EXECUTIVE DEFERRED COMPENSATION
PLAN
(As Amended and Restated,
Effective January 1, 2009)
The
Board of Trustees of Brandywine Realty Trust (the “
Board ”) adopted the Brandywine Realty Trust Executive
Deferred Compensation Plan (the “ Plan ”),
effective January 1, 2005 (the “ Effective Date
”). Effective March 31, 2006 (the “ Transfer
Date ”), all of the assets, liabilities and obligations
under the Prentiss Properties Executive Choice Share Deferral Plan,
the Prentiss Properties Executive Choice Deferred Compensation
Plan, the Prentiss Properties Executive Choice Deferred
Compensation Plan for Trustees and the Prentiss Properties
Executive Choice Share Deferral Plan for Trustees, were assumed by
the Plan, and such Prior Plans were terminated. This amendment and
restatement, effective January 1, 2009 (the “
Restatement Date ”), except as otherwise provided
herein, also includes certain other changes with respect to
eligibility, share-based grants and diversification rights,
dividend allocations and other design and compliance
changes.
Prior
to the Effective Date, the Pre-2005 Brandywine Realty Trust
Executive Deferred Compensation Plan (the “ Pre-2005
EDCP ”) was in effect. In order to preserve the favorable
tax treatment available to deferrals under the Pre-2005 EDCP due to
the American Jobs Creation Act of 2004, the regulations and
Internal Revenue guidance issued thereunder (collectively, the
“ AJCA ”), the Board froze the Pre-2005 EDCP
with respect to amounts earned and vested on and after the
Effective Date. Amounts earned and vested prior to the Effective
Date are and will remain subject to the terms of the Pre-2005
EDCP.
All
amounts earned and vested on and after the Effective Date are
subject to the terms of the Plan. The Plan retains many of the
attributes of the Pre-2005 EDCP, but is modified so as to achieve
compliance with the requirements of the AJCA. The Board reserves
the right to amend the Plan, either retroactively or prospectively,
in whatever respect is required to achieve compliance with the
requirements of the AJCA.
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“
Additional Company Contributions ” are contributions
credited to the Participant’s Retirement Distribution Account
by the Company pursuant to Section 4.6.
“
Affiliate ” means: (a) any firm, partnership, or
corporation that directly or indirectly through one or more
intermediaries, controls, is controlled by, or is under common
control with Brandywine Realty Trust; (b) any other
organization similarly related to Brandywine Realty Trust that is
designated as such by the Board; and (c) any other entity 50%
or more of the economic interests in which are owned, directly or
indirectly, by Brandywine Realty Trust.
“
Beneficiary ” means the person or persons designated
as such in accordance with Section 11.4.
“
Board ” means the Board of Trustees of Brandywine
Realty Trust.
“
Board Remuneration ” means for any Trustee, for any
Plan Year, the annual retainer and Board meeting fees; provided
that committee fees and informal Board discussion fees shall
not be “Board Remuneration;” provided further
that such remuneration shall not be eligible for Matching
Contributions, Profit Sharing Contributions, Supplemental Profit
Sharing Contributions or Additional Company
Contributions.
“
Change of Control ” means, within the meaning of
Treas. Reg. 1.409A-3(i)(5) or any succeeding regulations, a change
in the ownership or effective control of Brandywine Realty Trust,
or a change in the ownership of a substantial portion of the assets
of Brandywine Realty Trust.
“
Code ” means the Internal Revenue Code of 1986, as
amended.
“
Committee ” means the Brandywine Realty Trust Plan
Committee, which shall consist of at least one person, the
member(s) of which shall be designated from time to time by the
President and Chief Executive Officer of Brandywine Realty Trust
and which may include the President and Chief Executive
Officer.
“
Company ” means Brandywine Realty Trust and each such
subsidiary, division or Affiliate as may from time to time
participate in the Plan by or pursuant to authorization of the
Board.
