UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant To Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 6, 2006
BRANDYWINE REALTY TRUST
(Exact name of issuer as specified in charter)
| Maryland (State or Other Jurisdiction of Incorporation or Organization) |
1-9106 (Commission file number) |
23-2413352 (I.R.S. Employer Identification Number) |
555 East Lancaster Avenue, Suite 100
Radnor, Pennsylvania 19087
(Address of principal executive offices)
(610) 325-5600
(Registrant’s telephone number, including area code)
Item 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensatory Arrangements of Certain Officers.
On December 6, 2006, we appointed Howard M. Sipzner, age 45, as our Executive Vice President and Chief Financial Officer. Mr. Sipzner will assume his position and employment with us on or before January 29, 2007.
Mr. Sipzner joins us from Equity One, Inc., a real estate investment trust, in North Miami Beach, Florida, where he has served as Executive Vice President and Chief Financial Officer since 2004 and as Chief Financial Officer and Treasurer from 1999 to 2004. Mr. Sipzner received a B.A. from Queens College, City University of New York, and an M.B.A. from the Harvard Business School.
We have entered into an employment agreement and change in control agreement with Mr. Sipzner and have attached a copy of the employment agreement and change in control agreement as Exhibits 10.1 and 10.2, respectively.
The employment agreement has an initial three-year term and provides for (1) an initial annual base salary of $385,000, (2) an annual cash bonus of between 80% and 110% of the annual base salary, (3) an annual award of restricted or performance shares or options with a grant date fair market value equal to between 80% and 110% of the annual base salary, (4) an award of 18,010 performance shares that vest ratably over five years, (5) an award under our 2006 Long-Term Outperformance Compensation Program with an award percentage equal to 4.5%, (6) a $250,000 transition signing bonus, (7) an $8,400 annual automobile allowance and (8) participation in our deferred compensation plan. Vesting of the restricted performance shares or units is not subject to performance-based conditions and Mr. Sipzner will be entitled to receive distributions on the shares or units from the award date.
The change in control agreement provides for a severance payment to Mr. Sipzner in the event that within two years following a change in control his employment is terminated other than for cause or he resigns for good reason. The amount of the severance would be 2.25 times the sum of Mr. Sipzner’s annual base salary and the fair market value of his annual and long term bonuses for the calendar year preceding the year in which the change in control occurs. The change in control agreement also provides for a comparable payment in the event that Mr. Sipzner dies or becomes disabled while employed with us, whether or not we have undergone a change in control.
We have summarized our 2006 Long-Term Outperformance Compensation Program in a Form 8-K that we filed with the SEC on September 1, 2006. This Form 8-K also includes a copy of the 2006 Long-Term Outperformance Compensation Program.
Item 9.01. Financial Statements and Exhibits.
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10.1 |
Employment Agreement |
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10.2 |
Change of Control Agreement |
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10.3 |
Performance Share Award |
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10.4 |
OPP Form of Award Letter |
Signatures
Pursuant to the requirements of the Securities and Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.
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BRANDYWINE REALTY TRUST | |
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By: |
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Gerard H. Sweeney |
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of the 6th day of December, 2006 (the “Execution Date”) by and between Brandywine Operating Partnership, L.P., a Delaware limited partnership (the “Company”) and Howard M. Sipzner (the “Employee”).
WHEREAS, the Company desires to employ the Employee, and the Employee desires to be employed by the Company, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and obligations contained herein, and intending to be legally bound, the parties, subject to the terms and conditions set forth herein, agree as follows:
1. Employment and Term. The Company hereby employs the Employee and the Employee hereby accepts employment with the Company for the period commencing on the first day of employment (the “Effective Date”) and, unless such employment is sooner terminated as provided herein, terminating at 5:00 p.m. on the third (3rd) anniversary of the Effective Date. Such three-year period of employment as the same may be reduced as provided herein upon an earlier termination of the Employee’s employment, is referred to herein as the “Term.” At the end of the Term (and at the end of each and every one-year anniversary following the Term as the case may be), the Employee’s employment with the Company shall automatically continue thereafter for a period of one year, unless the Company gives at least 120 days advance written notice to the Employee prior to the expiration of the Term (or the expiration of the then applicable one-year term of renewal) that the Company will not renew this Employment Agreement or that the Employee’s employment with the Company is terminated.
2. Duties. The Employee shall serve the Company as its Executive Vice President and Chief Financial Officer (the “Position”). The Employee shall report to the Company’s Chief Executive Officer, currently Gerard H. Sweeney. The Employee shall serve the Company faithfully and to the best of his ability and shall devote his full work time, attention, skill, and efforts to the performance of the duties required by and appropriate for the Position. The Employee shall perform such specific duties and responsibilities within the scope of the Position as may be reasonably assigned to him from time to time by the Company. The Employee agrees to comply with all Company policies in effect from time to time and to comply with all laws, rules, and regulations, including, without limitation, those applicable to the Company.
