WASHINGTON REAL ESTATE INVESTMENT TRUST
(Effective January 1, 2011)
ARTICLE I. INTRODUCTION
1.1 Purpose. The purposes of the Washington Real Estate Investment Trust 2011 Long-Term Incentive Plan (the Plan) contained herein are to allow Washington Real Estate Investment Trust (the Trust) to attract and retain talented executives, to provide incentives to executives to achieve certain performance targets, and to link executive compensation to shareholder results by rewarding competitive and superior performance. In furtherance of those purposes, the Plan is designed to provide long-term incentive compensation to officers of the Trust, the amount of which is dependent on the degree of attainment of certain performance goals of the Trust over the performance period beginning on January 1, 2011 and ending on December 31, 2013.
1.2 Background. The Plan replaces the Long-Term Incentive Plan that became effective January 1, 2009 (the Prior Plan) with respect to the performance period beginning January 1, 2011 and ending December 31, 2013. The Prior Plan has been amended in connection with the adoption of this Plan with respect to the performance share units (PSUs) relating to the 2009 2011 and the 2010 2012 performance periods to convert them into restricted share units (RSUs), and no further grants of PSUs will be made after 2010, or remain outstanding, under the Prior Plan. All RSUs granted under the Prior Plan before 2011 remain in effect in accordance with the terms of the Prior Plan, but after 2010 no further grants of RSUs will be made under the Prior Plan, other than the above-described PSUs that have been converted into RSUs. The foregoing amendment to the Prior Plan is set forth in the Amendment to Long-Term Incentive Plan made as of February 17, 2011.
1.3 Overview. Each award under the Plan is initially expressed as a dollar amount that is a multiple of the participants annual base salary, which multiple varies depending on the participants job position and the degree of achievement of the performance goals over the three-year performance period under the Plan. The dollar amount is converted into a number of common shares of the Trust with equivalent value at the end of the performance period. The awards are payable 50% in unrestricted (i.e., fully vested) common shares and 50% in restricted common shares that are subject to a vesting schedule that normally runs for one year after the completion of the three-year performance period. Grants under the Plan are made pursuant to and from the common share reserve established under the Trusts 2007 Omnibus Long-Term Incentive Plan.
1.4 Effective Date. This Plan is effective as of January 1, 2011 (the Effective Date), and was approved by the Compensation Committee of the Board of Trustees of the Trust (the Committee) and by the Board of Trustees of the Trust (the Board) on February 17, 2011.
ARTICLE II. DEFINITIONS
2.1 Award means an award of fully vested Common Shares and Common Shares subject to vesting under the Plan.
2.2 Absolute Total Shareholder Return means annual compounded Total Shareholder Return for the Performance Period (or if a Change in Control occurs during the Performance Period, annualized compounded Total Shareholder Return for the Performance Period).
2.3 Beginning Share Price means the average closing price per Common Share for the twenty (20) trading days ending December 1, 2010 on the exchange on which Common Shares are traded.
2.4 Cause means
(a) commission by the Participant of a felony or crime of moral turpitude;
(b) conduct by the Participant in the performance of the Participants duties to the Trust which is illegal, dishonest, fraudulent or disloyal;
(c) the breach by the Participant of any fiduciary duty the Participant owes to the Trust; or
(d) gross neglect of duty which is not cured by the Participant to the reasonable satisfaction of the Trust within thirty (30) days of the Participants receipt of written notice from the Trust advising the Participant of said gross neglect
2.5 Change in Control means an event or occurrence set forth in any one or more of subsections (a) through (d) below (including any event or occurrence that constitutes a Change in Control under one of such subsections but is specifically exempted from another such subsection):
(a) the acquisition by an individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the Exchange Act)) (a Person) of beneficial ownership of any shares of beneficial interest in the Trust if, after such acquisition, such Person beneficially owns (within the meaning of rule 13d-3 promulgated under the Exchange Act) forty percent (40%) or more of either (1) the then-outstanding shares of beneficial interest in the Trust (the Outstanding Trust Shares) or (2) the combined voting power of the then-outstanding shares of beneficial interest the Trust entitled to vote generally in the election of trustees (the Outstanding Trust Voting Shares); provided, however, that for purposes of this subsection (a), the following acquisitions shall not constitute a Change in Control: (A) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Trust or any corporation controlled by the Trust, or (B) any acquisition by any corporation pursuant to a transaction which complies with clauses (1) and (2) of subsection (c) of this Section; or
(b) such time as the Continuing Trustees (as defined below) do not constitute a majority of the Board (or, if applicable, the board of directors or trustees of a successor corporation or other entity to the Trust), where the term Continuing Trustee means at any date a member of the Board (1) who was a member of the Board on the date hereof or (2) who was nominated or elected subsequent to the date hereof with the approval of other Board members who themselves constitute Continuing Trustees at the time of such nomination or election; provided, however, that there shall be excluded from this clause (2) any individual whose initial assumption of office occurred as a result of an actual or threatened election contest with respect to the election or removal of trustees or other actual or threatened solicitation of proxies or consents, by or on behalf of a person other than the Board; or
