Exhibit 10.4
[Form of Director 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 Director 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, the Director’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:
|
Vesting Event
|
|
Shares Vested
|
|
|
|
|
|
|
|
Award Date
|
|
20
|
%
|
|
First Anniversary of Award
Date
|
|
40
|
%
|
|
Second Anniversary of Award
Date
|
|
60
|
%
|
|
Third Anniversary of Award
Date
|
|
80
|
%
|
|
Fourth Anniversary of Award
Date
|
|
100
|
%
|
|
|
|
|
|
|
Termination of the Director’s service as a
director by vote of the Company’s stockholders for any reason
other than Cause
|
|
100
|
%
|
|
|
|
|
|
|
Failure by the Board of Directors or any
authorized committee thereof to nominate the Director for
re-election for any reason other than for Cause
|
|
100
|
%
|
|
|
|
|
|
|
Failure of the Company’s
stockholders to re-elect the Director
|
|
100
|
%
|
|
|
|
|
|
|
Death or Disability of the
Director
|
|
100
|
%
|
|
|
|
|
|
|
If earlier than any of the above
events, a Sale Event
|
|
100
|
%
|
*or, if fewer, all Restricted
Shares
Additional Terms/Acknowledgements:
The undersigned Director
acknowledges receipt of, and understands and agrees to, this Stock
Grant and Restricted Stock Agreement, including, without
limitation, the Terms. The Director 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 Director 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” means and shall
be limited to (a) an affirmative vote of the holders of at
least 75 percent of the shares entitled to vote at a meeting of
stockholders called for the purpose, resolving that the Director
should be removed from office or (b) a vote of the Board, the
Nominating Committee, if any, or any other authorized committee of
the Board resolving that the Director should not be nominated for
re-election as a director, in either case, as a result of
(i) conviction of a felony, (ii) declaration of unsound
mind by order of a court, (iii) gross dereliction of duty,
(iv) commission of any act involving moral turpitude or
(v) commission of an act that constitutes intentional
misconduct or a knowing violation of law if such action in either
event results in both an improper substantial personal benefit to
such Director and a material injury to the Company.
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 Director’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 Administrator 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 - Secretary
“Secretary” shall mean
the secretary of the Company.
ARTICLE II
RESTRICTED
STOCK
Section 2.1 - Restricted Stock
Any shares of Common Stock granted
pursuant to this Agreement which vest on a date other than the
Award Date shall be considered Restricted Stock for purposes of
this Agreement and shall be subject to the Restrictions until such
time or times and except to the extent that the Director’s
ownership interest in Shares vests in accordance with the Vesting
Schedule set forth on the first page of this
Agreement.
2
Section 2.2 - Escrow
If the Restricted Stock is
certificated, the Secretary or such other escrow holder as the
Company may from time to time appoint shall retain physical custody
of the certificates representing Restricted Stock, until all of the
Restrictions expire or shall have been removed; provided, however,
that in no event shall the Director retain physical custody of any
cer