3. Location. The Employee shall maintain a home office in the Company’s Radnor, Pennsylvania office. However, the Employee acknowledges that in order to effectively perform his duties, he will occasionally be required to travel for business purposes. In addition, the Company will provide the Employee a private parking space at the Company’s Cira Centre property.
4. Compensation. The Company shall pay the Employee, and the Employee hereby agrees to accept, as compensation for all services to be rendered to the Company the compensation set forth in this Section 4 of this Agreement.
4.1 Salary. The Company shall pay the Employee an initial annual base salary of Three Hundred Eighty-Five Thousand Dollars ($385,000.00). The Employee will be subject to annual performance reviews and base compensation adjustments commensurate with the Company’s standard practices for its senior officers. The Employee’s first performance review will occur in the first quarter of 2008 covering the Employee’s 2007 performance.
4.2 Annual Incentive Compensation/Bonus. The Employee shall be eligible for annual incentive compensation as determined by the Compensation Committee of the Board (the “Compensation Committee”) taking into account the recommendation of the Chief Executive Officer, payable each year of employment in such amounts as may be determined and approved by the Compensation Committee. The Employee shall be entitled to receive such cash bonuses, performance share awards and options to purchase common shares, par value $0.01 per share, of the Company (the “Common Shares”) as the Board or the Compensation Committee as the case may be shall approve, in its sole discretion, including, without limitation, options, performance share awards and cash bonuses contingent upon the Employee’s performance and the achievement of specified financial and operating objectives during each year or other applicable period.
For each year during the Term, the Employee’s total eligible incentive compensation target award shall be the sum of and applicable to and payable in each of (x) a cash bonus between 80% and 110% of the Employee’s annual base salary and (y) performance shares and/or options with a fair market value at the time of grant equal to between 80% and 110% of the Employee’s annual base salary.
Except as otherwise provided herein, in order to receive any incentive compensation payments payable pursuant to this Section, the Employee must be actively employed by the Company on the date on which such incentive compensation payments scheduled to be paid to participants in the plan.
4.3 Performance Shares Pursuant to the Amended and Restated 1997 Long-Term Incentive Plan of Brandywine Realty Trust (the “1997 Plan”), the Employee will be awarded a number of performance shares equal to Six Hundred Thousand Dollars ($600,000.00) divided by the thirty (30) day trailing average closing price of the Company’s common shares on the NYSE prior to and including the Execution Date (collectively, the “Performance Shares”), and such shares shall be issued within sixty (60) days following the Effective Date and shall vest ratably over a five year period starting on the Effective Date in accordance with the form of Performance Share Award Agreement between the Company and the Employee attached hereto as Attachment A.
4.4 Outperformance Plan. Pursuant to the Brandywine Realty Trust 2006 Long-Term Outperformance Compensation Program (“OPP”), the Employee will be granted an Award under the OPP as of the Effective Date having an Award Percentage equal to 4.5%. A form of the Award together with a copy of the OPP is attached hereto as Attachment B.
4.5 Deferred Compensation Plan. The Employee shall be entitled to participate in the Company’s deferred compensation plan(s) (or any successor plan) in accordance with and subject to the terms and limitations of such plan(s).
4.6 Benefits. The Employee shall be eligible for medical and dental benefits, short and long term disability coverage and life insurance benefits that the Company provides generally for its executive officers in accordance with the terms of the respective plans; provided, however, that nothing herein shall be deemed to require the Company to adopt or maintain any particular plan or policy. To the extent the Employee maintains his own disability policy, then the Company shall reimburse the Employee for the premium costs during the Term of this agreement.
4.7 Automobile Allowance. In addition to the other benefits of this Section 4., the Employee will receive an annual automobile allowance of $8,400.00 (payable as $700.00 monthly during the tenure of employment).
4.8 Transition Signing Bonus. In addition to the other benefits of this Section 4., the Company will pay the Employee a transition signing bonus of Two Hundred Fifty Thousand Dollars ($250,000.00) within sixty (60) days after the Effective Date.
4.9 Vacation and Sick Days. The Employee shall receive four weeks paid vacation during each calendar year of employment. In addition, the Employee shall be entitled to take up to 10 days of sick leave per year; provided, however, that any prolonged illness resulting in absenteeism greater than the sick leave permitted herein or disability shall not constitute “Cause” for termination under the terms of this Agreement. In addition, the Employee will be entitled to designate up to 10 additional personal days per calendar year.
4.10 Reimbursement of Expenses. The Company shall reimburse Employee for all reasonable, ordinary and necessary business expenses incurred by the Employee during the Term in connection with the performance of the Employee’s duties hereunder in accordance with the Company’s regular reimbursement procedures and practices in effect from time to time, including providing a cellular phone, blackberry-like device, computers and other reasonable wireless electronic devices and computer-related equipment. The Company shall also reimburse the Employee for reasonable attorney’s fees heretofore incurred in connection with the review of this Agreement.
