exv10w1



 






Exhibit 10.1




ACKNOWLEDGMENT AND WAIVER AGREEMENT



     This Agreement (“Agreement”), dated December ___, 2005, is entered into by and between
Prentiss Properties Trust, a Maryland real estate investment trust (the “Company”) and ___(“Key
Employee”).




	 	1.	 	Acknowledgement. Pursuant to the terms of the Prentiss Properties Trust Change
in Control Severance Protection Plan for Key Employees (the “Plan”), Key Employee is
eligible to receive benefits set forth in Section 4.2 of the Plan upon a Qualifying
Termination (as it is defined in the Plan) of employment.
	 
	 	2.	 	Waiver of Benefits. Key Employee hereby waives any and all rights which Key
Employee has pursuant to the Plan in consideration for the payment of, prior to January 1,
2006, (i) a lump sum amount equal to the amount which Key Employee would have been eligible
to receive under Section 4.2(b) of the Plan, plus (ii) a lump sum amount equal to the
aggregate sum of all the premiums (both employer and employee portion of such premiums)
that would be payable by the Company to provide for the benefits set forth in Section
4.2(c) of the Plan. The total payment amount is listed on Exhibit A of this Agreement.
	 
	 	3.	 	Acceleration of Certain Equity Grants. Notwithstanding the foregoing, if the
Qualifying Termination takes place within three years of the date of grant of any award of
restricted stock or any option in Brandywine Realty Trust (“Brandywine”) which was granted
in connection with the merger of the Company with Brandywine (the “Merger”), then the
restrictions with respect to any such grant of restricted stock shall immediately lapse,
and any such option granted shall become immediately vested and exercisable.
	 
	 	4.	 	Section 4999 Tax Gross-Up. Article VI of the Plan, relating to Sections 280G
and 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), shall continue to
apply in full force and effect as set forth in the Plan.
	 
	 	5.	 	Section 409A Tax Gross-Up.






     (a) In the event it shall be determined that the payment of the amounts listed on
Exhibit A to this Agreement in 2005 (the “2005 Payments”) is or will be subject to the
excise tax imposed by Section 409A of the Code 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 Key Employee shall be entitled to
receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by
Key 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, Key Employee retains an amount of the Gross-Up Payment equal to
the Excise Tax imposed upon the Total Payments. For purposes of determining the amount of
the Gross-Up Payment, Executive shall be deemed to pay federal income tax and employment
taxes at the highest marginal rate of federal income and employment taxation in the calendar
year in which the Gross-Up Payment is to be made and state and local income taxes at the
highest marginal rate of



 









 







taxation in the state and locality of Executive’s residence (or, if greater, the state
and locality in which Executive is required to file a nonresident income tax return with
respect to the Payment) on the date of termination, net of the maximum reduction in federal
income taxes that may be obtained from the deduction of such state and local taxes.




     (b) If it is finally determined that any of the Total Payments are subject to Excise
Tax any determinations as to the amount of the Gross-Up Payment shall be made by an
independent accounting firm selected by the Company (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 Key Employee by no later than ten (10) days following such final
determination, or such earlier time as is requested by the Company or Key Employee (if Key
Employee reasonably believes that any of the Total Payments may be subject to the Excise
Tax). If a Gross-Up Payment is determined to be payable, it shall be paid to Key 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 Key Employee,
absent manifest error.




     (c) If a claim by a federal, state or local taxing authority is made against Key
Employee, and if Key Employee intends to seek a Gross-Up Payment with respect thereto under
this Section, Key Employee shall promptly notify (i) the Company in writing of such claims,
setting forth such claims in reasonable detail and providing copies of any written
documentation provided by the taxing authority in connection with its claims. The Company
shall have fifteen (15) days after receipt of such notice to undertake, conduct and control,
through counsel of its own choosing and at its own expense, the settlement or defense
thereof, and Key Employee shall cooperate with it in connection therewith; provided, that
Key Employee may participate in such settlement or defense through counsel chosen by Key
Employee and paid at his own expense. So long as the Company is reasonably contesting any
such claim in good faith, Key Employee shall not pay or settle any such claim without the
consent of the Company, which consent shall not be unreasonably withheld. If the Company
does not notify Key Employee in writing within fifteen (15) days after receipt of the
Company’s written notice of a claim to a Gross-Up Payment hereunder that it elects to
undertake the defense thereof, Key Employee shall have the right to undertake, at the
Company’s cost, risk and expense, the defense, compromise or settlement of the claim, but
shall not thereby waive any right to a Gross-Up Payment therefore pursuant to this
Agreement. The Company shall pay Key Employee’s expenses as and when incurred.




	 	6.	 	Applicable Law. This Acknowledgment and Waiver will be governed and construed
in accordance with the laws of the State of Texas.
	 
	 	7.	 	No Third-Party Beneficiaries. This Agreement is solely for the benefit of the
parties to this Acknowledgment and Waiver and, except to the extent the Company is affected
hereby, should not be deemed to confer upon third parties any remedy, claim, liability,




 









 






	 	 	 	reimbursement, claims or actions or other right in excess of those existing without
reference to this Agreement.
	 
	 	8.	 	Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which together constitute one and
the same instrument.
	 
	 	9.	 	Severability. Any provision of this Acknowledgment & Waiver that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. Without
prejudice to any rights or remedies otherwise available to any party to this Agreement,
each party hereto acknowledges that the obligations of the parties hereto shall be
specifically enforceable.
	 
	 	10.	 	Further Assurances. The parties hereto will execute and deliver or cause to be
executed and delivered such further instruments and documents and will take such other
actions as any other party to this Acknowledgment and Waiver may reasonably request in
order to effectuate the purpose of this Acknowledgment and Waiver and to carry out the
terms thereof.
	 
	 	11.	 	Successors to Company. This Acknowledgement and Waiver shall be binding upon
and shall inure to the benefit of the Company, its successors and assigns and the Company
shall require any successor or assign to expressly assume and agree to perform this
Acknowledgment and Waiver in the same manner and to the same extent that the Company would
be required to perform it if no such succession or assignment had taken place. The term
“Company” as used herein shall mean a trust, corporation or other entity acquiring all or
substantially all the assets and business of the Company whether by operation of law or
otherwise.
	 
	 	12.	 	Assignability by Participant. Neither this Acknowledgment and Waiver nor any
right or interest hereunder shall be assignable or transferable by Key Employee or his or
her beneficiaries or legal representatives, except by will or by the laws of descent and
distribution. This Acknowledgment and Waiver shall inure to the benefit of and be
enforceable by a Key Employee’s legal personal representative.





[Signature Page Follows]




 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Acknowledgment and Waiver to be duly
executed as of the day and year first written above.





	 	 	 	 	 
	 	 	KEY EMPLOYEE
	 
	 	 	 	 
	 	 	 
	 	 	[Key Employee Name]
	 
	 	 	 	 
	 	 	THE COMPANY
	 	 	PRENTISS PROPERTIES TRUST
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title: