Exhibit 10(ii)
EXECUTIVE AGREEMENT
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THIS AGREEMENT (the "Executive Agreement"), made and entered into as of
this 22nd day of February, 1999 between FEDERAL REALTY INVESTMENT TRUST, an
unincorporated business trust organized under the laws of the District of
Columbia ("Trust"), and Donald C. Wood ("Executive").
RECITALS
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WHEREAS, the Trust recently hired Executive to serve as its Senior Vice
President - Chief Financial Officer and desires assurance that Executive will
continue his services to the Trust;
WHEREAS, Executive is willing to serve the Trust, but desires assurance
that in the event of any Change in Control of the Trust he will continue to have
the responsibilities and privileges he is now being given;
WHEREAS, the Board of Trustees of the Trust ("Board of Trustees") has
determined that the best interests of the Trust would be served by providing
Executive with certain protections and benefits following any Change in Control
of the Trust;
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
herein contained and of other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties, hereto, intended to be
legally bound, agree as follows:
PROVISIONS
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1. Change in Control. No benefits shall be payable under this Executive
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Agreement unless there shall have occurred a Change in Control of the Trust, as
defined below. For purposes of this Executive Agreement a "Change in Control"
of the Trust shall mean any of the following events:
(a) An acquisition in one or more transactions (other than directly
from the Trust or pursuant to options granted by the Trust) of any voting
securities of the Trust (the "Voting Securities") by any "Person" (as the term
is used for purposes of Section 13(d) or 14(d) of the Securities Act of 1934, as
amended (the "Exchange Act")) immediately after which such Person has
"Beneficial Ownership" (within the meaning of
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Rule 13d-3 promulgated under the Exchange Act) of 20% or more of the combined
voting power of the Trust's then outstanding Voting Securities; provided,
however, in determining whether a Change in Control has occurred, Voting
Securities which are acquired in a "Non-Control Acquisition" (as hereinafter
defined) shall not constitute an acquisition which would cause a Change in
Control. A "Non-Control Acquisition" shall mean an acquisition by (i) an
employee benefit plan (or a trust forming a part thereof) maintained by (x) the
Trust or (y) any corporation or other Person of which a majority of its voting
power or its equity securities or equity interest is owned directly or
indirectly by the Trust (a "Subsidiary"), (ii) the Trust or any Subsidiary, or
(iii) any Person in connection with a "Non-Control Transaction" (as hereinafter
defined);
(b) The individuals who, as of the date of this Executive Agreement,
are members of the Board of Trustees (the "Incumbent Trustees"), cease for any
reason to constitute at least two-thirds of the Board; provided, however, that
if the election, or nomination for election by the Trust's shareholders, of any
new member was approved by a vote of at least two-thirds of the Incumbent
Trustees, such new member shall, for purposes of this Executive Agreement, be
considered as a member of the Incumbent Trustees; provided, further, however,
that no individual shall be considered a member of the Incumbent Trustees if
such individual initially assumed office as a result of either an actual or
threatened "Election Contest" (as described in Rule 14a-11 promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board of Trustees (a "Proxy Contest")
including by reason of any agreement intended to avoid or settle any Election
Contest or Proxy Contest; or
(c) Approval by shareholders of the Trust of
(i) A merger, consolidation or reorganization involving the
Trust, unless:
(A) the shareholders of the Trust, immediately before such
merger, consolidation or reorganization, own, directly
or indirectly immediately following such merger,
consolidation or reorganization, at least a majority of
the combined voting power of the outstanding voting
securities of the Person resulting from such merger or
consolidation or reorganization (the "Surviving
Person") in substantially the same proportion as their
ownership of the Voting Securities immediately before
such merger, consolidation or reorganization,
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(B) the individuals who were members of the Incumbent
Trustees immediately prior to the execution of the
agreement providing for such merger, consolidation or
reorganization constitute at least two-thirds of the
members of the board of directors of the Surviving
Person,
(C) no Person (other than the Trust or any Subsidiary, any
employee benefit plan (or any trust forming a part
thereof) maintained by the Trust, or any Subsidiary, or
any Person which, immediately prior to such merger,
