Exhibit 10(xiii)
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement"), entered into this 21st day of
March, 2000, between UNITED DOMINION REALTY TRUST, INC., a Virginia corporation
(the "Company") and MARK E. WOOD (the "Executive"), recites and provides as
follows:
R E C I T A L S:
The Executive is a senior executive of the Company, and the Company now
desires to reward the Executive for past performance and provide for the
continued employment of the Executive upon the terms set forth in this
Agreement.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the foregoing, and the mutual promises
and undertakings hereinafter set forth, and the payments to be made to the
Executive hereunder, the parties hereto agree as follows:
1. Position and Duties.
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a. The Company hereby agrees to and hereby does continue to employ the
Executive as an executive officer of the Company, subject to the supervision of
the Chief Executive Officer of the Company, or such other senior officer of the
Company as may be prescribed by the Chief Executive Officer or the Board of
Directors of the Company (the "Board"). Currently, the Executive is Senior Vice
President and Director of Development for the Western Region, and reports to the
Chief Executive Officer. The Executive agrees that the description of the
executive position above shall not limit the Company from assigning to the
Executive such other duties and functions in addition to or in substitution of
those described above.
b. The Executive agrees to serve the Company as a full time executive
officer with duties and authority as set forth in the Company's by-laws or as
otherwise prescribed by the Board. The Executive shall devote such time,
attention, skill, and efforts to the performance of his duties as a Company
executive as shall be required therefore, all under the supervision and
direction of the Board. The Executive agrees that during the period of his
employment he will not, without the approval of a majority of the independent
directors of the Board, have any other (i) real estate investment trust or
business affiliations, or (ii) corporate affiliations that conflict with the
business of the Company or interfere with the ability of the Executive to
perform his duties for the Company or comply with the covenants under this
Agreement.
2. Term of Agreement.
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This Agreement will take effect as of the date of this Agreement and will
end on December 31, 2000. After December 31, 2000, this Agreement will
automatically renew for successive one (1) year periods, ending as of December
31 of each year, unless sooner terminated in accordance with Section 4.
3. Compensation and Benefits.
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a. Base Salary. The Executive's pay will not be less than $160,000 per
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year, payable in accordance with the Company's regular payroll practices, unless
the Executive consents to a lesser base salary in writing.
b. Annual Incentive Compensation. The Executive's annual compensation
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shall also include an annual incentive where the Executive has an opportunity to
earn a bonus based upon the Executive and the Company meeting certain
performance goals and objectives as determined by the Board, or the appropriate
supervising officer of the Company. The Executive acknowledges that the Board
or the Compensation Committee of the Board (the "Compensation Committee"), as
appropriate, may elect to modify or terminate annual incentive compensation for
all executives at any time.
c. Long Term Incentive Compensation. The Executive's compensation shall
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also include participation (i) in the Company's 1982 Stock Option Plan; (ii) in
the Company's 1991 Officers Stock Purchase and Loan Plan; and (iii) any
"shareholder value plan" or other long-term compensation plan for senior
officers of the Company adopted by the Compensation Committee or the Board, on
the same basis as similarly situated executive officers of the Company. The
Executive acknowledges that the Company Board or the Compensation Committee, as
appropriate, may elect to terminate or modify any or all long-term incentive
compensation at any time.
d. Associate Benefit Plans. The Executive will be eligible to participate
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in any and all employee benefit plans, medical insurance plans, retirement
plans, and other benefit plans in effect for employees in similar positions at
the Company (the "Company Plans") or any other plans applicable for other
officers or executive officers of the Company. Such participation shall be
subject to the terms of the applicable plan documents and the Company's
generally applied policies. In addition, the Executive acknowledges that the
Company may elect to terminate or modify any or all Company Plans at any time.
e. Travel. It is contemplated that the Executive will be required to
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incur travel and entertainment expense in the interests and on behalf of the
Company and in furtherance of its business. The Executive agrees to comply with
the travel and entertainment guidelines of the Company, which may be modified
from time to time (the "T&E Guidelines"). The Company at the end of each month
during the period of this Agreement will, upon submission of appropriate bills
or vouchers, reimburse expenses incurred by the Executive during such month in
compliance with the T&E Guidelines. The Executive agrees to maintain adequate
records, in such detail as the Company may reasonably request, of all expenses
to be reimbursed by the Company hereunder and to make such records available for
inspection as and when reasonably requested by the Company.
