EXHIBIT 10(viii)
UNITED DOMINION REALTY TRUST, INC.
1991 STOCK PURCHASE AND LOAN PLAN
ARTICLE I
DEFINITIONS
1.01. AFFILIATE means any "subsidiary" or "parent corporation" (within the
meaning of Section 425 of the Code) of the Company.
1.02. AGREEMENT means a written agreement (including any amendment or
supplement thereto) between the Company and a Participant pursuant to which the
Participant agrees to purchase Common Stock pursuant to this Plan.
1.03. BOARD means the Board of Directors of the Company. 1.04. CODE means the
Internal Revenue Code of 1986, as amended.
1.05. COMMITTEE means the Compensation Committee of the Board.
1.06. COMMON STOCK means the Common Stock of the Company.
1.07. ESCROW AGREEMENT means a written agreement (including any amendment or
supplement thereto) between the Company, a Participant and an escrow agent
effecting the escrow contemplated by Article XIII.
1.08. FAIR MARKET VALUE means, on any given date, the closing sale price of the
Common Stock on the NYSE on such date, or, if the NYSE shall be closed on such
date, the next preceding date on which the NYSE shall have been open.
1.09. GOOD FAITH LOAN VALUE means "good faith loan value' as defined in Section
207.2(e) of Regulation G of the Board of Governors of the Federal Reserve
System, 12 CFR 207.2(e).
1.10. NOTE means the Participant's promissory note evidencing his obligation to
pay for Common Stock as provided in Section 7.01.
1.11. NOTE YEAR means any period of one year beginning with the date of the
Note or any anniversary of such date.
1.12. NYSE means the New York Stock Exchange.
1.13. PARTICIPANT means an employee of the Company or of an Affiliate who
satisfies the requirements of Article IV and is selected by the Committee to
participate in the Plan.
1.14. PLAN means the United Dominion Realty Trust, Inc. 1991 Stock Purchase and
Loan Plan.
1.15. PLAN DOCUMENTS means the Plan, the Note, the Agreement and the Escrow
Agreement.
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1.16. PLEDGED SHARES means all shares of Common Stock which at the time of
determination are pledged to secure the Note.
1.17. COMPANY means United Dominion Realty Trust, Inc.
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ARTICLE II
PURPOSES
The Plan is intended to assist the Company in recruiting and retaining key
employees with ability and initiative by enabling employees who contribute
significantly to the Company or an Affiliate to participate in its future
success and to associate their interests with those of the Company and its
shareholders through the purchase of Common Stock. The proceeds received by the
Company from the sale of Common Stock pursuant to this Plan shall be used for
general corporate purposes.
ARTICLE III
ADMINISTRATION
The Plan shall be administered by the Committee. The Committee shall have
authority to sell Common Stock to Participants upon such terms (not inconsistent
with the provisions of this Plan) as the Committee may consider appropriate.
Such terms may include, but are not limited to, conditions (in addition to those
contained in this Plan) relating to the obligation of a Participant to sell, or
of the Company to purchase, Common Stock upon the Participant's termination of
employment with the Company and its Affiliates or upon the Participant's death.
In addition, the Committee shall have complete authority to interpret all
provisions of this Plan; to prescribe the form of Agreements; to adopt, amend,
and rescind rules and regulations pertaining to the administration of this Plan.
The express grant in the Plan of any specific power to the Committee shall not
be construed as limiting any power or authority of the Committee. Any decision
made, or action taken, by the Committee or in connection with the administration
of this Plan shall be final and conclusive. No member of the Committee shall be
liable for any act done in good faith with respect to this Plan or any
Agreement. All expenses of administering this Plan shall be borne by the
Company.
ARTICLE IV
ELIGIBILITY
4.01. GENERAL. Any key employee of the Company or of any Affiliate (including
any corporation that becomes an Affiliate after the adoption of this Plan) who
is selected by the Committee may purchase Common Stock pursuant to this Plan. A
person who is a member of the Committee may not participate in this Plan.
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4.02. OFFERS. The Committee will specify the number of shares of Common Stock
that each Participant may purchase under this Plan and the terms and conditions
of each purchase. In determining the number of shares of Common Stock that each
Participant may purchase, the Committee shall take into account the Fair Market
Value of the Common Stock. Each sale of Common Stock under this Plan shall be
evidenced by an Agreement which shall be subject to applicable provisions of
this Plan and to such other provisions not inconsistent with this Plan as the
Committee may approve for the particular sale transaction.
ARTICLE V
NUMBER OF SHARES AVAILABLE FOR PURCHASE
The maximum aggregate number of shares of Common Stock that may be issued under
this Plan is 1,400,000, subject to adjustment as provided in Article VIII.
Shares of Common Stock purchased by a Participant and reacquired by the Company
from such Participant shall not be coounted in any determination ofthe number of
shares issued under the plan until again purchased by the same or a different
Participant.
ARTICLE VI
PURCHASE PRICE
The price per share for Common Stock purchased by a Participant under this Plan
shall be the Fair Market Value on the date the Participant executes and delivers
an Agreement.
