exv10w28






Exhibit 10.28




AVALONBAY COMMUNITIES, INC.




Officer Severance Plan




(As adopted September 9, 1999 and amended and restated November 18, 2008)




     1. Purpose. AvalonBay Communities, Inc. (the “Company”) considers it
essential to the best interests of its stockholders to foster the continuous employment of key
management personnel. The Board of Directors of the Company (the “Board”) recognizes,
however, that, as is the case with many publicly held corporations, the possibility of a Change in
Control (as defined in Section 2 hereof) exists and that such possibility, and the uncertainty and
questions which it may raise among management, may result in the departure or distraction of
management personnel to the detriment of the Company and its stockholders. Therefore, the Board
has determined that the AvalonBay Communities, Inc. Officer Severance Plan (the “Plan”)
should be adopted to reinforce and encourage the continued attention and dedication of the Covered
Employees (as defined below) to their assigned duties without distraction in the face of
potentially disturbing circumstances arising from the possibility of a Change in Control. The term
“Covered Employee” means any officer of the Company holding the position of Vice President or
higher (it being noted that any officer receiving severance payments under any other agreement or
arrangement with the Company shall be subject to the limitation on benefits hereunder set forth in
the last sentence of Section 4 hereof) (each, a “Covered Employee”). Nothing in this Plan
shall be construed as creating an express or implied contract of employment and, except as
otherwise agreed in writing between the Covered Employee and the Company or any of its subsidiaries
or affiliates (together with the Company, the “Employers”), the Covered Employee shall not
have any right to be retained in the employ of the Employers.



     2. Change in Control. For purposes of this Plan, a “Change in Control” shall mean the
occurrence of any one of the following events:



     (a) Any individual, entity or group (a “Person”) within the meaning of Sections
13(d) and 14(d) of the Securities Exchange Act of 1934 (the “Act”) (other than the
Company, any corporation, partnership, trust or other entity controlled by the Company (a
“Subsidiary”), or any trustee, fiduciary or other person or entity holding
securities under any employee benefit plan or trust of the Company or any of its
Subsidiaries), together with all “affiliates” and “associates” (as such terms are defined in
Rule 12b-2 under the Act) of such Person, shall become the “beneficial owner” (as such term
is defined in Rule 13d-3 under the Act) of securities of the Company representing 30% or
more of the combined voting power of the Company’s then outstanding securities having the
right to vote generally in an election of the Company’s Board of Directors (“Voting
Securities”), other than as a result of (i) an acquisition of securities directly from
the Company or any Subsidiary or (ii) an acquisition by any corporation pursuant to a
reorganization, consolidation or merger if, following such reorganization, consolidation or
merger the conditions described in clauses (i), (ii) and (iii) of subparagraph (c) of this
Section 2 are satisfied; or



     (b) Individuals who, as of the Effective Date, constitute the Company’s Board of
Directors (the “Incumbent Directors”) cease for any reason to constitute at least a
majority of the Board, provided, however, that any individual becoming a director of the
Company subsequent to the date hereof (excluding, for this purpose, (i) any such individual
whose initial assumption of office is in connection with an actual or threatened election
contest relating to the election of members of the Board of Directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other than the
Board of Directors, including by reason of agreement intended to avoid or settle any such
actual or threatened contest or solicitation, and (ii) any individual whose initial
assumption of office is in connection with a reorganization, merger or consolidation,
involving an unrelated entity and occurring after the date hereof), whose election or
nomination for election by the Company’s shareholders was approved by a vote of at


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least a majority of the persons then comprising Incumbent Directors shall for purposes
of this Plan be considered an Incumbent Director; or



