exv10w1



 





Exhibit 10.1




[Form of Employee Non-Qualified Stock Option Agreement]




AVALONBAY COMMUNITIES, INC.

NON-QUALIFIED STOCK OPTION AGREEMENT

(1994 STOCK INCENTIVE PLAN, AS AMENDED AND RESTATED)




Pursuant to the AvalonBay
Communities, Inc. 1994 Stock Incentive Plan, as amended and restated (the
“Plan”), AvalonBay Communities, Inc. (the “Company”) hereby grants to the
Optionee named below an Option to purchase up to the number of shares of the
Company’s Common Stock, par value $.01 per share (“Common Stock”) set forth
below. This option is subject to all of the terms and conditions as set forth
herein, in the Non-Qualified Stock Option Agreement Terms (the “Terms”) which
are attached hereto and incorporated herein in their entirety, and in the Plan.
Capitalized terms used but not defined herein or in the Terms shall have the
respective meanings ascribed thereto in the Plan.



	 	 	 	 
	Optionee:

	 	 	 
	Date of Grant:

	 	 	 
	Number of Shares Subject to Option (“Option Shares”):

	 	 	 
	Exercise Price (Per Share):

	 	 	 
	Total Exercise Price:

	 	 	 
	Expiration Date:

	 	 	 







	 	 	 	 	 
	Non-Qualified Stock
	 	 	 	 
	Option:	 	This Option does not qualify as an incentive stock
option under Section 422 of the Internal Revenue
Code of 1986, as amended (the “Code”), and
consequently shall be treated as a non-qualified
stock option for tax purposes.
	 
	 	 	 	 
	Vesting Schedule:	 	Subject to the provisions of Section 4 and 6 of the
Terms and the discretion of the Company to
accelerate the vesting schedule, this option shall
become vested and exercisable with respect to the
following number of Option Shares at the expiration
of the following periods from the Date of Grant set
out above:
	 
	 	 	 	 
	

	 	Vesting Event

[First Anniversary of Grant Date]

[Second Anniversary of Grant Date]

[Third Anniversary of Grant Date]
	 	Option Shares Vested

[One-Third]

[One-Third]

[One-Third]
	 
	 	 	 	 
	 	 	In any event this Option shall become fully vested and
exercisable with respect to all of the Option Shares three years
after the date hereof.







Additional Terms/Acknowledgements: The undersigned Optionee acknowledges
receipt of, and understands and agrees to, this Non-Qualified Stock
Option Agreement, including, without limitation, the Terms. Optionee
further acknowledges receipt of a copy of the Plan. Optionee further
acknowledges that as of the Date of Grant, this Non-Qualified Stock
Option Agreement, including, without limitation, the Terms, and the Plan
set forth the entire understanding between Optionee and the Company
regarding the Options described herein and supersede all prior oral and
written agreements on that subject.



	 	 	 
	AVALONBAY COMMUNITIES, INC.

	 	OPTIONHOLDER:
	 
	 	 
	By:                                                                               

	 	                                                                                                  
	Signature

	 	Signature
	
Title:                                                                            

	 	
Name (Print):                                                                            
	
Date:                                                                            

	 	
Date:                                                                                         







ATTACHMENT: Non-qualified Stock Option Agreement Terms



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AVALONBAY COMMUNITIES, INC.

1994 STOCK INCENTIVE PLAN, AS AMENDED AND RESTATED




NON-QUALIFIED STOCK OPTION AGREEMENT TERMS




     1.      Vested Option Shares. Subject to Section 4, when this Option is
vested with respect to any of the Option Shares, this Option shall continue to
be exercisable with respect to such Option Shares (“Vested Option Shares”) at
any time or times prior to the Expiration Date.



     2.      Manner of Exercise. The Optionee may exercise this Option only
in the following manner: from time to time on or prior to the Expiration Date,
the Optionee may give written notice to the Company of his election to purchase
some or all of the Vested Option Shares purchasable at the time of such notice,
which this notice shall specify the number of Option Shares to be purchased.



     Payment of the purchase price for the Option Shares to be purchased may be
made by one or more of the following methods: (a) in cash, by certified bank
check or other instrument acceptable to the Company; (b) through the delivery
(or attestation to the ownership) of shares of Common Stock that have been
beneficially owned by the Optionee for at least six (6) months and are not then
subject to restrictions under any Company plan and were not used in a “stock
swap” within the six (6) months preceding the option exercise, such surrendered
shares to be valued at the closing price of the Common Stock on the principal
exchange on which the Common Stock is listed on the date the Company receives
the exercise notice; (c) by the Optionee delivering to the Company a properly
executed exercise notice together with irrevocable instructions to a broker to
promptly deliver to the Company cash or a check payable and acceptable to the
Company to pay the purchase price; provided that in the event the Optionee
chooses to pay the purchase price as provided in this subsection (c), the
Optionee and the broker shall comply with such procedures and enter into such
agreements of indemnity and other agreements as the Company shall prescribe as
a condition of such payment procedure; or (d) with the consent of the Company,
a combination of (a), (b) and (c) above. Payment instruments will be received
subject to collection.