ARTICLE VII
PAYMENT OF PURCHASE PRICE
7.01. PAYMENT. At the option of the Participant, payment of the purchase price
of Common Stock acquired under this Plan shall be made in full in cash or a cash
equivalent acceptable to the Committee, at the time of execution and delivery of
the Participant's Agreement, or by delivery to the Company of a Note in
principal amount equal to the purchase price of the shares covered by the
Agreement, less any partial cash payment made at the time of execution and
delivery, or for the full purchase price if no such partial cash payment is
made, provided that the initial principal amount of the Note may in no event
exceed the Good Faith Loan Value of such Common Stock.
7.02. TERMS OF NOTE. Each Note shall be in substantially the form of Exhibit 1
hereto, with such variations conforming to this paragraph as shall be
appropriate under the circumstances. Each Note shall be executed
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and delivered by the Participant and the Participant's spouse, if any; shall be
due and payable seven years after the date of purchase; shall bear interest
payable quarterly on the first day of each February, May, August and November;
and shall be secured by a pledge of all Common Stock purchased by the
Participant pursuant to the Plan. In the discretion of the Committee and on such
terms and conditions as it may specify, Pledged Shares may be released from such
pledge, provided that such release shall not cause the principal amount of the
Note then outstanding to exceed the Good Faith Loan Value of the remaining
Pledged Shares.
7.03. SHAREHOLDER RIGHTS IN PLEDGED SHARES. Until a default under the Note, all
Pledged Shares shall be registered in the Participant's name and the Participant
shall have all rights of a shareholder of the Company with respect to such
Pledged Shares.
7.04. DIVIDENDS ON PLEDGED SHARES. The Participant shall agree to remit to the
Company all dividends paid on the Pledged Shares, to be applied first towards
payment of interest on the Note accrued to the dividend payment date, and then
towards reduction of principal of the Note. Any balance of any applied dividend
payment remaining after prepayment of the Note in full shall be delivered to the
Participant.
7.05. EFFECT OF PREPAYMENT OF NOTE. During the first two Note Years, no partial
prepayment of the Note shall be deemed payment in full of the purchase price of
any Common Stock purchased pursuant to this Plan, entitling the Participant to
release of any Pledged Shares from the pledge thereof securing the Note, but
each such prepayment shall be deemed a pro rata partial payment of the purchase
price of all such Common Stock. A partial prepayment after the second Note Year
which is attributable to a source other than dividend payments remitted pursuant
to Section 7.04 may at the discretion of the Participant be deemed payment in
full for the number of whole Pledged Shares obtained by dividing the amount of
such prepayment allocable to reduction of principal of the Note by the quotient
of division of the principal amount of the Note outstanding before giving effect
to such prepayment by the number of Pledged Shares, and at the request of the
Participant, Pledged Shares deemed paid for in full shall be released from
pledge, but only if the principal amount of the Note then outstanding will not
exceed the Good Faith Loan Value of the remaining Pledged Shares.
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ARTICLE VIII
ADJUSTMENT UPON CHANGE IN COMMON STOCK
Should the Company effect one or more stock dividends, stock split-ups,
subdivisions or consolidations of shares or other similar changes in
capitalization, then this Plan shall continue to apply to the number and kind of
securities which a holder of the number of shares of Common Stock then subject
to this Plan immediately before the effective time of such change in
capitalization would hold immediately thereafter.
The issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, for cash or property or for labor
or services, either upon direct sale or upon the exercise of rights or warrants
to subscribe therefor, or upon conversion of shares or obligations of the
Company convertible into such shares or other securities, shall not affect, and
no adjustment by reason thereof shall be made with respect to, this Plan.
ARTICLE IX
COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES
No Common Stock shall be issued, no certificates for shares of Common Stock
shall be delivered, and no payment shall be made under this Plan except in
compliance with all applicable federal and state laws and regulations
(including, without limitation, withholding tax requirements) and the rules of
all domestic stock exchanges on which the Company's shares may be listed. The
Company shall have the right to rely on an opinion of its counsel as to such
compliance. Any share certificate issued to evidence Common Stock purchased
under this Plan may bear such legends and statements as the Committee may deem
advisable to assure compliance with federal and state laws and regulations. No
Common Stock shall be issued, no certificate for shares shall be delivered, and
no payment shall be made under this Plan until the Company has obtained such
consent or approval as the Committee may deem advisable from regulatory bodies
having jurisdiction over such matters.
ARTICLE X
GENERAL PROVISIONS
10.01. EFFECT ON EMPLOYMENT. Neither the adoption of this Plan, its operation,
nor any documents describing or referring to this Plan (or any part thereof)
shall confer upon any individual any right to continue in the
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employ of the Trust or an Affiliate or in any way affect any right and power of
the Trust or an Affiliate to terminate the employment of any employee at any
time with or without assigning a reason therefor.