4.11 Payment. Payment of all compensation to Employee hereunder shall be made in accordance with the terms of this Agreement and applicable Company policies in effect from time to time, including normal payroll practices, and shall be subject to all applicable withholdings and taxes (collectively, “Taxes”).
5. Termination.
5.1 If the Company terminates the Employee’s employment for Cause (as defined in Section 5.3 of this Agreement), or the Company terminates the Employee’s employment at the end of the Term (or at the end of any one-year anniversary following the Term) or the Employee terminates the Employee’s employment at any time for a reason other than Good Reason (as defined in Section 5.3 of this Agreement), the Employee shall be entitled to salary accrued but unpaid as of the date of such termination, and the Employee shall no longer be entitled to receive any other payments, rights or benefits under this Agreement, and the Company shall not have any further obligation to the Employee pursuant to this Agreement, except as provided to the contrary under the terms of any benefit plan in which he participates and pursuant to any federal or state law regarding the continuation of coverage under the Company’s group health plan. However, if the Company terminates the Employee’s employment at the end of the Term without Cause (or at the end of any one-year anniversary following the Term), then the Company shall pay to the Employee his pro-rata annual incentive compensation bonus of cash and shares earned up to the date of termination (and such shares will be fully vested when issued).
5.2 Except at provided in Section 5.1, if the Company terminates the Employee’s employment for a reason other than Cause (as defined in Section 5.3 of this Agreement), including death or disability, or the Employee terminates the Employee’s employment for Good Reason (as defined in Section 5.3 of this Agreement), then (x) the Company shall pay to the Employee salary accrued but unpaid as of the date of such termination and (y) the Company shall pay to the Employee as severance 1.50 times the sum of (i) the Employee’s then current annual base salary compensation, (ii) the Employee’s most recent annual incentive compensation cash bonus and (iii) the value of the Employee’s most recent annual incentive compensation share award (valued as of the date such shares were awarded).
Notwithstanding anything in Sections 5.1 or 5.2 to the contrary, if the Company terminates the Employee’s employment for a reason other than Cause (as defined in Section 5.3 of this Agreement), including death or disability, or the Employee terminates the Employee’s employment for Good Reason (as defined in Section 5.3 of this Agreement), then the unvested portion of the shares referred to in Section 4.3 above shall automatically become fully vested on the date of termination and, in addition, the Company shall issue to the Employee on a date which is the later of the Measurement Period Ending Date (as defined in the OPP) or the date of termination of employment, an amount of fully vested shares equal to the number of restricted shares the Employee would have been issued under the OPP pursuant to the OPP Award referred to in Section 4.4 above had the Employee remained employed with the Company on the OPP Measurement Period Ending Date (as defined in the OPP) times that portion of the Measurement Period (as defined in the OPP) that the Employee was actually employed by the Company (and for this purpose only assuming the Employee began employment on the Measurement Period Commencement Date, as defined in the OPP), less the portion of the Employee’s OPP Award referred to in Section 4.4 above that had previously vested and been issued to the Employee, if any.
5.3 The term “Cause” shall mean: (i) any material breach by the Employee of any of the terms or provisions of this Agreement which the Employee fails to cure within fifteen (15) days after written notice thereof has been provided to the Employee by the Company; or (ii) the Employee’s conviction on a felony or a crime involving moral turpitude or substance abuse; or (iii) the Employee’s misappropriation of funds. The term “Good Reason” shall mean: (i) the Company requiring the Employee’s relocation more than thirty (30) miles from the Employee’s primary office subsequent to the Effective Date, without such Employee’s consent; or (ii) a material adverse alteration in the nature of the Employee’s position such that a change in duties shall not be considered a material adverse alteration unless the duties are materially inconsistent with the Employee’s duties at the time of the Effective Date; (iii) a change downward in title or a change downward in reporting; or (iv) the Employee is excluded from the Company’s (or upon a Change in Control, its successor’s) long term incentive plan or reduction by the Company of the Employee’s annual base salary or target bonus; or (v) an assignment of duties to the Employee that is materially inconsistent with the Employee’s job description at the time of the Effective Date.
5.4 In the event of a termination following a change-in-control, then in lieu of the payments provided herein the Employee shall receive the benefits equal to the amount set forth in and pursuant to the terms of the Form of Agreement attached hereto as Attachment C.
5.5 The Employee shall have no obligation to mitigate the damages provided by this Section 5 by seeking substitute employment or otherwise and there shall be no offset of the payments or benefits set forth in this Section 5.
6. Confidential Information. The Employee acknowledges that, during the course of his employment with the Company, he will have access to information about the Company and/or its subsidiaries and their tenants, clients and suppliers, that is confidential and/or proprietary in nature, and that belongs to the Company and/or its subsidiaries. As such, at all times, both during the period of employment and thereafter, the Employee will hold in the strictest confidence, and not use or attempt to use except for the benefit of the Company and/or its subsidiaries, and not disclose to any other person or entity (without the prior written authorization of the Board) any confidential information. Notwithstanding anything contained in this Section 6, the Employee will be permitted to disclose any Confidential Information to the extent required by validly-issued legal process or court order, provided that the Employee notifies the Company and/or its subsidiaries immediately of any such legal process or court order, to the extent practicable, in an effort to allow the Company and/or its subsidiaries to challenge such legal process or court order, if the Company and/or its subsidiaries so elects, prior to the Employee’s disclosure of any Confidential Information.
