URSTADT
BIDDLE PROPERTIES INC.
AMENDED
AND RESTATED EXCESS BENEFIT AND
DEFERRED
COMPENSATION PLAN
As of
December 10, 2008
Section
1.
Purpose.
The Board
of Directors of Urstadt Biddle Properties Inc. has adopted the Urstadt Biddle
Properties Inc. Excess Benefit and Deferred Compensation Plan (the “Plan”), to
be effective as of January 1, 2005. The Plan is intended to provide
eligible employees of the Company who elect to participate in the Plan with
benefits in excess of the benefits which may be provided under the Company’s
tax-qualified retirement plan, due to the limitations on contributions and
benefits imposed by Section 415 and Section 401(a)(17) of the Internal Revenue
Code of 1986, as amended (the “Code”), and to provide such employees with the
opportunity to defer all or a portion of their compensation as provided in the
Plan. It is intended that the Plan qualify as an “excess benefit
plan” within the meaning of Section 3(36) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), and as an unfunded deferred
compensation arrangement for a select group of highly compensated or management
employees under Section 201(2) of ERISA.
The
Company maintains the HRE Inc. Excess Benefit and Deferred Compensation Plan,
hereby renamed Urstadt Biddle Properties Inc. Excess Benefit and Deferred
Compensation Plan, effective November 1996 (as amended, the “Original
Plan”). In response to changes in tax laws governing deferred
compensation made by the American Jobs Creation Act of 2004, in December 2004
the Board of Directors voted to freeze the Original Plan and adopted the
Plan. Any amounts credited to the accounts of participants in the
Original Plan which vested before January 1, 2005 and earnings thereon are
subject to the provisions of the Original Plan. Any amounts credited to the
accounts of participants in the Original Plan that were not vested before
January 1, 2005 and any amounts credited to Plan accounts after January 1, 2005
and earnings thereon are subject to the provisions of the Plan.
Section
2.
Definitions.
As used
herein, the following terms shall have the meanings set forth
below:
(a)
“Account”
shall mean a Deferred Compensation Account, an Excess Benefit Account or a
Matching Contribution Account.
(b)
“Beneficiary”
shall mean the person or persons designated as a Participant’s beneficiary under
the Profit Sharing and Savings Plan unless a Participant shall have designated
another beneficiary under this Plan.
(c)
“Board of
Directors” shall mean the board of directors of the Company.
(d)
“Change
in Control” shall mean a change in the ownership or effective control of the
Company or in the ownership of a substantial portion of the assets of the
Company (as such terms are defined in Section 409A of the Code and
the regulations thereunder).
(e)
“Class A
Common Stock Units” shall mean units of Class A Common Stock of the Company
indexed to the value of the Class A Common Stock of the Company.
(f)
“Closing
Price” shall mean the last sale price regular way on the day in question (or if
there is no reported last sale price on such day, on the first preceding date on
which any reported sale occurred) at which Common Stock of the Company, Class A
Common Stock of the Company or any other securities as may be purchased by the
Trustee in its discretion, are traded as reflected in the New York Stock
Exchange Composite Transactions as reported in the Wall Street Journal, or if
the shares are not admitted to trading on such exchange, the fair market value
of such shares on the date in question as determined by the Board of
Directors.
(g)
“Committee”
shall mean the Compensation Committee of the Board of Directors as in office
from time to time.
(h)
“Common
Stock Units” shall mean units of Common Stock of the Company indexed to the
value of the Common Stock of the Company.
(i)
“Company”
shall mean Urstadt Biddle Properties Inc., and its successors and
assigns.
(j)
“Deferred
Compensation Account” shall mean a bookkeeping record maintained by the Company
for each Participant who is or was an employee of such entity, which account
shall consist of the accumulated annual deferrals of compensation made under
Section 6(a) of the Plan, as adjusted for earnings or losses credited in respect
of such deferrals pursuant to Section 7 of the Plan.
(k)
“Disability”
shall have the meaning set forth in Section 409A of the Code and the regulations
thereunder.
