EX-10.16



 




EXHIBIT 10.16



LEXINGTON CORPORATE PROPERTIES TRUST



EXECUTIVE DEFERRED COMPENSATION
AGREEMENT


     
This AGREEMENT is effective as
of                     by
and between Lexington Corporate Properties Trust, a Maryland
real estate investment trust (the
“Company”),                     (the
“Participant”),
and                     (the
“Trustee”), the trustee of the 2003 Lexington Rabbi
Trust — Option Replacement Shares, effective
as                     (the
“Rabbi Trust”).




WITNESS THAT:


     
WHEREAS, the Participant is an officer of the
Company;



     
WHEREAS, the Company wishes to provide deferred
compensation for the Participant under certain terms and
conditions pursuant to the Lexington Corporate Properties
Trust Amended and Restated 2002 Equity-Based Award Plan
(the “Plan”);



     
WHEREAS, the Company has established the Rabbi
Trust to fund benefits from time to time; and



     
WHEREAS, the Trustee shall have the sole
discretion to manage the assets of the Rabbi Trust.



     
NOW, THEREFORE, in
consideration of the agreement hereinafter contained, the
parties hereto agree as follows:



     
1. Deferred Compensation.



     
(a) The Company shall contribute to the
Rabbi Trust on behalf of the Participant:
(i)                     nonvested
common shares of the Company as
of                     ,
and (ii) such number of common shares of the Company from
time to time thereafter as shall be determined by the Company in
its sole discretion and set forth in Exhibit 1 hereto. The
common shares contributed to the Rabbi Trust shall vest in the
amounts and in the manner set forth herein and in Exhibit 1
hereto and shall be credited to the account of the Participant
under the Rabbi Trust accordingly.



     
(b) The Participant shall have no legal or
equitable rights, interest or claim in the assets earmarked to
pay deferred compensation hereunder or in any compensation based
on any rate of return in reference to the common shares of the
Company. The Company’s obligation under this Agreement
shall be merely that of an unfunded and unsecured promise of the
Company to issue the said number of common shares in the future.
Notwithstanding any other provision herein, any right to
benefits under this Agreement shall be no greater than the right
of any general unsecured creditor of the Company to the assets
of the Company.



     
(c) Any common shares credited to the Rabbi
Trust pursuant to this Agreement shall be subject to the terms
and conditions herein and of the Rabbi Trust and the Plan.



     
(d) The Trustee shall in its sole discretion
manage the assets of the Rabbi Trust pursuant to the terms
thereof.



     
2. Payment. Deferred compensation
payable hereunder shall only be payable in the form of common
shares of the Company as further described herein.




		
	 	     
    (a) Subject to the terms and conditions of
    this Agreement, the Company shall pay to the Participant that
    number of shares set forth in Exhibit 1 on the earlier of
    (x) the date(s), if any, designated on Exhibit 1
    hereof (each, a “Deferral Date”), which shall be no
    earlier than the last date of the fifth fiscal year following
    the applicable Deposit Date (hereinafter defined),
    (y) immediately following a Change of Control as defined in
    the Participant’s Employment Agreement with the Company,
    effective as
    of                     (“Employment
    Agreement”) of the Company, or (z) the date of
    termination of employment for any reason, but only
    to the extent, in all of the foregoing cases, such
    shares are vested as of such payment date (in accordance with
    Section 2(d) hereof). A Deposit Date shall mean the date
    












 


		
	 	
    upon which the Company transfers common shares to
    the Rabbi Trusts for the account of such Participant.
    
	 
	 	     
    (b) The Company shall be obligated to notify
    the Trustee under the Rabbi Trust of a Change of Control of the
    Company no later than 5 business days following such Change of
    Control. If the Company fails to provide such notice, the
    Participant may provide such notice.
    
	 
	 	     
    (c) If the Participant’s employment is
    terminated due to death, then the Company shall pay to the
    Participant’s estate that number of common shares of the
    Company, to the extent vested, in such Participant’s
    account in the Rabbi Trust pursuant to this Agreement within
    30 days of the Participant’s death or as soon as
    practicable thereafter.
    