     (c) Consummation of a reorganization, merger or consolidation of the Company, unless,
following such reorganization, merger or consolidation, (i) more than 50% of, respectively,
the then outstanding shares of common stock of the corporation resulting from such
reorganization, merger or consolidation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote generally in the election
of directors is then beneficially owned, directly or indirectly, by all or substantially all
of the individuals and entities who were the beneficial owners, respectively, of the
outstanding Voting Securities immediately prior to such reorganization, merger or
consolidation, (ii) no Person (excluding the Company, any employee benefit plan (or related
trust) of the Company, a Subsidiary or the corporation resulting from such reorganization,
merger or consolidation or any subsidiary thereof, and any Person beneficially owning,
immediately prior to such reorganization, merger or consolidation, directly or indirectly,
30% or more of the outstanding Voting Securities), beneficially owns, directly or
indirectly, 30% or more of, respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or consolidation or the combined
voting power of the then outstanding voting securities of such corporation entitled to vote
generally in the election of directors, and (iii) at least a majority of the members of the
board of directors of the corporation resulting from such reorganization, merger or
consolidation were members of the Incumbent Board at the time of the execution of the
initial agreement providing for such reorganization, merger or consolidation;



     (d) Approval by the shareholders of the Company of a complete liquidation or
dissolution of the Company; or



     (e) The sale, lease, exchange or other disposition of all or substantially all of the
assets of the Company, other than to a corporation, with respect to which following
such sale, lease, exchange or other disposition (i) more than 50% of, respectively, the then
outstanding shares of common stock of such corporation and the combined voting power of the
then outstanding voting securities of such corporation entitled to vote generally in the
election of directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial owners of the
outstanding Voting Securities immediately prior to such sale, lease, exchange or other
disposition, (ii) no Person (excluding the Company and any employee benefit plan (or related
trust) of the Company or a Subsidiary or such corporation or a subsidiary thereof and any
Person beneficially owning, immediately prior to such sale, lease, exchange or other
disposition, directly or indirectly, 30% or more of the outstanding Voting Securities),
beneficially owns, directly or indirectly, 30% or more of, respectively, the then
outstanding shares of common stock of such corporation and the combined voting power of the
then outstanding voting securities of such corporation entitled to vote generally in the
election of directors and (iii) at least a majority of the members of the board of directors
of such corporation were members of the Incumbent Board at the time of the execution of the
initial agreement or action of the Board of Directors providing for such sale, lease,
exchange or other disposition of assets of the Company.



     Notwithstanding the foregoing, a “Change in Control” shall not be deemed to have occurred for
purposes of this Plan solely as the result of an acquisition of securities by the Company which, by
reducing the number of shares of Voting Securities outstanding, increases the proportionate voting
power represented by the Voting Securities beneficially owned by any Person to 30% or more of the
combined voting power of all then outstanding Voting Securities; provided, however, that if any
Person referred to in this sentence shall thereafter become the beneficial owner of any additional
shares of Stock or other Voting Securities (other than pursuant to a stock split, stock dividend,
or similar transaction), then a “Change in Control” shall be deemed to have occurred for purposes
of this Plan.



     3. Terminating Event. A “Terminating Event” shall mean the termination of employment
of a Covered Employee in connection with any of the events provided in this Section 3 occurring
within twenty-four (24) months following a Change in Control. In addition, notwithstanding the
foregoing, in the event of the termination of employment of a Covered Employee in connection with
any of the events provided in this Section 3 within six (6) months prior to the occurrence of a
Change in Control (based on an event, such as a Notice of Termination, that occurred within such
six (6) month period prior to a Change in Control), such termination shall, upon the occurrence



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of a Change in Control, be deemed a Terminating Event under this Plan. To give effect to the
prior sentence, references in Sections 3(b)(ii), (iii) and (iv) to circumstances existing
“immediately prior to a Change in Control” will be interpreted to mean, in a case where the six
month look-back of the prior sentence is being applied, to circumstances existing immediately prior
to the change in circumstances.