consolidation or reorganization had Beneficial
Ownership of 20% or more of the then outstanding Voting
Securities) has Beneficial Ownership of 20% or more of
the combined voting power of the Surviving Person's
then outstanding voting securities, and
(D) a transaction described in clauses (A) through (C)
shall herein be referred to as a "Non-Control
Transaction;"
(ii) A complete liquidation or dissolution of the Trust; or
(iii) An agreement for the sale or other disposition of all or
substantially all of the assets of the Trust to any Person
(other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be
deemed to occur (i) solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the outstanding Voting
Securities as a result of the acquisition of Voting Securities by the Trust
which, by reducing the number of Voting Securities outstanding, increases the
proportional number of Voting Securities Beneficially Owned by the Subject
Person; provided, however, that if a Change in Control would occur (but for the
operation of this sentence) as a result of the acquisition of Voting Securities
by the Trust, and after such share acquisition by the Trust, the Subject Person
becomes the Beneficial Owner of any additional Voting Securities which increases
the percentage of the then outstanding Voting Securities Beneficially Owned by
the Subject Person, then a Change in Control shall occur; or (ii) if the Trust
(1) establishes a wholly-owned subsidiary ("Holding Company"), (2) causes the
Holding Company to establish a wholly-owned subsidiary ("Merger Sub"), and (3)
merges with Merger Sub, with the Trust as the surviving entity (such
transactions collectively are referred as the "Reorganization"). Immediately
following the completion of the
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Reorganization, all references to the Voting Securities shall be deemed to refer
to the voting securities of the Holding Company.
(d) Notwithstanding anything contained in this Executive Agreement to
the contrary, if Executive's employment is terminated while this Executive
Agreement is in effect and Executive reasonably demonstrates that such
termination (i) was at the request of a third party who has indicated an
intention or taken steps reasonably calculated to effect a Change in Control and
who effectuates a Change in Control (a "Third Party") or (ii) otherwise occurred
in connection with, or in anticipation of, a Change in Control which actually
occurs, then for all purposes of this Executive Agreement, the date of a Change
in Control with respect to Executive shall mean the date immediately prior to
the date of such termination of Executive's employment.
2. Termination of Employment Following Change in Control. If a Change in
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Control of the Trust occurs, Executive shall be entitled to the benefits
provided in Section 3 upon the subsequent termination of Executive's employment
with the Trust for any reason, either voluntarily or involuntarily, within six
(6) months of such Change of Control, unless such termination is because of
Executive's death, Disability or retirement. The term "Disability" shall have
the meaning assigned to it in the Trust's group long-term disability policy.
The term "Retirement" shall mean termination of employment in accordance with
(i) a qualified employee pension or profit-sharing plan maintained by the Trust,
or (ii) the Trust's retirement policy in effect immediately prior to the Change
in Control. For purposes of this Executive Agreement, Executive's employment
shall be terminated by written notice delivered by either the Trust or Executive
to the other party. The date of Executive's termination of employment shall be
the earlier of the date of Executive's or the Trust's written notice terminating
Executive's employment with the Trust, unless such notice shall specify an
effective date of termination occurring later than the date of such notice, in
which event such specified effective date shall govern ("Termination Date").
3. Payment of Benefits upon Termination. If, after a Change in Control
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has occurred, Executive's employment with the Trust is terminated for any reason
other than for his death, Disability or Retirement, then the Trust shall pay to
Executive and provide Executive, his beneficiaries and estate, the following:
(a) The Trust shall pay to Executive a single cash payment equal to
two hundred percent (200%) of the sum of his annual basic salary in effect on
the day prior to the Change in Control plus a bonus equal to the greatest annual
aggregate amount of any cash or stock bonuses paid to Executive in respect of
any of the three (3) fiscal years immediately preceding such Termination Date
(it being understood and agreed that such amount shall not include compensation
paid pursuant to performance share awards), or if
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no such bonus has been paid to Executive during such time, fifty percent (50%)
of his annual basic salary in effect on the day prior to the Change in Control.
