Exhibit 10.4
BRANDYWINE REALTY TRUST
INCENTIVE STOCK OPTION
This is
an Incentive Stock Option Award (the “ Award ”)
from Brandywine Realty Trust, a Maryland real estate investment
trust (the “ Company ”), to
(“ Optionee ”) and is dated April 8,
2008 (the “ Date of Grant ”). Terms used herein
as defined terms and not defined herein have the meanings assigned
to them in the Brandywine Realty Trust Amended and Restated 1997
Long-Term Incentive Plan, as amended from time to time (the “
Plan ”).
1.
Definitions . As used herein:
(a) “
Board ” means the Board of Trustees of the Company, as
constituted from time to time.
(b) “
Cause ” means “Cause” as defined in the
Plan.
(c) “
Change of Control ” means “Change of
Control” as defined in the Plan.
(d) “
Closing ” means the closing of the acquisition and
sale of the Shares as described in, and subject to the provisions
of, Paragraph 8 hereof.
(e) “
Closing Date ” means the date of the Closing.
(f) “
Code ” means the Internal Revenue Code of 1986, as
amended from time to time, and any successor thereto.
(g) “
Common Share ” means a common share of beneficial
interest, $.01 par value per share, of the Company.
(h) “
Committee ” means the Committee appointed by the Board
in accordance with Section 2 of the Plan, if one is appointed and
in existence at the time of reference. If no committee has been
appointed pursuant to Section 2, or if such a committee is not
in existence at the time of reference, “Committee”
means the Board.
(i) “
Date of Exercise ” means the date on which the notice
required by Paragraph 5 hereof is given.
(j) “
Date of Grant ” has the meaning shown above.
(k) “
Disability ” means “Disability” as defined
in the Plan.
(l) “
Expiration Date ” means the earliest of the
following:
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(i) |
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If the Optionee terminates employment with the Company for any
reason other than death, Disability or for Cause, 5:00 p.m. on the
date 90 days following such termination of employment; |
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(ii) |
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If the Optionee terminates employment with the Company because
of death or Disability, 5:00 p.m. on the first anniversary of the
date the Optionee terminates employment because of death or
Disability; |
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(iii) |
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If the Optionee terminates employment with the Company for
Cause, 5:00 p.m. on the date of such termination of
employment; |
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(iv) |
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The close of business on the date of a Change of Control; |
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(v) |
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5:00 p.m. on the day before the tenth anniversary of the Date
of Grant. |
(m) “
Fair Market Value ” means the Fair Market Value of a
Share, as determined pursuant to the Plan.
(n) “
Option ” means the option to purchase Shares hereby
granted.
(o) “
Option Price ” means $20.61 per Share. In the event of
any recapitalization, Share distribution or dividend, Share split
or combination, the Option Price shall be equitably and
proportionally adjusted. The Option Price shall also be subject to
adjustment pursuant to Section 3(c) of the Plan.
(p) “
Shares ” means the
Common Shares which are the subject of the Option hereby granted.
In the event of any recapitalization, Share distribution or
dividend, Share split or combination, the number of Shares that
remain subject to the Option shall be equitably and proportionally
adjusted. The number of Shares that remain subject to the Option
shall also be subject to adjustment pursuant to Section 3(c) of the
Plan.
(q) “
Subsidiary ” means, with respect to the Company, a
subsidiary company, whether now or hereafter existing, as defined
in section 424(f) of the Code.
2.
Grant of Option . Subject to the terms and conditions set
forth herein and in the Plan, the Company hereby grants to the
Optionee the Option to purchase any or all of the Shares.
3.
Time of Exercise of Options .
(a) Subject
to Paragraph 3(b), the Option may be exercised after such time
or times as set forth below, and shall remain exercisable until the
Expiration Date, when the right to exercise shall terminate
absolutely:
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(i) |
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The Option may be exercised for one-third of the Shares subject
to the Option on or after the first anniversary of the Date of
Grant. |
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(ii) |
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The Option may be exercised for an additional one-third of the
Shares subject to the Option on or after the second anniversary of
the Date of Grant. |
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(iii) |
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The Option may be exercised for an additional one-third of the
Shares subject to the Option on or after the third anniversary of
the Date of Grant. |
Notwithstanding the foregoing, the number of Shares available for
exercise as determined under this Paragraph 3 shall be rounded
down to the nearest whole Share. No Shares subject to the Option
shall first become exercisable following the Optionee’s
termination of employment.
(b) Notwithstanding
Paragraph 3(a), the Option shall become fully exercisable upon
the earliest of (i) the occurrence of a Change of Control,
(ii) the death of the Optionee or (iii) the Disability of
the Optionee. In addition, notwithstanding anything to the contrary
set forth in the Plan, upon or in anticipation of any Change in
Control, the Committee may, in its sole and absolute discretion and
without the need for the consent of the Optionee, take one or more
of the following actions contingent upon the occurrence of that
Change in Control: (i) cause the Option to become fully vested
and immediately exercisable for a reasonable period in advance of
the Cha
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