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4. Employment Termination Outside of Change of Control.
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a. Incapacity; Death. This Agreement may be terminated by the Company,
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by delivery of a "Notice of Termination" (defined in Section 8) to the Executive
or his personal representative given at least thirty (30) days prior to the
effective date specified therein, in the event that the Executive shall be
unable to perform his duties hereunder for a period of more than three
consecutive months as a result of illness or incapacity. This Agreement shall
terminate on the death of the Executive.
b. Without Cause. This Agreement may be terminated by the Company,
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without cause, by delivery of a "Notice of Termination" (defined in Section 8)
given to the Executive ten (10) days prior to the effective date of such
termination.
c. Severance Compensation. Upon termination of this Agreement pursuant to
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Section 4 (a) or 4 (b), the Company shall pay to the Executive or his legal
representative certain compensation (the "Severance Compensation") as follows:
(i) Base Salary. The Executive shall be paid fifty-two (52) weeks of
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base salary, and the Company shall continue in effect for a period
of fifty-two (52) weeks after the effective date of the
Executive's termination, all health/life/disability insurance
coverage provided to the Executive and his immediate family on the
day immediately prior to the date of notice of termination or, if
the Executive shall so elect, the Company shall pay to the
Executive an amount equal to the portion of the premium allocable
to the Executive for providing such coverage, provided, however,
if such coverage cannot be continued by the Company, the Company
shall pay to the Executive an amount sufficient for the Executive
to obtain substantially similar coverage for a period of fifty-two
(52) weeks after the effective date of termination.
(ii) Incentive Compensation. The Executive shall also be entitled
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to annual incentive compensation (i) actually earned by the
Executive, if any, pursuant to Section 3(b) of this Agreement for
the Company's current fiscal year prorated through the effective
date of termination, which compensation shall be paid no later
than forty-five (45) days after the end of the Company's fiscal
year and (ii) an amount equal to the sum of the annual incentive
compensation earned by the Executive over the two calendar years
prior to the effective date of termination, divided by two
("Average Annual Incentive Compensation"). Compensation pursuant
to paragraph 3(c) (long term incentive compensation) shall be
governed by the terms of the subject plans.
(iii) Severance Compensation Reduction. In the event termination
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is pursuant to Section 4 (a) of this Agreement, the portion of
Severance Compensation to be paid pursuant to Section 4(i) and
(ii) shall be reduced by the amount of
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any life insurance proceeds paid by or through the Company or
disability insurance payments for one (1) year, as appropriate,
payable to the Executive or his personal representative or other
beneficiary.
(iv) Timing. The Company, at its option, shall pay to the
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Executive or his legal representative the sums payable to such
Executive or his legal representative on account of the portion of
Severance Compensation consisting of (y) base salary either in a
lump sum or in monthly increments payable on the first day of each
month over the succeeding twelve (12) month period and (z) the
Average Annual Incentive Compensation within thirty (30) days
after the effective date of termination.
(v) Life Insurance. The Executive shall also be entitled to
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direct the Company to change the beneficiary of any non-group life
insurance policy to another person or group.
d. By the Executive. This Agreement may be terminated by the Executive,
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upon delivery of a "Notice of Termination" (defined in Section 8) given at least
ninety (90) days before the end of the term or for "Good Reason," which, for the
purposes of this subsection, shall mean the reasons set forth in subsections
5(d)(i) to (vi).
e. For Cause. The Company may terminate this Agreement for cause by
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providing delivery of a "Notice of Termination" (defined in Section 8). In
such event, the Executive shall not be entitled to any compensation under this
Agreement for the period after the termination date, and any compensation paid
to the Executive shall be net of any sums owed by the Executive to the Company
as a result of the act for which the employment of the Executive was terminated.