If Executive's employment is terminated by Executive by a written notice which
specifies a Termination Date at least five (5) business days later than the date
of such notice, the payment shall be made on the Termination Date. If Executive
gives less than five (5) business days notice, then such payment shall be made
within five (5) business days of the date of such notice;
(b) The Trust shall for a period of two (2) years following the
Termination Date (i) maintain, at the Trust's expense, at not less than
Executive's highest levels of coverage during the last twelve (12) months prior
to the Change in Control, medical and dental insurance coverage by paying
premiums due in connection with COBRA continuation coverage or converting its
group medical and dental insurance policy to an individual policy for the
benefit of Executive and paying the annual premiums associated with Executive's
continued participation thereunder; (ii) maintain, at the Trust's expense, at
not less than his highest levels of coverage during the last twelve (12) months
prior to the Change in Control, individual life insurance policies and
accidental death and dismemberment policies for the benefit of Executive and pay
the annual premiums associated therewith; and (iii) to the extent that the Trust
maintains a long-term disability policy (or policies) that provided coverage to
Executive in excess of the coverage provided under the Trust's group long-term
disability policy, maintain at not less than his highest levels of coverage
during the last twelve (12) months prior to the Change in Control an individual
long-term disability policy for the benefit of Executive and pay the annual
premiums associated therewith. The Trust shall maintain, at the Trust's expense,
the split dollar individual life insurance policy (or policies) for the benefit
of Executive in accordance with the agreement with respect to such policy (or
policies) entered into by Executive and the Trust. The Trust also shall convert
its group long-term disability policy to an individual policy for the benefit of
Executive and pay the annual premiums associated with Executive's continued
participation thereunder for a period of one (1) year following the Termination
Date. Notwithstanding the foregoing, Executive shall be required to pay the
premiums and any other costs of such benefits in the same dollar amount that he
was required to pay such costs immediately prior to the Termination Date. If
the Trust is unable to provide any of the foregoing benefits directly for any
reason, the Trust shall arrange to provide Executive with benefits substantially
similar to those which Executive is entitled to receive under the preceding
sentences;
(c) The Trust, to the extent legally permissible, shall continue to
provide to Executive all other principal executive officer perquisites,
allowances, accommodations of employment, and benefits on the same terms and
conditions as such are from time to time made available generally to the other
principal executive officers of the Trust but in no event less than the highest
level of the perquisites, allowances, accommodations of employment and benefits
that were available to Executive during the
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last twelve (12) months of his employment prior to the Change in Control for a
period of two (2) years following the Termination Date;
(d) For the purposes of this Section (3), Executive's right to
receive executive officer perquisites, allowances and accommodations of
employment is intended to include (i) Executive's right to have the Trust
provide Executive for a period not to exceed six (6) months from Executive's
Termination Date with a telephone number assigned to Executive at the Trust's
offices, telephone mail and a secretary to answer the telephone; provided,
however, such benefits described in this Subsection 3(d)(i) shall not include an
office in, or physical access to, the Trust's offices and will cease upon the
commencement by Executive of employment with another employer, and (ii)
Executive's right to have the Trust make available at the Trust's expense to
Executive at Executive's option the services of an employment
search/outplacement agency selected by Executive for a period not to exceed six
(6) months.
4. Acceleration of Options. Upon the occurrence of a Change in Control,
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all restrictions on the receipt of any option to acquire or grant of Voting
Securities to Executive shall lapse and such option shall become immediately and
fully exercisable for the shorter of one (1) year or the term of the Option.
Notwithstanding any applicable restrictions or any agreement to the contrary,
Executive may exercise any options to acquire Voting Securities as of the Change
in Control by delivery to the Trust of a written notice dated on or prior to the
expiration of the stated term of the option.