(c) the consummation of a merger, consolidation, reorganization, recapitalization or statutory share exchange involving the Trust or a sale or other disposition of all or substantially all of the assets of the Trust in one or a series of transactions (a Business Combination), unless, immediately following such Business Combination, each of the following two conditions is satisfied: (1) all or substantially all of the individuals and entities who were the beneficial owners of the Outstanding Trust Shares and Outstanding Trust Voting Shares immediately prior to such Business Combination beneficially own, directly or indirectly, more than 60% of the then-outstanding shares of beneficial interest or stock, as the case may be, and the combined voting power of the then-outstanding shares or stock, as the case may be, entitled to vote generally in the election of trustees, or directors, as the case may be, respectively, of the resulting or acquiring corporation or other entity in such Business Combination (which shall include, without limitation, a corporation or other entity which as a result of such transaction owns the Trust or substantially all of the Trusts assets either directly or through one or more subsidiaries) (such resulting or acquiring corporation or other entity referred to herein as the Acquiring Entity) in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the Outstanding Trust Shares and Outstanding Trust Voting Shares, respectively; and (2) no Person (excluding the Acquiring Entity or any employee benefit plan (or related trust) maintained or sponsored by the Trust or by the Acquiring Entity) beneficially owns, directly or indirectly, 40% or more of the then outstanding shares of beneficial interest or stock, as the case may be, of the Acquiring Entity, or of the combined voting power of the then-outstanding shares of such corporation or other entity entitled to vote generally in the election of trustees or directors, as the case may be; or
(d) a liquidation or dissolution of the Trust.
Notwithstanding the foregoing, no Change in Control shall be deemed to have occurred unless the event also constitutes a change in the ownership or effective control of the corporation or in the ownership of a substantial portion of the assets of the corporation within the meaning of Section 409A(a)(2)(v) of the Internal Revenue Code.
2.6 Common Shares means common shares of the Trust.
2.7 Core FAD means core funds available for distribution of the Trust, as adjusted and calculated in accordance with the Trusts accounting principles.
2.8 Disability means 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 not less than twelve (12) months, as a result of which the Participant is receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Trust. The determination of whether the Participants physical or mental impairment satisfies the conditions set forth in this Section shall be made under a disability insurance program covering employees of the Trust; provided, however, that if the Participant is determined to be totally disabled by the Social Security Administration, his physical or mental impairment shall be deemed to satisfy the conditions of this Section.
2.9 EBITDA means earnings before interest, taxes, depreciation and amortization of the Trust, as adjusted and calculated in accordance with the Trusts accounting principles.
2.10 Ending Share Price means the average closing price per Common Share for the twenty (20) trading days ending December 1, 2013 on the exchange on which Common Shares are traded (unless a Change in Control occurs before January 1, 2014, in which case the term means the value per Common Share determined as of the date of the Change in Control, such value to be determined by the Committee in its reasonable discretion based on the actual or implied price per share paid in the Change in Control transaction).
2.11 Good Reason means the occurrence of an event listed in Subsection (a), (b) or (c) below:
(a) the Trust materially diminishes the Participants job responsibilities such that the Participant would no longer have responsibilities substantially equivalent to those of other officers holding an equivalent job position to that held by the Participant before the diminution at companies with similar revenues and market capitalization;
(b) the Trust reduces the Participants annual base salary (except for a reduction that is a uniform percentage of annual base salary for each officer of the Trust and does not exceed ten percent (10%) of annual base salary) or annual bonus opportunity at high, target or threshold performance as a percentage of annual base salary; or
(c) the Trust requires the Participant to relocate the Participants primary place of employment to a new location that is more than fifty (50) miles from its current location (determined using the most direct driving route), without the Participants consent;
provided however, as to each event in Subsection (a), (b) or (c),
(i) the Participant gives written notice to the Trust within thirty (30) days following the event or receipt of notice of the event of his objection to the event;
(ii) the Trust fails to remedy the event within thirty (30) days following the Participants written notice; and
(iii) the Participant terminates his employment within thirty (30) days following the Trusts failure to remedy the event.