     (a) termination by the Employers of the employment of the Covered Employee with the
Employers for any reason other than (i) for Cause or (ii) as a result of the death or
disability (as determined under the Employers’ then existing long-term disability coverage)
of such Covered Employee. “Cause” shall mean, and shall be limited to, the occurrence of
any one or more of the following events:



     (i) the Covered Employee is convicted of or enters a plea of nolo contendere to
an act which is defined as a felony under any federal, state or local law, not based
upon a traffic violation, which conviction or plea has or can be expected to have,
in the good faith opinion of the Board of Directors or the CEO, a material adverse
impact on the business or reputation of the Company; or



     (ii) any one or more acts of theft, larceny, embezzlement, fraud or material
intentional misappropriation from or with respect to the Company; or



     (iii) a breach by the Covered Employee of his fiduciary duties under Maryland
law as an officer, or a material breach by the Covered Employee of any rule,
regulation, policy or procedure of the Company that is generally announced or
distributed to, and applies to, all employees of the Company or a subset of
employees that includes the Covered Employee (including, without limitation, in all
events the Company’s ethics, sexual harassment and insider trading policies); or



     (iv) the Covered Employee’s commission of any one or more acts of gross
negligence or willful misconduct which in the good faith opinion of the Board of
Directors or the CEO has resulted in material harm to the business or reputation of
the Company; or



     (v) the deliberate or willful failure by the Covered Employee (other than by
reason of the Covered Employee’s physical or mental illness, incapacity or
disability) to substantially perform the Covered Employee’s duties with the
Employers and the continuation of such failure for a period of fifteen (15) days
after written notice thereof.



     A Terminating Event shall not be deemed to have occurred pursuant to this Section 3(a)
solely as a result of the Covered Employee being an employee of any direct or indirect
successor to the business or assets of any of the Employers, rather than continuing as an
employee of the Employers following a Change in Control. For purposes of clauses (iv) and
(v) of this Section 3(a), no act, or failure to act, on the Covered Employee’s part shall be
deemed “willful” unless done, or omitted to be done, by the Covered Employee without
reasonable belief that the Covered Employee’s act, or failure to act, was in the best
interest of the Employers; or



     (b) termination by the Covered Employee of the Covered Employee’s employment with the
Employers for Good Reason. “Good Reason” shall mean the occurrence of any of the following
events:



     (i) a material adverse change in the functions, duties or responsibilities of
the Covered Employee’s position (other than a termination of employment for Cause)
which would reduce the level, importance or scope of such position (a change in the
person and/or department to whom the Covered Employee is required to report, or a
change in the personnel that report to the Covered Employee, shall not by itself
constitute a material adverse change in the Covered Employee’s position); or



     (ii) the relocation of the office at which the Covered Employee is principally
located immediately prior to the Change in Control (the “Original Office”) to a new
location outside of the metropolitan area of the Original Office or the failure to
locate the Covered Employee’s own office


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at the Original Office (or at the office to which such office is relocated
which is within the metropolitan area of the Original Office); or



     (iii) either (X) the failure by the Company to continue in effect any
compensation plan or program in which the Covered Employee participates immediately
prior to a Change in Control which is material to the Covered Employee’s total
compensation, unless comparable alternative arrangements (embodied in ongoing
substitute or alternative plans or programs) have been implemented with respect to
such plans or programs, or (Y) the failure by the Company to continue the Covered
Employee’s participation therein following a Change in Control (or in such
substitute or alternative plans or programs) on a basis not materially less
favorable, in terms of the amount of benefits provided and the level of the Covered
Employee’s participation relative to other participants, as existed during the last
completed fiscal year of the Company prior to the Change in Control (the occurrence
of either failure in clause (X) or (Y), a “CIC Compensation Failure”);
provided, however, that in no event shall a CIC Compensation Failure
have occurred if:



     (A) the value of the Covered Employee’s total annual compensation
following a Change in Control, including, but not limited to, cash
compensation (including salary and bonus), stock grants (valued using
stock price less consideration paid), stock options (valued using the
Black-Scholes method or a variation thereof, as determined by the
Board of Directors or a compensation consultant engaged by the Board
of Directors) and benefits (valued using an actuarial or similar
valuation method), is at least 90% of the Covered Employee’s total
annual compensation in the last fiscal year prior to the Change in
Control; or