The circumstances under which the Company will be deemed to have cause to
terminate this Agreement will be a breach of this Agreement or a serious offense
inconsistent with his duties as an Executive which shall include but not be
limited to the following:
(i) The Executive is convicted of or pleads nolo contendere to any crime,
other than a traffic offense or misdemeanor;
(ii) The Executive shall commit, with respect to the Company, an act of
fraud or embezzlement or shall have been grossly negligent in the
performance of his duties hereunder;
(iii) The Executive engages in gross dereliction of duties, refusal to
perform assigned duties consistent with his position, or repeated
violation of the Company's policies after written warning; or,
(iv) The Executive engages in drug abuse.
f. Consulting Services. Upon termination of this Agreement, the Executive
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shall, for a period of up to one year following the effective date of
termination, render such advisory or
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consulting services to the Company as it may reasonably request, taking into
account the Executive's health, business commitments, geographical location and
other relevant circumstances. The intent of this paragraph is not to obligate
the Executive to perform any day-to-day duties for the Company following
termination of his employment but only to assist management in effecting a
smooth transition of the functions or projects for which the Executive was
responsible while an employee of the Company. Should the Executive fail to
render such advisory or consulting services, after 30 days' prior written notice
to the Executive and the Executive's failure to commence the rendering of such
service, the Company's sole remedy shall be to terminate payment of any
remaining severance compensation. If this Agreement is terminated pursuant to
Section 4(e) and no Severance Compensation is paid to the Executive, the
Executive shall be paid on an hourly basis to the extent requested by the
Company to perform advisory or consulting services, based upon his base salary
prior to termination for the actual time spent for advisory or consulting
services for the Company.
g. Return of Company Property. The parties acknowledge and agree that
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records, files, reports, manuals, handbooks, computer diskettes, computer
software, customer files and information, documents, equipment and the like,
relating to the Company's business or which are developed for or by the Company,
or which Executive shall develop, create, use, prepare or come into possession
of during his employment with the Company, shall remain the sole property of the
Company and Executive covenants to promptly deliver to the Company any and all
such property and any copies thereof no later than the termination of
Executive's employment with the Company.
h. Covenants. The Executive shall not be entitled to any Severance
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Compensation or benefits for any period he is in violation of the Covenants in
Section 6.
5. Change of Control.
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a. Change of Control. For purposes of this Agreement, "Change of Control"
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shall mean (i) the merger or consolidation of the Company with any other real
estate investment trust, corporation or other business entity, in which the
Company is not the survivor (without respect to the legal structure of the
transaction), (ii) the transfer or sale of all or substantially all of the
assets of the Company other than to an affiliate or subsidiary of the Company,
(iii) the liquidation of the Company, or (iv) the acquisition by any person or
by a group of persons acting in concert, of more than fifty percent (50%) of the
outstanding voting securities of the Company, which results in the resignation
or addition of fifty percent (50%) or more members of the Board or the
resignation or addition of fifty percent (50%) or more independent members of
the Board.
b. Compensation Upon Termination. Following a Change in Control that
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results in termination of the Executive's employment, the Executive shall be
entitled to the following benefits unless such termination is by the Executive
other than for "Good Reason" (as defined below):
(i) Compensation. The Company shall pay the Executive one hundred
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four (104) weeks of base salary at the rate in effect at the time
Notice of Termination is given, and the equivalent of two years
of annual incentive compensation based upon the average annual
incentive compensation earned by the Executive for the two
calendar years prior to the effective date of termination,
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plus all other amounts to which the Executive is entitled under
any compensation plan of the Company.
(ii) Benefits. The Company shall provide the Executive with life,
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disability, accident and health insurance coverage (including any
dependent coverage) substantially similar to the coverage the
Executive is receiving immediately prior to the Notice of
Termination, for a twenty-four (24) month period after the
Executive's termination. Benefits otherwise receivable by the
Executive pursuant to this subsection (ii) shall be reduced to
the extent comparable benefits are actually received by the
Executive during the twenty-four (24) month period following
termination, and any such benefits actually received by the
Executive shall be reported to the Company.