10.02. UNFUNDED PLAN. The Plan shall be unfunded and the Company shall not be
required to segregate any assets at any time for purposes of this Plan. Any
liability of the Company to any person under this Plan shall be based solely
upon any contractual obligations that may be created pursuant to this Plan. No
such obligation of the Company shall be deemed to be secured by any pledge of,
or other encumbrances on, any property of the Company.
10.03. RULES OF CONSTRUCTION. Headings are given to the articles and sections
of this Plan solely as a convenience to facilitate reference. The reference to
any statute, regulation, or other provision of law shall be construed to refer
to any amendment to or successor of such provision of law.
ARTICLE XI
AMENDMENT
The Board may amend from time to time or terminate this Plan; provided, however,
that no amendment may become effective until shareholder approval is obtained if
the amendment (i) increases the aggregate number of shares of Common Stock that
may be sold pursuant to this Plan or (ii) changes the class of individuals
eligible to become Participants.
ARTICLE XII
DURATION OF PLAN
No Common Stock may be sold under this Plan after December 31, 2010.
ARTICLE XIII
EFFECTIVE DATE OF PLAN
Shares of Common Stock in excess of those authorized under this Plan may be sold
upon its adoption by the Board, provided that no such sale shall be effective
unless this Plan is approved by a majority of the votes entitled to be case by
the Company's shareholders, voting either in person or by proxy, at a duly held
shareholders' meeting within twelve months of such adoption. If Common Stock is
sold following the adoption by the Board but before the requisite shareholder
approval is obtained, the certificates evidencing
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such Common Stock and the purchase price (including all Notes) and any dividends
payable on such shares shall be held in escrow until the earlier of (i) the date
the requisite shareholder approval is obtained or (ii) the anniversary of the
Plan's action by the Board.
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EXHIBIT 1
PROMISSORY NOTE
$
Richmond, Virginia
FOR VALUE RECEIVED, the undersigned (The "Participant" or the "Maker")
and, if the Participant is married at the date of execution of this Note, the
undersigned spouse of the Participant (also a "Maker"), promises (or if there
shall be two Makers, both jointly and severally promise) to pay to the order of
UNITED DOMINION REALTY TRUST, INC. (the "Company"), on , , at the
principal office of the Company in Richmond, Virginia, or at such other place as
the holder hereof may designate in writing, in lawful money of the United States
of America, the sum of Dollars ($ ), with interest thereon payable in
arrears on the first days of each February, May, August and November until this
Note is paid in full, at the rate of __% per annum.
OPTIONAL PREPAYMENT. The Maker (or if there shall be two Makers, each
Maker) shall have the right to prepay this Note in whole at any time or in part
from time to time without penalty on any amount so prepaid.
MANDATORY PREPAYMENT. This Note has been executed and
delivered in payment of the purchase price of shares of Common Stock of the
Company (the "Shares") purchased by the Participant pursuant to the Company's
1991 Stock Purchase and Loan Plan. If at any time before payment of this Note in
full, the Participant shall sell any of the Shares, the Maker agrees (or if
there shall be two Makers, both jointly and severally agree) to prepay this Note
immediately upon receipt of the net proceeds of such sale in an amount equal to
the lesser of 100% of such net proceeds or the outstanding principal of this
Note and accrued interest to the date of such prepayment.
All prepayments, mandatory or optional, shall be applied first to
payment of accrued interest and then to reduction of outstanding principal.
If any payment under this Note is not made when due, all unpaid
principal and accrued interest under this Note may, at the option of the holder,
be declared immediately due and payable. If the Participant ceases to be
employed by the Company or by any "subsidiary" or "parent corporation" (within
the meaning of Section 425 of the Internal Revenue Code of 1986, as amended) of
the Company, all such principal and accrued interest shall become due and
payable on the 90th day following cessation of such employment
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without declaration or notice of any kind. If proceedings under the federal
Bankruptcy Code or under any other law, state or federal, for the relief of
debtors are filed by or against the Maker (or if there shall be two Makers,
either Maker) and not dismissed within 60 days after filing, all such principal
and accrued interest shall become immediately due and payable without
declaration or notice of any kind. No failure by the holder of this Note to
exercise any right hereunder shall be or be deemed to be a waiver of such right
or of any remedy consequent thereon.
Presentment, demand and notice of dishonor are hereby waived, and the
Maker agrees (or if there shall be two Makers, both jointly and severally agree)
to be bound for the payment hereof notwithstanding any agreement for the
extension of the due date of any payment made by the holder after the maturity
thereof.
The Maker agrees (or if there shall be two Makers, both jointly and
severally agree) to pay all collection expenses, court costs and reasonable
attorneys' fees incurred in collection of this Note or any part hereof.
References to the Maker or Makers shall include the Maker or Makers and all
endorsers, sureties, guarantors and other obligors hereon.
This Note is secured by a pledge of the Shares pursuant to the terms of
the Plan. Dividends on the Shares shall be applied towards prepayment hereof,
and Shares shall or may be released from such pledge, all as provided in the
Plan.
(SEAL)
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(SEAL)
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