     (B) (I) the Covered Employee’s total annual cash
compensation (including salary and bonus) following a Change in
Control is at least 90% of what it was in the year prior to the
Change in Control, with such reasonable adjustments thereto as
are necessary to give effect to performance based bonuses (with
respect to which the performance criteria may reasonably be
modified) and the level of performance achieved with respect
thereto;



     (II) the total value of the Covered Employee’s annual stock
grants (valued using stock price less consideration paid)
following a Change in Control are at least 90% of what they were
in the year prior to the Change in Control, with such reasonable
adjustments thereto as are necessary to give effect to (x)
performance based bonuses (with respect to which the performance
criteria may reasonably be modified) and the level of performance
achieved with respect thereto, and (y) to changes in the price of
the Company’s or the successor’s stock due to market
fluctuations;



     (III) the Covered Employee’s total annual stock option
grants (measured either by (a) total value, as determined as
described in the preceding paragraph (A), or (b) total “leverage
potential” (i.e., the number of options granted multiplied by the
exercise price, after giving effect to changes in the price of
the Company’s or the successor’s stock due to market
fluctuations)) are at least 90% of what they were in the year
prior to the Change in Control, with such reasonable adjustments
thereto as are necessary to give effect to performance based
bonuses (with respect to which the performance criteria may
reasonably be modified) and the level of performance achieved
with respect thereto; and



     (IV) there is not a material reduction in the Covered
Employee’s benefits as compared to the last fiscal year prior to
the Change in Control; or



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     (iv) the failure by the Employers to obtain an effective agreement from any
successor to assume and agree to perform this Plan.



     4. Special Termination Benefits. In the event a Terminating Event occurs with respect
to a Covered Employee,



     (a) the Employers shall pay to the Covered Employee an amount equal to all accrued but
unpaid annual base salary and all earned but unpaid cash incentive compensation earned
through such Covered Employee’s Date of Termination. Said amount shall be paid in one lump
sum payment no later than thirty-one (31) days following the Date of Termination (as such
term is defined in Section 8(b)); and



     (b) if and only if such Terminating Event is not described in Section 3(b)(ii), the
Employers shall pay to the Covered Employee an amount equal to the sum of the following:



     (i) one times the amount of the current annual base salary of the Covered
Employee, determined prior to any reductions for pre-tax contributions to a cash or
deferred arrangement or a cafeteria plan; and



     (ii) one times the amount of the average annual cash bonus earned by the
Covered Employee with respect to the two (2) calendar years immediately prior to the
Change in Control determined prior to any reductions for pre-tax contributions to a
cash or deferred arrangement or a cafeteria plan (provided, however, that if the
Covered Employee’s tenure with the Company is such that prior to the Terminating
Event the Covered Employee has earned an annual bonus only with respect to the
calendar year immediately prior to the Change in Control, then such annual bonus
shall be deemed to have been earned with respect to the two (2) calendar years
immediately prior to the Change in Control; and, provided further, however, that if
the Covered Employee’s tenure with the Company is such that prior to the Terminating
Event the Covered Employee has not earned an annual bonus, then the Covered
Employee’s target annual bonus immediately prior to the Change in Control shall be
deemed to have been earned with respect to the two (2) calendar years immediately
prior to the Change in Control).



Said amount shall be paid in one lump sum payment no later than thirty-one (31) days
following the Date of Termination; and



     (c) if and only if such Terminating Event is described in Section 3(b)(ii), the
Employers shall pay to the Covered Employee an amount equal to the sum of the following:



     (i) one-half times (0.5) the amount of the current annual base salary of the
Covered Employee, determined prior to any reductions for pre-tax contributions to a
cash or deferred arrangement or a cafeteria plan; and



     (ii) one-half times (0.5) times the amount of the average annual cash bonus
earned by the Covered Employee with respect to the two (2) calendar years
immediately prior to the Change in Control determined prior to any reductions for
pre-tax contributions to a cash or deferred arrangement or a cafeteria plan, with
procedures similar to those described in Section 4(b)(ii) to determine such average.



Said amount shall be paid in one lump sum payment no later than thirty-one (31) days
following the Date of Termination (as such term is defined in Section 8(b)); and



     (d) the Employers shall continue to provide health, dental and life insurance (or
contribute a portion of the cost thereof) to the Covered Employee, on the same terms and
conditions as though the Covered Employee had remained an active employee, for eighteen (18)
months after the Terminating Event or until such earlier date as the Covered Employee
obtains comparable benefits through other employment (provided, however, that this clause
(d) shall in no event obligate the Company to continue to fund the


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premiums on any split dollar life insurance policy pursuant to arrangements that were
in effect while the Covered Employee was employed); and



     (e) the Employers shall take whatever action is necessary (i) to cause the Covered
Employee to become vested as of the Date of Termination in all stock options, restricted
stock grants, and all other equity-based awards and (ii) to be entitled (A) to exercise and
continue to exercise all stock options and all other equity-based awards having an exercise
schedule and (B) to retain such grants and awards, but in each case under clauses (A) and
(B) such right to exercise and retain shall last only for so long as, and shall apply only
to the same extent as, if such options, grants and awards had vested prior to termination of
employment and their treatment following such termination were determined in accordance with
the terms of the applicable stock option agreement, grant agreement or other equity award
agreement and the incentive plans governing such agreements. Reference in this regard is
made to the clarification set forth in Section 5; and



     (f) the Employers shall provide COBRA benefits to the Covered Employee following the
end of the period referred to in Section 4(d) above, such benefits to be determined as
though the Covered Employee’s employment had terminated at the end of such period; and



     (g) notwithstanding the foregoing, if the Terminating Event occurs before the Change in
Control, the special termination benefits required by this Section 4 shall be paid, or
commence, as the case may be, no later than thirty-one (31) days after the consummation of
the Change in Control.



     Notwithstanding the foregoing, the special termination benefits required by Sections 4(b) or
4(c) shall be reduced by any amount paid or payable to the Covered Employee by the Employers under
the terms of any employment agreement or other plan or arrangement providing for compensation upon
such Covered Employee’s termination of employment (other than payment of accrued vacation benefits
and payments under any deferred compensation plan). Other benefits under this Plan shall also be
reduced or eliminated to the extent provided to the Covered Employee under other agreements or
arrangements. Therefore, a Covered Employee with an employment agreement or arrangement that
provides greater severance benefits than those provided in this Officer Severance Program will
receive no payments or benefits under this Officer Severance Program.



     5. Clarification Regarding Treatment of Options and Restricted Stock. The stock
option and restricted stock agreements (the “Equity Award Agreements”) that the Covered
Employee has or may receive may contain language regarding the effect of a termination of the
Covered Employee’s employment under certain circumstances. Notwithstanding such language in the
Equity Award Agreements, for so long as this Plan is in effect, the Company will be obligated, if
the terms of this Plan are more favorable in this regard than the terms of the Equity Award
Agreements, to take the actions required under Section 4(e) hereof upon the happening of a
Terminating Event. That section provides that the Company will cause the Covered Employee to
become vested as of the Date of Termination in all equity-based awards, and that such equity-based
awards will thereafter be subject to the provisions of the applicable Equity Award Agreement as it
applies to vested awards upon a termination. For purposes of clarification, although an option
grant may vest under termination circumstances described above, such option will thereafter be
exercisable only for so long as the related option agreement provides, except that the Compensation
Committee of the Board of Directors may, in its sole discretion, elect to extend the expiration
date of such option. For example, in general the Covered Employees’ option agreements provide that
(in the absence of an extension by the Compensation Committee) upon a termination of employment for
any reason other than death, disability, retirement or cause, any vested options will only be
exercisable for three months from the date of termination or, if earlier, the expiration date of
the option.



     6. Additional Benefits.



     (a) Anything in this Plan to the contrary notwithstanding, in the event that any
compensation, payment or distribution by the Employers to or for the benefit of a Covered
Employee, whether paid or payable or distributed or distributable pursuant to the terms of
this Plan or otherwise, (the “Severance Payments”), would be subject to the excise
tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the
“Code”), the following provisions shall apply to such Covered Employee:



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     (i) If the Severance Payments, reduced by the sum of (1) the Excise Tax and (2)
the total of the Federal, state, and local income and employment taxes payable by
the Covered Employee on the amount of the Severance Payments which are in excess of
the Threshold Amount, are greater than or equal to the Threshold Amount, the Covered
Employee shall be entitled to the full benefits payable under this Plan.



     (ii) If the Threshold Amount is less than (x) the Severance Payments, but
greater than (y) the Severance Payments reduced by the sum of (1) the Excise Tax and
(2) the total of the Federal, state, and local income and employment taxes on the
amount of the Severance Payments which are in excess of the Threshold Amount, then
the benefits payable under this Plan shall be reduced (but not below zero) to the
extent necessary so that the maximum Severance Payments shall not exceed the
Threshold Amount. In such event, the payments shall be reduced in the following
order: (A) cash payments not subject to Section 409A of the Code; (B) cash payments
subject to Section 409A of the Code; and (D) non-cash form of benefits. To the
extent any payment is to be made over time, then the payment shall be reduced in
reverse chronological order.



For the purposes of this Section 6, “Threshold Amount” shall mean three times the Covered
Employee’s “base amount” within the meaning of Section 280G(b)(3) of the Code and the
regulations promulgated thereunder less one dollar ($1.00); and “Excise Tax” shall mean the
excise tax imposed by Section 4999 of the Code, or any interest or penalties incurred by the
Covered Employee with respect to such excise tax.



     (b) The determination as to which of the alternative provisions of Section 6(a) shall
apply to the Covered Employee shall be made by such nationally recognized accounting firm as
may at that time be the Company’s independent public accountants immediately prior to the
Change in Control (the “Accounting Firm”), which shall provide detailed supporting
calculations both to the Employers and the Covered Employee within 15 business days of the
Date of Termination, if applicable, or at such earlier time as is reasonably requested by
the Employers or the Covered Employee. For purposes of determining which of the alternative
provisions of Section 6(a) shall apply, the Covered Employee shall be deemed to pay federal
income taxes at the highest marginal rate of federal income taxation applicable to
individuals for the calendar year in which the determination is to be made, and state and
local income taxes at the highest marginal rates of individual taxation in the state and
locality of the Covered Employee’s residence on the Date of Termination, net of the maximum
reduction in federal income taxes which could be obtained from deduction of such state and
local taxes. Any determination by the Accounting Firm shall be binding upon the Employers
and the Covered Employee.



     7. Withholding. All payments made by the Employers under this Plan shall be net of
any tax or other amounts required to be withheld by the Employers under applicable law.



     8. Notice and Date of Termination; Etc.



     (a) Notice of Termination. Any purported termination by the Employer of a
Covered Employee’s employment (other than by reason of death) within 24 months following a
Change in Control shall be communicated by written Notice of Termination from the Employers
to the Covered Employee in accordance with this Section 8. For purposes of this Plan, a
“Notice of Termination” shall mean a notice which shall indicate the specific termination
provision in this Plan relied upon and the Date of Termination. Further, a Notice of
Termination for Cause is required to include a written explanation as to the basis for such
termination.



     (b) Date of Termination. “Date of Termination,” with respect to any purported
termination of a Covered Employee’s employment by the Employers within twenty-four (24)
months after a Change in Control, shall mean the date specified in the Notice of Termination
which, in the case of a termination by the Employers other than a termination for Cause
(which may be effective immediately), shall not be less than 30 days after the Notice of
Termination is given. Notwithstanding Section 3(a) of this Plan, in the event that a
Covered Employee gives a Notice of Termination to the Employers, the Employers may
unilaterally accelerate the date of termination of such Covered Employee and such
acceleration shall not


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constitute an independent Terminating Event for purposes of Section 3(a) of this Plan
or a violation of the preceding sentence (i.e., the Covered Employee will be entitled to
severance payments and benefits hereunder only if such Covered Employee’s Notice of
Termination was with respect to a termination for Good Reason).