(iii) Long-Term Incentive Compensation. All of the Executive's
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outstanding options, stock appreciation rights and any other
awards in the nature of rights that may be exercised shall become
fully vested and immediately exercisable; all restrictions on any
outstanding other awards held by the Executive (such as awards of
restricted stock) shall lapse; and the Executive's balance in any
deferred compensation plan or shareholder value plan shall become
fully vested and immediately payable; provided, however, that
such acceleration will not occur if, in the opinion of the
Company's accountants, such acceleration would preclude the use
of "pooling of interest" accounting treatment for a Change of
Control transaction that (a) would otherwise qualify for such
accounting treatment, and (b) is contingent upon qualifying for
such accounting treatment.
(iv) Timing. The Severance Payments shall be made no later than the
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thirtieth (30th) business day following the effective date of
termination. However, if the amounts of the Severance Payments
cannot be finally determined on or before such day, the Company
shall pay to the Executive on such day an estimate of the minimum
amount of such payments and shall pay the remainder of such
payments as soon as the amount thereof can be determined but in
no event later than the ninetieth (90th) day after the effective
date of termination.
c. Limitation of Benefits.
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(i) Notwithstanding anything in this Agreement to the contrary, in
the event it shall be determined that any benefit, payment or
distribution by the Company to or for the benefit of Executive
(whether payable or distributable pursuant to the terms of this
Agreement or otherwise)(such benefits, payments or distributions
are hereinafter referred to as "Payments") would, if paid, be
subject to the excise tax (the "Excise Tax") imposed by Section
4999 of the Code, then the aggregate present value of the
Payments shall be reduced (but not below zero) to an amount
expressed in present value that maximizes the
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aggregate present value of the Payments without causing the
Payments or any part thereof to be subject to the Excise Tax and
therefore nondeductible by the Company because of Section 280G of
the Code (the "Reduced Amount"). For purposes of this Section,
present value shall be determined in accordance with Section
280G(d)(4) of the Code.
(ii) All determinations required to be made under this Section,
including whether an Excise Tax would otherwise be imposed,
whether the Payments shall be reduced, the amount of the Reduced
Amount, and the assumptions to be utilized in arriving at such
determinations, shall be made by Ernst & Young, LLP or such other
certified public accounting firm acceptable to the Company, in
its sole discretion, (the "Accounting Firm") which shall provide
detailed supporting calculations both to the Company and
Executive within fifteen (15) business days of the receipt of
notice from Executive that a Payment is due to be made, or such
earlier time as is requested by the Company. All fees and
expenses of the Accounting Firm shall be borne solely by the
Company. Any determination by the Accounting Firm shall be
binding upon the Company and Executive. As a result of the
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 Payments hereunder will have been
unnecessarily limited by this Section ("Underpayment"),
consistent with the calculations required to be made hereunder.
The Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be
promptly paid by the Company to or for the benefit of Executive.
d. Good Reason. The Executive shall be entitled to terminate this
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Agreement for Good Reason. For purposes of this Section 5, "Good Reason" shall
mean the occurrence, within two (2) years after a Change in Control, of any of
the following circumstances:
(i) the assignment to the Executive of any duties inconsistent with
the Executive's position and status as Director of Development for
the Western Region or a substantial adverse alteration in the
nature or status of the Executive's responsibilities from those in
effect immediately prior to the Change in Control;
(ii) a ten percent (10%) or greater reduction by the Company in the
Executive's annual base salary as in effect on the date hereof or
as the same may be increased from time to time except for across-
the-board salary reductions affecting senior executives of the
Company and senior executives of any person directly or indirectly
in control of the Company;
(iii) the Executive's relocation by the Company to a location not within
fifty miles of the Executive's present office or job location;
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(iv) the failure by the Company to pay to the Executive any portion of
the Executive's current compensation, or to pay to the Executive
any portion of an installment of deferred compensation under any
deferred compensation program of the Company, within thirty (30)
days of the date such compensation is due;
(v) the failure by the Company to continue in effect any annual or
long-term monetary incentive opportunity to which the Executive
was entitled, or any compensation plan in which the Executive
participates immediately prior to the Change in Control which
constitutes more than ten percent (10%) of the Executive's total
compensation; provided, however, that the Company may modify the
monetary incentive opportunities so as to provide the Executive
with the same or similar monetary incentive opportunities;
(vi) the failure of the Company to obtain a satisfactory agreement from
any successor to assume and agree to perform this Agreement or a
similar agreement satisfactory to the Executive;
(vii) in the event the Executive terminates this Agreement for Good
Reason following a Change in Control as provided in this Section
5, the Executive shall be entitled to the compensation provided by
Section 5(b), reduced by the amount of compensation received by
the Executive following the Change in Control through the
effective date of termination.