5. Redemption.
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(a) Except as provided in paragraph (b) below, the Trust shall within
five (5) business days of receipt of written notice from Executive given at any
time after the occurrence of a Change in Control but prior to the latest stated
expiration date of any option held by Executive on the date of the Change in
Control, redeem any Voting Securities held by Executive (whether acquired by
exercise of any such option or grant or otherwise), at a price equal to the
average closing price of Voting Securities as quoted on the New York Stock
Exchange, or if such Voting Securities are not listed thereon, then the average
of the closing "bid" and "ask" prices per share in the over-the-counter
securities market for the fifteen (15) trading days prior to the date of such
notice;
(b) If, during the fifteen (15) day trading period, Voting Securities
are not listed, quoted or reported on any publicly traded securities market for
at least two-thirds (2/3) of the days included in such period, then the
redemption price shall be determined as follows: (i) Executive shall designate
in a written notice to the Trust an appraiser to appraise the value of the
Voting Securities to be redeemed; (ii) within ten (10) business days of receipt
of such notice the Trust shall designate an appraiser to
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appraise the value of the Voting Securities to be redeemed; (iii) such
designated appraisers shall together designate, within ten (10) business days of
the date the appraiser is designated by the Trust, a third appraiser to appraise
the value of such Voting Securities; (iv) each appraiser shall value such Voting
Securities within twenty (20) business days of the designation of the third
appraiser using generally accepted appraisal methods for valuing such securities
based upon the value of all of the Trust's assets less all of its liabilities
without giving effect for any costs of liquidation or distress sale, if
otherwise applicable; and (v) the average of the three (3) values determined by
the three (3) appraisers shall constitute the price at which the Trust must
redeem the Voting Securities covered by Executive's written notice within five
(5) business days of the completion of this appraisal process. All costs and
expenses associated with any appraisal prepared pursuant to this paragraph (b)
shall be borne entirely by the Trust.
6. Excise Tax Payments.
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(a) In the event that any payment or benefit (within the meaning of
Section 280G(b)(2) of the Code) that are provided for hereunder (other than the
payment provided for in this Section 6(a)) to be paid to or for the benefit of
Executive (including, without limitation, the payments or benefits provided for
under any provision of this Executive Agreement) or payments or benefits under
any other plan, agreements or arrangement between Executive and the Trust (a
"Payment" or "Payments"), be determined or alleged to be subject to an excise or
similar purpose tax pursuant to Section 4999 of the Code or any successor or
other comparable federal, state, or local tax laws or any interest or penalties
incurred by Executive with respect to such excise or similar purpose tax (such
excise tax, together with any such interest and penalties, hereinafter
collectively referred to as the "Excise Tax") the Trust shall pay to Executive
such additional compensation as is necessary (after taking into account all
federal, state and local taxes) (including any interest and penalties imposed
with respect to such taxes), including any income or Excise Tax, payable by
Executive as a result of the receipt of such additional compensation) (a "Gross-
Up Payment") to place Executive in the same after-tax position (including
federal, state and local taxes) he would have been in had no such Excise Tax
been paid or incurred.
(b) All mathematical determinations, and all determinations as to
whether any of the Total Payments are "parachute payments" (within the meaning
of Section 280G of the Code), that are required to be made under this Section
6, including determinations as to whether a Gross-Up Payment is required, and
the amount of such Gross-Up Payment, shall be made by an independent accounting
firm selected by the Executive from among the six (6) largest accounting firms
in the United States (the "Accounting Firm"), which shall provide its
determination (the "Determination"), together with detailed supporting
calculations regarding the amount of any Gross-Up
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Payment and any other relevant matter, both to the Trust and the Executive by no
later than ten (10) days following the Termination Date, if applicable, or such
earlier time as is requested by the Trust or the Executive (if the Executive
reasonably believes that any of the Payments may be subject to the Excise Tax).
