exv10w12






Exhibit 10.12




THIRD AMENDMENT

TO

EMPLOYMENT AGREEMENT




     The Employment Agreement (the “Agreement”) made as of the 10th day of January, 2003
by and between AvalonBay Communities, Inc., a Maryland corporation (the “Company”), and Bryce Blair
(“Executive”), as previously amended, is hereby further amended as follows (new language is bold
and underlined and deleted language is struck through):



     1. The last sentence of Section 3(b) of the Agreement is hereby amended to read as follows:



“Any Cash Bonuses for a fiscal year hereunder shall be paid
as a lump sum not later than 75 days after the end of the Company’s
preceding fiscal year but not later than March 14 after the end
of the fiscal year.”



     2. Section 7(c)(i)(b)(A) of the Agreement is hereby amended to read as follows:



“The Company may defer the determination of the Cash Bonus and the
restricted stock portion of the LT Equity Bonus until such bonuses
in respect of such year are determined for other officers, and at
such time the amounts to be used for determining Executive’s pro
rata bonuses shall be a percentage of his target Cash Bonus and a
percentage of his target number of restricted shares with such
percentages being equal to the average of the percentages that apply
to the Cash Bonus and restricted shares, respectively, of other
officers’ ranked Senior Vice President or higher, and but in no
event shall such Cash Bonus and the restricted stock portion of the
LT Equity Bonus be paid to Executive later than March 14 of the
calendar year following the calendar year that includes the Date of
Termination; and”



     3. The first sentence of Section 7(c)(iii) of the Agreement is hereby amended to read as
follows:



     “In the event the Company elects to terminate Executive’s employment
during the Employment Period on account of Disability, the Company
shall, in addition to paying the amounts set forth in Section
7(c)(i) and subject to Executive first entering into a separation
agreement, including a general release of all claims, in a form
reasonably acceptable to the Company (‘Separation
Agreement‘) within 21 days of the Date of Termination,
pay to Executive, in one lump sum, no later than the effective date
of said Separation Agreement or 31 days following



 









 







the Date of Termination, an amount equal to two times Covered
Average Compensation.”



     4. Section 7(c)(iv) of the Agreement is hereby amended to read as follows:



     “(iv) Non-Renewal. In the event the Company gives
Executive a notice of non-renewal pursuant to Section 1 above, the
Company shall, in addition to paying the amounts provided under
Section 7(c)(i), pay to Executive, in one lump sum 31 days
following the Date of Termination, an amount equal to Covered
Average Compensation. The Company shall also, commencing upon
the Date of Termination,



     (A) Pay to Executive, for 12 consecutive months,
commencing with the first day of the month immediately
following the Date of termination, a monthly amount equal to
the result obtained by dividing Covered Average Compensation
by twelve;



     (B)(A) Continue, without cost to Executive,
benefits comparable to the medical benefits provided to
Executive immediately prior to the Date of Termination under
Section 3(c) for a period of 24 months following the Date of
Termination or until such earlier date as Executive obtains
comparable benefits through other employment; and



     (C)(B) Take whatever action is necessary to
cause Executive to become vested as of the Date of
Termination in all stock options, restricted stock grants,
and all other equity-based awards and be entitled to
exercise and continue to exercise all stock options and all
other equity-based awards having an exercise schedule and to
retain such grants and awards to the same extent as if they
were vested upon termination of employment in accordance
with their terms; and



     (D)(C) If Executive obtains a disability policy
on commercially reasonable terms with the same or similar
coverage as provided by the Company in the Base Disability
Policy and the Supplemental Policy prior to the Date of
Termination, then, until that date that is 24 months
following the Date of Termination (or, if earlier, until
Executive obtains comparable benefits through other
employment), reimburse Executive for an amount equal to the
difference between (i) the monthly premiums for such
disability policy, less (ii) such amount as may be paid,
prior


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the Date of Termination, by Executive in respect of a
portion of the premiums on the Base Disability Policy
provided by the Company prior to the Date of Termination;
and



     (E)(D) Continue to pay the premiums then due or
thereafter payable on the whole-life portion of the
split-dollar insurance policy referenced under Section 3(d)
in accordance with, and to the extent required by, the
provisions of the Split Dollar Agreement between the Company
and Executive.”



     5. It is noted that Section 7(c)(v) is not amended.



     6. The second sentence of Section 7(d)(ii) of the Agreement is hereby amended to read as
follows:



“The initial Partial Gross-Up Payment, if any, as determined
pursuant to this 7(d)(ii), shall be paid to the Executive within
five days of the receipt of the Accounting Firm’s determination
appropriate tax authorities as withholding taxes on behalf of
Executive at such time or times when each Excise Tax payment is
due.”



     7. The following section shall be inserted as a new Section 7(i) to the Agreement:



     “(i) Section 409A.



     (a) Anything in this Agreement to the
contrary notwithstanding, if at the time of Executive’s
‘separation from service’ within the meaning of Section 409A
of the Code, the Company determines that Executive 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 Executive becomes entitled to under this
Agreement would be considered deferred compensation subject
to the 20 percent additional tax imposed pursuant to Section
409A(a) of the Code as a result of the application of
Section 409A(a)(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 Executive’s separation from service, or (B)
Executive’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 



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separation from service occurs, from the date of
separation from service until the payment date.



     (b) The right to reimbursement or in-kind
benefits under this Agreement is not subject to liquidation
or exchange for another benefit and does not affect the
expenses eligible for reimbursement, or in-kind benefits, to
be provided in any other taxable year.



     (c) The reimbursement of expenses under
this Agreement will be made on or before the last day of
Executive’s taxable year following the taxable year in which
the expense was incurred.



     (d) The parties intend that this Agreement
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). The parties agree that this Agreement may be
amended, as reasonably requested by either party, and as may
be necessary to fully comply with Section 409A of the Code
and all related rules and regulations in order to preserve
the payments and benefits provided hereunder without
additional cost to either party.”



     8. Except as amended herein, the Agreement is hereby confirmed in all other respects.



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     IN WITNESS WHEREOF, this Amendment is entered into this 14th day of December, 2008.



	 	 	 	 	 
	 	AVALONBAY COMMUNITIES, INC.

 	 
	 	By:  	/s/ Charlene Rothkopf
 	 
	 	 	Name:  	Charlene Rothkopf 	 
	 	 	Title:  	EVP-Human Resources 	 
	 
	 	 	 
	 	By:  	         /s/ Edward M. Schulman
 	 
	 	 	Name:  	Edward M. Schulman 	 
	 	 	Title:  	SVP, General Counsel & Secretary 	 
	 
	 	 	 
	 	                             /s/ Bryce Blair
 	 
	 	Executive 	 
	 	 	 
	 




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