e. Potential Change of Control. For purposes of this Agreement, a
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"Potential Change in Control" shall be deemed to have occurred if (i) the
Company enters into an agreement, the consummation of which would result in the
occurrence of a Change in Control; (ii) any person (including the Company)
publicly announces an intention to take or to consider taking actions which if
consummated would constitute a Change in Control; (iii) any person, who is or
becomes the beneficial owner, directly or indirectly, of securities of the
Company representing 9.5% or more of the combined voting power of the Company's
then outstanding securities increases his beneficial ownership of such
securities by 5% or more over the percentage so owned by such person on the date
hereof; or (iv) the Board adopts a resolution to the effect that, for the
purposes of this Agreement, a Potential Change in Control has occurred. In the
event of a Potential Change in Control the Executive will remain in the employ
of the Company until the earliest of (x) a date which is six (6) months from the
occurrence of such Potential Change in Control, or (y) the occurrence of a
Change in Control.
6. Confidentiality; Non-Competition and Non-Solicitation Covenants.
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a. Basis for Covenants. The Executive acknowledges that i) he will
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be employed as an executive officer in a managerial capacity; ii) his employment
with the Company gives him access to confidential and proprietary information
concerning the Company; iii) the agreements and covenants contained in this
Section 6 (the "Covenants") are essential to protect the business of the
Company; and iv) the Executive is to receive consideration pursuant to this
Agreement. Executive
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recognizes and acknowledges that the confidential information described in
Section 6(b) (the "Confidential Information") which he will acquire in the
course of his employment is utilized by the Company in all geographic areas in
which the Company does business. Further, the Confidential Information will also
be utilized in all geographic areas into which the Company expands its business.
Thus, Executive acknowledges that he will be a formidable competitor in all
areas where the Company conducts business. Executive also acknowledges that the
Covenants serve to protect the Company's investment in the Confidential
Information.
b. Confidentiality.
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(i) The Executive acknowledges that he will be exposed to and learn a
substantial amount of information which is proprietary and confidential
to the Company, whether or not he develops or creates such information.
The Executive acknowledges that such proprietary and confidential
information may include, but is not limited to, trade secrets;
acquisition or merger information; advertising and promotional
programs; resource or developmental projects; plans or strategies for
future business development; financial or statistical data; customer
information, including, but not limited to, customer lists, sales
records, account records, sales and marketing programs, pricing
matters, and strategies and reports; and any Company manuals, forms,
techniques, and other business procedures or methods, devices, computer
software or matters of any kind relating to or with respect to any
confidential program or projects of the Company, or any other
information of a similar nature made available to the Executive and not
known in the trade in which the Company is engaged, which, if misused
or disclosed, could adversely affect the business or standing of the
Company. Confidential Information shall not include information that is
generally known or generally available to the public through no fault
of the Executive.
(ii) The Executive agrees that except as required by law, he will not at any
time divulge to any person, agency, institution, company or other
entity any information which he knows or has reason to believe is
proprietary or confidential to the Company, including but not limited
to the types of information described in Section 6(b)(i), or use such
information to the competitive disadvantage of the Company. The
Executive agrees that his duties and obligations under this Section 6
will continue for 12 months from the termination of his employment or
as long as the Confidential Information remains proprietary or
confidential to the Company.
c. Non-Competition. During the period of the Executive's employment,
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the Executive agrees that he will not, on behalf of anyone other than the
Company, engage in any managerial, executive, sales, or marketing activities
related to any business in which the Company is or becomes engaged during the
Executive's employment without the consent of the Board.
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d. Non-Solicitation. The Executive agrees that for a twelve (12)
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month period following the termination of his employment with the Company for
any reason (including the Executive's resignation), the Executive shall not,
directly or indirectly, hire or solicit any employee of the Company employed at
the time of his termination, or encourage any such employee to leave such
employment.
e. Scope of Covenants.