	 
	 	     
    (d) [Either [The common shares contributed
    to the Rabbi Trust hereunder for a Participant’s account
    shall vest as follows: 0%
    on                     ;
    0%
    on                     ;
    33 1/3%
    on                     ;
    33 1/3%
    on                     and
    33 1/3%
    on                     and
    accordingly be fully vested as of the end of the fifth fiscal
    year following the applicable Deposit Date, provided that in the
    event of the Participant’s death or a Change of Control,
    any nonvested shares shall become fully vested as of the date of
    death or Change of Control as applicable.
    
	 
	 	     
    (a) ] or [Subject to Section 3 hereof,
    a percentage, if any, of the Common Shares, as determined under
    this Section 2, shall vest as of the end of the end of each
    fiscal year, beginning with the fiscal year ending
    [                    ],
    until the Common Shares are fully vested (the “Vesting
    Period”). The percentage of the Common Shares that vests
    annually hereunder shall equal two (2) times the annual
    percentage increase, if any, in the Company’s cash
    available for distribution (“CAD”) at the end of any
    fiscal year ending after the date hereof, provided that the
    annual percentage increase exceeds a threshold growth rate of
    two percent (2%) (“Threshold CAD”). In the event the
    annual percentage increase does not exceed the Threshold CAD,
    the percentage of shares that vests as of the end of such fiscal
    year shall be zero.] or [Subject to Section 3, hereof, the
    Common Shares vest ratably over a five year period commencing on
    the first anniversary of the date hereof and vest in full as of
    the end of the fifth fiscal year following the date such Common
    Shares were issued to the Participant.] or [Subject to
    Section 3 hereof, the Common Shares shall vest in full as
    of the end of the fifth fiscal year following the date hereof,
    provided that upon the attainment of certain Performance
    Criteria (hereinafter defined) in any fiscal year of the Company
    during the four-year period commencing with
    [                    ]
    (the “Performance Period”), one-fifth ( 1/5) of
    such Common Shares shall vest as of the end of such fiscal year
    (or at such time as otherwise provided in Section 2(b)(i)
    hereof) (the “Vesting Period”). In no event
    will more than one-fifth of such Common Shares vest with respect
    to the satisfaction of Performance Criteria for any one fiscal
    year.
    
	 
	 	     
    (b) The Performance Criteria are satisfied
    with respect to a fiscal year of the Company if the Company
    achieves a total shareholder return (“TSR”),
    defined in Section 2(b)(iii) hereof, for such fiscal year:
    (x) of at least ten percent (10%) pursuant to
    Section 2(b)(i) hereof or (y) that is within the top
    fifty percent (50%) of the Company’s peer group designated
    in Section 2(b)(ii) hereof.
    





		
	 	     
    (i) For purposes of determining whether the
    Company achieves a TSR of at least 10% in any fiscal year, such
    TSR shall first be calculated pursuant to Section 2(b)(iii)
    hereof. If such return is at least 10%, then the Performance
    Criteria for such fiscal year shall be satisfied. The portion of
    TSR in excess of 10% (“Excess TSR”) shall be
    carried back and added to any preceding fiscal years in the
    Performance Period in which the Performance Criteria has not (as
    of the time of the carry back) been satisfied (under either
    Section 2(b)(x) or (y)), beginning with the first
    immediately preceding fiscal year in which such Performance
    Criteria have not been met. If, as a result of a carry back, the
    TSR (as adjusted under this subsection) with respect to a
    preceding fiscal year reaches 10%, then the Performance Criteria
    for such fiscal year shall be treated as satisfied at the time
    of such carry back. In the event Excess TSR is not absorbed
    after it is carried back to each preceding year in which the
    Performance Criteria are not met, any remaining Excess TSR may
    be carried forward and added to any succeeding fiscal years in
    the Performance Period, after the foregoing TSR calculations are
    made with respect to such succeeding year, beginning with the
    first such succeeding fiscal year. If, as a result of a carry
    forward, the TSR (as adjusted under this subsection) with
    respect to such
    




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    succeeding fiscal year reaches 10%, then the
    Performance Criteria for such fiscal year shall be satisfied as
    of the end of such year. In no event shall any amount of Excess
    TSR be utilized more than once as a carry back or carry forward
    amount.
    
	 
	 	     
    (ii) The Company’s designated peer
    group shall be composed of the following companies:
    





		
	 	
    (1) [                    ];
    
	 
	 	
    (2) [                    ];
    
	 
	 	
    (3) [                    ];
    
	 
	 	
    (4) [                    ];
    
	 
	 	
    (5) [                    ];
    
	 
	 	
    (6) [                    ];
    
	 
	 	
    (7) [                    ];
    and
    
	 
	 	
    (8) [                    ].
    





		
	 	
    For purposes of determining whether the TSR with
    respect to a fiscal year falls within the top 50% of the
    Company’s peer group, only the TSR for such fiscal year
    shall be taken into account, as determined under
    Section 2(b)(iii) hereof and without regard to carry backs
    and carry forwards in Section 2(b)(i) hereof.
    





		
	 	     
    (iii) For purposes of Section 2(b)(i)
    and (ii) hereof, TSR with respect to a fiscal year shall
    mean the sum of the Company’s dividend yield and the
    Company’s share appreciation for such year.]]
    





		
	 	
    Notwithstanding the foregoing in this
    Section 2(d), vesting of the common shares contributed to
    the Rabbi Trust hereunder for a Participant’s account may
    accelerate in accordance with the terms and conditions of the
    applicable Employment Agreement.
    





		
	 	     
    (e) In the case of income, if any, with
    respect to or arising from the principal of the Trust, such
    amounts shall be distributed to the Company. The Company shall
    determine if and to what extent any such income, including but
    not limited to dividends, shall be paid to the Participant. Such
    amounts, if any, may be paid on a quarterly basis or as the
    Company determines in its sole discretion.
    
	 
	 	     
    (f) If the Participant is terminated for any
    reason (other than death) prior to payment of the common shares
    contributed to the Rabbi Trust hereunder for a
    Participant’s account under Section 2(a) hereof, all
    of the common shares which are nonvested shall be immediately
    and unconditionally forfeited and will revert to the Company
    without any action required by the Participant or the Company.
    




     
3. Claims.



     
(a) The Compensation Committee of the
Company (as defined in the Plan) (the “Committee”)
shall be responsible for determining all claims for benefits
under this Agreement by the Participant or his or her spouse or
estate. The Company shall have no right of offset against the
benefits payable hereunder for any demands, claims or judgments
by the Company or its affiliates against the Participant or for
any debts or obligations of the Participant to the Company,
except with respect to any tax withholding obligations that the
Company may determine, in its sole discretion, are applicable to
such payments.



     
(b) Within ninety (90) days after
receiving a claim (or within up to one hundred and eighty
(180) days, if the claimant is so notified, including
notification of the reason for the delay), the Committee shall
notify the Participant or spouse or estate of its decision in
writing, giving the reasons for its decision if adverse to the
claimant. If the decision is adverse to the claimant, the
Committee shall advise him or her of any additional information
which he or she must provide to perfect his or her claim and why
and of his or her right to request a review of the decision.



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(c) A claimant may request a review of an
adverse decision by written request to the Committee made within
sixty (60) days after receipt of the decision. The
claimant, or his or her duly authorized representatives, may
review pertinent documents and submit written issues and
comments.



     
(d) Within sixty (60) days after
receiving a request for review, the Committee shall notify the
claimant in writing of (i) its decision, (ii) the
reasons therefore, and (iii) the Agreement provisions upon
which it is based.



     
(e) The Committee shall have the
discretionary power and authority to interpret, construe and
administer this Agreement based on the provisions of the
Agreement.