(l)
“Elective
Contribution” shall mean a contribution elected by a Participant to the Profit
Sharing and Savings Plan which meets the requirements of Section 401(k) or
401(m) of the Code.
(m)
“Excess
Benefit Account” shall mean a bookkeeping record maintained by the Company for
each Participant who is or was an employee of such entity, which account shall
consist of (i) the accumulated annual allocations made under Section 5 of the
Plan on behalf of such Participant, as adjusted for earnings credited in respect
of such allocations pursuant to Section 7 of the Plan and (ii) any amounts
credited to the Participant’s Excess Benefit Account (as defined in the Original
Plan) under the Original Plan that were not vested as of January 1, 2005 and
earnings thereon.
(n)
“Matching
Contribution” shall mean a contribution made by the Company to a Participant’s
Matching Contribution Account.
(o)
“Matching
Contribution Account” shall mean a bookkeeping record maintained by the Company
for each Participant who is or was an employee of such entity, which account
shall consist of (i) the accumulated Matching Contributions made under Section
6(b) of the Plan, as adjusted for earnings credited in respect of such deferrals
pursuant to Section 7 of the Plan and (ii) any amounts credited to the
Participant’s Matching Contribution Account (as defined in the Original Plan)
under the Original Plan that were not vested as of January 1, 2005 and earnings
thereon.
(p)
“Participant”
shall mean a person described in Section 4 of the Plan who is eligible to
receive equalization benefits under Section 5 of the Plan.
(q)
“Plan”
shall mean this Amended and Restated Urstadt Biddle Properties Inc. Excess
Benefit and Deferred Compensation Plan, as herein set forth and as amended from
time to time.
(r)
“Profit
Sharing and Savings Plan” shall mean the Urstadt Biddle Properties Inc. Profit
Sharing and Savings Plan, a tax-qualified defined contribution retirement plan
sponsored by the Company, as in effect as of the Effective Date or adopted
thereafter, and as amended from time to time.
(s)
“Securities
Units” shall mean units of securities other than Common Stock of the Company or
Class A Common Stock of the Company indexed to the value of such
securities.
(t)
“Trust
Agreement” shall mean that certain trust agreement by and between the Company
and the Trustee effective as of January 1, 2005.
(u)
“Trustee”
shall mean the trustees under the Trust Agreement.
(v)
“Unforeseeable
Emergency” means a severe financial hardship to the Participant resulting from
an illness or accident of the Participant, the Participant’s spouse, or a
dependent (as defined in Code Section 152(a)) of the Participant, loss of the
Participant’s property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control of
the Participant as determined under Section 409A of the Code and the regulations
issued thereunder.
(w)
“Valuation
Date” shall mean the last day of each calendar month or such other day or days
as the Committee shall determine.
Section
3.
Effective
Date.
The
Effective Date of the Plan shall be January 1, 2005.
Section
4.
Participation.
Any
employee of the Company who is a participant in the Profit Sharing and Savings
Plan shall become a Participant in this Plan if, with respect to any calendar
year the employee’s annual compensation is at least $200,000 (which amount,
starting in 2009, shall be increased annually by the same percentage by which
the annual compensation limit under Section 401(a)(17) increases, if any), and
is selected for participation by the Board.
Section
5.
Profit
Sharing and Savings Plan Excess Benefit.
An amount
shall be credited to each Participant’s Excess Benefit Account under the Plan
for each “Plan Year” (as defined in the Profit Sharing and Savings Plan)
beginning on or after the Effective Date equal to the excess, if any, of (a) the
amount of aggregate contributions (other than Elective Contributions) of the
Company which would have been allocated to the Participant’s account for such
Plan Year under the Profit Sharing and Savings Plan if the provisions set forth
in the Profit Sharing and Savings Plan to comply with the limitations of Section
401(a)(17) and Section 415 of the Code were not applicable, over (b) the amount
of such aggregate Company contributions actually allocated to the Participant’s
account for such Plan Year under the Profit Sharing and Savings
Plan. The amount of a Participant’s “compensation” as defined in the
Profit Sharing and Savings Plan shall be used to calculate amounts to be
credited to the Participant’s Excess Benefit Account provided that such
“compensation” shall include any amounts deferred pursuant to Section 6
hereof.