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(i) Executive acknowledges that the Company intends to extend business
operations throughout the United States of America. Therefore, for
a period of twelve (12) months after termination of Executive's
employment for any reason (including Executive's resignation),
Executive agrees that he shall not directly or indirectly carry on
or participate in the ownership or management of apartment
communities of the same class and quality of the communities owned
by the Company that directly competes with the Company anywhere
within the United States of America.
(ii) Independent of the preceding provision, Executive agrees that he
shall not, for a period of twelve (12) months after termination of
Executive's employment, directly or indirectly carry on or
participate in the ownership or management of apartment
communities of the same class and quality of the apartment
communities owned by the Company that directly competes with the
Company within any county or city in which the Company conducts
business.
(iii) These covenants shall not apply in the event the Executive is
terminated without cause, as a result of a Change of Control, or
by the Executive for Good Reason, which, for the purposes of this
subsection, shall mean any of the reasons set forth in subsections
5(d)(i) to (iv).
f. Reasonableness of Covenants. The Executive agrees that the Covenants
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are necessary for the reasonable and proper protection of the Company and that
the Covenants are reasonable in respect of subject matter, length of time, and
geographic scope. The Executive further acknowledges that the Covenants will
not unreasonably restrict him from earning a livelihood following the
termination of his employment with the Company.
g. Governing Law; Public Policy.
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(i) The parties agree that it is not their intention to violate any
public policy or statutory or common law. The parties intend that
the provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. If any provision of
this Agreement is found by a court to be unenforceable, the
parties authorize the court to amend or modify the provision to
make it enforceable in the most restrictive fashion permitted by
law.
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(ii) The Executive and the Company are sophisticated parties and fully
understand (i) the ramifications of the non-competition, non-
solicitation and confidentiality restrictions of this Agreement
and (ii) that the laws of each state with respect to the
enforceability of such provisions vary. The parties are
specifically selecting the internal laws of the Commonwealth of
Virginia to govern this Agreement in order that it be enforceable
against all of them.
h. Separate Agreement Upon Termination. The provisions of this Section 6
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so far as they relate to the period after the end of the term of this Agreement
shall continue to have effect and shall operate as a separate agreement between
the Company and the Executive.
7. Successors and Assigns.
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a. The Executive acknowledges and agrees that this Agreement is a contract
for his personal services, he is not entitled to assign, subcontract, or
transfer any of the obligations imposed or benefits provided under this
Agreement.
b. This Agreement shall be binding on and will inure to the benefit of any
successors or assigns of the Company.
8. Definitions. The following terms shall have the following meanings:
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a. A "Notice of Termination" shall mean a written notice which shall
indicate the specific termination provision in this Agreement relied upon and,
if appropriate, shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provisions so indicated.
b. "Code" shall mean the Internal Revenue Code of 1986, as amended.
9. Miscellaneous.
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a. Integration. This Agreement contains the complete agreement between
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the Executive and the Company with respect to its subject matter. This
Agreement supersedes all previous and contemporaneous agreements, negotiations,
commitments, writings, and undertakings.
b. Governing Law. This Agreement shall be governed by and interpreted in
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accordance with the laws of the Commonwealth of Virginia, regardless of choice
of law rules. Any dispute arising between the parties related to or involving
this Agreement will be litigated in a court having jurisdiction in the
Commonwealth of Virginia.
c. Modifications. This Agreement may be modified or waived only by a
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writing signed by both parties.
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d. Waivers. Any waiver of a breach of this Agreement will not constitute
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a waiver of any future breach, whether of a similar or dissimilar nature.
e. Severability. The covenants in the various provisions of Section 6
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are separate and independent contractual provisions. The invalidity or
unenforceability of any particular restrictive covenant or any other provision
of this Agreement shall not affect the other provisions hereof, and this
Agreement shall be construed in all respects as if such invalid or unenforceable
provision were omitted.
WE AGREE TO THIS:
UNITED DOMINION REALTY TRUST, INC.,
a Virginia corporation
By: _______________________________
Its: ________________________________
EXECUTIVE
___________________________________
MARK E. WOOD
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