     
4. ERISA and Tax. This Agreement is
intended to be an unfunded arrangement maintained primarily for
the purpose of providing deferred compensation for a select
group of management or highly compensated employees within the
meaning and for purposes of sections 201(2), 301(a)(3) and
401(a)(1) of the Employee Retirement Income Security Act of
1974, as amended, and shall at all times remain unfunded. The
obligations of the Company with respect to the benefits payable
hereunder shall be paid out of the Company’s general assets
and shall not be secured. The Company has established the Rabbi
Trusts for the purpose of providing payment of such benefits.
Such trusts shall be irrevocable, but the assets thereof shall
be subject to the claim of the Company’s creditors. To the
extent any benefits provided under the Agreement are actually
paid from the Rabbi Trusts, the Company shall have no further
obligation with regard thereto, but to the extent not so paid,
such benefit shall remain the obligation of, and shall be paid
by the Company. This Agreement constitutes a mere promise by the
Company to make benefit payments in the future. To the extent
that any person acquires a right to receive payments from the
Company under this Agreement, such right shall be no greater
than the right of any unsecured general creditor of the Company.



     
5. Limitation of Rights. Nothing
contained herein shall be construed as conferring upon the
Participant the right to continue in the employ of the Company
as an executive or in any other capacity or to interfere with
the Company’s right to discharge him or her at any time for
any reason whatsoever.



     
6. Payment Not Salary. Neither any
deferred compensation payable under this Agreement nor any
amount contributed hereunder shall be deemed salary or other
compensation to the Participant for the purposes of computing
benefits to which he or she may be entitled under any pension
plan or other arrangement of the Company for the benefit of its
employees.



     
7. Severability. In case any
provision of this Agreement shall be illegal or invalid for any
reason, said illegality or invalidity shall not affect the
remaining parts hereof, but this Agreement shall be construed
and enforced as if such illegal and invalid provision never
existed.



     
8. Withholding. Notwithstanding
anything to the contrary herein, the Company shall have the
right to make such provisions as it deems necessary or
appropriate to satisfy any obligations it may have to withhold
federal, state or local income or other taxes incurred by reason
of any payments pursuant to this Agreement, including but not
limited to (to the extent deemed necessary or desirable by the
Company) provision for the deduction of such amounts from the
Participant’s other compensation payable by the Company or,
as provided in the Plan, from shares otherwise deliverable to
the Participant. All payments hereunder shall be subject to such
withholding as the Company may reasonably determine. Amounts
deferred and earnings shall be subject to employment taxes
imposed pursuant to Federal Insurance Contributions Act
(FICA) and Federal Unemployment Tax Act (FUTA) as and
to the extent required by applicable law.



     
9. Assignment. This Agreement shall
be binding upon and inure to the benefits of the Company, its
successors and assigns and the Participant and his or her heirs,
executors, administrators and legal representatives.



     
10. Non-Alienation of Benefits.
Except as provided herein, the benefits payable under this
Agreement shall not be subject to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, attachment,
garnishment, execution or levy of any kind, by creditors of the
Participant or the Participant’s spouse, former spouse,
children or estate as beneficiary hereunder, and any attempt to
cause any benefits to be so subjected shall not be recognized.



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11. Governing Law. This Agreement
shall be construed in accordance with and governed by the law of
the State of New York.



     
12. Entire Agreement. This Agreement
contains the entire agreement of the parties concerning any
deferred compensation payable by the Company to the Participant
(other than otherwise pursuant to the Plan) and supercedes any
prior agreement or agreements concerning such subject matter,
and any such prior agreement or agreements shall be null and
void.




[SIGNATURE PAGE FOLLOWS]



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IN WITNESS WHEREOF,
the Company has caused this Agreement to be executed by its duly
authorized officers and the Participant has executed this
Agreement effective as of the date first above written.




		
	 	
    LEXINGTON CORPORATE PROPERTIES TRUST
    





			
	 	By: 	




		
	 	
    

	 	
    Name:
    
	 	
    Title:
    
	 
	 	
    PARTICIPANT
    
	 
	 	
    

	 
	 	
    LEXINGTON RABBI TRUST;
    
	 
	 	
    2003 LEXINGTON RABBI TRUST —
    
	 	
    OPTION REPLACEMENT SHARES
    
	 	
    

	 	
    





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Exhibit 1 — Rabbi
Trust



Participant:                    



	 	 	 	 	 	 	 	 	 	 	 
	
	

	 Common Shares		Deposit Date		Deferral Date(s)		Vesting Schedule
	
	

	 	 	 	As of	 	 	 	 	 	 	
    Vesting conditions

    set forth in

    Section 2(d)

    hereof.
    
	





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