If the Accounting Firm determines that no Excise Tax is payable by the
Executive, it shall furnish the Executive and the Trust with a written statement
that such Accounting Firm has concluded that no Excise Tax is payable (including
the reasons therefor) and that the Executive has substantial authority not to
report any Excise Tax on his federal income tax return. If a Gross-Up Payment is
determined to be payable, it shall be paid to the Executive within twenty (20)
days after the Determination (and all accompanying calculations and other
material supporting the Determination) is delivered to the Trust by the
Accounting Firm. The cost of obtaining the Determination shall be borne by the
Trust, any determination by the Accounting Firm shall be binding upon the Trust
and the Executive, absent manifest error. Without limiting the obligation of the
Trust hereunder, Executive agrees, in the event that the Trust makes a Gross-Up
Payment to cover any Excise Tax, to negotiate with the Trust in good faith with
respect to procedures reasonably requested by the Trust which would afford the
Trust the ability to contest the imposition of such Excise Tax; provided,
however, that Executive will not be required to afford the Trust any right to
contest the applicability of any such Excise Tax to the extent that Executive
reasonably determines (based upon the opinion of the Accounting Firm) that such
contest is inconsistent with the overall tax interest of Executive.
(c) As a result of the uncertainty in the application of Sections
4999 and 280G of the Code, it is possible that a Gross-Up Payment (or a portion
thereof) will be paid which should not have been paid (an "Excess Payment") or a
Gross-Up Payment (or a portion thereof) which should have been paid will not
have been paid (an "Underpayment"). An Underpayment shall be deemed to have
occurred (i) upon notice (formal or informal) to Executive from any governmental
taxing authority that Executive's tax liability (whether in respect of
Executive's current taxable year or in respect of any prior taxable year) may be
increased by reason of the imposition of the Excise Tax on a Payment or Payments
with respect to which the Trust has failed to make a sufficient Gross-Up
Payment, (ii) upon determination by a court, (iii) by reason of determination by
the Trust (which shall include the position taken by the Trust, together with
its consolidated group, on its federal income tax return) or (iv) upon the
resolution of the Dispute to Executive's satisfaction. If an Underpayment
occurs, Executive shall promptly notify the Trust and the Trust shall promptly,
but in any event, at least five (5) days prior to the date on which the
applicable governmental taxing authority has requested payment, pay to Executive
an additional Gross-Up Payment equal to the amount of the Underpayment plus any
interest and penalties (other than interest and penalties imposed by reason of
Executive's failure to file a timely tax return or pay taxes
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shown due on Executive's return where such failure is not due to the Trust's
actions or omissions) imposed on the Underpayment. An Excess Payment shall be
deemed to have occurred upon a "Final Determination" (as hereinafter defined)
that the Excise Tax shall not be imposed upon a Payment or Payments (or a
portion thereof) with respect to which Executive had previously received a
Gross-Up Payment. A "Final Determination" shall be deemed to have occurred when
Executive has received from the applicable governmental taxing authority a
refund of taxes or other reduction in Executive's tax liability by reason of the
Excess Payment and upon either (x) the date a determination is made by, or an
agreement is entered into with, the applicable governmental taxing authority
which finally and conclusively binds Executive and such taxing authority, or in
the event that a claim is brought before a court of competent jurisdiction, the
date upon which a final determination has been made by such court and either all
appeals have been taken and finally resolved or the time for all appeals has
expired or (y) the statute of limitations with respect to Executive's applicable
tax return has expired. If an Excess Payment is determined to have been made,
the amount of the Excess Payment shall be treated as a loan by the Trust to
Executive and Executive shall pay to the Trust on demand (but not less than ten
(10) days after the determination of such Excess Payment and written notice has
been delivered to Executive) the amount of the Excess Payment plus interest at
an annual rate equal to the Applicable Federal Rate provided for in Section
1274(d) of the Code from the date the Gross-Up Payment (to which the Excess
Payment relates) was paid to Executive until date of repayment of the Excess
Payment to the Trust.
(d) Notwithstanding anything contained in this Executive Agreement to
the contrary, in the event that, according to the Final Determination, an Excise
Tax will be imposed on any Payment or Payments, the Trust shall pay to the
applicable governmental taxing authorities as Excise Tax withholding, the amount
of the Excise Tax that the Trust has actually withheld from the Payment or
Payments.
7. Mitigation. Executive shall not be required to mitigate the amount of
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any payment, benefit, or other Trust obligation provided for in this Agreement
by seeking other employment or otherwise and no such payment, benefit or other
Trust obligation shall be offset or reduced by the amount of any compensation or
benefits provided to Executive in any subsequent employment.