     (c) No Mitigation. The Covered Employee is not required to seek other
employment or to attempt in any way to reduce any amounts payable to the Covered Employee by
the Employers under this Plan. Further, the amount of any payment provided for in this Plan
shall not be reduced by any compensation earned by the Covered Employee as the result of
employment by another employer, by retirement benefits, by offset against any amount claimed
to be owed by the Covered Employee to the Employers, or otherwise.



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     9. Resolution of Disputes; Procedures and Scope of Arbitration.



     (a) All controversies and claims arising under or in connection with this Plan or relating to the
interpretation, breach or enforcement thereof and all other disputes between a Covered Employee and
the Company, shall be resolved by expedited, binding arbitration, to be held in California or
Virginia, as selected by the Covered Employee, in accordance with the applicable rules of the
American Arbitration Association governing employment disputes. In any proceeding relating to the
amount owed to a Covered Employee in connection with his termination of employment, it is the
contemplation under this Plan that the only remedy that the arbitrator may award in such a
proceeding is an amount equal to the termination payments and benefits required to be provided
under the applicable provisions of Section 4 and, if applicable, Section 6 hereof, to the extent
not previously paid, plus the costs of arbitration and the Covered Employee’s reasonable attorneys
fees and expenses as provided below. Any award made by such arbitrator shall be final, binding and
conclusive on the Company and the Covered Employee for all purposes, and judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction thereof.



     (b) Except as otherwise provided in this paragraph, each party shall pay the cost of his or
its own legal fees and expenses incurred in connection with an arbitration proceeding. Provided an
award is made in favor of the Covered Employee in such proceeding, all of his reasonable attorneys
fees and expenses incurred in pursuing or defending such proceeding shall be promptly reimbursed to
the Covered Employee by the Company within five days of the entry of the award. Any award of
reasonable attorneys’ fees shall take into account any offer of the Company, such that an award of
attorneys’ fees to the Covered Employee may be limited or eliminated to the extent that the final
decision in favor of the Covered Employee does not represent a material increase in value over the
offer that was made by the Company during the course of such proceeding. However, any elimination
or limitation on attorneys’ fees shall only apply to those attorneys’ fees incurred after the offer
by the Company.



     (c) In any case where the Company or any other person seeks to stay or enjoin the commencement
or continuation of an arbitration proceeding, whether before or after an award has been made, or
where a Covered Employee seeks recovery of amounts due after an award has been made, or where the
Company brings any proceeding challenging or contesting the award, all of a Covered Employee’s
reasonable attorneys fees and expenses incurred in connection therewith shall be promptly
reimbursed by the Company to the Covered Employee, within five days of presentation of an itemized
request for reimbursement, regardless of whether the Covered Employee prevails and regardless of
the forum in which such proceeding is brought.



     10. Benefits and Burdens. This Plan shall inure to the benefit of and be binding upon
the Employers and the Covered Employees, their respective successors, executors, administrators,
heirs and permitted assigns. In the event of a Covered Employee’s death after a Terminating Event
but prior to the completion by the Employers of all payments due him under this Plan, the Employers
shall continue such payments to the Covered Employee’s beneficiary designated in writing to the
Employers prior to his death (or to his estate, if the Covered Employee fails to make such
designation).



     11. Enforceability. If any portion or provision of this Plan shall to any extent be
declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this
Plan, or the application of such portion or provision in circumstances other than those as to which
it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and
provision of this Plan shall be valid and enforceable to the fullest extent permitted by law.



     12. Waiver. No waiver of any provision hereof shall be effective unless made in
writing and signed by the waiving party. The failure of any party to require the performance of
any term or obligation of this Plan, or the waiver by any party of any breach of this Plan, shall
not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.



     13. Notices. Any notices, requests, demands, and other communications provided for by
this Plan shall be sufficient if in writing and delivered in person or sent by registered or
certified mail, postage prepaid, to a Covered Employee at the last address the Covered Employee has
filed in writing with the Employers, or to the Employers at their main office, attention of the
Board of Directors.



