Exhibit 10.3
[Form of Employee Restricted Stock
Agreement]
AVALONBAY COMMUNITIES, INC.
STOCK GRANT AND RESTRICTED STOCK AGREEMENT
Pursuant to the terms of the AvalonBay
Communities, Inc. 2009 Stock Option and Incentive Plan (the
“Plan”), in consideration for services rendered and to
be rendered to AvalonBay Communities, Inc. (the
“Company”) and for other good and valuable
consideration, the Company is issuing to the Employee named below
contemporaneously herewith the Shares, upon the terms and
conditions set forth herein and in the Restricted Stock Agreement
Terms (the “Terms”) which are attached hereto and
incorporated herein in their entirety. Capitalized terms used
but not defined herein shall have the respective meanings ascribed
thereto in the Plan or in the Terms, as applicable.
Vesting Schedule
:
Subject to the provisions of the
Terms and the discretion of the Company to accelerate the vesting
schedule, the Employee’s ownership interest in the Shares
shall vest, and the status of the Shares as Restricted Stock and
all Restrictions with respect to the Shares shall terminate, in
accordance with the following schedule of events: 20% on
March 1 of the year of the grant, 20% on each subsequent
March 1 st
.
The Shares shall also vest upon the
occurrence of the following events:
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Termination of the Employee’s Employment
by the Company, other than for Cause
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100% of the Award
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The death or Disability of the
Employee
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100% of the Award
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The Employee’s Retirement
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100% of the Award
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If earlier than any of the above events, a Sale
Event
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100% of the Award
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*or, if fewer, all Restricted
Shares
The Administrator’s determination of the
reason for termination of the Employee’s employment shall be
conclusive and binding on the Employee and his or her
representatives or legatees.
Additional Terms/Acknowledgements:
The undersigned Employee
acknowledges receipt of, and understands and agrees to, this Stock
Grant and Restricted Stock Agreement, including, without
limitation, the Terms. Employee further acknowledges that as
of the Award Date, this Stock Grant and Restricted Stock Agreement,
including, without limitation, the Terms, sets forth the entire
understanding between Employee and the Company regarding the stock
grant described herein and supersedes all prior oral and written
agreements on that subject.
ATTACHMENT
: Restricted Stock Agreement
Terms
1
AVALONBAY COMMUNITIES,
INC.
RESTRICTED STOCK AGREEMENT
TERMS
ARTICLE I
DEFINITIONS
The following terms used below in
this Agreement shall have the meaning specified below unless the
context clearly indicates to the contrary. Capitalized terms
not otherwise defined herein shall have the meanings set forth in
the Plan.
Section 1.1 — Cause
“Cause” shall mean a
vote of the Board resolving that the Employee should be dismissed
as a result of (i) any material breach by the Employee of any
agreement to which the Employee and the Company are parties,
(ii) any act (other than retirement) or omission to act by the
Employee which may have a material and adverse effect on the
business of the Company or any Subsidiary or on the
Employee’s ability to perform services for the Company or any
Subsidiary, including, without limitation, the commission of any
crime (other than ordinary traffic violations), or (iii) any
material misconduct or neglect of duties by the Employee in
connection with the business or affairs of the Company or any
Subsidiary.
Section 1.2 — Common Stock
“Common Stock” shall
mean the common stock of the Company, $.01 par value.
Section 1.3 — Disability
“Disability” shall mean
the Employee’s inability to perform his normal required
services for the Company and its Subsidiaries for a period of six
consecutive months by reason of the individual’s mental or
physical disability, as determined by the Committee in good faith
in its sole discretion.
Section 1.4 - Restricted Stock
“Restricted Stock” shall
mean the Shares issued under this Agreement for as long as such
shares are subject to the Restrictions (as hereinafter defined)
imposed by this Agreement.
Section 1.5 - Restrictions
“Restrictions” shall
mean the restrictions set forth in Article III of this
Agreement.
Section 1.6 - Retirement
“Retirement” shall mean
the termination of the Employee’s employment (and other
business relationships) with the Company and its Subsidiaries,
other than for Cause, following the date on which the sum of the
following equals or exceeds 70 years: (i) the number of full
years of the Employee’s employment and other business
relationships with the Company and any predecessor Company and
(ii) the Employee’s age on the date of termination;
provided that:
(x)
the Employee’s employment by
(or other business relationships with) the Company and any
predecessor company of the Company have continued for a period of
at least 120 continuous full months at the time of termination and,
on the date of termination, the Employee is at least 50 years
old;
(y)
in the case of termination of
employment, the Employee gives at least six months’ prior
written notice to the Company of his or her intention to retire;
and
2
(z)
in the case of termination of
employment, the Employee enters into a “Non-Compete and
Non-Solicitation Agreement,” as hereinafter defined, and a
general release of all claims in a form that is reasonably
satisfactory to the Company.
As used in the foregoing sentence,
“Non-Compete and Non-Solicitation Agreement” shall mean
a written agreement between the Employee and the Company providing
that, for a period of at least 12 months following the
Employee’s termination of employment with the Company
(A) the Employee shall not, without the prior written consent
of the Company, become associated with, or engage in any
“Restricted Activities” with respect to any
“Competing Enterprise,” as such terms are hereinafter
defined, whether as an officer, employee, principal, partner,
agent, consultant, independent contractor or shareholder, and
(B) the Employee shall not, without the prior written consent
of the Company, solicit or attempt to solicit for employment with
or on behalf of any Competing Enterprise 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.
“Competing Enterprise,” for purposes of this section,
shall mean any person, corporation, partnership, ven