     The delivery of certificates representing the Option Shares will be
contingent upon (i) the Company’s receipt from the Optionee of full payment for
the Option Shares, (ii) the satisfaction of section 10 hereof, and (iii) any
agreement, statement or other evidence that the Company may require to satisfy
itself that the issuance of Option Shares to be purchased pursuant to the
exercise of Options under the Plan and any subsequent resale of the shares will
be in compliance with applicable laws and regulations.



     If requested upon the exercise of this Option, certificates for Option
Shares may be issued in the name of the Optionee jointly with another person or
in the name of the executor or administrator of the Optionee’s estate. The
Optionee shall not have the rights of a stockholder with respect to any Option
Shares prior to his acquisition of such Option Shares upon the exercise of this
Option.



     Notwithstanding any other provision hereof or of the Plan, no portion of
this Option shall be exercisable after the Expiration Date hereof.



     3.      Non-transferability of Option. This Option shall not be
transferable by the Optionee otherwise than by will or by the laws of descent
and distribution and this Option shall be exercisable, during the Optionee’s
lifetime, only by the Optionee.



     4.      Termination of Employment. If the Optionee’s employment (or
other business relationship) by the Company or a Subsidiary (as defined in the
Plan) is terminated, the period within which to exercise the Option may be
subject to earlier termination as set forth below.



(a)     Termination Due to Death. If the Optionee’s employment
(or other business relationship) terminates by reason of death, any
Option held by the Optionee may be exercised, to the extent
exercisable at the date of death, by the Optionee’s legal
representative or legatee for a period of six (6) months from the
date of death, or until the Expiration Date, if earlier. For
clarification, it is noted that this means that the remaining
unvested portion of the Option shall terminate immediately and be
of no further force or effect.




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(b)     Termination Due to Disability. If the Optionee’s
employment (or other business relationship) terminates by reason of
Disability (as defined in the Plan), any Option held by the
Optionee may be exercised, to the extent exercisable on the date of
termination, for a period of twelve (12) months from the date of
termination, or until the Expiration Date, if earlier. The death
of the Optionee during the twelve (12) month period provided in
this Section 4(b) shall extend such period for six (6) months from
the date of death or until the Expiration Date, if earlier. For
clarification, it is noted that this means that the remaining
unvested portion of the Option shall terminate immediately and be
of no further force or effect.



(c)     Termination by Reason of Retirement. If the Optionee’s
employment terminates by reason of Retirement (as defined in the
Plan), any Option held by the Optionee shall be automatically
vested on the date of termination, and shall be exercisable for a
period of twelve (12) months from the date of termination, or until
the Expiration Date, if earlier. The death of the Optionee during
the twelve (12) month period provided in this Section 4(c) shall
extend such period for six (6) months from the date of death, or
until the Expiration Date, if earlier.



Retirement, as defined in the Plan, means:



the Optionee’s termination of employment with the Company and its
Subsidiaries, other than for Cause, following the date on which the
sum of (i) the number of full months the Optionee has been employed
by the Company and any Predecessor Company (as defined in the Plan)
and (ii) the Optionee’s age on the date of termination, equals or
exceeds 70 years, provided that:




	(x)	 	the Optionee has been employed by the
Company and any Predecessor Company for a period of at
least 120 contiguous full months at the time of
termination;
	 
	(y)	 	the Optionee gives at least six
months’ prior written notice to the Company of his
intention to retire; and
	 
	(z)	 	upon termination of employment, the
Optionee enters into a “Non-Compete and Non-Solicitation
Agreement” (as defined in the Plan) and a general
release of all claims in a form reasonably satisfactory
to the Company.





(d)     Termination for Cause. If the Optionee’s employment (or
other business relationship) terminates for Cause (as defined in
the Plan), any Option held by the Optionee shall immediately
terminate and be of no further force and effect.



(e)     Other Termination. If the Optionee’s employment (or
other business relationship) terminates for any reason other than
death, Disability, Retirement or Cause, and unless otherwise
determined by the Company, any Option held by the Optionee may be
exercised, to the extent exercisable on the date of termination,
for a period of three (3) months from the date of termination, or
until the Expiration Date, if earlier. For clarification, it is
noted that this means that the remaining unvested portion of the
Option shall terminate immediately and be of no further force or
effect.



For this purpose, neither a transfer of employment from the Company to a
Subsidiary (or from a Subsidiary to the Company) nor an approved leave of
absence shall be deemed a “termination of employment.”



     5.      Option Shares. The Option Shares are shares of the Common Stock
of the Company as constituted on the date of this Option, subject to adjustment
as provided in the Plan.



     6.      Effect of Change of Control. Upon the occurrence of a Change of
Control, as defined in the Plan, this Option shall automatically become fully
exercisable.