“
Compensation ” means, for any Eligible Employee, for
any Plan Year, the Participant’s total taxable income
received from the Company with respect to such Plan Year,
including, but not limited to, base earnings, regular bonuses,
commissions and overtime, plus
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pre-tax
contributions and elective contributions that are not includible in
gross income under section 125, 402(a)(8) or 402(h) of the Code,
and excluding income recognized in connection with share-related
options and payments, reimbursements and other expense allowances,
fringe benefits (cash and noncash), moving expenses, deferred
compensation and welfare benefits, as determined pursuant to
guidelines established and revised by the Plan Administrator from
time to time and communicated to Eligible Employees.
“
Compensation Deferral ” means that portion of
Compensation or Board Remuneration as to which a Participant has
made an annual election to defer receipt until the date specified
under the In-Service Distribution Option, the Retirement
Distribution Option, the Flexible Distribution Option or the
Deferred Board Remuneration Option, as applicable.
“
Compensation Limit ” means the compensation limit of
section 401(a)(17) of the Code, as in effect on the first day of
the Plan Year.
“
Deferred Board Remuneration Account ” means the
Account maintained for a Participant to which Compensation
Deferrals are credited pursuant to the Deferred Board Remuneration
Option.
“
Deferred Board Remuneration Option ” means the
Distribution Option pursuant to which benefits are payable in
accordance with Section 7.3.
“
Disability ” means a disability of an Employee or
Trustee which renders such Employee or Trustee unable to perform
the full extent of his duties and responsibilities by reason of his
illness or incapacity which entitles that Employee or Trustee to
receive Social Security Disability Income under the Social Security
Act, as amended, and the regulations promulgated
thereunder.
“
Disabled ” means having a Disability. The
determination of whether a Participant is Disabled shall be made by
the Plan Administrator, whose determination shall be conclusive;
provided that ,
(a) if
a Participant is bound by the terms of an employment agreement
between the Participant and the Employer, whether the Participant
is “Disabled” for purposes of the Plan shall be
determined in accordance with the procedures set forth in said
employment agreement, if such procedures are therein provided;
and
(b) a
Participant bound by such an employment agreement shall not be
determined to be Disabled under the Plan any earlier than he would
be determined to be disabled under his employment agreement;
provided that , a Participant may not be determined to be
Disabled unless such Participant is unable to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period
of disability of not less than 12 months.
“
Distribution Date ” means the date determined in
accordance with the rules and procedures established by the Plan
Administrator.
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“
Distribution Option ” means the four distribution
options which are available under the Plan, consisting of the
Retirement Distribution Option, the In-Service Distribution Option,
the Flexible Distribution Option and the Deferred Board
Remuneration Option.
“
Distribution Option Account(s) ” means, with respect
to a Participant, the Retirement Distribution Account, the
In-Service Distribution Account, the Flexible Distribution Account
and/or the Deferred Board Remuneration Account established on the
books of account of the Company, pursuant to
Section 5.1.
“
Earnings Crediting Options ” means the deemed
investment options selected by the Participant from time to time
pursuant to which deemed earnings are credited to the
Participant’s Distribution Option Accounts.
“
Effective Date ” means January 1,
2005.
“
Eligible Employee ” means (1) an Employee who is
a member of a group of selected management and/or highly
compensated Employees of the Company and who is designated by the
Plan Administrator as eligible to participate in the Plan, or
(2) each Employee who, as of the Transfer Date, was eligible
to participate in a Prior Plan.
“
Employee ” means any individual employed by the
Company on a regular, full-time basis (in accordance with the
personnel policies and practices of the Company), including
citizens of the United States employed outside of their home
country and resident aliens employed in the United States;
provided, however , that to qualify as an
“Employee” for purposes of the Plan, the individual
must be a member of a group of “key management or other
highly compensated employees” within the meaning of
Sections 201, 301 and 401 of the Employee Retirement Income
Security Act of 1974, as amended; provided further , that
the following individuals shall not be “Employees:”
(1) individuals who are not classified by the Company as its
employees, even if they are retroactively recharacterized as
employees by a third party or the Company; (2) individuals for
whom the Company does not report wages on Form W-2 or who are not
on an employee payroll of the Company; or (3) individuals who
have entered into an agreement with the Company which excludes them
from participation in employee benefit plans of the Company
(whether or not they are treated or classified as employees for
certain specified purposes that do not include eligibility in the
Plan).