Section
6.
Deferred
Compensation.
(a)
Each
Participant employed by the Company may elect to defer the receipt of all or a
whole percentage (or other portion as the Company may permit) of his or her
compensation and to have such amount credited to his or her Deferred
Compensation Account. Any such Participant election shall be made annually on a
calendar year basis prior to the first day of the calendar year for which such
election is to be effective. During the first year in which an
employee becomes eligible to participate in the Plan, any initial election to
defer his or her compensation may be made within thirty (30) days after the date
upon which the employee becomes a Participant in the Plan, provided that such
deferral election will only be effective with respect to compensation
paid for services to be performed after the election and provided
further that the employee does not participate at the time of the election in
any other “nonqualified deferred compensation plans” (as defined in Section 409A
of the Code) maintained by the Company and its subsidiaries that together with
the Plan are treated as a single plan under the regulations issued under Section
409A of the Code. A Participant’s election to defer compensation
shall remain binding for subsequent calendar years until revoked or revised by
the Participant provided that he or she continues to meet the requirements of
Section 4 in any such subsequent calendar year. Deferral elections may be
revoked or revised for a subsequent calendar year by executing and delivering a
new deferral election form prior to the first day of the calendar year for which
such revocation or revision is to be effective.
(b)
In its
sole discretion, the Company may make a Matching Contribution to Participants
who make an election to defer a portion of their compensation under Section
6(a). Such contribution will be allocated to the Participant’s Matching
Contribution Account.
Section
7.
Earnings.
(a)
The
Committee shall meet each year to designate an interest or other rate to be
applied to the Participants’ accounts each year. Any interest or earnings on
amounts credited under the Plan shall be credited, respectively, to the
Participant’s Excess Benefit Account, Deferred Compensation Account and Matching
Contribution Account as of each Valuation Date. The Committee shall promulgate
such rules and regulations as it in its sole discretion determines necessary to
implement and administer the Plan and to determine any earnings or interest
credited to a Participant under the Plan. Subject to such rules and regulations
as the Company shall promulgate, a Participant may request that all or a portion
of his or her accounts be indexed to the value of the Common Stock of the
Company, Class A Common Stock of the Company or such other securities as may be
purchased by the Trustee in its discretion, as the case may be. At the time a
Participant requests to have his or her accounts so indexed, he or she shall
specify what percentage shall be allocated to Common Stock Units, Class
A Common Stock Units or Securities Units. Such deferred amounts shall
then be converted into that number of Common Stock Units, Class A Common Stock
Units or Securities Units, obtained by dividing the deferred amounts by the
Closing Price of Common Stock of the Company, Class A Common Stock of the
Company or such other securities as may be purchased by the Trustee in its
discretion, as the case may be, as of the day on which such deferred amounts are
to be converted into Common Stock Units, Class A Common Stock Units or
Securities Units. The value of each Common Stock Unit, Class A Common Stock Unit
or Securities Unit shall thereafter fluctuate pari passu with the Closing Price
of Common Stock of the Company, Class A Common Stock of the Company or such
other securities as may be purchased by the Trustee in its discretion, as
applicable. In the event of a cash dividend, stock split, recapitalization or
similar transaction affecting the value of Common Stock of the Company, Class A
Common Stock of the Company or such other securities as may be purchased by the
Trustee in its discretion following the date of conversion of deferred amounts
into units, the number of Common Stock Units, Class A Common Stock Units and
Securities Units, as the case may be, shall be adjusted to reflect such
dividend, stock split, recapitalization or similar transaction as the Board of
Directors may determine.