8. General Provisions
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(a) Severability. In case any one or more of the provisions of this
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Executive Agreement shall, for any reason, be held or found by final judgment of
a court of competent jurisdiction to be invalid, illegal or unenforceable in any
respect (i) such invalidity, illegality or unenforceability shall not affect any
other provisions of this Executive Agreement, (ii) this Executive Agreement
shall be construed as if such invalid,
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illegal or unenforceable provision had never been contained herein, and (iii) if
the effect of a holding or finding that any such provision is either invalid,
illegal or unenforceable is to modify to Executive's detriment, reduce or
eliminate any compensation, reimbursement, payment, allowance or other benefit
to Executive intended by the Trust and Executive in entering into this Executive
Agreement, the Trust shall promptly negotiate and enter into an agreement with
Executive containing alternative provisions (reasonably acceptable to
Executive), that will restore to Executive (to the extent legally permissible)
substantially the same economic, substantive and income tax benefits Executive
would have enjoyed had any such provision of this Executive Agreement been
upheld as legal, valid and enforceable. Failure to insist upon strict compliance
with any provision of this Executive Agreement shall not be deemed a waiver of
such provision or of any other provision of this Executive Agreement.
(b) No Set-Off. After a Change in Control, the Trust shall have no
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right of set-off, reduction or counterclaim in respect of any debt or other
obligation of Executive to the Trust against any payment, benefit or other Trust
obligation to Executive provided for in this Executive Agreement or pursuant to
any other plan, agreement or policy.
(c) Modification and Waiver. No provision of this Executive Agreement
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may be amended, modified or waived unless such amendment, modification or waiver
shall be agreed to in writing and signed by Executive and by a person duly
authorized by the Board of Trustees.
(d) No Assignment of Compensation. No right to or interest in any
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compensation or reimbursement payable hereunder shall be assignable or divisible
by Executive; provided, however, that this provision shall not preclude
Executive from designating one or more beneficiaries to receive any amount that
may be payable after his death and shall not preclude his executor or
administrator from assigning any right hereunder to the person or persons
entitled thereto.
(e) No Attachments. Except as required by law, no right to receive
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payments under this Executive Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge or
hypothecation, or to execution, attachment, levy or similar process or
assignment by operation of law, and any attempt, voluntary or involuntary, to
affect any such action shall be null, void and of no effect.
(f) Headings. The headings of Sections and Subsections hereof are
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included solely for convenience of reference and shall not control the meaning
or interpretation of any of the provisions of this Executive Agreement.
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(g) Governing Law. This Executive Agreement has been executed and
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delivered in the State of Maryland shall be construed in accordance with and
governed for all purposes by the laws of the State of Maryland.
(h) No Assignment of Agreement. This Executive Agreement may not be
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assigned, partitioned, subdivided, pledged, or hypothecated in whole or in part
without the express prior written consent of Executive and the Trust. This
Executive Agreement shall not be terminated either by the voluntary or
involuntary dissolution or the winding up of the affairs of the Trust, or by any
merger or consolidation wherein the Trust is not the surviving entity, or by any
transfer of all or substantially all of the Trust's assets on a consolidated
basis. In the event of any such merger, consolidation or transfer of assets,
the provisions of this Executive Agreement shall be binding upon and shall inure
to the benefit of the surviving entity or to the entity to which such assets
shall be transferred.
(i) Interest on Amounts Payable. After a Change of Control, if any
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amounts which are required or determined to be paid or payable or reimbursed or
reimbursable to Executive under this Executive Agreement (or under any other
plan, agreement, policy or arrangement with the Trust) are not so paid promptly
at the times provided herein or therein, such amounts shall accrue interest,
compounded daily at the annual percentage rate which is three percentage points
(3%) above the interest rate which is announced by The Riggs National Bank
(Washington, D.C.) from time to time as its prime lending rate, from the date
such amounts were required or determined to have been paid or payable or
reimbursed or reimbursable to Executive until such amounts and any interest
accrued thereon are finally and fully paid; provided, however, that in no event
shall the amount of interest contracted for, charged or received hereunder
exceed the maximum non-usurious amount of interest allowed by applicable law.