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     14. Effect on Other Plans. Nothing in this Plan shall be construed to limit the
rights of the Covered Employees under the Employers’ benefit plans, programs or policies.



     15. Nature of Payments; Requirement for Release, Confidentiality and Non-Solicitation
Agreement. The amounts due pursuant to this Plan, except for payment of accrued base salary
through the Date of Termination, are in the nature of severance payments considered to be
reasonable by the Company and are not in the nature of a penalty. The Company may require, as a
condition to making the payments and providing the benefits required hereby, that a Covered
Employee execute and deliver to the Company a Release and a Non-Solicitation Agreement (as such
terms are defined below), and may also require that the Covered Employee acknowledge in writing
that he or she is resigning as an officer from the Company and as a director and officer of any
subsidiary of the Company for which the Covered Employee serves in such capacity, before any
amounts or benefits under this Plan are paid or provided. A “Release” shall mean a written
release of all employment-related claims by Covered Employee of the Company in a form and manner
reasonably satisfactory to the Company. Such Release shall in all events preserve Covered
Employee’s continuing rights under this Plan except with respect to any amount paid prior to or
simultaneously with the execution of such Release, in which event Covered Employee shall
acknowledge receipt of such amount and (if such is the case) that such amount was properly
calculated and is in full satisfaction of the Company’s obligation to pay such amount.
“Non-Solicitation Agreement” means an agreement of Covered Employee with the Company that
Covered Employee shall not, without the prior written consent of the Company for a period of one
year following the Covered Employee’s date of termination, solicit or attempt to solicit for
employment with or on behalf of any corporation, partnership, venture or other business entity, any
employee of the Company or any of its affiliates or any person who was formerly employed by the
Company or any of its affiliates within the preceding six months, unless such person’s employment
was terminated by the Company or any of such affiliates.



     16. Amendment or Termination of Plan. The Company may, upon one year’s advance
written notice to the Covered Employees, amend or terminate this Plan at any time or from time to
time; provided, however, that, with respect to any such notice given on or prior to
March 29, 2002, the amendment or termination set forth in such notice shall not, without the
written consent of a Covered Employee, in any material adverse way affect the rights of such
Covered Employee; and provided, further, that during the 24 months following a
Change in Control no such amendment or termination shall have a material adverse effect on the
rights of a Covered Employee with respect to such Change in Control.



     17. Governing Law. This Plan shall be construed under and be governed in all respects
by the laws of the State of Maryland.



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     18. Obligations of Successors. In addition to any obligations imposed by law upon any
successor to the Employers, the Employers will use their best efforts to require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Employers to expressly assume and agree to
perform this Plan in the same manner and to the same extent that the Employers would be required to
perform if no such succession had taken place.



     19. Section 409A. Anything in this Plan to the contrary notwithstanding, if at the time of
the Covered Employee’s “separation from service” within the meaning of Section 409A of the Code,
the Company determines that the Covered Employee is a “specified employee” within the meaning of
Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Covered
Employee becomes entitled to under this Plan would be considered deferred compensation subject to
the 20 percent additional tax imposed pursuant to Section 409A of the Code as a result of the
application of Section 409A(2)(B)(i) of the Code, such payment shall not be payable and such
benefit shall not be provided prior to the date that is the earlier of (a) six months and one day
after the Covered Employee’s separation from service, or (b) the Covered Employee’s death. Any
such delayed cash payment shall earn interest at an annual rate equal to the applicable federal
short-term rate published by the Internal Revenue Service for the month in which separation from
service occurs, from the date of separation from service until the payment date. The parties
intend that this Plan will be administered in accordance with Section 409A of the Code. The
determination of whether and when a separation from service has occurred shall be made in
accordance with the presumptions set forth in Treasury Regulation Section 1.409(A)-1(h).


Adopted by the Compensation Committee of the Board of Directors: as of September 9, 1999 and
amended and restated on November 18, 2008, effective as of January 1, 2009.





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