“
Employer ” means Brandywine Realty Trust and its
Affiliates.
“
Employer Stock Fund ” means a hypothetical investment
fund consisting entirely of Shares.
“
Enrollment Agreement ” means the authorization form
which an Eligible Employee or Trustee files with the Plan
Administrator to participate in the Plan.
“
Excess Bonus ” means that portion of a Compensation
Deferral as defined in Section 4.6.
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“
Flexible Distribution Account ” means the account
maintained for a Participant to which Share Awards,
Performance-Based Compensation and Compensation Deferrals are
credited pursuant to the Flexible Distribution Option; provided
that, a Participant may designate up to five Flexible Distribution
Accounts (i.e., Flexible Distribution Accounts #1, #2, #3, #4 and
#5) with different specified payment dates.
“
Flexible Distribution Option ” means the Distribution
Option pursuant to which benefits are payable in accordance with
Section 7.4.
“
In-Service Distribution Account ” means the account
maintained for a Participant to which Compensation Deferrals are
credited pursuant to the In-Service Distribution Option.
“
In-Service Distribution Option ” means the
Distribution Option pursuant to which benefits are payable in
accordance with Section 7.2.
“
Matching Contributions ” are contributions credited to
the Participant’s Retirement Distribution Account by the
Company pursuant to Section 4.3.
“
Offeree ” means an individual designated by the Plan
Administrator who has received a written offer of employment from
the Company and would be an Eligible Employee upon commencement of
employment with the Company.
“
Participant ” means an Eligible Employee or Trustee
who has filed a completed and executed Enrollment Agreement with
the Plan Administrator or its designee and is participating in the
Plan in accordance with the provisions of Article 4. In the
event of the death or incompetency of a Participant, the term shall
mean his personal representative or guardian. An individual shall
remain a Participant until that individual has received full
distribution of any amount credited to the Participant’s
Distribution Option Account(s).
“
Performance-Based Compensation ” means, for any
Eligible Employee, Compensation or a Share Award that constitutes
“performance-based compensation” within the meaning of
Treas. Reg. 1.409A-1(e), or any succeeding regulations, that is
payable with respect to a Performance Period, as determined by the
Plan Administrator.
“
Performance Period ” means a period of at least
12 months during which a Participant may earn
Performance-Based Compensation.
“
Plan ” means the Brandywine Realty Trust Executive
Deferred Compensation Plan, as amended from time to
time.
“
Plan Administrator ” means the Committee.
“
Plan Year ” means the 12-month period beginning on
each January 1 and ending on the following
December 31.
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“
Prior Plan ” means each of (1) the Prentiss
Properties Executive Choice Share Deferral Plan, (2) the
Prentiss Properties Executive Choice Deferred Compensation Plan,
(3) the Prentiss Properties Executive Choice Deferred
Compensation Plan for Trustees, and (4) the Prentiss
Properties Executive Choice Share Deferral Plan for Trustees and
such other legacy deferred compensation arrangements as are
designated as a Prior Plan by the Plan Administrator.
“
Prior Plan Sub-Account ” means the portion of an
Eligible Employee’s Account attributable to amounts rolled
over to the Plan from a Prior Plan as described in
Section 4.1(e).
“
Profit Sharing Contributions ” are contributions
credited to the Participant’s Retirement Distribution Account
by the Company, based on a percentage, as determined each year by
the Company, of the Participant’s Compensation in excess of
the Compensation Limit. To the extent that a contribution is not
deemed to be a Profit Sharing Contribution, it will be considered
Compensation classified as a bonus for purposes of the
Plan.
“
Re-Deferral Election ” means an election to change the
form and commencement date of payment with respect to all or a
portion of a Distribution Option Account by filing an election
change consistent with the requirements of the Treas. Reg.