(j) Confidentiality of Employment Relationship. The Trust, except to
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the extent required by law, will not make or publish, without the express prior
written consent of Executive, any written or oral statement concerning the terms
of Executive's employment relationship with the Trust and will not, if for any
reason he severs his employment with the Trust, make or publish any written or
oral statement concerning Executive including, without limitation, his work-
related performance or the reasons or basis for Executive severing his
employment relationship with the Trust; provided, however, that the foregoing
restriction is not applicable to information concerning the Executive's
employment relationship with the Trust which was or became generally available
to the public other than as a result of a disclosure by the Trust.
(k) Notices. Any notice required or permitted to be given under this
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Executive Agreement shall be in writing and shall be deemed to have been given
when delivered in person or when deposited in the U.S. mail, registered or
certified, postage
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prepaid, and mailed to the respective addresses set forth herein, unless a party
changes its address for receiving notices by giving notice in accordance with
this Subsection, in which case, to the address specified in such notice.
(l) Disputes; Payment of Attorneys' Fees. At any time after a Change
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of Control, all costs and expenses (including legal, accounting and other
advisory fees and expenses of investigation) incurred by Executive in connection
with (a) any dispute as to the validity, interpretation or application of any
term or condition of this Executive Agreement, (b) the determination in any tax
year of the tax consequences to Executive of any amounts payable (or
reimbursable) under this Executive Agreement, or (c) the preparation of
responses to an Internal Revenue Service audit of, and other defense of,
Executive's personal income tax return for any year which is the subject of any
such audit or an adverse determination, administrative proceeding or civil
litigation arising therefrom that is occasioned by or related to an audit of the
Internal Revenue Service of the Trust's income tax returns are, upon written
demand by Executive, to be paid by the Trust (and Executive shall be entitled,
upon application to any court of competent jurisdiction, to the entry of a
mandatory injunction, without the necessity of posting any bond with respect
thereto, compelling the Trust) promptly on a current basis (either directly or
by reimbursing Executive). Under no circumstances shall Executive be obligated
to pay or reimburse the Trust for any attorneys' fees, costs or expenses
incurred by the Trust.
(m) Federal Income Tax Withholding. The Trust may withhold from any
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benefits payable under this Executive Agreement all federal, state, city or
other taxes (other than any excise tax imposed under Section 4999 of the Code or
any similar tax to which the indemnity provisions of Section 6 of this Executive
Agreement apply) as shall be required pursuant to any law or governmental
regulation or ruling.
(n) Continued Employment. This Executive Agreement shall not confer
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upon the Executive any right with respect to continuance of employment by the
Trust.
(o) Source of Payments. All payments provided under this Executive
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Agreement shall be paid in cash from the general funds of the Trust, and no
special or separate fund shall be established and no other segregation of assets
shall be made to assure payment.
(p) Exculpatory Clause. Neither the Trust's shareholders nor the
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Trustees, officers, employees or agents of the Trust shall be liable under this
Executive Agreement, and the Executive shall look solely to the Trust's estate
for the payment of any claim under or for performance of this Executive
Agreement. The Trust is organized pursuant to a Third Executive Declaration of
Trust dated as of May 24, 1984.
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(q) Counterparts. This Executive Agreement may be executed in
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multiple counterparts with the same effect as if each of the signing parties had
signed the same document. All counterparts shall be construed together and
constitute the same instrument.
IN WITNESS WHEREOF, the parties have executed and delivered this Executive
Agreement as of the day and year indicated above.
/s/ Donald C. Wood
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(Executive's Signature)
Executive's Permanent Address:
55 Warwick Stone Way
Great Falls, Virginia 22066
FEDERAL REALTY INVESTMENT TRUST
By: /s/ Walter F. Loeb
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Name: Walter F. Loeb
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Title: Chairman, Compensation Committee
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Address: 1626 East Jefferson Street
Rockville, MD 20852-4041