7. Restrictive Covenants.
7.1 The Employee agrees that, while he is employed and during the one-year period immediately following the termination of the Employee’s employment with the Company (or six months in the case of a termination by the Company of the Employee’s employment with the Company for reasons other than Cause), the Employee shall not directly or indirectly solicit, divert away, or attempt to divert away any commercial real estate business with the Company to another company, business, or individual.
7.2 If the Company terminates the Employee’s employment for any reason or the Employee terminates his employment for any reason, then the Employee will not, during the one-year period immediately following the termination of the Employee’s employment with the Company, directly or indirectly (i) solicit, induce, or attempt to influence, any employee of the Company or any of its affiliates to terminate employment; or (ii) interfere with the relationship between the Company and its existing or prospective tenants, including without limitation encouraging a tenant to terminate, or elect not to renew, its lease with the Company; or (iii) interfere with the relationship between the Company and any service providers to the Company. For purposes of items (ii) and (iii) only of this Section 7.2, the one-year period shall be reduced to six months if the Company terminates the Employee’s employment with the Company for reasons other than Cause.
7.3 The Employee acknowledges that the restrictions contained herein, in view of the nature of the business in which Employee has been engaged, are reasonable and necessary to protect the legitimate interest of the Company, and that any violation of these restrictions would result in irreparable injury to the Company. The Employee acknowledges that, in the event of a violation of any such restrictions, the Company shall be entitled to preliminary and permanent injunctive relief as well as an equitable accounting of all earnings, profits and other benefits arising from such violation which rights shall be cumulative and in addition to any other rights or remedies to which Company may be entitled.
8. Representations, Warranties and Covenants of the Employee.
8.1 The Employee represents and warrants to the Company that there are no restrictions, agreements or understandings to which the Employee is a party which would prevent or make unlawful the Employee’s execution of this Agreement or the Employee’s employment hereunder, or which is or would limit the performance by the Employee of the obligations hereunder.
8.2 The Employee covenants that in connection with his provision of services to the Company, he shall not breach any obligation (legal, statutory, contractual or otherwise) to any former employer or other person, including, but not limited to obligations relating to confidentiality and proprietary rights.
9. Survival of Provisions. The provisions of this Agreement set forth in Sections 5.3, 6, 7, 11 and 16 hereof shall survive the termination of the Employee’s employment hereunder for the purposes provided for therein.
10. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Employee and their respective successors, executors, administrators, heirs and/or assigns; provided that the Employee shall not make any assignment of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the Company. The Company agrees that its obligations under this Agreement are binding upon any successors or assigns.
11. Assistance in Litigation. Employee shall reasonably cooperate with the Company in the defense or prosecution of any claims or actions now in existence or that may be brought in the future against or on behalf of the Company that relate to events or occurrences that transpired while Employee was employed by the Company. Employee’s cooperation in connection with such claims or actions shall include, but not be limited to, being available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of the Company at mutually convenient times. Employee also shall cooperate fully with the Company in connection with any investigation or review by any federal, state, or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while Employee was employed by the Company. The Company will pay Employee a reasonable hourly rate for Employee’s cooperation pursuant to this Section. The Company will reimburse the Employee for reasonable attorney’s fees and costs incurred as a result of his compliance with this Section.
12. Notices. All notices and other communications required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given if delivered personally, mailed by certified mail (return receipt requested) or sent by overnight delivery service, or facsimile transmission (with electronic confirmation of successful transmission) to the parties at the following addresses or at such other addresses as shall be specified by the parties by like notice, in order of preference of the recipient:
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If to the Company: |
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Brandywine Realty Trust |
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555 E. Lancaster Ave., Suite 100 |
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Radnor, PA 19087 |
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Attn: Gerard H. Sweeney |
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President and CEO |
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Fax: (610) 832-4919 |
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If to Employee: |
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Howard M. Sipzner |
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With copies to: |
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Rhonda Sipzner |
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And |
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Fred R. Green, Esq. |
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Notice so given shall, in the case of mail, be deemed to be given and received on the fifth calendar day after posting, in the case of overnight delivery service, on the date of actual delivery and, in the case of facsimile transmission, telex or personal delivery, on the date of actual transmission or, as the case may be, personal delivery.
13. Entire Agreement; Amendments. This Agreement contains the entire agreement and understanding of the parties hereto relating to the subject matter hereof, and merges and supersedes all prior and contemporaneous discussions, agreements and understandings of every nature between the parties hereto relating to the employment of the Employee with the Company. This Agreement may not be changed or modified, except by an agreement in writing signed by each of the parties hereto.
14. Waiver. The waiver of the breach of any term or provision of this Agreement shall not operate as or be construed to be a waiver of any other or subsequent breach of this Agreement.
15. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Pennsylvania, without regard to the principles of conflicts of laws of any jurisdiction.
16. Section 409A Provisions:
16.1 Six-Month Wait for Key Employees Following Separation from Service. To the extent that any amount payable under this Agreement constitutes an amount payable under a “nonqualified deferred compensation plan,” as defined in Internal Revenue Code Section 409A (“Section 409A”), following a “separation from service,” as defined in Section 409A, then, notwithstanding any other provision in this Agreement to the contrary, such payment will not be made until the date that is six months following the Employee’s “separation from service,” but only if the Employee is then deemed to be a “specified employee” under Section 409A.
16.2 Necessary Amendments Due to Section 409A . The parties hereto acknowledge that the requirements of Section 409A are still being developed and interpreted by government agencies, that certain issues under Section 409A remain unclear at this time, and that the parties hereto have made a good faith effort to comply with current guidance under Section 409A. Notwithstanding anything in this Agreement to the contrary, in the event that amendments to this Agreement are necessary in order to comply with future guidance or interpretations under Section 409A (or other statutory or regulatory developments), including amendments necessary to ensure that compensation will not be subject to Section 409A, the Employee agrees that the Company shall be permitted to make such amendments, on a prospective and/or retroactive basis, in its sole discretion. In the event it shall be determined that the payment of any amounts referred to in this agreement (the “Payments”) is or will be subject to the excise tax imposed by Section 409A or any interest or penalties with respect to such payment or excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the “Excise Tax”), then the Employee, to the extent he has cooperated under this Section 16, shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including but not limited to, any income tax, employment tax or Excise Tax, imposed upon the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
17. Invalidity. If any provision of this Agreement shall be determined to be void, invalid, unenforceable or illegal for any reason, the validity and enforceability of all of the remaining provisions hereof shall not be affected thereby.
18. Section Headings. The section headings in this Agreement are for convenience only; they form no part of this Agreement and shall not affect its interpretation.
19. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall be deemed to be one and the same instrument.
20. Indemnification and D&O Insurance. The Company shall, to the full extent permitted by law, indemnify and hold harmless the Employee from and against any liability, damage, claim or expense incurred by reason of any act performed or omitted to be performed by the Employee in connection with the business of the Company, including, without limitation, reasonable attorneys fees and reasonable expenses incurred by the Employee in connection with the defense of any action based on any such act or omission. Without limiting the foregoing, the Employee shall be entitled to the benefit of the indemnification provisions available to senior officers of the Company.
The Employee shall be covered under any directors’ and officers’ liability insurance policies maintained by the Company to the extent of the limits and subject to any exclusions provided in the policy as are applicable to the Company’s officers in general.
IN WITNESS WHEREOF, the parties have caused this Employment Agreement to be executed the day and year first written above.
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BRANDYWINE OPERATING PARTNERSHIP, L.P., By: Brandywine Realty Trust, its general partner | |
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By: |
Gerard H. Sweeney |
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Its: |
President and Chief Executive Officer |
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Howard M. Sipzner |
Attachment C
FORM OF AGREEMENT
CHANGE-IN-CONTROL
THIS AGREEMENT is entered into as of the 6th day of December, 2006 by and between Howard M. Sipzner (“Executive”) and Brandywine Realty Trust (the “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, then:
a. the Company or Purchaser will be obligated to pay to Executive an amount equal to the product of: (x) 2.25 multiplied by (y) the sum of (1) Executive’s annual base salary as in effect at the time the Change of Control occurs, (2) the annual bonus paid to Executive in the calendar year immediately preceding the calendar year in which the Change of Control occurs, (3) the “Fair Market Value” (as defined under the Plan) of any restricted common shares of beneficial interest granted to Executive under the Plan (or any new or successor long-term incentive plan) in the calendar year immediately preceding the calendar year in which the Change of Control occurs, determined as of the date of grant of any such restricted shares and (4) the fair market value of any other long-term incentive award (other than the outperformance plan) made to Executive in or for the calendar year immediately preceding the calendar year in which the Change of Control occurs (with the fair market value determined as of the date of the award and determined by the Board using customary valuation procedures as it may in its sole discretion select). 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 medical coverage until the earlier of (1) the last day of the 821-day period following the date of termination or resignation or (2) the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer. Coverage shall be provided at the level in effect at the date of his termination or resignation (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as such coverage may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). 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 the equivalent coverage if provision of such coverage is not possible under the group term life insurance policy, at no cost to Executive for the 821-day period following the date of Executive’s termination or resignation.