1.409A-2(b), or any succeeding regulations. The Plan Administrator
reserves the right to and discretion to reject and disallow a
Re-Deferral Election for any reason and at any time. A Re-Deferral
Election as to a Distribution Option Account: (1) may not
accelerate the first or last scheduled payment date with respect to
such Distribution Option Account; (2) will not be effective as
to any payment from such Distribution Option Account scheduled to
be made within 12 months of the Re-Deferral Election; and
(3) other than a Re-Deferral Election made in connection with
a Participant becoming Disabled or dying, the first payment to
which such Re-Deferral Election applies must be deferred by at
least five (5) years from the originally scheduled payment
date. A change to the form and commencement date of payment
pursuant to Section 7.6 shall not be deemed a Re-Deferral
Election.
“
Retirement ” means the termination of the
Participant’s Service with the Employer (for reasons other
than death) at or after age 55.
“
Retirement Distribution Account ” means the Account
maintained for a Participant to which Share Awards,
Performance-Based Compensation, Compensation Deferrals, Matching
Contributions, Additional Company Contributions, Profit Sharing
Contributions, and Supplemental Profit Sharing Contributions are
credited pursuant to the Retirement Distribution Option.
“
Retirement Distribution Option ” means the
Distribution Option pursuant to which benefits are payable in
accordance with Section 7.1.
“
Service ” means the period of time during which an
employment relationship exists between an Employee and the Company,
including any period during which the Employee is on an approved
leave of absence, whether paid or unpaid. “Service”
also includes employment with an Affiliate if an Employee transfers
directly between the Company and the Affiliate.
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“
Share ” means a common share of beneficial interest,
$.01 par value per share, of Brandywine Realty Trust.
“
Share Award ” means Shares subject to an award under
the terms of the Brandywine Realty Trust Amended and Restated 1997
Long-Term Incentive Plan (as amended from time to time) (including
the Brandywine Realty Trust 2006 Long-Term Outperformance
Compensation Program (as amended from time to time)), or any other
equity based compensation plan, program or arrangement sponsored by
the Company, as determined by the Plan Administrator.
“
Supplemental Profit Sharing Contributions ” are
contributions credited to the Retirement Distribution Account of
certain Participants by the Company pursuant to
Section 4.5.
“
Termination Date ” means the date of termination of a
Participant’s Service with the Employer, determined without
reference to any compensation continuing arrangement or severance
benefit arrangement that may be applicable.
“
Trustee ” means a member of the Board who receives
remuneration payable for services as a member of the
Board.
“
Unforeseeable Emergency ” means a severe financial
hardship to the Participant resulting from an illness or accident
of the Participant, the Participant’s spouse, or a dependent
(as defined in section 152(a) of the Code) of the Participant, loss
of the Participant’s property due to casualty, or other
similar extraordinary and unforeseeable circumstances arising as a
result of events beyond the control of the Participant.
“
401(k) Plan ” means the Brandywine Realty Trust 401(k)
Profit Sharing Plan and any other qualified plan sponsored by the
Company that includes a cash-or-deferred arrangement described in
section 401(k) of the Code and in which a Participant in the Plan
is eligible to participate.
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ADMINISTRATION OF THE PLAN AND
DISCRETION
3.1.
The Committee, as Plan Administrator, shall have full power and
authority to interpret the Plan, to prescribe, amend and rescind
any rules, forms and procedures as it deems necessary or
appropriate for the proper administration of the Plan and to make
any other determinations and to take any other such actions as it
deems necessary or advisable in carrying out its duties under the
Plan. All action taken by the Plan Administrator arising out of, or
in connection with, the administration of the Plan or any rules
adopted thereunder, shall, in each case, lie within its sole
discretion, and shall be final, conclusive and binding upon the
Company, the Board, all Employees and Trustees, all Beneficiaries
and all persons and entities having an interest therein. The
Committee, may, however, delegate to any person or entity any of
its powers or duties under the Plan. To the extent of any such
delegation, the delegate shall become the Plan Administrator
responsible for administration of the Plan, and references to the
Plan Administrator shall apply instead to the delegate. Any action
by the Committee assigning any of its responsibilities to specific
persons who are all trustees, officers, or employees of the Company
shall not constitute delegation of the Committee’s
responsibility but rather shall be treated as the manner in which
the Committee has determined internally to discharge such
responsibility.
3.2.
The Plan Administrator shall serve without compensation for its
services unless otherwise determined by the Board. All expenses of
administering the Plan shall be paid by the Company.
