EXHIBIT 10.16 LEXINGTON CORPORATE PROPERTIES TRUST EXECUTIVE DEFERRED COMPENSATION AGREEMENTExecutive Compensation Plan Agreement |
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EXHIBIT 10.16
LEXINGTON CORPORATE PROPERTIES TRUST
EXECUTIVE DEFERRED COMPENSATION AGREEMENT
This AGREEMENT is effective as of by and between Lexington Corporate Properties Trust, a Maryland real estate investment trust (the “Company”), (the “Participant”), and (the “Trustee”), the trustee of the 2003 Lexington Rabbi Trust — Option Replacement Shares, effective as (the “Rabbi Trust”).
WITNESS THAT:
WHEREAS, the Participant is an officer of the Company;
WHEREAS, the Company wishes to provide deferred compensation for the Participant under certain terms and conditions pursuant to the Lexington Corporate Properties Trust Amended and Restated 2002 Equity-Based Award Plan (the “Plan”);
WHEREAS, the Company has established the Rabbi Trust to fund benefits from time to time; and
WHEREAS, the Trustee shall have the sole discretion to manage the assets of the Rabbi Trust.
NOW, THEREFORE, in consideration of the agreement hereinafter contained, the parties hereto agree as follows:
1. Deferred Compensation.
(a) The Company shall contribute to the Rabbi Trust on behalf of the Participant: (i) nonvested common shares of the Company as of , and (ii) such number of common shares of the Company from time to time thereafter as shall be determined by the Company in its sole discretion and set forth in Exhibit 1 hereto. The common shares contributed to the Rabbi Trust shall vest in the amounts and in the manner set forth herein and in Exhibit 1 hereto and shall be credited to the account of the Participant under the Rabbi Trust accordingly.
(b) The Participant shall have no legal or equitable rights, interest or claim in the assets earmarked to pay deferred compensation hereunder or in any compensation based on any rate of return in reference to the common shares of the Company. The Company’s obligation under this Agreement shall be merely that of an unfunded and unsecured promise of the Company to issue the said number of common shares in the future. Notwithstanding any other provision herein, any right to benefits under this Agreement shall be no greater than the right of any general unsecured creditor of the Company to the assets of the Company.
(c) Any common shares credited to the Rabbi Trust pursuant to this Agreement shall be subject to the terms and conditions herein and of the Rabbi Trust and the Plan.
(d) The Trustee shall in its sole discretion manage the assets of the Rabbi Trust pursuant to the terms thereof.
2. Payment. Deferred compensation payable hereunder shall only be payable in the form of common shares of the Company as further described herein.
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(a) Subject to the terms and conditions of this Agreement, the Company shall pay to the Participant that number of shares set forth in Exhibit 1 on the earlier of (x) the date(s), if any, designated on Exhibit 1 hereof (each, a “Deferral Date”), which shall be no earlier than the last date of the fifth fiscal year following the applicable Deposit Date (hereinafter defined), (y) immediately following a Change of Control as defined in the Participant’s Employment Agreement with the Company, effective as of (“Employment Agreement”) of the Company, or (z) the date of termination of employment for any reason, but only to the extent, in all of the foregoing cases, such shares are vested as of such payment date (in accordance with Section 2(d) hereof). A Deposit Date shall mean the date |
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upon which the Company transfers common shares to the Rabbi Trusts for the account of such Participant. |
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(b) The Company shall be obligated to notify the Trustee under the Rabbi Trust of a Change of Control of the Company no later than 5 business days following such Change of Control. If the Company fails to provide such notice, the Participant may provide such notice. |
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(c) If the Participant’s employment is terminated due to death, then the Company shall pay to the Participant’s estate that number of common shares of the Company, to the extent vested, in such Participant’s account in the Rabbi Trust pursuant to this Agreement within 30 days of the Participant’s death or as soon as practicable thereafter. |
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(d) [Either [The common shares contributed to the Rabbi Trust hereunder for a Participant’s account shall vest as follows: 0% on ; 0% on ; 33 1/3% on ; 33 1/3% on and 33 1/3% on and accordingly be fully vested as of the end of the fifth fiscal year following the applicable Deposit Date, provided that in the event of the Participant’s death or a Change of Control, any nonvested shares shall become fully vested as of the date of death or Change of Control as applicable. |
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(a) ] or [Subject to Section 3 hereof, a percentage, if any, of the Common Shares, as determined under this Section 2, shall vest as of the end of the end of each fiscal year, beginning with the fiscal year ending [ ], until the Common Shares are fully vested (the “Vesting Period”). The percentage of the Common Shares that vests annually hereunder shall equal two (2) times the annual percentage increase, if any, in the Company’s cash available for distribution (“CAD”) at the end of any fiscal year ending after the date hereof, provided that the annual percentage increase exceeds a threshold growth rate of two percent (2%) (“Threshold CAD”). In the event the annual percentage increase does not exceed the Threshold CAD, the percentage of shares that vests as of the end of such fiscal year shall be zero.] or [Subject to Section 3, hereof, the Common Shares vest ratably over a five year period commencing on the first anniversary of the date hereof and vest in full as of the end of the fifth fiscal year following the date such Common Shares were issued to the Participant.] or [Subject to Section 3 hereof, the Common Shares shall vest in full as of the end of the fifth fiscal year following the date hereof, provided that upon the attainment of certain Performance Criteria (hereinafter defined) in any fiscal year of the Company during the four-year period commencing with [ ] (the “Performance Period”), one-fifth ( 1/5) of such Common Shares shall vest as of the end of such fiscal year (or at such time as otherwise provided in Section 2(b)(i) hereof) (the “Vesting Period”). In no event will more than one-fifth of such Common Shares vest with respect to the satisfaction of Performance Criteria for any one fiscal year. |
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(b) The Performance Criteria are satisfied with respect to a fiscal year of the Company if the Company achieves a total shareholder return (“TSR”), defined in Section 2(b)(iii) hereof, for such fiscal year: (x) of at least ten percent (10%) pursuant to Section 2(b)(i) hereof or (y) that is within the top fifty percent (50%) of the Company’s peer group designated in Section 2(b)(ii) hereof. |
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(i) For purposes of determining whether the Company achieves a TSR of at least 10% in any fiscal year, such TSR shall first be calculated pursuant to Section 2(b)(iii) hereof. If such return is at least 10%, then the Performance Criteria for such fiscal year shall be satisfied. The portion of TSR in excess of 10% (“Excess TSR”) shall be carried back and added to any preceding fiscal years in the Performance Period in which the Performance Criteria has not (as of the time of the carry back) been satisfied (under either Section 2(b)(x) or (y)), beginning with the first immediately preceding fiscal year in which such Performance Criteria have not been met. If, as a result of a carry back, the TSR (as adjusted under this subsection) with respect to a preceding fiscal year reaches 10%, then the Performance Criteria for such fiscal year shall be treated as satisfied at the time of such carry back. In the event Excess TSR is not absorbed after it is carried back to each preceding year in which the Performance Criteria are not met, any remaining Excess TSR may be carried forward and added to any succeeding fiscal years in the Performance Period, after the foregoing TSR calculations are made with respect to such succeeding year, beginning with the first such succeeding fiscal year. If, as a result of a carry forward, the TSR (as adjusted under this subsection) with respect to such |
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succeeding fiscal year reaches 10%, then the Performance Criteria for such fiscal year shall be satisfied as of the end of such year. In no event shall any amount of Excess TSR be utilized more than once as a carry back or carry forward amount. |
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