(b)
In the
event that a Participant requests to have his or her account balances indexed to
the value of shares of Common Stock of the Company, Class A Common Stock of the
Company or such other securities as may be purchased by the Trustee in its
discretion, the Committee, in its discretion, may establish a trust to purchase
and hold shares of Common Stock of the Company, Class A Common Stock of the
Company or such other securities as may be purchased by the Trustee in its
discretion. The Committee, at any time, may determine that Participants shall no
longer be permitted to have their account balances indexed to shares of Common
Stock of the Company, Class A Common Stock of the Company or such other
securities as may he purchased by the Trustee in its discretion.
Section
8.
Vesting.
(a)
Excess
Benefit Account. A Participant (and his or her Beneficiary) shall vest in his or
her Excess Benefit Account at the same rate he or she vests in the account
(other than Elective Contributions) to which contributions of the Company are
allocated under the Profit Sharing and Savings Plan.
(b)
Deferred
Compensation Account. A Participant (and his or her Beneficiary) shall at all
times be fully vested in his or her Deferred Compensation Account.
(c)
Matching
Contribution Account. A Participant (and his or her Beneficiary) shall vest in
his or her Matching Contribution Account at the same rate he or she vests in the
account (other than Elective Contributions) to which matching contributions of
the Company are allocated under the Profit Sharing and Savings
Plan.
Section
9.
Form and
Time of Payment of Benefits.
(a)
The
Participant may elect to receive payments of the vested benefits in his or her
Accounts in any of the following forms:
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(i)
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a
single lump sum cash payment; or
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(ii)
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a
single payment in shares of the Common Stock of the Company, Class A
Common Stock of the Company or such other securities as may be purchased
by the Trustee in its discretion, as the case may be;
or
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(iii)
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in
annual installment payments in cash over a period elected by the
Participant up to 10 years, the amount of each installment to equal the
balance of his or her Excess Benefit Account, Deferred Compensation
Account, and Matching Contribution Account immediately prior to the date
an installment is to be paid, divided by the number of installments
remaining to be paid
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(b)
Subject
to Section 9(f) below, if a Participant does not elect a time of benefit
distribution with respect to any of his or her Accounts, then any distribution
of amounts from such Accounts will be paid or commence to be paid not later than
thirty (30) days following the Valuation Date coincident with or next following,
but in no event later than 90 days following, the earlier of the Participant’s
death, Disability or other termination of employment with the Company for any
reason. Subject to Section 9(f) below, a Participant may elect that
payment of his or her benefits be made or, in the case of installment payments,
shall commence, (i) on the date selected by the Participant, (ii) within thirty
(30) days following the Valuation Date coincident with or next following, but in
no event later than 90 days following, the Participant’s death, Disability or
other termination of employment with the Company for any reason, or, (iii) the
later or earlier date, at the Participant’s election, of the events set forth in
(i) and (ii).
The
valuation of the Participant’s benefit shall be based on the Valuation Date
coincident with or next following (but in no event occurring later than 90 days
following) the Participant’s date of death, Disability or other termination of
employment or the date selected by the Participant for payment of his or her
benefit. If a Participant elects to receive shares of the Common
Stock of the Company, Class A Common Stock of the Company or such other
securities as may be purchased by the Trustee in its discretion, the number of
shares to be delivered to the Participant on the date a payment is made shall be
equal to the number of whole and partial Common Stock Units, Class A Common
Stock Units or Securities Units credited to his or her accounts in respect of
which a payment is to be paid. If a Participant elects to receive
annual installment payments, the undistributed balance credited to a
Participant’s Excess Benefit Account, Deferred Compensation Account and Matching
Contribution Account shall be adjusted each year by an interest rate or other
factor as provided in Section 7 of the Plan as of each Valuation
Date.