3.3.
The Company shall indemnify and hold harmless the Plan
Administrator from any and all claims, losses, damages, expenses
(including counsel fees) and liability (including any amounts paid
in settlement of any claim or any other matter with the consent of
the Board) arising from any act or omission of such member, except
when the same is due to gross negligence or willful
misconduct.
3.4.
Any decisions, actions or interpretations to be made under the Plan
by the Company, the Board or the Plan Administrator shall be made
in its respective sole discretion, not as a fiduciary and need not
be uniformly applied to similarly situated individuals and shall be
final, binding and conclusive on all persons interested in the
Plan.
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4.1.
Election to Participate .
(a)
Timing of Election to Participate . Any Eligible Employee or
Trustee may enroll in the Plan effective as of the first day of a
Plan Year by filing a completed and fully executed Enrollment
Agreement with the Plan Administrator by a date set by the Plan
Administrator.
(i)
Base Salary/Board Remuneration . With respect to the
deferral of Compensation that is classified by the Company as base
salary or the deferral of Board Remuneration, an executed
Enrollment Agreement must be filed by December 31 of the Plan
Year preceding the Plan Year in which such base salary or Board
Remuneration is to be earned, or such earlier time as may be
established by the Plan Administrator.
(A) With
respect to the deferral of Compensation that is classified by the
Company as bonus, an executed Enrollment Agreement must be filed by
December 31 of the Plan Year preceding the Plan Year in which
such bonus is earned, or such earlier time as may be established by
the Plan Administrator.
(B) The
Board may, as a condition of a bonus award, require that it be
deferred under the Plan and may prescribe vesting and investment
provisions with respect to such award, and may establish separate
deadlines by which Enrollment Agreements may be filed with respect
to such an award.
(iii)
Performance-Based Compensation . With respect to the
deferral of Performance-Based Compensation, an executed Enrollment
Agreement must be filed no later than six months prior to the end
of the Performance Period during which such Performance-Based
Compensation is earned, subject to such other administrative rules,
procedures and earlier deadlines as may be set by the Plan
Administrator and communicated with reasonable advance notice to
Eligible Employees.
(iv)
Share Awards . With respect to the deferral of a Share Award
that does not qualify as Performance-Based Compensation, an
executed Enrollment Agreement must be filed no later than
30 days following the date such Share Award is granted, and in
no event later than twelve months before the first scheduled
vesting date of such Share Award, subject to such other
administrative rules, procedures and earlier deadlines as may be
set by the Plan Administrator and communicated with reasonable
advance notice to Eligible Employees.
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(v)
Revocation of Election . Elections to defer Compensation,
Performance-Based Compensation, Share Awards and Board Remuneration
are irrevocable at the end of the election period established by
the Plan Administrator, provided that, the Plan Administrator in
its sole discretion, may accept revocations of elections up to
December 31 of the calendar year in which the Participant
files a deferral election.
(b)
Amount of Deferral . Pursuant to said Enrollment Agreement,
the Eligible Employee or Trustee shall irrevocably elect the
percentages by which (as a result of payroll deduction) an amount
equal to any whole percentage of the Participant’s
Compensation, Performance-Based Compensation, Share Award or Board
Remuneration will be deferred. Up to 85 percent (85%) of base
salary, 100 percent (100%) of bonus, 100 percent (100%)
of Performance-Based Compensation, 100 percent (100%) of a Share
Award, and one hundred percent (100%) of Board Remuneration may be
deferred; provided however, that deferrals will be made after
required non-deferrable payroll tax deductions and any deductions
elected by the Participant (including, but not limited to,
deductions for payment of health insurance premiums). The Plan
Administrator may establish minimum amounts that may be deferred
under this Section 4.1 and may change such standards from time
to time. Any such limit shall be communicated by the Plan
Administrator to the Participants prior to the commencement of a
Plan Year.
(c)
Accounts to Which Amounts Credited . Pursuant to said
Enrollment Agreement, the Eligible Employee shall elect the
Distribution Option Accounts to which such amounts will be
credited, and shall provide such other information as the Plan
Administrator shall require. Board Remuneration will only be
credited to the Deferred Board Remuneration Account.