2. Payment Obligation: Death or Disability. The Company agrees that if Executive dies or becomes Disabled at a time when Executive is then an employee of the Company and/or a Subsidiary of the Company, then the Company will pay to Executive or his estate, as applicable, an amount equal to the product of: (x) 2.25 multiplied by (y) the sum of (1) Executive’s base salary as in effect at the time the death or Disability occurs, (2) the annual bonus paid to Executive in the calendar year immediately preceding the calendar year in which the death or Disability occurs, (3) the “Fair Market Value” (as defined under the Plan) of any restricted common shares of beneficial interest granted to Executive under the Plan (or any new or successor long-term incentive plan) in the calendar year immediately preceding the calendar year in which the death or Disability occurs, determined as of the date of grant of any such restricted shares and (4) the fair market value of any other long-term incentive award (other than the outperformance plan) made to Executive in or for the calendar year immediately preceding the calendar year in which the death or Disability occurs (with the fair market value determined as of the date of the award and determined by the Board using customary valuation procedures as it may in its sole discretion select)
3. 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.
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
(2) approval by shareholders of the Company of:
(a) 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;
(b) a complete liquidation or dissolution of the Company; or
(c) an agreement for the sale or other disposition of all or substantially all of the assets of the Company; or
(3) 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
(4) 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. “Disability” means a disability of Executive which renders Executive unable to perform the full extent of his duties and responsibilities by reason of his illness or incapacity which would entitle that person to receive Social Security Disability Income under the Social Security Act, as amended, and the regulations thereunder. “Disabled” shall mean having a Disability. The determination of whether Executive is Disabled shall be made by the Board, whose determination shall be conclusive.
f. “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;
(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
(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.
g. “Plan” means the Company’s 1997 Long-Term Incentive Plan, as amended.
h. “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.
i. 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.
5. 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. Tax Gross-up. In the event it shall be determined that any payment or distribution of any type to or for the benefit of the Employee, by the Company, any Affiliate, any person who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company’s assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations thereunder) or any Affiliate of such person, whether paid or payable or distributed or distributable pursuant to any of the terms of this Agreement or otherwise (the “Total Payments”), is or will be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the “Excise Tax”), then the Employee shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any income tax, employment tax or Excise Tax, imposed upon the Gross Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments.
All mathematical determinations, and all determinations as to whether any of the Total Payments are “parachute payments” (within the meaning of Section 280G of the Code), that are required to be made under this Section including determinations as to whether a Gross-Up Payment is required, the amount of such Gross-Up Payment and amounts relevant to the last sentence of this Section, shall be made by an independent accounting firm selected by the Employee from among the five (5) largest accounting firms in the United States (the “Accounting Firm”), which shall provide its determination (the “Determination”), together with detailed supporting calculations regarding the amount of any Gross-Up Payment and any other relevant matter, both to the Company and the Employee by no later than ten (10) days following the Termination Date, if applicable, or such earlier time as is requested by the Company or the Employee (if the Employee reasonably believes that any of the Total Payments may be subject to the Excise Tax). If the Accounting Firm determines that no Excise Tax is payable by the Employee, it shall furnish the Employee and the Company with a written statement that such Accounting Firm has concluded that no Excise Tax is payable (including the reasons therefor) and that the Employee has substantial authority not to report any Excise Tax on his or her federal income tax return. If a Gross-Up Payment is determined to be payable, it shall be paid to the Employee within twenty (20) days after the Determination (and all accompanying calculations and other material supporting the Determination) is delivered to the Company by the Accounting Firm. Any determination by the Accounting Firm shall be binding upon the Company and the Employee, absent manifest error. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments not made by the Company should have been made (“Underpayment”), or that Gross-Up Payments will have been made by the Company which should not have been made (“Overpayments”). In either such event, the Accounting Firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Underpayment, the amount of such Underpayment shall be promptly paid by the Company to or for the benefit of the Employee. In the case of an Overpayment, the Employee shall, at the direction and expense of the Company, take such steps as are reasonably necessary (including the filing of returns and claims for refund), follow reasonable instructions from, and procedures established by, the Company, and otherwise reasonably cooperate with the Company to correct such Overpayment, provided, however, that (i) the Employee shall not in any event be obligated to return to the Company an amount greater than the net after-tax portion of the Overpayment that he or she has retained or has recovered as a refund from the applicable taxing authorities and (ii) this provision shall be interpreted in a manner consistent with the intent of Section, which is to make the Employee whole, on an after-tax basis, from the application of the Excise Tax, it being understood that the correction of an Overpayment may result in the Employee repaying to the Company an amount which is less than the Overpayment.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
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BRANDYWINE REALTY TRUST |
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By: |
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Gerard
H. Sweeney |
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Howard M. Sipzner |
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Attachment A
BRANDYWINE REALTY TRUST
PERFORMANCE SHARE AWARD
This is a Performance Share Award dated as of ___________, 2007 (“Date of Grant”) from Brandywine Realty Trust, a Maryland real estate investment trust (the “Company”) to Howard M. Sipzner (“Grantee”). Terms used herein as defined terms and not defined herein have the meanings assigned to them in the Brandywine Realty Trust 1997 Long-Term Incentive Plan, as amended from time to time (the “Plan”).