(c)
For each
Account, a Participant shall elect the time and form of benefit distribution
option to be paid to him or her, provided that any such election must be made in
a written distribution election form (i) in the case of a deferral of
compensation made under Section 6(a) of the Plan and earnings thereof, at the
same time as the Participant makes an initial deferral election as provided in
Section 6(a) and (ii) in the case of a contribution for a year made by the
Company to the Participant’s Excess Benefit Account or Matching Contribution
Account and earnings thereof, prior to the first day of the calendar year in
which the Company makes such contribution. If a Participant does not
elect a form of benefit distribution with respect to any of his or her Accounts,
then any distribution of amounts from such Accounts will be in the form of a
single lump sum cash payment to be paid as soon as practicable after the
Participant’s termination of employment. Any election of benefit
distribution option (by the Participant or by default) shall be effective for
the Plan Year (as defined in the Profit Sharing and Savings Plan) for which it
is made and succeeding Plan Years, unless changed by the Participant at least
twelve (12) months prior to the date on which a distribution is to be
made. Any change in the distribution election form must be filed with
the Committee at least twelve (12) months prior to the date on which a
distribution is to be made. Any such change will be effective on the
effective date of the change; provided, however, that (i) no further changes may
be made once distribution of benefits commences, (ii) any election to provide
for a later distribution date shall not take effect until at least 12 months
after the date on which such election is properly filed and the first payment
with respect to which such election is made shall be deferred for a period of
not less than five years from the date such payment would otherwise have been
made and (iii) except as provided in Section 9(b) no election to provide for an
earlier distribution may be made.
Notwithstanding
the forgoing, A Participant whose benefit do not become payable prior to January
1, 2009 may elect at any time prior to January 1, 2009, by timely filing a
deferral election form provided by the Company, to have his benefits be payable
in whichever of the forms provided in Section 9(a) and be payable at any of the
times provided in Section 9(b). Such election will become effective
on January 1, 2009.
(d)
In the
case of the occurrence of an Unforeseeable Emergency, upon written request of a
Participant or of a Participant’s legal representative, the Committee may, at
its sole and absolute discretion, provide for early payment of benefits under
the Plan. Early distributions under the Plan on account of an
Unforeseeable Emergency may not exceed the vested amounts in the Participant’s
Excess Benefit Account, Deferred Compensation Account, and Matching Contribution
Account and are limited to the amount determined by the Committee to be
necessary to meet the emergency plus amounts necessary to pay taxes and
penalties reasonably anticipated as a result of the distribution, after taking
into account the extent to which the hardship is or may be relieved through
reimbursement or compensation by insurance or otherwise or by liquidation of the
Participant’s assets (to the extent the liquidation of assets would not itself
cause severe financial hardship). A Participant or a Participant’s
legal representative claiming an Unforeseeable Emergency will be required to
submit such documentation of the Unforeseeable Emergency and proof that the loss
is not covered by other means reasonably available to the Participant as the
Committee shall request. The Committee’s determination that a
Participant experienced an Unforeseeable Emergency shall be made on the basis of
all relevant facts and circumstances in accordance with the provisions of
Section 409A of the Code.
(e)
The
Company shall deduct from any payment such amounts as may be required to be
withheld under any federal, state or local tax laws.
(f)
If the
Participant is a “specified employee” as defined in Section 409A(2)(B)(i) of the
Code, no part of the payments of amounts payable under this Plan, other than
amounts payable on account of the Participant’s death, shall be paid before the
day that is six (6) months plus one (1) day after the date of termination (the
“Delayed Payment Date”). The aggregate of any payments that otherwise
would have been made to the Participant during the period between the date of
termination and the Delayed Payment Date (“Delayed Amount”) shall be paid to the
Participant together with interest (as provided in Section 7 above), but without
taking into account any changes in value during such period of securities to
which the payments may be indexed in a lump sum on such Delayed Payment
Date. Thereafter, any payments that remain outstanding as of the day
immediately following the New Payment Date shall be paid without delay over the
time period originally scheduled, in accordance with the terms of this
Plan. In addition, in the event the Participant’s accounts or a
portion thereof are indexed to the value of the Common Stock of the Company,
Class A Common Stock of the Company or other securities, the Trustee shall sell
on the date of the Participant’s termination such securities held in trust for
the benefit of the Participant whose fair market value is equal to the product
of the Delayed Amount and the portion of the Participant’s accounts that are
indexed to securities.
Section
10.
Change in
Control.