(d)
Form of Distribution from Accounts . The first Enrollment
Agreement filed by an Eligible Employee must set forth the
Participant’s election as to the time and manner of
distribution from the In-Service Distribution Account and Flexible
Distribution Account, as appropriate. The first Enrollment
Agreement filed by an Eligible Employee must set forth the time and
manner of distribution with respect to amounts credited to the
Retirement Distribution Account. Subsequent Enrollment Agreements
must also set forth the Participant’s election as to the time
and form of distribution from each additional Flexible Distribution
Account and In-Service Distribution Account first established
pursuant to such Enrollment Agreement; provided, however, that no
deferral election amounts will be creditable to the In-Service
Distribution Account for amounts deferred on and after
January 1, 2007. The first Enrollment Agreement filed by a
Trustee must set forth the manner of distribution with respect to
amounts credited to the Deferred Board Remuneration Account.
Notwithstanding the foregoing, the manner of distribution for all
amounts invested in the Employer Stock Fund as of April 1,
2007, and all amounts attributable to a deferral election effective
on and after January 1, 2007 and invested in the Employer
Stock Fund, shall be in the form of Shares (and cash for fractional
Shares).
(e)
Prior Plan Accounts . Notwithstanding anything herein to the
contrary, the balance of each Prior Plan Sub-Account as of the
Transfer Date shall include the portion of such Prior Plan
Participant’s account under the Prior Plan that was rolled
over into the Plan as of the Transfer Date. Amounts rolled over
from the Prior Plan to the Plan shall be
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deemed invested
in the Earnings Crediting Option as determined by the Plan
Administrator as the appropriate successor investment fund on the
date those amounts are credited to the Prior Plan Sub-Account,
based on the deemed investment of such amounts under the applicable
Prior Plan immediately prior to the Transfer Date. Amounts in a
Prior Plan Sub-Account shall be distributed to the Participant in
accordance with the election or elections the Eligible Employee has
made under the applicable Prior Plan with respect to such
amounts.
4.2.
Special Rules for Filing of Elections .
(a)
New Hires and Offerees . The Plan Administrator may, in its
discretion, permit an Employee or Offeree who becomes an Eligible
Employee to enroll in the Plan for the Plan Year in which the
Employee or Offeree became an Eligible Employee, or a subsequent
Plan Year, by filing a completed and fully executed Enrollment
Agreement, in accordance with Section 4.1, prior to or as soon
as practicable after the date the Employee or Offeree becomes an
Eligible Employee but, in any event, not later than 30 days
after such date. Notwithstanding the foregoing, however, any
election by an Eligible Employee to defer Share Awards,
Compensation and Performance-Based Compensation pursuant to this
Section 4.2(a) shall apply only to Share Awards, Compensation
and Performance-Based Compensation earned by or awarded to the
Eligible Employee after the date on which such Enrollment Agreement
is filed.
(b)
Promotions . The Plan Administrator may, in its discretion,
permit an Employee who first becomes an Eligible Employee after the
beginning of a Plan Year due to a promotion, to enroll in the Plan
for that Plan Year by filing a completed and fully executed
Enrollment Agreement, in accordance with Section 4.1, as soon
as practicable following the date the Employee becomes an Eligible
Employee but, in any event, not later than 30 days after such
date. Notwithstanding the foregoing, however, any election by an
Eligible Employee to defer Share Awards, Compensation and
Performance-Based Compensation pursuant to this Section 4.2(b)
shall apply only to Share Awards, Compensation and
Performance-Based Compensation earned by or awarded to the Eligible
Employee after the date on which such Enrollment Agreement is
filed.
(c)
New Trustees . A Trustee whose election as a member of the
Board first becomes effective in a Plan Year may enroll in the Plan
for that Plan Year by filing a completed and fully executed
Enrollment Agreement, in accordance with Section 4.1, as soon
as practicable following the effective date of such Trustee’s
election but, in any event, not later than 30 days after the
effective date of such election. Notwithstanding the foregoing,
however, any election by a Trustee to defer Board Remuneration
pursuant to this Section 4.2 shall apply only to such Board
Remuneration earned by the Trus
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