1. Definitions. As used herein:
(a) “Award” means the award of Performance Shares hereby granted.
(b) “Board” means the Board of Trustees of the Company, as constituted from time to time.
(c) “Cause” means “Cause” as defined in the Plan.
(d) “Change of Control” means “Change of Control” as defined in the Plan.
(e) “Code” means the Internal Revenue Code of 1986, as amended from time to time, and any successor thereto.
(f) “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.
(g) “Date of Grant” has the meaning shown above.
(h) “Deferred Compensation Plan” means the Brandywine Realty Trust Executive Deferred Compensation Plan, as in effect from time to time.
(i) “Disability” means “Disability” as defined in the Plan.
(j) “Employer” means the Company or the Subsidiary for which Grantee is performing services on the applicable Vesting Date.
(k) “Fair Market Value” means “Fair Market Value” as defined in the Plan.
(l) “Performance Period” means, with respect to each Performance Share, the period beginning on the Date of Grant and ending on the applicable Vesting Date for such Performance Share.
(m) “Performance Shares” means the 18,010 Shares which are subject to vesting and forfeiture in accordance with the terms of this Award.
(n) “Rule 16b-3” means Rule 16b-3 promulgated under the 1934 Act, as in effect from time to time.
(o) “Share” means a common share of beneficial interest, $.01 par value per share, of the Company, subject to substitution or adjustment as provided in Section 3(c) of the Plan.
(p) “Subsidiary” means, with respect to the Company, a subsidiary company, whether now or hereafter existing, as defined in section 424(f) of the Code, and any other entity 50% or more of the economic interests in which are owned, directly or indirectly, by the Company.
(q) “Vesting Date” means the date(s) on which Grantee vests in all or a portion of the Performance Shares, as provided in Paragraph 3.
2. Grant of Performance Shares. Subject to the terms and conditions set forth herein and in the Plan, the Company hereby grants to Grantee the Performance Shares.
3. Vesting of Performance Shares.
(a) Subject to the terms and conditions set forth herein and in the Plan, Grantee shall vest in the Performance Shares on the Vesting Dates set forth in Paragraph 3(b), and as of each Vesting Date, shall be entitled to the delivery of Shares with respect to such Performance Shares; provided that either (i) on the Vesting Date, Grantee is, and has from the Date of Grant continuously been, an employee of the Company or a Subsidiary during the Performance Period, or (ii) Grantee’s termination of employment before the Vesting Date occurred because of Grantee’s death or Disability, or (iii) Grantee’s termination of employment for any reason other than Cause or (vi) the Grantee terminates employment with the Company and its affiliates for Good Reason (“Good Reason” as used herein shall have the same meaning as defined in that certain Employment Agreement executed on the same day herewith as this Performance Share Award agreement by and between the Company and the Grantee).
(b) Subject to Paragraphs 3(a) and 3(c), a Vesting Date for Performance Shares subject to the Award shall occur in accordance with the following schedule:
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(i) |
One-fifth of the Performance Shares will vest on the first anniversary of the Grantee’s first day of employment with the Company (the first day of employment hereinafter referred to as the “Date of Hire”); and |
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(ii) |
An additional one-fifth of the Performance Shares will vest on the second anniversary of the Date of Hire; and |
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(iii) |
An additional one-fifth of the Performance Shares will vest on the third anniversary of the Date of Hire; and |
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(iv) |
An additional one-fifth of the Performance Shares will vest on the fourth anniversary of the Date of Hire; and |
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(v) |
An additional one-fifth of the Performance Shares will vest on the fifth anniversary of the Date of Hire. |
(c) Notwithstanding Paragraphs 3(a) and 3(b):
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a Vesting Date for all Performance Shares shall occur upon the occurrence of a Change of Control, and the Performance Shares, to the extent not previously vested, shall thereupon vest in full, provided that: |
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as of the date of the Change of Control, Grantee is, and has from the Date of Grant continuously been, an employee of the Company or a Subsidiary or |
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Grantee’s termination of employment before the date of the Change of Control occurred because of Grantee’s death or Disability, or |
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(C) |
Grantee’s termination of employment for any reason other than Cause or |
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the Grantee terminates employment with the Company and its affiliates for Good Reason. |
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(ii) |
To the extent provided under the Deferred Compensation Plan, Grantee may elect to defer the receipt of Shares issuable with respect to Performance Shares. To the extent Grantee has elected to defer the receipt of such Shares, such Shares shall be delivered at the time or times designated pursuant to the Deferred Compensation Plan. |
4. Forfeiture of Performance Shares.
(a) Subject to the terms and conditions set forth herein, if Grantee terminates employment with the Company and all Subsidiaries prior to the Vesting Date for a Performance Share for reasons other than death, Disability, Good Reason or involuntary termination without Cause, Grantee shall forfeit any such Performance Share which has not vested as of such termination of employment. Grantee shall not forfeit Performance Shares which have not vested as of Grantee’s termination of employment with the Employer because of death or Disability, Grantee’s termination of employment for any reason other than Cause, or Grantee terminates employment with the Company and its affiliates for Good Reason.