Benefit
amounts accrued under the Plan will become vested upon a Change in Control and
shall be distributed to the Participants or their Beneficiaries in a lump sum no
later than 90 days following the Change in Control.
Section
11.
Unfunded
Plan.
This Plan
is intended to constitute an unfunded, nonqualified deferred compensation
arrangement for the benefit of a select group of management or highly
compensated employees. Except as set forth below, all benefits payable under the
Plan shall be paid by the Company out of its general assets and nothing
contained in this Plan and no action taken pursuant to the provisions of this
Plan shall create, or be construed to create, a trust of any kind or a fiduciary
relationship between the Company and any Participant, Beneficiary or any other
person; no money, property or shares of common stock shall be segregated for the
benefit of any Participant or Beneficiary; no special or separate fund shall be
established or other segregation of assets made to assure payment of benefits
hereunder; and no Participant or Beneficiary shall have any preferred claim on,
or any beneficial ownership interest in, any assets of the Company prior to the
time that benefits payable under the Plan are paid to him or her as provided
herein. The right of a Participant or Beneficiary to receive a distribution
hereunder shall be a general unsecured claim against the assets of the Company.
Measures representing the value of a Participant’s benefits under the Plan are
bookkeeping entries only and shall not constitute property of any kind or any
interest in the Company. Notwithstanding the foregoing, the Company may, in its
sole discretion, elect to establish a grantor trust that meets the requirements
of Internal Revenue Service Revenue Procedure 92-64 to provide the benefits
payable from Excess Benefit Accounts, Deferred Compensation Accounts, and
Matching Contribution Accounts; provided, that the Plan and such trust shall
continue to constitute an unfunded deferred compensation arrangement and
Participants shall not be deemed to be in constructive receipt of amounts held
by the trust. Any such trust shall be established with the approval of the
Company.
Section
12.
Administration.
The Plan
shall be administered by the Committee in accordance with its terms and
purposes. The Company shall have the sole and complete responsibility for the
administration of the Plan and shall have discretionary authority to determine
all questions arising in the administration, interpretation and application of
the Plan, including the remedying of any omission, inconsistency or ambiguity,
and to construe the terms of the Plan, including the eligibility of Participants
for any benefit hereunder and the amount thereof and its decision or action in
respect thereof shall be conclusive and binding on all persons.
Section
13.
Amendment
and Termination.
The
Committee may amend or terminate the Plan with respect to future periods at any
time and for any reason it may deem appropriate. In the event of the termination
of the Plan, no person shall be entitled to accrue additional benefits under the
Plan with respect to any period after the effective date of termination
determined by the Committee; provided, however, that any benefits under the Plan
accrued prior to the effective date of termination determined by the Committee
shall not he reduced on account of such termination.
Section
14.
Miscellaneous.
(a)
Nothing
contained in the Plan shall be construed as a contract of employment between the
Company and a Participant, or as a right of any Participant to continue in the
employ of the Company or as a limitation of the right of the Company to
discharge any Participant, with or without cause.
(b)
Except as
otherwise required by law (including any law that requires the withholding of
any tax under the laws of the United States or any state or locality or any
foreign government), no amounts payable at any time pursuant to the Plan shall
be subject in any manner to alienation, sale, transfer, assignment, pledge,
attachment or other legal process, or encumbrance of any kind. Any attempt to
alienate, sell, transfer, assign, pledge or otherwise encumber any such benefit,
whether currently or thereafter payable, shall be void. Except as otherwise
specifically provided by law, no amounts payable hereunder shall, in any manner,
be liable for or subject to the debts or liabilities of a Participant or any
other person entitled to such benefit.
(c)
All
claims for benefits under the Plan shall be made in writing to the Committee.
Such claims for benefits, responses thereto and any appeals thereof shall be
made in accordance with the provisions for claims procedures set forth in the
Profit Sharing and Savings Plan.
(d)
The
provisions of the Plan shall be binding on the successors and assigns of the
Company.
(e)
The Plan
shall be governed, to the extent provided thereunder, by ERISA and to the extent
not preempted by ERISA, by the laws of the State of New York.