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     7.        No Special Employment Rights. This Option will not confer upon
the Optionee any right with respect to continuance of employment by the Company
or a Subsidiary, nor will it interfere in any way with any right of the
Optionee’s employer to terminate the Optionee’s employment at any time.



     8.        Rights as a Shareholder. The Optionee shall have no rights as a
shareholder with respect to any shares of Common Stock that may be purchased
upon exercise of this Option unless and until a certificate or certificates
representing such shares are duly issued and delivered to the Optionee. Except
as otherwise expressly provided in the Plan, no adjustment shall be made for
dividends or other rights for which the record date is prior to the date such
stock certificate is issued.



     9.        The Plan. In the event of any discrepancy or inconsistency
between this Agreement and the Plan, the terms and conditions of the Plan shall
control.



     10.      Withholding Taxes. The Optionee shall, not later than the date
as of which the exercise of this Option becomes a taxable event for federal
income tax purposes, pay to the Company (or make arrangements satisfactory to
the Company for payment of) any federal, state and local taxes required by law
to be withheld on account of such taxable event. The Optionee acknowledges and
agrees that the Company has the right to deduct from payments of any kind
otherwise due to the Optionee, or from the Option Shares to be issued in
respect of an exercise of this Option, any federal, state or local taxes of any
kind required by law to be withheld with respect to the issuance of shares of
Stock to the Optionee.



     11.      Miscellaneous. Notices hereunder shall be mailed or delivered
to the Company at its principal place of business, 2900 Eisenhower Avenue,
Suite 300, Alexandria, Virginia 22314, Attention: Jenny Bercik, and shall be
mailed or delivered to Optionee at his address set forth in the Company’s
records, or in either case at such other address as one party may subsequently
furnish to the other party in writing. This Option shall be governed by the
laws of the State of Maryland, except to the extent such law is preempted by
federal law.



[End of Text]





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     [In accordance with the employment agreements of Messrs. Blair, Naughton,
Sargeant, Fuller and Horey, the Company enters into the following addendum to
all Non-Qualified Stock Option Agreements with such individuals.]



Addendum to NQSO Stock Option Agreement

with

_____________




     This Addendum to Stock Option Agreement is dated as of ___.



     Reference is made to the following agreement (the “Unmodified Stock Option
Agreement”):




Non-Qualified Stock Option Agreement between ___(“Employee”) and
AvalonBay Communities, Inc. (“AvalonBay”), dated ___, with respect
to ___stock options (the “Options”) having an exercise price of
$___.


Capitalized terms used herein and not defined herein have the meanings set
forth in the Unmodified Stock Option Agreement.




     For the convenience of AvalonBay, the Unmodified Stock Option Agreement is
in a standard format commonly used by AvalonBay. However, this Addendum to
Stock Option Agreement (the “Addendum”) contains one or more provisions (the
“Modifications”) approved by the Board of Directors of AvalonBay (the “Board”)
that are inconsistent with the terms of the Unmodified Stock Option Agreement.
The Board approved the Modifications at the time it approved the grant of the
Options to Employee, and for ease of administration the Company is documenting
the grant of the Options with the Modifications by entering into the Unmodified
Stock Option Agreement and this Addendum.



     NOW, THEREFORE, intending to be legally bound and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
AvalonBay and Employee agree as follows:




If, pursuant to the terms of the Employment Agreement between the Company
and Employee dated ___, as amended, or pursuant to the terms of a
successor agreement or arrangement (other than the Unmodified Stock
Option Agreement), the vesting of Employee’s stock options is accelerated
upon the termination of his employment, then the following shall apply:
any Option then held by Employee may be exercised, to the extent
exercisable on the date of termination (after giving effect to
accelerated vesting), for a period of one (1) year from the date of
termination, or until the Expiration Date, if earlier.




For clarification it is noted that the terms of the preceding paragraph
will not apply if vesting of Employee’s stock options is not accelerated
upon a termination of employment (e.g., if he voluntarily resigns without
a Constructive Termination without Cause, as defined in the Employment
Agreement). In such cases, the period of time following termination in
which the Options must be exercised will be


 









 






determined by the Unmodified Stock Option Agreement, which generally
provides that the Options will terminate earlier than one year from the
date of termination.



     Except as stated above, the terms of the Unmodified Stock Option Agreement
apply in full to the Options.



	 	 	 	 	 	 	 
	 	 	AVALONBAY COMMUNITIES, INC.	 	 
	 	 	
By:
	 	 



Name:
	 	 
	 	 	 	 	Title:	 	 
	 	 	
By:
	 	 



Name:
	 	 
	 	 	 	 	Title:	 	 







     Receipt is hereby acknowledged of a copy of the Company’s Plan, the
Unmodified Stock Option Agreement and this Addendum. The undersigned agrees to
be bound by the terms and conditions of the Plan, the Unmodified Stock Option
Agreement and this Addendum.



	 	 	 	 	 
	 	 	
 



Optionee:
	 	 
	 	 	
Address:	 	 








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