2.12 Participant means a person who participates in the Plan pursuant to Section 3.1.
2.13 Performance Period means the period from and including January 1, 2011 through the earlier of December 31, 2013 or the date of a Change in Control.
2.14 Relative Total Shareholder Return means Total Shareholder Return ranked on a percentile basis relative to the total shareholder return of companies comprising the peer group of companies for the Performance Period using the same methodology used for calculating Total Shareholder Return. For this purpose, the peer group of companies shall be the group of twenty (20) companies selected by the Committee in 2010 and disclosed on page 26 of the Trusts 2011 proxy statement, and if the Committee decides that any company shall cease to be a peer during the Performance Period, it shall be deleted from the peer group, but no new companies shall be added to the peer group during the Performance Period.
2.15 Retire means a Participant resigns upon or after reaching (a) age 55 and being employed by the Trust for at least twenty (20) years or (b) age 65.
2.16 Strategic Plan Fulfillment means the Committees assessment, in its discretion, following completion of the Performance Period, of the degree of achievement of the Trusts strategic plan for the Performance Period taking into account such factors as the Committee in its discretion may wish to consider (and input from the Board and a written presentation regarding strategic plan fulfillment to be provided by the Trusts Chief Executive Officer). This assessment shall consider, among other factors, the following (in each case at levels and in manners that promote the fulfillment of the Trusts strategic plan):
|(a)||maintenance of an appropriate Core FAD/share growth rate;|
|(b)||maintenance of an appropriate debt/EBITDA ratio;|
|(c)||maintenance of an appropriate debt service coverage ratio;|
|(d)||maintenance of an appropriate Core FAD/dividend coverage ratio;|
|(e)||development of the Trusts management team;|
|(f)||formation of appropriate strategic partnerships for the Trust;|
|(g)||creation of appropriate development transactional activity at the Trust; and|
|(h)||overall improvement of the quality of the Trust portfolio.|
The Committee may provide informal guidelines from time to time with respect to the financial criteria noted above based on current market conditions, but its final determination of Strategic Plan Fulfillment following the end of the Performance Period shall not be bound by any such guidelines.
2.17 Total Shareholder Return means (a) the sum of the total change in the Ending Share Price as compared to the Beginning Share Price, plus any dividends paid to a shareholder of record with respect to one Common Share during the Performance Period, expressed as a percentage of (b) the Beginning Share Price.
ARTICLE III. ELIGIBILITY AND ADMINISTRATION
3.1 Eligibility. Officers of the Trust who are employees of the Trust as of the first day of the Performance Period shall be the initial Participants. The Committee may designate additional employees as Participants during the Performance Period. If the Committee adds Participants after the first day of the Performance Period, the Participants Award opportunity will be as established by the Committee by written notice to the Participant in lieu of the level specified in Section 4.1. Unless otherwise specified by the Committee, the Award for any Participant who is not a Participant on the first day of the Performance Period shall be prorated in the proportion that the number of days the Participant is employed by the Trust during the Performance Period bears to the number of days in the Performance Period. Once a person becomes a Participant in the Plan, the Participant shall remain a Participant until any Award payable hereunder has been paid and is vested or forfeited.
3.2 Administration. The Plan shall be administered by the Committee, which shall have discretionary authority to interpret and make all determinations relating to the Plan. Any interpretation or determination by the Committee shall be binding on all parties.
ARTICLE IV. AWARDS
4.1 Award Opportunity. Each Participants total Award under the Plan shall initially be stated as a percentage of the Participants annual base salary determined as of January 1, 2011 (provided, however, that the President and Chief Executive Officers annual base salary as of such date shall be deemed to be $500,000 solely for such purpose), which percentage shall depend upon the Participants position and the degree of achievement of threshold, target, and high performance goals for the Performance Period as set forth in the table below:
|Threshold||Target||High||The percentages in|
the table at left reflect
annualized percentages. To
calculate Awards at the
conclusion of the three-year
Performance Period, these
percentages shall be multiplied
President and Chief Executive Officer
Executive Vice President
Senior Vice President
4.2 Performance Goals. The performance goals under the Plan are, and are weighted, as follows:
|(a)||Absolute Total Shareholder Return (20%);|
|(b)||Relative Total Shareholder Return (20%); and|
|(c)||Strategic Plan Fulfillment (60%).|
The Absolute Total Shareholder Return performance levels shall be as follows:
If Absolute Total Shareholder Return falls between 6% and 8% or between 8% and 10%, Absolute Total Shareholder Return shall be rounded to the closest percentage in increments of 0.5% (e.g., 8.3% shall be rounded to 8.5%) and the portion of the Award that is dependent upon Absolute Total Shareholder Return shall be determined by linear interpolation.
