments and benefits in the limited circumstances set forth in Paragraphs 1 and 2
above.
3. Compliance with Section 409A. If the termination giving rise to the payments
described in Section 1 is not a “Separation from Service” within the meaning of Treas. Reg.
§ 1.409A-1(h)(1) (or any successor provision), then the amounts otherwise payable pursuant to that
section will instead be deferred without interest and will not be paid until Executive experiences
a Separation from Service. In addition, to the extent compliance with the requirements of Treas.
Reg. § 1.409A-3(i)(2) (or any successor provision) is necessary to avoid the application of an
additional tax under Section 409A of the Code to payments due to Executive upon or following his
Separation from Service, then notwithstanding any other provision of this Agreement (or any
otherwise applicable plan, policy, agreement or arrangement), any such payments that are otherwise
due within six months following Executive’s Separation from Service (taking into account the
preceding sentence of this paragraph) will be deferred without interest and paid to Executive in a
lump sum immediately following that six month period. This paragraph should not be construed to
prevent the application of Treas. Reg. § 1.409A-1(b)(9)(iii)(or any successor provision) to amounts
payable hereunder. Notwithstanding anything to the contrary contained in this Agreement or
otherwise, to the extent an in-kind benefit due to the Executive constitutes a “deferral of
compensation” within the meaning of Section 409A of the Code, the provision of such in-kind
benefits will be subject to the conditions stated in Treas. Reg. §§ 1.409A-3(i)(iv)(3), (4) and
(5).
4. Certain Definitions. As used herein:
a. “Board” means the Board of Trustees of the Company, as constituted from time to
time.
b. “Cause” has the meaning assigned to it in the Plan (except that references in such
Plan definition to “Company” shall be interpreted to mean the Company or Purchaser, as applicable).
c. “Change of Control” means:
(1) the acquisition in one or more transactions by any “Person” (as the term person is
used for purposes of Sections 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”) of “Beneficial ownership” (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of twenty-five percent (25%) or more of
the combined voting power of the Company’s then outstanding voting securities (the “Voting
Securities”), provided that for purposes of this clause (1) Voting Securities acquired directly
from the Company by any Person shall be excluded from the determination of such Person’s Beneficial
ownership of Voting Securities (but such Voting Securities shall be included in the calculation of
the total number of Voting Securities then outstanding); or
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(2) consummation of a merger, reorganization or consolidation involving the Company if the
shareholders of the Company immediately before such merger, reorganization or consolidation do not
or will not own directly or indirectly immediately following such merger, reorganization or
consolidation, more than fifty percent (50%) of the combined voting power of the outstanding voting
securities of the company resulting from or surviving such merger, reorganization or consolidation
in substantially the same proportion as their ownership of the Voting Securities outstanding
immediately before such merger, reorganization or consolidation;
(3) approval by shareholders of the Company of a complete liquidation or dissolution of the
Company; or
(4) approval by shareholders of the Company of an agreement for the sale or other disposition
of all or substantially all of the assets of the Company; or
(5) acceptance by shareholders of the Company of shares in a share exchange if the
shareholders of the Company immediately before such share exchange do not or will not own directly
or indirectly immediately following such share exchange more than fifty percent (50%) of the
combined voting power of the outstanding voting securities of the entity resulting from or
surviving such share exchange in substantially the same proportion as their ownership of the Voting
Securities outstanding immediately before such share exchange; or
(6) a change in the composition of the Board over a period of twenty four (24) months or less
such that a majority of the Board members ceases to be comprised of individuals who either:
(a) have been board members continuously since the beginning of such period; or (b) have been
elected or nominated for election as Board members during such period by at least a majority of the
Board members described in clause (a) who were still in office at the time such election or
nomination was approved by the Board.
d. “Code” means the Internal Revenue Code of 1986, as amended.
e. “Good Reason” means any of the following:
(1) a reduction in Executive’s base salary as in effect at the time of the Change of Control,
other than a reduction in salary of no more than 10% of Executive’s then current base salary done
in connection with salary reductions proportionately affecting all members of the Company’s
executive management team and (if the Change of Control involves a Purchaser) proportionately
affecting all members of the Purchaser’s executive management team as well;
(2) a significant adverse alteration in the nature or status of Executive’s responsibilities
from those in effect at the time of the Change of Control; or
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(3) relocation of the place where Executive performs his day-to-day responsibilities at the
time of the Change of Control by more than thirty (30) miles.
However, none of the foregoing events or conditions will constitute Good Reason unless the
Executive provides the Company with written objection to the event or condition within 60 days
following the occurrence thereof, the Company does not reverse or otherwise cure the event or
condition within 30 days of receiving that written objection, and the Executive resigns his
employment within 240 days following the expiration of that cure period (but in no event later the
deadline specified above in Section 1(ii)).
f. “Plan” means the Company’s Amended and Restated 1997 Long-Term Incentive Plan, as
amended.
g. “Subsidiary” means, in respect of the Company or parent, a subsidiary company,
whether now or hereafter existing, as defined in Sections 424(f) and (g) of the Code, and any other
entity 50% or more of the economic interests in which are owned, directly or indirectly, by the
Company.
h. “Target Bonus” means, with respect to any year, the target amount of Executive’s
annual bonus for that year.
5. Tax Withholding, Etc. All compensation payable under this Agreement shall be
subject to customary withholding taxes and other employment taxes as required with respect to
compensation paid by an employer to an employee and the amount of compensation payable hereunder
shall be reduced appropriately to reflect the amount of any required withholding. The Company
shall have no obligation to make any payments to the Executive or make the Executive whole for the
amount of any required taxes.
6. Miscellaneous.
a. Controlling Law. This Agreement, and all questions relating to its validity,
interpretation, performance and enforcement, shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania.
b. Entire Agreement. This Agreement contains the entire understanding among the
parties hereto with respect to the subject matter hereof and supersedes all prior agreements and
understandings, inducements or conditions, express or implied, oral or written, except as herein
contained. This Agreement may not be modified or amended other than by an agreement in writing.
c. Liability of Trustees, etc. No recourse shall be had for any obligation of the
Company hereunder, or for any claim based thereon or otherwise in respect thereof, against any
past, present or future trustee, shareholder, officer or employee of the Company, whether by virtue
of any statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all
such liability being expressly waived and released by Executive.
d. Prior Agreement. The Prior Agreement is hereby amended and restated in its
entirety.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set
forth above.
| BRANDYWINE REALTY TRUST | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||||
| President and Chief Executive Officer | ||||||
| [ ] | ||||||
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