Upon a forfeiture of the Performance Shares as provided in this Paragraph 4, the Performance Shares shall be deemed canceled.
(b) The provisions of this Paragraph 4 shall not apply to Performance Shares as to which a Vesting Date has occurred.
5. Rights of Grantee. During the Performance Period, with respect to the Performance Shares, Grantee shall have the right to receive a cash payment equal to the value of any distributions or dividends payable with respect to Shares.
6. Notices. Any notice to the Company under this Award shall be made to:
Brandywine Realty Trust
555 E. Lancaster Ave., Suite 100
Radnor, PA 19087
Attention: Chief Executive Officer
or such other address as may be provided to Grantee by written notice. Any notice to Grantee under this Award shall be made to Grantee at the address listed in the Company’s personnel files. All notices under this Award shall be deemed to have been given when hand-delivered, telecopied or delivered by first class mail, postage prepaid, and shall be irrevocable once given.
7. Securities Laws. The Committee may from time to time impose any conditions on the Performance Shares as it deems necessary or advisable to ensure that the Plan satisfies the conditions of Rule 16b-3, and that Shares are issued and resold in compliance with the Securities Act of 1933, as amended.
8. Delivery of Shares. Upon a Vesting Date, the Company shall notify Grantee (or Grantee’s legal representatives, estate or heirs, in the event of Grantee’s death before a Vesting Date) that the Performance Shares have vested. Except to the extent that Grantee has elected to defer the delivery of Shares under the Deferred Compensation Plan, within ten (10) business days of a Vesting Date, the Company shall, without payment from Grantee for the Performance Shares, deliver to Grantee a certificate for the Performance Shares without any legend or restrictions, except for such restrictions as may be imposed by the Committee, in its sole judgment, under Paragraph 7, provided that no certificates for Shares will be delivered to Grantee until appropriate arrangements have been made with Employer for the withholding of any taxes which may be due with respect to such Shares. The Company is authorized to withhold from any cash remuneration then or thereafter payable to Grantee an amount sufficient to cover required tax withholdings and is further authorized to cancel a number of Shares for which the restrictions have lapsed having an aggregate Fair Market Value equal to the required tax withholdings. The Company may condition delivery of certificates for Shares upon the prior receipt from Grantee of any undertakings which it may determine are required to assure that the certificates are being issued in compliance with federal and state securities laws. The right to payment of any fractional Shares shall be satisfied in cash, measured by the product of the fractional amount times the fair market value of a Share on the Vesting Date, as determined by the Committee.
9. Award Not to Affect Employment. The Award granted hereunder shall not confer upon Grantee any right to continue in the employment of the Company or any Subsidiary.
10. Miscellaneous.
(a) The address for Grantee to which notice, demands and other communications are to be given or delivered under or by reason of the provisions hereof shall be the Grantee’s address as reflected in the Company’s personnel records.
(b) This Award and all questions relating to its validity, interpretation, performance and enforcement shall be governed by and construed in accordance with the laws of Pennsylvania.
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BRANDYWINE REALTY TRUST | |
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BY: |
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Gerard H. Sweeney |
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Accepted: |
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Howard M. Sipzner |
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Attachment B
__________, 2007
Howard M. Sipzner
5401 Collins Avenue – Apt 516
Miami Beach, FL 33140
Dear Howard:
The Compensation Committee (the “Committee”) of the Board of Trustees of Brandywine Realty Trust (“Brandywine”) has adopted the 2006 Long-Term Outperformance Compensation Program (the “Program”). The Committee adopted the Program under Brandywine’s Amended and Restated 1997 Long-Term Incentive Plan (as amended or supplemented from time to time, the “Plan”). A copy of the Program and the Plan are enclosed in this package under Tabs 4 and 7, respectively.
Terms used in this letter and not defined in this letter have the meanings given to them in the Program. This letter constitutes an Award Agreement between you and Brandywine under the Program.
You are hereby granted an Award under the Program, having an Award Percentage equal to 4.5%.
The Award is subject to all of the terms and conditions in the Program and the Plan, and the Committee retains full authority to resolve any interpretive questions that may arise under the Award, the Program or the Plan.
To evidence your agreement to the terms and conditions of the Award, including the forfeiture provisions set forth in the Program, please execute this letter in the space provided below under the caption “Name of Award Recipient” and return the signed letter to the attention of Brad A. Molotsky, the Company’s Senior Vice President and General Counsel.
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Brandywine Realty Trust | |
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Name: |
Gerard H. Sweeney |
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Title: |
President and Chief Executive Officer |
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Howard M. Sipzner | |
555 E. LANCASTER AVE., SUITE 100
RADNOR, PA 19087
P 610-325-5600; F 610-325-5622