The Relative Total Shareholder Return performance levels shall be as follows:
Threshold: 33rd percentile
Target : 51st percentile
High: 76th percentile or above
If Relative Total Shareholder Return falls between the 33rd percentile and the 51st percentile or between the 51st percentile and the 76th percentile, the portion of the Award that is dependent upon Relative Total Shareholder Return shall be determined by linear interpolation.
Following completion of the Performance Period, Strategic Plan Fulfillment shall be determined by the Committee in its discretion, and the Committee shall evaluate Strategic Plan Fulfillment on a scale of below 1 (below threshold), 1 (threshold), 2 (target) or 3 (high) or any fractional number between 1 and 3. If the Committee determines that Strategic Plan Fulfillment is a fractional number between 1 and 3, the portion of the Award that is dependent upon Strategic Plan Fulfillment shall be determined by linear interpolation.
If the degree of achievement of any performance goal falls below threshold, the portion of the Award that is dependent on that performance goal shall not be paid.
4.3 Eligibility for, Timing and Form of Payment of Award. Except as provided in Sections 4.5 and 4.6, the Participant must be employed by the Trust on the last day of the Performance Period to receive an Award, and the Award shall be issued as follows:
(a) as of the end of the Performance Period, the dollar amount earned pursuant to Sections 4.1 and 4.2 shall be determined for each Participant;
(b) the dollar amount for each Participant determined in subsection (a) shall be converted into a number of Common Shares by dividing the dollar amount by the closing price per share of Common Share on the January 1 following the end of the Performance Period (or if such January 1 is not a trading day, the first trading day preceding such January 1) on the exchange on which Common Shares are traded; and
(c) in the year following the Performance Period by no later than the fifteenth day of the third month following the end of the Performance Period, fifty percent (50%) of the number of Common Shares for each Participant determined in subsection (b) shall be issued in unrestricted (i.e., fully vested) Common Shares and fifty percent (50%) of the number of Common Shares for each Participant determined in subsection (b) shall be issued in Common Shares subject to vesting as described in Section 4.4. All such Common Shares shall be awarded under and in accordance with the Trusts 2007 Omnibus Long Term Incentive Plan.
4.4 Common Shares subject to Vesting. The Common Shares that are subject to vesting as described in Section 4.3(c) (i.e., fifty (50%) percent of the aggregate number of Common Shares in Section 4.3) shall vest only (a) if the Participant remains employed by the Trust until December 31, 2014, (b) if during the period from the last day of the Performance Period through December 31, 2014, the Participants employment is terminated by the Trust without Cause, or the Participant resigns for Good Reason, Retires, dies or becomes subject to a Disability while employed by the Trust, or a Change in Control occurs while the Participant is employed by the Trust, or (c) if, and to the extent provided by, Section 4.5 or 4.6.
4.5 Qualifying Termination during the Performance Period. If during the Performance Period, the Participants employment is terminated by the Trust without Cause, or the Participant resigns with Good Reason, Retires, dies or becomes subject to a Disability while employed by the Trust, the Participant shall receive an Award calculated based on (1) actual levels of achievement of prorated performance goals as of the date of such event with respect to the portion of the Award that is dependent on the degree of achievement of the Absolute Total Shareholder Return and Relative Total Shareholder Return performance goals and (2) the target performance level with respect to the portion of the Award that is dependent on Strategic Plan Fulfillment. In either case, the Award shall be prorated in the proportion that the number of days elapsed from the beginning of the Performance Period through the date the Participant ceases to be an employee of the Trust bears to the total number of days in the Performance Period. In such event, the number of Common Shares shall be calculated based on the closing price per Common Share on the trading date coinciding with (or if that is not a trading day, next following) such event in lieu of the price described in Section 4.3(b), all of the Participants Common Shares shall be fully vested, and the Common Shares shall be issued to the Participant within thirty (30) days after such event; provided, however, if a Participant is a specified employee (within the meaning of Section 409A of the Internal Revenue Code), the issuance shall occur six (6) months after the Participants termination of employment (or if earlier and if permitted under Section 409A, the date specified in Section 4.3(c)), except if the Participant dies in which case the issuance shall occur within thirty (30) days after the Participants death.
4.6 Change in Control during the Performance Period. If a Change in Control occurs while the Participant is employed by the Trust during the Performance Period, the Participant shall receive an Award calculated and determined in all respects in a similar manner as described
in Section 4.5, substituting for this purpose the date of the Change in Control for the date of termination of employment; provided, however, that the Award shall not be prorated as provided in the second sentence of Section 4.5 based on the period of employment during the Performance Period through the date of the Change in Control. In such event, the Common Shares issued to the Participant with respect to such Performance Period shall be fully vested and the number of Common Shares shall be calculated based on the closing price per Common Share on the exchange on which Common Shares are traded on the trading day coinciding with (or if that is not a trading day, immediately preceding) the date of the Change in Control, or if Common Shares are no longer traded on an exchange as of such date, based on the value determined by the Committee in its reasonable discretion based on the actual or implied price paid in the Change in Control transaction. The Award shall be issued on the date of the Change in Control.
4.7 Forfeiture. Except as otherwise provided in this Article, any Award that is not vested as of the earlier of termination of employment or December 31, 2014 shall be forfeited.
ARTICLE V. MISCELLANEOUS
5.1 Dividends on Unvested Shares. Dividends declared with respect to unvested Common Shares shall be paid currently.
5.2 Tax Withholding. In order to satisfy applicable tax withholding, the Award shall be reduced by that whole number of vested Common Shares which have a value equal to the minimum amount of the required tax obligations imposed on the Trust, and to the extent any remainder of the required tax withholding remains unsatisfied because no fraction of a Common Share is reduced, the Trust shall deduct the remainder from other cash payable to the Participant or if no cash is payable to the Participant, the Trust may require the Participant to remit the remainder.
5.3 Restrictions on Transfer. Except for the transfer by bequest or inheritance, the Participant shall not have the right to make or permit to exist any transfer or hypothecation, whether outright or as security, with or without consideration, voluntary or involuntary, of all or any part of any right, title or interest in or to an Award until such date as, and only to the extent that, vested shares have been issued. Any such disposition not made in accordance with this Plan shall be deemed null and void. Any permitted transferee under this Section shall be bound by the terms of this Plan.
5.4 Change in Capitalization. The number and kind of shares issuable under this Plan shall be subject to adjustment pursuant to the provisions of the Trusts 2007 Omnibus Long-Term Incentive Plan.
5.5 Successors. This Plan shall be binding upon and inure to the benefit of the heirs, legal representatives, successors, and permitted assigns of the parties.
5.6 Notice. Except as otherwise specified herein, all notices and other communications under this Plan shall be in writing and shall be deemed to have been given if personally delivered or if sent by registered or certified United States mail, return receipt requested, postage prepaid, addressed to the proposed recipient at the last known address of the
recipient. Any party may designate any other address to which notices shall be sent by giving notice of the address to the other parties in the same manner as provided herein.
5.7 Severability. In the event that any one or more of the provisions or portion thereof contained in this Plan shall for any reason be held to be invalid, illegal, or unenforceable in any respect, the same shall not invalidate or otherwise affect any other provisions of this Plan, and this Plan shall be construed as if the invalid, illegal or unenforceable provision or portion thereof had never been contained herein.
5.8 No Right to Continued Retention. Neither the establishment of the Plan nor the Award hereunder shall be construed as giving any Participant the right to continued service with the Trust.
5.9 Interpretation and IRC Section 409A. Section headings used herein are for convenience of reference only and shall not be considered in construing this Plan. Sections 1.1 through 1.3 are intended to introduce and summarize the Plan only and shall not apply for purposes of determining a Participants rights under the Plan. Termination of employment under the Plan shall be considered to have occurred for purposes of Sections 4.4 and 4.5 only if the Participant has a termination of employment that constitutes a separation from service within the meaning of Section 409A of the Internal Revenue Code. The Plan is intended to comply with Section 409A, and the Plan shall be interpreted in manner consistent with such intent.
5.10 Amendment and Termination of the Plan. The Committee reserves the right to amend or terminate the Plan at any time, provided that no amendment shall deprive a Participant of any Award that is earned up to the date of the amendment or termination or result in the acceleration of any award payable under the Plan if such acceleration would result in any Participants incurring a tax under Section 409A of the Internal Revenue Code.
5.11 Governing Laws. The laws of the State of Maryland shall govern the Plan, to the extent not preempted by federal law, without reference to the principles of conflict of laws; provided, however, no Common Shares shall be issued except, in the reasonable judgment of the Committee, in compliance with exemptions under applicable securities laws.
|WASHINGTON REAL ESTATE INVESTMENT TRUST|